Arellano v. Santos et al, No. 3:2018cv02391 - Document 91 (S.D. Cal. 2021)

Court Description: ORDER Granting Defendant's Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 56 75 Motion for Summary Judgment. Signed by Judge Barry Ted Moskowitz on 11/4/2021. (All non-registered users served via U.S. Mail Service)(zda)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 RAUL ARELLANO, CDCR #AH-1995, 15 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PURSUANT TO Fed. R. Civ. P. 56 Plaintiff, 13 14 Case No.: 3:18-cv-02391-BTM-WVG vs. Dr. MICHAEL BALBIN SANTOS, Defendant. 16 [ECF No. 75] 17 18 Plaintiff Raul Arellano, currently incarcerated at Richard J. Donovan Correctional 19 Facility (“RJD”) in San Diego, California, and proceeding pro se, filed this civil rights 20 action pursuant to 42 U.S.C. § 1983, on October 18, 2018. See Compl., ECF No. 1.1 21 Plaintiff claims Michael Balbin Santos, a doctor at RJD, violated his First and Eighth 22 Amendment rights by tapering his dosage of Gabapentin—a medication he contends was 23 previously prescribed to treat both his neuropathic pain and seizures—and later 24 25 26 27 28 1 Throughout this Order and for ease of consistency and reference, the Court will cite to each document in the record using both the number assigned to the document and the page number automatically generated by its Case Management/Electronic Case File system (“ECF”). 1 3:18-cv-02391-BTM-WVG 1 threatening to terminate the prescription altogether if he continued to complain about the 2 dosage. See id. at 3 4. 3 I. 4 Procedural History Plaintiff is proceeding in forma pauperis, and his repeated motions requesting that 5 the Court grant him preliminary injunctive relief requiring Dr. Santos to renew and 6 increase his dosage of Gabapentin have been denied. See ECF Nos. 6, 10, 13, 40, 49, 52. 7 Nevertheless, the inadequate medical care and retaliation claims alleged in his Complaint 8 have survived Defendant Santos’s efforts to dismiss them pursuant to Fed. R. Civ. P. 9 12(b)(6). See ECF No. 26. Santos now seeks summary judgment pursuant to Fed. R. Civ. 10 P. 56. See ECF No. 75. 11 The Court has provided Plaintiff with notice of the requirements for opposing 12 summary judgment as required by Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) 13 and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc). See ECF No. 76. After he 14 was granted two extensions of time, see ECF Nos. 82, 84, Plaintiff filed his Opposition 15 on August 3, 2021. See ECF No. 88. On August 11, 2021, Defendant filed his Reply. See 16 ECF No. 89. 17 Having now carefully considered the full record as submitted, the Court finds 18 Defendant Santos is entitled to judgment as a matter of law with respect to both 19 Plaintiff’s First and Eighth Amendment claims, GRANTS Defendant’s Motion for 20 Summary Judgment pursuant to Fed. R. Civ. P. 56 (ECF No. 75) and DIRECTS the Clerk 21 to enter judgment accordingly. 22 II. Defendant’s Motion for Summary Judgment 23 A. 24 A court may grant summary judgment when it is demonstrated that there exists no 25 genuine dispute as to any material fact, and that the moving party is entitled to judgment 26 as a matter of law. See Fed. R. Civ. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 27 157 (1970). The party seeking summary judgment bears the initial burden of informing a 28 court of the basis for its motion and of identifying the portions of the declarations, Standard of Review 2 3:18-cv-02391-BTM-WVG 1 pleadings, and discovery that demonstrate an absence of a genuine dispute of material 2 fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is “material” if it 3 might affect the outcome of the suit under the governing law. See Anderson v. Liberty 4 Lobby, Inc., 477 U.S. 242, 248–49 (1986). A dispute is “genuine” as to a material fact if 5 there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving 6 party. See Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). 7 Where the moving party will have the burden of proof on an issue at trial, the 8 movant must affirmatively demonstrate that no reasonable trier of fact could find other 9 than for the movant. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 10 2007). Where the non-moving party will have the burden of proof on an issue at trial, the 11 movant may prevail by presenting evidence that negates an essential element of the non- 12 moving party’s claim or by merely pointing out that there is an absence of evidence to 13 support an essential element of the non-moving party’s claim. See Nissan Fire & Marine 14 Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102–03 (9th Cir. 2000). 15 If a moving party fails to carry its burden of production, then “the non-moving 16 party has no obligation to produce anything, even if the non-moving party would have the 17 ultimate burden of persuasion.” Id. But if the moving party meets its initial burden, the 18 burden then shifts to the opposing party to establish that a genuine dispute as to any 19 material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 20 U.S. 574, 586 (1986). The opposing party cannot “rest upon the mere allegations or 21 denials of [its] pleading but must instead produce evidence that sets forth specific facts 22 showing that there is a genuine issue for trial.” See Estate of Tucker, 515 F.3d 1019, 1030 23 (9th Cir. 2008) (internal quotation marks and citation omitted). 24 The evidence of the opposing party is to be believed, and all reasonable inferences 25 that may be drawn from the facts placed before a court must be drawn in favor of the 26 opposing party. See Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). 27 However, “[b]ald assertions that genuine issues of material fact exist are insufficient.” 28 See Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); see also Day v. 3 3:18-cv-02391-BTM-WVG 1 Sears Holdings Corp., No. 11–09068, 2013 WL 1010547, *4 (C.D. Cal. Mar. 13, 2013) 2 (“Conclusory, speculative testimony in affidavits and moving papers is insufficient to 3 raise genuine issues of fact and defeat summary judgment.”). A “motion for summary 4 judgment may not be defeated ... by evidence that is ‘merely colorable’ or ‘is not 5 significantly probative.’” Anderson, 477 U.S. at 249–50 (citation omitted); see also 6 Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). If the nonmoving 7 party fails to produce evidence sufficient to create a genuine dispute of material fact, the 8 moving party is entitled to summary judgment. See Nissan Fire & Marine, 210 F.3d at 9 1103. Plaintiff’s Medical History & Treatment Record2 10 B. 11 Plaintiff claims to suffer from hypertension, diabetes, partial and tonic-clonic 12 seizures, and ongoing pain due to neuropathy and nerve damage to his head and lower 13 back caused by an “excessive force incident” in 2010, a fall from his bunk in 2012, and a 14 suicide attempt in April 2018. See ECF No. 1 at 3; Pl.’s Decl. in Supp. of TRO, ECF No. 15 3 at 2 3; Pl.’s Dep., Def.’s Ex. 1 in Supp. of Mot. for Summ. J., ECF No. 75-4 at 4 5. 16 17 Plaintiff’s Complaint provides a summary of his claimed constitutional violations, but he expressly incorporates by reference more detailed factual allegations included in a Declaration attached to his motion for a TRO. See ECF No. 1 at 3 (“The 8th Amendment violation is all emphasized in the attached Declaration. Here is just a summary of the violation.”); id. (“For the reasons above as what I wrote on Declaration is sufficient to pas[s] the level of state a claim.”); see also ECF No. 3 at 2 8; 9 24. In his Opposition to Defendant’s Motion for Summary Judgment, Plaintiff further “declares under penalty of perjury that everything stated [in] [his] Complaint is true and correct.” See ECF No. 88 at 28. “A verified complaint may be treated as an affidavit to oppose summary judgment to the extent it is ‘based on personal knowledge’ and ‘sets forth specific facts admissible in evidence.’” Keenan v. Hall, 83 F.3d 1083, 1090 n.1 (9th Cir. 1996) (quoting McElyea v. Babbitt, 833 F.2d 196, 197–98 n.1 (9th Cir. 1987) (per curiam)), amended by Keenan v. Hall, 135 F.3d 1318 (9th Cir. 1998); see also Schroeder v. McDonald, 55 F.3d 454, 460 & nn. 10 11 (9th Cir. 1995) (treating plaintiff’s verified complaint as opposing affidavit where, even though verification was not in conformity with 28 U.S.C. § 1746, he stated under penalty of perjury that its contents were true and correct, and his allegations were based on personal knowledge). 2 18 19 20 21 22 23 24 25 26 27 28 4 3:18-cv-02391-BTM-WVG 1 Defendant does not dispute Plaintiff suffers from diabetic neuropathy and has complained 2 of seizures since 2010, but he does not attribute them to any particular cause or incident 3 and claims the “type of seizure[s]” Plaintiff attests to suffer have “never been witnessed 4 by medical staff,” remain undiagnosed, and have not been confirmed by subsequent 5 EEGs, MRIs, or CT scans of Plaintiff’s brain. See ECF No. 75-4 at 4, 6, 14 15, 51 53; 6 Def.’s June 8, 2020 Decl. in Response to Pl.’s 2d Mot. for TRO, ECF No. 36-2 at 2, 3, 4 7 ¶¶ 3, 10, 12; Def.’s Dec. 12, 2018 Decl. in Response to Pl.’s 1st Mot. for TRO, ECF No. 8 8-1 at 4 ¶ 9. 9 For these ailments, from 2011 through 2015, Plaintiff was nevertheless prescribed 10 a host of antiepileptic drugs including Keppra, Dilantin, Lamictal, Depakote, Tegretol, 11 and Lyrica,3 together with various types of pain medications including Naproxen, 12 13 According to the Physician’s Desk Reference (“PDR”), Keppra® is a brand name for levetiracetam. See https://www.pdr.net/drug-summary/Keppra-Oral-Solution-and-Tablets -levetiracetam 1054. 6058 (last visited Sept. 9, 2021). It is an “oral and intravenous pyrrolidine derivative antiepileptic drug” “[u]sed for the treatment of certain types of partial, myoclonic, and generalized tonic-clonic seizures,” and requires “[m]onitor[ing] for emerging or worsening suicidal thoughts/behavior and depression.” Id. Dilantin® is a brand name for phenytoin sodium. It is an “[o]ral and parenteral hydantoin anticonvulsant with narrow therapeutic window; used for tonic-clonic seizures and complex partial seizures; switching dosage forms may produce significant changes in serum concentrations; close monitoring for emerging or worsening suicidal thoughts/behavior or depression is recommended.” See https://www.pdr.net/drug-summary/ Dilantin-Capsulesphenytoin-sodium-1813 (last visited Sept. 9, 2021). Lamictal® is the brand name for lamotrigine, an “[o]ral antiepileptic drug (AED) … [u]sed for adjunctive therapy for partial-onset seizures, primary generalized tonic-clonic seizures, [] generalized seizures of Lennox-Gastaut syndrome; … [and] maintenance treatment of bipolar I disorder.” See https://www.pdr.net/drug-summary /Lamictal-lamotrigine-206.3731#3 (last visited Sept. 9, 2021). Pregabalin (Lyrica®) is the CCHCS’s recommended formulary medication for the treatment of diabetic neuropathy and partial seizures. See Def.’s Ex. 2, ECF No. 75-4 at 112. The Court may take judicial notice of medical facts regarding prescription drugs, their active ingredients and effects as described in the PDR. See United States v. Howard, 381 F.3d 873, 880 & n.7 (9th Cir. 2004) (taking judicial notice of the narcotic effects of Percocet and Percodan noted in PDR); see also Lolli v. County of Orange, 351 F.3d 410, 419 (9th Cir. 2003) (“Well-known medical facts are the types of matters of which judicial 3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 3:18-cv-02391-BTM-WVG 1 Ibuprofen, Amitriptyline (Elavil®), and Sulindac, but he claims they all caused “severe 2 side effects” and proved ineffective. See ECF No. 3 at 2; ECF No. 75-4 at 5 6, 9, 12, 39 3 40; Pl.’s Opp’n to Mot. for Summ. J., ECF No. 88, Ex. A, at 30 43.4 In late 2015 and early 2016, Plaintiff was prescribed Depakote and a “low dose” or 4 5 300 mg of Gabapentin three times a day, which he alleges is “for both pain/seizure[s].” 6 ECF No. 3 at 2; ECF No. 75-4 at 15 16; ECF No. 88, Ex. A at 38.5 7 8 9 10 notice may be taken.”) (quoting Barnes v. Indep. Auto. Dealers Ass’n of Cal. Health & Welfare Benefit Plan, 64 F.3d 1389, 1395 n.2 (9th Cir. 1995)). 4 19 Plaintiff filed eight other civil rights actions in the Southern District of California between March 13, 2014, and the filing of this case on October 28, 2018. See https://pcl.uscourts. gov/pcl/pages/search/results/parties.jsf?sid=bb8b2ef241c64377b259b64606c339dd (last visited Sept. 9, 2021). Seven of those cases remained pending at the time Plaintiff filed this action, and four of them contain Eighth Amendment inadequate medical care allegations related to pain medication. However, all of Plaintiff’s previously filed claims arose years before the incidents at issue in this case, and all name different RJD doctors, nurses, and inmate appeals officials as Defendants. While similarly based on his Eighth Amendment right to adequate medical care, none are duplicative of the claims Plaintiff alleges against Dr. Santos in this matter, which Plaintiff contends first arose at RJD in May 2018. See ECF No. 1 at 1, 3-4; cf. Arellano v. Hodge, et al., S.D. Cal. Civil Case No. 3:14-cv-00590-JLSJLB; Arellano v. Sedighi, et al., S.D. Cal. Civil Case No. 3:15-cv-02059-AJB-BGS; Arellano v. Melton, et al., 3:15-cv-02069-JAH-NLS; and Arellano v. Dean, et al., 3:15-cv02247-BEN-JLB. 20 5 11 12 13 14 15 16 17 18 21 22 23 24 25 26 27 28 Depakote® is the brand named for divalproex sodium. It is an “[a]nticonvulsant available orally,” “[u]seful for absence, myoclonic, partial and tonic-clonic seizures; treats bipolar disorder and agitation secondary to dementia.” “Close monitoring for emerging or worsening suicidal thoughts/behavior or depression is recommended.” See https://www. pdr.net/drug-summary/Depakote-ER-divalproex-sodium-10.8467 (last visited Sept. 9, 2021). Gabapentin (Neurontin®) is prescribed for “restless legs syndrome, postherpetic and other neuralgias, and adjunctively for partial seizures.” Prescriptions must also be “[m]onitor[ed] for emerging or worsening suicidal thoughts or actions and/or depression.” https://www.pdr.net/drug-summary/Neurontin-gabapentin-2477.4218 (last visited Sept. 9, 2021); see also “CCHCS Care Guide: Pain Management Part 2- Therapy-Non-Opioid,” Def.’s Ex. 2, ECF No. 75-4 at 112 (classifying Gabapentin as non-formulary and appropriate for consideration only in “cases with objective evidence of severe neuropathic pain after documented trials of 1st and 2nd line agents (TCA [Tricyclics], SNRI [serotonin 6 3:18-cv-02391-BTM-WVG 1 While Plaintiff claims to have still suffered seizures in 2016, he noticed that as 2 “they (different doctors) increased [the] Gabapentin,” his seizures decreased in both 3 frequency and severity. See ECF No. 3 at 2. By “May or so of 2017,” Plaintiff’s 4 Gabapentin dosage had been increased to 2700 mg, which he contends “was controlling 5 [his] seizures,” and he “stayed on that level for a year.” Id.; see also ECF No. 75-4 at 12 6 13, 15 16. 7 Defendant Santos attests, however, that “Gabapentin was prescribed for 8 [Plaintiff’s] complaints of neuropathic pain, not for seizures.” See ECF No. 8-1 at 2 ¶ 3; 9 see also ECF No. 88, Ex. A at 33 (Jan. 6, 2016 Medical Progress Note requesting a 10 “switch” from Lyrica-Sulindac to non-formulary Neurontin to control Plaintiff’s “low 11 back pain with radiculopathy” and an “MRI if Neurontin does not control his pain.”); 12 ECF No. 88, Ex. G at 85 (April 15, 2016 Medical Progress Note increasing daily 13 Gabapentin dose to 1500 mg in response to Plaintiff’s complaints of “chronic pain with 14 numbness and tingling going down his arms and legs”); id. at 83 (June 16, 2016 Medical 15 Progress Note increasing Plaintiff’s daily dose of Gabapentin from 1500 mg to 1800 mg 16 for complaints of “chronic low back pain”). 17 Dr. Malhotra, who was Plaintiff’s neurologist in 2016, continued to prescribe 18 Depakote to treat Plaintiff’s seizures; however Malhotra also noted those seizures were 19 “presumed” and “unwitnessed.” See ECF No. 8-1 at 2 ¶ 3 & Ex. A at 7. Included in 20 Malhotra’s Progress Record is further documentation of a “normal” EEG and “no 21 indication for Neurontin (Gabapentin).” See id.; see also ECF No. 75-4 at 11. Plaintiff 22 admits he has had multiple x-rays of his cervical and thoracic spine, three EEG’s, MRIs 23 24 25 26 27 28 norepinephrine reuptake inhibitors]),” and noting “only FDA indications for Gabapentin [as]: partial onset seizures (adjunct) [and] post herpetic neuralgia (PHN),” adverse effects including “dizziness, cognitive impairment, fatigue, nausea and vomiting headache,” and advising “caution in patients with … suicidal behavior and ideation.”). 7 3:18-cv-02391-BTM-WVG 1 of his lumbar spine, and a CT scan, and that “they all c[a]me back normal.” ECF No. 75- 2 4 at 14 15; see also ECF No. 88, Ex. B, at 45 53. 3 Santos attests that by November 2017, another of Plaintiff’s primary care 4 physicians continued him on “900 mg of Gabapentin three times a day, resulting in a 5 daily dosage of 2700 mg.” See ECF No. 8-1 at 2 ¶ 3. Plaintiff contends this “combination 6 of Gabapentin and Depakote” “was more effective with less side effects.” See ECF No. 7 75-4 at 16. However, even while Plaintiff remained on a daily dose of 2700 mg of 8 Gabapentin, “his complaints of pain continued.” ECF No. 36-2 at 2 ¶ 4; ECF No. 75-4 at 9 16 17. 10 Specifically, on January 31, 2018, Plaintiff submitted CDCR 602 Health Care 11 Grievance, Tracking # RJD HC 1800120, noting an increase in his chronic head, back, 12 and neck pain, and an inability to sleep due to nausea, burning and numbness he 13 attributed to his peripheral neuropathy. See ECF No. 75-4, Ex. 2 at 65 66. Plaintiff was 14 provided a MRI, but objected on grounds that he instead needed “stronger pain meds.” Id. 15 at 66. On February 9, 2018, Plaintiff filed another CDCR 602 Health Care Grievance, 16 Tracking # RJD HC 18000997, repeating his claims of persistent pain due to back injury 17 and insufficient medication “to effectively calm” his “neuropathy pain.” Id., Ex. 3 at 67 18 69. Plaintiff admitted he had “tried out many different types of medications,” and “went 19 through Amitriptyline, Lyrica, and now Gabapentin,” but needed an “upgrade of 20 Gabapentin” specifically because he had “developed a tolerance” to it. Id. at 69; see also 21 ECF No. 3 at 3. 22 Dr. Santos was assigned as Plaintiff’s primary care physician from March 22, 2018 23 through October 25, 2018, but did not evaluate him until after he was released from a 24 mental health crisis bed on April 20, 2018. See ECF No. 36-2 at 2 ¶ 2; ECF No. 75-4 at 25 22, 26 & Ex. 4 at 70. Plaintiff was admitted to the infirmary for approximately 30 days 26 after he “thr[ew] [him]self [from] the top bunk head first,” and cut his wrists due to a 27 “family tragedy.” See ECF No. 3 at 3; ECF No. 75-4 at 26. 28 8 3:18-cv-02391-BTM-WVG 1 Plaintiff claims to have sustained a concussion, temporary blindness, and 2 “permanent blurry vision” as a result of this incident, and was prescribed Tylenol with 3 codeine (“T3”) for pain while he remained in the suicidal infirmary. See ECF No. 3 at 3; 4 ECF No. 75-4 at 25 26. On April 28, 2018, Plaintiff filed another CDCR 602 Health 5 Care Grievance, Tracking # RJD HC 18001627, claiming his psychologist, Dr. Calderon, 6 had discharged him prematurely, and that he had new “numbness” and “severe” pain in 7 his wrists, and repeating his prior requests for “stronger pain meds.” See ECF No. 75-4, 8 Ex. 4 at 70. 9 After his release, Plaintiff met with Dr. Santos on May 7, 2018. See ECF No. 3 at 10 3; ECF No. 75-4 at 26 27. Plaintiff reported the neck and wrist injuries he had just 11 sustained as a result of his suicide attempt were so severe they were interfering with his 12 ability to walk, exercise, breathe, and sleep. See ECF No. 3 at 3. Plaintiff also reported 13 the Gabapentin he had previously been prescribed “seem[ed] to alleviate” these issues, 14 but he requested an increased dosage—specifically one to alleviate his pain “during the 15 long period of 8 p.m. to 9 a.m.”—noting that “when this happens the doctors upgrade 16 [his] Gabas because his body had gotten used to it.” Id. Plaintiff also “named all the other 17 pain medication [he had] been on” and claimed those were “ineffective” and caused side 18 effects that “put [his] health and life at risk.” Id. 19 Instead of increasing Plaintiff’s Gabapentin prescription, however, Dr. Santos 20 decreased his dosage by 300 mg per day to 2400 mg, and added 1000 mg of Salsalate 21 twice a day “to help control his pain.” See ECF No. 8-1 at 2 ¶ 4; ECF No. 3 at 3; ECF 22 No. 75-4 at 27. 23 On May 10, 2018, Plaintiff filed a Health Care Services Request Form (“CDC 24 7362”) claiming an emergency and again describing his cervical and neuropathic pain as 25 so severe it was interfering with his breathing. See ECF No. 88 at 71. On May 11, 2018, 26 however, Plaintiff was evaluated by a Registered Nurse (“RN”) who noted he was 27 “ambulatory with a steady gait,” “smiling, talking, and laughing,” and acknowledged that 28 if “[he] didn’t put pain with difficulty breathing, [he] won’t be seen at the same day.” Id. 9 3:18-cv-02391-BTM-WVG 1 at 70. Plaintiff reported “lower back pain 8/10 and [that] it was getting worse during the 2 night,” asked for his T3 to be renewed, and to “discuss [his] concern with Dr. Santos.” Id. 3 On the same day, May 11, 2018, Plaintiff filed another CDCR 602 Health Care 4 Grievance, Tracking # RJD HC 18001741, seeking to be “re-evaluated because [his] 5 Gabapentins [we]re not strong enough to control all nerve damage symptoms,” and 6 requesting “an additional pain killer to minimize acute pain,” which he described “as high 7 as 9[/]10” in his “neck, low back, mid back, migraine, [and] eyes.” See ECF No. 75-4 at 8 27 28 & Ex. 5 at 72 74. In this grievance, Plaintiff refers both to his evaluation by Dr. 9 Santos on May 7, 2018, as well as his long history of “issue[s] regarding pain,” claims his 10 “pain triggers seizures,” and cites to his several lawsuits alleging inadequate medication 11 management and incidents of “deliberate indifference” by a host of RJD medical care 12 officials. Id. at 72 74. 13 Plaintiff filed three additional CDC 7362s on May 16, 2018, May 22, 2018, and 14 May 26, 2018. See ECF No. 88 at 67 69. All three reported “severe” neuropathic pain, 15 impaired vision, and troubled breathing. Within a day, Plaintiff was evaluated by three 16 different triage RNs in response—on May 17, 2018, May 23, 2018, and again on May 27, 17 2018. Id. 18 On June 2, 2018, Plaintiff filed a fourth CDC 7362, again reporting nerve pain that 19 “interferes with breathing” and “triggers seizures.” Id. at 64. On June 4, 2018, Plaintiff 20 was again evaluated by a RN who documented his “multiple complaints of neuropathy 21 pain” so severe that he was unable to “pick up morning seizure meds.” Id. at 65. The RN 22 also noted, however, that Plaintiff stated he “able to pick up breakfast at 8:30” that day, 23 and admitted he also “did not pick up his noon meds” because he “was in the library 24 researching information on his 602s” and his “lawsuits regarding these same issues.” Id. 25 The RN “informed and reinformed about the importance of being compliant with 26 medications at all pill times,” referred Plaintiff to his PCP in 14 days to “discuss pain 27 medications,” but noted “no seizure activity,” and that Plaintiff presented as “ambulatory 28 with steady gait.” Id. 10 3:18-cv-02391-BTM-WVG 1 On June 13, 2018, Plaintiff was again evaluated by Dr. Santos. See ECF No. 8-1 at 2 2 ¶ 4; ECF No. 75-4 at 28 29. Because he continued to report neuropathic pain at night, 3 Santos increased Plaintiff’s dose of Salsalate to 1000 mg three times per day, and “spread 4 out the dose of Gabapentin to 600 mg four times a day to provide Gabapentin coverage at 5 night.” ECF No. 8-1 at 2 ¶ 4; ECF No. 75-4 at 29. Santos attests that Plaintiff was 6 informed that while the total amount of Gabapentin had decreased from 2700 mg to 2400 7 mg daily, both the Salsalate dosage and the frequency of his Gabapentin doses had been 8 increased to address his complaints of pain at night and he “agreed with this plan.” ECF 9 No. 8-1 at 2 ¶ 4. Plaintiff, however, swears both that he “was not sure” and could not 10 “recall exactly why” Santos altered his Gabapentin dosage or frequency, and that Santos 11 “never told [him]” that “he wanted to try the 600 mg four times a day because he thought 12 it might provide more nighttime pain coverage.” ECF No. 75-4 at 30, 32, 53 54.6 Santos also reviewed Plaintiff’s Medication Administration Record (“MAR”) and 13 14 noted that he “never took the Salsalate” previously prescribed for his neuropathic pain, 15 that he “had missed several doses of Gabapentin” during the two weeks prior, and 16 “reminded [him] to be compliant with these medications.” ECF No. 8-1 at 2 ¶ 4. Plaintiff 17 admits that while he “miss[ed] a lot of [his] morning meds,” and estimated that he failed 18 to pick up them up as frequently as “at least once a week,” he asserts this was because his 19 pain was “basically out of control by the morning.” ECF No. 75-4 at 30 31; ECF No. 88 20 at 3. 21 On June 20, 2018, Plaintiff’s CDCR 602 Health Care Grievance, Tracking # RJD 22 HC 1800120, first filed on January 31, 2018, and requesting “stronger pain medication” 23 for his peripheral neuropathy, was denied at the Headquarters Level of Review. See ECF 24 25 Plaintiff does not “believe it was better” for Santos to “split” his 2400 mg daily Gabapentin prescription into 4 doses, or to prescribe “an alternate medication” in order to address his complaints of overnight pain, and posits instead that “[i]t would be more reasonable to leave it at 2700 milligrams and increase the night [dose] with another 300 [mg].” ECF No. 75-4 at 54 55. 6 26 27 28 11 3:18-cv-02391-BTM-WVG 1 No. 75-4, Ex. 2 at 65 66. On June 26, 2018, Plaintiff filed another CDC 7362 reporting 2 that he had “stop[ped] complying” with his Salsalate prescription because it was 3 “ineffective [for his] nerve damage pain,” and caused a “loss of appetite, loss of 4 concentration, fatigue, heartburn, dizziness, nausea, and vomiting.” ECF No. 88 at 63. 5 Plaintiff again requested T3 “together with Gabapentin.” Id. 6 July 11, 2018, Plaintiff again met with Santos who then discontinued the Salsalate 7 due to Plaintiff’s reports of dizziness. ECF No. 8-1 at 2 3 ¶ 4; ECF 75-4 at 34. Plaintiff 8 was still prescribed a course of 600 mg Gabapentin 4 times a day but reported he “still 9 ha[d] 9/10 pain in legs bilat at night when cold.” See ECF No. 8-1 at 3 ¶ 4; ECF No. 88 at 10 80. Santos’ Progress Notes also indicate Plaintiff appeared “asymptomatic,” walked with 11 a “normal, steady gait,” was “awake, alert, oriented, and not in acute distress” at the time 12 of the encounter. See ECF No. 88 at 80. Nevertheless, “to help control his pain,” Santos 13 added 500 mg of Naproxyn twice daily. See ECF No. 8-1 at 3 ¶ 4; ECF No. 75-4 at 34; 14 ECF No. 88 at 56, 80-81. While Plaintiff attests he told Santos Naproxyn “kind of gave 15 [him] stomach pain,” Santos’s notes indicate Plaintiff had previously been given 220 mg 16 of Naproxen by the nurse, reported it “gave him relief,” “agreed,” and was “advised to 17 report any side effects.” ECF No. 88 at 81; ECF No. 75-4 at 34. 18 On September 13, 2018, Plaintiff submitted another CDC 7362 asking to see the 19 doctor about neuropathic pain which he described as “severe” and at a “level 10.” ECF 20 No. 8-1 at 3 ¶ 5 & Ex. B at 9; ECF No. 3 at 3. Plaintiff did not report any stomach pain 21 due to the Naproxyn, but did claim to have “fallen with injur[ies]” due to 22 lightheadedness, to have “missed a lot of breakfasts[,] lunch[es] [,] dinner[s] … [and] 23 medications,” and requested that he be “medically unassigned.”7 ECF No. 8-1 at 3 ¶ 5 & 24 25 “[W]hen a disabled inmate is unable to participate in any work, academic, Career Technical Education program or other program, even with reasonable accommodation, because of a medically determinable physical or mental impairment that is expected to last for less than six months, the classification committee shall place the inmate on temporary medical or psychiatric unassignment.” See Cal. Code Regs., tit. 15 § 3044.1(d)(A). 7 26 27 28 12 3:18-cv-02391-BTM-WVG 1 Ex. B at 9; see also ECF No. 75-4 at 36. On the same day, Plaintiff filed CDCR 602 2 Health Care Grievance, Tracking # RJD HC 18002529, repeating the same claims, 3 seeking “emergency” intervention to minimize his “severe neuropathic” “level 10” pain, 4 and specifically asking that his 2400 mg per day Gabapentin dosage be “increased,” and 5 that he be labeled “unassigned due to medical, so “i[t] won’t be mandatory to work in 6 [the] kitchen.” ECF No. 75-4 at 37 38 & Ex. 7 at 79 81. 7 On September 25, 2018, Santos examined Plaintiff and discussed the neuropathic 8 pain complaints reported in his September 13, 2018 CDC 7362. See ECF No. 8-1 at 3 ¶ 6; 9 ECF No. 1 at 4; ECF No. 3 at 3. Santos’s Outpatient Progress Notes further document 10 Plaintiff’s history of “suicidal ideation, HTN, type 2 DM, and seizure,” his request to be 11 medically unassigned, his reports of “intermittent vision loss after throwing himself from 12 the top bunk … five months ago,” two subsequent eye exams, a recommendation for 13 evaluation by a neuro-ophthalmologist at UCSD, and a scheduled brain MRI, which 14 Plaintiff refused, citing claustrophobia. See ECF No. 8-1, Ex. C at 11.8 Santos also noted 15 Plaintiff’s complaints of “needles poking, numbness, and burning sensation on the hands 16 and feet,” and “neuropathic pain” reported as “10/10” and “not controlled” by his then- 17 current prescriptions of both 500 mg of Naproxyn twice daily and 600 mg Gabapentin 18 four times per day. Id. at 11 12. 19 During this evaluation, Plaintiff claims to have told Santos he was worried his pain 20 would “trigger seizures.” ECF No. 3 at 3.9 Santos “advised [Plaintiff] to try Lyrica,” an 21 FDA approved medication for neuropathic pain, but he refused citing previous negative 22 23 25 Santos also notes that “CCHCS instructs physicians to use caution when prescribing Gabapentin to patients with suicidal behavior or ideation.” See ECF No. 75 at 13 (citing ECF No. 75-4, Ex. 2 at 112). 26 9 8 24 27 28 Santos’s Outpatient Progress Notes dated September 25, 2018 indicate Plaintiff was also prescribed “DIVALPROEX SOD ER 500 MG, BID AM+PM” (Depakote®) for treatment of his reported seizures at the time. See ECF No. 8-1 at 4 ¶ 9 & Ex. C. at 11. Plaintiff admits Santos “left the [Depakote] the same way.” See ECF No. 75-4 at 48 49. 13 3:18-cv-02391-BTM-WVG 1 side-effects. ECF No. 8-1 at 4 ¶ 8 & Ex. C a t 12; see also ECF No. 75-4 at 39 41. 2 Plaintiff also “told [Santos] that at times he miss[ed] [his] morning dosage[s]” because he 3 “c[ould not] get up because of the pain.” ECF No. 3 at 3; ECF No. 75-4 at 32. In fact, 4 Santos attests that “a review of [Plaintiff’s] MAR showed he failed to take his prescribed 5 Gabapentin dose on September 4, 8, 9, 12, 13, 14, 15, 16, 18, 19, 20, and 22,” and that a 6 further review of his medication record showed he “had been missing multiple doses 7 every month,” and was “non-compliant since March 2018.” ECF No. 8-1 at 3 ¶ 6. Santos also reported that on September 25, 2018, and “despite [Plaintiff’s] 8 9 complaint[s],” he was “ambulatory,” required “no assistive device,” walked with a 10 “normal, steady gait,” had no “leg limp,” demonstrated “good posture,” and did not 11 “show any signs of painful distress such as grimacing.” ECF No. 8-1, Ex. C at 12. Based 12 on these observations and given Plaintiff’s medical history, Santos added a prescription 13 for Capsaicin, a topical cream for treatment of neurological pain, continued his 14 prescription for Naproxyn, a non-steroidal anti-inflammatory, and referred him to a 15 “Mental Health Pain Management Group for Cognitive Behavioral Therapy,” and to a 16 neurologist “for further evaluation of neuropathic pain not managed by Gabapentin or 17 Lyrica.” Id. at 4 ¶ 8; see also ECF No. 75-4 at 41.10 However, because Plaintiff’s neurologist Dr. Malhotra reported “no indication for 18 19 Neurontin (Gabapentin)” in 2016, see ECF No. 8-1 at 2 ¶ 3 & Ex. A at 7, and Santos’s 20 review of Plaintiff’s subsequent MAR “show[ed] he [was] noncompliant with 21 Gabapentin,” had “missed numerous doses during the [previous] 3 months,” and 22 continually reported increased neuropathic pain “uncontrolled” by 2400 daily mgs of 23 Gabapentin, Santos “determined that the risks of increasing [Plaintiff’s] Gabapentin 24 dosage, or even continuing with th[at] medication outweighed the benefits.” ECF No. 8- 25 1 at 3 ¶ 6; see also Ex. C at 13 (noting that “Gabapentin will be tapered off.”). Santos 26 27 In his Deposition testimony, Plaintiff admits “after September 2018,” he continued to be treated by a neurologist, Dr. Malhotra. See ECF No. 75-4 at 41 42. 10 28 14 3:18-cv-02391-BTM-WVG 1 further attests that Gabapentin in higher doses can cause dizziness, and notes that Plaintiff 2 reported vision loss, and to have “fallen several times” while prescribed Gabapentin. See 3 ECF No. 8-1 at 3 ¶¶ 6, 7 (“The side effects of Gabapentin include dizziness, ataxia, 4 nystagmus, somnolence, and amnesia, the risk of which increases along with the 5 dosage.”); id. ¶ 7 (noting Plaintiff’s “ongoing complaints of vision loss, for which no 6 medical cause ha[d] been found, … could potentially be complicated by Gabapentin.”). 7 Finally, Santos attests Gabapentin “ha[s] the potential to be a habit-forming 8 addictive medication … at higher doses,” and “in several studies … has been a drug of 9 abuse.” ECF No. 8-1 at 3 ¶ 7; ECF No. 75-4, Ex. 3 at 130 (CCHCS Feb. 18, 2019 10 Memorandum urging limitations on Gabapentin due to its “propensity for abuse.”). 11 Santos further points to Plaintiff’s medical records, which “show he has a history of 12 amphetamine, cocaine, methamphetamine, and marijuana abuse.” ECF No. 8-1 at 3 ¶ 7; 13 see also Ex. C at 12; ECF No. 12 at 55. And while Plaintiff denies ever “using drugs in 14 prison,” see ECF No. 88 at 5, he admits “other prisoners” sometimes hoard or sell their 15 narcotic medications, and that Gabapentin, while not a narcotic, “does give you a mood 16 change,” and “kind of get[s] you high.” See ECF No. 75-4 at 50. 17 In the Declaration he filed in support of his first Motion for TRO, Plaintiff swears 18 Santos “didn’t care what [he] was going thr[ough],” and “didn’t give [him] a justifiable 19 reason” to “take [him] off the Gabas.” See ECF No. 3 at 3. When he was deposed 20 however, Plaintiff admits he could not “recall the specifics,” explain “more about what 21 was his [Santos’s] justification,” or cite “exactly why” Santos decided to taper or 22 terminate his Gabapentin. See ECF No. 75-4 at 30, 54, 56. Plaintiff further admits he does 23 not remember if Dr. Santos “actually told [him] [he was] going to take [him] off 24 Gabapentin,” see ECF No. 75-4 at 45, but he surmises the “reason was because I was a 25 convict and [] can’t be trusted.” ECF No. 3 at 3. Plaintiff acknowledges that “if I keep 26 complaining about the pain … I’m also complaining that medication is not as effective.” 27 See ECF No. 75-4 at 56. 28 15 3:18-cv-02391-BTM-WVG 1 Between September 25, 2018 and October 8, 2018, Plaintiff alleges to have 2 suffered “approximately three seizures,” which he claims were “obvious[ly] due to his 3 being “taken off of Gabapentin.” ECF No. 3 at 4; ECF No. 75-4 at 52. On September 27, 4 2018, and again on October 1, 2018, Plaintiff filed two additional CDCR 602 Health Care 5 Grievances, Tracking # RJD HC 18002642 & # RJD HC 18002641, both requesting “to 6 be put on … 2400 mg Gabapentin + something else,” and reporting to have suffered a 7 seizure “last night” (September 30, 2018).11 See ECF No. 75-4 at 46 47 & Ex. 9 & 10 at 8 86 95.12 9 10 11 11 17 In both these grievances, Plaintiff complains of continued neuropathic pain at a level 10, and attributes the pain to Dr. Santos’s reduction of his 2400 mg Gabapentin, which “was effective for [his] seizures.” See ECF No. 75-4, Ex. 10 at 90 92; Ex. 9 at 86. CDCR 602 Tracking # RJD HC 18002642 does allege Santos had committed an “Eighth Amendment violation” because he “didn’t care” if Plaintiff’s “life [was] at risk with uncontrolled seizures,” see ECF No. 75-4 Ex. 9 at 88, but neither of these grievances contain any allegation that Santos either reduced or discontinued Plaintiff’s Gabapentin on September 28, 2018 because he “complain[ed] again” and/or continued to file medical grievances. Cf. ECF No. 3 at 3. 18 12 12 13 14 15 16 19 20 21 22 23 24 25 26 27 28 Dr. Santos describes Plaintiff’s claims of having suffered “three seizures and increased pain between September 25, 2018 and October 8, 2018, due to his levels of Gabapentin [as] not supported by his medical records.” ECF No. 8-1 at 4 ¶ 9. Santos attests that Plaintiff was prescribed Depakote at the time, “the seizures were never witnessed by medical staff,” and that prior EEGs, and an October 5, 2019 CT scan of Plaintiff’s brain were all “normal.” See ECF No. 36-2 at 3 ¶ 10. Santos further contends that even “if Plaintiff did have the alleged seizures, it was because he was non-compliant with his Depakote, and not because of [his] Gabapentin dosage.” ECF No. 8-1 at 4 ¶ 9. Specifically, Santos attests Plaintiff’s medication records for the month of September 2018 show “he took the full prescribed dose” of 500 mg of Depakote twice a day only on five days—September 1, 6, 7, 13, and 21. Id. Plaintiff’s records further show he took only “half the dose on [September] 2, 3, 9, 14, 20, 23, 28, 29, and 30,” and “did not take any Depakote for the remaining 16 days.” Id. Plaintiff acknowledges that Depakote is prescribed “for seizures,” and that he “do[esn’t] know if Depakote was the one doing the trick or was it Gabapentin by itself,” because “Gabapentin was also being addressed as part of the seizure medication.” ECF No. 75-4 at 52. When asked during his deposition if “any doctors diagnosed [him] with partial 16 3:18-cv-02391-BTM-WVG 1 Both these grievances appear to have been rejected at the Institutional Level of 2 Review on October 10, 2018, see ECF No. 75-4, Exs. 9 & 10 at 86, 90, but Plaintiff was 3 nevertheless interviewed by R. Zhang, MD, on October 10, 2018, who “provided a 4 secondary review of his medical records, along with an in person exam.” ECF No. 8-1 at 5 4 ¶ 10; ECF No. 36-2 at 2 ¶ 3. Dr. Santos describes this as “standard procedure,” but 6 Plaintiff’s exhibits suggest Dr. Zhang interviewed him on October 10, 2018 for purposes 7 of conducting the Institutional Level Review of CDCR 602 Tracking # RJD HC 8 18001741, which Plaintiff originally submitted on May 11, 2018.13 See ECF No. 88, Ex. 9 O at 152 155. Zhang “completed [an] assessment, evaluated [Plaintiff] for nerve pain, 10 noted review of [his] history, current symptoms, and laboratory/imaging results, and 11 developed a plan of care, including active medication orders for the medications 12 Gabapentin, Capaiscin cream, and Naproxen for pain management.” Id. at 155. 13 According to Dr. Santos, Dr. Zhang “prescribed a 900 mg daily dose of Gabapentin” for 14 Plaintiff’s neuropathy on October 9, 2018, and “incrementally increased it to 1800 mg” 15 where it remained until December 12, 2018, “under the supervision of the new C Yard 16 physician[,] Dr. Guldseth.” See ECF No. 8-1 at 4 5, ¶ 10; see also ECF No. 75-4 at 49; 17 ECF No. 3 at 4.14 18 19 20 seizures,” Plaintiff acknowledges an “MRI, CAT scan, [and] EEG [all] c[a]me up negative.” ECF No. 75-4 at 52 53. 21 “Health care staff who participated in the event or decision being grieved may not interview the grievant.” Cal. Code Regs. tit. 15, § 3999.228(h) (2019). 13 22 23 14 24 25 26 27 28 In the interim, on October 31, 2018, Plaintiff filed another CDCR Health Care Grievance, Tracking No. RJD HC 18002825, again complaining of Santos’s September 25, 2018 decision to taper his Gabapentin. See ECF No. 75-4, Ex. 11 at 94 96. In it, Plaintiff admits his Gabapentin dosage had been restored to 1800 mg, but reported it did “not help at all [his] pain.” Id. at 96. Plaintiff again claimed Dr. Santos “d[idn’t] care if [his] Gabas control [his] seizures,” requested 2700 mg of Gabapentin “or [to] add methadone,” and requested that his “Depakote … be reduced by ½.” Id. This grievance was rejected at the Institutional Level of Review on November 13, 2018. Id. at 94. However, Plaintiff was “seen by the 17 3:18-cv-02391-BTM-WVG 1 Dr. Santos attests that after he was transferred to E-Yard on October 25, 2018, see 2 ECF No. 8-1 at 2 ¶ 2, Plaintiff “continued to request increased doses of Gabapentin for 3 unwitnessed seizures and nerve pain” from Dr. Guldseth, who ultimately diagnosed him 4 with “drug seeking behavior for Gabapentin.” ECF No. 36-2 at 2 ¶ 3.15 Specifically, 5 Plaintiff was “noted to have inconsistent exams” and made “questionable complaints of 6 nerve pain/neuropathic pain on [his] right wrist.” Id. ¶ 4. Therefore, Dr. Guldseth ordered 7 a nerve conduction study of his upper right extremity to verify a diagnosis of neuropathy. 8 Id. The neurologist, Dr. Malhotra, conducted the study on April 23, 2019, but “the results 9 were normal.” Id. When additional nerve conduction studies were ordered to evaluate 10 Plaintiff’s lower extremities, Plaintiff refused. Id. On June 3, 2019, Guldseth “noted that [Plaintiff] had been refusing” to submit to 11 12 required blood draws. Id. ¶ 5. Plaintiff attests that at this point “every time [he] ask[ed] 13 for Gabapentin, they thought [he] was misusing it.” ECF No. 75-4 at 50. According to Dr. 14 Guldseth, “drug testing is important in prison to ensure inmate compliance to their 15 medications.” See ECF No. 36-2 at 2 ¶ 5. Plaintiff acknowledges that when prisoners are 16 suspected of misusing, hoarding, or selling their medications, “they do blood draws,” and 17 that he did “not recall” missing the three blood draws noted in his medical records. ECF 18 No. 75-4 at 50. Santos testifies that Dr. Guldseth’s treatment notes indicate that “he 19 began tapering [Plaintiff] from Gabapentin” as of June 3, 2019, “because of [his] drug 20 21 22 25 primary care provider” on November 8, 2018, “where it was documented [he] would remain on the current dosage of Gabapentin as it had recently been increased; methadone was not indicated.” See ECF No. 88, Ex. O at 145 146 (Headquarters’ Level Response, RJD HC 18001741, dated Jan. 16, 2019). 26 15 23 24 27 28 Plaintiff has since filed a new § 1983 action alleging Eighth Amendment violations against Dr. Guldseth with respect to his Gabapentin prescription during December 2018 through December 2019. See Arellano v. Guldseth, et al., S.D. Cal. Civil Case No. 3:20cv-01633-TWR-RBM, Compl, ECF No. 1 at 1 7. 18 3:18-cv-02391-BTM-WVG 1 abuse history,” and his “failure to take required drug tests,” which made the “risks of 2 continuing to prescribe Gabapentin outweigh the benefits.” ECF No. 36-2 at 2 3 ¶ 5. 3 On June 4, 2019, and again on June 5, 2019, Santos testifies Plaintiff’s medical 4 records show he went “man down” and was taken to the Triage and Treatment Area 5 (“TTA”) based on his complaints of head and chest pain. See ECF No. 36-2 at 3 ¶¶ 6 7. 6 Once in TTA, however, Plaintiff “requested an increase[d] dose of Gabapentin, which 7 was being tapered.” Id. ¶ 6. The TTA physician, Dr. Martin, “explained that Gabapentin 8 is not a good agent for neuropathic pain nor for seizures,” and prescribed Cymbalta 9 instead.16 Id. When Plaintiff repeated his complaints and requested more Gabapentin the 10 next day, Dr. Martin “described [Plaintiff’s] behavior as ‘manipulative’ to acquire more 11 Gabapentin.” Id. ¶ 7.17 12 After he was “fully tapered from the Gabapentin,” Plaintiff was again evaluated by 13 the neurologist, Dr. Malhotra, on June 24, 2019, “for his pain complaints.” Id. ¶ 8. When 14 he “again request[ed] high doses of Gabapentin,” Malhotra instead recommended 15 increased doses of Cymbalta. Id. Plaintiff continued on Cymbalta until August 22, 2019, 16 when Dr. Guldseth discontinued that prescription based on Plaintiff’s complaints of 17 stomach pain, occasional vomiting, and other GI symptoms. Id. ¶ 9. 18 On February 6, 2020, Plaintiff reported to his then-PCP, Dr. Luu, that his Depakote 19 was causing suicidal thoughts. Id. at 4 ¶ 11. Dr. Luu changed his seizure medication to 20 Dilantin. Id. On April 27, 2020, Plaintiff reported “lightheadedness and a loss of 21 consciousness,” again requested Gabapentin, and was re-evaluated by Dr. Malhotra 22 23 25 Cymbalta® is the brand name for Duloxetine, and included in the CCHCS’s non-opioid pain management therapy guidelines as an adjuvant formula medication for chronic pain. See ECF No. 75-4 at 111. 26 17 16 24 27 28 Plaintiff has also filed a subsequent § 1983 complaint alleging deliberate indifference on the part of Dr. Martin and other medical officials arising in June through August 2019. See Arellano v. Jones, et al., S.D. Cal. Civil Case No 3:20-cv-00228-TWR-RBM, “Amend. Compl.,” ECF No. 6 at 4 5. 19 3:18-cv-02391-BTM-WVG 1 regarding his “alleged” and “unwitnessed” seizures. Id. ¶ 12. Malhotra noted Plaintiff’s 2 prior EEGs were normal, his prior record of substance abuse, and “the fact that most anti- 3 seizure medications” did not control his reported seizures. Id. Malhotra “decided to keep 4 [Plaintiff’s] medication the same until a 1-hour EEG was performed.” Id. 5 On May 14, 2020, Plaintiff again reported to the TTA, and this time claimed the 6 Dilantin previously prescribed by Dr. Luu was causing suicidal thoughts. Id. ¶ 13. Dr. 7 Santos was on duty, examined him, and “asked [Plaintiff] which medication he felt 8 worked best.” Id. Santos claims Plaintiff reported Depakote “worked well and did not 9 make him suicidal,” which was “contrary” to what he told Dr. Luu on February 6, 2020. 10 Id. Santos re-prescribed 1000 mg of Depakote, which, in conjunction with Tylenol and 11 Capsaicin cream for pain, is where Plaintiff’s anti-seizure and pain medication remained 12 as of June 8, 2020. Id. ¶¶ 9, 13. At the time he was deposed on January 22, 2021, Plaintiff 13 testifies he had not been prescribed Gabapentin since June 2019. See ECF No. 75-4 at 51. 14 C. 15 Dr. Santos first seeks summary judgment with respect to Plaintiff’s Eighth Arguments 16 Amendment inadequate medical care claims because evidence in the record demonstrates 17 his decisions with respect to Plaintiff’s Gabapentin prescription during the months of 18 June through September 2018 were medically appropriate under the circumstances. See 19 Def.’s Mem. of P&A’s in Supp. of Mot. for Summ. J., ECF No. 75 at 17 18. Specifically, 20 Santos argues there is no genuine dispute with respect to any deliberate indifference on 21 his part because the risks of continuing or increasing Plaintiff’s Gabapentin prescription 22 outweighed the benefits, the decision to taper and then discontinue Plaintiff’s Gabapentin 23 prescription complied with California Correctional Health Care Services (“CCHCS”) 24 policy, and he offered Plaintiff reasonable alternatives. Id. at 13 14. 25 Defendant Santos also seeks summary judgment with respect to Plaintiff’s First 26 Amendment retaliation claims on grounds that he failed to exhaust available 27 administrative remedies before filing suit, id. at 20 22, and because the evidence in the 28 record is insufficient to show his treatment decisions were adverse to Plaintiff’s health, 20 3:18-cv-02391-BTM-WVG 1 motivated by his protected conduct, or did not reasonably advance a legitimate 2 correctional goal. Id. at 22 26. 3 Finally, Santos claims that because Plaintiff does not have a clearly established 4 right to dictate any specific course of treatment, he is entitled to qualified immunity with 5 respect to Plaintiff’s Eighth Amendment claims for damages. Id. at 27 28. 6 Plaintiff opposes on all grounds—arguing primarily that while he “might not have 7 a right to preferred treatment,” Gabapentin was “effective and adequate” to treat both his 8 nerve damage pain and seizures. See ECF No. 88 at 26. Plaintiff claims his medical 9 records show “Gabapentin is the only medication that works,” and therefore, Santos’s 10 decision to taper and then “take[] [it] away … without substituting it with anything, while 11 knowing [he would] be having seizures” because he complained about his dosage and/or 12 his continued pain demonstrates both Santos’s deliberate indifference and his retaliatory 13 intent. Id. at 26 27. 14 15 16 D. Discussion 1. Eighth Amendment Inadequate Medical Care Claims a. Standard of Review 17 The government has an “obligation to provide medical care for those whom it is 18 punishing by incarceration,” and a failure to meet that obligation can violate the Eighth 19 Amendment. Estelle v. Gamble, 429 U.S. 97, 103–05 (1976). In order to prevail on an 20 Eighth Amendment claim for inadequate medical care, however, a prisoner must show 21 “deliberate indifference” to his “serious medical needs.” Id. at 104. This includes “both 22 an objective standard—that the deprivation was serious enough to constitute cruel and 23 unusual punishment—and a subjective standard—deliberate indifference.” Snow v. 24 McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled in part on other grounds by 25 Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc). 26 To meet the Eighth Amendment’s objective requirements, the prisoner must 27 demonstrate the existence of a serious medical need. Estelle, 429 U.S. at 104. A 28 sufficiently serious need exists if failure to treat his injury or condition “could result in 21 3:18-cv-02391-BTM-WVG 1 further significant injury” or cause “the unnecessary and wanton infliction of pain.” Jett 2 v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotation marks omitted) (citing 3 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled in part on other 4 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). 5 To meet the Eighth Amendment’s subjective requirement of deliberate 6 indifference, a “high legal standard,” a prisoner must demonstrate the defendant 7 “kn[e]w[] of and disregard[ed] an excessive risk to [his] health and safety.” Toguchi v. 8 Chung, 391 F.3d 1051, 1057, 1060 (9th Cir. 2004) (internal quotation marks and citation 9 omitted). This “requires more than ordinary lack of due care.” Farmer v. Brennan, 511 10 U.S. 825, 835, (1994) (internal quotation marks omitted) (citing Whitley v. Albers, 475 11 U.S. 312, 319 (1986)). “[T]he official must both be aware of facts from which the 12 inference could be drawn that a substantial risk of serious harm exists, and he must also 13 draw the inference.” Id. at 837. Deliberate indifference “may appear when prison officials 14 deny, delay or intentionally interfere with medical treatment, or it may be shown by the 15 way in which prison physicians provide medical care.” Hutchinson v. United States, 838 16 F.2d 390, 394 (9th Cir. 1988). 17 “In deciding whether there has been deliberate indifference to a prisoner’s serious 18 medical needs, [courts] need not defer to the judgment of prison doctors or 19 administrators.” Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989). However, “[a] 20 difference of opinion between a physician and the prisoner—or between medical 21 professionals—concerning what medical care is appropriate does not amount to 22 deliberate indifference.” Snow, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 23 (9th Cir. 1989)). Rather, “to prevail on a claim involving choices between alternative 24 courses of treatment, a prisoner must show that the chosen course of treatment ‘was 25 medically unacceptable under the circumstances,’ and was chosen ‘in conscious disregard 26 of an excessive risk to [the prisoner’s] health.’” Toguchi, 391 F.3d at 1058 (quoting 27 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996), overruled in part on other 28 22 3:18-cv-02391-BTM-WVG 1 grounds by Peralta, 744 F.3d at 1076)); accord Gordon v. Cty. of Orange, 6 F.4th 961, 2 970 (9th Cir. 2021). 3 4 b. Analysis No party disputes Plaintiff’s medical needs are objectively serious. See Estelle, 429 5 U.S. at 104; Jett, 439 F.3d at 1096; McGuckin, 974 F.2d at 1059. Nevertheless, based on 6 the record before it, this Court finds no jury could reasonably conclude that Dr. Santos 7 acted with deliberate indifference to Plaintiff’s pain or his reported seizures. 8 Plaintiff claims his medical records show “Gabapentin is the only medication that 9 works,” and that Dr. Santos decided to taper and then “take[] [it] away … without 10 substituting it with anything.” See ECF No. 88 at 26 27. However, the undisputed 11 evidence in the record instead shows Plaintiff: (1) had a medical history dating back to 12 2011 of chronic neuropathic pain for which he was continually treated by prison doctors, 13 nurses, psychologists, and a neurologist before Santos was assigned as his PCP from 14 March 22, 2018 through October 25, 2018; (2) was prescribed a series of analgesics 15 including NSAIDS (Tylenol, Ibuprofen, Naproxyn, Salsalate, Sulindac), tricyclic 16 antidepressants (Amitriptyline, Nortriptyline), SNRIs (Cymbalta), anti-epileptics 17 (Keppra, Dilantin, Depakote, Gabapentin, Lyrica, Tegretol), and a topical local anesthetic 18 (Capsaicin); (3) underwent various diagnostic tests such as X-rays, EEGs, MRIs, a CT 19 scan, and a nerve conduction study; (4) was enrolled in the Mental Health Services 20 Delivery System at the CCCMS level of care; and (5) was referred to a neurologist, a 21 neuro-opthalmologist, recommended for cognitive behavioral therapy, and offered other 22 non-pharmacological, and non-opioid chronic pain management therapies. 23 Indeed, Plaintiff’s own testimony and exhibits also reveal that from January 31, 24 2018—two months before Dr. Santos was assigned as his PCP—until October 25, 25 2018—the time Dr. Santos was transferred to E-Yard, he submitted at least seven 26 separate HC 7362 Health Care Services Request Forms, and seven CDCR 602 HC Health 27 Care Grievances. In response to each HC 7362, Plaintiff was evaluated by nurses within 28 24 to 48 hours. He was also personally examined by Dr. Santos on five occasions, either 23 3:18-cv-02391-BTM-WVG 1 as follow-up to his HC 7362s or in response to his CDCR 602 Health Care Grievances, 2 on May 7, 2018, June 13, 2018, July 11, 2018, September 13, 2018, and again on 3 September 25, 2018. Each time, Plaintiff complained of neuropathic pain, and each time 4 Dr. Santos prescribed, re-prescribed, tapered, or adjusted his medication and dosages, and 5 suggested alternative pain medications he determined were indicated based on Plaintiff’s 6 physical comorbidities, medical care record, mental health, and documented history of 7 noncompliance with both his Gabapentin and Depakote prescriptions. 8 And while the record also shows Plaintiff’s repeatedly insisted that only increased 9 levels of Gabapentin were appropriate to treat both his pain and his seizures, Plaintiff is 10 not a medical expert, and his unsupported lay opinion as to the efficacy or superiority of 11 Gabapentin over any alternate medication is insufficient as a matter of law to establish a 12 genuine factual dispute. See Estelle, 429 U.S. at 93 (stating that the question whether 13 “additional diagnostic techniques or forms of treatment is indicated is a classic example 14 of a matter for medical judgment”); Toguchi, 391 F.3d at 1058 (finding arguments that 15 “Seroquel is superior to Triafon and therefore should not have been discontinued” 16 insufficient to establish deliberate indifference); see also Randall v. Wyrick, 642 F.2d 17 304, 308 & n. 9 (8th Cir. 1981) (holding that the prisoner’s “difference of medical 18 opinion over matters of expert medical judgment or a prescribed course of treatment fails 19 to state a federal constitutional question,” and noting that while a prisoner’s “subjective 20 response to a course of treatment” is not “unimportant,” that “subjective response does 21 not furnish a sufficient factual basis” for questioning a “medical decision which is 22 otherwise supported by substantial evidence”) (cited with approval in Sanchez, 891 F.2d 23 at 242); O’Brien v. Saha, No. 19-CV-1957-JLS (JLB), 2021 WL 960693, at *6 (S.D. Cal. 24 Mar. 15, 2021) (concluding that “no reasonable juror could find that Defendants were 25 deliberately indifferent to Plaintiff’s pain in tapering him off morphine and gabapentin 26 and pursuing a variety of other pain treatment options over a period of many months.”); 27 DeGeorge v. Mindoro, 2019 WL 2123590, at *7 (N.D. Cal. May 15, 2019) (“Because 28 Defendants attempted to treat Plaintiff’s pain, they cannot be said to have been 24 3:18-cv-02391-BTM-WVG 1 ‘indifferent’ to it,” much less deliberately so, and “[a]lthough plaintiff disagreed with the 2 doctors’ treatment decisions, merely disagreeing does not show a triable issue in support 3 of plaintiff’s claim.”); Parlin v. Sodhi, 2012 WL 5411710 at *5 (C.D. Cal. Aug. 8, 2012) 4 (“At its core, Plaintiff’s claim is that he did not receive the type of treatment and pain 5 medication that he wanted when he wanted it. His preference for stronger medication— 6 Vicodin, Tramadol, etc.—represents precisely the type of difference in medical opinion 7 between a lay prisoner and medical personnel that is insufficient to establish a 8 constitutional violation.”). 9 In sum, the medical records before the Court, offered both by Dr. Santos in support 10 and by Plaintiff in opposition, establish that the medications and overall course of 11 treatment Dr. Santos provided to Plaintiff from March 2018 through October 2018 was 12 medically appropriate under the circumstances. See Toguchi, 391 F.3d at 1058; Jackson, 13 90 F.3d at 332. Plaintiff obviously disagrees, but his lay opinion alone, unsupported by 14 any “particular parts of materials in the record, including depositions, documents, … 15 affidavits or declarations, stipulations, … admissions, interrogatory answers,” or other 16 admissible evidence which corroborates his conclusion or reasonably tends to show Dr. 17 Santos chose any particular course of treatment with conscious disregard of his needs, is 18 insufficient to establish a genuine dispute. Fed. R. Civ. P. 56(c)(1)(A); Rivera v. Nat’l 19 R.R. Passenger Corp., 331 F.3d 1074, 1078 (9th Cir. 2003) (“Conclusory allegations 20 unsupported by factual data cannot defeat summary judgment.”); Schultz v. Leighton, 21 325 F. Supp. 3d 1069, 1077–78 (N.D. Cal. 2017) (finding prisoner failed to “show any 22 unmet medical need, much less deliberate indifference” and granting summary judgment 23 where prisoner’s “claim of a need for morphine, or any treatment other than the treatment 24 he received, [wa]s based entirely on self-diagnosis and [without] medical support.”). 25 26 For these reasons, the Court holds that Dr. Santos is entitled to summary judgment with respect to Plaintiff’s Eighth Amendment inadequate medical care claims. 27 28 25 3:18-cv-02391-BTM-WVG 1 2 2. First Amendment Retaliation Claims Defendant Santos next seeks summary judgment with respect to Plaintiff’s claims 3 that he reduced and then discontinued his Gabapentin prescription in retaliation for his 4 having “submitt[ed] more medical forms” and “complaint[s] about [his] inadequate 5 medical treatment.” See ECF No. 1 at 4; ECF No. 3 at 3; ECF No. 75 at 20 26. 6 a. Exhaustion 7 First, Santos contends “it is undisputed that Plaintiff failed to exhaust a grievance 8 alleging retaliation against [him].” See ECF No. 75 at 21 22. In support, Santos proffers 9 the Declaration of E. Frijas, RJD’s Appeals Coordinator, whose Office “receives all 10 inmate grievances (also known as appeals of CDCR Form 602s) submitted by inmates at 11 the institutional level (i.e. first and second levels of review),” including “staff complaints 12 made against medical staff.” ECF No. 75-5 at 1 2, ¶¶ 1, 3 (emphasis added). Frijas 13 attests that he performed a “search of the Inmate Appeals Office records for any staff 14 complaints filed by Plaintiff … against Dr. Santos,” and “none were located.” Id. ¶ 1. 15 The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be 16 brought with respect to prison conditions under section 1983 ..., or any other Federal law, 17 by a prisoner confined in any jail, prison, or other correctional facility until such 18 administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Pre-suit 19 exhaustion of available remedies is mandatory. Booth v. Churner, 532 U.S. 731, 741 20 (2001). 21 Failure to exhaust is “an affirmative defense the defendant must plead and prove.” 22 Jones v. Bock, 549 U.S. 199, 204, 216 (2007). On summary judgment, it is Defendant 23 Santos’s burden “to prove that there was an available administrative remedy, and that 24 [Plaintiff] did not exhaust that available remedy.” Albino v. Baca, 747 F.3d 1162, 1172 25 (9th Cir. 2014) (en banc) (citing Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.5 (9th 26 Cir. 1996)). The burden of production then shifts to Plaintiff “to come forward with 27 evidence” showing either that he did properly exhaust his claims before filing suit, or that 28 “there is something in his particular case that made the existing and generally available 26 3:18-cv-02391-BTM-WVG 1 remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. To avoid summary 2 judgment, Plaintiff must “provide evidentiary support to rebut defendant[’]s[] [evidence] 3 that he [did] not exhaust[]” his claim. Marella, 568 F.3d at 1028; see also Draper v. 4 Rosario, 836 F.3d 1072, 1079 (9th Cir. 2016) (noting that once the burden shifts to him 5 on summary judgment, a prisoner must “come forward with evidence showing that there 6 is something in his particular case that made the existing and generally available 7 administrative remedies effectively unavailable to him.” (citing Albino, 747 F.3d at 8 1172). 9 In 2018, the California Department of Corrections and Rehabilitation (“CDCR”) 10 provided inmates with the following administrative remedies, also referred to as the 11 administrative grievance process.18 The CDCR provided its inmates the right to appeal 12 administratively “any policy, decision, action, condition or omission by the department or 13 its staff that the inmate or parolee can demonstrate as having a material adverse effect 14 upon his or her health, safety or welfare.” Cal. Code Regs., tit. 15 § 3084.1(a) (2019). 15 “Grievance issues are separated into two categories: custody issues and healthcare 16 issues.” Calderon v. Koenig, No. 19-CV-07949-HSG, 2021 WL 3675210, at *2 (N.D. 17 Cal. Aug. 19, 2021). 18 To grieve a custody issue, a prisoner submitted a CDCR Form 602 which 19 described the specific issue being grieved and the relief requested. See Cal. Code Regs., 20 tit. 15 § 3084.2(a) (2019). The prisoner was required to state all facts known and 21 available to him regarding the issue being grieved at the time of submission; and list all 22 23 The Court notes that the CDCR’s administrative grievance procedures underwent a substantial restructuring in 2020. “On March 25, 2020, and effective June 1, 2020, California Code of Regulations, Title 15, sections 3084 through 3084.9 were repealed and replaced with renumbered and amended provisions at sections 3480 through 3487.” Calderon v. Koenig, No. 19-CV-07949-HSG, 2021 WL 3675210, at *1 (N.D. Cal. Aug. 19, 2021). However, because Plaintiff’s claims arose in 2018, the citations in this order refer to the California regulations in place in 2018, and not to the administrative grievance regulations currently in effect. 18 24 25 26 27 28 27 3:18-cv-02391-BTM-WVG 1 staff members involved and describe their involvement in the issue. See Cal. Code Regs., 2 tit. 15 § 3084.2(a)(1), (4) (2019). To exhaust available administrative remedies for 3 custody grievances, a prisoner was required to proceed through three levels of review: (1) 4 a first formal level filed with one of the institution’s appeal coordinators; (2) a second 5 formal level filed with the institution head or designee; and (3) a third formal level filed 6 with the CDCR director or designee. See Cal. Code Regs., tit. 15 § 3084.7 (2019). 7 Pursuing a custody grievance through the third and final level was deemed sufficient to 8 satisfy the exhaustion requirement set forth in 42 U.S.C. § 1997e(a). See Cal. Code Regs., 9 tit. 15 § 3084.1(b) (2019); Calderon, 2021 WL 3675210, at *2. 10 To grieve a healthcare issue, a prisoner is required to submit a CDCR Form 602 11 HC which “explain[s] the decision, action, condition, omission, policy, or regulation that 12 ha[s] had a material adverse effect upon [his] health and welfare for which [he] seek[s] 13 administrative remedy.” Cal. Code Regs., tit. 15 §§ 3999.226, 3999.277(a) (2019). The 14 prisoner is required to “document clearly and coherently all information known and 15 available to him … regarding the issue,” and identify the staff member involved. See Cal. 16 Code Regs., tit. 15 § 3999.226(g) (2019). Healthcare grievances are subject to two levels 17 of review: an institutional level of review and a headquarters level of review. See Cal. 18 Code Regs., tit. 15 § 3999.226(a)(1), (g) (2019). “Health care grievances are screened to 19 identify whether they should be rejected and to ascertain whether they should be 20 addressed as a health care staff complaint.” Madsen v. Toor, 2021 WL 1839612, at *4 21 (E.D. Cal. May 7, 2021) (citing Cal. Code Regs., tit. 15 §§ 39999.228, 3999.231(b)), 22 report and recommendation adopted, 2021 WL 2212247 (E.D. Cal. June 1, 2021). 23 Rejection or withdrawal of a healthcare grievance does not exhaust administrative 24 remedies. See Cal. Code Regs., tit. 15 § 3999.226(g). Instead, a headquarters’ level 25 review is required. See Cal. Code Regs., tit. 15 §§ 3087.5(h), 3999.230 (2019); Calderon, 26 2021 WL 3675210, at *2. 27 28 Here, the Court finds the Declaration of E. Frijas, who attests that he performed a search of the Inmate Appeals Office records for any “staff complaints made against 28 3:18-cv-02391-BTM-WVG 1 medical staff” filed by Plaintiff involving Dr. Santos and that “none were located,” is 2 sufficient to prove that while there was an administrative remedy available to Plaintiff, he 3 failed to properly exhaust that remedy with respect to his retaliation claims. See Albino, 4 747 F.3d at 1172; see also ECF No. 75-5 at 1 2 ¶¶ 1 3. 5 The burden on summary judgment thus shifts to Plaintiff to “come forward with 6 evidence” which rebuts Frijas’s testimony, and “puts material facts into dispute” with 7 respect to the proper exhaustion of his retaliation claim. See Albino, 747 F.3d at 1172; 8 Draper, 836 F.3d at 1079 80. Plaintiff does not directly address Frijas’s Declaration, 9 however, and does not point to any other evidence in the record to “identify any actions 10 that prison staff took [to] impede[] his ability to exhaust … or otherwise explain why he 11 failed to comply with the administrative process.” Draper, 836 F.3d at 1080. Plaintiff 12 attests only that he filed approximately 40 grievances between 2018 and the time of his 13 deposition, admits he cannot remember precisely when or which of his grievances 14 included his retaliation claims against Dr. Santos, and that he cannot recall whether any 15 grievance that included his retaliation claims against Dr. Santos “got to the third level,” 16 or was “thwarted or prevented from being processed by any CDCR staff.” See ECF No. 17 75-4 at 58 60. 18 Instead, in his Opposition, Plaintiff argues that two of his CDC 602 Health Care 19 Grievances, specifically RJD HC 18001741 and RJD HC 18002825, “state the facts 20 necessary to state a retaliation claim” against Dr. Santos and that they “should be 21 sufficient” to satisfy 42 U.S.C. § 1997e(a)’s exhaustion requirement. See ECF No. 88 at 8 22 & Ex. O at 144 159; ECF No. 75-4, Ex. 11 at 94 97. 23 “[T]o properly exhaust administrative remedies prisoners ‘must complete the 24 administrative review process in accordance with the applicable procedural rules,’ [ ] - 25 rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones, 26 549 U.S. at 218 (quoting Woodford v. Ngo, 548 U.S. 81, 88, 90 (2006)); see also Marella, 27 568 F.3d at 1027 (“The California prison system’s requirements ‘define the boundaries of 28 proper exhaustion.’”) (quoting Jones, 549 U.S. at 218). 29 3:18-cv-02391-BTM-WVG 1 As noted above, and even assuming a HC 602 Health Care Grievance was the 2 appropriate procedural means by which to exhaust his medical retaliation claims against 3 Dr. Santos, see e.g., Cal. Code Regs. tit. 15, § 3999.226(a) (“The health care grievance 4 process provides an administrative remedy to patients under health care’s jurisdiction for 5 review of complaints of applied health care policies, decisions, actions, conditions, or 6 omissions that have a material adverse effect on their health or welfare.”), California’s 7 regulations require that he “document clearly and coherently all information known and 8 available to him … regarding the issue,” and “include any involved staff member’s last 9 name, first initial, title or position, and the date(s) and description of their involvement.” 10 11 Cal. Code Regs. tit. 15, § 3999.227(g), (1) (2019). The amount of detail in an administrative grievance necessary to properly exhaust 12 a claim is determined by the prison’s applicable grievance procedures. Jones, 549 U.S. at 13 218. But where the procedures “do not specify the requisite level of detail,” see Griffin v. 14 Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009), or are “incomplete as to [its] factual 15 specificity,” the grievance will suffice if it “‘alerts the prison to the nature of the wrong 16 for which redress is sought.’” Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) 17 (quoting Griffin, 557 F.3d at 1120). “The ‘primary purpose of a grievance is to alert the 18 prison to a problem and facilitate its resolution.’” Reyes v. Smith, 810 F.3d 654, 659 (9th 19 Cir. 2016) (quoting Griffin, 557 F.3d at 1120). 20 Both RJD HC 18001741, which Plaintiff submitted on May 11, 2018, four days 21 after Plaintiff was first evaluated by Dr. Santos, and RJD HC 18002825, submitted on 22 October 31, 2018, more than a month after Dr. Santos last evaluated him on September 23 25, 2018, identify Santos as Plaintiff’s PCP. See ECF No. 88, Ex. O at 152 153; ECF No. 24 75-4, Ex. 11 at 96; Cal. Code Regs. tit. 15, § 3999.227(g), (1) (2019). But neither of these 25 grievances contain any facts, allegations, detail, or “enough information” to “provide 26 notice of the harm”-- specifically that Dr. Santos was not only denying Plaintiff 27 adequate medical care with respect to his pain and seizure medications, but also that he 28 30 3:18-cv-02391-BTM-WVG 1 was doing so in retaliation for Plaintiff’s repeated complaints. See Griffin, 557 F.3d at 2 1120-1121; Sapp, 623 F.3d at 824. Specifically, in RJD HC 18001741, Plaintiff admits he “saw PCP Santos” on May 3 4 7, 2018 “regarding 3 issues (1) urine (2) vision impairment (3) pain.” See ECF No. 88, 5 Ex. O at 152, 153. Plaintiff then describes his “nerve damage,” mentions two other civil 6 rights cases he filed against Officer Hodge, Dr. Sedighi, and Nurses Melton and Pasha, 7 specifies that “my issue here is regarding pain,” requests that his grievance be classified 8 as an “emergency or urgent 602,” and asks that Santos “prescribe[] stronger pain meds,” 9 because his “Gabapentins are not strong enough to control all nerve damage symptoms.” 10 Id. at 153. However, nothing in the CDCR HC Form he completed on May 11, 2018, 11 even when considered in the light most favorable to Plaintiff is sufficient to put RJD 12 officials on notice of Dr. Santos’s alleged retaliatory intent or action in response to 13 Plaintiff’s medical complaints. See Wright v. Beck, 981 F.3d 719, 726 (9th Cir. 2020). Nor does RJD HC 18001741 provide “enough information … to allow prison 14 15 officials to take appropriate responsive measures” in response to the nature of any 16 problem other than the alleged inadequacy of his pain medication. See Griffin, 557 F.3d 17 at 1121; Sapp, 623 F.3d at 824 (concluding that while prisoner’s grievance was sufficient 18 to exhaust his claim against a doctor alleged to have denied him needed medical 19 treatment for an eye condition, it was insufficient to exhaust other claims involving 20 access to his medical file or the improper screening of his grievances); see also Shaw v. 21 Thomas, 2019 WL 162729 at *18 19 (N.D. Cal. Jan. 10, 2019) (granting summary 22 judgment where record “[did] not show that there were any retaliation claims or 23 allegations of retaliation” against a Physician’s Assistant alleged to have discontinued a 24 follow-up appointment in prisoner’s health care appeal claiming inadequate medical care 25 related to bone reconstruction surgery).19 26 27 Defendant Santos claims RJD HC 18001741, “was rejected for being duplicative” and that he “did not dispute that rejection.” See Def.’s P&As in Supp. of Mot. for Summ. J., 19 28 31 3:18-cv-02391-BTM-WVG 1 In his Opposition, Plaintiff claims, and the Court agrees, that he included 2 allegations that Santos “told [him] if [he] ke[pt] insisting[,] he w[ould] take ‘m all off,” in 3 HC178001741. See ECF No. 88 at 21, 149. But even if this statement was sufficient to 4 alert appeals officials that he was raising a retaliation claim against Dr. Santos separate 5 and apart from his claims of medical indifference under Griffin and Sapp, it was not 6 included in the original CDCR 602 HC grievance he submitted on May 11, 2018. See 7 ECF No. 88 at 152 53. Instead, Plaintiff included this language for the first time on 8 October 26, 2018, when he appealed the October 24, 2018 Institutional Level Response 9 to the Headquarters’ Level of Review. See ECF No. 88 at 145 47, 150, 154 55. 10 Title 15 of the California Code of Regulations provides that if an inmate is 11 dissatisfied with the Institutional Level Health Care grievance disposition, he may appeal 12 to the Headquarters’ Level, but “[t]he grievant shall not include new issues that were not 13 included in the original health care grievance.” Cal Code Regs., tit. 15 § 3999.229(a)(3) 14 (2019). Title 15 further provides that “[a]t its sole discretion, HCCAB20 may address new 15 issues not previously submitted or included in the original health care grievance[,]” but 16 only a “headquarters’ level disposition addressing new issues exhausts administrative 17 remedies.” Cal. Code Regs., tit. 15 § 3999.230(i), (j) (2019). 18 19 20 21 22 23 24 25 26 27 28 ECF No. 75 at 11 (citing ECF No. 75-4, Ex. 5 at 72 73). The Court finds, however, that while this grievance was initially rejected on May 30, 2018, Plaintiff did object, and in fact, ultimately RJD HC 18001741was accepted for review and considered at both the Institutional and Headquarters Levels of Review. See ECF No. 88 at 2 & Ex. O at 145 47, 154 55, 156 59. “The Health Care Correspondence and Appeals Branch (‘HCCAB’) is part of the California Correctional Health Care Services (‘CCHCS’), and ‘receives, reviews, and maintains all health care appeals/grievances accepted for the final (headquarters) level of review in the inmate health care appeals/grievance process, and renders decisions on such appeals/grievances.’” Martinez v. Davey, 2021 WL 3772004, at *3 (E.D. Cal. Aug. 25, 2021), report and recommendation adopted, 2021 WL 4480498 (E.D. Cal. Sept. 30, 2021). 20 32 3:18-cv-02391-BTM-WVG 1 This Court’s review of the Headquarters’ Level Response for RJD HC 18001741 2 shows that it addresses only those issues Plaintiff identified in his original May 11, 2018 3 CDCR 602 HC grievance. See ECF No. 88 at 152 53. The January 16, 2019 4 Headquarters’ Level Response summarizes Plaintiff’s grievance issues as: 1) stronger 5 pain medication other than gabapentin; 2) a re-evaluation of his complaints of nerve pain; 6 and 3) a request that the grievance be processed as an emergency. See ECF No. 88 at 7 145 147. Therefore, even if Plaintiff’s inclusion of the “if I keep insisting he will take ‘m 8 all off” language in his October 26, 2018 appeal was sufficient to provide officials with 9 “enough information … to take appropriate responsive measures” with respect to his 10 retaliation claim against Dr. Santos, see Griffin, 557 F.3d at 1121; Sapp, 623 F.3d at 824, 11 that claim was not properly exhausted. The PLRA requires “proper exhaustion” of 12 available administrative remedies, which means inmates must comply “with an agency’s 13 . . . critical procedural rules because no adjudicative system can function effectively 14 without imposing some orderly structure on the course of its proceedings.” Woodford, 15 548 U.S. at 90–91; Jones, 549 U.S. at 218 (“[T]o properly exhaust … prisoners ‘must 16 complete the administrative review process in accordance with the applicable procedural 17 rules,’ [] –rules that are not defined by the PLRA, but by the prison grievance process 18 itself.”) (citing Woodford, 548 U.S. at 88, 90). 19 Plaintiff fares no better with respect to RJD HC 18002825, in which he again 20 reported Dr. Santos’s May 2018 decision to reduce his Gabapentin by 300 mg and 21 “mention[ed]” his “recommend[ation]” that Plaintiff “not . . . ask for pain med[s].” See 22 ECF No. 88 at 8; ECF No. 74-5 at 96. But further review of this grievance, like RJD HC 23 18001741, reveals that its nature was solely aimed at Plaintiff’s efforts to address his 24 pain, and specifically to increase his Gabapentin dosage, which by October 31, 2018, had 25 been reduced to 1800 mg. Id. Thus, the “wrong for which redress was sought” in RJD HC 26 18002825 was Santos’s decisions with respect to Plaintiff’s medication and course of 27 medical care, and not any purported act of retaliation on Santos’s part. Griffin, 557 F.3d 28 at 1121. 33 3:18-cv-02391-BTM-WVG 1 Finally, even if RJD HC 18002825 was sufficient to put prison officials on notice 2 of Plaintiff’s retaliation claims, it nevertheless would not satisfy 42 U.S.C. § 1997e(a)’s 3 exhaustion requirement because it was rejected at the Institutional Level of Review on 4 November 13, 2018 and he didn’t pursue it further.21 See ECF No. 75-4, Ex. 11 at 94; 5 see also Cal. Code Regs., tit. 15 § 3999.226(g) (2019) (“Health care grievances are 6 subject to a headquarters’ level disposition before administrative remedies are deemed 7 exhausted pursuant to section 3999.230. A health care grievance or health care grievance 8 appeal rejection or withdrawal does not exhaust administrative remedies.”). 9 Based on this record, the Court finds that no genuine factual dispute exists to show 10 that Plaintiff properly exhausted his retaliation claims against Dr. Santos before filing suit 11 pursuant to 42 U.S.C. § 1997e(a). Therefore, Santos is entitled to summary judgment 12 with respect to these claims. 13 b. Merits Next, Santos contends that even if Plaintiff’s did properly exhaust his retaliation 14 15 claims, no genuine dispute exists to show that Santos’s treatment decisions were adverse, 16 motivated by any retaliatory intent, or failed to advance a legitimate penological goal. See 17 ECF No. 75 at 22 26. Santos acknowledges Plaintiff alleges Santos told him he would 18 19 In his Motion, Santos notes that Plaintiff claims to have “never received a response to [HC 18002825] and failed to pursue the matter further.” See ECF No. 75 at 21. Plaintiff does not make this argument in his Opposition; but during his Deposition claimed he did file a retaliation grievance sometime in October, after Santos was no longer his PCP, but did not “recall if it got to the third level.” See ECF No. 75-4 at 59 60. Plaintiff surmised that “it could have been that even though [he] sent it out, it never came back.” Id. at 60. Santos’s Exhibit 11, however, shows that HC 18002825 was rejected at the Institutional Level on November 13, 2018, see ECF No. 75-4 at 94, and Plaintiff does not claim, or more importantly point to any further evidence in the record to show, that he appealed this rejection, otherwise pursued HC 18002825 to the Headquarters Level of review, or that there was “something in his particular case that made the existing and generally available [Headquarters Level Review] effectively unavailable to him.” Albino, 747 F.3d at 1172; Marella, 568 F.3d at 1028 (noting that to avoid summary judgment, Plaintiff must “provide evidentiary support to rebut defendant[’]s[] [evidence] that he [did] not exhaust[.]”). 21 20 21 22 23 24 25 26 27 28 34 3:18-cv-02391-BTM-WVG 1 discontinue his Gabapentin prescription altogether “if [he] complained again” after his 2 daily dosage was reduced to 2400 mgs, see ECF No. 3 at 3; ECF No. 75-4 at 55 56, but 3 argues “there is no evidence” that Santos did so “because [he filed] grievances.” ECF No. 4 75 at 25. The Court agrees. 5 A prisoner “retains those First Amendment rights that are not inconsistent with his 6 status as a prisoner or with the legitimate penological objectives to the corrections 7 system.” Silva v. Di Vittorio, 658 F.3d 1090, 1104 (9th Cir. 2010), overruled on other 8 grounds, Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 2015). Included among 9 those rights is the right to file prison grievances without retaliation. Id. To prevail on a 10 retaliation claim, however, a prisoner must show: (1) a state actor took some adverse 11 action against the prisoner (2) because of (3) that prisoner’s protected conduct, and that 12 such action (4) chilled the prisoner’s exercise of his First Amendment rights, and (5) the 13 action did not reasonably advance a legitimate correctional goal. Brodheim v. Cry, 584 14 F.3d 1262, 1269 (9th Cir. 2009) (citation omitted). 15 16 c. Analysis A careful review of the record before the Court shows that while Plaintiff claims 17 Santos’s decisions with respect to his medication were motivated by a desire to retaliate 18 against him for “complaining,” see ECF No. 75-4 at 56, and/or “submitting complaint[s] 19 about inadequate medical treatment,” ECF No. 1 at 4, he nevertheless fails to corroborate 20 these conclusory allegations by pointing to any evidence in the record that might 21 reasonably support them. See Villiarimo v. Aloha Island Air., Inc., 281 F.3d 1054, 1061 22 (9th Cir. 2002) (noting that no “genuine issue [as to a material fact] [exists] where the 23 only evidence presented in ‘uncorroborated and self-serving’ testimony.”) (citation 24 omitted). 25 As discussed with respect to Plaintiff’s Eighth Amendment claims, the record 26 before the Court, including Plaintiff’s own deposition testimony, medical records, CDC 27 7362’s and CDC 602 Health Care Grievances, as well as Dr. Santos’s responses 28 throughout the months of March through October 2018, is replete with evidence which 35 3:18-cv-02391-BTM-WVG 1 shows Santos, as well as a host of other RJD medical officials from nurses to a 2 neurologist, timely and repeatedly responded to Plaintiff’s multiple co-morbidities, 3 continual reports of chronic pain, reported but medically unsubstantiated seizures, 4 suicidal history and ideation, the side-effects of every formulary and non-formulary 5 medication prescribed (including Gabapentin), as well as the potential for its abuse given 6 his prior history, non-compliance, and repeated demands for a specific drug and at 7 increasingly high dosage levels. No evidence of retaliatory intent can be reasonably 8 inferred from this factual and undisputed record. See Brodheim, 584 F.3d at 1269 9 (holding a plaintiff must set forth evidence showing that his treating physician’s chosen 10 course of treatment decisions were medically unacceptable, or that his filing prisoner 11 appeals “was the ‘substantial’ or ‘motivating’ factor behind the Defendant’s conduct.”). 12 Plaintiff alleges Dr. Santos just “didn’t care,” see ECF No. 1 at 4, ECF No. 3, but 13 he also admitted during his deposition that he was “not sure,” could “not recall the 14 specifics,” and did not remember exactly why Santos made the decisions he did with 15 respect to his dosage and or need for Gabapentin in particular. See ECF No. 75-4 at 52 16 56. Plaintiff further acknowledged under oath that “if [he] ke[pt] complaining about the 17 pain,” while taking Gabapentin, he was simultaneously reporting it was “ineffective.” Id. 18 at 56. 19 Based on this record, the Court finds Plaintiff’s First Amendment retaliation claim 20 rests on mere speculation that Dr. Santos reduced and then decided to terminate his 21 Gabapentin prescription either because he filed medical grievances or “because [he] was 22 a convict and [] c[ould not] be trusted.” See ECF No. 3 at 3. Without some evidentiary 23 support, however, Plaintiff’s conclusory allegations are simply insufficient to defeat 24 summary judgment. See e.g., Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014). Thus, 25 because Plaintiff must “put forth evidence of retaliatory motive, that, taken in the light 26 most favorable to him, presents a genuine issue of material fact as to [Santos’s] intent,’” 27 but has not, Dr. Santos is entitled to judgment as a matter of law with respect to 28 36 3:18-cv-02391-BTM-WVG 1 Plaintiff’s First Amendment claim. Brodheim, 584, F.3d at 1271 (quoting Bruce v. Ylst, 2 351 F.3d 1283, 1289 (9th Cir. 2003)). 3 Plaintiff also fails to address or rebut evidence proffered by Dr. Santos which 4 demonstrates his decision to taper and then discontinue Plaintiff’s Gabapentin dosage 5 “reasonably advanced [the] legitimate correctional goal” of curbing prescription 6 medication abuse, dependency, and potential diversion within the prison. See Brodheim, 7 584 F.3d at 1269; ECF No. 8-1 at 3 ¶ 7; ECF No. 36-2 at 2 3 ¶¶ 3 7; ECF No. 75-4, Exs. 8 2 4 at 98 133. See also Hicks v. Dotson, 73 F. Supp. 3d 1296, 1305 (E.D. Wash. 2014) 9 (“The DOC has a legitimate penological goal in regulating prescription pain medication 10 to avoid drug abuse.”); O’Brien, 2021 WL 960693, at *9–10 (rejecting prisoner’s claims 11 that doctor’s failure to immediately cite safety and security as a justification to taper his 12 Gabapentin in response to CCHCS’s non-opioid pain management policy meant that the 13 discontinuation of the Gabapentin had “no penological interest.”); Joseph v. Clayton, No. 14 3:19-CV-2139-GPC-RBM, 2020 WL 804863, at *7 (S.D. Cal. Feb. 18, 2020) (noting that 15 “reducing prescription drug abuse and drug addiction among the prison population” is a 16 legitimate penological interest) (internal quotation marks and citations omitted); Miller v. 17 California Dep’t of Corr. & Rehab., 2018 WL 534306, at *18 (N.D. Cal. Jan. 24, 2018) 18 (taking inmate off medication “not appropriate for his medical condition also advances 19 the legitimate penological goal of reducing prescription drug abuse and drug addiction 20 among the prison population”); Juarez v. Butts, 2020 WL 2306850, at *11 (E.D. Cal. 21 May 8, 2020) (concluding that “even if staff was incorrect to conclude that [plaintiff] 22 intended to abuse his medication,” the prison doctor’s “assessment reflect[ed] a 23 legitimate penological interest in preventing drug abuse”) (internal quotation marks and 24 citation omitted); Townsen v. Hebert, 2015 WL 5782036, at *4 (D. Nev. Oct. 2, 2015) 25 (“Courts have repeatedly recognized inmates’ health and safety as legitimate penological 26 interests.”) (citations omitted). 27 28 In fact, while Plaintiff denies ever “using drugs in prison,” see ECF No. 88 at 5, he admitted under oath that “other prisoners” have been known to hoard or sell narcotics, 37 3:18-cv-02391-BTM-WVG 1 and that while Gabapentin is not classified as a narcotic, it “does give you a mood 2 change,” and “kind of get[s] you high.” See ECF No. 75-4 at 50; see also Schultz, 325 F. 3 Supp. 3d at 1076 (noting that while prisoner “contend[ed] that he never tested positive for 4 illegal substances during his twenty years in prison,” he failed to dispute the existence of 5 illegal drug use history in his medical files). 6 Based on this record, and even drawing all facts and inferences in Plaintiff’s favor, 7 the Court finds no jury could find Dr. Santos’s course of care and treatment decisions did 8 not reasonably advance a legitimate correctional goal. See Brodheim, 584 F.3d at 1269; 9 Miller, 2018 WL 53406, at *17 18 (granting summary judgment with respect to medical 10 retaliation claim because, even if pain medication was tapered after allegedly protected 11 conduct, the prisoner nevertheless failed to “provide any competent evidence to dispute 12 Defendants’ evidence that the reduction and eventual elimination of the morphine 13 reasonably advanced legitimate medical goals.”). 14 15 16 For these reasons, the Court also finds Defendant Santos is entitled to summary judgment with respect to Plaintiff’s First Amendment retaliation claim\. 3. Qualified Immunity 17 Finally, Dr. Santos claims that because Plaintiff “does not have a clearly 18 established right to a specific course of treatment,” he is entitled to qualified immunity 19 with respect to Plaintiff’s Eighth Amendment claims. See ECF No. 75 at 26 28. 20 On summary judgment, courts generally resolve questions of qualified immunity 21 through a two-pronged inquiry. Tolan v. Cotton, 572 U.S. 650, 655 (2014). The first 22 prong “asks whether the facts, ‘[t]aken in light most favorable to the party asserting the 23 injury, ... show the officer’s conduct violated a [federal] right[.]’” Id. (quoting Saucier v. 24 Katz, 533 U.S. 194, 201 (2001)). The second prong “asks whether the right in question 25 was ‘clearly established’ at the time of the violation.” Tolan, 572 U.S. at 656 (quoting 26 Hope v. Pelzer, 536 U.S. 730, 739 (2002)); see also Sharp v. Cnty. of Orange, 871 F.3d 27 901, 909 (9th Cir. 2016). The court is not required to address the prongs in any particular 28 order. See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (“[T]he judges of the district 38 3:18-cv-02391-BTM-WVG 1 courts and the courts of appeals should be permitted to exercise their sound discretion in 2 deciding which of the two prongs of the qualified immunity analysis should be addressed 3 first in light of the circumstances in the particular case at hand.”). However, where, as is the case here with respect to Plaintiff’s Eighth Amendment 4 5 claims, “no constitutional right would have been violated were the allegations 6 established, there is no necessity for further inquiries concerning qualified immunity.” 7 Saucier, 533 U.S. at 201; County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998) 8 (“[The better approach to resolving cases in which the defense of qualified immunity is 9 raised is to determine first whether the plaintiff has alleged the deprivation of a 10 constitutional right at all.”). Because the Court has found no genuine dispute with regard 11 to Plaintiff’s Eighth Amendment inadequate medical treatment claims against Dr. Santos, 12 it need not also decide whether Santos would be entitled to qualified immunity. 13 III. Conclusion and Order22 For all the reasons discussed, the Court GRANTS Defendant Santos’s Motion for 14 15 Summary Judgment pursuant to Fed. R. Civ. P. 56 (ECF No. 75) and DIRECTS the 16 Clerk of the Court to enter a final judgment in favor of Dr. Santos on all claims and to 17 close the file. 18 19 IT IS SO ORDERED. Dated: November 4, 2021 20 ______________________________________ Honorable Barry Ted Moskowitz United States District Judge 21 22 23 22 24 25 26 27 28 In support of his Motion for Summary Judgment, Defendant Santos requests that the Court take judicial notice of Exhibits 2-4 attached to the Declaration of Lyndsay R. Crenshaw: (a) CCHCS Pain Management Guide Part 2; (b) CCHCS’s April 18, 2019 Memorandum regarding Gabapentin; and (c) CCHCS’s Health Care Department of Operations Manual § 3.5.4(c)(1)(B). See ECF No. 75-1. The Court GRANTS Defendant’s Request for Judicial Notice. See City of Sausalito v. O’Neill, 386 F.3d 1186, 1223 (9th Cir. 2004) (“We may take judicial notice of a record of a state agency not subject to reasonable dispute.”). 39 3:18-cv-02391-BTM-WVG

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