(PC) Barkley v. California Correctional Health Care Services, et al., No. 2:2016cv01386 - Document 67 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 12/11/2018 RECOMMENDING defendants' 57 motion for summary judgment be granted; judgment be entered in favor of defendants; and the Clerk be directed to close this case. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JERMAINE BARKLEY, 12 Plaintiff, 13 14 15 No. 2:16-cv-01386 KJM CKD P v. FINDINGS AND RECOMMENDATIONS CALIFORNIA CORRECTIONAL HEALTH CARE SERVICES, et al., Defendants. 16 Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 17 18 U.S.C. § 1983. In his first amended complaint, plaintiff asserts that defendants Smith, Vaughn, 19 and Pettersen, all current or former doctors at Mule Creek State Prison, were deliberately 20 indifferent to his serious medical needs in violation of the Eighth Amendment. See ECF No. 44. 21 Currently pending before the court is defendants’ motion for summary judgment. ECF No. 57. 22 The motion has been fully briefed by the parties. See ECF Nos. 64-66. For the reasons that 23 follow, the undersigned recommends granting defendants’ motion for summary judgment. 24 I. Allegations in the Complaint 25 The allegations in the first amended complaint concern the adequacy of the health care that 26 plaintiff received between June 2015 and June 2016 following his April 21, 2015 left knee 27 surgery to repair his ACL and to perform a meniscectomy. ECF No. 44 at 2; see also Schroeder 28 v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (holding that a complaint or motion duly verified 1 1 under penalty of perjury pursuant to 28 U.S.C. § 1746 may be used as an opposing affidavit under 2 Fed. R. Civ. P. 56).1 By way of relief, plaintiff requests compensatory and punitive damages as 3 well as “specific health care requested by plaintiff.” Id. at 6-7. 4 II. Motion for Summary Judgment 5 In their motion for summary judgment, defendants contend that there is no evidence to 6 support plaintiff’s claims of deliberate indifference to his serious medical needs because the 7 treatment he received was medically indicated and appropriate. ECF No. 57-1. Defendants 8 submitted an affidavit from Dr. Bennett Feinberg who reviewed plaintiff’s medical records and 9 provided an expert opinion concerning the treatment he received at Mule Creek State Prison 10 following his original left knee surgery in April 2015. See ECF No. 57-2 at 34-44. This evidence 11 demonstrates that plaintiff “was seen regularly by medical staff, including physical therapy, 12 primary care physicians, nurses, and orthopedists.” ECF No. 57-1 at 1. Plaintiff’s allegations 13 amount to nothing more than a difference of opinion with the treatment and medications he 14 received which is not actionable under the Eighth Amendment. Id. at 11-12 (citing Toguchi v. 15 Chung, 391 F.3d 1051, 1058 (9th Cir. 2004)). Defendants assert that their summary judgment 16 motion should be granted because their actions do not demonstrate a deliberate indifference to 17 plaintiff’s serious medical needs. Id. Plaintiff filed an opposition with numerous exhibits which included plaintiff’s affidavit; an 18 19 affidavit from plaintiff’s cell mate on the day that he reinjured his left knee; the CDCR’s 20 Comprehensive Accommodation Chrono Policy and Procedure; Dr. Vaughn’s responses to 21 plaintiff’s requests for admissions; Dr. Smith’s responses to plaintiff’s requests for admissions; 22 and, portions of plaintiff’s medical records from April 2015 until October 2017. See ECF No. 64 23 at 34-144. Plaintiff relies on the Comprehensive Accommodation Chrono Policy to suggest that 24 defendant Dr. Pettersen was deliberately indifferent to plaintiff’s need for a lower bunk chrono 25 after June 4, 2015. ECF No. 64 at 22-23. “Dr. Pettersen’s failure to follow Policy, and establish 26 27 28 1 Even though plaintiff's complaint is verified, it may function as a supporting affidavit for purposes of summary judgment only to the extent that it is “based on personal knowledge and set[s] forth specific facts admissible in evidence.” Schroeder, 55 F.3d at 460 (citations omitted). 2 1 accommodations consistent with the plaintiff’s injuries and condition, led to the plaintiff being re- 2 assigned to the upper tier, and later [an] upper bunk, by custody [staff].” Id. at 23. In his 3 opposition, plaintiff acknowledges that defendant Dr. Smith cannot be held liable for the actions 4 or inactions of Dr. Pettersen and Dr. Vaughn. ECF No. 64 at 26-27. However, he asserts that 5 defendant Dr. Smith had an “obligation and duty as Chief Medical Physician and Surgeon to 6 make certain that plaintiff had reasonable access to a primary care physician.” Id. Plaintiff 7 further argues that defendant Dr. Vaughn made treatment decisions that he knew would put 8 plaintiff at risk of adverse effects including gastrointestinal issues from Sulindac and withdrawal 9 symptoms from discontinuing Tylenol-3. Id. at 30-31. 10 By way of reply, defendants submit that there is no evidence that the treatment decisions by 11 defendants Dr. Pettersen and Dr. Vaughn were medically improper so as to demonstrate 12 deliberate indifference to plaintiff’s serious medical needs. ECF No. 65 at 3-5. Rather, plaintiff 13 simply disagreed with their treatment plan because “he did not get the medications, 14 accommodations, or treatment he wanted.” ECF No. 65 at 7. Defendant Dr. Smith should be 15 granted summary judgment because plaintiff’s claims against him are based on his supervisory 16 role as the Chief Physician and Surgeon at Mule Creek State Prison. Id. at 5-6. Moreover, 17 defendant Dr. Smith’s response to plaintiff’s health care appeal is not a sufficient legal basis to 18 attach liability. Id. 19 In addition to their reply, defendants filed objections to plaintiff’s exhibits in opposition to 20 summary judgment. ECF No. 66. Defendants object to a large portion of plaintiff’s affidavit on 21 the basis that it is hearsay and that plaintiff lacks the qualifications to provide expert medical 22 testimony. ECF No. 66 at 1-2. They additionally object to a portion of the affidavit provided by 23 plaintiff’s cell mate as well as the CDCR Comprehensive Accommodation Chrono Policy and 24 Procedure from 2006. Id. at 2-3. 25 To the extent the court necessarily relied on evidence that has been objected to, the court 26 relied only on evidence it considered to be admissible. See Fed. R. Civ. P. 56(c)(4); see also 27 Block v. City of Los Angeles, 253 F.3d 410, 419 (9th Cir. 2001) (holding that it was an abuse of 28 discretion for the district court, at the summary judgment stage, to consider information from an 3 1 affidavit based on inadmissible hearsay rather than the affiant's personal knowledge). It is not the 2 practice of this court to rule on evidentiary matters individually in the context of summary 3 judgment. This is particularly true when “many of the objections are boilerplate recitations of 4 evidentiary principles or blanket objections without analysis applied to specific items of 5 evidence.” See Burch v. Regents of the Univ. of Cal., 433 F. Supp. 2d 1110, 1124 (E.D. Cal. 6 2006) (explaining that the court should not be required to “identify potential hearsay, and 7 determine if an exception applies—all without guidance from the parties” in evaluating the merits 8 of evidentiary objections on a motion for summary judgment). With that said, however, the court finds it necessary to address defendants’ objection to the 9 10 portions of plaintiff’s affidavit that contain medical opinions. The court will not consider as 11 evidence plaintiff's attempts to interpret medical records or his statements regarding what he 12 believes was the cause of his withdrawal symptoms. The interpretation of medical records as 13 well as the determination of the medical cause of various symptoms, involve matters that are 14 scientific, technical, or require other specialized knowledge. Accordingly, plaintiff may not 15 testify as to these matters as a lay witness. Fed. R. Evid. 701. Defendants' objections on this 16 ground are sustained because plaintiff is not a qualified expert witness concerning treatment of 17 injuries or diseases. See Fed. R. Evid. 701. Facts2 18 III. 19 At all times relevant to these proceedings, plaintiff was an inmate at Mule Creek State Prison. 20 Defendants Pettersen and Vaughn were plaintiff’s primary care physicians at various times during 21 his incarceration and were employed by the California Department of Corrections and 22 Rehabilitation. Defendants’ Separate Statement of Undisputed Facts (“DSUF”), at ¶ 3. 23 Defendant Doctor Smith was employed by CDCR as the Chief Physician and Surgeon at Mule 24 Creek State Prison. See ECF No. 57-2 at 26 (Affidavit of Dr. Christopher Smith, at ¶ 3). All of 25 the defendant doctors in the present action were in good standing with the California Medical 26 Board. DSUF ¶ 4. Plaintiff has no medical training. DSUF ¶ 2. 27 28 2 All facts are undisputed unless otherwise indicated. 4 1 A. Background Medical Evidence 2 On April 21, 2015 Dr. Dowbak performed an ACL repair and a lateral and medial 3 meniscectomy on plaintiff’s left knee without any complications. DSUF at ¶ 5. Plaintiff was 4 discharged back to Mule Creek with instructions which included full weight bearing on the left 5 leg with crutches, a physical therapy consult, morphine (MS) for pain, Keflex to prevent an 6 infection, dressing changes, and a two-week follow-up. DSUF at ¶ 6. Dr. Dowbak’s discharge 7 instructions were ordered and the on-call prison physician also ordered plaintiff to follow up with 8 his primary care physician in 5-7 days. DSUF at ¶ 8; ECF No. 57-2 at ¶ 9 (Affidavit of Bennett 9 Feinberg, M.D.). 10 On April 24, 2015, plaintiff was seen by nursing staff and his primary care physician, 11 defendant Dr. Pettersen, following plaintiff’s request to be issued a wheelchair on April 23, 12 2015.3 DSUF at ¶ 8; ECF No. 57-2 at ¶ 10. During the exam, plaintiff complained of acute left 13 knee pain and had increased swelling in his left knee, but there were no signs of infection. DSUF 14 at ¶ 9. Dr. Pettersen prescribed plaintiff with additional pain medication consisting of an extra 15 dose of immediate release 15 m.g. morphine. DSUF at ¶ 10. He replaced plaintiff’s extended 16 release 15 m.g. morphine twice daily, which was scheduled to expire in 2 days, with 30 m.g. 17 extended release morphine for 5 additional days which was to be followed by 5 additional days of 18 15 m.g. extended release morphine twice daily. Id. Dr. Pettersen also referred plaintiff to 19 physical therapy and ordered him a wheelchair for two weeks, as plaintiff had requested. DSUF 20 at ¶ 11. On this same visit with his primary care physician, plaintiff signed a form indicating that 21 he was refusing a lower level tier assignment and acknowledged that such a decision could result 22 in a fracture or injury to his repaired left knee. DSUF at ¶12. 23 On May 7, 2015, plaintiff had a follow-up orthopedic visit with Dr. Pucelik who indicated 24 that “[t]he wounds are good. The sutures are out. The swelling is only mild. He still has 25 moderate pain, but is getting along well.” DSUF at ¶ 14. A follow-up visit was recommended in 26 8 weeks. ECF No. 57-2 at 37, ¶ 11. 27 28 3 Plaintiff submitted this request via a Health Care Services Request Form referred to as a CDCR 7362 Form. See ECF No. 57-2 at ¶ 10. 5 1 Plaintiff was seen by Nurse Toralba on May 15, 2015 after he submitted a 7362 health care 2 request form for a “renewal of his cell feeds and a re-evaluation of his pain medication.” ECF 3 No. 57-2 at 37, ¶ 12; ECF No. 64 at 65, ¶ 7-8. Nurse Toralba noted that plaintiff was able to 4 move, but with pain, and his left knee still had mild swelling. DSUF at ¶ 15. As a result, 5 defendant Dr. Pettersen wrote an order to extend plaintiff’s cell feeds for an additional 30 days as 6 well as an order for the pain medication Methadone 5 m.g. twice daily as needed for knee pain for 7 10 days. DSUF at ¶ 15. 8 On May 21, 2015, plaintiff was seen by Dr. Pettersen for a follow-up visit who noted that 9 plaintiff had “minimal left knee swelling” based upon an examination. DSUF at ¶ 16. Based on 10 his assessment and plan, Dr. Pettersen changed plaintiff’s pain medication to ibuprofen, with 11 methadone as needed for breakthrough pain. DSUF at ¶ 17. He also extended plaintiff’s 12 wheelchair use for two more weeks. Id. Consistent with this plan, Dr. Pettersen wrote a 13 prescription for methadone 10 m.g. twice a day as needed for breakthrough left knee pain for one 14 week, tapering down to 5 m.g. twice a day for one week, ending on June 2, 2015. DSUF at ¶ 18. 15 Plaintiff expressed his concerns about withdrawals with Dr. Pettersen who indicated that there 16 was minimal potential for withdrawals based on the limited time and tapering dose given. ECF 17 No. 64 at 66, ¶ 13; ECF No.57-2 at 32, ¶ 6. He also wrote a prescription for ibuprofen 600 m.g. 18 four times a day as needed for left knee pain and Prilosec 20 m.g. daily. Id. Dr. Pettersen 19 updated plaintiff’s Comprehensive Accommodation Chrono to indicate that plaintiff was a limited 20 wheelchair user with ground floor housing status which expired in two weeks on June 4, 2015. 21 Id. This accommodation chrono did not require the signature of a Chief Medical Executive. 22 DSUF at ¶ 20. According to plaintiff, Dr. Pettersen failed to authorize a lower bunk 23 accommodation. ECF No. 64 at 65, ¶ 9. 24 On May 27, 2015, plaintiff was seen for a physical therapy assessment which indicated that he 25 was responding well following his ACL reconstruction surgery. DSUF at ¶ 21. The physical 26 therapy plan was to see plaintiff for 8 visits. Id. 27 //// 28 //// 6 1 B. Medical Treatment During the Relevant Time Frame in the Complaint 2 Following plaintiff’s submission of a 7362 health care request form on June 2, 2015 for a 3 renewal of his pain medication, plaintiff was seen by Nurse Toralba on the next day. DSUF at ¶ 4 22. Plaintiff reported taking ibuprofen for pain, but indicated that “it’s not working.” Id. Based 5 on an examination, plaintiff had mild tenderness and swelling in his left knee, with a normal gait. 6 DSUF at ¶ 23. Upon consulting with Dr. Pettersen on June 3, 2015, plaintiff was prescribed 7 Sulindac for his left knee pain instead of the ineffective ibuprofen. DSUF at ¶ 24. In his 8 medication order, Dr. Pettersen indicated that plaintiff had no known drug allergies. Id. Plaintiff 9 had no contraindications for prescribing Sulindac in his medical records. DSUF ¶ 77-79. The 10 gastrointestinal side effects of Sulindac are “not uncommon.” DSUF ¶ 80. Such side effects are 11 “not an absolute contraindication to the prescription of the medication in the absence of more 12 serious conditions.” DSUF ¶ 81. 13 Plaintiff alleges that he was abruptly taken off Methadone as of June 2, 2015 by Dr. Pettersen. 14 ECF No. 44 at 2. On the night of June 3, 2015, plaintiff “was throwing up, had muscle spasms, 15 cold sweats, hot flashes, magrain [sic] like headaches and was debilitated.” ECF No. 64 at 66, ¶ 16 15. Dr. Pettersen was never advised that plaintiff was experiencing any of these symptoms. ECF 17 No. 57-2 at 32. 18 19 20 On June 10, 2015, plaintiff was seen for physical therapy and noted to be “out of [the] wheelchair, [and] doing well on [a] single-point cane.” DSUF at ¶ 25. Following a 7362 request for additional medical accommodations on June 24, 2015, plaintiff 21 was seen by Nurse Dator on June 26, 2015 who referred plaintiff to his primary care physician for 22 a routine appointment to review the accommodations requested by plaintiff. DSUF at ¶ 26. Such 23 referrals are sent directly to the medical schedulers in charge of creating the daily schedules for 24 the prison doctors. DSUF at ¶ 27. 25 26 On July 2, 2015, plaintiff was seen for a follow-up physical therapy appointment. DSUF ¶ 28. He is noted to have some “mild pain but [is] doing better overall.” Id. 27 Defendant Dr. Pettersen left his employment with CDCR and Mule Creek State Prison on July 28 3, 2015. DSUF ¶ 90. Dr. Pettersen was not involved in nor asked to consult in plaintiff’s medical 7 1 2 care after this date. DSUF ¶ 91. On July 6, 2015, plaintiff submitted a 7362 health care request based on complaints of severe 3 throbbing of his left knee and an inability to take Sulindac as prescribed. ECF No. 57-2 at 39, ¶ 4 18. Plaintiff was seen on July 8, 2015 by Nurse Dator who referred him to his primary care 5 physician for a routine appointment. DSUF at ¶ 29. 6 7 8 9 On July 14, 2015, plaintiff received physical therapy. DSUF ¶ 30. The assessment and therapy plan at that visit was to wean plaintiff off the use of the cane. DSUF at ¶ 33. On July 21, 2015 at 7:30 p.m., plaintiff was seen at the prison’s Triage and Treatment Area with the chief complaint that he had “fall[en] from [the] toilet.” DSUF at ¶ 32. Plaintiff was 10 noted to have “pain, mild swelling, full range of motion, weight bearing ok, [and] no deformity” 11 of his left knee. DSUF ¶ 33. The on-call physician, Dr. Jackson, prescribed ibuprofen for pain 12 and ordered an x-ray of the left knee along with a lower bunk assignment for one week. Id. 13 According to the x-ray which was performed the next day, there was no acute fracture or 14 dislocation of his left knee. DSUF ¶ 34. Nor was there any noticeable degree of fluid 15 accumulation or swelling. Id. 16 On August 12, 2015, plaintiff had a follow-up physical therapy appointment at which his gait 17 was noted to be within normal limits without the use of a cane. DSUF ¶ 35-36. He was noted to 18 be doing better overall and progressing well. DSUF ¶ 36. Plaintiff had another physical therapy 19 appointment on August 31, 2015. DSUF ¶ 37. 20 Dr. Wong examined plaintiff on August 31, 2015 based on plaintiff’s 602 appeal requesting a 21 renewal of his low bunk chrono and a review of his pain management plan. DSUF ¶ 38. Plaintiff 22 was “fully ambulatory [with] no limping or any antalgic gait. He is able to get on and off the 23 examination table with ease. His flexion and extension of both knees were equal bilaterally, [and] 24 the left knee had a well-healed surgical scar with no swelling or redness.” DSUF ¶ 39. Dr. Wong 25 granted plaintiff’s request to renew his low bunk chrono until he had a follow-up with the 26 orthopedic department. DSUF ¶ 40. He also prescribed plaintiff Tylenol No. 3 with Codeine for 27 pain for 10 days noting that “the patient agreed with the tapering dose.” Id. According to 28 plaintiff, Dr. Wong informed him that he should submit a CDCR Form 22 to Dr. Smith, the Chief 8 1 Physician and Surgeon, if he had any continued issues related to his appeal. ECF No. 64 at 68, ¶ 2 22 (Plaintiff’s Affidavit). According to defendants, there is no mention of submitting a CDCR 22 3 form in Dr. Wong’s notes, nor is this form utilized for resolving health care related issues. ECF 4 No. 57-2 at 40, ¶ 21. Plaintiff indicated that he submitted a CDCR Form 22 to Dr. Smith on two 5 occasions: September 4, 2015 and January 17, 2016. ECF No. 64 at 68, ¶¶ 24, 25. 6 Dr. Smith responded to plaintiff’s health care appeal (MCSP HC 15047118) at the first level 7 of administrative review on September 16, 2015. DSUF ¶ 86. Dr. Smith agreed with Dr. Wong’s 8 August 31, 2015 treatment plan. DSUF ¶ 86. 9 10 11 Plaintiff received additional physical therapy on September 16, 2015 as well as November 14, 2015. DSUF ¶ 43. On November 16, 2015 plaintiff was seen by Dr. Dowbak for a follow-up orthopedic 12 appointment. DSUF ¶ 44. Plaintiff reported no instability in his left knee, but did indicate that it 13 was painful in cold weather. DSUF ¶ 45. An examination revealed that plaintiff’s wounds were 14 well-healed and his left knee had a full range of motion with no swelling or looseness of the joint. 15 Id. A repeat x-ray that was performed in the clinic on that day demonstrated only post-operative 16 changes from the ACL repair and no joint effusion or other significant abnormalities. DSUF ¶ 17 46. Based on this clinical impression, Dr. Dowbak recommended that plaintiff “resume normal 18 activity.” DSUF ¶ 47. He did not order any follow-up orthopedic visit. Id. 19 Plaintiff submitted a 7362 health care request form on November 17, 2015 complaining of 20 sharp pain after his physical therapy appointment the day before, but the medical records 21 demonstrate that his only appointment the prior day was his orthopedic follow-up with Dr. 22 Dowbak. ECF No. 57-2 at 40, ¶ 23. 23 Plaintiff was scheduled to meet with his primary care physician on November 18, 2015 to 24 review the orthopedic visit results from November 16, 2015. ECF No. 57-2 at 41, ¶ 23. There is 25 a dispute between the parties as to why plaintiff did not attend this PCP appointment. Defendants 26 indicate that he was a no-show to this appointment. ECF No. 57-2 at 40-41, ¶ 23. However, 27 plaintiff states in his affidavit that he “never received any ducats for the appointments that the 28 defendants alleged I missed….” ECF No. 64 at 70, ¶ 32. 9 1 On November 20, 2015, plaintiff was seen by the nurse for his 7362 request. DSUF ¶ 49. 2 The nurse noted that plaintiff ambulated without difficulty and his left knee had no swelling, 3 tenderness or redness. Id. Plaintiff was instructed to take ibuprofen or Tylenol for pain. Id. 4 On December 6, 2015 plaintiff submitted another 7362 complaining about ongoing pain and 5 the November 18, 2015 PCP visit that never happened. He was scheduled to see the nurse on 6 December 7, 2015 to review the orthopedic visit results from November, but once again this visit 7 did not occur. ECF No. 57-2 at 41, ¶ 24; DSUF ¶ 51. The parties do not agree on the reason why 8 this visit did not happen. 9 Plaintiff submitted another 7362 request on December 15, 2015 and was seen on December 10 18, 2015. DSUF ¶ 52. Initially, plaintiff was listed as a no-show for this appointment, but then 11 he showed up late and was rescheduled for a visit with the nurse the following week. DSUF ¶ 52. 12 The rescheduled appointment for December 25, 2015 never occurred for reasons that are once 13 again unclear from the record. 14 Plaintiff received physical therapy on January 21, 2016. DSUF ¶ 54. 15 On February 17, 2016, plaintiff was seen for the first time by defendant Dr. Vaughn. DSUF ¶ 16 55. At this visit, plaintiff reported throbbing pain in his left knee that had not improved with 17 physical therapy. DSUF ¶ 56. His pain improved with rest, but was made worse with prolonged 18 ambulation. Id. Although plaintiff reported gastrointestinal (GI) upset from using Sulindac or 19 Naproxen even with food, there were no objective medical findings such as renal insufficiency, 20 hepatic dysfunction, or anemia that would contraindicate prescribing these medications. DSUF ¶ 21 57; ECF No. 64 at 68, ¶ 26. On exam, plaintiff’s left knee showed positive McMurrays (a 22 palpable catching on the joint line that can be indicative of possible meniscal tear), mild medial 23 left knee swelling, no erythema or warmth, and no ligament laxity on neurologic exam. DSUF ¶ 24 58. Dr. Vaughn prescribed Tylenol 3 once a day as needed for 30 days and naproxen twice a day 25 from the canteen. DSUF ¶ 59. He also ordered an MRI of plaintiff’s left knee and recommended 26 that plaintiff avoid heavy lifting as well as strenuous, vigorous activity. DSUF ¶ 59. 27 //// 28 //// 10 The first week of March 2016,4 plaintiff had an MRI of his left knee that did not show signs 1 2 of internal derangement or retear. DSUF ¶ 60; ECF No. 57-2 at 21, ¶ 6. Even though plaintiff 3 submitted a 7362 request form for a renewal of his Tylenol 3 medication on March 5, 2016, Dr. 4 Vaughn discontinued this medication and replaced it with Sulindac based upon his review of the 5 MRI results. DSUF ¶ 62; ECF No. 57-2 at 41, ¶ 27. Plaintiff indicates that he started to 6 experience “migraine like headaches, hot and cold flashes, [and] sweats” beginning on March 12, 7 2016. ECF No. 64 at 69, ¶ 27. On March 15, 2016, plaintiff submitted another 7362 request 8 form complaining about his medication change, but it did not mention any withdrawal symptoms 9 plaintiff was experiencing. ECF No. 57-2 at 41, ¶ 28. Plaintiff refused his appointment to 10 discuss the medication change on March 21, 2016. DSUF ¶ 65. 11 On April 20, 2016, plaintiff had a follow-up appointment with Dr. Vaughn. DSUF ¶ 66. On 12 examination, plaintiff’s knee was stable but had mild tenderness. DSUF ¶ 67. Dr. Vaughn noted 13 that there were “no signs of internal derangement or retear on [his] recent MRI,” but he referred 14 plaintiff for an orthopedic surgery consultation based on the reported instability of plaintiff’s left 15 knee. Id. 16 The orthopedic consultation occurred on June 10, 2016 with Dr. Paik. DSUF ¶ 68. At this 17 appointment, plaintiff “complained of pain and soreness in his [left] knee joint with [a] tendency 18 for his knee to give out and instability. DSUF ¶ 69. As a result, Dr. Paik recommended that 19 plaintiff use an ACL knee brace and receive physical therapy. Id. He also recommended “an 20 examination under anesthesia, arthroscopic joint debridement for evaluation of the integrity of the 21 anterior cruciate ligament for further evaluation.” Id. Plaintiff was “given instructions to do 22 isometric exercise[s] and use the knee brace.” Id. Dr. Paik also included hand-written 23 recommendations for the use of an anti-inflammatory drug. DSUF ¶ 70. The recommendations 24 for orthopedic surgery and physical therapy were ordered by Dr. Vaughn on June 16, 2016. 25 4 26 27 28 The parties appear to dispute the date this MRI occurred. Plaintiff as well as Dr. Feinberg indicate in their affidavits that the MRI occurred on March 4, 2016. See ECF No. 64 at 69, ¶ 28; ECF No. 57-2 at 42, ¶ 29. However, Dr. Vaughn indicates that the MRI occurred on March 6, 2015. ECF No. 57-2 at 21, ¶ 6. The radiology report with the exact date of the MRI is not included in the record, but a subsequent orthopedic report dated June 10, 2016 indicates that the MRI was performed on March 4, 2016. See ECF No. 64 at 125-126. 11 1 2 3 DSUF ¶ 71. Plaintiff underwent a second left knee surgery on October 4, 2016 as a result of injuries he sustained from his fall on July 21, 2015. ECF No. 64 at 59. 4 C. Low Bunk Chrono 5 A low bunk chrono accommodation following surgery is typically valid for a period of 30 6 days. DSUF ¶ 82. Plaintiff was assigned a low bunk from February 23, 2014 to at least July 14, 7 2015, although it is unclear whether this was due to a medical accommodation chrono or simply 8 his housing assignment. See DSUF ¶ 83, ECF No. 57-2 at 28, ¶ 8; ECF No. 64, 67, ¶ 19. 9 Plaintiff was housed in an upper tier of administrative segregation on June 23, 2015 which 10 required him to go up a flight of stairs. ECF No. 44 at 3; ECF No. 64, at 66-67, ¶ 16. He 11 submitted a 7362 request for a lower level/lower bunk accommodation on June 24, 2015. ECF 12 No. 64, at 67, ¶ 17. Plaintiff was seen by a nurse on June 26, 2015 regarding this request which 13 was ultimately referred to plaintiff’s primary care physician to evaluate. ECF No. 64, 67, ¶ 18. 14 From July 15, 2015 to July 21, 2015, plaintiff was assigned an upper bunk on the lower tier. 15 ECF No. 57-2 at 28, ¶ 8; ECF No. 64 at 67, ¶ 19. Plaintiff slipped and landed on his knee while 16 attempting to climb onto his upper bunk on July 21, 2015. ECF No. 64, at 67, ¶ 21. Following 17 plaintiff’s injury on July 21, 2015, he was re-assigned to a lower bunk. DSUF ¶ 84. 18 19 IV. Legal Standards A. Summary Judgment 20 Summary judgment is appropriate when it is demonstrated that there “is no genuine 21 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 22 Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by 23 “citing to particular parts of materials in the record, including depositions, documents, 24 electronically stored information, affidavits or declarations, stipulations (including those made for 25 purposes of the motion only), admissions, interrogatory answers, or other materials....” Fed. R. 26 Civ. P. 56(c)(1)(A). 27 28 Summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element 12 1 essential to that party's case, and on which that party will bear the burden of proof at trial. See 2 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an 3 essential element of the nonmoving party's case necessarily renders all other facts immaterial.” 4 Id. 5 If the moving party meets its initial responsibility, the burden then shifts to the opposing 6 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita 7 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 8 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 9 of their pleadings but is required to tender evidence of specific facts in the form of affidavits, 10 and/or admissible discovery material, in support of its contention that the dispute exists or show 11 that the materials cited by the movant do not establish the absence of a genuine dispute. See Fed. 12 R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the 13 fact in contention is material, i.e., a fact that might affect the outcome of the suit under the 14 governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., 15 Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is 16 genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving 17 party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 18 In the endeavor to establish the existence of a factual dispute, the opposing party need not 19 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 20 dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at 21 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 22 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 23 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 24 amendments). 25 In resolving the summary judgment motion, the evidence of the opposing party is to be 26 believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the 27 facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 28 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's 13 1 obligation to produce a factual predicate from which the inference may be drawn. See Richards 2 v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 3 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than 4 simply show that there is some metaphysical doubt as to the material facts.... Where the record 5 taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 6 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 7 8 B. Eighth Amendment Deliberate Indifference Standard Plaintiff's claims, which arise under the Eighth Amendment, have two elements: proof that 9 plaintiff had a “serious medical need” and that defendants acted with “deliberate indifference” to 10 that need. Estelle v. Gamble, 429 U.S. 97, 105 (1976). A medical need is serious if “the failure 11 to treat a prisoner's condition could result in further significant injury or the ‘unnecessary and 12 wanton infliction of pain.’” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (quoting 13 Estelle, 429 U.S. at 104). Deliberate indifference is proved by evidence that a prison official 14 “knows of and disregards an excessive risk to inmate health or safety; the official must both be 15 aware of the facts from which the inference could be drawn that a substantial risk of serious harm 16 exists, and he must also draw the inference.” Farmer v. Brennan, 511 825, 837 (1994). “Prison 17 officials are deliberately indifferent to a prisoner's serious medical needs when they deny, delay, 18 or intentionally interfere with medical treatment.” Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 19 2002) (internal citations and quotation marks omitted). 20 Mere negligence is insufficient for Eighth Amendment liability. Frost v. Agnos, 152 F.3d 21 1124, 1128 (9th Cir. 1998). In addition, “[a] difference of opinion between a physician and the 22 prisoner—or between medical professionals—concerning what medical care is appropriate does 23 not amount to deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) 24 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)). Nor does a dispute between a 25 prisoner and prison officials over the necessity for, or extent of, medical treatment amount to a 26 constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); 27 Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). In order “to prevail on a claim involving 28 choices between alternative courses of treatment, a prisoner must show that the chosen course of 14 1 treatment ‘was medically unacceptable under the circumstances,’ and was chosen ‘in conscious 2 disregard of an excessive risk to [the inmate’s] health.’” Toguchi, 391 F.3d at 10158 (quoting 3 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). 4 V. Analysis 5 There is no dispute that plaintiff had a serious medical need while an inmate at Mule Creek 6 State Prison between June 2015 and June 2016. Therefore, there is no genuine issue of material 7 fact as to the first prong of plaintiff’s deliberate indifference claim. The only remaining issue is 8 whether there is a genuine issue of material fact concerning defendants' failure to respond to 9 plaintiff’s medical need in a manner that caused him harm in violation of the Eighth Amendment. 10 11 Jett, 439 F.3d at 1096. The undersigned finds that defendants have met their initial burden of informing the court of 12 the basis for their motion, and identifying those portions of the record which they believe 13 demonstrate the absence of a genuine issue of material fact. The burden therefore shifts to 14 plaintiff to establish the existence of a genuine issue of material fact with respect to his claims of 15 inadequate medical care. See Matsushita Elec. Indus., 475 U.S. at 586 (1986). The court has 16 reviewed plaintiff's verified complaint and his affidavit and exhibits in opposition to defendants' 17 pending motion. Drawing all reasonable inferences from the evidence submitted 18 in plaintiff's favor, the court concludes that plaintiff has not submitted sufficient evidence at the 19 summary judgment stage to create a genuine issue of material fact with respect to his claim that 20 the defendants violated his rights under the Eighth Amendment. The court will analyze the 21 claims against each defendant separately. 22 A. Defendant Smith 23 Dr. Smith's only involvement in plaintiff’s medical care between June 2015 and June 2016 24 was based on his September 16, 2015 first level administrative response to a health care appeal 25 filed by plaintiff concerning his request for a lower bunk/lower tier accommodation chrono and a 26 pain management plan. See ECF No. 64 at 112-113. Dr. Smith was never plaintiff’s primary 27 care physician. Dr. Smith agreed with the treatment recommendations of Dr. Wong, but plaintiff 28 disagreed with both doctors. In this vein, plaintiff's claim against defendant Dr. Smith is based 15 1 solely on a difference of opinion with his medical providers, which is not a basis for Eighth 2 Amendment liability. See Snow v. McDaniel, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 3 240, 242 (9th Cir. 1989)). 4 Recognizing that there is no supervisory liability in § 1983 actions, plaintiff argues in his 5 opposition to summary judgment that defendant Dr. Smith was deliberately indifferent to his 6 serious medical needs by not ensuring plaintiff’s adequate access to a new primary care physician 7 after July 3, 2015, when defendant Dr. Pettersen was no longer plaintiff’s primary care physician. 8 ECF No. 64 at 29. Here, there is no evidence presented that defendant Dr. Smith was responsible 9 for assigning plaintiff a new primary care physician, much less that any delay in plaintiff’s next 10 primary care visit was attributable to any action or inaction by this defendant. See Coleman v. 11 Quaker Oats Co., 232 F.3d 1271, 1291-94 (9th Cir. 2000) (a district court does not err when it 12 refuses to entertain a new theory of liability raised for the first time at the summary judgment 13 stage). Nor is there any suggestion in the record that Dr. Smith was responsible for the primary 14 care visits that plaintiff missed in November and December, 2015. Accordingly, Dr. Smith is 15 entitled to summary judgment because there is no evidence that he was deliberately indifferent to 16 plaintiff’s need for ongoing care by his primary care physician. 17 As an additional basis for liability, plaintiff argues defendant Dr. Smith failed to follow 18 CDCR’s comprehensive accommodation policy pursuant to which plaintiff was entitled to a 19 lower bunk chrono in July 2015 that would have prevented him from re-injuring his left knee.5 20 ECF No. 64 at 13. To the extent that plaintiff contends that defendant Dr. Smith was deliberately 21 indifferent by failing to continue plaintiff’s low bunk chrono, there is no evidence that Dr. 22 Smith’s approval was required in order for this chrono to continue. See Barry v. Ratelle, 985 F. 23 24 25 26 27 28 5 Section 1983 provides a cause of action where a state actor's "conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States." Leer v. Murphy, 844 F.2d 628, 632 (9th Cir. 1987) (quoting Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 328 (1986)). "[S]tate departmental regulations do not establish a federal constitutional violation." Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009). The issue is whether the defendants were deliberately indifferent to plaintiff's serious medical needs. This is not established based upon failure to comply with CDCR guidelines for providing medical accommodations. For this reason, the court has not considered the Comprehensive Accommodation Chrono Policy. 16 1 Supp. 1235, 1239 (S.D. Cal.1997) (implied factual awareness through a defendant's reading and 2 denial of a prisoner's grievance is insufficient to state a claim of deliberate medical indifference) 3 (dismissing claims against warden). Defendant Dr. Smith was not involved in plaintiff’s daily 4 health care. His review of plaintiff’s health care grievance in September 2015 occurred months 5 after plaintiff re-injured his knee. Accordingly, there is no genuine issue of material fact 6 necessitating a trial on Dr. Smith’s failure to provide plaintiff with a low bunk accommodation. 7 For all of these reasons, Dr. Smith is entitled to summary judgment. 8 B. Defendant Vaughn 9 Plaintiff’s Eighth Amendment claim against defendant Dr. Vaughn is based on his prescribing 10 Sulindac for pain which caused plaintiff to experience gastro-intestinal upset. Plaintiff also 11 contends that defendant Dr. Vaughn failed to taper plaintiff off the Tylenol-3 pain medication 12 causing plaintiff to suffer minor withdrawal symptoms. ECF No. 64 at 17. However, there is no 13 admissible evidence before the court indicating that the course of action recommended by 14 defendant Dr. Vaughn was not appropriate under the circumstances presented to him, much less 15 that it constituted deliberate indifference. Plaintiff has not submitted any evidence to cast doubt 16 on defendants' unrefuted expert testimony which establishes that prescribing Sulindac was 17 medically appropriate under the circumstances and within the standard of care and skill ordinarily 18 exercised by reputable members of the medical profession at that time. At best, the evidence 19 demonstrates that plaintiff did not receive the type of pain medication that he wanted. See Parlin 20 v. Sodhi, No. 10-6120 VBF MRW, 2012 WL 5411710 at *5 (C.D. Cal. Aug. 8, 2012) (“At its 21 core, Plaintiff's claim is that he did not receive the type of treatment and pain medication that he 22 wanted when he wanted it. His preference for stronger medication – Vicodin, Tramadol, etc. – 23 represents precisely the type of difference in medical opinion between a lay prisoner and medical 24 personnel that is insufficient to establish a constitutional violation.”); Womack v. Bakewell, No. 25 10-CV-2778 GEB DAD, 2013 WL 3148467, *9 (E.D. Cal. June 19, 2013) (“In this regard, 26 plaintiff's disagreement with defendants about the type and strength of his pain medication does 27 not reflect a conscious disregard of plaintiff's serious medical needs. In short, based on the record 28 before the court, defendants' refusal to provide plaintiff with the pain medication he preferred did 17 1 not rise to the level of deliberate indifference in violation of the Eighth Amendment.”). In this 2 case, plaintiff has not come forward with any evidence demonstrating that the course of treatment 3 provided by defendant Vaughn was medically unacceptable under the circumstances. Nor has he 4 provided any medical evidence demonstrating that a tapered dose of Tylenol 3 was required in 5 order to avoid any type of withdrawal symptoms. As the evidence shows a mere difference in 6 opinion between plaintiff and a prison doctor as to the appropriate course of treatment, plaintiff 7 has not raised a genuine dispute of material fact on this basis. Defendant Vaughn’s motion for 8 summary judgment should be granted. C. Defendant Pettersen6 9 Plaintiff’s main complaint with Dr. Pettersen’s prescription of methadone for pain is based on 10 11 his failure to follow-up with plaintiff between May 21, 2015 and June 2, 2015 “to discuss 12 withdrawal prevention and pain management options moving forward.” ECF No. 64 at 66, ¶ 13. 13 The court has credited plaintiff’s description of the symptoms he experienced beginning on June 14 3, 2015 even though they were not documented in his medical records. However, the undisputed 15 evidence establishes that Dr. Pettersen prescribed Methadone in a tapered dosage over a two- 16 week period of time. There was a minimum potential for withdrawal based on the limited time 17 and tapering dose given by Dr. Pettersen. Defendants have submitted unrefuted expert testimony 18 which establishes that the tapered dosage was medically appropriate under the circumstances and 19 within the standard of care. Even assuming the facts in the light most favorable to plaintiff, there 20 is no evidence that there was a substantial risk of serious harm to plaintiff from the tapered 21 prescription of methadone. See Farmer v. Brennan, 511 U.S. at 837. 22 //// 23 24 25 26 27 28 In the summary judgment motion, defendant Dr. Pettersen states that he “has not had an opportunity to engage in discovery because discovery was closed at the time he appeared in this action.” ECF No. 57-1 at 2. On the same day that defendant Dr. Pettersen filed his answer, he also filed a motion to modify the discovery and scheduling order governing this case. ECF No. 53. This motion was denied without prejudice on April 26, 2018 based on the pending motion for summary judgment. ECF No. 60. In light of the recommendation to grant defendant Dr. Pettersen’s motion for summary judgment, there is no need to re-open the discovery period in this case. 18 6 1 Plaintiff also contends that defendant Dr. Pettersen was deliberately indifferent to his need for 2 a low bunk chrono. To the extent that plaintiff faults Dr. Pettersen for not authorizing him a low 3 bunk accommodation on May 21, 2015, the undisputed evidence establishes that plaintiff was 4 assigned a low bunk until July 14, 2015. Moreover, a low bunk medical accommodation is 5 generally only provided for 30 days following surgery. In this case, plaintiff has failed to come 6 forward with evidence demonstrating that Dr. Pettersen was aware of any facts from which he 7 could have drawn an inference of a substantial risk of serious harm to plaintiff from not 8 authorizing this medical chrono on May 21, 2015, 30 days after his surgery. To the extent that 9 plaintiff asserts that Dr. Pettersen should have authorized the low bunk chrono at the end of June 10 2015 when plaintiff submitted a 7362 requesting this medical accommodation, there is no 11 evidence indicating that Dr. Pettersen ever received this request or failed to act on it before 12 leaving his position at Mule Creek. The undisputed evidence establishes that nursing staff 13 referred plaintiff’s accommodation request to his primary care physician on June 26, 2015. 14 However, Dr. Pettersen left his employment at Mule Creek on July 3, 2015. Based on this 15 evidentiary gap, defendant Pettersen’s motion for summary judgment should be granted. See 16 Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d 810 F.2d 17 898, 902 (9th Cir. 1987). Nor has plaintiff submitted evidence to show that Dr. Pettersen’s 18 decision not to authorize a low bunk chrono was medically unacceptable under the circumstances. 19 For all of these reasons, Dr. Pettersen’s motion for summary judgment should be granted. 20 VI. Plain Language Summary for Pro Se Party 21 Since plaintiff is acting as his own attorney in this case, the court wants to make sure that the 22 words of this order are understood. The following information is meant to explain this order in 23 plain English and is not intended as legal advice. 24 The court has reviewed the pending motion for summary judgment as well as the affidavits 25 and evidence submitted by the parties and has concluded that the facts of your case are not 26 sufficiently in dispute to warrant a trial. This problem is not fixable by filing an amended 27 complaint. 28 //// 19 1 You have fourteen days to explain to the court why this is not the correct outcome in your 2 case. If you choose to do this you should label your explanation as “Objections to Magistrate 3 Judge’s Findings and Recommendations.” The district court judge assigned to your case will 4 review any objections that are filed and will make a final decision on the motion for summary 5 judgment. 6 VII. Conclusion 7 In accordance with the above, IT IS HEREBY RECOMMENDED that: 8 1. 9 2. Judgment be entered in favor of defendants; and, 10 3. The Clerk of Court be directed to close this case. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 13 after being served with these findings and recommendations, any party may file written 14 objections with the court and serve a copy on all parties. Such a document should be captioned 15 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 16 objections shall be served and filed within fourteen days after service of the objections. The 17 parties are advised that failure to file objections within the specified time may waive the right to 18 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 Dated: December 11, 2018 Defendants’ motion for summary judgment (ECF No. 57) be granted; and, _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 12/bark1386.msj.docx 28 20