The opinion of the court was delivered by: Lucy H. Koh United States District Judge
United States District Court For the Northern District of California
ORDER DENYING MOTION TO DISMISS; DISMISSING DEFENDANTS KAHNG AND SAYLOR WITHOUT
Defendants N. Dayalan and C. Nyenke move to dismiss Plaintiff Robert Santana's Second Amended Complaint ("SAC") pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to 19 state a claim. The Court heard oral argument on February 17, 2011. Having considered the 20 submissions and arguments of the parties, the Court DENIES Defendants' motion to dismiss. The Court also dismisses Defendants Kahng and Saylor without prejudice based on Plaintiff's failure to serve them within the time required by Rule 4(m).
In January 2005, Plaintiff Robert Santana began serving a six-year sentence within the California State Prison system. SAC ¶ 14. At the time, Plaintiff suffered from diabetic 27 neuropathy, which affected his right foot and ankle. SAC ¶ 13. Specifically, Plaintiff had, and still 28 has, a condition known as Charcot Joint, in which the bones of his right ankle are unsupported. Id.
To provide support and regulate blood flow in his right ankle, Plaintiff wore a "camwalker," a 3 custom-designed orthotic device that fit his right foot and ankle. Id.
On January 31, 2005, Plaintiff was transferred from Monterey County Jail to North Kern State Prison. SAC ¶ 14. Upon arrival at North Kern, Plaintiff's camwalker was taken from him, 6 apparently because the metal contained in the camwalker presented a security threat. Id. At North Maclennan. SAC ¶ 15. Maclennan noted a marked deformity of Plaintiff's ankle and indicated 9 that follow-up X-rays should be considered, but Plaintiff received no further medical care while at 10 the North Kern facility. SAC ¶ 15.
Friederichs, who referred Plaintiff to the orthopedic clinic and stated that Plaintiff might benefit 14 from an orthotic shoe or ankle brace. SAC ¶¶ 16-17. After this initial consultation, Defendant ¶¶ 16-17. At the July 29 examination, Defendant Dayalan noted that an orthopedic specialist 17 would need to determine the proper device for Plaintiff's condition and informed Plaintiff that he 18 would have to wait six to nine months before his orthopedic needs were met. SAC ¶ 16. On August 30, 2005, Defendant Dayalan again noted that Plaintiff needed to be seen by an orthopedist 20 to prevent skin loss associated with his condition and to address his need for an orthotic brace.
Soledad, however, Plaintiff received no further care or follow-up from Dayalan's 23 recommendations. Id.
Kern, medical personnel took an X-ray of Plaintiff's foot, which was interpreted by radiologist T. Plaintiff was subsequently transferred to the Correctional Training Facility located in Soledad, California. SAC ¶ 16. Once at Soledad, Plaintiff was initially examined by Doctor Dayalan examined Plaintiff twice, first on July 29, 2005, and then on August 30, 2005. SAC SAC ¶ 17. He also noted that a podiatry referral for diabetic shoes was indicated. Id. While at 22
On April 13, 2006, Plaintiff was transferred to the California State Prison at Corcoran. SAC ¶ 19. The next day, Defendant Saylor examined Plaintiff and diagnosed him with diabetes.
Defendant Kahng confirmed that Plaintiff suffered from Charcot Joint, but concluded that Plaintiff Id. Thereafter, Plaintiff was examined three times by Defendant Kahng. SAC ¶ 20. In May 2006, did not need to be referred to a podiatrist at that time. Id. Nonetheless, on July 5, 2006, Plaintiff 2 saw David Smith, M.D., an orthopedic specialist. SAC ¶ 21. Dr. Smith found that Plaintiff had a Joint. Id. He referred Plaintiff to an orthotics clinic, and on August 11, 2006, Plaintiff was 5 assessed at the clinic and measured for a new camwalker. SAC ¶¶ 21-22. On September 19, 2006, 6 "completely destroyed right ankle joint related to his diabetes" and confirmed that it was a Charcot Plaintiff received the new camwalker. SAC ¶ 23. However, as the camwalker did not fit and 7 irritated Plaintiff's skin, it was of no benefit to him. Id. At that time, Plaintiff also discovered that 8 his foot had become widened and swollen in a way that prevented him from using the new 9 camwalker. SAC ¶ 24.
Defendant Kahng noted that Plaintiff exhibited a "Charcot collapse," and on April 12, 2007, Defendant Nyenke noted the onset of an ulcer on Plaintiff's right foot. Id. Plaintiff alleges that his 15 right foot continued to deteriorate in the absence of an appropriate camwalker, and his foot became 16 increasingly swollen and deformed. Id. Plaintiff was released from the California State Prison 17 system on July 19, 2007, and he sought private medical care on August 6, 2007. SAC ¶ 26. 18
Plaintiff alleges that his private medical provider informed him that the care he received in prison 19 was substandard and caused his foot and ankle to widen and swell to such an extent that his foot 20 required surgical repair. Id. In his opposition brief, Plaintiff states that he has recently learned that 21 his right foot will need to be amputated at the shin level.
named only the California Department of Corrections and Rehabilitation ("CDCR") as a
Defendant, and asserted claims of negligence, violations of the Americans with Disabilities Act, 26 and deliberate indifference to Plaintiff's medical needs in violation of Plaintiff's Eighth Plaintiff alleges that after he discovered that the new camwalker provided no benefit, he continued to seek further care for his swollen and deformed foot. SAC ¶ 25. While at ...