Barrios v. Tate

          DISMISSAL ORDER

          RALPH R. BEISTLINE, UNITED STATES DISTRICT JUDGE

         Jerardo Barrios, a California state prisoner appearing pro se and in forma pauperis, brings this civil rights action under 42 U.S.C. § 1983 against Harold Tate, M.D.^[1] Barrios’ claim arises out of his incarceration in the Special Housing Unit (“SHU”) at the California Correctional Institution-Tehachapi (“CCI”). Barrios is currently incarcerated at the Calipatria State Prison.

         I. SCREENING REQUIREMENT

         This Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity.^[2] This Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” that “fails to state a claim on which relief may be granted, ” or that “seeks monetary relief against a defendant who is immune from such relief.”^[3] Likewise, a prisoner must exhaust all administrative remedies as may be available, ^[4] irrespective of whether those administrative remedies provide for monetary relief.^[5]

         In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”^[6] “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations, ’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”^[7] Failure to state a claim under § 1915A incorporates the familiar standard applied in Federal Rule of Civil Procedure 12(b)(6), including the rule that complaints filed by pro se prisoners are to be liberally construed, affording the prisoner the benefit of any doubt, and dismissal should be granted only where it appears beyond doubt that the plaintiff can plead no facts in support of his claim that would entitle him or her to relief.^[8]This requires the presentation of factual allegations sufficient to state a plausible claim for relief.^[9] “[A] complaint [that] pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops short of the line between possibility and plausibility of entitlement to relief.’”^[10] Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff’s legal conclusions as true.^[11] “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”^[12]

         II. GRAVAMEN OF COMPLAINT

         July 2, 2014. While housed in the SHU at CCI Barrios injured his right knee, ankle, and foot in a fall.

         July 10, 2014: Barrios submitted a health care request.

         July 11, 2014. Dr. Tate ordered x-rays of the ankle and foot, but no x-rays were taken of the knee. The x-rays were reviewed and found “no acute fracture or dislocation.”^[13]At the request of Barrios examined Barrios’ knee. Dr. Tate then prescribed ibuprofen for the pain and sent Barrios back to his housing unit.

         July 15, 2014. Dr. Tate diagnosed Barrios with: (1) possible ligament derangement of right foot; and (2) right knee strain. In the Progress Notes Dr. Tate noted:

Extremities: moderate swelling of the right foot and lower Leg without heat; there is moderate bruising of the right great toe and along the medial right foot from the right toe through the mid· foot; flexion of the right knee is from 15° of flexion to 100° of flexion; the right knee could not be adequately examined because the inmate could /would not relax his thigh muscles; there was no obvious right knee effusion or ligamentous laxity 1111 Jul '14: X·ray pf the right foot shows no acute fractures

         Dr. Tate prescribed:

1. Repeat x-ray of right foot

2. Continue naproxen 250 mg BIO

3. Inmate counseled to elevate right foot as much as possible while in the cell

4. Will cast the foot if no improvement this week

5. Lower bunk 6. RTC 7 to 10 days^[14]

         July 24, 2014. Dr. Tate diagnosed Barrios with: (1) possible ligament derangement of right foot; (2) right knee strain; and (3) tinea pedis mocassin type. Dr. Tate noted:

Extremities: there is mild-to-moderate erythema of the right lower extremity from the knee downwards without heat; mild tinea pedis mocassin type is present; mild edema is present over the dorsal right foot halfway up the leg Right Knee: patient tenses the knee flexors and extensors so that range of motion cannot be determined; Patellar Grinding, Lachman's and McMurrray's Tests are all negative; there is moderate laxity of the femoro-tibial and femoro-fibular ligaments Right Ankle: there is no heat in the joint; Drawer Test is negative; ankle flexion, extension, inversion and eversion are all WNL X-ray of the right foot and ankle are without bony abnormality

         Dr. Tate prescribed:

1. A 7243 RFS is submitted for MRI of the right ankle (lnterQual consulted)

2. Add ranitidine 150 mg BID for GI protection

3. Continue elevation and non-weight-bearing as much as possible,

4. Clotrimazole 1% Topical Cream BID

5. RTC 15 to 30 days^[15]

         August 13, 2014. Dr. Tate diagnosed: (1) possible ligament derangement of the right foot; (2) right knee strain; and (3) tinea pedis mocassin type. Dr. Tate noted:

Extremities: there is mild erythema of the right lower extremity from the knee downwards without heat; mild tinea pedis mocassin type is present; slight edema is present over the dorsal right foot halfway up the leg Right Knee: patient tenses the knee extensors so that range of motion cannot be determined; Patellar Grinding, Lachman's and McMurrray's Tests are all negative; there is mild laxity of the femoro-tibial ligament Right Ankle: there is no. heat in the joint; Drawer Test is negative; ankle flexion, extension, inversion and eversion are all WNL 11 Jul '14 & 15 Jul '14: X·rays of the right foot and ankle are without bony abnormality

         In Part A Dr. Tate stated:

1. Appellant's request to be assigned to another doctor is beyond the scope of a 602 Appeal and is DENIED

2. Appellant's request for an MRI of both the right foot and ankle is medically unnecessary since the femoro· fibular ligament appears to have markedly improved; an MRI of the right ankle was requested by RFS on 24 Jul '14 and thus Appellant's request for an MRI is PARTIALLY GRANTED

3. Appellant's request for stronger pain medication is GRANTED in that the dose of naproxen will be doubled from 250 mg to 500 mg BID

4. Possible ligament derangement of the right foot

5. Right Knee Strain

6 Tinea Pedis Mocassin Type

         Dr. Tate concluded:

1. This Appeal is PARTIALLY GRANTED at the First Level of Review

2. Await processing of the 7243 RFS

3. Continue elevation and non·weight·bearing as much as possible

4. Refer Appellant for Physical Therapy for strengthening and gait training

5. RTC 30 to 45 days^[16]

         August 14, 2014. Dr. Baniga responded to Barrios CDCR-602HC Inmate/Parolee Health Care Appeal at the first level.

The First Level Appeal, received on 7/31/2014 stated that you have seen the doctor regarding pain in your knee, ankle, and foot. You stated that the doctor focused on your foot only and your knee and ankle are still in severe pain. You also stated you were never called for a follow up appointment and your knee and ankle are still in excruciating pain. You requested to be assigned to a different Doctor, to have an MRI of your knee and ankle, and to be prescribed stronger pain medication.

During the interview you attended on 08/13/2014, your Primary Care Provider (PCP) thoroughly reviewed your case history and performed an assessment of your medical condition. Based on the results, your PCP noted that inmates are assigned their provider based on CDC number and housing in accordance with policy; as such, your request for a different provider is denied. It is noted that an MRI of both your knee and ankle are medically unnecessary however an MRI for your ankle was requested by referral on 07/24/2014; partially granting your request. Your prescription for naproxen will be doubled for 250 mg to 500 mg; granting your request for stronger pain medication.^[17]

         August 22, 2014. Barrios’ knee was x-rayed, which x-ray found:

FINDINGS:

Fragmentation Involves the medial tibial plateau consistent with old tibial ...