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Alvarez v. Ko

United States District Court, S.D. California

March 24, 2017

VICENTE ARRAIGA ALVAREZ, Plaintiff,
v.
DR. S. KO, M.D., et al., Defendants.

          REPORT AND RECOMMENDATION FOR ORDER DENYING DEFENDANTS' MOTION TO DISMISS (DKT. NO. 24)

          Hon. Nita L. Stormes United States Magistrate Judge.

         Before the Court is Defendants Dr. S. Ko's, Dr. Connall McCabe's, Dr. A. Sangha's and Deputy Director J. Lewis' (collectively, “Defendants”) motion to dismiss Plaintiff Vicente Alvarez's Complaint under Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 24.) Plaintiff filed an opposition, and Defendants filed a reply.[1] (Dkt. Nos. 29, 32.) This matter was referred to the undersigned for a report and recommendation under Local Civil Rule 72.3.f and 28 U.S.C. § 636(b)(1)(B). For the reasons explained below, the Court RECOMMENDS that Defendants' motion be DENIED.

         I. Factual Allegations[2]

         a. Plaintiff Complains of Chest Pains, and Requests To See A Doctor

         Plaintiff alleges that sometime before October 24, 2014, and while housed at Corcoran State Prison, he submitted a medical slip to request medical assistance but the slip was ignored. (Id. at ¶ 12.) On October 24, 2014, Plaintiff submitted a second medical slip. On approximately October 25, 2014, Plaintiff saw and told a nurse he had been suffering from chest pains for a long time. The nurse refused to refer him to a doctor and gave him ibuprofen for pain. (Id. at ¶ 13.) About eight days later, on November 2, 2014, Plaintiff submitted an Emergency CDC 602 Health Care Appeal, Log #: COR HC 14057207 (hereafter “Log # 207”). (Id. at 65.)

         b. Plaintiff is Transferred to Centinela, and Sees a Nurse

         On November 18, 2014, Plaintiff transferred from Corcoran to Centinela State Prison. He told medical staff about his chest pains and requested to see a doctor. (Id. at ¶ 16.) About a month later, on December 17, 2014, Plaintiff saw a nurse and told the nurse his chest was in pain. The nurse conducted an echocardiogram (“EKG”), which “revealed an abnormal low heart rate.” (Id. at ¶¶ 18-19.)

         c. Corcoran Staff Review and Deny Plaintiff's 602 Appeal and His Request To See A Doctor (First Level)

         On December 18, 2014, S. Russell, a Health Care Appeals Coordinator, interviewed Plaintiff over the phone about the 602 Appeal, Log # 207, that Plaintiff previously submitted at Corcoran. Plaintiff told Russell about his continued chest pains, that he had not yet seen a doctor despite his requests, and asked to see a heart specialist. (Id. at ¶ 21.) Russell told Plaintiff that because he is no longer at Corcoran, they cannot prescribe medication or treatment. (Id. at ¶ 22.) On December 22, 2014, Dr. McCabe signed Plaintiff's 602 Appeal denial at the first level.

         On January 6, 2015, Plaintiff submitted his 602 Appeal for the next level of review. He argued his request to see a heart specialist should have been granted because his chest pains demonstrate a significant illness. (Id. at ¶ 24.) He stated his pains may cause a severe limitation of his abilities to perform daily activities or may cause premature death. (Id. at ¶ 25.)

         d. Plaintiff Suffers Severe Chest Pains, Is Taken to An Emergency Room, and Sees a Doctor

         On January 22, 2015, about three months from the date Plaintiff initially complained of chest pains and asked to see a doctor, Plaintiff suffered severe chest pains and went to the emergency room. Plaintiff saw Dr. S. Ko, and told him about his “excruciating chest problems” that had been ongoing, and that at times the pain was so unbearable he had to sit down. (Id. at ¶ 28.) Dr. Ko gave him a “verbal examination” but did not order an X-ray or diagnostic testing.[3] Dr. Ko diagnosed Plaintiff with “musculoskeletal problems” and told him to take a break from working out too much. (Id.) Plaintiff responded that working out could not be causing his pain because the pain is preventing him from working out. (Id.) Plaintiff asked for an X-ray or to see a heart specialist for further examination. (Id. at ¶ 31.) Dr. Ko told him no, and that he would prescribe Naproxen for the chest pain, and that if Plaintiff had an issue with his decision then he could file a 602 Appeal.[4] (Id. ¶ 33.)

         e. Dr. Ko Interviews Plaintiff About His 602 Appeal, Log # 207; and Drs. Sangha and Reilly Review and Deny His Appeal (Second Level)

         On February 4, 2015, Dr. Ko interviewed Plaintiff about his 602 Appeal, Log #207, at the second level of review. (Id. ¶ 35.) Plaintiff told Dr. Ko the Naproxen was not working, that a nurse previously told him his EKG showed an abnormal heart rate and that it was a sign his heart was not properly working, and Plaintiff again asked to see a heart specialist. (Id. ¶¶ 36, 37.) Dr. Ko responded with a hostile attitude that nothing was wrong with his heart, that the nurse did not know what he was doing, and that Plaintiff should rest and stop working out. (Id., ¶ 38.)

         Plaintiff asked if he needed to actually fall out from a heart attack to be referred to a heart specialist, and Dr. Ko nodded his head up and down to respond “yes.” (Id., ¶ 40.) Dr. Ko then told Plaintiff if he was not happy with the care he received, then he could seek medical care at his own expense, which would cost thousands of dollars. (Id. ¶ 41.) Plaintiff asserts he believes Dr. Ko deprived him of adequate care because he was financially motivated not to refer him to a specialist. (Id. ¶ 43.)

         On February 21, 2015, Drs. Sangha and Reilly partially granted and partially denied Plaintiff's appeal at the second level. The appeal was partially granted on grounds that when Plaintiff initially arrived at Centinela he received an EKG study. (Dkt. No. 1 at 57.) The appeal was denied to the extent Plaintiff requested to see a cardiologist or get a CT scan. (Id.) On March 3, 2015, Plaintiff resubmitted his 602 Appeal for the third level of review. (Id., ¶ 44.)

         f. Plaintiff Sees Dr. Ko In the Ad-Seg Clinic, And Again Requests to be Referred to a Heart Specialist

         On May 5, 2015, Plaintiff went to Ad-Seg Clinic to see a doctor for his chest pains; the Naproxen was not relieving his pain and instead gave him stomach cramps and sharp pain on his right side. (Id., ¶¶ 46-47.) Plaintiff saw Dr. Ko, and again asked to be referred to a heart specialist. Dr. Ko ignored Plaintiff's complaint and told him he could prescribe Tylenols to ease the stomach pain. (Id., ¶ 49.) Plaintiff finally warned Dr. Ko that he would pursue a civil rights complaint for deliberate indifference to his medical needs because a reasonable doctor would not treat him this way. (Id., ¶ 47.) Dr. Ko sarcastically responded that he would look forward to that day in court.[5] (Id., ¶ 48.)

         g. Deputy Director J. Lewis Reviews And Denies Plaintiff's 602 Appeal, Log #207 (Third Level)

         On June 1, 2015, Deputy Director Lewis denied Plaintiff's 602 Appeal, Log # 207. Plaintiff alleges Director Lewis denied the appeal despite knowing that Plaintiff was in pain and suffering, and despite knowing about Dr. Ko's deliberate ...


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