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Eldred Nicholson v. D. Medina

June 27, 2012



Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action brought under 42 U.S.C. § 1983.*fn1 He proceeds against defendants Medina and Shaw on Eighth Amendment claims of deliberate indifference to medical needs. Defendants move for summary judgment on the grounds that (1) there are no triable issues of material fact on plaintiff's claims of deliberate indifference, and (2) plaintiff failed to exhaust his administrative remedies pursuant to the Prison Litigation Reform Act against Shaw. As discussed below, the undersigned finds that there is no genuine dispute as to any material fact, and therefore recommends that defendants' motion be granted.

I. Background

Unless otherwise noted, the court finds that the following facts are either not disputed by the parties or, following the court's review of the evidence submitted, have been determined to be undisputed.

Medina is a licensed physician's assistant. Defs.' Mot. for Summ. J. ("Defs.' MSJ"), Stmt. of Undisp. Facts in Supp. Thereof ("DF") 1; Pl.'s Response to Defs.' Undisp. Facts, Dckt. No. 45, ("PF") 1.*fn2 Shaw is a registered nurse. DF 4.*fn3 While employed by CDCR at High Desert State Prison (HDSP), Medina and Shaw, along with other medical providers, treated plaintiff for an injury to his right wrist. DF 2*fn4 , 5, 12, 13*fn5 ; PF 12.

On June 24, 2009, plaintiff saw a registered nurse for right wrist swelling and pain as a result of an altercation that occurred a few hours earlier. DF 17; PF 17. The registered nurse wrote an order for plaintiff to receive an urgent x-ray. DF 18.*fn6 It was also ordered that plaintiff receive 800 milligrams of ibuprofen twice a day for seven days, an Ace wrap, and an ice pack. DF 19; PF 19. A nurse practitioner also ordered that plaintiff receive an urgent x-ray on the morning of June 25, 2009, and then to follow up with a doctor. DF 20; PF 20.

On June 25, 2009, Shaw saw plaintiff for his right wrist pain. DF 21; PF 21. According to Shaw, plaintiff informed him that he felt that the Ace wrap and ice he received the day before made his wrist feel better. DF 22. Shaw told plaintiff to keep his wrist iced and to continue to take ibuprofen. DF 23,*fn7 24. After treating plaintiff, Shaw asked the building staff to provide plaintiff with a bag of ice to help with the swelling of plaintiff's wrist. DF 25; PF 25. Shaw could not give plaintiff ice directly because the medical clinic does not have an ice machine. DF 26.*fn8 Plaintiff's ibuprofen prescription was also filled that day. DF 27; PF 27. At the time, plaintiff had an existing prescription for aspirin to treat high blood pressure. PF 28, 61. Plaintiff received aspirin once a day through November 18, 2009. DF 28. Aspirin and ibuprofen are nonsteroidal anti-inflammatories commonly used to treat pain and reduce inflammation. DF 29; PF 29.

On July 7, 2009, plaintiff's wrist was x-rayed. DF 30; PF 30. The doctor who interpreted the x-ray diagnosed a non-displaced wrist fracture. DF 31; PF 31. In a non-displaced fracture, the bone cracks with the broken pieces still in alignment. DF 33; PF 33. The injury is not visible from the outside, but shows up as a line or crack on an x-ray. DF 34; PF 34. Because plaintiff's bone was not displaced, it did not have to be reset and would heal on its own with time. DF 35, 36;*fn9 PF 35. A cast or splint can be placed on a non-displaced fracture to keep the wrist from moving while it heals, and to help decrease pain and prevent further damage to the fractured bone. DF 37; PF 37.

On July 14, 2009, Shaw treated plaintiff for plaintiff's complaint of wrist pain. DF 38; PF 38. Shaw noted that after Medina reviewed the x-ray of plaintiff's wrist, Medina ordered that a splint be applied for a suspected wrist fracture. DF 39; PF 39. Shaw applied a splint to plaintiff's right forearm immobilizing the wrist from the elbow, and ordered that plaintiff's wrist be checked weekly and be re-wrapped as required. DF 40; PF 40, 82.*fn10 Medina and Shaw also wrote an order for plaintiff to receive 800 milligrams of ibuprofen three times a day for 60 days. DF 41; PF 41. Medina and Shaw refilled plaintiff's prescription of ibuprofen because plaintiff had previously been prescribed ibuprofen, and because plaintiff was currently taking aspirin. DF 42; PF 42.

On July 16, 2009, Medina treated plaintiff and noted that plaintiff had decreased range of motion and pain in his wrist. DF 46; PF 46. Medina observed mild inflammation over plaintiff's wrist. DF 47; PF 47. Medina also spoke with a Dr. Omeere regarding plaintiff's treatment, and Dr. Omeere recommended six weeks of immobilization and x-rays at three and six weeks. DF 48; PF 48. Medina told plaintiff to alert staff if his symptoms worsened or failed to improve. DF 49; PF 49. Medina wrote an order for plaintiff to receive x-rays of his wrist on July 28, 2009 and August 25, 2009, and for plaintiff to return to the medical clinic on July 28, 2009 to assess how plaintiff's wrist was healing. DF 50; PF 50. Medina also completed a Medical Chrono for plaintiff to receive a wrist brace, and submitted an urgent request for plaintiff to see an orthopedic surgeon. DF 51; PF 51.

On July 22, 2009, Shaw treated plaintiff for his complaint of severe pain, and that ibuprofen was too strong for him and that he wanted something else. DF 52; PF 52. Shaw informed plaintiff that he would be receiving an x-ray for his wrist, and Shaw prescribed plaintiff 325 milligrams of Tylenol (acetaminophen) to take three times a day for 30 days. DF 53; PF 53.

On July 28, 2009, plaintiff was seen by an orthopedic surgeon. DF 54; PF 54. Plaintiff's wrist was x-rayed and the orthopedic surgeon diagnosed plaintiff's wrist as still fractured. DF 55; PF 55. The orthopedic surgeon also recommended that plaintiff be placed in a short-arm cast for a period of three to four weeks, and then to return for a follow up appointment and x-rays in one month. DF 56; PF 56. Plaintiff received a cast for his wrist on this day. PF 82.

On August 5, 2009, plaintiff received another x-ray of his wrist. DF 57; PF 57. The doctor who reviewed that x-ray found that plaintiff's wrist had not changed, and plaintiff still suffered from a non-displaced fracture. DF 58; PF 58.

On August 5, 2009, plaintiff submitted a written request to receive medication other than ibuprofen because he had an ulcer. DF 59.*fn11 As a result, Shaw scheduled plaintiff to be seen by Medina to determine if another medication could be prescribed. DF 60; PF 60. Ulcers can be caused by anti-inflammatory medicines such as aspirin, ibuprofen (Motrin), and naproxen. DF 44; PF 44. Medina and Shaw had no knowledge, nor was there any indication, of plaintiff having an ulcer when they prescribed him ibuprofen. DF 45. According to plaintiff, however, defendants did know that he was taking medications for stomach problems. PF 45.*fn12

On August 10, 2009, Medina discontinued plaintiff's prescription of ibuprofen because of plaintiff's complaint that he had an ulcer, and because plaintiff still had current prescriptions for Tylenol and aspirin. DF 61; PF 61.

On August 19, 2009, plaintiff was seen by another doctor who compared plaintiff's July 7, 2009 and August 5, 2009 x-rays. DF 62; PF 62. That doctor found that there was no ...

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