Opinion
No. 06-cv-2381 FCD CKD P.
August 8, 2011
ORDER
Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. He alleges that defendants denied or delayed giving him adequate medical treatment in violation of his right to be free from cruel and unusual punishment under the Eighth Amendment. This order addresses four of plaintiff's pending motions: Doc. Nos. 105, 107, 108, and 112. Defendants have not filed responses to any of these motions; however, all but one maybe resolved without their input.
I. Review of Procedural History
II. Service of Process
Plaintiff similarly argues in a June 27, 2011 filing that defendants James, Roche, and Cox "must be reinstated in this action." (Doc. No. 114 at 2.) This contention has been addressed.
III. Protective Order
On April 15, 2011, plaintiff filed a "motion for protective order" (Doc. No. 108) in which he alleges various prejudicial errors on the part of the court. Having reviewed the docket, the court concludes that plaintiff's arguments lack merit. Plaintiff also requests that the court order medical relief, as he "has been denied therapy, for his chronic back pain, [and] denied measures that would help with his pain management." (Id. at 3.) In support, plaintiff has attached a July 7, 2010 medical report documenting an MRI of the cervical spine and indicating that plaintiff has "[m]ild degenerative disc disease . . . in the mid cervical spine" and "multilevel mild facet and uncovertebral hypertrophy." (Id. at 22.)
The court notes its previous admonition that "[p]laintiff's multitudinous filings have become a burden for the court and have contributed to the delay in the resolution of pending matters in this case." (Doc. No. 85 at 7.)
On December 11, 2009, the court denied a similar "motion for protective order" alleging that plaintiff was "in imminent danger" of not receiving medication for back pain. (Doc. No. 67 at 1; Doc. No. 74.) The magistrate judge previously assigned to this case based her recommendation that the motion be denied on "the sworn statement of J. Burgett, a nurse practitioner at High Desert State Prison where plaintiff is housed," indicating that plaintiff was given neurontin for back pain until his prescription expired in September 2009; that plaintiff was subsequently prescribed Tylenol for his complaints of lower back pain; and that physical therapy was ordered for him. (Doc. No. 67; see Doc. No. 66-1.) The magistrate judge noted that plaintiff did not file an objection to Burgett's statements. (Doc. No. 67 at 2.)
Apparently Burgett was still plaintiff's medical provider as of July 2010 MRI report attached to his motion. (Doc. No. 108 at 22.)
In his 2009 motion, plaintiff sought prospective relief, alleging that "in some point in the near future pain medication would be unnecessarily discontinued." (Doc. No. 67 at 1.) Here, in contrast, plaintiff alleges that he "has been denied therapy" and other pain management measures. (Doc. No. 108 at 3.) The court understands plaintiff to allege that, at some point after November 2009, when Burgett filed her statement, the medical treatment he received for chronic back pain became inadequate. (See Doc. 66-1.) Before ruling on plaintiff's motion, the court will, as before, order defendants to respond to plaintiff's allegations concerning his prior and ongoing treatment for back pain. (See Doc. 65 at 3.) Accordingly, these claims will be held in abeyance pending defendants' response.
IV. Partial Summary Judgment
On June 17, 2011, plaintiff filed a "motion for partial summary judgment" complaining for a second time that defendant Dial has not been served. (Doc. No. 112.) Plaintiff expresses concern that Dial "may never be found" (id. at 2); however, defendants' September 24, 2010 status report suggests that defense counsel has a residential address for Dr. Dial, where he may or may not currently reside. (Doc. No. 91 at 2.) As discussed above, the court will file a concurrent order directing the USM to serve process on Dr. Dial. Therefore, the instant motion will be denied as moot.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's March 7, 2011 motion for review of procedural history (Doc. No. 105) is denied;
2. Plaintiff's April 8, 2011 motion for service of process (Doc. No. 107) is granted insofar as service will be ordered concurrently on defendant Dial;
3. Plaintiff's April 15, 2011 motion for protective order (Doc. No. 108) is denied except as to plaintiff's allegations of inadequate treatment for lower back pain, which are held in abeyance;
4. Defendants shall file a response to plaintiff's allegations in Doc. No. 108 that he received and continues to receive inadequate treatment for lower back pain, within fourteen days of this order; and
5. Plaintiff's June 17, 2011 motion for partial summary judgment (Doc. No. 112.) is denied as moot.