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Portillo v. Khatri

January 13, 2009

JUAN A. PORTILLO, CDCR #H-80425, PLAINTIFF,
v.
DAVE S. KHATRI, M.D.; SUNIL WALIA, M.D., DEFENDANTS.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER: 1) DENYING PLAINTIFF'S [Doc. No. 37]; AND MOTION TO FILE SUR-REPLY 2) GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT PURSUANT TO FED.R.CIV.P. 56(c) [Doc. No. 22]

I. PROCEDURAL BACKGROUND

Juan A. Portillo ("Plaintiff"), a state prisoner currently incarcerated at Centinela State Prison ("CEN"), proceeding pro se and in forma pauperis, has filed this civil rights action pursuant to 42 U.S.C. § 1983. In his Complaint, Plaintiff claims Dave Khatri, M.D., CEN's Chief Medical Officer, and Sunil Walia, M.D., a CEN doctor, denied him adequate medical care for his kidney stones in violation of the Eighth Amendment's Cruel and Unusual Punishments Clause. (Compl. at 2-7.)

Doctors Khatri and Walia ("Defendants") have filed a Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 [Doc. No. 22]. In response, the Court notified Plaintiff of the requirements for opposing summary judgment pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) [Doc. No. 23].*fn1 After being granted an extension of time [Doc. No. 30], Plaintiff filed an Opposition [Doc. No. 33], to which Defendants have filed a Reply [Doc. No. 34]. Plaintiff has also filed a Motion requesting leave to file a sur-reply [Doc. No. 37], which Defendants oppose [Doc. No. 38].

While this case was randomly referred to the Honorable Cathy A. Bencivengo pursuant to 28 U.S.C. § 636(b)(1)(B) for disposition, the Court has determined that a Report and Recommendation regarding the disposition of the pending Motions is not required. See S.D. CAL. CIVLR 72.3(a). The Court finds oral argument unnecessary pursuant to S.D. CAL. CIVLR 7.1.d.1. The Court hereby DENIES Plaintiff's request for leave to file a sur-reply and GRANTS Defendants' Motion for Summary Judgment pursuant to FED.R.CIV.P. 56(c) for the reasons set forth below.

II. FACTUAL BACKGROUND

In his Complaint, Plaintiff claims to have first experienced sharp pain in both sides of his abdomen in January 2001, shortly after he arrived at CEN; however, several exhibits show complaints of abdominal pain, kidney stones and urological treatment dating back to 1998 or 1999. (See Compl. at 3, 15; Pl.'s Ex. B; see also Defs.' Notice of Lodgment in Supp. Of Summ. J., Decl. & Report of Danny L. Keiller, M.D., [hereafter "Defs.' Ex. 17"] ¶ 2 & "Defs.' Ex. 18" at 000048.) Specifically, Plaintiff alleges a CEN doctor named Mosely, who is not named as a defendant, examined him in the 'D' yard medical clinic, and thereafter ordered an IVP and KUB sometime in May through September 2001.*fn2 (Compl. at 3.) These radiological tests revealed intra-renal calcifications, i.e., kidney stones or "bilateral nephrolithiasis," but no evidence of renal obstruction or hydronephrosis.*fn3 (Pl.'s Exs. A & B.) Plaintiff claims during the next year and a half, he continued to complain to medical staff about the "persist[ent] pain growing in [his] abdomen." (Compl. at 3.)

It is on June 27, 2003, that Plaintiff first mentions Dr. Walia, whom he alleges ordered another KUB. (Id.) This KUB revealed "multiple calcifications" overlying Plaintiff's left kidney, "particularly in the upper and mid portion" which the radiologist, J.M. Johnson, M.D. believed "probably represent[ed] intrarenal calculi." However, "no calcifications [we]re seen along the course of [Plaintiff's] ureter or in [his] pelvis." (Pl.'s Ex. C.) Plaintiff alleges that while Dr. Walia was "armed" with this information, he "never order[ed] any treatment to correct Plaintiff['s] kidney stone pain." (Compl. at 4.)

Walia, however, who was a Staff Physician and Surgeon at CEN from July 1997 through 2007, recalls providing Plaintiff with medical care on several occasions. (See Defs.' Lodgment in Supp. of Summ. J. [Doc. No. 22-3], Decl. of Sunil Walia, M.D. [hereafter Defs.' Ex. 1] ¶¶ 1, 5.) On January 20, 2003, Dr. Walia claims he treated Plaintiff's right drop foot, which was secondary to sciatic nerve injury caused by a gunshot wound, as well as his "chronic condition of renal nephrocalcinosis ... or bilateral kidney stones, which he had since 1997." (Id. ¶ 5.) Dr. Walia recalls prescribing Plaintiff medication and referring him to medical specialists on several other occasions, but his review of Plaintiff's medical records reveal that he treated Plaintiff only once for complaints based on kidney pain--January 30, 2003. (Id. ¶¶ 8, 10.)

On that day, Plaintiff presented with complaints of a callous on his drop foot caused by his prosthesis, as well as "pain to his lumbar region" which Plaintiff claimed was intermittent since 1997. (Id.; see also Defs.'s Ex. 2 "Outpatient Interdisciplinary Progress Notes.") Walia examined Plaintiff and reviewed Plaintiff's records, which revealed that an IVP dated 5/29/01 showed "bilateral renal lithiasis," and nephrolithiasis which was "more marked on the left than the right." However, Plaintiff's ureters were "normal in their course and configuration" and there "was no evidence of hydronephrosis," therefore, a urological consult which followed recommended only "expectant treatment." (Defs.' Ex. 2.) Because Plaintiff "appeared anxious," but was "in no acute distress," Walia prescribed Tylenol for pain and ordered a "CBC, Chem-25, urinalysis and a KUB, since his last work up was done" more than a year prior.*fn4 (Id.; see also Defs.' Ex. 3.) Dr. Walia further arranged for a "urology follow-up" "so KUB findings" could be reviewed by a urologist, and a further follow-up with Plaintiff in the yard clinic "in one month" when his test results and urology could be discussed. (Id.; see also Defs.' Ex. 4.)

According to Dr. Walia, Plaintiff's medical records show he was seen in the yard clinic by other staff physicians in March and April 2003, and pursuant to Walia's referral, was examined by a neurologist, Dr. Mosely, in May and June 2003. (Defs.' Ex. 1 ¶¶ 10-13; see also Defs.' Ex. 5.) The KUB Dr. Walia ordered was completed on June 27, 2003--it showed probable intrarenal calculi in Plaintiff's left kidney, but "no calcifications ... along the course of [Plaintiff's] ureter or in [his] pelvis." (Defs.' Ex. 1 ¶ 14; Defs.' Ex. 6.) Another KUB, ordered by Dr. Mosely on August 8, 2003 and completed on August 14, 2003, again showed "several calcific deposits overlying the area of [Plaintiff's] left kidney and surrounding renal hilium" as well as in "the mid portion of [Plaintiff's] right kidney." (Defs.' Ex. 1 ¶ 16; Defs.' Ex. 7.) However, "[n]o calcifications [we]re seen in the region of the ureters," and "[n]o additional abnormalities we[re] observed." (Defs.' Ex. 7.)

Plaintiff next alleges that approximately one year later, on July 1, 2004, and after "consistently complaining about the pain" in his abdomen to unspecified persons, he was sent to Pioneers Memorial Hospital ("PMH") where a CT scan of his abdomen and pelvis confirmed renal stones and "suspicion of gallstones." (Id.; see also Pl.'s Ex. D.) A new CT scan of Plaintiff's kidneys showed "multiple bilateral renal calculi, the largest measuring 1 x 0.5 cm in the left kidney," but still "no hydronephrosis or dilated ureter to suggest obstructive uropathy." (Pl.'s Ex. D.) Plaintiff admits his "uropathy was not obstructive," but nevertheless claims "there was blockage" which he attributes to "surrounding inflammatory within [his] kidney." (Compl. at 4.) The radiological report to which Plaintiff refers, however, notes only that his "appendix [wa]s borderline in size with surrounding inflammatory changes [which] could reflect appendicitis," and that a "clinical correlation [wa]s necessary to exclude appendicitis." (Pl.'s Ex. D.)

Plaintiff alleges "several more months of complaining about pain in [his] abdomen" passed until on October 17, 2005, another doctor named Thornton ordered a renal ultrasound. (See Compl. at 4.)*fn5 The radiology report dated the same day showed:

... the right kidney to measure 8.6 x 4.9 x 5.3 cm. A 7 mm stone with shadowing is seen in the mid renal area. The left kidney measures 9.3 x 4.8 x 5.5 cm. At least three stones with shadowing are seen involving the upper mid and lower poles. No hydronephrosis, or cysts, or masses are seen at this time. (See Pl.'s Ex. E.) Plaintiff claims that "even though the radiology report was said to show no hydronephrosis, [he] was still in sever[e] pain." (Compl. at 4.)

On or about November 9, 2005, Plaintiff submitted an CDC Form 602 inmate appeal "in an attempt to get treatment to correct the cause" of his recurrent kidney stones. (Id. at 5 (emphasis original); see also Pl.'s Ex. H.) In his CDC 602, Log No. CEN 05-1914, which Plaintiff attaches to his Complaint as Exhibit H, Plaintiff recounts his history of kidney stones and pain and admits having received several "IVPs, ultrasounds and kidney cat scan tests," at CEN as well as a urological consult. Plaintiff's CDC 602 also claims, however, that "no treatment ha[d] ever been done" for his condition since 2000, and requests the "removal" of his stones. (Pl.'s Ex. H at 37, 39.) On December 6, 2005, Plaintiff's appeal was denied at the informal level of review because a review of his medical records and October 17, 2005 ultrasound revealed "multiple stones but no swelling of the kidneys, no blood in [his] urine," and normal labs and renal function. (Id.) The initial denial of Plaintiff's appeal was affirmed at both the first formal and second levels of review on February 2, 2006 and March 6, 2006, respectively. (Id. at 40-42.)

On or about March 29, 2006, Plaintiff reported to CEN's Treatment and Triage Unit with complaints of left flank pain which were "consistent with the pain one suffers when a kidney stone is moving toward and through a ureter." (Defs.' Notice of Lodgment in Supp. of Summ. J. [Doc. No. 22-3], Decl. of Dave S. Khatri [hereafter "Defs.' Ex. 8"] ¶ 15.)

Plaintiff alleges Dr. Khatri, as the Chief Medical Officer, was aware of this and the fact that a urine test conducted on March 29, 2006 showed "ﯢ" which Plaintiff claims is a "medical marker for determining the amount of blood in [his] urine." (Compl.at 5; see also Pl.'s Ex. G.) Plaintiff asserts that "once blood is detected in the urine" it suggests a blockage or partial blockage in uropathy "generating enormous amounts of pain." (Compl. at 5.)

In response, Dr. Khatri claims to have treated Plaintiff with intravenous fluids and injections of Demerol and Phenegan. (See Defs.' Ex. 8 ¶ 15; Defs.' Ex. 9.) When Plaintiff returned to the Treatment and Triage Unit on the next day, March 30, 2006, with the same complaints, Dr. Khatri repeated his treatment of IV fluids, and re-injected Plaintiff with Demerol and Phenergan. (Id. ¶ 16; see also Defs.' Ex. 10.)

When Plaintiff returned the third day, March 31, 2006, Dr. Khatri repeated his previous treatments, but further submitted forms he claims were required to authorize Plaintiff's transfer to the PMH Emergency Room. (Defs.' Ex. 8 ¶ 17; see also Defs.' Ex. 11.) According to Dr. Khatri, Plaintiff was transferred to PMH that same day "in order to obtain a second opinion and so that Plaintiff could receive further treatment if necessary." (Defs.' Ex. 8 ¶ 17.)

At PMH, a CT scan of Plaintiff's abdomen and pelvis showed "left sided hydronephrosis with a stone in the left ureter at the pelvic brim and a right ureteral stone S2 level with partial obstruction." (Defs.' Ex. 18 at 000049; Pl.'s Ex. G; Defs.' Ex. 8 ¶ 17; Defs.' Exs. 11, 12; Compl. at 4-5.) However, "physicians at [PMH] did not make any further recommendations and ... continued the same care [Khatri] had provided." (Defs.' Ex. 8 ¶ 17.)

On April 2, 2006, Plaintiff passed a stone spontaneously while being "treated with narcotic analgesics." (Id. ¶ 18; Defs.' Ex. 18 at 000049.) Plaintiff provided Dr. Khatri with the stone, which was submitted for laboratory analysis. (Defs.' Ex. 8 ¶ 18; Defs.' Ex. 13.) According to Khatri, the results showed the stone was composed of calcium oxalate, which is "common for kidney stones." (Id.) The next day, April 3, 2006, Khatri submitted a request that Plaintiff be re-evaluated by a urologist. (Defs.' Ex. 8 ¶ 19; Defs.' Ex. 14.) On April 12, 2006, Plaintiff was evaluated by Dr. Walther, another urologist. Dr. Walther noted Plaintiff had recently passed a stone, conducted an ultrasound ...


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