Miller v. California Department of Corrections & Rehabilitation CDCR

          ORDER OF SERVICE DOCKET NOS. 3, 11, 15, 20

          EDWARD M. CHEN United States District Judge.

         I. INTRODUCTION

         Charles Anderson Miller, an inmate at the Correctional Treatment Facility in Soledad, commenced this action by filing a complaint in Monterey County Superior Court. Defendant Posson then removed the action to federal court because the complaint's claims for violations of Mr. Miller's rights under the U.S. Constitution presented a federal question. The complaint is now before the Court for review under 28 U.S.C. § 1915A. Mr. Miller's application for service of a summons and complaint on certain defendants, application for appointment of an orthopedic expert, and motion for a temporary restraining order also are now before the court.

         II. BACKGROUND

         The complaint in this action is a very longwinded document -- 58 pages of single-spaced typing -- that provides an excessively detailed narrative of medical care providers' responses to Mr. Miller's knee problems for the last seven years. The narrative begins in 2009, and provides about 15 pages (single-spaced) of background material that could be summarized in a short paragraph, such as is provided in the next paragraph below. Notwithstanding the wordiness of it, the complaint does state some claims for relief. The complaint alleges the following:

         Mr. Miller hurt his right knee during a fall on March 29, 2009 when he was at an outside hospital for care for an unrelated problem. Docket No. 1-2 at 11. He thereafter had knee pain and eventually had arthroscopic knee surgery on August 9, 2012. Id.at 15. After the surgery, he continued to have knee pain. Doctors at the California State Prison at Corcoran, where Mr. Miller was then housed, eventually recommended a total knee replacement (TKR) surgery for Mr. Miller.^[1] Id.at 16-17. Dr. Moon informed Mr. Miller that Mr. Miller would receive TKR surgery as soon as it could be scheduled, and submitted a request for services (RFS) to begin the process for final approval of the TKR surgery. Id.at 18. On June 10, 2014, Dr. Beregovskaya, on behalf of Dr. Moon, allegedly completed a RFS for a TKR surgery by Dr. Alade that was approved at Corcoran on or about June 12 or 17, 2014. That form allegedly was emailed to the Utilization Management Registered Nurse (UMRN) at the Correctional Training Facility-Soledad. Id.

         As the RFS was being processed at Corcoran, Mr. Miller was being transferred to the Correctional Training Facility in Soledad (CTF-Soledad). Mr. Miller left Corcoran on June 10, 2014, and arrived at CTF-Soledad on June 12, 2014. Id. at 18. Although Mr. Miller's TKR surgery had been approved at Corcoran, the UMRN at CTF-Soledad took the form to Dr. Darrin Bright, who determined not to provide the surgery. Id. at 19.^[2] Dr. Bright, the UMRN, Dr. Beregovskaya and Dr. Zahed Ahmed then allegedly falsified and fabricated medical records to show that the RFS had been denied. Id.

         Dr. Ahmed failed and refused to cause the TKR surgery to be done for Mr. Miller. Dr. Bright and Dr. Posson also failed and refused to approve the TKR surgery for Mr. Miller.

         Dr. Ahmed improperly tapered Mr. Miller off MS Contin, an opioid pain medication, and failed to prescribe adequate medications to address Mr. Miller's withdrawal symptoms. Dr. Ahmed also later failed to provide an adequate replacement pain medication. See idat 26-30. Dr. Bright and Dr. Posson also made decisions that caused Mr. Miller to be taken off the MS Contin. Id. at 28.

         Nurse Robert Deluna and nurse N. Knight did not obtain help for Mr. Miller's complaints of increased pain and drug withdrawal symptoms in April 2015. Id. at 29-30. Later, in August 2015, nurse Deluna told Mr. Miller that he "didn't want to have anything to do with [Mr. Miller] and all of [his] 602's" and that nurse Deluna didn't want to see Mr. Miller again unless he was having a cardiac arrest. Id. at 41.

         Dr. Ahmed prescribed carbamazepine (also known as Tegretol) for pain, after Mr. Miller had informed his healthcare providers that he would not give informed consent for them to "prescribe antidepressants, antiseizure/anticonvulsant, and/or anti-psychotic/psychoactive drugs for 'off label' use to treat plaintiffs right knee pain." Id. at 33. Dr. Ahmed told Mr. Miller that carbamazepine was not such a drug and would have no appreciable side effects. Id. The drug is approved as an anticonvulsant, and Dr. Ahmed fraudulently induced Mr. Miller to take it by failing to disclose that the drug was an anticonvulsant. Id. Mr. Miller had chest pains and irregular heartbeat shortly after taking carbamazepine for the first time, and decided to never take it again. Id. at 33-34. When Mr. Miller wrote a letter of complaint to the doctors at the prison about the prescription of carbamazepine, his prescription was cancelled. Id. at 34. Nurse Knight made comments to the effect that Mr. Miller was creating problems by complaining so much and things would get worse if he continued to file inmate appeals and requests for service. Id. at 34.

         Dr. Schultz prepared a radiology report dated January 22, 2015, which was not "wholly incorrect, " but "almost certainly fashioned/created to omit the facts contained in the actual 12/10/2013 radiology report by Dr. Laufik." Id. at 23-24.

         Dr. Troup allegedly fabricated a report for x-rays that were ordered but not actually done on April 30, 2015. Id. at 32.

         Mr. Miller was sent to Dr. Williams for a consultation as to the appropriate care for his knee. Id. at 39. Dr. Williams saw Mr. Miller via a telemedicine link on July 30, 2015, and wrote a report the next day that had several inaccuracies. Dr. Williams opined that a TKR surgery was unnecessary because Mr. Miller had not exhausted all conservative treatment options, recommended physical therapy and a steroid injection, and directed that Mr. Miller be returned to him in 3-4 months. Id. at 40. The return visit did not occur.

         Dr. Ahmed then prepared an RFS for steroid injections for Mr. Miller's right knee but did not order physical therapy. Dr. Ahmed stated that he did not order physical therapy because all the physical therapists had done nothing but talk to Mr. Miller instead of providing hands-on therapy. Id. at 41. Mr. Miller received the steroid injection on September 2, 2015. Id. at 42.

         To date, Mr. Miller apparently has not received the TKR surgery he wants.

         III. DISCUSSION

         A. Review of Complaint

         A federal court must engage in a preliminary screening of any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review the Court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See Id. at § 1915A(b). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

         1. Claims Under Federal Law (Third and Seventh Causes of Action)

         To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). (Section 1988 of Title 42 of the United States Code, also cited by Mr. Miller, does not provide a substantive cause of action; it allows for attorney's fees.)

         Eighth Amendment:

         The Eighth Amendment's prohibition of cruel and unusual punishment requires that prison officials take reasonable measures for the safety and health of inmates. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). A prison official violates the Eighth Amendment only when two requirements are met: (1) the deprivation alleged is, objectively, sufficiently serious, and (2) the official is, subjectively, deliberately indifferent to the inmate's safety or health. See Id. at 834. Liberally construed, the seventh cause of action of the pro se complaint states cognizable claims against the following defendants for deliberate indifference to Mr. Miller's allegedly serious medical needs for a TKR surgery and adequate pain medication: Dr. Ahmed, Dr. Bright, Dr. Posson, Dr. Williams, and Doe # 1 (a/k/a the UMRN). Giving the complaint the liberal construction to which it is entitled, the complaint states a cognizable claim against Dr. Troup and Dr. Schultz, who allegedly created false or misleading x-ray reports used to support the denial of a TKR surgery.

         Re ...