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Cosco v. Gemmet

May 11, 2010


The opinion of the court was delivered by: Lonny R. Suko Chief United States District Judge


BEFORE THE COURT is the Defendant Victoria Gemmet's Motion for Summary Judgment, Ct. Rec. 29, filed on October 27, 2009.


Plaintiff John Cosco, proceeding pro se, brought this 42 U.S.C. § 1983 action against Defendant Victoria Gemmet, a registered nurse at California State Prison-Sacramento. In his Complaint, Plaintiff alleges that his Eighth Amendment rights were violated by Defendant who was "deliberately indifferent" to his medical needs by not providing him with a prescription medication or scheduling him for an immediate doctor's appointment to treat his eczema.

Plaintiff Cosco, a prisoner in the custody of the California Department of Corrections and Rehabilitation (CDCR) arrived at California State Prison-Sacramento (CSP-SAC) in Represa, California on June 5, 2007. (Def.'s Statement of Undisputed Fact (DUF 1.) In June 2007, Defendant Gemmet was employed as a triage nurse at CSP-SAC (DUF 2), at which time she was on floating assignment at CSP-SAC and did not have a regular post. Gemmet filled in for nurses regularly assigned to the facilities' clinics. (DUF 3.)

On June 12, 2007, Gemmet was assigned to work in the Facility B clinic and replaced the regular Facility B triage nurse, who was out of the office at that time. (DUF 4.) That same day, Gemmet received a Health Care Services Request Form from inmate John Cosco, stating that he had a skin condition and a rash. (DUF 5.) Because Gemmet was only replacing the triage nurse for that day, she had no control over the scheduling of Cosco's appointment. (DUF 6.)

The nursing protocol for treatment of skin conditions and rashes includes the following steps: (1) recording the patient's complaints regarding the skin condition; (2) completing an objective evaluation of the patient's condition, including recording vital signs and description of any skin lesions; (3) completing a treatment plan for the patient; and (4) educating the patient on treatment of the skin condition. (DUF 7.) On June 12, 2007, Gemmet treated Cosco, and followed the nursing protocol by first recording Cosco's complaints of an itchy rash and lesions on his harms and legs. (DUF 8.) Gemmet then conducted an objective evaluation of Cosco's condition, recording his vital signs, and noting the location, size, and color of his skin lesions. (DUF 9.) Gemmet then completed a treatment plan for Cosco's skin condition. (DUF 10.)

After seeing an inmate at the CSP-SAC nursing clinic, the treating nurse can refer the inmate to a CSP-SAC doctor by classifying the inmate as "Emergent," "Urgent" or "Routine." (DUF 11.) If the inmate's health condition is "Emergent," the treating nurse arranges for the inmate to see a doctor immediately. (DUF 12.)

If the inmate's health problem is "Urgent," the treating nurse places the inmate on a doctor's line to see a doctor the next day. (DUF 13.) If the inmate's health problem is "Routine," the treating nurse places the inmate on a doctor's line to see a doctor within the next 14 days. (DUF 14.) Under the nursing protocol, a patient does not require urgent medical treatment for a skin condition unless he is bleeding, experiencing a secondary skin infection, fever or lesion drainage. (DUF 15.)

While examining Cosco, Gemmet noted that he had rashes on his arms and legs, but he was not bleeding, experiencing a secondary skin infection, fever, or lesion drainage. (DUF 16.) Gemmet therefore concluded that his rash did not need immediate or urgent medical treatment. (DUF 16.) Because Gemmet determined that Cosco was suffering a non-emergency rash, she did not schedule him for an "Emergency" or "Urgent" doctor's appointment. (DUF 17.) Instead, she classified his health condition as "Routine," and recommended that he receive a doctor's appointment within fourteen days. (DUF 17.)*fn1

The nursing protocol for the treatment of eczema patients by a CSP-SAC Registered Nurse includes the following steps: (1) identify and remove the offending agent; (2) instruct the patient to apply hydrocortisone cream (1%) to the affected area no more than 3-4 times a day while symptoms persist; and (3) instruct the patient to return to the RN clinic for a follow-up if there is no improvement after seven days. (DUF 20.) Gemmet therefore offered Cosco hydrocortisone cream-which does not require a separate doctor's prescription-as treatment for his rash. (DUF 21.) Cosco refused Gemmet's offer of hydrocortisone and insisted that she give him Lidex-a potent medication requiring a doctor's prescription. (DUF 22.)

Lidex is a topical corticosteroid used in the treatment of eczema and psoriasis. (DUF 23.) It is more potent than hydrocortisone, can cause muscle atrophy, and is not recommended for long-term use. (DUF 24.) Unlike hydrocortisone, Lidex is not approved for distribution by registered nurses. (DUF 25.) Lidex may only be prescribed by physicians, clinicians, physician's assistants, or nurse practitioners. (DUF 25.) For an inmate to receive a prescription for Lidex under the nursing protocol, the registered nurse needs to recommend that the inmate-patient have a separate appointment with the physician at the prison's clinic. (DUF 26.) The physician will then determine if it is necessary to prescribe Lidex to the inmate-patient. (DUF 27.) Gemmet explained to Cosco that she could not provide him with Lidex without a doctor's prescription, that he would need to schedule a doctor's appointment, and that a doctor would have to determine whether Cosco needed Lidex. (DUF 28.)

At the end of the appointment, Gemmet educated Cosco on skin care and advised him to resubmit a Heath Care Services Request Form if his condition did not improve. (DUF 29.) After her appointment with Cosco, Gemmet forwarded his paperwork to the B Facility Clinic's office technician, who was responsible for scheduling Cosco's doctor's appointment. (DUF 30.) Gemmet had no further involvement in Cosco's case, and no control over when the office technician scheduled Cosco's doctor's appointment. (DUF 31.)

Defendant asserts that Cosco's medical records show that her care of Cosco's skin condition was proper. (DUF 32.) Defendant argues that all necessary steps required under the prison's nursing protocol for treating inflammatory skin conditions were taken, and she conformed to the standard of care for the treatment of inflammatory skin conditions by CSP-SAC's Registered Nurses. (DUF 32.) Cosco's medical records from his appointment with Gemmet indicate that he did not suffer from any of the symptoms-such as bleeding, lesions, and secondary skin infections- necessitating immediate medical treatment or an immediate Lidex prescription. (DUF 33.) Had RN Gemmet requested an immediate prescription of Lidex for Cosco, she would have been acting outside of the bounds of the prison's nursing protocol for treatment of inflammatory skin conditions. (DUF 34.) ...

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