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KEITH SEKERKE v. JASON SILVA

November 24, 2010

KEITH SEKERKE,
PLAINTIFF,
v.
JASON SILVA, DOCTOR,
DEFENDANTS.



The opinion of the court was delivered by: John A. Houston United States District Judge

Inmate Booking No.10777240,

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO FED.R.CIV.P.56(c) [Doc. No. 60]

I. STATEMENT OF THE CASE

Keith Sekerke, ("Plaintiff"), a state prisoner currently at housed at the George Bailey Detention Facility located in San Diego, California, is proceeding pro se and in forma pauperis with a Complaint filed pursuant to the Civil Rights Act, 42 U.S.C. § 1983.*fn1 Currently pending before the Court is Defendant Silva's Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 [Doc. No. 60].

II. PROCEDURAL BACKGROUND

Defendant Silva moves for summary judgment on the ground that there are no genuine issues of material facts to show that he violated Plaintiff's Eighth Amendment right to adequate medical care. On September 22, 2010, the Court advised Plaintiff of his rights and obligations to oppose Defendant's Motion pursuant to Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc).*fn2 On October 26, 2010, the Court issued an Order vacating the hearing date and informing the parties that the matter would be taken under submission. Noting that Plaintiff had recently filed a notice of change of address, the Court provided Plaintiff with additional time to file an Opposition. See Oct. 26, 2010 Order at 1-2. On October 27, 2010, Plaintiff filed his first Opposition. However, Plaintiff later submitted a second Opposition which the Court permitted Plaintiff to file due to the fact that the Court's October 26, 2010 Order was received by Plaintiff after he had submitted his first Opposition. Defendant Silva filed a Reply on November 15, 2010.

Having now exercised its discretion to consider the matter as submitted on the papers without oral argument pursuant to S.D. CAL. CIVLR 7.1.d.1, the Court hereby GRANTS Defendant's Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 for the reasons set forth in detail below.

III. PLAINTIFF'S FACTUAL ALLEGATIONS

Plaintiff was formerly incarcerated at the Richard J. Donovan Correctional Facility ("RJD"). (See Compl. at 1.) Plaintiff alleges that he had brain surgery on April 16, 2008. (Id. at 3.) Plaintiff was released from the hospital and returned to RJD on May 19, 2008. (Id.) Approximately one week later, a nurse examined Plaintiff and found that an "abscess formed that needed to be treated" in the location where Plaintiff's surgery had been performed. (Id.) Plaintiff alleges that Dr. Jason Silva "refused to let [Plaintiff] be brought to the infirmary to be treated." (Id.) Four days later, Plaintiff claims that the abscess had ruptured requiring Plaintiff to be transported to the hospital by ambulance. (Id.) Plaintiff was hospitalized for several days and had seizures following this incident. (Id.)

IV. DEFENDANTSILVA'SFACTUALALLEGATIONS

On March 31, 2008, Plaintiff was hospitalized at Alvarado Hospital, while in state custody, where he "underwent decompression of a posterior fossa arachnoid cyst and a posterior fossa cyst-to-peritoneum shunt." (Def's Ex. E, Discharge Summary dated 4/3/2008) Approximately two weeks later Plaintiff was transferred to UCSD Medical Center where the shunt was removed on April 21, 2008. (Id.) Plaintiff was discharged on April 23, 2008 and returned to RJD. (Id.) On or about May 23, 2008, Plaintiff received an MRI. (Def.'s Ex. D, Physician Progress Notes dated May 27, 2008).

Two days later, following complaints of head pain, Plaintiff was taken to the "Triage Treatment Area ("TTA") where he was examined by Senior Registered Nurse Hiles.*fn3 (See Def.'s Ex. A, Declaration of Dr. Jason Silva at ¶ 3.) Nurse Hiles arranged for Plaintiff to be seen by Dr. Silva two days later. (Id.) On May 27, 2008, Plaintiff was first examined by Registered Nurse Carrillo*fn4 who determined that the incision on Plaintiff's head following surgery was healing and there were no signs of drainage or discharge. (Id. at ¶ 6) Plaintiff was then examined by Dr. Silva. (Id. at ¶ 7) Plaintiff informed Dr. Silva that he had an infection when he was discharged from Alvarado but Dr. Silva could not confirm this in Plaintiff's records. (Id.¶¶ 4-5.) Moreover, while Plaintiff informed Dr. Silva that he had headaches in the days prior, he did not have a headache at the time of the examination with Dr. Silva. (Id.) Plaintiff requested a prescription of Tylenol #3. (Id.) Dr. Silva examined Plaintiff and found that he was "neurologically intact, his vitals were stable, he was not experiencing any symptoms of encephalitis or meningitis, and there were no signs of infection around the surgical site." (Id.¶ 8.) Defendant Silva then discussed Plaintiff's case with Dr. Ivy Choo, the Chief Medical Officer at RJD.*fn5 Together Dr. Silva and Dr. Choo determined that Imitrex, a medication typically used for migraines, was the best course of treatment for Plaintiff. (Id. ¶ 9.) They were concerned with prescribing Tylenol #3, a narcotic, "due to the risk of dependency and addition." (Id.) Plaintiff disagreed with this prescription, became argumentative and "was escorted by a correctional officer to his housing unit in a stable condition." (Id. at ¶ 10.) Dr. Silva then reviewed Plaintiff's Discharge Summary from Alvarado Hospital and determined that Imitrex was the best course of treatment. (Id. ¶ 12.)

Later that same day, Plaintiff was doing "sit-ups or push-ups in his cell, which put pressure on the back of his head and caused him pain." (Defs.' Ex. R, Pl.'s Deposition at 75:14-21; Ex. L, Declaration of T. Wichman at ¶ 4.) Registered Nurse Wichman*fn6 came to Plaintiff's cell and found that Plaintiff's vitals were stable, there were no neurological deficits, plaintiff's skin was cool and dry, and he was not experiencing nausea or vomiting." (Wichman Dec. at¶ 4.) Nurse Wichman called Dr. Silva to report Plaintiff's complaints. (Id. at ¶ 7.) Based on Nurse Wichman's assessment and report, Dr. Silva "treated plaintiff's condition by giving orders to RN Wichman for plaintiff to continue receiving Imitrex (Sumatriptan) and for plaintiff to follow-up with the yard physician." (Id.) Plaintiff did not agree with this course of treatment.

(Id. at ΒΆ 8.) Nurse Wichman informed Dr. Silva that Plaintiff still wanted to see him but Dr. Silva did not examine Plaintiff "given that ...


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