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Watson v. Torruella

August 24, 2009

GARRY P. WATSON, PLAINTIFF,
v.
J. TORRUELLA, ET AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He proceeds on his April 27, 2007, amended complaint, wherein he alleges that defendants Torruella, Galloway, and Milliman were deliberately indifferent to a medical condition in plaintiff's right thumb, which was eventually diagnosed as a type of cancer --squamous cell carcinoma. On August 7, 2008, defendants filed a motion for summary judgment on the ground that they were not deliberately indifferent to plaintiff's medical needs and that they are entitled to qualified immunity. The court has considered the moving and opposing papers and concludes that defendants' motion for summary judgment should be granted.

I. Facts

The following facts are undisputed, except as noted below. Plaintiff is an inmate incarcerated within the California Department of Corrections and Rehabilitation (CDCR). At all times relevant to this dispute, defendants Torruella, Galloway, and Milliman were employed by CDCR as physicians and surgeons. Defs.' Mot. for Summ. J., Decl. of Torruella in Supp. Thereof ("Torruella Decl.") ¶ 2, Decl. of Galloway in Supp. Thereof ("Galloway Decl.") ¶ 2, Decl. of Milliman in Supp. Thereof ("Milliman Decl.") ¶ 2.

Each of the defendants saw plaintiff for a medical condition involving plaintiff's right thumb. Am. Compl. at IV. Specifically, plaintiff alleges that he "was seen in sequential order" by Torruella from "January 14, 2002 through May 28, 2003," then by Galloway "from May 28, 2004 through July 28, 2004," and finally, by Milliman, "on November 2, 2004." Id. According to plaintiff, defendants were deliberately indifferent to the medical condition in plaintiff's right thumb, in that they failed to properly diagnose and treat it, "regardless of the pain, sensitivity, swelling, disfigurement or disability," that plaintiff was experiencing. Id. Plaintiff further alleges that this "resulted in the development of cancer, which may require in the future amputation and permanent disability." Id.

Torruella first saw plaintiff on or around January 14, 2002. Torruella Decl. ¶ 4a. Plaintiff reported a problem with his right thumb, which he said began one month earlier. Id. He told Torruella that he used a cleaning solution at his job but did not use gloves. Id. Torruella observed that the skin at the base of plaintiff's right thumb nail was cracked with thickening of the skin. Id. Because the thumb condition appeared to be an infection, Torruella prescribed a triple antibiotic ointment for plaintiff to apply to the skin at the base of his right thumb nail. Id. at ¶ 4b. Based on Torruella's training and experience, most similar findings are secondary to a bacterial infection and his prescribed treatment is commonly used to resolve that condition. Id. Torruella did not take a sample of plaintiff's right thumb tissue. Pl.'s Opp'n (Docket No. 34), Pl.'s Decl. in Supp. Thereof ("Pl.'s Decl.") ¶ 1.

During this visit, plaintiff also complained of back pain and a skin condition on his chin caused by shaving. Torruella Decl. ¶ 4a. Based upon these complaints, Torruella ordered an xray of plaintiff's spine to rule out a bony spinal injury, prescribed Hydrocortisone cream for plaintiff's chin, and gave plaintiff a two-week no shave chrono. Id. at ¶ 4b.

Torruella next saw plaintiff on February 4, 2002. Id. at ¶ 4c. This time plaintiff said that his thumb condition began over one year ago, and that it had not gotten better. Id. Plaintiff said that he quit using the cleaning solution and now used gloves at work. Id. Torruella observed that plaintiff's right thumb had what appeared to be chronic induration (e.g. was inflamed, thickened, and tender) at the base of the thumb nail. Id. Torruella's opinion was that plaintiff had a chronic bacterial infection of his right thumb nail. Id. In order to treat the infection, Torruella prescribed a thirty day supply of Cipro, an antibiotic. Id. Oral antibiotics, such as Cipro, are commonly prescribed to resolve bacterial infections such as what plaintiff appeared to have. Id. Once again, Torruella did not take a sample of plaintiff's right thumb tissue. Pl.'s Decl. ¶ 2.

Torruella also saw plaintiff over one year later on May 28, 2003. Torruella Decl. ¶ 4d. Plaintiff said the thumb always throbbed and was painful when touched, and that the pain was 7 or 8 out of 10 when the areas was struck. Id. He said that the thumb had given him problems for about two years. Id. Torruella observed some thickening of the middle edge of plaintiff's right thumbnail with questionable lifting of the nail at that location. Id. There was also some increased erythema (redness) and thickening of the skin at the nail's edge, especially at the base of the nail. Id. Torruella still believed that plaintiff's thumb was chronically infected, as the symptoms were still consistent with that condition. Id. Accordingly, Torruella gave plaintiff a seven-day prescription for Motrin in order to reduce the pain and inflammation. Id. However, the Motrin did not alleviate plaintiff's pain. Pl.'s Decl. ¶ 5. Torruella did not treat plaintiff after May 28, 2003. Torruella Decl. ¶ 4e.

Galloway initially saw plaintiff one year later, on or around May 28, 2004. Galloway Decl. ¶ 4a. Galloway saw that plaintiff's right thumb had some separation of the cuticle from the nail. Id. at ¶ 4b. There was no pus or redness however. Id. Galloway believed that plaintiff had a fungal infection of the nail fold with candida, which is a type of yeast. Id. That diagnosis was the most consistent with the observed chronic separation of the cuticle. Id. Galloway ordered Clotrimozole, an antifungal cream, for the nail margin. Id. at ¶ 4c. Additionally, Galloway ordered an x-ray of plaintiff's left shoulder in response to plaintiff's concurrent complaint regarding chronic left shoulder pain. Id. at ¶¶ 4a, 4c.

Galloway next saw plaintiff two months later on July 28, 2004. Id. at ¶ 4d. Galloway observed that the cuticle of plaintiff's right thumb was swollen and tender and that there was mild redness. Id. At this point, it appeared to Galloway that plaintiff's right thumb condition was probably a tissue reaction to a foreign body such as a splinter or the nail itself, similar to an ingrown toenail. Id. Galloway ordered a wedge excision of plaintiff's right thumbnail, a minor surgical procedure, which was to be performed by a surgeon who Galloway believed was the most accomplished surgeon on staff. Id. at ¶ 4e. Galloway expected that the surgeon would provide a second opinion and intervention, if needed, to excise the nail, explore the foreign bodies or biopsy the area if he believed it was necessary. Id. July 28, 2004 was the last time that Galloway treated plaintiff for his thumb condition. Id. at ¶ 4f.

Milliman saw plaintiff three months later on November 2, 2004. Milliman Decl. ¶ 4a. Plaintiff told him he had an ongoing, painful right thumb condition existing for approximately one to two years and for which he had been seen by many doctors. Id. Milliman examined plaintiff and found erythema surrounding a superficial crack or break in the skin at the base of his right thumbnail. Id. The area was tender when Milliman pressed on it. Id. The nail bed appeared normal. Id. Milliman assessed the right thumb condition as a chronic infection, possibly a fungus. Id. at ¶ 4b. Milliman believed the "chronic subungual fungus infection" probably had a chronic bacterial secondary infection. Id. Milliman ordered that he be given a three week supply of Band-Aids and a triple antibiotic ointment. Id. at ¶ 4c. Milliman also instructed plaintiff to keep the area covered 24 hours of day for the entire three week period. Id. Milliman expected the ointment to resolve any bacterial infection and that the conservative sanitary care would mitigate any fungal infection. Id. If there were still signs of an active fungal infection after more than three weeks, Milliman planned to prescribe an oral anti-fungal medication. Id. Such medication can cause severe, sometimes fatal, toxic reaction in the liver or kidney of some patients and should only be prescribed for severe fungal infections. Id. Before ordering such a prescription, Milliman therefore wanted to: (1) confirm that plaintiff did, in fact, have a severe enough fungal infection to warrant such a drug, and (2) to assess his liver and kidney health to determine if such a treatment could be safely given to him. Id. According to plaintiff, Milliman refused to renew plaintiff's pain medication at this visit. Pl.'s Decl. ¶ 11.Milliman did not treat plaintiff again after November 2, 2004. Milliman Decl. ¶ 4d.

Plaintiff had a biopsy and nail bed surgery on his thumb on February 4, 2005. Am. Compl. at IV; Pl.'s Decl. ¶ 12. The biopsy revealed a type of cancer, squamous cell carcinoma, which had not been completely excised. Id. In June 2006, plaintiff had surgery to excise the residual cancer cells in his right thumb. Am. Compl. at IV; Pl.'s Decl. ¶ 15.He claims that he continues, "to experience recurring episodes of extreme tenderness, swelling and pain of the right thumb" and that the surgeries resulted in disability and disfigurement. Id.

II. Summary Judgment Standards

Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the movant is entitled to a judgment ...


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