United States District Court, N.D. California
ORDER OF SERVICE DOCKET NOS. 3, 11, 15, 20
M. CHEN United States District Judge.
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
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:
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. 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.
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. 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.
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.
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.
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.
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.
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.
Troup allegedly fabricated a report for x-rays that were
ordered but not actually done on April 30, 2015. Id.
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.
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.
date, Mr. Miller apparently has not received the TKR surgery
Review of Complaint
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).
Claims Under Federal Law (Third and Seventh Causes of
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
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.