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APPEAL from the Circuit Court of Cook County; the Hon. JAMES
J. MEJDA, Judge, presiding.
Two alternate counts of murder. Ill. Rev. Stat. 1967, ch. 38, par. 9-1(a) (1) and (2). *fn1
Defendant was found guilty of murder by a jury and was sentenced to a term of 16 to 30 years.
Contentions Raised on Appeal
1. The evidence presented at trial was insufficient to established defendant's guilt beyond a reasonable doubt.
2. Defendant was denied a fair trial due to the ineffective assistance of court-appointed counsel.
3. The prosecutor's cross-examination of a defense witness was so prejudicial as to deprive defendant of a fair trial.
Mamie Perkins, for the State:
She is defendant's mother. She shared a third-floor apartment at 4513 S. Indiana with Anthony Guy, a witness for the defense. Living in the other apartments on the third floor of the same apartment building were defendant and Bessie Porter, the deceased.
As far as she could remember, the only other people with her on the third floor of the building at about 8:00 P.M. on March 5, 1968, were Anthony Guy, the decedent, and defendant. She was in her apartment with defendant and Anthony Guy when Bessie Porter came and stood by the door of the apartment. The witness did not speak to her, nor did she overhear any of the conversation between defendant and decedent, but she did notice that the decedent was drunk. Defendant left the apartment, but she could not recall whether or not Anthony Guy also left the apartment. When she later saw defendant in the hall together with decedent, she did not see whether defendant had a weapon in her hand. The witness did not hear the shot, but Anthony Guy told her that Bessie had been shot. She went to the deceased's apartment and saw her lying on the couch. She did not see defendant at that time. She went downstairs, notified the police officers in a nearby squad car that her daughter had killed the decedent, and directed them to the decedent's apartment. She then went to the door of a building across the street, but returned home when she could not locate her daughter.
George Greenlee, for the State:
He has been a police patrolman for approximately seven and one-half years. At about 7:15 P.M. on March 5, 1968, he and his partner, Patrolman Nealis, went to 4534 S. Indiana in response to a call regarding lost property. Upon arriving at that address, they spoke to Mrs. Emma Simms and to defendant, Mrs. Simms' daughter-in-law, about a missing derringer pistol. Mrs. Simms believed that her pistol had been taken by Bessie Porter's son. Defendant took both officers across the street to 4513 S. Indiana to point out Bessie's apartment. Defendant was present when Bessie denied that her son had taken the gun. As all four were recrossing the street to the Simms' apartment to settle the matter, Bessie saw defendant's six-year-old son playing in the street and admonished defendant for drinking instead of looking after her son. Defendant became angry, and the officers had to quiet her down. Upon returning to the Simms' apartment, there were more accusations by Mrs. Simms and denials by Bessie Porter. However, the officers saw no reason to arrest anyone at that time and ended the investigation. As they left at about 7:40 P.M., defendant was with Mrs. Simms, and Bessie was returning home.
At about 8:10 P.M., the two officers returned to that area after hearing a radio call that a woman had been shot at 4513 S. Indiana. They arrived at the scene, were directed by other officers to the third floor, and observed the deceased lying on a cot in her apartment. The officers identified the deceased as Bessie Porter, whom they had seen earlier in the evening. Also present in the room were Anthony Guy, Mamie Perkins, and another officer.
The officers crossed the street to the Simms' apartment, found the defendant in the third-floor hallway, and placed her under arrest. At the time she was arrested, defendant did not have a gun in her possession.
Paul Nealis, for the State:
He has been a patrolman for about ten months. His testimony as to the events in question was similar to that of his partner, Officer Greenlee. However, he further testified that he searched the Simms' apartment after defendant was arrested, and found a derringer pistol hidden in Mrs. Simms' bed and a 32-caliber seven-shot revolver in a brown bag in the freezer compartment of Mrs. Simms' refrigerator where she told him it was hidden. He examined the revolver and found that it contained one spent cartridge and one live cartridge. He later submitted the revolver to the Police Crime Laboratory for a ballistics examination. The revolver and both cartridges were introduced into evidence.
Leroy O'Sheild, for the State:
He has been a policeman for about ten months. On March 5, 1968, at about 7:50 P.M., he and his partner were in the vicinity of 4500 S. Indiana. He first observed Mamie Perkins as she crossed from the east side of Indiana (where her apartment is located) to the west side. He later saw her as she approached the squad car and spoke to him. He followed her to Bessie Porter's apartment and saw the decedent, wearing striped pajamas, lying face down on the couch. The pajamas were later admitted into evidence.
Joseph Celovsky, for the State:
He has been a firearms examiner for the Police Crime Laboratory for six years. He testified as to the results of the ballistics examinations he performed on the bullet extracted from the body of the deceased and on the 32-caliber revolver. It was his expert opinion that the bullet taken from the decedent's body was fired from the 32-caliber revolver found in the Simms' apartment by Officer Nealis. He testified that the bullet taken from the body was deformed, and stated that the deformity could have been caused if the bullet had struck some object during its flight.
Joseph Price, for the State:
He has been a microanalyst with the Scientific Crime Detection Laboratory for ten years. He testified to the results of the analytic test which he made on the pajamas taken from the body of the deceased. He found a hole in the lower right section of the back panel of the pajama top. The test showed that the stains surrounding the hole were blood. He identified another dark mark on the fabric as having been made by a soft bullet and the type of grease usually used as a lubricant for bullets. In response to a hypothetical question, he estimated that a bullet would have to be fired from a relatively close distance of not more than three feet in order for powder burns to be evident on a victim's clothing. He found no trace of powder particles on the pajamas.
William Sturner, for the State:
He has been the pathologist to the Coroner of Cook County for almost two years and he performed the autopsy on the body of the deceased. He testified that the deceased was 5'4" in height and weighed 135 pounds. The significant traumatic findings of the autopsy were limited to the right, lower back region where a bullet entry wound was found. The wound, which had a diameter of five-eighths of an inch, was circular in shape, and was surrounded by a small area of serrated skin. He found no evidence of a muzzle imprint or of powder burns. He discovered no exit wound during the external examination of the body, but, upon internal examination, located the bullet about three-fourths of an inch within the upper left part of the chest. He testified that the trajectory of the bullet was from downward to upward, from back to front, and moderately from right to left. He estimated that the path of the bullet was at about a 50° or 60° angle. Since the bullet did not hit any bones, its path was straight.
Sturner also testified that the rate of alcoholic content in the deceased's bloodstream at the time of her death was 401 milligrams per cent ethenol. In response to a hypothetical question concerning the level of alcohol, he stated that it was likely that the deceased was under the influence of alcohol at the time of her death.
Leroy Ranachowski, for the Defense:
He is an investigator for the Cook County Public Defender's Office. About three months after the evening in question, he took photographs of the hallway and the bathroom on the third floor of the building located at 4513 S. Indiana. Many of the pictures showed that a small chip of wood was missing about three feet off the ground on the right side of the bathroom door.
Anthony Guy, for the Defense:
He lived with Mamie Perkins in the third-floor rear apartment at 4513 S. Indiana. He looked at the pictures taken by Leroy Ranachowski and identified a 3/4 inch chip in the wall as having been noticed by him for the first time on the day after the shooting. It was about three feet above the floor.
On the evening in question, he was with Mamie Perkins in their apartment. Defendant, who was there with them, left the apartment shortly before a gunshot was heard. After he heard the shot he didn't know how long the deceased walked into his apartment and stated that she had been shot. He did not see defendant after he heard the shot.
Joann Calhoun, Defendant, in her own behalf:
She stated that on March 5, 1968, she was in possession of the 32-caliber revolver then in evidence. The gun belonged to John Simms, her common-law husband, but he had given it to his mother, Emma Simms, for her protection because her derringer pistol was missing. Because the derringer was found, defendant was bringing the revolver back to her apartment when she stopped in at her mother's apartment to watch television. She had to pass Bessie Porter who was standing in the doorway to Mamie's apartment. Defendant and Bessie had a conversation regarding Mrs. Simms' missing derringer and the recent episode with the police. The conversation continued after defendant sat down, holding the gun in her right hand. When defendant got up to leave, she and Bessie both stepped out into the hallway near the bathroom between the apartments. As they were facing each other, they resumed their conversation.
Defendant identified the coat she had worn that evening, and stated that as she walked past Bessie, the coat was thrown over her left shoulder, and the gun was still in her right hand. Bessie threw the coat in defendant's face, and as defendant stumbled backward, the gun went off. After the shot, Bessie walked past defendant to the doorway of Mamie Perkins' apartment and then re-passed defendant to go to her own apartment and lie down on the couch. Defendant's mother came out of her apartment and accused defendant of shooting Bessie Porter. Defendant went out of the apartment building and crossed the street to the Simms' apartment with the gun still in her hand. Defendant told Mrs. Simms that she thought she had shot Bessie. Mrs. Simms took the gun, and defendant went down the hall where she was then arrested by the police.
She had never handled a gun before that night and she had not intended to kill Bessie Porter. She knew that there were two bullets in the gun because her husband had opened the gun and shown them to her. He had also warned her to carry the gun and not to put it in her pocket.
• 1 Defendant's first contention on appeal is that she was not proved guilty beyond a reasonable doubt, bearing in mind that the State had the burden of proving an appropriate mental state to establish defendant's criminal agency in causing the death of Bessie Porter. People v. DeMario, 112 Ill. App.2d 175, 251 N.E.2d 267; cert. denied, 397 U.S. 1057.
• 2, 3 The State's case included proof that there had been a verbal altercation between defendant and decedent shortly before the shooting, that the bullet found in the body of the decedent had been fired from the revolver which had been in defendant's possession, and that defendant had admitted to her mother-in-law that she thought she had shot Bessie. Proof of the existence of the death was unquestioned, but, in our opinion, proof of defendant's criminal agency in causing the death was deficient. Murder was committed if defendant either intended to kill or knew that her actions created a strong probability of death. (Ill. Rev. Stat. 1967, ch. 38, par. 9-1.) Although proof of specific intent to kill is not essential, the least that must be proved is that defendant voluntarily and wilfully committed an act, the natural result of which would be the death of another. (People v. Latimer, 35 Ill.2d 178, 220 N.E.2d 314; People v. Aarhus, 111 Ill. App.2d 167, 248 N.E.2d 820.) The State's evidence proved only that defendant shot decedent, not that defendant killed the decedent with the requisite mental state. Defendant's explanation that the gun accidentally went off when she stumbled backward after the decedent had thrown a coat in her face would, if credible, completely negate the evidence of intent or wilful conduct which the State sought to present.
• 4 Since there were no eyewitnesses to the shooting other than defendant, the State's case was entirely circumstantial. It is well settled that where the proof is entirely circumstantial, if there is any reasonable hypothesis arising from the evidence consistent with the innocence of defendant, it must be adopted, as it is essential to a conviction on circumstantial evidence that the facts proved be not only consistent with guilt but that they be inconsistent with any reasonable hypothesis of innocence. People v. Wilson, 400 Ill. 461, 81 N.E.2d 211.
The jury apparently disbelieved defendant's theory, argued at trial, that the decedent was killed by a ricocheting bullet, although scientific evidence showed the bullet to have been deformed in a way which could not have occurred merely by entering the victim's body. Nevertheless, there is another hypothesis based on the facts in evidence which is so strongly consistent with defendant's innocence as to leave us with reasonable doubt of her guilt.
Those facts and resulting conclusions are: (1) Decedent was 5'4" tall, and since she was standing when the bullet entered her body in the lower back, the point of entry must have been approximately three feet off the ground; (2) since there was no evidence of powder burns on the decedent's body or clothing, the scientific evidence established that the shot must have been fired from a distance of at least three feet; (3) the medical evidence established that the bullet had entered decedent's back at an upward angle of approximately 60°; and (4) the triangulation of the upward and forward trajectory of the bullet to a point on decedent's body three feet off the ground, the 60° angle of the bullet entry, and the three-foot (or greater) distance from the decedent's body leaves no other explanation possible but that the gun in defendant's hand must have been on or very near the floor when it went off.
These facts support defendant's testimony that the gun went off as she stumbled back. Since it is more than likely that decedent turned and ran after she threw the coat in defendant's face, a bullet entry wound in decedent's back was the logical and necessary conclusion to be reached from all the evidence. The State, however, hypothesizes that defendant pointed the gun at decedent and shot her in the back as she ran away. If this had been done from as close as two feet, with both parties standing, the bullet would have passed over decedent's head by more than a foot. Because of the undisputed facts recited in the paragraph next above, this theory is without support in the evidence on account of the angle of the bullet's entry, unless the unlikely proposition be assumed that decedent was doubled over in a completely horizontal position while running away from defendant. Aside from defendant's own testimony, the only evidence as to this particular period of time is that of Anthony Guy who testified that after the shot, decedent walked into his apartment and told him she had been shot.
• 5, 6 Since there is a reasonable hypothesis arizing from the facts which is consistent with the innocence of defendant, it must be adopted. (People v. Wilson, 400 Ill. 461; 81 N.E.2d 211.) That the State's theory may seem to a court more probable than another which could also be supported by the same facts is not a proper basis for decision, because the probabilities one way or the other have nothing to do with the conclusion as the evidence must be so strong as to establish all the necessary elements of defendant's guilt beyond a reasonable doubt. We are not satisfied that the State met its burden to that extent.
In view of this conclusion, we need not discuss the other points raised.
The judgment and sentence are reversed.
LORENZ, P.J., and DRUCKER, J., concur.
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September 10, 2012
RICHARD ERNEST ANAYA,PLAINTIFF,v.HERRINGTON, ET AL., DEFENDANTS.
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS ECF No. 77 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS
Findings and Recommendations
Plaintiff Richard Ernest Anaya ("Plaintiff') is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On April 30, 2012, Plaintiff filed his Fifth Amended Complaint. ECF No. 77. The complaint is before the Court for screening.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 2 claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). 3
A complaint must contain "a short and plain statement of the claim showing that the pleader 4 is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 5 "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 6 do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 7 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a 8 claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual 9 allegations are accepted as true, legal conclusions are not. Id.
II. Summary of Fifth Amended Complaint
Plaintiff was incarcerated at Kern Valley State Prison ("KVSP") in Delano, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: chief medical officer S. Lopez, medical doctor Chen, medical doctor Dileo, J. White and R. Keldgore, and warden Herrington. Plaintiff alleges that Defendants 1) denied Plaintiff grab bars for his cell toilet, 2) denied Plaintiff single cell accommodation, resulting in Plaintiff contracting Hepatitis B, 3) delayed surgery for Plaintiff's right knee, 4) failed to provide follow-up care for Plaintiff's lower back, and 5) took away Plaintiff's adequate pain medication. Plaintiff's specific allegations against each Defendant are as follows.
A.Defendant S. Lopez
On July 13, 2009, Defendant S. Lopez denied Plaintiff a medical chrono for single cell, causing Plaintiff to contract Hepatitis B by using an unsanitary toilet in his cell. Fifth Am. Compl. 2:23-27. Defendant Lopez was aware of the risk of Plaintiff contracting Hepatitis B because Plaintiff bleeds when he has a rectal prolapse. Id. at 2:27-3:1. Plaintiff also has irritable bowel syndrome and has "wanton" pain when he prolapses. Id. at 3:1-3. Plaintiff's lower back goes in and out and he has to lie down on his bunk until the pain passes. Id. at 3:3-4. Plaintiff also has incontinence problems where he defecates on himself, requiring that he clean the bathroom area of the cell while in pain because he has a cell mate. Id. at 3:5-7. Plaintiff is deprived of frequent access to the toilet because he has a cell mate. Id. at 3:7-11.
Plaintiff had received a previous chrono in which he received single cell status because of his 2 medical condition (rectal prolapses) and susceptibility to contract Hepatitis, herpes, and HIV. Id. at 3 3:11-15. Because Defendant Lopez did not comply with the chrono, Plaintiff contracted Hepatitis.
Id. at 3:16-17. 5
On March 20, 2006, Dr. Vidovszky, a UC Davis gastrointestinal professor and medical 6 surgeon, declared that Plaintiff is permanently disabled, and recommended that Plaintiff be single 7 celled. Id. at 3:22-26. On July 11, 2006, Dr. Tan, a surgeon at the doctors' hospital of Manteca 8 agreed, and found that Plaintiff is permanently disabled and should be single-celled. Id. at 4:1-5. 9
Defendant S. Lopez is responsible for all medical care that Plaintiff receives and needs. Id. at 4:6-8.
Plaintiff contends that he should receive morphine sulfide for his pain. Id. at 4:8-9. Plaintiff is in pain from his right knee, lower back, and rectal prolapse. Id. at 4:11-14.
Defendant S. Lopez disregards Plaintiff's lower back care. Id. at 4:16-17. Plaintiff has flattened vertebrae and bulging discs in his back. Id. at 4:17-22. Plaintiff was not provided follow-up care, namely to see a back specialist as recommended by doctors at High Desert State Prison ("HDSP"), Plaintiff's former prison of incarceration, to determine whether he needed surgery, which left Plaintiff in pain for the past three years. Id. at 4:22-27.
On April 8, 2008, Reno orthro surgery center specialty clinic signed Plaintiff for urgent knee surgery, ordered by Dr. Uppal, a surgeon.*fn1 Id. at 5:1-3. The surgery was going to be knee reconstruction. Id. at 5:3-6. On July 18, 2011, Dr. Penal of UC Davis, a knee surgeon, informed Plaintiff that he now needs a knee replacement rather than reconstruction. Id. at 5:7-10.
Plaintiff has been at KVSP since January 27, 2009, and for the past three years, the urgent surgery was not done, leaving Plaintiff in pain. Id. at 5:10-13. Despite using crutches, Plaintiff's knee is very loose and one slight movement could pull the knee out of the socket, which is very painful. Id. at 5:13-16. Plaintiff has use of a brace, but that causes pain because it is bent. Id. at 5:17-18. Plaintiff's wheelchair was given back because it caused Plaintiff's lower back to go into pain. Id. at 5:18-20. Knee surgery was needed, and Defendant Lopez did not provide it, causing Plaintiff long-term pain and suffering. Id. at 5:21-23. 2
On December 18, 2006, urologist and surgeon Chamie, at UC Davis, reported that an ADA 3 grab bar near the toilet would remove pressure off of Plaintiff's abdomen and less likely to 4 exacerbate the prolapse from abdominal strain. Id. at 6:1-6. Medical doctors at HDSP qualified 5 Plaintiff for ADA grab bar accommodations around the toilet. Id. at 6:6-10. For the past three years 6 at KVSP, Plaintiff was not given ADA accommodations leaving him pain and long term suffering. 7
Id. at 6:11-24. 8
B.Defendant Chen
On February 9, 2009, Defendant Chen denied Plaintiff's chrono for a single cell, causing him to contract Hepatitis B from use of an unsanitary toilet. Id. at 7:2-6. Plaintiff repeats his claims against Defendant S. Lopez against Defendant Chen. Id. at 7:1-10:17.
C.Defendant Dileo
On February 20, 2010, Defendant Dileo abruptly had Plaintiff taken off of his morphine sulfate medication, medication that Plaintiff had been taking for the past two and a half years for pain management. Id. at 10:20-22. Removing Plaintiff from morphine sulfate abruptly caused him pain and suffering. Id. at 10:24-28. Upon later examining Plaintiff and his medical records, Defendant Dileo discovered that Plaintiff had been taking morphine sulfate for a long period of time and should have detoxed the Plaintiff rather than abruptly removing him from the pain medication. Id. at 11:1-5. Plaintiff also complains that Defendant Dileo failed to provide knee surgery for Plaintiff. Id. 12:9-14.
D.Defendants White and Keldgore
On April 6, 2009, Defendants White and Keldgore were aware that Plaintiff had a chrono for single cell status from a previous institution, applicable to all future institutions, and refused to honor it. Id. at 12:17-21. Both Defendants White and Keldgore knew that Plaintiff was subject to contracting a disease because Plaintiff bleeds when he has a prolapse. Plaintiff repeats his claims regarding incontinence issues, cleaning up the toilet, and sharing a bathroom with a cell mate. Id. at 12:17-13:28.
E.Defendant Herrington
On July 13, 2009, Defendant Herrington denied Plaintiff's appeal, KVSP-09-0040, and KVSP-34-10-10782. Id. at 14:1-10. Defendant had complete authority over each Defendant, but 4 failed to correct their wrongdoing. Id. 5
Plaintiff alleges a violation of the Eighth Amendment, Title II of the Americans with Disabilities Act ("ADA"), the Due Process Clause of the Fourteenth Amendment, and state law 7 claim of medical malpractice. Defendants are all sued in their individual and official capacity. 8
Plaintiff requests monetary damages and declaratory and injunctive relief.*fn2
III. Analysis
A.Eighth Amendment
The Eighth Amendment prohibits cruel and unusual punishment. "The Constitution does not mandate comfortable prisons." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation and citation omitted). A prisoner's claim of inadequate medical care does not rise to the level of an Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the 'minimal civilized measure of life's necessities,'" and (2) "the prison official 'acted with deliberate indifference in doing so.'" Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The deliberate indifference standard involves an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious . . . ." Farmer, 511 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must "know[] of and disregard[] an excessive risk to inmate health or safety . . . ." Id. at 837.
"Deliberate indifference is a high legal standard." Toguchi, 391 F.3d at 1060. "Under this standard, the prison official must not only 'be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists,' but that person 'must also draw the inference.'" Id. at 1057 (quoting Farmer, 511 U.S. at 837). "'If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk.'" Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). 2
1.Defendant Lopez
Plaintiff fails to state an Eighth Amendment claim against Defendant Lopez regarding Plaintiff's denial of his medical chrono for single cell status. Plaintiff contends that Defendant 5 Lopez's failure to provide him with a single cell resulted in Plaintiff contracting Hepatitis B. 6
Contracting Hepatitis B is a serious medical need. However, Plaintiff fails to allege sufficient facts 7 to indicate that Defendant Lopez knew that Plaintiff had an excessive risk of contracting Hepatitis B 8 merely because he had a cell mate. There are no allegations which demonstrate that Defendant 9 Lopez was aware that Plaintiff was at a substantial risk of serious harm to his health by being double celled.
Plaintiff states an Eighth Amendment claim regarding treatment of his lower back. Plaintiff has sufficiently alleged a serious medical need regarding his lower back causing him pain. Plaintiff also alleged that Defendant Lopez is not providing follow-up care regarding evaluation by a specialist.
Plaintiff states an Eighth Amendment claim regarding his pain medication. Plaintiff alleges that he is in chronic pain, which is sufficient to satisfy the objective prong of an Eighth Amendment medical care claim. Plaintiff also alleges that Defendant Lopez is denying him adequate pain medication.
Plaintiff sufficiently alleges an Eighth Amendment claim regarding treatment for his right knee. Plaintiff sufficiently alleges that pain in his right knee is a serious medical need. Plaintiff alleges that Defendant Lopez acted with deliberate indifference by denying knee surgery that was necessary for relieving Plaintiff's pain.
Plaintiff states an Eighth Amendment claim regarding being denied grab bars around his toilet. Plaintiff alleges that his use of the toilet without grab bars causes him pain, and that Defendants are depriving Plaintiff of grab bar use.
2.Defendant Chen
Plaintiff fails to state an Eighth Amendment claim against Defendant Chen regarding Plaintiff's denial of his medical chrono for single cell status. Plaintiff fails to allege sufficient facts to indicate that Defendant Chen knew that Plaintiff had an excessive risk of contracting Hepatitis B 2 merely because he had a cell mate. There are no allegations which demonstrate that Defendant Chen 3 was aware that Plaintiff was at a substantial risk of serious harm to his health merely by being 4 double celled. 5
Plaintiff states an Eighth Amendment claim against Defendant Chen regarding treatment for 6 his lower back. Like his allegations against Defendant Lopez, Plaintiff alleges that Defendant Chen 7 denied Plaintiff access to a specialist to examine Plaintiff's lower back. 8
Plaintiff states an Eighth Amendment claim against Defendant Chen regarding pain 9 medication. Plaintiff alleges that Defendant Chen denied Plaintiff adequate pain medication.
Plaintiff states an Eighth Amendment claim against Defendant Chen regarding knee surgery. Plaintiff alleges that Defendant Chen denied Plaintiff needed knee surgery.
3.Defendant Dileo
Plaintiff fails to state an Eighth Amendment claim against Defendant Dileo regarding morphine medication. Plaintiff alleges that Defendant Dileo removed Plaintiff from his morphine medication abruptly without weaning him off. The Court will assume that taking a person off morphine without first weaning the person off the medication is a serious medical need. Defendant Dileo allegedly did not consult Plaintiff's medical records to learn that Plaintiff had been taking morphine for his pain for several years. Thus, there are no facts which indicate that Defendant Dileo knew of Plaintiff's serious medical need regarding his morphine medication. Plaintiff alleges at most medical malpractice, which fails to state a claim. Estelle v. Gamble, 329 U.S. 97, 106 (1976) ("[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.").
Plaintiff states an Eighth Amendment claim against Defendant Dileo regarding knee surgery. Plaintiff alleges that Defendant Dileo denied Plaintiff needed knee surgery.
4.Defendants White and Keldgore
Plaintiff fails to state an Eighth Amendment claim regarding his single cell status. Plaintiff 4 fails to allege sufficient facts to indicate that Defendants White and Keldgore knew that Plaintiff had 5 an excessive risk of contracting Hepatitis B merely because he had a cell mate. There are no 6 allegations which demonstrate that Defendants White and Keldgore was aware that Plaintiff was at a 7 substantial risk of serious harm to his health merely by being double celled. 8
5.Defendant Herrington
Plaintiff alleges that Defendant Herrington denied Plaintiff's inmate grievances, KVSP-09-00240 and KVSP KVSP-34-10-10782. An examination of the grievances submitted as exhibits indicates that Defendant Herrington did not review or respond to the grievances.*fn3 See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295--96 (9th Cir. 1998) ("[W]e are not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint."). Thus, Plaintiff fails to state a claim against Defendant Herrington.
Plaintiff appears to be alleging liability against Defendant Herrington because of his supervisory role. Plaintiff has not linked Defendant Herrington to any act or omission that demonstrates a violation of his constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Plaintiff alleges at most respondeat superior liability against Defendant Herrington, which fails to state a § 1983 claim. The term "supervisory liability," loosely and commonly used by both courts and litigants alike, is a misnomer. Iqbal, 556 U.S. at 677. "Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Id. at 676. Rather, each government official, regardless of his or her title, is only liable for his or her own misconduct. Id.
When the named defendant holds a supervisorial position, the causal link between the defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). To state a 2 claim for relief under § 1983 for supervisory liability, plaintiff must allege some facts indicating that 3 the defendant either: personally participated in the alleged deprivation of constitutional rights or 4 knew of the violations and failed to act to prevent them. Taylor v. List, 880 F.2d 1040, 1045 (9th 5 Cir. 1989). Plaintiff alleges no facts that indicate Defendant Herrington personally participated in an 6 alleged constitutional deprivation or knew of the violations and failed to act to prevent them. 7
Plaintiff fails to state an Eighth Amendment claim against Defendant Herrington.*fn4
B.Americans With Disabilities Act Claim
Plaintiff contends that Defendants Lopez and Chen denied him a cell with grab bars in violation of Title II of the Americans with Disabilities Act. Title II of the Americans with Disabilities Act ("ADA") prohibits discrimination on the basis of disability. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subject to discrimination by such entity." 42 U.S.C. § 12132. Title II of the ADA applies to inmates within state prisons. Pa. Dep't. of Corr. v. Yeskey, 524 U.S. 206, 210 (1998).
To state a claim under Title II of the ADA, the plaintiff must allege:
(1) he is an individual with a disability; (2) he is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities; (3) he was either excluded from participation in or denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by reason of [his] disability.
Simmons v. Navajo County, 609 F.3d 1011, 1021 (9th Cir. 2010) (citing McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004)). "The term 'qualified individual with a disability' means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 42 U.S.C. § 12131(2). The Court assumes without deciding that Plaintiff is a qualified individual with a disability. 2
Based on the allegations presented, Plaintiff's ADA claim for injunctive relief is now moot.
The alleged violations occurred at KVSP. However, Plaintiff is now incarcerated at CSP. As stated 4 previously, transfer to another prison generally renders a request for injunctive relief moot. Preiser, 5 422 U.S. at 402-03; Andrews, 493 F.3d at 1053 n.5. 6
Plaintiff cannot recover monetary damages against a state entity, such as the CDCR, or 7 against Defendants in their official capacity as state officials, unless there is also a corresponding 8 violation of the United States Constitution. See United States v. Georgia, 546 U.S. 151, 158-59 9 (2006) (holding Title II of the ADA can create private cause of action against states for conduct that is also constitutional violation, and is valid abrogation of state's sovereign immunity). The Court finds that Plaintiff states an Eighth Amendment claim regarding denial of grab bars for his cell's toilet. Thus, Plaintiff states an ADA claim against Defendants Chen and Lopez.
C.Medical Malpractice
Plaintiff alleges medical malpractice, a state law claim. Pursuant to 28 U.S.C. § 1367(a), except as provided in subsections (b) and (c), in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claim in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.
Plaintiff states Eighth Amendment claims against Defendants Chen, Lopez, and Dileo. The Court will thus exercise supplemental jurisdiction over the medical malpractice claims against them.
IV. Conclusion and Recommendation
Plaintiff states an Eighth Amendment claim against Defendants Chen and Lopez for denial of pain medication, denial of treatment for his lower back, and denial of grab bars for his toilet. Plaintiff states an Eighth Amendment claim against Defendants Chen, Lopez, and Dileo for denial of knee surgery. The Court will exercise supplemental jurisdiction over Plaintiff's medical malpractice claims.
Based on the foregoing, it is HEREBY RECOMMENDED that:
1. This action proceed against Defendants Chen and Lopez for denial of pain medication, denial 3 of treatment for his lower back, and denial of grab bars for his toilet in violation of the Eighth 4 Amendment, an Eighth Amendment claim against Defendants Chen, Lopez, and Dileo for denial of 5 knee surgery, ADA claim against Defendants Chen and Lopez, and state law claim for medical 6 malpractice; 7
2. Plaintiff's claims against Defendants Keldgore, White, and Harrington be dismissed with 8 prejudiced for failure to state a claim; and 9
3. Defendants Keldgore, White, and Herrington be dismissed from this action.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these Findings and Recommendations, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." A party may respond to another party's objections by filing a response within fourteen (14) days after being served with a copy of that party's objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).
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KindnessDouble click on any word to get a popup explanation of the word and sample sentences Dictionary | Wikipedia | Synonyms | Quotation | News
Kindness Meaning and Definition in Dictionary
Definitions from Wordnet 2.0
- a kind act
- tendency to be kind and forgiving
- the quality of being warm-hearted and considerate and humane and sympathetic
Definitions from Wiktionary
- the quality of being warmhearted and considerate and humane and sympathetic ,
- tendency to be kind and forgiving ,
- a kind act
Would you like to add your own explaination to this word 'Kindness'?
Wikipedia Meaning and Definition on 'Kindness'
- Kindness: Kindness is a behavior marked by ethical characteristics, a pleasant disposition, and concern for others. It is known as a virtue, and recognized as a
- Wall of kindness: Wall of kindness (Persian: دیوار مهربانی dīvār-e mehrabānī; Urdu: دیوار مہربانی) is a charity work phenomenon and a kind of welfare, usually done by
- Tom Kindness: Thomas Norman Kindness (August 26, 1929 – January 8, 2004) was a member of the United States House of Representatives representing Ohio from January 3
- Random act of kindness: of kindness is a nonpremeditated, inconsistent action designed to offer kindness towards the outside world. The phrase "practice random kindness and
- Loving-kindness: Loving-kindness is a specific kind of love conceptualized in various religious traditions, both among theologians and religious practitioners, as a form
- Kill Them with Kindness: Them with Kindness refers to: "Kill 'Em with Kindness" (Eddy Grant song) Kill Them with Kindness (The Jealous Sound album) Kill Them with Kindness (Headlights
- Kindness (musician): Kindness is the solo project of English singer Adam Bainbridge. His debut album, World, You Need a Change of Mind, co-produced by Philippe Zdar was released
- Singapore Kindness Movement: The Singapore Kindness Movement is a non-profit organization that executes public education programs aimed at cultivating kindness and graciousness in
- The Kindness of Strangers: The Kindness of Strangers may refer to: I have always depended on the kindness of strangers, a line from Tennessee Williams' A Streetcar Named Desire (1947)
- Hand of Kindness: Hand of Kindness is the second solo studio album by Richard Thompson. It was recorded and released in 1983, his first solo album since 1972's Henry the
Words and phrases related to 'Kindness'
'Kindness' example sentence in quotations
* You cannot do a kindness too soon, for you never know how soon it will be too late. - Ralph Waldo Emerson
* Recompense injury with justice, and recompense kindness with kindness. - Confucius
* I have learnt silence from the talkative, toleration from the intolerant, and kindness from the unkind yet strange, I am ungrateful to these teachers. - Kahlil Gibran
Click here for more related quotations on 'Kindness'
* Recompense injury with justice, and recompense kindness with kindness. - Confucius
* I have learnt silence from the talkative, toleration from the intolerant, and kindness from the unkind yet strange, I am ungrateful to these teachers. - Kahlil Gibran
Click here for more related quotations on 'Kindness'


text:
DeLonghi Portable Compact Ceramic Heater DCH1030 Reviews
- Other Space Heaters:
- Average: 4.2
- High: 5.0
- Type:
- Portable Heaters
- Brand:
- DeLonghi
- Model:
Read 1 Review
REVIEW SNAPSHOT®by PowerReviews
Reviewed by 1 customer
Comments about DeLonghi Portable Compact Ceramic Heater:
Purchased this space heater because I was looking for something small and inexpensive to use while on my couch watching TV or reading. This is a small heater so I wasn't expecting too much but overall I feel this heater is mostly ineffective. When I am on the couch I literally have to put the heater on the coffee table right in front of me to feel anything. If its on the floor and not right up near me then I feel nothing. Even when I have it raised up and right in front of me it really only heats my hands or whatever part of myself I hold in front of the heater. It really does nothing to heat the surrounding air. Like I said I wasn't expecting much I knew it wouldn't heat up the whole room but I was definitely expecting more than what I from it. And what I do get it pretty useless. I cant comment on the safety as I really haven't used it enough to experience any problems. The only problem I experienced is that there are two knobs on top one for the degree of heat and the other is numbered for the fan level. Thus second knob turns the heater off as well. There ks a light in the center that indicates if the heater is on. I left the heater on for my animals and my boyfriend turned it off after I went to bed and unknowingly only turned the heat down all the way. The heater got quiet and he didn't realize the light was on so he believed the heater was off. The next morning I found the heater still on when I saw the light still on.


text:
Helenvictoria precisava de um novo design de logo e criou um concurso na 99designs.
Um vencedor foi selecionado entre 137 designs enviados por 47 designers freelancers.
I manufacture clothing for women over thirty for formal occasions. My target market is women with high disposable income, who enjoy wearing separates. I supply boutiques in affluent areas. I have some eight or so photos that show my style which is simple but unique. My wrap jackets and pants have been a huge success and I haven't started business yet! I want a logo that is simple and versatile that reflects their style. Although my clothing has a classical line, the pieces (garments) themselves are quite modern and they work well together, mixing and matching. It has to look good on a clothing label, without being too much work to manufacture, as well as swing tags, letters and in future handbags etc. I was thinking something with the HV but don't let that sway you if you can think of something more appropriate.
Um símbolo ou um formato abstrato é usado para transmitir os valores da sua empresa.
Must be earthy tones like - old gold, pewter, sienna, butter, chocolate, burnt orange. imagine winter and autumn and all those cosy colours you want to rug up to, but not hide. When these colours are placed with black they can be quite stunning. I also need a simple black and white version logo that I can use on the embroidered clothing labels.


text:
1.0 / August 29, 2016
App Information WT Running
- App NameWT Running
- Package Namecom.ricosonix.run
- UpdatedAugust 29, 2016
- File Size44M
- Requires AndroidAndroid 4.0.3 and up
- Version1.0
- DeveloperRicosonix Co., Ltd.
- Installs100 - 500
- PriceFree
- CategoryCasual
- DeveloperEmail firstname.lastname@example.com Privacy PolicyB101, 149, Gasan digital 1-ro, Geumcheon-gu, Seoul, Korea
- Google Play Link
Ricosonix Co., Ltd. Show More...
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Globally 30 million players loved onlinePCgame "Wolfteam"Come back by mobile mini-games.[How to enjoy]☆ Touch a screen when you want to stack- A board will be dropped☆ Stack it perfectly- Feel Wolf's attack & howling[Game Feature]☆ You can enjoy casually☆ Play against global players☆ Less network connection☆ Simple play but fun playFacebook: fb.me/NyxFriends
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Sing your favorite hits with audio effects.Sing video duets with featured artists like Jessie J, Jason Derulo,and Linkin Park. Share your covers with our 50M+ global audienceand get fans!Featured by Google Play as Best Apps 2014.-----------Features- Self-recording option with video**- Sing like a star with audio effects!- Share on our global platform - get discovered!- Duet with featured pop artists - Jessie J, Jason Derulo, KylieMinogue, X Ambassadors, OMI, Carly Rae Jepsen, Charlie Puth,Silento and many more**Video availability on different Android devices will beincremental over several weeks. When available onyour device model, video option will appear with no additionalupdate required. Please see the Sing! Android FAQ for theinitial list of devices that offervideo. http://www.smule.com/support/sing#android-----------------------------------------------------New songs added every day. Current most popular on Sing!:** All of Me - John Legend** Flashlight - Jessie J (from Pitch Perfect 2)** I'm Not the Only One - Sam Smith** Like I'm Gonna Lose You - Meghan Trainor, ft. John Legend** All I Want For Christmas is You - Mariah Carey** I'm Yours - Jason Mraz** Thinking Out Loud - Ed Sheeran** Dear Future Husband - Meghan Trainor** When I Was Your Man - Bruno Mars** Let It Go - Idina Menzel (from Frozen by Disney)** Cups ("When I'm Gone") - Anna Kendrick** Stay - Rihanna ft. Mikky Ekko** Love me Like You Do - Ellie Goulding** The Way, Break Free - Ariana Grande** Anaconda, Pound the Alarm - Nicki Minaj** I Won't Give Up, I'm Yours – Jason Mraz** Happy - Pharrell Williams** Eye of the Tiger - SurvivorWant a song that's not yet available? Suggest songs on Smule'sFacebook page: www.facebook.com/smuleWant a song that's not yet available? Suggest songs on Smule'sFacebook page: www.facebook.com/smuleCONNECTING THE WORLD THROUGH MUSIC™ - JOIN THE KARAOKEPARTYFind and follow your friends in Sing!, and meet incredible singersfrom all over the world. Sing your heart out on Solo songs, or joinup with others in Duets or Group songs. Keep up with your friendsand favorite singers, and love and comment on performances to showyour support.BE DISCOVERED! GET FANS!Lots of talents get discovered through our Sing! Karaoke platform.Show off your talent in front of 50M+ global audience and getfansSOUND LIKE A STARSound amazing every time with Sing!'s voice enhancement technology.Use special voice filters to spice up your performance even more.Sing! is a supportive, joyful community where music-making at alllevels is encouraged and appreciated.http://www.smule.comhttp://plus.google.com/+smulehttp://www.facebook.com/smulehttp://www.youtube.com/smulehttp://www.twitter.com/smuleHave questions on a particular permission?http://www.smule.com/support/sing#android
Choki-Choki AR Boboiboy 19.0 APK
Temukan 50 Gamecard karakter BoBoiBoy TheMovie setiap pembelian Choki-Choki bertanda khusus, dan mainkankartunya dengan aplikasi "Choki Choki AR BoBoiBoy".Temukan juga Gold Card (Kartu Emas) yang dapat ditukarkan dengantiket menonton BoBoiBoy The Movie di bioskop-bioskop terdekat.Choki-Choki akan hadir perdana dalam film layar lebar "BoBoiBoyThe Movie".Untuk menambah keseruannya Choki-Choki memberikan gamecard secaragratis dan bisa dimainkan dengan teknologi Augmented Reality yangbisa membuat karakter menjadi hidup.BoBoiBoy The Movie bercerita tentang petualangan seru BoBoiBoydan teman-temannya di pulau misteri tempat tinggal Klamkabot sangtetua pembuat Sfera Kuasa.Di pulau misteri ini BoBoiBoy akan bertemu musuh terkuatnya,yaitu Borara seorang pemburu alien yang mencari kekuatan SferaKuasa untuk menguasai seluruh antariksa. Saatnya pertarungan antaraBoBoiBoy dan alien terkuat seantariksa demi melindungi Sfera Kuasadan teman-temannya.Kumpulkan dan mainkan seluruh karakter baru BoBoiBoy dan paramusuh yang belum pernah dilihat sebelumnya.Feature:• 50 karakter BoBoiBoy & Friend• Lebih dari 10 musuh baru• Pertarungan seru antara BoBoiBoy & Friend dengan musuh-musuhbaru** Minimum Requirement : OS Android 4.4 (Kit Kat), 2GB RAM** Facebook Page :https://www.facebook.com/chokichokiindonesia/Discover 50 Gamecardcharacter BoBoiBoy The Movie Choki-Choki every purchase ofspecially marked, and play cards with the application "Choki ChokiAR BoBoiBoy".Discover also Gold Card (Gold) can be exchanged for tickets towatch BoBoiBoy The Movie in theaters everywhere.Choki-Choki will attend a movie premiere in "BoBoiBoy TheMovie".To add Choki-Choki have fun giving gamecard free of charge and canbe played with Augmented Reality technology that can make thecharacters come alive.BoBoiBoy The Movie tells the story of an adventure BoBoiBoy andhis friends on the island mystery Klamkabot residence elderAuthorization Sfera maker.In this mystery island BoBoiBoy will meet strongest enemy,namely Borara an alien hunter who sought the power Sfera power tocontrol the entire space. It's time to fight between BoBoiBoy andaliens strongest seantariksa to protect Sfera Authorization andfriends.Collect and play BoBoiBoy whole new character and the enemy whohas never seen before.feature:• 50 characters BoBoiBoy & Friend• More than 10 new enemies• intriguing battle between BoBoiBoy & Friend with newenemies** Minimum Requirements: OS Android 4.4 (Kit Kat), 2GB RAM** Facebook Page: https://www.facebook.com/chokichokiindonesia/
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December 26, 2012
CRAIG COOPER,PLAINTIFF,v.SYNTHIA SELY, DEFENDANT.
ORDER DENYING PLAINTIFF'S MISCELLANEOUS DISCOVERY MOTIONS (ECF Nos. 31, 32)
Plaintiff Craig Cooper is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed April 1, 2011 pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) Plaintiff and Defendant have declined to extend Magistrate Judge jurisdiction for all purposes and proceedings. (Decline Magistrate, ECF Nos. 3, 22.)
On February 28, 2012, the Court screened Plaintiff's Complaint pursuant to 28 U.S.C. § 1915A, and found that it stated cognizable claims against Synthia Sely, Licensed Vocational Nurse ("LVN") at Pleasant Valley State Prison ("PVSP"), for medical indifference under the Eighth Amendment and state law negligence. (Order Finding Claims, ECF No. 9); Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). On May 15, 2012, Defendant filed her Answer. (Answer, ECF No. 13.) On May 16, 2012, the Court filed its Discovery and Scheduling Order (Discov and Sched. Order, ECF No. 14), setting a Discovery Cut-Off Date of January 16, 2013, and a Dispositive Motion Deadline of March 25, 2013.
Now pending before the Court are Plaintiff's motions requesting discovery meet and confer, and joint statement regarding discovery disagreement. (Mot.'s re Disc., ECF Nos. 31, 32.)
Plaintiff's motions are denied.
Plaintiff is proceeding pro se as a state prisoner challenging his conditions of confinement. In such cases, the parties are relieved of the need to meet and confer and provide a joint statement regarding discovery disagreements. Fed. R. Civ. P. 26(a)(1); Fed. R. Civ. P. 26(c); Fed. R. Civ. P. 37(a)(1); Local Rules 240, 251; ECF No. 14, Discovery and Scheduling Order, ¶ 5.
Accordingly, for the reasons stated above, Plaintiff's motions requesting discovery meet and confer (ECF No. 31) and joint statement regarding discovery disagreement (ECF No. 32), are DENIED.
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4 Techniques or Products to Prevent Back Pain
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Back Pain Treatment
Back Pain Causes
Back Pain Symptoms
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