Monroe Jones v. Spaeth et al
Filing
24
ORDER signed by Chief Judge B. Lynn Winmill on 3/31/2010. IT IS HEREBY ORDERED that the portion of Defendants 13 Motion to Dismiss that was conditionally granted by the Order of May 12, 2009, is GRANTED in final. IT IS FURTHER HEREBY ORDERED: Pla intiffs in forma pauperis status is REVOKED; Plaintiffs case is DISMISSED without prejudice; Plaintiff shall have thirty (30) days in which to pay the filing fee; Plaintiff shall have sixty (60) days to reimburse the U.S. Marshal Service for the cost s of service, if any; If Plaintiff pays the filing fee and reimburses the U.S. Marshal Service for the costs of service, then the Court will re-open his case and vacatethe judgment. However, if he does not, the case will remain closed. CASE CLOSED. (Bradley, A)
<![CDATA[
IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA F R E S N O DIVISION
M O N R O E JONES, C a s e No. 1:07-CV-677-BLW Plaintiff, ORDER vs. M A R T A SPAETH, et al., D e f e n d a n ts .
T h e Court previously conditionally granted in part and denied in part D e fe n d a n ts ' Motion to Dismiss. (See Docket Nos. 13 & 20.)1 Because the Court c o n c lu d e d that Plaintiff had three strikes and could not proceed without prepayment o f the $350 filing fee, the Court required the parties to supplement the record with m e d ic a l records to show whether evidence exists to demonstrate that Plaintiff's c u rre n t case should be exempted from the three strikes bar because its allegations s h o w that he "is under imminent danger of serious physical injury" for failure to
Plaintiff states in his supplemental Opposition that he had no notice of Defendants' Motion to Dismiss. (Docket No. 13.) However, Plaintiff responded to the Motion in a timely manner (Docket No. 14), and the response was considered. ORDER 1
1
receive adequate medication for chronic neck and back pain. 28 U.S.C. § 1915(g). In McAlphin v. Toney, 281 F.3d 709, 711 (8th Cir. 2002), the United States C o u rt of Appeals for the Eighth Circuit determined that the "imminent danger" e x c e p tio n was met where the plaintiff alleged that the delay of extraction of d e c a y e d teeth had caused a mouth infection that was spreading. In Brown v. J o h n s o n , 387 F.3d 1344 (11th Cir. 2004), the exception was met where the prisoner a lle g e d that prison officials had withdrawn treatment for his HIV and hepatitis, and a s a result, the prisoner suffered from severe ongoing complications, he was more s u s c e p tib le to various illnesses, and his conditions could rapidly deteriorate. Similarly, the exception was met where the allegations were that prison doctors and o ffic ia ls wrongfully discontinued the prisoner's medication for attention deficit h y p e ra c tiv ity disorder (ADHD) and panic disorder. See Ciarpaglini v. Saini, 352 F .3 d 328 (7th Cir. 2003). Defendants have provided the following information as to Plaintiff's medical tre a tm e n t provided him since the filing of his Complaint. Plaintiff has complained o f back pain for the past 19 years. He is receiving Baclofen (20 mg tablets) for b a c k pain. When Plaintiff was temporarily out of prison for eight months from late 2 0 0 8 to mid-2009, he was also prescribed Baclofen for his back pain by a private p h y s i c ia n .
ORDER 2
In prison, Plaintiff has been provided with a lower bunk chrono, as well as a lim ite d job duties chrono that exempts him from doing heavy lifting or prolonged s ta n d in g or walking. While Plaintiff argues that the chronos are not permanent, as D e fe n d a n ts portray them, the record is clear that Plaintiff receives renewals of the c h ro n o s when needed. Plaintiff has not alleged that he has been required to climb up onto a top bunk, perform heavy labor, or stand or walk for a prolonged period of time . T he October 28, 2008 "Director's Level Appeal Decision" that Plaintiff s ub mitte d notes that Plaintiff did not receive his prescription pain medication in or a ro und May 2008 because he did not submit a CDC Form 7362 in the proper ma nne r. He was advised on the proper way to submit the forms to obtain his me d ic a tio n. (Plaintiff's Opposition, Exhibits, Docket No. 22.) Importantly, there is no evidence that Plaintiff has been deprived of his medication recently. Plaintiff argues that the health care provider fabricated the statement that P la intiff requested that his back pain medication be discontinued in 2007. However, e ve n if this statement is a fabrication, it is not relevant to whether Plaintiff currently is being provided medication. Plaintiff's other allegations that Defendants are fa b ric a ting evidence appear to be merely differences in the way Defendants' la w ye rs and Plaintiff have chosen to interpret the records. The Court sees nothing
ORDER 3
in the record that would support the extreme position taken by Plaintiff regarding D e fe nd a nts ' briefing and interpretation of the records. (For example, while aspirin ma y have been prescribed for heart problems, that medication is also commonly us e d for pain relief.) In conclusion, the Court finds nothing in the record that would indicate that P la intiff is not being treated for his chronic back and neck pain. As a result, he has no t made a showing that he "is under imminent danger of serious physical injury" s u c h that would exempt him from the three strikes requirement of prepaying the filin g fee. 28 U.S.C. § 1915(g). ORDER NOW THEREFORE IT IS HEREBY ORDERED that the portion of D e fe nd a nts ' Motion to Dismiss (Docket No. 13) that was conditionally granted by the Order of May 12, 2009, is GRANTED in final. IT IS FURTHER HEREBY ORDERED: A. B. C. D. P la intiff' s in forma pauperis status is REVOKED. P la intiff' s case is DISMISSED without prejudice. P la intiff shall have thirty (30) days in which to pay the filing fee. P la intiff shall have sixty (60) days to reimburse the U.S. Marshal S e rvic e for the costs of service, if any.
ORDER 4
E.
If Plaintiff pays the filing fee and reimburses the U.S. Marshal Service fo r the costs of service, then the Court will re-open his case and vacate the judgment. However, if he does not, the case will remain closed. DATED: March 31, 2010
Honorable B. Lynn Winmill Chief U. S. District Judge
ORDER 5
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
