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David Habig v. W. Mcallister

September 1, 2011

DAVID HABIG, PLAINTIFF,
v.
W. MCALLISTER, ET AL., DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a prisoner proceed without counsel in civil rights action brought under 42 U.S.C. § 1983. Defendants Bick, Andreason, Sinkovich, Weber and Dickinson have filed a motion to dismiss on the grounds that the complaint fails to state a claim upon which relief can be granted. Dckt. No. 13. For the reasons explained below, defendants' motion should be denied.

I. Factual Allegations

Plaintiff alleges that on June 13, 2008, he suffered a fracture of the head of the fifth metacarpal on his right hand. Dckt. No. 1 at 4-5. He was in extreme pain and could not move his hand, extend his fingers or rotate his wrist. Id. at 5, 9. Staff took him to the emergency care clinic. Id. The examining medical professionals, D. Sinclair, R.N. and Dr. M. Sabin, diagnosed a "possible" fracture. Id. at 5, 10.The only treatment plaintiff received at that time was an ace bandage. Id. at 11.

Plaintiff began experiencing "a tremendous amount of pain and discomfort." Id. at 11. He could not eat because of the pain, and as he is a diabetic, his blood sugar level was very high. Id. Two days after Sabin examined plaintiff, psych tech Gallardo saw him and observed that he was in extreme pain, refusing to eat, lethargic and incoherent. Id. at 12. After Gallardo recommended that plaintiff be seen by a doctor immediately, Sabin saw plaintiff again and ordered x-rays of plaintiff's hand. Id. at 12-13. The x-rays confirmed that plaintiff had a boxer fracture, but plaintiff was again only prescribed an ace bandage. Id. at 13.

On June 18, five days after plaintiff was injured, his pain became unbearable and prevented him from eating or sleeping, and he was readmitted to the emergency care clinic. Id. at 14. He requested stronger pain medication and an appointment with a specialist. Id. He was seen by Nurse Kinder and Dr. Kotarek, and was prescribed tylenol with codeine, ice packs and an ace bandage. Id. at 15. His hand was not immobilized. Id.

On June 18, Kotarek submitted a request for authorization for plaintiff to be examined by an off-site orthopedic specialist, stating that surgery was necessary to repair the fracture. Id. Senior medical administrative staff, including Dr. Bick and Dr. Andreason, did not approve the request until July 22, 2008. Id. at 16. Bick, the Chief Deputy Health Care Manager at CMF, is authorized to review and approve requests, but "refused to authorize immediate medical care and/or surgery to repair his fractured hand after being presented with evidence of plaintiff's injury including the diagnosis, x-rays and physician request for medical services." Id. In late August, 2008, Bick also denied plaintiff's internal appeal requesting proper medical care at the second level of review. Id. at 17. Plaintiff alleges that Andreason, the Chief Medical Officer for inpatient services at CMF, "was presented with knowledge of plaintiff's injury" and "was in a position . . . to approve the referral for surgery . . . but failed to do so." Id. Andreason also denied plaintiff's internal appeal at the first and second level of review. Id. at 17-18. In addition, after plaintiff filed an internal appeal on August 14, 2008, stating that he needed immediate and adequate medical care to repair his hand, Bick and Andreason, as part of the Medical Authorization Review committee, granted plaintiff an examination by an orthopedic surgeon at an off-site medical facility. Id. at 22, 23.

Plaintiff contends that Nurse Weber reviewed his internal appeal at the first level. Id. She had access to his medical file, and had the knowledge and was in the position to approve immediate medical care but failed to do so. Id.

Sinkovich reviewed plaintiff's appeal at the second level of review. Id. at 24. She had documentation of plaintiff's injury in his medical file and was in a position to correct the injury but did not. Id.

Dickinson, the CMF Warden, had the "ultimate authority to approve physician requests for medical services or inmate 602 appeals." Id. Plaintiff claims that Dickinson "was informed or should have been informed" of plaintiff's need for medical treatment. Id. at 25. He then alleges that she "had knowledge of plaintiff's injury and was in a position to correct the injury . . . but refused to do so." Id.

Plaintiff was eventually seen by an outside specialist, Shiflett, on October 10, 2008. Id. at 22. Shiflett's opinion was that too much time had passed to surgically repair the fracture. Id. at 23.

Plaintiff makes additional allegations against defendants who do not join in this motion to dismiss.

II. Legal Standards

In order to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

The complaint's factual allegations are accepted as true. Church of Scientology of Cal. v. Flynn, 744 F.2d 694, 696 (9th Cir. 1984). The court construes the pleading in the light most favorable to plaintiff and resolves all doubts in plaintiff's favor. Parks ...


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