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Esposito v. Khatri

March 16, 2009

ANTHONY ESPOSITO, PLAINTIFF,
v.
D. KHATRI, M.D., ET AL., DEFENDANT.



The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER ADOPTING THE REPORT AND RECOMMENDATION TO (1) GRANT DEFENDANTS' MOTION TO DISMISS THE COMPLAINT; and (2) DISMISS THE REMAINING CLAIMS

Anthony Esposito ("Plaintiff") proceeds pro se and in forma pauperis("IFP") pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915(a). Plaintiff alleges Defendants Khatri, Cook, Aymar and Calvin violated Plaintiff's Eighth Amendment Right to medical care by denial and delay of treatment for a cervical spine condition while he was in custody at Centinela State Prison, located in Imperial, California. (Docket No. 1.)

PROCEDURAL BACKGROUND

Plaintiff filed the present complaint on April 23, 2008. (Id.) Defendants Khatri and Cook filed a Motion to Dismiss on August 26, 2008. (Docket No. 11.) On October 22, 2008, Plaintiff filed his Opposition to the Motion to Dismiss. (Docket No. 19.) On January 16, 2009, the Magistrate Judge issued a Report and Recommendation recommending: (1) the Defendants' Motion to Dismiss be granted, and (2) sua sponte dismissal of claims against the remaining defendants. (Docket No. 21.) Plaintiff filed Objections to the Report and Recommendation on February 10, 2009. (Docket No. 23.)

Defendants replied on February 27, 2009. (Docket Nos. 24 and 25.) This Court ADOPTS the Report and Recommendation.

FACTS

Based on the medical records attached to the Plaintiff's Complaint and Objection, this Court summarizes Plaintiff's medical history as follows:

Dr. Thornton, a staff physician at Centinela State Prison, requested that Plaintiff receive an MRI of the cervical spine in early December of 2006. (Compl. Ex. A at 36.) Plaintiff received the MRI on December 26, 2006. (Id. at 34-35.) The MRI revealed no abnormalities of the spinal cord, some stenosis at the C6-7 level, mild narrowing of the right neural foramen and moderate narrowing of the left neural foramen. (Id.)

In March of 2007, Chief Physician Khatri requested authorization for a neurosurgery consultation with Dr. Travis Calvin located in El Centro, CA, regarding Plaintiff's spinal stenosis and cervical spine. (Id. at 31.) On May 4, 2007, Chief Medical Officer Barreras requested authorization for Plaintiff to receive further neurosurgery consultation with Dr. Calvin on May 10, 2007. (Id. at 30.) On May 10, 2007, Dr. Aymar recommended physical therapy for the Plaintiff as a result of a worsening clinical status. (Id. at 29.)

The Plaintiff did not immediately receive physical therapy and filed a 602 Appeal that was received by the Inmate Appeals Office on July 16, 2007. (Id. at 3.) Four days later, Health Care Appeals Coordinator Cook responded to Plaintiff's inmate appeal regarding his "citizen complaint against Centinela Medical Department." (Id.) Cook's response stated "we are having acute difficulties obtaining [physical therapy] due to very limited resources for that specialty. Our health care administration is aware of the problem and is working to remedy it, your patience is appreciated and the service will be scheduled as the resources become available." (Id.)

On August 2, 2007, Dr. Calvin issued a report to Dr. Thornton regarding Plaintiff's condition. (Id. at 21-25.) Dr. Calvin noted Plaintiff appeared in "no immediate distress," but that tenderness was present on the left side of the neck and moderate spasm. (Id. at 22-23.) Dr. Calvin recommended "conservative treatment as much as possible" and recommended "a lateral block." (Id.)

Dissatisfied with the Informal Response of his 602 Appeal, Plaintiff further pursued his appeal and on September 11, 2007. (Id. at 5.) The First Level Appeal Response of Health Care Appeals Coordinator Cook and Chief Physician Khatri noted that the Plaintiff as was assessed by Dr. Aymar again on September 6, 2007 following the informal response. (Id.) At that assessment, Dr. Aymar generated a request for a current MRI of Plaintiff's spine to assess changes. (Id.) The First Level Response also noted that although physical therapy is still pending, those services "continue to be at a standstill with health care administration aware of the issue." (Id.)

On October 25, 2007, Dr. Calvin re-evaluated Plaintiff. He found continued cervical stenosis, radiculopathy and lumbosacral strain. Dr. Calvin recommended spinal blocks. Later that month Health Care Appeals Coordinator Cook responded to Plaintiff's Second Level Appeal and stated: "As relayed in the INFORMAL and FIRST level responses our institution was unable to obtain physical therapy services for a period but now have a contractor available to provide the service." (Id. at 6.)

In December of 2007 and January of 2008 Plaintiff was referred to Pioneer Hospital for epidural injections. (Id. at 10-12.)

The Plaintiff has since received corrective surgery for spinal fusion extending from C4 ...


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