Armstrong v. Wright-Pearson, CASE NO. CV F 10-1856 LJO JLT

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Decision Date30 November 2012
Docket NumberCASE NO. CV F 10-1856 LJO JLT
PartiesCARRIE ARMSTRONG, Plaintiff, v. SHIRLEEN WRIGHT-PEARSON, et al., Defendants.

SHIRLEEN WRIGHT-PEARSON, et al., Defendants.



Dated: November 30, 2012

(Doc. 45.)


Defendant California Department of Corrections and Rehabilitation ("CDCR") medical staff members seek summary judgment on pro se plaintiff Carrie Armstrong's ("Ms. Armstrong's") First Amendment retaliation and defamation claims as barred by immunities, limitations periods and insufficient supporting facts. This Court considered defendants' summary judgment motion on the record1 and VACATES the December 11, 2012 hearing, pursuant to Local Rule 230(g). For the reasons discussed below, this Court

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In 2006, Ms. Armstrong worked as a registered nurse ("RN") at CDCR's Kern Valley State Prison ("KVSP"). She claims that she was subject to retaliation for speaking out about RN's forced duties which were assigned to physicians and to defamatory statements that she appeared to be on drugs, practiced outside the scope of her RN authority, and diverted narcotics. Defendants2 contend that they were obligated to expose Ms. Armstrong's "unprofessional and dangerous" conduct to render defendants' immune from liability for Ms. Armstrong's claims. Defendants further contend that Ms. Armstrong's claims are barred by limitations defenses and inability to satisfy necessary elements.

Ms. Armstrong's CDCR Employment

During a March 27, 2006 to September 18, 2006 probationary period, CDCR employed Ms. Armstrong as an RN at KVSP to provide nursing services to inmate patients. Ms. Doering states in her declaration that soon after Ms. Armstrong commenced employment, Ms. Armstrong called in sick without speaking to a supervisor, worked unauthorized overtime, and failed to follow her assigned work schedule and to attend mandatory training. On April 3, 2006, Ms. Doering orally counseled Ms. Armstrong on procedures to notify supervisors of absences and to sign in and out of work.

Unauthorized Medication Orders

Dr. Spaeth declares that when working with Ms. Armstrong, "I discovered that she wrote incorrect orders for medication and had indicated on the orders that they were approved by me. The orders were for prescriptions that were not appropriate for the patient and I had not authorized her to write the orders." Dr. Spaeth told Ms. Armstrong in March and April 2006 to never write an order from Dr. Spaeth unless Ms. Armstrong spoke to Dr. Spaeth.

Dr. Spaeth wrote an April 29, 2006 memorandum to nursing director Ms. Wright-Pearson to complain that Ms. Armstrong wrote unauthorized medication orders and was dishonest when Dr. Spaeth confronted Ms. Armstrong about and order Ms. Armstrong attributed to Dr. Akanno. The memorandum

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states: "In the past I have stated to [Ms. Armstrong] very strongly that she is not to write any orders from me unless they are exactly what I have spoken to her either in person or over the phone. I feel she exhibits poor judgment and now I am convinced that she is dishonest." (Italics in original.)

Dr. Spaeth declares that on May 26 and 27, 2006, Ms. Armstrong wrote several medication orders "not given by me" and a "Vicodin 'renewal' that she falsely attributed to me."

Dr. Akanno declares that on June 21, 2006, Ms. Armstrong wrote several unauthorized medication orders on which "I was not contacted," and which included increasing a Gabapentin prescription and ordering Bactrim. Dr. Akanno's August 15, 2006 memorandum to Ms. Wright-Pearson summarized the unauthorized medication orders.

Dr. Patel also discovered that Ms. Armstrong wrote unauthorized medication orders using Dr. Patel's name. Dr. Patel discontinued an order because "the medications were inappropriate" and the "dosages were incorrect." Dr. Patel's August 15, 2006 memorandum to Ms. Wright-Pearson summarized the unauthorized medication order.

Ms. Doering declares that in late June 2006, she orally "counseled Ms. Armstrong to stop writing orders for medication without prior authorization of a physician."

In addition, supervising nurse Ms. Nair's May 27, 2006 memorandum to Ms. Wright-Pearson outlined Ms. Armstrong's authorized medication orders and that Ms. Armstrong "has been working Out of Scope of her RN License by writing Physicians' orders without receiving a direct verbal or via telephone orders from the doctor" and that "it is highly illegal for Ms. Carrie Armstrong to work "out-of-Scope of her RN License." Ms. Wright-Pearson declares that Ms. Nair reported that Ms. Armstrong wrote "orders for medications without prior authorization of a physician," "falsely attribut[ed] orders for medications to physicians," was orally counseled by Drs. Spaeth and Ms. Doering but "continued to write orders without prior authorization of a physician," and "wrote orders for medication with the wrong strength" and "increased the strength of a medication - all without prior authorization of a physician."

In late June 2006, Ms. Doering reported to Ms. Wright-Pearson that Ms. Doering had orally counseled Ms. Armstrong to stop writing unauthorized medication orders, that Dr. Akanno did not want Ms. Armstrong to place his name on orders, and that Dr. Akanno asked if Ms. Armstrong could be

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moved "because she was making mistakes and he did not want her to use his name."

Ms. Armstrong's Termination

Ms. Wright-Pearson's June 28, 2006 memorandum to her supervisor KVSP Health Care Manager Sharon Zamora ("Ms. Zamora") requested Ms. Armstrong's dismissal "[d]ue to the continued issues relating to working out of her scope of practice and the potential falsification of documents by writing unauthorized prescriptions for medical care." The memorandum noted Ms. Armstrong's "practicing medicine that is not within the scope of her license" and "continued practice to ignore direction given and totake heed of supervisory direction" to put CDCR "in a vicarious liability position, as well as the potential loss of the health and safety of the inmates whom she 'administers' to."

Ms. Armstrong was reassigned to the KSVP mail room, effective July 7, 2006, and placed on administrative time off, effective July 21, 2006.

Ms. Doering completed an August 4, 2006 probationary report to rate as unacceptable Ms. Armstrong's skill, work habits and communication. The probationary report stated:

Documentation shows that your accuracy in performing nursing responsibilities is unacceptable. You have written Physicians orders without receiving a direct verbal or telephone order. . . . Despite verbal counseling documentation shows you have continued the practice of writing physicians orders without contacting the physician. This practice is out of the scope of an RN License and is unacceptable. Documentation shows that you wrote inaccurate doses of medication and you discontinued medication prescribed by a physician.

The probationary report recommended that Ms. Armstrong not be granted permanent civil service status.

Ms. Armstrong was rejected probation, ultimately effective September 18, 2006.

Diversion Of Narcotics At Delano Regional Medical Center

On August 2, 2006, Lourdes Villaruz ("Ms. Villaruz"), an RN at KVSP, wrote a letter that she suspected that Ms. Armstron had diverted narcotics, including morphine, at the Delano Regional Medical Center ("DRMC") when Ms. Armstrong and Ms. Villaruz were employed as RN's at DRMC. Ms. Villaruz gave her letter to her supervisor Ms. Nair.

Complaint To California Board Of Registered Nursing

On September 25, 2006, Ms. Wright-Pearson filed with the California Board of Registered Nursing ("Board") a complaint of Ms. Armstrong's "illegal and unethical conduct" at KVSP. The Board complaint states:

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Three different doctors (Spaeth, Akanno and Patel) provided written complaints about RN Armstrong writing orders and telephone orders that they had not given and providing the medications to the patients by sending the prescriptions to the pharmacy for filling. In researching the situation, it was found that she had also signed doctors names to orders who were not on call or in the country at the time. She had gone so far as to tell one patient to stop taking his medication because it was not working. The patient had a crisis for lack of using the prescribe medications. Her practices have been essentially practicing without a license and is in direct conflict with the Nurse Practice Act, Business and Professions Code, Section 2725.
Department Of Consumer Affairs Investigation

The Board referred Ms. Wright-Pearson's complaint to the California Department of Consumer Affairs ("DCA") for...

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