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Keene v. Chief Medical Officer

June 1, 2009

BRIAN KEENE, PLAINTIFF,
v.
CHIEF MEDICAL OFFICER, 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. Plaintiff alleges that he received inadequate medical care for chronic back pain. Pending before the court is defendant Pepper's summary judgment motion (court file doc. 69) filed November 17, 2008. On December 8, 2008, plaintiff filed an opposition to this motion (court file doc. 71). Also pending is the summary judgment motion filed on behalf of defendants Hawkins, Akintola and Hashimoto (court file doc. 76) on February 20, 2009. On March 13, 2009, plaintiff filed an opposition to this motion (court file doc. 77). Also pending is the April 10, 2009, motion to strike (court file doc. 81) filed on behalf of defendants Hawkins, Akintola and Hashimoto.

After carefully reviewing the record, the court grants defendants' motion to strike and recommends that defendants' summary judgment motions be granted.

II. Summary Judgment Standards Under Rule 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 August 6, 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).

III. Motion to Strike and Objections to Plaintiff's Evidence

On December 11, 2008, defendant Pepper filed objections (court file doc. 73) to plaintiff's exhibits G, I, J, K, L, M, N and O attached to his opposition on grounds that they were hearsay, lacked a proper foundation and were not properly authenticated. On March 18, 2008, defendants Hawkins, Hashimoto and Akintola filed objections (court file doc. 79) to the same exhibits on the same grounds as defendant Pepper. In their reply to plaintiff's opposition (court file doc. 78), defendants Hawkins, Hashimoto and Akintola argued that plaintiff's opposition was deficient because it contained no separate statement of disputed/undisputed facts as required by Local Rule 56-260(b).

On April 3, 2009, plaintiff filed a response to defendants' objections to his exhibits and defendants' argument that his opposition was deficient (court file doc. 80). Attached to the response is a statement of undisputed/disputed facts. Plaintiff states that he did not know that he was required to include this statement in his opposition. Also attached are the same exhibits plaintiff submitted in support of his oppositions to defendants' motions. Plaintiff has attempted to authenticate the exhibits in his response.

On April 10, 2009, defendants Hawkins, Hashimoto and Akintola filed a motion to strike plaintiff's April 3, 2009, response (court file doc. 81) on grounds that it is not an authorized pleading.

Plaintiff's response to defendants' reply is unauthorized. Accordingly, the motion to strike is granted. However, because plaintiff is a state prisoner proceeding pro se, the court does not find that defendants' statements of undisputed facts is admitted because plaintiff failed to file a separate statement of undisputed/disputed facts. After reviewing his oppositions to defendants' motions, the court is able to discern what facts plaintiff is disputing and not disputing.

Turning to the disputed exhibits, exhibit G includes plaintiff's medical records from the Los Angeles County Department of Health Services Rancho Los Amigos Medical Center (1990) and the Foothill Bone and Joint Surgery Center (2001 and 2003). These records were created prior to plaintiff's incarceration but may well be in his prison medical records. Exhibits I through O are documents from plaintiff's prison medical/mental health records.

Defendants' objections to plaintiff's use of copies of medical records for hearsay, lack of authentication and/or foundation are overruled for purposes of the pending motions. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (evidence which could be made admissible at trial maybe considered on summary judgment); see also Aholelei v. Hawaii Dept. of Public Safety, 220 Fed. Appx. 670 (9th Cir. 2007).

IV. Undisputed Facts

At all relevant times plaintiff was incarcerated at Mule Creek State Prison (MCSP). Defendant Pepper is a radiologist. At all relevant times, defendant Akintola was a physician's assistant employed at MCSP. At all relevant times, defendant Hawkins and Hashimoto were physicians and surgeons employed at MCSP.

On November 8, 1990, plaintiff had a diskectomy and laminectomy/foraminotomy.*fn1 A discectomy is the surgical removal of herniated disc material that presses on a nerve root or on the spinal cord. A laminectomy is the removal of s small piece of bone (the lamina) from the affected vertebra, to allow better access to the area of disc herniation. Since that surgery, plaintiff suffered from chronic back pain.

On or around December 2005, plaintiff was first incarcerated in the California Department of Corrections and Rehabilitation.

On or around August 2006, at MCSP Dr. Nale performed a physical examination of plaintiff and ordered a lumbar spine x-ray and issued a temporary bottom bunk chrono pending the results of the x-ray. On August 8, 2006, the x-ray was performed. Defendant Pepper read the x-ray and prepared a report stating: "Frontolateral and oblique views demonstrate normal mineralization. Vertebral body heights are maintained. Interspaces appears normal. The sacroilac joints appear unremarkable. Significant abnormalities are not seen."

On November 1, 2006, plaintiff saw defendant Akintola in the Yard A clinic. Defendant Akintola assessed plaintiff as having chronic back pain and prescribed Motrin, 600 mg. twice a day as needed. As plaintiff referred to his prior back surgery, defendant Akintola told him to provide medical staff with the name of the outside facility where he received the surgery so that the prison could request copies of the records. Defendant Akintola also denied plaintiff's request for a renewal of the temporary bottom bunk chrono based on the defendant Pepper's x-ray report and the lack of plaintiff's prior surgical records. Based on Dr. Nale's August 2006 examination of plaintiff's back, the August 2006 x-ray and the lack of surgical records, defendant Akintola did not see any medical justification for further diagnostic studies or a physician referral at that time.

On November 2, 2006, plaintiff filed an administrative grievance complaining that defendant Akintola had failed to give him a permanent bottom bunk chrono and only prescribed Motrin. Plaintiff also complained that defendant Akintola had refused to give him any medical attention for his back.

On November 3, 2006, defendant Hawkins saw plaintiff on the Yard B Clinic for a chronic care follow-up visit for his hypertension. During this examination, plaintiff also complained of lower back pain. Defendant Hawkins reviewed defendant Pepper's radiology report and recommended continued conservative measures such as weight loss, exercises and continued use of Motrin.

On December 6, 2006, defendant Hashimoto interviewed and examined plaintiff regarding the grievance he had filed against defendant Akintola. Defendant Hashimoto's progress notes state that plaintiff told him that he had had a laminectomy and discectomy in 1989 at Rancho Los Amigos. During this examination, plaintiff complained of pain his lumbar area, in his hips, knees and proximal thighs and pain in the lower thoracic spine. Plaintiff stated that he was always in pain and that he had experienced four episodes of pain with numbness in one month, and that his legs were numb when he laid on his back.

On December 6, 2006, defendant Hashimoto observed that plaintiff was in no acute distress and had a scar in the lumbar region of his back. His straight leg raises were negative and his reflexes were normal in his ankles and knees. The ...


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