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Edwardo Desantiago, (Cdcr #V-98424 v. Oh

July 21, 2011

EDWARDO DESANTIAGO, (CDCR #V-98424) PLAINTIFF,
v.
OH, M.D.; L. MARQUEZ, R.N.,
DEFENDANTS.



The opinion of the court was delivered by: Honorable Barry Ted MoskowitzUnited States District Judge

ORDER: (1) GRANTING DEFENDANT MARQUEZ'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO FED.R.CIV.P. 56(c) [Doc. No. 35]; and (2) ISSUING ORDER TO SHOW CAUSE WHY DEFENDANT OH SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE PURSUANT TO FED.R.CIV.P. 4(m)

I. PROCEDURAL BACKGROUND

Edwardo DeSantiago ("Plaintiff"), a state prisoner currently incarcerated at Calipatria State Prison ("CAL"), proceeding pro se and in forma pauperis, has filed this civil rights action pursuant to 42 U.S.C. § 1983. Defendant Marquez*fn1 has filed a filed a Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 [Doc. No. 35]. The Court notified Plaintiff of the requirements for opposing summary judgment 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) [Doc. No. 36]. After being granted an extension of time [Doc. No. 30], Plaintiff filed an Opposition [Doc. No. 52], to which Defendants have filed a Reply [Doc. No. 54].

II. FACTUAL BACKGROUND

Plaintiff was first seen at the CAL medical clinic regarding his issues relating to his ear on December 5, 2007. (See Defs.' Mot. for Summ. J., Ex. A, Encounter Form: Earache dated Dec. 5, 2007). At the time Plaintiff was initially seen with regard to his ears, Plaintiff was examined by Defendant Leticia Marquez, a registered nurse at CAL. (See Decl. of Leticia Marquez at ¶ 3.) During this examination, Defendant Marquez declares that Plaintiff "complained of ear problems generally, an ear infection, and severely clogged ears, with mild pain and itching in the left ear." (Id.) Defendant Marquez found "dark cerumen (ear wax), but no bleeding, drainage or pus." (Id. at ¶ 4.) Due to Plaintiff's complaints of ear pain, Defendant Marquez gave him a prescription for Tylenol, Debrox ear drops, instructed him to "avoid putting anything in his ears," and to come back to the clinic within 72 hours for a "lavage of both ears." (Id. at ¶ 5.)

In his Complaint, Plaintiff makes no mention of this December 5, 2007 examination and only refers to an examination on December 10, 2007 during which he claims that he went to the medical clinic for a "medical procedure of having both his ears lavaged" due to "excessive wax build-up." (Compl. at 4.) An ear lavage is a cleaning procedure in which a syringe "is positioned outside the ear canal" and releases a flow of a "mixture of lukewarm water and hydrogen peroxide into the ear canal with the objective of loosening and ridding the ear canal of excess cerumen." (Marquez Decl. at ¶ 7.) Marquez initially performed a lavage on Plaintiff's right ear that was "without incident." (Compl. at 4.) Plaintiff then claims Marquez "began lavaging plaintiff's left ear canal by pushing the syringe deep into the canal of plaintiff's left ear, causing pain." (Id.) When Plaintiff complained of pain he claims that Marquez refused to stop the procedure, told Plaintiff he was a "big baby," and continued to push the syringe deeper into Plaintiff's ear which he claims "eventually" ruptured his left ear drum . (Id.)

Defendant Marquez declares that when Plaintiff began to complain of ear pain she "stopped the procedure immediately" and examined Plaintiff's ear. (Marquez Decl. at ¶ 8.) She noted that the "ear canal appeared uninjured and there was no drainage or pus discharge," in addition she noted that the "eardrum was intact." (Id.) Defendant also submits the interdisciplinary progress notes dated December 10, 2007 in which Defendant Marquez noted the complaint of ear pain and indicates that she conferred with Dr. Oh who examined Plaintiff. (See Def, Ex. B, Interdisciplinary Progress Notes dated Dec. 10, 2007.) Plaintiff disputes that the allegation that Dr. Oh performed an examination but does agree that Dr. Oh directed Plaintiff to continue putting the previously prescribed ear drops in his ears. (See Compl. at 5.)

Defendant Marquez "gave Plaintiff a pass to return to the Clinic for a lavage," instructed him to use the ear drops and to "avoid putting anything else in his ears." (Marquez Decl. at ¶ 9, Defs.' Ex. B.) Defendant Marquez did not "see or examine Plaintiff after December 10." (Id. at ¶ 10.) Plaintiff alleges that following the procedure, he notified Correctional Officer Mendoza*fn2 that he was experiencing "extreme pain" and Officer Mendoza arranged for Plaintiff to be seen by Dr. Oh. (Compl. at 5.) Dr. Oh allegedly told Plaintiff to continue using the ear drops despite the "extreme pain and hearing impairment plaintiff was having." (Id.)

Later that night, Plaintiff alleges that he woke up in extreme pain and his left ear was bleeding. (Id. at 6.) On December 11, 2007, Plaintiff returned to the Medical Clinic where he claims he was seen by Defendant Marquez. (Id.) He claims Defendant Marquez attempted to cover up her "culpability" by writing in Plaintiff's medical file that he was "instructed to use ear drops & do not put anything else in his ear." (Id.) Plaintiff was transferred to a different Medical Clinic where he was again examined on December 12, 2007 for the pain he was feeling in his left ear. (Id.) The nurse practitioner examined Plaintiff and referred him to be seen by a physician. (Id. at 7.) Plaintiff was examined by Dr. Hjerpe*fn3 on December 19, 2007 who determined that Plaintiff's left ear drum had been ruptured and an infection was also detected. (Id.) Dr. Hjerpe prescribed Plaintiff medication, ordered a referral to an Otolaryngologist and opined that Dr. Oh's recommendation to continue the ear drops "only exacerbated an already injured ear drum." (Id.) Plaintiff had a hearing test on March 28, 2008 which showed that "most of plaintiff's hearing" in his left ear had returned. (Id. at 8.) A later consultation in May of 2008 with Dr. Levin*fn4 indicated that Plaintiff sustained permanent damage to his "(1) middle ear mucora; (2) collagen; and (3) epithelium." (Id.)

III. DEFENDANTS'MOTION FOR SUMMARY JUDGMENT

A. Standard of Review

Summary judgment is properly granted when "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). Entry of summary judgment is appropriate "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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court shall consider all admissible affidavits and supplemental documents submitted on a motion for summary judgment. See Connick v. Teachers Ins. & Annuity Ass'n, 784 F.2d 1018, 1020 (9th Cir. 1986).

The moving party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970). However, to avoid summary judgment, the non-movant cannot rest solely on conclusory allegations. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Rather, he must present "specific facts showing there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The Court may not weigh evidence or make credibility determinations on a motion for summary judgment.

Quite the opposite, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. Id. at 255; United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The non-movant's evidence need only be such that a "fair minded jury could return a verdict for [him] on the evidence presented." Anderson, 477 U.S. at 255. However, in determining whether the non-movant has met his ...


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