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Daniel Wright v. Dorothy E. Swingle

June 29, 2011

DANIEL WRIGHT, PLAINTIFF,
v.
DOROTHY E. SWINGLE, ET AL., DEFENDANTS.



FINDINGS & RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. In the operative complaint filed August 24, 2009, plaintiff alleges that defendants routinely run out of his prescription medication, causing him pain and sleep loss, and defendants' medical directive to "crush and float" certain medication taken by plaintiff causes swelling in his throat and numbness in his mouth. Compl. at 3. This matter is before the court on defendants' motion for summary judgment. Plaintiff opposes the motion.

FACTS

The following facts are undisputed unless noted otherwise. At all times relevant to this action, plaintiff was a prisoner at High Desert State Prison ("HDSP"), Dorothy Swingle was the Chief Medical Officer at HDSP, and J. Nepomuceno was the Chief Physician and Surgeon at HDSP. See Mot. for Summ. J., Ex. A at 1-5; Swingle Decl., ¶ 1; Compl. at 2-3.

1. Delayed Receipt of Medication

Plaintiff has a chronic condition causing him pain in his lower back and neck. See Mot. for Summ. J., Ex. C at 1-38, 62; Opp'n, Ex. C at 1. While at HDSP, plaintiff has been prescribed multiple medications for the treatment of his pain, including Naproxen, Acetaminophen, and Amitryptiline. See Mot. for Summ. J., Ex. C at 178-82.

The Pharmacist in Chief, not named in this action, and his staff are responsible for ordering and stocking the prescription medications for inmates at HDSP. Swingle Decl., ¶ 3. Neither defendant supervises the pharmacist and neither is not involved in ordering medications for the prison. Id.

Since 2008, plaintiff filed numerous Health Care Services Request Forms in which he complained that he has not been receiving his prescribed medication in a timely manner. E.g., "I have not been [getting] my medication that I been [prescribed]," filed April 29, 2008, Opp'n, Ex. C at 7; "This is my second health care request form that I sent to get my medication. I would like to know what is the holdup on my medication. . . . ," filed June 21, 2008, id. at 9, ". . . I am still not [getting] my prescribed medication. This is a continuous [situation.] I get my medication sometimes and sometimes I don't get it. I would like to know why. . . . ," filed August 3, 2008, id. at 20; and "I have been waiting for two weeks for my medication. I would like to know what happ[ened] to it . . . ," filed August 22, 2008, id. at 21.

On April 30, 2009, plaintiff filed a 602 inmate appeal form*fn1 in which he complained that on April 15, 2009 the medical staff had run out of his pain medication and that "they keep letting my pain medication run out."*fn2 Mot. for Summ. J., Ex. A at 8. At the informal level of review, plaintiff was informed that his prescription for Amitriptyline had run out and had to be renewed by a nurse. Id. Dissatisfied, plaintiff appealed this response on the ground that it did not "address [plaintiff's] request to have this stop happening to [him] consistently." Id.

On June 22, 2009 at the first formal level of review, plaintiff's appeal was partially granted by Nepomuceno, who stated that medication refills need to be approved by the provider and filled by the pharmacy staff. Mot. for Summ. J., Ex. A at 8. Nepomuceno further stated that, despite plaintiff's allegation that this was an ongoing problem, there was no indication that plaintiff had missed any more than one dose of medication. Id. at 10.

Plaintiff appealed this decision, arguing that he did not receive his medication from April 30, 2008 to May 9, 2008. See Opp'n, Ex. E at 1. On July 16, 2008 at the second formal level of review, plaintiff's appeal was partially granted by N. Acquaviva, Health Care Manager. See id. Therein, plaintiff was informed that the Medication Administration Record (MAR) was incomplete during the complained-of time frame because plaintiff was admitted to the Correctional Treatment Center for medical issues during that time. Id. Plaintiff was also informed that the California Department of Corrections ("CDCR") "implemented a new computerized pharmacy system which should alleviate this issue." Id. There is no evidence that plaintiff appealed to the Director's Level of Review.

2. DOT, Crush and Float Policy

In response to his back pain, plaintiff was prescribed 50 mg of Amitriptyline, which was scheduled to be taken in the evenings. See Swingle Decl., ¶¶ 8-9. In 2008, defendants Swingle and Nepomuceno issued a memorandum ordering that certain controlled substances, including Amitriptyline*fn3 , be administered "DOT, Crush and Float with water"*fn4 in response to the increase in the diversion and misuse of controlled substances by inmates at HDSP. Swingle Decl., ¶¶ 4-5; Mot. for Summ. J., Ex. D. Every medication ordered to be crushed and floated was reviewed and approved by the pharmacist to ensure that the safety and efficacy are not significantly affected. Swingle Decl., ¶ 5. Amitriptyline used at HDSP is not a controlled release medication. Id. ¶ 10.

On November 23, 2008, plaintiff filed a 602 inmate appeal form complaining about the practice of crushing his medication and mixing them in water "causing the medication to stick to the bottom and sides of the cup," thereby preventing him from getting his full dose. Mot. for Summ. J., Ex. A at 11. On December 9, 2008 at the informal level of review, plaintiff was informed that "[p]er memorandum dated 9-3-08 it is policy and not optional to crush and float certain medications." Id. On December 12, 2008, plaintiff appealed this response on the ground that the policy effectively lowers his dosage and causes him pain. Id. On January 21, 2009 at the first formal level of review, plaintiff's appeal was denied by S. Martin, the Director of Nursing, who advised plaintiff that "HDSP policy states that any medication in the controlled substance category will be administered as, 'DOT, Crush and Float with water' until the order is changed by the provider." Id. at 13. Plaintiff was told that he could request more water from the nurse to swish in the cup to get the remainder of his medication or he could request to see the provider to inquire into the possibility of changing to another medication for the same treatment; there is no evidence plaintiff ever pursued that ...


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