(PC) Uribe v. McGuinness et al, No. 1:2007cv01064 - Document 138 (E.D. Cal. 2010)

Court Description: ORDER GRANTING 114 Defendant's Motion for Summary Judgment signed by District Judge G. Murray Snow on 11/12/2010. CASE CLOSED. (Jessen, A)
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(PC) Uribe v. McGuinness et al 1 Doc. 138 WO 2 NOT FOR PUBLICATION 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 Cesar Uribe, 10 11 Plaintiff, vs. 12 P.A. McGuinness, et al., 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. 1:07-cv-1064-GMS-PHX ORDER 15 16 Plaintiff Cesar Uribe brought this civil rights action under 42 U.S.C. § 1983 against 17 Defendant Dr. Nandan Bhatt, a physician at the California Substance Abuse Treatment 18 Facility (“CSATF”).1 Pending before this Court is Defendant’s Motion for Summary 19 Judgment or, in the alternative, Summary Adjudication of Issues (Doc. 114). For the reasons 20 set forth below, the Court grants Defendant’s Motion.2 21 BACKGROUND 22 I. 23 Factual Background The parties’ statements set out the following facts. Plaintiff Uribe is an inmate 24 25 26 1 Defendant Bhatt is the only remaining Defendant in this action because P.A. McGuinness was terminated on June 2, 2009 (Doc. 50), and Benjamin Edger was voluntarily dismissed on May 28, 2010 (Doc. 116). 27 2 28 Because summary judgment is rendered on the entire action, Defendant’s alternative motion for summary adjudication is moot. F ED. R. C IV. P. 56(d). Dockets.Justia.com 1 incarcerated in the California Department of Corrections and Rehabilitation (“CDCR”) and 2 housed at the CSATF in Corcoran, California. (Doc. 129). Plaintiff Uribe was diagnosed 3 with testicular cancer in March 2004, and from December 2, 2004 through January 7, 2005, 4 Plaintiff underwent radiation treatment for his cancer at the Florence R. Wheeler Cancer 5 Center (“FWCC”), located outside of the correctional facility. (Id.). 6 Defendant, Dr. Bhatt, is a duly licensed primary care doctor employed by CDCR at 7 CSATF. (Id.). In this capacity, Dr. Bhatt evaluates patients’ medical condition, treats those 8 conditions that he is qualified to treat, and refers those whose medical condition is beyond 9 his general scope of competence to outside physicians. (Id.). Under California Regulations, 10 only CDCR facility-employed health care staff, contractors paid to perform health services 11 for the facility, or persons employed as health care consultants are permitted, within the 12 scope of their licensure, to diagnose illness or prescribe medication and health care treatment 13 for inmates at CDCR institutions. 15 C.C.R. § 3354 (2010).3 14 Dr. Bhatt first became involved in Plaintiff Uribe’s radiation treatment for his cancer 15 on December 6, 2004, when he was informed that Mr. Uribe had undergone treatment at 16 FWCC and was advised that he had been prescribed Zofran, an anti-nausea medication, by 17 Dr. Davis, the outside oncologist. (Id.). On that day, Dr. Bhatt prescribed Mr. Uribe a thirty- 18 day supply of metoclopramide (brand name: Regan) for mitigating potential nausea resulting 19 from the radiation. (Id.). However, the pharmacy erroneously issued Plaintiff only a ten-day 20 supply of metoclopramide pills. (Id.). 21 On December 9, 2004, Dr. Bhatt saw Mr. Uribe at the clinic. Mr. Uribe informed 22 Defendant that he was undergoing radiation therapy. (Id.). Plaintiff alleges that during that 23 visit he told Dr. Bhatt that the metoclopramide pills he had prescribed were not working and 24 that he was still feeling sick. (Doc. 128). 25 On or about December 21, 2004, upon recommendation by a physician at FWCC, Dr. 26 3 27 28 Section 3354 further states that, “[h]ealth care personnel not employed by the department are not authorized to order treatment for an inmate. Such persons may offer opinions and recommendations for consideration by department health care staff . . .” -2- 1 Bhatt prescribed Plaintiff a dietary supplement called Resource, to be taken three times a day 2 for 90 days. (Doc. 129). Plaintiff alleges that he only received Resource for “about 2 days”. 3 (Doc. 128). On January 3, 2005, based on the recommendation of the outside oncologist, 4 another CDCR physician, Dr. Nguyen, prescribed Mr. Uribe Compazine for his nausea 5 symptoms. (Doc. 129). On that day, Mr. Uribe complained of occasional nausea but no 6 vomiting. (Doc. 114). 7 A few days later, on January 7, 2005, Dr. Bhatt saw Mr. Uribe in the clinic again. 8 (Doc. 129). At that time Mr. Uribe said that he required Resource and complained of a rash 9 on his left arm. (Id.). Dr. Bhatt observed a small macular puritic rash on Mr. Uribe’s arm and 10 prescribed him a cream. (Id.). He also noted that Plaintiff’s weight was 135 pounds, down 11 from 139 pounds one month earlier, on December 9, 2004. (Id.). Otherwise, Mr. Uribe had 12 no new complaints, and admits that at this time he did not bother to tell Dr. Bhatt about his 13 nausea. (Doc. 128). At this visit, Dr. Bhatt changed Plaintiff’s anti-nausea medication from 14 Compazine, which had been prescribed a few days earlier, to Phenergan for 90 days, as per 15 the recommendation of the treating oncologist. (Doc. 129). Dr. Bhatt also ordered that Mr. 16 Uribe be continued on Resource. (Id.). 17 Dr. Bhatt’s next involvement with Mr. Uribe was not until March 3, 2005, when he 18 interviewed Plaintiff with respect to his 602 Administrative Appeal, filed on January 2, 2005. 19 (Id.). After reviewing Mr. Uribe’s medical file, Dr. Bhatt determined that all of the various 20 anti-nausea medications prescribed to Plaintiff, including Metoclopramide, Compazine, and 21 Phenergan, were all appropriate. (Id.). Dr. Bhatt further determined that there was no 22 evidence in the file that Mr. Uribe ever had problems with any of the medication provided 23 at CSATF, that anyone on the staff had treated him with deliberate indifference or that he had 24 suffered any harm as a result of the staff’s conduct in responding to his need for anti-nausea 25 medication. (Id.). Thus, Dr. Bhatt denied Mr. Uribe’s 602 Appeal. (Id.). On July 12, 2005, 26 Plaintiff’s 602 Appeal was partially granted by the Director’s Review Level, but the Chief 27 of Inmate Appeals was unable to grant the monetary relief that Mr. Uribe requested, thereby 28 -3- 1 prompting the present matter before the Court. Accordingly, Plaintiff has exhausted all 2 administrative remedies available to him. 3 Mr. Uribe filed his original Complaint in this action on June 25, 2007. (Doc. 1). A 4 First Amended Complaint was filed on August 18, 2009. (Doc. 75). Plaintiff contends that 5 as a result of Dr. Bhatt’s deliberate indifference in initially prescribing Regan 6 metoclopramide instead of Zofran, and his subsequent denial of any medication from 7 December 14, 2004 to January 6, 2005, Plaintiff experienced nausea and vomiting, which led 8 to hunger, headaches, fatigue, tiredness, abdominal pain, and weight loss. 9 DISCUSSION 10 I. Legal Standard 11 Summary judgment is appropriate if the evidence, viewed in the light most favorable 12 to the nonmoving party, demonstrates “that there is no genuine issue as to any material fact 13 and that the movant is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(c)(2). 14 Substantive law determines which facts are material[] and “[o]nly disputes over facts that 15 might affect the outcome of the suit under the governing law will properly preclude the entry 16 of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A fact 17 issue is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the 18 nonmoving party.’” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) 19 (quoting Anderson, 477 U.S. at 248). When the nonmoving party “bear[s] the burden of proof 20 at trial as to an element essential to its case, and that party fails to make a showing sufficient 21 to establish a genuine dispute of fact with respect to the existence of that element, then 22 summary judgment is appropriate.” Cal. Architectural Bldg. Prods., Inc. v. Franciscan 23 Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 24 U.S. 317, 322–23 (1986)). At summary judgment, the judge’s function is not to weigh the 25 evidence and determine the truth but to determine whether there is a genuine issue for trial. 26 Anderson, 477 U.S. at 249. 27 The Court is mindful that Plaintiff is proceeding pro se and is incarcerated. “Pro se 28 -4- 1 prison inmates, with limited access to legal materials, occupy a position significantly 2 different from that occupied by litigants represented by counsel.” Jacobsen v. Filler, 790 3 F.2d 1362, 1365 n.4 (9th Cir. 1986) (citation omitted). Courts have a duty to liberally 4 construe the pleadings of pro se litigants, particularly those filed by pro se prisoners. See 5 Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001). Pro se litigants are nonetheless bound 6 by “the same rules of procedure that govern other litigants,” King v. Atiyeh, 814 F.2d 565, 7 567 (9th Cir.1987), including Rule 56’s requirement that a nonmoving party “must present 8 some significant probative evidence tending to support the complaint” to survive summary 9 judgment. Franklin v. Murphy, 745 F.2d 1221, 1235 (9th Cir.1984) (citation and internal 10 quotes omitted). 11 II. Analysis 12 A. Eighth Amendment Claim 13 Prison officials “violate a prisoner’s Eighth Amendment rights if they are deliberately 14 indifferent to his serious medical needs.” Anderson v. County of Kern, 45 F.3d 1310, 1316 15 (9th Cir. 1995) (citing Estelle v. Gamble, 429 U.S. 97, 105–06 (1976)). A plaintiff must 16 show (1) a serious medical need and (2) that the defendant’s response was deliberately 17 indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 18 A serious medical need exists whenever the “failure to treat a prisoner’s condition 19 could result in further significant injury or the unnecessary and wanton infliction of pain.” 20 Clement v. Gomez, 298 F.3d 898 (9th Cir. 2002) (internal citation omitted) (citing McGuckin 21 v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., 22 Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). Examples of serious medical needs 23 include the existence of an injury that a reasonable doctor or patient would find important 24 and worthy of comment or treatment, the presence of a medical condition that significantly 25 affects an individual’s daily activities, or the existence of chronic and substantial pain. 26 McGuckin, 974 F.2d at 1059–60. 27 The Court recognizes that frequent nausea and vomiting for a period of approximately 28 -5- 1 one month is something a reasonable doctor would find worthy of comment. In the instant 2 case, over the course of his five-week radiation treatment, Mr. Uribe was prescribed three 3 different types of anti-nausea medication by three different doctors. Moreover, Plaintiff has 4 indicated that his symptoms significantly affected his daily activities such that he stopped 5 eating full meals, and was unable to think clearly, to work a full day, or to participate in 6 recreational activities. (Doc. 128). Finally, Mr. Uribe claims that as a result of vomiting or 7 retching at least twice a day, he experienced substantial abdominal pain. (Id.). Taken together 8 with the fact that a failure to treat Mr. Uribe’s persistent and frequent nausea and vomiting 9 could result in further significant injury to him, the Court finds that Plaintiff demonstrated 10 a serious medical need. 11 The Court next turns to the subjective prong – whether Defendants’ response to 12 Plaintiff’s serious medical need was deliberately indifferent. See Jett, 439 F.3d at 1096. A 13 prison official is deliberately indifferent if he both knows of and disregards an excessive risk 14 to an inmate’s health. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The deliberate 15 indifference prong is satisfied by showing (a) a purposeful act or failure to respond to a 16 prisoner’s pain or medical need and (b) harm caused by the indifference. Jett, 439 F.3d at 17 1096. 18 Plaintiff’s deliberate indifference claim is based on two allegations: 1) that Defendant 19 Bhatt disregarded Dr. Davis’ prescription for Zofran and instead “intentionally replaced it 20 with his own incorrect prescription of ‘chemo-therapy-patient’ nausea medication” (Doc. 75), 21 and 2) that this intentional error was compounded by the undisputed fact that CSATF 22 pharmacy only dispensed a ten-day supply of metoclopramide as opposed to a thirty-day 23 supply, thus denying Plaintiff any medication for several weeks. (Id.). 24 Dr. Bhatt maintains that, “[t]here are several medications available for treating nausea 25 and vomiting that can be used interchangeably” and that metoclopramide is “an appropriate 26 anti-nausea medication to mitigate potential nausea resulting from radiation therapy.” (Doc. 27 114, Ex. E). The only probative evidence that Plaintiff supplies in opposition to Dr. Bhatt’s 28 -6- 1 assertion is an excerpt from the Physicians’ Desk Reference (“PDR”) regarding Zofran.4 2 (Doc. 133, Ex. D). Upon close reading of the excerpt, however, the Court does not find the 3 PDR entry to support Plaintiff’s allegation. The only mention of metoclopramide is in the 4 section titled “Clinical Trials,” which notes that Zofran was significantly more effective than 5 metoclopramide in a trial involving patients receiving single high-dose radiotherapy. Plaintiff 6 did not undergo single high-dose radiotherapy, but rather was treated daily for a period of 7 five weeks. Accordingly, Plaintiff’s reliance on the PDR’s reference to a single clinical trial 8 that did not mirror his circumstances is misplaced. 9 Plaintiff also seems to suggest that metoclopramide is not as effective as Zofran 10 because on the two isolated instances where Dr. Davis provided him with a single tablet of 11 Zofran, once on the second day of his treatment and again on December 27, 2004, he did not 12 suffer from nausea and vomiting. (Doc. 128). Even if this Court were to assume in the 13 absence of testimony from Dr. Davis that Dr. Davis believed Zofran to be the more effective 14 medication, “a mere ‘difference of medical opinion . . .[is] insufficient . . . to establish 15 deliberate indifference.’” Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (citation 16 omitted); Sanchez v. Vild, 891 F.2d 240 (9th Cir. 1989) (holding that a difference of medical 17 opinion as to treatment of a prisoner did not amount to deliberate indifference of a prisoner’s 18 serious medical needs). To prevail on a claim involving choices between alternative courses 19 of treatment, a prisoner must show that the course of treatment the doctor chose was 20 medically unacceptable in light of the circumstances and that it was chosen in conscious 21 disregard of an excessive risk to plaintiff’s health. Jackson v. McIntosh, 90 F.3d 330, 332 22 (9th Cir. 1996). Plaintiff has not demonstrated, through expert testimony or otherwise, that 23 Dr. Bhatt’s decision to prescribe metoclopramide was either medically unacceptable or done 24 in conscious disregard to his health. Under 15 C.C.R. §3354, outside physicians are not 25 26 27 28 4 The Court cannot afford any weight to Dr. Davis’ purported statement, as reported by Plaintiff, that metoclopramide was “only effective with chemotherapy patients and completely useless for radiation-therapy patients.” (Doc. 128, 130). This statement constitutes inadmissible hearsay. F ED. R. E VID. 801, 802. -7- 1 authorized to order treatment for an inmate and Dr. Bhatt was not required to follow Dr. 2 Davis’ recommendation to prescribe Zofran. Furthermore, Dr. Bhatt contends that when a 3 medication recommended by an outside consultant physician is unavailable in a CDCR 4 institution, or if the CDCR physician believes that an equally effective medication is 5 preferable, a CDCR physician may instead prescribe a different but equivalent medication 6 which is available in the facility. (Doc. 114, Ex. E). Thus, it remained well within Dr. Bhatt’s 7 discretion to prescribe Plaintiff metoclopramide, which in his medical opinion was as 8 effective as Zofran. 9 The second part of Plaintiff’s deliberate indifference claim stems from the undisputed 10 fact that CSATF pharmacy only dispensed a ten-day supply of metoclopramide as opposed 11 to a thirty-day supply, thereby denying Plaintiff medication for a period of time. Plaintiff has 12 failed to present evidence upon which a reasonable jury could conclude that Dr. Bhatt may 13 be liable for the pharmacy’s failure when it is undisputed that his prescription correctly called 14 for a thirty-day supply. Moreover, Plaintiff failed to name the CSATF pharmacy staff in this 15 action. 16 Plaintiff claims that contrary to Dr. Bhatt’s contention that he was not aware of 17 Plaintiff’s need for more medication, Defendant was put on notice because Dr. Davis 18 repeatedly gave the escorting officers who transported Plaintiff to and from FWCC a 19 prescription to hand deliver to the CSATF medical staff. (Doc. 128). Also, on one occasion 20 Dr. Davis’ nurse picked up the phone and called someone, presumably the CSATF medical 21 staff, after Mr. Uribe complained about the lack of medication. (Id.). However, apart from 22 Dr. Davis’ prescription for Compazine, dated January 3, 2005, which was issued by Dr. 23 Nguyen on the same day, Plaintiff has not submitted any probative evidence in support of his 24 allegations. Plaintiff also fails to submit admissible evidence that these intermediaries 25 actually informed Dr. Bhatt of his need for more medication. Thus, Plaintiff has not met his 26 burden of demonstrating that there exists a genuine issue of material fact as to whether Dr. 27 Bhatt was on notice. Accordingly, Plaintiff has failed to satisfy the first element of a 28 -8- 1 deliberate indifference claim, namely that Dr. Bhatt engaged in a purposeful act or failed to 2 respond to Mr. Uribe’s pain or medical need. Plaintiff has not provided admissible evidence 3 that Defendant either prescribed the wrong medication or purposefully denied him an 4 adequate quantity. Thus, Defendant is entitled to summary judgment on this claim.5 5 B. 6 In his motion for summary judgment, Defendant Bhatt contends that he is entitled to 7 qualified immunity for Plaintiff’s § 1983 claims. As discussed in section II(A) above, 8 Plaintiff has not made a prima facie showing that Dr. Bhatt violated his Eighth Amendment 9 rights through deliberate indifference to Mr. Uribe’s serious medical needs, thereby 10 Qualified Immunity precluding the need for a qualified immunity analysis by the Court. 11 C. 12 On August 25, 2005, Mr. Uribe filed an application to present a late claim to the 13 California Victim Compensation and Government Claims Board (“CVCGCB”). (Doc. 114, 14 Ex. D). He alleged that the incident occurred between December 2, 2004 and January 6, 15 2005, when he was denied anti-nausea medication during radiation treatment for cancer. 16 (Id.). On November 30, 2005, CVCGCB advised Mr. Uribe that its staff was recommending 17 that his application be rejected, and on February 1, 2006, CVCGCB notified Mr. Uribe that 18 it had rejected his application for leave to file a late claim. (Id.). State Law Claim for Medical Malpractice 19 In his motion for summary judgment, Defendant argues that Mr. Uribe failed to satisfy 20 the tort claim presentation prerequisite for a claim of relief under California state law for 21 medical malpractice and that there’s no evidence that Dr. Bhatt’s actions were below the 22 applicable standard of care or caused injury to Mr. Uribe. The Court has reviewed Plaintiff’s 23 Complaint (Doc. 1), First Amended Complaint (Doc. 75), Opposition to the Defendant’s 24 Motion for Summary Judgment (Doc. 128), and Declaration in Support of Opposition to 25 26 27 28 5 By conclusively finding that Defendant did not purposefully act or fail to respond to Mr. Uribe’s pain or medical need, the Court finds it unnecessary to discuss the second element of a deliberate indifference finding, namely whether the indifference caused Plaintiff any harm. Jett, 439 F.3d at 1096. -9- 1 Defendant’s Motion for Summary Judgment (Doc. 130) and has not found any claim for 2 medical malpractice under state law. In fact, in the Plaintiff’s Reproduction of Defendant’s 3 Statement of Allegedly Undisputed Material Facts, he admits that he has not expressly made 4 a claim for relief under California law nor alleged compliance with the claim presentation 5 of the California Tort Claims Act in either his original Complaint or First Amended 6 Complaint. (Doc. 129). Given that the scope of this Court’s ruling can not exceed the scope 7 of Plaintiff’s arguments, there are no state law claims for the Court to consider. 8 9 10 11 12 13 CONCLUSION Plaintiff has not raised any issues of material fact to support his allegation that the Defendant violated his rights under the Eighth Amendment. IT IS THEREFORE ORDERED that Defendant’s Motion for Summary Judgment (Doc. 114) is GRANTED. DATED this 12th day of November, 2010. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 10 -