Williams v. Kokor

          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 ...