-GSA (PC)Silvis v. California Department of Corrections et al, No. 1:2007cv00332 - Document 104 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS recommending that Defendants' Motion for Summary adjudication of the claims against them be GRANTED re 78 MOTION for SUMMARY JUDGMENT filed by Pappenfus, Dennis Smith, Weed, R. Davis. referred to Judge O'Neill, signed by Magistrate Judge Gary S. Austin on 02/24/2011. Objections to F&R due by 3/21/2011(Martin, S)

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-GSA (PC)Silvis v. California Department of Corrections et al Doc. 104 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN ROBERT SILVIS, 12 1:07-cv-00332-LJO-GSA-PC Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS DAVIS, PAPPENFUS, WEED, AND SMITH’S MOTION FOR SUMMARY JUDGMENT BE GRANTED (Doc. 78.) v. 13 14 CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., 15 Defendants. / OBJECTIONS, IF ANY, DUE IN 20 DAYS 16 17 18 I. RELEVANT PROCEDURAL HISTORY Plaintiff John Robert Silvis (“Plaintiff”) is a civil detainee proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on 20 Plaintiff’s Amended Complaint, filed June 25, 2007, against defendants R. Davis, D. Smith, Denis 21 M. Perry, Brian M. Rees, N. Weed, and J. Pappenfus for violation of the Eighth Amendment 22 arising out of Plaintiff’s medical care while incarcerated. (Doc. 8.) 23 On July 26, 2010, defendants Davis, Pappenfus, Weed, and Smith (“Defendants”) filed a 24 motion for summary judgment.1 (Docs. 78-81.) On August 17, 2010, Plaintiff filed an 25 opposition.2 (Docs. 82-85.) On August 31, 2010, Defendants filed a reply. (Docs. 86-89.) On 26 1 27 Defendants Perry and Rees are represented by separate counsel. 2 28 Plaintiff was provided with notice of the requirements for opposing a motion for summary judgment by the Court in an order filed on June 6, 2008. Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). (Doc. 18.) 1 Dockets.Justia.com 1 September 17, 2010 and October 14, 2010, Plaintiff filed surreplies. (Docs. 93, 96, 99, 101.) 2 Defendants’ motion is now before the Court. 3 II. 4 SUMMARY JUDGMENT STANDARD Summary judgment is appropriate when it is demonstrated that there exists no genuine 5 issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. 6 Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party 7 8 9 [A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. 10 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the 11 burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made 12 in reliance solely on the ‘pleadings, depositions, answers to interrogatories, and admissions on 13 file.’” Id. Indeed, summary judgment should be entered, after adequate time for discovery and 14 upon motion, against a party who fails to make a showing sufficient to establish the existence of 15 an element essential to that party's case, and on which that party will bear the burden of proof at 16 trial. Id. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving 17 party’s case necessarily renders all other facts immaterial.” Id. In such a circumstance, summary 18 judgment should be granted, “so long as whatever is before the district court demonstrates that the 19 standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323. 20 If the moving party meets its initial responsibility, the burden then shifts to the opposing 21 party to establish that a genuine issue as to any material fact actually does exist. Fed. R. Civ. P. 22 56(e); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 n.11 (1986); 23 First Nat'l Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289 (1968); Strong v. France, 24 474 F.2d 747, 749 (9th Cir. 1973). In attempting to establish the existence of this factual dispute, 25 the opposing party may not rely upon the denials of its pleadings, but is required to tender 26 evidence of specific facts in the form of affidavits, and/or admissible discovery material, in 27 support of its contention that the dispute exists. Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 28 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that 2 1 might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 2 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 3 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury 4 could return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 5 1436 (9th Cir. 1987). 6 A verified complaint in a pro se civil rights action may constitute an opposing affidavit for 7 purposes of the summary judgment rule, where the complaint is based on an inmate’s personal 8 knowledge of admissible evidence, and not merely on the inmate’s belief. McElyea v. Babbitt, 9 833 F.2d 196, 197-98 (9th Cir. 1987) (per curium); Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th 10 Cir. 1985); Fed. R. Civ. P. 56(e). Plaintiff’s Amended Complaint is verified and will be 11 considered by the Court in resolving Defendants’ motion to the extent that it sets forth admissible 12 facts. The parties bear the burden of supporting their motions and oppositions with the papers 13 they wish the court to consider and/or by specifically referring to any other portions of the record 14 they wish the court to consider. Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 15 1031 (9th Cir. 2001). The Court will not undertake to mine the record for triable issues of fact. 16 Id. 17 18 III. PLAINTIFF’S ALLEGATIONS AND CLAIMS AGAINST DEFENDANTS DAVIS, PAPPENFUS, WEED, AND SMITH 19 Plaintiff is a civil detainee presently housed at Coalinga State Hospital (“CSH”). From 20 May 2002 until November 2005, Plaintiff was incarcerated at Avenal State Prison (“ASP”), where 21 the events at issue in this action allegedly occurred. Defendants were physicians working at ASP 22 while Plaintiff was there. Plaintiff alleges as follows in the Amended Complaint. 23 In September 1995, when Plaintiff was incarcerated at California State Prison-Sacramento, 24 he developed a total hearing loss in his right ear and began having seizures. He went to the prison 25 clinic and advised medical personnel of his symptoms. He was treated with irrigation to his right 26 ear and ear drops. No diagnostic tests were ordered. His symptoms continued. 27 28 On November 23, 1995, Plaintiff experienced a severe seizure while eating dinner in the prison chow hall. He was transported out to Folsom Mercy Hospital, and the treating emergency 3 1 physician recommended that the prison arrange for him to be given a magnetic resonance imaging 2 diagnostic test (“MRI”). 3 From 1995 through 2003, Plaintiff was not given the recommended MRI. His symptoms 4 continued to worsen, and he experienced additional seizures, dizziness, constant painful 5 headaches, and complete loss of hearing in his right ear. He continually complained and 6 requested the MRI but was not given any diagnostic tests. 7 8 In 2002, Plaintiff saw Dr. Perry and Dr. Rees at ASP and informed them of his medical history. They did not order any medical testing, and he was only given a cane. 9 In August 2002, ASP medical staff ordered an examination by an ear, nose, and throat 10 (ENT) medical specialist. In January 2003, Plaintiff saw Dr. Sueberry for an ENT exam at a 11 clinic in Delano. Dr. Sueberry recommended an MRI within 30 days with follow-up. All of 12 Plaintiff’s symptoms were worsening, including seizures, headaches, nausea, vomiting, loss of 13 balance, loss of hearing, and pain. 14 On April 1, 2003, Plaintiff was given an MRI at Coalinga Regional Medical Center. He 15 was not told until April 29, 2003 that Dr. Peterson’s report indicated he had an acoustic neuroma 16 (brain tumor), which had been growing for years and causing his physical symptoms. 17 18 On April 29, 2003, Plaintiff was transported to San Joaquin Community Hospital and admitted by Dr. Mui. He was told, for the first time, that he had a brain tumor. 19 On May 3, 2003, brain surgery was performed on Plaintiff by Dr. Rahimifar. Plaintiff was 20 told that the operation was a success. Immediately after surgery, Plaintiff experienced total facial 21 paralysis on the right side of his face. He had to tape his eyelid shut to sleep at night. He had to 22 drink with a straw to keep from spilling liquid on himself. He had to use a cane to walk and 23 maintain his balance. 24 On May 7, 2003, Plaintiff received a neurological consultation from Dr. Pineda, who 25 recommended radiation to keep the brain tumor from growing back, and physical therapy for 26 Plaintiff’s physical impairments. 27 /// 28 /// 4 1 On May 15, 2003, Plaintiff was returned to ASP and continued to have seizures, loss of 2 balance, complete loss of hearing in his right ear, nausea and vomiting, migraine headaches, and 3 total paralysis of the right side of his face. 4 In May 2003, Plaintiff began writing letters and complaints to prison officials, including 5 Dr. Davis and Dr. Pappenfus, explaining his condition and his need for radiation and physical 6 therapy to keep his tumor from growing back. Except for a brief response from Dr. Davis to 7 Plaintiff’s 602 appeal on July 8, 2003, prison officials never answered Plaintiff’s letters or 8 arranged for him to obtain the treatment he needed. Plaintiff’s brain tumor began growing back. 9 On June 24, 2003, Dr. Rahimifar recommended that Plaintiff be given a hearing aid and 10 eyelid surgery, but Plaintiff never received the recommended treatments during the remainder of 11 his time in custody of the CDC. 12 13 On July 22, 2003, Plaintiff was seen by a physical therapist at ASP who told him to do neck exercises. He was never seen by the therapist again or any other therapist. 14 15 On August 19, 2003, Plaintiff was transported from ASP to Coalinga Regional Medical Center for another MRI, following Dr. Rahimifar’s request. 16 On September 24, 2003, Plaintiff wrote letters to prison officials, including Dr. Davis, 17 explaining that Dr. Pineda had recommended radiation for Plaintiff, and Dr. Rahimifar had 18 recommended radiation, a hearing aid, and eyelid surgery, and requesting these treatments for his 19 serious symptoms. 20 In January 2004, Plaintiff met with Dr. Rahimifar and Dr. Weed and requested radiation 21 treatment without delay and assistance to get physical therapy. On January 27, 2004, Plaintiff met 22 with Dr. Rahimifar at Mercy Hospital, who told Plaintiff he needed radiation treatment without 23 any further delay. 24 On August 27, 2004, Plaintiff met with Dr. Weed and requested the treatments 25 recommended by Doctors Pineda and Rahimifar. Dr. Weed failed to order or provide the 26 treatment. 27 /// 28 /// 5 1 In December 2004, Plaintiff was told by Dr. Rahimifar that his brain tumor was growing 2 back and he needed immediate radiation treatment to be specifically performed at UC San 3 Francisco Medical Center. 4 During the remainder of 2003, 2004 and 2005, Plaintiff continued to write letters to prison 5 officials, including Dr. Smith, Dr. Davis, and Dr. Weed, requesting radiation, physical therapy, a 6 hearing aid, and eyelid surgery, without result. Plaintiff’s tumor continued to grow and he 7 suffered physically and emotionally. 8 9 10 On November 29, 2005, Plaintiff was paroled to the Riverside County Jail, and he was later incarcerated at CSH. In May 2007, Plaintiff finally started radiation treatment, and he has now been provided with a hearing aid, eye patches, and physical therapy. 11 Plaintiff claims that Defendants were deliberately indifferent to his serious medical needs 12 when they failed to provide him with adequate treatment for his symptoms caused by a brain 13 tumor. 14 IV. UNDISPUTED FACTS3 15 1. Plaintiff was incarcerated at ASP from May 18, 2000 to November 29, 2005. 16 2. From November 1988 to approximately 2004, R. Davis, M.D. worked as Chief Medical Officer (“CMO”) at ASP, and in that capacity, his primary job duty was to supervise medical staff who provided medical care and treatment to inmates. 3. From June 1991 to June 2006, J. Pappenfus, M.D. worked as a staff physician and surgeon at ASP. 4. From October 1, 2003 to 2008, N. Weed, M.D. worked as a staff physician and surgeon at ASP. 5. From September 11, 1993 to August 31, 2005, D. Smith, M.D. worked as a staff physician and surgeon at ASP. 6. On February 27, 2002, Dr. Smith prepared a chrono for Plaintiff indicating that he was fit for assignment only to those duties which were not hazardous to someone with seizures due to his seizure disorder, and ordered that Plaintiff be assigned to a lower bunk/low tier, and was not to work at a height or near hot spots, moving machinery, or sharp objects. 17 18 19 20 21 22 23 24 25 /// /// 26 27 28 3 These facts are undisputed for the sole purpose of this motion. The Court has compiled the summary of undisputed facts from Defendants’ statement of undisputed facts and Plaintiff’s statements of disputed facts and undisputed facts. 6 1 7. On June 4, 2004, Dr. Rees requested authorization for temporary removal for medical treatment for a magnetic resonance imaging diagnostic test (“MRI”) with contrast, and for follow-up consultation with neurosurgeon Dr. Rahimifar, and on June 8, 2004, Plaintiff saw Dr Rahimifar for a consultation. The request was authorized by Dr. Smith on June 7, 2004 as Acting CMO in Dr. R. Davis’ absence on that date. 8. Beyond these two events on February 27, 2002 and June 7, 2004, the records do not reflect any involvement by Dr. Smith in Plaintiff’s medical care and treatment. 9. On January 14, 2003, Plaintiff reported to Dr. Perry decreased hearing and a ringing in the right ear for two months with dizziness for one month. Plaintiff also gave Dr. Perry a history of seizures. Dr. Perry also documented for the first time that Plaintiff had nystagmus (involuntary eye movement). Dr. Perry had previously treated him for a cerumen (ear wax) build-up. Due to the symptoms now apparent, Dr. Perry was able to conclude that Plaintiff should have an ear, nose and throat (“ENT”) consultation. Dr. Perry ordered lab studies, adjusted Plaintiff’s dose of Paxil, and completed an “urgent” request for services on January 14, 2003, for an ENT consultation that was approved on the same day. 10. Plaintiff was seen by Wilbur Suesberry, M.D., an ENT specialist on January 29, 2003. Plaintiff was referred with a history of vertigo and imbalance, and a hearing loss in the right ear. Plaintiff stated he has had problems with his ears for an extended period of time, which means that he has had tinnitus, and he noted a hearing loss in the right ear for an extended period of time. Dr. Suesberry recommended a CT mastoid/temporal bones and MRI of his head. Dr. Suesberry’s diagnosis was unilateral hearing loss with tinnitus and vertigo. 11. On March 18, 2003, Dr. Rees referred Plaintiff for an exam/treatment consultation for an MRI, which Dr. Davis approved and signed. The impression of the April 1, 2003 MRI stated that there was a large soft tissue mass localized to the right cerebellopontine angle with characteristics consistent with a diagnosis of acoustic neuroma (brain tumor). 12. Dr. Rees interviewed Plaintiff on April 15, 2003, in response to his appeal log no. 03-0627 at the first level of review. Dr. Rees partially granted his appeal stating that the requested MRI was completed, and that a follow up appointment and referral to the appropriate specialists (including an ENT specialist) had been scheduled. Dr. Rees also stated that not all of the details of Plaintiff’s condition were known and that after specialty evaluations were completed and therapy had been decided upon and initiated, Plaintiff’s record would be more complete. 13. Acoustic neuroma (also known as acoustic swannoma) is a noncancerous (benign) often slow-growing tumor of the nerve that connects the ear to the brain. Due to where it is located, it could grow fairly large with minimal or no symptoms for years. In time the tumor could put pressure on facial and hearing nerves and eventually cause classic symptoms. Classic symptoms include ringing in the ears, headaches, dizziness, and/or loss of hearing. The most severe symptoms occur when the tumor starts to put pressure on the brainstem or blocks cerebral spinal fluid. Plaintiff’s type of tumor does not invade the brain like many other tumors typically do. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 /// /// /// 28 7 1 14. On April 15, 2003, Dr. Rees filled out an “urgent” Physician’s Request for Services noting the diagnosis as acoustic neuroma and requested a neurosurgery consultation. On April 17, 2003, Dr. Davis signed a Request for Authorization of Temporary Removal for Medical Treatment for a neurosurgery consultation with Dr. Rahimifar at Adventist Health San Joaquin Community Hospital scheduled for April 29, 2003. On April 24, 2003, a referral was made by Dr. Rees for an MRI of mastoid temporal bones, which Dr. Davis approved on April 24, 2003. 15. On April 29, 2003, Plaintiff was seen by Dr. Rahimifar at Adventist Health San Joaquin Community Hospital. The consultation/history stated that Plaintiff was seen by Dr. Rahimifar for surgical management of a right cerebellopontime angle mass presenting with progressive deafness since November 2002, and that he had good hearing in his left ear. Dr. Rahimifar recommended that Plaintiff be admitted to the hospital, that the MRI of the brain be repeated with and without contrast to rule out hydrocephalus and brain stem compression, and for further evaluation. The records indicate that Dr. Rahimifar discussed with Plaintiff the diagnosis and possible need for surgical intervention. Arrangements for admission were made with Dr. Mui. Dr. Rahimifar was waiting for the MRI results so that he could discuss definitive treatment with Plaintiff. 16. Plaintiff underwent an MRI of the head which confirmed a soft tissue mass in the right cerebellopontine angle. 17. Dr. Rahimifar had met with Plaintiff prior to surgery and gave him details of the diagnosis, and explained treatment options. He explained the operation, risks, complications and future expectations, including possible chance of coma and facial paralysis. Plaintiff was also informed that due to the size of the tumor, complications were higher than usual. Plaintiff said he understood that he may need postoperative gamma radiation as well as possible future surgeries and that the chance of facial paralysis was also high. 18. On May 3, 2003, Dr. Rahimifar performed surgery (excision of the acoustic schwannoma) with no complications. At least over 80-90 percent of the intracapsular tumor was removed. The capsule of the tumor, as it was stuck to the seventh and fifth nerve was left so that there would be no nerve dysfunction and inferiorly the capsule stuck to the ninth, tenth and eleventh nerve was left also. 19. After the surgery, Plaintiff experienced some facial paralysis and difficulty closing his right eye. 20. Dr. Pineda saw Plaintiff during the hospital stay. Dr. Pineda recommended that Plaintiff receive radiation therapy to the auditory nerve area, but did not indicate any urgency. 21. On May 7, 2003, Dr. Rees requested authorization of temporary removal for medical treatment for an ENT consult appointment with Dr. Rahimifar, which Dr. Davis approved and signed. 22. On May 13, 2003, Plaintiff underwent a physical therapy evaluation at the Adventist Health San Joaquin Community Hospital for gait training. Gait is the pattern of how a person walks. 23. On May 14, 2003, Plaintiff was discharged from the Adventist Health San Joaquin Community Hospital. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 1 24. On May 19, 2003, Dr. Rees requested authorization for temporary removal for medical treatment for an ENT consult, which Dr. Davis approved and signed. 25. On May 20, 2003, and on June 23, 2003, Dr. Rees requested authorization for temporary removal for medical treatment for a follow-up appointment with Dr. Rahimifar, which Dr. Davis approved and signed. 26. On May 29, 2003, Dr. Rees requested authorization for temporary removal for medical treatment for a follow-up appointment with Dr. Rahimifar, which Dr. Davis approved and signed. 27. On June 4, 2003, Plaintiff saw Dr. Suesberry for an ENT consultation and his exam indicated seventh nerve paralysis, healed right occipital incision, and recommended follow-up treatment with Dr. Rahimifar. 28. On June 19, 2003, Dr. Pappenfus prepared a chrono for Plaintiff to be medically unassigned due to his medical condition from June 19, 2003 to September 13, 2003. 29. On June 24, 2003, Plaintiff was seen by Dr. Rahimifar for follow-up, post surgery consultation. An assessment was completed and his plan was for ophthalmology for right tarsoplasty (a surgical procedure in which the eyelids are partially sewn together to narrow the opening), eye lubricant, a follow-up MRI, and to see Plaintiff in six months. 30. On July 23, 2003, Dr. Pappenfus prepared a chrono for Plaintiff to be totally medically disabled due to his medical condition from July 23, 2003 to April 2, 2004. On this date, Dr. Pappenfus also prepared a chrono for Plaintiff to have twenty minutes for each meal and to take meals back to the dorm. 31. On August 14, 2003, Dr. Davis approved Dr. Rees’ request for a consultation for an MRI of the brain. On August 19, 2003, Plaintiff was transported from Avenal to Coalinga Regional Medical Center for another MRI, per request of the surgeon Dr. Rahimifar. The MRI impression showed scarring, residual tumor and/or fatty replacement. 32. On August 27, 2003, a memorandum by ASP physician Dr. Douglass to Dr. Davis indicated that he did a chart review pertaining to Plaintiff and stated that Dr. Pineda suggested that there was evidence of brainstem cerebellar involvement. He recommended an ophthalmology consult for a right tarsoplasty, MRI of head, and follow-up with a neurosurgeon for re-evaluation of physical therapy. Dr. Douglass also stated that Plaintiff has had several seizures. Plaintiff’s seizure medications were adjusted and he was treated with Motrin for headaches. He was scheduled to see Dr. Rahimifar on May 10 and June 10, 2003, for follow-up dates, but the chart suggests that Dr. Rahimifar was unable to see Plaintiff on these dates. However, he did see Plaintiff on June 24, 2003. 33. At the June 24th appointment, Dr. Rahimifar requested an ophthalmology consult to do a right tarsoplasty. Dr. Pappenfus completed the necessary paperwork to comply with the request. 34. Plaintiff was evaluated by the physical therapist at ASP for treatment of his neuro deficits. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /// /// 9 1 35. On September 15, 2003, Dr. Davis approved Dr. Rees’ request for authorization of temporary removal of Plaintiff for medical treatment for follow-up post surgery. 36. On September 23, 2003, Plaintiff was seen for a consultation by Dr. Leramo at Mercy Hospital in Bakersfield. Dr. Leramo saw Plaintiff only one time. Dr. Leramo recommended radiation treatment, but no urgency was noted. He also noted that Plaintiff would need to return to Dr. Rahimifar for follow up with the MRI. 37. On October 3, 2003, Plaintiff was seen by an opthalmologist for a consultation for tarsoplasty. 38. On or about October 16, 2003, CMO Dr. Davis drafted a memorandum to Plaintiff in response to his September 24, 2003 letter. Dr. Davis indicated that he had again reviewed Plaintiff’s medical records and had made a special appointment with an ENT for an evaluation and recommendations and was coordinating his care and follow-up visits. He noted that Plaintiff was evaluated by ophthalmology regarding his eyelid problem and he had approved the surgery to hopefully correct the problem. In fact, Dr. Davis had requested special permission from CDCR Central Office for the tarsoplasty procedure, which is generally considered a cosmetic procedure. Dr. Davis also noted that Dr. Rahimifar and another neurosurgeon work together closely, so either one could follow up with Plaintiff. Dr. Davis reviewed Plaintiff’s MRI of August 19, 2003, and noted that the results were very good; as such, it was indicated that radiation treatment may be indicated as a safety measure if the next evaluation indicated a need, and that he would schedule this appointment if it became necessary. 39. On October 28, 2003, Dr. Rees requested authorization for temporary removal for medical treatment for follow-up post surgery, which Dr. Davis approved and signed. 40. On November 4, 2003, Plaintiff was seen by Dr. Rahimifar for a consultation. Dr. Rahimifar noted that if the next MRI showed signs of enlargement, Plaintiff would be a candidate for gamma radiation. He also noted that Plaintiff’s eye muscles were returning, he had some early return of eyelid movement, and the seventh and eighth nerve palsy were unchanged. He recommended waiting a couple of months and for Plaintiff to exercise his face. The records indicate that during the exam, Plaintiff asked Dr. Rahimifar if he should consider gamma radiation at this time. Dr. Rahimifar told him that the reoccurrence of the tumor should be verified before subjecting him to gamma radiation. 41. On November 24, 2003, Dr. Rees signed a request for consultation for an MRI and a follow up appointment with Dr. Hulburd, ophthalmologist, for right eye tarsoplasty scheduled for December 4, 2003. On December 2, 2003, the MRI impression revealed there were no significant interval changes since August 19, 2003. It also revealed a right nasal septal deviation, which is a crookedness of the wall between the nasal cavities which usually causes little or no problem. 42. On December 22, 2003, Dr. Weed requested another MRI which was taken on December 30, 2003, without contrast which revealed grossly negative MRI, secondary to Plaintiff refusing to return for the post-contrast portion of the study. Plaintiff reported allergies to MRI contrast. Records reflect that protocols were put in place to prevent a contrast allergy with previous documented/suspected reactions. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 1 43. On January 20, 2004, Dr. Rees requested an MRI follow up and a tarsoplasty right eye follow up. On January 27, 2004, Dr. Rahimifar saw Plaintiff for a consultation. Dr. Rahimifar noted no significant change in size of residual versus small recurrent tumor and recommended an MRI in May or June of 2004. Dr. Rahimifar discussed treatment options with Plaintiff and Plaintiff elected and agreed to have clinical follow-up and was leaning towards clinical observation only. Dr. Rahimifar noted that Plaintiff was ready to have right eye tarsoplasty and noted that his surgical outcome at this time was very good. Dr. Rahimifar also noted that if an MRI in May or June 2004 shows growth, then Plaintiff should have the choice of gamma radiation or surgery. 44. On January 29, 2004, Dr. Weed saw Plaintiff for a follow-up with the MRI. The MRI revealed a stable-appearing residual recurrent tumor. Dr. Weed recommended follow-up for 6 months. 45. On June 4, 2004, Dr. Rees requested authorization for temporary removal for medical treatment for an MRI with contrast. The request was signed by Dr. Smith on June 7, 2004, for consultation for follow-up with films. 46. On June 8, 2004, Plaintiff saw Dr. Rahimifar for a consultation. Dr. Rahimifar noted that Plaintiff remains clinically stable. 47. On June 8, 2004, the MRI was performed. The doctor reading the MRI told Dr. Rahimifar that it showed a ten-to-fifteen percent size tumor. Eighty-to-ninety percent of his tumor had been removed during surgery; thus there were no changes. He recommended a follow up in six months. 48. Dr. Weed provided numerous chronos to accommodate Plaintiff’s medical condition including: chronos for a double mattress, use of a cane, and lower bunk on November 4, 2004; a chrono for a special eye patch from home for Plaintiff to use on December 17, 2004; and a chrono for use of tape to close Plaintiff’s right eye during sleep on February 25, 2005. 49. On September 8, 2004, Dr. Weed responded to one of Plaintiff’s appeals (Log #01793) regarding his request for an eye patch. Dr. Weed granted his appeal and informed Plaintiff that eye patches were available at the facility medical clinic. 50. On December 9, 2004, Dr. Rees requested a follow-up consult and on December 14, 2004, Dr. Rahimifar saw Plaintiff. Dr. Rahimifar’s impression was seventh nerve weakness and lip numbness. He recommended an MRI, consult for gamma radiation, and tarsoplasty procedure and that an EEG (electroencephalogram) needed to be done due to nystagmus (eye movement). (An electroencephalogram is a test to detect problems in the electrical activity of the brain.) Dr. Rahimifar noted that he needed a consult with Dr. McDermott, a specialist for gamma radiation at UCSF. (Gamma knife radiation is intense doses of radiation given to target area(s) while largely sparing the surround tissues.) Plaintiff told Dr. Rahimifar that he wanted gamma radiation to shrink the remaining tumor in his head and possibly lessen his symptoms, physical handicaps, and pain. Dr. Rahimifar went over the risks and complications of gamma radiation. Plaintiff also claimed he had not yet finalized his decision regarding tarsoplasty. 51. On December 14, 2004, the MRI impression revealed a stable MRI scan. No change from prior study. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /// /// 11 1 52. On December 20, 2004, Dr. Weed requested a consultation with Dr. McDermott for gamma radiation. 53. On January 11, 2005, Dr. Weed requested an “urgent” brain MRI and MRA (a study to look at the cerebral vessels). The medical necessity was for repeat MRI of brain with and without contrast and MRA with special attention to cerebella ponitine angle. 54. On January 26, 2005, the MRA revealed a negative impression and subtle changes in the right posterior fossa with no clearly defined mass. 55. On February 4, 2005, Dr. Weed requested a consult for gamma radiation. 56. On February 10, 2005, Plaintiff was seen by Dr. Jacob who noted that Plaintiff attended a clinic to discuss the option of gamma knife radiotherapy to treat the tumor. Dr. Jacob’s recommendation was that close observation and follow-up was a valid option and that if progression was seen, he would be a candidate for stereotactic radiotherapy (a medical procedure which allows non-invasive treatment of benign and malignant tumors. Acoustic neuromas are benign or nonmalignant (not cancer). Dr. Jacob’s recommendation was for observation for now, which was conservative treatment. If the tumor increased, he would recommend radiation therapy. There was no radiological evidence to suggest that Plaintiff indeed had progressive disease at the sight of his original tumor. Plaintiff expressed full understanding of the proposed plan. The option of further surgery, versus observation, versus gamma knife therapy of tumor was discussed with Plaintiff. Plaintiff preferred to undergo gamma knife therapy if it was feasible and indicated. 57. On March 18, 2005, Dr. Rees requested an MRI. On March 21, 2005, the MRI showed subtle (minimal) changes. 58. On April 29, 2005, Dr. Weed requested an audiometry consultation for testing of Plaintiff’s hearing ability. 59. In a letter dated May 25, 2005, written to Dr. Weed by Dr. Jacob, Dr. Jacob stated: the patient had neither radiological nor clinical evidence of progression of his tumor. The rightsided cranial nerve palsy remained the same since surgery. The progression of disease was a possibility, but this type of tumor showed a very slow rate of progression, which could take several months or years to manifest clinically or radiologically. Even though radiosurgery is a feasible option, the close proximity of the tumor to the brainstem makes it a technically challenging procedure. There is a low but definite risk of permanent damage to the brainstem as a consequence to this treatment. We recommend MRI scan at least once every six months along with follow-up to rule out progression. If progression is seen, Plaintiff would then be a candidate for sterotactic radiosurgery. 60. On July 5, 2005 and again on July 18, 2005, Dr. Weed saw Plaintiff in the clinic for complaints of vertigo and nasal congestion. He prescribed Meclizine for the vertigo on June 5, 2005 and increased the dosage on July 18, 2005. 61. In November 2005, Plaintiff was released from CDCR custody and held in the Riverside County Jail for six months. Plaintiff was transferred to CSH in April 2006 where he still currently resides. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /// /// 12 1 62. On October 31, 2006, Dr. Segal saw Plaintiff for an initial neurosurgical consultation. Plaintiff’s chief complaints were facial palsy, poor balance, hearing loss, and migraine headaches. Plaintiff wished further treatment for his progressing brain tumor. At this point, Dr. Segal recommended gamma knife. The MRI from September 20, 2006 and the MRI of March 21, 2005 showed a similarsized tumor. This showed no changes from this last MRI. 63. On April 18, 2007, Plaintiff was seen for a gamma radiation consultation by Dr. Hysell. Plaintiff knew the risks and benefits and understood and agreed to therapy. 64. On April 28, 2007, Plaintiff was seen for the Cyberknife initial evaluation by Dr. Wong. 65. On May 3, 2007, the MRI impression showed no changes from the prior MRI. 66. From May 23, 2007, to May 29, 2007, Plaintiff was treated by Dr. Misra and Dr. Wong for an acoustic neuroma with Cyberknife. End of treatment clinical comments read: Cyberknife radiosurgery for recurrent right acoustic neuroma ended successfully on May 29, 2007. Plaintiff completed his three outpatient sessions well and experienced no limiting side-effects. His care continues with Dr. Misra and at CSH. 67. On July 11, 2007, Dr. Steven E. Hysell authored a Radiation Oncology SRS Clinic Note about Plaintiff during a clinic visit. The note states in relevant part that “Plaintiff is doing exceptionally well post-Cyberknife radiosurgery. He has decreased headaches, decreased dizziness, and increased ability to move his face. The patient states that his hearing deficit in the right ear is unchanged. Overall, his neurological conditions improved. He has no new deficits and he has done well with the Cyberknife treatment.” The plan was for an MRI in two months to evaluate treatment. 68. On November 6, 2007, the MRI impression was stable appearance to right auditory canal and cerebellopontine angle vestibular schwannoma, with both cisternal and intracanalicular components compared with a previous MRI from May 2007. The tumor was identical in contour, size, and amount of surrounding mass effect. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 V. ANALYSIS 20 A. 21 The Civil Rights Act under which this action was filed provides: 22 24 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. 25 The statute plainly requires that there be an actual connection or link between the actions 23 Section 1983 Actions 26 of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. 27 Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The 28 Ninth Circuit has held that "[a] person 'subjects' another to the deprivation of a constitutional 13 1 right, within the meaning of section 1983, if he does an affirmative act, participates in another's 2 affirmative acts or omits to perform an act which he is legally required to do that causes the 3 deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 4 B. 5 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate Eighth Amendment Medical Claim 6 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 7 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)). The two 8 part test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by 9 demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury 10 or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need 11 was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 12 1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 13 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by 14 “a purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm 15 caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Deliberate indifference 16 may be manifested “when prison officials deny, delay or intentionally interfere with medical 17 treatment, or it may be shown by the way in which prison physicians provide medical care.” Id. 18 (citing McGuckin at 1060 (internal quotations omitted)). Where a prisoner is alleging a delay in 19 receiving medical treatment, the delay must have led to further harm in order for the prisoner to 20 make a claim of deliberate indifference to serious medical needs. McGuckin, 974 F.2d at 1060 21 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)). The 22 needless suffering of pain may be sufficient to demonstrate further harm. Clement v. Gomez, 298 23 F.3d 898, 904 (9th Cir. 2002). 24 In applying this standard, the Ninth Circuit has held that before it can be said that a 25 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be 26 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause 27 of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980), citing Estelle, 28 429 U.S. at 105-06. “[A] complaint that a physician has been negligent in diagnosing or treating a 14 1 medical condition does not state a valid claim of medical mistreatment under the Eighth 2 Amendment. Medical malpractice does not become a constitutional violation merely because the 3 victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d 4 1310, 1316 (9th Cir. 1995); McGuckin, 974 F.2d at 1050, WMX Techs., 104 F.3d at 1136. Even 5 gross negligence is insufficient to establish deliberate indifference to serious medical needs. See 6 Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). 7 “A difference of opinion between a prisoner-patient and prison medical authorities 8 regarding treatment does not give rise to a § 1983 claim,” Franklin v. Oregon, 662 F.2d 1337, 9 1344 (9th Cir. 1981) (internal citation omitted), and a difference of opinion between medical 10 personnel regarding treatment does not amount to deliberate indifference. Sanchez v. Vild, 891 11 F.2d 240, 242 (9th Cir. 1989). To prevail, a plaintiff must set forth admissible evidence showing 12 “that the course of treatment the doctors chose was medically unacceptable under the 13 circumstances . . . and . . . that they chose this course in conscious disregard of an excessive risk 14 to [his] health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986) (internal citations 15 omitted). 16 1. 17 Defendants’ Position Defendants argue that their actions did not constitute deliberate indifference to Plaintiff’s 18 medical needs, because during Plaintiff’s incarceration at ASP, he received extensive medical care 19 from a number of medical personnel, including Defendants R. Davis, J. Pappenfus, N. Weed, and 20 D. Smith, and these Defendants never intentionally or knowingly caused Plaintiff any pain, 21 suffering, injury or harm. 22 Defendants offer as evidence the Undisputed Facts (“UF”); the declarations of R. Davis, J. 23 Pappenfus, N. Weed, D. Smith, and Shanan L. Hewitt; Plaintiff’s medical records; Plaintiff’s 24 depositions of April 16, 2009 and June 7, 2010; Plaintiff’s response to defendant Weed’s First 25 Request to Production of Documents; defendant Weed’s responses to Plaintiff’s First Set of 26 Interrogatories, and defendant Smith’s response to Plaintiff’s Request for Production of 27 Documents, Set Two. 28 /// 15 1 2 a. Plaintiff’s Extensive Medical Care Defendants contend that because of Plaintiff’s extensive medical care, including care from 3 doctors at ASP and from outside specialists including neurosurgeons, ENT physicians, an 4 ophthalmologist, and radiologists, Plaintiff’s treatment by any one of the Defendants cannot be 5 considered in a vacuum, but instead must be analyzed in the context of medical care provided by 6 multiple defendants and other medical providers. To that end, Defendants present evidence of 7 Plaintiff’s medical care from 2002 through 2007. 8 9 Plaintiff was incarcerated at ASP from May 18, 2000 to November 29, 2005. UF 1. On February 27, 2002, Dr. Smith prepared a chrono for Plaintiff indicating that he was fit for 10 assignment only to those duties which were not hazardous to someone with seizures, due to 11 Plaintiff’s seizure disorder, and ordered that Plaintiff be assigned to a lower bunk/low tier, and 12 was not to work at a height or near hot spots, moving machinery, or sharp objects. UF 6. On 13 January 14, 2003, Plaintiff reported to Dr. Perry decreased hearing and a ringing in the right ear 14 for two months with dizziness for one month. UF 9. Plaintiff also gave Dr. Perry a history of 15 seizures. Id. Dr. Perry also documented for the first time that Plaintiff had nystagmus 16 (involuntary eye movement). Id. Dr. Perry had previously treated him for a cerumen (ear wax) 17 build-up. Id. Due to the symptoms now apparent, Dr. Perry was able to conclude that Plaintiff 18 should have an ENT consultation. Id. At the time of the visit, Dr. Perry had no information 19 suggesting that Plaintiff had any persistent symptoms prior to two months before his visit of 20 January 14, 2003. (Perry Decl., Doc. 76-4 ¶¶6-7; Rees Decl. Doc. 76-3 ¶¶6-7.) Dr. Perry ordered 21 lab studies, adjusted Plaintiff’s dose of Paxil, and completed an “urgent” request for services on 22 January 14, 2003, for an ENT consultation that was approved on the same day. UF 9. 23 Plaintiff was seen by Wilbur Suesberry, M.D., an ENT specialist on January 29, 2003. UF 24 10. Plaintiff was referred with a history of vertigo and imbalance, and a hearing loss in the right 25 ear. Id. Plaintiff stated he has had problems with his ears for an extended period of time, which 26 means that he has had tinnitus, and he noted a hearing loss in the right ear for an extended period 27 of time. Id. Dr. Suesberry recommended a CT mastoid/temporal bones and MRI of his head. Id. 28 Dr. Suesberry’s diagnosis was unilateral hearing loss with tinnitus and vertigo. Id. On March 18, 16 1 2003, Dr. Rees referred Plaintiff for an exam/treatment consultation for an MRI, which Dr. Davis 2 approved and signed. UF 11. The impression of the April 1, 2003 MRI stated that there was a 3 large soft tissue mass localized to the right cerebellopontine angle with characteristics consistent 4 with a diagnosis of acoustic neuroma (brain tumor). Id. 5 Dr. Rees interviewed Plaintiff on April 15, 2003, in response to his appeal log no. 03-0627 6 at the first level of review. UF 12. Dr. Rees partially granted his appeal stating that the requested 7 MRI was completed, and that a follow up appointment and referral to the appropriate specialists 8 (including an ENT specialist) had been scheduled. Id. Dr. Rees also stated that not all of the 9 details of Plaintiff’s condition were known and that after specialty evaluations were completed 10 11 and therapy had been decided upon and initiated, Plaintiff’s record would be more complete. Id. Acoustic neuroma (also known as acoustic swannoma) is a noncancerous (benign) often 12 slow-growing tumor of the nerve that connects the ear to the brain. UF 13. Due to where it is 13 located, it could grow fairly large with minimal or no symptoms for years. Id. In time the tumor 14 could put pressure on facial and hearing nerves and eventually cause classic symptoms. Id. 15 Classic symptoms include ringing in the ears, headaches, dizziness, and/or loss of hearing. Id. 16 The most severe symptoms occur when the tumor starts to put pressure on the brainstem or blocks 17 cerebral spinal fluid. Id. Plaintiff’s type of tumor does not invade the brain like many other 18 tumors typically do. Id. The type of tumor that Plaintiff had does not cause seizures. (Davis 19 Decl., Doc. 81, Exh. B ¶6; Pappenfus Decl., Doc. 81, Exh. C ¶4.) 20 On April 15, 2003, Dr. Rees filled out an “urgent” Physician’s Request for Services noting 21 the diagnosis as acoustic neuroma and requested a neurosurgery consultation. UF 14. On April 22 17, 2003, Dr. Davis signed a Request for Authorization of Temporary Removal for Medical 23 Treatment for a neurosurgery consultation with Dr. Rahimifar at Adventist Health San Joaquin 24 Community Hospital scheduled for April 29, 2003. Id. On April 24, 2003, a referral was made by 25 Dr. Rees for an MRI of mastoid temporal bones which Dr. Davis approved on April 24, 2003. Id. 26 On April 29, 2003, Plaintiff was seen by Dr. Rahimifar at Adventist Health San Joaquin 27 Community Hospital. UF 15. The consultation/history stated that Plaintiff was seen by Dr. 28 Rahimifar for surgical management of a right cerebellopontime angle mass presenting with 17 1 progressive deafness since November 2002, and that he had good hearing in his left ear. Id. Dr. 2 Rahimifar recommended that Plaintiff be admitted to the hospital, that the MRI of the brain be 3 repeated with and without contrast to rule out hydrocephalus and brain stem compression, and for 4 further evaluation. Id. The records indicate that Dr. Rahimifar discussed with Plaintiff the 5 diagnosis and possible need for surgical intervention. Id. Arrangements for admission were made 6 with Dr. Mui. Id. Dr. Rahimifar was waiting for the MRI results so that he could discuss 7 definitive treatment with Plaintiff. Id. 8 Plaintiff underwent an MRI of the head which confirmed a soft tissue mass in the right 9 cerebellopontine angle. UF 16. Dr. Rahimifar had met with Plaintiff prior to surgery and gave 10 him details of the diagnosis, and explained treatment options. UF 17. He explained the operation, 11 risks, complications and future expectations, including possible chance of coma and facial 12 paralysis. Id. Plaintiff was also informed that due to the size of the tumor, complications were 13 higher than usual. Id. Plaintiff said he understood that he may need postoperative gamma 14 radiation as well as possible future surgeries and that the chance of facial paralysis was also high. 15 Id. 16 On May 3, 2003, Dr. Rahimifar performed surgery (excision of the acoustic schwannoma) 17 with no complications. UF 18. At least over eighty-to-ninety percent of the intracapsular tumor 18 was removed. Id. The capsule of the tumor, as it was stuck to the seventh and fifth nerve was left 19 so that there would be no nerve dysfunction and inferiorly the capsule stuck to the ninth, tenth and 20 eleventh nerve was left also. Id. Dr. Pineda saw Plaintiff during the hospital stay. UF 20. Dr. 21 Pineda recommended that Plaintiff receive radiation therapy to the auditory nerve area, but did not 22 indicate any urgency. Id. 23 On May 7, 2003, Dr. Rees requested authorization of temporary removal for medical 24 treatment for an ENT consult appointment with Dr. Rahimifar, which Dr. Davis approved and 25 signed. UF 21. On May 13, 2003, Plaintiff underwent a physical therapy evaluation at the 26 Adventist Health San Joaquin Community Hospital for gait training. UF 22. Gait is the pattern of 27 how a person walks. Id. On May 14, 2003, Plaintiff was discharged from the Adventist Health 28 San Joaquin Community Hospital. UF 23. 18 1 On May 19, 2003, Dr. Rees requested authorization for temporary removal for medical 2 treatment for an ENT consult which Dr. Davis approved and signed. UF 24. On May 20, 2003, 3 and on June 23, 2003, Dr. Rees requested authorization for temporary removal for medical 4 treatment for a follow-up appointment with Dr. Rahimifar which Dr. Davis approved and signed. 5 UF 25. On May 29, 2003, Dr. Rees requested authorization for temporary removal for medical 6 treatment for a follow-up appointment with Dr. Rahimifar which Dr. Davis approved and signed. 7 UF 26. 8 On June 4, 2003, Plaintiff saw Dr. Suesberry for an ENT consultation and his exam 9 indicated seventh nerve paralysis, healed right occipital incision, and recommended follow-up 10 treatment with Dr. Rahimifar. UF 27. On June 19, 2003, Dr. Pappenfus prepared a chrono for 11 Plaintiff to be medically unassigned due to his medical condition from June 19, 2003 to 12 September 13, 2003. UF 28. On June 24, 2003, Plaintiff was seen by Dr. Rahimifar for follow- 13 up, post surgery consultation. An assessment was completed and his plan was for ophthalmology 14 for right tarsoplasty, (a surgical procedure in which the eyelids are partially sewn together to 15 narrow the opening), eye lubricant and follow up MRI, and to see Plaintiff in six months. UF 29. 16 On July 23, 2003, Dr. Pappenfus prepared a chrono for Plaintiff to be totally medically 17 disabled due to his medical condition from July 23, 2003 to April 2, 2004. UF 30. On this date, 18 Dr. Pappenfus also prepared a chrono for Plaintiff to have twenty minutes for each meal and to 19 take meals back to the dorm. Id. 20 On August 14, 2003, Dr. Davis approved Dr. Rees’ request for a consultation for an MRI 21 of the brain. UF 31. On August 19, 2003, Plaintiff was transported from Avenal to Coalinga 22 Regional Medical Center for another MRI, per request of the surgeon Dr. Rahimifar. Id. The 23 MRI impression showed scarring, residual tumor and/or fatty replacement. Id. On August 27, 24 2003, a memorandum by ASP physician Dr. Douglass to Dr. Davis indicated that he did a chart 25 review pertaining to Plaintiff and stated that Dr. Pineda suggested that there was evidence of 26 brainstem cerebellar involvement. UF 32. He recommended an ophthalmology consult for a right 27 tarsoplasty, MRI of head, and follow-up with a neurosurgeon for re-evaluation of physical therapy. 28 Id. Dr. Douglass also stated that Plaintiff has had several seizures. Id. Plaintiff’s seizure 19 1 medications were adjusted and he was treated with Motrin for headaches. Id. He was scheduled 2 to see Dr. Rahimifar on May 10 and June 10, 2003, for follow-up dates, but the chart suggests that 3 Dr. Rahimifar was unable to see Plaintiff on these dates. Id. However, he did see Plaintiff on 4 June 24, 2003. Id. 5 At the June 24th appointment, Dr. Rahimifar requested an ophthalmology consult to do a 6 right tarsoplasty. UF 33. Dr. Pappenfus completed the necessary paperwork to comply with the 7 request. Id. Plaintiff was evaluated by the physical therapist at ASP for treatment of his neuro 8 deficits. UF 34. 9 On September 15, 2003, Dr. Davis approved Dr. Rees’ request for authorization of 10 temporary removal of Plaintiff for medical treatment for follow-up post surgery. UF 35. On 11 September 23, 2003, Plaintiff was seen for a consultation by Dr. Leramo at Mercy Hospital in 12 Bakersfield. UF 36. Dr. Leramo saw Plaintiff only one time. Id. Dr. Leramo recommended 13 radiation treatment, but no urgency was noted. Id. He also noted that Plaintiff would need to 14 return to Dr. Rahimifar for follow up with the MRI. Id. On October 3, 2003, Plaintiff was seen 15 by an opthalmologist for a consultation for tarsoplasty. UF 37. 16 On or about October 16, 2003, CMO Dr. Davis drafted a memorandum to Plaintiff in 17 response to his September 24, 2003 letter. UF 38. Dr. Davis indicated that he had again reviewed 18 Plaintiff’s medical records and had made a special appointment with an ENT for an evaluation 19 and recommendations and was coordinating his care and follow-up visits. Id. He noted that 20 Plaintiff was evaluated by ophthalmology regarding his eyelid problem and he had approved the 21 surgery to hopefully correct the problem. Id. In fact, Dr. Davis had requested special permission 22 from CDCR Central Office for the tarsoplasty procedure which is generally considered a cosmetic 23 procedure. Id. Dr. Davis also noted that Dr. Rahimifar and another neurosurgeon work together 24 closely, so either one could follow up with Plaintiff. Id. Dr. Davis reviewed Plaintiff’s MRI of 25 August 19, 2003, and noted that the results were very good; as such, it was indicated that radiation 26 treatment may be indicated as a safety measure if the next evaluation indicated a need, and that he 27 would schedule this appointment if it became necessary. Id. 28 /// 20 1 On October 28, 2003, Dr. Rees requested authorization for temporary removal for medical 2 treatment for follow-up post surgery which Dr. Davis approved and signed. UF 39. On 3 November 4, 2003, Plaintiff was seen by Dr. Rahimifar for a consultation. UF 40. Dr. Rahimifar 4 noted that if the next MRI showed signs of enlargement, Plaintiff would be a candidate for gamma 5 radiation. Id. He also noted that Plaintiff’s eye muscles were returning, he had some early return 6 of eyelid movement, and the seventh and eighth nerve palsy were unchanged. Id. He 7 recommended waiting a couple of months and for Plaintiff to exercise his face. Id. The records 8 indicate that during the exam, Plaintiff asked Dr. Rahimifar if he should consider gamma 9 radiation at this time. Id. Dr. Rahimifar told him that the reoccurrence of the tumor should be 10 verified before subjecting him to gamma radiation. Id. 11 On November 24, 2003, Dr. Rees signed a request for consultation for an MRI and a 12 follow-up appointment with Dr. Hulburd, ophthalmologist, for right eye tarsoplasty scheduled for 13 December 4, 2003. UF 41. On December 2, 2003, the MRI impression revealed there were no 14 significant interval changes since August 19, 2003. Id. It also revealed a right nasal septal 15 deviation, which is a crookedness of the wall between the nasal cavities which usually causes little 16 or no problem. Id. On December 22, 2003, Dr. Weed requested another MRI which was taken on 17 December 30, 2003, without contrast, which revealed grossly negative MRI, secondary to Plaintiff 18 refusing to return for the post-contrast portion of the study. UF 42. Plaintiff reported allergies to 19 MRI contrast. Id. Records reflect that protocols were put in place to prevent a contrast allergy 20 with previous documented/suspected reactions. Id. 21 On January 20, 2004, Dr. Rees requested an MRI follow up and a tarsoplasty right eye 22 follow up. UF 43. On January 27, 2004, Dr. Rahimifar saw Plaintiff for a consultation. Id. Dr. 23 Rahimifar noted no significant change in size of residual versus small recurrent tumor and 24 recommended an MRI in May or June of 2004. Id. Dr. Rahimifar discussed treatment options 25 with Plaintiff and Plaintiff elected and agreed to have clinical follow up and was leaning towards 26 clinical observation only. Id. Dr. Rahimifar noted that Plaintiff was ready to have right eye 27 tarsoplasty and noted that his surgical outcome at this time was very good. Id. Dr. Rahimifar also 28 /// 21 1 noted that if an MRI in May or June 2004 shows growth, then Plaintiff should have the choice of 2 gamma radiation or surgery. Id. 3 On January 29, 2004, Dr. Weed saw Plaintiff for a follow-up with the MRI. UF 44. The 4 MRI revealed a stable-appearing residual recurrent tumor. Id. Plaintiff decided against surgery 5 and radiation for now. (Davis Decl., Doc. 81, Exh. B ¶¶31-21; Pappenfus Dec., Doc. 81, Exh. C 6 ¶¶31-33; Pltf’s Response to Dr. Weed’s Request for Production of Documents, Set One, Doc. 81, 7 Exh. F at 5.) Dr. Weed recommended follow-up for 6 months. UF 44. 8 On June 4, 2004, Dr. Rees requested authorization for temporary removal for medical 9 treatment for an MRI with contrast. UF 45. The request was signed by Dr. Smith on June 7, 10 2004, for consultation for follow up with films. Id. On June 8, 2004, Plaintiff saw Dr. Rahimifar 11 for a consultation. UF 46. Dr. Rahimifar noted that Plaintiff remains clinically stable. Id. Dr. 12 Rahimifar also noted that based on the current discussion this day, Plaintiff decided against 13 further surgery or radiation and only wanted clinical follow-up which will be arranged in six 14 months. (Davis Decl., Doc. 81, Exh. A ¶¶33-35; Pappenfus Decl., Doc. 81, Exh. C ¶¶34-36; Exh. 15 A to Deft’s MSJ, Doc. 79 at 48.) On June 8, 2004, the MRI was performed. UF 46. The doctor 16 reading the MRI told Dr. Rahimifar that it showed a ten-to-fifteen percent size tumor. Id. Eighty- 17 to-ninety percent of his tumor had been removed during surgery; thus there were no changes. Id. 18 He recommended a follow up in six months. 19 Dr. Weed provided numerous chronos to accommodate Plaintiff’s medical condition 20 including: chronos for a double mattress, use of a cane, and lower bunk on November 4, 2004; a 21 chrono for a special eye patch from home for Plaintiff to use on December 17, 2004; and a chrono 22 for use of tape to close Plaintiff’s right eye during sleep on February 25, 2005. UF 48. On 23 September 8, 2004, Dr. Weed responded to one of Plaintiff’s appeals (Log #01793) regarding his 24 request for an eye patch. UF 49. Dr. Weed granted his appeal and informed Plaintiff that eye 25 patches were available at the facility medical clinic. Id. 26 On December 9, 2004, Dr. Rees requested a follow-up consult and on December 14, 2004, 27 Dr. Rahimifar saw Plaintiff. UF 50. Dr. Rahimifar’s impression was seventh nerve weakness and 28 lip numbness. Id. He recommended an MRI, consult for gamma radiation, and tarsoplasty 22 1 procedure and that an EEG (electroencephalogram) needed to be done due to nystagmus (eye 2 movement). Id. (An electroencephalogram is a test to detect problems in the electrical activity of 3 the brain.) Id. Dr. Rahimifar noted that he needed a consult with Dr. McDermott, a specialist for 4 gamma radiation at UCSF. Id. (Gamma knife radiation is intense doses of radiation given to 5 target area(s) while largely sparing the surround tissues.) Id. Plaintiff told Dr. Rahimifar that he 6 wanted gamma radiation to shrink the remaining tumor in his head and possibly lessen his 7 symptoms, physical handicaps, and pain. Id. Dr. Rahimifar went over the risks and complications 8 of gamma radiation. Id. Plaintiff’s only complaint was numbness of right lip and corner of 9 mouth, and Plaintiff denied any new neurological symptoms. (Davis Decl., Doc. 81, Exh. B ¶¶36- 10 38; Pappenfus Dec., Doc. 81, Exh. C ¶¶37-39.) Plaintiff also claimed he had not yet finalized his 11 decision regarding tarsoplasty. Id. On December 14, 2004, the MRI impression revealed a stable 12 MRI scan. Id. No change from prior study. UF 51. On December 20, 2004, Dr. Weed requested 13 a consultation with Dr. McDermott for gamma radiation. UF 52. 14 On January 11, 2005, Dr. Weed requested an “urgent” brain MRI and MRA (a study to 15 look at the cerebral vessels). UF 53. The medical necessity was for repeat MRI of the brain with 16 and without contrast and MRA with special attention to cerebella ponitine angle. Id. On January 17 26, 2005, the MRA revealed a negative impression and subtle changes in the right posterior fossa 18 with no clearly defined mass. UF 54. 19 On February 4, 2005, Dr. Weed requested a consult for gamma radiation. UF 55. On 20 February 10, 2005, Plaintiff was seen by Dr. Jacob who noted that Plaintiff attended a clinic to 21 discuss the option of gamma knife radiotherapy to treat the tumor. UF 56. Dr. Jacob’s 22 recommendation was that close observation and follow up was a valid option and that if 23 progression was seen, he would be a candidate for stereotactic radiotherapy (a medical procedure 24 which allows non-invasive treatment of benign and malignant tumors. Id. Acoustic neuromas are 25 benign or non-malignant (not cancer). Id. Dr. Jacob’s recommendation was for observation for 26 now, which was conservative treatment. Id. If the tumor increased, he would recommend 27 radiation therapy. Id. There was no radiological evidence to suggest that Plaintiff indeed had 28 progressive disease at the sight of his original tumor. Id. Plaintiff expressed full understanding of 23 1 the proposed plan. Id. The option of further surgery, versus observation, versus gamma knife 2 therapy of tumor was discussed with Plaintiff. Id. Plaintiff preferred to undergo gamma knife 3 therapy if it was feasible and indicated. Id. 4 On March 18, 2005, Dr. Rees requested an MRI. UF 57. On March 21, 2005, the MRI 5 showed subtle (minimal) changes. Id. On April 29, 2005, Dr. Weed requested an audiometry 6 consultation for testing of Plaintiff’s hearing ability. UF 58. 7 In a letter dated May 25, 2005, written to Dr. Weed by Dr. Jacob, Dr. Jacob stated: the 8 patient had neither radiological nor clinical evidence of progression of his tumor. UF 59. The 9 rightsided cranial nerve palsy remained the same since surgery. Id. The progression of disease 10 was a possibility, but this type of tumor showed a very slow rate of progression, which could take 11 several months or years to manifest clinically or radiologically. Id. Even though radiosurgery is a 12 feasible option, the close proximity of the tumor to the brainstem makes it a technically 13 challenging procedure. Id. There is a low but definite risk of permanent damage to the brainstem 14 as a consequence to this treatment. Id. We recommend an MRI scan at least once every six 15 months along with follow-up to rule out progression. Id. If progression is seen, Plaintiff would 16 then be a candidate for sterotactic radiosurgery. Id. 17 On July 5, 2005 and again on July 18, 2005, Dr. Weed saw Plaintiff in the clinic for 18 complaints of vertigo and nasal congestion. UF 60. He prescribed Meclizine for the vertigo on 19 June 5, 2005 and increased the dosage on July 18, 2005. Id. 20 In November 2005, Plaintiff was released from CDCR custody and held in the Riverside 21 County Jail for six months. UF 61. Plaintiff was transferred to CSH in April 2006 where he still 22 currently resides. Id. 23 On October 31, 2006, Dr. Segal saw Plaintiff for an initial neurosurgical consultation. UF 24 62. Plaintiff’s chief complaints were facial palsy, poor balance, hearing loss, and migraine 25 headaches. Id. Plaintiff wished further treatment for his progressing brain tumor. Id. At this 26 point, Dr. Segal recommended gamma knife. Id. The MRI from September 20, 2006 and the 27 MRI of March 21, 2005 showed a similar-sized tumor. Id. This showed no changes from this last 28 MRI. Id. 24 1 On April 18, 2007, Plaintiff was seen for a gamma radiation consultation by Dr. Hysell. 2 UF 63. Plaintiff knew the risks and benefits and understood and agreed to therapy. Id. On April 3 28, 2007, Plaintiff was seen for the Cyberknife initial evaluation by Dr. Wong. UF 64. On May 4 3, 2007, the MRI impression showed no changes from the prior MRI. UF 65. 5 From May 23, 2007 to May 29, 2007, Plaintiff was treated by Dr. Misra and Dr. Wong for 6 an acoustic neuroma with Cyberknife. UF 66. End of treatment clinical comments read: 7 Cyberknife radiosurgery for recurrent right acoustic neuroma ended successfully on May 29, 8 2007. Id. Plaintiff completed his three outpatient sessions well and experienced no limiting side- 9 effects. Id. His care continues with Dr. Misra and at CSH. Id. 10 On July 11, 2007, Dr. Steven E. Hysell authored a Radiation Oncology SRS Clinic Note 11 about Plaintiff during a clinic visit. UF 67. The note states in relevant part that “Plaintiff is doing 12 exceptionally well post-Cyberknife radiosurgery. Id. He has decreased headaches, decreased 13 dizziness, and increased ability to move his face. Id. The patient states that his hearing deficit in 14 the right ear is unchanged. Id. Overall, his neurological conditions improved. Id. He has no new 15 deficits and he has done well with the Cyberknife treatment.” Id. The plan was for an MRI in two 16 months to evaluate treatment. Id. 17 On November 6, 2007, the MRI impression was stable appearance to right auditory canal 18 and cerebellopontine angle vestibular schwannoma, with both cisternal and intracanalicular 19 components compared with a previous MRI from May 2007. UF 68. The tumor was identical in 20 contour, size, and amount of surrounding mass effect. Id. 21 Defendants claim they never intentionally or deliberately delayed in providing Plaintiff 22 with medical care and/or treatment. (Davis Dec., Doc. 81, Exh. B ¶52; Pappenfus Decl., Doc. 81, 23 Exh. C ¶54; Smith Decl., Doc. 81, Exh. D ¶7.) Defendants assert they never intentionally or 24 deliberately disregarded any known risk and/or serious injury of Plaintiff. Id. Defendants also 25 assert that they did not intentionally or knowingly cause Plaintiff any pain, suffering, injury or 26 harm, and that they were, at all times, motivated by a genuine concern for Plaintiff’s health and 27 well-being, as well as that of the other inmates they served. Id. 28 /// 25 1 b. 2 3 Dr. Davis Defendants argue that Dr. Davis is entitled to summary judgment because he provided Plaintiff with appropriate treatment. 4 From November 1988 to approximately 2004, R. Davis, M.D. worked as Chief Medical 5 Officer (“CMO”) at Avenal State Prison, and in that capacity, his primary job duty was to 6 supervise medical staff who provided medical care and treatment to inmates. UF 2. 7 On March 18, 2003, Dr. Rees referred Plaintiff for an exam/treatment consultation for an 8 MRI, which Dr. Davis approved and signed. UF 11. On April 17, 2003, Dr. Davis signed a 9 Request for Authorization of Temporary Removal for Medical Treatment for a neurosurgery 10 consultation with Dr. Rahimifar at Adventist Health San Joaquin Community Hospital scheduled 11 for April 29, 2003. UF 14. On April 24, 2003, a referral was made by Dr. Rees for an MRI of 12 mastoid temporal bones, which Dr. Davis approved on April 24, 2003. Id. 13 On May 3, 2003, brain surgery was performed on Plaintiff by Dr. Rahimifar. UF 18. On 14 May 7, 2003, Dr. Rees requested authorization of temporary removal for medical treatment for an 15 ENT consult appointment with Dr. Rahimifar, which Dr. Davis approved and signed. UF 21. On 16 May 19, 2003, Dr. Rees requested authorization for temporary removal for medical treatment for 17 an ENT consult, which Dr. Davis approved and signed. UF 24. On May 20, 2003, May 29, 2003, 18 and June 23, 2003, Dr. Rees requested authorization for temporary removal for medical treatment 19 for a follow up appointment with Dr. Rahimifar, which Dr. Davis approved and signed. UF 25, 20 26. On August 14, 2003, Dr. Davis approved Dr. Rees’ request for a consultation for an MRI of 21 the brain, and on August 19, 2003, Plaintiff was transported from Avenal to Coalinga Regional 22 Medical Center for an MRI. UF 31. 23 On August 27, 2003, a memorandum by ASP physician Dr. Douglass to Dr. Davis 24 indicated that he did a chart review pertaining to Plaintiff and stated that Dr. Pineda suggested that 25 there was evidence of brainstem cerebellar involvement. UF 32. Dr. Douglass recommended an 26 ophthalmology consult for a right tarsoplasty, MRI of head, and follow-up with a neurosurgeon 27 for re-evaluation of physical therapy. Id. Dr. Douglass also stated that Plaintiff has had several 28 /// 26 1 seizures; Plaintiff’s seizure medications were adjusted and he was treated with Motrin for 2 headaches. Id. 3 On September 15, 2003, Dr. Davis approved Dr. Rees’ request for authorization of 4 temporary removal of Plaintiff for medical treatment for follow-up post surgery, and on 5 September 23, 2003, Plaintiff was seen for a consultation by Dr. Leramo at Mercy Hospital in 6 Bakersfield. UF 35, 36. 7 On or about October 16, 2003, CMO Dr. Davis drafted a memorandum to Plaintiff in 8 response to his September 24, 2003 letter. UF 38. Dr. Davis indicated that he had again reviewed 9 Plaintiff’s medical records and had made a special appointment with an ENT for an evaluation 10 and recommendations and was coordinating his care and follow-up visits. Id. He noted that 11 Plaintiff was evaluated by ophthalmology regarding his eyelid problem and he had approved the 12 surgery to hopefully correct the problem. Id. In fact, Dr. Davis had requested special permission 13 from CDCR Central Office for the tarsoplasty procedure, which is generally considered a 14 cosmetic procedure. Id. Dr. Davis also noted that Dr. Rahimifar and another neurosurgeon work 15 together closely, so either one could follow up with Plaintiff. Id. Dr. Davis reviewed Plaintiff’s 16 MRI of August 19, 2003, and noted that the results were very good; as such, it was indicated that 17 radiation treatment may be indicated as a safety measure if the next evaluation indicated a need, 18 and that he would schedule this appointment if it became necessary. Id. 19 On October 28, 2003, Dr. Rees requested authorization for temporary removal for medical 20 treatment for follow-up post surgery, which Dr. Davis approved and signed, and on November 4, 21 2003, Plaintiff was seen by Dr. Rahimifar for a consultation. UF 39, 40. 22 Dr. Davis declares that he never intentionally or deliberately delayed in providing Plaintiff 23 with medical care and/or treatment. (Davis Decl., Doc. 81, Exh. B ¶52.) Dr. Davis declares that 24 he never intentionally or deliberately disregarded any known risk and/or serious injury of Plaintiff. 25 Id. Dr. Davis also asserts that he did not intentionally or knowingly cause Plaintiff any pain, 26 suffering, injury or harm, and that he was, at all times, motivated by a genuine concern for 27 Plaintiff’s health and well-being, as well as that of the other inmates he served. Id. 28 /// 27 1 2 3 4 c. Dr. Pappenfus Defendants argue that Dr. Pappenfus is entitled to summary judgment because he provided Plaintiff with appropriate treatment. From June 1991 to June 2006, J. Pappenfus, M.D. worked as a staff physician and surgeon 5 at ASP. UF 3. On June 19, 2003, Dr. Pappenfus prepared a chrono for Plaintiff to be medically 6 unassigned due to his medical condition from June 19, 2003 to September 13, 2003. UF 28. On 7 July 23, 2003, Dr. Pappenfus prepared a chrono for Plaintiff to be totally medically disabled due 8 to his medical condition from July 23, 2003 to April 2, 2004. UF 30. On this date, Dr. Pappenfus 9 also prepared a chrono for Plaintiff to have twenty minutes for each meal and to take meals back 10 to the dorm. Id. At Plaintiff’s appointment with Dr. Rahimifar on June 24, 2003, the doctor 11 requested an ophthalmology consult to do a right tarsoplasty, and Dr. Pappenfus completed the 12 necessary paperwork to comply with the request. UF 33. 13 Dr. Pappenfus declares that he never intentionally or deliberately delayed in providing 14 Plaintiff with medical care and/or treatment. (Pappenfus Decl., Doc. 81, Exh. C ¶54.) Dr. 15 Pappenfus declares that he never intentionally or deliberately disregarded any known risk and/or 16 serious injury of Plaintiff. Id. Dr. Pappenfus also asserts that he did not intentionally or 17 knowingly cause Plaintiff any pain, suffering, injury or harm, and that he was, at all times, 18 motivated by a genuine concern for Plaintiff’s health and well-being, as well as that of the other 19 inmates he served. Id. 20 21 22 23 d. Dr. Weed Defendants argue that Dr. Weed is entitled to summary judgment because he provided Plaintiff with appropriate treatment. From October 1, 2003 to 2008, N. Weed, M.D. worked as a staff physician and surgeon at 24 ASP. UF 4. On December 22, 2003, Dr. Weed requested an MRI for Plaintiff which was taken 25 on December 30, 2003, without contrast which revealed grossly negative MRI, secondary to 26 Plaintiff refusing to return for the post-contrast portion of the study. UF 42. Plaintiff reported 27 allergies to MRI contrast. Id. Records reflect that protocols were put in place to prevent a 28 contrast allergy with previous documented/suspected reactions. Id. 28 1 On January 20, 2004, Plaintiff had an MRI and on January 29, 2004, Dr. Weed saw 2 Plaintiff for a follow-up with the MRI. UF 44. The MRI revealed a stable-appearing residual 3 recurrent tumor. Id. Dr. Weed recommended follow-up for 6 months. Id. 4 Dr. Weed provided numerous chronos to accommodate Plaintiff’s medical condition 5 including: chronos for a double mattress, use of a cane, and lower bunk on November 4, 2004; a 6 chrono for special eye patch from home for Plaintiff to use on December 17, 2004; and a chrono 7 for use of tape to close Plaintiff’s right eye during sleep on February 25, 2005. UF 48. On 8 September 8, 2004, Dr. Weed responded to one of Plaintiff’s appeals (Log #01793) regarding his 9 request for an eye patch. UF 49. Dr. Weed granted his appeal and informed Plaintiff that eye 10 patches were available at the facility medical clinic. Id. 11 On December 20, 2004, Dr. Weed requested a consultation with Dr. McDermott for 12 gamma radiation. UF 52. On January 11, 2005, Dr. Weed requested an “urgent” brain MRI and 13 MRA (a study to look at the cerebral vessels). UF 53. The medical necessity was for repeat MRI 14 of brain with and without contrast and MRA with special attention to cerebella ponitine angle. Id. 15 On January 26, 2005, the MRA revealed a negative impression and subtle changes in the right 16 posterior fossa with no clearly defined mass. UF 54. On February 4, 2005, Dr. Weed requested a 17 consult for gamma radiation, and on February 10, 2005, Plaintiff was seen by Dr. Jacob who noted 18 that Plaintiff attended a clinic to discuss the option of gamma knife radiotherapy to treat the 19 tumor. UF 55, 56. 20 On April 29, 2005, Dr. Weed requested an audiometry consultation for testing of 21 Plaintiff’s hearing ability. UF 58. In a letter dated May 25, 2005, written to Dr. Weed by Dr. 22 Jacob, Dr. Jacob stated: the patient had neither radiological nor clinical evidence of progression of 23 his tumor. UF. 59. 24 On July 5, 2005 and again on July 18, 2005, Dr. Weed saw Plaintiff in the clinic for 25 complaints of vertigo and nasal congestion. UF 60. He prescribed Meclizine for the vertigo on 26 July 5, 2005 and increased the dosage on July 18, 2005. Id. 27 /// 28 /// 29 1 e. 2 3 Dr. Smith From September 11, 1993 to August 31, 2005, D. Smith, M.D. worked as a staff physician and surgeon at ASP. UF 5. 4 On February 27, 2002, Dr. Smith prepared a chrono for Plaintiff indicating that he was fit 5 for assignment only to those duties which were not hazardous to someone with seizures, due to his 6 seizure disorder, and ordered that Plaintiff be assigned to a lower bunk/low tier, and was not to 7 work at a height or near hot spots, moving machinery, or sharp objects. UF 6. On June 4, 2004, 8 Dr. Rees requested authorization for temporary removal for medical treatment for a magnetic 9 resonance imaging diagnostic test (“MRI”) with contrast, and for follow-up consultation with 10 neurosurgeon Dr. Rahimifar, and on June 8, 2004, Plaintiff saw Dr Rahimifar for a consultation. 11 UF 7. The request was authorized by Dr. Smith on June 7, 2004 as Acting CMO in Dr. R. Davis’ 12 absence on that date. Id. Beyond these two events on February 27, 2002 and June 7, 2004, the 13 records do not reflect any involvement by Dr. Smith in Plaintiff’s medical care and treatment. UF 14 8. 15 Dr. Smith declares that he never intentionally or deliberately delayed in providing Plaintiff 16 with medical care and/or treatment. (Smith Decl., Doc. 81, Exh. D ¶7.) Dr. Smith declares that 17 he never intentionally or deliberately disregarded any known risk and/or serious injury of Plaintiff. 18 Id. Dr. Smith also asserts that he did not intentionally or knowingly cause Plaintiff any pain, 19 suffering, injury or harm, and that he was, at all times, motivated by a genuine concern for 20 Plaintiff’s health and well-being, as well as that of the other inmates he served. Id. 21 The Court finds that Defendants have met their initial burden of informing the Court of the 22 basis for their motion, and identifying those portions of the record which they believe demonstrate 23 the absence of a genuine issue of material fact. The burden therefore shifts to Plaintiff to establish 24 that a genuine issue as to any material fact actually does exist. See Matsushita, 475 U.S. at 586. 25 As stated above, in attempting to establish the existence of this factual dispute, Plaintiff may not 26 rely upon the mere allegations or denials of his pleadings, but is required to tender evidence of 27 specific facts in the form of affidavits, and/or admissible discovery material, in support of its 28 /// 30 1 contention that the dispute exists. Rule 56(e); Matsushita, 475 U.S. at 586 n.11; First Nat'l Bank, 2 391 U.S. at 289; Strong, 474 F.2d at 749. 3 2. Discussion 4 Turning to Plaintiff’s position, the Court looks to Plaintiff’s opposition and verified 5 Amended Complaint. (Doc. 8.) The Court considers Plaintiff’s medical records to the extent that 6 the records are clear and speak for themselves. However, to the extent that interpretation of the 7 records by an expert is necessary, Plaintiff’s lay opinions may not be considered. 8 9 Plaintiff complains that Defendants delayed in providing him appropriate medical treatment. Specifically, Plaintiff alleges that Defendants were deliberately indifferent because 10 they did not diagnose his brain tumor before April 2003, and after brain surgery was performed in 11 May 2003, they did not give Plaintiff radiation, physical therapy, eyelid surgery, or a hearing aid 12 during the time he was incarcerated at ASP, through November 19, 2005. 13 Treatment Before Diagnosis 14 Plaintiff alleges that since May 2000, Defendants knew about his medical history dating 15 back to 1995 – with serious symptoms including hearing loss, dizziness, seizures, impaired 16 concentration, constant headaches (with double vision and weakness), speech difficulty, vomiting, 17 clumsy walk, muscle weakness, and impaired vision – but they failed to schedule an MRI or 18 diagnose his brain tumor until April 1, 2003. (Pltf’s Decl, Doc. 83 ¶¶4, 5.) Plaintiff claims that 19 upon his transfer to ASP on May 18, 2000, he immediately and repeatedly requested from 20 Defendants both verbally and in writing that he be provided with diagnostic tests to determine the 21 origin of his medical problems and symptoms so that he could be properly treated. Id. ¶8-11. 22 Plaintiff asserts that he informed Defendants that he suspected a brain tumor was responsible for 23 his symptoms, but he was not provided with any diagnostic tests or a hearing aid. Id. After 24 meeting with Dr. Perry in January 2003, Plaintiff was finally given an MRI on April 1, 2003, 25 resulting in a diagnosis of acoustic neuroma (brain tumor). (UF 9-11; ACP at 5-6.) 26 Dr. Weed could not have known of Plaintiff’s condition before his April 1, 2003 27 diagnosis, because Dr. Weed did not begin working at ASP until October 1, 2003. UF 4. There is 28 also no evidence that Dr. Pappenfus was involved in Plaintiff’s medical care in any way before 31 1 Plaintiff’s diagnosis. There is also no evidence that any of the letters Plaintiff claims he wrote, 2 informing doctors at ASP of his symptoms and requesting treatment, were received by any of the 3 Defendants before Plaintiff’s April 1, 2003 diagnosis. 4 However, it appears that Dr. Smith must have known about Plaintiff’s seizure disorder as 5 early as February 2002, when he prepared a chrono for Plaintiff limiting Plaintiff’s assignments 6 due to his seizure disorder. In addition, Dr. Davis must have known about Plaintiff’s condition on 7 March 18, 2003 when he approved a referral from Dr. Rees for Plaintiff to receive an MRI. UF 6, 8 11. Even so, Plaintiff has not provided any evidence of these two Defendants’ subjective states of 9 mind in deciding his medical care. “Under [the deliberate indifference] standard, the prison 10 official must not only ‘be aware of the facts from which the inference could be drawn that a 11 substantial risk of serious harm exists,’ but that person ‘must also draw the inference.’” Id. at 12 1057 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994). “‘If a prison official should have 13 been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no 14 matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 15 1188 (9th Cir. 2002)). Plaintiff has not shown that any of the Defendants consciously disregarded 16 his need for treatment, whereas Doctors Davis, Pappenfus, and Smith declare that they never 17 refused to provide Plaintiff with appropriate care or treatment, or intentionally or knowingly cause 18 Plaintiff any pain, suffering, injury or harm. (Davis Decl., Doc. 81, Exh. B ¶52; Pappenfus Decl., 19 Doc. 81, Exh. C ¶54; Smith Decl., Doc. 81, Exh. D ¶7. ) 20 Plaintiff has not shown that he suffered further harm between 2000 and 2003 from the 21 delay in his diagnosis. When he arrived at ASP in 2000, five years after he began having 22 symptoms, he already suffered from total hearing loss in his right ear, seizures, dizziness, vertigo, 23 impaired concentration, double vision, weakness, speech difficulty, vomiting, and clumsy walk. 24 (Pltf. Decl., Doc. 83 ¶4.) In July 2002, he reports having dizzy spells, migraine headaches, 25 seizures, and loss of balance with frequent falls. (ACP at 5.) In January 2003, his symptoms were 26 worse, and he had more frequent headaches, seizures, nausea and vomiting, loss of balance 27 requiring use of a cane, loss of hearing, and constant pain. Id. However, Plaintiff has not shown 28 that he suffered more distress as a result of the delay in diagnosis between 2000 and 2003 than he 32 1 would have if the diagnosis was made earlier. Plaintiff’s own evidence shows that the diagnosis 2 and surgery did not alleviate his symptoms. Even though the operation was a success, 3 immediately after surgery and in the following days and months, he experienced total facial 4 paralysis on the right side of his face, could not close his eyelid, and needed a cane to walk. (ACP 5 at 6.) He continued to have seizures, complete loss of hearing in his right ear, nausea and 6 vomiting, and migraine headaches. Id. 7 The most Plaintiff has shown is a difference of opinion between a prisoner-patient and 8 prison medical authorities regarding treatment. However, Plaintiff has not provided any 9 admissible evidence that the course of treatment Defendants chose before his diagnosis was 10 medically unacceptable under the circumstances. As a layman, Plaintiff is not qualified to offer 11 an opinion about whether Defendants should have provided him with an MRI or other diagnostic 12 tests before April 1, 2003. A prisoner’s mere disagreement with diagnosis or treatment does not 13 support a claim of deliberate indifference. Sanchez, 891 F.2d at 242. 14 Treatment After Surgery 15 Plaintiff claims that Defendants were deliberately indifferent because after brain surgery 16 was performed in May 2003, they failed to give him radiation, physical therapy, eyelid surgery, or 17 a hearing aid as recommended by Doctors Pineda, Rahimifar and Leramo, during the time he was 18 incarcerated at ASP. 19 On May 7, 2003, after his surgery, Plaintiff was visited in the hospital by Dr. G. Pineda for 20 a neurological consultation, and Dr. Pineda recommended radiation treatment and physical 21 therapy. (Pltf’s Decl., Doc. 83 ¶22.) On June 24, 2003, Dr. Rahimifar recommended that Plaintiff 22 be given a hearing aid and eyelid surgery. (ACP at 6-7.) On September 23, 2003, Plaintiff was 23 seen for a consultation by Dr. Leramo at Mercy Hospital in Bakersfield, who also recommended 24 radiation treatment for Plaintiff’s remaining brain tumor. (Pltf’s Decl., Doc. 83 ¶38.) In 25 December 2004, Plaintiff was told by Dr. Rahimifar that his brain tumor was growing back and he 26 needed immediate radiation treatment, to be specifically performed at UC San Francisco Medical 27 Center. (ACP at 8.) 28 /// 33 1 Plaintiff provides evidence that he notified all of the Defendants of his symptoms after 2 surgery and requested treatment from them, but they refused to follow Doctors Pineda’s, 3 Rahimifar’s, or Leramo’s recommendations. After surgery, Plaintiff suffered many symptoms, 4 including total paralysis on the right side of his face, an eyelid that would not stay shut, dizziness, 5 seizures, memory loss, impaired concentration, constant headaches (with double vision and 6 weakness), speech difficulty, vomiting, clumsy walk, muscle weakness, and impaired vision. (Id. 7 ¶22.) Plaintiff told all of the Defendants repeatedly that he wanted the radiation treatment 8 recommended by Doctors Pineda and Leramo. (Id. ¶23.) Plaintiff never told any of the 9 Defendants that he did not want gamma radiation treatment on the remaining brain tumor and 10 surrounding tissues and nerves. Id. Plaintiff wrote letters to all of his doctors at ASP, including 11 Doctors Davis, Pappenfus, Weed, and Smith, explaining his medical condition and his need for 12 radiation treatment, physical therapy, eyelid surgery, and a hearing aid. (Id. ¶¶24-30.) Plaintiff 13 was seen by only one physical therapist for one visit, on July 22, 2003, who gave him two neck 14 exercises to do. (Id. ¶34.) On August 27, 2003, Dr. Davis indicated that he reviewed Plaintiff’s 15 chart and stated that Dr. Pineda noted evidence of brainstem cerebellar involvement of Plaintiff’s 16 tumor. (Id. ¶37.) In January 2004 and August 2004, Plaintiff met with Dr. Weed and requested 17 immediate radiation treatment as recommended by Dr. Pineda, and assistance in obtaining 18 physical therapy. Id. ¶¶37, 41. Dr. Weed did not order either of the treatments. Id. Plaintiff 19 continued to write letters to his doctors, but he never received any of the recommended treatments 20 until after he left ASP, and he never received any response to his letters except for a brief response 21 by Dr. Davis to his appeal on July 8, 2003. (Id. ¶44; ACP at 6.) 22 The Court finds evidence that all of the Defendants had some knowledge about Plaintiff’s 23 medical condition after surgery, participated in his medical care, and did not provide Plaintiff with 24 radiation treatment or prolonged physical therapy he requested. 25 With regard to Dr. Davis, although there is no evidence that he met with Plaintiff after 26 surgery, it is undisputed that he authorized Plaintiff’s removal for treatment eight times between 27 May 7, 2003 and October 28, 2003, resulting in further medical care for Plaintiff, including ENT 28 consultations, post-surgery follow-up care, and MRI impressions to monitor the progress of 34 1 Plaintiff’s tumor. UF 21, 24, 25, 26, R31, 35, 39. On October 16, 2003, Dr. Davis drafted a 2 memorandum in response to Plaintiff’s September 24, 2003 letter, indicating he had reviewed 3 Plaintiff’s medical records and was coordinating his care and follow-up visits. UF 38. 4 It is undisputed that on June 19, 2003 and July 23, 2003, Dr. Pappenfus prepared chronos 5 for Plaintiff to be medically unassigned until September 13, 2003, to be totally medically disabled 6 until April 2, 2004, and to be allowed extra privileges at mealtime, due to his medical condition. 7 UF 30. On June 24, 2003, Dr. Pappenfus completed the paperwork for Plaintiff’s ophthalmology 8 consultation. UF 33. 9 It is undisputed that Dr. Weed requested an MRI for Plaintiff on December 22, 2003 and 10 followed up on January 29, 2004. UF 42, 44. Dr. Weed also prepared medical chronos for 11 Plaintiff, granted Plaintiff’s appeal for eye patches, requested consultations for radiation and 12 audiometry, requested an MRI and MRA, and treated Plaintiff for verdigo. UF 48, 49, 52, 53, 55, 13 58, 60. 14 It is also undisputed that Dr. Smith was involved on two occasions with Plaintiff’s medical 15 care, when he prepared a medical chrono for Plaintiff on February 27, 2004, and when he 16 authorized Plaintiff’s removal for treatment on June 7, 2004. UF 6, 7. 17 Plaintiff has not provided any evidence that any of the Defendants purposely acted or 18 failed to act in disregard of his medical needs. Dr. Davis, Dr. Pappenfus, and Dr. Smith declare 19 that they never intentionally or deliberately delayed in providing Plaintiff with medical care and/or 20 treatment or disregarded any known risk and/or serious injury of Plaintiff, and they were always 21 motivated by a genuine concern for Plaintiff’s health and well-being. (Davis Decl., Doc. 81, Exh. 22 B ¶52; Pappenfus Decl., Doc. 81, Exh. C ¶54; Smith Decl., Doc. 81, Exh. D ¶7.) 23 The most Plaintiff has shown is a difference of opinion between a prisoner-patient and 24 prison medical authorities, or a difference of opinion between medical personnel, regarding 25 Plaintiff’s treatment after surgery. Plaintiff has not provided any admissible evidence that 26 Defendants ever acted in contradiction to established medical practice. As a layman, Plaintiff is 27 not qualified to offer an opinion about whether Defendants should have acted to provide him with 28 radiation, physical therapy, or other treatments after surgery. 35 1 In light of the foregoing, the Court finds that Plaintiff has not provided admissible 2 evidence that Defendants acted, or failed to act, with deliberate indifference to his serious medical 3 needs. Thus, the Court finds that Plaintiff has not established the existence of triable issues of 4 material fact as to his Eighth Amendment medical care claim against Defendants Dr. R. Davis, 5 Dr. D. Smith, Dr. N. Weed, and Dr. J. Pappenfus, and that these four Defendants are entitled to 6 judgment as a matter of law. 7 C. 8 Defendants argue that they are entitled to qualified immunity. Government officials enjoy 9 qualified immunity from civil damages unless their conduct violates “clearly established statutory 10 or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 11 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982). “Qualified immunity balances two important 12 interests - the need to hold public officials accountable when they exercise power irresponsibly 13 and the need to shield officials from harassment, distraction, and liability when they perform their 14 duties reasonably,” Pearson v. Callahan, 129 S.Ct. 808, 815 (2009), and protects “all but the 15 plainly incompetent or those who knowingly violate the law,” Malley v. Briggs, 475 U.S. 335, 16 341, 106 S.Ct. 1092, 1096 (1986). 17 Qualified Immunity In resolving a claim of qualified immunity, courts must determine whether, taken in the 18 light most favorable to the plaintiff, the defendant’s conduct violated a constitutional right, and if 19 so, whether the right was clearly established. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 20 2156 (2001); McSherry v. City of Long Beach, 560 F.3d 1125, 1129-30 (9th Cir. 2009). While 21 often beneficial to address in that order, courts have discretion to address the two-step inquiry in 22 the order they deem most suitable under the circumstances. Pearson, 129 S.Ct. at 818 (overruling 23 holding in Saucier that the two-step inquiry must be conducted in that order, and the second step 24 is reached only if the court first finds a constitutional violation); McSherry, 560 F.3d at 1130. 25 As discussed above, the Court finds that Defendants did not violate Plaintiff’s 26 constitutional rights. Therefore, the issue of qualified immunity shall not be addressed. 27 /// 28 /// 36 1 2 VI. RECOMMENDATIONS AND CONCLUSION The Court concludes that Defendants Dr. R. Davis, Dr. D. Smith, Dr. N. Weed, and Dr. J. 3 Pappenfus are entitled to judgment as a matter of law because Plaintiff has not established the 4 existence of triable issues of material fact as to his Eighth Amendment medical care claim against 5 them. Accordingly, the Court RECOMMENDS that Defendants’ motion for summary 6 adjudication of the claims against them be GRANTED. 7 These Findings and Recommendations shall be submitted to the United States District 8 Court Judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B). 9 Within twenty (20) days after being served with a copy of these Findings and Recommendations, 10 any party may file written objections with the Court and serve a copy on all parties. Such a 11 document should be captioned “Objections to Magistrate Judge’s Findings and 12 Recommendations.” The parties are advised that failure to file objections within the specified 13 time may waive the right to appeal the order of the district court. Martinez v. Ylst, 951 F.2d 1153 14 (9th Cir. 1991). 15 16 17 IT IS SO ORDERED. Dated: 6i0kij February 24, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 37

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