Opinion

(PC) Rodriguez v. Pfeiffer

Court: District Court, E.D. California
Filed: Oct 11, 2024
Cited by: 0 cases
Authority: More cited than 31.3%

plaintiff alleged sufficient facts from which it could reasonably be concluded that 9 prison officials knew of dental condition but denied request for prompt treatment

How later courts described this case

plaintiff alleged sufficient facts from which it could reasonably be concluded that 9 prison officials knew of dental condition but denied request for prompt treatment
“The mere existence of a scintilla of 17 evidence in support of the plaintiff’s position will be insufficient; there must be evidence on 18 which the jury could reasonably find for the plaintiff.”
the law was clearly established that officers cannot 7 intentionally deny or delay access to medical care

Written by the judges who cited it.

The opinion

7 UNITED STATES DISTRICT COURT

8 EASTERN DISTRICT OF CALIFORNIA

10 MANUEL RODRIGUEZ, Case No. 1:21-cv-00572-JLT-EPG (PC)

11 Plaintiff, FINDINGS AND RECOMMENDATIONS,

RECOMMENDING THAT DEFENDANTS’

12 v. MOTION FOR SUMMARY JUDGMENT BE

GRANTED, IN PART, AND DENIED, IN

13 PFEIFFER, et al., PART

14 Defendants. (ECF No. 84)

15 OBJECTIONS, IF ANY, DUE WITHIN

THIRTY DAYS

17 Plaintiff Manuel Rodriguez (“Plaintiff”) is proceeding through counsel in this civil rights

18 action filed pursuant to 42 U.S.C. § 1983. This case proceeds on Plaintiff’s claim that Defendants

19 Elva Vitto, Harpreet Singh, and Lawrence Aflague1, Jr. (“Defendants”) were deliberately

20 indifferent to his serious medical needs in violation of the Eighth Amendment. (ECF No. 43).

21 More specifically, Plaintiff alleges that Defendants delayed Plaintiff’s ability to be examined by a

medical doctor following a neck injury, which ultimately resulted in an epidural abscess

rendering Plaintiff quadriplegic. (Id. at 62).

Defendants now move for summary judgment, arguing that the evidence shows that they

were not deliberately indifferent to Plaintiff’s serious medical needs and that they are entitled to

26 1 The docket and record contain several inconsistent spellings of Defendant’s name. The Court refers to

this defendant using the spelling “Aflague,” consistent with Defendant counsel’s briefings.

27 2 Unless otherwise indicated, page numbers refer to the pagination appearing at the bottom of each

document, not the blue page numbers generated by the CM/ECF system. When referring to the CM/ECF

28 system’s page numbers, they are preceded by “ECF p.”

1 qualified immunity. (ECF No. 84-1). For the reasons explained below, it is recommended that

2 Defendants’ motion for summary judgment be granted as to Plaintiff’s deliberate indifference

3 claims against Defendant Vitto. However, it is recommended that the motion be denied as to

4 Plaintiff’s deliberate indifference claim against Defendants Singh and Aflague, Jr.

I. BACKGROUND

Plaintiff, proceeding through counsel, filed the initial complaint commencing this action

on April 5, 2021, alleging multiple employees at Kern Valley State Prison (KVSP) deprived him

of adequate medical care for a known serious medical need in violation of the Eighth

Amendment. (ECF No. 1 at 9).

The complaint alleged that in May 2019, while incarcerated at KVSP, Plaintiff suffered a

neck injury. (Id. at 3). Plaintiff began having progressive pain and disability and was seen by

nursing staff who did not possess the training, experience, or knowledge to properly evaluate

Plaintiff’s injury, diagnose his condition, or recommend diagnostic testing. (Id.). Medical staff

refused to refer Plaintiff to a doctor and acted as “gatekeepers” to minimize the involvement of

doctors to keep healthcare costs down. (Id. at 3, 7, 10). Plaintiff finally saw a doctor on July 9,

2019, because he collapsed, could not ambulate, and suffered sensory changes. (Id. at 3-4). The

16 doctor determined Plaintiff had a sensory deficit below his chest at the thoracic T8/9 level, and

17 Plaintiff was transferred to an outside facility to rule out an epidural abscess. (Id. at 6). Plaintiff

18 was subsequently diagnosed with an epidural abscess and operated upon. (Id.). Due to the delay

19 in diagnosis and treatment, the abscess caused severe, catastrophic, and disabling damage,

20 rendering Plaintiff quadriplegic. (Id. at 6-7).

21 After several amendments and motions to dismiss, this case now proceeds on Plaintiff’s

22 Second Amended Complaint (SAC) filed on May 5, 2022, (ECF No. 43), on Plaintiff’s claim for

23 deliberate indifference to serious medical needs against defendants Vitto, Singh, and Aflague.

II. Defendants’ Motion for Summary Judgment

A. Defendants’ Motion

On December 29, 2023, Defendants filed a motion for summary judgment. (ECF No. 84).

The motion is made on the grounds that Defendants were not deliberately indifferent to Plaintiff’s

serious medical needs and Defendants are entitled to qualified immunity. (Id. at 1). In addition to

1 Defendants’ Statement of Undisputed Facts, declarations by Defendants, and excerpts of

2 Plaintiff’s medical records, Defendants support their motion for summary judgment with

3 declarations and reports by medical experts Dr. Venkatasubramanian and Chief Nurse Executive

4 Susana Ramirez. (ECF Nos. 84-6 through 84-11).

Defendants argue that Defendant Vitto was not deliberately indifferent to Plaintiff’s

serious medical needs, “[b]ecause [Plaintiff] lacks any evidence to demonstrate an affirmative

causal link between Defendant Vitto’s actions and the claimed deprivation[:]the alleged failure to

appropriately treat or diagnose his epidural abscess that ultimately caused his incomplete

paraplegia[.]” (Id. at 17-18). Additionally, Defendants assert that Plaintiff has not demonstrated

that Defendant Vitto had the requisite mental state necessary for deliberate indifference. (Id. at

18). As to Defendants Singh and Aflague, Defendants argue they were not deliberately indifferent

to Plaintiff’s serious medical needs because: (1) the actions by Defendants Singh and Aflague in

responding to Plaintiff’s concerns were objectively reasonable under the circumstances, and (2)

Plaintiff has not demonstrated that Defendants Singh or Aflague had the requisite mental state

necessary for deliberate indifference. (Id. at 19-24).

Defendants also argue that they are entitled to qualified immunity.

16 B. Plaintiff’s Opposition

17 Plaintiff filed his Opposition to Defendants’ motion for summary judgment on January 12,

18 2024. (ECF No. 88). Plaintiff supports his Opposition with his response to Defendants’ Statement

19 of Undisputed Facts, a Statement of Further Disputed Facts, a memorandum of objection to

20 evidence with a declaration from Plaintiff’s counsel, the transcripts of the depositions of

21 Defendants and Plaintiff, Plaintiff’s medical records, and a report from the Office of the Inspector

22 General. Plaintiff contends that Defendants were deliberately indifferent to his serious medical

23 needs by “knowingly acting blindly” to his complaints. (ECF No. 88 at 15). Plaintiff alleges that

Defendant Vitto “blindly” refilled Plaintiff’s ibuprofen prescription; Defendant Singh dismissed

Plaintiff’s complaints and, rather than referring Plaintiff to a doctor, consulted a doctor who

ordered an x-ray; Defendant Aflague, with knowledge of Plaintiff’s serious complaints of pain,

provided no treatment and “unilaterally” made the decision to refer Plaintiff to a medical doctor

within 14 days; and Defendants Singh and Aflague acted as “gatekeepers” with the sole authority

1 to refer patients to doctors. (Id.). Plaintiff also alleges that Defendants Singh and Aflague

2 improperly made diagnoses with “no professional or educational background whatsoever.” (Id.).

3 Plaintiff claims Defendants Singh and Aflague violated the California Nursing Practices Act

4 because no evidence has been presented of any standardized procedures by which patients are

referred to doctors. (ECF No. 88 at 18). Plaintiff further argues that the Court should disregard the

expert opinions offered by Defendants because expert testimony is not required to establish

deliberate indifference, the evidence is irrelevant, and the experts are unqualified. (ECF No. 88 at

12-13, 18-19).

As to qualified immunity, Plaintiff argues it does not apply because the Eighth

Amendment prohibition against cruel and unusual punishment is clear, and Defendants would

have known Plaintiff’s rights would be violated by their failing to provide him with treatment or

access to medical care. (Id. at 21-22).

C. Defendants’ Reply

On February 21, 2024, Defendants filed their Reply to Plaintiff’s Opposition. (ECF No.

93). Defendants support the Reply with additional declarations from their experts, including

excerpts from CDCR’s nursing protocols, and their response to Plaintiff’s Further Disputed Facts.

16 In addition to reiterating their original arguments, Defendants contend that Plaintiff’s argument

17 that Defendants Singh and Aflague violated the California Nursing Practices Act was raised for

18 the first time in Plaintiff’s Opposition, and thus should be disregarded. (ECF No. 93 at 3-4).

19 Defendants contend, however, that should the Court consider this argument, that Defendants did

20 act according to standardized procedures. (Id. at 4-5). Defendants contend their expert evidence is

21 relevant and both experts are qualified. (Id. at 11-14).

22 III. LEGAL STANDARDS

23 A. Summary Judgment

Summary judgment in favor of a party is appropriate when there “is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (“If there is a genuine

dispute about material facts, summary judgment will not be granted.”). A party asserting that a

fact cannot be disputed must support the assertion by “citing to particular parts of materials in the

1 record, including depositions, documents, electronically stored information, affidavits or

2 declarations, stipulations (including those made for purposes of the motion only), admissions,

3 interrogatory answers, or other materials, or showing that the materials cited do not establish the

4 absence or presence of a genuine dispute, or that an adverse party cannot produce admissible

evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).

A party moving for summary judgment “bears the initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of ‘the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). “Where the non-

moving party bears the burden of proof at trial, the moving party need only prove that there is an

absence of evidence to support the non-moving party’s case.” In re Oracle Corp. Sec. Litig., 627

F.3d 376, 387 (9th Cir. 2010). If the moving party does so, “the burden then shifts to the non-

moving party to designate specific facts demonstrating the existence of genuine issues for trial,”

which is not a light burden, and the non-moving party “must come forth with evidence from

which a jury could reasonably render a verdict in the non-moving party’s favor.” Id.; see

16 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla of

17 evidence in support of the plaintiff’s position will be insufficient; there must be evidence on

18 which the jury could reasonably find for the plaintiff.”). “[A] complete failure of proof

19 concerning an essential element of the nonmoving party’s case necessarily renders all other facts

20 immaterial.” Celotex, 477 U.S. at 322. Additionally, “[a] summary judgment motion cannot be

21 defeated by relying solely on conclusory allegations unsupported by factual data.” Taylor v. List,

22 880 F.2d 1040, 1045 (9th Cir. 1989).

23 In reviewing the evidence at the summary judgment stage, the Court “must draw all

reasonable inferences in the light most favorable to the nonmoving party.” Comite de Jornaleros

de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). The Court need

only draw inferences, however, where there is “evidence in the record . . . from which a

reasonable inference . . . may be drawn”; the Court need not entertain inferences that are

unsupported by fact. Celotex, 477 U.S. at 330 n. 2 (citation omitted). And “[t]he evidence of the

1 non-movant is to be believed.” Anderson, 477 U.S. at 255. In reviewing a summary judgment

2 motion, the Court may consider other materials in the record not cited to by the parties but is not

3 required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified School Dist., 237

4 F.3d 1026, 1031 (9th Cir. 2001).

B. Deliberate Indifference

“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate

must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091,

1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires Plaintiff

to show (1) “a serious medical need by demonstrating that failure to treat a prisoner’s condition

could result in further significant injury or the unnecessary and wanton infliction of pain,” and (2)

that “the defendant’s response to the need was deliberately indifferent.” Id. (quoting McGuckin v.

Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)) (citation and internal quotation marks omitted),

overruled on other grounds by WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en

banc).

Deliberate indifference is established only where the defendant subjectively “knows of and

disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057

16 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). Deliberate

17 indifference can be established “by showing (a) a purposeful act or failure to respond to a

18 prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Jett, 439 F.3d

19 at 1096 (citation omitted). Civil recklessness (failure “to act in the face of an unjustifiably high

20 risk of harm that is either known or so obvious that it should be known”) is insufficient to

21 establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 836-37 & n.5

22 (1994) (citations omitted).

23 Additionally, a difference of opinion between an inmate and prison medical personnel—or

between medical professionals—regarding appropriate medical diagnosis and treatment is not

enough to establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.

1989); Toguchi, 391 F.3d at 1058. Additionally, “a complaint that a physician has been negligent

in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment

under the Eighth Amendment. Medical malpractice does not become a constitutional violation

1 merely because the victim is a prisoner.” Estelle, 429 U.S. at 106. To establish a difference of

2 opinion rising to the level of deliberate indifference, a “plaintiff must show that the course of

3 treatment the doctors chose was medically unacceptable under the circumstances.” Jackson v.

4 McIntosh, 90 F.3d 330, 332 (9th Cir. 1996), overruled in part on other grounds by Peralta v.

Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc).

IV. DISCUSSION3

A. Undisputed Facts4

Although the parties dispute many facts related to the events at issue, the Court finds that

the following relevant facts are undisputed.

Between May 2019 and July 9, 2019, Plaintiff was an incarcerated and convicted prisoner

at Kern Valley State Prison (KVSP). (SFDF5 1). On June 6, 2019, Plaintiff submitted his first

health care request form, which stated, “shoulder injury; it’s been over a month and getting

worse.” (DSUF6 1). On June 7, 2019, Plaintiff was seen by a nurse (who is not a defendant in this

case). (DSUF 2). Plaintiff complained of pain in his right shoulder. (DSUF 2, DSUF 86). Plaintiff

was prescribed NSAIDs and told to refrain from exercises involving his shoulder or overuse and

to seek care if his symptoms changed or got worse. (DSUF 4).

16 On July 1, 2019, Plaintiff submitted a refill request for his ibuprofen prescription and on

17 July 2, 2019, it was reviewed by a registered nurse who authorized the refill. (DSUF 10). On July

18 2, 2019, Defendant Vitto, a Licensed Vocational Nurse (LVN), entered the refill order and

19 emailed the pharmacy. (DSUF 10). Six minutes later, the pharmacy completed the refill and noted

20 that Plaintiff would require a doctor’s order to continue the prescription past July 7, 2019. (DSUF

21 10).

22 On July 4, 2019, Defendant Singh, a Registered Nurse, was assigned to the Treatment and

23 Triage Area (TTA) on first watch. (DSUF 14). Shortly after midnight, Defendant Singh

responded to a medical emergency call when Plaintiff complained of chest pain. (DSUF 15).

25 3 The parties have included voluminous objections to evidence submitted by each other. The Court will not

rule on these objections, unless needed to address evidence the Court deems necessary to resolve this

26 motion, set forth below. Nothing in this order precludes a party from moving to exclude evidence at trial.

4 For readability, minor alterations to some quoted excerpts have been made, such as to spelling and

27 punctuation, without noting each alteration.

5 “SFDF” refers to Plaintiff’s Statement of Further Disputed Facts.

28 6 “DSUF” refers to Defendants’ Statement of Undisputed Facts.

1 Defendant Singh arrived within one minute of the call. (Id.). An electrocardiogram (EKG) was

2 performed to determine if Plaintiff was in cardiac distress. (DSUF 21). The EKG showed a

3 normal sinus rhythm with sinus arrhythmia suggesting Plaintiff was not suffering from cardiac

4 issues. (Id.). Defendant Singh consulted with the on-call physician. (DSUF 25). Defendant Singh

discharged Plaintiff and instructed Plaintiff to notify medical staff or submit a health care request

form if he had increased pain or other concerns. (DSUF 26). Defendant Singh entered the order

for a follow up the next day, and emailed nursing staff about the appointment, describing

Plaintiff’s then-perceived condition as “muscle skeletal right side chest pain.” (DSUF 28, 79).

Defendant Singh did not refer Plaintiff for any appointment with a doctor in the future.

On July 8, 2019, Plaintiff was seen by Defendant Aflague who was working as a relief

nurse. (DSUF 36). Defendant Aflague discussed with Plaintiff the report from a cervical spine x-

ray taken on July 5, 2019. (DSUF 44). Defendant Aflague told Plaintiff that he might be

experiencing a nerve-related issue. (DSUF 45). Defendant Aflague entered a referral for a follow-

up appointment with a physician within two weeks. (DSUF 47).

The next day, on July 9, 2019, Plaintiff’s legs “gave out on him.” (DSUF 102). Medical

staff responded to an alarm when Plaintiff complained of back pain and could not move his lower

16 extremities. (DSUF 52). Plaintiff was brought to the TTA and examined by Dr. Sao. (DSUF 53).

17 This was the first time Plaintiff was seen by a doctor since the commencement of his symptoms.

18 (FDF 7). Dr. Sao ordered that Plaintiff be emergently transported to an outside hospital for labs

19 and an MRI. (DSUF 53).

20 Plaintiff was admitted to Adventist Health, where it was determined that Plaintiff had

21 methicillin-susceptible Staphylococcus aureus (MSSA) sepsis with an epidural abscess at C6-7,

22 and Plaintiff underwent a laminectomy on July 10, 2019. (DSUF 54, 55). Doctors opined that the

23 MSSA sepsis caused an epidural abscess from C6 through C7, resulting in spinal cord

compression and leading to dense paraplegia and sensory deficit. (DSUF 57).

B. Defendant Vitto

The Court first addresses Defendants’ argument regarding Defendant Vitto. Defendants

argue that summary judgment is appropriate because Defendant Vitto’s role was limited to

entering a refill order for ibuprofen and emailing the pharmacy to ensure that the refill was

1 completed. Defendants argue that such limited involvement does not rise to the level of

2 deliberate indifference to serious medical needs.

3 Plaintiff’s opposition does little to address Plaintiff’s claim against Defendant Vitto,

4 besides asserting that Defendant Vitto “blindly refilled the ibuprofen prescription of Plaintiff.”

ECF No. 88 at 15.

As to Defendant Vitto, the Court finds that Defendants have submitted sufficient evidence

that no reasonable jury could find for Plaintiff as to his claim for deliberate indifference to serious

medical needs against Defendant Vitto. It is undisputed that Defendant Vitto’s sole involvement

in the care of Plaintiff’s medical issue was limited to refilling his prescription for ibuprofen. It is

undisputed that Defendant Vitto did so promptly. Plaintiff has presented no evidence that

Defendant Vitto had information that would have warranted additional medical care, nor that

Defendant Vitto had the responsibility to assess and direct such care.

Accordingly, Plaintiff has failed to submit evidence that a jury could find that Defendant

Vitto acted with deliberate indifference to Plaintiff’s serious medical needs. Therefore, the Court

recommends granting Defendants’ motion for summary judgment as to Plaintiff’s claim for

deliberate indifference to serious medical needs as to Defendant Vitto.

16 C. Defendant Singh

17 Defendants next argue that Defendant Singh is entitled to summary judgment because his

18 actions were objectively reasonable under the circumstances, and he did not possess the requisite

19 mental state for deliberate indifference. ECF No. 84-1 at 18-21. Defendants rely extensively on

20 expert evidence opining, among things, that spinal epidural abscesses are extremely rare; Plaintiff

21 lacked the classic triad of symptoms of focal back pain, fever, and neurological deficit; it is not

22 uncommon for a delayed diagnosis of spinal epidural abscess; Plaintiff was younger than the

23 average age of onset; and Plaintiff failed to disclose his intravenous drug use. Defendants also

argue that Defendant Singh’s treatment shows that he acted reasonably according to Defendant

Singh’s own belief that Plaintiff suffered from a muscular-skeletal issue.

Plaintiff’s opposition argues that Defendant Singh should not have made any diagnosis of

Plaintiff’s condition because Defendant Singh was a nurse and not a doctor. Rather than argue

that Defendant Singh should have appropriately diagnosed and treated Plaintiff for a spinal

1 epidural abscess, Plaintiff argues that Defendant Singh (and Defendant Aflague, as discussed

2 below) should have referred Plaintiff on an emergency basis to a physician. After all, when

3 Plaintiff was seen for the first time by a doctor (Dr. Sao), the doctor immediately diagnosed him

4 as having signs and symptoms of an epidural abscess and facilitated Plaintiff’s care on an

emergency basis. Plaintiff argues that Singh’s improper diagnosis of a muscular-skeletal issue

was outside Defendant Singh’s professional role and ability. According to Plaintiff, making such

a diagnosis violated the California Nurses Practices Act, which sets the scope of practice for

nurses, and which does not include medical diagnosis. For example, nurses are tasked with the

following:

Observation of signs and symptoms of illness, reactions to treatment, general

10 behavior, or general physical condition, and (A) determination of whether the

signs, symptoms, reactions, behavior or general appearance exhibits abnormal

characteristics; and (B) implementation, based on observed abnormalities, of

appropriate reporting, or referral or standardized procedures, or changes in

treatment in accordance with standardized procedures, or the initiation of

13 emergency procedures.

ECF No. 88 at 17.7 Plaintiff argues that there are no standardized procedures for referring inmates

to doctors, and that Defendant Singh violated his responsibilities by failing to refer Plaintiff

immediately to a doctor.

Plaintiff also argues that Defendants’ expert opinions of Chitra Venkatasubramanian and

Susana Ramirez should be disregarded because Venkatasubramanian has never written or spoken

on the area of epidural abscess, and Ramirez is not a licensed nurse in California.

In reply, Defendants argue that Plaintiff may not raise a separate claim for violation of the

California Nursing Practices Act. Moreover, Defendants point to the Health Care Department

Operations Manual for standardized procedures and protocols. According to those procedures:

When inmates request health care services via written forms (also known as

23 CDCR 7362 Health Care Services Request Forms), RNs triage the forms and

“determine whether the patient requires urgency/emergency or routine care.” If

24 there is an urgent/emergency medical need, the RN must “immediately refer” such

needs to the appropriate clinician for evaluation. . . . If the Primary Care RN

25 determines that a physician referral is necessary, the following timeframes are

7 To the extent Plaintiff’s opposition attempts to assert an independent claim for violation of the California

27 Nursing Practices Act, the Court declines to do so. Plaintiff’s Second Amended Complaint did not assert

such a claim.

1 relevant: (1) Emergency – immediately; (2) Urgent – within twenty-four hours;

and (3) Routine—within fourteen calendar days.

ECF No. 93 at 5 (internal citations omitted). Defendants argue that Plaintiff “did not exhibit any

symptoms consistent with chest pain, aside from his subjective statements.” ECF No. 93 at 7.

Defendants then argue that “[d]espite the fact that Nurse Singh could not substantiate Plaintiff’s

subjective complaints of pain,” Defendant Singh notified a doctor of Plaintiff’s symptoms,

scheduled Plaintiff for a follow-up with another RN and an x-ray the next day, and sent an email

to staff about the next day’s appointment. Defendants argue that Defendant Singh’s actions were

8 consistent with applicable protocols.

9 As Plaintiff focuses on Defendant Singh’s failure to send Plaintiff to a physician, rather

10 than to accurately diagnose Plaintiff’s condition himself, the Court looks to the evidence

11 regarding when Defendant Singh was required to refer Plaintiff to a physician and compares that

12 with the evidence regarding what Defendant Singh learned during the medical evaluation of

13 Plaintiff.

14 According to Defendants’ own evidence regarding the procedures and protocols for

15 musculoskeletal complaints, RNs should “refer patient to physician on a STAT, Urgent, or

Routine basis,” if the following conditions are present:

- “Extremity pain or stiffness: If alteration in circulation or sensation, new

deformity or discoloration, or patient appears ill or has history of fever, chills,

headache, nausea, vomiting, or diarrhea.” ECF No. 93-2 at ECF p. 5.

- “Acute low back pain.” ECF No. 93-2 at ECF p. 6.

Moreover, in cases of chest pain, RNs should refer the patient to a physician in the

following situations:

- “Chest pain accompanied by lightheadedness, nausea, sweating, or shortness of breath;

pain spreading to shoulders, neck, arms, jaw; pain in back between shoulder blades;

uncomfortable pressure, or pain in the center of the chest lasting more than 15

minutes. Chest pain, associated with palpitations or arrhythmias, tachycardia or

26 bradycardia, or hypotension.” ECF No. 93-2 at ECF p. 10.

27 The Court next compares these procedures with the evidence regarding Plaintiff’s

1 symptoms at the time of consulting with Defendant Singh to determine if Plaintiff has presented

2 evidence that he presented with symptoms that warranted a referral to a physician at the time.

3 According to Defendant Singh’s declaration, on July 4, 2019, “Mr. Rodriguez complained

4 of pain in the right side of his chest and stated the area was tender to the touch and sore.” ECF

No. 84-4 at 2. Additionally, “Mr. Rodriguez stated that the pain started back around his

should[er] and neck after an altercation with another inmate, ‘I was in a headlock, after that my

back and kind of my neck area started hurting, now my right side chest hurts; when I touch it the

pain is there when I touch it, so I thought I [would] go see a doctor right now.’” Id. at 2-3. “Mr.

Rodriguez denied nausea, vomiting, fever, sweats, or night chills.” Id. at 3. Based on these and

other observations, Defendant Singh ordered a follow-up visit “for r[igh]t side chest pain (no[t]]

cardiac), muscle skeletal pain.” Id.

According to the medical progress note authored by Defendant Singh at the time:

- “I/p states in Chest pain in the right side of chest. I/p states pain 6/10 pain, area tender

to touch, soreness.” ECF No. 84-14 at ECF p. 29.

- “Enroute I/p remained stable with Complain of pain 6/10 to right Chest.” Id.

- “I/p states pain in right middle ‘my back is hurting me when I lay down and chest

16 when I press on it.’” Id. at ECF p. 30.

17 Moreover, Plaintiff gave the following testimony at his deposition:

18 - “I went man down to try to get medical attention.” ECF No. 88-6 at 83.

19 - “I told them there’s something going on with my neck, that I couldn’t feel my right

20 hand.” Id. at 85.

21 - “I told them the pain was getting so bad that it was hurting my chest.” Id.

22 - “Told them I was having unbearable pain, chest pain.” Id. at 87.

23 - “I told him, I go—I gave him the—basically what was going on with me,

everything—all the symptoms I was having, as far as not being able to feel my right

hand. It told him that the pain was getting so bad that it was starting to hurt my chest.

But I also told him, like that’s –although my chest is hurting, I know there’s

something going on over here.” Id.

- “I told them I was having bad pain in my neck and it was getting so bad it was hurting

1 my chest.” Id. at 88.

2 - “I told him I was in a lot of pain. I know that I told him I was like over a ten in pain,

3 and I know that if you look at the papers, he tried to put that I was a four or something

4 like that.” Id. at 93.

- “I told him it was months [since the pain started]. I told him I’ve been going through

this since May.” Id. at 94.

Construing all disputes of fact in favor of the non-moving party, the Court finds that a

reasonable jury could find based on this evidence that Defendant Singh was deliberately

indifferent to Plaintiff’s serious medical needs by not referring Plaintiff to a doctor. By

Defendants’ own documents, Defendant Singh was required to refer Plaintiff to a physician if (1)

he experienced extremity pain, along with alteration in sensation, or if (2) he experienced chest

pain accompanied by pain spreading to shoulders or neck, pain in back between shoulder blades,

or pain in the center of the chest lasting more than 15 minutes. The evidence cited above shows

that there is evidence that Defendant was aware that Plaintiff was experiencing extremity pain,

alteration in sensation in his hands, and chest pain spreading to his shoulders and neck, and yet

that Singh nevertheless failed to refer Plaintiff to a physician.

16 Indeed, Defendants appear to concede that Plaintiff complained of symptoms warranting

17 referral to a physician. Again, Defendants argue that Plaintiff “did not exhibit any symptoms

18 consistent with chest pain, aside from his subjective statements.” ECF No. 93 at 7 (emphasis

19 added). Thus, even Defendants appear to acknowledge that Plaintiff told Defendant Singh that he

20 was experiencing symptoms of chest pain that warranted referral to a physician. But there is no

21 evidence to support Defendants’ suggestion that Defendant Singh was permitted to ignore

22 Plaintiff’s subjective statements of his own symptoms. There is also nothing in the protocols and

23 procedures requiring a nurse to objectively verify chest pain, or any other pain, before referring

an inmate to a physician. Rather, when Plaintiff’s own description of his symptoms is considered,

there is sufficient evidence that Plaintiff was suffering symptoms that warranted a physician

referral.

Defendants’ motion for summary judgment also repeatedly mentions that Defendant

Singh consulted with a doctor, who apparently informed him that Plaintiff only needed ibuprofen

1 and a follow-up with another nurse. However, discussing Plaintiff’s situation with a doctor is not

2 the same as referring Plaintiff to see a doctor. Indeed, Defendants’ own protocols, cited above,

3 concern when a nurse should refer someone to see a physician—not when a nurse should consult

4 with a physician. Moreover, Defendants do not present any evidence as to what Defendant Singh

told the doctor, such as whether Defendant Singh told the doctor that Plaintiff was experiencing

extreme pain, numbness in his hands, chest pain combined with shoulder pain, or other

indications that Plaintiff was experiencing an emergent situation. Thus, while Defendant Singh’s

decision to talk to a doctor might be relevant to a jury’s assessment of Defendant Singh’s state of

mind, it alone does not warrant summary judgment on behalf of Defendant Singh.

Defendants also ask the Court to completely disregard Plaintiff’s deposition testimony

because it is self-serving. ECF No. 93 at 8. However, as even Defendants concede, a Court may

only disregard self-serving testimony where “it states only conclusions and not facts that would

be admissible evidence.” Id. at 9, citing Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 2017).

Plaintiff’s deposition testimony, given under oath, is not conclusory. It is admissible evidence

concerning what Plaintiff felt, observed, and told Defendant Singh. The Court cannot disregard

such testimony solely because it supports Plaintiff’s case.

16 Defendants also repeatedly suggest that Defendant Singh’s conduct was reasonable

17 because Plaintiff failed to disclose his intravenous drug use. ECF No. 84-1 at 18. However, there

18 is nothing in the practices and protocols above that refer to the reason for an inmates’ symptoms

19 or warrant declining to refer an inmate to a physician if the inmate’s description of how he was

20 injured changes. Again, Plaintiff’s claim against Defendant Singh is based on a failure to refer

21 Plaintiff to a physician—not that Singh failed to diagnose the ultimate cause of the symptoms.

22 Moreover, there is nothing in Defendant Singh’s own declaration that suggests that Defendant

23 Singh’s decision was based on Plaintiff’s account of how he was injured, or that Defendant Singh

would have made a different decision if he was aware of Plaintiff’s drug use. Thus, no evidence

supports Defendants’ argument that Singh is entitled to summary judgment on the ground that

Plaintiff failed to disclosure his intravenous drug use or presented differing accounts of how his

symptoms started.

Defendants also argue that there is no evidence of deliberate indifference because

1 Defendant Singh performed many medical tests and referred Plaintiff to an appointment with

2 another nurse the following day. However, those actions do not change the fact that Defendant

3 Singh failed to refer Plaintiff to a physician. Indeed, Defendant Singh’s own tests and decisions

4 based on those tests support Plaintiff’s argument that Defendant Singh was improperly, and

inaccurately, trying to diagnose Plaintiff’s illness himself rather than sending Plaintiff to a doctor.

Additionally, Plaintiff has presented some evidence that Defendant Singh purposefully

disregarded Plaintiff’s symptoms, including by repeatedly recording Plaintiff’s pain as a 6/10

despite Plaintiff’s own account of telling Defendant Singh he was in extreme pain. Further,

Plaintiff has submitted his own testimony that Defendant Singh did not take his condition

seriously because, “it was the Fourth of July, and you could tell he’s wanting me to get out of

there, like he was smirking.” ECF No. 88-6 at 104.

Accordingly, the Court recommends denying summary judgment as to Plaintiff’s claim of

deliberate indifference to serious medical needs against Defendant Singh because, construing

disputes of fact in favor of the Plaintiff, a reasonable jury could find that Defendant Singh was

deliberately indifferent to Plaintiff’s serious medical needs by failing to refer Plaintiff to a

physician.

16 D. Defendant Aflague

17 As with Defendant Singh, Defendants argue that Defendant Aflague was not deliberately

18 indifferent because his actions were objectively reasonable under the circumstances, and he did

19 not possess the requisite mental state for deliberate indifference. ECF No. 84-1 at 21-24.

20 Defendants again rely heavily on their expert evidence regarding the rarity of epidural abscesses,

21 Plaintiff’s lack of presenting with the “classic triad of symptoms,” and Plaintiff’s failure to

22 disclose his intravenous drug use. Id. at 21-22. Defendants argue that Plaintiff presented no signs

23 or symptoms suggesting to Defendant Aflague that he was suffering from an epidural abscess or

other infection, and it was therefore appropriate to routinely refer him for what he thought was

musculoskeletal in nature.

Plaintiff’s Opposition argues that, despite knowing of Plaintiff’s serious complaints of

pain, Defendant Aflague provided no treatment and unilaterally decided to refer Plaintiff to a

doctor within 14 days. As with Defendant Singh, Plaintiff further argues that Defendant Aflague

1 improperly diagnosed his condition in violation of the California Nursing Practices Act, and that

2 there were no standardized procedures mandating the circumstances under which a referral to a

3 physician would be made. Further, Plaintiff states that Defendant Aflague’s testimony makes it

4 clear that “it is within a nurse’s total discretion as to when an inmate is to be referred.” ECF No.

88 at 18.

In reply, Defendants argue that Plaintiff cannot bring a claim under the California Nursing

Practices Act for the first time in his Opposition. They further argue that “Defendant Aflague’s

own examination of Plaintiff revealed no objectively-verifiable symptoms that, consistent with

the RN protocols, required an immediate referral to a doctor.” ECF No. 93 at 10.

Thus, as it did for Defendant Singh, the Court again looks to the evidence presented by the

parties regarding when Defendant Aflague was supposed to send Plaintiff to a physician on an

emergency basis and compares that with the evidence regarding what Defendant Aflague learned

during his medical examination of Plaintiff.

According to Defendants’ submitted evidence regarding the procedures and protocols for

musculoskeletal complaints, RNs should refer patient to a physician if the following conditions

are present:

16 - “Extremity pain or stiffness: If alteration in circulation or sensation, new

17 deformity or discoloration, or patient appears ill or has history of fever, chills,

18 headache, nausea, vomiting, or diarrhea, notify physician STAT.” ECF No. 93-

19 2 at ECF p. 5.

20 - “Acute low back pain: Refer patient to physician on a STAT, Urgent, or

21 Routine basis as appropriate.” ECF No. 93-2 at ECF p. 6.

22 The Court next compares these procedures with the evidence regarding Plaintiff’s

23 symptoms at the time he was examined by Defendant Aflague to determine if Plaintiff has

produced evidence that he presented with these symptoms.

Defendant Aflague’s declaration describes the following symptoms and observations of

Plaintiff during their encounter:

- Mr. Rodriguez stated that pain radiated down the back of his neck to his upper

back and that he had numbness, tingling, and weakness to his right upper

1 extremity and weakness gripping with his right hand;

2 - During physical examination, I noted that Mr. Rodriguez had difficulty with

3 his range of motion turning his head to the right side and tilting his head

4 forward and backward, but appreciated no weakness with his right hand and

noted that he had equal strength to his bilateral upper extremities;

- Mr. Rodriguez complained of no issues to his lower extremities and I noted

that he ambulated with a steady gait

- Mr. Rodriguez denied any cough, fever, chest pain, shortness of breath, nausea,

vomiting, diarrhea, or constipation;

- Mr. Rodriguez was without fever and his temperature was 96.7 degrees

Fahrenheit;

ECF No. 84-5 at 2-3 (internal citations omitted). Additionally, Defendant Aflague’s progress note

in the medical record further stated:

- “IP stated 9/10 to upper back, and neck pain.” ECF No. 84-14 at ECF p. 28.

- “IP has difficulty with range of motion in turning his head to the right side. Tilting his

head forward, and especially backward. He stated that pain radiates down the back of

16 his neck to his upper back. He also stated numbness, tingling, and weakness to his

17 upper right extremity. Stating weakness with gripping on his right hand. No weakness

18 was noted during my examination. He had equal strength to his bilateral upper

19 extremities . . . He was informed though that nerves can cause the symptoms of

20 numbness, tingling, and weakness to radiate down his right arm. However, he will

21 require further evaluation to determine treatment by the physician.” Id. at ECF pp. 28-

22 29.

23 Defendant Aflague also testified during his deposition (ECF No. 88-9) follows:

- Plaintiff “had pain to his upper back and neck pain that was 9 out of 10, and that he

had radiating pain.” Id. at 50.

- “[Plaintiff] stated that he had a physical injury which resulted in his neck pain and

upper back pain. And then now, he was also stating to me that he had numbness and

tingling coming down into his right arm.” Id.

1 - “When he stated nine out of ten, I thought that he was in a lot of pain, yes.” Id. at 51-

2 52.

3 Furthermore, Plaintiff testified during his deposition that he told Defendant Aflague the

4 following:

- “I had told them – I seen them and I have them the rundown – well, I told them

everything that had happened to me and why I was there, and that I was having really,

really bad pain and it got worse after I had altercation and I couldn’t feel my right

hand. It was – they told me it was a pinched nerve and sent me home.” ECF No. 88-6

at 107.

- “I told them that this started in May – like it had been a couple months, a few months

that I was experiencing this. And I told them how it was getting worse and how they

were just delaying, like kept giving medical appointments and they weren’t doing

nothing for me but giving me ibuprofen.” Id. at 108.

- “I told [Defendant Aflague] that [the neck pain] started getting worse.” Id.

Construing all disputes of fact in favor of the non-moving party, a reasonable jury could

find that Defendant Aflague was aware of symptoms that warranted referring Plaintiff to a doctor

16 on an emergency basis. Again, according to relevant protocols, Defendant Aflague was supposed

17 to refer Plaintiff to a physician on an emergency basis if Plaintiff had signs of “[e]xtremity pain or

18 stiffness,” including “alteration in circulation or sensation, new deformity or discoloration, or

19 patient appears ill or has history of fever, chills, headache, nausea, vomiting, or diarrhea.” ECF

20 No. 93-2 at ECF p. 5 (“notify physician STAT”). Here, Plaintiff has presented evidence that he

21 showed symptoms of extreme pain in his back and upper neck, numbness, tingling, and weakness

22 to his right upper extremity and weakness gripping with his right hand, which would indicate

23 alteration in sensation. Thus, construing disputed facts in favor of Plaintiff, Defendant Aflague

was required to refer Plaintiff to a doctor on an emergency basis yet failed to do so.

As they did with Defendant Singh, Defendants argue that Defendant Aflague also lacked

the requisite mental state required for deliberate indifference because he went above and beyond

by testing Plaintiff’s grip strength, educating him about cervical strains, and conducting a

“thorough physical examination.” ECF No. 84-1 at 23. But again, Plaintiff’s complaint is that

1 Defendant Aflague failed to refer him to a physician on a more urgent basis. While Defendant

2 Aflague’s various testing may be relevant to a jury determining his state of mind, it does not

3 alleviate Defendant’s Aflague’s requirement to refer Plaintiff to a doctor more urgently. Indeed,

4 Defendant Aflague’s decision to do testing and provide Plaintiff wish his assessment of Plaintiff’s

symptoms suggests that Defendant Aflague improperly attempted to diagnose Plaintiff’s

condition himself, rather than assess whether Plaintiff had symptoms that warranted an urgent

referral to a doctor.

As they did regarding Defendant Singh, Defendants also argue that Plaintiff gave contrary

accounts of how he was injured and did not disclose his intravenous drug use to Aflague.

However, again, the protocols for referral to a physician say nothing about the cause of the

supposed injury, or permit nurses to withhold a referral to a physician based on differing accounts

of the injury. Plaintiff’s failure to disclose his drug use does not alter the symptoms he presented

to Aflague or whether those symptoms warrant an urgent physician referral.

Accordingly, the Court recommends denying summary judgment as to Defendant Aflague

because, construing disputes of fact in favor of the Plaintiff, the non-moving party, a reasonable

jury could find that Defendant Aflague was deliberately indifferent to Plaintiff’s serious medical

16 needs by failing to refer Plaintiff to a physician on an urgent basis.

17 E. Qualified Immunity

18 Finally, Defendants argue that they are entitled to qualified immunity because “[g]iven the

19 extreme rarity of spinal epidural abscesses and the tremendous difficulty in diagnosing the same,

20 coupled with Rodriguez’s symptoms, or lack thereof (e.g., fever), and report of onset following

21 working out or being placed in a headlock, it would not have been clear to a reasonable medical

22 provider that Rodriguez was suffering from a spinal epidural abscess.” ECF No. 84-1 at 29.

23 However, Plaintiff’s claim is not that Defendants failed to diagnose him with an epidural abscess.

Rather, Plaintiff claims that they were required to refer him to a doctor for further diagnosis and

treatment, or, in Defendant Aflague’s case, to refer him more urgently. Defendants make no

argument that their decision to diagnose Plaintiff themselves, and fail to refer Plaintiff to a

physician on an urgent basis, was entitled to qualified immunity. And it is well-settled that

delaying an inmate’s access to medical care may constitute deliberate indifference to serious

1 medical needs. See, e.g., Estelle, 429 U.S. at 104–05 (“We therefore conclude that deliberate

2 indifference to serious medical needs of prisoners constitutes the “unnecessary and wanton

3 infliction of pain,” proscribed by the Eighth Amendment. This is true whether the indifference is

4 manifested by prison doctors in their response to the prisoner’s needs or by prison guards in

intentionally denying or delaying access to medical care or intentionally interfering with the

treatment once prescribed.”) (internal citations and footnotes omitted, emphasis added); Clement

v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002) (the law was clearly established that officers cannot

intentionally deny or delay access to medical care); Hunt v. Dental Dept., 865 F.2d 198, 200-01

(9th Cir. 1989) (plaintiff alleged sufficient facts from which it could reasonably be concluded that

prison officials knew of dental condition but denied request for prompt treatment).

Accordingly, the Court recommends denying summary judgment on this basis as well.

V. CONCLUSION AND RECOMMENDATIONS

Based on the foregoing, IT IS RECOMMENDED that:

1. Defendants’ motion for summary judgment (ECF No. 84) be granted, in part, and denied,

in part, as follows:

a. Defendants be GRANTED summary judgment as to Plaintiff’s deliberate

16 indifference claim against Defendant Vitto.

17 b. Defendants be DENIED summary judgment as to Plaintiff’s deliberate

18 indifference claims against Defendants Singh and Aflague.

19 2. The case proceed only on Plaintiff’s claim that Defendants Singh and Aflague were

20 deliberately indifferent to Plaintiff’s serious medical needs.

21 These findings and recommendations are submitted to the United States District Judge

22 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30)

23 days after being served with these findings and recommendations, any party may file written

objections with the Court. Such a document should be captioned “Objections to Magistrate

Judge’s Findings and Recommendations.” The objections shall not exceed more than fifteen (15)

pages, including exhibits. Any reply to the objections shall be served and filed within thirty (30)

days after service of the objections.

\\\

1 The parties are advised that failure to file objections within the specified time may result

2 | in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

3 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

; IT IS SO ORDERED.

6 | Dated: _ October 11, 2024 [spe ey

7 UNITED STATES MAGISTRATE JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.