finding no merit in claims 21 stemming from alleged delays in administering pain medication, 22 treating broken nose and providing replacement crutch, because 23 claims did not amount to more than negligence
How later courts described this case
- finding no merit in claims 21 stemming from alleged delays in administering pain medication, 22 treating broken nose and providing replacement crutch, because 23 claims did not amount to more than negligence
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
NORTHERN DISTRICT OF CALIFORNIA
8
9
GEORGE MARTIN,
10 Case No. 17-01690 BLF (PR)
11
Plaintiff, ORDER GRANTING
12 DEFENDANTS’ MOTION
13 v. FOR SUMMARY
JUDGMENT; GRANTING
14 MOTION TO RESUBMIT
15 W. MUNIZ, et al., EXHIBITS
16
Defendants. (Docket Nos. 149, 167)
17
18
19
Plaintiff, a California inmate, filed the instant pro se civil
20
rights action pursuant to 42 U.S.C. § 1983 against prison officials
21
at the Salinas Valley State Prison (“SVSP”). Plaintiff’s second
22
amended complaint (“SAC”) is the operative complaint in this
23
matter. Dkt. No. 129.1 After screening the SAC, the Court
24
ordered the matter to proceed on the Eighth Amendment claim
25
26
1 All page references herein are to the Docket (ECF) pages shown
27
in the header to each document and brief cited, unless otherwise
with respect to Plaintiff’s pain management, including the denial
1
of corrective surgery to address the chronic pain, against
2
Defendants Dr. Kim R. Kumar, Dr. Darrin M. Bright, Tuan Anh
3
Tran (Pharmacist), Dr. Edward Miles Birdsong, and Dr. Jennifer
4
Villa at SVSP. Dkt. No. 137 at 7.2
5
Defendants filed a motion for summary judgment pursuant
6
to Rule 56 on the grounds that there is no genuine issue as to any
7
material fact, that they are entitled to judgment as a matter of law,
8
and they are also entitled to qualified immunity. Dkt. No. 149.
9
In support, Defendants filed a declaration by Defendant Dr.
10
Bright and exhibits. Dkt. Nos. 149-1, 149-2. Plaintiff filed
11
opposition along with his declaration and exhibits in support.3
12
13
2 In the same order, the Court struck portions of the SAC
14
containing allegations against Defendants Dr. Eric Sullivan and
15 Warden W. Muniz as improperly joined to this action and
terminated them from this action. Dkt. No. 137 at 6.
16
17 3 Plaintiff submits over 400 pages of documents separated into
Exhibits A through F. Dkt. Nos. 158-1 through 158-7. Exhibit A
18
is labeled as “Re: Dr. Kim R. Kumar participation in a series of
19 negligent events that culminated in deliberate indifference in my
medical needs.” Dkt. No. 158-1 at 1 (consisting of 70 pages).
20
Exhibit B is labeled as “Re: Dr. Bright, M. Darrin, participating
21 in a series of negligent events that cause me harm; deliberate
indifference to medical needs.” Dkt. No. 158-2 at 1 (consisting
22
of 55 pages). Exhibit C is labeled as “Re: Dr. Edward Miles
23 Birdsong, malicious participation in series of negligent events
that caused me harm; deliberate indifference to my medical
24
needs.” Dkt. No. 158-3 at 1 (consisting of 28 pages). Exhibit D
25 is labeled as “Re: (PIC) T. A. Tran, Defend. Participation in a
series of events that caused Plaintiff known harm; deliberate
26
indifference to my serious RX pharmacological therapy
Dkt. Nos. 158, 158-1 through 158-7. Defendants filed a reply.
1
Dkt. No. 159.
2
Defendants later filed a motion to resubmit the exhibits in
3
support of their summary judgment motion attached to an
4
amended declaration by Defendant Dr. Bright, authenticating the
5
resubmitted medical records that are otherwise identical to those
6
originally submitted. Dkt. No. 167 at 2. Good cause appearing,
7
the motion is GRANTED. The amended declaration of
8
Defendant Bright and the authenticated exhibits newly submitted
9
under Docket No. 167-1 shall supersede those previously filed
10
with Defendants’ summary judgment motion under Docket Nos.
11
149-1 and 149-2.
12
For the reasons stated below, Defendants’ motion for
13
summary judgment is GRANTED.
14
15
DISCUSSION
16
I. Statement of Facts4
17
A. Plaintiff’s Surgery in 2001 and Transfer to SVSP
18
19
20
(consisting of 47 pages). Exhibit E is labeled as “SVSP appeals
21 exhausted in support of motion for opposition to Defend.
summary of judgment [sic].” Dkt. No. 158-5 at 1 (consisting of
22
78 pages); Dkt. No. 158-6 (consisting of 91 pages). The label for
23 Exhibit F is not legible, Dkt. No. 158-7 at 1, but it contains a
copy of Defendants’ response to Plaintiff’s request for
24
admissions, a copy of a guide from the Medical Board of
25 California, excerpts from California’s regulations and the state
prison health care polices, and medical articles. Id. at 2-77.
26
Plaintiff transferred to SVSP on February 14, 2007. Bright
1
Decl. ¶ 95; Dkt. No. 167-1 at 10-17. At that time, Plaintiff’s
2
transfer papers noted that Plaintiff had a post-cervical
3
laminectomy and fusion of his cervical spine from C4-C7 in
4
March 2001. Bright Decl. ¶ 5; Dkt. No. 167-1 at 10. Plaintiff
5
had been issued a wheelchair due to a supposed spinal cord
6
injury. Id.
7
According to Plaintiff’s declaration and the papers he
8
submitted in support of his opposition, he underwent an
9
unnecessary surgery at Mercy Hospital in Bakersfield by
10
neurologist Dr. M. Rahimifar, not a party to this action, involving
11
a metal disc implant in his spine in May 2006, the year before he
12
was transferred to SVSP. Martin Decl. ¶¶ 5-8; Dkt. No. 157 at 3-
13
5; Dkt. No. 158-1 at 12-13. The following month he suffered a
14
fall, injuring his neck, and was again seen by Dr. Rahimifar on
15
June 22, 2006. Dkt. No. 158-1 at 14-15. In August 2006, Dr.
16
Rahimafar recommended a “flex/extension C-Spine surgery,”
17
which Plaintiff refused. Dkt. No. 158-1 at 18-22. Plaintiff
18
claims that ever since the May 2006 surgery, he has been unable
19
to use his upper or lower limbs for even a short period of time
20
without suffering paralysis/numbness and agonizing intractable
21
pain. Martin Decl. ¶ 6; Dkt. No. 15 at 5-6. According to the
22
transfer papers, it was also noted that Plaintiff had again refused a
23
24
25 5 Citations to Defendant Bright’s amended declaration refer to
Docket No. 167-1 at 1-8. All other citations to Docket No. 167-1
26
are to the exhibits offered in support of Defendants’ motion for
surgery in December 2006 for spinal cord decompression. Dkt.
1
No. 167-1 at 11.
2
At the time of his transfer to SVSP, Plaintiff was taking
3
three pain medications but not taking any blood pressure
4
medication. Bright Decl. ¶ 10; Dkt. No. 167-1 at 11-12. In
5
March 2007, medical staff refilled Plaintiff’s prescription for
6
tramadol, a pain reliever. Id. In July 2007, Plaintiff was given
7
atenolol, a blood pressure medication. Bright Decl. ¶ 11; Dkt.
8
No. 167-1 at 17.
9
On July 12, 2007, Plaintiff got into an altercation with
10
another inmate; a Rules Violation Report was issued
11
documenting the incident. Dkt. No. 158-2 at 10. The reporting
12
officer stated that after an inmate began swinging at Plaintiff’s
13
face with clinched fists, Plaintiff stood up from his wheelchair
14
and started swinging back with his own clinched fists. Id. On
15
July 13, 2007, progress notes from a medical visited also stated
16
that Plaintiff had gotten out of his wheelchair during an assault
17
with another inmate on July 12, 2007. Bright Decl. ¶ 5; Dkt. No.
18
167-1 at 15.6 Staff noted that Plaintiff was very flexible and ran
19
about 10 feet during that fight. Id. Another medical staff
20
documented witnessing Plaintiff run about 10 feet toward his
21
22
23 6 In his declaration, Defendant Bright states that this incident
occurred on January 3, 2017. Bright Decl. ¶ 5. However, a
24
review of the medical records indicate that this incident took
25 place on July 12, 2007. Dkt. No. 167-1 at 15. It also appears that
the separate report of staff witnessing Plaintiff run about 10 feet
26
took place on the same date, perhaps even based on the same
wheelchair and independently sitting down in it. Id.; Dkt. No.
1
167-1 at 16.
2
In August 2007, his primary care physician at the time, who
3
is not a party to this action, indicated that Plaintiff had borderline
4
high blood pressure but did not prescribe any additional
5
medications for it. Bright Decl. ¶ 11; Dkt. No. 167-1 at 14.
6
According to the papers submitted by Plaintiff, he filed an
7
inmate grievance (Log No. SVSP-A-07-03523) claiming to have
8
an adverse reaction when taking medication under the “crush and
9
float” policy. Dkt. No. 158-1 at 25. The second level appeal
10
reviewed Plaintiff’s health record and found that he had been
11
taking prescribed medications tramadol three times a day in crush
12
and float form throughout August and September 2007, and only
13
reported experiencing a sore throat on occasion. Id. The
14
director’s level appeal also found that Plaintiff was seen various
15
times throughout the period by the PCP and nurses, and none of
16
the documentation of those visits demonstrated there was any
17
clinical correlation to his claim that his medication was the cause
18
of his sore throat. Id. at 27.
19
B. Medical Care Since 2013
20
Between February 2013 and August 2013, Plaintiff either
21
refused medications or failed to appear at the pill line to receive
22
his medications on more than 100 occasions, which were
23
prescribed by various physicians who are not a party to this
24
action. Bright Decl. ¶ 12; Dkt. No. 167-1 at 15-41. In August
25
2013, Plaintiff also refused a vaccination, and refused to be tested
26
21, 22.
1
Plaintiff filed a health care appeal form in July 2013,
2
complaining about crushed medication. Dkt. No. 158-2 at 28.
3
On September 4, 2013, Defendant Bright prepared the response
4
for the first level appeal, stating that it was denied because
5
Plaintiff was being provided crushed and floated form medication
6
pursuant to policy. Id.
7
Plaintiff was also prescribed Tylenol #3 (with codeine) for
8
the first time on December 13, 2013. Bright Decl. ¶ 13. The
9
pharmacist, Defendant Tran, provided the medication in a
10
crushed form. Dkt. No. 158-4 at 17. On January 21, 2014, staff
11
began providing Plaintiff with Tylenol #3 in liquid form, then
12
stopped on February 1, 2014. Id.; Dkt. No. 167-1 at 42-44.
13
The medical records also include numerous occasions of
14
Plaintiff’s non-compliance with SVSP medical staff throughout
15
2014. Bright Decl. ¶ 15. On January 26, 2014, and March 25,
16
2014, Plaintiff refused to take his heart medication. Id.; Dkt. No.
17
167-1 at 46. In April 2014, he refused to take Elevil, an
18
antidepressant, and Carbamazepine, which is used to treat pain.
19
Id.; Dkt. No. 167-1 at 48-49. In May 2014, Plaintiff refused to
20
take his blood pressure medication, clonidine, even after being
21
informed that such a refusal would increase the risk of a stroke
22
and could lead to paralysis or death. Id.; Dkt. No. 167-1 at 51-53.
23
That same month, Plaintiff also refused to take any of his
24
medication unless he received morphine. Id.; Dkt. No. 167-1 at
25
54. On May 14, 2014, Plaintiff saw Dr. S. Posson, a nonparty, to
26
Dr. Posson noted that Plaintiff had a chronic sore throat but
1
denied having any difficulty swallowing. Id. He received
2
extended released morphine that same day. Dkt. No. 158-2 at 32;
3
Dkt. No. 158-4 at 16. Then in June 2014, Plaintiff refused to sign
4
for copies of certain medical records, and was uncooperative and
5
argumentative with staff in July, September, and October 2014.
6
Bright Decl. ¶ 16; Dkt. No. 167-1 at 55-58; Dkt. No. 158-1 at 56-
7
57. In November 2014, he refused to wear a mobility vest, which
8
is used to identify inmates who are hearing or visually impaired
9
in the event of an emergency. Id.; Dkt. No. 167-1 at 59. He also
10
initially refused to go to an appointment with Dr. Posson on
11
December 26, 2014, but later showed up at the clinic seeking a
12
visit. Id.; Dkt. No. 167-1 at 60-61; Dkt. No. 158-1 at 60-61.
13
Plaintiff continued to be uncooperative during 2015. During
14
July and August 2015, Plaintiff refused to take medication for
15
pain and spasms on five separate occasions. Bright Decl. ¶ 17;
16
Dkt. No. 167-1 at 63-67. On March 11, 2015, Defendant
17
Birdsong noted that Plaintiff was belligerent and refusing to
18
cooperate. Id.; Dkt. No. 167-1 at 73. On August 14, 2015,
19
Defendant Birdsong met with Plaintiff to discuss his refusal to
20
take his medication and noted that Plaintiff declined to take a flu
21
shot and vaccinations for twinrix (a vaccine against hepatitis A
22
and hepatitis B) and pneumonia. Id.; Dkt. No. 167-1 at 71. On
23
August 15, 2015, Plaintiff was not cooperative during a
24
telemedicine consult with a psychiatrist, a nonparty. Id.; Dkt.
25
26
No. 167-1 at 70.7 On December 11, 2015, Plaintiff became
1
belligerent while interacting with Dr. Carl Bourne, a nonparty,
2
and called him a “liar.” Id.; Dkt. No. 167-1 at 68.
3
Plaintiff’s noncompliance continued during 2016. On May
4
3, 2016, Defendant Dr. Villa discontinued the extended release
5
morphine and ordered immediate release morphine instead.
6
Bright Decl. ¶ 19; Dkt. No. 167-1 at 107-108. However, Dr.
7
Villa discontinued the immediate release morphine on May 13,
8
2016, because Plaintiff refused to take it. Id.; Dkt. No. 167-1 at
9
104. Then followed further instances of noncompliance with
10
medical staff: on June 27, 2016, Plaintiff refused to take
11
immediate release morphine for pain, Bright Decl. ¶ 20, Dkt. No.
12
167-1 at 103; on June 30, 2016, he refused to sign a document so
13
that he could receive copies of his medical records which he had
14
requested, id., Dkt. No. 167-1 at 101-102; on July 11, 2016,
15
Plaintiff demanded that staff provide him with early release
16
morphine and again refused immediate release morphine and
17
18
19 7 Defendants also assert that on September 21, 2015, Plaintiff
refused an eye exam for glaucoma. Bright Decl. ¶ 17; Dkt. No.
20
167-1 at 69. Plaintiff objects to the admission of this eye exam
21 into evidence, asserting that the Court had ordered no vision care
issues could be addressed in this action. Martin Decl. ¶ 13. That
22
prohibition, however, was on Plaintiff, to limit the breath of this
23 action to his pain management issues. Dkt. No. 137 at 6.
Defendants submitted this evidence as another example of
24
Plaintiff’s persistent non-compliance in response to their attempts
25 to provide treatment. Even so, the Court will sustain Plaintiff’s
objection and disregard this evidence as there is plenty of other
26
evidence to support Defendants’ argument regarding Plaintiff’s
gabapentin, id., Dkt. No. 167-1 at 100; he refused to go to a
1
medical appointment on July 29, 2016, id., Dkt. No. 167-1 at 99;
2
on August 22, 2016, he refused his pain medications and
3
demanded that Defendant Birdsong provide him with opioids id.,
4
Dkt. No. 167-1 at 98. On August 25, 2016, Plaintiff filed an
5
inmate grievance against Defendant Villa for discontinuing his
6
immediate release morphine. Dkt. No. 167-1 at 97.
7
On October 12, 2016, Plaintiff had an MRI of the cervical
8
and thoracic spine that showed no significant disease. Bright
9
Decl. ¶ 6; Dkt. No. 167-1 at 91; Dkt. No. 158-2 at 38-41. That
10
same month, Plaintiff stated that he would no longer work with
11
medical staff and would “just deal with the courts from now on.”
12
Id. ¶ 20; Dkt. No. 167-1 at 96. On December 1, 2016, he was
13
examined by Dr. K. Kaur, not a party to this action, who noted
14
that Plaintiff informed him that he could not take crushed/float
15
medication “due to dysphagia, since 2002.” Dkt. No. 167-1 at
16
94. However, Dr. Kaur noted that after reviewing Plaintiff’s
17
records, he did not find “any limitations as far as dysphagia with
18
crushed liquids” and that Plaintiff was “eating normal.” Id. at 95.
19
Throughout 2016 and 2017, Plaintiff was given Tylenol
20
three times per day for pain. Bright Decl. ¶ 21; Dkt. No. 167-1 at
21
92.
22
On January 20, 2017, Plaintiff had a telemedicine consult
23
with Dr. D. Ramberg, to review his current thoracic and cervical
24
MRI. Dkt. No. 158-2 at 42-43. Dr. Ramberg noted that another
25
surgery to address Plaintiff’s back complaints would require a
26
result that [Plaintiff] would be happy with.” Id. at 43. Dr.
1
Ramberg opined, “I doubt that his complaints would improve.”
2
Id.
3
On March 9, 2017, Plaintiff was again seen by Dr. Kaur,
4
who noted that Plaintiff sought liquid morphine and refusing to
5
take crush and float meds because of dysphagia. Dkt. No. 158-2
6
at 47. Dr. Kaur stated that Plaintiff had “unfounded claims which
7
medically are not substantiated, such as dysphagia to crush &
8
float medications although he tolerates regular diet.” Id.
9
Plaintiff filed this action on March 28, 2017. Dkt. No. 1.
10
C. Plaintiff’s Claims
11
This action is proceeding only on Eighth Amendment
12
deliberate indifference claims based on the following allegations
13
in the SAC involving the treatment for Plaintiff’s chronic pain; it
14
does not include the improperly joined claims that were stricken
15
from this action. Dkt. No. 137 at 6. Plaintiff claims that in
16
February 2007, he was given the wrong blood pressure medicine
17
and that another pain medication, tramadol, was improperly
18
cancelled. Dkt. No. 129 at 11-13. Plaintiff claims that Defendant
19
Tran was deliberately indifferent to him from 2007 through 2015,
20
and that he has been falsely labeled as a “non-compliant” patient.
21
Id. at 13-14. Plaintiff claims that at some point in 2013, he was
22
given Tylenol with codeine but was later given a different drug
23
which tasted strange. Id. at 17-18. Plaintiff claims that his
24
prescription for extended release morphine was cancelled in 2016
25
and replaced with “crush-float morphine” which is inadequate.
26
medication, a CAT scan, and surgeries during 2016 and 2017. Id.
1
at 23-30.
2
II. Summary Judgment
3
Summary judgment is proper where the pleadings, discovery
4
and affidavits show that there is “no genuine dispute as to any
5
material fact and the movant is entitled to judgment as a matter of
6
law.” Fed. R. Civ. P. 56(a). A court will grant summary
7
judgment “against a party who fails to make a showing sufficient
8
to establish the existence of an element essential to that party’s
9
case, and on which that party will bear the burden of proof at trial
10
. . . since a complete failure of proof concerning an essential
11
element of the nonmoving party’s case necessarily renders all
12
other facts immaterial.” Celotex Corp. v. Cattrett, 477 U.S. 317,
13
322-23 (1986). A fact is material if it might affect the outcome
14
of the lawsuit under governing law, and a dispute about such a
15
material fact is genuine “if the evidence is such that a reasonable
16
jury could return a verdict for the nonmoving party.” Anderson
17
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
18
Generally, the moving party bears the initial burden of
19
identifying those portions of the record which demonstrate the
20
absence of a genuine issue of material fact. See Celotex Corp.,
21
477 U.S. at 323. Where the moving party will have the burden of
22
proof on an issue at trial, it must affirmatively demonstrate that
23
no reasonable trier of fact could find other than for the moving
24
party. But on an issue for which the opposing party will have the
25
burden of proof at trial, the moving party need only point out
26
party’s case.” Id. at 325. If the evidence in opposition to the
1
motion is merely colorable, or is not significantly probative,
2
summary judgment may be granted. See Liberty Lobby, 477 U.S.
3
at 249-50.
4
The burden then shifts to the nonmoving party to “go
5
beyond the pleadings and by her own affidavits, or by the
6
‘depositions, answers to interrogatories, and admissions on file,’
7
designate specific facts showing that there is a genuine issue for
8
trial.’” Celotex Corp., 477 U.S. at 324 (citations omitted); Fed.
9
R. Civ. P. 56(e). “This burden is not a light one. The non-
10
moving party must show more than the mere existence of a
11
scintilla of evidence.” In re Oracle Corporation Securities
12
Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Liberty
13
Lobby, 477 U.S. at 252). “The non-moving party must do more
14
than show there is some ‘metaphysical doubt’ as to the material
15
facts at issue.” Id. (citing Matsushita Elec. Indus. Co., Ltd. v.
16
Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “In fact, the non-
17
moving party must come forth with evidence from which a jury
18
could reasonably render a verdict in the non-moving party’s
19
favor.” Id. (citing Liberty Lobby, 477 U.S. at 252). If the
20
nonmoving party fails to make this showing, “the moving party is
21
entitled to judgment as a matter of law.” Celotex Corp., 477 U.S.
22
at 323.
23
The Court’s function on a summary judgment motion is not
24
to make credibility determinations or weigh conflicting evidence
25
with respect to a material fact. See T.W. Elec. Serv., Inc. V.
26
1987). The evidence must be viewed in the light most favorable
1
to the nonmoving party, and the inferences to be drawn from the
2
facts must be viewed in a light most favorable to the nonmoving
3
party. See id. at 631. It is not the task of the district court to
4
scour the record in search of a genuine issue of triable fact.
5
Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). The
6
nonmoving party has the burden of identifying with reasonable
7
particularity the evidence that precludes summary judgment. Id.
8
If the nonmoving party fails to do so, the district court may
9
properly grant summary judgment in favor of the moving party.
10
See id.; see, e.g., Carmen v. San Francisco Unified School
11
District, 237 F.3d 1026, 1028-29 (9th Cir. 2001).
12
A. Deliberate Indifference
13
Deliberate indifference to a prisoner’s serious medical needs
14
violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97,
15
104 (1976). A prison official violates the Eighth Amendment
16
only when two requirements are met: (1) the deprivation alleged
17
is, objectively, sufficiently serious, and (2) the official is,
18
subjectively, deliberately indifferent to the inmate’s health or
19
safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994).
20
A “serious” medical need exists if the failure to treat a
21
prisoner’s condition could result in further significant injury or
22
the “unnecessary and wanton infliction of pain.” Id. The
23
following are examples of indications that a prisoner has a
24
“serious” need for medical treatment: the existence of an injury
25
that a reasonable doctor or patient would find important and
26
condition that significantly affects an individual’s daily activities;
1
or the existence of chronic and substantial pain. McGuckin v.
2
Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on
3
other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133,
4
1136 (9th Cir. 1997) (en banc).
5
A prison official is deliberately indifferent if he knows that a
6
prisoner faces a substantial risk of serious harm and disregards
7
that risk by failing to take reasonable steps to abate it. See
8
Farmer, 511 U.S. at 837. The official must both know of “facts
9
from which the inference could be drawn” that an excessive risk
10
of harm exists, and he must actually draw that inference. Id. If a
11
prison official should have been aware of the risk, but was not,
12
then the official has not violated the Eighth Amendment, no
13
matter how severe the risk. Gibson v. County of Washoe, 290
14
F.3d 1175, 1188 (9th Cir. 2002).
15
A claim of medical malpractice or negligence is insufficient
16
to make out a violation of the Eighth Amendment. See Toguchi
17
v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004); Hallett v.
18
Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Franklin v. Oregon,
19
662 F.2d 1337, 1344 (9th Cir. 1981); see, e.g., Frost v. Agnos,
20
152 F.3d 1124, 1130 (9th Cir. 1998) (finding no merit in claims
21
stemming from alleged delays in administering pain medication,
22
treating broken nose and providing replacement crutch, because
23
claims did not amount to more than negligence); McGuckin, 974
24
F.2d at 1059 (mere negligence in diagnosing or treating a medical
25
condition, without more, does not violate a prisoner’s 8th
26
Cir. 1990) (repeatedly failing to satisfy requests for aspirins and
1
antacids to alleviate headaches, nausea and pains is not
2
constitutional violation; isolated occurrences of neglect may
3
constitute grounds for medical malpractice but do not rise to level
4
of unnecessary and wanton infliction of pain).
5
B. Analysis
6
This action is based on the claim regarding treatment for
7
Plaintiff’s chronic pain related to certain longstanding injuries to
8
his neck and back, and the alleged failure to provide corrective
9
surgeries to address that pain. Dkt. No. 137 at 6. With regards to
10
this treatment, Plaintiff claims the following; (1) in February
11
2007, he was given the wrong blood pressure medicine and that
12
another pain medication, tramadol, was improperly cancelled; (2)
13
Defendant Tran was deliberately indifferent to him from 2007
14
through 2015, and that he has been falsely labeled as a “non-
15
compliant” patient; (3) at some point in 2013, he was given
16
Tylenol with codeine but was later given a different drug which
17
tasted strange; (4) his extended release morphine was cancelled
18
in 2016 and replaced with “crush-float morphine” which is
19
inadequate; and (5) he was denied pain medication, a CAT scan,
20
and surgeries during 2016 and 2017. See supra at 11.
21
Defendants do not dispute that Plaintiff’s pain issues in his
22
neck and back constitute a serious medical issue. Dkt. No. 149 at
23
12. Rather, they assert that they were not deliberately indifferent
24
to his needs. Id. Defendants assert that the evidence establishes
25
that Plaintiff’s medical needs have not been ignored at SVSP, and
26
or surgeries. Id. at 13; Bright Decl. ¶ 7. With respect to
1
Plaintiff’s claim that he needs surgery, Defendants assert that
2
there are no physical findings in his medical exams or imaging
3
that support his request for surgery. Id. Defendants assert that
4
the biggest challenge that medical staff have faced in treating
5
Plaintiff appropriately is his continuous and long history of
6
refusing medications, treatments, and evaluations, and of being
7
noncompliant with recommended treatments and medications.
8
Id.
9
Furthermore, Defendants assert that although Plaintiff insists
10
on receiving opioid medications, there is no medical evidence
11
establishing that opioids are superior to nonsteroidal anti-
12
inflammatory drugs (NSAIDS) or Tylenol in treating pain or
13
improving function in connection with chronic neck or back pain.
14
Dkt. No. 149 at 13. Defendants also dispute Plaintiff’s claim that
15
at least since 2002 he cannot take “crush and float” medication
16
because of dysphagia, the medical term for swallowing
17
difficulties, because there is no medical evidence that he has any
18
limitations with regard to swallowing. Id. Accordingly,
19
Defendants assert that there is no evidence to support Plaintiff’s
20
contention that he cannot ingest “crush and float” or “immediate
21
release” morphine. Id. With respect to the allegation that he was
22
denied pain medication during 2016 and 2017, Defendants assert
23
that he was given Tylenol three times per day for pain throughout
24
that time. Id. at 15; Bright Decl. ¶ 21. When Plaintiff was
25
offered other medications, he refused them. Id. Despite
26
assert that they consistently attempted to treat Plaintiff’s pain
1
with appropriate medications and concluded that he does not
2
need surgery.
3
With respect to the allegation that he was given wrong
4
blood pressure medication in February 2007, and that another
5
pain medication, tramadol, was improperly cancelled during that
6
period, Defendants assert it is meritless. Dkt. No. 149 at 13.
7
Defendants assert that the medical records indicate that Plaintiff
8
was not taking blood pressure medication when he was
9
transferred to SVSP in 2007. Id. Plaintiff was first given
10
atenolol, a blood pressure medication, on July 12, 2007. Id. In
11
addition, Defendants assert that medical staff refilled Plaintiff’s
12
prescription for tramadol in March 2007. Id. at 14.
13
With regard to the allegation that Defendant Tran was
14
deliberately indifferent to Plaintiff and that he was falsely labeled
15
as a “non-compliant” patient, Defendants assert that there were
16
numerous instances in which Plaintiff was noncompliant with
17
medical staff from 2013 through 2016. Dkt. No. 149 at 14-15.
18
With respect to the allegation that Plaintiff was provided
19
Tylenol with codeine at some point in 2013, but was later given a
20
different drug which tasted strange, Defendants assert that their
21
actions during that period did not violate the Eighth Amendment.
22
Dkt. No. 149 at 15. Defendants assert that the medical records
23
show that Plaintiff was first prescribed Tylenol #3 on December
24
13, 2014. Id. On January 21, 2014, staff began providing him
25
with liquid Tylenol #3, which likely tasted strange to Plaintiff.
26
February 1, 2014. Id. Defendants assert that these actions were
1
part of their ongoing efforts to treat Plaintiff’s pain.
2
In opposition, Plaintiff asserts that Defendants have violated
3
his Eighth Amendment rights with their “excessive denial of pain
4
management medicine,” failure to treat his “pre-existing
5
neurological and orthopedic damages to prevent worsening, and
6
failure to place him in a medical facility conducive to his pre-
7
existing and worsening condition. Dkt. No. 157 at 3. Plaintiff
8
asserts that there are no records to support a 2001 spinal surgery
9
contrary to Defendant Bright’s declaration. Id. at 6. Plaintiff
10
asserts that his exhibits “A thru F” show that he has serious
11
neurological and orthopedic injuries to warn of medical treatment
12
or need for corrective surgeries. Id. at 9. In his declaration,
13
Plaintiff recounts problems with his neck and back since 2003
14
and a damaging surgery in May 2006. Martin Decl. ¶¶ 4-9, Dkt.
15
No. 158. Plaintiff asserts generally that there remain genuine
16
issues of material facts and that “each Defendant knew and
17
disregarded the laws to maliciously inflict harm and to seek
18
[Plaintiff’s] demise.” Id. at ¶ 10. Plaintiff asserts that Defendant
19
Bright has failed “to offer any law or approved state license for
20
the unlawful practice of crush-float drug dispensed… without
21
consent.” Id. at ¶ 11. He asserts that he had a right to withhold
22
consent to taking crush-float medication, and that he cannot be
23
deemed non-compliant for withholding consent. Id. at ¶14.
24
Plaintiff asserts that Defendants are focusing on covering up and
25
concealing “the thoracic spinal damages that [have] been
26
¶ 19.
1
In reply, Defendants assert that Plaintiff’s opposition is
2
largely incoherent and fails to address any of their contentions.
3
Dkt. No. 159 at 2. Defendants assert that the evidence they
4
submit establishes that Plaintiff does not have a spinal cord injury
5
and does not need surgery. Id.; id. at 3. They also assert that
6
there is no evidence that Plaintiff has any limitations in
7
swallowing that would prevent him from ingesting “crust and
8
float” medication. Id. Rather, Defendants assert, the evidence
9
indicates that medical staff at SVSP have consistently attempted
10
to provide appropriate care for Plaintiff’s pain despite his
11
belligerence and noncompliance, and that their biggest obstacle
12
in treating Plaintiff properly has been his continuous history of
13
refusing medications, treatments, and evaluations, and being
14
noncompliant with recommended treatments and medications.
15
Id. They assert, therefore, that Plaintiff’s Eighth Amendment
16
claim against them must fail. Id. at 5.
17
Viewing the evidence in the light most favorable to Plaintiff,
18
the Court finds there exists no genuine dispute as to any material
19
fact relating to Plaintiff’s claim of deliberate indifference against
20
Defendants. The evidence submitted by Defendants establishes
21
that there is an absence of evidence to support Plaintiff’s claim
22
that Defendants provided constitutionally deficient treatment for
23
his chronic pain, including the failure to provide corrective
24
surgeries. Rather, his medical records and inmate grievances
25
show that Plaintiff’s main objections to the treatment provided by
26
float form and switching him from extended relief morphine to
1
immediate relief morphine. See supra at 7, 8, 9, 10, 11. He
2
repeatedly asserted throughout 2013 through 2017 that he could
3
not take medication in crush-float form because he has trouble
4
swallowing due to dysphagia. Id. However, the various treating
5
physicians, both parties and nonparties, found no evidence to
6
substantiate this claim. Id. In fact, one appeal decision noted
7
that during August and September 2007, Plaintiff was able to
8
take tramadol three times a day in crush and float form and only
9
reported experiencing a sore throat on occasion, with no apparent
10
correlation to the form of his medication. Id. at 6. Plaintiff’s
11
assertion in this regard have also been inconsistent, as during one
12
visit on May 14, 2014, he stated to Dr. Posson that although he
13
had a chronic sore throat, he had no difficulty swallowing. Id. at
14
7-8. Furthermore, doctors noted that despite his claim of
15
dysphagia, Plaintiff was still eating normally and tolerating a
16
regular diet. Id. at 10, 11. The evidence shows that Defendants
17
were aware that Plaintiff was able to swallow his medication in
18
crush-float form and that his ability to eat a normal diet
19
contradicted any indication that he had dysphagia. Accordingly,
20
it cannot be said that they knew of an excessive risk of harm to
21
Plaintiff if they continued to prescribe crush and float form where
22
Plaintiff was able to ingest it but simply chose not to. The same
23
is true of the extended release morphine versus the immediate
24
release morphine: Defendants provided morphine for his pain
25
which Plaintiff rejected because of the prescribed form of the
26
Plaintiff receiving treatment for his chronic pain was his own
1
conduct, i.e., failing to show up for pill call and refusing to take
2
his medication, because he essentially disagreed with
3
Defendants’ chosen course of treatment of giving medication in
4
crush and float form or as extended release or immediate release.
5
However, this mere difference of medical opinion as to the need
6
to pursue one course of treatment over another is insufficient, as a
7
matter of law, to establish deliberate indifference. See Toguchi,
8
391 F.3d at 1058; Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.
9
1989). Therefore, it cannot be said that Defendants acted with
10
deliberate indifference to Plaintiff’s pain when they continuously
11
prescribed medication which he repeatedly refused.
12
Furthermore, Defendants have also demonstrated the
13
absence of a genuine issue of material fact with respect to
14
Plaintiff’s claim that surgery should have been provided to treat
15
his pain. Defendants assert that there are no physical findings in
16
Plaintiff’s medical exams or imaging to support his request for
17
surgery. See supra at 16-17. A review of the medical records
18
submitted by both parties reveals no evidence that surgery was
19
ever recommended to alleviate Plaintiff’s chronic pain but then
20
denied. Rather, Plaintiff states that he had one damaging surgery
21
in May 2006 which caused injuries to his limbs resulting in either
22
“paralysis/numbness” or “agonizing intractable pain,” and when
23
the same surgeon recommended another surgery a few months
24
later, Plaintiff refused it. Id. at 4. The records also indicate that
25
Plaintiff again refused surgery in December 2006. Id. This
26
arrived at SVSP. The only mention of surgery thereafter appears
1
in the medical records submitted by Plaintiff from January 2017,
2
when he had a telemedicine consult with Dr. Ramberg. Id. at 10.
3
Dr. Ramberg’s conclusion at that time was that another surgery to
4
address Plaintiff’s back complaints would require a “major
5
operation with significant risks” which was not likely to result in
6
any change that Plaintiff would be happy with. Id. Dr. Ramberg
7
opined that he doubted that Plaintiff’s complaints would improve.
8
Id. This opinion by a nonparty does indicates that surgery was
9
not a viable option to alleviate Plaintiff’s chronic pain such that
10
Defendants’ denial of the surgery cannot be considered deliberate
11
indifference.
12
To refute Defendants’ showing of an absence of a genuine
13
issue of material fact, Plaintiff must designate specific facts
14
showing there is a genuine issue for trial. See Celotex Corp., 477
15
U.S. at 324. Plaintiff has failed to do so. First of all, although
16
Plaintiff rejects Defendant Bright’s assertion that he had surgery
17
in March 2001 as indicated by his transfer papers to SVSP, see
18
supra at 14, this dispute is not over a material fact since a surgery
19
that did or did not take place nearly twenty years ago while
20
incarcerated at a different institution is not relevant on the issue
21
of whether SVSP Defendants denied Plaintiff treatment for his
22
chronic pain as he claims. Secondly, Plaintiff asserts that he did
23
not give “consent” to the type of medication prescribed and that
24
he should not be deemed noncompliant thereby. Id. However,
25
his decision to reject otherwise appropriately prescribed pain
26
indifference with respect to his pain management where they
1
were unaware of any hindrance to his ability to ingest the
2
medication. The risk of harm to Plaintiff was created by his own
3
refusal to take the medication as prescribed, not by any action on
4
the part of Defendants.
5
In support of his opposition, Plaintiff submitted over 400
6
pages of documents separated into Exhibits A through F, but fails
7
to explain the relevancy of much of these papers. Dkt. Nos. 158-
8
1 through 158-7. Plaintiff refers to these exhibits in general as
9
“medical records, documents, appeals, policies, statutes,
10
regulations, CDCR memorandum, letters from state experts, state
11
and federal agencies, actions under president[ial] authority, and
12
local state agencies acting under governor authority and state and
13
federal class action court orders (Plata/Armstrong/Clark).”
14
Martin Decl. ¶ 9, Dkt. No. 158 at 5-6. Other than being grouped
15
into 6 separate exhibits with a general description on the first
16
page, the documents in each exhibit are presented in no apparent
17
order. See supra at 2, fn. 3. Some documents included in one
18
exhibit are also duplicated in another. See, e.g., Dkt. Nos. 158-2
19
at 32, 158-4 at 16. Plaintiff’s submission of these documents is
20
also inadequate to establish deliberate indifference because he
21
describes some of the exhibits as containing evidence of a “series
22
of negligent events.” See supra at 2, fn. 3. Negligence is
23
insufficient to make out a violation of the Eighth Amendment.
24
See Toguchi, 391 F.3d at 1060. Moreover, Plaintiff provides no
25
description of the allegedly negligent events contained in the
26
knew that he faced a substantial risk of serious harm and
1
disregarded that risk by failing to take reasonable steps to abate
2
it. See Farmer, 511 U.S. at 837.
3
Without any specific explanation from Plaintiff, the Court
4
cannot determine the relevancy of much of these documents. See
5
Fed. R. Evid. 401, 402. Plaintiff makes very little reference to
6
specific documents in the exhibits in either his opposition brief or
7
his declaration to support his arguments and assertions; rather, he
8
frequently refers to the exhibits “A thru F” as a whole or to an
9
entire exhibit or lengthy pages therein. See, e.g., Dkt. No. 157 at
10
4, 7, 9, 10; Dkt. No. 158 at 10. Therefore, the Court has only
11
considered the medical records and inmate appeals therein that
12
contain clearly relevant facts pertaining to the issues in this
13
matter as included in the statement of facts above. See supra at
14
2-8. Otherwise, for lack of any specific explanation or argument
15
from Plaintiff establishing the relevancy of these documents, or
16
their authenticity, the remainder of his papers cannot be
17
considered evidence. See Fed. R. Evid. 901(a).
18
Based on the foregoing, Plaintiff has failed in opposition to
19
meet his burden of pointing to specific facts showing that there is
20
a genuine issue for trial or produce evidence from which a jury
21
could reasonably render a verdict in Plaintiff’s favor. See Liberty
22
Lobby, 477 U.S. at 252.
23
Defendants have also shown that there is no genuine dispute
24
as to any material fact with respect to the remaining allegations
25
regarding Plaintiff’s treatment. See supra at 12. First with
26
medicine in February 2007, the evidence shows that Plaintiff was
1
not taking blood pressure medication when he was transferred to
2
SVSP in February 2007. See supra at 3. He was not prescribed
3
blood pressure medication atenolol until July 2007. Id. at 4, 13.
4
Accordingly, this claim is without any factual basis. Nor is there
5
any factual basis for Plaintiff’s claim that Defendants improperly
6
cancelled his prescription for tramadol as the medical records
7
show that the prescription was refilled in March 2007. Id.
8
Plaintiff offers no evidence in opposition to establish a dispute
9
over this fact.
10
With respect to the claim that Defendant Tran was
11
deliberately indifferent for falsely labelling Plaintiff as “non-
12
compliant,” Defendants have demonstrated that the medical
13
records contain numerous instances of Plaintiff’s non-compliance
14
from 2013 through 2016. See supra at 3-11. These instances
15
include repeated failures to appear at the pill line to receive his
16
medication, refusing vaccinations or to be tested for various
17
diseases, refusals to take various medications for his heart,
18
antidepressants, blood pressure, and pain management, being
19
belligerent and argumentative at clinical visits, and refusals to go
20
to medical appointments. Id. Accordingly, there is no genuine
21
dispute that Plaintiff was actively non-compliant during the
22
relevant time period.
23
Lastly, with respect to the claim that Plaintiff was given
24
Tylenol with codeine in 2013 but was later given a different drug
25
which tasted strange, Defendants have provided an explanation
26
This incident regarding the strange tasting medication contains no
1
indication that Defendants were aware of an excessive risk to
2
Plaintiff which they disregarded. As the undisputed facts show,
3
the medicine in liquid form was shortly discontinued. Id. at 5.
4
Accordingly, Defendants have shown the absence of a genuine
5
issue of material fact with respect to this claim.
6
Based on the undisputed facts, Defendants have shown there
7
is an absence of a genuine dispute of material fact with respect to
8
the Eighth Amendment claims against them. See Celotex Corp.,
9
477 U.S. at 323. Plaintiff has failed to meet his burden of
10
identifying with reasonable particularity the evidence that
11
precludes summary judgment, see Keenan, 91 F.3d at 1279, or
12
submit evidence from which a jury could reasonably render a
13
verdict in his favor, In re Oracle Corporation Securities
14
Litigation, 627 F.3d at 387. Accordingly, Defendants are entitled
15
to summary judgment on all the claims against them. See Celotex
16
Corp., 477 U.S. at 323.8
17
18
CONCLUSION
19
For the reasons stated above, Defendants Dr. Kim R.
20
Kumar, Dr. Darrin M. Bright, Tuan Anh Tran, Dr. Edward Miles
21
Birdsong, and Dr. Jennifer Villa’s motion for summary judgment
22
is GRANTED. Dkt. No. 149. The Eighth Amendment
23
24
25 8 Because the Court finds no constitutional violation, it is not
necessary to address Defendants’ remaining arguments regarding
26
punitive damages and qualified immunity. Dkt. No. 149 at 16-
1 || deliberate indifference claims against them are DISMISSED
2 || with prejudice.
3 This order terminates Docket Nos. 149 and 167.
4 The Clerk shall close the file.
5 IT IS SO ORDERED.
6
7 || Dated: _December 21, 2020_ jh OM hhw gman
8 BETH LABSON FREEMAN
9 United States District Judge
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12
A 16
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25 || Order Granting MSJ
PRO-SE\BLFICR.17\01690Martin_grant-MSJ
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