McNeil v. Singh
Filing
10
DISMISSAL ORDER, signed by Chief Judge Ralph R. Beistline on 5/3/13: The Complaint is DISMISSED in its entirety without leave to amend for failure to state a claim upon which relief may be granted; The Clerk of the Court is directed to enter judgment accordingly. (CASE CLOSED)(Hellings, J)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
MICHAEL McNEIL,
Case No. 1:12-cv-01005-RRB
Plaintiff,
vs.
DISMISSAL ORDER
ORTIZ SINGH, M.D., ET AL.,
Defendants.
Michael McNeil, a state prisoner appearing pro se and in forma
pauperis, brings this civil rights action under 42 U.S.C. § 1983.
McNeil is currently in the custody of the California Department of
Corrections and Rehabilitation (“CDCR”), incarcerated at the Valley
State Prison, Chowchilla. The Complaint arises out of McNeil’s
incarceration at the Pleasant Valley State Prison (“PVSP”), the
California State Substance Abuse Treatment Facility (“SATF”), and
California State Prison, Corcoran (“CSP-C”).1
1
In addition to Dr. Singh, McNeil has named as defendants:
Matthew Cate, Secretary CDCR; J. Clark Kelso, Receiver CDCR; James
Yates, Warden PVSP; Kathleen Allison, Warden SATF; Connie Gibson,
Warden CSP-C; L. D. Zamora, Chief CPHCS; A. Lonigro, CEO-HCS, PVSP;
Ravogot Gill, M.D. CSP-C; T. Byers, Physicians Ass’t SATF;
Dr. Onyeje SATF; Dr. Igbinosa, PVSP; J. Ruff, Psychologist CSP-C;
C. Hammond, Appeals Examiner; D. Foston, Chief Office of Appeals;
C. McCabe, M.D. CSP-C; Jeffrey Wang, M.D. CSP-C; Teresa Macias, CEO
CSP-C; C/O W. Morris, PVSP; C/O Catlett, PVSP; Associate Warden
Stearman, PVSP; D. Artis, Appeals Examiner; R. H. Trimble, Warden
(continued...)
DISMISSAL ORDER - 1
McNeil v. Singh, et al., 1:12-cv-01005-RRB
I.
SCREENING REQUIREMENT
This
Court
is
required
to
screen
complaints
brought
by
prisoners seeking relief against a governmental entity or officer
or employee of a governmental entity.2 This Court must dismiss a
complaint or portion thereof if the prisoner has raised claims that
are legally “frivolous or malicious,” that “fails to state a claim
on which relief may be granted,” or that “seeks monetary relief
against a defendant who is immune from such relief.”3 Likewise, a
prisoner
must
exhaust
all
administrative
remedies
as
may
be
available,4 irrespective of whether those administrative remedies
provide for monetary relief.5
1
(...continued)
(A) PVSP; Sgt. T. Cerda, PVSP; Sgt. S. Hosman, PVSP; J. Buckley,
Associate Warden PVSP; E. Eddings, Correctional Counselor; Nesbit,
Appeals Coordinator PVSP; Martinez, Appeals Coordinator PVSP;
Dr. Duenas, PVSP; Tingley, CCII PVSP; Dr. Taherpour, PVSP;
Dr. Park, PVSP; Dr. Nyguyen, PVSP; C/O Macado, PVSP; C/O Gann,
PVSP; Bob Brawn, Physical Therapist CSP-C; Stephen Chabak, Physical
Therapist PVSP; LVN Ayoctele, SATF; E. Clark, MD CSP-C.
2
28 U.S.C. § 1915A(a).
3
28 U.S.C. § 1915(e)(2)(B); 42 U.S.C. § 1997e(c); see
Lopez v. Smith, 203 F.3d 1122, 1126 & n.7 (9th Cir. 2000) (en
banc).
4
42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81,
93–95 (2006) (“proper exhaustion” under § 1997e(a) is mandatory and
requires proper adherence to administrative procedural rules).
5
See Booth v. Churner, 532 U.S. 731, 734 (2001).
DISMISSAL ORDER - 2
McNeil v. Singh, et al., 1:12-cv-01005-RRB
In determining whether a complaint states a claim, the Court
looks
to
the
pleading
standard
under
Federal
Rule
of
Civil
Procedure 8(a). Under Rule 8(a), a complaint must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”6 “[T]he pleading standard Rule 8 announces
does not require ‘detailed factual allegations,’ but it demands
more
than
an
unadorned,
the-defendant-unlawfully-harmed-me
accusation.”7 Failure to state a claim under § 1915A incorporates
the familiar standard applied in Federal Rule of Civil Procedure
12(b)(6), including the rule that complaints filed by pro se
prisoners are to be liberally construed, affording the prisoner the
benefit of any doubt, and dismissal should be granted only where it
appears beyond doubt that the plaintiff can plead no facts in
support of his claim that would entitle him or her to relief.8
This
requires
the
presentation
of
factual
allegations
sufficient to state a plausible claim for relief.9 “[A] complaint
[that] pleads facts that are ‘merely consistent with’ a defendant’s
6
Fed. R. Civ. P. 8(a)(2).
7
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)).
8
Wilhelm v. Rotham, 680 F.3d 1113, 1121 (9th Cir. 2012).
9
Iqbal, 556 U.S. at 678–69; see Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009) (quoting and applying
Iqbal and Twombly).
DISMISSAL ORDER - 3
McNeil v. Singh, et al., 1:12-cv-01005-RRB
liability . . . ‘stops short of the line between possibility and
plausibility of entitlement to relief.’”10 Further, although a court
must
accept
as
true
all
factual
allegations
contained
in
a
complaint, a court need not accept a plaintiff’s legal conclusions
as true.11 “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”12
II.
GRAVAMEN OF THE COMPLAINT
McNeil filed an 89-page, 365 paragraph Complaint setting forth
his medical history commencing in 1989 through April 2012.
McNeil
suffered a severe back injury in 1989 and another injury to his
neck in 1993.13 McNeil was arrested in 1998, sentenced to life
imprisonment in April 1999, and committed to the custody of CDCR in
November 1999. McNeil contends that the Defendants in this case are
indifferent to his serious medical needs in violation of the Eighth
Amendment [First Cause of Action]. Specifically, McNeil contends
that Defendants have refused to either prescribe effective pain
medication or treat his medical condition by surgery. McNeil also
10
Id. at 678 (quoting Twombly, 550 U.S. at 557).
11
Id.
12
Id. (quoting Twombly, 550 U.S. at 555).
13
McNeil appended 194 exhibits, totaling 863 pages to his
Complaint.
DISMISSAL ORDER - 4
McNeil v. Singh, et al., 1:12-cv-01005-RRB
alleges
a
violation
of
his
Fourteenth
Amendment
right
to
confidentiality of his medical records [Second Cause of Action].14
III. OTHER PENDING LAWSUIT
McNeil has pending in this Court an earlier “deliberate
indifference” action brought under 42 U.S.C. § 1983, McNeil v.
Hayes, 1:10-cv-01746-AWI-SKO (“McNeil I”),15 arising out of McNeil’s
incarceration at SATF between August 2000 and September 2009. In
that action, McNeil named the medical personnel at SATF.16 After
screening,17 the Court directed service of the Second Amended
Complaint in that action as against Defendant Hayes, Raman, Soto,
Byers, Does and Rotman on McNeil’s Eighth Amendment medical care
claims.18 The claims against the other Defendants were dismissed for
failure to state a cause of action.19
14
The Complaint is missing pages 21, 22, 25, 45, and 50.
Because it is unlikely that if those pages were included it would
materially alter the outcome of the screening, the Court has
determined it unnecessary to require Plaintiff to submit the
missing pages at this time.
15
This Court takes judicial notice of that action. Fed. R.
Evid. 201.
16
In addition to LVN Hayes, Mcneil sued Dr. Raman,
Dr. Rotman, Dr. Enenmoh, T. Byers (Physician Ass’t), G. Miller
(Health Care Coordinator), RN Soto, RN Guiteras, RN Villasno, RNII
D. Capra, and John/Jane Doe.
17
McNeil I, 1:10-cv-01746 at Docket 19.
18
Id. at Docket. 22.
19
Id. at Docket 19.
DISMISSAL ORDER - 5
McNeil v. Singh, et al., 1:12-cv-01005-RRB
IV.
DISCUSSION
A.
First Cause of Action
[Deliberate Indifference/Retaliation]
McNeil’s First Cause of Action may be divided into five
categories: (1) against those sued in their supervisory capacity;
(2)
arising
out
of
his
first
incarceration
at
SATF
(through
September 22, 2009); (3) arising out of his incarceration PVSP
after transfer from SATF (September 22, 2009 thru March 9, 2011);
(4) arising out of his incarceration at SATF after retransfer from
PVSP (March 9, 2011 through May 16, 2011); and (5) arising out of
his subsequent incarceration at CSP-C (after May 16, 2011).
1.
Supervisory Defendants
Section 1983 suits do not support vicarious liability; a
plaintiff
must
demonstrate
that
each
defendant
personally
participated in the deprivation of his or her rights.20 To impose
liability on a supervisor, the supervisor’s wrongful conduct must
20
Iqbal, 556 U.S. at 677; OSU Student Alliance v. Ray, 699
F.3d 1053, 1069 (9th Cir. 2012); Jones v. Williams, 297 F.3d 930,
934 (9th Cir. 2002); see Monell v. Dep’t of Soc. Svcs., 436 U.S.
658, 691–95 (1978) (rejecting the concept of respondeat superior in
the context of § 1983, instead requiring individual liability for
the violation); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)
(“Liability under [§] 1983 arises only upon a showing of personal
participation by the defendant. supervisor is only liable for the
constitutional violations of . . . subordinates if the supervisor
participated in or directed the violations, or knew of the
violations and failed to act to prevent them.” (Citations
omitted)).
DISMISSAL ORDER - 6
McNeil v. Singh, et al., 1:12-cv-01005-RRB
be
sufficiently
causally
connected
to
the
constitutional
violation.21 That is, the official must “implement a policy so
deficient that the policy itself is a repudiation of constitutional
rights and is the moving force of the constitutional violation.”22
A person deprives another “of a constitutional
right, within the meaning of section 1983, if he does an
affirmative act, participates in another's affirmative
acts, or omits to perform an act which he is legally
required to do that causes the deprivation of which [the
plaintiff complains].” Johnson v. Duffy, 588 F.2d 740,
743 (9th Cir.1978) (Johnson) (emphasis added). The
inquiry into causation must be individualized and focus
on the duties and responsibilities of each individual
defendant whose acts or omissions are alleged to have
caused
a
constitutional
deprivation.
[Citations
omitted.]23
A review of the Complaint reveals that it does not meet that
standard as to: Matthew Cate, Secretary CDCR; James Yates, Warden
PVSP; Kathleen Allison, Warden SATF; Connie Gibson, Warden SATF;
J. Buckley, Associate Warden PVSP; and J. Clark Kelso, Receiver
CDCR.
21
See Redman v. County of San Diego, 942 F.2d 1435, 1446
(9th Cir. 1991) (en banc) (abrogated in part on other grounds by
Farmer v. Brennan, 511 U.S. 825 (1994)).
22
Id. (internal quotation marks and citations omitted).
23
Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (quoted
with approval in Tennison v. City and County of San Francisco., 570
F.3d 1078, 1096 (9th Cir. 2009)).
DISMISSAL ORDER - 7
McNeil v. Singh, et al., 1:12-cv-01005-RRB
2.
First Incarceration at SATF
The present posture of this case and McNeil I requires this
Court to determine whether this case is duplicative of McNeil I
and, therefore, should be dismissed or disregarded, as appropriate.
“Plaintiffs generally have ‘no right to maintain two separate
actions involving the same subject matter at the same time in the
same court against the same defendant.’”24 In such a case, “[a]fter
weighing the equities of the case, the district court may exercise
its discretion to dismiss a duplicative later-filed action, to stay
the action pending resolution of the previously filed action, to
enjoin the parties from proceeding with it, or to consolidate both
actions.”25
To determine whether a suit is duplicative, we
borrow from the test for claim preclusion. As the Supreme
Court stated in The Haytian Republic, “the true test of
the sufficiency of a plea of ‘other suit pending’ in
another forum [i]s the legal efficacy of the first suit,
when finally disposed of, as ‘the thing adjudged,’
regarding the matters at issue in the second suit.” 154
U.S. 118, 124, 14 S. Ct. 992, 38 L. Ed. 930 (1894); see
also Hartsel Springs Ranch, 296 F.3d at 987 n. 1 (“[I]n
the claim-splitting context, the appropriate inquiry is
whether, assuming that the first suit were already final,
the second suit could be precluded pursuant to claim
preclusion.”); Curtis, 226 F.3d at 139–40 (“[T]he normal
claim preclusion analysis applies and the court must
24
Adams v. California Dept. of Health Svcs., 487 F.3d 684,
688 (9th Cir. 2007) (quoting Walton v. Eaton Corp., 563 F.2d 66, 70
(7th Cir. 1977) (en banc)).
25
Id. (citations omitted).
DISMISSAL ORDER - 8
McNeil v. Singh, et al., 1:12-cv-01005-RRB
assess whether the second suit raises issues that should
have been brought in the first.”); Davis v. Sun Oil Co.,
148 F.3d 606, 613 (6th Cir.1998) (per curiam) (referring
to the doctrine against claim-splitting as “the ‘other
action pending’ facet of the res judicata doctrine”).
Thus, in assessing whether the second action is
duplicative of the first, we examine whether the causes
of action and relief sought, as well as the parties or
privies to the action, are the same. See The Haytian
Republic, 154 U.S. at 124, 14 S. Ct. 992 (“There must be
the same parties, or, at least, such as represent the
same interests; there must be the same rights asserted
and the same relief prayed for; the relief must be
founded upon the same facts, and the . . . essential
basis, of the relief sought must be the same.” (internal
quotation marks omitted)); Curtis, 226 F.3d at 140
(holding that the trial court did not abuse its
discretion in dismissing “Curtis II claims arising out of
the same events as those alleged in Curtis I,” which
claims “would have been heard if plaintiffs had timely
raised them”); Serlin, 3 F.3d at 223 (“[A] suit is
duplicative if the claims, parties, and available relief
do not significantly differ between the two actions.”
(internal quotation marks omitted)).26
The Ninth Circuit then laid down the following “same causes of
action” test:
We examine first whether the causes of action in
Adams's two suits are identical. To ascertain whether
successive causes of action are the same, we use the
transaction test, developed in the context of claim
preclusion. “Whether two events are part of the same
transaction or series depends on whether they are related
to the same set of facts and whether they could
conveniently be tried together.” Western Sys., Inc. v.
Ulloa, 958 F.2d 864, 871 (9th Cir.1992) (citing
Restatement (Second) of Judgments § 24(1) (1982)). In
applying the transaction test, we examine four criteria:
26
Id. at 688–89.
DISMISSAL ORDER - 9
McNeil v. Singh, et al., 1:12-cv-01005-RRB
(1) whether rights or interests established in the
prior judgment would be destroyed or impaired by
prosecution of the second action; (2) whether
substantially the same evidence is presented in the
two actions; (3) whether the two suits involve
infringement of the same right; and (4) whether the
two suits arise out of the same transactional
nucleus of facts.
Costantini v. Trans World Airlines, 681 F.2d 1199,
1201–02 (9th Cir.1982). “The last of these criteria is
the most important.” Id. at 1202.27
The claims in McNeil I and the allegations in this case
covering the period prior to McNeil’s transfer to PVSP overlap.
The Court notes that because it does not designate any individual
as a defendant or otherwise seek any relief in connection thereto,
this
appears
to
be
for
the
most
part
superfluous
background
information. On the other hand, to the extent that McNeil may be
seeking relief based upon the events occurring during that period
of incarceration, it is duplicative of the pending action and must
be disregarded in this case.
3.
Incarceration at PVSP
In addition to his Fourteenth Amendment invasion of privacy
claim (Second Cause of Action discussed below), McNeil alleges that
certain correctional officers retaliated against him for filing an
inmate grievance by wrongfully “influencing” PVSP medical staff to
27
Id. at 689.
DISMISSAL ORDER - 10
McNeil v. Singh, et al., 1:12-cv-01005-RRB
discontinue
McNeil’s
pain
medication.28
McNeil
initiated
a
grievance, which was handled at the First Level.29
In your appeal you claim on November 11, 2010, you
carried a 70 lb. punching bag to the workout area and had
help hanging it up. You state you proceeded to do a
Martial Arts workout for about 10 minutes before
Correctional Officer Morris called you to the Observation
Post and informed you that you were misusing the bag as
Martial Arts are not allowed to be practiced. You state
you received a CDC 128-B, Informative Chrono, on
November 16, 2010, authored by Officer Morris which you
claim is an attempt by Officer Morris to use his
influence to manipulate medical staff into discontinuing
your pain meds.
You request the CDC 128-B authored by Officer Morris be
removed from your Central File (C-File) and that the
practice of Correctional Staff being allowed to use their
unqualified medical observations to stop. You state this
CDC 602 is Officer Morris' notice that if your pain meds
are discontinued based on his observations you will file
suit alleging violation of your 8th Amendment right to
exercise and pain relief.
During the interview, you stated you will withdraw your
appeal if Officer Morris will remove the CDC 1288 out of
your C-File. You also state if your request is not met,
you will fight this issue in the courts. I advised you
Officer Morris was within the scope of his duties and has
the right to observe and document any misuse of the
exercise equipment.
Effective communication was established by speaking the
English language in a manner using simple, non-complex
28
The Court also notes that in his Complaint McNeil
acknowledges that he persistently “threatened” correctional
officers as well as medical personnel with being sued if they did
not comply with McNeil’s demands.
29
Authored by Defendants Sgt. Cerda and Associate Warden
Spearman.
DISMISSAL ORDER - 11
McNeil v. Singh, et al., 1:12-cv-01005-RRB
words to make sure McNeil understood the process. McNeil
was able to respond to all questions, understand·the
interviewer's recommendations and explain in his own
words the interviewer's decision.
A thorough review of your appeal issue was conducted. The
California Code of Regulations (CCR), Title 15, Section
3000, states, "General Chrono means a CDC Form 128-B
which is used to document information about inmates and
inmate behavior. Such information may include, but is not
limited to, documentation of enemies, records of
disciplinary or classification matters, pay reductions or
inability to satisfactorily perform a job, refusal to
comply with grooming standards, removal from a program,
records of parole or service matters." Officer Morris
acted within the scope of his duties.
Considering the above information, your appeal is
PARTIALLY GRANTED on the first level of review. Your
request to have the CDC 128-B authored by Officer Morris
removed from your C-File is GRANTED. The original CDC
128-B was never placed in your C-File and has been
attached to this CDC 602. Your request for the practice
of Correctional Staff being allowed to use their
unqualified medical observations to stop is DENIED. A CDC
128-B is a General Chrono that can be utilized to
document Staff observations; however, specific medical
information should not be referred to in those chronos.
A new CDC 128-B has been submitted and will be placed in
your C-File. A copy of this CDC 128-B is also attached to
this CDC 602.30
Although McNeil sought review at the Second Level, which was denied
by Warden Trimble,31 it does not appear that he exhausted this claim
by seeking further review at the Director’s Level.
30
Docket 1-2 at 162-63.
31
Docket 1-2 at 154–55.
DISMISSAL ORDER - 12
McNeil v. Singh, et al., 1:12-cv-01005-RRB
McNeil further alleges that C/O Morris, at the request of C/O
Catlett video-taped McNeil exercising and hitting a punching bag.
McNeil
Drs.
also
Park
alleges
and
that
Taherpour
C/O
Catlett
by
pointing
attempted
out
to
to
influence
them
McNeil’s
activities. McNeil alleges that Dr. Park refused to continue his
prescription for pain medications (morphine/gabapentin) based upon
the reports made by correctional staff. According to McNeil, also
based upon these reports Dr. Taherpour recommended to the Pain
Committee that McNeil not be given morphine/gabapentin.
McNeil exhausted his administrative remedies on these claims.32
DIRECTOR'S LEVEL DECISION:
Appeal is denied.
ISSUES:
Your CDCR 602-HC indicated you wished to make a staff
complaint against all members of the Pleasant Valley
State Prison Medical Authorization Committee and the Pain
Committee from November 11, 2010 to the present, as well
as several named staff members, and the complaint was
based upon your contention that correctional officers
(COs) influenced medical staff to discontinue your
morphine by reporting you carried a heavy punching bag
across the track, hung it up on the bag rack, and punched
it. You told officers if your medication was discontinued
because of that report you would sue them. You stated
your constitutional rights were violated.
You requested the following:
•
A sum of $500,000.00 to settle out of court;
32
Authored by Defendant L.D. Zamora.
DISMISSAL ORDER - 13
McNeil v. Singh, et al., 1:12-cv-01005-RRB
•
An investigation to be conducted regarding
custody staff having access to inmate medical
information in violation of the law.
PRIOR APPEAL HISTORY:
Informal Level:
The informal level appeal was bypassed and your appeal
was elevated to the first level of review.
First Level:
At the first level, submitted on January 30, 2010, you
staled your issues and requests as noted above.
The First Level Response (FLR) stated your appeal was
partially granted and indicated you were seen by the
doctor on January 27, 2011, and were advised that
morphine and gabapentin were no longer medically
indicated, and a taper off period was initiated. The
doctor said she had asked custodial staff for assistance
in observing inmates due to her limited presence on the
yard. There was no evidence discovered which revealed
unprofessional or inappropriate behavior by medical or
custodial
staff.
The
CDC
128-B
noted
the
COs
observations, not his opinion of your medical status;
your doctor made the decision based upon her examination
and other pertinent data; and you would be ducated by the
appeals pain review team at Pleasant Valley State Prison
(PVSP) to interview you about your alleged need for a
pain management program, and to have the opportunity to
rebut your PCP's decision to terminate your current pain
medicine regimen. The FLR concluded monetary damages were
denied and not within the jurisdiction of the department.
Second Level:
At the second level, submitted on March 4, 2011, you
slated you were dissatisfied; you were seen by another
doctor
two
weeks
after
your
medications
were
discontinued; he recommended you to the pain committee;
you had declarations of witnesses; and you asked who told
the officer you took morphine for pain, and stated you
never signed a release.
The Second Level Response (SLR) stated your appeal was
partially granted, reiterated the findings of the FLR,
DISMISSAL ORDER - 14
McNeil v. Singh, et al., 1:12-cv-01005-RRB
and further stated you were no longer a patient of PVSP;
you were encouraged to engage the medical services of
your new institution; your appeal did not meet staff
complaint criteria; your request to exhaust remedies and
seek litigation contradicted the purpose of the appeals
process; and this appeal served as an inquiry into your
complaint.
BASIS FOR DIRECTOR'S LEVEL DECISION:
At the Director's Level of Review (DLR), submitted on
May 2, 2011, you state you have never refused treatment;
you have refused medications you believe to be harmful;
you were properly diagnosed and treated until custody
staff interfered and influenced PVSP medical staff.
At the DLR, your appeal file and documents obtained from
your Unit Health Record were reviewed by staff who
determined your care related to your appeal issues was
adequate as you received medical treatment and medication
was provided, and your concerns were appropriately
addressed at the FLR and SLR. Your current pharmacy
profile shows active orders for the medications
acetaminophen and ibuprofen, and is indicative of ongoing
medical assessment of your pain.
This review found no evidence of violation of your
constitutional rights as you allege. Your request for
investigation of custody staff is outside the scope of
the health care appeals process.
The Department shall provide only medical services for
patient-inmates that are based on medical necessity and
supported by outcome data as effective medical care. In
the absence of available outcome data for a specific
case, treatment will be based on the judgment of the
physician that the treatment is considered effective tor
the purpose and is supported by diagnostic information
and consultations with appropriate specialists. You will
continue to be evaluated and treatment will be provided
based on your clinician's evaluation, diagnosis, and
recommended
treatment
plan,
in
accordance
with
appropriate policies and procedures.
DISMISSAL ORDER - 15
McNeil v. Singh, et al., 1:12-cv-01005-RRB
Inmates may not demand particular medication, diagnostic
evaluation, or course of treatment. The California Code
of Regulations (CCR), Title 15, Section 3354, Health Care
Responsibilities and Limitations, (a) Authorized Staff,
states, "Only facility-employed health care staff,
contractors paid to perform health services for the
facility, or persons employed as health care consultants
shall be permitted within the scope of their licensure,
to diagnose illness or, prescribe medication and health
care treatment for inmates. No other personnel or inmate
may do so."
Monetary Compensation is beyond the scope of the appeals
process. If you are dissatisfied with this response
concerning your request for monetary compensation, you
may wish to contact the California Victims Compensation
and Government Claims Unit, P.O. Box 3035, Sacramento, CA
94812-3035.
After review, there is no compelling evidence that
warrants intervention at the Director's Level of Review
as your medical condition has been evaluated by licensed
clinical staff and you arc receiving treatment deemed
medically necessary.
RULES AND REGULATIONS:
The rules governing these issues are: California Code of
Regulations, Title 15; Inmate Medical Services Policies
and Procedures (2011); and the Department Operations
Manual.
ORDER:
No Changes or
institution.
modifications
are
required
by
the
This decision exhausts your available administrative
remedy within the CDCR.33
McNeil’s contention that correctional staff was attempting to
influence medical decisions is pure conjecture.
33
Docket 1-2 at 185–87.
DISMISSAL ORDER - 16
McNeil v. Singh, et al., 1:12-cv-01005-RRB
More importantly,
to the extent that the actions of the correctional officers in
reporting McNeil’s activity “influenced” the decisions of medical
personnel, that action was not only proper but, as explained in the
First Level response, required.34 Accordingly, the claims against
the correctional officers will be dismissed for failure to state a
cause of action.
McNeil’s contentions vis-a-vis PVSP medical personnel stands
on a somewhat different footing. In addition to Drs. Park and
Taherpour, McNeil contends that Dr. Singh refused to continue
McNeil’s prescriptions for morphine and gabapentin.
After he was transferred to CSP-C, McNeil initiated a second
administrative appeal challenging the actions taken at PVSP. On
that appeal, the Second Level held:35
ISSUE:
In your CDCR 1824 (changed over to 602HC), dated
February 10, 2011, you write you suffer from DDD and
carpal tunnel syndrome. You state you were accused of
manipulating
medical
staff
for
morphine.
The
discontinuance of your Morphine was based on a video tape
of you exercising using a punching bag. You write you
have documentation the doctor ordering you to exercise.
You feel your 8th Amendment Rights are being violated.
You are in pain.
34
The Court also notes that at no point in his voluminous
Complaint does McNeil contend that the observations were false or
that the video tape either did not exist or was incorrectly
described.
35
Authored by Defendants Dr. Wang and Teresa Macias, CEO.
DISMISSAL ORDER - 17
McNeil v. Singh, et al., 1:12-cv-01005-RRB
You request on appeal to be put back on your pain
medication and allowed to exercise in lieu of surgery
without further interference by both custody and medical
staff.
First Level Response (FLR) was partially granted.
In your appeal to the Second Appeal Level in Section F of
the CDC Form 602-HC, Inmate/Parolee Health Care Appeal
Form dated May 2, 2011, you state you are dissatisfied
with the First Level Response (FLR) because you
transferred to another institution before the issue was
resolved at PVSP. You are still in pain.
INTERVIEW:
You were interviewed at the First Level Review via
telephone by NP Birring, on April 7, 2011 regarding this
appeal.
Effective communication: TABE score is 12.9.
[X]
No special accommodations required for effective
communication.
REGULATIONS and BASIS FOR DECISION:
The rules governing the issue(s) are taken from the
California Code of Regulations (CCR) 3350, 3350.1,
3350.2, 3354, The Department Operations Manual (DOM),
California Prison Health Care Services (CPHCS), CSPCorcoran's Operational Procedures (OP}, and the Unit
Health Care Record of McNeil P59685.
APPEAL RESPONSE:
There are no new medical issues presented in your second
level appeal. We have revisited the concerns and requests
of your First Level issue and found no new information to
alter our findings. You arrived to CSP Corcoran on
May 16, 2011 from SATF. You arrived to SATF from PVSP on
March 9, 2011. You were interviewed by FNP Birring of
PVSP on April 7, 2011.
In your appeal you make reference to having copies of xrays, MRIs and nerve conduction studies. Yet you failed
to attach them to the appeal. We find very little
information that is current within your UHR regarding the
tests you mention. We went through both volumes 2 and 3
DISMISSAL ORDER - 18
McNeil v. Singh, et al., 1:12-cv-01005-RRB
of 3 and found a MRI of your neck done in 2008. It shows
mild degenerative disc disease. This is not unusual to
find because DDD is considered a part of normal aging.
This hardly merits Morphine for pain control. No other
current reports found. To be fair to you we saw you were
being seen on June 16th by Dr. Gill so we asked him to
evaluate you regarding the issues in this appeal. He
found you to be healthy in appearance. You were able to
dress and undress with ease. There is no muscular atrophy
noted. Your hand grips are good, muscle strength is 5/5
in all four extremities. Normal gait with no noted limp.
You were able to comfortably get up on the examination
table without any help. Deep tendon reflexes on the
patella are 2/4 bilaterally. Achilles reflex is present
You
had
good
planter
flexion
and
dorsiflexion
bilaterally. You did have some superficial tenderness to
light touch on the left cervical and also on the left
head. Axial loading was positive. You were complaining of
low back pain. You were able to raise your left and right
leg. Distracted strait leg raise was negative. You did
have a minor overreaction to light touch during the
examination on the right lumbar area and also on the
axial loading. His conclusion, no physical examination
findings were consistent with any acute finding of
cervical or lumbar pain which you were complaining about.
You stated you have documentation that a doctor ordered
exercise, yet you failed to attach documentation that
this information exists and if it does, what type of
exercise was ordered (punching bag?). Combining the
current examination findings, with the previous report of
exercising while at Pleasant Valley State Prison, we
conclude, justification for the tapering of Morphine as
a pain medication for you. You wrote in your appeal that
you should be allowed to have both pain medications and
exercise in lieu of surgery. Mr. McNeil, we failed to
find any reference to you needing surgery. Quite frankly,
with the examination findings by Dr. Gill, surgery is not
indicated. According to the matrix used to determine pain
medications and appropriate actions, you do not meet the
standards for a justified order of morphine. You
currently have Tylenol and ibuprofen; these are
appropriate pain medications for mild DDD.
DISMISSAL ORDER - 19
McNeil v. Singh, et al., 1:12-cv-01005-RRB
1) Morphine is denied.
2) To be given pain medication (Tylenol and ibuprofen)
and be allowed to exercise without staff interference in
lieu of surgery is granted.
It is noted in your UHR and in this appeal that you
intend to file a lawsuit. We respect your right to do so.
However, we will not tolerate threats. The California
Code of Regulations (CCR} Title 15, Section 3013,
Unlawful Influence, states "Inmates may not attempt to
gain special consideration or favor from other inmates,
employees, institution visitors or any other person by
the use of bribery, threat or other means."
This includes the threat of lawsuit. If you believe you
will be granted morphine by threatening staff with civil
action, you are sorely mistaken.
We will not be
intimidated by such behavior and if it persists,
progressive discipline will be seriously considered.
The health care of inmates is one of the highest concerns
of this department.
This institution endeavors to
provide
appropriate
medical
care
and
treatment
commensurate with community standards for health care.
DECISION:
Based on the above information, your appeal is PARTIALLY
GRANTED at the Second Level of Review.
If dissatisfied, you may submit this appeal at the
Director's Level for Review within 30 working days of
receipt of this response (CDC 3084.6). For the Director's
Review,
submit
all
documents
to:
Department
of
Corrections and Rehabilitation, Office of Third Level
Appeals-Health Care, P.0. Box 4038, Sacramento, CA 958124038.36
McNeil’s further appeal to the Director’s Level was also denied.37
36
Docket 1-3 at 14–16.
37
Authored by Defendant L.D. Zamora.
DISMISSAL ORDER - 20
McNeil v. Singh, et al., 1:12-cv-01005-RRB
DIRECTOR'S LEVEL DECISION:
Appeal is denied.
PATIENT/INMATE ISSUES:
Your CDCR 1824 Reasonable Modification or Accommodation
Request form submitted on February 10, 2011, was
converted to a CDCR 602-HC Inmate/Parolee Health Care
Appeal form, as it did not meet the criteria to be
processed as a CDCR 1824; you indicated that on
January 26, 2011, you saw Dr. Sing [sic] who told you
that you were observed using a punching bag; you had
doctor orders to exercise.
You requested the following: to be put back on your
previous pain medications [morphine] and to be allowed to
exercise in lieu of surgery without further interference
by both custody and medical staff.
INSTITUTION DECISION:
Second Level:
The Second Level Response (SLR) stated your appeal was
partially granted indicating:
•
You made reference to having copies of x-rays,
Magnetic Resonance Imaging (MRI' s) and nerve
conduction studies which were not attached to
the appeal; and were not found as current
information in your Unit Health Record (UHR),
•
A review of your UHR volumes 2 and 3 revealed
a MRI of your neck done in 2008; which noted
mild degenerative disc disease (DDD); having
morphine for DDD was not indicated.
•
On June 16, 2011, you had a medical evaluation
by Dr. Gill with no acute finding of cervical
or lumbar pain.
•
You stated that you had documentation that a
doctor
ordered
exercise;
yet
this
documentation was not provided nor found.
•
Surgery was not medically indicated; and you
had pain medications of Tylenol and ibuprofen.
BASIS FOR DIRECTOR'S LEVEL DECISION:
At the Director's Level of Review (DLR), received on
September 9, 2011, you added that California Department
of Corrections and Rehabilitation (CDCR) threatened you
DISMISSAL ORDER - 21
McNeil v. Singh, et al., 1:12-cv-01005-RRB
with a serious rule violation alleging that you were
threatening to sue staff, in an attempt to influence
staff, to gain morphine; you quoted "a plaintiff bringing
a malpractice case against a health care provider must
also give the defendant notice of the intention to sue 90
days before filing suit"; this was CDCR's notice; you
were going to sue all CDCR health care staff involved;
you were not allowed to attach copies of your medical
records.
At the DLR, your appeal file and documents obtained from
your UHR were reviewed by licensed clinical staff and
revealed the following:
•
You received care for your complaints of pain;
you
were
offered
physical
therapy
and
instructed to reduce your aggressive exercise
program that was making your pain worse and
use a more appropriate exercise regimen to
stabilize your back and neck muscles, which
would reduce your pain.
•
You did not qualify for narcotic use under
California Correctional Health Care Services
Pain Management guidelines.
•
You were offered anti-inflammatory medication
for
pain
and
provided
instruction
in
appropriate exercise.
The gradual deterioration of the disc between the
vertebrae is known as degenerative disc disease. As we
age, the water and protein content of the cartilage in
the body changes, which results in more fragile and thin
cartilage. Both the discs and joints that stack the
vertebrae are composed of cartilage and subject to 'wear
and tear' over time. Hence, degenerative disc disease is
a term used. to describe the normal changes in your
spinal discs as you age.
To be noted there were several refusals in your UHR in
August 2011, in which you wished to discontinue
recommended medications; and refusal to be seen by
Dr. Gill. Be advised you have the right to refuse
treatment. While you may refuse care, you may not be
selective
in
the choice
of
providers.
Provider
DISMISSAL ORDER - 22
McNeil v. Singh, et al., 1:12-cv-01005-RRB
assignments are determined by health care management
based on the institution's needs.
You are considered an active partner and participant in
the health care delivery system. You are encouraged to
cooperate with your clinicians in order to receive the
proper care and management of your condition. You will
continue to be evaluated and treatment will be provided
based on your clinician's evaluation, diagnosis, and
recommended
treatment
plan,
in
accordance
with
appropriate policies and procedures.
It is noted you have added new issues and/or requests to
your appeal at the DLR, as noted above.
It is not
appropriate to expand the appeal beyond the initial
problem and or requests.
These issues will not be
addressed, as you have not provided evidence that you
attempted to address them at the lower level, per the
California Code of Regulations (CCR), Title 15, Section
3084.1 (b).
After review, there is no compelling
evidence that warrants intervention at the Director's
Level of Review as your medical condition has been
evaluated by licensed clinical staff and you are
receiving treatment deemed medically necessary.
RULES AND REGULATIONS:
The rules governing these issues are: California Code of
Regulations, Title 15; Inmate Medical Services Policies
and Procedures (2011); and the Department Operations
Manual.
ORDER:
No changes or modifications are required by the
institution.
This decision exhausts your available administrative
remedies.38
The Supreme Court, holding that the infliction of unnecessary
suffering on prisoners violated the Eighth Amendment, stated:
38
Docket 1-3 at 1–3.
DISMISSAL ORDER - 23
McNeil v. Singh, et al., 1:12-cv-01005-RRB
[D]eliberate indifference to serious medical needs of
prisoners constitutes the unnecessary and wanton
infliction of pain proscribed by the Eighth Amendment.
This is true whether the indifference is manifested by
prison doctors in their response to the prisoner's needs
or by prison guards in intentionally denying or delaying
access to medical care or intentionally interfering with
the treatment once prescribed. Regardless of how
evidenced, deliberate indifference to a prisoner's
serious illness or injury states a cause of action under
§ 1983.39
In
Estelle
indifference
to
the
Supreme
serious
Court
medical
distinguished
needs
of
“deliberate
prisoners,”
from
“negligen[ce] in diagnosing or treating a medical condition,”
holding that only the former violates the Constitution.40 In short,
Eighth Amendment liability requires “more than ordinary lack of due
care for the prisoner's interests or safety.”41
In determining deliberate indifference, the court scrutinizes
the particular facts and looks for substantial indifference in the
individual case, indicating more than mere negligence or isolated
occurrences of neglect.42
The Ninth Circuit has spoken to the
subject of the appropriate test under Estelle:
In the Ninth Circuit, the test for deliberate
indifference consists of two parts. First, the plaintiff
39
Estelle v. Gamble 429 U.S. 97, 104–105 (1976) (footnotes,
internal quotation marks, and citations omitted).
40
Id. at 106.
41
Whitley v. Albers, 475 U.S. 312, 319 (1986).
42
Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).
DISMISSAL ORDER - 24
McNeil v. Singh, et al., 1:12-cv-01005-RRB
must show a serious medical need by demonstrating that
failure to treat a prisoner's condition could result in
further significant injury or the unnecessary and wanton
infliction of pain. Second, the plaintiff must show the
defendant's response to the need was deliberately
indifferent. This second prong—defendant's response to
the need was deliberately indifferent—is satisfied by
showing (a) a purposeful act or failure to respond to a
prisoner's pain or possible medical need and (b) harm
caused by the indifference. Indifference may appear when
prison officials deny, delay or intentionally interfere
with medical treatment, or it may be shown by the way in
which prison physicians provide medical care. Yet, an
inadvertent [or negligent] failure to provide adequate
medical care alone does not state a claim under § 1983.
A prisoner need not show his harm was substantial;
however, such would provide additional support for the
inmate’s claim that the defendant was deliberately
indifferent to his needs. If the harm is an isolated
exception to the defendant’s overall treatment of the
prisoner [it] ordinarily militates against a finding of
deliberate indifference.43
Other than his own opinion, McNeil has produced no evidence to
establish
regimen
that
or
allegations
Plaintiff,
either
surgery
of
at
continuation
were
of
medically
the
Complaint
most,
McNeil
in
has
the
shown
the
morphine/gabapentin
necessary.
Viewing
light
favorable
that
most
there
is
a
the
to
mere
difference of opinion regarding the course of medical treatment,
which is “insufficient as a matter of law, to establish deliberate
indifference.”44 Thus, McNeil has failed to establish that the
43
Jett v. Penner, 429 F.3d 1091, 1096 (9th Cir. 2006)
(internal quotation marks and citations omitted).
44
Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996);
(continued...)
DISMISSAL ORDER - 25
McNeil v. Singh, et al., 1:12-cv-01005-RRB
prescribed
course
of
treatment
constituted
a
deliberate
indifference to a serious medical condition. Accordingly, the
Complaint against the medical personnel at PVSP will be dismissed
for failure to state a cause of action.
4.
During
Second Incarceration at SATF
his
short
second
incarceration
at
SATF,
McNeil
submitted several requests to be seen by a doctor for his pain.
According to McNeil, when he went to the medical clinic at SATF to
check on the status of his requests, LVN Ayoctele was abusive and
threatened him with a CDC-115, Rules Violation Report. How this
somehow violated McNeil’s civil rights is both unexplained and
inexplicable.45
McNeil also alleges that the Physicians Assistant Byers and
Dr. Onyeje refused to renew his prescription for morphine and
44
(...continued)
see Franklin v. State of Oregon, State Welfare Div., 662 F.2d 1337,
1344 (9th Cir. 1981) (noting, also, that a disagreement between a
prisoner and a medical professional over the most appropriate
course of treatment cannot give rise to a viable claim of
deliberate indifference).
45
It does not appear from the Complaint or the voluminous
exhibits attached to it that McNeil pursued any administrative
remedy as to this claim.
DISMISSAL ORDER - 26
McNeil v. Singh, et al., 1:12-cv-01005-RRB
gabapentin. McNeil’s adminsitrative grievance was denied at the
Director’s Level.46
I
APPELLANT’S ARGUMENT: The Appellant claimed in
November 2010 his pain was under control, and he engaged
in exercise by hitting the punching bag at a ·previous
institution. He claimed a Correctional Officer (CO)
observed him, made a video of the activity, illegally
obtained confidential medical information, and issued a
CDC Form 128-B, General Chrono, for manipulation of staff
to obtain morphine medication. He claimed this CO and
another officer influenced Dr. Singh and other medical
staff to discontinue all pain treatment and remove the
Disability Placement Program (DPP) code of Mobility
Impaired Not Impacting Placement (DNM). He noted he has
numerous doctors' orders, which indicate he should
exercise as part of his Physical Therapy regimen. The
appellant
requested accommodation,
including:
(1)
Reinstatement in the OPP; (2) Investigation into staff
involvement for termination of pain management, and
determination of the method of obtaining access to his
medical records; and (3) Investigation into the
involvement of Drs. Igbinosa and Singh "in this scheme"
to deny medical treatment; and (4) Notification to those
named above that they are named as defendants in a future
civil rights suit.
II
SECOND LEVEL'S DECISION: The reviewer noted on
April 12, 2011, T. Byers, Physician Assistant (PA),
interviewed and evaluated the appellant for his issues on
appeal. The appellant was informed this CDCR Form 1824,
Reasonable Modification or Accommodation Request, will
only address the request for disability evaluation via
CDC Form 1845, Disability Placement Program Verification
(DPPV). Matters pertaining to staff issues at another
institution are not Americans with Disabilities Act (ADA)
issues and will not be addressed in this response on
appeal. The PA noted the "I/P immediately told me I was
named in a Federal lawsuit”
The PA also noted the
appellant was observed in a video, "performing strenuous
46
Authored by Defendants C. Hammond and D. Foston.
DISMISSAL ORDER - 27
McNeil v. Singh, et al., 1:12-cv-01005-RRB
activities and has not had any acute injuries since
then.” As the PA saw him in the clinic for DPP
evaluation, medication issues were not to be addressed;
however, the appellant continued to talk about pain
management, and he was referred to the facility primary
care provider (PCP) to address medication issues. The PA
found no indication for lower bunk/lower tier housing
restriction, and noted the appellant ambulated from the
room with a steady, upright gait The response provided to
the appellant was reviewed and approved by the
Correctional Health Services Administrator II (CHSA-II).
As the appellant expressed disagreement with the
determination made by the PA, the Office of the Chief
Medical Officer completed comprehensive review of the
issues on appeal. All submitted documentation and
arguments have been considered. Further review noted on
April 27, 2011, 0. Onyeje; MD, PCP, saw the appellant for
neck, bilateral shoulder, and lower back pain. The doctor
noted the previous incident at the Pleasant Valley State
Prison, in which strenuous activity recorded on the video
was inconsistent with the claimed degree of disability.
The doctor's progress notes indicated the appellant has
chronic neck and lower back pain, secondary to
degenerative disk disease; however, he was able to
ambulate easily while getting up-and-down from the
examination table. In addition, the doctor noted the
appellant has normal power in all limbs, with normal knee
jerk bilaterally, no muscle atrophy, and no observed
painful distress. The case was presented to the Medical
Authorization Review Committee for evaluation, and the
appellant was scheduled for follow-up in 60 days. The
doctor found no medical indication for placement in the
DPP at this time.
The appellant provided no additional information
regarding his medical condition that was not available to
the PA at the time of examination on April 12, 2011;
therefore, the decision rendered at the previous level of
review was upheld. Upon completion of review, the CEO
concurred with and approved the determination made in
this case. The appeal was denied at the Second Level of
Review on May 13, 201[1].
DISMISSAL ORDER - 28
McNeil v. Singh, et al., 1:12-cv-01005-RRB
III
DIRECTOR'S LEVEL DECISION: Appeal is denied.
A.
FINDINGS: In requesting a Director's Level of
Review (DLR), the appellant claimed PA Byers has a
conflict of interest in this case, because on
September 23, 2010, he named the PA as a defendant
in a civil rights law suit for previous deliberate
indifference to serious medical needs. He requested
to have someone else interview him, but the PA
denied the request.
He claimed his neck injury
caused partial paralysis in the right arm five
times in the last three years, and he is still in
extreme pain. He also claimed since the suit was
filed, the CDCR retaliated against him and
interfered with his medical treatment.
In reaching a decision at the DLR, the appellant's
assertion is refuted, as he provided no rationale
as to the reason he allowed PA Byers to examine him
on April 23, 2011, if this clinician showed
previous deliberate indifference to his serious
medical needs as claimed. He is fully aware he is
permitted to refuse medical treatment in accordance
with the California Code of Regulations, Title 15
{CCR). Moreover on April 27, 2011, his PCP examined
him and determined he does not meet the criteria
for entry into the DPP with any designation of
disability. Medical necessity was not established
for housing restriction, physical limitations to
job assignment, or authorization for medical
appliances at this time. Upon review, the CHSA-II
and the CEO concurred with and endorsed the action
taken in this case. An accommodation must be deemed
medically necessary by the current medical staff in
charge of the appellant's care. Pursuant to the CCR
3350{b)(l), "Medically Necessary means health care
services that are determined by the attending
physician to be reasonable and necessary to protect
life, prevent significant illness or disability, or
alleviate severe pain, and are supported by health
outcome data as being effective medical care." The
appellant's health care concerns are not ADA issues
and will not be addressed in this response at the
DLR.
DISMISSAL ORDER - 29
McNeil v. Singh, et al., 1:12-cv-01005-RRB
The appellant is reminded the CCR 3354 establishes
that only qualified medical personnel shall be
permitted to diagnose illness or other conditions,
and prescribe treatment or disability accommodation
for inmates. It is not appropriate to self-diagnose
problems and expect a clinician to implement the
appellant's
recommendation
for
a
course
of
treatment.
In
this
particular
matter,
the
appellants contention that he was not afforded
appropriate
care
or
accommodation
is
not
substantiated by records and professional health
care staff familiar with his history. He is
informed that if he is experiencing symptoms of
discomfort. he should address his concerns to the
attention of his PCP.
Although the appellant claimed retaliation and
deliberate indifference to his medical needs, he
provided
no
evidence
or
documentation
to
substantiate these allegations. After consideration
of the evidence and arguments herein, it has been
determined that staff acted appropriately on the
appellant's
request,
and
no
additional
accommodation is warranted at the DLR.
The appellant has added new issues and requests to
his appeal. The additional requested action is not
addressed herein as it is not appropriate to expand
the appeal beyond the initial problem and the
initially
requested
action
(CDC
Form
602,
Inmate/Parolee Appeal Fonn, Sections A and B).
B.
BASIS
Armstrong
ARPIV.B.1,
CCR: 3085,
FOR THE DECISION:
Remedial Plan: ARPI, ARII.A. ARPII.B,
ARPIV.B.2
3350, 3350.1, 3354
C.
ORDER:
No changes or
required by the Institution.
DISMISSAL ORDER - 30
McNeil v. Singh, et al., 1:12-cv-01005-RRB
modifications
are
This decision exhausts the administrative
available to the appellant within CDCR.47
remedy
These claims fail for the same reason as did McNeil’s claim
against
the
allegations
Plaintiff,
medical
of
at
personnel
the
Complaint
most,
McNeil
at
in
has
PVSP,
the
shown
i.e.,
viewing
the
most
favorable
to
light
that
there
is
a
mere
difference of opinion regarding the course of medical treatment,
which is “insufficient as a matter of law, to establish deliberate
indifference.”48 Thus, McNeil has failed to establish that the
prescribed
course
of
treatment
constituted
a
deliberate
indifference to a serious medical condition.
5.
Incarceration at CSP-C
The record reflects that after his transfer to CSP-C, McNeil
refused to be treated by Dr. Gill.
affirmatively states:
Indeed, in his Complaint McNeil
“Plaintiff [McNeil] then told defendant
Dr. Gill that now, he only cared about sueing [sic] the department
(CDCR) and its medical staff for causing plaintiff to live in pain
and
suffering.”49
The
record
further
reflects
that,
although
Dr. Gill did not recommend resumption of treatment by morphine, he
did refer the matter to the Pain Committee, which found:
47
Docket 1-3 at 152–54.
48
Jackson, 90 F.3d at 332; see Franklin, 662 F.2d at 1344.
49
Docket 1 at 72, ll. 3–5.
DISMISSAL ORDER - 31
McNeil v. Singh, et al., 1:12-cv-01005-RRB
CONSULTING PROVIDER:
Edgar Clark, MD
DATE OF CONSULTATION: 09/01/2011
REASON FOR CONSULTATION: PAIN COMMITTEE REVIEW
HISTORY OF PRESENT ILLNESS: This is a 47-year-old man
who is complaining of right cervical pain and right
lumbar pain. He says he was on morphine and was tapered
off morphine at Pleasant Valley State Prison and he has
a lawsuit against them. He says he has constant pain
radiating down his right arm and also his right leg.
He
is unable to work because of the pain. He said he had
been on morphine for more than 10 years, The Unit Health
Record (UHR) shows that he was tapered off morphine at
Pleasant Valley State Prison after being filmed
vigorously exercising, carrying large amounts of weight
and then using the punching bag and punching it very
vigorously. He told his primary care physician that he
is more interested in money than in morphine and said
that everybody associated with his decisions and care
would be sued.
OBJECTIVE FINDINGS: He is very well-muscled. There are
no neurologic abnormalities found. Deep tendon reflexes
are normal. His strength is normal, but he did have
overreaction to light touch during examination of the
right lumbar area and also on axial loading. The axial
loading is a positive Waddell sign. There was also a
positive Waddell sign on a protracted straight leg
raising.
Physical Therapy evaluation: The patient brought in a
list of the exercises that he did. According to the
physical therapist, this was overexercise and also the
sorts of exercises were actually probably precipitating
some of his pain. He refused any modification in his
program and his physical examination was inconsistent
with his complaints.
Mental Health examination, he refused to interview. He
said he was taking the Fifth Amendment on all questions,
but he also said that he was doing this for the money
from a lawsuit that he had filed against the CDC.
His C-File showed no substance abuse history.
DIAGNOSTIC DATA:
No radiologic studies were available.
DISMISSAL ORDER - 32
McNeil v. Singh, et al., 1:12-cv-01005-RRB
ASSESSMENT/RECOMMENDATIONS: The Committee weighed all of
the evidence and it did nor appear to them that the
patient's symptoms were consistent with the physical
findings and his exercise activity and therefore the
consensus was that no opiates or gabapentin were
indicated at this time.50
Reduced
to
their
essence,
McNeil’s
allegations
against
Physical Therapist Brawn are that he recommended that McNeil cease
some
of
the
exercises
based
upon
Brawn’s
opinion
that
those
exercises were the cause of some of McNeil’s pain. How that
constitutes
deliberate
indifference
is
both
unexplained
and
inexplicable.
McNeil’s joinder of the psychologist, Dr. Ruff, is even more
puzzling. McNeil alleges that Dr. Ruff McNeil refused to sign a
document
that
barred
the
psychologist
from
using
any
of
the
information obtained in at a later time, e.g., a parole hearing,
ostensibly
invoking
his
Fifth
Amendment
rights.
Based
upon
Dr. Ruff’s refusal to sign the requested document, McNeil refused
to undergo a psychological evaluation.
McNeil’s position fails on
at least two points. First, there is no recognized Fifth Amendment
right to excluding relevant medical or psychological evidence at a
50
Docket 1-5 at 32.
DISMISSAL ORDER - 33
McNeil v. Singh, et al., 1:12-cv-01005-RRB
parole hearing.51 Second, as with other allegations, how Dr. Ruff’s
actions constituted deliberate indifference is a mystery.
McNeil’s administrative grievance was denied at the Director’s
Level.52
I.
APPELLANT’S ARGUMENT:
The appellant stated he
arrived at the institution in May 2011 and needs to see
a doctor, due to degenerative disk disease. He noted
Custody Staff are trying to move him to an upper bunk;
however, he has been on a lower bunk since 2001 due to
disease. He noted he is in pain and is having problems
walking and sleeping. He claimed this condition has not
been properly treated since February 2011, this is his
third prison since March 2011, and Medical Staff have
refused to treat the pain properly. He claimed this is
notice to the Chief Medical Officer and other Medical
Staff that he is suing. The appellant requested
accommodation, to include: (1) Appointment with a doctor
ASAP [as soon as possible]; (2) Treatment for pain; and
(3) Renewal of the lower bunk chrono .
II.
SECOND LEVEL'S DECISION: The reviewer noted on
June 15, 2011, R. Gill, DO, interviewed and evaluated the
appellant for his issues on appeal. Upon physical
examination, the doctor found no mobility problems, as
the appellant maintains a normal gait; therefore, medical
treatment for walking problems was unnecessary, and his
medical condition does not warrant renewal of the
chronos. The response provided to the appellant was
reviewed and approved by the Chief Physician & Surgeon.
As the appellant expressed disagreement with the
determination made in this case, the Office of the Chief
Executive Officer (CEO) assigned the Office of the Chief
Medical Executive (CME) to complete comprehensive review
of the appellant's issues on appeal. All submitted
documentation and arguments have been considered. The
51
See, e.g., Hess v. Board of Parole and Post-Prison
Supervision, 514 F.3d 909, 914–15 (9th Cir. 2008).
52
Authored by Defendants C. Hammond and D. Foston.
DISMISSAL ORDER - 34
McNeil v. Singh, et al., 1:12-cv-01005-RRB
appellant reiterated his complaint of continuing pain and
threat no file a lawsuit. Upon further review, the
appellant was informed he has the right to file a
lawsuit, and the medical staff respects and supports his
right to take such action; however, in accordance with
the California Code of Regulations, Title 15, Section
(CCR) 3013, Unlawful Influence, which states, "Inmates
shall not attempt to gain special consideration or favor
from other inmates, employees, institution visitors or
any other person by the use of bribery, threat or other
unlawful means."
This includes the threat of legal
action. If the appellant believes he will be granted
special accommodation or narcotic pain medication by
threatening staff with civil action, he is sorely
mistaken. We will not be intimidated by such behavior,
and if it persists, other measures will be seriously
considered. He has the responsibility to treat others as
he wishes to be treated.
The CCR 3004(a) states,
"Inmates and parolees have the right to be treated
respectfully, impartially, and fairly by all employees.
Inmates and parolees have the responsibility to treat
others in the same manner."
As the appellant was seen by a doctor, but did not
receive the medication or chronos requested, the request
on appeal was partially granted.
The health care of
inmates is one of the highest concerns of the Department,
and this institution endeavors to provide appropriate
medical care commensurate with community standards for
health care. The appeal was partially granted at the
Second Level of Review on June 3, 2011.
III
THIRD LEVEL DECISION:
A.
FINDINGS:
(TLR),
the
dissatisfaction
medication. He
still suffering
Appeal is denied.
In requesting a Third Level Review
appellant
expressed
continued
and claimed he does not want pain
stated, "Now I want surgery. I am
from extrem(e) pain."
In reaching a decision at the TLR, the appellant's
assertion is refuted, as he was appropriately and
thoroughly examined by a CDCR staff physician, who
completed a medical evaluation of his Americans
with Disabilities Act (ADA) capabilities on
DISMISSAL ORDER - 35
McNeil v. Singh, et al., 1:12-cv-01005-RRB
June 15, 2011, and determined he did not have a
mobility
impairment
condition
that
warranted
accommodation under the Armstrong Remedial Plan
(ARP).
Moreover, the case was further evaluated
and reviewed by the CME and the CEO, who determined
medical chronos and pain medication were not
medically necessary at this time.
An accommodation must be deemed medically necessary
by the current medical staff in charge of the
appellant's care. In accordance with the California
Code of Regulations, Title 15, Section (CCR),
3350(b)(l), "Medically Necessary means health care
services that are determined by the attending
physician to be reasonable and necessary to protect
life, prevent significant illness or disability, or
alleviate severe pain, and are supported by health
outcome data as being effective medical care." The
term "accommodation" indicates the possible need
for adjustment, adaptation, and change. Although
the
appellant
was
previously
afforded
accommodation,
medical
justification
must
be
established for continued accommodation, and in
this case, accommodation was not found medically
necessary in accordance with health care policy and
procedure.
The appellant is reminded the CCR 3354 establishes
that only qualified medical personnel shall be
permitted to diagnose illness or other conditions,
and prescribe treatment or disability accommodation
for inmates.
It is not appropriate to selfdiagnose problems and expect a clinician to
implement the appellant's recommendation for a
course of treatment.
In this particular matter,
the appellant's contention that he was not afforded
appropriate accommodation is not substantiated by
records and professional health care staff familiar
with his history.
He is informed that if he is
experiencing symptoms of discomfort, he should
address his concerns to the attention of his
primary care provider (PCP).
The appellant is also informed an ADA appeal must
involve a request for access or participation in a
DISMISSAL ORDER - 36
McNeil v. Singh, et al., 1:12-cv-01005-RRB
program, service, or activity, in which the inmate
claims access or participation is impaired or
limited due to a disability; therefore, the request
for reasonable modification or accommodation. The
issue regarding prescription of pain medication is
not an ADA issue in this case, and he is informed
he must submit a CDCR Form 7362, Health Care
Services Request, to discuss this issue with his
PCP, as only this provider is authorized to order
medical treatment for him. If not satisfied with
the services thus rendered, he may submit a CDCR
Form 602-HC, Inmate/Parolee Health Care Appeal
Form, to address his concerns.
After consideration of the evidence and arguments
herein, it has been determined that staff acted
appropriately on the appellant's request, and no
additional accommodation is warranted at the TLR,
The appellant has added new issues and requests to
his appeal. The additional requested action is not
addressed herein as it is not appropriate to expand
the appeal beyond the initial problem and the
initially
requested
action
(CDC
Form
602,
Inmate/Parolee Appeal Form, Sections A and B).
B.
BASIS FOR THE DECISION:
ARP: ARP-I, ARPII.A, ARPIV.B., ARPIV.B.2, ARPIV.F.2
CCR: 3004, 3013, 3085, 3350, 3350.1, 3354, 3358
C.
ORDER:
No changes or
required by the Institution.
modifications
This decision exhausts the administrative
available to the appellant within CDCR.53
are
remedy
These claims fail for the same reason as did McNeil’s claim
against the medical personnel at PVSP and SATF, i.e., viewing the
allegations
Plaintiff,
53
of
at
the
Complaint
most,
McNeil
in
has
Docket 1-4 at 93–95.
DISMISSAL ORDER - 37
McNeil v. Singh, et al., 1:12-cv-01005-RRB
the
light
shown
that
most
favorable
there
is
a
to
mere
difference of opinion regarding the course of medical treatment,
which is “insufficient as a matter of law, to establish deliberate
indifference.”54
proscribed
Thus, McNeil has failed to establish that the
course
of
treatment
constituted
a
deliberate
indifference to a serious medical condition. Accordingly, the
Complaint against the medical personnel at CSP-C fails to state a
cause of action and must be dismissed.
6.
Receiver
Finally, McNeil challenges the action of J. Clark Kelso, the
court-appointed
receiver
for
CDCR,55
in
implementing
new
pain
management procedures. According to McNeil these procedures, which
resulted in the cessation of his morphine/gabapentin treatment,
were implemented to save money, not for the ostensibly stated
purpose of making pain relief treatment safer and more consistent
in all prisons.
belief.”
The
McNeil makes this allegation on “information and
very
documentation
the
McNeil
attaches
to
his
Complaint eviscerates McNeil’s alleged information and belief. In
responding to McNeil’s inquiry, the Prison Law Office noted:56
54
Jackson, 90 F.3d at 332; see Franklin, 662 F.2d at 1344.
55
Plata v. Brown, Case No. 3:01-cv-01351-TEH (N.D. Calif.).
A class action brought against the State concerning overcrowding
and the quality of medical care in California prisons.
56
The attorneys representing the plaintiffs in Plata.
DISMISSAL ORDER - 38
McNeil v. Singh, et al., 1:12-cv-01005-RRB
According to the Receiver in charge of CDCR medical
care, PVSP primary care providers have prescribed
significantly more narcotics than at each of the other
prisons, even though the PVSP population does not have a
higher percentage of prisoners who need pain medication,
such as prisoners with chronic illness or significant
injuries. In an attempt to make pain management treatment
safer and more consistent in all the prisons, the
Receiver is implementing new pain management guidelines.
These guidelines are largely based on guidelines
published
by
the Institute
of
Clinical
Systems
Improvement, the Veterans Administration, the American
Pain Society and the American Academy of Pain Medicine.
The guidelines note that there is little medical
evidence, if any, that shows that narcotic pain
medications effectively treat chronic pain. They advise
that doctors should very carefully consider any negative
effects (e.g., health risks, addiction, and tolerance
build-up) and any available alternatives when prescribing
narcotics.
We are aware and concerned that many prisoners at
PVSP are having a difficult time because their pain
medication orders have recently been changed. Due to the
letters we have received as class counsel in the Plata
lawsuit, we have reviewed a substantial number of medical
records of PVSP prisoners who have written that their
pain medications have been discontinued since June 2010.
In the medical records we have reviewed, primary care
providers have almost always described in detail the
medical justification for changing prescriptions, and we
have not found evidence that providers have cut
medications to save the prison money as alleged by many
prisoners. However, please understand that as lawyers we
do not have the medical expertise to determine whether
the reasons documented in prisoners' medical records for
changing prescriptions were medically appropriate, and we
cannot
advise
you
whether
you
have
received
constitutionally inadequate medical care.57
57
Docket 1-3 at 29.
DISMISSAL ORDER - 39
McNeil v. Singh, et al., 1:12-cv-01005-RRB
Accordingly, the claim against the Court Appointed Receiver will
also be dismissed.
B.
Second Cause of Action [Invasion of Privacy]
In his Second Cause of Action McNeil contends that his medical
information was improperly disclosed to non-medical personnel in
violation of the Fourteenth Amendment right to privacy and the
provisions of the Health Insurance Portability and Accountability
Act (“HIPAA”). The Ninth Circuit has rejected both arguments.58
Accordingly, because it fails to state a cause of action, McNeil’s
Second Cause of Action will be dismissed without leave to amend.
V.
CONCLUSION/ORDER
McNeil’s
Complaint
shows
a
history
of
refusing
medical
treatment based upon his own, personal opinion as to either his
condition or the efficacy of the treatment prescribed.59 The dearth
of any supporting objective, competent medical evidence, coupled
with McNeil’s repeated threats of instituting lawsuits if his
demands
for
treatment
are
not
met,
constitutional claims of all foundation.
58
strips
his
federal
Nor does it appear that
Seaton v. Mayberg, 610 F.3d 530 (9th Cir. 2010).
59
E.g., declining to consider surgery on at least two
occasions and refusing medication because he felt that it was
improper or medically harmful.
While it was clearly within
McNeil’s rights to refuse medical treatment, he has no right to
refuse treatment and then claim deliberate indifference to his
medical condition.
DISMISSAL ORDER - 40
McNeil v. Singh, et al., 1:12-cv-01005-RRB
McNeil can truthfully allege facts that would constitute a viable
claim of deliberate indifference.
Accordingly, the Complaint will
be dismissed without leave to amend.
To the extent McNeil alleges
violations of California state law, this Court declines to exercise
its supplemental jurisdiction over them.60
IT IS THEREFORE ORDERED that the Complaint is DISMISSED in its
entirety without leave to amend for failure to state a claim upon
which relief may be granted.
The
Clerk
of
the
Court
is
directed
to
enter
judgment
accordingly.
IT IS SO ORDERED this 3rd day of May, 2013.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
60
“The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if— . . . (3) the
district court has dismissed all claims over which it has original
jurisdiction . . ..” 28 U.S.C. § 1367(c).
DISMISSAL ORDER - 41
McNeil v. Singh, et al., 1:12-cv-01005-RRB
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