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Lenni Wilkes v. J. Nepomuceno

November 9, 2011

LENNI WILKES, PLAINTIFF,
v.
J. NEPOMUCENO, ET AL.,
DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. Before the court is plaintiff's amended complaint.

I. Procedural History

Plaintiff's original complaint was filed with the court on October 6, 2010, and named defendant Nepomuceno as the sole defendant. On October 21, 2010, the court dismissed the original complaint because plaintiff had failed to allege any facts concerning the involvement of defendant Nepomuceno in a violation of plaintiff's constitutional rights. The court granted plaintiff leave to file an amended complaint curing this deficiency and provided plaintiff with the legal standards governing a claim of inadequate medical care in violation of the Eighth Amendment. Plaintiff filed his amended complaint on November 29, 2010.

II. Plaintiff's Amended Complaint

In his amended complaint plaintiff names the following medical personnel at High Desert State Prison (HDSP) as defendants: Chief Medical Officer Swingle, Physician's Assistant Marciano, Dr. Lankford, and Chief Surgeon Dr. Nepomuceno. Therein, plaintiff alleges the following. On July 26, 2009, plaintiff was taken to the medical treatment center at HDSP where a visual diagnosis determined that he had suffered a bicep tendon tear while participating in a handball tournament. (Doc. No. 9 at 4 & 8.) Plaintiff's case was referred to the Medical Authorization Review (MAR) committee, then to the Health Care Review (HCR) committee. (Id. at 4.) Plaintiff was told that an M.R.I. would be taken. (Id.) Eighteen days later, plaintiff was transported to the Northern Nevada Medical Center (NNMC) where he was told by an orthopedist that because of California's budgetary constraints he "should be taken to the E.R. where adequate medical attention couldn't be denied." (Id. at 4 & 6.) Plaintiff asserts that instead of being taken to Redding Medical Center for treatment, he was returned to HDSP. (Id. at 4 & 6.) Two days later, plaintiff was taken to Banner Hospital in Susanville where an M.R.I. confirmed that he had a torn bicep. (Id.) Plaintiff concedes in his amended complaint that surgery was finally performed on his injury in mid-August 2009, but complains that donor tissue was used to reconnect the bicep tendon to the muscle. (Id. at 9.)

Plaintiff contends that the prison policy of treating older patients conservatively and the delay in his obtaining surgery has caused him uncertainty as to whether "the repair can withstand the force I can produce to curl . . . [a 50 pound] dumbbell." (Id. at 8.) Plaintiff believes that the conservative treatment he received has left him handicapped. (Id.)

Plaintiff has attached to his amended complaint a copy of the first level response to his inmate appeal concerning the treatment of his injury. (Id. at 9-10.) In that response the issue raised by plaintiff in his inmate grievance was described as follows:

Inmate Wilkes, on appeal you state on July 26, 2009 you suffered a left bicep tendon tear. You say on August 14, 2009, eighteen days later, you were taken to Reno and told there is a time limit on this sort of injury to ensure proper healing. You state you were told you were at that point then. You say surgery was performed in mid August 2009. You state you had donor tissue used to reconnect the tendon to the muscle and you are not comfortable with having someone else's body part inside of you. You state you shouldn't have to of had donor tissue as the only option to fix your arm when FNP Miller, PA-C Marciano and a doctor in Reno said you needed to be admitted to the hospital then, not weeks later. You are specifically requesting that CDCR investigate and take immediate disciplinary action against all those responsible in the delay of finding a surgeon and ignoring the advice of HDSP staff. You say you want an attempt to correct physical damage.

(Id. at 9.)

Plaintiff's inmate appeal was granted by defendant Dr. Nepomuceno, Chief Physician and Surgeon at HDSP with respect to plaintiff's request for an investigation of whether he was provided appropriate medical treatment. The response noted that plaintiff was interviewed by defendant Dr. Lankford, who also investigated plaintiff's allegations. (Id.) The response also addressed plaintiff's expressed concern about the type of treatment provided by prison officials based on the patient's age and the alleged harm due to the alleged delay in providing appropriate medical treatment in his case. In this regard, the response to plaintiff's inmate appeal stated:

You were told that according to Emergency Medicine resources, "Treatment is surgical repair of the tendon in the young, athletic patient. The older patient can be treated conservatively with immobilization." You fall into the latter category. Evidently Reno Orthopedics refused to accept you as a patient. You[r] tendon tear was repaired by orthopedics in Redding.

You stated you have some decreased strength in the left arm. You most likely would have decreased strength in your left arm regardless of whenever the surgery was completed. You were given a full explanation of the surgery and plan for donor tissue use at the time of your surgery and signed the surgery consent of [sic] your own free will . .

(Id.)

III. Screening ...


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