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Brady v. Fishback

March 6, 2009


The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge


Patrick Brady ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. On February 7, 2008, Plaintiff filed a complaint against Defendants Fishback, Juarez and Villa for deliberate indifference to his serious medical needs in violation of his Eighth Amendment constitutional rights.*fn1 The gravamen of Brady's complaint is that Defendants ignored his serious mental health needs by failing to renew his prescription for Ritalin and implementing an unwritten policy "proscribing Ritalin from being prescribed for ADD/HD." (Doc. 1).

On March 31, 2008, Defendants Juarez and Villa filed a motion for summary judgment on the grounds that there is no genuine dispute as to any material fact, and they are entitled to judgment as a matter of law because Brady continually received treatment for his ADHD by Defendants. (Doc. 55). Defendant Fishback also filed a motion for summary judgment on March 31, 2008, seeking dismissal on the ground that there is no dispute of material fact and he is entitled to judgment as a matter of law because he did not issue a written or oral policy that precluded the prescription of Ritalin to Brady. (Doc. 54).

The Court granted Plaintiff an extension of time to file his opposition to Defendants' motions for summary judgment to allow Plaintiff additional time for discovery. (Doc. 62). On February 24, 2009, after having completed extended discovery, Plaintiff filed an opposition to Defendants' motions for summary judgment. (Doc. 113). Defendants filed replies. (Docs. 115 and 116). The Defendants' motions for summary judgment are granted.


Viewing the record as a whole and in the light most favorable to the non-moving party, the facts in this case are as follows. Brady has been incarcerated within the California Department of Corrections since January 1996. On September 9, 1998, Brady had a security housing unit mental health screening which revealed that he was suffering from no mental illnesses. On March 3, 1999, and August 19, 1999, Brady underwent additional reviews with a psychologist which showed that Brady was not suffering from any mental illnesses. On January 6, 2000, Brady complained of anxiety. Since that time, during his incarceration at Corcoran State Prison, Brady has been seen by numerous psychiatrists who have treated him for anxiety, depression, and other mental disorders.

At all times relevant to the complaint, Defendant Jesus Juarez, M.D., was the Acting Chief Psychiatrist at Corcoran State Prison. Dr. Juarez never personally treated Brady; however, as Acting Chief Psychiatrist at Corcoran State Prison, he may have renewed his prescriptions on occasion.

At various periods from April 2001 to August 2005, Defendant Simon Villa, M.D., worked as a staff psychiatrist at Corcoran State Prison on Yard B where Brady was housed. On April 12, 2001, Dr. Villa saw Brady for the first time. Brady informed Dr. Villa that he had been diagnosed previously as suffering with Attention Deficit Hyperactivity Disorder (ADHD) and was treated with Ritalin and Cylert. Brady requested treatment for his ADHD. Dr. Villa prescribed Cylert and requested that Brady produce documentation of his ADHD diagnosis. On June 28, 2001, Dr. Villa increased Brady's Cylert prescription based on Brady's complaint that he was unable to focus while under the current dosage. Brady's prior prescription for Zoloft, for depression, which had been discontinued, was renewed at that time. On both December 27, 2001 and March 22, 2002, Dr. Villa renewed Brady's prescriptions for Cylert and Zoloft. On May 14, 2002 Brady asked Dr. Villa to change him to Adderall, a psycho stimulant. Dr. Villa maintained Brady of the Cylert and Zoloft prescriptions. On May 22, 2002, Brady complained to a psychiatric technician that he wanted to be changed to Adderall.

On June 24, 2002, Brady saw psychiatrist Dr. Tuzon and asked to be taken off of Cylert. His request was denied. On July 25, 2002, Dr. Villa saw Brady and informed him that Cylert was being discontinued due to concerns over potential negative side effects. Brady again asked to be switched to Adderall. Dr. Villa prescribed Ritalin, an amphetamine, for Brady, based upon Brady's execution of a substance abuse agreement which specifically provided that "(1) the termination of stimulant medication is at the discretion of the physician; (2) one of the goals of treatment is the eventual discontinuation of stimulants; and (3) stimulant medication will be reviewed on a thirty-day basis at the prescribing physician's discretion." Brady's Ritalin dose started with 10 milligrams every morning. From August 23, 2002 to December 20, 2002, Brady's Ritalin dosage was incrementally increased due to Brady's complaints that the prescribed dosage was wearing off quickly and he was unable to focus.*fn2 During this period, Brady's Zoloft prescription was also increased to 150 milligrams every afternoon due to Brady's purported inability to concentrate. On May 15, 2003, Brady was seen by Dr. Tuzon and requested that he be prescribed Klonopin, a medication used to treat seizures and panic disorders. Brady also complained of anxiousness, depression and insomnia. Brady was prescribed Remeron in addition to his Zoloft prescription. In June 2003, Brady refused to take his antidepressants.

On January 26, 2004, February 9, 2004, May 24, 2004, and March 11, 2004, Dr. Villa continued to renew Brady's Ritalin prescription. Over this period, Dr. Villa increased the Ritalin prescription to the maximum dosage of 60 milligrams a day, based upon Brady's continued complaints of poor concentration.

On June 18, 2005, Dr. Villa indicated to Brady that Ritalin was being discontinued and that prisoners taking Ritalin for ADHD would have their prescriptions terminated. On June 20, 2005, Dr. Villa ordered Brady's Ritalin prescription to be tapered down over the following six weeks. On August, 19, 2005, Dr. Villa prescribed Strattera for Brady, which is used for adults diagnosed with ADHD and unlike Ritalin is not a psycho-stimulant. Strattera is an FDA-approved medication for adult ADHD. "Straterra is not a psycho-stimulant, but rather works on adults with ADHD by controlling impulsivity. Specifically, Strattera is a norepinephrine reuptake inhibitor, a class of ADHD treatment that works differently from the other ADHD medications available. Norepinephrine is thought to have important input into the central nervous system control of attention, concentration, cognition, mood, emotions, and blood pressure." This was Brady's last visit with Dr. Villa. Def.'s Mot. Summ. J. ¶ 24. Brady alleges that Strattera has had "severe side affects including nausea, dizziness, and trouble urinating."

On August 8, 2005, Brady filed a "Reasonable Modification or Accommodation Request" complaining that his "meds were cut off!"and requesting that his Ritalin prescription be renewed. On August 30, 2005, Dr. Villa reviewed and denied Brady's request on the grounds that Ritalin "is now non-formulary -- no longer prescribed unless approved by the CMO -- another medication can also be used for the problem or condition."

On September 15, 2005, Brady stopped taking Strattera due to its side-effects and was placed on Wellbutrin and Remeron, which he subsequently refused to take because of their side-effects and was later placed upon Effexor. Brady filed a Second Level appeal, Brady was interviewed by Dr. Juarez on October 3, 2005 regarding his appeal. The Appeal Response was as follows:

Per Departmental policy, the medication you request is now a non-formulary medication and is no longer prescribed by our physicians unless approved by the Health Care Manager on a case-by-case basis. This decision was made based upon a ...

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