The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS BE GRANTED IN PART AND DENIED IN PART
OBJECTIONS, IF ANY, DUE IN THIRTY DAYS
I. RELEVANT PROCEDURAL HISTORY
Henry Manson III ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint initiating this action on March 20, 2007. (Doc. 1.) This action now proceeds with the original complaint, on Plaintiff's claims for deliberate indifference to his serious medical needs in violation of the Eight Amendment, and on state tort claims regarding medical care, against defendants David G. Smith, M.D., Arvindra Brar, M.D.,*fn1 and James Johnston, M.D.*fn2
On March 13, 2009, defendants Smith and Johnston ("Defendants") filed a motion to dismiss the complaint for Plaintiff's failure to exhaust administrative remedies before filing suit. (Doc. 20.) On May 4, 2009, Plaintiff filed an opposition to the motion.*fn3 (Doc. 29.) On May 8, 2009, Defendants filed a reply to Plaintiff's opposition. (Doc. 31.) Defendants' motion is now before the Court.
II. PLAINTIFF'S ALLEGATIONS
Plaintiff is currently incarcerated at Pleasant Valley State Prison in Coalinga, California. The events at issue in this action allegedly occurred while Plaintiff was housed at Corcoran State Prison ("CSP") in Corcoran, California. Plaintiff is seeking money damages, declaratory relief, and injunctive relief based on alleged violations stemming from his medical care.
Plaintiff alleges in the complaint as follows.*fn4 Plaintiff has an epileptic seizure condition. On April 5, 2003, Plaintiff experienced a painful and violent "grand mal" epileptic seizure, resulting in Plaintiff being transported by ambulance to the prison hospital's emergency room. During the three-day observation stay in the hospital, Plaintiff persistently complained about pain on the right side of his head and in both shoulders. On April 8, 2003, immediately upon discharge from the hospital, Plaintiff submitted a Health Care Services Request form to the 3B medical clinic, complaining of excruciating left shoulder pain.
A. Allegations Against Defendant Smith
On May 14, 2003, an MRI was performed on Plaintiff's left shoulder. Defendant David G. Smith, M.D. ("Dr. Smith"), the prison orthopedist, viewed the MRI film, told Plaintiff his shoulder was dislocated, and informed him that treatment would be undertaken in about two weeks.
On May 28, 2003, an x-ray examination of Plaintiff's left shoulder showed a left shoulder dislocation, elevated left clavicle secondary to a left acromioclavicular ("AC joint") separation.
On May 30, 2003, Dr. Smith manually re-aligned Plaintiff's left shoulder while Plaintiff was under general anesthesia. During the procedure, Dr. Smith made no attempt to surgically correct Plaintiff's elevated distal left clavicle or AC-joint separation.
On June 11, 2003, Dr. Smith conducted a post-operative evaluation, advised Plaintiff to begin range of motion exercises, and ordered physical therapy. Plaintiff was prescribed pain medication, and his "lay-in" from work was extended another ten days. Plaintiff was to return for another follow-up in six to eight weeks.
By July 11, 2003, Plaintiff had been referred back to Dr. Smith for further evaluation, following a recommendation by the physical therapist. On July 17, 2003, while exercising on a stationary bicycle during physical therapy, Plaintiff's left shoulder "popped" forward, dislocating his shoulder and causing Plaintiff to scream out in excruciating pain. On July 23, 2003, Dr. Smith evaluated Plaintiff's condition and decided he mainly needed repair of the AC-joint separation. Dr. Smith indicated that he had made a request to perform the procedure, hoped it could be done in the near future, prescribed a muscle relaxant, and ordered Plaintiff to return in two to three months.
Plaintiff continued to experience excruciating pain and discomfort in his left shoulder, which was in a sling, prompting almost daily inquiries to the 3B clinic regarding the status of the surgery. On August 19, 2003, Plaintiff was informed by a 3B physician that Dr. Smith had not placed him on the scheduled surgery list.
On October 5, 2003, Plaintiff's shoulder dislocated again while he was taking a shower, and he was immediately transported to the prison hospital's emergency room where the shoulder was manipulated back into proper alignment. On October 6, 2003, an x-ray showed the shoulder was not presently dislocated, and Plaintiff was advised to take it easy until surgery.
On October 31, 2003, without verbal indication or informed consent, Dr. Smith executed an unauthorized and unnecessary surgical amputation of the distal end of Plaintiff's left clavicle. Dr. Smith failed to take x-rays, or to reduce or surgically correct the dislocation.
On November 12, 2003, Dr. Smith conducted a post-operative evaluation, noted degenerative changes in Plaintiff's shoulder, suggested range of motion exercises and Tylenol, and ordered Plaintiff to return to the clinic in six to eight weeks. On November 20, 2003, Plaintiff dislocated his shoulder again while sleeping in his cell, and he was transported to the prison hospital's emergency room. An x-ray showed dislocation, and the doctor requested emergency referral to the prison orthopedist. On November 21, 2003, Dr. Smith examined a bony protrusion on Plaintiff's shoulder. On December 8, 2003, Dr. Smith referred Plaintiff to an outside orthopedist, opining that Plaintiff needed a total shoulder replacement.
Throughout the next two years, Plaintiff endured further dislocations of both shoulders, visits to the hospital and appointments with physicians, and was finally given much-needed left shoulder surgery at University Medical Center on May 11, 2006. On August 17, 2006, Plaintiff received a total right shoulder joint replacement surgery at Fresno Community Hospital.
B. Allegations Against Defendant Johnston
On October 5, 2003, Plaintiff's left shoulder dislocated while he was taking a shower, and he was immediately transported to the prison hospital's emergency room where the shoulder was manipulated back into proper alignment. On October 6, 2003, defendant James Johnston, M.D. ("Dr. Johnston") viewed an x-ray taken of Plaintiff's left shoulder in the emergency room, determined the shoulder was not presently dislocated, and advised Plaintiff to take it easy until his scheduled surgery.
The surgery was delayed. On July 14, 2004, Plaintiff dislocated his right shoulder and was transported to the emergency room at Bakersfield's Mercy Hospital. The shoulder was realigned while Plaintiff was under general anesthesia. While Plaintiff was being transported back the prison, his right shoulder dislocated again and he was immediately returned to the hospital. Dr. Johnston, the attending emergency room physician, examined Plaintiff, took an x-ray, and determined the shoulder was not dislocated. Plaintiff insisted the shoulder was dislocated, but Dr. Johnston refused to re-align the shoulder. Dr. Johnston recommended that Plaintiff be referred back to an outside orthopedist, gave Plaintiff a right shoulder sling, prescribed Motrin, and scheduled him for follow up in seven days. However, Plaintiff was not transported to an outside medical facility, and there was no attempt by any prison physician to treat or reduce Plaintiff's right shoulder dislocation.
In August 2004, Plaintiff was seen by an outside orthopedist who determined Plaintiff's right shoulder was dislocated. The doctor re-aligned the shoulder, but it was unstable and dislocated again.
On January 3, 2005, Plaintiff was taken to the prison hospital emergency room in excruciating pain. Dr. Johnston, the attending physician, ordered an x-ray and determined Plaintiff's right shoulder was not dislocated. Plaintiff disagreed and asked Dr. Johnston to check again, but Dr. Johnston only ordered pain medication, a follow-up with the yard physician, and noted that Plaintiff was scheduled to see the outside orthopedist.
On January 5, 2005, Plaintiff was returned to the emergency room with severe pain in his right shoulder. However, the attending physician told Plaintiff to leave and return to the emergency room the following morning.
On February 15, 2004, Dr. Johnston examined more x-rays of Plaintiff's right shoulder and determined the shoulder was not dislocated. Plaintiff insisted on treatment for a dislocated shoulder and made a bet with the doctor that the shoulder was dislocated. Dr. Johnston injected Plaintiff with a muscle relaxant and manipulated the shoulder until a loud "pop" was heard when the shoulder was properly replaced in its joint. Dr. Johnston then applied a sling and ordered a follow-up with the facility physician.
Throughout the next two years, Plaintiff endured further dislocations of both shoulders, visits to the hospital and appointments with physicians, and was finally given much-needed left shoulder surgery at University Medical Center on May 11, 2006. On August 17, 2006, Plaintiff received a ...