-RC Juan Manuel Garcia-Merino v. Patti Irvin et al, No. 8:2006cv00102 - Document 235 (C.D. Cal. 2011)
Court Description: COURTS FINDINGS OF FACT AND CONCLUSIONS OF LAW by Judge Stephen V. Wilson, For the reasons stated, Plaintiffs claim is DENIED. The Court ORDERS that Defendants are not liable to Plaintiff, and that Plaintiff take nothing by this action. Plaintiffs action is dismissed on the merits with prejudice, and FINAL JUDGMENT is entered for Defendants. 230 (MD JS-6, Case Terminated). (pj)
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-RC Juan Manuel Garcia-Merino v. Patti Irvin et al Doc. 235 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 JUAN MANUEL GARCIA-MERINO, 12 Plaintiff, 13 14 v. 15 16 17 PATTI IRVIN, et al., 18 Defendants. 19 20 21 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) SA-CV 06-0102 SVW (RCx) COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW JS6 22 23 24 25 26 27 28 I. INTRODUCTION Juan Manuel Garcia-Merino (“Plaintiff”) filed this action alleging a violation of his Eighth Amendment right to be free from cruel and unusual punishment. Plaintiff’s claim arises out of the alleged failure of a primary care physician, Dr. Jesus Fernandez, and an administrator, Stacey Allen, (collectively, “Defendants”) to schedule a Dockets.Justia.com 1 surgery allegedly required to repair a fracture in Plaintiff’s hand 2 while Plaintiff was incarcerated at the Federal Correctional Institute 3 I, in Victorville, California (“FCI 1"). 4 defendants; however, the Court previously granted summary judgment on 5 qualified immunity grounds to these defendants. 6 granted summary judgment on qualified immunity grounds only with 7 respect to his actions taken prior to his investigation of Plaintiff’s 8 December 28, 2005 administrative complaint. 9 Plaintiff also named other Stacey Allen was also The Court held a four-day trial on November 16-17, 2010 and 10 December 9-10, 2010. 11 submitted direct examination testimony, and examined the record, the 12 Court finds that Defendants did not violate Plaintiff's Eighth 13 Amendment right to be free from cruel and unusual punishment. 14 Having heard the evidence at trial, reviewed the The essence of Plaintiff’s claim is that Defendants caused delays 15 in providing his prescribed hand surgery, resulting in unnecessary pain 16 and permanent damage to his hand. 17 permanently deferred to a specialist’s (Dr. Puri’s) recommendation for 18 surgery, and failed to oversee that the surgery took place in a timely 19 manner. 20 recommendation for surgery, though he was aware that treating Plaintiff 21 with a splint and painkillers would be medically acceptable. 22 Dr. Fernandez did not exhibit deliberate indifference toward Plaintiff 23 because Dr. Fernandez, following established protocol, forwarded 24 surgery requests to a third party scheduler. 25 demonstrated that Dr. Fernandez had authority to follow up and ensure 26 the surgery had taken place once Dr. Fernandez forwarded surgery 27 requests for scheduling. Plaintiff claims that Dr. Fernandez The Court finds that initially, Dr. Fernandez did defer to the 28 2 However, Plaintiff has not 1 Even if Dr. Fernandez had authority to ensure surgeries had in 2 fact taken place once he approved and forwarded a surgery 3 recommendation, Plaintiff has not shown he was not deliberately 4 indifferent. 5 specialists for evaluation and surgery once he discovered that the 6 original surgery had not been properly scheduled. 7 specialist recommended surgery for Plaintiff. 8 Fernandez’s own medical opinion that a splint and painkillers were 9 medically acceptable treatment, and Dr. Fernandez continued to treat 10 Plaintiff in a medically acceptable manner while Plaintiff was at FCI 11 1. 12 of treatment was medically unacceptable. 13 Dr. Fernandez continued to send Plaintiff to hand However, no other This confirmed Dr. Plaintiff has not met his burden in showing Dr. Fernandez’s method As to Defendant Allen, Plaintiff essentially alleges that Allen 14 caused a delay in his prescribed surgery by failing to oversee that he 15 received the surgery once it was scheduled. 16 demonstrated that surgery was his prescribed treatment by the time 17 Allen became involved. 18 medical idle status and worker’s compensation in December 2005, well 19 after the alleged delays in surgery. 20 Allen had a responsibility to ensure that Plaintiff received surgery in 21 this memorandum. 22 memorandum suggests he was deliberately indifferent to Plaintiff’s 23 medical needs. 24 However, Plaintiff has not Allen wrote a memorandum concerning Plaintiff’s Plaintiff has not shown that Furthermore, Plaintiff has not shown that Allen’s Finally, even if Plaintiff had demonstrated that Defendants were 25 deliberately indifferent to his serious medical needs, Plaintiff has 26 not demonstrated that Defendants caused him any harm. 27 Plaintiff experienced was treated with painkillers and a necessary part 28 3 Any pain 1 of the healing process. 2 medically acceptable fashion, without permanent damage. 3 II. 4 Furthermore, Plaintiff’s hand healed in a FINDINGS OF FACT Plaintiff was incarcerated at FCI 1 from November 8, 2002 through 5 February 9, 2007. 6 right hand on May 14, 2005. 7 facility the same day, where a physician’s assistant, Ms. Lilia 8 Castillo, ordered x-rays, wrapped the hand with an elastic bandage, and 9 gave Plaintiff a prescription for Ibuprofen for his pain. Plaintiff injured the base of his ring finger in his Plaintiff went to the prison medical The 10 physician assistant’s injury assessment report noted the “need to rule 11 out a fracture” of Plaintiff’s hand. 12 Dr. Fernandez, the treating physician on call, reviewed and approved 13 the injury assessment report and signed off on the treatment, including 14 the need for x-rays.1 15 One or two days later, Defendant During the next ten days following the injury, Plaintiff informed 16 Mr. Louis Sterling, an Assistant Health Services Administrator,2 on 17 three occasions that Plaintiff needed an x-ray on his hand. 18 also discussed his injury with Dr. Fernandez following the injury. 19 Fernandez told Plaintiff to talk to the Physician’s Assistant at Health Plaintiff Dr. 20 21 22 23 1 As a medical officer, it was Dr. Fernandez's duty to ensure that inmates received proper medical care. Dr. Fernandez was responsible for Plaintiff’s medical treatment. Exs. 57-3, 57-4. Dr. Fernandez was employed as a medical officer at FCI 1 in 2005 and 2006. Fernandez Dec. ¶¶ 2-5. 24 2 25 26 27 28 Assistant Health Services Administrators (“AHSAs”) have administrative supervisory duties over mid-level practitioners and personnel involved with medical records, laboratories, x-rays, and pharmacies. Ex. 21-2. Other duties include fiscal management, personnel management, public relations, working collaboratively with physicians in evaluating and revising program plans, and prison security. Ex. 21. 4 1 Services. 2 week period. 3 Plaintiff went to Health Services regularly during this two- Officials in Health Services took x-rays of Plaintiff’s hand on 4 May 24, 2005. 5 bone in his right hand 6 Plaintiff’s hand was placed in a splint. 7 Plaintiff was examined by an orthopedic surgeon, Doctor Rajiv Puri, for 8 a follow-up requested by Dr. Fernandez for a prior knee and ankle 9 surgery. The x-rays confirmed a fracture in the fourth metacarpal Ex. 7. – the bone at the base of the ring finger. Two days later, on May 26, Dr. Fernandez personally attended this meeting. 10 Medical staff at FCI 1 requested that Dr. Puri examine Plaintiff’s hand 11 at this meeting in addition to the follow-up examination. 12 Dr. Puri was a contract consultant for Medical Development 13 International, Ltd (“MDI”), a company that contracted with the Bureau 14 of Prisons (“BOP”). 15 consultations at FCI 1 as needed per its agreement with the BOP. 16 contractor with MDI, Dr. Puri provided orthopedic specialty services at 17 the prison in 2004 and 2005. 18 provide services for BOP through MDI sometime in July, 2005, after his 19 last trip to FCI 1 on July 12. 20 MDI contracted with physicians to perform medical As a Puri voluntarily ended his agreement to At the time of this meeting on May 26, 2005, Dr. Puri determined 21 that the fracture in Plaintiff’s hand was “angulated” by a visual 22 examination of Plaintiff’s hand and by examining the May 24, 2005 hand 23 x-rays. 24 splint, but do not indicate that Dr. Puri was aware that Plaintiff was 25 receiving Ibuprofen.3 Dr. Puri’s notes acknowledged that Plaintiff’s hand was on a Ex. 7. Dr. Puri prescribed open reduction 26 27 28 3 However, Ms. Castillo’s notes from her consultation with Plaintiff on May 14, 2005, were in Plaintiff’s file. These notes indicate that Plaintiff was receiving Ibuprofen. Ex. 1. Dr. Puri had access to 5 1 internal fixation (“ORIF”) surgery to treat the fracture. 2 believed the ORIF surgery was necessary because the fracture would 3 otherwise take a long time to heal and subject Plaintiff to pain during 4 the healing process. 5 surgery, there was a chance that the fracture could heal improperly, 6 causing problems such as decreased grip strength and disfigurement. 7 Dr. Puri testified that his usual practice is to indicate a need for 8 pain medication in his notes if he feels the prisoner needs pain 9 medication. Dr. Puri Further, Dr. Puri believed that without the However, despite the fact that pain is greatest soon after 10 the fracture, Dr. Puri did not indicate Plaintiff needed stronger pain 11 medication than Ibuprofen or prescribe any medication on May 24, 2005. 12 Trial Transcript Vol. 3 at 9: 7-22. 13 refer to pain. In fact, Dr. Puri’s notes do not 14 Defendant Dr. Fernandez had accompanied Plaintiff to the 15 examination room where the Plaintiff’s meeting with Dr. Puri took 16 place. 17 recommendation for surgery to be performed on June 2, 2005. 18 The notes do not indicate any sense of urgency, but state simply that 19 Plaintiff had a fracture in his fourth metacarpal bone and that he was 20 recommended “for ORIF on 6/2/05.” 21 pain. 22 2005 date because the date was particularly convenient in his schedule. 23 Trial Transcript Vol 3. at 11:11-14; Fernandez Dec. ¶ 9. 24 not indicate that he felt it was urgent that Plaintiff receive the Dr. Puri made notes of the examination and prepared a Ex. 7. Ex. 7. The notes do not mention Dr. Puri indicated to Dr. Fernandez that he selected the June 2, Dr. Puri did 25 26 27 28 this file and presumably reviewed these notes. To the extent Dr. Puri did not review these notes, the record does not show that Dr. Puri would have been aware that Plaintiff was receiving any pain medication. 6 1 surgery. 2 9. 3 and wrote “ASAP” on the request. 4 and Dr. Fernandez’s testimony confirm that Dr. Fernandez wrote “ASAP” 5 on the request because of the proximity of the June 2 date, rather than 6 any belief that it was urgent that Plaintiff receive the surgery. 7 Trial Transcript Vol 3. at 10:25; 11:1-4; Fernandez Dec. ¶ 15. 8 Fernandez then delivered the form 513 to the medical secretary for 9 scheduling. 10 11 Trial Transcript Vol 3. at 10:25; 11:1-14; Fernandez Dec. ¶ Dr. Fernandez prepared a written request for surgery (a “form 513") Ex. 6. Dr. Puri’s testimony at trial Dr. The medical secretary then faxed the form to MDI, which was received by MDI on May 31, 2005. Ex. 6. MDI was responsible for contacting an outside specialist to 12 schedule the surgery. 13 secretary, Ms. Kline, at FCI 1 that the appointment had been scheduled. 14 Sterling Dep. at 68; Allen Dec. ¶ 4; Kline Dep. at 19-25; Fernandez 15 Dec. ¶ 19. 16 reschedule cancelled appointments directly out of concern for inmates’ 17 urgent medical needs, Kline Dep. at 41, but he was reprimanded as he 18 does not have authority to schedule appointments. 19 MDI was also responsible for confirming with the In the past, Dr. Fernandez called service providers to Fernandez Dec. ¶ 23. Dr. Fernandez assumed that the medical secretary had contacted MDI 20 and that the procedure had been scheduled. 21 inmates are not given advance notice of when they will be leaving the 22 facility for scheduled appointments. 23 knew of a trip, Ms. Kline would be required to cancel the appointment 24 and reschedule. 25 information, Dr. Fernandez did not keep records of outside appointments 26 and did not know exactly when Plaintiff’s surgery was scheduled. Kline Dep. at 43. For security reasons, Kline Dep. at 43. If an inmate To avoid disclosing this 27 28 7 1 The surgery on June 2, 2005 with Dr. Puri was never scheduled by 2 MDI for unknown reasons. 3 another surgeon, Dr. George T. Craig, for a date well after June 2, 4 2005. 5 Dr. Fernandez was not informed by Dr. Puri or MDI that the surgery was 6 not scheduled for June 2, 2005. 7 no system or policy in place to notify a physician that a scheduled 8 appointment had been changed or canceled. 9 Dec. ¶ 6. 10 MDI scheduled Dr. Puri’s appointment with Dr. Fernandez was not responsible for MDI’s scheduling decision. During the relevant period there was Fernandez Dec. ¶ 27; Allen On June 28, 2005, the MDI scheduler advised Ms. Kline that the 11 surgery was scheduled with Dr. Craig and that Dr. Craig had to cancel 12 his upcoming appointment because he would be out of the office. 13 appointment was scheduled for August 4, 2005. 14 Meanwhile, on July 2, 2005, Plaintiff contacted Mr. Louis Sterling, the 15 Assistant Health Services Administrator at FCI 1, asking when the 16 surgery recommended by Dr. Puri would be performed. 17 informed Plaintiff that he would be seen by Dr. Craig. 18 The Kline Dep. 61. Mr. Sterling On July 12, 2005, while Plaintiff’s appointment with Dr. Craig was 19 still pending, Dr. Puri met with Plaintiff for a second time on a 20 routine visit to FCI 1. 21 Plaintiff had a malunited fracture in the right fourth metacarpal. 22 trial, Dr. Puri indicated that the optimal period for ORIF surgery was 23 within six weeks of the fracture, because new bone (known as a 24 “callus”) could have formed by six weeks, beginning the natural healing 25 process. 26 current set of x-rays, he was uncertain “whether the fracture had or 27 had not actually healed as of July 12, 2005.” Dr. Puri wrote in Plaintiff's chart that At Dr. Puri also indicated that because he did not have a 28 8 Puri Dec. ¶ 23. 1 Nonetheless, Dr. Puri recommended surgery because Plaintiff told him 2 that the “bump” on his hand was hurting, and because Plaintiff was 3 concerned about the fact that the knuckle was missing. 4 notes affirm his reasoning: “Insists on correcting the malunion. 5 Painful bump. 6 restoring the knuckle[.] For ORIF [fracture] [right] 4th [metacarpal].” 7 Ex. 9. 8 correction of the malunion,” he was referring to the Plaintiff 9 insisting on the surgery. Dr. Puri ’s Adv[ised] will remove the bump, but no guarantee for At trial, Dr. Puri explained that when he wrote “insists on Trial Transcript Vol. 3 at 13:14-19. 10 Further, the notation regarding a “painful bump” was based on Plaintiff 11 informing Dr. Puri that the “bump” was hurting him. 12 28. 13 pain medication than Ibuprofen was needed. 14 recommendation in Plaintiff’s file and had no further contact with Dr. 15 Fernandez. 16 meeting. 17 notes from July 12, 2005 in Plaintiff’s file, Dr. Puri did not 18 communicate with Dr. Fernandez about his recommendation for surgery. 19 Puri Dec. ¶¶ 27- Dr. Puri did not prescribe pain medication or indicate stronger Dr. Puri placed his Dr. Fernandez was not present during the July 12, 2005 Aside from the notes and conversation on May 26, 2005, and Dr. Fernandez reviewed and signed Dr. Puri’s second recommendation 20 for surgery. 21 Puri’s July 12, 2005 notes that Dr. Puri was indicating that surgery 22 might remove the bump on Mr. Garcia-Merino’s right hand. 23 Dec. ¶ 29. 24 Dr. Puri intended to convey, that Plaintiff was “insist[ing] on” the 25 surgery, not Dr. Puri. 26 He understood that Dr. Puri warned that the ORIF procedure was “no 27 guarantee” for improvement. Dr. Fernandez believed based upon his review of Dr. Fernandez Dr. Fernandez reasonably interpreted the notes to mean, as Trial Transcript Vol. 1 at 50: 24-25; 51: 1-9. Fernandez Dec. ¶ 29. 28 9 The only advantage 1 for doing the procedure, according to Dr. Puri’s notes, was to remove 2 the bump, which Plaintiff claimed was hurting. 3 During the time Dr. Fernandez was responsible for Plaintiff’s 4 treatment, Dr. Fernandez was aware that another viable method of 5 treatment was to treat the fracture conservatively by using a splint 6 and Ibuprofen. 7 approved and forwarded the request for surgery on August 1, 2005, about 8 three weeks after Dr. Puri made his second recommendation for surgery. 9 Dr. Fernandez did not exercise his independent medical judgment in Fernandez Dec. ¶ 29. Fernandez Dec. ¶ 29. Nonetheless, Dr. Fernandez 10 making this decision. 11 of surgery, he deferred to Dr. Puri's expertise. 12 1 at 49:17-22; 60: 20-23; 61:8-15. 13 sent an additional 513 on behalf of Dr. Fernandez requesting surgical 14 intervention and evaluation by Dr. Craig.4 15 Despite his reservations regarding the necessity Trial Transcript Vol. On August 10, 2005, Mr. Sterling Sterling Dep. at 142. After Mr. Sterling contacted MDI and after Dr. Fernandez forwarded 16 the request for surgery on August 1, 2005, MDI rescheduled Plaintiff’s 17 appointment with Dr. Craig from September 1, 2005 to September 8, 2005. 18 Ex. 12. 19 according to Ms. Kline. 20 responsible for this decision. 21 Plaintiff made repeated attempts to obtain the prescribed surgery. 22 This change likely occurred because of Dr. Craig’s schedule, Kline Depo. at 60. Dr. Fernandez was not Throughout the summer and fall of 2005, On September 8, 2005, Plaintiff was sent off-site to meet with Dr. 23 Craig pursuant to Dr. Fernandez’s initial 513 request for surgery. 24 Craig, however, chose not to perform the surgery because he wanted more 25 recent x-rays to evaluate whether Plaintiff was a candidate for Dr. 26 27 28 4 As an AHSA, Mr. Sterling had the ability to sign 513 request forms on behalf of Dr. Fernandez. 10 1 surgery. 2 office to obtain those x-rays on September 8, 2005 due to security 3 reasons. 4 September 8, 2005. 5 w[ithout] xray, see no reason for surgery.” 6 original). Plaintiff was not allowed to travel outside Dr. Craig’s Dr. Craig did, however, visually examine Plaintiff’s hand on Ex. 122. The notes stated, “[A]t this time, Ex. 122-2 (emphasis in 7 Dr. Fernandez was not present at Plaintiff’s September 8, 2005 8 meeting with Dr. Craig. Based on a reading of other portions of Dr. 9 Craig’s notes, Dr. Fernandez believed that Plaintiff had good range of 10 motion and strength in his finger.5 11 surgery was necessary despite Dr. Puri's earlier recommendation for 12 surgery, Dr. Fernandez believed that Plaintiff should continue to be 13 treated with a splint and Ibuprofen until further evaluation. 14 As Dr. Craig did not indicate Dr. Fernandez arranged a follow-up consult for Plaintiff with Dr. 15 Craig after the URC approved further x-rays on September 29, 2005. 16 60. 17 that he would see Dr. Craig again. 18 The requested x-rays were taken on October 19, 2005, and a radiological 19 report of the x-rays was prepared on October 26, 2005. 20 noted: “MAJOR ABNORMALITY, PHYSICIAN AWARE.” Dr. Craig again evaluated 21 Plaintiff on October 31, 2005 and reviewed the radiological report. 22 Ex. 117. 23 rays, and stated, “Perhaps . . . there is limited indication to 24 internal[ly] fix this f[racture]. . . . Perhaps could do external Ex. Dr. Fernandez informed Plaintiff in writing on September 29, 2005, Fernandez Dec. ¶¶ 33-34; Ex. 60. The report Dr. Craig noted the lack of callus formation based on the x- 25 26 27 28 5 Craig’s notes are illegible on this point. Dr. Craig is elderly, infirm and was unable to testify at trial. The Court finds that Dr. Fernandez’s general understanding of Dr. Craig’s notes – that Dr. Craig believed that surgery was unnecessary at this time – was credible and supported by the evidence. 11 1 manipulation. . . . [T]he f[ractured] bone will never be exactly the 2 same as it was before . . . 5/14/05.” 3 original). 4 but none was received. 5 Ex. 117-2 (emphasis in Dr. Craig mentioned he would forward an additional report, Dr. Fernandez reviewed and stamped Dr. Craig’s report on December 6 14, 2005. 7 handwriting, but believed that Dr. Craig was considering several 8 methods of treatment, without having yet reached a conclusion. 9 Fernandez Dec. ¶ 35. Dr. Fernandez could not make out all of Dr. Craig’s Dr. Fernandez believed the external surgical 10 procedure would not have provided any pain relief and Dr. Craig makes 11 no mention of pain in his report. 12 Dr. Fernandez became convinced that Dr. Craig would not change his 13 views because he had declined to perform surgery on two occasions and 14 that Dr. Craig’s decision affirmed his view that “conservative 15 management” of the fracture would be helpful. 16 36. 17 send a final report when none was received. Fernandez Dec. ¶ 35. At this point, Fernandez Dec. ¶¶ 15, Dr. Fernandez, therefore, did not attempt to prod Dr. Craig to Fernandez Dec. ¶ 36. 18 In the following months, while Plaintiff’s splint and painkiller 19 treatment continued, Plaintiff made more requests to prison officials 20 to schedule him for surgery. 21 he continued to work and use his right hand. 22 Unicor, a factory at FCI 1. 23 Ortega, observed Plaintiff using both of his hands to type in May 2005, 24 despite the fact that another inmate was available to assist Plaintiff. 25 Ortega Dep. at 106-111. 26 27 Plaintiff complained of pain. However, Plaintiff worked at Plaintiff's factory manager, Enrique Towards the end of 2005, Plaintiff met informally with Dr. Paul Stanton, an orthopedist, on a regular visit to FCI 1. 28 12 Dr. Stanton 1 filled in from time to time after Dr. Puri stopped providing services 2 for the BOP. 3 indicated that Plaintiff was not a candidate for surgery. 4 Dec. ¶ 38. 5 Dr. Fernandez recalls that Dr. Stanton informally Fernandez On December 28, 2005, Plaintiff submitted a “Request for 6 Administrative Remedy” to Defendant Allen, a new AHSA who had replaced 7 Mr. Louis Sterling in August 2005.6 8 that FCI 1 “take the necessary steps to place me on work medical idle 9 and supply me with workman’s compensation until I have my hand repaired Plaintiff requested Allen to ensure 10 and I am fully recovered.” Ex. 31. 11 complaint seeking medical idle status and worker’s compensation by 12 reviewing Plaintiff’s medical file. 13 Deputy Warden Holencik notifying him that review of Plaintiff’s x-rays 14 revealed something out of the ordinary. 15 experience in the medical field, Allen noted that Plaintiff had 16 sustained a “boxer’s fracture,” and that the overwhelming majority of 17 such fractures are caused by punching something or someone with a 18 closed fist. 19 because if the cause of the fracture was punching something or someone, 20 Plaintiff would not be entitled to worker’s compensation. 21 12. 22 could raise security concerns. 23 Warden subsequently denied Plaintiff’s request for medical idle status 24 and worker’s compensation. Ex. 34. Allen investigated Plaintiff’s Allen then wrote a memorandum to Ex. 34. Based on his prior Allen believed this information was relevant, Allen Dec. ¶ Allen also had a duty to report anything out of the ordinary that Allen Dec. ¶ 12; Ex. 21. The Deputy Ex. 124. 25 26 27 28 6 Allen was employed at FCI 1 from November 1, 2005 until March, 2007. Allen Dec. ¶ 2. 13 1 Plaintiff filed this lawsuit on February 6, 2006. At the end of 2 March 2006, Dr. Fernandez informed Plaintiff that the requested surgery 3 would not be performed. 4 with a new doctor as part of defending the lawsuit. 5 Plaintiff was examined by Dr. Louis Redix, who found that Plaintiff’s 6 hand had healed in an acceptable alignment and that no further 7 treatment was necessary. 8 Defendant Fernandez on April 24, 2006, responding to additional 9 questions from Fernandez at the request of his attorneys. Prison officials scheduled Plaintiff to meet On April 5, 2005, Dr. Redix sent a follow-up letter to Printed in 10 the upper left corner is the file name of the computer document, “Jesus 11 Fernandez — Merino Stupid Letter.doc,” apparently in reference to 12 Plaintiff Garcia-Merino. 13 letter. 14 Dr. Fernandez reviewed and signed this Plaintiff was released in February 2007 and deported thereafter. 15 He has not subsequently had any surgery on his hand. 16 testified at trial via a video link. 17 still has pain and that his hand is grossly deformed. 18 not find Plaintiff’s testimony regarding his alleged pain credible. 19 The Court instructed Plaintiff to exhibit his hand at trial and the 20 Court observed no visible deformity. 21 Defendants’ expert,7 reviewed Plaintiff’s medical charts and opined that Plaintiff He testified that he occasionally The Court did Dr. Stuart H. Kuschner, 22 23 24 25 26 27 28 7 The Court notes that Plaintiff objects to Dr. Kuschner’s testimony, arguing that it is irrelevant to any issue in the case. The Court disagrees. In its Summary Judgment Order, the Court was required to view the evidence in a light most favorable to Plaintiff. As such, the Court discounted Dr. Fernandez’s testimony that he developed an independent medical opinion that a splint and Ibuprofen was medically acceptable treatment. (Doc. No. 131 at 25). As a result, the Court concluded, "[A]t the present stage of litigation, this is not a case of conflicting medical judgments about the proper course of treatment." (Doc. No. 131 at 25). However, after hearing the 14 1 Plaintiff’s fracture healed with “good alignment of the bone and good 2 function.” 3 callus, which is a sign of bone formation, is not necessarily visible 4 on an x-ray even though healing is taking place. 5 that there is no callus formation does not mean the fracture has not 6 united. 7 has healed and I do not recall seeing residual symptomatology under 8 similar circumstances in patients I have treated.” 9 32. Kuschner Dec. ¶ 16. Dr. Kuschner also testified that a Further, the fact Dr. Kuschner also stated, “pain resolves after the fracture Kuschner Dec. at ¶ He opined that Plaintiff was “treated appropriately with 10 nonoperative treatment” and that the fracture healed in “an acceptable 11 position.” 12 II. 13 14 Kuschner Dec. ¶ 34. CONCLUSIONS OF LAW A. Legal Standards (1) Eighth Amendment Violation 15 Plaintiff’s claims for damages against Defendants are permissible 16 under Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 17 403 U.S. 388 (1971). 18 Amendment’s proscription against cruel and unusual punishment. 19 v. Gamble, 429 U.S. 97, 104 (1976). Plaintiff pursues relief under the Eighth Estelle 20 21 22 23 24 25 26 27 28 testimony at trial, the Court finds that Dr. Fernandez formed and affirmed his independent medical opinion after Dr. Craig declined to recommend surgery on two occasions. As such, Dr. Kuschner's testimony is relevant to determine whether the treatment chosen by Dr. Fernandez was medically acceptable and Dr. Fernandez’s credibility as to the chosen treatment. Dr. Kuschner’s testimony is also relevant to the issue of whether Plaintiff suffered any harm. Dr. Kuschner stated that pain is a natural part of the healing process and once a fracture like Plaintiff's is healed, he would generally not expect continuing pain. He also testified that Plaintiff's fracture healed with acceptable alignment. 15 1 To succeed on his Eighth Amendment claim, Plaintiff bears the 2 burden to prove that (1) he faced a serious medical need; (2) that the 3 Defendants were “deliberately indifferent” to that medical need; and 4 (3) that the Defendants’ failure to act caused him harm. 5 Model Civil Jury Instructions § 9.25 (November 2010); Jett v. Penner, 6 439 F.3d 1091, 1096 (9th Cir. 2006). 7 Ninth Circuit An Eighth Amendment violation can exist only if the prisoner’s 8 need for medical treatment is “serious.” 9 U.S. 1, 9 (1992). See Hudson v. McMillian, 503 “A ‘serious’ medical need exists if the failure to 10 treat a prisoner’s condition could result in [1] further significant 11 injury or [2] the ‘unnecessary and wanton infliction of pain.’” 12 McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (quoting 13 Estelle, 429 U.S. at 104), overruled on other grounds by WMX Techs. v. 14 Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). 15 parties do not dispute that Plaintiff had a “serious medical need” – 16 the need for treatment of Plaintiff’s fractured finger. In this case, the 17 “Deliberate indifference” is found where an official undertakes “a 18 purposeful act or failure to act” that “ignore[s] or fail[s] to respond 19 to a prisoner’s pain or possible medical need.” McGuckin, 974 F.2d at 20 1060. 21 be established either [1] with evidence that “prison officials deny, 22 delay or intentionally interfere with medical treatment, or [2] be 23 shown by the way in which prison physicians provide medical care.” 24 McGuckin, 974 F.2d at 1059 (quoting Hutchinson v. United States, 838 25 F.2d 390, 394 (9th Cir. 1988)). 26 is not enough. 27 cannot be found liable under the Eighth Amendment for denying an inmate Deliberate indifference can be shown in one of two ways. It can Under both scenarios, mere negligence Jett, 439 F.3d at 1096. 28 16 Instead, “a prison official 1 humane conditions of confinement unless the official knows of and 2 disregards an excessive risk to inmate health or safety; the official 3 must both be aware of facts from which the inference could be drawn 4 that a substantial risk of serious harm exists, and [the official] must 5 also draw the inference.” 6 7 (2) Farmer v. Brennan, 511 U.S. 825, 837 (1994). Qualified Immunity Even if the Court finds there was a constitutional violation under 8 the standard set forth above, Defendants may be entitled to qualified 9 immunity because the contours of the right at issue were not clearly 10 established. 11 immunity shields government officials “from liability for civil damages 12 insofar as their conduct does not violate clearly established statutory 13 or constitutional rights of which a reasonable person would have 14 known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It protects 15 officials “from undue interference with their duties and from 16 potentially disabling threats of liability.” Id. at 806. 17 Saucier v. Katz, 533 U.S. 194, 201 (2001). Qualified To be clearly established, the “contours of the right must be 18 sufficiently clear that a reasonable official would understand that 19 what he is doing violates that right.” 20 635, 640 (1987). 21 established, the Court first looks to binding precedent from the 22 Supreme Court or the Ninth Circuit. 23 1089 (9th Cir. 2010). 24 looks to “whatever decisional law is available to ascertain whether the 25 law is clearly established for qualified immunity purposes, including 26 decisions of state courts, other circuits, and district courts.” 27 v. Benton County, 374 F.3d 773, 781 (9th Cir. 2004) (quoting Drummond Anderson v. Creighton, 483 U.S. In determining whether a federal right is clearly Mattos v. Agarano, 590 F.3d 1082, In the absence of binding precedent, the Court 28 17 Boyd 1 v. City of Anaheim, 343 F.3d 1052, 1060 (9th Cir. 2003)) (internal 2 quotations omitted). 3 There must be “some parallel or comparable fact pattern to alert 4 an officer that a series of actions would violate an existing 5 constitutional right.” 6 2008). 7 very action in question [have] previously been held unlawful.” Wilson 8 v. Layne, 526 U.S. 603, 615 (1999). 9 notice that their conduct violates established law ... in novel factual Fogel v. Collins, 531 F.3d 824, 833 (9th Cir. To be established clearly, however, there is no need that “the “[O]fficials can still be on 10 circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). 11 “‘if officers of reasonable competence could disagree on [the] issue, 12 immunity should be recognized.’” 13 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). However, Id. (alterations in original) 14 B. 15 As the parties do not dispute that there was a “serious medical Defendant Dr. Fernandez 16 need” to treat Plaintiff’s fractured finger, the Court addresses 17 Plaintiff’s argument that Dr. Fernandez exhibited deliberate 18 indifference to Plaintiff’s need for treatment. 19 Plaintiff, Dr. Fernandez never selected a course of treatment other 20 than making a decision to follow Dr. Puri's recommendation. 21 under Plaintiff’s theory, this was not a case of conflicting medical 22 opinions. 23 of opinion does not amount to a deliberate indifference to . . . 24 serious medical needs."). 25 formed no independent opinion when he deferred to Dr. Puri's request 26 for surgery, though Dr. Fernandez did have his own reservations about 27 whether surgery was necessary. According to Thus, Sanchez v. Vild, 891 F.2d 240 (9th Cir. 1989) ("A difference The Court agrees that Dr. Fernandez had Nonetheless, the Court does not find 28 18 1 that any delays attributable to Dr. Fernandez show the requisite 2 “deliberately indifference” to Plaintiff’s health that would amount to 3 cruel and unusual punishment. 4 caused by a third-party, MDI, not Dr. Fernandez. 5 scheduling errors by MDI, a different expert, Dr. Craig, examined 6 Plaintiff. 7 Fernandez’s initial opinion that Plaintiff was not a candidate for 8 surgery. 9 acceptable treatment. 10 11 12 Furthermore, the bulk of the delays were As a result of Dr. Craig did not prescribe surgery, confirming Dr. Subsequently, Dr. Fernandez provided Plaintiff medically (1) Denial, Delay, or Intentional Interference with Treatment Plaintiff contends that two Ninth Circuit cases, decided at the 13 summary judgment stage, present similar factual situations. 14 Ultimately, the cases do not support Plaintiff's argument. 15 In McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1992), the plaintiff 16 had suffered a back injury in June 1986. 17 at a new prison in 1989, a prison doctor, Dr. Smith, examined the 18 plaintiff and prescribed painkillers. 19 complain of pain, and after a further examination in early May 1989, 20 Dr. Smith requested a consultation with the other defendant, Dr. 21 Medlen, who was an orthopedic specialist. 22 plaintiff in late May, Dr. Medlen ordered a CT scan or MRI to determine 23 whether or not plaintiff suffered from a herniated disk. 24 requested CT scan was not performed for nearly three months. 25 After the CT scan, Dr. Medlen recommended that the plaintiff be 26 admitted for surgery. 27 Outside Referral Committee, following Dr. Medlen’s recommendation, Id. Upon the plaintiff’s arrival Id. The plaintiff continued to Id. After examining the Id. The Id. At the end of August 1989, the prison’s 28 19 1 approved the specialist’s request for surgery. 2 the plaintiff had still not received the recommended surgery, and 3 visited Dr. Smith at the prison to complain about his pain. 4 plaintiff eventually filed a lawsuit in the middle of November and 5 finally received the recommended surgery in December 1989. 6 1061-62. 7 Id. In October 1989, Id. The Id. at In this case, Plaintiff argues that Dr. Fernandez played a role 8 similar to Dr. Smith in McGuckin. 9 unavailing. However, Plaintiff’s argument is Although the Ninth Circuit in McGuckin recognized that 10 between April and December 1989, the plaintiff had suffered pain and 11 delay, the court granted summary judgment to defendants. 12 The court noted that “[t]he vast majority of the delay” took place 13 while the plaintiff was at a different prison and was under the care of 14 other doctors. 15 “either doctor was responsible for the failure to promptly perform the 16 CT scan,” such as evidence that they were “responsible for the 17 scheduling of such diagnostic examinations.” 18 to show that the defendants were responsible for “[t]he delay in 19 surgery.” 20 committee and prison administrators — not Smith or Medlen — were the 21 ones who scheduled surgical treatments and were charged with ensuring 22 that [the plaintiff’s] surgery occurred promptly.” 23 suggested that Dr. Medlen had the authority to determine that surgery 24 was necessary, but did not have the authority to schedule the surgery. 25 Id. & n.14. 26 27 Id. Id. Id. at 1062. The plaintiff did not introduce any evidence that Id. The plaintiff failed Instead, the evidence showed that the “prison referral Id. The evidence Similarly, in this case, Dr. Fernandez followed established protocol in approving and forwarding Dr. Puri’s surgery requests to the 28 20 1 appropriate body, MDI, to schedule the appointments. 2 initially recommended surgery on May 26, 2005, he did not indicate that 3 Plaintiff was in pain or indicate a sense of urgency to Dr. Fernandez. 4 Dr. Puri did not prescribe stronger pain medication than the Ibuprofen 5 Plaintiff was receiving, further conveying that there was little sense 6 of urgency to Dr. Fernandez. 7 the reason he selected the June 2, 2005 date was simply because it was 8 convenient for his schedule and told Dr. Fernandez so. 9 the first request for scheduling to MDI resulting from the May 26, 2005 10 consult with Dr. Puri was sent by Dr. Fernandez in a timely manner, but 11 for reasons out of Dr. Fernandez’s control, MDI did not schedule the 12 surgery on June 2, 2005 with Dr. Puri. 13 on the 513 to indicate to schedulers and medical staff that there was a 14 fast approaching surgery date before forwarding the form. 15 Fernandez had no responsibility or authority to schedule the surgery 16 beyond approving and forwarding the 513 to MDI. 17 contacted by MDI or Dr. Puri after June 2 passed without the surgery. 18 He reasonably assumed that the surgery had been scheduled. 19 MDI did not schedule the surgery as requested. 20 When Dr. Puri In fact, Dr. Puri stated at trial that In any case, Dr. Fernandez even wrote “ASAP” Dr. Dr. Fernandez was not However, After Dr. Puri’s second visit on July 12, 2005, Dr. Fernandez 21 learned that the surgery had not been scheduled. 22 forwarded Dr. Puri’s second surgery recommendation, which was largely 23 based on Plaintiff’s complaints of pain in a bump on his hand. 24 Although Dr. Fernandez did not forward the recommendation until August 25 1, 2005, a delay of 19 days on its own does not amount to deliberate 26 indifference for Plaintiff’s serious medical need. 27 U.S. at 104 ("[I]n the medical context, an inadvertent failure to 28 21 He again approved and See Estelle, 429 1 provide adequate medical care cannot be said to constitute 'an 2 unnecessary and wanton infliction of pain.'); McGuckin, 974 F.2d at 3 1060 ("A finding that the defendant's neglect of a prisoner's condition 4 was an isolated occurrence or an isolated exception to the defendant's 5 overall treatment of the prisoner ordinarily militates against a 6 finding of deliberate indifference.") (internal citations and 7 quotations omitted); Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 8 Nev. 1990) ("In determining deliberate indifference, we scrutinize the 9 particular facts and look for substantial indifference in the 10 individual case, indicating more than mere negligence or isolated 11 occurrences of neglect."); Toussaint v. McCarthy, 801 F.2d 1080, 1111 12 (9th Cir. Cal. 1986) ("Plaintiffs' citations to isolated occurrences of 13 neglect do not amount to a constitutional violation.") 14 during this entire period, Plaintiff was receiving medical treatment 15 approved by Dr. Fernandez – Ibuprofen and a splint – treatment that Dr. 16 Fernandez knew to be acceptable in cases such as Plaintiffs'. 17 had never indicated to Dr. Fernandez that surgery was immediately 18 necessary or that a delay would cause Plaintiff harm. 19 prescribed Plaintiff pain medication or stronger pain medication than 20 Ibuprofen. 21 to the alleged delays in approving Dr. Puri’s recommendations. 22 Moreover, Dr. Puri Dr. Puri never As such, McGuckin is contrary to Plaintiff’s arguments as Plaintiff also relies on Jett v. Penner, 439 F.3d 1091 (9th Cir. 23 2006), contending that further delays, even after Dr. Fernandez 24 forwarded a recommendation for surgery on August 1, 2005, show that Dr. 25 Fernandez was deliberately indifferent. 26 that prison officials failed to have a prisoner examined by an 27 orthopedist specialist in a timely manner. 28 22 In Jett, the plaintiff alleged On October 27, 2001, the 1 plaintiff injured his thumb. 2 the plaintiff with a broken thumb, prescribed pain medication, placed 3 the thumb in a temporary splint, and advised the plaintiff to see an 4 orthopedic doctor within a week for a follow-up. 5 sent various informal notices to inform the prison medical staff 6 regarding his pain and condition, requesting to have his broken thumb 7 set and placed in a cast. 8 examination, the plaintiff was examined by defendant Dr. Penner, a 9 prison doctor, on December 24, 2001. Id. at 1094. Id. An outside doctor diagnosed Id. The plaintiff After two months without a medical Id. Despite Dr. Penner’s 10 awareness of the plaintiff’s medical needs and the recommendation from 11 a prior doctor that an orthopedist consult was needed, the plaintiff 12 was not sent to an orthopedist for more than three months. 13 April 2002, another prison doctor determined that the plaintiff needed 14 an examination by an orthopedic specialist and submitted an “urgent” 15 request for outside consultation. 16 specialist determined that the hand was not healing properly and 17 consultation with a hand specialist was needed. 18 examined the plaintiff in August, October, and November 2002, noting 19 each time that the plaintiff should be examined by a hand specialist 20 but failing to ensure the appointment was scheduled each time. 21 Plaintiff eventually received treatment from a hand specialist in May 22 2003. Id. at 1095. Id. By Later in April, the Id. Dr. Penner again Id. Id. 23 In coming to the conclusion that a genuine issue of material fact 24 existed as to the plaintiff’s Eighth Amendment claim, the court in Jett 25 noted that it appeared that all of the medical examinations had reached 26 the same conclusion: that the plaintiff needed to see an orthopedic 27 specialist. Id. at 1098. Further, the court reasoned that the jury 28 23 1 could infer that Dr. Penner acted with deliberate indifference because 2 he had previously altered a medical report so that the phrase “no 3 obvious malalignment” was changed to read “no malalignment.” 4 1098 & n.2. 5 showed that the healing thumb had not aligned properly, thus causing 6 the thumb to be “deformed.” 7 the jury could draw an inference that the delayed treatment caused 8 long-term harm to the plaintiff. 9 the other two defendants could not defeat plaintiff’s claims on summary Finally, Id. at throughout Dr. Penner’s examinations, the x-rays Id. at 1098. Id. The court determined that The court also determined that 10 judgment. 11 warden and a medical administrator) who had received some of 12 plaintiff’s complaints about his lack of medical treatment. 13 Neither defendant had taken any action at all to assist the plaintiff 14 in obtaining the medical care he required. 15 “prison administrators . . . are liable for deliberate indifference 16 when they knowingly fail to respond to an inmate’s requests for help.” 17 Id. 18 Id. These two defendants were prison administrators (a Id. Jett is distinguishable from this case. Id. The court held that In Jett, Dr. Penner 19 failed to schedule an appointment with a specialist for well over a 20 year, despite consistent recommendations from other doctors and his own 21 acknowledgment that the appointments were needed. 22 in this case, Dr. Fernandez approved Ms. Castillo’s initial treatment 23 of Ibuprofen and bandages and authorized x-rays within two days of 24 Plaintiff’s injury. 25 with a splint. 26 specialist, Dr. Puri, within two weeks of his injury. 27 then followed the prison’s procedures in forwarding Dr. Puri’s On the other hand, After the x-rays were taken, Plaintiff was treated Dr. Fernandez ensured that Plaintiff was seen by a 28 24 Dr. Fernandez 1 recommendation for surgery on two occasions, though he knew that using 2 a splint and Ibuprofen was medically acceptable. 3 Dr. Fernandez, the surgeries were not scheduled as requested, but were 4 scheduled with Dr. Craig by MDI. 5 Craig on September 8, 2005, Dr. Craig requested additional x-rays, but 6 expressly stated that at that time, he saw no need for surgery. 7 after receiving the x-rays at the second appointment, Dr. Craig did not 8 determine that surgery was necessary. 9 continued to note a specialist was needed along with noting consistent Through no fault of At the first appointment with Dr. Even Unlike Dr. Penner in Jett who 10 recommendations from other doctors, in this case, in view of Dr. 11 Craig’s hesitation and his own medical knowledge, Dr. Fernandez 12 determined that continuing to use the splint and Ibuprofen was a 13 medically acceptable mode of treatment.8 14 reading Dr. Craig's notes and upon Dr. Craig's failure to follow up, 15 that Dr. Craig would not be recommending surgery. 16 He also became convinced upon Thus, Dr. Fernandez did not exhibit a pattern of delay in treating 17 Plaintiff’s fracture. 18 immediately after Plaintiff’s injury, ensured that Plaintiff would see 19 a specialist within two weeks, and took affirmative steps to get 20 Plaintiff surgery when a specialist recommended surgery in May and 21 July. In fact, Dr. Fernandez treated Plaintiff almost Due to events outside the scope of Dr. Fernandez's 22 23 24 25 26 27 28 8 The fact that Dr. Fernandez issued a statement to Plaintiff that he would not be receiving his requested surgery in March, 2006 and that Dr. Fernandez had Plaintiff examined by Dr. Redix in April, 2006 does not suggest that Dr. Fernandez did not make a medical judgment to treat Plaintiff conservatively until March or April 2006. As asserted by Plaintiff himself, Dr. Fernandez undertook these actions upon the urging of Dr. Fernandez's attorneys, who were retained after Plaintiff filed this suit in February, 2006. 25 1 responsibilities and authority, the surgeries were not performed.9 2 Fernandez then facilitated and reviewed Plaintiff’s consultations with 3 Dr. Craig, another specialist selected by MDI. 4 Craig, who saw Plaintiff on two occasions in September and October, 5 declined to recommend or perform surgery. 6 continue to treat Plaintiff with a splint and Ibuprofen. 7 (2) 8 9 Dr. Subsequently, Dr. Dr. Fernandez then chose to Acceptable Treatment Plaintiff has failed to show that in October 2005, over four months after the fracture occurred, Dr. Fernandez chose a medically 10 unacceptable mode of treatment by choosing to keep Plaintiff in a 11 splint and on Ibuprofen. 12 that a splint and Ibuprofen was medically unacceptable treatment. 13 case at hand can be further distinguished from Jett because unlike in 14 Jett, where the continuing use of a splint and pain medication led to 15 the improper healing of the fracture, using a splint and pain 16 medication to heal Plaintiff’s fracture was an appropriate course of 17 treatment under the circumstances. 18 No specialist, at any point, has indicated The Furthermore, Dr. Kuschner confirmed Dr. Fernandez’s belief that 19 fractures such as Plaintiff’s should be treated with a splint and 20 painkillers. 21 degree of angulation of Plaintiff’s fracture. 22 degree of angulation is a relevant factor in determining whether 23 surgery is necessary. 24 angulation, rather, he only examined Plaintiff’s hand visually. Dr. Kuschner was the only specialist who checked the As Dr. Puri stated, the However, Dr. Puri did not measure the degree of Dr. 25 26 27 28 9 As noted earlier, MDI scheduled the surgery that Dr. Puri recommended with Dr. Craig. One possible reason for this is that Dr. Puri stopped providing services through MDI sometime in July 2005. In any event, as the record shows, Dr. Fernandez had no control over MDI’s actions and no authority to schedule the appointments. 26 1 Kuschner relied on a text Green’s Operative Hand Surgeon, the 2005 2 edition of which stated that the degree of angulation of a ring finger 3 fracture must be greater than 30 degrees to warrant surgery. 4 Plaintiff’s degree of angulation was only 23 degrees. 5 also determined that based on Plaintiff’s x-rays, other factors 6 indicating a possible need for surgery, such as rotatory mal-alignment, 7 were not present. 8 Plaintiff experienced was a necessary part of the healing process and 9 the pain diminishes as the fracture heals. 10 Dr. Kuschner Furthermore, as Dr. Kuschner testified, any pain Thus, in light of the evidence produced at trial, the Court 11 concludes that Plaintiff was given acceptable treatment by Dr. 12 Fernandez. 13 14 (3) Subjective Component Finally, even if the Court were to assume Dr. Fernandez delayed 15 Plaintiff's medical care or provided unacceptable treatment, Plaintiff 16 has failed to show that Dr. Fernandez knew of and disregarded an 17 excessive risk to his health. 18 that Dr. Fernandez was both aware of the facts from which Dr. Fernandez 19 could infer that a substantial risk of serious harm existed – that 20 Plaintiff would be in unnecessary pain or face permanent damage to his 21 hand – 22 511 U.S. at 837. That is, Plaintiff has failed to show and that Dr. Fernandez in fact drew that inference. Farmer, 23 Plaintiff argues that actions undertaken by Dr. Fernandez to 24 protect himself from liability after Plaintiff filed this lawsuit show 25 that Dr. Fernandez was more than merely negligent and meets the 26 subjective component of deliberate indifference. 27 his attorneys, Dr. Fernandez had Plaintiff visit an additional doctor 28 27 At the direction of 1 and issued a formal rejection of Plaintiff's surgery request. 2 Plaintiff argues that the title of a document exchanged between Dr. 3 Fernandez and Dr. Redix, containing "Merino Stupid Letter," shows that 4 Dr. Fernandez purposefully delayed or interfered with Plaintiff's 5 treatment. 6 attorneys.10 7 Finally, The letter was necessitated by demands from Dr. Fernandez's Even if these actions have some probative value, any probative 8 value is substantially outweighed by Dr. Fernandez’s overall medical 9 attention to Plaintiff’s medical needs. As discussed earlier, Dr. 10 Fernandez approved and forwarded two surgery requests, and wrote “ASAP” 11 on one request to alert schedulers that a fast approaching date was 12 scheduled. 13 risk of serious harm existed” and nor did he draw that inference. 14 Fernandez believed throughout Plaintiff’s treatment that a splint and 15 Ibuprofen was medically acceptable treatment – a belief that was 16 confirmed when no specialist ever stated that the chosen mode of 17 treatment was medically unacceptable. 18 surgery on two occasions, never prescribed stronger pain medication 19 than that already prescribed such that Dr. Fernandez could draw an 20 inference that Plaintiff was suffering unnecessary pain.11 21 Plaintiff complained of pain, as Dr. Kuschner explained, pain is a 22 necessary part of a fracture’s healing process. 23 did not draw an inference that Plaintiff was being subjected to Moreover, Dr. Fernandez was never aware that a “substantial Dr. Dr. Puri, who recommended Although Thus, Dr. Fernandez 24 10 25 26 27 28 The Court finds credible Dr. Fernandez’s trial testimony that the title of the letter reflected his frustration regarding the litigation and was not intended to indicate that Plaintiff was stupid. 11 Further, as the Court discusses below, Plaintiff’s claims of pain are not credible in light of the record. 28 1 unnecessary pain based on Plaintiff’s complaints or Dr. Puri’s initial 2 surgery recommendations. 3 repeatedly sought surgery and none was performed is not a basis for 4 liability. 5 plaintiff's showing of nothing more than a difference of medical 6 opinion as to the need to pursue one course of treatment over another 7 was insufficient, as a matter of law, to establish deliberate 8 indifference.”) (internal quotations omitted). 9 Furthermore, the fact that Plaintiff Jackson v. McIntosh, 90 F.3d 330, 332 (9th cir. 1996) (“[A] Dr. Puri also equivocated regarding whether surgery was necessary 10 in his July 12, 2005 notes. 11 was insisting on surgery and that there were no guarantees for complete 12 success. 13 recommendation and forwarded the second request for surgery, which 14 again was scheduled with Dr. Craig by MDI. 15 outside doctors that saw Plaintiff ever recommended surgery. 16 point, Dr. Fernandez did not believe that surgery would be prescribed 17 and continued to treat Plaintiff with Ibuprofen and a splint. 18 Dr. Puri noted that it was Plaintiff who In any event, Dr. Fernandez still deferred to Dr. Puri’s Thereafter, none of the At this In sum, Plaintiff has not shown that Dr. Fernandez knew of and 19 disregarded an excessive risk to his health. 20 that Dr. Fernandez treated Plaintiff appropriately with a splint and 21 Ibuprofen, and followed Dr. Puri’s recommendations. 22 was not scheduled by MDI, he continued to authorize and follow through 23 with specialists’ recommendations. 24 recommended surgery or suggested an alternative treatment, Dr. 25 Fernandez confirmed his initial belief that a splint and Ibuprofen was 26 appropriate treatment. 27 \\ Instead, the record shows When the surgery When no other specialist 28 29 1 2 (4) Harm Plaintiff must also show that Dr. Fernandez’s alleged failure to 3 act caused him harm. 4 (1) he suffered unnecessary pain because of delays in scheduling hand 5 surgery; and (2) that his hand was permanently damaged because the 6 surgery never took place. 7 burden in showing that Dr. Fernandez had been deliberately indifferent 8 (which he has not), the Court alternatively finds that Plaintiff has 9 failed to meet his burden to show Dr. Fernandez caused him harm. 10 Plaintiff argues he was harmed for two reasons: Even presuming that Plaintiff has met his Plaintiff argues that he suffered unnecessary pain because he did 11 not receive surgery. 12 prison officials regarding his pain, the Court 13 of pain were exaggerated. 14 are refuted by objective evidence in the record. 15 fracture, Plaintiff was seen typing at work with both hands despite 16 another employee who was available to assist him. 17 it is Dr. Puri’s normal policy and practice to note his belief that a 18 patient is experiencing pain in the patient’s file, he did not do so 19 during his first visit with Plaintiff – when Plaintiff’s pain should 20 have been at its peak. 21 a “bump” on his hand was hurting him during his second visit, Dr. Puri 22 did not make an independent evaluation of Plaintiff’s pain. 23 Dr. Puri, nor any other doctors prescribed Plaintiff stronger pain 24 medication than that prescribed by Dr. Fernandez (Ibuprofen). 25 Drs. Puri and Kuschner confirmed that pain was a necessary part of the 26 healing process and that some pain could not have been avoided. 27 Kuschner testified that any pain diminishes as time passes and yet, Though Plaintiff submitted numerous complaints to finds these complaints Plaintiff’s subjective complaints of pain Soon after the Additionally, though Though Dr. Puri did note that Plaintiff stated 28 30 Neither Further, Dr. 1 Plaintiff continued to complain of pain. 2 Plaintiff’s testimony that he was still experiencing pain. 3 The Court disbelieves Plaintiff also stated that his hand is deformed and he has a loss 4 of grip strength. 5 credible. 6 Court observed no deformity. 7 contradicted by credible expert testimony showing that Plaintiff’s hand 8 healed in a medically acceptable fashion. 9 The Court did not find Plaintiff’s testimony Upon a visual examination of Plaintiff’s hand at trial, the Furthermore, Plaintiff’s testimony is In any case, even if Plaintiff’s testimony is to be believed, the 10 record does not show that surgery would have resolved all the alleged 11 complications. 12 guarantee after six weeks had passed because the fracture may have 13 begun healing. 14 surgery. 15 released. 16 In fact, Dr. Puri expressly stated surgery was no Furthermore, every other specialist did not recommend Plaintiff has not subsequently had any surgery after being Thus, the Court concludes that Plaintiff has not shown that he 17 suffered unnecessary pain. 18 complaints of pain were exaggerated and that any pain Plaintiff felt 19 was a necessary part of the healing process. 20 that he currently feels pain is unbelievable in light of contradicting 21 evidence in the record and the Court’s observations at trial. 22 Furthermore, Plaintiff has not shown that his hand is deformed, nor 23 that he has a loss of grip strength. 24 permanent damage to his hand was incredible, contradicted by the 25 record, and no deformities were noticeable at an examination of his 26 hand at trial. 27 lack of grip strength existed (which they did not), Plaintiff has not The record indicates that Plaintiff’s Plaintiff’s testimony Plaintiff’s testimony on the In any case, even if the alleged pain, deformities, and 28 31 1 met his burden in showing surgery would have prevented these alleged 2 harms. 3 C. 4 In granting partial summary judgment to Defendant Allen, the Court Defendant Allen 5 noted that a trier of fact “might infer from Allen’s memorandum that 6 Allen had failed to fully discharge her (sic) duties in responding 7 fully and accurately to Plaintiff’s administrative complaint.” 8 No. 131 at 31) 9 that “Allen’s failure to discuss Plaintiff’s need for surgery (Doc. The Court also noted that a trier of fact might infer 10 constituted an intentional attempt to delay or prevent Plaintiff from 11 obtaining [the surgery].” 12 Id. However, after a thorough review of the record and the facts 13 presented at trial, the Court finds that Plaintiff has not met his 14 burden to show that Defendant Allen's memorandum delayed or prevented 15 Plaintiff from obtaining appropriate medical treatment. 16 that instigated Allen's memorandum was submitted on December 28, 2005, 17 after Dr. Fernandez had already made a decision to treat Plaintiff with 18 a splint and Ibuprofen. 19 treatment was medically acceptable. 20 interfere with this treatment or cause Plaintiff any medical harm. 21 The complaint The Court has already found that this Allen's memorandum did not Further, even if surgery was Plaintiff’s prescribed treatment, 22 Plaintiff has not shown that Allen was deliberately indifferent to 23 Plaintiff’s need for medical treatment. 24 involvement began long after the pivotal events in this case – Mr. 25 Sterling was the AHSA when Dr. Puri recommended Plaintiff’s surgery and 26 when Plaintiff met with Dr. Craig. 27 until November 2005. First, Defendant Allen's Allen was not employed at FCI 1 28 32 1 Also, in preparing his memorandum, Allen was tasked with 2 investigating Plaintiff’s complaint regarding worker’s compensation and 3 medical idle status. 4 “take the necessary steps to place me on work medical idle and supply 5 me with workman’s compensation until I have my hand repaired and I am 6 fully recovered.” Ex. 31. 7 including x-rays, and pointed out what he believed was a likely 8 explanation for Plaintiff’s injury, namely, that it was caused by 9 punching someone or something. Plaintiff requested Allen to ensure that FCI 1 Allen reviewed Plaintiff’s medical file, His opinion was relevant to determining 10 whether Plaintiff was entitled to worker’s compensation. 11 does not mention Plaintiff’s surgery, and Plaintiff has not 12 demonstrated that his complaint targeting medical idle status and 13 workman’s compensation created a responsibility to do so. 14 The report Finally, the analysis above as to Plaintiff’s failure to meet his 15 burden to show that Allen’s alleged deliberate indifference to his 16 medical needs caused him harm would alternatively absolve Allen of 17 liability. 18 D. 19 As the Court has found there is no constitutional violation, it Qualified Immunity 20 need not reach the issue of clearly established law. 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 33 1 III. CONCLUSION 2 For the reasons stated, Plaintiff’s claim is DENIED. 3 The Court ORDERS that Defendants are not liable to Plaintiff, and 4 that Plaintiff take nothing by this action. 5 dismissed on the merits with prejudice, and FINAL JUDGMENT is entered 6 for Defendants. Plaintiff’s action is 7 8 9 10 IT IS SO ORDERED. 11 12 13 DATED: March 15, 2011 14 STEPHEN V. WILSON 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 34
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