Harrison v. Adams, et al
Filing
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ORDER Regarding 154 Findings and Recommendations and Determining the Claims on Which This Action Will Proceed, signed by District Judge Anthony W. Ishii on 7/30/2013. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MICHAEL D. HARRISON,
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Plaintiff,
v.
1:08-cv-01065-AWI-MJS (PC)
ORDER REGARDING FINDINGS AND
RECOMMENDATIONS AND
DETERMINING THE CLAIMS ON WHICH
THIS ACTION WILL PROCEED
D. ADAMS, et al.,
(ECF No. 154)
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Defendants.
_______________________________/
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Plaintiff Michael D. Harrison (“Plaintiff”) is a prisoner proceeding pro se in a civil
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rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States
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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. The operative
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complaint was filed on October 9, 2012, and titled the eighth amended complaint
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(“complaint”).
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On May 5, 2013, the Magistrate Judge filed Findings and Recommendations,
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recommending this action proceed on some of the complaint’s claims and defendants but that
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other claims and defendants be dismissed. (ECF No. 154.) Plaintiff has filed objections. (ECF
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No. 156.)
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(c) and Local Rule 304, this
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Court has conducted a de novo review of this case. Having carefully reviewed the entire file,
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the Court finds the Findings and Recommendations allowing this action to proceed as to certain
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Defendants is supported by the record and by proper analysis. However, in light of the
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objections and this Court’s review of the pending complaint, the Court adds the additional
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analysis set forth below.
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The Magistrate Judge recommended that the Court dismiss the claim against Defendant
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Roth concerning his failure to obtain medical help when Plaintiff’s arm was broken because
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Defendant Roth asked for help. In the objections, Plaintiff contends that the complaint’s
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allegations state that he asked Defendant Roth for help and Defendant Roth did nothing.
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Court has reviewed the portions of the complaint concerning Defendant Roth. After reading
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the relevant sentences, the Court finds that Plaintiff’s allegations against Defendant Roth, as
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written, could be read two different ways. Given the deference the Court must give to Plaintiff
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at this stage of the pleadings, the Court will construe these sentences as Plaintiff explains them
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in the objections – Plaintiff asked Defendant Roth for medical help and showed him his broken
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arm, but Defendant Roth did not do anything. As such, this action will proceed against
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The
Defendant Roth.
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A far closer question is whether Plaintiff’s allegations concerning those that knew about
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Plaintiff’s infection and were asked for help, but did nothing, states a claim. The complaint’s
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allegations are not extraordinarily specific. Plaintiff lists 17 guards and other staff that he had
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contact with between June 6, 2007 and September 1, 2007. The complaint then states that each
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of these Defendants saw that Plaintiff’s arm was swollen, “bleeding and leaking out puss.”
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The complaint states that Plaintiff asked each of these 17 defendants for medical help and they
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did nothing. Rule 8(a) of the Federal Rules of Civil Procedure requires only “a short and plain
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statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
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Under Rule 8, “a complaint must contain sufficient factual matter, accepted as true, to state a
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claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009); Bell
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Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
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plaintiff pleads factual content that allows the court to draw the reasonable inference that the
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defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. This plausibility
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standard is not a probability requirement, but does ask for more than mere possibility; if a
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complaint pleads facts “merely consistent with” a theory of liability, it falls short of “the line
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between possibility and plausibility.” Id.
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The Court can see ways in which Plaintiff could have been more specific in the
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complaint; Such as alleging the dates on which Plaintiff had contact with each of these 17
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defendants, stating exactly what he said to each of the 17 defendants, and how well they could
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view Plaintiff’s arm given the circumstances.
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the Magistrate Judge that Plaintiff’s allegations are not sufficient under Rule 8. The complaint
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alleges the names of 17 defendants that were at the window of his cell between June 6, 2007
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and September 1, 2007. The complaint alleges that he: (1) Told these defendants that his arm
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was hurting and bleeding and leaking out puss, and (2) Asked these defendants to take him to
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the hospital for help. The complaint alleges Plaintiff made these statements and requests to the
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defendants repeatedly. The complaint also alleges these 17 defendants could see Plaintiff’s
However, the Court respectfully disagrees with
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arm, including the swelling, bleeding, and puss. For Eighth Amendment claims arising out of
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medical care in prison, a plaintiff “must show (1) a serious medical need by demonstrating that
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failure to treat [his] condition could result in further significant injury or the unnecessary and
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wanton infliction of pain,” and (2) that “the defendant’s response to the need was deliberately
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indifferent.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012). Deliberate indifference
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is shown by “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical
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need, and (b) harm caused by the indifference.” Id. “Under this standard, the prison official
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must not only ‘be aware of the facts from which the inference could be drawn that a substantial
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risk of serious harm exists,’ but that person ‘must also draw the inference.”
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Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). The Court finds Plaintiff’s requests for help,
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along with the obviousness of Plaintiff’s serious medical condition, as described in the
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complaint, sufficiently states a claim for deliberate indifference by the 17 defendants.
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Toguchi v.
In the objections, Plaintiff appears to request that the Court allow Plaintiff more time to
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find the names of others who he may have also asked for help so that he can file yet another
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amended complaint. This action concerns events from 2007. The action has been pending in
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this Court since 2008. The pending complaint is entitled “Eighth Amendment Complaint”, and
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appears to be at least Plaintiff’s fifth or sixth attempt to file some kind of amended complaint or
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pleading. It is now time for this action to proceed. As such, no further leave to amend will be
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granted.
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Accordingly, IT IS HEREBY ORDERED that:
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The Findings and Recommendations, filed May 5, 2013, are adopted as amended
in this order;
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This action SHALL proceed as one for damages on Plaintiff’s Eighth
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Amendment medical care claim for failure to treat his broken arm against
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Defendants Jones, Moore, Burns, Urbano, Campos, Parsons, M. Gonzalez, C.
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Gonzalez, Cisneros, Zakari, and Roth;
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3.
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This action SHALL proceed as one for damages on Plaintiff’s Eighth
Amendment medical care claim for failure to treat his infection against
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Defendants Kim, Dava; Urbano, Campos, Parsons, M. Gonzalez, C. Gonzalez,
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Cisneros, Zakari, Galvan, Bastianon, Casio, Vicente, Johnson, Raygoza, O’Neal,
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Coronado, Edmonds, and Tumayo;
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4.
No further leave to amend will be granted;
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This action is referred to the Magistrate Judge to set a briefing schedule and for
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further proceedings.
IT IS SO ORDERED.
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Dated:
0m8i78
July 30, 2013
SENIOR DISTRICT JUDGE
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