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James Oliver v. Tom Carey

August 23, 2011

JAMES OLIVER, PLAINTIFF,
v.
TOM CAREY, ET AL.,
DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Defendants move for summary judgment. Dckt. No. 91. For the reasons that follow, the court concludes that summary judgment should be granted in favor of defendants Noriega and Mahmoud. The court further finds that plaintiff must show cause why his claims against deceased defendant Thor should not be dismissed.

I. Procedural Background

This action proceeds on the December 20, 2006 amended complaint in which plaintiff alleges that defendant medical doctors were deliberately indifferent to his serious medical needs by failing to appropriately respond to and treat a condition in his elbow and triceps. Dckt. No. 12, Am. Compl. at 3-5. The court ordered service of the complaint on defendants Noriega, Mahmoud, Solomon, and Thor on May 5, 2009. Dckt. No. 29. On March 10, 2010, the court ordered defendants Solomon, Thor, and Noriega to file an answer within 30 days of that date. Dckt. No. 59. The same day, the court again ordered service on defendant Mahmoud, who had not yet been served. Dckt. No. 60. Defendant Solomon filed an answer on March 22, 2010, and defendants Noriega and Thor filed an answer on April 8, 2010. Dckt. Nos. 64, 65.

On April 28, 2010, counsel for defendants filed a suggestion of death under Federal Rule of Civil Procedure 25(a), informing the court that defendant Thor had died. Dckt. No. 68. Despite several attempts, plaintiff has failed to substitute a proper party for defendant Thor. The court granted plaintiff extended discovery until March 24, 2011 to ascertain the identity of a proper party to be substituted for defendant Thor. Dckt. No. 92. Despite the passage of 5 months since the expiration of that discovery period, plaintiff has not filed a proper motion for substitution. Plaintiff's opposition to defendants' motion for summary judgment makes no mention of defendant Thor. Accordingly, the court will order plaintiff to show cause within 30 days of service of this order why his claims against defendant Thor should not be dismissed. See Fed. R. Civ. P. 25(a)(1) ("If the motion [for substitution of a deceased party] is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.").

On September 1, 2010, plaintiff voluntarily dismissed his claims against defendant Solomon. Dckt. No. 82. Remaining defendants Mahmoud and Noriega filed a motion for summary judgment on January 21, 2011. Dckt. No. 91.

II. Defendant Mahmoud

Plaintiff states in his opposition to defendants' motion for summary judgment that, "upon review of the records, [plaintiff] does not oppose Summary Judgment with respect to Defendant MAHMOUD."Pl.'s Opp'n to Defs.' Mot. for Summ. J. (hereinafter "Pl.'s Opp'n"), Dckt. No. 98 at 1. Accordingly, summary judgment in favor of defendant Mahmoud should be granted, and the court addresses substantively only the motion for summary judgment as it pertains to defendant Noriega.

III. Factual Background

In his Amended Complaint, filed December 12, 2006, plaintiff alleges that defendant Noriega was deliberately indifferent to the pain he was suffering as the result of an elbow injury because defendant Noriega failed to properly complete paperwork in July 2004 to ensure that plaintiff was timely seen by the orthopedist. Dckt. No. 12 at 4.

The parties do not dispute the following facts*fn1 Plaintiff was transferred from R.J. Donovan Correctional Facility to CSP-Solano on July 13, 2004. Defs.' Mot. for Summ. J., Stmt. of Undisp. Facts In Supp. Thereof (hereinafter "SUF"), Dckt. No. 91-1, Nos. 1-2. Defendant Noriega worked as a general physician at CSP-Solano in 2004 and 2005. SUF No. 3. Defendant Noriega saw plaintiff twice in 2004, but did not treat plaintiff with respect to his elbow injury in 2005. SUF Nos. 5-6. Plaintiff first saw defendant Noriega on July 20, 2004, complaining of elbow pain. SUF No. 11. Defendant Noriega filled out a routine referral for plaintiff to see orthopedist Dr. Kofoed. Id. The parties dispute whether Defendant Noriega actually submitted the referral. See SUF No. 11; Pl.'s Opp'n at 2. Defendant Mahmoud also completed a routine referral for plaintiff to see Dr. Kofoed on November 17, 2004. SUF No. 15. Defendant Mahmoud's request for an orthopedic appointment was approved seven days later. SUF No. 16.

Plaintiff was actually seen by Dr. Kofoed on June 21, 2005, eleven months after he initially saw Dr. Noriega. SUF No. 24. Dr. Kofoed recommended a cortisone injection and a follow-up appointment in four-to-six weeks. SUF No. 31. In Dr. Kofoed's opinion, plaintiff's injury was not an emergency that required immediate surgery, but was rather the type of injury that could resolve without surgical intervention. SUF Nos. 32, 34. Dr. Kofoed treated such injuries conservatively with cortisone injections and rehabilitation therapy for six months to one year prior to surgery to see if the injury would resolve without surgery. SUF Nos. 33-34. When plaintiff reported no improvement with the cortisone injection on August 2, 2005, Dr. Kofoed submitted a routine request for reparative surgery, just over one year after plaintiff initially saw Dr. Noriega. SUF Nos. 35-36. Dr. Noriega sat on the Medical Authorization Review Committee that approved the surgery request. SUF No. 36. Plaintiff received the surgery on December 20, 2005. SUF No. 38.

During 2004-2005, Dr. Kofoed was the only orthopedic specialist available for the inmates at CSP-Solano. SUF No. 26. Dr. Kofoed did not work at the prison, but went there several times a month and was able to see about 40-60 inmates per month. SUF No. 27. There was a backlog of inmates who wanted to see Dr. Kofoed. Id. Dr. Kofoed and his orthopedic clinic made their own determinations of the priority of the inmates' needs. SUF 28.

IV. Summary Judgment Standards

Summary judgment is appropriate when there is "no genuine dispute as to any material fact and [ ] the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant to the determination of the issues in the case, or in which there is insufficient evidence for a jury to determine those facts in favor of the non-movant. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment motion ...


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