(PC) Witkin v. Lotersztain et al, No. 2:2015cv00638 - Document 83 (E.D. Cal. 2018)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 02/23/18 ORDERING Plaintiffs motion for order requiring disclosure 68 is denied. Plaintiffs motion for sanctions 76 is denied. Plaintiffs motion to strike 52 is denied. Defendants motion to strike plaintiffs Exhibits A, B, C and D to his opposition 77 -1) is granted. Plaintiffs Exhibits A, B, C and D to his opposition 72 at 78-120) are stricken. Plaintiffs motion to file a sur-reply 80 -1) is denied. Also, RECOMMENDING that Defendants motion for summary judgment 30 , 63 be granted. The court decline to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c) as to plaintiffs state law claims. Plaintiffs request for sua sponte summary judgment in his favor 72 be denied. Motions 30 , 63 , 72 referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL AARON WITKIN, 12 Plaintiff, 13 14 No. 2:15-cv-0638 MCE KJN P v. ORDER AND FINDINGS AND RECOMMENDATIONS MARIANA LOTERSZTAIN, et al., 15 Defendants. 16 17 I. Introduction 18 Plaintiff is a state prisoner, proceeding pro se and in forma pauperis. Defendants’ motion 19 for summary judgment, and various related motions and a request, are before the court. As 20 discussed below, plaintiff’s request for sua sponte summary judgment in his favor should be 21 denied, and defendants’ motion for summary judgment should be granted. 22 II. Plaintiff’s Verified Complaint At the time he filed this action in 2015, plaintiff was 38 years old,1 and claims that he 23 24 cannot sit or stand “without experiencing extremely severe pain.” (ECF No. 1 at 8-9.)2 When 25 housed at Pleasant Valley State Prison (“PVSP”), plaintiff claims his doctor diagnosed plaintiff 26 27 28 1 Plaintiff was born in 1977, and will soon be 41. 2 References to “ECF” refer to the court’s electronic docket and page numbers. 1 1 with a spinal injury resulting in nerve damage and prescribed nerve pain medication 2 oxcarbazepine, and told plaintiff that if his condition did not improve, he would need an MRI to 3 determine why the pain is so severe. (ECF No. 1 at 6.) 4 Plaintiff states the nerve pain medication provided limited relief, and his mobility was still 5 impaired. On September 7, 2012, plaintiff was transferred to California State Prison, Solano 6 (“CSP-Solano”). Despite presenting with complaints of extreme pain, plaintiff contends that his 7 primary care physician (“PCP”) at CSP-Solano, defendant Dr. Lotersztain, refused to prescribe 8 adequate pain relief, to perform an MRI to determine the etiology of plaintiff’s pain, or to refer 9 plaintiff to an appropriate specialist. In addition, at various appointments, plaintiff declares that 10 Dr. Lotersztain told plaintiff: “I know you’re in severe pain, but the thing is we’re just not going 11 to spend any money to do anything about it.” (ECF No. 1 at 8, 9.) Or, the pain is “part of being 12 in prison.” (ECF No. 1 at 9.) On February 4, 2015, when plaintiff allegedly presented with 13 extremely severe pain, plaintiff claims Dr. Lotersztain acted exasperated, and immediately 14 declared that “I’m not gonna give you an MRI. . . . I know your mobility is impaired and I know 15 you’re in a great deal of pain. Look, I don’t care, it[’]s part of the penalty for your crimes.” (ECF 16 No. 1 at 10.) Plaintiff also alleges that defendants Dr. Pfile3 and Dr. Kuersten denied plaintiff’s 17 18 administrative appeals seeking pain relief, and failed to obtain medical treatment for plaintiff, 19 despite having knowledge that “extreme departures from the standard of care pervaded [CSP- 20 Solano’s] medical services operation.” (ECF No. 1 at 8.) In one appeal, plaintiff notes that 21 although staff claims plaintiff is in exceptional physical fitness, they fail to address those times he 22 was “completely immobilized by his back injury and unable to get up off the floor, much less 23 walk.” (ECF No. 1 at 20.)4 Plaintiff claims staff “never diagnosed the problem [or gave] a 24 reasonable explanation for why [plaintiff] has been suffering such severe pain at his fairly young 25 3 26 27 28 It appears that Dr. Pfile is now known as Dr. Mulligan-Pfile (ECF No. 30-6), but to avoid confusion with the medical records, the undersigned uses the name Dr. Pfile. 4 Plaintiff’s 602 appeals nos. SOL HC 13038309 and SOL HC 14038941 are appended to the complaint. (ECF No 1 at 17-34.) 2 1 age.” (Id.) 2 In his Eighth Amendment cause of action, plaintiff claims that Dr. Lotersztain’s refusal to 3 treat plaintiff’s serious medical need caused the wanton and unnecessary infliction of pain, 4 causing him 18 months of extremely severe pain. (ECF No. 1 at 10.) Plaintiff contends that 5 defendants Lotersztain, Pfile and Kuersten had a duty to order an MRI to rule out or confirm disc 6 herniation and refer plaintiff to a neurologist or orthopedic specialist, but refused to do so. (Id.) 7 Plaintiff seeks declaratory relief,5 as well as money damages for the alleged violation of 8 his Eighth Amendment rights, and includes various state law claims against Dr. Lotersztain. 9 (ECF No. 1 at 4-5; 10-12; 7 at 4.) 10 III. Related Motions 11 A. Plaintiff’s Motion for Disclosure 12 On May 18, 2017, plaintiff filed a motion for order requiring disclosure of post- 13 deposition communications between defense counsel and the expert, Dr. Barnett. On July 10, 14 2017, defendants filed an opposition to the motion; however, without waiving their objection, 15 defendants provided plaintiff with a redacted version of all post-deposition communications 16 between defense counsel and Dr. Barnett. Plaintiff did not file a reply. 17 The provision of the redacted version renders moot plaintiff’s motion, which is denied. 18 B. Plaintiff’s Motion for Sanctions 19 On June 13, 2017, plaintiff filed a motion for sanctions, claiming that Dr. Barnett’s 20 amended declaration was submitted in bad faith. Plaintiff seeks exclusion of the declaration, and 21 monetary sanctions. Specifically, plaintiff states that Dr. Barnett submitted his amended 22 declaration after his March 28, 2017 deposition, and now concludes that “[d]efendants[’] 23 treatment of Plaintiff’s pain complaints was appropriate and consistent with all authoritative 24 standards of care.” (ECF No. 76 at 1, citing Barnett Am. Decl. at ¶ 12.) Plaintiff argues that such 25 conclusion is “directly contradicted by his deposition testimony,” and is “therefore submitted in 26 bad faith.” (Id.) Plaintiff contends that because Dr. Barnett repeatedly testified that the standard 27 28 5 Plaintiff’s request for preliminary injunctive relief was denied on November 12, 2015. (ECF No. 19.) 3 1 of care requires that patients suffering neurological symptoms be referred to neurology, that Dr. 2 Barnett’s testimony that plaintiff suffered from neurological symptoms, required that plaintiff be 3 referred to neurology contradicts the doctor’s conclusion that the medical treatment met the 4 standard of care, rendering the amended declaration a “sham affidavit” which precludes this 5 court’s consideration on summary judgment, citing see Yeager v. Bowlin, 693 F.3d 1076, 1080- 6 81 (9th Cir. 2011). (ECF No. 76 at 3.) Plaintiff contends that because the amended declaration is 7 a sham affidavit, defendants cannot use the amended declaration to support their motion for 8 summary judgment. (Id.) 9 In opposition, defendants contend that there is no legal basis to exclude Dr. Barnett’s 10 declarations because he is a medical expert who reviewed plaintiff’s case and rendered his expert 11 opinion regarding the care provided by defendants. (ECF No. 77 at 2.) Plaintiff’s disagreement 12 with Dr. Barnett’s conclusions is insufficient to exclude Dr. Barnett’s declarations because only a 13 medical expert can refute Dr. Barnett’s conclusions. In any event, defendants argue that Dr. 14 Barnett’s expert opinion was unchanged by the amended declaration, which only added a couple 15 of footnotes reiterating his deposition testimony for clarification. (ECF No. 77 at 3.) Further, 16 defendants contend that despite plaintiff’s two cited instances where he complained of 17 neurological symptoms, Dr. Barnett testified that such symptoms only equate to a temporary 18 impairment, not requiring referral to a specialist. (Id., citing Barnett Dep. at 84-85; 111; 253.) 19 Moreover, defendants argue that Dr. Barnett opined that physical therapy is “the only modality 20 proven to improve chronic low back pain. Narcotics don’t make it better and surgery is not a 21 good solution either.” (Id., citing Barnett Dep. at 253-54.) Because plaintiff said physical 22 therapy makes it better, Dr. Barnett testified that he “would not order an MRI,” or a “CT because 23 we have a diagnosis and we have a treatment. We have chronic low back pain of the garden 24 variety that responds to physical therapy.” (Id.) 25 The “sham affidavit” rule provides that a “party cannot create an issue of fact by an 26 affidavit contradicting . . . prior deposition testimony.” Yeager v. Bowlin, 693 F.3d 1076, 1080 27 (9th Cir. 2012) (quotation marks and citation omitted). To apply the rule, the court must “make a 28 factual determination that the contradiction [is] actually a sham” and conclude that the 4 1 inconsistency is “clear and unambiguous.” Van Asdale v. Int'l Game Tech., 577 F.3d at 989, 998 2 (9th Cir. 2009). A declaration that “elaborates upon, explains, or clarifies prior testimony” does 3 not trigger exclusion. Id. (citation omitted). 4 Plaintiff’s motion is not well-taken. First, as argued by defendants, the changes made by 5 Dr. Barnett were not substantive. Specifically, both declarations contain paragraph 12 in which 6 Dr. Barnett declares that “defendants’ treatment of plaintiff’s pain complaints was appropriate 7 and consistent with all authoritative standards of care.” (ECF Nos. 30-7 at 16; 63-1 at 16.) The 8 footnotes Dr. Barnett added reiterated his deposition testimony and merely clarified the 9 declaration. 10 Second, plaintiff argues that his symptoms of numbness and sensation loss in his right leg, 11 and muscle spasms on August 1, 2013 and December 2, 2014 (ECF No. 72 at 53), constitute 12 neurological symptoms requiring referral to a specialist, and because Dr. Barnett testified that the 13 standard of care required a patient suffering neurological symptoms to be referred to a specialist, 14 Dr. Barnett attempts to mislead the court in his amended declaration. However, review of Dr. 15 Barnett’s deposition confirms that he distinguished between a “chronic impairment” and a 16 “momentary impairment,” identifying the nature of plaintiff’s impairment as momentary . 17 (Barnett Dep. at 111.) Dr. Barnett testified that he would be inclined to refer someone to 18 specialty care where the specialty care would be of benefit: “I’m looking at a patient who has a 19 condition that I believe a specialist can help and should help, and that would be someone who is 20 notably impaired with a disease or a condition that will require a specialist’s assistance to 21 improve.” (Barnett Dep. at 84-85.) Although Dr. Barnett testified that plaintiff had some 22 numbness and loss of sensation in his right leg, he would not order an MRI or surgery because 23 plaintiff was improving with physical therapy, and physical therapy was the proper treatment. 24 (Barnett Dep. 253-54.) Such testimony does not support plaintiff’s view that the deposition 25 testimony contradicts Dr. Barnett’s declaration. 26 In addition, Dr. Barnett’s review of plaintiff’s medical records showed plaintiff 27 “continued to be physically active. He continued to exercise.” (Barnett Dep. at 253.) Dr. Barnett 28 confirmed plaintiff’s complaints in the record, including frequent complaints that his acute back 5 1 pain was at times worse. (Id. at 255.) But Dr. Barnett testified that “overall [plaintiff] does not 2 demonstrate -- even when he does say he has lots of pain, he doesn’t demonstrate a persistent 3 functional impairment.” (Id. at 255-56.) The records document that plaintiff “walks with no 4 discomfort, walks with ease, no physical impairment. He’s doing push-ups, which is hard to do if 5 you have significant -- which is impossible really if you have significant low back disease 6 because you have to support your entire torso with your low back when you do pushups.” (Id. at 7 256.) In light of Dr. Barnett’s deposition testimony, and review of his declarations, the 8 undersigned does not find a contradiction between Dr. Barnett’s deposition testimony and his 9 declarations, or that the inconsistency plaintiff alleges is clear and unambiguous. 10 Finally, and importantly, defendants are correct that plaintiff may only rebut Dr. Barnett’s 11 expert medical opinion with the opinion of another medical expert.6 Because plaintiff is not a 12 medical doctor, his lay opinions are insufficient. 13 For all of these reasons, plaintiff’s motion for sanctions is denied. 14 C. Plaintiff’s Motion to Strike Declarations 15 In his opposition, plaintiff moves to strike both declarations by Dr. Barnett. (ECF No. 16 72 at 51.) Plaintiff argues that Dr. Barnett’s declarations are “conclusory and have no evidentiary 17 value.” (Id. at 51.) However, Dr. Barnett graduated from Harvard Medical School in 1975, is 18 licensed to practice medicine in California, is board-certified in family medicine, and has 19 practiced within the correctional health care field since 2007. (ECF No. 30-7 at 1-2, 18.) Dr. 20 Barnett provided an expert medical opinion based on his training and expertise, review of 21 plaintiff’s extensive medical records, deposition, and complaint, as well as the discovery 22 responses provided in this action, and the June 1, 2015 screening order. Dr. Barnett identified the 23 medical records he found pertinent. Plaintiff provided no legal authority for his claim that only a 24 neurologist could provide an expert opinion in this case. Moreover, as a lay person, plaintiff 25 cannot refute Dr. Barnett’s expert medical opinion. Plaintiff’s motion to strike Dr. Barnett’s 26 6 27 28 Plaintiff also misquotes the language from the American Academy of Orthopaedic Surgeons. (ECF No. 76 at 2.) The language states, “All patients with chronic LBP [lower back pain] should be evaluated not only by a spine specialist but also by their internist, family practitioner, or, for women, their gynecologist.” (ECF No. 72 at 248.) 6 1 declarations is denied. 2 Plaintiff also seeks to strike portions of defendants’ declarations. However, as medical 3 doctors, each defendant is capable of rendering a medical opinion as to plaintiff’s diagnosis and 4 proper treatment. While plaintiff may disagree with their diagnoses, such disagreement provides 5 no basis to strike their declarations. Plaintiff’s motion to strike portions of defendants’ 6 declarations is also denied. 7 D. Defendants’ Motion to Strike 8 Defendants’ motion to strike plaintiff’s Exhibits A, B, C and D, which are health care 9 appeals and responses filed after this lawsuit was filed, is granted. The court has not considered 10 such exhibits because plaintiff’s administrative appeals filed after the instant action was filed are 11 not relevant to the instant motion. 12 E. Plaintiff’s Motion to File Sur-reply 13 On July 18, 2017, plaintiff filed a motion for leave to file a sur-reply to defendants’ reply, 14 along with his sur-reply. (ECF Nos. 80, 80-1.) Defendants opposed the motion, arguing there is 15 no valid reason to file a sur-reply. Plaintiff filed a reply. 16 The Local Rules do not authorize the routine filing of a sur-reply. Nevertheless, a district 17 court may allow a sur-reply “where a valid reason for such additional briefing exists, such as 18 where the movant raises new arguments in its reply brief.” Hill v. England, 2005 WL 3031136, at 19 *1 (E.D. Cal. 2005); accord Norwood v. Byers, 2013 WL 3330643, at *3 (E.D. Cal. 2013) 20 (granting the motion to strike the sur-reply because “defendants did not raise new arguments in 21 their reply that necessitated additional argument from plaintiff, plaintiff did not seek leave to file 22 a sur-reply before actually filing it, and the arguments in the sur-reply do not alter the analysis 23 below”), adopted, 2013 WL 5156572 (E.D. Cal. 2013). 24 Here, defendants did not raise new arguments in the reply brief, and plaintiff’s arguments 25 in his sur-reply do not impact the court’s analysis. For these reasons, plaintiff’s motion to file a 26 sur-reply (ECF No. 80-1) is denied. 27 //// 28 //// 7 1 IV. Defendants’ Motion for Summary Judgment 2 A. The Parties’ Arguments 3 1. Defendants’ Positions 4 Defendants contend that Dr. Lotersztain’s decision to treat plaintiff with non-narcotic 5 medications, not to perform an MRI, not to refer plaintiff to a back specialist, and not to refer 6 plaintiff for surgery was medically acceptable under the circumstances. Plaintiff’s initial back 7 injury occurred about 12 years ago, during an altercation with a police officer. Plaintiff recovered 8 from the injury, but began having episodes of acute lower back pain. Defendants argue that 9 plaintiff was seen by Dr. Lotersztain and CSP-Solano medical staff numerous times regarding his 10 complaints of lower back pain, yet received the same diagnosis of chronic lower back pain, most 11 likely caused by degenerative disc disease, by multiple physicians at PVSP, CSP-Solano, and 12 outside medical facilities. Plaintiff was provided with multiple x-rays and diagnostic tests which 13 confirmed that he presented with no red flags7 requiring an MRI or consultation with a specialist 14 for surgery. Defendants contend that plaintiff’s primary complaint throughout his visits was that, 15 at almost 40 years old, he is unable to play sports at the same elite level that he claims he was 16 once able to do. Plaintiff is able to work out vigorously, “advance his game,” play sports, walk, 17 run, and perform his regular daily activities with little to no difficulty. He was observed at every 18 appointment as being in no objectively observable pain, being able to perform all diagnostic tests 19 without being in any objectively observable pain, being able to walk, and sit up and down without 20 difficulty. Defendants argue that it is not defendants’ constitutional duty to return plaintiff to the 21 same level of athleticism he had when he was 20 years old. 22 In addition, defendants argue that plaintiff’s history of drug abuse and the medical records 23 do not indicate that opiates or stronger pain medication was medically necessary. The medical 24 examinations did not show objective evidence of severe disease or impairment, and was 25 confirmed by diagnostic tests. Defendants contend that plaintiff’s disagreement with his medical 26 treatment does not establish deliberate indifference. 27 28 7 Dr. Barnett appears to define “red flags” as alarming signs of serious disease. (ECF No. 30-7 at 5:15-16.) 8 1 Further, defendants contend that Dr. Lotersztain did not believe that treating plaintiff’s 2 pain with non-narcotics and without surgery posed a risk to his health or safety. Dr. Lotersztain 3 saw plaintiff multiple times, performed multiple diagnostic and medically appropriate tests, but 4 found plaintiff did not display any red flags making him a possible candidate for surgery. All of 5 the defendants and Dr. Barnett declare that Dr. Lotersztain’s treatment of plaintiff’s chronic pain 6 was appropriate and in line with prevailing medical standards. (ECF No. 30-2 at 35.) Moreover, 7 Dr. Barnett testified that the decisions to treat plaintiff with non-narcotics and without surgery did 8 not pose a substantial risk to plaintiff’s health. Even assuming Dr. Loterstzain told plaintiff that 9 his pain was “a part of prison life,” such claim does not show a lack of medical judgment or 10 disregard of plaintiff’s medical needs, and does not create a triable issue of material fact given the 11 medical evidence presented. (ECF No. 30-2 at 36.) 12 Defendants argue that the denial of plaintiff’s grievances by Dr. Kuersten and Dr. Pfile 13 does not state a constitutional violation because he has no constitutional right to a particular 14 grievance procedure. In addition, Dr. Pfile was not required to take additional steps because Dr. 15 Pfile conducted a full review of plaintiff’s medical records and complaints and determined Dr. 16 Lotersztain’s diagnosis was appropriate, and an MRI, back surgery and opiates were not 17 medically necessary or within the standard of care. Because Dr. Kuersten’s role was primarily 18 administrative, ensuring all documents were completed, and the medical opinions of the treating 19 doctor and the second level appeals reviewer aligned and there was no apparent departure from 20 medical standards, defendants argue that Dr. Kuersten was not required to review the medical 21 records or take additional steps. 22 Defendants argue that Dr. Lotersztain did not commit medical negligence or malpractice 23 because her decision to treat plaintiff according to prevailing medical standards and not provide 24 him with an MRI, referral to a specialist, back surgery, or opiates, was the proper course of 25 treatment in light of diagnostic testing and objective observations that plaintiff presented with no 26 red flags and his condition did not warrant treatment according to his requests. Defendants argue 27 that, contrary to proper treatment plans, plaintiff chose to continue working out vigorously and 28 playing contact sports, re-injuring his back and placing him in discomfort. (ECF No. 30-2 at 38.) 9 1 Finally, defendants contend they are entitled to qualified immunity. 2 In support of their motion, defendants provided, inter alia, declarations from each 3 defendant, as well as the declaration and amended declaration of their expert witness, Dr. Barnett. 4 (ECF Nos. 30-4, 30-5, 30-6, 30-7, 63-1.) 5 2. Plaintiff’s Opposition 6 Plaintiff argues that he suffered a devastating spinal injury on December 4, 2012, for 7 which all defendants treated him. (ECF No. 72 at 10.) Specifically, he claims that on December 8 4, 2012, he suffered a “rupture of a nucleus pulposus (central portion of the invertebral disc) in 9 his lumbar spine, a debilitating spinal injury, which causes the nerve root disorders radiculopathy 10 and sciatica, dramatically reducing mobility and function, and causing excruciating, constant 11 pain. (ECF No. 72 at 7.) Plaintiff claims his symptoms were obvious, even to laypersons, but 12 despite awareness of a possible catastrophic spinal cord injury, each defendant refused to verify 13 that plaintiff’s neurological function was intact, and refused to refer him to a specialist, or provide 14 him with adequate pain medication, subjecting plaintiff to almost four years of “extreme, extreme 15 level” pain, and loss of mobility and function. (ECF No. 72 at 7-8, citing Witkin Dep. 55:24-25.) 16 Plaintiff contends that Dr. Kuersten and Dr. Pfile were deliberately indifferent to plaintiff’s need 17 for a referral to neurology and an MRI at the time he sustained the spinal injury. Plaintiff objects 18 that Dr. Barnett is not an expert in neurology or “a scientist of the human central nervous 19 system.” (ECF No. 72 at 5.) 20 Plaintiff maintains that defendants failed to provide him with adequate pain medication, 21 resulting in his having to endure “completely unmanaged pain.” (ECF No. 72 at 7-8.) Plaintiff 22 argues that a jury could find defendants liable based solely on the four medical encounters on 23 December 12, 2012, January 9, 2013, April 4, 2013, and June 11, 2013. (ECF No. 72 at 55.) 24 Plaintiff contends that despite presenting with overt indications of progressive neurological 25 deficits, defendants purposefully disregarded his symptoms. (ECF No. 72 at 56.) 26 Plaintiff contends that by June of 2013, defendant Lotersztain suspected plaintiff was 27 suffering from a lumbar disc herniation and purposefully disregarded plaintiff’s request for an 28 MRI, and that by 2015, plaintiff was still effectively disabled and off work from January to May 10 1 2 due to ongoing and worsening neurological symptoms. Plaintiff argues that Dr. Lotersztain treated plaintiff “worse than an animal” because 3 although she suspected him of suffering from a herniated disc, knowing it is excruciatingly 4 painful, she “took pleasure in watching plaintiff suffer pain and dramatic mobility loss.” (ECF 5 No. 72 at 56.) Plaintiff asked her for narcotic pain medication for over two years at almost every 6 encounter, noting Dr. Lotersztain concedes there were “at least ‘thirty-five’ encounters.” (ECF 7 No. 72 at 56.) Plaintiff argues that defendants’ current claim that the denial of narcotic pain 8 medication was based on plaintiff’s history of substance abuse is unsupported because there is no 9 evidence that Dr. Lotersztain was even aware of such history or that she took such history into 10 account when she decided not to provide such medication. (ECF No. 72 at 56.) Plaintiff argues 11 that even if the defendants had made a conscious decision to let plaintiff’s spinal injury heal on its 12 own over a four year period, such decision should have been made by a neurosurgeon. (Id.) 13 In support of his opposition, plaintiff provided his own declaration and supplemental 14 declaration, as well as the declarations of his mother, and several inmates. (ECF No. 72 at 63-77; 15 122-24; 172-86.) 16 3. Defendants’ Reply 17 Defendants counter that plaintiff’s opposition is based on his belief that “multiple nurses, 18 doctors, and physical therapists at [CSP-Solano] and at outside hospitals falsified medical records 19 and medical encounters with plaintiff in order to deny him proper treatment,” but offers no 20 evidence to support such accusations. (ECF No. 77 at 1.) Defendants contend that the medical 21 records and diagnosis show plaintiff was provided with excellent medical care, and was not a 22 candidate for opiates or surgery, and that every single medical doctor who evaluated plaintiff’s 23 case determined plaintiff suffers from chronic low back pain and degenerative disc disease. (ECF 24 No. 77 at 4.) Plaintiff’s desire to be returned to the “first class athlete” status he claims he once 25 enjoyed is not guaranteed under the Eighth Amendment, and his attempt to dispute every medical 26 record over a period of years is not sufficient to raise a genuinely disputed material fact. Plaintiff 27 failed to present any competent expert testimony demonstrating that defendants were 28 professionally negligent or deliberately indifferent, and his unqualified opinions amount to a mere 11 1 difference of opinion, which is insufficient to establish deliberate indifference or professional 2 negligence under California law. (ECF No. 77 at 2.) 3 B. Summary Judgment Standards 4 Summary judgment is appropriate when the moving party “shows that there is no genuine 5 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 6 Civ. P. 56(a). 7 Under summary judgment practice, the moving party “initially bears the burden of 8 proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 9 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving 10 party may accomplish this by “citing to particular parts of materials in the record, including 11 depositions, documents, electronically stored information, affidavits or declarations, stipulations 12 (including those made for purposes of the motion only), admissions, interrogatory answers, or 13 other materials” or by showing that such materials “do not establish the absence or presence of a 14 genuine dispute, or that the adverse party cannot produce admissible evidence to support the 15 fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at 16 trial, “the moving party need only prove that there is an absence of evidence to support the 17 nonmoving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325.); see 18 also Fed. R. Civ. P. 56(c)(1)(B). Indeed, summary judgment should be entered, after adequate 19 time for discovery and upon motion, against a party who fails to make a showing sufficient to 20 establish the existence of an element essential to that party’s case, and on which that party will 21 bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of proof 22 concerning an essential element of the nonmoving party’s case necessarily renders all other facts 23 immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as 24 whatever is before the district court demonstrates that the standard for entry of summary 25 judgment . . . is satisfied.” Id. at 323. 26 If the moving party meets its initial responsibility, the burden then shifts to the opposing 27 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita 28 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 12 1 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 2 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 3 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 4 Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the 5 fact in contention is material, i.e., a fact that might affect the outcome of the suit under the 6 governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., 7 Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is 8 genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving 9 party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 10 In the endeavor to establish the existence of a factual dispute, the opposing party need not 11 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 12 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 13 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 14 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 15 Matsushita, 475 U.S. at 587 (citations omitted). 16 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the 17 court draws “all reasonable inferences supported by the evidence in favor of the non-moving 18 party.” Walls v. Central Costa County Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the 19 opposing party’s obligation to produce a factual predicate from which the inference may be 20 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), 21 aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing 22 party “must do more than simply show that there is some metaphysical doubt as to the material 23 facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the 24 nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation 25 omitted). 26 By contemporaneous notice provided on April 8, 2016 (ECF No. 30-1), plaintiff was 27 advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal 28 Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); 13 1 Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). Also, the court earlier provided Rand 2 notice on July 6, 2015. (ECF No. 13 at 3-4, 6.) 3 4 5 C. Legal Standards 1. Eighth Amendment While the Eighth Amendment of the United States Constitution entitles plaintiff to 6 medical care, the Eighth Amendment is violated only when a prison official acts with deliberate 7 indifference to an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th 8 Cir. 2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082–83 (9th 9 Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 10 1091, 1096 (9th Cir. 2006). Plaintiff “must show (1) a serious medical need by demonstrating 11 that failure to treat [his] condition could result in further significant injury or the unnecessary and 12 wanton infliction of pain,” and (2) that “the defendant’s response to the need was deliberately 13 indifferent.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096); McGuckin v. Smith, 974 14 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 15 F.3d 1133 (9th Cir. 1997) (en banc). 16 To establish “deliberate indifference” to such a need, the prisoner must demonstrate: “(a) 17 a purposeful act or failure to respond to a prisoner’s pain or possible medical need, and (b) harm 18 caused by the indifference.” Jett, 439 F.3d at 1096. Deliberate indifference “may appear when 19 prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown 20 by the way in which prison physicians provide medical care.” Id. (citations omitted). The 21 defendant must have been subjectively aware of a serious risk of harm and must have consciously 22 disregarded that risk. See Farmer v. Brennan, 511 U.S. 825, 845 (1994). An “isolated exception” 23 to the defendant’s “overall treatment” of the prisoner does not state a deliberate indifference 24 claim. Jett, 439 F.3d at 1096. Similarly, “mere malpractice, or even gross negligence” in the 25 provision of medical care does not establish a constitutional violation. Wood v. Housewright, 26 900 F.2d 1332, 1334 (9th Cir. 1990); see also Farmer, 511 U.S. at 835 (deliberate indifference is 27 “a state of mind more blameworthy than negligence” and “requires ‘more than ordinary lack of 28 due care for the prisoner’s interests or safety’”) (quoting Whitley v. Albers, 475 U.S. 312, 319 14 1 (1986)); Wilhelm, 680 F.3d at 1123 (a “negligent misdiagnosis” does not state a claim for 2 deliberate indifference). In addition, “[a] difference of opinion between a physician and the prisoner -- or between 3 4 medical professionals -- concerning what medical care is appropriate does not amount to 5 deliberate indifference.” Snow, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th 6 Cir. 1989)); Wilhelm, 680 F.3d at 1122-23 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th 7 Cir. 1986)). Rather, plaintiff “must show that the course of treatment the doctors chose was 8 medically unacceptable under the circumstances and that the defendants chose this course in 9 conscious disregard of an excessive risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 10 90 F.3d at 332) (internal quotation marks omitted). Deliberate indifference may be found if 11 defendants “deny, delay, or intentionally interfere with [a prisoner’s serious need for] medical 12 treatment.” Hallet v. Morgan, 296 F.3d 732, 734 (9th Cir. 2002). 13 In order to prevail on a claim involving defendants’ choices between alternative courses of 14 treatment, a prisoner must show that the chosen treatment “was medically unacceptable under the 15 circumstances” and was chosen “in conscious disregard of an excessive risk to plaintiff’s health.” 16 Jackson, 90 F.3d at 332. In other words, so long as a defendant decides on a medically acceptable 17 course of treatment, his actions will not be considered deliberately indifferent even if an 18 alternative course of treatment was available. Id. 19 2. State Law Negligence Claim A public employee is liable for injury to a prisoner “proximately caused by his negligent 20 21 or wrongful act or omission.” Cal. Gov’t Code § 844.6(d). Under California law, “‘[t]he elements 22 of negligence are: (1) defendant’s obligation to conform to a certain standard of conduct for the 23 protection of others against unreasonable risks (duty); (2) failure to conform to that standard 24 (breach of duty); (3) a reasonably close connection between the defendant’s conduct and resulting 25 injuries (proximate cause); and (4) actual loss (damages).’” Corales v. Bennett, 567 F.3d 554, 26 572 (9th Cir. 2009) (quoting McGarry v. Sax, 158 Cal. App. 4th 983, 994 (2008)). 27 //// 28 //// 15 1 D. Undisputed Facts8 (“UDF”) 2 Background 3 1. Plaintiff Michael Aaron Witkin is a state prisoner in the custody of the CDCR. 4 2. At all times relevant to this action, plaintiff was housed at CSP-Solano. 5 3. Since June of 2013, defendant Dr. Lotersztain was plaintiff’s primary care physician at 6 CSP-Solano. (ECF No. 1 at 5; Lotersztain Decl. at ¶¶ 3, 7.) 7 4. At all relevant times, defendant Dr. Pfile was a Chief Physician and Surgeon at CSP- 8 Solano, and reviewed plaintiff’s health care appeal log numbers SOL HC 14038941 and SOL- 9 HC-13038309 at the second level of review. (Mulligan-Pfile Decl. (hereafter “Pfile Decl.”) at ¶1; 10 ECF No. 1 at 32.) From approximately September 7, 2012, to December 13, 2012, Dr. Pfile was 11 plaintiff’s primary care physician. (Pfile Decl. at ¶ 4.) Dr. Pfile also saw plaintiff on April 4, 12 2013, while temporarily covering clinic. (ECF No. 72 at 245.) 13 5. At all relevant times, defendant Kuersten was a Chief Medical Executive at CSP- 14 Solano, and reviewed Dr. Pfile’s decision concerning plaintiff’s health care appeal log number 15 SOL HC 14038941 at the second level of review. Dr. Kuersten also treated plaintiff on occasion. 16 See, e.g., ECF No. 30-9 at 12, 19-21; Pl.’s Bates No. 41 (ECF No. 72 at 190); 72 at 224.) 17 Pain Management 18 6. Pain treatment is a challenging medical issue, especially in the correctional setting. 19 7. California’s Prison Health Care Services (“CPHCS”) has developed pain-management 20 guidelines to provide clinicians with a standardized framework to address pain problems in their 21 patients. The guidelines provide clinical and decision-support information for the management of 22 acute and chronic pain, including the use of opioid medications like methadone. The guidelines 23 are periodically reviewed and revised to reflect current scientific information and outcome data. 24 8. CDCR clinicians are required to be familiar with the Pain Management Guidelines. 25 9. Under the guidelines, the primary focus of pain management is to preserve or restore a 26 27 28 patient’s functional status sufficient to allow the patient to perform the activities of daily living 8 For purposes of summary judgment, the undersigned finds these facts are undisputed, unless otherwise indicated. 16 1 and participate in facility programming. 2 3 10. Pain-management medications are generally classified as non-opioid analgesics, neuropathic pain agents, and opioids. 4 5 11. Non-opioid analgesics include non-steroidal anti-inflammatory drugs (NSAIDs), such as Motrin. 6 7 12. Neuropathic pain agents target nerve-based pain and include certain anticonvulsant and antidepressant drugs. 8 9 13. Opioids (narcotics) are the chronic-pain treatment of last resort. This is because evidence supporting the effectiveness of opioids for long-term treatment of non-cancer chronic 10 pain is limited, and opioids are associated with potentially serious harm, including adverse 11 medical events and abuse potential. 12 14. Therefore, the use of opioids is appropriate for chronic-pain management only where 13 (1) there is ongoing objective evidence of severe disease; and (2) the disease prevents the patient 14 from performing the activities of daily living. 15 16 15. The treating physician must stringently weigh the risks and benefits of opioids, including the patient’s co-morbid medical, psychiatric, and substance-abuse histories. 17 Plaintiff’s Medical History 18 16. Plaintiff played contact sports from junior high through junior college. (Deposition of 19 Michael Witkin (Witkin Dep.) at 17:15-24, 20:5-21:1.) 20 21 17. In 2004, plaintiff received a back injury as the result of an encounter with a police officer. (Witkin Dep. at 22:15-23:20; Lotersztain Decl. at ¶ 9.) 22 23 18. During the same encounter, plaintiff was shot in his legs and back. (Witkin Dep. at 24:17-24; Lotersztain Decl. at ¶ 9.) 24 19. Bullet fragments from the incident are still located on plaintiff’s right side near his 25 liver. (Witkin Dep. at 27:13-24.) 26 //// 27 //// 28 //// 17 1 20. Plaintiff has a history of substance abuse, including use of cocaine, marijuana, and 2 alcohol. (Decl. of M. Weeks, Ex. A - Medical Records of Michael Witkin (“WMR”) at 273;9 3 Barnett Decl. ¶ 8.) 4 Plaintiff’s Medical Records at CSP-Solano 5 21. Plaintiff arrived at CSP-Solano on September 7, 2012. 6 22. Immediately upon plaintiff’s arrival, he was playing contact sports on the yard with 7 the other inmates. (Witkin Dep. at 45:15-22.) 8 9 23. On October 16, 2012, in his new arrival exam performed by Dr. Pfile, plaintiff was noted as having a history of occasional right shoulder pain treated with Motrin. He was noted as 10 being an otherwise healthy male. There was no mention of any back or neck pain. (WMR at 275; 11 Pfile Decl. at ¶ 5; Lotersztain Decl. at ¶ 11; Barnett Decl. at ¶ 8.) 12 24. Plaintiff was on the same pain medication, oxcarbazepine, that he had been prescribed 13 by Dr. Owolabi at PVSP when he arrived at CSP-Solano. (Witkin Dep. at 49:1-11; Lotersztain 14 Decl. at ¶ 10.) 15 16 25. Plaintiff stopped taking the medication because he did not like the way it was handed out at CSP-Solano. (Witkin Dep. at 49:9-11.) 26. On December 5, 2012, plaintiff was taken to the Triage Treatment Area (“TTA”), 17 18 where he was seen and treated by Dr. Hsieh. (WMR at 7; Witkin Dep. at 51:2-7; ECF No. 1 at 19 48-50; Barnett Decl. at ¶ 8.). Dr. Kuersten also treated plaintiff on December 5, 2012. (ECF No. 20 30-9 at 12, 19-21; Pl.’s Bates No. 41 (ECF No. 72 at 190).) Plaintiff was provided injections of 21 Robaxin, 500 mg., and Toradol, 60 mg, and provided a prescription of Tylenol #3. (ECF No. 1 at 22 49.) 23 24 27. Plaintiff was not experiencing any urine or fecal incontinence at this time. (WMR at 9; Witkin Dep. at 51:8-15.) 25 28. On December 6, 2012, plaintiff was seen in the RN line by an unidentified RN. The 26 RN wrote that plaintiff reported feeling 50% better, but for the past 8 years, at least twice a year, 27 28 9 References to WMR page numbers are to the Bates numbers stamped on the bottom right of the page rather than ECF numbers. 18 1 plaintiff had really bad low back pain and muscle spasms where he can’t even move and is 2 probably because of the gunshot to his back in 2004. (WMR at 12.) Plaintiff also reported 3 occasional right shoulder/trapezius pain. “Ambulates with steady gate and minimal guarding, 4 denies numbness/tingling to extremities.” (WMR at 12.) Plaintiff now declares10 that at the December 6, 2012 nurses line, he reported “extreme 5 6 difficulty walking, and shooting, radiating pain down [his] right leg, with a loss of strength,” and 7 reported that his “leg was so numb [he] could barely feel or move [his] foot.” (ECF No. 72 at 8 64.)11 9 29. On December 9, 2012, plaintiff submitted a health care services request form stating 10 he was experiencing extremely severe back pain. (ECF No. 1 at 141.) Plaintiff was x-rayed by 11 Vacaville Imaging on December 10, 2012. The x-ray findings noted plaintiff’s “vertebral bodies 12 are well aligned. Mild relative disc space narrowings are present at the L4-5 and L5-S1 levels. 13 No significant endplate osteophytes are present. Lumbar lordosis is normal.” (WMR at 16.) The 14 x-ray impressions revealed early lumbar spine degenerative disc disease (“DDD”)12 and multiple 15 bullet fragments in the upper abdomen/lower chest on the lateral view. (WMR at 16; Barnett 16 Decl. at ¶ 8.) 17 30. On December 12, 2012, Dr. Pfile saw plaintiff and charted that plaintiff was “here 18 following TTA visit 12/5/12 for acute [lower back pain]. [Symptoms] resolved with Toradol, 19 20 21 22 23 24 25 10 Defendants filed various evidentiary objections to plaintiff’s declaration. Many of defendants’ evidentiary objections are well-taken, but in an abundance of caution, and because plaintiff proceeds pro se, the court has included relevant portions of plaintiff’s declaration in the statement of undisputed facts. 11 Plaintiff also cites to the declaration of inmate Smith, paragraph 3; however, Smith does not specifically address plaintiff’s symptoms on December 6, 2012, when plaintiff reported to the nurses line, or indicate that Smith witnessed the exchange between plaintiff and the RN. (ECF No. 72 at 122.) 12 26 27 Dr. Barnett explained that DDD “is a term of art used by radiologists and other physicians to describe findings consistent with normal aging of the spine. Orthopedic surgeons disfavor the use of the diagnosis DDD because it implies a ‘disease’ when often the symptoms are the result of physiologic changes of aging.” (Barnett Decl. at 5 n.3, citation omitted.) 28 19 1 Robaxin and heating pad. He is 90% recovered today. No red flags. Has occasional flares.” 2 (WMR at 14.) No neurological symptoms were recorded. (Id.) Dr. Pfile recommended plaintiff 3 continue taking Motrin as needed and referred him to physical therapy. (WMR at 14-15; ECF 4 No. 1 at 140; Barnett Decl. at ¶ 8.) In her response to interrogatories, Dr. Pfile confirmed that no 5 diagnostic tests were ordered because following her review of the x-ray and evaluation of 6 plaintiff’s complaints and objective symptoms, she determined no further tests were needed in 7 order to diagnose plaintiff with acute low back pain. (ECF No. 72 at 233.) Dr. Pfile declares that 8 during the December 12, 2012 visit, plaintiff reported 90% improvement in his symptoms 9 following the treatment with Toradol, Robaxin, and a heat pad that he was provided in the TTA. 10 (Pfile Decl. at ¶ 6.) “During this visit, he exhibited no red flags or unusual symptoms and his 11 exam was within normal limits.” (Id.) 12 Plaintiff now declares that Dr. Pfile performed a straight leg raising test that registered 13 positive at 50 degrees, when plaintiff cried out and reported pain shooting down the back of his 14 right leg, and which precluded Dr. Pfile from documenting that plaintiff’s neurological function 15 was within normal limits. (Pl.’s Decl. at ¶ 7; WMR 14.) Plaintiff declares that he exhibited 16 “extreme difficulty walking, and reported shooting, radiating pain from the right leg with 17 numbness and weakness.” (Pl.’s Decl. at ¶ 7.)13 18 However, Dr. Barnett opined that because Dr. Pfile charted plaintiff was 90% recovered, 19 “no red flags,” “the likelihood is extremely high that there is no neurological deficit because 20 recovery to a 90% level with no alarming features,” such as no fever, no increasing pain, no 21 abnormal neurological signs or symptoms, i.e., plaintiff was not saying “my right leg is weak,” 22 “my left leg is weak,” “I’m falling down.” (Barnett Dep. at 248.) Dr. Barnett confirmed that 23 despite the absence of Pfile’s notation that neurological exam was “WNL” (within normal limits), 24 the record as a whole indicates everything was okay. (Id.) 25 13 26 27 28 In his statement of disputed facts, plaintiff claims his neurological function was gravely impaired on December 12, 2012. (ECF No. 72 at 127.) Plaintiff’s cell-neighbor, inmate Smith, declares that plaintiff was “gravely injured.” (ECF No. 72 at 122-23 ¶¶ 3, 4, 7.) However, plaintiff and inmate Smith are not medical doctors and are not qualified to render medical conclusions. 20 1 31. Following evaluation of the December 10 x-ray, on December 21, 2012, a chronic 2 care appointment was scheduled for plaintiff by Dr. Hsieh. (Pl.’s Bates No. 450 (ECF No. 72 at 3 195).) 4 32. On December 25, 2012, plaintiff submitted a health care services request form stating 5 he was “still experiencing considerable back pain,” wanted to go over his x-ray results with his 6 doctor, and “the muscle relaxers work, but only for 30 minutes of pain relief.” (WMR at 17.) 7 33. Plaintiff was seen by the triage nurse, Cary MacDonald, R.N., on December 27, 2012. 8 The RN recorded plaintiff’s breathing as even and unlabored; and he was ambulatory, with 9 normal gait. Plaintiff’s pain was noted as a 6/10, and he was taking Motrin and Robaxin. (WMR 10 at 17.) Plaintiff was advised to continue taking his medication as directed and to continue back 11 exercises as instructed. 12 34. On January 9, 2013, plaintiff was seen by Dr. Kuersten, who charted plaintiff’s 13 complaints that he still has lower back pain, non-radiating, maintains independent functional 14 ADL status, has not started physical therapy. (WMR at 18.) 15 35. Dr. Kuersten also charted that plaintiff was sitting comfortably in the waiting area, 16 grinning, getting out of his chair quickly without discomfort or guarding, and ambulated briskly 17 without hesitation/guarding/limp. (WMR at 18.) In the assessment portion, Dr. Kuersten charted 18 lower back strain; x-ray reviewed (mild lumbar DDD); clinician’s observations and behavior of 19 plaintiff do not suggest any significant impairment; physical therapy management pending. 20 (WMR at 18.) 21 36. It is undisputed that Dr. Kuersten terminated the January 9, 2013 appointment. 22 Plaintiff claims Dr. Kuersten “became angry and confrontational” when plaintiff asked what was 23 going to be done about his condition. (Pl.’s Decl. at ¶ 8.) Dr. Kuersten charted that “shortly into 24 the visit,” plaintiff “became confrontational and disparaging, and after repeated failed attempts to 25 educate [plaintiff] about facts of his condition and management, the visit was terminated by this 26 provider.” (WMR at 18.) 27 28 Plaintiff now claims that on January 9, 2013, he reported the following conditions to Dr. Kuersten: Experiencing shooting, debilitating pain, traveling down right buttock and leg; loss of 21 1 muscle strength; a burning, pins-and-needles feeling in his shin, ankle, and foot; shin, ankle, and 2 foot felt like “a block of wood;” significant difficulty walking, including a pronounced limp, due 3 to his right leg being “dragged along,” and extreme stiffness and soreness originating in his lower 4 lumbar area, proceeding throughout his entire lower back. (Pl.’s Decl. at ¶ 8.) Inmate Smith 5 declares that for at least 5 to 6 months after the December 2012 injury, plaintiff had “an obvious 6 limp.” (Smith Decl. at ¶ 7.) 7 37. On January 9, 2013, Dr. Kuersten requested a psychiatric appointment for plaintiff 8 because his subjective complaints of extreme lower back pain were not supported by objective 9 findings and observation. (WMR at 19.) Dr. Kuersten noted plaintiff appeared to be seeking 10 some sort of a secondary gain, he was acting confrontational and disparaging toward medical 11 providers, and that he may have a possible personality disorder. (WMR at 19; Barnett Decl. at 12 ¶ 8.) 13 38. In response to Dr. Kuersten’s request, Dr. Parroff had a consultation with plaintiff on 14 January 23, 2013, and noted plaintiff can be confrontational. Dr. Parroff further noted plaintiff 15 has a history of being bi-polar. (WMR at 20; Barnett Decl. at ¶ 8.) 16 39. Plaintiff was seen on February 4, 2013, by RN S. Champen. RN Champen noted 17 plaintiff did not have any complaints of pain or other discomfort and denied any bowel/bladder 18 problems. Plaintiff was instructed to perform back stretches. (WMR at 21.) 19 40. On February 25, 2013, plaintiff submitted a health care services request form stating 20 he was “experiencing excruciating lower back pain.” (WMR at 23.) Plaintiff was seen on 21 February 26, 2013, with complaints of lower back pain, 8/10. Plaintiff informed RN MacDonald 22 that the pain was worsened with activity. Plaintiff was instructed to avoid reinjuring the site and 23 only participate in physical activity as tolerated. (WMR at 24; ECF No. 1 at 137.) 24 41. On March 12/13, 2013, an unidentified RN saw plaintiff for his complaints of chronic 25 lower back pain 8/10; charted that physical therapy was supposed to help, but plaintiff had not yet 26 seen PT. (WMR at 25.) Plaintiff reported no numbness or tingling. The RN charted that plaintiff 27 was ambulating, bending, sitting and standing without difficulty, and there was no weakness 28 noted by range of motion to affected extremity. (WMR at 25.) The RN confirmed plaintiff’s 22 1 referral to PT was approved January 7, 2013, but noted CSP-Solano only had one PT, so there 2 was a 3 month waiting period. (WMR at 27.) The RN noted that chronic back pain is something 3 that is permanent -- it may get better and at other times he may experience flare-ups and feel 4 worse -- even receiving back surgery doesn’t mean you will be pain free. (WMR at 27.) 5 42. On March 25, 2013, plaintiff submitted a health care services request form stating he 6 was suffering from extremely severe back pain, 8/10. (WMR at 28, 29.) In a subsequent 7 appointment with RN MacDonald on March 26, 2013, plaintiff expressed that his back pain was 8 made worse by exercise; “Pain is acute, intermittent, throbbing, pain affects sleep, exercise.” 9 (WMR at 29.) RN MacDonald also noted plaintiff was sitting comfortably, with no grimacing or 10 restlessness, and that plaintiff’s complaints were not consistent with the visual exam. She also 11 noted no neurological deficits. Plaintiff was instructed to avoid reinjuring the site and to use 12 medication as ordered. (WMR at 29.) 13 43. Plaintiff was seen by DPT A. Stone on April 5, 2013. (WMR at 33.) Plaintiff’s pain 14 levels were reported as best: 4/10; worst: 10/10 (6 months), but in general 6-7/10; and currently: 15 6/10. Plaintiff’s pain was constant, throbbing, and he was stiff, but no signs of numbness. 16 Plaintiff’s lower back pain was aggravated by working out, prolonged sitting, sleeping pattern, 17 and relieved by medication and stretching. DPT Stone noted plaintiff’s x-ray showed DDD. 18 (WMR at 32.) 19 44. During the physical therapy examination on April 5, 2013, plaintiff stated that 20 “once[he is] warmed up [he] feels better.” (WMR at 32.) He also stated he works as a porter. 21 Plaintiff was assessed as having DDD and poor posture. A plan was made to increase mobility 22 and plaintiff was provided a home exercise program (“HEP”). (WMR at 276-77; Barnett Decl. at 23 ¶ 8.) 24 45. On April 29, 2013, plaintiff submitted a health care services request form stating he 25 was suffering from severe back and foot pain. (WMR at 30; Pl.’s Decl. at ¶ 11 (pain was 8).) On 26 April 30, 2013, plaintiff was seen by RN MacDonald who charted that plaintiff stated his lower 27 back pain was improving, but still has upper back pain with a stiff neck, 6/10, and right foot pain 28 5/10. Plaintiff was instructed to engage in activity as tolerated. (WMR at 31; Barnett Decl. at 23 1 ¶ 8.) 2 3 Plaintiff now declares he also told RN MacDonald that he had radiating right leg pain and weakness, pain, and numbness in his right foot. (Pl.’s Decl. at ¶ 11.) 4 46. Plaintiff was seen by physical therapist A. Franklin on May 14, 2013. (WMR at 33.) 5 Franklin described plaintiff’s complaints as “morning stiffness. Intermittent chronic lower back 6 pain for 7 years.”14 (Id.) Franklin recorded plaintiff’s pain as intermittent, currently 0/10, but 7 when worst, the pain was 7/10. (WMR at 33.) In the assessment, PT Franklin charted that 8 plaintiff showed “very minimal irritability. Patient in absolutely 0 signs of distress” when asked 9 to perform multiple tests and exercises. (WMR at 33; Barnett Decl. at ¶ 8.) 10 Plaintiff now declares that performing the physical therapy exercises was extremely 11 painful, but he did his best to attempt them. (Pl.’s Decl. at ¶ 12.) In addition, plaintiff now 12 declares that after he obtained his medical records he “noticed Franklin had falsified” the records 13 to show plaintiff was reporting a 0 pain level “when worst” after the first appointment, when 14 plaintiff was actually reporting 7-8 levels.” (Pl.’s Decl. at ¶ 12.) 15 47. Plaintiff was seen by PT Franklin again on May 21, 2013. Plaintiff reported 16 immediate relief from the exercises PT Franklin prescribed (mid back stretching, single leg 17 bridges, and cobra stretch) at their previous appointment. Plaintiff stated he was in no pain, and 18 has his pain under control. (WMR at 34; Barnett Decl. at ¶ 8.) 19 48. On May 29, 2013, plaintiff was seen by PT Franklin, who charted that plaintiff was 20 “still doing well with his back and staying motivated with his HEP. He is ‘advancing his play.’” 21 (WMR at 35.) Plaintiff reported dull ache pain aggravated by prolonged sitting, but reported 0 22 current pain. Plaintiff was instructed to continue with the prescribed exercises. Franklin noted 23 plaintiff’s benefit to physical therapy achieved, and ordered PT discontinued. (WMR at 35; 24 Barnett Decl. at ¶ 8.) 25 //// 26 14 27 28 Defendants read Franklin’s note as stating that plaintiff had been playing basketball for the last 3 years, which plaintiff disputes. However, the court reads Franklin’s note as stating plaintiff went man down on December 5, after playing basketball for three years, describing plaintiff’s history, not his current activities. (WMR at 33.) 24 1 Plaintiff denies he told Franklin plaintiff was “advancing his play” because plaintiff had 2 not played sports since his December 2012 injury. (Pl.’s Decl. at ¶ 12.) Plaintiff declares that on 3 May 28, 2013, he was still suffering pain, numbness, and tingling in his right foot and shin, and 4 could not lift the front part of his right foot. (Pl.’s Decl. at ¶ 12.) 5 Plaintiff’s Medical Records & Appeals - Post June 2013 (Dr. Lotersztain) 6 49. On June 11, 2013, Dr. Lotersztain saw plaintiff for complaints of “having high arch 7 and having foot pain due to state shoe. No trauma, no injury.” (Pl.’s Bates 253 (ECF No. 72 at 8 198).) In the objective portion, the doctor noted plaintiff had pain when pressing below arches; 9 assessed bilateral foot pain, slightly high arch, and ordered insoles. (Id.) 10 In his declaration, plaintiff now declares he told the doctor of his “excruciating, radiating 11 lower back pain, acute lower back spasms with shooting pain down his right leg with numbness, 12 weakness, tingling, and a pins-and-needles feeling in the right calf and foot; severe stiffness and 13 soreness from the base of his lumbar spine throughout his lower back. (Pl.’s Decl. at ¶ 14.) 14 Plaintiff declares that Dr. Lotersztain told plaintiff he probably had a collapsed or ruptured disc in 15 his lumbar spine, and when asked why plaintiff was having problems with his motor skills and 16 limb numbness, Dr. Lotersztain replied that a “herniated disc [was] probably compressing a nerve 17 root,” but “anyway we’re not here for that, we’re here for your right foot.” (Pl.’s Decl. at ¶ 14.) 18 Plaintiff claims he requested an MRI, but was ignored. 19 20 21 50. On July 11, 2013, plaintiff completed a health care services request form stating he was having severe back pain. (WMR at 36, 37.) 51. Plaintiff was seen by RN MacDonald on July 15, 2013, with complaints of severe 22 lower back pain, 8/10. Plaintiff was instructed to follow up with the RN clinic in 72 hours if his 23 symptoms persisted. Plaintiff was also referred to his physician’s clinic. (WMR at 37-39.) 24 52. On August 1, 2013, Dr. Lotersztain saw plaintiff and charted the following: 25 “Subjective: complains of low back pain, discontinued from PT on 5/29, but says he was 26 asymptomatic and did not get full benefit. . . .had a thumb sprain (left) playing basketball. 27 Assessment/Plan: chronic low back pain: no red flags. Consistent with muscle spasms. 28 Continue Ibuprofen. Re-refer to PT (low priority). Educated on realistic expectations.” 25 1 (WMR at 42, 278; ECF No. 1 at 129; Lotersztain Decl. at ¶¶ 12-13; Barnett Decl. at ¶ 8.) 2 Plaintiff declares that on August 1, 2013, he also complained of a burning, shooting pain 3 in his right buttock, thigh, and shin with numbness, muscle weakness and muscle spasms in his 4 lower back; severe stiffness and soreness at the base of his lumbar area; and that his pain was 5 8/10.15 (Pl.’s Decl. at ¶ 16.) Plaintiff declares he was unable to squat down due to his condition. 6 (Id.) Dr. Lotersztain declares that during the August 2013 visit, despite plaintiff’s reports of 7 lower right paraspinal pain, his mobility was completely normal.” (Lotersztain Decl. at ¶ 13.) 8 9 53. On August 3, 2013, Dr. Lotersztain referred plaintiff to physical therapy. (WMR at 43.) 10 54. On August 21, 2013, plaintiff was seen by PT Franklin, who noted “physical therapy 11 is not something this patient needs at this time because he already had PT earlier this year and he 12 already performs my rec[ommended] core exercises. He plays sports. He has no signs of 13 distress.” (WMR at 43; Lotersztain Decl. at ¶ 14; Barnett Decl. at ¶ 8.) 14 55. On August 28, 2013, plaintiff filed appeal no. SOL-HC-13038309, claiming that the 15 physical therapist denied plaintiff care “and attempted to downplay the severity of [plaintiff’s] 16 chronic back pain that rendered [him] unable to walk as recently as December 5.” (ECF No. 1 at 17 28.) Plaintiff sought physical therapy as prescribed and an MRI. (Id.) 18 19 56. On September 19, 2013, plaintiff was seen by RN Ogumleyes for lower back pain, 7/10, identified as dull, throbbing, spasm. (Pl.’s Bates 235.) 20 57. Plaintiff was seen by Dr. Lotersztain on October 1, 2013, where he presented with 21 complaints of low back pain. Dr. Lotersztain charted the following: “‘You know I’m a lawyer 22 and I want an MRI, we are just guessing otherwise.’ Seen by PT 8/21/13: patient in no distress, 23 plays sports.” (WMR at 284.) Upon examination, plaintiff was noted as “muscular,” with “pain 24 in L5-5, radiated to sides. Can squat, walk on toes and fully bend forward.” (WMR at 284.) Dr. 25 15 26 27 28 Plaintiff argues that Dr. Lotersztain falsified this medical record by failing to record plaintiff’s back complaints, other than muscle spasms, and declares that Dr. Lotersztain told plaintiff he could expect these symptoms and pain level for the rest of his life. (ECF No. 72 at 129; Pl.’s Decl. at ¶ 16.) Plaintiff contends the doctor failed to refer plaintiff to a spine specialist or provide appropriate pain medication. (ECF No. 72 at 129.) Dr. Lotersztain denies she falsified any medical records of plaintiff. (Lotersztain Decl. at ¶ 46.) 26 1 Lotersztain assessed plaintiff’s chronic low back pain was “probably from L-spine DDD after 2 years of strenuous exercises. There is no evidence that surgery is helpful, and therefore an MRI is 3 not medically necessary.” (WMR at 284.) Plaintiff was advised to limit Motrin due to side 4 effects; changed to Tylenol. Plaintiff was “told to have realistic expectations about chronic pain.” 5 (WMR at 284; ECF No. 1 at 127; Lotersztain Decl. at ¶ 15; Barnett Decl. at ¶ 8.) 6 Plaintiff now disputes that he was able to walk on his toes and heels and squat down 7 because of pain and weakness in his right leg. (Pl.’s Decl. at ¶ 17.) Plaintiff declares that Dr. 8 Lotersztain told plaintiff to expect this type of pain for the rest of his life, and that plaintiff would 9 not be provided with radiological studies or surgery no matter his physical condition. (Pl.’s Decl. 10 11 at ¶ 17.) 58. On October 9, 2013, nonparty Dr. Hsieh denied plaintiff’s first level appeal no. SOL- 12 HC-13038309 in which plaintiff sought an MRI and physical therapy. (ECF No. 1 at 36.) Dr. 13 Hsieh’s exam showed plaintiff was very muscular and well developed; there was no obvious 14 kyphosis or scoliosis in plaintiff’s lumbar spine; plaintiff could flex and extend with no signs of 15 back pain; plaintiff could flex all the way and touch his toes, squat fully and stand with no back 16 pain, walk on tip toe and heel with no pain; plaintiff’s sensation of lower legs was intact, and 17 ankle and patellar reflex were intact. (ECF No. 1 at 36.) Dr. Hsieh noted plaintiff’s December 18 2012 x-ray showed early lower lumbar spine DDD; plaintiff saw the physical therapist on August 19 21, 2013, who noted plaintiff was in no distress, playing sports. Dr. Hsieh found plaintiff did not 20 meet criteria for MRI. (Id.) 21 22 23 59. On October 22, 2013, plaintiff submitted a health care services request form stating he was suffering “extremely severe lower back pain.” (WMR at 44.) 60. Plaintiff was seen on October 24, 2013, with complaints of lower back pain, 9/10, 24 described as throbbing. (WMR at 45.) RN C. Braunger instructed plaintiff to continue 25 recommended lower back exercises and provided plaintiff with an instruction sheet. Plaintiff was 26 also advised to engage in activity as tolerated and to avoid sitting for prolonged periods of time. 27 He was also provided with pain medication Naproxen Sodium 220 mg. (WMR at 45-47; ECF 28 No. 1 at 124-26.) 27 1 61. On October 25, 2013, plaintiff was seen by RN M. Smith with complaints of 2 numbness and loss of sensation in his right leg. Plaintiff stated physical therapy makes it better. 3 Plaintiff was referred to his PCP. (WMR at 48-51.) 4 62. On October 29, 2013, plaintiff was seen by M. Smith, R.N., for complaints of right 5 leg pain, 8/10, described as throbbing, spasm. (WMR at 49.) Plaintiff was referred to his PCP. 6 63. Plaintiff was seen by Dr. Lotersztain on October 31, 2013, with complaints of chronic 7 low back pain. Plaintiff requested a spine MRI at the appointment. While Dr. Lotersztain was 8 performing diagnostic physical tests on plaintiff, the doctor charted that plaintiff said, “Of course 9 I can bend forward and pick up stuff from the floor, I was a first class athlete!” (WMR at 52; see 10 also Lotersztain Decl. at ¶19.) Dr. Lotersztain documented that plaintiff was seen coming 11 downstairs from class, fast, with no difficulty. (Id.) Dr. Lotersztain assessed plaintiff’s chronic 12 lower back pain, and also noted plaintiff complained of “right anterior thigh numbness, but 13 negative physical exam. Prescribed Naproxen, warned about GI side effects.” (WMR at 52.) Dr. 14 Lotersztain also noted that she again educated plaintiff on “realistic expectations about chronic 15 pain and/or becoming a ‘first class athlete’ again.” (WMR at 52; ECF No. 1 at 122; Lotersztain 16 Decl. at ¶19; Barnett Decl. at ¶ 8.) Dr. Lotersztain declares that she observed plaintiff “run down the stairs at a fast pace.” 17 18 (Lotersztain Decl. at ¶19.) 19 20 Plaintiff now declares that Dr. Lotersztain refused to examine plaintiff’s back, claiming she “already told me the pain was permanent.” (Pl.’s Decl. at ¶ 18.)16 21 22 64. On November 12, 2013, plaintiff submitted a health care services request form stating “severe back pain.” (WMR at 53.) 23 65. RN Braunger saw plaintiff on November 14, 2013, with complaints of lower back 24 pain, 8/10, described as throbbing, spasm. RN Braunger noted plaintiff was able to take his shirt 25 on and off without grimacing. Plaintiff was encouraged to continue recommended exercises and 26 engage in activity as tolerated. (WMR at 54-56; ECF No. 1 at 116-18.) 27 28 16 Plaintiff denies he used the phrase “first class athlete,” stating he was not enrolled in any class at the time. (ECF No. 72 at 130.) However, plaintiff’s denial was not included in his declaration. 28 1 66. On November 25, 2013, Dr. Lotersztain saw plaintiff, who complained of low back 2 pain. (WMR at 57.) Plaintiff stated he “did some research” and discovered he cannot have an 3 MRI because of the bullet fragments located in his upper body. The doctor noted plaintiff tried to 4 negotiate: “If you give me a low bunk I won’t file a 602 for one year.” (Id.) Plaintiff claimed 5 the upper bunk was “inflicting pain to the inmate.” (Id.) In her objective exam, Dr. Lotersztain 6 marked plaintiff’s musculoskeletal and neurological were within normal limits, and noted 7 plaintiff was able to walk without difficulty. She further noted he was diagnosed with DDD with 8 an x-ray in December 2012. Plaintiff reiterated that he wants to be a “first class athlete” again. 9 Dr. Lotersztain noted that plaintiff’s back pain was not disabling and there was no indication for a 10 low bunk, narcotics, or referral to a “back specialist.” (WMR at 57; ECF No. 1 at 114; Barnett 11 Decl. at ¶ 8.) 12 Plaintiff now declares that on November 25, 2013, he told Dr. Lotersztain that the 13 medications were not working, and “outlined the same symptoms,” but the doctor “seemed 14 exasperated, and said, ‘I know you’re in severe pain but thing is we’re just not going to spend any 15 money to do anything about it.” (Pl.’s Decl. at ¶ 19.) Plaintiff declares the doctor refused to 16 examine his back or refer him to a specialist. (Id.) 17 67. On December 2, 2013, plaintiff submitted a health care services request form stating 18 he had a seizure the night before and fell out of his bunk, and “was on the floor having severe 19 convulsions.” (WMR at 58.) On December 3, 2013, RN Smith noted plaintiff’s pain at 0/10; 20 plaintiff denied losing consciousness. (Id.) 21 68. On December 4, 2013, Dr. Pfile addressed plaintiff’s second level appeal in no. SOL- 22 HC-13038309, in which plaintiff requested an MRI and physical therapy. (ECF No. 1 at 32.) Dr. 23 Pfile reviewed plaintiff’s appeal and attached documentation, medical history, including progress 24 notes, relevant radiographs, lab results and/or outside consultations. (Id. at 33.) Dr. Pfile 25 determined plaintiff “received a full and appropriate course of physical therapy,” completed on 26 May 29, 2013. Plaintiff’s medical history revealed that on multiple subsequent exams by more 27 than one provider, plaintiff “showed no objective, clinically significant disability or dysfunction 28 as a result of [plaintiff’s] stated back pain.” (Id.) Plaintiff’s lumbar spine imaging showed only 29 1 minimal, early disease, and “no clinical evidence supported an MRI was medically indicated. Dr. 2 Pfile partially granted plaintiff’s appeal based on his completion of physical therapy. 3 69. On December 17, 2013, plaintiff was seen by Dr. Lotersztain for the seizure he 4 suffered two weeks prior. The doctor’s objective exam noted plaintiff’s musculoskeletal and 5 neurological were within normal limits, and she assessed plaintiff’s seizure complaint as “very 6 questionable,” suspecting secondary gain based on plaintiff’s insistent request for low bunk 7 chrono. (WMR at 62.) Dr. Lotersztain ordered a brain MRI, and noted plaintiff has a history of 8 “demanding narcotics, “back specialist,” and low bunk chrono. (Id.) 9 In his declaration, plaintiff claims Dr. Lotersztain refused to examine plaintiff’s back and 10 would not provide stronger medication or refer him to an orthopedic surgeon, despite plaintiff’s 11 reported “lower back stiffness, soreness, and pain with muscle spasms, tingling, numbness, and 12 weakness, radiating down his right buttock, thigh and leg.” (Pl.’s Decl. at ¶ 20.) 13 70. Plaintiff was seen by RN W. de la Vega on December 26, 2013, for possible seizure. 14 Plaintiff stated he woke up late at night on December 3, 2013, and felt weak. He stated the next 15 thing he knew he was on the floor. There were no witnesses as plaintiff stated he “didn’t want to 16 bother anyone or make a scene.” Plaintiff also denied any discomfort at the time. (WMR at 62.) 17 71. On December 29, 2013, plaintiff submitted a health care services request form 18 complaining of “severe lower back pain with numbness in right leg.” (WMR at 64.)17 RN 19 MacDonald recorded plaintiff’s pain at 9/10. (Id.) In his declaration, plaintiff now declares that 20 on December 29, 2013, he was also suffering from muscle spasms, tingling and weakness 21 radiating down his right leg. (Pl.’s Decl. at ¶ 20.) 22 72. Plaintiff was seen on December 31, 2013, by RN Braunger with complaints of low 23 back pain. The RN noted plaintiff’s physical therapy work out and naproxen help with the pain. 24 RN Braunger instructed plaintiff to continue recommended lower back exercises and provided 25 plaintiff with an instruction sheet. Plaintiff was also advised to engage in activity as tolerated and 26 to avoid sitting for prolonged periods of time. (WMR at 65-67; ECF No. 1 at 111-13.) 27 28 17 This is the first request form that mentions numbness. 30 1 2 73. On January 25, 2014, plaintiff submitted a health care services request form: “Experiencing severe back pain.” (WMR at 71.) 3 In his declaration, plaintiff now declares that he was also suffering lower back stiffness 4 and soreness, accompanied by muscle spasms, numbness, weakness, loss of sensation, and 5 shooting pain traveling down his right leg. (Pl.’s Decl. at ¶ 21.) 6 74. On January 27, 2014, triage RN MacDonald noted plaintiff’s back pain as 9/10. 7 (WMR at 71.) On January 27, 2014, Dr. Lotersztain ordered x-rays for plaintiff: thoraco -- 8 lumbar spine, lumbosacral spine/comparison. (WMR at 70.) 9 75. On January 28, 2014, RN Braunger saw plaintiff, who complained of low back pain, 10 9.5/10, described as throbbing, sharp, spasm. (WMR at 72.) Braunger charted plaintiff had full 11 range of motion, no gait or walking issues. Braunger wrote that plaintiff stated that “if he sits for 12 an extended period of time, sharp shooting pains occur when he first stands up. [Plaintiff] 13 appears restless. . . constantly bouncing legs and rubbing right and left legs. No noted grimacing 14 or spasms.” (WMR at 74.) (ECF No. 1 at 107-09; Barnett Decl. at ¶ 8.)18 15 76. Plaintiff’s spine was x-rayed on January 30, 2014, per Dr. Lotersztain’s order. The 16 results showed no changes from the previous x-ray. The x-ray showed the alignment of 17 plaintiff’s spin was within normal limits, the heights of the vertebral bodies and intervertebral 18 disc spaces were normal, there were no fractures, no destructive osseous lesions, and the 19 visualized portions of the sacroiliac joints were unremarkable. (WMR at 75-76; Barnett Decl. at 20 ¶ 8.) 21 77. On February 16, 2014, plaintiff submitted a health care services request form: 22 “Request to see PCP, suffering very severe back pain.” (WMR at 77.) RN MacDonald recorded 23 plaintiff’s pain level at 10/10. (Id.) 24 //// 25 18 26 27 28 Plaintiff disputes this medical record, claiming that on January 28, 2014, he was having issues with his ability to walk due to “severe lower back stiffness, soreness and pain accompanied by muscle spasms, numbness, weakness, loss of sensation, and shooting pain traveling down his right leg.” (ECF No. 72 at 131.) However, plaintiff declares that he suffered such issues on January 25, 2014. (Pl.’s Decl. at ¶ 21.) He does not declare that he informed Braunger of such issues. 31 1 78. Plaintiff was seen by RN Smith on February 20, 2014, with complaints of low back 2 pain, 10/10, described as sharp, aching, spasm. Plaintiff was prescribed Ibuprofen 200 mg. 3 Plaintiff was provided with materials regarding back pain and was noted as having a high level of 4 education and ability to understand the materials provided to him. (WMR at 78-80; ECF No. 1 at 5 103-05.) 6 79. Plaintiff was seen by Dr. Lotersztain on March 10, 2014, in reference to medical 7 appeal log number SOL-HC-14038941, in which plaintiff requested to be referred to a “specialist 8 in the field of back injuries.” (WMR at 83) Plaintiff presented with complaints of chronic low 9 back pain. Dr. Lotersztain charted the following: 10 11 12 13 14 Wants “minimally invasive surgery” for back pain. When explained that his disability is not significant, and that there is weak evidence to support his request, he threatened to ‘sue you all, and you are the first defendant.’” Assessment: “Seen walking without difficulty. Declined physical exam today. No indication for referral to back specialist, for narcotics, and/or low bunk.” 15 (WMR at 82.) In an addendum, Dr. Lotersztain noted that plaintiff stated that he performed his 16 own research and medical treatment is not the norm, “minimally invasive surgery” is. Dr. 17 Lotersztain also noted plaintiff’s complaint that he can’t exercise like he used to. (WMR at 82- 18 83; ECF No. 1 at 100-01; Barnett Decl. at ¶ 8.) 19 Plaintiff now disputes this record, declaring that he was unable to walk on his toes and 20 heels or squat down fully due to the stiffness of his back and weakness and numbness in his right 21 leg, and his level 10 pain. (Pl.’s Decl. at ¶ 23.) He declares that Dr. Lotersztain refused to 22 perform a physical exam, and told plaintiff that no matter his condition, no stronger medication or 23 a referral to an orthopedist would be provided. (Id.) 24 25 26 27 80. Dr. Lotersztain denied appeal log number SOL-HC-14038941 on March 13, 2014. (ECF No. 1 at 24-25.) 81. Plaintiff was seen by Dr. Lotersztain on March 18, 2014. By the chief complaints section, the doctor wrote “as usual.” (WMR at 84.) The doctor noted plaintiff was seen 3/10 for 28 32 1 his 602 re back pain, and 12/27 for “new onset seizure. Says he hasn’t had one since. Claims 2 seizures since childhood. Plaintiff still complaining of low back pain, stated ‘not worse, but not 3 better.’” (Id.) Dr. Lotersztain did not mark any of the boxes in the objective portion of the 4 progress note, but wrote that plaintiff walks without any visible difficulty. Plaintiff’s history of 5 seizures assessed as “very questionable,” emailed for MRI results and suspected secondary gain 6 based on plaintiff’s insistent request for low bunk chrono. (WMR at 84.) Diagnosis was chronic 7 low back pain from mild DDD; plaintiff received PT; treat with NSAIDS, only if pain is severe, 8 and do HEP. Dr. Lotersztain further stated there was no indication for opiates or surgery. (WMR 9 at 84; ECF No. 1 at 99; Barnett Decl. at ¶ 8.) 10 In his declaration, plaintiff now claims his back pain was not improved, and he reported to 11 Dr. Lotersztain that the medication was ineffective and he was still experiencing right buttock, 12 thigh, and leg weakness and numbness, and muscle spasms. Plaintiff declares that the doctor 13 refused to examine plaintiff’s back, and told plaintiff that the state had no intention of providing 14 him with stronger medication or surgery. (Pl.’s Decl. at ¶ 24.) 82. On March 21, 2014, Deputy Director J. Lewis denied plaintiff’s appeal no. SOL-HC- 15 16 13038309 in which plaintiff sought the prescribed physical therapy and an MRI. (ECF No. 1 at 17 26.) 18 83. Plaintiff was seen by RN Carlson on March 23, 2014, with complaints of having had 19 a seizure the night before. Plaintiff stated he woke up to use the restroom and fell on the floor, 20 unconscious, and urinated on himself. Plaintiff had no noted distress. (WMR at 85.) 21 84. Plaintiff was seen on April 4, 2014, by Dr. Lotersztain for new onset seizures. Doctor 22 assessed seizure vs. pseudoseizure; no witnesses; suspected secondary gain as issue arose 23 following denial of lower bunk chrono for musculoskeletal issues. Plaintiff was already on 24 Naproxen and Tylenol. (WMR at 86.) 25 85. On April 30, 2014, in preparing the second level appeal response in log no. SOL-HC- 26 14038941, Dr. Pfile reviewed plaintiff’s appeal, Dr. Lotersztain’s interview notes and first level 27 response, plaintiff’s medical charts, relevant progress notes, radiographs, lab results, and any 28 outside consultations. (Pfile Decl. at ¶ 10.) Dr. Pfile noted that plaintiff had been examined on 33 1 several occasions by multiple providers regarding back complaint; there are no objective exam 2 findings on any exam that support plaintiff’s claim of disabling back disease; plaintiff has a very 3 muscular physique and x-rays of the thoracic and lumbar spine are unremarkable, showing only 4 very early lumbar arthritic change, consistent with plaintiff’s age and stated history of athletic 5 pursuits; plaintiff completed a full course of physical therapy, and the physical therapist noted 6 that plaintiff was currently participating in sports; there is no objective exam or radiographic 7 evidence of severe arthritic change of the spine, nerve entrapment, muscle spasm or other lumbar 8 pathology; and there is no indication for a subspecialty referral. (ECF No. 1 at 22.) Dr. Pfile 9 denied plaintiff’s appeal requesting a referral to orthopedics. (ECF No. 1 at 23.) 10 86. On May 11, 2014, plaintiff submitted a health care services request form: “Suffering 11 from extraordinarily severe lower back pain.” (WMR at 87; Pl.’s Decl. at ¶ 25.) He was seen on 12 May 13, 2014, by RN MacDonald with complaints of low back pain, 10/10. Plaintiff was 13 provided with education consistent with his condition and referred to see his physician. (WMR at 14 88-90; ECF No. 1 at 96-98.) 15 87. On June 2, 2014, plaintiff signed a health care services request form: “Experiencing 16 excruciating lower back pain.” (WMR at 92.) Plaintiff was seen on June 3, 2014, by RN 17 MacDonald with complaints of low back pain, 10/10, described as throbbing. (WMR at 93.) 18 Plaintiff was observed sitting comfortably with no grimacing or restlessness. Plaintiff stated he 19 would like to return to physical therapy. RN MacDonald charted that plaintiff’s complaint was 20 not consistent with the visual exam. (WMR at 93-95; ECF No. 1 at 92-95.) 21 88. On June 14, 2014, plaintiff submitted a health care services request form: 22 “Excruciating lower back pain.” (WMR at 96.) Plaintiff was seen on June 17, 2014, by RN 23 Carlson with complaints of low back pain, 10/10, described as throbbing. RN Carlson noted 24 plaintiff was sitting comfortably without grimacing or restlessness. RN Carlson noted that the 25 visual exam was not consistent with plaintiff’s complaints with a 10/10 level of pain. (WMR at 26 97-99; ECF No. 1 at 87-89.) 27 28 89. On July 7, 2014, Deputy Director J. Lewis denied plaintiff’s appeal in log no. SOLHC-14038941, in which plaintiff sought to see a specialist in the field of back injuries. (ECF No. 34 1 2 1 at 15-16.) 90. On August 8, 2014, plaintiff submitted a health care services request form: 3 “Excruciating lower back pain.” (WMR at 104.) On August 12, 2014, RN Carlson saw plaintiff, 4 who complained of right lower back and hip pain, 8-9 out of 10, spasm, numbness and tingling. 5 (WMR at 105.) Plaintiff was instructed to do activity as tolerated and informed to continue 6 recommended exercises. (WMR at 105-107; ECF No. 1 at 83-85.) 7 91. On August 13, 2014, Dr. Lotersztain saw plaintiff for complaints of low back pain. 8 Although the 8/8/12 sick call noted “excruciating back pain,” Dr. Lotersztain charted: “Admits 9 ‘it is not excruciating today, but it is a 6 or a 7.’ Works as a porter. Was hoping pain would get 10 better sooner. Does HEP, some arching positions help.” (WMR at 108.) In the objective 11 findings, Dr. Lotersztain wrote “no TTP, negative SLR (straight leg raises) because can squat, 12 walk on toes and heels.” (Id.) Dr. Lotersztain noted the physical exam was benign. Dr. 13 Lotersztain further noted that during the 602 interview, plaintiff claimed he was a “first class 14 athlete.” (WMR at 108; ECF No. 1 at 81; Barnett Decl. at ¶ 8.) 15 In his declaration, plaintiff disputes the doctor’s objective findings, now declaring that he 16 reported excruciating pain shooting down his right leg at 50 degrees,” and that he was unable to 17 squat down and walk on his heels and toes “due to right leg weakness and back pain.” (Pl.’s 18 Decl. at ¶ 27.) 19 92. On September 15, 2014, plaintiff submitted a health care services request form: 20 “Excruciating lower back pain; injuries to right knee and right shoulder.” (WMR at 109.) 21 Plaintiff was seen by RN Smith on September 17, 2017; plaintiff reported pain in lower back, 22 right knee and shoulder, 5/10, aching. (WMR at 110.) He was taking acetaminophen and 23 naproxen. Plaintiff requested to see a different PCP because his current litigation posed a conflict 24 of interest. (WMR at 112.) 25 93. On October 14, 2014, plaintiff submitted a health care services request form: 26 “Bulging disc in lower L-spine, excruciating pain and suffering; right knee pain.” (WMR at 114.) 27 Plaintiff was seen on October 17, 2014, by RN Smith with complaints of lower spine pain and 28 right knee pain, 10/10, sharp, spasm. (WMR at 114.) Smith noted plaintiff was able to walk with 35 1 a normal gait at a normal pace. Plaintiff requested to have back surgery so he could play football 2 on the yard. RN Smith noted that plaintiff did not appear to be at a level 10/10 of pain. (WMR at 3 115-18; Barnett Decl. at ¶ 8.) Renewed his request for a different PCP due to litigation. (WMR 4 at 117.) 5 Plaintiff now declares that on October 14, 2014, he was still experiencing severe lower 6 back pain stiffness, soreness, and pain, muscle spasms with tingling, numbness, and weakness 7 radiating down his right leg. (Pl.’s Decl. at ¶ 28.) 8 9 10 94. Plaintiff was scheduled to see Dr. Lotersztain on October 27, 2014, however, he arrived 25 minutes late and was informed he would have to wait until other on-time patients were seen. Plaintiff refused to wait and left without being examined. (WMR at 113.) 11 95. On November 18, 2014, plaintiff submitted a health care services request form: 12 “Excruciating lower back pain, numbness in legs.” (WMR at 118.) Plaintiff was seen on 13 November 20, 2014, by RN Smith with complaints of low back pain radiating to his legs, 10/10, 14 aching. (WMR at 119.) Plaintiff was noted as having a normal gait and stance, leg raising ok. 15 Plaintiff was instructed to reduce his work level and continue stretching. (WMR at 119-121.) 16 96. On December 2, 2014, Dr. Lotersztain saw plaintiff for complaints of low back pain, 17 worsening in the last 60 days. (WMR at 122.) Plaintiff claimed it was hard to walk and that 18 resting in bed helped some. Plaintiff was very distressed about pain and not being able to 19 exercise; said he cannot do HEP due to pain. The doctor noted abnormal musculoskeletal 20 objective findings, noting plaintiff’s pain in right lower L6-LS perospinal area; flexion limited 21 due to pain. Negative straight leg raising “B/L” with limits in right L5-Sl perospinal. Doctor’s 22 assessment was acute onset chronic low back pain, with component of muscle spasm. Prescribed 23 muscle relaxer, Baclofen, and 10 day lay-in. Dr. Lotersztain noted plaintiff was very anxious and 24 she suspected anxiety-related pain. Plaintiff had 2.5 refills of Tylenol and Naproxen; suggested 25 plaintiff try Ibuprofen instead of Naproxen. Insisted on HEP. (WMR at 122; Barnett Decl. at ¶ 26 8.) 27 28 97. On December 17, 2014, plaintiff submitted a health care services request form: “Difficulty walking from numbness throughout right leg.” (WMR at 123.) Plaintiff was seen on 36 1 December 19, 2014, by RN Smith with complaints of low back pain and numbness in his right 2 leg, 9.5/10. RN Smith noted that plaintiff had a steady gait and his stance was normal; full range 3 of motion. (WMR at 124.) Plaintiff was able to reproduce numbness in his right leg when 4 bending his neck down and bending it back in a hunching form. Plaintiff was instructed not to 5 move his neck like that and to continue the recommended exercises. Smith noted that plaintiff 6 was “walking and talking normal, not displaying any types of pain or distress at this time.” 7 (WMR at 126.) 8 98. On January 20, 2015, plaintiff submitted a health care services request form: 9 “Herniated disc in lower back causing excruciating pain.” (WMR at 128.) Plaintiff was seen on 10 January 22, 2015, by RN MacDonald with complaints of low back pain, 10/10, throbbing. 11 Plaintiff indicated the pain radiated down his right leg, numbness in his right thigh and sometimes 12 the right foot. RN MacDonald charted that plaintiff continued to be argumentative, stating he will 13 be suing the state for his pain and suffering. RN MacDonald attempted to discuss doctor’s 14 observation that pain may be anxiety related, but plaintiff was unable to consider this and was 15 dismissive. Plaintiff encouraged to continue with PT exercises; uncooperative with other 16 suggestions. (WMR at 129-31.) 17 Plaintiff declares that his mobility was impaired on January 22, 2015, significantly enough 18 that he remained on a lay-in from his job. (Pl.’s Decl. at ¶ 32.) RN MacDonald provided plaintiff 19 with a lay-in for January 22, 2015, to January 30, 2015. (Pl.’s Bates 439.) 20 99. On February 4, 2015, plaintiff was seen in the dayroom for complaints of low back 21 pain. RN Dingcong and Correctional Officer Greco responded and evaluated plaintiff. Plaintiff 22 was then taken to see RN Ogunleye who noted small non-tender swelling to plaintiff’s lower 23 back. Plaintiff indicated he felt tightness in his back in the morning. The tightness progressed 24 throughout the day and in the evening it was hard for him to move. Plaintiff denied any urinary 25 problems, numbness, or tingling, and denied recent injury or trauma. Plaintiff reported the 7/10 26 lower back pain radiated more to right lower extremity making it difficult to ambulate. RN 27 Ogunleye noted plaintiff had a steady gait to standing. Plaintiff claimed he had slow ambulation 28 but RN Ogunleye observed him able to ambulate, and noted he did not appear in distress. 37 1 Plaintiff was provided an ice pack to place on his back, and two injections: Robaxin and Toradol. 2 Plaintiff was referred to see his PCP. (WMR at 132-34) 3 In his declaration, plaintiff now claims that on February 4, 2015, he was having difficulty 4 ambulating, and had pain and numbness radiating down the right leg into his right foot, and back 5 spasms. (Pl.’s Decl. at ¶ 33.) 6 100. Plaintiff was seen on February 5, 2015, by RN MacDonald. She noted plaintiff’s 7 primary complaint was low back pain, 10/10, throbbing. Plaintiff stated he felt something move 8 in his lower back and then had sharp pain that made walking difficult, taking 20-30 seconds to 9 stand erect. He reported the pain radiated down his right leg, with numbness in the right thigh 10 and sometimes his right foot. RN MacDonald encouraged plaintiff to walk some laps and 11 discussed stretches to loosen the muscles up. Plaintiff was provided with a lay-in until February 12 10, 2015, and an appointment with his PCP on February 9, 2015. (WMR at 135-137; Pl.’s Bates 13 438.) 14 101. Plaintiff was seen by Dr. Lotersztain on February 9, 2015, with complaints of acute 15 onset chronic low back pain. Dr. Lotersztain noted plaintiff was seen in the TTA on 2/4/15 for 16 low back pain; plaintiff was picking something up and back locked up, he “couldn’t move.” 17 (WMR at 138.) Plaintiff “admits improvement ‘after the shots,’ but wants a ‘stronger medication. 18 . . .’” (Id.) In the objective exam, the doctor noted the general and HEENT/Neck were WNL; 0 19 TTP; “claims not being able to squat.” (Id.) Dr. Lotersztain assessed plaintiff as having had a 20 back spasm with acute onset chronic pain. She prescribed he continue ibuprofen and Tylenol, and 21 provided a seven day lay-in. Dr. Lotersztain noted there were no indication for opiates or 22 specialist referral. She further noted plaintiff was very argumentative, and she observed him walk 23 out in no distress. (WMR at 138; Barnett Decl. at ¶ 8.) 24 In his declaration, plaintiff now claims that on February 9, 2015, he was suffering back 25 spasms and having trouble walking, stiffness and soreness in his lower back, and weakness and 26 numbness in his right leg and foot. (Pl.’s Decl. at ¶ 34.) When plaintiff explained his current 27 medications were ineffective, he declares Dr. Lotersztain became exasperated and declared, “I’m 28 not gonna give you an MRI,” refused to examine plaintiff or address the ineffective medication. 38 1 (Id.) Plaintiff declares he told her it took him 15 minutes to put on his socks, shoes, and pants, 2 and the doctor replied, “I’ve heard this a million times. I know your mobility is impaired and I 3 know you’re in a great deal of pain. Look, I don’t care, it’s part of the penalty for your crimes.” 4 (Id.) Plaintiff declares the doctor demanded he walk on his heels and toes and squat down, but 5 because of his condition, he was unable to do so. (Pl.’s Decl. at ¶ 34.) 6 102. On February 17, 2015, plaintiff submitted a health care services request form: 7 “Patient has been immobilized by excruciatingly severe lower back pain.” (WMR at 139.) 8 RN Smith saw plaintiff on February 19, 2015, regarding complaints of lower back pain, 9/10, 9 dull. RN Smith noted plaintiff had a normal gait and stance and was able to raise his legs. RN 10 Smith also noted plaintiff had full range of motion, walking without difficulty, and able to sit and 11 rise without pain. RN Smith also noted plaintiff showed no signs of grimacing or grabbing his 12 back in the appointment. RN Smith charted that plaintiff 13 reports minimal relief with the medication he has, NSAIDS and acetaminophen, he requests further treatment/and or examinations. [Plaintiff] also reports to be a “first class athlete” and he is not receiving the care he should to be rehabilitated to his previous skill level and also relieved from all pain. [Plaintiff] encouraged to do back exercises and NSAIDs may not completely relieve all pain in his back, but should relieve some level of inflammation. Mr. Witkin does not seem to believe in this treatment and he states he will continue to file court paperwork to get further medical treatments. 14 15 16 17 18 19 (WMR at 142.) Smith provided plaintiff with a lay-in from February 19 to 28, 2015. (Pl.’s Bates 20 437.) 21 103. On March 9, 2015, plaintiff submitted a health care services request form: 22 “Suffering excruciating, radiating lower back pain, mobility severely impaired.” (WMR at 143.) 23 On March 11, 2015, plaintiff was seen by RN Smith for pain in back, 10/10, aching. (WMR at 24 144.) RN Smith noted plaintiff had a full range of motion, except plaintiff complained of pain 25 when sitting up in bed. Plaintiff had normal gait and stance, and was able to raise his legs. 26 Plaintiff was able to ambulate and bend down without difficulty. Plaintiff wants to have his back 27 fixed and find out the problem. He continued to say CSP-Solano medical should do more for his 28 39 1 condition, and said he is going to file a lawsuit. Plaintiff was given handouts on back stretching 2 and strengthening, and a three day lay-in. (WMR at 144-46.) 3 104. On March 12, 2015, plaintiff submitted a health care services request form: 4 “Excruciating, extremely severe, lower back pain, pain scale of 10+, mobility extraordinarily 5 limited.” (WMR at 147.) On March 13, 2015, the triage RN Carlson noted “Ibuprofen - med. 6 effective.” (Id.) 7 105. On March 16, 2015, RN Smith saw plaintiff for his lower back pain, 10/10, aching, 8 throbbing. (WMR at 148.) RN Smith noted no swelling or redness to plaintiff’s back; plaintiff 9 had normal gait and stance and was able to raise his legs. RN Smith noted that plaintiff continues 10 to complain of lower back pain, yet he is able to ambulate and get up and down with no 11 noticeable signs of pain or distress. Plaintiff stated he has a high tolerance to pain and does not 12 easily show pain on his face. Plaintiff continued to threaten to sue CDCR medical staff for not 13 giving him back surgery. (WMR at 148-50.) Plaintiff given one week lay-in. (WMR at 147.) 14 E. Subsequent Medical Records19 15 Subsequently, Dr. Lotersztain saw plaintiff regarding complaints of chronic low back pain 16 on March 27, 2015, and April 24, 2015. (WMR at 154 (ibuprofen changed to Naproxen); 166 17 (Naproxen changed to Tylenol).) On May 21, 2015, plaintiff presented to Dr. Lotersztain with 18 complaint of “having accidents.” (WMR at 179 (labs ordered).) On June 10, 2015, Dr. 19 Lotersztain saw plaintiff for complaints of urine and fecal incontinence. (MWR 185-86 (post- 20 void residual requested).) On June 12, 2015, plaintiff saw Dr. Lotersztain concerning his liver. 21 (MWR 185-86 (Flomax reordered, lab and x-rays ordered.)) June 16, 2015 x-rays of lumbar spine and pelvis reported no bone abnormality, “minimal” 22 23 pelvic degenerative changes, and “no significant degenerative changes” in his lumbar spine. 24 (Barnett Am. Decl. at 10.) On July 10, 2015, Dr. Lotersztain saw plaintiff for low back pain 25 19 26 27 On March 18, 2015, plaintiff signed the instant complaint, filed on March 20, 2015. (ECF No. 1.) Defendants have summarized subsequent medical records (numbered 79-113). (ECF No. 303 at 14-21.) Plaintiff disputes defendants’ paragraphs numbered 80, 82-84; 86; 90, 96-102; 106; 112-13.) (ECF No. 72 at 133-36.) 28 40 1 complaints. (WMR at 252.) 2 On July 27, 2015, plaintiff reported he slipped and fell, and was sent to TTA for 3 evaluation. (WMR 238-42.) Dr. Daszko20 noted plaintiff “recently completed refresher with 4 physical therapy, says he does his lower back pain exercises twice a day.” (WMR at 243.) 5 “States his goal is to return to ‘elite-level athletic competition.’” (Id.) Plan: Plaintiff was given 6 Toradol and Robaxin injections; Dr. Daszko noted “some improvement of pain,” and discussed 7 with Dr. Djaveherian at NorthBay Medical Center (“NBMC”). (Id.) Dr. Daszko’s assessment 8 was “exacerbation of chronic low back pain/DDD/right sciatica, cannot rule out symptoms of 9 Caude Equina Syndrome (“CES”).21 10 Plaintiff was transported to NBMC, where he was examined and treated by Dr. Garcia at 11 the emergency department. (WMR at 193-96; 262-66.) Radiology would not authorize an MRI 12 due to bullet fragments in a vital organ. (WMR at 264.) Following Dr. Garcia’s discussions with 13 radiology and Dr. Dembner in neurosurgery, it was determined that plaintiff did not have CES, 14 but if further symptoms developed, a myelogram could be performed. (WMR at 264.) 15 V. Discussion 16 A. Eighth Amendment Claims 17 The undersigned finds that defendants have borne their initial responsibility of presenting 18 evidence that demonstrates the absence of a genuine issue of material fact concerning the 19 adequacy of the medical care provided to plaintiff after he injured his back in December of 2012, 20 through Dr. Lotersztain’s treatment in early 2015. Defendants have supported their contention 21 that they were not deliberately indifferent to plaintiff’s medical needs, and they have provided the 22 expert opinion of Dr. Barnett, who declares that there was no deliberate indifference, based on Dr. 23 Barnett’s training and experience, review of plaintiff’s extensive medical records, deposition 24 testimony, and complaint, as well as discovery responses. In the absence of any evidence that 25 20 26 27 28 Dr. Daszko’s name is misspelled throughout the record as “Dr. Dashko,” and “Dr. Dasko,” but the correct spelling “Daszko” is confirmed at WMR 243. 21 “Cauda equine syndrome is a condition of acute spinal cord compression in lower back that causes loss of function to muscles of legs, with bowel and bladder incontinence.” (Barnett Am. Decl. at 11 n.9.) 41 1 defendants were deliberately indifferent to plaintiff’s serious medical needs, or that they failed to 2 provide constitutionally adequate medical treatment, defendants have demonstrated entitlement to 3 judgment in their favor on plaintiff’s Eighth Amendment claims. 4 At the summary judgment stage, facts must be viewed in the light most favorable to the 5 nonmoving party only if there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c). 6 As we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its 7 opponent must do more than simply show that there is some metaphysical doubt as to the material 8 facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the 9 nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 586-87 (footnote 10 omitted). “[T]he mere existence of some alleged factual dispute between the parties will not 11 defeat an otherwise properly supported motion for summary judgment; the requirement is that 12 there be no genuine issue of material fact.” Anderson, 477 U.S. at 247-48. 13 i. Serious Medical Need 14 The parties do not dispute, and the undersigned finds, that based upon the evidence 15 presented by the parties in connection with the pending motion, a reasonable juror could conclude 16 that plaintiff’s chronic lower back pain constitutes an objective, serious medical need. See 17 McGuckin, 974 F.2d at 1059-60 (“The existence of an injury that a reasonable doctor or patient 18 would find important and worthy of comment or treatment; the presence of a medical condition 19 that significantly affects an individual’s daily activities; or the existence of chronic and 20 substantial pain are examples of indications that a prisoner has a ‘serious’ need for medical 21 treatment.”); see also Canell v. Bradshaw, 840 F. Supp. 1382, 1393 (D. Or. 1993) (the Eighth 22 Amendment duty to provide medical care applies “to medical conditions that may result in pain 23 and suffering which serve no legitimate penological purpose.”). 24 ii. Deliberate Indifference 25 However, the undersigned finds that plaintiff fails to demonstrate that any of the 26 defendants were deliberately indifferent to his lower back pain. Plaintiff is clearly dissatisfied 27 with the medical treatment he received and is of the opinion that he should have received an MRI, 28 surgery, referral to a specialist, and opiates or stronger pain relievers to alleviate his chronic back 42 1 pain. However, without evidence that the failure to provide any or all of the foregoing was 2 medically inappropriate, such failure amounts to no more than a difference of opinion as to what 3 medical care was appropriate. See Cochran v. Rao, 2013 WL 1249192, at *6 (D. Ariz. Mar. 26, 4 2013) (denying on summary judgment inmate’s deliberate-indifference claim because “[i]t was 5 incumbent upon plaintiff to provide an affidavit or deposition of an expert to establish that the 6 care was medically unacceptable”); Conroy v. Avalos, 2010 WL 1268150, at *6 (D. Ariz. Mar. 7 30, 2010) (same). Such difference of opinion is not evidence of deliberate indifference, as further 8 explained below. 9 First, the failure to provide an MRI does not demonstrate deliberate indifference. 10 Importantly, Dr. Barnett testified that “the study was not needed as plaintiff was not impaired.”22 11 (Barnett Decl. at 16.) Further, plaintiff did not submit a medical record or declaration from Dr. 12 Owolabi, his doctor at PVSP, confirming that plaintiff was diagnosed with a spinal injury 13 resulting in nerve damage, and would need an MRI if his condition did not improve (ECF No. 1 14 at 6).23 Indeed, the record reflects that the only doctor who recommended an MRI be performed 15 was Dr. Daszko, who requested the MRI to rule out possible CES, not to address back pain. 16 (WMR at 243, 254-56.) Dr. Pfile approved the request the same day. (Id.) However, the 17 radiologist refused to authorize the MRI due to the bullet fragments in plaintiff’s vital organ. 18 (WMR at 195.) After ruling out CES, Dr. Garcia discharged plaintiff from the emergency room 19 with the diagnosis of low back pain. (WMB at 196.) Plaintiff submitted no expert medical 20 opinion confirming that plaintiff required an MRI following the December 2012 incident. 21 22 23 24 25 26 27 28 Thus, plaintiff’s argument that he should have been provided an MRI following the December 2012 incident is unfounded. Notably, it appears unlikely that plaintiff could have an 22 In his deposition, Dr. Barnett explained that “impairment is a significant compromise in the ability to perform the functions of daily life, which are essentially: feeding oneself, dressing oneself, bathing oneself, going to the toilet on one’s own ability, and being mobile in the sense of being able to walk unassisted.” (Barnett Dep. at 109.) 23 Dr. Barnett declares that he could not find any notes by Dr. Owolabi recommending MRI studies. (Barnett Am. Decl. at 14, ¶ e.) The sole record identified as Dr. Owolabi’s was a progress note describing plaintiff’s minor finger injury while he was playing basketball shortly before his transfer to CSP-Solano. (WMR at 274; Barnett Am. Decl. at 14, ¶ e.) 43 1 MRI due to the bullet fragments remaining in his body from an earlier gunshot wound. (WMR at 2 195; Barnett Am. Decl. at 7 n.4.) 3 Second, plaintiff was provided a diagnosis: chronic back pain and DDD. Indeed, the 4 consistent diagnoses throughout plaintiff’s medical records are chronic low back pain and DDD. 5 Plaintiff appears to disagree with such diagnoses, but provides no expert medical opinion to rebut 6 these diagnoses rendered by his treating physicians and confirmed by Dr. Barnett. 7 Third, plaintiff’s contrary lay diagnosis is insufficient. Plaintiff provides no expert 8 medical opinion to support his claim that on December 4, 2012, he suffered a “rupture of a 9 nucleus pulposus (central portion of the invertebral disc) in his lumbar spine, a debilitating spinal 10 injury, which causes the nerve root disorders radiculopathy and sciatica, dramatically reducing 11 mobility and function, and causing excruciating, constant pain.” (ECF No. 72 at 7.) Plaintiff 12 provides no expert medical opinion to support his lay opinion that he was suffering from a 13 debilitating spinal injury, such that he should have been referred to a neurologist or orthopedic 14 specialist or received surgery. None of the medical records support plaintiff’s lay diagnosis, and 15 plaintiff points to no such medical record. Plaintiff attempts to demonstrate such diagnosis by 16 claiming his symptoms were obvious, even to laypersons (ECF No. 72 at 7-8), but the medical 17 records demonstrate that plaintiff was seen by multiple doctors over the years, including Dr. 18 Garcia, an emergency room doctor outside the prison, and none of them provided such diagnosis. 19 Rather, the consistent diagnosis was chronic low back pain and DDD. Plaintiff is not a medical 20 doctor, and he and his inmate witnesses who provided declarations may not diagnose plaintiff’s 21 medical condition solely based on their personal observations of his symptoms. 22 Fourth, there is no evidence plaintiff was diagnosed as suffering a herniated disc. Plaintiff 23 adduced no competent medical evidence that he sustained a herniated disc in December of 2012. 24 Plaintiff claims that Dr. Lotersztain told him he suffered a herniated disc, but he points to no 25 medical record including such diagnosis. In his opposition, he cites to “Bates 253” for his claim 26 that Dr. Lotersztain “initially suspected that plaintiff had a herniated disc” (ECF No. 72 at 55, 27 56), but such document is a June 11, 2013 progress note documenting treatment for plaintiff’s 28 foot pain, and makes no reference to a “herniated disc.” (Pl.’s Bates 253.) 44 1 Further, in his deposition, plaintiff testified that both Dr. Garcia and Dr. Daszko told 2 plaintiff he had a herniated disc. (Witkin Dep. at 54-55.) Plaintiff declares that Dr. Daszko 3 “opined that the December 4, 2012 injury was likely a L4-L5 or L5-S1 lumbar disc herniation.” 4 (Pl.’s Decl. at ¶ 46.) However, Dr. Daszko’s July 27, 2015 progress note makes no such 5 diagnosis; rather, Dr. Daszko’s final assessment included “exacerbation of chronic lower back 6 pain/DDD,” and “could not rule out CES.” (WMR at 243.) Plaintiff did not provide a medical 7 record or declaration by Dr. Daszko or Dr. Garcia diagnosing plaintiff with a herniated disc. 8 Indeed, Dr. Garcia’s discharge diagnosis for plaintiff was, again, low back pain. (WMB at 196.) 9 Moreover, the record demonstrates that multiple doctors did not believe surgery was 10 necessary for plaintiff’s chronic low back pain. (See also Lotersztain Decl. at ¶ 44; Kuersten 11 Decl. at ¶ 12; Pfile Decl. at ¶ 48.) Dr. Barnett testified that the defendants “didn’t see a reason to 12 bring [plaintiff] to surgery because [plaintiff was] functioning well enough without it and I 13 agree.” (Barnett Dep. at 296.) Dr. Barnett also testified that surgery was not a good solution. 14 (Barnett Dep. at 254.) In his deposition, plaintiff acknowledged that both Dr. Garcia and Dr. 15 Daszko told plaintiff that surgery was not necessary for herniated discs. (Witkin Dep. at 56.) 16 Plaintiff claimed Dr. Daszko was “adamant” that “you don’t want to get surgery,” . . . [y]ou want 17 to bring this back naturally,” based on the low surgical success rate. (Witkin Dep. at 59.) 18 Plaintiff confirmed that both doctors told plaintiff that “if you’re not a pro athlete, there would 19 never be a reason why you would need a back surgery.” (Witkin Dep. at 61.) Thus, even 20 assuming, arguendo, plaintiff sustained a herniated disc in 2012, it appears plaintiff now 21 concedes that surgery was not a viable option.24 In any event, even if plaintiff’s 2012 injury was 22 misdiagnosed, a misdiagnosis does not rise to the level of deliberate indifference. See Wilhelm, 23 680 F.3d 1122-23 (where doctor decided not to operate because he thought prisoner was not 24 suffering from a hernia was a “negligent misdiagnosis,” not deliberate indifference). 25 24 26 27 28 Plaintiff provided a declaration from inmate Chavis who reported his own successful surgical outcome following his disc herniation. (ECF No. 72 at 176-77.) But Chavis’ successful outcome fails to demonstrate that surgery was appropriate for plaintiff. Again, the record does not reflect plaintiff was diagnosed with a disc herniation, and there is no medical record or expert medical opinion stating plaintiff required surgery for his chronic low back pain or DDD. Rather, Dr. Barnett opines that physical therapy was the appropriate treatment. 45 1 Fifth, plaintiff strongly believes he should have been referred to a neurologist or other 2 specialist. Indeed, in his opposition, he claims that if this case goes to trial, “the jury will hear 3 testimony from a neurosurgeon about how to properly care for a disorder of the central nervous 4 system.” (ECF No. 72 at 6.) But he identified no such expert witness and provided no expert 5 witness report or declaration. And again, he provides no expert medical opinion confirming such 6 referral was required under the circumstances, or finding that the failure to make such referral 7 was medically inappropriate under the circumstances. 8 Sixth, because the medical records did not reflect that plaintiff sustained a herniated disc 9 or suffered “red flags” or debilitating neurological issues, defendants Dr. Pfile and Dr. Kuersten 10 were not required, under the Eighth Amendment, to take additional steps in the 602 appeals 11 process to seek additional treatment for plaintiff. 12 Seventh, even taking as true plaintiff’s claims about what Dr. Lotersztain told plaintiff 13 about the reasons why plaintiff’s demands were not being met, such as it was a penalty for his 14 crime, or to save money, the record reflects that Dr. Lotersztain provided myriad medical 15 treatment for plaintiff, including x-rays, lab tests, prescriptions for Naproxen, ibuprofen, Tylenol, 16 acetaminophen, lay-ins, and an MRI for his brain when he complained of suffering a seizure. 17 Plaintiff was provided physical therapy and multiple lay-ins. This record reflects that plaintiff 18 was seen frequently, and provided medical treatment on numerous occasions. Because Dr. 19 Lotersztain continued to treat plaintiff despite her alleged statements, such alleged statements do 20 not demonstrate deliberate indifference. Plaintiff adduced no expert medical opinion that Dr. 21 Lotersztain chosen course of treatment was medically unacceptable under the circumstances or 22 was taken in conscious disregard of an excessive risk to plaintiff’s health. 23 Finally, with regard to plaintiff’s pain complaints, his disagreement with Dr. Lotersztain 24 about the type and strength of his pain medication also does not reflect a conscious disregard of 25 plaintiff’s serious medical needs. Rather, based on the record before the court, Dr. Lotersztain’s 26 refusal to provide plaintiff with opiates or a stronger pain medication plaintiff preferred did not 27 rise to the level of deliberate indifference in violation of the Eighth Amendment. See McGuckin, 28 974 F.2d 1050 (a defendant “must purposefully ignore or fail to respond to a prisoner’s pain or 46 1 possible medical need in order for deliberate indifference to be established.”); see also Parlin v. 2 Sodhi, 2012 WL 5411710 at *4 (C.D. Cal. Aug. 8, 2012) (“At its core, plaintiff’s claim is that he 3 did not receive the type of treatment and pain medication that he wanted when he wanted it. His 4 preference for stronger medication -- Vicodin, Tramadol, etc., -- represents precisely the type of 5 difference in medical opinion between a lay prisoner and medical personnel that is insufficient to 6 establish a constitutional violation.”); Tran v. Haar, 2012 WL 37506 at *3-4 (C.D. Cal. Jan. 9, 7 2012) (plaintiff’s allegations that defendants refused to prescribe “effective medicine” such as 8 Vicodin and instead prescribed Ibuprofen and Naproxen reflected a difference of opinion between 9 plaintiff and defendants as to the proper medication necessary to relieve plaintiff’s pain and failed 10 11 to state an Eighth Amendment claim). In his opposition, plaintiff’s contends that the medication he was prescribed is “routinely 12 distributed by CDCR physicians for conditions less painful than plaintiff’s,” and cites various 13 cases where inmates with back pain were provided methadone or morphine. (ECF No. 72 at 56- 14 57.) However, there is no evidence that plaintiff’s medical condition was similar to those inmates 15 who were provided methadone or morphine. The undersigned acknowledges that plaintiff’s 16 requests for health care escalated from complaints of severe pain to excruciatingly severe pain. 17 But many of the medical professionals, including nonparties, noted that plaintiff’s subjective pain 18 complaints did not correspond with his affect or objective exams. Moreover, at times plaintiff 19 was provided stronger pain medications, such as Robaxin, Toradol, and Tylenol #3, as well as 20 muscle relaxers. (ECF No. 1 at 49; WMR 17, 122, 132-34, 238-42.) 21 Importantly, Dr. Barnett testified that “overall [plaintiff] does not demonstrate -- even 22 when he does say he has lots of pain, he doesn’t demonstrate a persistent functional impairment.” 23 (Barnett Dep. at 255-56.) Even if plaintiff was not playing basketball or sports, he testified that 24 he “never stopped trying to work out. . . . [he] couldn’t work [his] legs. . . . [but he] worked out 25 the whole time. [He] did upper body. . . .[He] did pullups, pushups.” (Witkin Dep. at 65-66.) 26 Plaintiff easily performed the HEP physical therapy exercises, testifying, “these exercises are 27 nothing to a person who has been an athlete their whole life.” (Witkin Dep. at 64.) Dr. Barnett 28 opined that the defendants’ disinclination to provide stronger pain medications was appropriate. 47 1 (ECF No. 63-1 at 13-14.) Plaintiff provided no expert medical opinion to the contrary, and 2 plaintiff’s declaration attempting to dispute myriad medical records after the fact is insufficient to 3 raise a genuinely disputed material fact in light of Dr. Barnett’s expert opinion. 4 Here, the record reflects that plaintiff was prescribed various doses of Naproxen, 5 Ibuprofen, acetaminophen, and Tylenol, and provided physical therapy and a home exercise 6 program to assist plaintiff in addressing his chronic low back pain. Indeed, Dr. Barnett testified 7 that: 8 9 10 physical therapy has been the only modality proven to improve chronic low back pain. Narcotics don’t make it better and surgery is not a good solution either, but physical therapy has the best track record of all the things you can do with chronic low back pain. 11 (Barnett Dep. at 254.) Plaintiff’s pain complaints were not ignored, they were simply not treated 12 in the manner plaintiff wanted. While plaintiff wanted to have opiates or stronger pain 13 medications, such desires fail to rise to the level of deliberate indifference in light of this record. 14 Rather, plaintiff’s position amounts to a difference of opinion. 15 16 For all of the above reasons, defendants are entitled to summary judgment on plaintiff’s Eighth Amendment claims. 17 B. Qualified Immunity 18 “Qualified immunity shields government officials from civil damages liability unless the 19 official violated a statutory or constitutional right that was clearly established at the time of the 20 challenged conduct.” Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) quoting Reichle v. 21 Howards, 566 U.S. 658, 664 (2012). Qualified immunity analysis requires two prongs of inquiry: 22 “(1) whether ‘the facts alleged show the official’s conduct violated a constitutional right; and 23 (2) if so, whether the right was clearly established’ as of the date of the involved events ‘in light 24 of the specific context of the case.’” Tarabochia v. Adkins, 766 F.3d 1115, 1121 (9th Cir. 2014) 25 quoting Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009). These prongs need not be 26 addressed in any particular order. Pearson v. Callahan, 555 U.S. 223 (2009). 27 If a court decides that plaintiff’s allegations do not make out a statutory or constitutional 28 violation, “there is no necessity for further inquiries concerning qualified immunity.” Saucier v. 48 1 Katz, 533 U.S. 194, 201 (2001). 2 Here, the court finds that plaintiff has not established a violation of his Eighth 3 Amendment rights. Accordingly, there is no need for further inquiry concerning qualified 4 immunity. 5 C. Plaintiff’s State Law Claims 6 Plaintiff’s complaint also alleges violations of various California state laws by Dr. 7 Lotersztain. (ECF No. 1 at 10-11.) Plaintiff alleges that Dr. Lotersztain committed medical 8 malpractice; failed to summon immediate medical care in violation of California Government 9 Code § 845.6, and intentionally and negligently inflicted emotion al distress by refusing or failing 10 to treat plaintiff’s serious medical condition. (Id.)25 11 Subject to the conditions set forth in 28 U.S.C. § 1367(c), district courts may decline to 12 exercise supplemental jurisdiction over state law claims. Acri v. Varian Assocs., Inc., 114 F.3d 13 999, 1000 (9th Cir. 1997) (en banc). The court’s decision whether to exercise supplemental 14 jurisdiction should be informed by “values of economy, convenience, fairness, and comity.” Id. 15 at 1001 (citations and internal quotation marks omitted). Further, primary responsibility for 16 developing and applying state law rests with the state courts. Therefore, when federal claims are 17 eliminated before trial, district courts should usually decline to exercise supplemental jurisdiction. 18 Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 & n.7 (1988); Gini v. Las Vegas Metro. 19 Police Dep’t, 40 F.3d 1041, 1046 (9th Cir. 1994) (“[I]n the usual case in which federal-law claims 20 are eliminated before trial, the balance of factors . . .will point toward declining to exercise 21 jurisdiction over the remaining state law claims.” (emphasis and alteration in original) (quoting 22 Schneider v. TRW, Inc., 938 F.2d 986, 993 (9th Cir. 1991))). 23 The state law claims against Dr. Lotersztain are premised on the same conduct discussed 24 above, which the undersigned finds was constitutionally permissible. Because the undersigned 25 recommends that defendants’ motion for summary judgment be granted on plaintiff’s federal 26 27 28 25 In his opposition, plaintiff also claims that a jury could find Dr. Pfile and Dr. Kuersten liable for malpractice. (ECF No. 72 at 51.) However, in the complaint, plaintiff did not plead state law claims against such defendants. 49 1 claims, the undersigned recommends that the district judge decline to exercise supplemental 2 jurisdiction under 28 U.S.C. § 1367(c) as to plaintiff’s state law claims. 3 XI. Plaintiff’s Request for Summary Judgment 4 In his opposition to defendants’ motion, plaintiff requests that the court sua sponte grant 5 him summary judgment. (ECF No. 72 at 6, 8.) Defendants counter that such request is improper. 6 (ECF No. 77 at 2.) In light of the above recommendations, plaintiff’s request should be denied. 7 VI. Conclusion 8 Based on the foregoing, IT IS HEREBY ORDERED that: 9 1. Plaintiff’s motion for order requiring disclosure (ECF No. 68) is denied; 10 2. Plaintiff’s motion for sanctions (ECF No. 76) is denied; 11 3. Plaintiff’s motion to strike (ECF No. 52) is denied; 12 4. Defendants’ motion to strike plaintiff’s Exhibits A, B, C and D to his opposition (ECF 13 No. 77-1) is granted; 14 15 5. Plaintiff’s Exhibits A, B, C and D to his opposition (ECF No. 72 at 78-120) are stricken; and 16 6. Plaintiff’s motion to file a sur-reply (ECF No. 80-1) is denied. 17 Further, IT IS HEREBY RECOMMENDED that: 18 1. Defendants’ motion for summary judgment (ECF Nos. 30, 63) be granted; 19 2. The court decline to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c) as to 20 plaintiff’s state law claims; and 21 22 3. Plaintiff’s request for sua sponte summary judgment in his favor (ECF No. 72) be denied. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 25 after being served with these findings and recommendations, any party may file written 26 objections with the court and serve a copy on all parties. Such a document should be captioned 27 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 28 objections shall be filed and served within fourteen days after service of the objections. The 50 1 parties are advised that failure to file objections within the specified time may waive the right to 2 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: February 23, 2018 4 5 /witk0638.msj.med 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 51

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.