United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT
DEFENDANT ADAIR'S MOTION FOR SUMMARY JUDGMENT BE GRANTED
(ECF NO. 224.)
S. AUSTIN UNITED STATES MAGISTRATE JUDGE
Dasenbrock (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis with this civil
rights action pursuant to 42 U.S.C. § 1983. Plaintiff
filed the Complaint commencing this action on November 14,
2011. (ECF No. 1.) This case now proceeds with
Plaintiff's Second Amended Complaint (“SAC”),
filed on September 8, 2015, against defendants Dr. A.
Enenmoh, Correctional Officer Perez-Hernandez, Nurse Page,
and Nurse Laura Adair, on Plaintiff's claims for
violation of the Eighth Amendment and related state-law
negligence. (ECF No. 140.)
April 14, 2017, defendant Nurse Laura Adair
(“Defendant”) filed a motion for summary
judgment. (ECF No. 224.) On May 30, 2017, Plaintiff
filed an opposition to the motion. (ECF No. 238.) On August
31, 2017, Defendant filed a reply to the opposition. (ECF No.
263.) The motion has been submitted upon the record without
oral argument pursuant to Local Rule 230(l), and for
the reasons that follow, Defendant's motion should be
SUMMARY JUDGMENT STANDARD
party may move for summary judgment, and the court shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a)
(quotation marks omitted); Washington Mut. Inc. v.
U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each
party's position, whether it be that a fact is disputed
or undisputed, must be supported by (1) citing to particular
parts of materials in the record, including but not limited
to depositions, documents, declarations, or discovery; or (2)
showing that the materials cited do not establish the
presence or absence of a genuine dispute or that the opposing
party cannot produce admissible evidence to support the fact.
Fed.R.Civ.P. 56(c)(1) (quotation marks omitted). The Court
may consider other materials in the record not cited to by
the parties, but it is not required to do so. Fed.R.Civ.P.
56(c)(3); Carmen v. San Francisco Unified Sch.
Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord
Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017
(9th Cir. 2010).
does not bear the burden of proof at trial and in moving for
summary judgment, she need only prove an absence of evidence
to support Plaintiff's case. In re Oracle Corp. Sec.
Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548 (1986)). If Defendant meets her initial burden,
the burden then shifts to Plaintiff “to designate
specific facts demonstrating the existence of genuine issues
for trial.” In re Oracle Corp., 627 F.3d at
387 (citing Celotex Corp., 477 U.S. at 323). This
requires /// Plaintiff to “show more than the mere
existence of a scintilla of evidence.” Id.
(citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252, 106 S.Ct. 2505 (1986)).
judging the evidence at the summary judgment stage, the court
may not make credibility determinations or weigh conflicting
evidence, Soremekun v. Thrifty Payless, Inc., 509
F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation
omitted), and it must draw all inferences in the light most
favorable to the nonmoving party and determine whether a
genuine issue of material fact precludes entry of judgment,
Comite de Jornaleros de Redondo Beach v. City of Redondo
Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation
marks and citation omitted). The court determines only
whether there is a genuine issue for trial. Thomas v.
Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (quotation
marks and citations omitted).
SUMMARY OF PLAINTIFF'S ALLEGATIONS AGAINST DEFENDANT
ADAIR IN THE SECOND AMENDED COMPLAINT
is a state prisoner presently incarcerated at Mule Creek
State Prison. During the events at issue in the SAC,
Plaintiff was incarcerated at the California Substance Abuse
Treatment Facility (SATF) in Corcoran, California, and
defendant Laura Adair was a Nurse at SATF. Defendant Adair
worked at E-Yard medical clinic on January 2, 2010, during
third watch at the A-L window.
in 2007, Plaintiff suffered from rectal bleeding from
internal hemorrhoids. Three and a half years later, on
December 30, 2009, hemorrhoidectomy surgery was performed,
but Plaintiff did not improve. He continued to bleed from the
January 2, 2010, three days after Plaintiff's
hemorrhoidectomy, defendants Adair and Perez were working at
the E yard medical clinic, at the A-L window. Plaintiff went
to the medical clinic because he had not had a bowel
movement. He approached the medical window and noticed his
name on the cold medication pick-up list. (SAC, ECF No. 140
at 46 ¶101.) Plaintiff knew that “doctors had
prescribed a large number of meds post surgery: laxatives,
pain meds, antibiotics, etc.” (Id. at
108:11-16.) Plaintiff approached the A-L window and
asked for his medications. Defendant Adair could not find
Plaintiff's medication and told Plaintiff he had no
medications. Plaintiff told her he had just had surgery and
pointed to his name on the list, saying he must have
medication. Defendant Adair became angry and ordered
Plaintiff away from the window. Plaintiff complained that he
was just out of surgery, in severe pain, had not had a bowel
movement in three days, was bleeding profusely from the
rectum, and wanted to “check in” to medical, go
to CTC, or go back to the hospital. (Id. at 19:11,
Perez then got involved, approached Plaintiff from inside
medical, talking to him outside, and angrily ordered
Plaintiff away from the window. Plaintiff again complained,
“but I'm bleeding from the rectum, ” and C/O
Perez “made a joke to go tell his block officers like
he had been violated” sexually, and again ordered
Plaintiff away from medical or he would receive a 115
disciplinary write up. (Id. at 19:13-15; 29:5-10.)
C/O Perez's remarks made all the prisoners in the
medication line, and the guard outside, laugh. Plaintiff
refused and said to both Adair and Perez, “I want to
check into medical.” (Id. at 29:11.) Plaintiff
alleges that Adair and Perez did not follow their own
regulations and protocols when Plaintiff requested medical
assistance. (Id. at 26:21-23.) No medical help was
given and Plaintiff had to spend the night in severe pain and
bleeding until the next day when he returned again to the
medical clinic, received the antibiotics dated the previous
day, and also received a one-use enema kit to temporarily
help with the constipation. (Id. at 29:18-23.) On
January 2, 2010, Plaintiff filed a 602 appeal concerning C/O
Perez's and defendant Adair's actions. (Id.
at 48 ¶126.) At the top of the 602, prison officials
stamped the words “non emergency”, even though
Plaintiff stated how dire his condition was. (Id.)
was not allowed to see any attending physician or qualified
medical staff even though, according to the CMO who responded
to Plaintiff's 602 appeal, one was available 24 hours a
day. (Id. at 49 ¶131.) “Urgent and
emergent response” section B states that inmates may at
any time express to any CDC employee their concerns regarding
a condition they believe warrants urgent or emergent care,
and medical staff is available 24 hours a day. (Id.
at 47-48 ¶121.)
of his blood loss, Plaintiff developed severe anemia with
resulting heart complications - sharp stabbing pains in the
chest, shortness of breath, dizziness, tiredness, weakness,
etc. - and Plaintiff had to be rushed to the Bakersfield
Hospital emergency room for life-saving blood transfusions.
(Id. at 24:9-13.)
on these allegations, Plaintiff brings claims for violation
of the Eighth Amendment and negligence.
Robin Dasenbrock (E92288) (“Dasenbrock”) is an
inmate in the custody of the California Department of
Corrections and Rehabilitation (CDCR), who is currently
incarcerated at Mule Creek State Prison in Ione, California.
(Plaintiff's change of address, ECF No. 179.) At all
times relevant to the allegations in the Second Amended
Complaint, Dasenbrock was incarcerated at SATF. (SAC, ECF No.
January 2, 2010, Dasenbrock entered the Facility E Medical
Clinic for a prescription. (Id. at 19.) Dasenbrock
was told by Adair that there were no prescriptions available
for him at the time of his visit and ordered him away from
the window. (Id.) During third watch on January 2,
2010, Adair was a nurse at the Facility E Medical Clinic.
(Adair Decl., ECF No. 224-4 ¶4.) As a nurse, Adair
cannot prescribe medication or diagnose further treatment.
(Id.) If an inmate believes he has not received
adequate medical treatment he must submit a CDCR Form 7362
healthcare request. (Id.) If the prescribed
medication was at the clinic, ready for distribution, and if
Dasenbrock was on the distribution list, he would have been
given the medication. (Id. ¶6.)
nursing log for Facility E Medical Clinic for January 2,
2010, indicates that Nurse Cush was brought in to distribute
KOP (“keep on person”) medications, which
includes the medication Dasenbrook was prescribed.
(Id. ¶7; Jones Decl., ECF No. 224-3 ¶2,
Exhibit A.) The log further reveals all medication
distribution during the third watch was halted due to an
emergency inmate lockdown procedure, and four boxes of KOP
medications were not distributed to patients as a result.
(Adair Decl. ¶8; Jones Decl. ¶2, Exhibit A.)
third watch on January 2, 2010, C/O Perez was a Health Care
Access Officer at the Facility E Medical Clinic. (Perez
Decl., ECF No. 208-6 ¶4.) As a Health Care Access
Officer, Perez-Hernandez was responsible for assisting
inmates with access to treatments and maintaining security
within the Medical Facility. (Id. ¶5.) As a
Health Care Access Officer, Perez-Hernandez monitored the
interactions and treatments of inmates by medical staff at
the treatment window. (Id.) When an inmate arrives
at the treatment window, common practice is for the Health
Care Access Officer to not interfere with the inmate's
interaction with staff. (Id. ¶7.) It is outside
the scope of a Health Care Officer's duties to advise the
inmate which prescriptions are available to him at any moment
in time. (Id.) Common practice for a Health Care
Officer is to order an inmate to leave the Medical Facility
at the conclusion of their visit with medical staff.
(Id. ¶8.) Perez-Hernandez ordered Dasenbrock to
leave the treatment window at the conclusion of his visit.
(SAC, ECF No. 140 at 19.) Perez-Hernandez instructed
Dasenbrock that he would receive an RVR if he did not leave
the facility. (Id.) Dasenbrock complied with the
order and left the medical facility. (Id.)
did not sustain any injury between January 2, 2010 and
February 3, 2010 as a result of the delay in his medications.
(Ugwueze Decl., ECF No. 208-5 ¶13.) Dasenbrock received
portions of his post-op prescription, including Tylenol No.
3, on January 5, 2010. (Id. ¶¶7(e), 11.)
As part of his post-op discharge on December 31, 2009,
Dasenbrock received Motrin, Tylenol No. 3, Cephalexin, and
Tucks briefs. (Id. ¶¶7(b)-(e).) Dasenbrock
made no complaints of aggravated post-op injury at a January
7, 2010 follow-up appointment. (Id. ¶7(f).)
Dasenbrock did not complain of exacerbated post-op issues at
a January 13, 2010 follow-up appointment. (Id.
¶7(g).) By February 3, 2010, Dasenbrock presented with
no complaints, minimal swelling to his rectal area, and
healed rectal tissue. (Id. ¶7(h).) The pain and
bleeding that Plaintiff suffered from January 2, 2010 on is
expected, given the type of surgery he had. (Id.
¶8.) Resolution of acute pain following a
hemorrhoidectomy may take several days to a few weeks.
(Id.) The process of healing the surgical wound and
modeling of the wound to restore tissues can take months.
(Id. ¶8.) Dasenbrock's treatment records
reflect that he recovered under the acceptable recovery time
for a hemorrhoidectomy. (Id. ¶¶8, 10, 13;
Jones Decl. ¶3, ECF No. 224-3, Exhibit B.)
Plaintiff Robin Dasenbrock (E92288), am an inmate in the
custody of the CDCR, currently incarcerated at Mule Creek
State Prison in Ione, California. (Notice of change of
address, ECF No. 179.) I was housed at SATF on Facility E on
January 2, 2010, during this incident involving defendant
Adair. (Plaintiff's Response (“P's
Resp.”), ECF No. 238 at 57 ¶3.)
January 2, 2010, I was in severe post-surgical pain,
excessively bleeding, constipated, and my painful bloody
bowel movements were not normal. (Plaintiff's Declaration
(“P's Decl.”), ECF No. 238 ¶2.) I also
had a serious infection at the site of the incision of my
hemorrhoidectomy. (Id.) My bleeding symptoms were
visible, including a loose stitch at the surgical site, as
well as bleeding from the rectum. (Id., Exh. 22, ECF
No. 238 at 90.) My symptoms were acute and required immediate
attention, per the hospital discharge orders. (Id.,
Exh, 2, ECF No. 238 at 70.)
January 2, 2010, I went to the Facility E medical clinic and
stood outside the facility at the medication pick-up window,
after standing in line with other prisoners who also were
waiting and receiving medications. (P's Response
¶4.) When an inmate goes to the medical clinic to pick
up his KOP meds, there are two lines to stand in, one for
inmates whose last names begin with A-L, and the second for
inmates whose last names begin with M-Z. (Id.
¶8.) Therefore, there are two nurses passing out
medications in two lines, and defendant Adair was working the
A-L window as stated in the nursing log book. (Id.,
Exh. 3, ECF No. 238 at 71; P's Decl. ¶3.)
defendant Adair on notice of my serious medical needs, as is
corroborated by declarant Burton. (P's Decl. ¶10;
Decl. of Shawn Burton (“Burton Decl.”), ECF No.
238 at 72 ¶¶4, 5.) Defendant Adair became angry and
told me to get away from the window, that I had no meds.
(P's Response ¶5; SAC at 28:24; Burton Decl.
¶4.) I pointed to my name on the medication list.
(P's Decl. ¶7.) My medication was at the clinic
awaiting delivery, yet defendant Adair refused to provide it
to me. (Id., Exh. 3, ECF No. 238 at 71.) My
medication was at the clinic ready for distribution, and I
was on the distribution list, yet I was not given my post
surgically prescribed medications. (P's Response
who have urgent needs for health care do not have to submit a
CDCR 7362 form. (P's Decl. ¶4.) The CDCR Protocol
says that a patient is supposed to be assessed for the
urgency of the complaint. (Id.; Exhs. 6-7, ECF No.
238 at 75-76.) “If urgent, the patient shall be taken
to an examination room for evaluation and a complete
assessment performed, including vital signs.”
(Id.) Defendant Adair has declared that her duties
were to provide medications or referrals for more thorough
review of symptoms for inmate patients who came to the
treatment window. (Adair Decl., ECF No. 224-4 ¶4.) Nurse
Protocols allow that “health care staff shall document
the evaluation on a CDCR form 7230 interdisciplinary progress
note or CDCR form 7403 Emergency Care flow sheet or RN
encounter sheet.” (P's Decl. ¶4., Exh. 26, ECF
No. 238 at 94.) If someone was unconscious, CDCR personnel
would still treat him, even without a signed form. (P's
Response ¶7.) Defendant Adair described her role as a
gatekeeper: “If an inmate requested medical assistance,
he would be referred to medical personnel capable of
performing an evaluation of his complaints.”
(Id. ¶6, Exh. Deft's Response to
Interrogatory #12, ECF No. 238 at 156.) Per the inmate
medical services program policies and procedures (2006)
volume 4, chapter 12, Urgent and emergent response, section
B, “inmate/patients may at any time express to any CDC
employee their concerns regarding a condition they believe
warrants Urgent or emergent care.” (P's Response
¶6.) CDCR Protocol states that Health care services
provide care to all inmate/patients which is necessary to
protect life, prevent significant illness, or to alleviate
significant pain, and all requests for health care shall be
assessed by health care staff to determine the priority.
(Id., Exh. 28; title 15 § 3350 (b)(1).)
routinely prescribe medications for inmates, be it Tylenol or
antifungal creams, etc., that do not require a doctor's
prescription. (P's Decl. ¶5.) CDCR Nurses also
diagnose further treatment. (Id. ¶6; P's
Response ¶6.) The Business and Professional Code 2038
states that whenever the words diagnose or diagnosis are used
in that chapter, they include any undertaking by any method,
device, or procedure whatsoever . . . to ascertain or
establish whether a person is suffering from any physical or
mental disorder [and] also include the taking of a
person's blood pressure and the use of mechanical devices
for the purpose of making a diagnosis and representing to
such person any conclusion regarding his or her physical or
mental condition. (Id.) Therefore, once defendant
Adair takes a patient's blood pressure to ascertain
whether the patient is suffering from any physical disorder,
and does so, she has just diagnosed the patient. (P's
Decl. ¶6.) CDCR nurses routinely take a person's
blood pressure and prescribe medications like Tylenol,
antibacterial creams, cold compresses, etc., to treat
conditions. (Id.) The Nurse's Protocol provides
that “[t]he term diagnosis implies the identification
of a patient's problem and the treatment that a nurse can
legally manage.” (P's Response ¶6, Exh. 7, ECF
No. 238 at 75 ¶V.)
nursing log book shows that defendant Adair was assigned to
the A-L window and only she was authorized to dispense
medications to me. (P's Decl. ¶8, Exh. 3, ECF No.
238 at 71; P's Response ¶8.) I do not believe that
at all times relevant to my allegations defendant Adair was a
Registered Nurse, because medical logs show that she signed
in as LVN (Licensed Vocational Nurse) Adair. (P's Decl.
¶11.) The nursing log book does not say that Nurse Cush
/// would have dispensed any medications. (P's Decl.
¶8.) The log book states, “Nurse Cush came to help
with cold meds, ” not to distribute KOP medications.
(P's Response ¶8.)
book does not state that medication distribution was halted
due to an emergency lockdown procedure. (P's Decl.
¶9.) Instead it states, “Controlled release of
inmates due to fog, ” followed by defendant Adair's
signature, which means the inmates are released a building at
a time for dinner and pill call due to fog conditions.
(Id., Exh. 3, ECF No. 238 at 71; P's Response
¶9.) During an emergency inmate lockdown, there is no
movement; inmates are locked down in their cells and fed
meals in their cells; and medications are also brought to the
buildings in that event, which did not happen. (P's
third watch on January 2, 2010, C/O Perez was a Health Care
Access Officer at the Facility E Medical Clinic. (Adair
Decl., ECF No. 224-4 ¶4.) As a Health Care Access
Officer, Perez-Hernandez was responsible for assisting
inmates with access to treatments, and maintaining security
within the Medical Facility. (Id.) When an inmate
arrives at the treatment window, common practice is for the
Health Care Access Officer to not interfere with the
inmate's interaction with staff. (Perez Decl., ECF No.
208-6 ¶7.) Defendant Perez-Hernandez was not assigned to
monitor the interactions and treatment of inmates by medical
staff at the treatment window. (P's Response ¶12.)
That was the job of the Guard posted outside the medical
clinic at the treatment window (Post #353750 E Yard S&E
C/O Aldrich, Jr., M.I.) (Id.) Defendant Perez took
it upon himself to intervene from within the medical clinic
where he was posted. (Id.) It is not outside the
scope of a health care officer's duties to advise an
inmate which prescriptions are available to him if the health
care officer's job is to monitor the interactions of
treatments of inmates by medical staff at the treatment
window, and that officer overhears an inmate saying he is
post surgery and on the KOP medication for pick up list, sees
the inmate point to his name on the KOP list and hears the
nurse refusing to provide prescribed medications.
(Id. ¶14.) It is not common practice for a
health care officer to order an inmate to leave the medical
facility at the conclusion of their visit with medical staff.
(Id.) Common practice is for medical staff to do so
only after the inmate has been appropriately
evaluated. (Id.; Exh. 12, ECF No. 238 at 80.)
Perez-Hernandez ordered Dasenbrock to leave the treatment
window at the conclusion of his visit. (SAC, ECF No. 140 at
19.) Perez-Hernandez instructed Dasenbrock that he would
receive an RVR if he did not leave the facility.
(Id.) Dasenbrock complied with the order and left
the medical facility. (Id.)
sustained injury between January 2, 2010, and February 3,
2010, as a result of the delay in receiving my medications,
as shown in the record. (P's Decl. ¶12; P's
Response ¶19.) I stated in my 602 appeal #10-10040 on
January 2, 2010, “I haven't had a good bowel
movement in 3 days and do still bleed from the rectum. . . I
simply tried to get my meds in the hopes the pain would be
alleviated or check into the hospital due to the rectal
bleeding.” (P's Decl. ¶12(a); P's Response
¶19(a); Exh. 9, ECF No. 238 at 77.) On January 4, 2010,
Dr. Metts felt that my pain was so serious he prescribed
Tylenol-3 (an opiate) for four days to relieve some of the
pain. (P's Decl. ¶12(a); P's Response
¶19(b); Exh. 21, ECF No. 238 at 89.) Plaintiff did not
receive Tylenol-3 until January 6, 2010, eight days after his
surgery. (P's Response ¶19(c); Exh. 18, ECF No. 238
at 86.) On January 13, 2010, Dr. Parvez reported that there
was a stitch hanging loose and “[p]atient still has
some occasional bleeding from the rectum, ” after I
complained of excessive bleeding and constipation. (P's
Decl. ¶12(a); P's Response ¶19(d); Exh. 22, ECF
No. 238 at 90.) Dr. Parvez also noted the
“patient's stool is still hard” (which was
two weeks after surgery) and prescribed Milk of Magnesia to
go along with the Colace I was already on. (Id.)
There was a stitch hanging loose. (Id.) On February
2, 2010, I submitted a CDCR 7362 form to SATF medical
documenting my complaints of shortness of breath and
dizziness (I was receiving chronic care for my heart).
(P's Decl. ¶13; P's Response ¶19(e); Exh.
16, ECF No. 238 at 84.) On September 3, 2010, Dr. Metts told
me that severe loss of blood can bring about these symptoms.
(Id.; Exh. 57, ECF No. 238 at 125.) On February 3,
2010, Dr. Parvez reported, “After a bowel movement
there is still an element of bleeding that happens.”
(P's Decl. ¶12(a); P's Response ¶19(f);
Exh. 53, ECF No. 238 at 121.) On December 31, 2009, I did not
receive Cephalexin, Tucks Briefs, Motrin, or Tylenol-3 as
part of my post-op discharge; I only received Motrin at the
hospital. (P's Response ECF No. 238 at 61 ¶21; Exhs.
70-71 at pp. 138-139.) All other medications were prescribed
on December 30, 2009 and expired at 2100 hours on December
30, 2009. (Id.) I complained about post-op injuries
at my January 7, 2010, follow-up appointment. (P's
Response ¶22.) The problem is it fell on deaf ears.
(Id.) I had two ducats scheduled for the same day,
and since I must fill out a refusal form and since ...