(PC) Fryman v. Traquina et al, No. 2:2007cv02636 - Document 75 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 2/3/2011 RECOMMENDING that pltf's 61 motion for summary judgment be denied; dfts' 69 motion for summary judgment be granted; and this action be closed. Referred to Judge John A. Mendez; Objections due w/in 21 days. (Yin, K)
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(PC) Fryman v. Traquina et al Doc. 75 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 STEVEN FRYMAN, 11 12 13 14 15 16 Plaintiff, No. CIV S-07-2636 JAM DAD P vs. A. TRAQUINA, et al., Defendants. FINDINGS AND RECOMMENDATIONS / Plaintiff is a state prisoner proceeding through counsel with a civil rights action 17 seeking relief under 42 U.S.C. § 1983. The matter is before the court on the parties’ cross- 18 motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. 19 20 BACKGROUND Plaintiff is proceeding on his original complaint against defendants Traquina and 21 Noriega. Therein, plaintiff alleges as follows. Plaintiff suffers from a growth on the inner part of 22 the left side of his chest. At the time he informed defendants of the growth, it was enlarging in 23 size each day and was causing him increasing discomfort. On October 11, 2006, plaintiff saw a 24 specialist, Dr. Eisenberg, who told him that he had a gynecomastic cyst and that surgery was an 25 acceptable treatment for the condition. On April 16, 2007, plaintiff saw another specialist, Dr. 26 Young, and he too recommended surgery to treat the condition. (Compl. Attach. at 1.) 1 Dockets.Justia.com 1 Nonetheless, defendant Traquina, Chief Medical Officer at CSP-Solano, 2 determined that surgery would be simply cosmetic and was therefore unnecessary. Defendant 3 Noriega, the Acting Chief Physician and Surgeon at CSP-Solano, agreed with defendant 4 Traquina. Plaintiff maintains that the defendants failed to address or consider his concerns about 5 the pain he experienced when he touched the affected area, laid on it, brushed against it, or wore 6 a t-shirt over it. Plaintiff also alleges that he received nothing from defendants by way of pain 7 management medication. Plaintiff concludes that defendants Traquina and Noriega have violated 8 his rights under the Eighth Amendment by failing to treat his serious medical condition and the 9 pain he suffers as a result thereof. (Compl. Attach. at 1-2.) 10 PROCEDURAL HISTORY 11 At screening the court determined that plaintiff’s complaint appeared to state 12 cognizable claims for relief against defendants Traquina and Noriega, and in due course, the 13 United States Marshal served plaintiff’s complaint on them. On March 13, 2008, defendants 14 filed an answer. On March 24, 2008, this court issued a discovery order. The parties 15 subsequently filed cross-motions for summary judgment. On October 24, 2008, the undersigned 16 issued findings and recommendations, recommending that both parties’ motions be denied 17 without prejudice. On January 15, 2009, the assigned district judge adopted the findings and 18 recommendations in full and denied the summary judgment motions without prejudice. 19 On June 10, 2009, defendants filed a second motion for summary judgment, 20 which plaintiff opposed. On December 23, 2009, the undersigned issued findings and 21 recommendations, recommending that defendants’ motion be denied once again. On February 22 19, 2010, the assigned district judge adopted the findings and recommendations in full and 23 denied the motion. Thereafter, the parties appeared before the undersigned for a status 24 conference, and plaintiff’s then-recently retained counsel moved to modify the scheduling order. 25 Good cause appearing, the court granted plaintiff’s motion and allowed the parties to file the 26 pending cross motions for summary judgment. Both parties have also filed replies. 2 1 2 SUMMARY JUDGMENT STANDARDS UNDER RULE 56 Summary judgment is appropriate when it is demonstrated that there exists “no 3 genuine issue as to any material fact and that the moving party is entitled to a judgment as a 4 matter of law.” Fed. R. Civ. P. 56(c). 5 6 7 Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. 8 9 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). “[W]here the 10 nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary 11 judgment motion may properly be made in reliance solely on the ‘pleadings, depositions, answers 12 to interrogatories, and admissions on file.’” Id. Indeed, summary judgment should be entered, 13 after adequate time for discovery and upon motion, against a party who fails to make a showing 14 sufficient to establish the existence of an element essential to that party’s case, and on which that 15 party will bear the burden of proof at trial. See id. at 322. “[A] complete failure of proof 16 concerning an essential element of the nonmoving party’s case necessarily renders all other facts 17 immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as 18 whatever is before the district court demonstrates that the standard for entry of summary 19 judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323. 20 If the moving party meets its initial responsibility, the burden then shifts to the 21 opposing party to establish that a genuine issue as to any material fact actually does exist. See 22 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 23 establish the existence of this factual dispute, the opposing party may not rely upon the 24 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 25 form of affidavits, and/or admissible discovery material, in support of its contention that the 26 dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party 3 1 must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome 2 of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 3 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 4 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could 5 return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 6 1436 (9th Cir. 1987). 7 In the endeavor to establish the existence of a factual dispute, the opposing party 8 need not establish a material issue of fact conclusively in its favor. It is sufficient that “the 9 claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing 10 versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary 11 judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a 12 genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory 13 committee’s note on 1963 amendments). 14 In resolving the summary judgment motion, the court examines the pleadings, 15 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 16 any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 17 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the 18 court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. 19 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 20 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 21 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 22 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply 23 show that there is some metaphysical doubt as to the material facts . . . . Where the record taken 24 as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 25 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 26 ///// 4 1 2 OTHER APPLICABLE LEGAL STANDARDS I. Civil Rights Act Pursuant to 42 U.S.C. § 1983 3 The Civil Rights Act under which this action was filed provides as follows: 4 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 5 6 7 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 8 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 9 Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 10 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 11 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 12 omits to perform an act which he is legally required to do that causes the deprivation of which 13 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 14 Moreover, supervisory personnel are generally not liable under § 1983 for the 15 actions of their employees under a theory of respondeat superior and, therefore, when a named 16 defendant holds a supervisorial position, the causal link between him and the claimed 17 constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 18 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory 19 allegations concerning the involvement of official personnel in civil rights violations are not 20 sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 21 II. Eighth Amendment and Adequate Medical Care 22 The unnecessary and wanton infliction of pain constitutes cruel and unusual 23 punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); 24 Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). 25 In order to prevail on a claim of cruel and unusual punishment, a prisoner must allege and prove 26 that objectively he suffered a sufficiently serious deprivation and that subjectively prison officials 5 1 acted with deliberate indifference in allowing or causing the deprivation to occur. Wilson v. 2 Seiter, 501 U.S. 294, 298-99 (1991). 3 Where a prisoner’s Eighth Amendment claims arise in the context of medical 4 care, the prisoner must allege and prove “acts or omissions sufficiently harmful to evidence 5 deliberate indifference to serious medical needs.” Estelle, 429 U.S. at 106. An Eighth 6 Amendment medical claim has two elements: “the seriousness of the prisoner’s medical need 7 and the nature of the defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 8 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 9 (9th Cir. 1997) (en banc). 10 A medical need is serious “if the failure to treat the prisoner’s condition could 11 result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” 12 McGuckin, 974 F.2d at 1059 (quoting Estelle v. Gamble, 429 U.S. at 104). Indications of a 13 serious medical need include “the presence of a medical condition that significantly affects an 14 individual’s daily activities.” Id. at 1059-60. By establishing the existence of a serious medical 15 need, a prisoner satisfies the objective requirement for proving an Eighth Amendment violation. 16 Farmer v. Brennan, 511 U.S. 825, 834 (1994). 17 If a prisoner establishes the existence of a serious medical need, he must then 18 show that prison officials responded to the serious medical need with deliberate indifference. 19 Farmer, 511 U.S. at 834. In general, deliberate indifference may be shown when prison officials 20 deny, delay, or intentionally interfere with medical treatment, or may be shown by the way in 21 which prison officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 22 (9th Cir. 1988). Before it can be said that a prisoner’s civil rights have been abridged with regard 23 to medical care, however, “the indifference to his medical needs must be substantial. Mere 24 ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” 25 Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 26 105-06). See also Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere negligence in 6 1 diagnosing or treating a medical condition, without more, does not violate a prisoner’s Eighth 2 Amendment rights.”); McGuckin, 974 F.2d at 1059 (same). Deliberate indifference is “a state of 3 mind more blameworthy than negligence” and “requires ‘more than ordinary lack of due care for 4 the prisoner’s interests or safety.’” Farmer, 511 U.S. at 835 (quoting Whitley, 475 U.S. at 319). 5 Delays in providing medical care may manifest deliberate indifference. Estelle, 6 429 U.S. at 104-05. To establish a claim of deliberate indifference arising from a delay in 7 providing care, a plaintiff must show that the delay was harmful. See Berry v. Bunnell, 39 F.3d 8 1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at 1059; Wood v. Housewright, 900 F.2d 1332, 9 1335 (9th Cir. 1990); Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989); Shapley v. 10 Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). In this regard, “[a] 11 prisoner need not show his harm was substantial; however, such would provide additional 12 support for the inmate’s claim that the defendant was deliberately indifferent to his needs.” Jett 13 v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). See also McGuckin, 974 F.2d at 1060. 14 Finally, mere differences of opinion between a prisoner and prison medical staff 15 as to the proper course of treatment for a medical condition do not give rise to a § 1983 claim. 16 Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Sanchez v. 17 Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 18 1981). 19 20 21 PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT I. Plaintiff’s Statement of Undisputed Facts and Evidence Plaintiff’s statement of undisputed facts is supported by citations to a declaration 22 signed under penalty of perjury by plaintiff. It is also supported by citations to plaintiff’s medical 23 records, his inmate appeals and prison officials responses thereto, and various medical articles 24 related to gynecomastia. 25 26 The evidence submitted by plaintiff establishes the following. On August 25, 2005, shortly after his arrival at CSP-Solano, plaintiff asked to see a prison physician due to a 7 1 lump in his left breast. Dr. William Chen examined plaintiff and found a tender mass measuring 2 3.0 x 2.0 centimeters. Dr. Chen prescribed plaintiff Motrin for the pain caused by the growth. 3 However, because no action was taken to treat the lump, and because plaintiff believed the lump 4 had grown in size, he requested treatment for the lump again a few months later. (Pl.’s SUDF 1- 5 3, Exs. A-C.) 6 Plaintiff received an order to see an outside medical provider for a mammogram, 7 which he underwent on November 7, 2005. The mammogram showed the existence of fibrous 8 glandular tissues in the left breast, which was indicative of a possible gynecomastia. (Pl.’s 9 SUDF 3-4, Exs. A-C.) 10 On December 16, 2005, plaintiff filed another request to see a physician and 11 indicated that he had not received the results from his mammogram. On March 6, 2006, plaintiff 12 still had not heard the results of his mammogram and filed a heath care services request form 13 explaining that he was very concerned about the lump on his left chest because it appeared to be 14 growing in size. Plaintiff also submitted additional health care services request forms in May 15 and July 2006. At that time plaintiff again indicated his concern about the lump continuing to 16 grow in size. He also complained about the ever-increasing pain he was suffering as a result of 17 the growth. (Pl.’s SUDF 5-7, Exs. D-F.) 18 On August 2, 2006, plaintiff underwent a second mammogram. The mammogram 19 showed the size of the growth had become more prominent as compared to the first mammogram 20 taken in November 2005. On the same day, plaintiff saw Dr. Eisenberg with Queen of the Valley 21 Hospital. Dr. Eisenberg observed that plaintiff had “left-sided gynecomastia with some 22 lymphadenopathy” and noted that fibrous glandular tissue had been identified in November 2005. 23 Dr. Eisenberg ordered additional follow-up tests. (Pl.’s SUDF 8-9, Ex. G.) 24 On October 5, 2006, plaintiff submitted a health care services request form, 25 asking to see a specialist for the growth in his chest. He indicated that he was suffering from 26 increasing pain. On October 11, 2006, plaintiff saw Dr. Eisenberg again and the doctor observed 8 1 that, compared to the last time he saw plaintiff on August 2, 2006, the growth had increased in 2 size from four to five centimeters to eight to nine centimeters. Dr. Eisenberg remarked that 3 plaintiff’s left gynecomastia was considerable in degree and quite tender. He recommended 4 surgery to remove the growth because, in his opinion, the condition was “likely to be progressive 5 and [the] cause of considerable distress” to plaintiff. In an addendum dated October 16, 2006, 6 Dr. Eisenberg recommended that a plastic surgeon perform the excision of the growth because 7 general surgeons tend to produce considerable deformity in performing such excisions. (Pl.’s 8 SUDF 10-13, Exs. H-J.) 9 On November 21, 2006, and again on January 12, 2007, plaintiff submitted 10 additional health care services request forms, inquiring when his surgery would take place 11 because the growth was causing him constant pain. He did not receive any response, so he filed 12 an administrative grievance regarding his medical care on November 26, 2006. Therein, plaintiff 13 asked for the surgery Dr. Eisenberg recommended. He also explained that since August 2005, he 14 had complained numerous times to medical personnel at CSP-Solano about the lump in his left 15 chest. He explained that it had been growing in size ever since and causing him increased 16 physical pain comparable to torture. (Pl.’s SUDF 15-17, Exs. K-L.) 17 On February 9, 2007, defendant Traquina, on behalf of defendant Noriega, 18 responded to plaintiff’s administrative grievance at the first formal level of review. Dr. Traquina 19 informed plaintiff that the Utilization Management Committee reviewed his case and decided not 20 to perform surgery because this type of procedure was considered cosmetic under the California 21 Code of Regulations. The Utilization Management Committee’s denial was based on the 22 Medical Authorization Review Committee’s (“MARC”) January 30, 2007, decision to deny the 23 procedure on the basis that it was cosmetic. At the time the MARC made its decision, 24 defendants Traquina and Noriega were members of the committee. When making the decision, 25 the defendants reviewed plaintiff’s medical record. However, neither defendant Traquina’s 26 response to plaintiff’s administrative grievance nor the Utilization Management Committee 9 1 worksheet expressly indicates that they considered plaintiff’s complaints about the physical pain 2 he suffered as a result of the growth. Four months before the MARC decision, medical staff at 3 CSP-Solano indicated on a Utilization Management worksheet that more conservative options 4 had been ruled out or considered to be ineffective in meeting plaintiff’s medical needs. 5 According to the worksheet, the form is supposed to be filled out by the Utilization Management 6 nurse. (Pl.’s SUDF 18-23, Exs. M-P, Traquina Decl. June 9, 2009.) 7 After the first formal level of review decision, plaintiff received a referral to see a 8 plastic surgeon, Dr. Young, at the University of California San Francisco Medical Center, 9 Division of Plastic and Reconstructive Surgery. During the visit, plaintiff noted that he was 10 experiencing pain and tenderness upon moving his arms. Dr. Young recommended that plaintiff 11 “undergo excision of the excess breast tissue.” He too recommended that a plastic surgeon 12 perform the procedure to prevent deformation of the chest after surgery. At the time of the visit, 13 plaintiff indicated that on a scale of one to ten he was experiencing pain at a six. (Pl.’s SUDF 14 25-26, Exs. Q-R.) 15 On April 16, 2007, defendant Traquina responded to plaintiff’s administrative 16 grievance at the second formal level of review. He denied plaintiff’s request for surgery, noting 17 that “there is no medical need to excise the excessive breast tissue, hence, such procedure is 18 considered cosmetic in nature.” After denying plaintiff’s request for surgery, defendants opted to 19 continue with a conservative approach to treatment, which consisted of providing plaintiff with 20 Motrin as needed as well as periodic observation and mammograms. (Pl.’s SUDF 27-28, Ex. S, 21 Traquina Decl. June 9, 2009.) 22 According to plaintiff’s declaration, as of September 2010, he still had a growth in 23 his left chest that was quite tender and painful and measured approximately nine to ten 24 centimeters in width. Without treatment, gynecomastia tends not to decrease. As noted above, in 25 2007, when plaintiff saw Dr. Young, plaintiff indicated that on a scale of one to ten he was 26 experiencing pain at a six. In August 2009, plaintiff told prison medical staff that he was 10 1 experiencing pain at a level of nine. (Pl.’s SUDF 29-30, Exs. R, U-X, Z, DD, EE.) Plaintiff’s diagnosis is idiopathic gynecomastia.1 According to Dr. Eisenberg, 2 3 based on his examination of plaintiff and his experience as an endocrinologist, plaintiff’s 4 condition would most likely continue to grow, which would most likely result in his degree of 5 pain increasing. This is why Dr. Eisenberg believed that plaintiff was going to need surgery. Dr. 6 Young agreed with Dr. Eisenberg’s opinion about the need to perform the surgery on plaintiff. 7 According to Dr. Young, after removing plaintiff’s growth, the surgeon should perform a 8 mastopexy. Mastopexy is not considered a cosmetic procedure. Rather it is deemed a 9 reconstructive type of surgery. When Dr. Young examined plaintiff, he noticed that the growth 10 in plaintiff’s left breast was ten centimeters in width and about four centimeters in depth. 11 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Gynecomastia is defined as the enlargement of the male breast due to the benign proliferation of male glandular tissue. The condition frequently presents itself as painful breast masses. Early onsets of gynecomastia will cause the growth of glandular tissues in the male breast. However, gynecomastia present for more than a year will result in fibrosis of the glandular tissues. Gynecomastia is caused by an imbalance between free testosterone and estrogen which leads to the proliferation of glandular tissues. Painful, rapidly enlarging gynecomastia is more worrisome than long-term asymptomatic enlargement. Usually, the gynecomastia tends to regress, especially if the condition manifests itself during the patient’s puberty. Thus, the patient often does not require any treatment other than periodic follow-up examinations. However, therapy other than the conservative approach should be sought if the gynecomastia persists and is associated with pain. Another indication that therapy other than the conservative approach should be sought is if the glandular breast tissue is more than four centimeters in diameter as it is unlikely to regress spontaneously in such circumstances. (Pl.’s SUDF 31-37, Exs. V-X, Z.) Regarding the choice of therapy, the patient may pursue either pharmacotherapy or surgery. Pharmacotherapy consists of the use of medications aimed to alter the balance between the estrogen and the androgen in a patient with gynecomastia. Pharmacotherapy is likely beneficial if implemented during the first year of the condition, before the glandular tissue in the breast turns into fibrotic tissue. After the onset of fibrotic tissue, pharmacotherapy will not be effective. Contrary to pharmacotherapy, which is likely beneficial only in the early stages of the gynecomastia, surgery can be performed at any time. Surgery is considered quite effective in the treatment of gynecomastia. The current minimally invasive techniques to perform surgery for the treatment of gynecomastia may offer faster recovery and lower rates of complications. Surgery to remove the gynecomastic growth has a low risk of complications. In deciding whether the surgery is medically necessary for the patient, medical providers such as Kaiser Permanente and insurers such as Blue Cross Blue Shield and Anthem will opt for the surgical procedure as a medical necessity when the conventional medical treatment has failed in treating the growth and when pain persists. The American Society of Plastic Surgeons recommends that health insurance companies provide coverage for patients undergoing surgical treatment for gynecomastia if the patient is experiencing pain and discomfort. (Pl.’s SUDF 38-46, Exs. V-Z, AA-DD.) 11 1 According to Dr. Young, gynecomastia can be a painful condition. Surgery can be used to treat 2 pain caused by gynecomastia. (Pl.’s SUDF 47-54, Exs. V-X, Z, AA-BB, DD-EE.) 3 II. Plaintiff’s Arguments 4 Counsel for plaintiff argues that the evidence in this case demonstrates that 5 defendants Traquina and Noriega were deliberately indifferent to plaintiff’s serious medical 6 needs. Counsel for plaintiff observes that in defendants’ professional opinion, the preferred 7 course of treatment for plaintiff’s gynecomastia was a wait and see approach. However, counsel 8 contends, the evidence indicates that by the time they made the decision to deny plaintiff’s 9 request for surgery, the defendants knew the wait and see approach had failed as a treatment to 10 cure plaintiff from his gynecomastia as well as the pain caused by his condition. (Pl.’s Mem. of 11 P. & A. at 15-20 & Pl.’s Reply at 9-13.) 12 Plaintiff’s counsel asserts that the evidence shows Dr. Eisenberg and Dr. Young 13 recommended surgical removal of plaintiff’s gynecomastia. Moreover, counsel contends that the 14 evidence fails to show that defendants took plaintiff’s increasing physical pain into account when 15 they denied his request for surgery. Rather, the evidence establishes that the defendants based 16 their decision merely on whether surgery would be considered “cosmetic” in nature and could be 17 performed under the governing regulations. (Pl.’s Mem. of P. & A. at 16-20 & Pl.’s Reply at 9- 18 13.) 19 20 DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT I. Defendants’ Statement of Undisputed Facts and Evidence 21 The defendants’ statement of undisputed facts is supported by citations to a 22 declaration signed under penalty of perjury by defendant Traquina. It is also supported by 23 citations to plaintiff’s complaint and the transcripts of Dr. Eisenberg’s and Dr. Young’s 24 depositions. Finally, defendants have submitted a separate response to plaintiff’s statement of 25 undisputed facts. 26 ///// 12 1 The evidence submitted by the defendants establishes the following. After 2 transferring to CSP-Solano, plaintiff received a physical examination and a comprehensive work 3 up and was diagnosed with gynecomastia with no underlying condition that needed treatment. 4 Plaintiff saw two outside specialists for evaluation, Dr. Eisenberg and Dr. Young. The 5 specialists confirmed the gynecomastia diagnosis, ruled out any underlying causes that needed 6 treatment, and recommended surgery. (Defs.’ SUDF 1, 4-5, Traquina Decl. & Ex. A.) 7 Based on diagnosis and evaluations, plaintiff received conservative treatment 8 including observation and symptomatic treatment with anti-inflammatories such as Motrin. The 9 MARC, of which defendants were members, twice denied plaintiff’s request for surgery because 10 it was found not to be medically necessary and considered cosmetic. Providing of cosmetic 11 surgery is prohibited by the California Code of Regulations and CDCR policy. (Defs.’ SUDF 6- 12 7, 4-5, Traquina Decl. & Ex. A.) 13 In May 2009, Dr. Traquina examined plaintiff and observed that his gynecomastia 14 had decreased in size. In his professional opinion as a Board certified surgeon, the conservative 15 treatment plaintiff received was medically acceptable and preferable to the more radical surgical 16 treatment, which has the risk of bleeding, infection, and scarring. Defendant Traquina declares 17 that he tried at all times to treat plaintiff with dignity and respect in an honest effort to treat his 18 condition. In addition, he declares that at no time did he or defendant Noriega refuse to provide 19 plaintiff with medical care and treatment, and at no time did they intentionally or knowingly 20 cause plaintiff any pain, suffering, injury, or harm. (Defs.’ SUDF 8-12, Traquina Decl. & Ex. A.) 21 In July and August 2010, Dr. Eisenberg and Dr. Young were deposed. At their 22 depositions, they confirmed that plaintiff’s requested surgery is not medically necessary and is 23 unlikely to effect the pain of which he complains. They also testified that, in their opinion, the 24 gynecomastia does not present a substantial risk of injury or harm to plaintiff. (Defs.’ SUDF 13, 25 Eisenberg Dep., Young Dep.) 26 ///// 13 1 II. Defendants’ Arguments 2 Defense counsel argues that under the undisputed facts of this case neither 3 defendant Traquina nor defendant Noriega was deliberately indifferent to plaintiff’s medical 4 needs. Specifically, defense counsel argues that the defendants provided plaintiff with an 5 appropriate course of treatment for his condition. Defendants Traquina and Noriega determined 6 that surgery was not medically necessary but was cosmetic. Plaintiff’s outside specialists, Dr. 7 Eisenberg and Dr. Young, have since confirmed defendants’ opinion regarding the appropriate 8 treatment. Defense counsel contends that plaintiff has received all reasonable and necessary care 9 and is receiving treatment that is less risky and preferable to the surgery he requests. (Defs.’ 10 Mem. of P. & A. at 11-12 & Defs.’ Reply at 2.) 11 Moreover, defense counsel contends, there is no evidence that defendants had 12 actual knowledge of a substantial risk of serious harm to plaintiff. Defense counsel argues that, 13 in fact, all of plaintiff’s physicians agree that his condition does not pose a substantial risk of 14 serious harm to him without surgery. Finally, defense counsel notes that plaintiff has submitted 15 no expert testimony regarding the appropriate treatment for his condition, much less any 16 evidence that the care provided by defendants amounted to deliberate indifference. Accordingly, 17 defense counsel concludes that defendants are entitled to summary judgement. (Defs.’ Mem. of 18 P. & A. at 11-12 & Defs.’ Reply at 2.) 19 ANALYSIS 20 The Ninth Circuit has made clear that “when parties submit cross motions for 21 summary judgment, [e]ach motion must be considered on its own merits.” Fair Hous. Council of 22 Riverside County v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). Accordingly, the 23 undersigned makes the following findings and recommendations with respect to on each party’s 24 motion. 25 ///// 26 ///// 14 1 2 I. Plaintiff’s Serious Medical Needs The parties do not dispute, and this court finds once more that, based on the 3 evidence presented by the parties in connection with the pending motions, a reasonable juror 4 could conclude that plaintiff’s left breast gynecomastia and related pain constitute an objective, 5 serious medical need. See McGuckin, 974 F.2d at 1059-60 (“The existence of an injury that a 6 reasonable doctor or patient would find important and worthy of comment or treatment; the 7 presence of a medical condition that significantly affects an individual’s daily activities; or the 8 existence of chronic and substantial pain are examples of indications that a prisoner has a 9 ‘serious’ need for medical treatment.”); see also Canell v. Bradshaw, 840 F. Supp. 1382, 1393 10 (D. Or. 1993) (the Eighth Amendment duty to provide medical care applies “to medical 11 conditions that may result in pain and suffering which serve no legitimate penological purpose.”). 12 Specifically, the record in this case demonstrates that plaintiff repeatedly sought and received 13 medical care for his condition from medical personnel at CSP-Solano, including both of the 14 defendants, and from two outside medical specialists. In light of plaintiff’s medical history as 15 well as the observations and treatment recommendations by several doctors, a reasonable juror 16 could conclude that failure to treat plaintiff’s gynecomastia and related pain could result in 17 “further significant injury” and the “unnecessary and wanton infliction of pain.” See McGuckin, 18 974 F.2d at 1059. Accordingly, the pending cross motions for summary judgment hinge on 19 whether, based upon the evidence before the court, the defendants responded to plaintiff’s serious 20 medical needs with deliberate indifference. Farmer, 511 U.S. at 834; Estelle, 429 U.S. at 106. 21 II. Defendants’ Response to Plaintiff’s Serious Medical Needs 22 As to plaintiff’s motion for summary judgment, the court will assume for the sake 23 of argument that plaintiff has met the initial burden of demonstrating that there is no genuine 24 issue of material fact with respect to the adequacy of the medical care provided to plaintiff. 25 However, on plaintiff’s motion for summary judgment, the court is required to believe 26 defendants’ evidence and draw all reasonable inferences from the facts before the court in 15 1 defendants’ favor. Drawing all reasonable inferences in defendants’ favor, the court finds that 2 they have submitted sufficient evidence to create a genuine issue of material fact with respect to 3 plaintiff’s claim that they responded to his serious medical needs with deliberate indifference. 4 See Farmer, 511 U.S. at 834; Estelle, 429 U.S. at 106. 5 Specifically, defendants’ evidence establishes that, based on plaintiff’s diagnosis 6 and evaluations, they provided him with a conservative course of treatment, including continued 7 observation and symptomatic treatment with anti-inflammatories such as Motrin. The MARC, of 8 which defendants were members, twice denied plaintiff’s request for surgery because it was not 9 medically necessary and would be cosmetic. (Traquina Decl.) Plaintiff maintains that he needs 10 surgery and has submitted evidence in the form of medical records indicating that two outside 11 specialists, Dr. Eisenberg and Dr. Young, recommended surgery for his condition. However, it is 12 well established that a mere difference of opinion between a prisoner and prison medical staff as 13 to the proper course of medical care does not give rise to liability on a § 1983 claim. See Estelle, 14 429 U.S. at 107 (“A medical decision not to order an X-ray, or like measures, does not constitute 15 cruel and unusual punishment.”); Toguchi, 391 F.3d at 1058; Jackson, 90 F.3d at 332; Fleming v. 16 Lefevere, 423 F. Supp. 2d 1064, 1070 (C.D. Cal. 2006) (“Plaintiff’s own opinion as to the 17 appropriate course of care does not create a triable issue of fact because he has not shown that he 18 has any medical training or expertise upon which to base such an opinion.”). Likewise, a 19 difference of opinion between doctors also does not give rise to liability on a § 1983 claim. See 20 Toguchi, 391 F.3d at 1059-60 (“Dr. Tackett’s contrary view was a difference of medical opinion, 21 which cannot support a claim of deliberate indifference.”); Sanchez, 891 F.2d at 242 (difference 22 of opinion between medical personnel regarding the need for surgery does not amount to 23 deliberate indifference to a prisoner’s serious medical needs). 24 To establish that a difference of medical opinion as to the appropriate course of 25 treatment amounted to deliberate indifference, the evidence must “show that the course of 26 treatment the doctors chose was medically unacceptable under the circumstances” and that “they 16 1 chose this course in conscious disregard of an excessive risk to [the prisoner’s] health.” Jackson, 2 90 F.3d at 332. Here, defendants have submitted evidence that demonstrates that their course of 3 treatment was medically acceptable including, most importantly, the recent deposition testimony 4 from Dr. Eisenberg and Dr. Young. In this regard, Dr. Eisenberg testified as follows: 5 7 Q: Now, treatment options for this condition – and I’m talking about Mr. Fryman’s condition in particular – would a conservative approach be one treatment option; a conservative approach being observation, annual mammograms and treating any discomfort with anti-inflammatories? 8 A: That would certainly be an option. 9 Q: And that would be a reasonable medical option; correct? 6 10 A: Yeah, a lot of times it really depends on the individual. There are – any time we have multiple options available for treatment, my practice is to discuss them with the patient and see which they think they would prefer to have done. And partly it depends on how much physical or mental distress it is causing. 11 12 13 (Eisenberg Dep. at 44.) 14 Similarly, Dr. Young testified as follows: 15 Q: Now, there is a conservative approach, correct, which would be just to observe yearly mammograms and treat with antiinflammatories; correct? I mean, I understand you’re a surgeon, but presumably? 16 17 A: There are always ways of just leaving it alone. Correct. I’m not aware that anti-inflammatories actually correct the process. 18 19 Q: But taking a conservative approach, not doing surgery, is a course of treatment; correct? 20 A: Correct. Absolutely. 21 22 Q: And that’s a medically acceptable course of treatment, medically speaking; correct? 23 A: Correct. 24 Q: There is also surgery. And you told me when we spoke on the phone that that wasn’t medically necessary for the patient’s physical health; correct? 25 26 ///// 17 1 A: I don’t think that gynecomastia would harm him in a medical way. 2 3 4 (Young Dep. at 34-35.) Defendants’ evidence demonstrates that defendants Traquina and Noriega did not 5 choose the particular course of treatment at issue in this action in conscious disregard to a 6 substantial risk of injury or harm to plaintiff’s health. Specifically, Dr. Eisenberg and Dr. Young 7 testified at their depositions that there is no substantial risk of serious physical harm to plaintiff if 8 he does not undergo surgery. In that regard, Dr. Eisenberg testified as follows: 9 11 Q: Without surgery, you didn’t have any particular reason to believe that in Mr. Fryman’s case that he would have – that you would have expected him to be at substantial risk of serious physical harm without the surgery if there was follow-up observations of mammograms; correct? 12 A: Yeah, I don’t think so. 10 13 (Eisenberg Dep. at 47.) 14 Similarly, Dr. Young testified as follows: 15 16 Q: And as far as you know I think you explained it’s not likely to lead to further significant physical injury if the conservative approach of not doing surgery is followed; correct? 17 A: Correct. 18 19 (Young Dep. at 35.) In sum, based on the record in this case, the court finds that a reasonable jury 20 could conclude that defendants Traquina and Noriega were not deliberately indifferent to 21 plaintiff’s medical needs and therefore did not violate his rights under the Eighth Amendment. 22 Accordingly, plaintiff’s motion for summary judgment should be denied. 23 As to defendants’ motion for summary judgment, the court finds that defendants 24 Traquina and Noriega have borne the initial responsibility of demonstrating that there is no 25 genuine issue of material fact with respect to the adequacy of the medical care provided to 26 plaintiff. However, in considering defendants’ motion for summary judgment, the court is 18 1 required to believe plaintiff’s evidence and draw all reasonable inferences from the facts before 2 the court in plaintiff’s favor. Drawing all reasonable inferences in plaintiff’s favor, the court 3 finds that plaintiff has failed to submit sufficient evidence to create a genuine issue of material 4 fact with respect to his claim that the defendants responded to his serious medical needs with 5 deliberate indifference. See Farmer, 511 U.S. at 834; Estelle, 429 U.S. at 106. 6 Specifically, plaintiff claims that defendants have been deliberately indifferent to 7 his medical needs because they refuse to authorize surgery for him and instead continue to 8 employ this “wait and see approach” to his treatment. However, as discussed above, a mere 9 difference of opinion between a prisoner and prison medical staff or between medical 10 professionals as to the proper course of medical care does not give rise to liability on a §1983 11 claim. See Toguchi, 391 F.3d at 1058; Jackson, 90 F.3d at 332. 12 Plaintiff has simply not come forward with evidence demonstrating that the course 13 of treatment the defendants chose for him was medically unacceptable under the circumstances. 14 Although Dr. Eisenberg and Dr. Young recommended plaintiff undergo surgery at one time, they 15 have since testified under penalty of perjury that the course of treatment employed by defendants 16 was also medically acceptable. (Eisenberg Dep. at 44, Young Dep. at 34-35.) In this regard, this 17 case is distinguishable from cases in which prison officials and doctors deliberately ignored the 18 express orders of a prisoner’s treating physician. See, e.g., Jett, 439 F.3d at 1097-98 (finding a 19 triable issue of fact as to whether a prison doctor was deliberately indifferent to a prisoner’s 20 medical needs when he decided not to request an orthopedic consultation as the prisoner’s 21 emergency room doctor had previously ordered); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th 22 Cir. 1992) (finding a triable issue of fact as to whether prison officials were deliberately 23 indifferent to prisoner’s serious medical needs when they relied on the opinion of a prison doctor 24 instead of the opinion of the prisoner’s treating physician and surgeon), abrogated in part on 25 other grounds by Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1045 (9th Cir. 2002). See 26 also Estelle, 429 U.S. at 104-05 (holding that deliberate indifference may manifest “by prison 19 1 doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or 2 delaying access to medical care or intentionally interfering with the treatment once prescribed”); 3 Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000) (holding that a prisoner may establish 4 deliberate indifference by showing that a prison official intentionally interfered with his medical 5 treatment); Wakefield v. Thompson, 177 F.3d 1160, 1165 & n.6 (9th Cir. 1999) (holding that “a 6 prison official acts with deliberate indifference when he ignores the instructions of the prisoner’s 7 treating physician or surgeon.”). 8 Nor has plaintiff provided evidence showing that defendants Traquina and 9 Noriega chose the particular course of treatment at issue in conscious disregard of an excessive 10 risk to plaintiff’s health. In fact, as noted above, Dr. Eisenberg and Dr. Young testified during 11 their depositions that there is no substantial risk of serious physical harm to plaintiff if did not 12 undergo surgery, so long as he received follow-up observation and mammograms. Moreover, 13 according to plaintiff’s medical records, his condition has improved at times. For example, in 14 May of 2009, defendant Traquina examined plaintiff and observed that he had “small 15 gynecomastia” on his left breast compared to when Dr. Eisenberg measured plaintiff’s 16 gynecomastia at 8 to 9 centimeters in October of 2006. (Traquina Decl. & Ex. A.) 17 Finally, insofar as plaintiff has experienced pain because of the gynecomastia, and 18 sought treatment of such from prison medical personnel, it is undisputed that he was repeatedly 19 prescribed Motrin “as needed.” Although plaintiff maintains that he needs surgery to alleviate 20 his pain, he has come forward with no evidence that the surgery he desires would be effective in 21 addressing any pain he suffers as a result of this condition. In fact, both Dr. Eisenberg and Dr. 22 Young testified at their depositions that the conservative course of treatment the defendants have 23 elected to administer was medically acceptable, even in light of plaintiff’s ongoing complaints 24 regarding pain. In this regard, Dr. Eisenberg testified in his deposition as follows: 25 26 Q: Okay. But after – if the condition has been present for three years, would you consider that the conservative approach is not really working in order to treat the condition? 20 1 A: Well, if I had observed it for three years – if I had observed it for three years – when you base on history, you’re always basing it on other people’s interpretation of what’s happening, so I would only make a recommendation on my personal observations. 2 3 Q: Now assume it’s December 2009 and you were to examine Mr. Fryman again. If you had found a tender mass, let’s say 3 by 4 centimeters in width, would you say that the – would you actually say the conservative approach was the proper approach to be taking? 4 5 6 A: If it was 3 or 4 centimeters in width in December 2009? 7 Q: Yes. 8 9 A: So in other words, what you’re suggesting is it maybe had some decreased some from my examination in October 2006? 10 Q: Yes, but the patient is still complaining about pain, tenderness. 11 A: That would be a hard call to make. I would have to really examine the patient myself. It would be a matter of how tender it was, what the tissue actually felt like, if it was more like scar tissue or fibrosis and the degree of thickness of the tissue. 12 13 I think the fact that it had decreased in size over a three-year period might be a condition for saying, well, let’s see what happens over another year or two following a conservative approach. 14 15 16 (Eisenberg Dep. at 56-57.)2 17 Similarly, Dr. Young testified during his deposition as follows: 18 Q: So, Dr. Young, if a patient is complaining about pain due to his gynecomastia, and if he states that this pain has been – you know, has been continuing, would you actually recommend the conservative approach as described by counsel for defendant? 19 20 ///// 21 ///// 22 2 23 24 25 26 Dr. Eisenberg also opined that the conservative course of treatment pursued by defendants of plaintiff’s medical condition could not be considered malpractice. (Eisenberg Dep. at 45.) Of course, as noted above, mere medical malpractice or negligence will not support a claim of constitutionally inadequate medical care under the Eighth Amendment. Estelle, 429 U.S. at 105-06; Broughton, 622 F.2d at 460; (9th Cir. 1980); McGuckin, 974 F.2d at 1059; Toguchi, 391 F.3d at 1057. Dr. Eisenberg also took the position that, based on his examinations of plaintiff, his condition would not interfere with the normal activities of daily life. (Eisenberg Dep. at 49.) 21 1 2 A: I would not let the pain change my opinion about whether or not he needs surgery. If I may explain the reason why is if it’s causing him pain, I’m not sure that the surgery would alleviate it. 3 Q: Why is that? 4 A: Because it’s just in my experience that sometimes people have pain in that area, I attribute it to the gynecomastia, and after surgery they still have the pain. So I don’t tell the patient that it will feel better afterwards largely because that’s not something I can deliver on. 5 6 7 (Young Dep. at 42.) 8 It is important to emphasize that plaintiff relies almost solely on the fact that Drs. 9 Eisenberg and Young, physicians from outside the prison, recommended that he have surgery for 10 his condition. However, when questioned at their recent depositions, Drs. Eisenberg and Young 11 testified that the conservative course of treatment followed by defendants was medically 12 acceptable and that there was no assurance that surgery would address plaintiff’s complaints of 13 pain or discomfort. Given this very specific testimony from the outside physicians plaintiff relies 14 upon in claiming that the only medically acceptable treatment for his condition was surgery, the 15 undersigned must conclude that plaintiff has failed to make a showing sufficient to establish the 16 existence of an element essential to his case and on which he would bear the burden of proof at 17 trial. Celotex Corp., 477 U.S. at 323. In light of this evidence, defendants’ decision to continue 18 a conservative course with respect to the treatment of plaintiff’s gynecomastia does not reflect 19 deliberate indifference to plaintiff’s serious medical needs. In sum, based on the evidence 20 submitted in connection with the pending motions, the undersigned finds that a reasonable jury 21 could not conclude that defendants Traquina and Noriega were deliberately indifferent to 22 plaintiff’s medical needs in violation of plaintiff’s rights under the Eighth 23 ///// 24 ///// 25 ///// 26 ///// 22 1 Amendment. Accordingly, defendants motion for summary judgment should be granted.3 2 CONCLUSION 3 Accordingly, IT IS HEREBY RECOMMENDED that: 4 1. Plaintiff’s September 3, 2010 motion for summary judgment (Doc. No. 61) be 5 denied; 6 7 2. Defendants’ October 1, 2010 motion for summary judgment (Doc. No. 69) be granted; and 8 3. This action be closed. 9 These findings and recommendations are submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 11 one days after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 14 shall be served and filed within seven days after service of the objections. The parties are 15 advised that failure to file objections within the specified time may waive the right to appeal the 16 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 DATED: February 3, 2011. 18 19 20 DAD:9 frym2636.57(3) 21 22 23 24 25 26 3 Defense counsel has submitted a series of formal objections to plaintiff’s evidence. In light of the findings and recommendations set forth herein, the court need not address these objections. Plaintiff’s counsel has also submitted objections to parts of defendant Traquina’s declaration and a portion of Dr. Young’s deposition under Rule 702 of the Federal Rules of Evidence regarding testimony by experts. These objections are overruled. For purposes of summary judgment, neither of these doctors have been deemed experts. However, as treating and examining physicians their testimony constitutes relevant and admissible evidence. 23
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