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Wilkins v. Barber

United States District Court, E.D. California

November 7, 2019

KEENAN WILKINS, aka NERRAH BROWN, Plaintiff,
v.
DR. CHRISTINE S. BARBER, et al., Defendants.

          ORDER

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. On July 24, 2019, plaintiff filed a motion for preliminary injunction, and pursuant to the court's order, the state provided a response by special appearance. On October 3, 2019, plaintiff filed his reply (ECF No. 25). On October 31, 2019, plaintiff filed a motion for temporary restraining order.

         As set forth below, pending service of the complaint, the undersigned requests the Supervising Deputy Attorney General provide an additional response.

         Plaintiff declares that for four years he has been prescribed morphine, 30 mg. twice a day, for pain management. (ECF No. 1 at 4.)

         Medical records provided by plaintiff demonstrate that plaintiff was previously approved for neck surgery based on neurosurgeon Dr. Senegor's August 4, 2015 diagnosis of right C6 radiculopathy due to discal herniation, and requested by CDCR doctor Afshin Arya, M.D. on May 6, 2016, and approved on May 13, 2016 (utilization management tracking # SAC-15/16-1011990). (ECF No. 1 at 14.) The request for services form states that plaintiff's R C5-6 discal herniation was confirmed by MRI

with worsening Right mono radiculopathy in the upper and lower extremity. Has not responded to conservative treatment by NSAIDS (3wk) and exercise (5Wk)/activity modification(6wk). Has continued paresthesias in the upper extremity and gait disturbance. Neurosurgery consultant has recommended anterior cervical discectomy and fusion (ACDF) surgery. Previous RFS expired.

(ECF No. 1 at 14.) “Cervical radiculopathy is a syndrome of pain and/or sensorimotor deficits due to compression of a cervical nerve root. See U.S. National Library of Medicine, National Institutes of Health Cervical Radiculopathy: A Review, https://ww.ncbi.nlm.nih.gov/pmc/ articles/PMC3192889/ (last visited May 1, 2018).” Mason v. Ryan, 2018 WL 2119398, *1 n.1 (D. Ariz. May 8, 2018).

         Plaintiff explained that while he was waiting for surgery at California State Prison, Sacramento, he was transferred to RJ Donovan Prison on June 24, 2016.[1] (ECF No. 10 at 2 (declaration).) While awaiting surgery post-transfer, Dr. Shakilea informed plaintiff that the proposed neck surgery may make his condition worse, and therefore prescribed alternative pain management for plaintiff's disc herniation and other medical ailments, specifically, morphine 30 mg. twice a day. (Id.)

         On December 15, 2016, an MRI Cervical spine without contrast was performed, finding:

C4-C5: Right asymmetric disc bulge results in mild central canal stenosis, moderate to severe right neural foraminal stenosis, and mild left neural foraminal narrowing.
C5-C6: Right asymmetric broad-based disc protrusion and/or disc osteophyte complex effaces the ventral CSF space with mild ventral cord compression. Severe right and moderate left neural foraminal stenosis. The degree of stenosis has mildly increased.

(ECF No. 25 at 51.)

         Subsequently, plaintiff was prescribed Tylenol in place of the morphine, despite neurosurgeon Dr. Rahimifar's March 15, 2019 recommendation that plaintiff be prescribed Ultram or Tramadol for pain relief, and despite prison doctors prescribing plaintiff morphine for the prior four years.

         Following plaintiff's 2018 transfer to the California Health Care Facility in Stockton, plaintiff's prescription to morphine was tapered and discontinued based on allegations that plaintiff was caught “cheeking” the morphine. Plaintiff denies such allegations and insists that Dr. Barber falsified the records to have plaintiff's morphine discontinued. In support, plaintiff relies on his grievance CHCF S.C. 19000126 in which he challenged the February 17, 2019 finding that plaintiff “cheeked” his medication, and cites Dr. Singh's finding that Dr. Barber violated California Department of Corrections policy. (ECF No. 6 at 20.) On July 22, 2019, plaintiff met with Chief Physician Dr. Singh and showed him the March 15, 2019 neurologist's report and the May 3, 2019 orthopedist's report, and declares Dr. Singh “said he was unaware of these things and he would get plaintiff seen.” (ECF No. 10 at 5.) On July ...


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