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Card v. Carey

August 12, 2008

JOHN CARD, PLAINTIFF,
v.
TOM L. CAREY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER AND FINDINGS & RECOMMENDATIONS

I. Introduction

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the amended complaint filed October 26, 2006. Plaintiff alleges that he received inadequate medical care for his knee injuries.

Pending before the court is plaintiff's motion to compel filed November 26, 2007, and defendants' summary judgment motion filed February 21, 2008. The motion is made on behalf of defendants Grannis, Kofoed, Low, Obedoza, Rallos, Tan, Thor and Traquina. On February 27, 2008, defendant Nunez was dismissed.

After carefully reviewing the record, the court orders plaintiff's motion to compel denied and recommends that defendants' summary judgment motion be granted in part and denied in part.

II. Motion to Compel

Plaintiff first contends that in response to his requests for production of documents, defendants Traquina, Rallos and Tan stated that they would provide him with duty statements but failed to do so. In defendants' December 17, 2007, opposition, they state that the failure to provide the duty statements was an oversight by defense counsel. Defendants state that the duty statements have been mailed to plaintiff. Accordingly, the court finds this portion of the motion to compel resolved.

Plaintiff contends that defendants Traquina, Rallos and Tan refused to provide any of the documents requested in his request for production of documents. Plaintiff states that defendants' main reason for refusing to provide the documents was that they did not have them in their possession, custody or control. Plaintiff argues that defendants as medical doctors at California State Prison-Solano have access to all medical records.

Plaintiff does not identify any specific requests for production of documents to which defendants objected that the documents sought were not in their possession, custody or control. The court has reviewed the requests for production of documents attached to the motion to compel. Defendants did not object to every request on the ground that the documents sought were not in their possession, custody or control. In addition, some responses to these requests to which this objection was made contained other objections.

Because plaintiff has failed to identify the specific requests he seeks to compel responses to the court finds that this portion of the motion to compel is not well supported.

Plaintiff contends that in response to his request for production of documents, defendants Thor and Low, with little exception, responded that they were not presently employed by the California Department of Corrections and Rehabilitation (CDCR). Plaintiff contends that in responses to interrogatories, defendant Thor stated that he works at Salinas Valley State Prison, California State Prison-Corcoran and Pelican Bay State Prison. Defendant Low stated that he works at three other prisons. Plaintiff argues that nothing would prevent defendants from obtaining the requested documents.

Attached as an exhibit to the motion to compel are defendants' responses to plaintiff's interrogatories. Defendants Thor and Low state that they are no longer employed by CDCR but that they used to work at several different prisons. Defendants' ability to obtain CDCR records is curtailed by the fact that they no longer work for CDCR. In any event, because plaintiff again fails to identify any specific requests which he seeks to compel further responses to, the court finds that this portion of the motion to compel is not well supported.

Plaintiff states that in response to his request for production of documents, defendant Kofoed objected that he was no longer employed by CDCR. Plaintiff claims that in responses to interrogatories, defendant Kofoed indicates that he is still employed by CDCR. Attached to the motion to compel are defendant Kofoed's responses to interrogatories. In responses to these interrogatories, it is not entirely clear that defendant Kofoed no longer works for CDCR. However, plaintiff again fails to specifically identify any at-issue requests for production of documents. Accordingly, the court finds that this portion of the motion to compel is not well supported.

Plaintiff next argues that in response to his request for production of documents, defendant Obedoza stated that he is not presently employed by CDCR. Plaintiff argues that defendant Obedoza did not contact him to obtain permission to access his medical files or other documents. The court does not understand plaintiff's argument. In any event, plaintiff does not identify any specific at-issue requests for production of documents. Accordingly, this portion of the motion to compel is not well supported.

Finally, plaintiff argues that in response to his request for production of documents defendant Grannis repeatedly stated that the documents sought were not within her possession, custody or control. Plaintiff argues that defendant Grannis failed to explain how she attempted to obtain the requested records. Plaintiff has failed to identify any specific at-issue requests for production. Accordingly, this portion of the motion to compel is not well supported.

For the reasons discussed above, plaintiff's motion to compel is denied in its entirety. The court observes that in their opposition, defendants state that in the spirit of cooperation, they sent plaintiff copies of his medical records. Therefore, to the extent plaintiff sought copies of his medical records in the pending motion, the motion to compel is resolved.

III. Summary Judgment Motion

A. Summary Judgment Standards Under Fed. R. Civ. P. 56

Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

Under summary judgment practice, the moving party always 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, 106 S.Ct. 2548, 2553 (1986) (quoting Fed. R. Civ. P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322, 106 S.Ct. at 2552. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323, 106 S.Ct. at 2553.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11, 106 S.Ct. at 1356 n. 11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (citation omitted).

On February 8, 2007, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).

B. Legal Standard for Eighth Amendment Claim

In order to state a § 1983 claim for violation of the Eighth Amendment based on inadequate medical care, plaintiff must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292 (1976). To prevail, plaintiff must show both that his medical needs were objectively serious, and that defendants possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 299, 111 S.Ct. 2321, 2324 (1991); McKinney v. Anderson, 959 F.2d 853 (9th Cir. 1992) (on remand). The requisite state of mind for a medical claim is "deliberate indifference." Hudson v. McMillian, 503 U.S. 1, 4, 112 S.Ct. 995, 998 (1992).

A serious medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain. Indications that a prisoner has a serious need for medical treatment are the following: the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain. See, e.g., Wood v. Housewright, 900 F. 2d 1332, 1337-41 (9th Cir. 1990) (citing cases); Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th Cir. 1989). McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds, WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

In Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970 (1994) the Supreme Court defined a very strict standard which a plaintiff must meet in order to establish "deliberate indifference." Of course, negligence is insufficient. Farmer, 511 U.S. at 835, 114 S.Ct. at 1978. However, even civil recklessness (failure to act in the face of an unjustifiably high risk of harm which is so obvious that it should be known) is insufficient. Id. at 836-37, 114 S.Ct. at 1979. Neither is it sufficient that a reasonable person would have known of the risk or that a defendant should have known of the risk. Id. at 842, 114 S.Ct. at 1981.

It is nothing less than recklessness in the criminal sense -- subjective standard -- disregard of a risk of harm of which the actor is actually aware. Id. at 838-842, 114 S.Ct. at 1979-1981. "[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837, 114 S.Ct. at 1979. Thus, a defendant is liable if he knows that plaintiff faces "a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Id. at 847, 114 S.Ct. at 1984. "[I]t is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." Id. at 842, 114 S.Ct. at 1981. If the risk was obvious, the trier of fact may infer that a defendant knew of the risk. Id. at 840-42, 114 S.Ct. at 1981. However, obviousness per se will not impart knowledge as a matter of law.

Also significant to the analysis is the well established principle that mere differences of opinion concerning the appropriate treatment cannot be the basis of an Eighth Amendment violation. Jackson v. McIntosh, 90 F.3d 330 (9th Cir. 1996); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).

Moreover, a physician need not fail to treat an inmate altogether in order to violate that inmate's Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition, even if some treatment is prescribed, may constitute deliberate indifference in a particular case. Id.

Additionally, mere delay in medical treatment without more is insufficient to state a claim of deliberate medical indifference. Shapley v. Nevada Bd. of State Prison Com'rs, 766 F.2d 404, 408 (9th Cir. 1985). Although the delay in medical treatment must be harmful, there is no requirement that the delay cause "substantial" harm. McGuckin, 974 F.2d at 1060, citing Wood v. Housewright, 900 F.2d 1332, 1339-1340 (9th Cir. 1990) and Hudson, 112 S.Ct. at 998-1000. A finding that an inmate was seriously harmed by the defendant's action or inaction tends to provide additional support for a claim of deliberate indifference; however, it does not end the inquiry. McGuckin, 974 F.2d 1050, 1060 (9th Cir. 1992). In summary, "the more serious the medical needs of the prisoner, and the more unwarranted the defendant's actions in light of those needs, the more likely it is that a plaintiff has established deliberate indifference on the part of the defendant." McGuckin, 974 F.2d at 1061.

Superimposed on these Eighth Amendment standards is the fact that in cases involving complex medical issues where plaintiff contests the type of treatment he received, expert opinion will almost always be necessary to establish the necessary level of deliberate indifference. Hutchinson v. United States, 838 F.2d 390 (9th Cir. 1988). Thus, although there may be subsidiary issues of fact in dispute, unless plaintiff can provide expert evidence that the treatment he received equated with deliberate indifference thereby creating a material issue of fact, summary judgment should be entered for defendants. The dispositive question on this summary judgment motion is ultimately not what was the most appropriate course of treatment for plaintiff, but whether the failure to timely give a certain type of treatment was, in essence, criminally reckless.

C. Undisputed Facts

Defendant Grannis is the Chief of the Inmate Appeals Branch for the California Department of Corrections and Rehabilitation. Defendant Grannis is responsible for investigating and responding to administrative appeals at the Director's Level of Review.

At all relevant times, defendant Kofoed was a physician under contract in the Orthopedic Department at California State Prison-Solano. Defendant Kofoed also worked as an orthopedic consultant at the California Medical Facility. Defendant Kofoed is no longer employed by the California Department of Corrections and Rehabilitation.

Defendant Low worked as a physician and surgeon at CSP-Solano from July 1, 1998, to August 1, 2002, and from December 1, 2006, to June 14, 2007. His duties included evaluating, diagnosing and prescribing medications and treatments in a primary care setting.

Defendant Obedoza worked as a physician and surgeon at CSP-Solano from July 1, 1998, to August 1, 2003. His duties included evaluating, diagnosing and prescribing medications and treatments in a primary care setting.

Defendant Rallos has been employed as a physician at CSP-Solano since June 2003. His duties included evaluating, diagnosing and prescribing medications and treatments in a primary care setting.

Defendant Tan has been employed at CSP-Solano as a physician and surgeon since July 2003. His duties included evaluating, diagnosing and prescribing medications and treatments in a primary care setting.

Defendant Thor was the Chief Physician and Surgeon at CSP-Solano from September 2002 to April 2006. He retired from CDCR in April 2006.

Defendant Traquina has been the Chief Medical Officer at CSP-Solano since March 2002.

On November 13, 1998, defendant Obedoza evaluated plaintiff concerning bilateral knee arthritis. Obedoza declaration, ¶ 5. Defendant Obedoza assessed plaintiff's condition to be degenerative joint disease in his knees. Id. On September 25, 2000, a doctor who is not a defendant submitted a request for an orthopedic consultation for plaintiff for further evaluation of his knees. Id., Exhibit A, p. 970.

On December 9, 2000, defendant Kofoed, an orthopedic consultant, examined plaintiff. Id., Exhibit A, p. 970. Defendant Kofoed determined that plaintiff had degenerative joint disease of the knees and lateral meniscus tear of the right knee. Id. Plaintiff stated he did not want surgery. Id. Defendant Kofoed ordered knee braces and that plaintiff's knees should be observed. Id.

On December 12, 2001, defendant Obedoza examined plaintiff concerning his complaint of right knee pain. Id., ¶ 8. Defendant Obedoza ordered an orthopedic consult with defendant Kofoed. Id. Defendant Obedoza also issued plaintiff medical chronos for crutches for 60 days and a 10 day lay in. Id. Defendant Obedoza also ordered pain medication, a knee sleeve and instructions for plaintiff to follow-up with him in 10 days. Id.

On January 12, 2002, defendant Kofoed examined plaintiff. Id., Exhibit A, pp. 464, 599. Defendant Kofoed ordered a general surgery consultation to evaluate soft tissue swelling, a right ...


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