Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dasenbrock v. Enenmoh

United States District Court, E.D. California

November 15, 2017

ROBIN DASENBROCK, Plaintiff,
v.
A. ENENMOH, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT ADAIR'S MOTION FOR SUMMARY JUDGMENT BE GRANTED (ECF NO. 224.)

          GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         Robin 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.)

         On April 14, 2017, defendant Nurse Laura Adair (“Defendant”) filed a motion for summary judgment.[1] (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 granted.

         II. SUMMARY JUDGMENT STANDARD

         Any 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).

         Defendant 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)).

         In 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).

         III. SUMMARY OF PLAINTIFF'S ALLEGATIONS AGAINST DEFENDANT ADAIR IN THE SECOND AMENDED COMPLAINT (SAC)[2]

         Plaintiff 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.

         Beginning 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 rectum.

         On 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.)[3] 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, 28:26-29:1.)

         C/O 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.)

         Plaintiff 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.)

         Because 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.)

         Based on these allegations, Plaintiff brings claims for violation of the Eighth Amendment and negligence.

         IV.DEFENDANT'S FACTS[4]

         Plaintiff 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. 140.)

         On 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.)

         The 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.)

         During 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.)

         Dasenbrock 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.)

         V. PLAINTIFF'S RESPONSE[5]

         I, 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.)

         On 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.)

         On 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.)

         I put 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.[6]) 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 ¶7.)

         Inmates 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).)

         Nurses 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.)

         The 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.)

         The log 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 Response ¶9.)

         During 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.)

         I 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.