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Cano v. Naku

January 21, 2010

ABEL CANO, PLAINTIFF,
v.
DR. B. NAKU, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER & FINDINGS AND RECOMMENDATIONS

Introduction

Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are: 1) plaintiff's amended motion to compel discovery responses from defendant Traquina, filed on June 22, 2009, to which Traquina did not file an opposition; 2) defendant Naku's motion for summary judgment, filed on June 26, 2009, to which plaintiff filed an opposition, after which this defendant filed a reply.

Complaint

The court has previously set forth plaintiff's allegations in this matter, see Order, filed on June 4, 2009, pp. 2-4, as follows. This matter proceeds upon plaintiff's complaint, filed on October 17, 2007, against defendants Dr. B. Naku and Dr. Alvaro C. Traquina, Chief Medical Officer (CMO), both employed at California State Prison-Solano (CSP-Sol). The gravamen of his complaint is that following a slip as he left the shower, on May 21, 2006, at CSP-Sol, and falling on a wet tile floor that had no rubber mats, plaintiff suffered a break in his right wrist bone for which his subsequent treatment has been "abysmal"; from the time of the injury until the October 9, 2007, filing date of this action (per the mailbox rule), plaintiff contends that he has received "little more than Tylenol to treat the pain," and deficient treatment for the break. Complaint, pp. 1-3.

Plaintiff states that when he fell he experienced a sharp pain in his right wrist, was seen by a Dr. Tesla R. Rallos (not a defendant), on May 23, 2006, who, noting redness and tenderness at the wrist joint, ordered x-rays, a splint, a light duty chrono and a four-week follow-up. On May 24, 2006, x-rays were taken. The radiologist's findings and impression were as follows:

FINDINGS: Subtle irregularity is seen in the region of the proximal carpal row on the lateral view only. The pattern suggests a non displaced triquetrial fracture. The remainder of the osseous structures are unremarkable.

IMPRESSION: Probable non displaced triquetrial fracture. Clinical correlation regarding pain at this location is recommended.

Complaint, p. 3, Exhibit (Ex) C.

Plaintiff asserts that no further treatment was provided at that time. Plaintiff was seen on July 7, 2006, by defendant Dr. Naku, who noted the "nondisplaced right triquetrial fracture," and ordered "a repeat of the x-rays and an orthopedic consult." Nevertheless, despite the passage of seven weeks from the time of the injury, plaintiff received no further treatment. Id., Ex D.

When, two weeks later, plaintiff filed a 602 appeal as an "emergency appeal" for treatment, indicating that he had had a broken wrist bone since May 21, 2006, that had never been treated or put in a cast, a CSP-Sol medical administrator named Laura Mefford (not a defendant), on July 26, 2006, prepared an authorization request to be signed by defendant CMO Traquina for plaintiff to be treated at the UC Davis Ortho/Trauma Clinic in Sacramento.

Complaint, p. 4, Exs E & F.

In response to the request, on August 2, 2006, plaintiff was seen at UCD Orthopedic Outpatient Services and a diagnosis and treatment plan were formulated. Id., Ex. G. Upon his return from UCD, plaintiff was not given further treatment on Aug. 2, 2006., Id., Ex H.

On Aug. 30, 2006, about four weeks later, plaintiff was seen at the CSP-Sol clinic by defendant Naku, who ordered Tylenol for plaintiff's pain, a wrist brace and a "CT [scan]" for the right wrist. Complaint, p. 5, Ex. I. There was no further treatment.

On September 5, 2006, defendant Naku answered plaintiff's CDC 602 appeal, partially granting it, telling plaintiff that UCD had recommended a CT scan of his right wrist and that Naku had ordered one, and that plaintiff would be re-evaluated. Complaint, p. 5, Exs J & K.

Plaintiff filed a second level appeal which defendant Traquina partially granted but which provided no further treatment for plaintiff's wrist or wrist pain. Complaint, p. 5, Ex L. Following the response to his appeal to the director's level, also partially granting the appeal, plaintiff's broken wrist bone remains untreated and the pain unabated. Complaint, p. 6, Ex M. Plaintiff contends that defendant Naku may be practicing medicine without a license. Complaint, p. 7. Plaintiff states that his pain is currently ineffectively treated with Naprosyn, an anti-inflammatory nonsteroid, but that "Tylenol Codeine 0.5 grain" decreases the pain much more significantly. Complaint, p. 8. Plaintiff states that he will be subject to future motion limitation and heightened pain in the affect[ed] wrist and that lack of treatment has caused a permanent disability. Complaint, pp. 8-9. Plaintiff seeks injunctive relief in the form of future medical care and money damages, including punitives, for alleged "deliberate indifference to a severe medical condition." Complaint, pp. 10-11.

Amended Motion to Compel

Plaintiff seeks an order to compel defendant Traquina's responses to plaintiff's set two of interrogatories, requests for admission, set two, and production of documents, set two, directed to him. Amended Motion to Compel (MTC), pp. 1-8. Plaintiff had brought a previous motion to compel, which the court had denied as moot but without prejudice because it was unclear, in light of supplemental responses that defendants had supplied, whether any requests remained at issue.*fn1 See, Order, filed on June 4, 2009, pp. 8, 11. In that Order, the court stated, inter alia, that plaintiff should inform the court within twenty days of specific discovery requests that might remain at issue in light of defendant Traquina's supplemental responses. Id., at 8-9, 11. A response to any such filing would be due from defendant Traquina within fifteen days thereafter. Id. As noted above, the defendant has failed to respond to the instant motion, which was timely filed.

In his amended motion, plaintiff states that in light of defendant Traquina's supplemental responses to interrogatories, set two, served on February 26, 2009, there is no further discovery issue pending. MTC, p. 6. In addition, plaintiff concedes that no issue remains as to the defendant's supplemental responses to set two of the requests for admission, or as to the requests for admission, set three, in light of both the defendant's supplemental responses served thereto, as well as the court's order, referenced above. Id. Plaintiff also concedes that a set four of requests for admission should not have been referenced in his filings as they were not included in his initial motion to compel and plaintiff further warrants that he no longer seeks monetary sanctions, having been satisfied by the form of sanctions imposed in the June 2, 2009, Order. Id., at 7.

Thus, the only requests that remain at issue are three requests for production of documents from set two. Plaintiff sets forth the following:

Request No. 1

Copies of medical guidelines regarding "services" and "the appropriate standard of care" as stated in defendant's Answer to Complaint, dated March 27, 2008, page 1, line 28, to page 2, line 1. []

Response: Objection. Defendants' answer makes no specific reference to any medical guideline and is made by way of a general denial, for which no supporting facts are necessary. This request also requires defense counsel's legal analysis and theories regarding the standard of care, which is equally available to plaintiff, and protected from disclosure by the attorney-client privilege and attorney work product privilege [Citation.]*fn2 This request also calls for the premature disclosure of expert information.

MTC, p. 2. Request No. 2:

Copies of any and all documents other than those described in request no. 1 which contain, mention, or discuss current guidelines for the diagnosis and treatment of ...


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