KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis, with an action filed pursuant to 42 U.S.C. § 1983. On December 22, 2011, defendant Huffman filed a motion to dismiss on the grounds that the amended complaint fails to state a cognizable claim under the Eighth Amendment, and that plaintiff's claim against defendant Huffman is frivolous pursuant to 28 U.S.C. § 1915(d).
Plaintiff is proceeding on the amended complaint filed April 29, 2011, alleging that defendants were deliberately indifferent to plaintiff's serious medical needs by delaying the scheduling of plaintiff's back surgery. (Dkt. No. 8.) Plaintiff first saw defendant Huffman on February 9, 2009. Plaintiff contends defendant Huffman ordered x-rays of plaintiff's lumbar spine, and reviewed plaintiff's MRI report which "showed collapse of the disc space, dehydration of the intervertebral disc at L4-5, at L3-4, and loss of disc height at L2-3." (Dkt. No. 8 at 5.) Plaintiff alleges defendant Huffman told plaintiff that he needed surgery, and that plaintiff agreed to the surgery. (
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question,
A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief.
As mentioned above, a court may consider exhibits submitted with the complaint.
42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff.
In order to state a claim for relief under the Eighth Amendment for inadequate prison medical care, plaintiff must allege "deliberate indifference to serious medical needs."
Whether a defendant had requisite knowledge of a substantial risk of harm is a question of fact and a fact finder may conclude that a defendant knew of a substantial risk based on the fact that the risk was obvious.
Plaintiff provides the following medical records.
On January 27, 2009, Dr. Nguyen requested that plaintiff receive a CT of his abdomen and pelvis. (Dkt. No. 1 at 30.) The request was marked urgent. (
Upon return from the MRI, plaintiff reported that he was unable to walk since January 17, 2009, due to pain in his right hip and leg. (Dkt. No. 1 at 33.) Dr. Nguyen wanted the MRI results faxed from Vacaville Imaging to CSP-Solano; staff contacted Vacaville Imaging and they agreed to send the report. On January 28, 2009, Dr. Steven Liston dictated the results of the MRI, with the following impression:
(Dkt. No. 1 at 36.)
On January 29, 2009, Dr. Nguyen requested an urgent referral for plaintiff to see an orthopedic surgeon based on the MRI. (Dkt. No. 1 at 37.) Dr. Nguyen specifically requested: "please send MRI films with patient." (
The bottom of the January 29, 2009 form indicated that plaintiff was subsequently scheduled to see Dr. Huffman on February 9, 2009, "for surgical planning after MRI. *Please send films." (Dkt. No. 1 at 37.)
On January 31, 2009, plaintiff was offered a cane, but stated his crutches work better than a cane. (Dkt. No. 1 at 40.) On February 3, 2009, a scheduling form was faxed confirming plaintiff's February 9, 2009 appointment with Dr. Huffman. (Dkt. No. 1 at 45.) On February 8, 2009, a medical code was called on plaintiff. (Dkt. No. 1 at 40.) Plaintiff complained of acute lower back pain and impaired mobility. Plaintiff was given an injection of 60 mg. of Toradol. (
On February 9, 2009, plaintiff was seen by Dr. Huffman. (Dkt. No. 1 at 47.) Dr. Huffman's handwritten notes Dr. Huffman "needs MRI to review" and "plan surgery if fits with MRI." (
In his written report, Dr. Huffman recorded plaintiff's present illness history as follows. (Dkt. No. 1 at 50.) Plaintiff hurt his back playing basketball. After the injury, plaintiff experienced increasing pain on the right side of his back over the next 24 hour period, radiating into his thigh, leg and foot. Plaintiff's pain was severe over the next two weeks, but then plaintiff received an injection of Toradol which helped somewhat. Plaintiff is now managing the pain but still has significant pain, which causes difficulty in walking, and causes a limp. Plaintiff cannot put weight on his right leg, and has difficulty sleeping. Plaintiff's pain is relieved by sitting and resting and by medications, but is exacerbated by ambulating. Motrin and Soma seemed to help. Dr. Huffman's recommendations state:
(Dkt. No. 1 at 50.)
On February 9, 2009, Dr. Nguyen signed a follow-up request for plaintiff to see Dr. Huffman regarding disc space collapse. (Dkt. No. 1 at 41.) Dr. Nguyen noted that plaintiff did not have the MRI films taken on January 28, 2009, and said plaintiff should have a follow-up appointment within 14 days. (
On February 17, 2009, the radiologist's report from the CT scan of plaintiff's abdomen and pelvis noted:
(Dkt. No. 1 at 54.) The radiologist concluded that plaintiff had moderate lumbar spondylosis at L2-3 and L3-4. (Dkt. No. 1 at 55.) "Spondylodiscitis at either of these two levels cannot be excluded." (
On March 10, 2009, Renee with the Napa Valley Orthopaedic Group sent a request for surgical authorization, appending a copy of Dr. Huffman's consultation report, and requested that prior to scheduling, a copy of the MRI film be sent to the forensic unit for review. (Dkt. No. 1 at 60.) At the bottom of this document, the following sentence is typed: "4/29 Dr. Huffman reviewed and surgery info to Tina." (
On March 19, 2009, plaintiff completed a health services request form noting he was in extreme pain in his right leg with numbness in his fingers, and requested his back surgery to relieve the pain in his hip, back and right leg, the spasms and cramps. (Dkt. No. 1 at 61.) Plaintiff was seen by an RN on March 19, 2009, and plaintiff reported that the "pain medication is not really working." (
On April 30, 2009, Tina from the Napa Valley Orthopaedic Group faxed an outpatient scheduling form, noting plaintiff's May 11, 2009 appointment with Dr. Huffman, with a surgery date of May 21, 2009. (Dkt. No. 1 at 73.) The form also states that "patient didn't see hospitalist this day, didn't have pre op testing with him. Rescheduled to 5-19-09 at 1:00." (
Dr. Huffman's surgery scheduling form is not signed or dated, but the surgery is marked "elective," and described the surgery to be performed. (Dkt. No. 1 at 75.) The form notes a pre-operative appointment for May 11, 2009, and surgery on May 21, 2009. (
(Dkt. No. 1 at 75.) On May 1, 2009, Dr. Huffman signed "Preadmission Surgery Orders," noting the May 21, 2009 surgery date, and the May 11, 2009 pre-operative appointment, and ordering certain pre-operative tests. (Dkt. No. 1 at 87.)
On May 6, 2009, Tina faxed a memo to CSP-Solano stating that plaintiff was scheduled for surgery, a right sided L3-4 and L4-5 hemilaminectomy, on May 21, 2009. (Dkt. No. 1 at 69.) Plaintiff was also scheduled to see Dr. Huffman for a pre-op visit on May 11, 2009. (
On May 11, 2009, Dr. Huffman saw plaintiff for the preoperative visit. (Dkt. No. 1 at 72.) Dr. Huffman had obtained the MRI film, and his review confirmed that surgical micro decompression on the right side of both the 3/4 and the 4/5 levels would be beneficial in improving plaintiff's pain. (
On May 19, 2009, Dr. Rohrer signed a follow-up request for plaintiff to have surgery for collapse of L3-L4 disc space. (Dkt. No. 1 at 79.) This form was faxed on May 19, 2009. (
On May 21, 2009, plaintiff was admitted to the hospital with a diagnosis of lumbar stenosis/sciatica. (Dkt. No. 1 at 88.) Micro decompression surgery was performed on May 21, 2009. (Dkt. No. 1 at 90.) Plaintiff was discharged from the hospital on May 22, 2009. (Dkt. No. 1-1 at 1.) On June 1, 2009, plaintiff was scheduled for post-surgical consult, and on June 8, 2009, plaintiff was seen by Dr. Huffman. (Dkt. No. 1-1 at 3-4.) Plaintiff noted he was doing quite well and "notes relief of his leg symptoms and minimal back pain." (
Defendant argues that during the February 9, 2009 appointment with plaintiff, defendant Huffman did not have the MRI films to review personally, as was his custom and practice. Defendant Huffman notes that the medical records demonstrate that defendant Huffman or his staff requested that the MRI films be sent both prior to the February 9 appointment, as well as on March 10, 2009. Once the MRI films were received, defendant Huffman contends the elective surgery was timely scheduled. Defendant argues that although plaintiff contends the surgery was urgent, neither he nor CSP-Prison Medical Services noted the surgery was urgent, and that the surgery was noted as elective on the surgery scheduling form. Defendant Huffman disclaims any role in either authorizing or scheduling the surgery. Defendant Huffman argues there is no evidence that he was deliberately indifferent, and that plaintiff's surgery was scheduled and proceeded in a more expedient manner than if a general referral patient with private health care insurance sought care from defendant Huffman.
Plaintiff now contends that defendant Huffman had the MRI report on February 9, 2009, was aware of plaintiff's urgent condition, yet delayed the review of plaintiff's MRI films until April 29, 2009. Plaintiff denies ever talking to defendant Huffman about bringing the MRI films, and claims plaintiff cannot bring such films; only prison medical officials and law enforcement are responsible for transporting such films. Plaintiff argues that because the surgery was scheduled the day after defendant Huffman reviewed the MRI films, defendant Huffman's delay in reading the MRI films delayed plaintiff's surgery, subjecting him to extreme pain and suffering. Plaintiff now claims he complained to prison officials and defendant Huffman regarding his extreme pain and suffering while waiting for surgery. Plaintiff also contends that defendant Huffman's failure to timely schedule surgery, which plaintiff claims was urgent, constitutes deliberate indifference. Plaintiff argues that the MRI report and the x-rays that defendant Huffman had on February 9, 2009, revealed plaintiff was suffering from a serious back injury that required urgent treatment.
"When ruling on a motion to dismiss, [the court] accept[s] all factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party."
In his opposition, plaintiff supplements his factual allegations against defendant Huffman. If plaintiff were merely alleging that his surgery was urgent, and defendant Huffman did not expedite the surgery, such an allegation might amount to nothing more than a disagreement with defendant Huffman's course of treatment.
However, as argued in his opposition, plaintiff appears to claim that defendant Huffman's failure to earlier read the MRI films delayed plaintiff's back surgery, subjecting plaintiff to extreme pain and suffering, but also claims that his back surgery should have been scheduled in February of 2009. Thus, it is unclear whether plaintiff now alleges defendant Huffman was responsible for the delay from when the MRI films were sent to defendant Huffman until April 29, 2009, the date defendant Huffman reviewed the films, or whether plaintiff alleges it was deliberate indifference for defendant Huffman to wait for the MRI films when defendant Huffman had benefit of the MRI report from the radiologist on February 9, 2009.
The medical records provided by plaintiff demonstrate that after plaintiff saw defendant Huffman on February 9, 2009, Dr. Nguyen completed a follow-up request, noting plaintiff presented without the MRI films,
These medical records demonstrate that defendant Huffman could not have reviewed the MRI films prior to March 10, 2009, because they had not yet been received. Therefore, from March 10, 2009, to April 29, 2009, one month and 19 days elapsed. As noted above, it is unclear whether this is the period of time plaintiff alleges defendant Huffman delayed plaintiff's surgery. In addition, plaintiff fails to allege that defendant Huffman's delay in reading the MRI films was the product of improper motive or intentional disregard for plaintiff's condition.
Moreover, the Ninth Circuit has made clear that "[w]hile poor medical treatment will at a certain point rise to the level of a constitutional violation, mere malpractice, or even gross negligence, does not suffice."
In addition, as an outside specialist in orthopedic surgery, it is not plausible that defendant Huffman was responsible for plaintiff's pain management. The medical records provided by plaintiff demonstrate defendant Huffman saw plaintiff only twice before plaintiff's back surgery: on February 9, 2009, and May 11, 2009. Defendant Huffman did not prescribe plaintiff pain medications on either February 9, 2009, or May 11, 2009.
Also, during the February 9, 2009 consultation, plaintiff explained to defendant Huffman that plaintiff's pain was severe over the two weeks following the injury, but that plaintiff received an injection of Toradol, which helped somewhat. (Dkt. No. 1 at 50.) Now, plaintiff was managing the pain, but still had significant pain, which caused a limp and difficulty walking. (
Although the February 9, 2009 consultation report shows that plaintiff was still suffering significant pain, it did not put defendant Huffman on notice that plaintiff was presently experiencing "extreme pain and suffering." In addition, this report demonstrates that medical providers at the prison were addressing plaintiff's pain.
However, plaintiff now claims that while waiting for back surgery, he "complained to prison officials and Dr. Huffman regarding his extreme pain and suffering on many occasions." (Dkt. No. 53 at 4.) Because the documents provided by plaintiff demonstrate plaintiff informed defendant Huffman on February 9, 2009, that plaintiff was managing his pain, and prison officials were treating his pain, plaintiff must provide additional factual allegations, if he can, that demonstrate defendant Huffman was aware plaintiff was in extreme pain after February 9, 2009, yet was deliberately indifferent by failing to earlier review the MRI films, or failing to find plaintiff needed surgery on the basis of the MRI report defendant Huffman had on February 9, 2009. Plaintiff is cautioned that a mere negligent failure to timely review the MRI films is insufficient to demonstrate deliberate indifference. The defendant must purposefully ignore or fail to respond to the plaintiff's pain or medical needs.
Finally, in his opposition, plaintiff alleges that defendant Huffman failed to timely schedule plaintiff's back surgery. However, the documents provided by plaintiff demonstrate that persons other than defendant Huffman were responsible for scheduling the surgery, and plaintiff alleges in his amended complaint that defendant Traquina was responsible for scheduling outside surgeries. In his opposition to the motion to dismiss, defendant Huffman confirms he was retained to provide orthopedic treatment, and is not responsible for scheduling back surgeries or other orthopedic treatments for plaintiff. (Dkt. No. 49 at 8.) Thus, because plaintiff's documents demonstrate defendant Huffman is not responsible for scheduling outside surgeries, defendant Huffman is entitled to dismissal of this claim, and plaintiff should not renew this claim in any second amended complaint.
With regard to defendant's claim that the surgery was elective, the only document provided by plaintiff noting the surgery was elective is a form that is not signed or dated. (Dkt. No. 1 at 75.) On a motion to dismiss, the court must take plaintiff's allegation that his surgery was urgently needed as true. Moreover, "the words `elective surgery' are not a talisman insulating [defendants] from the reach of the Eighth Amendment. Each case must be evaluated on its own merits."
Finally, defendant's motion to dismiss plaintiff's amended complaint as frivolous, pursuant to 28 U.S.C. § 1915, is denied, based on the legal standards set forth above.
For all of the above reasons, defendant Huffman's motion to dismiss is partially granted, and plaintiff is granted leave to file a second amended complaint should he be able to allege facts demonstrating that defendant Huffman was deliberately indifferent to plaintiff's serious medical needs under the standards set forth above. Plaintiff should set forth specific facts as to what he told defendant Huffman concerning plaintiff's pain after February 9, 2009. If plaintiff contends the delay attributed to defendant Huffman constitutes deliberate indifference, plaintiff should specifically identify the time periods for which he alleges defendant Huffman is responsible, as well as the alleged harm caused by such a delay. Plaintiff should not renew his claim that defendant Huffman should have earlier scheduled plaintiff's surgery.
In addition, plaintiff is hereby informed that the court cannot refer to a prior pleading in order to make plaintiff's second amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This requirement exists because, as a general rule, an amended complaint supersedes the original complaint.
However, plaintiff need not re-submit the exhibits appended to the original complaint. Plaintiff may ask the court to attach them to the second amended complaint.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendant Huffman's December 22, 2011 motion to dismiss (dkt. no. 49) is partially granted;
2. Plaintiff's amended complaint is dismissed;
3. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Amendment and submit the following documents to the court:
b. An original and one copy of the Second Amended Complaint, if plaintiff chooses to amend. Plaintiff's second amended complaint shall comply with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, the Local Rules of Practice, and the instant order. The second amended complaint must also bear the docket number assigned to this case and must be labeled "Second Amended Complaint." Failure to file a second amended complaint in accordance with this order may result in the dismissal of defendant Huffman, and the court ordering that this action proceed on the amended complaint.
Plaintiff hereby submits the following document in compliance with the court's order filed________________: