Warner v. Velardi et al, No. 3:2016cv01924 - Document 51 (S.D. Cal. 2018)
Court Description: REPORT AND RECOMMENDATION re 43 MOTION for Summary Judgment filed by P. Velardi, Cook. It therefore is recommended that the District Court issue an Order: (1) approving and accepting this Report and Recommendation; (2) granting defen dants' summary judgment motion; and (3) directing that Judgment be entered dismissing this action with prejudice. Any party having objections to the Court's proposed findings and recommendations shall serve and file specific written objecti ons within 14 days after being served with a copy of this Report and Recommendation. A party may respond to the other party's objections within 14 days after being served with a copy of the objections. Signed by Magistrate Judge Robert N. Block on 8/14/2018.(All non-registered users served via U.S. Mail Service)(jdt)
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Warner v. Velardi et al Doc. 51 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EARL WARNER, Plaintiff, 12 13 Case No.: 16-cv-1924-LAB (DHB) v. REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE P. VELARDI, et al., (ECF No. 43) 14 15 16 Defendants. 17 18 19 This Report and Recommendation is submitted to the Honorable Larry A. Burns, 20 United States District Judge, pursuant to 28 U.S.C. § 636 and Local Rule 72.3(f) of the 21 United States District Court for the Southern District of California. 22 23 PROCEDURAL HISTORY 24 Plaintiff, a state prisoner, is proceeding pro se and in forma pauperis in this civil 25 rights action brought pursuant to 42 U.S.C. § 1983. On November 3, 2017, plaintiff filed 26 the operative complaint in this case. (ECF No. 33.) Plaintiff alleges that, on or about July 27 27, 2012, he caused a serious injury to his right hand when he hit a cement wall with his 28 fist within his cell quarters. (Id. at 3.) Plaintiff claims that Nurse Practitioner Velardi (“NP 1 16-cv-1924-LAB (RNB) Dockets.Justia.com 1 Velardi”) violated his Eighth Amendment rights by failing to provide him suitable pain 2 medication and failing to have an x-ray taken of plaintiff’s hand immediately. (Id. at 4, 3 10.) He also claims Dr. Cook violated his Eighth Amendment rights when he failed to 4 provide plaintiff with suitably strong pain medication. (Id. at 6, 10.) 5 On April 3, 2018, defendants NP Velardi and Dr. Cook (hereinafter “defendants”) 6 filed a Motion for Summary Judgment, along with a supporting Memorandum of Points 7 and Authorities. (ECF No. 43.) In support of their Motion, the defendants also filed their 8 own declarations, a declaration from a medical expert, a Rand warning, and a compendium 9 of attached exhibits. (See ECF Nos. 43-2 through 43-6.) 10 On April 13, 2018, the Court provided plaintiff with the requisite notice of the 11 requirements for opposing a summary judgment motion in accordance with Klingele v. 12 Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th 13 Cir. 1998), cert. denied, 527 U.S. 1035 (1999). The notice included the requirement of 14 Local Rule 7.1(f)(3)(b) that plaintiff’s opposition “must contain a brief and complete 15 statement of all reasons in opposition to the position taken by defendants, an answering 16 memorandum of points and authorities, and copies of all documentary evidence upon 17 which you are relying.” (ECF No. 44.) 18 On June 20, 2018, plaintiff filed his Opposition to Motion for Summary Judgment, 19 which included the following documents: (1) plaintiff’s Disputed Facts in Opposition to 20 Motion for Summary Judgment; (2) Memorandum of Points and Authorities in Support of 21 Opposition to Motion for Summary Judgment; (3) plaintiff’s Declaration in Support of 22 Opposition to Motion for Summary Judgment; (4) California Prison Health Care Services 23 (“CPHCS”) Policy and Procedure, Volume 4, Chapter 28A – Nurse Practitioner Policy; (5) 24 California Correctional Health Care Services (“CCHCS”), Volume 4, Chapter 1.3, Section 25 4.1.3 – Scheduling and Access to Care Procedure; (6) CCHCS Mobile and Radiology 26 Specialty Services Policy and Procedure, Volume 4, Chapter 30; (7) Overview of Health 27 Care Services; (8) Declaration of Steven Moore in Support of plaintiff’s Opposition to 28 Motion for Summary Judgment; (9) Declaration of Shannon Coryell in Support of 2 16-cv-1924-LAB (RNB) 1 plaintiff’s Opposition to Motion for Summary Judgment; (10) Declaration of Dave Hannah 2 in Support of plaintiff’s Opposition to Motion for Summary Judgment; (11) Forms and 3 Document from plaintiff’s exhausted CDCR 602 Health Care Appeal; (12) a Nonformulary 4 Drug Request From dated May 8, 2012; (13) multiple Medication Reconciliation Sheets 5 dated between June 13, 2012 and October 30, 2012; (14) multiple Physician Orders forms 6 (CDC 7221 Form); (15) multiple Primary Care Provider Progress Notes (CDCR 7230-M 7 Form); (16) his Health Care Services Request form; (17) an Encounter Form: 8 Musculoskeletal Complaint (Non-Traumatic) dated October 9, 2012; (18) multiple 9 Interdisciplinary Notes (CDC 7230 Form); (19) Health Care Transfer Information (CDCR 10 7371 Form); (20) multiple Chronic Care Follow-up Visit/Progress Notes from the 11 California Men’s Colony; and (21) Medical Progress Notes from R.J. Donovan 12 Correctional Facility (“RJD”). (ECF No. 48.) On July 6, 2018, defendants filed their 13 Reply. (ECF No. 49.) 14 15 For the reasons discussed hereafter, the Court recommends that the summary judgment motion be granted. 16 17 LEGAL STANDARD FOR SUMMARY JUDGMENT 18 The Court must render summary judgment if the papers “show that there is no 19 genuine issue as to any material fact and that the movant is entitled to judgment as a matter 20 of law.” Fed. R. Civ. P. 56(c). An issue is “genuine” only if there is a sufficient evidentiary 21 basis on which a reasonable jury could find for the nonmoving party. See Anderson v. 22 Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A factual 23 dispute is “material” only if it might affect the outcome of the suit under governing law. 24 See Anderson, 477 U.S. at 248. Inferences to be drawn from the underlying facts must be 25 viewed in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. 26 Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). 27 At the summary judgment stage, a judge’s function is not to weigh the evidence or 28 determine the truth of the matter but, rather, to determine whether there is any genuine 3 16-cv-1924-LAB (RNB) 1 issue for trial. See Anderson, 477 U.S. at 249; Balint v. Carson City, 180 F.3d 1047, 1054 2 (9th Cir. 1999) (en banc). 3 Summary judgment is appropriate if the nonmoving party “fails to make a showing 4 sufficient to establish the existence of an element essential to that party’s case, and on 5 which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 6 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Moreover, summary judgment cannot 7 be avoided by relying solely on conclusory allegations unsupported by factual data. See 8 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). In order to demonstrate the existence 9 of a genuine issue, the opposing party “must do more than simply show that there is some 10 metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 587. 11 Generally, self-serving declarations and affidavits, without more, cannot create a 12 genuine issue. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) 13 (“[The Ninth Circuit] has refused to find a ‘genuine issue’ where the only evidence 14 presented is ‘uncorroborated and self-serving’ testimony.” (quoting Kennedy v. Applause, 15 Inc., 90 F.3d 1477, 1481 (9th Cir. 1996))). Summary judgment analysis “focuses on 16 whether the nonmoving party has come forward with sufficiently ‘specific’ facts from 17 which to draw reasonable inferences about other material facts that are necessary elements 18 of the nonmoving party’s claim.” T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 19 809 F.2d 626, 632 n. 3 (9th Cir. 1987). Accordingly, “[a] conclusory, self-serving affidavit, 20 lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue 21 of material fact.” F.T.C. v. Publishing Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 22 1996). Courts can therefore disregard a self-serving declaration for purposes of summary 23 judgment when it states only conclusions and not such facts as would be admissible in 24 evidence. S.E.C. v. Phan, 500 F.3d 895, 909 (9th Cir. 2007). 25 However, in Phan, 500 F.3d at 909, the Ninth Circuit also recognized that party's 26 affidavits are always self-serving and therefore “[i]n most cases, [ ] that an affidavit is self- 27 serving bears on its credibility, not on its cognizability for purposes of establishing a 28 genuine issue of material fact.” The Phan court also noted that information based on 4 16-cv-1924-LAB (RNB) 1 private first person knowledge will often lack corroboration and this should not lead to 2 defeat at the summary judgment stage. Id. at 910. (“[I]t is unremarkable that the 3 defendants could not otherwise corroborate their personal conversations.”). Id. “A judge 4 must not grant summary judgment based on his determination that one set of facts is more 5 believable than another.” Nelson v. City of Davis, 571 F.3d 924, 929 (9th Cir. 2009). 6 7 SUMMARY OF UNCONTROVERTED MATERIAL FACTS 8 Based on the evidence presented and in light of the foregoing principles, the Court 9 finds that the following material facts are uncontroverted for purposes of defendants’ 10 11 12 summary judgment motion. On or about July 27, 2012, plaintiff injured his right hand when he punched a cement wall within his assigned cell. (ECF No. 33 at 3.) 13 After plaintiff submitted a Health Care Services Request form on July 27, 2012, he 14 was called to the Facility C Yard Sick Call Clinic on July 30, 2012, where he was first seen 15 by Nurse S. Boucher. (ECF No. 43-6 at 7; ECF No. 48 at 22-23.) Nurse Boucher noted 16 that plaintiff’s injury was “no[t] urgent or emerging” and that plaintiff had wrapped his 17 hand in an ace bandage. (ECF No. 43-6 at 7; ECF No. 48 at 26.) According to plaintiff, 18 following his consultation with Nurse Boucher, he was seen that same day by NP Velardi. 19 (ECF No. 48 at 24.) It is uncontroverted that NP Velardi ordered a “routine” x-ray of 20 plaintiff’s right hand on July 30, 2012. (ECF No. 43-6 at 9; ECF No. 48 at 4, 24, 111.) 21 NP Velardi’s July 30, 2012 order did not include an order for pain medication. 22 However, plaintiff’s medical records evidence that NP Velardi already had prescribed a 23 30-day supply of a pain reduction drug, Naproxen, to plaintiff on July 24, 2012. (ECF No. 24 48 at 108-09.) 25 On August 1, 2012, plaintiff’s right hand was x-rayed per NP Velardi’s order. The 26 x-ray found “evidence of a mildly displaced fracture seen at the midshaft of the fourth 27 metacarpal. Moderate soft tissue swelling is noted. Remaining osseous structures and joint 28 spaces are preserved.” (ECF No. 43-6 at 11.) On the x-ray report, NP Velardi made a 5 16-cv-1924-LAB (RNB) 1 handwritten notation dated August 7, 2012, indicating that follow up was needed. (See 2 ibid; ECF No. 43-4 at 2.) She also filled out a Notification of Diagnostic Test Results on 3 August 7, 2012, notifying plaintiff that he would be scheduled for a followup appointment 4 to go over the x-ray results “ASAP Next Available.” (ECF No. 43-6 at 13.) 5 On August 12, 2012, plaintiff submitted another Health Care Services Request 6 requesting followup for his right hand injury and his constant pain. (ECF No. 43-6 at 15; 7 ECF No. 48 at 114.) 8 On August 14, 2012, plaintiff was seen by Nurse Lacuran, who referred him to 9 defendant Dr. Cook (“Dr. Cook”) in the Treatment and Triage Area (“TTA”) for further 10 evaluation and management. (ECF No. 43-6 at 15; ECF No. 48 at 114.) The same day, 11 Dr. Cook examined plaintiff and noted that he had tenderness to palpitation over a right 12 hand deformity, that he mainly complained that he was in a lot of pain, and that he wanted 13 medical management of pain. (ECF No. 43-6 at 17; ECF No. 48 at 115.) Dr. Cook advised 14 plaintiff to continue with his Naproxen and to add Tylenol for pain, to which plaintiff 15 became argumentative and threatened to file paperwork. 16 prescribing Tylenol for plaintiff’s pain, Dr. Cook placed an ulnar gutter splint on plaintiff’s 17 hand for protection of the area, ordered a new x-ray of the right hand, submitted an urgent 18 referral for an initial orthopedic outpatient consultation of plaintiff’s fracture, and directed 19 a follow-up visit with NP Velardi. (ECF No. 43-6 at 17, 19, 24; ECF No. 48 at 117.) (See id.) In addition to 20 Plaintiff saw NP Velardi the next day. She noted that plaintiff’s hand was splinted 21 and that he had an orthopedic referral pending. (ECF No. 43-6 at 21; ECF No. 48 at 122.) 22 NP Velardi also noted that plaintiff requested “something stronger pain” and said that he 23 couldn’t sleep. (Id.) In response to plaintiff’s request, NP Velardi prescribed a 14 days’ 24 supply of Tylenol #3 with Codeine. (ECF No. 43-4 at 3; ECF No. 48 at 117, 119.) On the 25 order for the pain medication, NP Velardi wrote the word “Stat” and circled it, indicating 26 to the pharmacy that she was requesting they fill this prescription quickly for plaintiff. 27 (ECF No. 43-2 at 5.) 28 6 16-cv-1924-LAB (RNB) 1 On August 23, 2012, Dr. Cook reviewed and signed the transcription of plaintiff’s 2 August 14, 2012 right hand x-ray that found a “complete fracture of the fourth meta carpal 3 bone.” On the transcript, Dr. Cook also noted that plaintiff was “Seen-Splinted” and that 4 an orthopedic referral was already scheduled. (ECF No. 43-6 at 24.) Dr. Cook also 5 completed a Notification of Diagnostic Test Results form on August 23, 2012, notifying 6 plaintiff that he would be scheduled for a follow up medical appointment to go over the x- 7 ray results and had already been scheduled for a chronic care appointment. (ECF No. 43- 8 6 at 26.) 9 On August 29, 2012, plaintiff was seen by Dr. David L. Daugherty, an orthopedic 10 surgeon from Tri-City Medical Center. Dr. Daugherty’s exam revealed that plaintiff had a 11 prominent callous at the dorsum of the right finger metacarpal with no tenderness; no false 12 motion; no evidence of rotational malalignment of the ring finger; limited motion of his 13 digits’ joint due to the splint; and normal sensation to light touch and scratching. After 14 examination, Dr. Daugherty noted “Impression: Right ring finger metacarpal neck fracture, 15 healing with some apex dorsal angulation. Plan: Discontinue splint. Work on range of 16 motion and strengthening. No further follow up indicated unless the patient sustains re- 17 injury.” (ECF No. 43-6 at 28-29.) 18 Plaintiff disputes that he was seen again by Dr. Cook on August 31, 2012 as Dr. 19 Cook’s examination notes indicate. (See ECF No. 48 at 30.) However, plaintiff does not 20 dispute that, when he saw NP Velardi on September 4, 2012 and complained of chronic 21 pain, the reason NP Velardi gave him for not renewing his Tylenol #3 prescription that had 22 expired on August 29, 2012 was that Dr. Cook had just seen plaintiff on August 31, 2012 23 and prescribed Indomethacin for plaintiff’s pain in place of the Naproxen. (See ECF No. 24 48 at 33.) Plaintiff also does not appear to be disputing that his medication list indicates 25 that Dr. Cook prescribed a different pain medication for plaintiff on August 31, 2012. (See 26 ECF No. 43-6 at 33.) 27 On September 11, 2012, plaintiff submitted another Health Care Services Request 28 form requesting pain medication for his right hand and lower back and to see Dr. Cook. 7 16-cv-1924-LAB (RNB) 1 Plaintiff alleged that he was in constant extreme pain (i.e. “[B]etween 8-9 on scale of 1- 2 10”), that the pain disturbed his sleep pattern, and that the pain impaired his daily 3 functioning. However, on September 13, 2012, Nurse Boucher noted that plaintiff’s right 4 wrist brace was intact, that plaintiff’s pain was at “6 [on a] scale 1-10,” that no swelling 5 but a deformity was present, that no urgent or emergency situation existed, that plaintiff 6 had recently seen Dr. Cook, and that there were no signs of acute distress. (See ECF No. 7 48 at 134.) 8 On September 26, 2012, NP Velardi examined plaintiff in response to a healthcare 9 appeal (“602”) seeking, inter alia, the name of x-ray technicians, expedited pain 10 medication, and exemplary damages for injuries. NP Velardi ordered another x-ray of 11 plaintiff’s right hand “ASAP” and added Tylenol #3 and amitriptyline for pain to plaintiff’s 12 medication list. (See ECF No. 43-4 at 3; ECF No. 43-6 at 35-36.) 13 On October 10, 2012, NP Velardi saw plaintiff again. In response to his complaint 14 about persistent pain, she referred him to TTA for splinting and also ordered that plaintiff’s 15 Tylenol #3 prescription be renewed “Stat.” (ECF No. 43-4 at 3; ECF No. 43-6 at 49; ECF 16 No. 48 at 137, 139, 143.) 17 18 19 DISCUSSION A. Governing Law 20 The Eighth Amendment’s proscription against cruel and unusual punishment 21 encompasses the government’s obligation to provide adequate medical care to those whom 22 it is punishing by incarceration. See Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 50 23 L. Ed 2d 251 (1976). In order to establish an Eighth Amendment claim based on inadequate 24 medical care, a plaintiff must show that the defendant was deliberately indifferent to his 25 serious medical needs. See Helling v. McKinney, 509 U.S. 25, 32, 113 S. Ct. 2475, 125 L. 26 Ed. 2d 22 (1993); Gamble, 429 U.S. at 106; McGuckin v. Smith, 974 F.2d 1050, 1059 (9th 27 Cir. 1992), overruled on other grounds, WMX Technologies v. Miller, 104 F.3d 1133 (9th 28 Cir. 1997). Deliberate indifference to the serious medical needs of a prisoner constitutes 8 16-cv-1924-LAB (RNB) 1 the “unnecessary and wanton infliction of pain” proscribed by the Eighth Amendment. 2 McKinney, 509 U.S. at 32; Gamble, 429 U.S. at 104; McGuckin, 974 F.2d at 1059. 3 A “serious” medical need arises if the failure to treat the plaintiff could result in 4 further significant injury or the “unnecessary and wanton infliction of pain.” Gamble, 429 5 U.S. at 104; McGuckin, 974 F.2d at 1059. 6 Deliberate indifference may be manifested by the intentional denial, delay or 7 interference with the plaintiff’s medical care, or by the manner in which the medical care 8 was provided. Gamble, 429 U.S. at 104-05; McGuckin, 974 F.2d at 1059. The defendant, 9 however, must purposefully ignore or fail to respond to the plaintiff’s pain or medical 10 needs. McGuckin, 974 F.2d at 1060. Thus, neither an inadvertent failure to provide 11 adequate medical care, nor mere negligence or medical malpractice, nor a mere delay in 12 medical care (without more), nor a difference of opinion over proper medical treatment, is 13 sufficient to constitute an Eighth Amendment violation. See Gamble, 429 U.S. at 105-06; 14 Toguchi v. Chung, 391 F.3d 1051, 1058-60 (9th Cir. 2004); Jackson v. McIntosh, 90 F.3d 15 330, 332 (9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Shapley v. 16 Nevada Bd. of State Prison Commissioners, 766 F.2d 404, 407 (9th Cir. 1984). The Eighth 17 Amendment does not require optimal medical care or even medical care that comports with 18 the community standard of medical care. “[A] complaint that a physician has been 19 negligent in diagnosing or treating a medical condition does not state a valid claim of 20 medical mistreatment under the Eighth Amendment. Medical malpractice does not become 21 a constitutional violation merely because the victim is a prisoner.” See Gamble, 429 U.S. 22 at 106; see also, e.g., Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995); 23 McGuckin, 974 F.2d at 1050; Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th 24 Cir. 1980). Accordingly, even gross negligence is insufficient to establish deliberate 25 indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th 26 Cir. 1990). 27 // 28 // 9 16-cv-1924-LAB (RNB) 1 B. Analysis 2 1. NP Velardi is entitled to summary judgment. 3 The gravamen of plaintiff’s Eighth Amendment claims against NP Velardi is that 4 her delay in treating plaintiff’s injured hand and her failure to prescribe suitable pain 5 medication displayed deliberate indifference toward plaintiff’s serious medical needs. (See 6 ECF No. 33; ECF No. 48.) 7 plaintiff’s requests for treatment did not demonstrate deliberate indifference. (ECF No. 8 43-1 at 13-14.) Notwithstanding, defendants contend that qualified immunity applies. (Id. 9 at 17-19.) Defendants assert that NP Velardi’s actions in response to 10 Generally, a “delay in providing a prisoner” with medical care, “standing alone, does 11 not constitute an eighth amendment violation.” Hunt v. Dental Dep’t, 865 F.2d 198, 200 12 (9th Cir. 1989). Medical delay supports a constitutional claim only if it was harmful. 13 Shapley v. Nev. Bd. Of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (citation 14 omitted). The uncontroverted evidence does not present a genuine issue of material fact as 15 to whether NP Velardi was deliberately indifferent to the need for treatment of plaintiff’s 16 injured finger. The uncontroverted evidence shows that, after NP Velardi ordered a 17 “routine” x-ray of plaintiff’s right hand on July 30, 2012, the x-ray was performed two 18 days later. Although plaintiff contends that NP Velardi should have scheduled plaintiff for 19 an immediate x-ray, he has adduced no evidence that the two-day delay was harmful. 20 NP Velardi reviewed the x-ray report on August 7, 2012 and immediately 21 determined that plaintiff should be scheduled for a follow up medical appointment “ASAP 22 Next Available.” Despite NP Velardi’s instruction, no follow up occurred until August 14, 23 2012 and plaintiff’s finger went from “mildly displaced fracture” to a “complete fracture” 24 during the delay in treatment. However, even viewing the evidence in the light most 25 favorable to plaintiff, the nonmoving party, plaintiff has failed to show that the ensuing 26 seven-day delay in treatment was attributable to NP Velardi. According to the “CCHCS 27 Attachment A - Detailed Scheduling Roles and Responsibilities” that plaintiff has 28 provided, nurse practitioners do not have any scheduling responsibilities under the 10 16-cv-1924-LAB (RNB) 1 “Scheduling and Access to Care Procedure” policy. (See ECF No. 48 at 47-52.) Moreover, 2 scheduling does not appear under the nurse practitioner duties within the Nurse Practitioner 3 Duty Statement. (See id. at 40.) The Court therefore finds that plaintiff has not shown how 4 the seven-day delay was attributable to NP Velardi when she called for immediate follow 5 up medical services to be rendered. Francis v. Cate, 2011 WL 2119024, at *12 (E.D. Cal. 6 May 26, 2011) (finding plaintiff presented no evidence that defendant was responsible for 7 scheduling follow up appointments). 8 Moreover, even assuming arguendo that NP Velardi was negligent by not scheduling 9 plaintiff for an earlier appointment with Dr. Cook immediately after she reviewed 10 plaintiff’s x-ray report on August 7, 20121 or should have confirmed that plaintiff was 11 given an “Open Access” appointment after she determined that plaintiff needed medical 12 services ASAP on that date,2 her conduct does not rise to the level of deliberate 13 indifference. See Estelle, 429 U.S. at 106 (finding that an inadvertent failure to provide 14 adequate medical care does not rise to an unnecessary and wanton infliction of pain); see 15 also Hutchinson v. U.S., 838 F.2d 390, 394 (9th Cir. 1988) (“[m]ere negligence in 16 diagnosing or treating a medical condition, without more, does not violate a prisoner’s 17 Eighth Amendment rights.”) “Deliberate indifference” only exists when an official acts or 18 fails to act while knowing that a prisoner faces a substantial risk of harm. Farmer v. 19 Brennan, 511 U.S. 825, 842 (1994). Plaintiff has adduced no evidence showing that NP 20 21 22 The evidence shows that, inter alia, one of NP Velardi’s duties was to make appropriate referrals to other health professionals. (See ECF No. 48 at 40.) 2 “Open Access” is a scheduling strategy in which “appointment times or blocks [] are left open . . . to accommodate walk-in patients, patients with urgent health needs, and patients with routine health needs that would benefit from expedited services.” (See ECF No. 48 at 47.) The Court notes that the effective date of the “Scheduling and Access to Care Procedure” policy that plaintiff attached as an exhibit was June 2016. (See id.) In light of defendants’ failure to address the effective date of the policy and viewing the evidence in the light most favorable to plaintiff, the Court presumes this policy was also in effect between July 2012 and November 2012. 23 24 25 26 27 28 1 11 16-cv-1924-LAB (RNB) 1 Velardi knew or should have known that plaintiff’s fracture would increase or develop a 2 deformity during the period of delay. In addition, the form NP Velardi used to schedule 3 plaintiff’s follow up appointment indicates that its three copies are distributed as follows: 4 the original copy is filed in UHR (an inmate’s Unit Health Record), the scheduler receives 5 the canary copy, and the inmate receives the pink copy. (See ECF No. 43-6 at 13.) Thus, 6 NP Velardi would not have had any knowledge of the follow up appointment until it was 7 scheduled. Accordingly, the Court concludes that the one week delay for plaintiff’s follow 8 up appointment does not create a genuine issue of material fact regarding whether NP 9 Velardi was deliberately indifferent to his serious medical needs. See Stocker v. Warden, 10 2009 WL 981323, *8 (E.D. Cal. April 12, 2009) (finding that plaintiff failed to raise a 11 genuine issue that the scheduling delay was due to deliberate indifference when the 12 appointment form was not given to the named defendant doctor). 13 Plaintiff also claims the NP Velardi was deliberately indifferent to his serious 14 medical needs when NP Velardi refused to prescribe him pain medication “of suitable 15 strength . . . with a specific intent of allowing [him] to suffer the agony of the pain as 16 punishment[.]” (ECF No. 33 at 4.) However, the uncontroverted facts show that NP 17 Velardi was simply following department policy to provide medical services based on 18 medical necessity and efficacy in her judgment. (See ECF 48 at 102.) Although she didn’t 19 prescribe any pain medication when she ordered the x-ray on July 30, 2012, plaintiff’s 20 medical records evidence that NP Velardi had prescribed a 30-day supply of a pain 21 reduction drug, Naproxen, to plaintiff on July 24, 2012. When NP Velardi next saw 22 plaintiff on August 15, 2012, she responded to his request for a stronger pain medication 23 by prescribing Tylenol #3 with Codeine and requested that the pharmacy fill the 24 prescription quickly. When she saw plaintiff on September 4, 2012, she had a reason for 25 not refilling his prescription, which she explained to plaintiff. His medical records 26 indicated that Dr. Cook had just seen plaintiff on August 31, 2012 and made an adjustment 27 in his pain medication. However, when NP Velardi then saw plaintiff again on September 28 26, 2012 in response to a healthcare appeal seeking inter alia expedited pain medication, 12 16-cv-1924-LAB (RNB) 1 she did add Tylenol #3 and amitriptyline for pain to plaintiff’s medication list. And, when 2 she saw plaintiff again on October 10, 2010, and he still was complaining about persistent 3 pain, she ordered that his Tylenol #3 prescription be refilled “Stat.” 4 Thus, plaintiff’s allegation that NP Velardi did not prescribe additional pain 5 medication to cause him to suffer in agony is unsupported. The Court finds that plaintiff’s 6 disagreement with the manner in which NP Velardi managed his pain medication is 7 insufficient to raise a genuine issue of material fact. See Sanchez v. Vild, 891 F.2d 240, 8 242 (9th Cir. 1989) (“A difference of opinion does not amount to a deliberate indifference 9 to Sanchez[‘s] serious medical needs.”); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 10 1981) (“A difference of opinion between a prisoner-patient and prison medical authorities 11 regarding treatment does not give rise to a § 1983 claim.”); Gauthier v. Stiles, 402 Fed. 12 App’x 203 (9th Cir. 2010) (dissatisfaction with the denial of prescription strength pain 13 medicine does not constitute deliberate indifference to serious medical needs). 14 15 2. Dr. Cook is entitled to summary judgment. 16 The gravamen of plaintiff’s Eighth Amendment claim against Dr. Cook is that his 17 failure to prescribe plaintiff the pain medication plaintiff desired amounted to deliberate 18 indifference to a serious medical need. (See ECF No. 33.) Specifically, plaintiff alleges 19 that Dr. Cook refused to prescribe him “a suitably strong pain management medication[.]” 20 (Id. at 6.) Defendants contend that plaintiff’s difference of opinion with Dr. Cook’s 21 treatment plan is not actionable. (ECF No. 43-1 at 15.) The Court agrees. 22 The uncontroverted evidence does not present a triable issue of fact. The record 23 shows that, during plaintiff’s August 14, 2012 follow up appointment, Dr. Cook advised 24 him to continue using Naproxen to manage his pain symptoms and that Tylenol would be 25 prescribed. (ECF No. 43-6 at 17.) Dr. Cook noted that plaintiff “became argumentative” 26 and “stated [that he] will file ‘paperwork’” when Dr. Cook chose to only prescribe Tylenol. 27 (Id.) Plaintiff wanted “medical management of pain.” (Id.; see ECF No. 48 at 117.) 28 Notwithstanding Dr. Cook’s orders, NP Velardi prescribed a 14-day supply of Tylenol #3 13 16-cv-1924-LAB (RNB) 1 with Codeine to plaintiff the next day, which would help him manage his pain until his 2 orthopedic evaluation by Dr. Daugherty. (See ECF No. 48 at 119.) According to plaintiff, 3 he never had occasion to see Dr. Cook again for treatment of his right hand, following the 4 initial August 14, 2012 treatment. (See ECF No. 48 at 10.) 5 The Court finds that plaintiff’s mere disagreement with Dr. Cook’s chosen course of 6 treatment, without more, simply is not enough to raise a genuine dispute of material fact. 7 Whereas defendants have adduced expert opinion evidence that plaintiff “received 8 appropriate and due care to his medical needs and concerns from NP Velardi and Dr. Cook” 9 (see ECF No. 43-2 at 11), plaintiff has not adduced any expert opinion evidence to the 10 contrary. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (finding that to 11 establish that a difference of opinion amounted to deliberate indifference, a prisoner must 12 show that the defendant’s chosen course of treatment was medical unacceptable and in 13 conscious disregard of an excessive risk to the prisoner’s health); see also Toguchi, 391 14 F.3d at 1058-60 (neither a difference of opinion concerning the course of treatment nor 15 negligence in treating a medical condition amounts to deliberate indifference). 16 17 3. The Court’s findings above render it unnecessary to reach defendants’ qualified 18 immunity defense. 19 The Court’s finding that plaintiff has failed to raise a genuine issue of material fact 20 as to whether defendants acted with deliberate indifference to his serious medical needs 21 renders it unnecessary to reach defendants’ qualified immunity arguments. See, e.g., 22 Lassiter v. City of Bremerton, 556 F.3d 1049, 1054 n.6 (9th Cir. 2009); Burleson v. Texas 23 Dept. of Criminal Justice, 393 F.3d 577, 590 n.9 (5th Cir. 2004); Frost v. Symington, 197 24 F.3d 348, 358 (9th Cir. 1999); Sims v. Lopez, 2015 WL 1497267, at *20 (E.D. Cal. Mar. 25 31, 2015); Lopez v. Spurgeon, 2015 WL 971704, at *5 n.3 (N.D. Cal. Mar. 3, 2015); Petty 26 v. Shojaei, 2014 WL 7375606, at *9 n.7 (C.D. Cal. Dec. 23, 2014). 27 // 28 // 14 16-cv-1924-LAB (RNB) 1 RECOMMENDATION 2 IT THEREFORE IS RECOMMENDED that the District Court issue an Order: (1) 3 approving and accepting this Report and Recommendation; (2) granting defendants’ 4 summary judgment motion; and (3) directing that Judgment be entered dismissing this 5 action with prejudice. 6 Any party having objections to the Court’s proposed findings and recommendations 7 shall serve and file specific written objections within 14 days after being served with a 8 copy of this Report and Recommendation. See Fed. R. Civ. P. 72(b)(2). The objections 9 should be captioned “Objections to Report and Recommendation.” A party may respond 10 to the other party’s objections within 14 days after being served with a copy of the 11 objections. See id. 12 IT IS SO ORDERED. 13 14 15 16 Dated: August 14, 2018 _______________________________ ROBERT N. BLOCK United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 15 16-cv-1924-LAB (RNB)
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