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Kilgore v. Mandeville

June 18, 2010


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff is a state prisoner proceeding without counsel on his amended complaint filed December 7, 2007, pursuant to 42 U.S.C. § 1983. (Dkt. No. 5.) Plaintiff alleges that defendants at California State Prison-Sacramento ("CSP-S") were deliberately indifferent to his medical needs in violation of the Eighth Amendment to the U.S. Constitution. Presently pending are plaintiff's motions for discovery (Dkt. Nos. 49, 65, 72), plaintiff's request for appointment of counsel and for extended time to respond to defendant's motion for summary judgment (Dkt. No. 70), and defendant's motion for summary judgment (Dkt. No. 63).

For the following reasons, the court orders additional discovery, extends the deadlines for completing discovery and filing dispositive motions, and vacates defendants' motion for summary judgment without prejudice to refiling after close of the extended discovery deadline.


Pursuant to an order filed March 6, 2008, the magistrate judge previously assigned this case*fn1 found service of the amended complaint appropriate for defendants Dr. Jasdeep Bal, Dr. Gabriel Borges, Registered Nurse Nancy Dunne, Vocational Nurse Gloria Forshay, Correctional Officer Gregory Hampton, Chief Medical Officer Karen Kelly, Dr. James R. Wedell, and Vocational Nurse Marcus Winton. (Dkt. No. 7.) The court summarized the factual allegations of the amended complaint as follows (id. at 4-5):

[P]laintiff alleges that prior to December 2005, he started experiencing breathing complications due to a sinus infection. Plaintiff further alleges that defendant Dr. Wedell prescribed him ineffective medication on three occasions. Plaintiff alleges that he complained to the registered nurse about the medication, and several weeks later, defendant Dr. Borges prescribed a different medication without seeing plaintiff. Plaintiff contends that he subsequently submitted a sick call slip and, upon examination, Dr. Borges concluded that his sinus complications were the result of abnormal tissue growth. He advised plaintiff to continue taking the medication and to return in a month for a follow-up visit.

Plaintiff alleges that his breathing complications worsened thereafter. He alleges that Dr. Borges told him surgery was necessary but that such arrangements would have to be made with U.C. Davis and that he was first required by the health care manager to pursue alternate treatments. Plaintiff claims he later learned that Dr. Borges submitted merely a "routine" health care services request form for an outpatient diagnostic procedure when he should have submitted an "urgent" request because plaintiff had been suffering from frequent headaches and sinus pain for five months by that time. Plaintiff also contends that Dr. Borges continued to experiment with less efficacious courses of treatment while the abnormal tissue continued to grow at an aggressive rate. Plaintiff alleges that he received prednisone to control the inflammation, but experienced an allergic reaction to that medication. Plaintiff alleges that he repeatedly asked Dr. Borges to submit an urgent referral, but his requests were denied.

Plaintiff notes that Dr. Kelly, the Chief Medical Officer/Health Care Manager, was responsible for approving and delegating the arrangements for the outpatient services. In addition, plaintiff notes that Dr. Kelly was responsible for ensuring that Dr. Borges provided him with proper medical care.

Plaintiff alleges that, after waiting almost nine months for treatment, he resubmitted a sick call slip because the tissue mass was blocking his air passage and had extended out of his right nostril. In addition, plaintiff alleges that he was experiencing dizziness, migraines, and breathing and sleeping complications.

Plaintiff saw Dr. Duc, who informed him that the reason he had not been seen by a specialist was because Dr. Borges submitted only a "routine" request for medical treatment. Plaintiff alleges that Dr. Duc contacted the specialty referral director, defendant Dunn, and she confirmed that no arrangements had been made for a consultation with a specialist. Dr. Duc then upgraded the original request to an "urgent" request for treatment and submitted additional forms that Dr. Borges had not.

Plaintiff alleges that he informed defendant Mandeville of his condition, told him that he had not yet seen a specialist and complained about the tedious process for obtaining treatment. Defendant Mandeville told him to contact defendant Kelly with an "inmate request for interview" form. Plaintiff alleges that he submitted the form but never heard from defendant Kelly. Defendant Mandeville then instructed him to submit an "inmate request for an interview" form with Rick Hill, and plaintiff did so.

Finally, after a year of waiting, plaintiff was taken to see Dr. Vishal at the outpatient specialty clinic at U.C. Davis who informed plaintiff that there were a number of conditions that could account for the tissue mass and that he would need a CT scan and a biopsy. Plaintiff alleges that the approval process for those diagnostic tests caused another two-month delay in his treatment. Plaintiff alleges that next defendant Dr. Bal took over his treatment at CSP Sacramento and informed him that he would do all that he could to help plaintiff. However, plaintiff alleges that there were still delays in obtaining his CT scan and that during the delay he continued to experience physical and mental anguish. Plaintiff alleges that the CT scan revealed that invasive surgery was necessary to remove the tumor and it would leave him permanently disfigured. Plaintiff alleges that it was explained by doctors that a less invasive procedure could have been performed, requiring only a small incision, if there were not delays in his medical treatment.

On November 29, 2006, plaintiff underwent a biopsy and was prescribed Vicodin to help manage his pain but suffered an allergic reaction to the medication resulting in plaintiff being rushed to the clinic for a Benadryl injection. Plaintiff asserts that he requested Nurse Nicholson to ask the doctor for a different pain medication after the Vicodin was discontinued, but he refused and told plaintiff he would have to wait until the following day to see the doctor. Plaintiff alleges that he had to wait in agony for twenty-four hours until he saw Dr. Bal, who prescribed a new pain medication only to learn that the pharmacy did not have the new in stock and another twenty-four hour delay until he was finally provided an alternative pain medication.

Plaintiff alleges that the results of the biopsy revealed that he had an inverted papilloma and Dr. Fuller reiterated that surgery would be necessary. Plaintiff alleges that he then saw Dr. Bal who was unaware of the recommendation for surgery. Dr. Bal then contacted defendant Dunn, who informed him that they were under the impression that the surgery had already been performed. After further discussion, defendants Dunn and Bal agreed and understood that surgery needed to be arranged. After several additional weeks of waiting for surgery, plaintiff submitted another sick call slip and spoke with Nurse Bakewell who contacted the referral staff and learned that no arrangements had been made for plaintiff's operation and that Dr. Bal had not submitted the necessary request forms. Nurse Bakewell then submitted an urgent request form for plaintiff to receive his operation.

Plaintiff alleges that he finally underwent surgery on February 26, 2007. Plaintiff claims that U.C. Davis medical staff prescribed a strict pain medication regimen for him but that upon returning to the prison's general population, although he experienced severe pain and dizziness, he was told by defendant Hampton that defendant Winton refused to provide him with pain medication and said that he would receive it at the evening pill call. As the pain worsened, plaintiff alleges that his cellmate had to request defendant Hampton to notify medical staff of his condition but that Hampton refused to call medical staff. Plaintiff alleges that while in his cell he lost consciousness, fell to the floor and was rushed to the clinic where he finally received pain medication. Plaintiff alleges in general that in a series of specific instances after he was rushed to the clinic he was denied adequate pain medication by defendants Winton, Dr. Bal, Forshay, Spinks, and Wedell.

Plaintiff contends that his medical condition constitutes a serious medical condition that has resulted in permanent nerve damage and disfigurement and severe pain and suffering. Plaintiff also contends that his condition has significantly affected his daily activities in prison. Plaintiff argues that defendants have been deliberately indifferent to his serious medical needs in violation of the Eighth Amendment and section 1983. Plaintiff requests special damages, general damages, punitive damages, costs of the suit, and any further relief as the court may deem just and proper.

This action was assigned to the undersigned magistrate judge on February 9, 2010. On March 2, 2010, this court vacated pretrial and trial dates pending review of the instant motions. (Dkt. No. 68.)

Plaintiff has since informed the court that his sinus lesion has recurred, as discovered on examination in October 2009 and confirmed by CT scan in January 2010, and that his doctors have determined that further surgery will soon be necessary. (Dkt. No. 70.)


Pursuant to motion filed August 25, 2009 (Dkt. No. 49), plaintiff seeks to compel the following categories of discovery from defendants: (1) additional documents responsive to plaintiff's Requests for Production of Documents, First and Second Sets; (2) supplemental responses to plaintiff's First Set of Interrogatories; and (3) responses to plaintiff's Second Set of Interrogatories.*fn2 Defendants filed an untimely opposition (Dkt. No. 57),*fn3 which the court acceptednunc pro tunc (see Dkt. No. 68, at 2, n. 2). The court addresses each matter in turn.

A. Plaintiff's Request for Production of Documents, Set One

Plaintiff served his first production request on defendants on July 31, 2008; defendants responded on September 17, 2008.For the following reasons, the court orders further limited production of documents.

1. Request No. 2: "California Department of Corrections and Rehabilitation (CDCR) Inmate Medical Services Program Policies and Procedures (IMSPP) Mandate/Manual." (Dkt. No. 49-2, at 10.)

Defendants' Response: "Defendant objects to this request on the grounds that it is overly broad, overly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Without waiving these objections, copies of these documents are maintained in the prison library, and are available for inspection and copying pursuant to institutional policies and procedures." (Id.)

Contentions: The parties agree that department policy authorizes plaintiff to make copies of this manual at his own expense, citing CDCR's Department Operations Manual ("DOM"), §§ 14010.21, 14010.21.3. Defendants argue that the manual consists of "a two-volume set comprising hundreds of pages," that plaintiff has failed to identify the sections he needs, and that to require defendants to "copy all of the medical policies" "would entail countless hours of staff time" that would produce documents with no more than "remote relevance" to "mere allegations." (Dkt. No. 57, at 2-4.) Plaintiff seeks an order of this court directing defendants or the CSP-SAC litigation coordinator to provide plaintiff with his own copy. Plaintiff argues that the question whether his medical care complied with institutional rules, regulations and policies is at the heart of this litigation.

Order and Rationale: Denied. While some of the information contained in the manual is clearly relevant in establishing defendants' duty of care, as demonstrated by defendants' reliance on portions of the manual in their motion for summary judgment (Dkt. No. 63, Undisputed Fact No. 23, and Exh. E), the information is available to plaintiff for his review and copying pursuant to established institutional procedures.

Request No. 3: "The CDCR 7252 Form (Request for Authorization of Temporary Removal for Medical Treatment), related to plaintiff's February 26, 2007 lateral rhinotomy surgery." (Dkt. No. 49, at 11.)

Defendants' Response: "Copies of this document are maintained in Plaintiff's medical file, which is available for inspection and copying pursuant to institutional policies and procedures." (Id.)

Contentions: Plaintiff contends that this document was not in his medical file and asserts that it should be otherwise available to defendants for production to plaintiff. Defendants do not directly address this request in their opposition to plaintiff's discovery motion, asserting generally that they are unable to produce documents missing from plaintiff's medical file, which is "all that defendants have in their possession, custody and control." (Dkt. No. 57, at 3.)

Order and Rationale: Granted in part. Defendants shall, within 14 days of service of this order, conduct an appropriate search for this document, serve a supplemental response to this request reflecting such search and, if available, shall produce a copy of the subject CDCR 7252 Form.

This request seeks clearly relevant information concerning the timing of plaintiff's treatment. Review of plaintiff's argument, which sets forth the purpose and procedures for utilizing a CDCR Form 7252, indicates that the completed form could have been filed in a place other than plaintiff's medical file. Defendants should undertake the appropriate inquiry and search.

Request No. 8: "According to CDCR IMSPPP, Chapter 8, Sec. III D(3), the Specialty Clinic staff person shall maintain a log/record indicating the date(s) Specialty services where (sic) requested and the date(s) of specialty service [that] actually takes place. Plaintiff requests a computer print-out copy of said log/record of all specialty clinic request(s), etc. for the UC Davis ENT Clinic dating from April of 2006 to present time." (Dkt. No. 49-2, at 12.)

Defendants' Response: "Defendants object to this request on the grounds that it is overly broad, burdensome, and not reasonably calculated to the discovery of admissible evidence. Defendants further object to this request on the grounds that any such log would contain the names and medical information of other inmates, which is privileged under state law." (Id. at 12-13.)

Subsequent Communications: Plaintiff responded by letter that he sought this information only with respect to his own specialty appointments from September 22, 2008 to present. Plaintiff was informed by a CDCR official that the relevant program was "read only," that a printout could not be provided, that plaintiff could "ask for an 'OLSON' review and get copies of your medical records." Plaintiff responded that prior OLSON reviews of his medical files demonstrated that this information was not included, and again sought the information directly. The same CDCR official responded that the "information contained in computer tracking programs is not part of the medical record and therefor not available to you in any form -- including handwritten." (Id. at 13; Exhs. 5-7.)

Contentions: Defendants do not directly address this request in their opposition, apparently relying on their general statement that they produced a copy of plaintiff's medical file.

(Dkt. No. 57, at 3.)

Order and Rationale: Denied; no further production required. Defendants and CDCR staff have adequately responded that the requested information, as subsequently narrowed by plaintiff, is not kept in the ordinary course of business, at least in document form, and therefore cannot reasonably be produced.

Request No. 10: "According to the CDCR IMSPPP, Chapter 11, Sec. III, 'General Administration Procedures,' licensed healthcare staff administering medication shall record the medication administered on the inmate/patient's MAR [Medical Administration Record]. Plaintiff requests the MAR documents for the following dates as related to his medication management: [specified dates in 2006 and 2007]." (Dkt. No. 49-2, at 14-15.)

Defendants' Response: "Defendants object to this request on the grounds that it is compound, and requests a document that does not exist. Defendants are under no obligation to create a document providing the names of medical staff who administer medications. Without waiving these objections, and with regard to MAR documents, such documents, if they exist, are contained in Plaintiff's medical file." (Id. at 15.)

Contentions: Plaintiff insists that such documents exist independent of his medical file, as demonstrated by the fact that he was provided, from the litigation coordinator pursuant to a Public Records Request, his MAR documents for the dates March 6-18, 2007; plaintiff further asserts that this information was "fraudulent" because it contained the incorrect notation that "inmate refused medication." Plaintiff states that he filed a Form 602 challenging the authenticity of the information, which was granted in part -- the appeal found that the challenged notation "was an error since you were in the hospital," and "should have been entered as 'out to the hospital.'" Plaintiff contends that this process demonstrates the existence of the requested documents and that the information is "material to allegations in the complaint that the defendants Bal, Winton and Forshay either refused or failed to provide Plaintiff pain medications and cleaning supplies for the ailment to which he was suffering." (Dkt. No. 49-2, at 14-16, Exhs.5, 9-10.)

Defendants do not respond to plaintiff's contentions, apparently again relying on their general assertion that they have no responsive documents in their custody or control other than those contained in plaintiff's medical file.

Order and Rationale: Granted in part. Defendants shall, within 14 days of service of this order, conduct an appropriate search for these documents, serve a supplemental response to this request reflecting such search and, if available, shall produce the requested MARs for the specified dates.

The requested information is relevant for the reasons stated by plaintiff. That some of the requested information was provided by the litigation coordinator indicates that such documents are apparently maintained by defendants in the regular course of providing medical care. Defendants' failure presently to ...

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