United States District Court, E.D. California
HORACE M. WILLIAMS, Plaintiff,
v.
WINFRED KOKOR M.D., et al, Defendants.
SECOND DISMISSAL ORDER
RALPH
R. BEISTLINE, UNITED STATES DISTRICT JUDGE
Plaintiff
Horace M. Williams, a state prisoner appearing pro
se and in forma pauperis, filed an Amended
Complaint under the Civil Rights Act, 28 U.S.C. § 1983,
against various employees of the California Department of
Corrections and Rehabilitation.[1]Williams is currently incarcerated
at the California Substance Abuse Treatment Facility
("SATF"), Corcoran, California, where the acts
underlying this action occurred.
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] The Court having set forth
the screening standards in dismissing the original Complaint,
they are not repeated herein.
II.
GRAVAMEN OF COMPLAINT
It
appears from the Complaint that, at a result of prior
surgery, Williams suffers from back problems at levels C5-C6
and is wheelchair bound. In his Amended Complaint Williams
alleges deliberate medical indifference and retaliation
claims against the Defendants while incarcerated at SATF
during the period beginning in March 2010 extending to some
point after August 2012 when Williams was transferred to
Pleasant Valley State Prison. Williams was transferred back
to SATF in August 2013 where he was housed through the date
the Complaint was filed. Although pleaded as a single claim
and difficult to follow, the Amended Complaint appears to
plead several separate claims.
First
Claim. Dr. Nyenke and RN Powell refused to timely
schedule Williams for a new arrival appointment or renew
Williams medications as a result of which Williams was
without his medication for a period of 27 days. It does not
appear from the record that Williams exhausted this claim.
Furthermore, it appears more likely than not that the acts
complained of occurred prior to June 1, 2010, and are barred
by the limitations period.[3]
Second
Claim. Dr. Ugweeze failed to provide proper oversight of
facility medical personnel.
Third
Claim. During the period March through July 2011 the
medication prescribed by Dr. Nyenke (Naproxen) did not
alleviate Williams' pain and Dr. Nyenke refused to renew
Williams' prescription for Hydroxyzine. Williams further
alleges that Dr. Nyenke refused to follow the recommendation
of one outside physician that surgery was necessary on his
lumbar area and another outside physician that Williams
receive an epidural.
Fourth
Claim. Appears to allege that in December 2011 RN
Merritt deprived Williams of appropriate pain medication
ostensibly to intimidate Williams from filing his medical
care complaints.
Fifth
Claim. In or about December 2011 Williams was again
examined by an outside neurosurgeon who recommended a
different pain medication. Williams alleges that Dr. Nyenke,
Dr. Ugwueeze, and RN Merritt deliberately ignored this
recommendation in retaliation for Williams having exercised
his First Amendment right to petition for redress of his
grievances.
Sixth
Claim. Alleges that, although Williams was suffering
serious side effects from its use, PA Ogbuehi refused to
discontinue a prescription for Methadone in retaliation for
the complaints Williams had filed against PA Ogbuehi's
co-workers.
Seventh
Claim. In March 2012 Dr. Rosenblatt indifferently
ignored Williams' requests that Gabapentin be dispensed
resulting in Williams suffering extreme pain for a period of
19 days.
Eighth
Claim. Although somewhat unclear, this claim involves an
incident on September 9, 2013, where Williams fell while
transferring from his wheelchair to the toilet injuring his
lower back, tail-bone, and back of his head. He claims that
during the period from the time of his accident through
September 25, 2013, RN Powell deliberately delayed providing
Williams appropriate treatment for his injuries.
Ninth
Claim. This claim, spanning the period January through
February 2015, alleges that, although Dr. Kokor approved that
Williams be issued an egg crate mattress and cervical pillow,
RN Whiting deliberately prolonged or failed to order those
items.
Williams
seeks declaratory and injunctive relief, and compensatory and
punitive damages in various amounts from each of the
Defendants.
III.
ADMINISTRATIVE APPEALS
Attached
as exhibits to the First Amended Complaint are ten
administrative appeals processed at SATF in each of which
Williams was denied relief. To the extent relevant to the
issues presented by the Amended Complaint the holdings are
summarized below.
SATF-33-11-11351
(November 21, 2011). Brought against Dr. Nyenke for
neglecting to renew hydroxyzine and artificial tears and
continued dispensation of naproxen.
INSTITUTION
DECISION:
The
Second Level Response (SLR) stated your appeal was partially
granted indicating:
• On March 12, 201 l, you were sent to an outside
facility for evaluation of chest pain and to rule out acute
coronary syndrome (ACS), you were discharged the next day and
returned to California Substance Abuse Treatment Facility
(SATF);
• Discharge notes indicated your angiogram was within
normal limits and your cardiac troponin levels were negative;
• On March 15, 2011, you were seen and examined by your
Primary Care Provider (PCP), your plan of care was developed
and reviewed with you and you were prescribed Tylenol and
naproxen;
• There was no indication that you informed the PCP that
taking naproxen caused you to experience chest pain nor was
there record of a Health Care Services Request Forms (CDC
7362) to inform staff of this problem;
• On March 29, 2011, you were see for your follow up
appointment with the PCP, you did not indicate chest pains
from naproxen;
• On May 23, 2011, you submitted a CDC 7362, stating you
were experiencing severe back, neck, shoulder and arm pain,
an ear infection, you requested hydroxyzine, nunisolide and
eye drops, and that you needed alternate pain medication
because naproxen gave you chest pain (first document in your
unit health record [UHR]);
• On May 25, 2011, you were seen by the Registered Nurse
(RN), who contacted the PCP and obtained an order for
hydroxyzine, and artificial tears; • On May 30, 2011,
your naproxen was discontinued; and
• During your interview your neck, arms, and legs were
assessed and you agreed there were no significant findings
that would warrant photos for these areas.
BASIS
FOR DIRECTOR'S LEVEL DECISION:
At the
Director's Level of Review (DLR), submitted on August 14,
2011, you restate your issues and concerns as noted above.
At the
DLR, your appeal file and documents obtained from your UHR
were reviewed and revealed the following:
• It was determined your care related to your appeal
issues was adequate, as you received medical treatment,
medication was provided and your concerns were appropriately
addressed at the FLR and SLR;
• For your request to be ordered pain medication,
hydroxyzine, and artificial tears, according to your
medication profile you are prescribed the following
medications, amlopipine, aspirin, cetirizine HCL, nunisolide
spray, gabapentin, hydroxyzine, lisinopril, salsalate as
prescribed by your PCP;
• For your request to discontinue naproxen, this
medication was discontinued on May 30, 2011; and
• For your request to have photos been taken of your
neck, arms, back, and legs, during your assessment with your
PCP you agreed there were no significant findings that would
warrant photos for these areas. Please be advised medications
are prescribed on the basis of your current medical needs.
However, it is your responsibility to communicate with the
doctor regarding the effect of the pain medication
prescribed. If you feel the medication is not effective or is
giving your side effects, you are encouraged to submit a CDCR
7362 to discuss the medication with your PCP.[4]
SATF S.C. 11001200 (July 9, 2012). Staff Complaint
brought against Dr. Nyenke, NP Merrit, RN Powell, and LVN
Gonzales for allegedly collaborating and conspiring to
retaliate for submitting the appeal against Dr. Nyenke.
INSTITUTION'S DECISION:
The institution partially granted your appeal indicating your
appeal was processed as a staff complaint wherein a
Confidential Inquiry was completed. Your allegations were
related as stated in your appeal document. You were
interviewed on February 13, 2012, by Chief Physician and
Surgeon Ugwueze and were advised your health care issues
would not be addressed in this appeal, but were split with
appeal number SATF HC 11053921. A confidential inquiry was
conducted and LVN Gonzales, RN Powell, NP Merrit and Dr.
Nyenke were interviewed. Conclusions indicated there was no
violation of California Department of Corrections and
Rehabilitation (CDCR) policy.
BASIS FOR DIRECTOR'S LEVEL
DECISION:
Your appeal was deemed a staff complaint by the
institution's hiring authority. The Director's Level
Examiner reviewed the Confidential Inquiry, supporting
documents and your appeal documents. Complaints against staff
are taken seriously and al I efforts are made to ensure these
matters are thoroughly researched and responded to in
accordance with governing laws, rules and policies. Any
report generated or action taken regarding a staff complaint
is confidential. As such, no matters related to staff shall
be shared with other staff, inmates or the public.
Your complaint was referred for a Staff Complaint Inquiry.
The supervisor's inquiry into the matter concluded staff
did not violate CDCR policy. Review of the inquiry documents
and all supporting documents demonstrated you were
interviewed on February 13, 2012, Dr. Nyenke was interviewed
on January 13, 2012, NP Merritt was interviewed on January 4,
2012, RN Powell was interviewed on January 4, 2012, and LVN
Gonzales was interviewed on January 20, 2012. Your Electronic
Unified Health Record was reviewed. The content of the
inquiry supported the conclusions determined. You were
informed in your interview with Dr. Ugwueze that your health
care requests would not be addressed in this appeal as this
appeal is a staff complaint. The first initial of R.N. Powell
is "K" and of LVN Gonzales is "L." It is
noted you added additional issues at the Director's Level
of Review, specifically your allegation that Dr. Nyenke and
NP Merritt conspired to change your pain medications as part
of their function in the Pain Management Committee. These
issues will not be addressed, as you have not provided
evidence that you attempted to address these issues at the
institution, per the California Code of Regulations (CCR),
Title 15, Section 3084.2.[5]
SATF HC 12054498 (November 5, 2012). Staff Complaint
against the pharmacy supervisor alleging that the auto refill
for Williams' gabapentin prescription was not refilled.
INSTITUTION
DECISION:
The
institution's response stated your appeal was partially
granted and indicated the following:
• You were provided the pharmacy supervisor's name
at the First Level of Review.
• Due to an administrative error, the auto refill of
gabapentin was not ''turned on." The error was
corrected and your prescription for gabapentin was renewed
and issued to you starting on March 12, 2012.
• Monetary compensation was beyond the scope of the
appeals process.
BASIS
FOR DIRECTOR'S LEVEL DECISION:
At the Director's Level of Review (DLR), received on July
16, 2012, you restate your issues and concerns as noted
above.
At the DLR, your appeal file and documents obtained from your
Unit Health Record (UHR) were reviewed by licensed clinical
staff and revealed the following:
Documentation is supportive of you receiving ongoing Primary
Care Provider (PCP) evaluation and treatment to October 31,
2012, as detemined medically indicated for chronic neck/back
pain including historical and current order for pain
medications including gabapentin. As described in the
institution's response, you were provided the name of the
pharmacy supervisor, and the March 2012, Medication
Administration Record shows gabapentin was resumed on March
12, 2012. Institution staff acknowledged an administrative
error caused the lapse and the error was
corrected.[6]
SATF
HC 12054962 (November 15, 2012). Alleges that PA Ogbuehi
misrepresented himself as a medical doctor and made
misrepresentations in the medical report.
INSTITUTION
DECISION:
The
institution's response stated your appeal was partially
granted and indicated the following:
• There was no medical indication for you to meet with
Dr. Uguweze.
• Your case was reviewed by the Pain Management
Committee, Medical Authorization Review (MAR) Committee, who
recommended and prescribed medication appropriate for your
needs; however, your continued refusal to take the
medications ...