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Rivers v. Roszko

August 26, 2008

DAVID C. RIVERS, PLAINTIFF,
v.
E. ROSZKO, ET AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

Plaintiff is a prisoner without counsel suing for alleged civil rights violations. See 42 U.S.C. § 1983. Currently pending before the court is defendants' motion for summary judgment.

This action proceeds on the November 29, 2004, complaint in which plaintiff claims the following: (1) defendants E. Roszko and Sgt. Lees were deliberately indifferent to plaintiff's serious medical needs by permitting his transfer from to Avenal State Prison ("ASP") even though a physician recommended that he not be transferred until after a physical examination based on plaintiff's complaints of chest pain, Complaint ("Compl."), at 5; and, (2) following the transfer, defendants H. Smith, Douglass, Cain and D. Smith "refused to continue plaintiff's treatment which had been alleviating plaintiff's symptoms," resulting in a deterioration of plaintiff's health." Compl., at 6. For the reasons explained below, the court finds that there is no genuine issue for trial.

I. Facts

At all times relevant to this action, plaintiff was a prisoner confined at the California Medical Facility ("CMF") and ASP. Defendant Roszko worked at CMF, and was a member of a Unit Classification Committee*fn1 that recommended plaintiff be transferred to a different prison. Defs.' Stmt. of Undisp. Facts ("SUF"), 3. Defendant Lees was a sergeant at CMF. Compl., at 5. Defendants Doctors Cain, Douglass, D. Smith and H. Smith were physicians at ASP.

Plaintiff suffers from a number of medical problems. Thus, on May 15, 2002, a physician found that he was "permanently mobility impaired" in the lower extremities and designated him "disability placement mobility" ("DPM") designation, meaning that he could not walk "100 yards or up a flight of stairs without pausing with the use of aids (crutches, prosthesis, or walker." SUF 1. The record is not clear about where plaintiff was confined at this time.

The record is clear, however, that on July 19, 2002, plaintiff was confined at CMF. SUF 2. Plaintiff has submitted evidence that he complained of dental problems*fn2 on December 18, 2002. Pl.'s Opp'n, Ex. A, unnumbered page 15. A dentist determined that plaintiff had decay and abscesses, prescribed Penicillin and Motrin, and recommended extractions after plaintiff was cleared for it by a cardiologist. Pl.'s Opp'n, Ex. A, unnumbered page 15. Again on February 18, 2003, a physician found that because of poor dentation, plaintiff should have a full liquid diet for six months. Pl.'s Opp'n, Ex. A, unnumbered page 11. A dietician wrote a note on the bottom requesting that the physician refer plaintiff for dental work because dietary modifications were only a temporary solution for a dental problem. Id. The dietician recommended the diet be continued for one month until plaintiff could see a dentist. Id. The six month recommendation was crossed out, and a duration of one month was written in. Id. On April 4, 2003, a dentist noted that plaintiff still was waiting for a cardiologist to examine plaintiff and determine whether plaintiff was strong enough. Pl.'s Opp'n, Ex. A, unnumbered page 15. The dentist ordered a full liquid diet. Id.

On May 21, 2003, a classification committee hearing was held at CMF. SUF 3. Defendant Roszko was a member of this committee. SUF 3. Defendants have submitted a written record of the hearing showing that plaintiff attended. SUF 3. At deposition, however, plaintiff testified that he did not attend. Pl.'s Dep., at 38:5-8. Plaintiff's evidence shows that he was given written notice of the hearing. Pl.'s Opp'n, Ex. H, unnumbered page 12. At this hearing, the committee confirmed plaintiff's DPM designation and told him that pursuant to a March 4, 2003, memorandum addressing the disability placement changes, CMF no longer would house Level II prisoners with mobility impairments. SUF 3. The committee explained that because of his DPM designation, CMF could not accommodate him as required under federal and state law. SUF 3. Thus, plaintiff would be transferred either to ASP or to the Substance Abuse Treatment Facility at California State Prison, Corcoran in order to ensure his placement in a prison with housing and programs which were accessible to him. Id. The committee referred the transfer to a Classification Staff Representative for review and approval. Id. At deposition, plaintiff testified that in May of 2003, after the classification hearing, Roszko gave plaintiff a paper notifying him that his classification points had decreased.*fn3 Pl.'s Dep., at 24:3-4.

Plaintiff has submitted a May 28, 2003, document showing that Dr. Steever and the Chief Medical Officer at CMF noted that plaintiff: previously had extensive fractures of his lower extremities, back and pelfis. He has been left with disabilities, though he is ambulatory. Also, in December 2000, he had severe head injuries and he is left with neurologic sequelae, has near syncopal spells, has unsteady gait, and has some cognitive loss. He was also left with chronic back and neck pain.

He should continue to be housed in a lower bunk. He may obtain a bed board, cane, and elastic pull-on ankle brace for the right ankle, a Velcro closure lumbosacral back brace, and a cervical pillow.

In the event of demand for lower bunks exceeding the supply at this institution, the above-mentioned disabilities should be taken into account should transfer to another prison be contemplated.

Pl.'s Opp'n, Ex. H, unnumbered page 2. Amongst plaintiff's medical needs were a bed board, a cane, dental care, physical therapy and a liquid diet. Pl.'s Dep., at 38:24-25 through 39:1-4. He was on medication for a heart condition and suffered dizziness as a result of other prisoners having attacked him. Id., at 38:24-25 through 39:1-4. Plaintiff testified that Roszko knew of his medical conditions because he saw some of his medical records on her desk and because Roszko commented that he had a number of medical problems. Id., at 39:10-14.

On June 16, 2003, G. Munoz, a Classification Staff Representative, approved plaintiff's transfer to ASP. SUF 4. At deposition, plaintiff testified that in June of 2003, Rozsko gave plaintiff a paper notifying him of the transfer. Pl.'s Dep., at 24: 4-7. Rozsko told plaintiff that the transfer was not her decision. Id., at 28:14-18.

On June 27, 2003, plaintiff saw a cardiologist at CMF. Pl.'s Opp'n, Ex. E, unnumbered page 1. The cardiologist noted that plaintiff had a history of heart attack, stroke, chronic back pain, coronary stents, head trauma and plorygium in his left eye. Id. He examined plaintiff and recommended that plaintiff undergo an EKG, ETT, CRR, echocardiogram, neurological evaluation and follow up with cardiology in four weeks. Id. The cardiologist noted that plaintiff was "cleared for dental work." Id.

On July 8, 2003, a physician and the Chief Medical Officer at CMF signed a document directing that plaintiff's transfer be delayed "pending current evaluation by the cardiologist for the patient's chest pain, which is occurring daily. . . . He should be held from possible transfer through at least October 15, 2003." Pl.'s Opp'n, Ex. E, unnumbered page 3. A notation on the document suggests that copies of it were placed in plaintiff's medical and central files. Id. On the bottom of this document is the handwritten notation:

This chrono*fn4 was sent to me last week from CMF, it is dated 7-8-03 thru 10-15-03, therefore this chrono is good and in conformance with Plata v. Davis. C-01-1351 T.E.H. medical chronos remain in effect after transfer. I was tranferred illegally and CMF provided me with this chrono which I should have had prior to being moved and sent it via U.S. mail system to me at Avenal State Prison.

Id. At deposition, plaintiff testified that he showed Rozsko a document stating that he must not be transferred because of his medical condition. Pl.'s Dep., at 26:9-11, 18-21, and 27:1-6. In early July 2003, plaintiff met with defendant Lees, and Lees told plaintiff that he would be transferred to ASP. SUF 12-13. Plaintiff also testified at deposition that about one day before the transfer, plaintiff returned to Rozsko with an order not to transfer him because of his medical conditions and stating that he must undergo a thorough examination before a transfer. Pl.'s Dep., at 29:3-4, 30:11-15, 20-23. According to plaintiff Rozsko, however, refused to look at the paperwork. Id., at 30:7-8 and 32:11-15. Plaintiff conceded at deposition that he was not sure whether the papers he showed her the second time were the same as those he showed her the first time. Id., at 30:16-19.

On June 25, 2003, plaintiff filed a grievance alleging that his daughter had purchased a subscription to a magazine for plaintiff, but he had received only one issue. Pl.'s Opp'n, Ex. F, unnumbered page 5; SUF 5. He believed that defendant Lees and other officers were interfering with the delivery of his mail, but that Lees primarily was responsible. Pl.'s Opp'n, Ex. F, unnumbered page 5, 10; Pl.'s Dep., at 41:13-18. A day or two before the transfer, defendant Lees called plaintiff to his office, told plaintiff he was being transferred, and "chewed [him] out and swore at [him]." Pl.'s Dep., at 41, 42:12-13. This was the only time plaintiff ever spoke with defendant Lees. Id., at 41:2, 5-10. No one was present other than plaintiff and Lees. Id., at 42:20-22.

On July 2, 2003, an appeals coordinator responded that she had contacted the publisher, and the magazine had been sent to the wrong address. Id. She also stated that the publisher had the correct address and would extend the expiration date by three months in order to make up for plaintiff's loss. Id. At deposition, plaintiff conceded that Roszko could not have recommended plaintiff's transfer in retaliation for filing grievances about the magazines. SUF 7. He also conceded that he has no evidence to support his allegation that defendant Lees knew about the grievance he filed about the missing magazines. SUF 8. Lees never stated that he intended to retaliate against plaintiff. SUF 10. Plaintiff did not obtain information from any source that would suggest Lees had a retaliatory motive. SUF 11. Plaintiff concedes that he does not know whether Lees ordered that he be transferred to ASP. SUF 14.

In July 2003, plaintiff complained of chest pain. SUF 17. He underwent a chest x-ray, the results of which showed "no acute cardiopulmonary disease." Id. Six days later, he underwent an echocardiogram. SUF 18. On July 8, 2003, plaintiff was examined by Dr. Shellcroft, who is not a defendant. Dr. Shellcroft prescribed a 90-day course of Vioxx. SUF 19; Pl.'s Opp'n, Ex. E, unnumbered page 11. Dr Shellcroft also wrote, "fill out new 1845 change to DNM from DPM." Id. On July 10, ...


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