United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' RULE 12(b)(6) MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM BE GRANTED IN PART AND DENIED IN PART, WITH LEAVE TO AMEND
GARY S. AUSTIN, Magistrate Judge.
Darrell Wayne King ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on November 29, 2012. (Doc. 1.) This action proceeds on the initial Complaint against defendants Dr. John D. Chokatos and LVN Michele Ivy Stringer ("Defendants") for deliberate indifference to Plaintiff's medical needs, in violation of the Eighth Amendment. This case also proceeds on Plaintiff's state law claims for medical malpractice against defendant Chokatos and professional negligence against defendant Stringer.
On February 18, 2014, Defendants filed an unenumerated Rule 12(b) motion to dismiss on the ground that Plaintiff failed to exhaust the available administrative remedies before filing suit, and a Rule 12(b)(6) motion to dismiss for failure to state a claim on the grounds that Plaintiff failed to comply with California's Government Claims Act before filing suit, failure to state a claim for medical malpractice against defendant Chokatos, and failure to state a claim for professional negligence against defendant Stringer. (Doc. 16.) On April 21, 2014, Plaintiff filed an opposition to the motions. (Doc. 22.)
On April 23, 2014, in light of the Ninth Circuit's decision in Albino v. Baca , 747 F.3d 1162 (9th Cir. 2014), Defendants filed a request to convert the unenumerated Rule 12(b) portion of their motion to dismiss into a motion for summary judgment under Rule 56. (Doc. 23.) On May 8, 2014, the court issued an order denying Defendants' request to convert, and also denying the unenumerated Rule 12(b) portion of their motion to dismiss on procedural grounds, without prejudice. (Doc. 25.)
On June 9, 2014, Defendants filed a reply to Plaintiff's opposition to the Rule 12(b)(6) motion to dismiss. (Doc. 26.)
Defendants' Rule 12(b)(6) motion to dismiss is now before the court.
II. PLAINTIFF'S ALLEGATIONS
Plaintiff is an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) at Pleasant Valley State Prison (PVSP) in Coalinga, California. This case now proceeds under § 1983 and state tort law against defendants John Chokatos, M.D. and Michele Stringer, LVN, employees of the CDCR at PVSP, on Plaintiff's claims that he was denied adequate medical care in violation of the Eighth Amendment, and was subjected to medical malpractice and professional negligence. Plaintiff's factual allegations follow.
Plaintiff injured his back in 2008, suffering from "disc narrowing from the L3 through L15 vertebrae." (Complaint, Doc. 1 at 4 ¶9.) Over the course of the next three years, Plaintiff's back pain became progressively worse. Plaintiff was seen by several prison doctors, "each of whom prescribed opioid pain medication (Tramadol) to help manage the pain. This after non-steroidal antiinflammatory medicines (NSAID) became ineffective." (Id. at 4 ¶11.) Plaintiff's back pain eventually became so severe that he could only lie on his left side in a curled position in order to make the pain "somewhat bearable." (Id. at 4 ¶12.)
Plaintiff was seen by Dr. Chokatos on August 2, 2011. Dr. Chokatos reviewed x-rays from 2008 and July of 2011. Plaintiff alleges that despite his complaints of leg numbness and severe pain, he was not referred to an outside specialist. Plaintiff was again seen by Dr. Chokatos on August 2, 2011. Dr. Chokatos reviewed the x-ray reports and recommendations, but did not order an MRI or refer Plaintiff to an orthopedic or neurological specialist.
Plaintiff was seen on August 31, 2011, by Physician's Assistant (PA) J. Fortune in response to Plaintiff's complaints of severe pain and leg numbness. Fortune, after reviewing the same x-rays that Chokatos reviewed, ordered an MRI of Plaintiff's spine.
The MRI was performed on September 16, 2011, and revealed a L4-L5 disc herniation, causing moderate to severe spinal stenosis and compression of the left exiting nerve roots. Plaintiff was seen on September 23, 2011, by PA Randolph Wilson. Plaintiff's pain medication was renewed, and Plaintiff was issued a wheelchair and cane chrono for three months. Plaintiff was also referred to a neurologist.
The next day, Plaintiff approached defendant LVN Stringer to receive his medication. Plaintiff alleges that the following events occurred:
Stringer informed Plaintiff that his medication bag had not been refilled. At that point, Plaintiff expressed frustration with Stringer due to her failure - for the fourth time - to send timely refill orders to the pharmacy to that Plaintiff would not go without medication to manage his pain.
After Plaintiff finished expressing his frustration, Defendant Stringer became visibly irritated, and said, "you don't have to take any meds." She then left Plaintiff's housing unit.
From 9-24-11 to 9-26-11, Plaintiff did not receive pain medication. As a result, Plaintiff was in severe, debilitating pain. Such that, Plaintiff was forced to lie on his left side in a curled position in order to reduce the pain.
On September 28, 2011, Plaintiff was called to the clinic to see Defendant Chokatos. Upon arriving at the clinic, Chokatos said, "the LVN assigned to your building said that she saw you run up and down the stairs. I'm taking your wheelchair and your pain medication, because you don't need them." Plaintiff explained that this was not true and invited Chokatos to call Plaintiff's housing unit officers to confirm that Plaintiff's condition had rendered him unable to ambulate without assistance. However, Chokatos refused to do so, saying "the LVN has no reason to lie on you. I know Stringer (referring to Defendant Stringer)."
During Plaintiff's 9-28-11 visit to the clinic, Defendant Chokatos did not perform any physical examination. Furthermore, Chokatos reviewed Plaintiff's medical records and was aware of the 9-16-11 MRI of Plaintiff's lower back, which showed that he suffered from spinal stenosis and disc herniation, and nerve compression. Chokatos was also aware that PA Wilson had conducted a previous examination and determined that a wheelchair and pain medication was medically necessary.
In a report written by Defendant Chokatos on September 28, 2011, he acknowledged that no man with Plaintiff's condition would be able to run up and down a flight of stairs.
(Complaint at 6-8 ¶¶22-27.)
Plaintiff alleges that on October 19, 2011, he appeared before the Clinical Case Management Review Committee (CCMRC) regarding his continued complaints of pain. The CCMRC contacted Plaintiff's housing unit officers, who confirmed that Plaintiff did not run up and down a flight of stairs, and that he could not ambulate without assistance from others. The CCMRC recommended that Plaintiff be seen by a neurosurgeon "as soon as possible, " and that Plaintiff keep his wheelchair and remain on pain medication pending evaluation by the neurosurgeon. (Complaint at 8 ¶29.)
Plaintiff was seen by a neurosurgeon on October 28, 2011. Plaintiff was diagnosed with a left foot drop resulting from a ruptured L4-L5 disc with spinal stenosis. The neurosurgeon recommended that Plaintiff be sent to an outside hospital for urgent lower back surgery. Dr. Chokatos reviewed the ...