Ashker v. Alameida et al

Filing 570

ORDER RE PLAINTIFFS DECEMBER 10, 2013 NOTICE OF DEFENDANTS VIOLATION OF COURTS ORDER. Signed by Judge Claudia Wilken on 3/7/2013. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 3/7/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TODD A. ASHKER,

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Plaintiff,

ORDER RE
PLAINTIFF’S
DECEMBER 10, 2013
NOTICE OF
DEFENDANTS’
VIOLATION OF
COURT’S ORDER

v.
MICHAEL C. SAYRE, et al.,

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No. C 05-3759 CW

Defendants.
________________________________/

United States District Court
For the Northern District of California

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Plaintiff has filed a notice of violation of the Court’s

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February 4, 2010 Order for Specific Performance.

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filed a response.

The matter was decided on the papers.

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Defendants have

BACKGROUND
Following a five-day jury trial, on February 4, 2010, this

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Court entered an Order for Specific Performance of the 2002

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Settlement Agreement between the California Department of

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Corrections and Rehabilitation (CDCR) and Plaintiff.

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required, among other things, that Defendants arrange for a

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consultation with a pain management specialist to establish a pain

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management regimen.

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The order

Defendants were further ordered to

implement the specialist’s recommended pain management
regimen and continue that regimen until . . . the
specialist and the CDCR’s physician concur in the
opinion that Plaintiff’s medical needs have changed such
that the regimen should be changed or discontinued.

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Docket. No. 434 at 13.

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a report every three weeks indicating the status of the

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performance of the 2002 Settlement Agreement between the CDCR and

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Plaintiff.

Finally, Defendants were ordered to submit

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Plaintiff was evaluated by a pain specialist at the UCSF Pain
Management Center.

The specialist recommended as follows:

As the patient has received excellent pain relief from
concurrent use of Ultram and Tylenol in the past, we
will recommend that the patient be weaned off of
morphine and started on Ultram 50 mg three times daily.
The patient can also use Tylenol 650 mg along with
Ultram in three times daily dosing, as long as he is
clear from a medical standpoint. Although the patient
does have a history of hepatitis C, he reports there are
no current issues with his liver.

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Ashker Dec. ISO Notice of Violation, Ex. A.

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evaluation, Defendants began providing Plaintiff with 50 mg of

United States District Court
For the Northern District of California

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Following the

Ultram and 650 mg of Tylenol three times daily.

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On April 9, 2012, this Court entered an order in which it

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found that Defendants had “fulfilled the requirements in the Order

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for Specific Performance.”

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Court ordered Defendants to submit a progress report once a year,

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instead of once every three weeks.

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Defendants to “inform the Court immediately of any change in the

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medical condition of Plaintiff’s injured arm or in the treatment

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program that [they] now provide[] to Plaintiff.”

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at 3.

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Docket No. 550 at 3.

Accordingly, the

However, the Court ordered

Docket No. 550

Plaintiff’s prescription for Tylenol was discontinued on

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October 26, 2012.

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using the prison’s Health Care Services Request Form were

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unsuccessful, Plaintiff filed the instant notice of violation on

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December 10, 2012.

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After efforts to have his prescription refilled

On January 9, 2013, Plaintiff had a blood test that indicated

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his liver function was normal.

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On January 15, 2013, Plaintiff’s prescription for 650 mg of

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Tylenol three times daily was renewed.

Ashker Dec. ISO Reply ¶¶ 13, 14.

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Id. at ¶ 14.

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DISCUSSION

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Defendants assert that the pain management specialist’s

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statement that Plaintiff “can also use Tylenol 650 mg along with

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Ultram in three times daily dosing, as long as he is clear from a

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medical standpoint” indicates that the use of Tylenol was

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“permissive, and not a mandatory part of the recommended pain

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management regimen.”

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further note that the recommendation “was made in the context of

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the potential concern for liver problems in association with Mr.

Defendants’ Response at 2.

Defendants

United States District Court
For the Northern District of California

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Ashker’s history of hepatitis C.”

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interprets the pain management specialist’s recommendation to

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provide for the 650 mg of Tylenol three times daily unless there

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is a medical reason not to do so.

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Id.

However, the Court

Here, Defendants discontinued Plaintiff’s prescription over

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two months before testing him to determine if there was a medical

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reason for him to stop taking the Tylenol.

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test revealed that any concerns about Plaintiff’s liver were

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unfounded.

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Moreover the blood

Accordingly, the Court finds that Defendants violated the

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Court’s February 4, 2010 Order for Specific Performance.

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addition, Defendants’ failure to inform the Court of the change to

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Plaintiff’s treatment program was a violation of the Court’s April

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9, 2012 Order.

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receiving the 650 mg of Tylenol three times daily as recommended

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by the pain management specialist and no action by the Court is

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necessary at this time.

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In

However, it appears that Plaintiff is currently

Going forward, Defendants shall continue to renew Plaintiff’s
prescription for 650 mg of Tylenol three times daily unless they
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have a documented medical reason for discontinuing the drug.

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Moreover, Defendants are reminded of the Court’s order that they

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inform the Court immediately of any change in the medical

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condition of Plaintiff’s injured arm or in the treatment program

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that they provide to Plaintiff.

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Court of the reasons for any such changes.

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Defendants shall also inform the

IT IS SO ORDERED.

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United States District Court
For the Northern District of California

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Dated: 3/7/2013
CLAUDIA WILKEN
United States District Judge

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