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Mario A. Williams v. Gary Swarthout

January 31, 2013

MARIO A. WILLIAMS, PLAINTIFF,
v.
GARY SWARTHOUT, ET AL.,*FN1 DEFENDANTS.



The opinion of the court was delivered by: Allison Claire United States Magistrate Judge

FINDINGS and RECOMMENDATIONS

Plaintiff is a state prisoner who is proceeding pro se and in forma pauperis on a complaint for relief pursuant to 42 U.S.C. § 1983. The action proceeds on plaintiff's third amended complaint against three prison officials at CSP-Solano, alleging that they violated his Eighth Amendment rights when they delayed scheduling his hand surgery. ECF No. 14. Plaintiff sues the defendants in their individual capacities, and seeks money damages.

Defendants have moved to dismiss plaintiff's third amended complaint, arguing that: (1) plaintiff fails to state a claim under the Eighth Amendment; (2) plaintiff has failed to allege sufficient facts of defendants' individual involvement; and (3) defendants are entitled to qualified immunity. ECF No. 21. Plaintiff has opposed the motion, and defendants have replied. ECF Nos. 23, 24. For the reasons given below, the undersigned recommends that the court deny the motion to dismiss.

Background

Plaintiff's Specific Factual Allegations Defendants are prison administrators responsible for approving, scheduling, and authorizing surgical procedures. ECF No. 14 at 2-3; 8, ¶ 15; 11, ¶ 25; ECF No. 23 at 5. Defendant Traquina is the Chief Medical Officer responsible for approving and authorizing surgical procedures. Id. Defendant Austin is the Chief Executive Officer of Health Care Services responsible for policy and procedures, and for planning and organizing the health care system. Id. Defendant Medford is a Medical Administrator responsible for the authorization of Removal for Medical Reasons Transportation. Id.

On May 21, 2009, plaintiff had spinal surgery. ECF No. 14, Third Amended Complaint ("TAC"), at 6, ¶ 2. On June 1, 2009, plaintiff submitted a "Health Care Services Request Form" complaining of pain and numbness in his right hand, including "pins and needle vibrations." Id. at 6, ¶ 3; 13. On June 3, 2009, plaintiff submitted a request form to defendants, complaining of pain in his right hand. Id. at 6, ¶ 4; 14. On that same day, plaintiff also complained to his primary care physician about the pain in his hand. Id. at 6, ¶ 4; 15.

On June 8, 2009, plaintiff saw his neurosurgeon, who diagnosed him with carpal tunnel syndrome and referred him to a hand specialist. Id. at 5-6, ¶¶ 6-7; 20. On June 25, 2009, Dr. Albert Mitchell at CSP-Solano conducted a "Nerve Conduction Study Upper Extremity" on plaintiff, with the results showing nerve damage to plaintiff's right arm and hand, and carpal tunnel syndrome. Id. at 7, ¶ 7; 23.

On August 26, 2009, plaintiff had a consultation with his neurosurgeon, who referred him to another hand surgeon. Id. at 8, ¶ 12; 28.

On September 10, 2009, plaintiff filed an inmate health care appeal to defendants complaining of pain and asking to see the hand surgeon. Id. at 8, ¶ 15; 60. The response, dated October 1, 2009 and signed by non-defendant M. de la Vega, RN, CF, reads that plaintiff's request was forwarded to the scheduling office and that "[a]s we are in the midst of changing orthopedic providers, you will be wait-listed. In the meantime, please follow up with your primary doctor for pain management." Id. at 8-9, ¶ 16; 60; ECF No. 23 at 3-4.

On October 2, 2009, plaintiff appealed the October 1, 2009 decision. See ECF No. 14 at 9, ¶ 17; 60. The first level appeal response, dated November 17, 2009 and signed by non-defendant B. McPherson, reads that plaintiff's referral to see an orthopedic hand surgeon had been approved and that he was on a waiting list to be scheduled within the next six months. Id. at 60, 62-63. The response also reads that CSP-Solano "just received a new contract for orthopedics." Id. at 63.

On November 20, 2009, plaintiff appealed the first level response. See ECF No. 14 at 9, ¶ 19; 61. The second level appeal response, dated December 28, 2009 and signed by non-defendant Y. Chen, M.D. on December 29, 2009, reads that plaintiff "can expect an appointment sometime on or before March 31, 2010. Please be advised that the Outside Scheduling Office is currently experiencing a backlog in appointments for orthopedic consultations. . . ." See ECF. No. 14 at 9-10, ¶20; 64-66.

On December 31, 2009, plaintiff appealed the second level response. See ECF No. 14 at 10, ¶ 21; 61. The Director's level decision, dated March 29, 2010 and signed by non-defendant J. Walker, reads that plaintiff's appeal was denied, and noted that plaintiff's "medical condition has been evaluated by licensed clinical staff and [plaintiff was] receiving treatment as deemed medically necessary." ECF No. 14 at 10, ¶ 22; 57-59.

On February 1, 2010, plaintiff saw orthopedic surgeon Doctor Casey, who advised plaintiff that plaintiff needed carpal tunnel release to correct the nerve damage to plaintiff's right hand. Id. at 10-11, ¶ 23; 40-41. On May 28, 2010, plaintiff had carpal tunnel release surgery performed. Id. at 11, ¶ 24; 50.

A review of the exhibits attached to plaintiff's complaint show that plaintiff filed Health Care Services Request Forms on June 1, 2009; June 3, 2009; July 26, 2009; August 2, 2009; August 15, 2009; August 29, 2009; September 7, 2009; September 23, 2009; October 6, 2009; October 13, 2009; October 22, 2009; November 13, 2009; November 17, 2009; November 28, 2009; January 9, 2010; February 12, 2010; February ...


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