(PC) Gray v. Robinson et al, No. 1:2008cv00778 - Document 65 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS re Defendants' Motions for Summary Judgment 35 , 43 signed by Magistrate Judge Gary S. Austin on 2/4/11. Referred to Judge Wanger; Objections to F&R due by 3/10/2011. (Verduzco, M)
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(PC) Gray v. Robinson et al Doc. 65 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT FOR THE 8 EASTERN DISTRICT OF CALIFORNIA 9 10 EDWARD L. GRAY, II ) ) Plaintiff, ) ) v. ) ) D. ROBINSON, et al., ) ) Defendants. ) ____________________________________) 11 12 13 14 15 NO. 1:08-cv-00778-OWW-GSA-PC FINDINGS AND RECOMMENDATIONS RE DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT (Docs. 35, 43) OBJECTIONS DUE IN THIRTY DAYS 16 17 Plaintiff is a state prisoner proceeding pro se in this civil rights action. The matter was 18 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 19 302. Pending before the Court is a motion for summary judgment filed by Defendant Kushner. 20 (ECF No. 35.) Defendants Robinson and Ortiz have also filed a motion for summary judgment. 21 (ECF No. 43.) Plaintiff has opposed both motions. 22 I. Procedural History 23 Plaintiff, an inmate in the custody of the California Department of Corrections and 24 Rehabilitation (CDCR) at the California Men’s Colony in San Luis Obispo, brings this action 25 against defendant correctional officials employed by the CDCR at Pleasant Valley State Prison 26 (PVSP). Plaintiff names as defendants the following individuals employed by the CDCR at 27 Pleasant Valley State Prison (PVSP): Neil Kushner, M.D.; R. Ortiz, M.D.; Medical Technical 28 Dockets.Justia.com 1 Assistant (MTA) D. Robinson. Plaintiff initiated this action by civil complaint filed in the 2 Central District of California and transferred to this Court on June 5, 2008. (ECF No. 1.) The 3 events giving rise to the claims at issue in this lawsuit occurred at PVSP. Plaintiff claims a 4 violation of the Eighth Amendment stemming from prison officials’ alleged failure to provide 5 him with proper and/or adequate medical treatment for valley fever. On August 26, 2008, an 6 order was entered, finding that the first amended complaint stated a claim for relief against 7 Defendants Kushner, Ortiz and Robinson for acting with deliberate indifference to Plaintiff’s 8 medical needs. (ECF No. 7.) Defendants answered the complaint and on April 15, 2010, 9 Defendant Kushner filed a motion for summary judgment (ECF No. 35.)1 Defendants Robinson 10 and Ortiz filed a motion for summary judgment on July 1, 2010 (ECF No. 43.) Plaintiff’s 11 oppositions were filed on October 25, 2010 (ECF No. 53) and December 28, 2010 (ECF No. 57.) 12 II. 13 Summary Judgment Summary judgment is appropriate when it is demonstrated that there exists no genuine 14 issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. 15 Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party 16 17 [a]lways bears the initial responsibility of informing the district court of the basis 18 for its motion, and identifying those portions of “the pleadings, depositions, 19 answers to interrogatories, and admissions on file, together with the affidavits, if 20 any,” which it believes demonstrate the absence of a genuine issue of material 21 fact. 22 23 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 24 25 26 27 28 1 On December 10, 2008, the Court issued and sent to Plaintiff the summary judgment notice required by Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). (ECF No. 14.) 2 1 With regard to a plaintiff’s motion for summary judgment, as the party with the burden of 2 persuasion at trial, Plaintiff must establish “beyond controversy every essential element of its” 3 his affirmative claims. S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003) 4 (quoting W. Schwarzer, California Practice Guide: Federal Civil Procedure Before Trial § 5 14:124-127 (2001)). The moving party’s evidence is judged by the same standard of proof 6 applicable at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). 7 If the moving party meets its initial responsibility, the burden then shifts to the opposing 8 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 9 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 10 existence of this factual dispute, the opposing party may not rely upon the denials of its 11 pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or 12 admissible discovery material, in support of its contention that the dispute exists. Rule 56(e); 13 Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in 14 contention is material, i.e., a fact that might affect the outcome of the suit under the governing 15 law, Anderson, 477 U.S. at 248; Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir. 16 1996), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could 17 return a verdict for the nonmoving party, Matsushita, 475 U.S. at 588; County of Tuolumne v. 18 Sonora Community Hosp., 263 F.3d 1148, 1154 (9th Cir. 2001). 19 In the endeavor to establish the existence of a factual dispute, the opposing party need not 20 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 21 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 22 trial.” Giles v. Gen. Motors Acceptance Corp., 494 F.3d 865, 872 (9th Cir. 2007). Thus, the 23 “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see 24 whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 25 56(e) advisory committee’s note on 1963 amendments). 26 In resolving the summary judgment motion, the court examines the pleadings, 27 28 3 1 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 2 any. Rule 56(c). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 3 255, and all reasonable inferences that may be drawn from the facts placed before the court must 4 be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United States v. 5 Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)). Nevertheless, inferences are not drawn 6 out of the air, and it is the opposing party's obligation to produce a factual predicate from which 7 the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 8 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). 9 Finally, to demonstrate a genuine issue, the opposing party “must do more than simply 10 show that there is some metaphysical doubt as to the material facts. Where the record taken as a 11 whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine 12 issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 13 III. 14 Eighth Amendment Claims A prison official cannot be found liable under the Eighth Amendment for denying an 15 inmate humane conditions of confinement unless the official knows of and disregards an 16 excessive risk to inmate health and safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The 17 Court in Farmer adopted a subjective standard requiring an “inquiry into a prison official’s state 18 of mind” when it is alleged that a prison official was deliberately indifferent to a substantial risk. 19 Id. at 838 (citing Wilson v. Seiter, 501 U.S. 294, 299 (1991). To satisfy this inquiry, “the official 20 must both be aware of facts from which the inference could be drawn that a substantial risk of 21 serious harm exists, and he must also draw the inference.” Id. at 837. Alternatively, the Court 22 rejected any possibility that an official could be held liable for “ a significant risk that he should 23 have perceived but did not.” Id. Even if it is determined that the official was subjectively aware 24 of a substantial risk, the official cannot be held liable if he acted reasonably in response to that 25 risk, “even if the harm ultimately was not averted.” Id. at 844. 26 In Estelle v. Gamble, 429 U.S. 97, 106 (1976), the Supreme Court held that inadequate 27 28 4 1 medical care did not constitute cruel and unusual punishment cognizable under section 1983 2 unless the mistreatment rose to the level of "deliberate indifference to serious medical needs." 3 In applying this standard, the Ninth Circuit has held that before it can be said that a prisoner's 4 civil rights have been abridged, "the indifference to his medical needs must be substantial. Mere 5 'indifference,' 'negligence,' or 'medical malpractice' will not support this cause of action." 6 Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980), citing Estelle, 429 U.S. at 7 105-06. Plaintiff cannot prevail in a § 1983 action where the quality of treatment is subject to 8 dispute. Sanchez v. Veld, 891 F.2d 240 (9th Cir. 1989). 9 10 A. Defendant Kushner Plaintiff alleges that on November 24, 2004, he “got real sick with a temperature of 11 102.3.” (Am. Compl. 4:7.) Plaintiff alleges that the on call doctor, Defendant Ortiz, treated 12 Plaintiff for walking pneumonia and ordered blood tests for valley fever. Plaintiff tested positive 13 for valley fever. Dr. Ortiz prescribed Diflucan for 90 days, with no further follow-up. (Am. 14 Compl. 4:8-11.) 15 Plaintiff alleges that he was seen by Dr. Kushner for back pain. Dr. Kushner prescribed 16 Motrin. Plaintiff requested further care, and Dr. Kushner “continued prescribing pain pills.” 17 Plaintiff alleges that once the prescription ran out, he did not see another doctor until a knot 18 appeared on his neck. Plaintiff alleges that the knot “was later diagnosed as disseminated valley 19 fever, the worst of this particular fungus, which is very deadly.” (Id. 4:15-17.) Plaintiff does not 20 indicate when he saw Dr. Kushner for back pain. 21 On August 2, 2005, Dr. Ortiz “called Mercy Hospital in Bakersfield for admittance,” but 22 Plaintiff was not admitted. Plaintiff alleges that Dr. Kushner “continued to order the same test 23 over and over again.” (Am. Compl. 4:20.) Dr. Kushner increased Plaintiff’s dosage of Diflucan, 24 and Plaintiff “started to experience horrible side effects.” (Id. 4:22.) 25 26 In order to meet his burden on summary judgment, Defendant Dr. Kushner must come forward with evidence that he did not know of and disregard an excessive risk to Plaintiff’s 27 28 5 1 health. 2 Dr. Kushner supports his motion with his own declaration. Attached as exhibits A 3 through J to his declaration are copies of relevant portions of Plaintiff’s prison medical record. 4 Dr. Kushner declares that most people with valley fever do not require any treatment. Even 5 when symptoms are severe, the best treatment is often bed rest and fluids. If symptoms do not 6 improve or become worse, or if a patient is at an increased risk of complications, standard 7 treatment includes the prescription of antifungal medications such as fluconazole (trade name 8 Diflucan) or itraconazole (trade name Sporanox). During the course of treatment, it is common 9 to adjust a patient’s prescribed dosage of antifungal medications, depending on the severity and 10 resiliency of the disease. Antifungal medications are also used for high-risk people or for those 11 with chronic or disseminated valley fever. In general, the antifungal drugs Diflucan and 12 Sporanox are used for all but the most serious cases. Antifungals can have side effects, but they 13 usually go away once the medication is stopped. The most common side effects of Diflucan and 14 Sporanox are nausea, vomiting, rashes, abdominal pain, and diarrhea. More serious life- 15 threatening cases of valley fever, such as when the disease has disseminated to the spinal cord, 16 may be treated with a more powerful antifungal medication such as amphotericin. (Kushner Decl. 17 ¶ 8.) 18 Dr. Kushner first examined Plaintiff on December 15, 2004, and diagnosed Plaintiff with 19 possible valley fever and pneumonia. Dr. Kushner ordered a blood test, chest x-ray, and 20 prescribed Diflucan. Dr. Kushner also prescribed Albuterol, which is commonly prescribed for 21 Patients with shortness of breath. Dr. Kushner also noted that a prescription for antibiotics for 22 pneumonia was unnecessary as they had already been prescribed. The chest x-ray confirmed that 23 Gray had lower left lobe pneumonia. On December 22, 2004, Dr. Kushner instructed the nurse to 24 assess Plaintiff for disease symptoms and to send Plaintiff to the emergency room if he was sick. 25 (Kushner Decl. ¶¶ 10-11.) The blood test results indicated that Plaintiff had a severe case of 26 valley fever, indicating that Plaintiff should be treated with Diflucan, which Dr. Kushner had 27 28 6 1 2 already prescribed. (Kushner Decl. ¶ 13, Dft.’s’s Ex. C.) Dr. Kushner was next involved in Plaintiff’s health care on December 27, 2004. Plaintiff 3 presented to medical complaining of pain in his right back and lower rib area. Medical staff 4 found no acute respiratory distress, and noted that Plaintiff did not have a fever and his lung 5 sounds were good. Dr. Kushner was contacted by medical staff and informed of Plaintiff’s 6 condition. Dr. Kushner prescribed Tylenol and ordered that Plaintiff be seen for a follow-up in 7 ten days. (Kushner Decl. ¶ 14.) 8 9 Dr. Kushner next saw Plaintiff on August 8, 2005, when he examined him with respect to his valley fever. Prior to the examination, Dr. Kushner reviewed Plaintiff’s medical file to 10 familiarize himself with Plaintiff’s medical history, as it had been almost eight months since Dr. 11 Kushner had seen Plaintiff. The review revealed that Plaintiff was seen again by medical staff 12 on December 30, 2004. Plaintiff was seen for severe pain in his back and right flank, as well as 13 difficulty breathing (it hurt to breathe deeply). Plaintiff was sent to the prison’s emergency room, 14 where the physician prescribed Vicodin for the pain and Diflucan and Zithromax (an antibiotic). 15 A valley fever blood test was ordered. A follow up visit occurred on January 21, 2005. Plaintiff 16 did not have a fever or sweats. Plaintiff reported that he did not feel sick. His diagnosis 17 remained valley fever, and he was continued on Diflucan. (Kushner Decl. ¶ 17-18, Dft.’s Ex. E 18 p. 223.) A February 1, 2005, lab test indicated that Plaintiff was negative for valley fever. 19 (Dft.’s Ex. E p. 402.) 2 On March 3, 2005, Plaintiff had another follow-up with a doctor. 20 Plaintiff’s condition was described as asymptomatic, meaning he had no symptoms of valley 21 fever. The diagnosis was that his valley fever was resolving and the plan was to finish the 22 current prescription for Diflucan. (Dft.’s Ex. E p. 218.) 23 Plaintiff’s medical chart indicated that he was next seen on July 13, 2005. A hard mass 24 was found at the base of Plaintiff’s neck and on his right testicle. Plaintiff was diagnosed with 25 26 2 27 Page 402 of Exhibit E includes a notation that “in general, lab tests are positive in primary infections e.g. from approximately 2 weeks after infection through about the 3rd -5th month and after becoming negative, the lab test does not become positive again even after relapse or reinfection. 28 7 1 masses of questionable etiology along with a history of valley fever and pneumonia. A CT scan 2 of the neck was ordered, along with an ultrasound of the scrotum and blood tests. The blood 3 tests were positive for valley fever. (Kushner Decl. ¶¶ 21-22, Dft.’s Ex. E, p. 401.) 4 Kushner saw Plaintiff on August 2, 2005, he was diagnosed with disseminated valley fever and 5 referred to Mercy Hospital for further treatment. (Id. p. 21.) 6 When Dr. Plaintiff was seen at Mercy Hospital the same day. Plaintiff’s history of valley fever was 7 noted and it was observed that Plaintiff had been doing well until about one month earlier when 8 he noticed the mass developing on his neck. Plaintiff was diagnosed with a right neck mass. An 9 x-ray of his neck was performed and the results were normal cervical soft tissues. (Dft.’s Ex. E 10 p. 576.) A CT of the cervical spine was also performed and the results found an asymmetry in 11 the area of the neck mass without a focal mass lesion being found. (Id. p. 473.) A chest x-ray 12 found an upper right lobe infiltrate and a possible small pulmonary nodule. (Id. p. 577.) Plaintiff 13 was discharged from the hospital the same day with a recommendation that he have a 14 consultation for a biopsy of the neck mass and that he be continued on Diflucan. (Id. pp. 587, 15 589.) Upon his return to prison the same day, Plaintiff received a prescription for Diflucan and 16 an order was written for a surgical consult for a biopsy of his neck mass. (Id. pp. 209, 212.) 17 Dr. Kushner, aware of this treatment history, examined Plaintiff on August 8, 2005. Dr. 18 Kushner noted the mass on Plaintiff’s neck and also found a small nodule on Plaintiff’s right 19 knee. Dr. Kushner diagnosed Plaintiff with disseminated valley fever that was affecting the skin 20 and soft tissue. Dr. Kushner requested a bone scan to evaluate Plaintiff for deeper involvement 21 that might require a prescription for Amphotericin. Dr. Kushner also ordered a chest x-ray and 22 increased Plaintiff’s dosage of Diflucan. Plaintiff was also issued a comprehensive 23 accommodation chrono, directing that Plaintiff not be required to engage in prolonged standing, 24 lifting, or climbing for six months. (Kushner Decl. ¶ 25, Dft.’s Ex. F.) The results of the chest 25 x-ray were “essentially normal.” 26 (Kushner Decl. ¶ 26.) Dr. Kushner next examined Plaintiff on August 22, 2005. Plaintiff reported that he was 27 28 8 1 only taking half the dosage of Diflucan that had been prescribed. Dr. Kushner again diagnosed 2 Plaintiff with valley fever. Dr. Kushner noted that Plaintiff was stable with symptoms that 3 included some skin scarring but no evidence of deeper soft tissue involvement. Dr. Kushner 4 ordered a follow-up examination in ten to fourteen days. (Kushner Decl. ¶ 28.) 5 Plaintiff was seen by Dr. Kushner on September 8, 2005. During a review of Plaintiff’s 6 file in preparation for the examination, Dr. Kushner noted that Plaintiff had undergone a bone 7 scan on August 23, 2005. (Dft.’s Ex. I, p. 471.) The conclusion of the reviewing physician 8 indicated that there was subtle abnormal activity involving the occipital skull that could represent 9 cocci osteomyelitis, meaning valley fever that was infecting the bone. It was also found that 10 Plaintiff had abnormal activity in the upper jaw likely due to dental disease. (Id., Kushner Decl. 11 ¶¶ 30 -31.) 12 26, 2005. The diagnosis was disseminated valley fever. Plaintiff was advised that the process of 13 treating valley fever could be very prolonged depending on the resilience of the fungal infection. 14 It was also noted that the mass on Plaintiff’s knee was a probable lipoma (a benign tumor 15 composed of fatty tissue). It was asymptomatic and the doctor performing the biopsy 16 recommended simply observing it for the time being. (Dft’s Ex. I pp. 556-57, Kushner Decl. ¶ 17 32.) 18 Dr. Kushner also reviewed the results of a neck biopsy that Plaintiff had on August At the September 8, 2005, examination, Dr. Kushner noted that the results of an 19 ultrasound of Plaintiff’s scrotum was pending. Plaintiff was diagnosed with a right testicle 20 growth with possible removal of the growth pending the results of the ultrasound. Plaintiff was 21 also diagnosed with valley fever with possible dissemination to the base of the skull. Dr. 22 Kushner referred Plaintiff for an infectious disease consultation, and wrote an order for an MRI 23 to address the mass at the base of the neck. In response to the bone scan result that showed 24 dental disease, Plaintiff was referred for a dental examination. Plaintiff also complained of 25 problems urinating. In response, Dr. Kushner ordered a urinalysis. Dr. Kushner declares that he 26 did not find at this examination, or during any previous examination of Plaintiff, that he was 27 28 9 1 suffering from any side effects from his use of Diflucan. (Kushner Decl. ¶ 33.) The September 2 8, 2005, examination was Dr. Kushner’s last occasion to examine Plaintiff. (Id. ¶ 35.) 3 The Court finds that Dr. Kushner has met his burden on summary judgment. Each time 4 Dr. Kushner saw Plaintiff, he responded with what, in his medical judgment, was appropriate 5 treatment. The evidence establishes that Dr. Kushner saw Plaintiff on December 15, 2004, 6 August 2, 2005, August 8, 2005, August 22, 2005, and September 8, 2005. The medical 7 evidence submitted by Dr. Kushner establishes that each time Plaintiff presented to the medical 8 clinic, he was treated. The evidence submitted by Dr. Kushner also indicates that there is no 9 known cure for valley fever, only antifungal medications and antibiotics to address the infection. 10 The evidence submitted by Dr. Kushner establishes that he was not aware of any serious threat to 11 Plaintiff’s health that he failed to respond to. A review of the evidence submitted by Dr. Kushner 12 establishes that there exists no triable issue of fact as to whether he was deliberately indifferent to 13 Plaintiff’s condition. The burden shifts to Plaintiff to come forward with evidence that Dr. 14 Kushner was deliberately indifferent to a serious medical condition of Plaintiff’s. 15 Plaintiff argues that “from the very beginning of his illness,” he informed Dr. Kushner of 16 his condition. Plaintiff contends that “whether the defendant would be aware of the known 17 symptoms of valley fever is unknown to plaintiff, but even a lay person would have easily 18 recognized the necessity to have immediately run tests to discover plaintiff’s ailment.” (Opp’n: 19 3:3-4.) 20 from valley fever, Dr. Kushner should have known that Plaintiff was exposed to a serious 21 medical threat. (Id. 3:18.) Plaintiff specifically argues that 22 23 24 25 26 Plaintiff appears to argue that because other inmates have died due to complications Doctors at this facility should already be versed that when an inmate begins coughing and running a fever, it’s not thought of it possibly being the flu, bronchitis or even the common cold. They immediately think valley fever, and, more often than they would like, they are right. It is apparent that the defendant, Kushner fumbled his responsibility as a physician to adequately treat plaintiff. (Id. 3:24-4:1.) Plaintiff offers as evidence various media accounts of the presence of valley 27 28 10 1 fever at PVSP. To the extent that Plaintiff is attempting to pursue an Eighth Amendment claim 2 for the mere fact that he was confined in a location where Valley Fever spores existed which 3 caused him to contract valley fever, he is advised that no courts have held that exposure to valley 4 fever spores presents an excessive risk to inmate health. King v. Avenal State Prison, 2009 WL 5 546212, *4 (E.D. Cal., Mar 4, 2009); see also Tholmer v. Yates, 2009 WL 174162, *3 (E.D. Cal. 6 Jan. 26, 2009)(“To the extent Plaintiff seeks to raise an Eighth Amendment challenge to the 7 general conditions of confinement at PVSP, Plaintiff fails to come forward with evidence that 8 Yates is responsible for the conditions of which Plaintiff complaints.”) Plaintiff appears to 9 argue that his evidence suggests the presence of valley fever. Such evidence fails create a triable 10 issue of disputed fact. The presence of valley fever alone does not subject Dr. Kushner to 11 liability under the Eighth Amendment. Plaintiff must come forward with evidence that Dr. 12 Kushner failed to treat Plaintiff, or in some way acted with deliberate indifference to Plaintiff’s 13 serious medical condition. He has failed to do so here. 14 Plaintiff also argues that Dr. Kushner could have been more aggressive in diagnosing and 15 treating Plaintiff’s valley fever. (Id., 4:12.) Specifically, Plaintiff contends that “it took a year 16 before plaintiff would be admitted to the outside care of medical doctors.” Id. Mere delay in 17 medical treatment does not constitute deliberate indifference. Shapley v. Nevada Bd. of State 18 Prison Com'rs, 766 F.2d 404, 407 (9th Cir. 1985). Plaintiff must show the delay caused him 19 serious harm. But see McGuckinv. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992) (plaintiff not 20 required to show "substantial harm"). In addition, a prisoner must show defendant knew aid was 21 required, had the ability to render that aid, yet "sat idly by." Id. In other words, deliberate 22 indifference is a function of the seriousness of a prisoner plaintiff's medical needs and the 23 wrongfulness of the defendant's actions in light of those needs. McGuckin, supra at 1061. 24 Plaintiff offers no evidence to support this argument. As noted above, Dr. Kushner has come 25 forward with evidence that he responded to Plaintiff’s medical condition. Plaintiff offers no 26 evidence to support his argument that a failure to immediately treat Plaintiff for valley fever, on 27 28 11 1 the basis that many inmates suffered from valley fever, constitutes deliberate indifference. Even 2 if Plaintiff had come forward with evidence that Dr. Kushner should have known of the condition 3 earlier, or that his response to Plaintiff’s condition was unreasonable or negligent, his claim 4 would fail. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this 5 cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980) (citing 6 Estelle, 429 U.S. at 105-06). See also Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004). 7 Dr. Kushner has come forward with evidence that he responded to Plaintiff’s medical 8 condition. The evidence submitted by Dr. Kushner establishes, without dispute, that he was not 9 deliberately indifferent to Plaintiff’s serious medical condition. That Plaintiff believes Dr. 10 Kushner should have acted sooner does not constitute evidence of deliberate indifference. 11 Plaintiff has not met his burden of coming forward with evidence that Dr. Kushner was 12 deliberately indifferent to Plaintiff’s serious medical condition. Judgment should therefore be 13 entered in favor of Dr. Kushner. 14 B. 15 The only conduct charged to Defendant MTA Robinson is the vague allegation that 16 “within this 14 month delay of adequate medical attention MTA Robinson, second watch MTA, 17 delayed plaintiff medical attention by refusing him to be seen by a doctor, MTA Robinson could 18 have simply given plaintiff medical attention by refusing him to be seen by a doctor because of 19 his life threatening condition.” (Am. Compl. 5:27-62.) Plaintiff does not specify a particular 20 time frame. Defendant Robinson 21 The declaration of Defendant Robinson submitted in support of the motion for summary 22 judgment reveals the following. At the time of the events at issue in this lawsuit, Robinson was 23 employed at PVSP as a MTA. Robinson’s duties included dispensing medications, picking up 24 medical requests, and referring inmates to the RN. Robinson’s duties did not include scheduling 25 inmates to see physicians or other medical staff. (Robinson Decl. ¶¶ 1-2.) 26 Robinson was assigned to dispense medications by going cell to cell. There was no pill 27 28 12 1 line in Administrative Segregation, where Robinson worked. Robinson was informed that 2 Plaintiff claimed that he repeatedly came to the pill line to get his medication and that on each 3 occasion Robinson told him he did not have a prescription for him. Plaintiff also claimed that 4 Robinson refused to call a physician to check on his prescription. Robinson declares that these 5 encounters could not have happened because she was not assigned to the pill line, but went cell 6 to cell to deliver medications. (Id. ¶ 5.) 7 Robinson declares that it is her standard practice that whenever an inmate asked about the 8 status of a medication, she would research the matter by asking the inmate questions about the 9 medication, checking the status of the prescription in the computer, and calling medical records 10 and the pharmacy. She would then tell the inmate when he could expect to receive the 11 medication or whether there was any follow-up he needed to do, such as sign up to be seen on the 12 medical line or, to be seen by a physician who would either originate or renew the prescription. 13 Robinson declares that she never refused to assist an inmate in researching the status of a 14 prescription. Regarding Plaintiff’s allegations, Robinson specifically declares that at no time has 15 she ever knowingly or intentionally caused Plaintiff any pain, suffering, or injury of any kind. 16 Robinson declares that she has never refused, or delayed, allowing Plaintiff to be scheduled to be 17 seen by a doctor (especially since this was not one of her job duties), refused to research the 18 status of a prescription for Plaintiff, or otherwise was deliberately indifferent to Plaintiff’s 19 medical needs. (Id. ¶¶ 5-6.) 20 The Court finds that Defendant Robinson has met her burden on summary judgment. The 21 evidence submitted by Defendant Robinson establishes that Robinson could not have had an 22 encounter with Plaintiff at the pill line, as Robinson was not assigned to the pill line. Further, the 23 evidence indicates that Robinson has no recollection of an interaction with Plaintiff, and that she 24 never refused to assist an inmate in researching the status of a prescription. 25 In his opposition, Plaintiff argues that “plaintiff’s claim in a nutshell is the delay in 26 getting medical treatment. Bringing to question did Dr. Ortiz and MTA Robinson delay plaintiff 27 28 13 1 access to medical treatment knowing plaintiff had a life-threatening condition (valley fever).” 2 (Opp’n. 4:8-10.) As noted, Plaintiff alleges that Robinson delayed his treatment by refusing to 3 schedule Plaintiff to be seen by a doctor for his valley fever.3 In his document titled as a 4 response to the separate statement of disputed and undisputed facts (ECF No. 61), Plaintiff 5 indicates that Robinson refused to investigate Plaintiff’s complaint regarding why he had not 6 been prescribed the Sporanox antifungal medication. As supporting evidence, Plaintiff indicates 7 that “discovery motion will be required to obtain the reason why there would be a 7 day delay to 8 provide Plaintiff with Sporanox medication and medical expert testimony will be required to 9 discover what effect the 7 day delay to treat a life threatening disease has caused.” (Id. 2:19.)4 10 Plaintiff also disputes Robinson’s evidence that she was not working the pill line. Plaintiff 11 clarifies his claim: “Plaintiff is not contesting what date MTA Robinson would be working in 12 Ad-Seg. Because the incident that occurred wherein MTA Robinson refused to investigate 13 plaintiff’s claim that he had not received the prescribed Sporanox (for a life threatening disease) 14 the past 7 days occurred prior to MTA Robinson being assigned to Ad-Seg unit 2/Delta Yard.” 15 (Id. 5:5-11.) Plaintiff alleges in his amended complaint that he was admitted to UMC for 16 treatment of valley fever on January 13, 2006, and released on January 16, 2006. Plaintiff alleges 17 that he “received sporanox for disseminated valley fever” on February 15, 2006. (Am. Compl. 18 19 20 21 22 23 3 Plaintiff signed his amended complaint under penalty of perjury. A verified complaint in a pro se civil rights action may constitute an opposing affidavit for purposes of the summary judgment rule, where the complaint is based on an inmate’s personal knowledge of admissible evidence, and not merely on the inmate’s belief. McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987) (per curiam); Lew v. Kona Hospital, 754 F.2d 1420, 1423 (9th Cir. 1985); F.R.C.P. 56(e). The Court will therefore treat the amended complaint as an affidavit in opposition to the motion for summary judgment. 4 27 In order to prevail on a Rule 56(f) motion to continue the motion for summary judgment in order to obtain further discovery, the party “must show (1) that they have set forth in affidavit form the specific facts that they hope to elicit from further discovery, (2) that the facts sought exist, and (3) that these sought after facts are ‘essential’ to resist the summary judgment motion.” State of California v. Campbell, 138 F.2d 772, 779 (9 th Cir. 1998). “In making a Rule 56(f) motion, a party opposing summary judgment ‘must make clear what information is sought and how it would preclude summary judgment.’” Margolis v. Ryan, 140 F.3d 850, 853 (9 th Cir. 1998)(quoting Garrett v. City and County of San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1987). The burden is on the party seeking to conduct additional discovery to put forth sufficient facts to show that the evidence sought exists. Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1414 (9th Cir. 1987). Plaintiff fails to make the showing required. 28 14 24 25 26 1 2 2:19-21.) The crux of Plaintiff’s argument regarding Defendant Robinson is a failure to either 3 investigate why Plaintiff did not receive his valley fever medication or to schedule an 4 appointment to see a physician. As noted, the fact that Plaintiff had valley fever does not, of 5 itself, subject Robinson to liability. There is no evidence that Plaintiff had a prescription for a 6 medication that Robinson deliberately withheld from Plaintiff. There is no evidence that 7 Robinson, an MTA, knew of a serious medical condition of Plaintiff’s and acted with disregard 8 to that condition. Taking Plaintiff’s allegations as a declaration, Plaintiff has submitted evidence 9 that, at most, Robinson refused to schedule Plaintiff to see a physician. As noted, the evidence 10 submitted by Dr. Kushner establishes that Plaintiff was treated for his valley fever, and saw a 11 physician on several occasions. The evidence here indicates, at most, a refusal to schedule 12 Plaintiff to see a physician. 13 Mere delay in medical treatment constitute deliberate indifference. Shapley , 766 F.2d at 14 404. A plaintiff must show the delay caused him serious harm. But see McGuckin, 974 F.2d at 15 1060 (plaintiff not required to show "substantial harm"). In addition, a prisoner must show 16 defendant knew aid was required, had the ability to render that aid, yet "sat idly by." Id. In other 17 words, deliberate indifference is a function of the seriousness of prisoner plaintiff's medical 18 needs and the wrongfulness of the defendant's actions in light of those needs. McGuckin, supra 19 at 1061. Plaintiff offers no evidence to support this argument. Plaintiff offers no evidence to 20 support his argument that a refusal to schedule Plaintiff to see a physician for a prescription 21 constitutes deliberate indifference. Even if Plaintiff had come forward with evidence that 22 Robinson should have known of the condition , or that her response to Plaintiff’s condition was 23 unreasonable or negligent, mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not 24 support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980) 25 (citing Estelle, 429 U.S. at 105-06). See also Toguchi v. Chung, 391 F.3d 1051, 1060 (9th 26 Cir.2004). Judgment should therefore be entered in favor of Defendant MTA Robinson. 27 28 15 1 C. 2 The following are Plaintiff’s allegations regarding Dr. Ortiz: “August 2, 2005, Dr. Ortiz 3 contacted Mercy Hospital in Bakersfield, finally attempting to provide plaintiff a higher level of 4 care. Admittance denied.” (Am. Compl. 2:8-9.) 5 Kushner “continued to order the same test over and over again, plaintiff symptoms continued to 6 get worst.” (Am. Compl. 4:20-21.) Plaintiff also alleges that he was given a 90 day prescription 7 for Diflucan in order to see if it was effective. Plaintiff alleges that it was determined after the 90 8 day period that Sporanox was indicated. Plaintiff alleges that Dr. Ortiz, along with Dr. Kushner, 9 could have scheduled Plaintiff to be monitored once a month instead of waiting for 90 days. 10 11 Defendant Ortiz Plaintiff alleges that Dr. Ortiz and Dr. (Am. Compl. 5:18.) Dr. Ortiz supports his motion for summary judgment with his declaration. Attached as 12 exhibits to Dr. Ortiz’s declaration are copies of Plaintiff’s medical records. Plaintiff was first 13 seen by Dr. Ortiz on November 24, 2004. Plaintiff presented to the emergency room 14 complaining of a fever, cough, and shortness of breath for five days. Dr. Ortiz diagnosed 15 Plaintiff with pneumonia and prescribed several medications, including two antibiotics. (Ortiz 16 Decl. ¶ 10.) Plaintiff was seen by Dr. Kushner on December 15, 2004. Dr. Kushner diagnosed 17 Plaintiff with possible valley fever and pneumonia. (Ortiz Decl. ¶ 11, Ex. B.) Dr. Kushner 18 ordered a valley fever blood test and prescribed Diflucan. (Id. , Angus Decl. Ex. A, Kushner 19 Decl. Ex. B.) 20 Plaintiff was next seen by Dr. Ortiz on January 7, 2005, for follow-up of possible valley 21 fever. Plaintiff’s chest x-ray and blood test results were unavailable for review by Dr. Ortiz. 22 (Ortiz Decl. ¶ 13, Ex. D.) Dr. Ortiz’s treatment plan on January 7, 2005, was to continue the 23 Diflucan treatment, repeat of the valley fever blood test in a couple of weeks, and reevaluate 24 Plaintiff’s condition at that time. (Id.) On January 11, 2005, Dr. Ortiz received and reviewed 25 Plaintiff’s valley fever blood test results, and the report indicated Plaintiff was then positive for 26 valley fever. Since Plaintiff had already been prescribed Diflucan, there was nothing else to do 27 28 16 1 2 other than to continue monitoring Plaintiff’s condition. (Ortiz Decl. ¶ 14.) Plaintiff was seen again by Dr. Ortiz on January 21, 2005, for follow-up of the valley 3 fever blood test results. Dr. Ortiz told Plaintiff that the blood test came back positive for valley 4 fever and that the treatment plan was to continue Diflucan at the same dosage and monitor his 5 condition through repeating the valley fever blood test. (Ortiz Decl. ¶ 15, Ex. F.) Dr. Ortiz 6 saw Plaintiff again on March 3, 2005, at which time Plaintiff was asymptomatic with a negative 7 valley fever test. (Id.) Dr. Ortiz’s diagnosis was that the valley fever was resolving, and the 8 treatment plan was for Plaintiff to continue taking the Diflucan. (Ortiz Decl. ¶ 16, Ex. G.) 9 On July 13, 2005, Plaintiff was evaluated by another PVSP physician. Plaintiff 10 complained to that physician of having several lumps on his neck and one on his knee. An 11 examination on July 13, 2005, revealed a 3 cm by 4 cm hard mass on the base of Plaintiff’s neck 12 and a mass to his right testicle, and the diagnoses were masses of questionable etiology with a 13 history of valley fever pneumonia. The examining doctor recommended a CT scan of Plaintiff’s 14 neck, an ultrasound of the scrotum, and blood tests. (Ortiz Decl. ¶ 17, Ex. H.) 15 Plaintiff was seen by Dr. Ortiz on August 2, 2005, for a follow-up and a surgical consult 16 regarding the masses. Dr. Ortiz diagnosed Plaintiff with disseminated valley fever and referred 17 him to Mercy Medical for a surgical consult with the dermatology clinic and an infectious disease 18 specialist for treatment of the disseminated valley fever. (Ortiz Decl. ¶ 18 Ex, I.) Dr. Ortiz did 19 not see Plaintiff after August 2, 2005. (Ortiz Decl. ¶ 20, Ex. J.) 20 Defendant Ortiz also submits the declaration of Dr. F. Igbinosa, M.D. in support of his 21 motion for summary judgment. Dr. Igbinosa is employed as the Chief Medical Officer at PVSP. 22 Dr. Igbinosa declares that of all persons who test positive for valley fever, approximately sixty 23 percent are able to fight the infection naturally and suffer no symptoms whatsoever. Of the forty 24 percent who do develop symptoms, approximately ninety percent will only experience mild flu- 25 like symptoms or uncomplicated pneumonia. Only five to ten percent of those who will develop 26 symptoms will suffer from complicated pneumonia, and only 0.5 to one percent of those showing 27 28 17 1 symptoms will experience dissemination. (Igbinosa Decl. ¶ 11.) Regarding Plaintiff’s treatment 2 by Dr. Ortiz, Dr. Igbinosa declares the following: 3 4 5 6 7 8 9 10 11 In making this declaration, I have reviewed inmate Gray’s medical file for the period of June 2004 through June 2006, and I am familiar with his medical history. Based upon my review of Mr. Gray’s medical records, it is my medical opinion that Dr. Ortiz provided Mr. Gray with medical care consistent with community standards. Dr. Ortiz initially made a correct diagnosis of pneumonia, provided appropriate treatment for pneumonia, appropriately ordered further testing, and scheduled a follow-up appointment for Mr. Gray. Additionally, during Dr. Ortiz’s subsequent visits with Mr. Gray, Dr. Ortiz correctly diagnosed Mr. Gray with valley fever and provided appropriate treatment of prescribing antifungal medication, recommending regular followup visits and valley fever blood tests. Based upon my review of Mr. Gray’s medical records, this treatment was effective as Mr. Gray’s January 31, 2005, valley fever blood test was negative. Finally, when it appeared that Mr. Gray’s valley fever returned and had disseminated in July 2005, Dr. Ortiz appropriately referred Mr. Gray to an infectious disease specialist. 12 (Igbinosa Decl. ¶ 20.) 13 The Court finds that Defendant Ortiz has met his burden on summary judgment. The 14 evidence establishes that Dr. Ortiz responded appropriately to Plaintiff’s medical condition. That 15 valley fever had infected numerous inmates and staff at PVSP does not create a serious medical 16 condition that required Dr. Ortiz to immediately treat Plaintiff for valley fever. The evidence 17 submitted by Dr. Ortiz establishes that he followed proper medical protocol in evaluating, 18 diagnosing and treating Plaintiff. The burden shifts to Plaintiff to come forward with evidence of 19 a triable issue of fact - evidence that Dr. Ortiz knew of and was deliberately indifferent to a 20 serious medical need of Plaintiff’s. 21 In his opposition, Plaintiff argues that his “claim in a nutshell is the delay in getting 22 medical treatment. Bringing to question did Dr. Ortiz and MTA Robinson delay Plaintiff access 23 to medical treatment, knowing plaintiff had a life-threatening condition (valley fever).” (Opp’n. 24 4:8-10.) Plaintiff fails to offer evidence that establishes a triable issue of fact as to whether Dr. 25 Ortiz knew of and disregarded Plaintiff’s serious medical condition. It is undisputed that 26 Plaintiff suffered from valley fever. As noted above, Dr. Ortiz can not be held liable solely on 27 28 18 1 the ground that Plaintiff was exposed to valley fever. Plaintiff appears to argue that he should 2 have been treated sooner. Taking the allegations of the complaint as evidence in the form of a 3 declaration, Dr. Ortiz continued to order the same test over and over again as Plaintiff’s 4 symptoms began to worsen. Dr. Ortiz has come forward with evidence that his response to 5 Plaintiff’s condition was appropriate. Dr. Ortiz twice continued Plaintiff on Diflucan. The 6 evidence submitted by Dr. Ortiz indicates that the lab tests showed that the valley fever was 7 resolving, and Plaintiff was continued on Diflucan. At that point, there was no other indicated 8 treatment. The evidence submitted by Plaintiff indicates, at most, a disagreement with the course 9 of treatment. Plaintiff cannot prevail in a section 1983 action where only the quality of treatment 10 is subject to dispute. Sanchez v. Vild, 891 F.2d 240 (9th Cir. 1989). Mere difference of opinion 11 between a prisoner and prison medical staff as to appropriate medical care does not give rise to a 12 section 1983 claim. Hatton v. Arpaio, 217 F.3d 845 (9th Cir. 2000); Franklin v. Oregon, 662 F.2d 13 1337, 1344 (9th Cir. 1981). 14 IV. 15 Conclusion Defendants Kushner, Robinson and Ortiz have submitted evidence that establishes, 16 without dispute, that Plaintiff was treated for his valley fever. The evidence establishes that 17 Plaintiff was tested, diagnosed with valley fever, and prescribed appropriate treatment. 18 Subsequent tests indicated that the valley fever was resolving, and Plaintiff was continued on 19 treatment. Further testing indicated that the valley fever had disseminated and Plaintiff was sent 20 for further treatment and a surgical consultation. Plaintiff has not come forward with any 21 evidence that any of the defendants acted with deliberate indifference to Plaintiff’s condition. 22 Plaintiff’s central argument seems to be that if defendants had treated him sooner, he would not 23 have suffered disseminated valley fever. However, Plaintiff offers no evidence that any other 24 course of treatment was indicated. Judgment should therefore be entered in favor of Defendants 25 Kushner, Robinson and Ortiz and against Plaintiff. 26 Accordingly, IT IS HEREBY RECOMMENDED that the motions for summary judgment 27 28 19 1 by Defendants Kushner, Robinson and Ortiz be granted, and judgment be entered in favor of 2 Defendants and against Plaintiff. 3 These findings and recommendations are submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty days 5 after being served with these findings and recommendations, any party may file written 6 objections with the court and serve a copy on all parties. Such a document should be captioned 7 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 8 shall be served and filed within ten days after service of the objections. The parties are advised 9 that failure to file objections within the specified time waives all objections to the judge’s 10 findings of fact. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). Failure to file 11 objections within the specified time may waive the right to appeal the District Court’s order. 12 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 15 16 IT IS SO ORDERED. Dated: 6i0kij February 4, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 20
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