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Johnson v. Roche

March 13, 2009



Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Currently under consideration is defendants' motion for summary judgment. For the reasons explained below, the motion for summary judgment must be granted.

I. Plaintiff's Allegations

Plaintiff claims in his July 31, 2006, complaint that Doctors Roche and James were deliberately indifferent to his serious medical needs, i.e., a tracheotomy. In particular, plaintiff claims that on November 7, 2005, he saw Dr. James for his tracheotomy, complained that his medical supplies were inadequate to care for it, and requested that the hardware for it be replaced. Compl., Attach., at 3. He also complained of difficulty breathing, nose bleeds and a sore throat because of the altitude at High Desert State Prison ("HDSP"). Id. at 5. Plaintiff alleges that Dr. James refused to acknowledge or treat plaintiff's complaints, and instead falsely noted in the medical file that plaintiff was doing well. Id. at 3, 4. Plaintiff alleges that Dr. Roche knew of plaintiff's needs, but failed to enforce approval for plaintiff to use a suction device as needed and refused to order that plaintiff's tracheotomy hardware be replaced and that he receive equipment to care for it. Id. at 5. Plaintiff alleges that as a result, he suffered headaches and an irritating rash around his neck. Id.

Plaintiff seeks damages and injunctive relief in the form of an examination by a specialist who is not associated with the California Department of Corrections and Rehabilitations ("CDCR"), transfer to a prison at a lower atmosphere, items necessary to care for his tracheotomy and keep it clean, and treatment for his sore throat and nose bleeds. Compl., Attach., at 6-7.

II. Facts

Plaintiff is a prisoner who at all times relevant to this action was housed at HDSP in Susanville, California. At the time of the events giving rise to this action, Dr. Roche was the Chief Medical Officer ("CMO") at HDSP, whose duties were to manage the medical staff and facilitate the transfer of prisoners to outside medical facilities when necessary. Defs.' Mot. for Summ. J., Attach. 3, Roche Decl., at ¶ 2. He is a primary care physician, and as such is not qualified to provide specialized treatment, such as "surgical revision of an existing tracheotomy."*fn1 Id. That is the purview of an Otolaryngologist, i.e., an ear, nose and throat ("ENT") specialist. Id. ¶ 3. Dr. James was a primary care physician. Defs.' Mot. for Summ. J., Attach. 4, James Decl., at ¶ 2. His responsibility was to evaluate patients' medical needs, treat conditions when he qualified to do so, and refer patients to specialists for care of conditions beyond the scope of his competence. Id. He was not qualified to perform any surgical procedures associated with plaintiff's medical condition, i.e., an existing tracheotomy. Id., at ¶ 3.

Plaintiff's medical condition at issue here dates back to a crushed trachea injury from an automobile accident in 1977. Compl. at 3; Pl.'s Nov. 21, 2007 Decl. of Svc. of Exhibits ("Pl.'s Decl.") at 39. As a result, he underwent a tracheostomy, which is the surgical creation of tracheotomy, i.e., an opening into the trachea through the neck.*fn2 Compl. at 3; Pl.'s Decl. at 39; Roche Decl., at ¶ 4a; James Decl., at ¶ 4. A tracheostomy may be performed in an emergency temporarily to enable a person to breathe when the airway is blocked. Roche Decl., at ¶ 4; James Decl., at 4. It also can be elective surgery in order to remedy difficulty breathing caused by physical abnormalities resulting from trauma or disease. Roche Decl. ¶ 4; James Decl. ¶ 4. In the latter situation, i.e., a "long term" tracheotomy, a curved tube known as a cannula is inserted into the windpipe to hold the neck open and enable the patient to breathe. Roche Decl. ¶ 4; James Decl. ¶ 4 Good hygiene is important for maintaining a long term tracheotomy. Roche Decl. ¶ 4; James Decl. ¶ 4 Ordinarily, the patient is instructed in how to keep the tracheotomy clean and he or she does it him or herself. Roche Decl. ¶ 4; James Decl. ¶ 4. At times, it may be necessary to use suction to remove mucus or other secretions. Roche Decl. ¶ 4; James Decl. ¶ 4. However, this again is something many patients do themselves. Roche Decl. ¶ 4a; James Decl. ¶ 4. In fact, on October 28, 2005, Dr. Cox, who is not a defendant in this action, ordered plaintiff "[one] trach kit - one for one exchange Q daily; 6 pre cut 4x4 Q week; 5 cotton tipped applicators Q week; [hydrogen peroxide] & sterile [water] in a 50/50 concentration 90 cc Q week one for one exchange; [one] roll tape Q 2 weeks." Pl.'s Decl. at 64.

The court now turns to the facts concerning defendants' involvement in the events giving rise to this action. Dr. James examined and treated plaintiff several times.*fn3 James Decl. ¶ 5. He denies any recollection of the specific dates he examined plaintiff, but he believes that he saw plaintiff about five times. James Decl. ¶ 5(b). He asserts that at those times, he discussed with plaintiff the condition and maintenance of plaintiff's tracheotomy. Id. Sometimes he examined plaintiff for swelling, redness, and soreness, listened to his breathing and tested his oxygen saturation. Id. Each time, he concluded that plaintiff's demands with respect to the tracheotomy were not medically necessary. Id. The record includes an October 25, 2005, record of defendant James prescribing a "trach kit," including a bristle brush, four pipe cleaners, two plastic q-tips, six pre-cut 4x4's, five cotton tipped applicators, hydrogen peroxide and sterile water in a 50/50 concentration, 90 cc per week as a one for one exchange on the container, and one roll of tape every two weeks. Pl.'s Decl. at 66.

On November 14, 2005, plaintiff submitted a request for reasonable accommodation under the Americans with Disabilities Act ("ADA"). Roche Decl., Exh. A at unnumbered p. 20; James Decl., Exh. A at unnumbered p. 20. In it, he claimed that when he saw Dr. James on November 7, 2005, he told Dr. James that he needed a "new tracheotomy"*fn4 and that every two weeks it needed to be replaced and the stoma*fn5 cleaned. Id. He complained about Dr. James' refusal to grant these requests. As an accommodation, plaintiff requested that his tracheotomy be cleaned by medical personnel every two weeks and that adequate medical supplies be issued for him to use in his cell. Id. He also requested that he be given permission to be housed alone for medical reasons, i.e., the tracheotomy. Id.

Dr. James interviewed plaintiff on December 5, 2005, about the request for reasonable accommodation. James Decl. ¶5(b). Following an examination and discussion with plaintiff, Dr. James determined that the tracheotomy functioned well and that plaintiff's lungs were clear and his oxygen saturation level was normal. James Decl. ¶ 5(a)(ii). He also determined that plaintiff was able to clean the tracheotomy himself. He instructed plaintiff in cleaning techniques, ordered cleaning supplies and confirmed that others issued those supplies to plaintiff. James Decl. ¶ 5(a)(iii). He refused to order a suction device for plaintiff to have in his cell because one was available in the Correctional Treatment Center ("CTC"), and he could use it whenever medical staff thought it necessary. James Decl. ¶ 5(a)(iv). He also refused to issue an extra pillow or recommend single cell status because he did not believe that either was necessary. Id. Dr. James referred plaintiff to an ENT specialist for further evaluation. James Decl. ¶ 5(a)(v).

Pursuant to Dr. James' referral, plaintiff saw an ENT specialist, Dr. Hudson, outside the prison on December 19, 2005. Defs.' Req. for Jud. Ntc., Exh. 4. Dr. Hudson examined plaintiff with respect to his complaints about his tracheotomy and spoke with plaintiff for a total of about 30 minutes. Id. She noted that plaintiff had some difficulty with drainage, but otherwise was well. Id. Plaintiff reported no shortness of breath, his voice was good and he conversed well. Id. Plaintiff believed that in order to remain healthy, he needed to change his tracheotomy twice every month. Id. Dr. Hudson determined that plaintiff needed to have the inner cannula changed, but did not need the tracheotomy changed any more than once or twice every six months. Pl.'s Decl. at 55, 61. In particular, Dr. Hudson wrote in her report that plaintiff: has a Shiley #4 trach, uncuffed and in place. Inner cannula was examined. The patient was corked here in the office. He did not have any problems of breathing around it or phonating. The stoma site itself is examined closely for any evidence of an infection or bleeding and none is found.

Id. After discussing plaintiff's condition with him she found that:

[h]e was under the misguided assumption that the trach should be changed twice a month because otherwise it becomes infected. He has not had any shortness of breath. He actually has a very good voice and is able to converse well.


She also wrote: he was able to handle being corked while we were talking. He did not have any shortness of breath on speaking. I did ask him if he would want to consider having his tracheostomy tube removed. He became very indignant of this and actually had told me that if I would ask hm such a question, how could I even be a doctor. The patient, at this point seemed to be upset and I merely informed him that if we looked into this further, he might be able to get his tracheostomy out because it appears that he is speaking well and his airways are excellent. However, he declined to have that investigated further which is fine by me.

Id. She found that the inner cannula, but not the entire tracheotomy, should be changed. Defs.' Req. for Jud. Ntc., Exh. 5. Instead, she recommended that the tracheotomy itself be changed about once or twice every five or six months. Id.

Dissatisfied with Dr. Hudson's treatment, plaintiff filed an administrative appeal, which prison officials construed to be an appeal of the denial of his request for reasonable accommodation. Roche Decl. ¶ 5(b)(ii). In it, plaintiff stated that he had seen Dr. Hudson on December 19, 2005, to whom he had complained of having a sore throat and difficulty in breathing on a daily basis, and that he suffered nose bleeds because of the altitude. Roche Decl., Exh. A, at unnumbered pp. 18-19. He asserted that Dr. Hudson ignored his complaints. Id. That grievance was denied, and in his appeal of that denial, plaintiff demanded a meeting with the associate warden and the medical director of HDSP about his complaints. Id. at unnumbered p. 22. He also requested immediate transfer to a prison at a lower altitude and a review of his medical records.*fn6 Id.

Dr. Roche, who was not directly involved in plaintiff's care, responded to the appeal on the second formal level of review.*fn7 Roche Decl. ¶ 5(a). According to Dr. Roche, it is standard practice for the CMO to rely on the findings made by medical staff in reviewing grievances on the second formal level of review. Id. Thus, Dr. Roche reviewed the findings on the lower level and plaintiff's medical records, and he determined that plaintiff's tracheotomy was working well, his lungs were clear and his oxygen saturation level was normal. Roche Decl. ¶ 5. These latter two findings suggested that plaintiff was not having difficulty breathing or that the altitude adversely affected plaintiff's respiratory health or function. SUF 24. He affirmed the decision below, and iterated Dr. James's findings, i.e., plaintiff must clean his tracheotomy himself, had been instructed how do so, and supplies to care for the tracheotomy had been issued to him, including some he had not received in the past. Roche Decl. ¶ 5(b)(iii)(bb). Dr. Roche noted that plaintiff had not requested medical authority for a single cell, but in any event a single-cell assignment was not medically necessary for him. Id. Roche denied the request for a suction device, explaining that one was available for plaintiff's use in the CTC when medical staff determined that such cleaning was necessary. Roche Decl. ¶ 5(b)(iii)(aa). Dr. Roche determined that the single pillow issued ...

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