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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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 TODD A. ASHKER, 5 6 7 Plaintiff, ORDER RE PLAINTIFF’S DECEMBER 10, 2013 NOTICE OF DEFENDANTS’ VIOLATION OF COURT’S ORDER v. MICHAEL C. SAYRE, et al., 8 9 No. C 05-3759 CW Defendants. ________________________________/ United States District Court For the Northern District of California 10 11 Plaintiff has filed a notice of violation of the Court’s 12 February 4, 2010 Order for Specific Performance. 13 filed a response. The matter was decided on the papers. 14 15 Defendants have BACKGROUND Following a five-day jury trial, on February 4, 2010, this 16 Court entered an Order for Specific Performance of the 2002 17 Settlement Agreement between the California Department of 18 Corrections and Rehabilitation (CDCR) and Plaintiff. 19 required, among other things, that Defendants arrange for a 20 consultation with a pain management specialist to establish a pain 21 management regimen. 22 23 24 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. 25 Docket. No. 434 at 13. 26 a report every three weeks indicating the status of the 27 performance of the 2002 Settlement Agreement between the CDCR and 28 Plaintiff. Finally, Defendants were ordered to submit 1 2 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. 3 4 5 6 7 8 Ashker Dec. ISO Notice of Violation, Ex. A. 9 evaluation, Defendants began providing Plaintiff with 50 mg of United States District Court For the Northern District of California 10 Following the Ultram and 650 mg of Tylenol three times daily. 11 On April 9, 2012, this Court entered an order in which it 12 found that Defendants had “fulfilled the requirements in the Order 13 for Specific Performance.” 14 Court ordered Defendants to submit a progress report once a year, 15 instead of once every three weeks. 16 Defendants to “inform the Court immediately of any change in the 17 medical condition of Plaintiff’s injured arm or in the treatment 18 program that [they] now provide[] to Plaintiff.” 19 at 3. 20 Docket No. 550 at 3. Accordingly, the However, the Court ordered Docket No. 550 Plaintiff’s prescription for Tylenol was discontinued on 21 October 26, 2012. 22 using the prison’s Health Care Services Request Form were 23 unsuccessful, Plaintiff filed the instant notice of violation on 24 December 10, 2012. 25 After efforts to have his prescription refilled On January 9, 2013, Plaintiff had a blood test that indicated 26 his liver function was normal. 27 On January 15, 2013, Plaintiff’s prescription for 650 mg of 28 Tylenol three times daily was renewed. Ashker Dec. ISO Reply ¶¶ 13, 14. 2 Id. at ¶ 14. 1 DISCUSSION 2 Defendants assert that the pain management specialist’s 3 statement that Plaintiff “can also use Tylenol 650 mg along with 4 Ultram in three times daily dosing, as long as he is clear from a 5 medical standpoint” indicates that the use of Tylenol was 6 “permissive, and not a mandatory part of the recommended pain 7 management regimen.” 8 further note that the recommendation “was made in the context of 9 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 10 Ashker’s history of hepatitis C.” 11 interprets the pain management specialist’s recommendation to 12 provide for the 650 mg of Tylenol three times daily unless there 13 is a medical reason not to do so. 14 Id. However, the Court Here, Defendants discontinued Plaintiff’s prescription over 15 two months before testing him to determine if there was a medical 16 reason for him to stop taking the Tylenol. 17 test revealed that any concerns about Plaintiff’s liver were 18 unfounded. 19 Moreover the blood Accordingly, the Court finds that Defendants violated the 20 Court’s February 4, 2010 Order for Specific Performance. 21 addition, Defendants’ failure to inform the Court of the change to 22 Plaintiff’s treatment program was a violation of the Court’s April 23 9, 2012 Order. 24 receiving the 650 mg of Tylenol three times daily as recommended 25 by the pain management specialist and no action by the Court is 26 necessary at this time. 27 28 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 3 1 have a documented medical reason for discontinuing the drug. 2 Moreover, Defendants are reminded of the Court’s order that they 3 inform the Court immediately of any change in the medical 4 condition of Plaintiff’s injured arm or in the treatment program 5 that they provide to Plaintiff. 6 Court of the reasons for any such changes. 7 Defendants shall also inform the IT IS SO ORDERED. 8 9 United States District Court For the Northern District of California 10 Dated: 3/7/2013 CLAUDIA WILKEN United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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