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McCaw v. California Correctional Healthcare Services

United States District Court, S.D. California

June 26, 2019

MICHAEL McCAW, Plaintiff,
v.
CALIFORNIA CORRECTIONAL HEALTHCARE SERVICES, et al., Defendants.[1]

          REPORT AND RECOMMENDATION FOR ORDER: (1) GRANTING IN PART DEFENDANTS' MOTION TO DISMISS; AND (2) DENYING PLAINTIFF'S MOTION TO AMEND [ECF NOS. 19, 25]

          Hon. Jill L. Burkhardt United States Magistrate Judge

         Before the Court is Defendants' Motion to Dismiss Plaintiff Michael McCaw's complaint as to Defendants Ajmel Sangha and T. Kirby. (ECF No. 25.) Plaintiff brings this action under the Civil Rights Act, 42 U.S.C. § 1983, for the medical care he received while incarcerated at Centinela State Prison (“CEN”). (ECF No. 1.) The Court submits this Report and Recommendation to United States District Judge Cynthia Bashant pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1 of the Local Rules of Practice for the United States District Court for the Southern District of California. After a thorough review of the complaint, the parties' motion and opposition papers, and all supporting documents, and for the reasons discussed below, the Court RECOMMENDS that the District Court DENY Defendants' Motion to Dismiss as to Defendant Sangha and GRANT Defendants' Motion to Dismiss as to Defendant Kirby. (ECF No. 25.) The Court FURTHER RECOMMENDS that the District Court construe Plaintiff's June 13, 2018 filing (ECF No. 19) as a Motion to Amend and DENY it.

         I. PROCEDURAL BACKGROUND

         Plaintiff, a state prisoner proceeding pro se and in forma pauperis, initiated the present suit by filing a complaint in this Court on December 15, 2017. (ECF No. 1.) Plaintiff's complaint lists Dr. Ajmel Sangha (Chief Medical Officer), C. Lynch (Supervisor), T. Kirby (Health Care Appeals Coordinator), Dr. Harish Kumar Patel, and California Correctional Healthcare Services as defendants. (Id. at 2.)

         On December 15, 2017, Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP Motion”). (ECF No. 4.) Judge Bashant denied Plaintiff's IFP Motion but granted Plaintiff forty-five days to either pay the $400 civil filing fee or refile his IFP Motion with a certified copy of his trust fund account statement. (ECF No. 5 at 3.) On January 22, 2018, Plaintiff filed a certified copy of his trust fund account statement. (ECF No. 6.) Accordingly, on April 3, 2018, Judge Bashant granted Plaintiff's IFP Motion but dismissed Plaintiff's claims against California Correctional Healthcare Services and Dr. Patel. (ECF No. 9 at 2, 8.) In addition, Judge Bashant dismissed Plaintiff's supplemental claims (ECF No. 8) for failure to exhaust and denied Plaintiff's request for a preliminary injunction. (ECF No. 9 at 7, 12-13.) Plaintiff's claims against Defendants Lynch, Sangha, and Kirby remain. (Id. at 9.)

         On April 26, 2018, Plaintiff requested a status summary of the case and indicated an intent to amend his complaint. (ECF No. 12.) On April 26, 2018, the Court provided Plaintiff with a case status and set May 24, 2018, as the deadline for Plaintiff to file a motion to amend his complaint. (ECF No. 15.) On May 30, 2018, Plaintiff requested an extension of time to file a motion to amend his complaint. (ECF No. 17.) On June 4, 2018, the Court extended Plaintiff's deadline to file a motion to amend his complaint to June 30, 2018. (ECF No. 18.) Plaintiff filed a document titled “F.A.C. First Amended Complaint” on June 13, 2018. (ECF No. 19.) However, as discussed below, the Court recommends construing this filing as a motion to amend the complaint and not an amended complaint. See infra p. 30.

         On October 22, 2018, Defendants moved to dismiss Plaintiff's claims against Defendants Sangha and Kirby. (ECF No. 25.) Plaintiff filed an opposition to Defendants' Motion to Dismiss on December 5, 2018. (ECF No. 29.)

         II. FACTUAL BACKGROUND[2]

         Plaintiff alleges the following in his complaint: Plaintiff is a state inmate incarcerated at CEN in Imperial, California. (ECF No. 1 at 1.) Plaintiff suffers from interstitial cystitis, which causes him to experience frequent and irregular urination. (Id. at 22; see, e.g., id. at 43.) Plaintiff also suffers from sinus allergies. (Id. at 17-18, 22.) Plaintiff is a practicing Muslim and observes the Islamic month of Ramadan, which requires Plaintiff to fast during the daytime. (Id. at 8.) Therefore, during Ramadan, Plaintiff must take his prescription medications early in the morning or late at night. (Id. at 14.) In sum, Plaintiff alleges in his 118-page complaint that over the span of four years, medical staff at CEN provided him with delayed medical attention and interfered with the administration of his prescription medications by failing to accommodate his fast during Ramadan and wrongfully cancelling his medications.

         A. Transfer to CEN and Delay in Receiving Urodynamic Testing

         Prior to arriving at CEN, Plaintiff was incarcerated in Lancaster, CA, where he visited a urology specialist at the Antelope Valley Urology Medical Group on March 8, 2012. (Id. at 20, 76.) The specialist noted an obstruction in Plaintiff's prostate, so he prescribed Plaintiff with Flomax and recommended microwave therapy surgery. (Id.) Plaintiff was subsequently transferred to CEN, where medical staff denied his request for microwave therapy on April 25, 2012. (Id. at 20, 77.)

         On April 19, 2013, medical staff arranged for Plaintiff to see Dr. Fawcett, a urologist. (Id.) In his Telemedicine Report, Dr. Fawcett noted that Plaintiff had not undergone urodynamic testing, which could help determine whether Plaintiff's condition required surgery. (Id. at 78.)

         On December 23, 2014, Dr. Fawcett referred Plaintiff to Dr. Rochester for off-site urodynamic testing. (Id. at 20, 81.) Dr. Rochester's Office Visit Report indicates that Plaintiff reported urinating frequently-“20 times per day [in] small amounts.” (Id. at 81.) Dr. Rochester also noted that Plaintiff “ha[d] been treated with Flomax” and “denie[d] incontinence, painful urination, and blood in [his] urine.” (Id. at 82.) Dr. Rochester prescribed Plaintiff with Hydroxyzine and recommended that Plaintiff return for a visit in one month. (Id. at 20, 83.) However, CEN medical staff “cancelled” Plaintiff's Hydroxyzine prescription “without reason” after one month and “refused to send [Plaintiff] back to [Dr.] Rochester or any urologist [and] ignored [his] requests for treatment.” (Id. at 20.) On March 26, 2015, Plaintiff filed a Patient-Inmate Health Care Appeal requesting to see a urologist. (Id. at 84.)

         A Medical Progress Note dated October 15, 2015, provides that Plaintiff visited Dr. Von Lintig to request a single cell housing accommodation. (Id. at 102-03.) Plaintiff told Dr. Von Lintig that his “frequent urination and difficulty voiding cause[d] disturbance with his cellmate.” (Id.) Dr. Von Lintig noted that it was not clear to him why “[Plaintiff] ha[d] not had any further follow[-up] with Dr. Fawcett and did not undergo the recommended study.” (Id.) As it had been more than a year since Plaintiff had seen Dr. Fawcett, Dr. Von Lintig “wrote a new Request for Services (RFS) to refer [Plaintiff] back to see Dr. Fawcett for further evaluation and treatment recommendation.” (Id.)

         On November 5, 2015, Plaintiff had a telemedicine consultation with Dr. Fawcett. (Id. at 86.) Dr. Fawcett's notes indicate that Plaintiff “continue[d] to have the symptoms very much as he did last year” and “complain[ed] of difficulty urinating, hesitancy, strangury, and poor intermittent stream.” (Id.) Dr. Fawcett also noted that Plaintiff had not yet undergone urodynamic testing and was not taking any medications for his bladder condition. (Id.) Dr. Fawcett recommended that Plaintiff undergo urodynamic testing. (Id.)

         On November 6, 2015, Dr. Von Lintig filed a Health Care Services Physician Request for Services requesting urodynamic testing for Plaintiff. (Id. at 90.) Dr. Sangha approved the request on November 17, 2015, but a note from Dr. Sangha on January 26, 2018, indicates that “provider cancelled” and a telemedicine follow-up would be scheduled. (Id.)

         On January 28, 2016, Plaintiff had telemedicine consultation with Dr. Fawcett. (Id. at 110.) Dr. Fawcett noted that Plaintiff had not undergone urodynamic testing and it was “clear that he still need[ed] to have the testing done to help explain why he ha[d] this trouble urinating.” (Id.) Dr. Fawcett once again recommended “urodynamic testing with uroflowmetry, complex cystometrogram, and pressure flow study.” (Id.)

         On May 19, 2016, Plaintiff had another telemedicine consultation with Dr. Fawcett. (Id. at 24.) Dr. Fawcett noted that Plaintiff “did have the urodynamic testing done, ” but because Plaintiff “refused the rectal catheter, ” the testing was impaired “in terms of trying to determine what we wanted to know.” (Id.) Dr. Fawcett also noted that Dr. Rochester had previously suggested Plaintiff suffered from interstitial cystitis, but his symptoms had not included pain, which is “the primary symptom of interstitial cystitis.” (Id. at 24-25.) Dr. Fawcett's impression remained that Plaintiff instead suffered from a “bladder neck obstruction” that could be fixed with a “bladder neck incision.” (Id. at 24.) The usual result of the incision was an “improvement in urination and [the] ability to get off . . . medications.” (Id.) However, Plaintiff viewed surgery as a “last resort, ” so Dr. Fawcett “agreed to try medications for interstitial cystitis before deciding to do surgery.” (Id. at 24-25.) Dr. Fawcett prescribed Plaintiff with Hydroxyzine, Amitriptyline, and Elmiron to treat his possible interstitial cystitis. (Id. at 8, 25.) Dr. Sangha signed off on Dr. Fawcett's order for medication. (Id. at 26.)

         B. Administration of Prescription Medications During and After Ramadan 2016

         On June 21, 2016, nurse practitioner Pamela Velardi[3] (“Nurse Velardi”) “called [Plaintiff] into an examination room to explain” that his medications would be nurse-administered “three times a day.” (Id. at 8, 27.) Plaintiff told Nurse Velardi that he was observing Ramadan and “was required to fast from sun up to sun down, ” so he could not “take his medications during daylight hours.”[4] (Id. at 8.) In response, Nurse Velardi told Plaintiff that she “didn't have to accommodate a [M]uslim.” (Id.) Plaintiff requested that Nurse Velardi assign his medications to him “keep on person” (“KOP”), but Nurse Velardi refused. (Id.) However, a note from Nurse Velardi on Plaintiff's June 21, 2016 Medication Reconciliation - Active Medication form indicates that she agreed to postpone Plaintiff's treatment for two weeks, as Plaintiff was fasting. (Id. at 27.) On June 22, 2016, Nurse Velardi completed a Nonformulary Drug Request requesting Elmiron for Plaintiff that was approved by Dr. Sangha on June 28, 2016. (Id. at 41.) However, on July 6, 2016, Nurse Velardi “cancelled” Plaintiff's medications and “falsified [his] medical record by falsely claiming that [he had] refused his meds 3 days in a row.” (Id. at 9-10.) Plaintiff provides a Medication Management Referral form that indeed indicates that he refused to take his nurse-administered medications for three consecutive days, but the form is signed by C. Harris, not Nurse Velardi. (Id. at 28.)

         On September 7, 2016, Plaintiff met with Nurse Velardi and asked why she did not wait to begin his treatment until after Ramadan. (Id. at 9.) Nurse Velardi again told him that “she didn't have to accommodate a [M]uslim.” (Id.) Following the meeting, Nurse Velardi executed a Rule Violation Report, stating, inter alia, that she explained to Plaintiff that she “did not agree with [Dr. Fawcett's] recommendations.” (Id. at 30.) Also following the meeting, Plaintiff filed a Health Care Services Request Form and sent a letter to Dr. Sangha requesting “healthcare from a doctor other than [Velardi].” (Id. at 29.)

         On September 16, 2016, Dr. Sangha met with Plaintiff and “promised [Plaintiff] that his treatment would be restored immediately.” (Id. at 10.) On September 20, 2016, Plaintiff sent another letter to Dr. Sangha recapping their September 16 meeting and Plaintiff's complaints regarding Nurse Velardi. (Id. at 37.) Plaintiff also sent a complaint to California Correctional Health Care Services (“CCHCS”). (Id. at 38-39.)

         On September 26, 2016, Plaintiff was “called out to court” and was away from CEN until March 9, 2017.[5] (Id. at 13.) While he was away, Plaintiff “did not get the medications that Dr. Fawcett had prescribed [him] because [Dr.] Sangha had lied [and] hadn't restored [his] medications” as promised during the meeting. (Id.) On November 27, 2016, Plaintiff filed an Inmate Grievance Form with the County Jail requesting medications for interstitial cystitis and allergies because he was “in pain.” (Id. at 42.)

         On November 7, 2016, CCHCS responded to Plaintiff's September 20 complaint. (Id. at 74.) In its letter, CCHCS noted that Plaintiff's healthcare records showed that he had an August 19, 2016 telemedicine consultation with a urology specialist-presumably Dr. Fawcett-who noted that Plaintiff had not begun the three-drug treatment. (Id.) However, Dr. Fawcett's notes indicated that Plaintiff had told Dr. Fawcett that he was concerned about the drugs' “interference with [his] mental acuity, drowsiness and frequent court proceedings.” (Id.) Dr. Fawcett noted that he would “withhold medication now” and “reconsider medication once [Plaintiff's] legal issues [were] settled.” Dr. Fawcett recommended a follow-up appointment in four months. (Id.)

         Upon returning to CEN, Plaintiff filed a Health Care Services Request Form on March 15, 2017, requesting to see a doctor “about some issues having to do with urology, a urologist, and medications and treatments that were prescribed to [him].” (Id. at 45.) On April 7, 2017, Plaintiff had a telemedicine consultation with Dr. Fawcett. (Id. at 43). Dr. Fawcett noted that Plaintiff had not started the three-drug treatment. (Id.) Dr. Fawcett prescribed Plaintiff with Elmiron, Amitriptyline, and Cetirizine to “hopefully restore the bladder lining [while] diminishing pain” and recommended a follow-up consultation in three months. (Id.) Plaintiff states that “he finally got his medication” following the consultation with Dr. Fawcett. (See Id. at 13.)

         On April 18, 2017, Plaintiff signed a Refusal of Examination and/or Treatment form confirming that he refused to take the Amitriptyline prescribed by Dr. Fawcett for three consecutive days. (Id. at 13, 46.) Accordingly, his Amitriptyline prescription was “discontinued.” (Id. at 14.)

         C. Administration of Prescription Medications During Ramadan 2017

         When Ramadan began in 2017, [6] Plaintiff explained to the nurses administering his medications that Ramadan required him to fast during daylight hours. (Id.) Plaintiff acknowledges that “[w]hen your medications are ordered nurse administered, as they were for me, you['re] required to receive your medications from the nurse at the time appointed, and then take them in front of her.” (Id.) However, Plaintiff arranged with his “regular” nurses to give him his medication in a plastic bag, “per their judgment, ” so that he could take the medication at his convenience. (Id.) Plaintiff also provides his June 15, 2017 Medication Administration Record that shows various times medical staff administered Plaintiff's medications early or late based on “nursing judgment.” (Id. at 47.)

         This arrangement continued successfully until June 12, 2017, when an unfamiliar nurse was working at the CEN pharmacy and his supervisor, Defendant Lynch, refused to allow the nurse to give Plaintiff his medications in a bag. (Id.) Defendant Lynch told Plaintiff that she did not “have to accommodate a [M]uslim” and that “it was unlawful for [Plaintiff] to be given or take the medications at any other times except the times prescribed by a [CCHCS] doctor.” (Id. at 15.)

         That same day, Dr. Sangha sent an e-mail to Dr. Rohrdanz and Dr. Garcia stating that Plaintiff had “refused a non-sensitive medication for 50% of all non-sensitive medication orders in the last week OR [Plaintiff had] 3 days of refused in the last week” and asked that this be addressed in a follow-up visit. (Id. at 54.) Plaintiff states that Dr. Sangha lied in this e-mail, and he did not refuse his medications. (Id. at 16.) Plaintiff further states that Dr. Rohrdanz cancelled his medications “upon the prejudicial behest of Lynch.” (Id.)

         Despite this alleged cancellation, the “regular” nurses administered Plaintiff's medication “as usual without incident” on June 13 and 14. (Id. at 15.) However, on June 15, Defendant Lynch went to Plaintiff's cell and demanded that he sign a medication refusal form, but Plaintiff refused to sign. (Id.) A June 14 Refusal of Examination and/or Treatment form signed by Defendant Lynch provides that Plaintiff was “refusing only to take scheduled medications [(Cetirizine and Elmiron)] in the morning” and that he was “[w]illing to take [the medications] in the evening.” (Id. at 52.) When Plaintiff “left to get [his] meds that afternoon, ” the “regular” nurse told him that Defendant Lynch had cancelled his prescriptions, but the nurse “gave them to [him] anyway.” (Id. at 15.) A June 15 Medication Administration Record provides that Plaintiff received two doses of Elmiron and one dose of Cetirizine in the morning, per “nursing judgment, ” and one dose of Elmiron in the evening. (Id. at 47.)

         On June 16, 2017, a nurse at the clinic told Plaintiff that Defendant Lynch had “restored [his] Elmiron medication for the nighttime dose, ” but his morning dose was “cancelled until after [R]amadan, ” and his Cetirizine prescription “was cancelled forever.” (Id. at 16.) However, Plaintiff provides a Medication Administration Record that shows he received a morning dose of Elmiron and Cetirizine at 6:11 PDT that day. (Id. at 59.) Plaintiff filed a Health Care Service Request form regarding Lynch's alleged cancellation of his medications and refusal to accommodate him during Ramadan. (Id. at 58.)

         On June 18, 2017, Plaintiff wrote a letter to Dr. Sangha explaining his arrangement with his “regular” nurses to receive his medications before daylight, Defendant Lynch's failure to accommodate him during Ramadan, and her cancellation of his prescriptions. (Id. at 48.) Plaintiff complained that on June 17 “the computer showed that [Defendant] Lynch cancelled all medications on [June 15] [and] then reinstated them partially on [June 16]. But when [he] went to get [his] meds on [June 18], the computer showed [that Defendant] Lynch cancelled everything once again.” (Id. at 49.) Plaintiff also complained that Dr. Sangha's “staff determined that all [his] medication should be nurse administered.” (Id. at 48.) A stamp on the letter indicates that CEN's Health Care Services Division received the letter on June 22. (Id.)

         On June 23, 2017, Defendant Kirby, the CEN Healthcare Appeals Coordinator, responded to Plaintiff's letter to Dr. Sangha and outlined the proper process for Plaintiff to file a healthcare appeal. (Id. at 62.) Plaintiff states that Defendant Kirby's actions went “beyond deliberate indifference” because Defendant Kirby “had the medication, knew [Plaintiff] had a right to the medication, knew [Plaintiff] was suffering[7] without the medication[, and] refused to give it to [him].” (Id. at 17.)

         On June 20, 2017, Plaintiff sent a letter to CCHCS wherein he complained that “an annual protocol [had not] been set up . . . for nurse administered medications for Muslims during the month of [R]amadan.” (Id. at 17, 61.) On September 14, 2017, CCHCS responded to Plaintiff's letter, noting that Plaintiff's records indicated that:

on June 14, 2017, nursing staff documented [his] refusal to take medication in the morning due to Ramadan, but [he was willing] to take medication in the evening. On June 16, 2017, the primary care provider ordered [his] medication to be administered p.m. only. On June 26, 2017, the primary care provider submitted an order to resume [his] medications twice a day post-Ramadan.

(Id. at 63.) CCHCS explained that “[p]rocedures related to medication management . . . are outlined in the Inmate Medical Services Policies and Procedures, Volume 4, Chapter 11, Medication Management Policy” and that although Plaintiff's “personal preferences may be considered, ” they “do not control the professional judgment of [Plaintiff's] current healthcare providers.” (Id. at 63-64.) CCHCS also explained that “[r]eligious programs is not a health care services issue over which [CCHCS] has jurisdiction. As such, [Plaintiff's] concerns should be addressed through the appropriate custody channels at [CEN].” (Id. at 63.)

         A Medication Administration Record shows that on June 19, 2017, Plaintiff received his Elmiron prescription twice in the evening. (Id. at 59.) On June 20 through 25, Plaintiff received his Elmiron prescription once in the evening. (Id. at 60.)

         D. Administration of Prescription Medications After Ramadan 2017

         On July 27, 2017, Plaintiff filed a Health Care Services Request “detailing a need for allergy meds.” (Id. at 18, 65.) Plaintiff wrote that Defendant Lynch had discontinued his Cetirizine prescription, and he had “black eyes from itching so much.” (Id. at 65.) He requested that both his Cetirizine and Nasacort prescriptions be refilled. (Id.) When Plaintiff was “called to the clinic” he was told that he “would have to wait until [the] doctor got off vacation before [he] could get a prescription.” (Id. at 18.)

         On August 18, 2017, Plaintiff filed another Heath Care Services Request for a Nasacort prescription because he was “in complete agony” from allergies. (Id. at 18, 66.) On August 29, 2017, Plaintiff was “called in” by Nurse Wyatt regarding the doctor's continued absence. (Id. at 18.) Plaintiff told Nurse Wyatt that “they still had a 3[-]month supply of Cetirizine in the [drawer] for [him].” (Id.) Nurse Wyatt responded that CEN records showed that Plaintiff's Cetirizine had been “sent back to the pharmacy without explanation even though the physician (Fawcett) ordered that [Plaintiff] take them until [October 10, ] 2017.” (Id.) Nurse Wyatt then gave Plaintiff a pack of “24 pills that gave 4 hour [allergy] relief.” (Id. at 19.) These pills lasted Plaintiff four days. (Id.)

         On September 8, 2017, Plaintiff had a telemedicine consultation with Dr. Fawcett. (Id. at 68.) In his notes, Dr. Fawcett states:

[Plaintiff] is seen in follow[-]up of his interstitial cystitis. Once again, [Plaintiff] has been having great difficulty getting his medications over the interval. They have been stopped and started, interrupted. It is unclear to me why it is so difficult to get this man his medications. He has at least had the Elmiron for a period of maybe 6 weeks. In that short period of time, he was able to see some improvement in his urination. The pain is better by far. . . . Overall, he is happy to see some improvement. He is having no problems from the medications. He did choose to not take the amitriptyline . . ...

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