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Perry L. Tatmon v. James D. Hartley

February 16, 2011

PERRY L. TATMON, PLAINTIFF,
v.
JAMES D. HARTLEY,
LONNIE WATSON,
SANDRA R. PENNYWELL,
ELLEN GREENMAN, ERICA WIENSTEIN,
DOCTOR S. SURYADEVARA,
KATHY JONES, Y. PAIK, J. PAPPENFUS,
JULIE DUKES, RICHARD MERRILL,
DELACRUZ, MYORAL, CHABAK, E. EVERETT, AVALA, LORRAINE AVALOS, DEFENDANTS.



The opinion of the court was delivered by: Honorable Mikel H. Williams United States Magistrate Judge

REPORT AND RECOMMENDATION

Currently pending before the Court are the following motions: Defendants Avalos, Chabak, Dela Cruz, Dukes, Everett, Greenman, Hartley, Jones, Mayoral, Merrills, Pappenfus, Pennywell, Watson and Weinstein's Motion for Summary Judgment (Dkt. 96); Defendant Paik's Motion for Summary Judgment (Dkt. 97); and Defendant Suryadevara's Motion for Summary Judgment (Dkt. 98).

I.

BACKGROUND

Plaintiff Perry L. Tatmon ("Plaintiff"), a prisoner at Avenal State Prison ("ASP"), brings this complaint pursuant to 42 U.S.C. § 1983, alleging that Defendants acted with deliberate indifference to his medical needs in violation of his Eighth Amendment right to be free from cruel and unusual punishment. The Defendants include James D. Hartley, Lonnie Watson, Sandra Pennywell, Ellen Greenman, Erica Weinstein, Sampath Suryadevara, Kathy Jones, Young Paik, John Pappenfus, Julie Dukes, Richard Merrills, Rodolpho Dela Cruz, Fabiola Mayoral, Steven Chabak, Estelle Everett, and Lorraine Avalos.

Plaintiff's Complaint alleges that he suffered a severe injury to his left hip on November 11, 2002 at Pleasant Valley State Prison. He was transferred to ASP on April 29, 2003. Plaintiff alleges that while he was housed at ASP, Defendants were deliberately indifferent to his hip injury, including delayed treatment, improper treatment and failure to provide physical therapy after hip surgery. He alleges that he attempted on several occasions to get treatment for his hip and has filed several 602 inmate appeals. Plaintiff also alleges that in January 2005, he injured his left foot, breaking a bone of the heel and damaging the Achilles tendon.

II.

DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is 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). One of the principal purposes of the summary judgment "is to isolate and dispose of factually unsupported claims . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is "not a disfavored procedural shortcut," but is instead the "principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).Material facts are those which may affect the outcome of the case. See id. at 248.

The evidence must be viewed in the light most favorable to the non-moving party, id. at 255, and the Court must not make credibility findings. Id. Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988). In addition, the Court must be "guided by the substantive evidentiary standards that apply to the case." Liberty Lobby, 477 U.S. at 255.

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party's case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000).

This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in her favor. Id. at 256-57. The non-moving party must go beyond the pleadings and show by "affidavits, or by the depositions, answers to interrogatories, or admissions on file" that a genuine issue of material fact exists. Celotex, 477 U.S. at 324.

B. Material Facts

Plaintiff is an inmate incarcerated at Avenal State Prison ("ASP"). Defendant Greenman has been the Chief Medical Officer at ASP from September 2007 to present. Defendant Weinstein worked as the Health Care Manager at ASP from March 2007 until November 3, 2007. Defendant Pappenfus was employed as a physician and surgeon at ASP from 1991 to 2006. Defendants Mayoral and Dela Cruz are Licensed Vocational Nurses (LVNs) at ASP. Defendants Everett and Chaback are physical therapists at ASP. Defendant Merrills is a registered nurse employed at ASP. Defendant Avalos is a medical assistant in the optometry clinic at ASP. Defendants Hartley and Watson were wardens at ASP and Defendant Pennywell worked as Facility Captain and Acting Associate Warden at ASP. Defendant Jones was a Health Care Service Administrator at ASP from February 2007 to February 2009. Defendant Dukes was a health records supervisor at ASP. Defendant Suryadevara was Chief Medical Officer at ASP from May 8 through December 31, 2006. Defendant Paik is an outside referral orthpedic specialist who performed left hip surgery on Plaintiff following a referral from ASP medical staff.

On November 11, 2002, Plaintiff injured his left hip and left rib cage while playing basketball at Pleasant Valley State Prison. He was taken to the emergency room and seen by Dr. Kim, M.D. X-rays were taken and Dr. Kim interpreted them as showing a fracture of the femoral neck. Plaintiff was transferred to the community hospital facility off prison grounds against his wishes.

At San Joaquin Community Hospital, Plaintiff was seen in the emergency room by Dr. Greenstein, M.D., who concurred that there was a left femoral neck fracture. Dr. Greenstein discussed the consequences and possible complications of not treating the condition but Plaintiff refused any treatment, including surgical intervention and was transferred back to the prison. The official x-ray report of November 11, 2002, read by radiologist Richard Peterson, M.D. was mild osteoarthritis of the left hip, no fracture was seen, which contradicted the initial interpretation of the x-rays by Dr. Kim at the prison emergency room.

On November 12, 2002, Plaintiff was transferred back to San Joaquin Community Hospital for reevaluation of his left hip by an orthopedist. Dr. Vahdatya Amirpour, an orthopedist, examined Plaintiff on November 13, 2002. Plaintiff complained of pain over the left iliac area and denied any problems with the pelvis or hip in the past. Dr. Amirpour reviewed the x-ray and did not see a fracture but instead osteoarthritis and deformity. He recommended rest, ice packs, pain control and gradual mobilization; he did not recommend surgery. Plaintiff was discharged and given the medication Celebrex.

Plaintiff has a congenital problem known as femoral acetabular impingement which was a relatively new diagnosis as of 2002, especially to non-orthopedists. It can cause osteoarthritis. The November 11, 2001 x-ray showed significant osteophytes growing off the acetabulum and the femoral neck. Dr. Kim and Dr. Greenstein misread the films. Dr. Amirpour correctly ...


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