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Gieck v. Levin

January 21, 2010


The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court


On October 18, 2005, Plaintiff Dennis Michael Gieck ("Plaintiff"), a state prisoner incarcerated at Calipatria State Prison in Calipatria, California, proceeding pro se and informa pauperis, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against defendants Dr. Martin Earle Levin and Dr. An Minh Nguyen ("Defendants"). Plaintiff claims that Defendants showed deliberate indifference to treatment of Plaintiff's cervical condition, skin infections, and pain.

On November 13, 2006 Defendants filed a motion for summary judgment. (Doc. Nos. 43, 46-51.) On March 21, 2007 the Court granted Defendants' motion for summary judgment. (Doc. No. 106.) On April 4, 2007 Plaintiff filed a notice of appeal to the United States Court of Appeals for the Ninth Circuit. (Doc. No. 116.) On August 10, 2009 the United States Court of Appeals for the Ninth Circuit reversed and remanded the decision of the Court for failing to give Plaintiff notice of the requirements of Federal Rule of Civil Procedure 56 under Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc). (Doc. No. 128.) On October 26, 2009 Defendants filed a motion for summary judgment. (Doc. No. 132.) On October 27, 2009 the Court provided Plaintiff with notice of the motion for summary judgment pursuant to Rand and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). (Doc. No. 133.) On December 4, 2009 Plaintiff filed an opposition to Defendants' motion for summary judgment stating no new facts or new law. (Doc. No. 134.)

The Court exercises its discretion to decide this matter on the papers pursuant to Local Civil Rule 7.1(d)(1). (Doc. Nos. 129, 133.) For the following reasons, the Court GRANTS Defendants' motion for summary judgment.


Plaintiff entered Calipatria State Prison on February 11, 1998. (Notice Mot. And Mot. Summ. J. Defs.' Martin E. Levin M.D. and An Minh Nguyen, M.D., Ex. 2, at 7 (Defs.' Mot.").) On July 25, 2002, Plaintiff was transported to Pioneers Memorial Hospital ("PMH") for treatment of his neck pain. (Pl.'s Decl. Opp. Defs.' Mot. Summ. J. ¶¶ 6, 8 ("Pl.'s Decl.").) Plaintiff was diagnosed with acute cervical disk herniation with cord compression after an X-ray and MRI of Plaintiff's neck showed degenerative disk disease at the C5-6 level in Plaintiff's neck, and a disc protrusion at the C6-7 level. (Pl.'s Decl., Ex. C, at C1-3.)

On December 25, 2002, Plaintiff was diagnosed with acute sinusitis, peritonsillar cellulitis, and a lip abscess. (Id., Ex. F, at F9.) He was treated with intravenous Unasyn and oral Flagyl.*fn1 (Id.) On December 26, 2002, his abscess was incised and drained, and on December 27, 2002 Plaintiff was transferred to Alvarado Hospital to be treated by an otolaryngologist. (Id. at F10.) A culture from Plaintiff's lip area was collected on December 26, 2002, and a culture from Plaintiff's wrist was collected on January 22, 2003. (Id. at F5-F6.)

On April 24, 2003, Plaintiff saw Dr. David Smith, an orthopedic surgeon, who stated that Plaintiff had degenerative bone and disc disease in his cervical spine. (Id., Ex. C, at C9.) Dr. Smith reordered Plaintiff's prescriptions for Benadryl, Indocin, and Neurontin,*fn2 and suggested that he be referred to a neurosurgeon for possible surgery. (Id.)

On May 8, 2003, defendant Dr. Levin requested authorization for Plaintiff to temporarily leave Calipatria to see an oncologist on May 19, 2003. (Id., Ex. G, at G3.) Plaintiff was seen in an Emergency Room on May 17, 2003 for a swollen right eyelid. (Id., Ex. F, at F13.) Plaintiff was treated with Bactrim,*fn3 along with triple antibiotic ointment. (Id. at F12-13.) On May 19, 2003, Plaintiff saw Dr. John Wilkinson, an oncologist, who diagnosed Plaintiff with "most likely cured Hodgkin's Disease," and treated him with biannual vaccinations. (Id., Ex. G, at G2.) He was also ordered to receive an oncology follow-up in one year, and cleared for neurosurgical procedures. (Id.)

On June 17, 2003, Dr. Barba, a neurosurgeon at Alvarado Hospital, ordered Plaintiff to receive an electromyogram from a neurologist. (Id., Ex. B, at B5.) He also recommended epidural steroid injections. (Id.) On October 6, 2003, Plaintiff received a prescription for Indocin, a nonsteroidal anti-inflammatory drug, and Vistaril. (Decl. Martin Levin, M.D., Supp. Def.'s Mot. Summ. J., ¶ 13 ("Levin Decl.").) On October 20, 2003, Dr. Andres Jacobo, a neurologist, saw Plaintiff, and agreed with Dr. Barba's medical plan for the treatment of Plaintiff's condition. (Pl.'s Decl., Ex. B, at B1, B6,B8.) On October 23, 2003, defendant Dr. Nguyen wrote an order for Plaintiff to receive epidural steroid injections at PMH. (Id., Ex. E., at E2.)

However, Plaintiff had an acute problem. Later on October 23, 2003, Plaintiff was admitted to Calipatria's outpatient housing unit ("OHU") for a fractured hand. (Levin Decl. ¶ 15; Defs.' Mot., Ex. 2, at 1160.) Plaintiff's treatment included replacing his Indocin with Motrin, which is a similar class of drug. (Levin Decl. ¶ 15.) When Plaintiff requested stronger pain medication, Vicodin*fn4 was prescribed, although Plaintiff's caretakers were concerned about Plaintiff's history of drug abuse. (Id. ¶ 16.) After Plaintiff requested to be treated with Indocin and Vistaril for his pain, he was prescribed those medications on October 29, 2003. (Id. ¶¶ 16, 17; Defs.' Mot., Ex. 2, at 684.)

After Plaintiff's fractured hand was treated, defendant Dr. Levin submitted a request, on November 3, 2003, for Plaintiff to be allowed to temporarily leave Calipatria State Prison in order to receive epidural steroid injections at PMH. (Pl.'s Decl., Ex. E, at E1.) On November 4, 2003, Dr. Nguyen wrote Plaintiff a prescription for Indocin. (Defs.' Mot., Ex. 2, at 994.) On November 5, 2003, Plaintiff was seen again by Dr. Jacobo. (Id., Ex. B, at B1-3.) Dr. Jacobo performed a nerve conduction test that showed evidence of chronic C7-8 radiculopathy. (Id. at B3-4.) Dr. Jacobo wrote defendant Dr. Levin, and suggested that Plaintiff be treated with cervical injections and pain medication. (Id. at B1, B3.) Plaintiff was seen as an outpatient at Calipatria later on November 5, 2003. (Id., Ex. F, at F7.) Dr. Nguyen determined that the Indocin he had prescribed Plaintiff the previous day was adequate to treat his pain at that time. (Id.)

On November 7, 2003, a medical provider from PMH stated that he was unable to perform cervical epidural steroid injections on Plaintiff, and that Plaintiff should be referred to another facility to receive this treatment. (Id., Ex. E, at E3.) On November 8, 2003, Plaintiff was seen as an outpatient at Calipatria. A note in Plaintiff's chart indicated he was ambulatory without any problems. (Id., Ex. F, at F7.)

On November 20, 2003, Plaintiff was seen as an outpatient at Calipatria. (Id. at F2.) A note was written indicating that Plaintiff was not able to receive a cervical epidural injection at PMH, and that they would try to have the procedure performed at Alvarado Hospital. (Id.) The note also indicated that Plaintiff was interested in restarting Neurontin for pain control, which Plaintiff had refused in September 2003. (Id.) Dr. Nguyen prescribed Neurontin for Plaintiff. (Defs.' Mot., Ex. 2, at 992.)

On November 25, 2003, Plaintiff submitted a California Department of Corrections inmate appeal form, form 602, log number CAL-D-04-00078, stating that he was dissatisfied that Dr. Nguyen did not prescribe Plaintiff antibiotics for an infection. (Id., Ex. D, at D2-D3.) On November 26, 2003, Plaintiff was diagnosed with a "right lower extremity abscess--recurring lesions." (Id., Ex. F, at F2.) He was treated with two antibiotics, Bactrim and dicloxacillin.*fn5 (Id. at F1-2.)

On January 9, 2004, Plaintiff sent a letter to the California Medical Board stating that Defendants had failed to prescribe Plaintiff the correct antibiotics and analgesics to treat his symptoms. (Id., Ex. A, at A13-14.)

On February 18, 2004, a physician's progress note indicated that Indocin was ordered and that Plaintiff refused to go to the OHU to receive narcotic medication for his neck pain. (Levin Decl. ¶ 18.) On February 21, 2004, Plaintiff was seen for a nasal infection and Dr. Nguyen treated him with dicloxacillin. (Defs.' Mot., Ex. 2, at 676.) On February 23, 2004, Dr. Nguyen was seen again for his nasal infection and Dr. Nguyen prescribed Bactrim. (Id. at 676, 984.) On March 10, 2004 Plaintiff was seen for a follow up visit regarding his nasal infection. (Id. at 675.) Because the previous antibiotics had not cured the infection, Ciprofloxacin*fn6 was prescribed. (Id. at 675; Levin Decl. ¶ 18.)

On March 24, 2004, Plaintiff was seen for neck pain. (Id. 673.) He refused to stay in the OHU in order to receive injectable pain medication. (Id., Levin Decl. ¶¶ 19, 27; Pl.'s Decl. ¶ 12.) On March 27, 2004, Plaintiff was seen again for his neck pain, but did not want to be admitted if he was not going to receive stronger pain medication than Toradol or Tylenol # 3.*fn7 (Defs.' Mot., Ex. 2, at 673-74.) Plaintiff also refused admission to the OHU on May 1, 2004 and May 4, 2004 for pain control. (Levin Decl. ¶¶ 19, 27; Pl.'s Decl. ¶ 12.)

On August 16, 2004, Dr. Nguyen requested a consultation by Dr. Jacobo for epidural injections. (Levin Decl. ¶ 20; Pl.'s Decl., Ex. E, at E4.) A Dr. Sands denied the request on August 26, 2004. (Pl.'s Decl., Ex. E, at E4.) On September 21, 2004, a note was written in Plaintiff's chart indicating that his pain was well controlled. (Levin Decl. ¶ 21; Defs.' Mot., Ex. 2, at 648.) On October 2, 2004, defendant Dr. Levin informed Plaintiff that his pain medications required adjustment because Dr. Levin had received notification from Sacramento that Neurontin, which was one of the medications used to treat Plaintiff's pain, could only be used for FDA approved indications. (Levin Decl. ¶ 21.)

On October 19, 2004, the Medical Board of California sent Plaintiff a letter stating that based on his complaint against Dr. Nguyen, Medical Board Case number 10-2004-155123, the Board was referring the case to the California Attorney General's Office Health Quality Unit. (Pl.'s Decl., Ex. A, at A1.)

On November 16, 2004, the California Department of Corrections Inmate Appeals Branch denied Plaintiff's appeal, log number CAL-04-00078, regarding Dr. Nguyen's failure to prescribe Plaintiff antibiotics, after finding that Plaintiff was provided tetracycline*fn8 on August 16, 2004, and that Plaintiff's blood work was negative for infection on September 16, 2004. (Id., Ex D, at D5.)

On April 12, 2005, Plaintiff received Demerol*fn9 for his pain, and defendant Dr. Nguyen ordered a bone densitometry scan on Plaintiff's neck. (Levin Decl. ¶ 22.) On June 21, 2005, Plaintiff received morphine*fn10 for his pain. (Levin Decl. ¶ 23.)

On July 12, 2005, Dr. Nguyen requested Plaintiff receive a consultation with a pain management specialist, and on October 18, 2005, an orthopedic surgery consultation was requested. (Id. ¶ 22.) On October 19, 2005, Plaintiff received an MRI of his cervical spine, which revealed moderate narrowing of the C5-6 and C6-7 discs with cord encroachment. (Pl.'s Decl., Ex. C, at C5-6; Levin Decl. ¶¶ 22, 24.) On November 9, 2005, the Calipatria Supervising Nurse was unable to locate a provider that performed cervical epidural injections. (Levin Decl. ¶ 22.) On January 26, 2006, Plaintiff received Demerol for his pain. (Id. ¶ 25.)

On January 26, 2006, gram stains and cultures were performed on material taken from an abscess on Plaintiff's left leg. (Defs.' Mot., Ex. 2, at 1178.) Besides a light growth of bacteria presumed to have resulted from skin contamination, no organisms were isolated from the cultures, and the gram stain did not reveal organisms or leukocytes.*fn11

A note in Plaintiff's chart on February 16, 2006 indicated that Dr. Smith did not perform cervical epidural injections. (Levin Decl. ¶ 22.) Also on February 16, 2006, defendant Dr. Levin approved a request that Plaintiff receive a cervical epidural injection from Dr. Abdulhadi on March 17, 2006. (Id.) Plaintiff received a cervical epidural steroid injection on or about March 17, 2006. (Levin Decl. ¶ 26, Defs.' Mot., Ex. 2, at 1353.) On April 4, 2006, a medical practitioner told Plaintiff that past attempts to find a medical provider that performed cervical epidural injections were unsuccessful under the circumstances, but that a provider had been located that was able to perform the procedure. (Defs.' Mot., Ex. 2, at 591-92.)

On March 30, 2006, Dr. Smith indicated that Plaintiff had received a cervical epidural steroid injection approximately two weeks prior, and that Plaintiff should follow up with Dr. Smith in six to eight weeks. (Levin Decl. ΒΆ 26, Defs.' Mot., Ex. 2, at 1353.) On April 14, 2006, Plaintiff received another cervical epidural steroid injection at Alvarado Hospital. (Defs.' Mot., Ex. 2, at 590.) On April 21, 2006, Plaintiff received his third cervical epidural steroid ...

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