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Jackson v. M/ Dator

United States District Court, E.D. California

September 4, 2019

CURTUS VAUGH JACKSON, JR., Plaintiff,
v.
M. DATOR, Defendant.

          FINDINGS AND RECOMMENDATIONS

          DENNIS M. COTA, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983 alleging Defendant, Dator, violated his eighth amendment right to medical care. Pending before the Court is Defendant's motion for summary judgment (ECF No. 117) arguing that Plaintiff failed to exhaust his administrative remedies, the undisputed facts demonstrate Defendant was not deliberately indifferent to Plaintiff's serious medical needs, and Defendant Dator is protected by qualifiedly immune. For the reasons discussed below, this Court finds Defendant is entitled to judgment in his favor as a matter of law.

         I. PLAINTIFF'S ALLEGATIONS

         This action proceeds on Plaintiff's verified complaint against Defendant M. Dator. (ECF No. 1).[1] Plaintiff alleges that Defendant was deliberately indifferent to his medical needs when he failed to change Plaintiff's dressings, failed to treat Plaintiff's medical needs related to Plaintiff's shoulder “popping out”, and failed to treat Plaintiff's withdrawal symptoms.

         Specifically, Plaintiff alleges he requested a dressing change on December 21, 2014, from Defendant and Defendant declined to change Plaintiff's dressing because Defendant needed to check the doctor's orders.[2] Plaintiff asserts his bandage was bloody and pusy during this time, but he did not show it to Defendant nor did Defendant ask to look at it. On December 23, 2014, Plaintiff saw Dr. Horowitz who issued an order for Plaintiff to receive a dressing change in two days and twice a week until his follow up appointment with his orthopedic surgeon. Plaintiff alleges he then requested a dressing change from Defendant on December 23, 2014, and again Defendant declined to change Plaintiff's bandage. Plaintiff then filed a 7362 Health Care Services Request Form (“7362”), and on December 24, 2014, Defendant received the 7362. In response to Plaintiff's 7362, Defendant changed Plaintiff's dressing.

         Plaintiff alleges he submitted a 7362 on January 3, 2015, and January 5, 2015, complaining of shoulder pain and that his shoulder had “popped out.” Plaintiff contends Defendant refused to address these complaints for more than 48 hours because Plaintiff “complains too much.”

         Finally, Plaintiff alleges on June 24, 2015, Defendant refused to consult with the on-call doctor, treat his withdrawal symptoms, and timely respond to his 7362 requests related to his alleged withdrawals.

         II. THE PARTIES' EVIDENCE

         A. Evidence Offered by Defendant

         Defendant argues the following facts are not in dispute:

         1. Plaintiff Curtis Jackson was incarcerated at Mule Creek State Prison (MCSP) from March 2013 to February 2015 and June 3, 2015 to September 2016. (Jackson Dep. 29:4-15, attached as Ex. F to Esquivel Decl.)

         2. Jackson was housed in the Administrative Segregation Unit (ASU) at MCSP from December 21, 2014 to February 5, 2015, and June 3, 2015 to December 18, 2015. (Jackson Dep. 29:21-30:3.)

         3. Defendant Dator was a Registered Nurse assigned to the ASU. (Dator Decl. ¶ 2.)

         4. On September 20, 2014, Jackson injured his right shoulder while playing football. He was diagnosed with a separated shoulder that required surgical repair. Over the course of the next three months, his right arm was in a mobility sling, and he received Morphine for his pain. (Jackson Dep. 52:14-22, 54:1-20.)

         5. On December 18, 2014, Jackson underwent right-shoulder surgery at San Joaquin General Hospital (SJGH). The surgeon did not issue an order setting out a dressing-change schedule for Jackson. Jackson continued to receive Morphine for his pain. (Medical Records at 1-5, attached as Ex. G to Esquivel Decl.; Jackson Dep. 56:11-15, 61:25-62:8.)

         6. At Jackson's deposition, he testified that on December 21, 2014, he requested a dressing change from Dator, and Dator informed Jackson that he would look for a doctor's order. Jackson testified that he told Dator that his bandage was bloody and had pus, but that he did not show Dator the condition of his bandage. Jackson further testified that after that brief interaction, Jackson had no further interaction with Dator that day. (Jackson Dep. 46:6-48:23, 66:20-67:10, 68:18-20.)

         7. Jackson saw Dr. Horowitz on December 23, 2014. Jackson testified at his deposition that he informed her that the metal plate in his shoulder had “popped out.” (Medical Records at 6; Jackson Dep. 68:21-24, 69:3-12.)

         8. Dr. Horowitz issued an order on December 23, 2014, for Jackson to receive a dressing change in two days then twice a week until his follow-up appointment with the orthopedic surgeon. (Medical Records at 7.)

         9. Jackson was unaware in December 2014 that Dr. Horowitz issued an order for dressing changes, and he has no knowledge whether Dator received that order. Dator has no recollection whether he received a copy of Dr. Horowitz's order in 2014. (Jackson Dep. 70:22-71:3, 72:14-18; Dator Decl. ¶¶ 26-28.)

         10. Jackson testified at his deposition that following his appointment with Dr. Horowitz on December 23, 2014, he had another brief encounter with Dator where he requested a dressing change. Jackson testified that he told Dator that he had just seen the doctor and needed a dressing change. Jackson did not testify that he described the condition of the dressing or show it to Dator. Jackson asserted that Dator responded “all right, ” but did not change Jackson's dressing. (Jackson Dep. 69:13-70:9.)

         11. On December 24, 2014, Dator received a Health Care Services Request Form (7362) that Jackson submitted, requesting a dressing change for his right shoulder. (Dator Decl. ¶ 4; Medical Records at 8.)

         12. On December 24, 2014, Dator met with Jackson in response to the 7362 and Jackson's complaint that the bandage on his right shoulder was falling off. Dator removed the bandage, and noticed that there were Steri Strips over Jackson's surgical wound. The wound was dry, without signs of infection. Dator placed a clean dressing, secured it with tape, educated Jackson on looking for signs of infection, and noted that Jackson was receiving pain medication and was already scheduled for a follow-up appointment with his primary care provider. (Dator Decl. ¶ 5; Jackson Dep. 76:9-11; Medical Records at 9.)

         13. Dator did not wipe or clean the surgical site with a disinfectant or solution because it risked causing infection and the Steri Strips to prematurely fall off the incision. (Dator Decl. ¶¶ 6-7.)

         14. Jackson did not request dressing changes from Dator after December 24, 2014. Psych tech (referred to as “site techs” in Jackson's deposition) provided Jackson with clean bandages, and he changed the dressings himself. (Jackson Dep. 86:14-16, 87:8-88:5.)

         15. On December 30, 2014, Dator received a 7362 from Jackson, requesting that his pain medication be renewed before it expired. The next day, Dator received another 7362 that Jackson submitted, again complaining that his pain medication was due to expire in a few days. He also asserted that he was concerned about going through withdrawals. (Dator Decl. ¶ 8; Medical Records at 10-11.)

         16. On January 1, 2015, Dator saw Jackson in connection with his 7362s. He complained of right-shoulder pain. Dator examined him: his vital signs were normal; he walked with a steady gait; and his breathing was even and unlabored. Dator informed Jackson that his Morphine was due to expire on January 17, 2015, and that he was going to be tapered off of it. (Dator Decl. ¶ 9; Medical Records at 12.)

         17. On January 5, 2015, Dator received two 7362s from Jackson, complaining that his right shoulder had "popped out," that it was not healing correctly, and that he was in a lot of pain. (Dator Decl. ¶ 10; Medical Records at 13-14.)

         18. On January 6, 2015, Jackson saw the orthopedic surgeon at SJGH, who informed Jackson that he needed to undergo another surgery on his right shoulder. The surgeon did not mention or state that Jackson's incision was infected. (Medical Records at 15; Jackson Dep. 92:16-19, 93:11-14.)

         19. On January 7, 2015, Dator met with Jackson to discuss his right shoulder pain and 7362s. Jackson informed Dator that he had seen the orthopedic surgeon the day before and had recommended revision surgery. Jackson was still receiving Morphine for his pain, and Dator confirmed that Jackson was already scheduled for a follow-up appointment with his primary care provider. (Dator Decl. ¶ 11; Medical Records at 16.)

         20. Jackson testified at his deposition that Dator delayed in processing his January 3 and 5, 2015, 7362s where he complained of shoulder pain and the plate “popping out.” Jackson testified that Dator should have sent him, on January 5, 2015, to the prison hospital for higher level of care and that as a result of the delay, he had to endure pain and undergo multiple surgeries. (Jackson Dep. 103:10-106:1, 110:2-17.)

         21. On January 15, 2015, Jackson underwent a second surgery for his right-shoulder condition. The pathology report did not indicate any sign of infection. He was nevertheless prescribed antibiotics. (Medical Records at 17-20.)

         22. The next day, January 16, 2015, Jackson saw Dr. Horowitz. She noted that Jackson was on antibiotics and ordered that a nurse assess him for signs of infection on January 20 and 25, 2015. (Medical Records at 20-21.)

         23. On January 20, 2015, Dator saw Jackson to evaluate him for symptoms of an infection as Dr. Horowitz ordered. Dator examined Jackson's surgical site, noted that he had Steri Strips on the incision, and the dressing had dry blood on it. There was no redness, drainage, or other indicators of infection. Jackson's vital signs were normal. Dator placed a clean bandage on the wound and educated Jackson about looking out for signs of infection and to keep the dressing dry and intact. (Dator Decl. ¶ 12; Medical Records at 23.)

         24. Jackson saw Dr. Horowitz on January 23, 2015, where he complained that he felt that the plate in his shoulder was “popping out” again. The doctor noted that his incision had “healed well, ” and did not note any signs of infection. (Medical Records at 24.)

         25. On January 27, 2015, Dator saw Jackson for the second assessment ordered by Dr. Horowitz. Jackson's surgical site was clean and totally healed. Dator saw no abnormality, and Jackson's vital signs were within normal range. (Dator Decl. ¶ 13; Medical Records at 25.)

         26. On February 3, 2015, Dator received a 7362 from Jackson, complaining that the plate in his right shoulder was out of place and that he was in a lot of pain. Dator did not have an opportunity to meet with Jackson concerning this 7362 because Jackson was transferred to SJGH's emergency room on February 3, after he swallowed a metal object. (Dator Decl. ¶ 14; Medical Records at 26-27.)

         27. Jackson did not return to the ASU at MCSP until June 3, 2015. (Dator Decl. ¶ 14.)

         28. On April 14, 2015, Jackson underwent a third surgery to repair his separated shoulder. The pathology report did not indicate the presence of an infection. (Medical Records at 28-30.)

         29. Dr. Horowitz saw Jackson on June 6, 2015, to evaluate his shoulder condition and pain management. She ordered that he remain on Morphine for another ten days then be switched to Methadone. (Medical Records at 31-32.)

         30. On June 20, 2015, Jackson submitted a 7362, complaining that he was experiencing severe withdrawal symptoms as a result of the change in his pain medication. Other medical staff members responded to Jackson's request. (Medical Records at 33.)

         31. On June 22, 2015, Jackson submitted another 7362 concerning his withdrawal symptoms. (Medical Records at 34.)

         32. Jackson saw a doctor on June 23, 2015, in connection with an inmate appeal he submitted and his 7362 dated June 20. The doctor's encounter note is silent on whether Jackson presented with withdrawal symptoms. (Medical Records at 33, 35.)

         33. In the early morning of June 24, 2015, Dator received Jackson's June 22 7362. Dator met with Jackson at about 1:10 p.m. that day in response to the 7362. Jackson informed Dator that his pain medication was changed on June 18, and he was having “breakthrough” pain and withdrawal symptoms that included hot and cold sweats. Dator examined Jackson: his vital signs were within normal limits; he was walking with a steady gait; his speech was clear and coherent; his breathing was even and unlabored; and his skin was warm and dry. Jackson requested an increase in his Methadone dosage. (Dator Decl. ¶¶ 15-16; Medical Records at 36.)

         34. Dator did not immediately refer Jackson to a doctor or for higher level of care because, despite Jackson's subjective complaints, he had no objective signs of withdrawal symptoms or that he was in substantial pain. Dator scheduled Jackson for a doctor's appointment to discuss his pain medication. (Dator Decl. ¶¶ 17-18; Medical Records at 36.)

         35. At Jackson's deposition, he clarified that the hot and cold sweats, shakes, and stomach pain was caused by a reaction to his new pain medication, Cymbalta. He did not have withdrawal symptoms when his Morphine was changed to Methadone. By June 23, 2015, Jackson stopped taking the Cymbalta that was giving him these symptoms. (Jackson Dep. 114:5-115:23, 116:20- 25, 121:22-122:1.)

         36. When Dator saw Jackson on June 24, 2015, his only symptom was pain. Jackson contends Dator's delay in responding to his 7362s and failure to send him to prison hospital caused him ...


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