Hughes v. CDCR
Filing
78
ORDER signed by District Judge Kimberly J. Mueller on 3/1/2016. Within 14 days from date of this Order, defendants shall file further response to plaintiff's 10/22/2015 62 Motion to Compel (Marciel, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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BERNARD HUGHES,
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Plaintiff,
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No. 2:11-cv-1856-KJM-EFB P
v.
ORDER
MARTIN H. JANSEN, M.D., et al.,
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Defendants.
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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief
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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided
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by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On December 1, 2015, the magistrate judge filed findings and recommendations, which
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were served on all parties and which contained notice to all parties that any objections to the
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findings and recommendations were to be filed within fourteen days. Plaintiff has filed
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objections to the findings and recommendations.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this
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court has conducted a de novo review of this case. Having carefully reviewed the file, the court
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declines to adopt the findings and recommendations at this time. Instead, the court will require
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defendants to file a further response to the pending request for preliminary injunction.
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This action is proceeding on plaintiff’s second amended complaint (SAC), ECF No. 60.
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Plaintiff claims that defendants are acting with deliberate indifference to his serious medical need
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for adequate mental health treatment for his diagnosed major depressive disorder (MDD). The
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SAC contains the following allegations. Plaintiff’s MDD has been successfully treated with
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Wellbutrin for periods of time since 2006. In 2010, plaintiff was taken off Wellbutrin and
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prescribed Strattera, which caused his mental health to deteriorate rapidly and led to a “near fatal
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suicide attempt in May 2010.” ECF No. 60 at 3. Since then, plaintiff has been treated with
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“approximately 10 different medications as alternatives to Wellbutrin,” all of which caused him
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“myriad side effects,” and plaintiff ultimately decided to refuse further treatment. ECF No. 60 at
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4. In 2011, plaintiff sought relief in state habeas corpus proceedings but the petition was denied
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because the state court judge found plaintiff had “failed to provide evidence that CDCR staff had
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prescribed Wellbutrin or had even believed that plaintiff should be prescribed Wellbutrin.” ECF
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No. 60 at 5. In 2012, a physician “placed a non-formulary request that plaintiff be prescribed
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Wellbutrin.” ECF No. 60 at 5. That request was ultimately approved and plaintiff was on
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Wellbutrin until March 2015. ECF No. 60 at 5. In March 2015, plaintiff’s prescription for
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Wellbutrin was abruptly stopped “at least in part because of a CDCR perception that other
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inmates have abused and trafficked in Wellbutrin.” ECF No. 60 at 5. Since then, plaintiff has
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suffered the symptoms of MDD. ECF No. 60 at 5-6. In the SAC, plaintiff seeks, inter alia, an
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injunction prohibiting CDCR from failing to prescribe to plaintiff Wellbutrin or other medication
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adequate to treat his MDD. ECF No. 60 at 8.
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The SAC was prepared by an attorney appointed for the limited purpose of preparing an
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amended complaint. ECF No. 48. Counsel was also directed to assess the need for a temporary
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restraining order and, concurrently with the SAC, to “either file a renewed motion for temporary
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restraining order or a notice that no such order is currently sought.” ECF No. 48 at 2. Counsel
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filed the SAC on September 11, 2015, but did not file either a renewed motion for temporary
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restraining or notice that no such order would be sought. Counsel’s appointment terminated with
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the filing of the SAC. ECF No. 48 at 2.
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The motion now before the court was filed by plaintiff pro se. The sole basis for
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defendant Jansen’s opposition to the motion is that defendant Jansen, who is the only defendant to
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appear in this action, has retired and is without authority to prescribe medication for plaintiff.
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Therefore, defendant argues, “the motion should be denied to the extent it seems to compel Dr.
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Jansen to prescribe psychotropic medication to plaintiff.” ECF No. 65 at 2. As defendant
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recognizes, plaintiff alleges that it is a “Dr. Doe” who most recently discontinued plaintiff’s
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Wellbutrin. ECF No. 65. “Dr. Doe” is identified in the SAC as a physician at Kern Valley State
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Prison (KVSP). ECF No. 60 at 5.
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It is plain from the allegations of the SAC, from the motion before the court, and from
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plaintiff’s objections to the findings and recommendations, that the core question before the court
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is whether plaintiff is being denied adequate mental health treatment for his MDD and,
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specifically, whether plaintiff should be treated with Wellbutrin. It may be necessary to identify
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Dr. Doe and/or to add plaintiff’s current treating physicians as defendants in this action in order to
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afford him complete relief if ordered. At this stage, given the allegations of the SAC, the court
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will require defendants to file a further response to the motion for preliminary injunction. Said
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response shall include an explanation of (1) who discontinued plaintiff’s Wellbutrin in March
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2015; (2) why the Wellbutrin was discontinued; (3) what alternative treatment, if any, has been
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provided to plaintiff for his MDD since March 2015; (4) the efficacy, if any, of such treatment;
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and (5) whether any treatment provided has caused plaintiff to suffer side effects and, if so, the
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nature of the side effects. Defendants shall also provide the name(s) of plaintiff’s current mental
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health treatment providers.
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In accordance with the above, IT IS HEREBY ORDERED that within fourteen days from
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the date of this order defendants shall file a further response to plaintiff’s October 22, 2015
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motion.
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DATED: March 1, 2016.
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UNITED STATES DISTRICT JUDGE
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