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Ivan Kilgore v. Richard Mandeville

May 3, 2011


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



Plaintiff is a state prisoner at California State Prison-Sacramento ("CSP-SAC").

Plaintiff is proceeding without counsel and in forma pauperis, in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action is premised on plaintiff's allegations that defendants provided constitutionally inadequate medical care in responding to plaintiff's complaints of sinus problems, thereby allegedly causing plaintiff unnecessary pain and suffering, and resulting in permanent nerve damage and disfigurement after surgical removal of an inverted sinus papilloma. Plaintiff is proceeding with an Amended Complaint (Dkt. No. 5) against the following defendants, all employed during the relevant period at CSP-SAC: Chief Medical Officer Karen Kelly; Dr. Jasdeep Bal; Dr. Gabriel Borges; Dr. James R. Wedell; Registered Nurse Nancy Dunne; Vocational Nurse Gloria Forshay; Vocational Nurse Marcus Winton; and Correctional Officer Gregory Hampton.

By order filed June 21, 2010, the undersigned resolved several discovery matters and extended the deadlines for filing discovery and dispositive motions. Those deadlines were vacated subject to the court's resolution of the following pending matters: (1) plaintiff's motion for discovery sanctions and to compel discovery (Dkt. No. 79); (2) plaintiff's motion for leave to file a Second Amended Complaint (Dkt. No. 84); (3) plaintiff's motion for injunctive relief (Dkt. No. 85); and (4) plaintiff's requests for discovery directed to third parties (Dkt. Nos. 87, 88).


A. Plaintiff's Motion for Discovery Sanctions and for Further Discovery Plaintiff moves for discovery sanctions, in the form of terminating sanctions, issue and/or evidence preclusion, and costs, based on his contention that defendants failed to comply with the June 21, 2010 order of this court. That order directed in pertinent part that: (1) defendants Kelly, Bal and Dunne each provide supplemental responses to plaintiff's Interrogatories, Set One, as construed by the court; and (2) defendants Kelly, Bal, Dunne, Hampton, Borges and Wedell each respond to plaintiff's further discovery requests, to be subsequently served on defendants as authorized by the court.

1. Plaintiff's Interrogatories, Set One (Defendants Bal, Kelly and Dunne)

In addressing plaintiff's first request to compel further answers to his Interrogatories, Set One, the court ruled in pertinent part that defendants Kelly, Bal and Dunne were each required to provide supplemental responses to plaintiff's Interrogatories, Set One, as construed by the court. (Dkt. No. 73.) The court twice extended the time for defendants to comply with the court's order, to July 30, 2010. (Dkt. Nos. 74, 77.)

On September 3, 2010, plaintiff filed the instant motion for sanctions, asserting that defendants had willfully violated the court's order in the following ways: (1) that defendant Kelly had failed to identify the individual members of CSP-SAC's "Specialty Clinic Staff" ("schedulers"), responsible for scheduling plaintiff's referrals to, and appointments with, U.C. Davis' Ear, Nose, Throat ("ENT") Clinic; and (2) that defendant Bal had failed to provide the name of the individual he contacted at the Specialty Clinic Office on September 26, 2006. Plaintiff argues in part that institutional policies require the designation of staff members to maintain a "Specialty Referral Tracking Log" that should indicate which members were responsible for contacting the ENT Clinic on behalf of plaintiff.

The court finds that the information sought by plaintiff is not encompassed by the subject discovery requests, and that the amended responses of defendants Kelly and Bal are adequate. Defendant Kelly was directed by the court to identify all "providers" (not "schedulers") of plaintiff's medical treatment in a detailed chronology,*fn1 and she did so. (See Dkt. No. 83-1 at 5-10.) Defendant Bal was directed, in pertinent part, to identify all "medical providers" involved in plaintiff's treatment, testing or referrals, "including Specialty Referral Staff members."*fn2 The court's inclusion of the latter category was intended to capture the identities of all medical providers, whether or not employed by CSP-SAC, not "schedulers." The portion of Defendant Bal's amended response with which plaintiff now takes issues provides (Dkt. No. 83-1 at 17-18 (emphasis added)):

With regard to Plaintiff's medical care, I ordered an axial and coronal CT scan (facial sheath protocol with contra[s]t) on September 22, 2006. The request was received on September 22, 2006, and approval for the procedure was noted by Nurse Dunne on October 3, 2006. On September 26, 2006, the U.S. Davis ENT clinic was awaiting a CT scan for evaluation of Plaintiff's nasal polyps/mass. I contacted the consult desk for status of the appointment, and was informed that they were awaiting a schedule from the U.C. Davis ENT clinic. I documented that staff would follow-up in thirty days.

Bal's general reference to the "consult desk" is consistent with the court's direction that Bal identify only "medical providers." Plaintiff's Eighth Amendment claims will not turn on the identity of non-treatment staff, but on the assessments and decisions of treatment staff over the passage of time. Plaintiff has or should have this information. Moreover, as the court previously ruled, plaintiff's specific request to obtain a printout of the "read only" program that may reveal "all specialty clinic request(s), etc. for the UC Davis ENT Clinic dating from April of 2006 to present time," was denied because the information is unavailable. (Dkt. No. 73 at 7-8.)

Plaintiff also asserts that defendant Bal failed to identify all of the administrative grievances that plaintiff filed while Bal was serving as plaintiff's primary care physician. (Dkt. No. 79 at 6-7.) Bal identified only the administrative grievance that required his direct response. (Dkt. No. 83-1 at 20.) The court notes that the requested information is likely not of the type routinely maintained by a medical provider, but should instead be available through the CSPSAC Litigation Office, and is likely already within plaintiff's possession. Accordingly, that portion of the court's prior order directing defendant Bal to "identify the ...

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