(PC) Green v. Nangalama, et al, No. 2:2013cv02390 - Document 9 (E.D. Cal. 2014)
Court Description: ORDER signed by Judge Lawrence K. Karlton on 7/8/2014 ORDERING that the court DECLINES to adopt the 7 findings and recommendations. This matter is REFERRED back to the assigned magistrate judge for further proceedings. (Zignago, K.)
Download PDF
<![CDATA[
(PC) Green v. Nangalama, et al Doc. 9 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LONZELL GREEN, 12 13 14 15 No. 2:13-cv-2390-LKK-CMK-P Plaintiff, v. ORDER ANDREW NANGALAMA, et al., Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. 18 § 1983. The matter was referred to a United States Magistrate Judge pursuant to Eastern District 19 of California local rules. 20 On April 17, 2014, the Magistrate Judge filed findings and recommendations herein which 21 were served on the parties and which contained notice that the parties may file objections within a 22 specified time. Objections to the findings and recommendations have been filed. 23 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304(f), this 24 court has conducted a de novo review of this case. The magistrate judge recommends that 25 plaintiff’s application to proceed in forma pauperis be denied pursuant to 28 U.S.C. § 1915(g) and 26 this case be dismissed without prejudice. For the reasons set forth herein, the court declines to 27 adopt the findings and recommendations. 28 Section 1915(g) of Title 28 of the United States Code provides: 1 Dockets.Justia.com 1 In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 2 3 4 5 28 U.S.C. §1915(g). Plaintiff does not dispute the finding that he has had three prior actions 6 dismissed under the statutory criteria. He does, however, object to the magistrate judge’s finding 7 that “it does not appear that plaintiff was under imminent danger of serious physical injury when 8 he filed the instant complaint.” Findings and Recommendations (ECF No. 7) at 2. The magistrate judge’s finding that plaintiff was not under imminent danger of serious 9 10 physical injury when he filed the complaint arises from the finding that plaintiff “is receiving 11 treatment for his condition” but “disagrees with the treatment he is receiving.” Findings and 12 Recommendations, filed April 17, 2014 (ECF No. 7) at 2. Plaintiff objects to the finding that he 13 is receiving treatment for his nerve pain. Plaintiff’s objection has merit. Plaintiff has attached to his complaint an administrative grievance and responses thereto 14 15 from 2011. While the responses at the first and second levels of review indicate that plaintiff was 16 receiving treatment when those were prepared, the Director’s Level decision shows that as of 17 October 2011, plaintiff was not receiving any pain medication and that medical appointments in 18 August and September 2011 “showed no active medical problems related to facial neurologic 19 symptoms” and that “referral to a neurologist was not medically indicated.” Complaint (ECF No. 20 1) at 12. Plaintiff was “encouraged to submit a CDC 7362, Request for Health Care Services 21 Form, to discuss any medical concerns” he might have. Id. The inference to be drawn from this 22 exhibit and the contentions in plaintiff’s objections is that plaintiff stopped receiving pain 23 medication for his facial nerve condition by the end of April 2011 and has not receiving any 24 treatment for his facial nerve condition since that time.1 The United States Court of Appeals for the Ninth Circuit has emphasized that “§ 1915(g) 25 26 concerns only a threshold procedural question – whether the filing fee must be paid upfront or 27 later.” Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). Section 1915(g) “‘is not a 28 1 It appears plaintiff may also be challenging defendants’ failure to provide surgical treatment for the nerve damage. 2 1 vehicle for determining the merits of a claim.’” Id. (quoting Ciarpaglini v. Saini, 352 F.3d 328, 2 331 (7th Cir. 2003)).2 The relevant § 1915(g) inquiry is not “overly detailed” and “the exception 3 applies if the complaint makes a plausible allegation that the prisoner faced ‘imminent danger of 4 serious physical injury’” at the time of filing. Id. Allegations of ongoing serious physical injury 5 that is either “‘imminent or occurring at the time the complaint is filed’” are sufficient to satisfy 6 the imminent danger exception to the § 1915(g) bar. Id. at 1056 (quoting Ciarpaglini, 352 F.3d at 7 330 (emphasis in original)). 8 9 Here, the allegations of plaintiff’s complaint suggest that he is claiming defendants are violating his rights under the Eighth Amendment by failing to provide treatment to repair the 10 nerve damage. It is unclear from the complaint itself whether plaintiff’s claim is grounded solely 11 in the alleged denial of treatment to repair the damage, or whether it is also based on the alleged 12 denial of pain medication, and the magistrate judge did not have the benefit of the clarity 13 provided by plaintiff’s objections at the time he made the findings and recommendations before 14 the court. Plaintiff’s objections make clear his Eighth Amendment claim is grounded in the 15 alleged absence of all treatment, including pain medication, for the alleged ongoing pain and 16 other effects of his facial nerve damage. This claim satisfies the requirements of the exception to 17 the §1915(g) bar. 18 In accordance with the above, IT IS HEREBY ORDERED that: 19 1. The court declines to adopt the findings and recommendations filed April 17, 20 2014; and 21 2. This matter is referred back to the assigned magistrate judge for further 22 proceedings. 23 DATED: July 8, 2014. 24 25 2 26 27 28 Here, the magistrate judge also found in a footnote that “[i]t further appears plaintiff’s complaint does not state a claim for violation of his Eighth Amendment rights as he is receiving treatment for his condition, and a disagreement as to the proper treatment is insufficient to state a claim under 28 U.S.C. § 1983 [sic].” Findings and Recommendations (ECF No. 7) at 2. This finding, which does not form the basis for the recommended dismissal of this action, is also based on the finding to which plaintiff objects, namely, that he is receiving treatment for the nerve damage and its alleged consequences. 3
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
