(PC) Hunter v. White, et al., No. 1:2013cv01681 - Document 54 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS recommending that 41 Plaintiff's Motion for Partial Summary Judgment be DENIED and 40 Defendant's Motion for Summary Judgment be GRANTED re 23 Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Gary S. Austin on 5/23/2018. Referred to Judge Drozd. Objections to F&R due within fourteen (14) days. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DEMONDZA HUNTER, 12 Plaintiff, 13 14 v. 1:13-cv-01681-DAD-GSA-PC FINDINGS AND RECOMMENDATIONS REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT (ECF Nos. 40, 41.) W. WHITE, et al., 15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 16 17 18 I. INTRODUCTION 19 Demondza Hunter (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds 21 with Plaintiff’s Third Amended Complaint filed on July 18, 2016, against sole defendant 22 Physician Assistant Clement Ogbuehi (“Defendant”), on Plaintiff’s claims for inadequate 23 medical care under the Eighth Amendment.1 (ECF No. 23.) 24 25 26 27 28 1 Plaintiff’s only remaining claims are against defendant Clement Ogbuehi, Physician Assistant, for failing to refer Plaintiff to a specialist for treatment, and for improperly prescribing pain medications that caused Plaintiff to suffer internal bleeding, in violation of the Eighth Amendment. All other claims and defendants were dismissed by the court’s orders issued on June 17, 2015 (ECF No. 9), March 15, 2016 (ECF No. 18), and June 15, 2016 (ECF No. 22). Plaintiff’s claims for retaliation, for state law medical malpractice, for destroying his personal property, for “secondary medical needs,” and for labeling him as a “snitch” were dismissed from this action based on Plaintiff’s failure to state a claim. (Id.) 1 1 Currently before the court are the parties’ cross-motions for summary judgment. For 2 the reasons set forth below, the court recommends that Plaintiff’s motion for summary 3 judgment be denied, and Defendant’s motion for summary judgment be granted. 4 II. PROCEDURAL BACKGROUND 5 On September 5, 2017, defendant Ogbuehi filed a motion for summary judgment, or in 6 the alternative, for partial summary judgment.2 (ECF No. 40.) On September 11, 2017, 7 Plaintiff filed a cross-motion for partial summary judgment. 8 September 29, 2017, Defendant filed an opposition to Plaintiff’s cross-motion. (ECF 9 No. 44.) (ECF No. 41.) On On November 15, 2017, Plaintiff filed a notice of non-opposition to 10 Defendant’s motion. (ECF No. 47.) On November 17, 2017, Defendant filed objections 11 to Plaintiff’s notice of non-opposition, which the court addressed in its May 7, 2018 12 order. (ECF No. 53.) The cross-motions are deemed submitted. Local Rule 230(l). 13 III. SUMMARY JUDGMENT STANDARD 14 Any party may move for summary judgment, and the court shall grant summary 15 judgment if the movant shows that there is no genuine dispute as to any material fact and the 16 movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks 17 omitted); Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s 18 position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to 19 particular parts of materials in the record, including but not limited to depositions, documents, 20 declarations, or discovery; or (2) showing that the materials cited do not establish the presence 21 or absence of a genuine dispute or that the opposing party cannot produce admissible evidence 22 to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The court may consider 23 other materials in the record not cited to by the parties, but it is not required to do so. Fed. R. 24 Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 25 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 26 27 28 2 On September 5, 2017, Defendant served Plaintiff with the requisite notice of the requirements for opposing the motion for summary judgment. Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998). (ECF No. 40.) 2 1 In resolving cross-motions for summary judgment, the court must consider each party’s 2 evidence. Johnson v. Poway Unified School Dist., 658 F.3d 954, 960 (9th Cir. 2011), cert. 3 denied, 132 S.Ct. 1807. Plaintiff bears the burden of proof at trial, and to prevail on summary 4 judgment, he must affirmatively demonstrate that no reasonable trier of fact could find other 5 than for him. 6 Defendants do not bear the burden of proof at trial and in moving for summary judgment, they 7 need only prove an absence of evidence to support Plaintiff=s case. 8 Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010). Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). In re Oracle Corp. 9 In judging the evidence at the summary judgment stage, the court may not make 10 credibility determinations or weigh conflicting evidence, Soremekun, 509 F.3d at 984 (9th Cir. 11 2007) (quotation marks and citation omitted), and it must draw all inferences in the light most 12 favorable to the nonmoving party and determine whether a genuine issue of material fact 13 precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo 14 Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted). The court 15 determines only whether there is a genuine issue for trial. Thomas v. Ponder, 611 F.3d 1144, 16 1150 (9th Cir. 2010) (quotation marks and citations omitted). 17 Because this court must liberally construe pro se pleadings, the arguments and evidence 18 submitted in support of Plaintiff’s cross-motion for summary judgment, (ECF No. 41), will be 19 considered in tandem with, and as part of, Plaintiff’s opposition to Defendant’s motion for 20 summary judgment. 21 In arriving at these findings and recommendations, the court carefully reviewed and 22 considered all arguments, points and authorities, declarations, exhibits, statements of 23 undisputed facts and responses thereto, if any, objections, and other papers filed by the parties. 24 Omission of reference to an argument, document, paper, or objection is not to be construed to 25 the effect that this court did not consider the argument, document, paper, or objection. This 26 court thoroughly reviewed and considered the evidence it deemed admissible, material, and 27 appropriate. 28 /// 3 1 IV. DEFENDANT’S EVIDENTIARY OBJECTIONS 2 On September 29, 2017, Defendant filed evidentiary objections to twenty-one of the 3 assertions in Plaintiff’s declaration on grounds of relevance, hearsay, misstatement of 4 documents, and lack of personal knowledge. (ECF No. 43.) 5 In a motion for summary judgment, “a party does not necessarily have to produce 6 evidence in a form that would be admissible at trial.” See Block v. City of Los Angeles, 253 7 F.3d 410, 418-19 (9th Cir. 2001). 8 admissible’, not that it presently be admissible.” Burch v. Regents of Univ. of Cal., 433 F. 9 Supp. 2d 1110, 1120 (E.D. Cal. 2006); see also Comite de Jornaleros de Redondo Beach, 657 10 F.3d at 964 n.7 (“Rule 56 is precisely worded to exclude evidence only if it’s clear that it 11 cannot be presented in an admissible form at trial.”) Thus, “[t]he focus is on the admissibility 12 of the evidence’s contents, not its form.” Estate of Hernandez-Rojas ex rel. Hernandez v. 13 United States, 62 F. Supp. 3d 1169, 1174 (S.D. Cal. 2014) (citing Fonseca v. Sysco Food Servs. 14 of Ariz., Inc., 374 F.3d 840, 846 (9th Cir. 2004)). “Rule 56[(c)] requires only that evidence ‘would be 15 While a court will consider a party’s evidentiary objections to a motion for summary 16 judgment, “[o]bjections such as lack of foundation, speculation, hearsay and relevance are 17 duplicative of the summary judgment standard itself.” All Star Seed v. Nationwide 18 Agribusiness Ins. Co., No. 12CV146 L BLM, 2014 WL 1286561, at *16-17 (S.D. Cal. Mar. 31, 19 2014) (citing Burch, 433 F. Supp. 2d at 1119-20; see also Comite de Jornaleros de Redondo 20 Beach, 657 F.3d at 964 n.7 (“[Rule] 56(c)(2) permits a party to ‘object that the material cited to 21 support or dispute a fact cannot be presented in a form that would be admissible in evidence’ ” 22 (quoting Fed. R. Civ. P. 56)). 23 The court declines to address each of Defendant’s objections, and will instead grant or 24 deny an objection as needed for this order. The court finds Defendant’s hearsay objections to be 25 “boilerplate recitations of evidentiary principles or blanket objections without analysis applied 26 to specific items of evidence,” which should be rejected. Stonefire Grill, Inc. v. FGF Brands, 27 Inc., 987 F. Supp. 2d 1023, 1033 (C.D. Cal. 2013) (quoting Doe v. Starbucks, Inc., 2009 WL 28 5183773, at *1 (C.D. Cal. Dec. 18, 2009)). Thus, the court will address any specific objections 4 1 as needed for its ruling on these summary judgment motions. Otherwise, the evidentiary 2 objections are denied as unnecessary to address. 3 V. SUMMARY OF ALLEGATIONS IN THE THIRD AMENDED COMPLAINT3 4 Plaintiff is currently incarcerated at the California State Prison–Sacramento in Represa, 5 California. Plaintiff’s claims in the operative Third Amended Complaint arose while he was 6 incarcerated at the California Substance Abuse Treatment Facility (SATF) in Corcoran, 7 California. Plaintiff brings Eighth Amendment medical claims against defendant Physician 8 Assistant Clement Ogbuehi, his primary care provider at SATF. 9 Plaintiff alleges that defendant Ogbuehi denied him access to medical care. From 10 August 25, 2011, through December 12, 2012, Plaintiff repeatedly submitted Health Care 11 Services Request Forms complaining of low back pain, pain in back of his right thigh, right 12 buttock pain, and pinching sensations with walking, numbness, and muscle contractions, all 13 which interfere with his daily activities and sleep at night. From September 8, 2011, through 14 November 8, 2012, defendant Ogbuehi conducted at least six follow-up medical visits 15 concerning Plaintiff’s prior spine condition dating back to 1987. Defendant Ogbuehi ignored 16 Plaintiff’s pleas to investigate his current complaints. During a visit on April 19, 2012, 17 defendant Ogbuehi told Plaintiff that if he had not snitched on Ogbuehi’s co-workers, Ogbuehi 18 would have investigated Plaintiff’s medical complaints. Defendant Ogbuehi did not have any 19 training in neurological conditions diagnoses, and there was no available doctor with such 20 training at SATF, so defendant Ogbuehi would have had to complete a referral for services to 21 have a doctor outside of SATF investigate Plaintiff’s medical complaints. In addition, on May 22 30, 2012, defendant Ogbuehi prescribed the medication Naproxen for Plaintiff based on 23 Plaintiff’s prior medical condition, notwithstanding that Plaintiff’s blood count test disclosed a 24 diagnosis indicative of internal bleeding caused by Naproxen. On August 2, 2012, defendant 25 26 27 28 3 Plaintiff’s Third Amended Complaint is verified and his allegations constitute evidence where they are based on his personal knowledge of facts admissible in evidence. Jones v. Blanas, 393 F.3d 918, 922-23 (9th Cir. 2004). The summarization of Plaintiff’s claim in this section should not be viewed by the parties as a ruling that the allegations are admissible. The court will address, to the extent necessary, the admissibility of Plaintiff’s evidence in the sections which follow. 5 1 Ogbuehi himself made a diagnosis of “thrombocytopenia,” which is internal bleeding caused 2 by Naproxen, but continued to prescribe Naproxen to Plaintiff. (ECF No. 23 at 24:11-15.) On 3 November 8, 2012, defendant Ogbuehi finally stopped the Naproxen due to his diagnosis. 4 Plaintiff suffered from pain and inability to attend recreational yard activities for more 5 than two years. On December 20, 2013, Dr. Shahram Ehteshami [not a defendant], 6 Neurosurgeon, diagnosed Plaintiff with L3-4 broad disk bulge and L4-5 broad protrusion, 7 causing effect upon the nerve roots. Dr. Eteshami recommended surgery by a qualified doctor. 8 Plaintiff lost full range of motion at the pelvic/right hip, suffered from internal bleeding from 9 May 30, 2012 to November 8, 2012, and was diagnosed and treated for major depression and 10 anxiety. Plaintiff has irreparable neurological damage due to his medical complaints being 11 uninvestigated and untreated for two years. Plaintiff seeks injunctive relief and compensatory 12 damages. 13 VI. EIGHTH AMENDMENT MEDICAL CLAIM 14 While the Eighth Amendment of the United States Constitution entitles Plaintiff to 15 medical care, the Eighth Amendment is violated only when a prison official acts with deliberate 16 indifference to an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th 17 Cir. 2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th 18 Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 19 1091, 1096 (9th Cir. 2006). Deliberate indifference is shown by “(a) a purposeful act or failure 20 to respond to a prisoner’s pain or possible medical need, and (b) harm caused by the 21 indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of 22 mind is one of subjective recklessness, which entails more than ordinary lack of due care. 23 Snow, 681 F.3d at 985 (citation and quotation marks omitted), Wilhelm, 680 F.3d at 1122. 24 Deliberate indifference may be manifested “when prison officials deny, delay or intentionally 25 interfere with medical treatment, or it may be shown by the way in which prison physicians 26 provide medical care.” Id. Where a prisoner is alleging a delay in receiving medical treatment, 27 the delay must have led to further harm in order for the prisoner to make a claim of deliberate 28 indifference to serious medical needs. McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 6 1 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 2 1997), (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 3 1985)). 4 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 5 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the 6 facts from which the inference could be drawn that a substantial risk of serious harm exists,’ 7 but that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 8 U.S. 825, 837 (1994). “‘If a prison official should have been aware of the risk, but was not, 9 then the official has not violated the Eighth Amendment, no matter how severe the risk.’” Id. 10 (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A 11 showing of medical malpractice or negligence is insufficient to establish a constitutional 12 deprivation under the Eighth Amendment.” 13 insufficient to establish a constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 14 1332, 1334 (9th Cir. 1990)). Id. at 1060. “[E]ven gross negligence is 15 “A difference of opinion between a prisoner-patient and prison medical authorities 16 regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 17 1344 (9th Cir. 1981) (internal citation omitted). To prevail, a plaintiff “must show that the 18 course of treatment the doctors chose was medically unacceptable under the circumstances . . . 19 and . . . that they chose this course in conscious disregard of an excessive risk to plaintiff’s 20 health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted). 21 VII. 22 DEFENDANT’S UNDISPUTED FACTS (DUF)4 Defendant submitted the following facts in support of his motion for summary 23 judgment. (ECF No. 40 at 25-34.) 24 /// 25 /// 26 27 28 4 Plaintiff failed to properly address Defendant’s statement of undisputed facts. Local Rule 260(b). Accordingly, the court may consider Defendant’s assertions of fact as undisputed for purposes of this motion. Id.; Fed. R. Civ. P. 56(e)(2). 7 1 The Parties 2 1. Plaintiff Demondza Hunter (C-99425) (Plaintiff), was at all relevant times, an 3 inmate in the custody of the California Department of Corrections and 4 Rehabilitation (CDCR), incarcerated at the California Substance Abuse 5 Treatment Facility, Corcoran (CSATF). (Compl. p. 5.) Plaintiff is currently 6 incarcerated at the California State Prison–Sacramento (CSP-Sacramento). 7 (Compl. p. 1.) 8 2. Defendant is a Physician Assistant and has been licensed to practice in the State 9 of California since February 4, 1999. He received a Bachelor of Science degree 10 and completed his Physician Assistant training at Charles Drew School of 11 Medicine in Los Angeles, California in 1998, and was certified by the National 12 Commission on Certification of Physician Assistants in 1999. He received a 13 Doctor of Medicine from the Universidad Central Del Este (UCE), School of 14 Medicine in San Pedro, Dominican Republic in 2009. 15 Ogbuehi, P.A. (Ogbuehi Decl.) at ¶ 1.) 16 3. (Decl. of Clement Defendant was employed as a Physician Assistant by CDCR from April 2011 to 17 August 1, 2017. From April 2011 to March 2015, he served at California 18 Substance Abuse Treatment Facility and State Prison (SATF State Prison) and 19 from March 2015 to August 1, 2017, he served at Kern Valley State Prison. 20 (Ogbuehi Decl. at ¶ 2.) 21 4. As a P.A. at CSATF, Defendant’s responsibilities included providing 22 comprehensive chronic disease condition management (i.e., for diabetes, 23 hypertension, hyperlipidemia, hepatitis C, pain management), immunizations, 24 vaccinations, patient education, preventive care, public health exams, wound 25 care, incision/drainage, suturing, pain management and physical exams to the 26 inmate population. 27 instructing nurses and other medical staff, as well as providing direct medical 28 care to inmates under physician supervision pursuant to the Delegation of His job duties included reviewing medical records, 8 1 Service Agreement. He has examined and treated dozens of patients with the 2 medical conditions and diagnoses related to internal bleeding and spine injuries. 3 (Ogbuehi Decl. at ¶ 2.) 4 5. As a Staff Physician Assistant for CDCR, Defendant is familiar with the 5 standard of care as it applies to Physician Assistants providing medical care and 6 treatment to inmates in the California prison system. (Ogbuehi Decl. at ¶ 3.) 7 6. According to his review of Plaintiff’s medical records, the first time Defendant 8 saw Plaintiff for a medical visit was September 8, 2011. He does not recall 9 seeing or treating Plaintiff prior to September 8, 2011. Contemporaneous with 10 seeing Plaintiff for that first medical visit, either just before he came into the 11 examining room or at the same time, Defendant reviewed the medical records 12 available to him. (Ogbuehi Decl. at ¶ 7.) 13 Plaintiff’s Claim Re Referral To Specialist 14 7. Based on his review of Plaintiff’s medical records, on September 8, 2011, 15 Defendant understood Plaintiff was in a car accident in 1987 when he fell asleep 16 at the wheel and went off the embankment. 17 Harrington rod placed in his upper lumbar thoracic spine due to fracture of the 18 spine element and also a repair of the upper portion of the femur on the right 19 side. On December 26, 2003, Dr. Friedman conducted a musculoskeletal and 20 neurological examination. Plaintiff was seen for chronic pain complaints and 21 Dr. Friedman felt it was ligamentous in origin with no neurological deficits 22 noted. (Ogbuehi Decl. at ¶ 8; Exhibit A: Consultation by Jack Friedman, M.D., 23 12/26/03.) 24 8. Plaintiff had a CT scan on July 10, 2003. At that time, Plaintiff had a According to Dr. Friedman’s 25 December 26, 2003 Consultation Report, the salient points being an “annulus 26 bulge at L5 through S1 per surgical deformity of lamella at L 3/4 and Harrington 27 rod T9 through Tl2 and disc narrowing T12 through L1.” (Exhibit A: 28 /// 9 1 Consultation by Jack Friedman, M.D., 12/26/03.) No acute changes were noted 2 in Plaintiff’s condition. 3 9. Plaintiff had a MRI of his cervical spine on February 18, 2009. According to 4 Dr. Mario Deguschi’s MRI Report there was an indication of posttraumatic 5 arthritis, reversal of the cervical lordosis which simply means the patient was 6 tensing his muscles, mild degenerative disc disease, minimal disc bulges without 7 herniation and mild spinal stenosis, but no acute changes were noted in 8 Plaintiff’s condition. (Ogbuehi Decl. at ¶ 10; Exhibit B: Report re MRI of 9 Cervical Spine, 02/18/09.) 10 10. Plaintiff had an x-ray of the lumbar spine, with four views, on October 25, 2010 11 that was ordered by Dr. Kokor. 12 October 26, 2010, Report, there was no evidence of hardware failure and 13 moderate degenerative changes were seen throughout lumbar spine. 14 Chaudhri noted that if clinically concerned a complete L spine with oblique 15 view could be obtained or if an examination indicated an injury an L spine CT 16 could be obtained. 17 (Ogbuehi Decl. at ¶ 11; Exhibit C: Three Views of the Lumbar Spine Report, 18 10/26/10.) 19 11. According to Dr. Muhammad Chaudhri’s Dr. No acute changes were noted in Plaintiff’s condition. Plaintiff had a CT of the lumbar spine on February 4, 2011. Dr. Benjamin 20 Seligman’s February 4, 2011 Radiology Interpretation Report noted Harrington 21 rods and a healed L2 compression fracture, disc disease at L1-2, and no acute 22 changes. 23 02/04/11.) 24 12. (Ogbuehi Decl. at ¶ 12; Exhibit D: Radiology Interpretation, Plaintiff had an x-ray of the lumbar spine, with three views, on March 2, 2012 25 that was ordered by me. Dr. Tony Deeths compared the x-rays taken on March 26 2, 2012 with the x-rays taken on October 25, 2010. In his report dated March 7, 27 2012, Dr. Deeths found there was no change and no acute abnormality. 28 /// 10 1 (Ogbuehi Decl. at ¶ 13; Exhibit: X-ray Lumbar Spine Three Views Report, 2 3/7/12.) 3 13. After Defendant stopped treating Plaintiff, Dr. Robert Scharffenberg ordered an 4 x-ray of the lumbar spine, with three views, of Plaintiff on March 19, 2013. Dr. 5 Mark Williams compared the x-rays taken on March 19, 2013 with the x-rays 6 taken on March 2, 2012. In his report dated March 25, 2013, Dr. Williams 7 found “no changes are seen over interval.” (Ogbuehi Dec. at ¶ 14; Exhibit F: 8 X-ray Lumbar Spine Three Views Report, 03/25/13.) 9 14. Based on his review of the medical records, Defendant encountered Plaintiff on 10 September 8, 2011, November 10, 2011, February 9, 2012, April 19, 2012, 11 August 2, 2012, and September 6, 2012. Several times, Plaintiff refused to meet 12 with Defendant even though an appointment was scheduled. 13 encounters with Mr. Hunter, generally included discussions regarding his 14 complaints, and other pertinent issues, such as medications, lab results, allergies, 15 immunizations, imaging studies, medical history, referrals, and patient education 16 regarding his condition. 17 review of his musculoskeletal system, including a review of Plaintiff’s range of 18 motion, ambulation, gait, muscular atrophy, swelling and the presence of 19 crepitus. 20 Plaintiff’s neurological orientation. 21 9/8/11; Exhibit G-2: Medical Progress Note, 11/10/11; Exhibit G-3: Medical 22 Progress Note 2/9/12; Exhibit G-4: Medical Progress Note, 4/9/12; Exhibit G-5: 23 Primary Provider Progress Note 8/2/12; and Exhibit G-6: Primary Provider 24 Progress Note, 9/16/12.) (Ogbuehi Decl. at ¶ 15.) 25 15. Defendant’s These encounters would also generally include a In these encounters, Defendant would also generally evaluate (Exhibit G-1: Medical Progress Note, Based on his medical education, training and experience, his findings from his 26 observations and physical examinations of Plaintiff, as well as my review of his 27 medical records and CDCR policies and procedures on pain management, it was 28 Defendant’s medical opinion then and it is now that there were no acute changes 11 1 in Plaintiff’s condition during the time Defendant treated him. (Ogbuehi Decl. 2 at ¶ 16.) 3 16. Based on his medical education, training and experience, his findings from his 4 observations and physical examinations of Plaintiff, as well as review of his 5 medical records and CDCR policies and procedures on pain management, it was 6 Defendant’s medical opinion then and it is now that Plaintiff did not have a 7 medical condition that warranted a referral to an outside specialist during the 8 time Defendant treated him. 9 provided to Plaintiff was well within the standard of care applicable to medical 10 The medical care and treatment Defendant professionals and was medically appropriate. (Ogbuehi Decl. at ¶ 17.) 11 PLAINTIFF’S CLAIM RE NAPROXEN 12 17. On October 17, 2008, Dr. S. Raman prescribed Naproxen to Plaintiff for 60 days 13 for knee pain. There were no reported ill effects. (Ogbuehi Decl. at ¶ 18; 14 Exhibit H: Medication Reconciliation, 10/17/08.) 15 18. On September 8, 2011, Defendant prescribed Naproxen to Plaintiff. Plaintiff 16 was prescribed 500 mg twice a day as necessary. (Exhibit I: Medical Progress 17 Note, 9/8/11.) Naproxen belongs to a class of drugs called non-steroidal, anti- 18 inflammatory drugs [NSAIDs] which are used to reduce pain and inflammation. 19 In Plaintiff’s case, Defendant prescribed Naproxen to reduce pain after Plaintiff 20 repeatedly refused to take other pain medications. 21 Prescribing Naproxen to Plaintiff was consistent with CDCR pain management 22 policies and procedures. Naproxen is a keep on person [KOP] drug that inmates 23 keep on their person. (Ogbuehi Decl. at ¶ 19.) 24 19. (Exhibit J: Refusals.) During the time Defendant treated and examined Plaintiff, including the time he 25 was prescribed Naproxen, Defendant closely monitored Plaintiff’s condition for 26 physical signs or symptoms of internal bleeding. (Ogbuehi Decl. at ¶ 20.) 27 28 20. On November 10, 2011, Plaintiff complained about hard stools but stated there was no blood in his stool, no abdominal pain, no nausea, no vomiting, and no 12 1 indications of internal bleeding. (Ogbuehi Decl. at ¶ 21; Exhibit K: Medical 2 Progress Note, 11/10/11.) 3 21. On March 6, 2012, Plaintiff had a blood test which showed a platelet level of 4 231,000 which was within normal limits. In addition, Plaintiff’s hemoglobin 5 and hematocrit results were both within normal limits and indicated no anemia. 6 (Exhibit L: Lab Result, 3/6/12.) Once again, Plaintiff did not report internal 7 bleeding. (Ogbuehi Decl. at ¶ 22.) 8 22. On April 19, 2012, Plaintiff complained of constipation, he denied nausea, 9 vomiting and abdominal pain, except “seeing some tinge of blood in stool.” At 10 this time, Defendant also reviewed the March 6, 2012 blood tests referenced 11 above which indicated normal platelet, hemoglobin and hematocrit levels. 12 Plaintiff was given a fecal occult blood test which was negative for blood in the 13 stool. Plaintiff was also given three more occult blood test cards to turn in as a 14 follow up, which were all negative for blood in the stool as well. (Ogbuehi 15 Decl. at ¶ 23; Exhibit M: Medical Progress Note, 4/19/12; Exhibit N: Lab 16 Result, 4/27/12.) 17 23. On May 29, 2012, Plaintiff had a blood test that showed a platelet count of 18 40,000 which could indicate low platelets (thrombocytopenia) or lab error. 19 Plaintiff’s hemoglobin and hematocrit results were again both within normal 20 limits suggesting no anemia. (Exhibit O: CSATF/SP LAB, 5/29/12). Plaintiff 21 did not have any signs or symptoms of internal bleeding, and it would be 22 extremely rare for an individual’s platelet level to drop from 231,000 to 40,000 23 in less than three months, especially in the absence of anemia or any physical 24 signs of bleeding, and no detection of occult blood in the April 17, 2012 test. 25 Defendant suspected the May 29, 2012 platelet count of 40,000 may have been 26 the result of lab error. (Ogbuehi Decl. at ¶ 24.) 27 28 24. Defendant saw Plaintiff on August 2, 2012. There was no indication of bleeding. Because I questioned the accuracy of the May 29, 2012 blood test, I 13 1 re-ordered a complete blood count. Plaintiff refused to take the blood tests. 2 (Exhibit P: Primary Care Provider Progress Note, 8/2/12; Exhibit Q: Primary 3 Care Provider Progress Note, 8/9/12 [referencing August 2, 2012 visit].) The 4 reference to “thrombocytopenia” in the Primary Care Provider Note for August 5 2, 2012 refers to the May 29, 2012 blood test. (Ogbuehi Decl. at ¶ 25.) 6 25. Defendant saw Plaintiff on August 9, 2012. At this encounter, Plaintiff refused 7 to be examined. Again, there was no indication of bleeding. Plaintiff showed 8 no apparent distress, was well nourished and well developed. Plaintiff agreed to 9 go to lab and Defendant instructed the nurse to stop crushing the Oxcarbazepine 10 as Plaintiff requested. Defendant re-ordered the lab tests. (Ogbuehi Decl. at ¶ 11 26; Exhibit Q; Primary Care Provider Progress Note, 8/9/12.) 12 26. On August 16 through 18, 2012, Plaintiff refused his medication. On August 13 17, 2012, Plaintiff was referred to Mental Health because he refused his 14 medications. There was no indication Plaintiff was suffering from internal 15 bleeding. (Ogbuehi Decl. at ¶ 27; Exhibit R: Physician’s Order, 8/16/12; CDC 16 128c, 8/16/12 and 8/22/12.) 17 27. On September 6, 2012, Defendant stopped the Naproxen prescription because 18 Plaintiff refused to take blood tests that would verify whether or not that low 19 platelet count was real and if so would have placed him at a relatively increased 20 risk of suffering from internal bleeding. (Ogbuehi Decl. at ¶ 28; Exhibit S: 21 Primary Care Provider Progress Note, 9/6/12.) 22 28. In all his encounters with Plaintiff, Defendant did not see any physical sign of 23 internal bleeding, and Plaintiff did not make any complaint that indicated that he 24 was suffering from internal bleeding. (Ogbuehi Decl. at ¶ 29.) 25 29. On November 20, 2012, Plaintiff agreed to a blood test which showed a platelet 26 level of 239,000 which was within normal limits. (Ogbuehi Decl. at ¶ 30; 27 Exhibit T: Lab Report, 11/20/12.) 28 /// 14 1 30. Platelet clumping is an in-vitro sampling problem which may mislead to a 2 diagnosis 3 anticoagulant used while testing the blood sample causes the clumping of 4 platelets which mimics a low platelet count. (Ogbuehi Decl. at ¶ 31.) 5 31. to thrombocytopenia. This phenomenon occurs when the Based on his medical education, training and experience, his findings from his 6 observations and physical examinations of Plaintiff, as well as review of his 7 medical records, it was Defendant’s medical opinion then and it is now that on 8 May 29, 2012, Plaintiff was not suffering from thrombocytopenia. Defendant 9 bases this conclusion on the following. First, Defendant closely monitored 10 Plaintiff’s condition for physical signs or symptoms of internal bleeding. He 11 never exhibited any such signs or symptoms and he made no complaints of 12 bleeding. On April 19, 2012, Plaintiff complained of “seeing some tinge of 13 blood in stool.” At this time, Plaintiff was given a fecal occult blood test which 14 was negative for blood in the stool. On April 27, 2012, repeat tests did not 15 detect any occult blood in the stools on three cards. Second, in his encounters 16 with Plaintiff, Defendant did not make any complaints that he was bleeding. 17 Third, other test results did not indicate internal bleeding. On March 6, 2012, 18 Plaintiff had a blood test which showed a platelet level of 231,000 which was 19 within normal limits and does not indicate internal bleeding. 20 extremely rare for an individual’s platelet level to drop from 231,000 to 40,000 21 in less than three months, especially in the absence of any physical signs of 22 internal bleeding. Plaintiff’s hemoglobin and hematocrit tests, taken on March 23 6, 2012, as well as the very same blood draw on May 29, 2012, were all within 24 normal limits and indicated no internal bleeding. On April 27, 2012, blood tests 25 did not detect any occult blood. On November 20, 2012, a blood test showed a 26 platelet level of 239,000 which was within normal limits. Based on his medical 27 education, training and experience, his findings from his observations and 28 physical examination of Plaintiff, as well as review of his medical records, it 15 It would be 1 was Defendant’s medical opinion then and it is now that Plaintiff’s May 29, 2 2012 platelet count was attributable to platelet clumping or other lab error. 3 (Ogbuehi Decl. at ¶ 32.) 4 32. Based on his medical education, training and experience, my findings from my 5 observations and physical examinations of Plaintiff, as well as review of his 6 medical records, it was Defendant’s medical opinion then and it is now that the 7 benefit of continuing to prescribe Naproxen to Plaintiff outweighed the risks of 8 potential side effects since he had no sign or symptoms of internal bleeding and 9 there was only one test result that indicated a low platelet count and he refused 10 to take other pain medications but never refused to take Naproxen. Accordingly, 11 on May 29, 2012, Defendant continued to prescribe Naproxen to Plaintiff. The 12 medical care and treatment Defendant provided to Plaintiff was well within the 13 standard of care applicable to medical professionals and was medically 14 appropriate. (Ogbuehi Decl. at ¶ 33.) 15 33. Defendant did not act with any intent to deliberately or in any other way 16 disregard Plaintiff’s medical needs or medical conditions. 17 Defendant knowingly or intentionally cause Plaintiff to experience any pain, 18 suffering or injury of any kind. (Ogbuehi Decl. at ¶ 34.) 19 At no time did VIII. DEFENDANT’S ARGUMENTS 20 Defendant’s evidence includes Plaintiff’s allegations in the Third Amended Complaint, 21 defendant P.A. Ogbuehi’s declaration, and Plaintiff’s medical records. Defendant argues that 22 Plaintiff cannot establish that Defendant acted with deliberate indifference, as required to meet 23 the burden under the Eight Amendment. 24 A. 25 Defendant first argues that he was not deliberately indifferent by failing to refer 26 Failure to Refer Plaintiff to Specialist Plaintiff to a specialist for his back pain. 27 Defendant offers evidence that there were no acute changes in Plaintiff’s condition 28 during the time Defendant treated him to warrant referring him to a specialist. In 1987, as a 16 1 result of a car accident, Plaintiff had a Harrington rod placed in his upper lumbar thoracic spine 2 due to a fracture of spine element and also a repair of the upper portion of the femur on the 3 right side. (DUF 7; Ogbuehi Decl. at ¶ 8.) Plaintiff had a CT scan on July 10, 2003. (DUF 8; 4 Exh. A: Consultation by Jack Friedman, M.D., 12/26/03.) 5 December 26, 2003, report, no acute changes were noted in Plaintiff’s condition. (Id.; DUF 12; 6 Ogbuehi Decl. at ¶ 13, Exh. E: X-ray Lumbar Spine Three Views Report, 3/7/12; DUF 13; 7 Ogbuehi Decl. at ¶ 14, Exh F: X-ray Lumber Spine Three Views Report, 3/25/13; DUF 14; 8 Ogbuehi Decl. at ¶ 15, Exh. G-1: Medical Progress Note, 9/8/11; Exh. G-2: Medical Progress 9 Note, 11/10/11; Exh. G-3: Medical Progress Note, 2/9/12; Exh. G-4: Medical Progress Note, 10 4/9/12; Exh. G-5: Medical Progress Note, 8/2/12; and Exh. G-6: Medical Progress Note, 11 9/6/12.) While an inmate, Plaintiff received numerous x-rays, CT scans, and MRIs of his back, 12 including an MRI of his cervical spine on February 18, 2009, an x-ray of the lumbar spine on 13 October 25, 2010, a CT of the lumbar spine on February 4, 2011, an x-ray of the lumbar spine 14 on March 2, 2012, and an x-ray of the lumbar spine on March 19, 2013. (DUF 9; Ogbuehi 15 Decl. at ¶ 10, Exh. B: Report re MRI of Cervical Spine, 02/18/09; DUF 10; Ogbuehi Decl. at ¶ 16 10, Exh, C: Three Views of the Lumbar Spine Report, 10/26/10; DUF 11; Ogbuehi Decl. at ¶ 17 12, Exh. D: Radiology Interpretation 02/04/11; DUF ¶ 12; Ogbuehi Decl. at ¶ 13, Exh. E: X-ray 18 Lumbar Spine Three Views Report, 3/7/12; DUF ¶ 13; Ogbuehi Decl. at ¶ 14: Exh. F: X-ray 19 Lumbar Spine Three Views Report, 03/25/13.) No acute changes were found in any of these 20 imaging studies. (Id.) According to Dr. Friedman’s 21 Based on P.A. Ogbuehi’s medical education, training and experience, his findings from 22 his observations and physical examinations of Plaintiff, as well as his review of Plaintiff’s 23 medical records and CDCR policies and procedures on pain management, it was P.A. 24 Ogbuehi’s medical opinion that there were no acute changes in Plaintiff’s medical condition 25 and Plaintiff did not have a medical condition that warranted a referral to an outside specialist 26 during the time he treated him. (DUF 15-16; Ogbuehi Decl. at ¶¶ 16, 17.) 27 /// 28 /// 17 1 B. 2 Defendant also argues that he was not deliberately indifferent by prescribing Naproxen 3 to Plaintiff. Plaintiff alleges that Defendant was deliberately indifferent because on May 30, 4 2012, he continued to prescribe Naproxen after test results showed “platelets markedly 5 reduced,” which is indicative of internal bleeding or thrombocytopenia. (Third Amended 6 Comp., ECF No. 23 at 24:4-11.) Plaintiff claims he suffered internal bleeding based on a May 7 29, 2012 blood test that showed a markedly reduced level of platelets, which could indicate 8 thrombocytopenia or internal bleeding. (Id. at 24 ¶ 4.) Continuing to Prescribe Naproxen for Plaintiff 9 Based on his observations and physical examinations of Plaintiff, as well as his review 10 of Plaintiff’s medical records, including numerous blood tests, it was P.A. Ogbuehi’s medical 11 opinion that Plaintiff did not suffer from internal bleeding. (DUF 31; Ogbuehi Decl. at ¶ 32.) 12 P.A. Ogbuehi based this conclusion on several factors. 13 First, P.A. Ogbuehi closely monitored Plaintiff’s condition for physical signs or 14 symptoms or internal bleeding. (DUF 19; Ogbuehi Decl. at ¶ 20.) Plaintiff never exhibited any 15 such signs or symptoms and he made no complaints of bleeding. (DUF 28; Ogbuehi Decl. at ¶¶ 16 20, 29.) On April 19, 2012, Plaintiff complained of “seeing some tinge of blood in stool.” 17 (DUF 22; Ogbuehi Decl. at ¶23, Exh. M: Medical Progress Note, 4/19/12.) At this time, 18 Plaintiff was given a fecal occult blood test which was negative. (Id., Exh. N: Lab Result, 19 4/27/12.) Plaintiff was also given three occult blood test cards as a follow up which were all 20 negative for blood in the stool. (Id.) 21 Second, other test results did not indicate internal bleeding. On March 6, 2012, Plaintiff 22 had a blood test which showed a platelet level of 231,000 which was within normal limits and 23 does not indicate internal bleeding. (DUF 21; Ogbuehi Decl. at ¶ 22; Exhibit L: Lab Result.) 24 Defendant declares that it would be extremely rare for an individual’s platelet level to drop 25 from 213,000 to 40,000 in less than three months, especially in the absence of any physical 26 signs of internal bleeding. (DUF 31; Ogbuehi Decl., at ¶ 32.) On April 27, 2012, blood tests 27 did not detect any occult blood. (DUF 23; Exhibit N: Lab Result, 4/27/12.) On November 20, 28 18 1 2012, a blood test showed Plaintiff’s platelet level at 239,000, which was within normal limits. 2 (DUF 29; Ogbuehi Decl. at ¶ 30; Exhibit T: Lab Report, 11/20/12.) 3 Plaintiff alleges that on September 6, 2012, Defendant stopped the Naproxen 4 prescription because of Defendant’s diagnosis that Plaintiff had thrombocytopenia. Defendant 5 offers evidence that he stopped the prescription because Plaintiff refused to take a blood test 6 that would verify whether or not he was suffering from internal bleeding. (DUF 27; Ogbuehi 7 Decl. at ¶ 28, Exhibit S: Primary Care Provider Progress Note, 9/6/12.) 8 Based on his medical education, training and experience, his findings from his 9 observations and physical examination of Plaintiff, as well as review of his medical records, 10 Defendant states that it was his medical opinion that the benefit of continuing to prescribe 11 Naproxen to Plaintiff outweighed the risks of potential side effects since he had no sign or 12 symptoms of internal bleeding and there was only one test result that indicated a low platelet 13 count, and Plaintiff refused to take other pain medications but never refused to take Naproxen. 14 (DUF 32; Ogbuehi Decl. at ¶ 34.) 15 Defendant argues that he provided Plaintiff with reasonable and appropriate care, which 16 was consistent with the community standard of care and CDCR policies and procedures. There 17 is no evidence which suggests that P.A. Ogbuehi’s treatment of Plaintiff constitutes acting with 18 deliberate indifference to plaintiff’s serious medical needs. 19 IX. DEFENDANT’S BURDEN 20 Based on Defendant’s arguments and evidence in support of his motion for summary 21 judgment, the court finds that Defendant has met his burden of demonstrating that he did not 22 act with deliberate indifference to Plaintiff’s serious medical needs. Therefore, the burden now 23 shifts to Plaintiff to produce evidence of a genuine material fact in dispute that would affect the 24 final determination in this case. 25 /// 26 /// 27 /// 28 /// 19 1 X. 2 3 PLAINTIFF’S STATEMENT OF UNDISPUTED FACTS (SUF)5 Plaintiff submitted the following undisputed facts in support of his motion. (ECF No. 41 at 19-26.) 4 1. That alleged events giving rise to cause of action against Defendant Clement 5 Ogbuehi (defendant) for failure to investigate or reasonably respond to Plaintiff 6 Demondza Hunter[’s] (plaintiff) spinal injuries separate from his prior medical 7 [spinal] condition and “thrombocytopenia” proximately caused by [the] 8 medication Naproxen; occurred between August 25, 2011 and December 02, 9 2012 at California Substance Abuse Treatment Facility and State Prison See, Plaintiff’s Declaration (Declr.), at ¶ 3; see Exhibit (Ex.) A, 10 (SATF). 11 [Defendant’s] Response to Plaintiff’s First Set of Request for Admissions 12 (DRPFSRA) No. 1. 13 2. That plaintiff exhausted available administrative remedies as it relates to 14 defendant’s failure to investigate or reasonably respond to plaintiff’s spinal 15 injuries separate from [his] prior medical [spinal] condition. Declr., at ¶ 4; Ex. 16 A, at DRPFSRA Nos. 3, 5, 7, 9 and 11. cf. Ex. B, defendant’s counsel letter 17 dated 6-20-17 re agreed to stipulate to the authenticity of documents as it relates 18 to DRPFSRA Nos. 3, 5, 7, 9, and 11; also see, Ex. D, [Defendant’s] Response to 19 Plaintiff’s First Set of Interrogatories (DRPFSI), No. 14. 20 3. That plaintiff timely filed this § 1983 action pursuant to [the] applicable statute 21 of limitation. 22 DRPFSI, No. 14. 23 4. 24 25 Declr., at ¶ 5; Ex. A, DRPFSRA, No. 21; also see, Ex. D, That defendant was [the] primary care provider responsible for plaintiff’s access to medical care. Declr., at ¶ 6; Ex. A, DRPFSRA, No. 58. /// 26 27 28 5 Defendant disputes fourteen of Plaintiff’s seventeen undisputed facts, arguing that Plaintiff’s evidence does not reflect the alleged facts, the alleged facts do not support Plaintiff’s claims, and/or the facts are inadmissible. (ECF No. 43.) However, Defendant did not dispute the facts themselves. 20 1 5. That on at least six (6) separate and independent occasions plaintiff requested 2 medical attention concerning spinal injuries separate from his prior medical 3 [spinal] condition. Declr., at ¶ 7; Ex. A, DRPFSRA, Nos. 23-24, 26, 28, 30, 32 4 and 34. 5 6. That on at least four (4) separate and independent occasions various Registered 6 Nurses made referrals to defendant for evaluation and treatment of plaintiff’s 7 spinal injuries separate from [his] prior medical [spinal] condition. Declr., at ¶ 8 8; Ex. A, DRPFSRA, Nos. 36-37, 39, 41 and 43; also see, Ex. C, Amended 9 [Defendant’s] Response to Plaintiff’s First Set of Request for Admissions . . . (Amended –DRPFSRA), Nos. 37, 39, 41 and 43. 10 11 7. That during an additional seven (7) separate and independent occasions during 12 primary care provider visits plaintiff personally requested defendant to 13 investigate his spinal injuries separate from [his] prior medical [spinal] 14 condition. Declr., at ¶ 9; Ex. A, DRPFSRA, Nos. 58-59, 61, 63, 65, 67, 69, 71, 15 73, 75, and 77; also see Ex. C, Amended-DRPFSRA, Nos. 59, 61, 63, 65, 67, 16 69, 71, 73, 75, and 77. 17 8. That at the earliest, on September 8, 2011, defendant actually had knowledge of 18 plaintiff’s prior medical [spinal] condition that included harrington rods, and a 19 compression fracture. Declr., at ¶ 10; Ex. C, Amended-DRPFSRA, No. 59. 20 That the harrington rods were from spine surgery-1987 and [the] compression 21 fracture occurred in 2010. Ex. C, Amended-DRPFSRA, No. 37. That the latter 22 was detected by CT-scan on February 04, 2011, id., following the October 25, 23 2010 x-ray w/four views failure in detecting [the] same compression fracture. 24 Ex. A, DRPFSRA, Nos. 45-46, 48 and 52; also see Ex. C, Amended-DRPFSRA, 25 Nos. 46, 48 and 52. And, that as of November 23, 2010 [the] Physical Therapist 26 reported that plaintiff had been able to perform all exercises and [no] longer 27 needed any therapy. Ex. E, [Defendant’s] Response to Plaintiff’s Second Set of 28 Request for Admissions (DRPSSRA), No. 89(b) and Document X, CDC Form 21 1 7243 date of consultation by Physical Therapist David G. Ayers; also see Ex. F, 2 Amended [Defendant’s] Response to Plaintiff’s Second Set of Request for 3 Admissions (Amended-DRPSSRA), No. 89. 4 9. That on September 08, 2011, defendant conducted primary care provider’s visits 5 in response to a referral made on August 30, 2011 by [a] Registered Nurse who 6 responded to my request, on August 25, 2011, for medical attention regarding 7 spinal injuries separate from my prior medical [spinal] condition. Declr., at ¶ 8 11; Ex. A, DRPFSRA, Nos. 23(a)-24, 36(a)-37, 58(a)-59; Ex.C, Amended- 9 DRPFSRA, Nos. 37 and 59. Defendant disregarded and failed to investigate my 10 complaints of [electric jolts] jumpiness/jerking and heat sensations from 11 plaintiff’s lower back down his legs. 12 plaintiff’s prior medical [spinal] condition and prescribed the medication 13 Naproxen. Ex. A, DRPFSRA, Nos. 59 and 61; Ex.C , Amended-DRPFSRA, 14 Nos. 59 and 61. 15 10. The defendant simply made note of That on November 10, 2011, defendant conducted primary care provider’s visits 16 in response to [a] referral made on October 19, 2011 by [a] Registered Nurse 17 who responded to plaintiff’s request, on October 19, 2011, for medical attention 18 regarding spinal injuries separate from his prior medical [spinal] condition. 19 Declr., at ¶ 12; Ex. A, DRPFSRA, Nos. 23(b), 26, 36(b), 39, 58(b) and 63; Ex.C, 20 Amended-DRPFSRA, Nos. 39 and 63. Defendant disregarded and failed to 21 investigate plaintiff’s complaints of electric-like jolts/shocks and sleepless 22 nights. 23 condition, continued to prescribe the medication Naproxen and recommended 24 that plaintiff do therapy. 25 DRPFSRA, No. 65. 26 11. That Defendant simply made note of plaintiff’s prior medical [spinal] on December 08, Ex. A, DRPFSRA, No. 65; Ex.C, Amended- 2011, defendant disregarded his previous 27 recommendation of therapy as it relates to plaintiff’s prior medical [spinal] 28 condition described in the preceding paragraph, and was prompt[ed] by an 22 1 unidentified staff [member] who directed defendant to update medical chronos 2 [related] to plaintiff’s prior medical [spinal] condition. Declr., at ¶ 13; Ex. A, 3 DRPFSRA, No. 67; also see: Ex. C, Amended DRPFSRA, No. 67. Defendant 4 initiated and completed various medical forms reporting that plaintiff’s prior 5 medical [spinal] condition improved and rescinded [the] accommodations cane 6 and extra mattress. Ex. E, DRPSSRA, No. 88 [Document-IX]; also see Ex. F; 7 Amended DRPSSRA, No. 88. However, in response to discovery requests, 8 defendant claims he do[es] not remember the identity of [the] staff who directed 9 him to update medical chronos [related] to plaintiff’s prior medical [spinal] 10 condition. 11 defendant simply failed to answer or produce documents showing a basis for 12 initiating and completing medical forms reporting that plaintiff’s prior medical 13 [spinal] condition improved. 14 Second Set of Interrogatories (DRPSSI, No. 18; 6 also see: Ex. H, [Defendant’s] 15 Response to Plaintiff’s Second Set of Request for Production of Document 16 (DRPSSRPD), No. 10.7 17 12. Ex. D, DRPFSI, No. 3. Nevertheless, when requested again Ex. G, [Defendant’s] Response to Plaintiff’s That on February 09, 2012, defendant conducted primary care provider’s visits 18 in response to [a] referral made on February 06, 2012 by the Registered Nurse 19 who responded to plaintiff’s request, on February 01, 2012, for medical attention 20 regarding spinal injuries separate from [his] prior medical [spinal] condition. 21 Declr., at ¶ 14; Ex. A, DRPFSRA, Nos. 23(c), 28, 36(c), 58(d)-(e), 69, 70; also 22 see: Exh. C, Amended DRPFSRA, 36(c), 41, 58(d)-(e), 69 and 70. Defendant 23 disregarded and failed to investigate plaintiff’s complaints of having 24 compounded spinal injuries separate from his prior medical [spinal] condition. 25 Defendant simply made note of plaintiff’s prior medical [spinal] condition, 26 27 28 6 On July 19, 2017, [Plaintiff] filed [a] motion to compel ordering defendant to identify and/or produce document in response to this request. 7 Id. 23 1 restated his action on December 08, 2011 when he reported improvement of 2 plaintiff’s prior medical [spinal] condition and rescinded [Plaintiff’s] cane and 3 extra mattress but changed [the] basis from plaintiff attacked his roommate with 4 a pin to plaintiff allegedly attacked his roommate with the cane. Ex.-A. 5 DRPFSRA, No. 69; also see Ex. C, Amended-DRPFSRA, No. 69. Then, 6 defendant noted [plaintiff’s] prior medical [spinal] condition, continued [the] 7 prescription medication Naproxen, and ordered x-rays that were performed on 8 March 02, 2012 to check for severity of [plaintiff’s] prior medical [spinal] 9 condition. Ex.-A. DRPFSRA, No. 71; also see Ex. C, Amended-DRPFSRA, 10 No. 71. However, when defendant ordered that x-rays be performed with three 11 views in comparison to the October 25, 2010 x-rays w/four views conducted by 12 Radiologist 13 Radiologist’s “notice” that [un]less x-rays with oblique five views or [a] CT- 14 scan [were used,] plaintiff’s prior medical [2010 compression fracture] condition 15 could not be radiologically obtained on film. Ex.-A. DRPFSRA, Nos. 45(a)-(c), 16 46, 48, 52, 54; also see Ex. C, Amended-DRPFSRA, Nos. 46, 48, 52 and 54. 17 That is because the October 25, 2010 x-ray with four views could not detect 18 plaintiff’s 2010 spinal compressions fracture and, based on the Radiologist 19 “notice,” the February 04, 2011 CT-scan was performed and detected plaintiff’s 20 2010 spinal compression fracture. Id. This information was well documented as 21 part of plaintiff’s prior medical [spinal] condition, which defendant 22 acknowledged having had actual knowledge of as it relates to plaintiff’s prior 23 medical [spinal] condition. 24 disregarded Physical Therapist Ayers’ “notice” that plaintiff’s range of motion 25 was not within normal limits and that due to weakness plaintiff was unable to 26 perform exercises on December 09, 2011. 27 [Document-X]; also see Ex. F, Amended-DRPSSRA, No. 89. That is because 28 defendant repeatedly reported that plaintiff’s range of motion was within normal Dr. Chaudhri (Radiologist), defendant See, ¶ 10, supra. 24 disregarded [the] Nevertheless, defendant Ex.-E. DRPSSRA, No. 89 1 limits on December 08, 2011 and February 09, 2012. Ex.-A. DRPFSRA, Nos. 2 67, 69 and 71; also see Ex. C, Amended-DRPFSRA, Nos. 67, 69 and 71. And, 3 when requested defendant simply failed to state his contentions as it relates to 4 the Radiologist’s “notice.” Ex. G, DRPSSI, No. 17.8 5 13. That on April 19, 2012, defendant conducted primary care provider’s visits as 6 follow-up, but disregarded and failed to investigate plaintiff’s verbal complaints 7 of spinal injuries separate from [his] prior medical [spinal] condition. Declr., at 8 ¶ 15; Ex. A, DRPFSRA, No. 58(f). Defendant simply stated that plaintiff never 9 admit[ted the] medication Naproxen is helping plaintiff and continued [the] 10 prescription medication Naproxen. Ex.-A. DRPFSRA, No. 73; also see Ex. C, 11 Amended-DRPFSRA, Nos. 73. 12 14. That on May 29, 2012, defendant received and disregarded Pathologist Dr. 13 Volt’s (Pathologist) “notice” that plaintiff’s platelets [were] abnormal and 14 markedly reduced, when defendant failed to stop [the] prescription medication 15 Naproxen. Declr. at ¶ 16; Ex.-A. DRPFSRA, Nos. 45(d) and 56; also see Ex. C, 16 Amended-DRPFSRA, No. 56. On August 02, 2012, defendant again disregarded 17 the before-mentioned Pathologist’s “notice” notwithstanding defendant having 18 diagnosed plaintiff as suffering from “thrombocytopenia” based on said 19 “notice,” yet defendant continued the prescription medication Naproxen. Ex.-A, 20 DRPFSRA, No. 75; also see Ex. C, Amended-DRPFSRA, No. 75. 21 Nevertheless, defendant did not stop [the] medication Naproxen until November 22 08, 2012 due to [the] diagnosis “thrombocytopenia.” Ex.-A, DRPFSRA, Nos. 23 58(h) and 77; also see Ex. C, Amended-DRPFSRA, No. 77. 24 15. That on August 02, 2012, defendant conducted primary care provider’s visits in 25 response to plaintiff’s request, on July 31, 2012, for medical attention regarding 26 plaintiff’s spinal injuries separate from [his] prior medical [spinal] condition. 27 28 8 On July 19, 2017, [Plaintiff] filed a motion to compel ordering defendant to properly respond to “contention interrogatory.” 25 1 Declr., at ¶ 17; Ex.-A, DRPFSRA, Nos. 23(d), 30, 58(g) and 75; also see Ex. C, 2 Amended-DRPFSRA, No. 75. Defendant simply continued [the] prescription 3 medication Naproxen. Ex.-A, DRPFSRA, No. 75; also see: [Ex. C,] Amended- 4 DRPFSRA, No. 75. 5 16. That on November 8, 2012, defendant conducted primary care provider’s visits 6 in response to his having made diagnosis “thrombocytopenia” proximately 7 caused by [the] medication Naproxen, however, defendant disregarded and 8 failed to investigate plaintiff’s verbal complaints of spinal injuries separate from 9 [his] prior medical [spinal] condition. Declr., at ¶ 18; Ex.-A, DRPFSRA, Nos. 10 58(h) and 77; Ex. C, Amended-DRPFSRA, No. 77. Defendant simply stopped 11 the prescription medication Naproxen based on defendant having made [a] 12 diagnosis of “thrombocytopenia” as it relates to plaintiff. Exh. A, DRPFSRA, 13 No. 77; Ex. C, Amended-DRPFSRA, No. 77. 14 17. As [a] result, plaintiff’s spinal injuries separate from [his] prior medical [spinal] 15 condition were not diagnosed until November 2013 and requir[ed] surgery, i.e., 16 the instrumentation at the lumbosacral column, as well as fusion and 17 decompression at that segment. Declr., at ¶ 19; DRPFSRA, Nos. 79(a)-(c), 80, 18 82 and 84; Ex. C, Amended-DRPFSRA, Nos. 80, 82 and 84. 19 XI. ANALYSIS 20 Plaintiff’s evidence consists of his allegations in the Third Amended Complaint, 21 Plaintiff’s declaration, Defendant’s responses to Plaintiff’s requests for admissions, 22 Defendant’s responses to Plaintiff’s interrogatories, Defendant’s responses to Plaintiff’s request 23 for production of documents, and Plaintiff’s medical records. 24 25 A. Medical Claim Against P.A. Ogbuehi 1. Objective Element – Existence of Serious Medical Need 26 A “serious medical need” exists if the failure to treat a prisoner’s condition could result 27 in further significant injury or the “unnecessary and wanton infliction of pain.” McGuckin, 974 28 F.2d at 1059. Here, there is no dispute that Plaintiff presented with a serious medical need. 26 1 Plaintiff alleges in the Third Amended Complaint that he suffered from low back pain and 2 other pain related to a spinal condition. (ECF No. 23 at 22 ¶ 2.) Defendant does not dispute 3 that Plaintiff suffered from pain or presented with complaints of low back pain, pain in the back 4 of his right thigh, right buttock pain, and pinching sensations with walking, numbness, and 5 muscle contractions. Failure to treat Plaintiff’s pain could result in the unnecessary and wanton 6 infliction of pain. 7 indifference. 8 2. Therefore, Plaintiff meets the first prong of the test for deliberate Subjective Element – Deliberate Indifference 9 Plaintiff proceeds on claims that defendant P.A. Igbuehi was deliberately indifferent to 10 his serious medical needs because Defendant failed to refer Plaintiff to a specialist for his 11 spinal condition, and because Defendant prescribed pain medication to Plaintiff that caused 12 internal bleeding. 13 i. Failure to Refer to Specialist 14 The parties do not dispute that Defendant knew about Plaintiff’s medical history and 15 symptoms. Plaintiff asserts that Defendant knew about his condition because between August 16 25, 2011 through December 12, 2012, Plaintiff submitted at least eight Health Care Services 17 Request Forms upon which he listed his symptoms (Pltf’s Decl. ¶ 7); Registered Nurses 18 referred Plaintiff at least four times to Defendant for treatment of his symptoms (Pltf’s Decl. ¶ 19 8); and between September 8, 2011 and November 8, 2012, Plaintiff met with Defendant at 20 least six times regarding his medical complaints (3ACP, ECF No. 23 at 23 ¶ 3). Defendant 21 declares that, contemporaneous with seeing Plaintiff for his first medical visit on September 8, 22 2011, either just before he came into the examining room or at the same time, Defendant 23 reviewed the medical records available to him. (Ogbuehi Decl. at ¶ 7.) Defendant also states 24 that when he met with Plaintiff six times between September 8, 2011 and September 6, 2012 25 for medical visits, he discussed Plaintiff’s complaints. 26 Defendant does not dispute that he knew Plaintiff suffered pain and other symptoms related to 27 his spinal condition. 28 /// 27 (Ogbuehi Decl. at ¶ 15.) Thus, 1 However, there is no evidence that Defendant was aware and drew the inference that 2 Plaintiff was at substantial risk of serious harm if Plaintiff were not referred to a specialist to 3 treat his spinal condition. Defendant knew that Plaintiff had been in a car accident in 1987 4 when he fell asleep at the wheel and went off an embankment and had a Harrington rod placed 5 in his upper lumbar thoracic spine due to fracture of spine element and also a repair of the 6 upper portion of the femur on the right side. (DUF 8.) Plaintiff’s medical records show that no 7 acute changes were seen in Plaintiff’s medical condition by Plaintiff’s medical providers before 8 Defendant began treating Plaintiff, as shown by records of on a July 10, 2003 CT scan, a 9 February 18, 2009 MRI, an October 25, 2010 x-ray, a February 4, 2011 CT scan, and a March 10 2, 2012 x-ray. (DUF 9-13, Exhs. B-E.) While Defendant was treating Plaintiff between 11 September 2011 and November 2012, it was Defendant’s medical opinion, and it is now, that 12 there were no acute changes in Plaintiff’s condition during the time he treated him based on 13 Defendant’s medical education, training and experience, findings from observations and 14 physical examinations of Plaintiff, as well as review of his medical records and CDCR policies 15 and procedures on pain management. (DUF 16 & 17.) 16 Plaintiff has not provided any evidence that Defendant knew that his condition placed 17 him at a substantial risk of serious harm if he were not referred to a specialist. It is Plaintiff’s 18 opinion that his more recent symptoms indicated a spinal condition separate and apart from his 19 prior condition relating back to injuries from the 1987 car accident. Plaintiff also believed that 20 his symptoms indicated a neurological problem prompting him to request referral to an outside 21 specialist in neurology. However, as a layman, Plaintiff may not offer the medical opinion that 22 his new symptoms arose from a new, separate condition. Fed. R. Evid. 701. Plaintiff shows, at 23 most, a disagreement between Defendant and himself about his treatment which is not 24 sufficient to state a medical claim under the Eighth Amendment. 25 There is also no evidence that Defendant was deliberately indifferent to Plaintiff’s 26 serious medical needs or acted in violation of the standard of care applicable to medical 27 professionals. Plaintiff offers evidence that at a follow-up visit on April 19, 2012, Defendant 28 explained to him that if he (Plaintiff) had not “said anything about Ogbuehi’s co-workers,” 28 1 Defendant would have investigated Plaintiff’s “medical complaints.” (3ACP, ECF No. 23 at 2 23:22-25.) Taking Plaintiff’s account of the incident as true, such a statement by Defendant is 3 unprofessional but without more does not show that Defendant acted with deliberate 4 indifference to a known risk of serious harm to Plaintiff. Moreover, Plaintiff indicated that he 5 did not want Defendant or another doctor at SATF to investigate his medical complaints 6 because Defendant did not have training in diagnosing “neurological conditions” and there was 7 no other doctor available at SATF with such training. (3ACP, ECF No. 23 at 23:26.) Plaintiff 8 alleges, without supporting facts, that Defendant ignored his new symptoms of a medical 9 condition that arose after 2010. In opposition to this allegation, Defendant provides copies of 10 medical progress notes he wrote after each of six medical visits with Plaintiff documenting that 11 Defendant noted Plaintiff’s complaints, reviewed his medical history, took his vital signs, 12 examined him, and adjusted his medication. There is simply no evidence that Defendant knew 13 that Plaintiff was at risk of serious harm and ignored the risk. 14 Plaintiff provides evidence that in November 2013, after Defendant had stopped treating 15 him, Plaintiff’s spinal injuries separate from his prior spinal condition were diagnosed, and 16 subsequently a neurosurgeon investigated Plaintiff’s medical complaints and recommended 17 surgery. (Pltf’s Decl. at 35 ¶ 19.) However, even if Defendant should have, but did not 18 conclude that Plaintiff’s symptoms needed further investigation, this does not show deliberate 19 indifference. 20 Based on the foregoing, the court finds that Defendant has proven an absence of 21 evidence to support Plaintiff’s deliberate indifference claim against Defendant for failing to 22 refer him to a specialist for his spinal condition, and Plaintiff has not demonstrated that no 23 reasonable trier of fact could find other than for him. 24 ii. Naproxen Prescription 25 There is no evidence that Defendant acted with deliberate indifference when he 26 continued to prescribe the pain medication Naproxen to Plaintiff after Plaintiff reported blood 27 in his stool. Plaintiff’s lab results indicated that his platelets were abnormally reduced, which 28 can indicate thrombocytopenia or internal bleeding. There is no evidence that Defendant 29 1 believed that Plaintiff was at substantial risk of serious harm by continuing to take Naproxen. 2 In fact, the evidence shows that Defendant did not believe that Plaintiff suffered from internal 3 bleeding 4 There is no dispute that on September 8, 2011, Defendant prescribed Naproxen to 5 Plaintiff to alleviate his pain, (Ogbuehi Decl. ¶ 18; Pltf’s Dec. at 30 ¶11); that on May 29, 2012, 6 Defendant was notified of Plaintiff’s lab result showing a marked decrease in Plaintiff’s blood 7 platelet level, (Ogbuehi Decl. ¶ 23; Pltf’s Dec. at 34 ¶ 16); and that Defendant continued to 8 prescribe Naproxen to Plaintiff until November 8, 2012, when he stopped the prescription, 9 (Deft’s Amd. Response to Pltf’s Request for Adm., ECF No. 41 at 110:20-22; Pltf.’s Decl. at 10 11 35 ¶18). Defendant’s evidence supports his argument that Plaintiff never exhibited any signs or 12 symptoms of internal bleeding. 13 September 8, 2011, Defendant closely monitored Plaintiff’s condition for signs or symptoms of 14 internal bleeding. (Id.) On November 10, 2011, Plaintiff complained about hard stools but 15 stated there was no blood in his stool, no abdominal pain, no nausea, no vomiting, and no 16 indications of internal bleeding. (DUF 20.) On March 6, 2012, Plaintiff had a blood test that 17 showed a platelet level of 231,000, which was within normal limits and does not indicate 18 internal bleeding. (DUF 21.) On April 19, 2012, Plaintiff reported “seeing some tinge of blood 19 in [his] stool,” but had no other symptoms of internal bleeding. (DUF 22.) Plaintiff was given 20 a fecal occult blood test and three more follow-up occult blood test cards to turn in, all which 21 were negative for blood in the stool. (Id.) (DUF 19.) After prescribing Naproxen to Plaintiff on 22 On May 29, 2012, Plaintiff had a blood test that showed a platelet count of 40,000, 23 which could indicate low platelets or lab error. (DUF 23.) Defendant suspected the May 29, 24 2012, platelet count of 40,000 may have been the result of lab error because Plaintiff did not 25 have any signs or symptoms of internal bleeding, and it would be extremely rare for an 26 individual’s’ platelet level to drop from 231,000 to 40,000 in less than three months, especially 27 in the absence of anemia or other signs of bleeding. (Id.) On August 2, 2012, questioning the 28 accuracy of the May 29, 2012 blood test, Defendant re-ordered a complete blood count, but 30 1 Plaintiff refused to take the blood tests. (DUF 24.) On August 9, 2012, Plaintiff refused to be 2 examined but agreed to go to the lab, however there was no indication of bleeding. (DUF 25.) 3 Defendant re-ordered the lab tests. (Id.) On August 16 through 18, 2012, Plaintiff refused his 4 medication, and on August 17, 2012, Plaintiff was referred to Mental Health because he refused 5 the medication. (DUF 26.) There was no sign that Plaintiff was suffering from internal 6 bleeding. (Id.) 7 On September 6, 2012, Defendant stopped the Naproxen prescription because Plaintiff 8 refused to take the blood test that would verify whether or not that low platelet count was real. 9 (DUF 27.) On November 20, 2012, Plaintiff agreed to a blood test which showed a platelet 10 level of 239,000 which was within normal limits. (DUF 29.) Defendant states that it was his 11 medical opinion that Plaintiff was not suffering from thrombocytopenia because the only sign 12 of possible internal bleeding was the May 29, 2012, lab test showing a 40,000 platelet level, 13 and Defendant believed the lab test was an error. (DUF 32.) Defendant’s medical opinion was 14 that the benefit of continuing the Naproxen for Plaintiff outweighed the risks of potential side 15 effects if the Naproxen was stopped. (Id.) 16 Plaintiff’s evidence fails to show that he suffered from internal bleeding. There is no 17 dispute that the May 29, 2012, lab report shows an abnormal platelet count of 40,000, or that 18 Defendant’s August 2, 2012 progress report refers to thrombocytopenia under the heading 19 “Assessment – Diagnosis,” or that Defendant’s notes state, “Cont. Oxcarbazepine, Add 20 Naproxen.” (ECF No. 40, Exh. P.) Plaintiff presents Defendant’s August 2, 2012, progress 21 notes as evidence that Defendant diagnosed Plaintiff with thrombocytopenia but continued to 22 prescribe Naproxen. (ECF No. 40, Exh. P; Pltf’s Decl., ECF No. 41 at 34 ¶ 16.) However, 23 Plaintiff, as a layman, may not interpret the meaning of Defendant’s medical notes. Fed. R. 24 Evid. 701. 25 thrombocytopenia, but rather that he was referring to the test result that showed a low platelet 26 level, that he did not believe the test results were accurate and that he did not believe Plaintiff 27 was suffering from thrombocytopenia. (ECF No. 44 at 9 ¶ 16.) Therefore, Plaintiff’s evidence 28 /// Moreover, Defendant declares that he did not made a diagnosis of 31 1 does not support his claim that Defendant was deliberately indifferent in continuing to 2 prescribe Naproxen. 3 Based on the foregoing, the court finds that Defendant has proven an absence of 4 evidence to support Plaintiff’s deliberate indifference claim against him for continuing to 5 prescribe Naproxen to Plaintiff, and Plaintiff has not demonstrated that no reasonable trier of 6 fact could find other than for him. 7 IX. CONCLUSION AND RECOMMENDATIONS 8 The court finds that Defendant has met his burden of demonstrating that under the 9 undisputed facts, he is entitled to summary judgment against Plaintiff. Moreover, Plaintiff has 10 not submitted admissible evidence showing the existence of a genuine issue for trial. 11 Therefore, IT IS HEREBY RECOMMENDED that: 12 1. 13 Plaintiff’s motion for partial summary judgment, filed on September 11, 2017, be DENIED; 14 2. 15 Defendant’s motion for summary judgment, filed on September 6, 2017, be GRANTED; and 16 3. 17 These findings and recommendations are submitted to the United States District Judge Summary judgment be entered in favor of Defendant, closing this case. 18 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). 19 fourteen (14) days from the date of service of these findings and recommendations, any party 20 may file written objections with the court. Such a document should be captioned “Objections 21 to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 32 Within 1 served and filed within ten (10) days after the date the objections are filed. The parties are 2 advised that failure to file objections within the specified time may result in the waiver of rights 3 on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 4 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 6 7 8 IT IS SO ORDERED. Dated: May 23, 2018 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 33

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