Randolph v. Lozovoy et al

Filing 14

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN PART 12 , signed by District Judge Dale A. Drozd on 6/30/17. (Hellings, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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COLIN M. RANDOLPH,

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Plaintiff,

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No. 1:16-cv-01528-DAD-EPG (PC)

v.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS IN PART

R. LOZOVOY et al.,
(Doc. No. 12)

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Defendants.

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Plaintiff Colin Randolph is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds on plaintiff’s first

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amended complaint, which was filed on February 6, 2017. (Doc No. 11.) The matter was

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referred to a United States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule

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302.

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On March 13, 2017, the assigned magistrate judge issued findings and recommendations,

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recommending that this action proceed against defendant Lozovoy only with respect to plaintiff’s

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claim of deliberate indifference to his serious medical needs in violation of the Eighth

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Amendment, and that all other claims and defendants be dismissed from this action based with

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prejudice. (Doc. No. 12.) The findings and recommendations were served on plaintiff and

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contained notice that objections thereto must be filed within twenty days. (Id.) On April 3, 2017,

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plaintiff filed his objections to the findings and recommendations. (Doc. No. 13.)
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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) 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, the

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court finds the findings and recommendations with respect to plaintiff’s claims brought against

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defendants Lozovoy, Rodriguez, and Buyard to be supported by the record and proper analysis.

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Accordingly, the court will adopt that part of the findings and recommendation. However, as

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discussed below, the court declines to adopt the findings and recommendations with respect to

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plaintiff’s claims brought against defendants Grewall and Chen.

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Defendant Grewal
Plaintiff’s first amended complaint alleges that on March 5, 2015, defendant Grewall, a

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registered nurse, evaluated plaintiff’s swollen left knee while plaintiff was in his wheelchair.

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(Doc. No. 11 at 7.) At that evaluation, defendant Nurse Grewall acknowledged plaintiff’s

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medical history of gout. (Id. at 8.) On March 8, 2015, plaintiff visited defendant Grewal again

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and informed defendant Grewall of his excruciating pain and difficulty accessing his toilet and

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shower. (Id.) Defendant Grewall then promised to provide plaintiff with a walker, an ACE

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bandage, and ice so that he could access the shower and toilet. (Id.) Despite this promise,

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defendant Grewall never issued the walker to plaintiff. (Id. at 9.)

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These facts, if taken to be true, support a plausible inference that defendant Grewall was

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aware of a serious medical need and acted with deliberate indifference in failing to keep a

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promise to provide adequate care. Specifically, of the three items defendant Grewall promised,

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the walker would appear to be the most important because it would have allowed plaintiff to

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safely access the toilet and shower and may have prevented plaintiff from worsening his knee

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injury. As a result, plaintiff has sufficiently stated a claim against defendant Grewal for

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deliberate indifference to a serious medical need under the Eighth Amendment.

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Defendant Chen
According to plaintiff’s first amended complaint, plaintiff saw defendant Doctor Chen

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March 10, 2015, and communicated his complaints about his knee injury. (Id. at 9.) Doctor Chen

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acknowledged the treatment that plaintiff was receiving for gout and instructed plaintiff to not

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place unnecessary trauma on his joints. (Id.) Plaintiff then asked how he could avoid such
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trauma while housed on an upper bunk without a safe way to get down. (Id.) Defendant Chen

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told plaintiff he “didn’t know” and that plaintiff needed to “figure it out” or plaintiff would

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“continue to have swollen joints.” (Id. at 9–10.) Plaintiff asked for a permanent lower bunk

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chrono to avoid unnecessary trauma, and defendant Chen refused. (Id. at 10.) After filing a

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health care inmate grievance and receiving no response, plaintiff filed a disability grievance,

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which was accepted on March 18, 2015. (Id.) As a result of his inmate grievance, on March 19,

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2015, defendant Chen gave plaintiff a temporary lower bed chrono. (Id. at 11.)

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As with defendants Lozovoy and Grewal, plaintiff has adequately stated a claim of
deliberate indifference under the Eighth Amendment against defendant Chen. Plaintiff’s first

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amended complaint suggests that defendant Chen was subjectively aware of plaintiff’s medical

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condition on March 10, 2015, when defendant Chen was told of plaintiff’s complaints and

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thereafter instructed plaintiff not to place unnecessary trauma on his joints. Moreover, despite

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being specifically asked to be placed in a lower bunk, defendant Chen allegedly responded that it

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was plaintiff’s burden to prevent his injury from worsening. Finally, plaintiff alleges that nine

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days after denying the request for a lower bunk, defendant Chen reversed his own decision in

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response to a disability inmate grievance. Taking these facts to be true, it is plausible defendant

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Chen was deliberately indifferent to plaintiff’s needs for at least that nine-day period.

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Accordingly, plaintiff will be permitted to proceed on his Eighth Amendment claim against

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defendant Chen.

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For the reasons set forth above,

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1. The March 13, 2017 findings and recommendations (Doc. No. 12) are adopted in part;

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2. This action now proceeds on plaintiff’s first amended complaint on plaintiff’s claims

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against defendants Lozovoy, Grewal, and Chen, for deliberate indifference to serious

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medical needs in violation of the Eighth Amendment;

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3. All other claims and defendants are dismissed from this action, with prejudice;

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4. The Clerk is directed to reflect the dismissal of defendants Buyard and Rodriguez
from this action on the court’s docket; and

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5. This case is referred back to the assigned magistrate judge for further proceedings.
IT IS SO ORDERED.
Dated:

June 30, 2017
UNITED STATES DISTRICT JUDGE

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