Gieck v. Levin, et al, No. 3:2005cv01974 - Document 135 (S.D. Cal. 2010)
Court Description: ORDER granting 132 Motion for Summary Judgment on Plaintiff's claims. Signed by Judge Marilyn L. Huff on 01/21/2010. (All non-registered users served via U.S. Mail Service)(ag) (av1).
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Gieck v. Levin, et al Doc. 135 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DENNIS MICHAEL GIECK, CASE NO. 05-CV-01974-H (RBB) Plaintiff, 12 13 vs. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT MARTIN EARLE LEVIN and AN MINH NGUYEN, 14 Defendants. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On October 18, 2005, Plaintiff Dennis Michael Gieck (“Plaintiff”), a state prisoner incarcerated at Calipatria State Prison in Calipatria, California, proceeding pro se and informa pauperis, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against defendants Dr. Martin Earle Levin and Dr. An Minh Nguyen (“Defendants”). Plaintiff claims that Defendants showed deliberate indifference to treatment of Plaintiff’s cervical condition, skin infections, and pain. On November 13, 2006 Defendants filed a motion for summary judgment. (Doc. Nos. 43, 46-51.) On March 21, 2007 the Court granted Defendants’ motion for summary judgment. (Doc. No. 106.) On April 4, 2007 Plaintiff filed a notice of appeal to the United States Court of Appeals for the Ninth Circuit. (Doc. No. 116.) On August 10, 2009 the United States Court of Appeals for the Ninth Circuit reversed and remanded the decision of the Court for failing to give Plaintiff notice of the requirements of Federal Rule of Civil Procedure 56 under Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc). (Doc. No. 128.) On October 26, 2009 Defendants filed a motion for summary judgment. (Doc. No. 132.) On October 27, 2009 the -1- 05cv1974 Dockets.Justia.com 1 Court provided Plaintiff with notice of the motion for summary judgment pursuant to Rand and 2 Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). (Doc. No. 133.) On December 4, 2009 3 Plaintiff filed an opposition to Defendants’ motion for summary judgment stating no new facts 4 or new law. (Doc. No. 134.) 5 The Court exercises its discretion to decide this matter on the papers pursuant to Local 6 Civil Rule 7.1(d)(1). (Doc. Nos. 129, 133.) For the following reasons, the Court GRANTS 7 Defendants’ motion for summary judgment. Background 8 9 Plaintiff entered Calipatria State Prison on February 11, 1998. (Notice Mot. And Mot. 10 Summ. J. Defs.’ Martin E. Levin M.D. and An Minh Nguyen, M.D., Ex. 2, at 7 (Defs.’ 11 Mot.”).) On July 25, 2002, Plaintiff was transported to Pioneers Memorial Hospital (“PMH”) 12 for treatment of his neck pain. (Pl.’s Decl. Opp. Defs.’ Mot. Summ. J. ¶¶ 6, 8 (“Pl.’s Decl.”).) 13 Plaintiff was diagnosed with acute cervical disk herniation with cord compression after an 14 X-ray and MRI of Plaintiff’s neck showed degenerative disk disease at the C5-6 level in 15 Plaintiff’s neck, and a disc protrusion at the C6-7 level. (Pl.’s Decl., Ex. C, at C1-3.) 16 On December 25, 2002, Plaintiff was diagnosed with acute sinusitis, peritonsillar 17 cellulitis, and a lip abscess. (Id., Ex. F, at F9.) He was treated with intravenous Unasyn and 18 oral Flagyl.1 (Id.) On December 26, 2002, his abscess was incised and drained, and on 19 December 27, 2002 Plaintiff was transferred to Alvarado Hospital to be treated by an 20 otolaryngologist. (Id. at F10.) A culture from Plaintiff’s lip area was collected on December 21 26, 2002, and a culture from Plaintiff’s wrist was collected on January 22, 2003. (Id. at F5-F6.) 22 On April 24, 2003, Plaintiff saw Dr. David Smith, an orthopedic surgeon, who stated 23 that Plaintiff had degenerative bone and disc disease in his cervical spine. (Id., Ex. C, at C9.) 24 Dr. Smith reordered Plaintiff’s prescriptions for Benadryl, Indocin, and Neurontin,2 and 25 suggested that he be referred to a neurosurgeon for possible surgery. (Id.) 26 On May 8, 2003, defendant Dr. Levin requested authorization for Plaintiff to 27 1 The Court takes judicial notice that Unasyn and Flagyl are antibiotics. 2 The Court takes judicial notice that Neurontin is sometimes used to treat chronic pain. 28 -2- 05cv1974 1 temporarily leave Calipatria to see an oncologist on May 19, 2003. (Id., Ex. G, at G3.) Plaintiff 2 was seen in an Emergency Room on May 17, 2003 for a swollen right eyelid. (Id., Ex. F, at 3 F13.) Plaintiff was treated with Bactrim,3 along with triple antibiotic ointment. (Id. at F12-13.) 4 On May 19, 2003, Plaintiff saw Dr. John Wilkinson, an oncologist, who diagnosed Plaintiff 5 with “most likely cured Hodgkin’s Disease,” and treated him with biannual vaccinations. (Id., 6 Ex. G, at G2.) He was also ordered to receive an oncology follow-up in one year, and cleared 7 for neurosurgical procedures. (Id.) 8 On June 17, 2003, Dr. Barba, a neurosurgeon at Alvarado Hospital, ordered Plaintiff 9 to receive an electromyogram from a neurologist. (Id., Ex. B, at B5.) He also recommended 10 epidural steroid injections. (Id.) On October 6, 2003, Plaintiff received a prescription for 11 Indocin, a nonsteroidal anti-inflammatory drug, and Vistaril. (Decl. Martin Levin, M.D., Supp. 12 Def.’s Mot. Summ. J., ¶ 13 (“Levin Decl.”).) On October 20, 2003, Dr. Andres Jacobo, a 13 neurologist, saw Plaintiff, and agreed with Dr. Barba’s medical plan for the treatment of 14 Plaintiff’s condition. (Pl.’s Decl., Ex. B, at B1, B6,B8.) On October 23, 2003, defendant Dr. 15 Nguyen wrote an order for Plaintiff to receive epidural steroid injections at PMH. (Id., Ex. E., 16 at E2.) 17 However, Plaintiff had an acute problem. Later on October 23, 2003, Plaintiff was 18 admitted to Calipatria’s outpatient housing unit (“OHU”) for a fractured hand. (Levin Decl. 19 ¶ 15; Defs.’ Mot., Ex. 2, at 1160.) Plaintiff’s treatment included replacing his Indocin with 20 Motrin, which is a similar class of drug. (Levin Decl. ¶ 15.) When Plaintiff requested stronger 21 pain medication, Vicodin4 was prescribed, although Plaintiff’s caretakers were concerned about 22 Plaintiff’s history of drug abuse. (Id. ¶ 16.) After Plaintiff requested to be treated with Indocin 23 and Vistaril for his pain, he was prescribed those medications on October 29, 2003. (Id. ¶¶ 16, 24 17; Defs.’ Mot., Ex. 2, at 684.) 25 After Plaintiff’s fractured hand was treated, defendant Dr. Levin submitted a request, 26 27 3 28 4 The Court takes judicial notice that Bactrim is an antibiotic. The Court takes judicial notice that Vicodin is a combination of acetaminophen and hydrocodone, which is a narcotic. -3- 05cv1974 1 on November 3, 2003, for Plaintiff to be allowed to temporarily leave Calipatria State Prison 2 in order to receive epidural steroid injections at PMH. (Pl.’s Decl., Ex. E, at E1.) On November 3 4, 2003, Dr. Nguyen wrote Plaintiff a prescription for Indocin. (Defs.’ Mot., Ex. 2, at 994.) On 4 November 5, 2003, Plaintiff was seen again by Dr. Jacobo. (Id., Ex. B, at B1-3.) Dr. Jacobo 5 performed a nerve conduction test that showed evidence of chronic C7-8 radiculopathy. (Id. 6 at B3-4.) Dr. Jacobo wrote defendant Dr. Levin, and suggested that Plaintiff be treated with 7 cervical injections and pain medication. (Id. at B1, B3.) Plaintiff was seen as an outpatient at 8 Calipatria later on November 5, 2003. (Id., Ex. F, at F7.) Dr. Nguyen determined that the 9 Indocin he had prescribed Plaintiff the previous day was adequate to treat his pain at that time. 10 (Id.) 11 On November 7, 2003, a medical provider from PMH stated that he was unable to 12 perform cervical epidural steroid injections on Plaintiff, and that Plaintiff should be referred 13 to another facility to receive this treatment. (Id., Ex. E, at E3.) On November 8, 2003, Plaintiff 14 was seen as an outpatient at Calipatria. A note in Plaintiff’s chart indicated he was ambulatory 15 without any problems. (Id., Ex. F, at F7.) 16 On November 20, 2003, Plaintiff was seen as an outpatient at Calipatria. (Id. at F2.) A 17 note was written indicating that Plaintiff was not able to receive a cervical epidural injection 18 at PMH, and that they would try to have the procedure performed at Alvarado Hospital. (Id.) 19 The note also indicated that Plaintiff was interested in restarting Neurontin for pain control, 20 which Plaintiff had refused in September 2003. (Id.) Dr. Nguyen prescribed Neurontin for 21 Plaintiff. (Defs.’ Mot., Ex. 2, at 992.) 22 On November 25, 2003, Plaintiff submitted a California Department of Corrections 23 inmate appeal form, form 602, log number CAL-D-04-00078, stating that he was dissatisfied 24 that Dr. Nguyen did not prescribe Plaintiff antibiotics for an infection. (Id., Ex. D, at D2-D3.) 25 On November 26, 2003, Plaintiff was diagnosed with a “right lower extremity 26 abscess–recurring lesions.” (Id., Ex. F, at F2.) He was treated with two antibiotics, Bactrim and 27 28 -4- 05cv1974 1 dicloxacillin.5 (Id. at F1-2.) 2 On January 9, 2004, Plaintiff sent a letter to the California Medical Board stating that 3 Defendants had failed to prescribe Plaintiff the correct antibiotics and analgesics to treat his 4 symptoms. (Id., Ex. A, at A13-14.) 5 On February 18, 2004, a physician’s progress note indicated that Indocin was ordered 6 and that Plaintiff refused to go to the OHU to receive narcotic medication for his neck pain. 7 (Levin Decl. ¶ 18.) On February 21, 2004, Plaintiff was seen for a nasal infection and Dr. 8 Nguyen treated him with dicloxacillin. (Defs.’ Mot., Ex. 2, at 676.) On February 23, 2004, Dr. 9 Nguyen was seen again for his nasal infection and Dr. Nguyen prescribed Bactrim. (Id. at 676, 10 984.) On March 10, 2004 Plaintiff was seen for a follow up visit regarding his nasal infection. 11 (Id. at 675.) Because the previous antibiotics had not cured the infection, Ciprofloxacin6 was 12 prescribed. (Id. at 675; Levin Decl. ¶ 18.) 13 On March 24, 2004, Plaintiff was seen for neck pain. (Id. 673.) He refused to stay in the 14 OHU in order to receive injectable pain medication. (Id., Levin Decl. ¶¶ 19, 27; Pl.’s Decl. ¶ 15 12.) On March 27, 2004, Plaintiff was seen again for his neck pain, but did not want to be 16 admitted if he was not going to receive stronger pain medication than Toradol or Tylenol # 3.7 17 (Defs.’ Mot., Ex. 2, at 673-74.) Plaintiff also refused admission to the OHU on May 1, 2004 18 and May 4, 2004 for pain control. (Levin Decl. ¶¶ 19, 27; Pl.’s Decl. ¶ 12.) 19 On August 16, 2004, Dr. Nguyen requested a consultation by Dr. Jacobo for epidural 20 injections. (Levin Decl. ¶ 20; Pl.’s Decl., Ex. E, at E4.) A Dr. Sands denied the request on 21 August 26, 2004. (Pl.’s Decl., Ex. E, at E4.) On September 21, 2004, a note was written in 22 Plaintiff’s chart indicating that his pain was well controlled. (Levin Decl. ¶ 21; Defs.’ Mot., 23 Ex. 2, at 648.) On October 2, 2004, defendant Dr. Levin informed Plaintiff that his pain 24 medications required adjustment because Dr. Levin had received notification from Sacramento 25 26 5 The Court takes judicial notice that Bactrim and dicloxacillin are antibiotics. 27 6 The Court takes judicial notice that Ciprofloxacin is an antibiotic. 28 7 The Court takes judicial notice that Toradol is a nonsteroidal anti-inflammatory drug and Tylenol # 3 is a combination of acetaminophen and codeine, which is a narcotic. -5- 05cv1974 1 that Neurontin, which was one of the medications used to treat Plaintiff’s pain, could only be 2 used for FDA approved indications. (Levin Decl. ¶ 21.) 3 On October 19, 2004, the Medical Board of California sent Plaintiff a letter stating that 4 based on his complaint against Dr. Nguyen, Medical Board Case number 10-2004-155123, the 5 Board was referring the case to the California Attorney General’s Office Health Quality Unit. 6 (Pl.’s Decl., Ex. A, at A1.) 7 On November 16, 2004, the California Department of Corrections Inmate Appeals 8 Branch denied Plaintiff’s appeal, log number CAL-04-00078, regarding Dr. Nguyen’s failure 9 to prescribe Plaintiff antibiotics, after finding that Plaintiff was provided tetracycline8 on 10 August 16, 2004, and that Plaintiff’s blood work was negative for infection on September 16, 11 2004. (Id., Ex D, at D5.) 12 On April 12, 2005, Plaintiff received Demerol9 for his pain, and defendant Dr. Nguyen 13 ordered a bone densitometry scan on Plaintiff’s neck. (Levin Decl. ¶ 22.) On June 21, 2005, 14 Plaintiff received morphine10 for his pain. (Levin Decl. ¶ 23.) 15 On July 12, 2005, Dr. Nguyen requested Plaintiff receive a consultation with a pain 16 management specialist, and on October 18, 2005, an orthopedic surgery consultation was 17 requested. (Id. ¶ 22.) On October 19, 2005, Plaintiff received an MRI of his cervical spine, 18 which revealed moderate narrowing of the C5-6 and C6-7 discs with cord encroachment. (Pl.’s 19 Decl., Ex. C, at C5-6; Levin Decl. ¶¶ 22, 24.) On November 9, 2005, the Calipatria 20 Supervising Nurse was unable to locate a provider that performed cervical epidural injections. 21 (Levin Decl. ¶ 22.) On January 26, 2006, Plaintiff received Demerol for his pain. (Id. ¶ 25.) 22 On January 26, 2006, gram stains and cultures were performed on material taken from 23 an abscess on Plaintiff’s left leg. (Defs.’ Mot., Ex. 2, at 1178.) Besides a light growth of 24 bacteria presumed to have resulted from skin contamination, no organisms were isolated from 25 26 8 The Court takes judicial notice that tetracycline is an antibiotic. 9 The Court takes judicial notice that Demerol is a narcotic drug. 27 28 10 The Court takes judicial notice that morphine is a narcotic drug. -6- 05cv1974 1 the cultures, and the gram stain did not reveal organisms or leukocytes.11 2 A note in Plaintiff’s chart on February 16, 2006 indicated that Dr. Smith did not perform 3 cervical epidural injections. (Levin Decl. ¶ 22.) Also on February 16, 2006, defendant Dr. 4 Levin approved a request that Plaintiff receive a cervical epidural injection from Dr. Abdulhadi 5 on March 17, 2006. (Id.) Plaintiff received a cervical epidural steroid injection on or about 6 March 17, 2006. (Levin Decl. ¶ 26, Defs.’ Mot., Ex. 2, at 1353.) On April 4, 2006, a medical 7 practitioner told Plaintiff that past attempts to find a medical provider that performed cervical 8 epidural injections were unsuccessful under the circumstances, but that a provider had been 9 located that was able to perform the procedure. (Defs.’ Mot., Ex. 2, at 591-92.) 10 On March 30, 2006, Dr. Smith indicated that Plaintiff had received a cervical epidural 11 steroid injection approximately two weeks prior, and that Plaintiff should follow up with Dr. 12 Smith in six to eight weeks. (Levin Decl. ¶ 26, Defs.’ Mot., Ex. 2, at 1353.) On April 14, 2006, 13 Plaintiff received another cervical epidural steroid injection at Alvarado Hospital. (Defs.’ Mot., 14 Ex. 2, at 590.) On April 21, 2006, Plaintiff received his third cervical epidural steroid injection. 15 (Id. at 582, 589; Levin Decl. ¶ 29; Pl.’s Req. Submit Documentation Epidural Steroid 16 Injections, at 6.) 17 18 On April 21, 2006 Plaintiff received a culture of his left thumb wound which revealed no organisms. (Defs.’ Mot., Ex. 2, at 1175.) 19 On July 5, 2006, Family Nurse Practitioner Seleaina Ann Thomas requested Plaintiff 20 receive a floor cell and a bottom bunk. (Req. Submit Documentation, Ex. H, at H1 (“Req. 21 Prove”).) 22 On September 7, 2006, Dr. L. Santiago wrote a memorandum indicating that Plaintiff 23 had been prescribed Lyrica and Cynbalta on August 2, 2006, two nonformulary pain 24 medications, as an alternative to Indocin, but that Plaintiff chose to discontinue these 25 medications as he believed that his previous regimen of Neurontin and Baclofen12 was more 26 effective. (Pl.’s Req. Answer Defs.’ Resp. Pl.’s Letter Dated Nov. 1, 2006, Ex. E, at E4.) 27 11 The Court takes judicial notice that a leukocyte is a type of white blood cell. 12 The Court takes judicial notice that Boclofen is a muscle relaxant medication. 28 -7- 05cv1974 1 Plaintiff was advised to continue using Neurontin and Baclofen. (Id.) 2 On September 25, 2006, Plaintiff was seen by his treating physician. (Id. at E1.) On 3 October 17, 2006, Plaintiff was receiving Neurontin, Baclofen, Pramadol, Motrin, and 4 Prednisone13 for his pain. (Id.) 5 On October 31, 2006, Nurse Practitioner Thomas evaluated Plaintiff and requested a 6 psychiatric evaluation. (Pl.’s Req. Answer Defs.’ Resp. Pl.’s Letter Dated November 1, 2006, 7 Ex. C, D (“Pl.’s Req. Answer”).) Nurse Practitioner Thomas was also concerned that Plaintiff 8 might be having an adverse drug reaction to Neurontin. (Id., Ex. C.) Plaintiff was seen by Dr. 9 T. R. Robertson, a psychiatrist, the next day, who recommended that Plaintiff be released from 10 the Outpatient Housing Unit and for Plaintiff to follow up in 5 days. Nurse Practitioner 11 Thomas had Plaintiff remain in the Outpatient Housing Unit to taper/titrate Plaintiff’s 12 Neurontin medication. (Id., Ex. A.) On November 1, 2006, Plaintiff signed a form indicating 13 that he refused to be examined or treated. (Req. Submit Document. Prove Further Violations, 14 Ex.) On December 13, 2006, a medical practitioner discontinued Plaintiff’s prescriptions for 15 Rifampin and Bactrim and his temporary lower tier, lower bunk. (Req. Prove, Ex. A, at A1.) 16 Discussion 17 A. Standards for Motion for Summary Judgment 18 Under rule 56©) of the Federal Rules of Civil Procedure, a court may grant summary 19 judgment in favor of a party upon a claim “if the pleadings, depositions, answers to 20 interrogatories, and admissions on file, together with the affidavits, if any, show that there is 21 no genuine issue as to any material fact and that the moving party is entitled to a judgment as 22 a matter of law.” A party moving for summary judgment bears the initial burden of establishing 23 an absence of a genuine issue of material fact for trial. See Devereaux v. Abbey, 263 F.3d 24 1070, 1076 (9th Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The 25 moving party may carry its initial burden on summary judgment by showing the opposing party 26 lacks sufficient evidence to carry its ultimate burden of persuasion at trial. See Celotex Corp., 27 28 13 The Court takes judicial notice that Prednisone is a corticosteroid medication used to treat inflamation. -8- 05cv1974 1 477 U.S. at 325. 2 Once the moving party meets the requirements of Rule 56, the burden shifts to the party 3 resisting the motion, who must set forth specific facts showing that a genuine issue for trial 4 exists. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 256 (1986). The opposing 5 evidence must be sufficiently probative to permit a reasonable trier of fact to find in favor of 6 the opposing party. See id. at 249-250. Thus, the nonmoving party cannot oppose a properly 7 supported summary judgment motion by “rest[ing] on mere allegations or denials of his 8 pleadings.” Id. at 256. Furthermore, “[t]he mere existence of a scintilla of evidence in support 9 of the non-moving party’s position is not sufficient.” Id. at 252. If the non-moving party fails 10 to make a sufficient showing of an element of its case, the moving party is entitled to judgment 11 as a matter of law. See Celotex, 477 U.S. at 325. “Where the record taken as a whole could not 12 lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for 13 trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 14 citation omitted). 15 When ruling on a summary judgment motion, the Court must examine all the evidence 16 in the light most favorable to the non-moving party. See Adickes v. S.H. Kress & Co., 398 17 U.S. 144, 158-59 (1970) (citation omitted); Fontana v. Haskin, 262 F.3d 871, 876 (9th Cir. 18 2001). The Court does not engage in credibility determinations, weighing of evidence, or 19 drawing of legitimate inferences from the facts; these functions are for the trier of fact. See 20 Anderson, 477 U.S. at 255. The Court applies these standards in ruling on this motion for 21 summary judgment. 22 B. Plaintiff’s Claims 23 Plaintiff alleges three causes of action pursuant to 42 U.S.C. § 1983. Section 1983 24 establishes a cause of action against any “person who, under color of any statute, ordinance, 25 regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, 26 or causes to be subjected, any citizen of the United States or other person within the 27 jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the 28 Constitution and laws.” -9- 05cv1974 1 Plaintiff’s first claim alleges that Defendants violated Plaintiff’s Eighth Amendment 2 right to be free from cruel and unusual punishment concerning his neck pain. Plaintiff’s second 3 claim alleges that Defendants violated Plaintiff’s Eighth Amendment rights by failing to 4 adequately treat his recurrent skin infections. Plaintiff’s third claim alleges that defendant Dr. 5 Nguyen violated Plaintiff’s Eighth Amendment rights by failing to prescribe specific pain 6 medications and by asking Plaintiff to place false information on a questionnaire from the 7 California Attorney General’s Office in exchange for better medical treatment. Plaintiff also 8 complains in supplemental briefs about Family Nurse Practitioner Seleaina Thomas and 9 Medical Technician Vrooman. 10 C. Qualified Immunity 11 Government officials performing discretionary functions enjoy qualified immunity that 12 shields them from liability for civil damages insofar as their conduct does not violate clearly 13 established statutory or constitutional rights of which a reasonable person would have known. 14 See Wilson v. Layne, 526 U.S. 603, 609 (1999). In order to overcome the defense of qualified 15 immunity in a action for civil damages from a government official performing discretionary 16 functions, a plaintiff must show that the official violated clearly established statutory or 17 constitutional rights of which a reasonable person would have known. See Conn v. Gabbert, 18 526 U.S. 286, 290 (1999). The objective reasonableness of the act at issue is assessed in light 19 of the legal rules that were clearly established at the time it was taken. See Davis v. Scherer, 20 468 U.S. 183,197 (1984). 21 “Qualified immunity is particularly amenable to summary judgment adjudication 22 because ‘the entitlement is an immunity from suit rather than a mere defense to liability.’” 23 Martin v. City of Oceanside, 360 F.3d 1078, 1081 (9th Cir. 2004) (citing Hunter v. Bryant, 502 24 U.S. 224, 227 (1991)). A court determining a motion for summary judgment based on a claim 25 of qualified immunity must determine whether, viewing the evidence in the light most 26 favorable to the non-moving party, the moving party has shown that there are no genuine 27 issues of material fact in order to grant summary judgment. See id. Once a § 1983 defendant 28 produces enough evidence to require the plaintiff to go beyond his or her pleadings, the - 10 - 05cv1974 1 plaintiff must counter by producing evidence of his or her own; a district court is not allowed 2 to simply assume the truth of challenged factual allegations in the complaint. See Butler v. San 3 Diego 4 Dist. Attorney’s Office, 370 F.3d 956, 963 (9th Cir. 2004). 5 The Supreme Court annunciated a three-part test in Saucier v. Katz to determine 6 whether a court will grant summary judgment based on the affirmative defense of qualified 7 immunity. See Skoog v. County of Clackamas, 469 F.3d 1221, 1229 (9th Cir. 2006) (citing 8 Saucier v. Katz, 533 U.S. 194, 201-02 (2001)). 9 First, the court must ask whether “[t]aken in the light most favorable to the party 10 asserting the injury, [ ] the facts alleged show the [official]’s conduct violated 11 a constitutional right?” If the answer is no, the [official] is entitled to qualified 12 immunity. If the answer is yes, the court must proceed to the next question: 13 whether the right was clearly established at the time the [official] acted. That is, 14 “whether it would be clear to a reasonable [official] that his conduct was 15 unlawful in the situation he confronted.” If the answer is no, the [official] is 16 entitled to qualified immunity. If the answer is yes, the court must answer the 17 final question: whether the [official] could have believed, “reasonably but 18 mistakenly . . . that his or her conduct did not violate a clearly established 19 constitutional right.” If the answer is yes, the [official] is entitled to qualified 20 immunity. If the answer is no, he is not. 21 Id. at 1229 (internal citations omitted). 22 1. Whether Defendants’ Conduct Violated A Constitutional Right 23 State governments have the obligation to provide medical care for those whom they are 24 punishing by incarceration. See Estelle v. Gamble, 429 U.S. 97, 103 (1976). The infliction of 25 unnecessary suffering on a prisoner through the failure to treat his medical needs is 26 inconsistent with contemporary standards of decency and violates the Eighth Amendment. See 27 id. A plaintiff bringing a § 1983 claim alleging a violation of the Eighth Amendment based on 28 the failure of a prison official to treat his medical needs must establish that the prison official - 11 - 05cv1974 1 or officials acted with “deliberate indifference” to a “serious medical need.” See id. at 104; 2 Wakefield v. Thompson, 177 F.3d 1160, 1164 (9th Cir. 1999). A defendant may not be held 3 vicariously liable in a § 1983 action. See Mabe v. San Bernardino County, Dept. of Public 4 Social Services, 237 F.3d 1101, 1109 (9th Cir. 2001); Palmer v. Sanderson, 9 F.3d 1433, 1438 5 (9th Cir.1993). 6 7 The Ninth Circuit has explained that the test for deliberate indifference consists of two parts. See Jett v. Penner, 439 F.3d 1091, 1096 (2006). 8 First, the plaintiff must show a “serious medical need” by demonstrating that 9 “failure to treat a prisoner’s condition could result in further significant injury 10 or the ‘unnecessary and wanton infliction of pain.’” Second, the plaintiff must 11 show the defendant’s response to the need was deliberately indifferent. This 12 second prong--defendant’s response to the need was deliberately indifferent--is 13 satisfied by showing (a) a purposeful act or failure to respond to a prisoner’s 14 pain or possible medical need and (b) harm caused by the indifference. 15 Indifference “may appear when prison officials deny, delay or intentionally 16 interfere with medical treatment, or it may be shown by the way in which prison 17 physicians provide medical care.” 18 Id. (internal citations omitted). 19 A prison official acts with deliberate indifference only if the official knows of and 20 disregards an excessive risk to an inmate’s health and safety. See Toguchi v. Chung, 391 F.3d 21 1051, 1057 (9th Cir. 2004). Even if a prison official should have been aware of the risk, but 22 was not, then the official has not violated the Eighth Amendment, no matter how severe the 23 risk. See id. Furthermore, while poor medical treatment will at a certain point rise to the level 24 of constitutional violation, mere malpractice, or even gross negligence, does not satisfy the 25 requirement of deliberate indifference. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th 26 Cir. 1990); see also Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (“Mere medical 27 malpractice does not constitute cruel and unusual punishment.”). 28 Medical care less prompt or efficient than a free citizen might receive also does not - 12 - 05cv1974 1 constitute deliberate indifference. See Wood, 900 F.2d. at 1335. In order for delay in treatment 2 to constitute an Eighth Amendment violation, the delay must cause substantial harm. See id. 3 (holding that a delay in treatment did not substantially harm the plaintiff since the only remedy 4 immediately available was a prescription for pain killers); see also Shapley v. Nevada Bd. of 5 State Prison Com’rs, 766 F.2d 404, 407 (9th Cir.1985) (“[M]ere delay of surgery, without 6 more, is insufficient to state a claim of deliberate medical indifference . . . .”). 7 Also, a difference of opinion between medical personal does not amount to deliberate 8 indifference. See Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Similarly, a difference 9 of opinion between a prisoner-patient and prison medical authorities regarding treatment does 10 not give rise to a § 1983 claim. See Franklin v. State of Or., State Welfare Division, 662 F.2d 11 1337, 1344 (9th Cir. 1981). 12 a. Treatment of Plaintiff’s Cervical Condition 13 The Court concludes that the Defendants did not violate the Plaintiff’s Eighth 14 Amendment rights based on the Defendants’ treatment of his cervical condition because the 15 evidence fails to show that the Defendants’ treatment using pain killers does not demonstrate 16 deliberate indifference to Plaintiff’s cervical medical condition. 17 Like the Plaintiff in Estelle, who saw multiple doctors and medical personnel on various 18 occasions for his condition, Plaintiff received numerous examinations, consultations, tests, pain 19 medications, and treatment for his cervical degenerative disk disease. See Estelle, 429 U.S. at 20 107. Plaintiff was treated at Pioneer’s Memorial Hospital in Imperial County and in Alvarado 21 Hospital in San Diego. (Pl.’s Decl. ¶¶ 6, 8, Ex. F, at F10.). The doctors ordered medical tests 22 including an MRI, X-rays, nerve conduction tests, and a bone densitometry scan. (Id., Ex. B, 23 at B3-4, Ex. C, at C1-3; Levin Decl. ¶ 22.) He saw Dr. Nguyen, Dr. David Smith, an 24 orthopedic surgeon, Dr. Barba, a neurosurgeon, Dr. Jacobo, a neurologist, Dr. Levin, Dr. 25 Abdulhadi, and other medical providers. (Pl.’s Decl., Ex. B, at B1-3, 5, Ex. C, at C1-3, 9; 26 Levin Decl. ¶ 22.) During his treatment, the doctors ordered pain medications, including 27 Indocin, Motrin, Vicodin, Neurontin, Morphine and Demerol. (Levin Decl. ¶ 15-16, 22; Pl.’s 28 Decl., Ex. C, at C9.) Plaintiff declined to receive injectable pain medication if it was not - 13 - 05cv1974 1 stronger than Toradol, a nonsteroidal anti-inflammatory drug, or Tylenol # 3, a combination 2 of acetaminophen and codeine. (Defs.’ Mot., Ex. 2, at 673-74.) The doctors were properly 3 concerned about treating Plaintiff with narcotics, given his history of drug abuse, but used 4 these medications when they believed appropriate. (Levin Decl. ¶ 16.) 5 Additionally, Defendants referred Plaintiff for cervical steroid injections. Plaintiff’s 6 evidence merely demonstrates that a medical provider at PMH told Defendants that he was 7 unable to perform cervical epidurals, and Plaintiff would have to be referred elsewhere to 8 receive the procedure. (Pl.’s Decl. ¶ 14, Ex. E, at E3.) Thereafter, Plaintiff received three 9 cervical epidural steroid injections. (Levin Decl. ¶¶ 26,29; Defs.’ Mot., Ex. 2, at 582, 589-90, 10 1353; Pl.’s Req. Submit Documentation Epidural Steroid Injections, at 6.) 11 Moreover, Defendants are also entitled to summary judgment on Plaintiff’s § 1983 12 claim concerning his cervical epidural steroid injections because Plaintiff has failed to provide 13 any evidence that any alleged delay caused him substantial harm. See Wood, 900 F.2d. at 14 1335. 15 Like the plaintiff in Wood, who was not substantially harmed by a delay in treatment because 16 the only remedy available was a prescription for pain killers, Plaintiff’s only remedy for his 17 cervical condition was prescription pain killers. See id. 18 The evidence demonstrates that Defendants did not act with deliberate indifference to 19 Plaintiff’s cervical condition because Defendants treated Plaintiff with pain medications and 20 referred Plaintiff for additional treatment. Additionally, Plaintiff failed to demonstrate that the 21 delay in epidural injections caused him substantial harm. Therefore, Defendants are entitled 22 to judgment as a matter of law regarding Plaintiff’s claims about his treatment of his cervical 23 condition. 24 The Court also concludes that the evidence demonstrates that no Eighth Amendment 25 violation occurred based on Defendants’ alleged failure to upgrade Plaintiff’s pain pills 26 because Defendants’ decision only amounted to a difference of opinion, which does not 27 constitute deliberate indifference. See Sanchez, 891 F.2d at 242. 28 On November 5, 2003, Dr. Nguyen prescribed Indocin. Additionally, Dr. Nguyen - 14 - 05cv1974 1 decided that the pain medication Plaintiff was receiving at that point was adequate. (Pl.’s Decl., 2 Ex. F, at F7.) From November 20, 2003 to April 17, 2004, Plaintiff received two renewals for 3 his Indocin and Neurontin prescriptions and refused admittance to the OHU five times. (Levin 4 Decl. ¶ 17-19, 27; Defs.’ Mot., Ex. 2 at 670, 677, 679; Pl.’s Decl. ¶ 12.) 5 On April 18, 2004, Plaintiff was admitted to the OHU, was treated with a Toradol 6 injection, and left against medical advice on April 19, 2004, stating he was feeling fine. (Id. 7 at 665-68.) A note during that admission stated that amongst Plaintiff’s prescriptions was 8 phenobarbital,14 which he had previously requested and had been using at night because he said 9 it allowed him to sleep well. (Id. at 666, 671.) Plaintiff received a renewal of his phenobarbital 10 prescription on May 20, 2004. (Id. at 658.) On May 4, 2004, Plaintiff refused admission to the 11 OHU for pain control. (Levin Decl. ¶ 27; Pl.’s Decl. ¶ 12.) 12 On October 2, 2004, defendant Dr. Levin informed Plaintiff that his pain medications 13 required adjustment because Dr. Levin had received notification from Sacramento that 14 Neurontin, which was one of the medications used to treat Plaintiff’s pain, could only be used 15 for FDA approved indications. (Levin Decl. ¶ 21.) 16 On April 12, 2005, and again on May 4, 2005, Plaintiff received Demerol for his pain 17 in the Calipatria Emergency Room. (Levin Decl. ¶ 22; Defs.’ Mem., Ex. 2, at 627, 629.) 18 Defendant Dr. Nguyen was the physician on at least the second visit. (Id. at 627.) On June 21, 19 2005, Plaintiff received Morphine from Dr. Nguyen in the Calipatria Emergency Room for his 20 pain. (Levin Decl. ¶ 23; Defs.’ Mem., Ex. 2, at 626.) On January 26, 2006, Plaintiff received 21 Demerol for his pain. (Levin Decl. ¶ 25.) 22 This evidence demonstrates that Defendants did not violate Plaintiff’s Eighth 23 Amendment right by failing to follow Dr. Jacobo’s recommendation to treat Plaintiff’s pain 24 with upgraded pain pills. Although Dr. Nguyen decided that Plaintiff did not require additional 25 pain medication on November 5, 2003, at most that decision demonstrates a difference of 26 opinion between Dr. Jacobo and Dr. Nguyen, which does not amount to deliberate indifference. 27 See Sanchez, 891 F.2d at 242. Furthermore, the evidence demonstrates that Plaintiff was 28 14 The Court takes judicial notice that phenobarbital is a barbiturate medication. - 15 - 05cv1974 1 treated with additional pain control prescriptions and narcotics to control his pain, while at 2 other times he refused to be admitted to the OHU to receive injectable pain medications. (Pl.’s 3 Decl ¶ 12.) The evidence demonstrates that Defendants did not act with deliberate indifference 4 regarding Plaintiff’s medical treatment. Therefore, Defendants are entitled to summary 5 judgment on the basis of qualified immunity regarding that portion of Plaintiff’s claim. 6 Accordingly, the Court grants Defendants’ motion for summary judgment on Plaintiff’s first 7 claim alleging Defendants were deliberately indifferent to Plaintiff’s neck pain. b. 8 Treatment of Plaintiff’s Recurrent Skin Infections 9 The Court concludes that the Defendants did not violate the Plaintiff’s Eighth 10 Amendment rights based on the Defendants’ treatment of his skin condition because the 11 Defendants’ antibiotic treatments fail to demonstrate deliberate indifference to Plaintiff’s skin 12 infections. 13 On December 25, 2002, Plaintiff was diagnosed with acute sinusitis, peritonsillar 14 cellulitis, and a lip abscess. (Pl.’s Decl., Ex. F, at F9.) He was treated with intravenous Unasyn 15 and oral Flagyl. (Id.) On December 26, 2002, his abscess was incised and drained, and on 16 December 27, 2002 Plaintiff was transferred to Alvarado Hospital to be treated by an 17 otolaryngologist. (Id., Ex. F, at F10.) A culture from the lip area collected December 26, 2002, 18 revealed methicillin-resistant staphylococcus aureus. (Id. at F5.) A culture taken from 19 Plaintiff’s wrist on January 22, 2003 revealed the same organism. (Id. at F6.) Plaintiff was seen 20 in an Emergency Room on May 17, 2003 for a swollen right eyelid. (Id., Ex. F, at F13.) 21 Plaintiff was treated with Bactrim and a triple antibiotic ointment. (Id. at F12-13.) 22 On November 25, 2003, Plaintiff submitted a California Department of Corrections 23 inmate appeal form, form 602, log number CAL-D-04-00078, stating that he was dissatisfied 24 that Dr. Nguyen did not prescribe Plaintiff any antibiotics for his staphylococcal infection on 25 November 20, 2003. (Id., Ex. D, at D2-D3.) On November 26, 2003, Plaintiff was diagnosed 26 with a “right lower extremity abscess–recurring lesions.” and was treated with Bactrim and 27 dicloxacillin. (Id., Ex. F., at F1- 2.) 28 On February 21, 2004, Plaintiff was seen for a nasal infection and was treated by Dr. - 16 - 05cv1974 1 Nguyen with dicloxacillin. (Defs.’ Mot., Ex. 2, at 676.) Two days later he was prescribed 2 Bactrim. (Id. at 676, 984.) On March 10, 2004, Plaintiff was seen for a follow up visit 3 regarding his nasal infection. (Id. at 675.) Plaintiff received a prescription for Ciprofloxacin 4 because the previously prescribed antibiotics had not cured Plaintiff’s infection. (Id.) 5 On November 16, 2004, the California Department of Corrections Inmate Appeals 6 Branch denied Plaintiff’s appeal, log number CAL-04-00078, regarding Dr. Nguyen’s failure 7 to prescribe Plaintiff antibiotics after finding that Plaintiff was provided tetracycline on August 8 16, 2004, and that Plaintiff’s blood work was negative for infection on September 16, 2004. 9 (Pl.’s Decl., Ex D, at D5.) 10 On January 26, 2006, gram stains and cultures were performed on material taken from 11 an abscess on Plaintiff’s left leg. (Defs.’ Mot., Ex. 2, at 1178.) Besides a light growth of 12 bacteria presumed to have resulted from skin contamination, no organisms were isolated from 13 the cultures, and the gram stain did not reveal organisms or leukocytes. (Id.) On April 21, 2006 14 Plaintiff received a culture of his left thumb wound which revealed no organisms. (Defs.’ Mot., 15 Ex. 2, at 1175.) 16 The Court concludes that Defendants were not deliberately indifferent to Plaintiffs’ 17 recurrent skin infections because the evidence demonstrates that Plaintiff was treated with a 18 variety of antibiotics. At least four antibiotics other than cephalexin were used to treat his 19 infections, and when one antibiotic appeared not to be working, he received other antibiotics. 20 Additionally, cultures taken after January 2003 failed to show a recurrence of 21 methicillin-resistant Staphylococcus Aureus as a cause for his infections. Therefore, Plaintiff’s 22 evidence does not satisfy the requirements for deliberate indifference. See Wood, 900 F.2d at 23 1334; Hallett, 296 F.3d at 744. 24 Similarly, Plaintiff’s desire for treatment other than that which he received from 25 Defendants does not satisfy the requirements for deliberate indifference because questions of 26 additional diagnostic techniques or other forms of treatment are matters of medical judgment, 27 and do not form the basis of a § 1983 claim. See Franklin, 662 F.2d at 1344; Estelle, 429 U.S. 28 at 107. Accordingly, Defendants are entitled to summary judgment on Plaintiff’s second claim - 17 - 05cv1974 1 based on qualified immunity. 2 /// 3 c. Failure to Prescribe Prednisone and Baclofen, Medical Questionnaire, and Other Complaints 4 5 The Court concludes that defendant Dr. Nguyen did not violate Plaintiff’s Eighth 6 Amendment rights by failing to prescribe Plaintiff prednisone and baclofen for his pain 7 because the Court has previously concluded that the evidence demonstrates that Defendants 8 were not deliberately indifferent to Plaintiff regarding the treatment of his pain. See Estelle, 9 429 U.S. at 107; Wood, 900 F.2d at 1334; Hallett, 296 F.3d at 744; Franklin, 662 F.2d at 1344. 10 Additionally, the Court notes that Plaintiff provided insufficient evidence to support his 11 claim for deliberate indifference regarding defendant Dr. Nguyen’s alleged request that he fill 12 out a questionnaire from the California Attorney General’s Office for his medical treatment. 13 The Court also concludes that Plaintiff has failed to produce sufficient evidence 14 regarding his allegations concerning Family Nurse Practitioner Seleaina Ann Thomas and 15 MTA Vrooman on October 31, 2006, November 16, 2006, and December 13, 2006, to 16 demonstrate they were deliberate indifferent to Plaintiff’s medical care. The Court notes that 17 on November 1, 2006, Plaintiff signed a form indicating that he refused to be examined or 18 treated. Under the totality of the evidence, Plaintiff has failed to show that they were 19 deliberately indifferent to his medical care. Moreover, even if Plaintiff had produced 20 supportive evidence, these allegations do not form the basis of a deliberate indifference claim 21 under the Eighth Amendment. Accordingly, the Court grants Defendants’ motion for summary 22 judgment as to Plaintiff’s third claim based on qualified immunity. 23 2. Whether Plaintiff’s Eighth Amendment Rights Were Clearly Established 24 and Whether Defendants Could Have Reasonably but Mistakenly Believed 25 Their Conduct Did Not Violate a Clearly Established Constitutional Right 26 Since the Court has concluded that Defendants are entitled to summary judgment on 27 each of Plaintiff’s claims based on the evidence demonstrating an Eighth Amendment violation 28 did not occur, the Court does not need to reach the second and third Saucier questions. See - 18 - 05cv1974 1 Skoog, 469 F.3d at 1229. If the Court had found that Plaintiff’s Eighth Amendment rights were 2 violated, however, a similar analysis would have led the Court to conclude that Defendants 3 may have reasonably but mistakenly believed that their conduct did not violate Plaintiff’s 4 clearly established Eighth Amendment rights, entitling Defendants to qualified immunity. 5 E. Defendants’ Objections to Plaintiff’s Evidence 6 The Court notes that Defendants filed a motion objecting to evidence offered by 7 Plaintiff. To the extent that the evidence offered by Plaintiff is proper under the Federal Rules 8 of Evidence, the Court considered the evidence. To the extent the evidence is not proper, the 9 Court did not consider it. 10 Conclusion 11 For the above reasons, the Court GRANTS Defendants’ motion for summary 12 judgment on Plaintiff’s claims. Accordingly, the Clerk of the Court shall enter judgment for 13 the Defendants. 14 15 IT IS SO ORDERED. 16 Dated: January 21, 2010 17 ________________________________ MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT 18 19 20 21 22 23 COPIES TO: All parties of record. 24 25 26 27 28 - 19 - 05cv1974
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