In re Billups

Filed 12/15/08 In re Billups CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.

Derrick Lee Billups, in pro. per., for petitioner.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Jessica N. Blonien, Deputy Attorney General, for respondent James Yates, Warden of Pleasant Valley State Prison.

California Prison Health Care Receivership and Kristina M. Hector, for respondent Federal Receiver J. Clark Kelso.

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Petitioner claims his Eighth Amendment rights are being violated by the physicians at Pleasant Valley State Prison because they are deliberately indifferent to his low back injury with disc herniation that presses against a nerve root and causes him daily pain. He claims to need greater medical care than is currently being provided him.

The Attorney General was given an opportunity to file opposition to the petition. In his informal response filed in this court on October 16, 2008, the Attorney General concedes the prisons medical system is, pursuant to the order issued in Plata v. Schwarzenegger (N.D. Cal. C01-1351), under the control of the federal receiver. The Attorney General, acting on the behalf of the warden at Pleasant Valley State Prison, deferred to the federal receiver to respond to the medical issues raised in the above referenced petition.

The federal receivers informal response was filed in this court on November 10, 2008, and includes a Corrective Action Plan that was created by a reviewing physician after the doctor reviewed petitioners medical records. The receiver is asking this court to adopt that plan and its timetable as the approach to be taken in this case.

Given the Attorney Generals deferral to the federal receiver, the federal receivers conclusion that petitioner is entitled to greater medical care than he has been receiving and petitioners desire for that care, this court believes this is an appropriate case in which to grant relief without further proceedings. (See People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7.)

Accordingly, the petition for a writ of habeas corpus, with respect to the request for greater medical care, is granted. The medical staff at Pleasant Valley State Prison is directed to comply with the Corrective Action Plan set out in the federal receivers informal response with one modification. The number of days between events described in the timeline is to remain the same but the timeline is to begin 20 days from the date of filing of this order.

For the first time in his reply, petitioner asks this court to order the removal of all negative entries in his medical file and to reinstate him in the disability placement mobility program.

Petitioners request to remove all negative references from his medical records is denied. His request to be returned to the disability placement mobility program is denied without prejudice to renew it in this court if he is not returned to the program after completion of the medical re-evaluation process ordered in this opinion.

Because petitioner continues to experience daily pain, this order will be final 10 days after the filing of this opinion. (Cal. Rules of Court, rule 8.264(b)(3).)

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^*Before Wiseman, Acting P.J., Levy, J., and Dawson, J.