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Hicks v. Hamkar

United States District Court, E.D. California

July 20, 2017

MICHAEL J. HICKS, Plaintiff,
v.
BEHROZ HAMKAR, et al., Defendants.

          ORDER

         Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge under 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

         I. October 6, 2016 Findings and Recommendations

         On October 6, 2016, the magistrate judge filed findings and recommendations, which were served on plaintiff and which contained notice to plaintiff that any objections to the findings and recommendations were to be filed within fourteen days. ECF No. 92. Plaintiff has filed objections to the findings and recommendations, ECF No. 95, and defendants have filed a reply, ECF No. 97.

         In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having reviewed the file, for the reasons set forth in this order the court adopts the findings and recommendations to the extent consistent with this order, otherwise declines to adopt them, and refers the matter back to the assigned magistrate judge for further proceedings consistent with this order.

         This action is currently proceeding on plaintiff's Second Amended Complaint (SAC), filed September 14, 2015. ECF No. 51. Plaintiff brings claims against six defendants, contending they have violated plaintiff's rights under the Eighth Amendment by acting with deliberate indifference to his need for adequate medical care for his diagnosed degenerative disc disease and bone spurring in his lower neck. Plaintiff also brings state law claims under Article 1, section 17 of the California Constitution and California Government Code section 845.6. Defendants have moved to dismiss. ECF No. 62. The magistrate judge recommends dismissal of plaintiff's Eighth Amendment claims and his state constitutional claims with prejudice and that the court decline to exercise supplemental jurisdiction over the remaining state law claims.

         Defendant Venes

         Specifically, the magistrate judge recommends dismissal of defendant Dr. Venes with prejudice on the ground that, although plaintiff has alleged that defendant Venes was aware of plaintiff's need for trigger point injections as recommended by a prison chronic care committee and refused to administer those injections or provide an alternative way for plaintiff to receive them, plaintiff has not alleged facts to show the delay caused by defendant Venes' acts and omissions was harmful. See ECF No. 92 at 7-9. The magistrate judge relies on an allegation in the Second Amended Complaint that trigger point injections given to plaintiff on November 8, 2012, four months after the last set of injections, “were ‘not effective' in addressing his neck pain.” ECF No. 92 at 9 (quoting ECF No. 51 at 12). Plaintiff objects to this finding, contending it construes his allegations and claim against defendant Venes too narrowly. See ECF No. 95 at 9-10. Plaintiff's objections are accompanied by exhibits from his medical record, which state that “[t]rigger point injections do give relief for about 45 days”, ECF No. 95 at 18, and show that plaintiff was given effective trigger point injections on January 17, 2013, as plaintiff asserts in his objections. ECF No. 95 at 10, 23. The latter exhibit contradicts an allegation in the Second Amended Complaint, that plaintiff's last trigger point injection prior to his March 2013 transfer to California State Prison-Sacramento (CSP-Sacramento) was the November 8, 2012 injection, see ECF No. 51 at 13, but is supported by Exhibit G to the Second Amended Complaint, which states that plaintiff received trigger point injections on January 17, 2013. ECF No. 51 at 60. In his objections, plaintiff also notes that he continued to request trigger point injections once he arrived at CSP-Sacramento. ECF No. 95 at 7. This mirrors an allegation in the Second Amended Complaint. See ECF No. 51 at 13.

         After review of the record, the court cannot agree with the magistrate judge's finding that plaintiff's allegations are insufficient to support a finding that the delay caused by defendant Venes' actions was not harmful. Plaintiff alleges that he told defendant Venes in July 2012 that trigger point injections prescribed in March 2012 were “overdue”, that plaintiff was suffering from “chronic sever [sic] neck and shoulder pain”, and that he did not receive further injections until November 2012. ECF No. 51 at 9-12. In view of plaintiff's objections, the court finds a number of differing inferences might be drawn about why the November 2012 injections were ineffective, none of which are conclusive on the current record. Furthermore, plaintiff's allegations concerning the effectiveness of other trigger point injections he received and his continued efforts to get the injections support an inference that treatment with trigger point injections was overall an effective modality even if one set of injections in November 2012 was not effective.

         In the reply, defendants contend plaintiff may not use his objections “to amend or supplement the operative” Second Amended Complaint. ECF No. 97 at 1-2. Defendants' contention is without merit. The issue is what inferences may be drawn concerning whether the delay between trigger point injections was harmful, and the allegations of the Second Amended Complaint are sufficient to support an inference that the delay may have been harmful.

         For the foregoing reasons, the court finds plaintiff has adequately alleged that delay caused by defendant Venes' denial of access to trigger point injections was harmful and has stated a cognizable Eighth Amendment claim against defendant Venes.

         Defendant Hamkar

         The court also disagrees with the magistrate judge's findings that plaintiff's allegations against defendant Hamkar, a doctor, “merely suggest a difference of opinion regarding his medication and treatment.” ECF No. 92 at 9. Plaintiff alleges that he saw defendant Hamkar in July 2013. ECF No. 92 at 4. At that point, plaintiff's diagnosis was two years old and he had been prescribed trigger point injections and physical therapy by other physicians in the California Prison System. Id. at 3-4. He had been treated with over-the-counter medications and Tylenol with Codeine, and he had informed Dr. Venes that naproxen was ineffective and risky given that plaintiff also has Hepatitis C. Id. at 3. Plaintiff had received four sessions of physical therapy, requested by another physician in April 2013, two months before plaintiff saw defendant Hamkar. Plaintiff alleges that defendant Hamkar told him physical therapy “was not feasible” because plaintiff was housed in a psychiatric services unit and therefore “he would ‘just have to live with it, '” and also denied referral to a chronic pain care committee, for a medical transfer, and for trigger point injections, and treated plaintiff with only a double dose of naproxen for pain relief. ECF No. 92 at 4. Deliberate indifference is shown if physicians choose a “course of treatment” that is “medically unacceptable under the circumstances” and the course of treatment was chosen “in conscious disregard of an excessive risk to plaintiff's health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (citing, inter alia, Farmer v. Brennan, 511 U.S. 825, __, 114 S.Ct. 1970, 1978-79 (1994)). The allegations concerning defendant Hamkar's response to plaintiff give rise to an inference of deliberate indifference.

         Defendants Yeboah, Sayre and Zamora

         The magistrate judge also recommends dismissal with prejudice of plaintiff's claims against defendants Yeboah, Sayre and Zamora, each of whom were allegedly involved in plaintiff's administrative appeal concerning Dr. Venes' treatment. The magistrate judge cites a number of reasons to support the recommendation, including the fact that plaintiff has failed to state a claim that defendant Venes violated his Eighth Amendment rights, so no constitutional violation can be attributed to these two defendants through their participation in the denial of plaintiff's grievance. An ...


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