Marpel v. Saukhla et al

Filing 36

ORDER signed by Judge Kimberly J. Mueller on 3/26/12 ORDERING that the FINDINGS AND RECOMMENDATIONS filed 1/18/12 35 are ADOPTED, except for the sentence beginning on Page 9, line 15 and the excerpt at 9:26-10-:13; Defendants' MOTION to Dismiss 24 is GRANTED with respect to defendant Bick and DENIED with respect to Defendant Saukhla; This Action shall be remanded to the Magistrate Judge for further proceedings; and The Clerk shall enter Judgemnt for defendant Bick.(Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH MARPEL,
Plaintiff,

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vs.

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No. CIV S-11-0387-KJM-KJN-P

SAUKHLA, et al.,

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Defendants.

ORDER
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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action

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seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate

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Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On January 18, 2012, the magistrate judge filed findings and recommendations,

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which were served on all parties and which contained notice to all parties that any objections to

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the findings and recommendations were to be filed within twenty-one days. Neither party has

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filed objections to the findings and recommendations.

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Although plaintiff’s copy of the findings and recommendations was returned as

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undeliverable, plaintiff was served at his address of record. It is plaintiff’s responsibility to

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apprise the court of any change in his address. See Local Rule 183(b). Service of documents at

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the address of record is sufficient to effect full service. Local Rule 182(f). A copy of this order
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will be served on plaintiff at his address of record; if this order is returned as undeliverable, this

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case may be dismissed for failure to prosecute. Local Rule 183(b).

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In light of the record before it, the court presumes that any findings of fact are

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correct. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s

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conclusions of law are reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d

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452, 454 (9th Cir. 1983).

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Having conducted this review, the court finds that plaintiff has adequately alleged

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an Eighth Amendment violation against Doctor Saukhla. Specifically, plaintiff alleges repeated

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requests for medical care related to pain in his back, neck and shoulders, beginning in late 2008;

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his pain continued until mid-2010. An attachment to a grievance accompanying the complaint

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describes the pain as “serious” and plaintiff’s condition as living in “constant agony” during the

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eighteen month period underlying this action. Plaintiff also alleges that Doctor Saukhla

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purposefully neglected plaintiff following an argument between the two in mid-2009,

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approximately a year before he obtained the medical attention he says ultimately addressed his

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pain. Unnecessarily prolonging significant pain is sufficient to show deliberate indifference to

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support an Eighth Amendment violation. See McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th

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Cir.1992), overruled in part on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d

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1133, 1136 (9th Cir.1997); see also Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006) (quoting

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Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Here, at this stage of the litigation, plaintiff

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adequately alleges an Eighth Amendment claim with respect to defendant Saukhla.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed January 18, 2012, are adopted, except

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for the sentence beginning on page 9, line 15 and the excerpt at 9:26-10:13;

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2. Defendants’ motion to dismiss (ECF No. 24) is granted with respect to

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defendant Bick and denied with respect to defendant Saukhla;

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/////
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3. This action shall be remanded to the magistrate judge for further proceedings;
and

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4. The Clerk of Court shall enter judgment for defendant Bick.
DATED: March 26, 2012.

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UNITED STATES DISTRICT JUDGE

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/marp0387.801

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