Gray v. Romero
| Decision Date | 30 April 2018 |
| Docket Number | 1:13-cv-01473-DAD-GSA-PC |
| Court | U.S. District Court — Eastern District of California |
| Parties | DANA GRAY, Plaintiff, v. ROMERO, et al., Defendants. |
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE PROCEED AGAINST DEFENDANT DR. ROMERO ON PLAINTIFF'S EIGHTH AMENDMENT MEDICAL CLAIM AND STATE LAW MEDICAL MALPRACTICE CLAIM, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED FOR FAILURE TO STATE A CLAIM
(ECF No. 307.)
Dana Gray ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case was filed on September 12, 2013. (ECF No. 1.) On February 12, 2018, Plaintiff filed the Sixth Amended Complaint, which is now before the court for screening. (ECF No. 307.)
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that the action or appeal fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
A complaint is required to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal 556 U.S. at 678. While factual allegations are accepted as true, legal conclusions are not. Id.
To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.
Plaintiff is presently incarcerated at the Central California Women's Facility (CCWF) in Chowchilla, California, where the events at issue in the Sixth Amended Complaint allegedly occurred. Plaintiff names as defendants V. Romero (M.D.), A. Comelli (M.D.), N. Loadholdt (Family Nurse Practitioner), C. Rebel (M.D.), J. Ziomek (D.P.M (Podiatrist)), V. Mundunuri (M.D.), and the Medical Chief Executives (collectively "Defendants"). A summary of Plaintiff's factual allegations follow.
The gravamen of Plaintiff's Sixth Amended Complaint is that medical staff at CCWF failed to provide her with adequate medical care. During the time period between 1997 and 2006, Plaintiff was diagnosed with leg length discrepancy (LLD), sciatic pain, pelvicasymmetry, abnormal lumbar spine, and loss of normal lumbar lordosis. Plaintiff alleges that her medical condition causes her excruciating pain. Plaintiff also alleges that all of the Defendants knew about her serious medical needs because they had access to her medical records.
Plaintiff alleges that all of her claims are timely. Plaintiff claims that she did not become aware of her iatrogenic lumbar scoliosis with nerve root compression (LSNC) until April 19, 2011, when her March 15, 2011 MRI was interpreted by another spine specialist. Additionally, she did not become aware of the intense confusion and ambiguities about her diagnoses and treatment by all Defendants until January 4, 2013, when she saw neurologist Dr. Ehteshami [not a defendant] who created uncertainty about the cause of her pain despite two MRI's showing iatrogenic LSNC. Plaintiff also states that she exhausted all of her administrative remedies, including the requirement to file a timely Government Claim form in California.
Plaintiff alleges that Defendants' conduct caused her to suffer from worsening sciatica, unrelieved pain, right leg and foot numbness, inability to walk long distances, inability to run, severe drug withdrawal symptoms, denial of all ADA accommodations, delayed surgery, emotional distress, depression, and five-pound limitations on lifting, pushing, and pulling.
CLAIM I - MEDICAL CARE - DEFENDANT REBEL, M.D.
Plaintiff alleges that Dr. Rebel, orthopedic specialist, knowingly, intentionally, and actively concealed Plaintiff's serious medical needs of LLD, sciatica, and abnormal lumbar lordosis, denying Plaintiff orthotics and causing Plaintiff to develop excruciatingly painful iatrogenic lumbar scoliosis.
On October 19, 2006, and August 9, 2007, Dr. Rebel stated that Plaintiff does not have LLD, and did so without taking measurements or x-rays. Plaintiff was referred to Dr. Rebel for severe hip pain. He gave her a diagnosis of early osteo-arthritis of the hip so as to actively conceal the relatedness of Plaintiff's hip pain to her serious medical needs. He reviewed Plaintiff's hip x-rays taken in July 2007, and stated that they show minor osteo-arthritic changes in both hips. Plaintiff believes that her x-rays were normal because x-rays takenbefore and after July 2007 were completely normal. Dr. Rebel ordered Plaintiff a walker believing it would relieve hip and lower back pain. Dr. Rebel refused to discuss Plaintiff's lumbar spine diagnostic tests and MRI, intentionally concealing early lumbar abnormalities. Dr. Rebel performed no physical exam to address sciatica and refused to confirm Dr. Pace's [not a defendant] measurement of Plaintiff's LLD. Dr. Rebel diagnosed Plaintiff with chronic pain syndrome, and did so to intentionally subject Plaintiff to years of severe pain which was otherwise treatable and severe emotional distress. As an orthopedic specialist, Dr. Rebel should have known to interpret loss of lumbar lordosis on an MRI as a sign of lumbar stress and strain. Plaintiff's other medical providers relied on Dr. Rebel's diagnosis that Plaintiff does not have LLD and therefore refused to provide Plaintiff with orthotics.
CLAIM II - MEDICAL CARE - DEFENDANT ZIOMEK, D.P.M.
Plaintiff alleges that Dr. Ziomek, podiatrist, knowingly, intentionally, and actively concealed Plaintiff's serious medical needs of LLD and sciatica, denying Plaintiff orthotics and causing Plaintiff to suffer from LSNC from untreated LLD.
On April 4, 2004, Dr. Ziomek issued Plaintiff a heel lift chrono. On June 10, 2008, Dr. Ziomek tested Plaintiff for LLD with one leg on the ground, the other leg elevated, and both knees extended and concluded that Plaintiff's leg had no LLD, and thus denied Plaintiff orthotics. Plaintiff believes this was an illegitimate physical exam, that Dr. Ziomek knew that measurement and x-ray are the only reliable methods to confirm LLD, and that he intentionally concealed Plaintiff's proven LLD. Plaintiff's other medical providers relied on this diagnosis, and Plaintiff was not referred to another podiatrist or given orthotic treatment until 2013. Dr. Ziomek diagnosed Plaintiff with "normal feet" based on a foot exam, noted Plaintiff's history of plantar fasciitis, and prescribed medications for foot pain. (ECF No. 307 at 9 ¶4.) Plaintiff alleges that Dr. Ziomek was trained to recognize the referred foot pain of sciatica and to differentiate it from pain originating in the foot. Dr. Ziomek did not examine Plaintiff's lower back nor refer Plaintiff to a second opinion specialist who could do so. He denied Plaintiff a trial of orthotics based on his diagnosis of plantar fasciitis causing Plaintiff to suffer sciatic pain and to develop iatrogenic LSNC from untreated LLD. Dr. Ziomek was hostile toward Plaintiffduring the June 10, 2008 visit, which took place immediately after Dr. Ziomek met with appeals coordinator Kathy Cane [not a defendant]. Plaintiff was diagnosed with LSNC on March 15, 2011, by MRI.
CLAIM III - MEDICAL CARE - DEFENDANT ROMERO, M.D.
Plaintiff alleges that Dr. Romero, Plaintiff's primary care provider from 2006 to 2010, knowingly, intentionally, and actively concealed Plaintiff's serious medical needs of LLD and worsening sciatica, causing Plaintiff to suffer excruciating unrelieved pain, undiagnosed iatrogenic LSNC from untreated LLD, and severe emotional distress.
From 2006 to 2010, Dr. Romero refused to acknowledge or measure Plaintiff for LLD. From 2007 to 2010, Dr. Romero intentionally concealed Plaintiff's worsening sciatica. Dr. Romero refused to do a thorough physical exam to address sciatica, refused to record sciatica in Plaintiff's medical history or problem list, and noted Plaintiff's use of Neurontin for seizures on April 29, 2010, when it had been recommended by Neurologist Dr. Calne [not a defendant] for sciatica. On December 8, 2009, Dr. Romero ordered an injection of Toradol for Plaintiff's hip pain without ordering any testing to determine an underlying cause. From 2007 to 2010, Dr. Romero ordered no x-rays or MRI to determine the cause of Plaintiff's pain. Because of Dr. Romero's treatment Plaintiff filed at least nine 602 health care appeals for renewal of pain medication from 2007 to 2010.
On August 6, 2009, Dr. Romero demanded that Plaintiff "prove she had radiculopathy"1 to get a renewal of pain medication, knowing she (Romero) had done nothing to...
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