United States District Court, E.D. California
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
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.
forth below, pending service of the complaint, the
undersigned requests the Supervising Deputy Attorney General
provide an additional response.
declares that for four years he has been prescribed morphine,
30 mg. twice a day, for pain management. (ECF No. 1 at 4.)
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).
explained that while he was waiting for surgery at California
State Prison, Sacramento, he was transferred to RJ Donovan
Prison on June 24, 2016. (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.
December 15, 2016, an MRI Cervical spine without contrast was
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
(ECF No. 25 at 51.)
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.
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 ...