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Nyles Lawayne Watson v. D.K. Sisto et al

October 28, 2011

NYLES LAWAYNE WATSON, PLAINTIFF,
v.
D.K. SISTO ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER and FINDINGS AND RECOMMENDATIONS

I. Introduction

Plaintiff is a state prisoner proceeding in forma pauperis, with appointed counsel, in this civil rights action filed pursuant to 42 U.S.C. § 1983. Pending is defendants' motion for summary judgment, filed August 16, 2011. Plaintiff filed an opposition, and defendants filed a reply. The motion was heard before this court on September 29, 2011. Plaintiff was represented by attorney Matthew J. Silveira; defendants were represented by Deputy Attorney General Catherine Woodbridge Guess. For the reasons set forth below, this court recommends that defendants' motion for summary judgment be granted.

II. Background

Plaintiff initiated this action on August 28, 2007 (Dkt. No. 1), which now proceeds on plaintiff's First Amended Complaint, filed June 15, 2009 (Dkt. No. 65). At all relevant times, plaintiff was incarcerated under the authority of the California Department of Corrections and Rehabilitation ("CDCR"), at California State Prison-Solano ("CSP-S"). Plaintiff is presently incarcerated at the California Substance Abuse and Treatment Facility ("CSATF"), in Corcoran, California, where he was transferred on April 13, 2011.

On March 30, 2011, this court granted in part, and denied in part, defendants' motion to dismiss this action. (Dkt. Nos. 96, 98.) The court dismissed defendants CDCR and CSP-S, and plaintiff's claims pursuant to the Americans with Disabilities Act and the Rehabilitation Act. As a result, this action proceeds on: (1) plaintiff's Eighth Amendment claims that defendant physicians Traquina, Tan and Rohrer were deliberately indifferent to plaintiff's serious medical needs; (2) plaintiff's First Amendment retaliation claims against defendants Tan and Traquina; and (3) plaintiff's claim for injunctive relief against all defendants.*fn1

III. Legal Standards for Summary Judgment

Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil Procedure 56(c) is met. "The judgment sought should be rendered if . . . there is no genuine issue as to any material fact, and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), quoting Federal Rule of Civil Procedure 56(c). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, 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. Id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586, n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Anderson, 477 U.S. at 248; T.W. Elec. Serv., 809 F.2d at 631.

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 630. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e), Advisory Committee's note on 1963 amendments).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 586 (citation omitted).

On January 17, 2008, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 7.) See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).

IV. Evidentiary Challenges

In addition to contesting the parties' respective requests for judicial notice (see Plaintiff's Request for Judicial Notice (Dkt. No. 110); and Defendants' Request for Judicial Notice (Dkt. No. 106-2)), the parties have interposed several objections to the evidence relied upon by opposing counsel (see Plaintiff's Objections to Evidence (Dkt. No. 112); Defendants' Response to Plaintiff's Objections to Evidence (Dkt. No. 113-2); Defendants' Objections to Plaintiff's Evidence (Dkt. No. 113-3); and Plaintiff's Responses to Defendants' Objections to Plaintiff's Evidence (Dkt. No. 114)). The court makes the following orders:

1. Plaintiff's request is granted that the court take judicial notice of the following documents filed in this action -- the original complaint (Dkt. No. 1); plaintiff's motion for preliminary injunctive relief (Dkt. No. 24); defendants' opposition thereto (Dkt. No. 26); the declaration of defendant Traquina filed in support of defendants' opposition to plaintiff's motion for preliminary injunctive relief (Dkt. No. 43); and the court's Amended Findings and Recommendations filed February 4, 2011 (Dkt. No. 96).*fn2 In addition, the court grants defendants' request to take judicial notice of the court's order directing defendant Traquina to file a declaration in support of defendants' opposition to plaintiff's motion for preliminary injunctive relief (Dkt. No. 40) and, also requested by plaintiff, defendant Traquina's responsive declaration (Dkt. No. 43). These documents are generally noticed for their existence, but not for the truth of the matters stated therein. See MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986); Fed. R. Evid. 201(b) (judicial notice of court records); Fed. R. Evid. 803(8) (public record exception to hearsay rule). An exception is defendant Traquina's declaration, made under penalty of perjury, which is noticed as an affidavit of asserted facts pertinent to both plaintiff's motion for preliminary injunctive relief and defendants' motion for summary judgment. Fed. R. Civ. P. 56(c)(4); see also Fed. R. Evid. 803(4) (medical diagnosis exception to hearsay rule). To the extent that the court has made prior relevant factual findings in these noticed documents, it abides by those findings.

2. Plaintiff's request that the court take judicial notice of an "Accusation" against defendant Tan, made before the Medical Board of California, Department of Consumer Affairs, on April 6, 2011 (see Dkt. No. 110 at 2;*fn3 Exh. 6), is denied. This document requests a hearing before the Medical Board to consider the proposed discipline of defendant Tan for alleged negligence in providing care to seven CSP-S inmate patients during the relevant period. None of the anonymously-identified patients appears to be plaintiff, and plaintiff does not assert that he is one of these patients. The court concludes that this document has no relevance to defendant Tan's role in plaintiff's care, nor to the supervision of Tan by defendant Traquina relative to plaintiff's care. See Fed. R. Civ. P. 26(b)(1) (setting forth relevance parameters).

3. Defendants' objection to the admissibility of plaintiff's several administrative appeals and additional communications with defendant Traquina, on the ground that the statements contained therein are hearsay under Federal Rule of Evidence 802, is overruled. Plaintiff's numerous appeals are admitted for the purpose of ascertaining the timing and content of plaintiff's statements and requests at these various intervals, as well as defendants' awareness of plaintiff's concerns, and the timing and nature of defendants' responses. See Fed. R. Evid. 801(d) (prior statements of witness and party-opponents not hearsay); see also Fed. R. Evid. 803(3) (statement of existing mental, emotional or physical condition exception to hearsay rule), 803(4) (medical diagnosis and treatment exception to hearsay rule), 803(5) (recorded recollection exception to hearsay rule); see also U.S. v. Chavis, 772 F.2d 100, 105 (5th Cir. 1985) (affirming admission of records "to show that defendants were notified of the complaints," not for the truth of the statements contained in the complaints); U.S. v. Cantu, 876 F.2d 1134, 1137 (5th Cir. 1989) (reversing trial court's exclusion of witness statements admitted solely for the purpose of demonstrating that the statements were made, not for their truth, explaining that "[t]he statements were not offered as an assertion of a fact but, rather, as the fact of an assertion").

4. Defendants' objection to the admissibility of a September 14, 2005 letter to plaintiff, from Dr. Renee Kanan, Director of CDCR's Division of Correctional Health Care Services (Dkt. No. 109-15 at 10-11 (Pltf. Exh. N)), is overruled. While the letter does not directly reference any defendant physician, copies of the letter were sent to the CSP-S Warden and the CSP-S Health Care Manager. As with plaintiff's appeals and responses thereto, Dr. Kanan's letter is probative as to the timing and content of plaintiff's stated concerns, and defendants' awareness of, and responses to, those concerns. See U.S. v. Chavis, supra, 772 F.2d at 105; U.S. v. Cantu, supra, 876 F.2d at 1137.

5. Plaintiff's objections to the admissibility of several statements made by each of the medical defendants in their respective declarations filed in support of defendants' motion for summary judgment (See Dkt. No. 112), are overruled. The opinions of each medical defendant, set forth in their respective sworn statements (as well as in their deposition testimony), are relevant to defendants' subjective intent, and therefore to the court's assessment of plaintiff's deliberate indifference and retaliation claims. The court may not, on a motion for summary judgment, assess the credibility of these witnesses, but is instead required to accept the representations of each defendant, made under penalty of perjury, that their respective affidavit is "made on personal knowledge," Fed. R. Civ. P. 56(c)(4). However, the court need not accept such representations where they appear to be unsupported or inadequately addressed. Fed. R. Civ. P. 56(c)(2) and (e)(2).

Finally, the court notes that plaintiff's complaint, filed by appointed counsel, is not verified, and therefore may not be considered as evidence for purposes of summary judgment. Cf. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (allegations contained in a pro se plaintiff's verified pleading must be considered as evidence on a motion for summary judgment).

V. Undisputed Facts

The following facts are either undisputed by the parties or, following the court's review of the evidence, subject to the qualifications noted above, have been deemed undisputed for purposes of the pending motion.*fn4

1. Plaintiff was transferred to CSP-S, from CSP-Sacramento, in 2001.

2. At all times relevant to this action, defendant physicians Jason Rohrer, Richard Tan, and Alvaro Traquina were employed as medical doctors at CSP-S. Defendant Traquina became the Chief Medical Officer ("CMO") at CSP-S on March 12, 2003.

3. At all relevant times, plaintiff had degenerative disc disease, which is an arthritic process in the spine by which the vertebral discs wear down and lose fluid. This condition reduces the ability of the discs to act as shock absorbers and makes them less flexible. The loss of fluid also makes the discs thinner and narrows the distance between the vertebrae. In addition, tiny tears or cracks in the outer layer (annulus or capsule) of the disc may result, and the jellylike material inside the disc (nucleus) may be forced out through these tears or cracks, which causes the disc to bulge, break open (rupture), or break into fragments.

4. Treatment for degenerative disc disease includes pain medication, epidural injections, use of a Trans Electrical Nerve Stimulation ("TENS") unit, physical therapy, and surgery; surgical results for degenerative disc disease are inconsistent.

5. At all times relevant to plaintiff's incarceration at CSP-S, the Medical Authorization Review Committee ("MARC") was responsible for approving referrals to outside medical specialists. Referrals that met "InterQual criteria" could be approved by the Utilization Management Nurse ("UM Nurse"), while referrals that did not meet "InterQual criteria" had to be submitted to the MARC for approval.

6. Plaintiff filed his first relevant inmate appeal*fn5 at CSP-S on September 24, 2002 (Log No. 02-1851), wherein he stated that he had experienced low back pain since sustaining a fall in 1998; that he had been issued a back brace that was taken away during a cell search at CSP-S; that he could not walk more than 100 feet, or sit more than 20 minutes, without pain; that he could not bend over without excruciating pain; and that the muscle relaxers and pain medication given plaintiff on September 21, 2002, were helping "very little." (Dkt. No. 109-8 at 17-21.) Plaintiff requested that he: "(1) . . . be given a back brace, (2) have a specialist prescribe the proper therapeutic treatment and/or surgery, [and] (3) be transferred to a facility that specialize[s] in treatment of lower back pain [such] as CMF [California Medical Facility]." (Id. at 19.) At the Informal Level Review, CSP-S physician Dr. Obedoza noted that plaintiff had been "seen on 9/23/02 [the previous day] for the same problem that you filed your 602 on," had been prescribed "proper medications," and was scheduled for a follow-up appointment in two weeks.

7. On October 23, 2002, defendant Traquina "partially granted" plaintiff's appeal (Log No. 02-1851) at the First Level Review, on the ground that plaintiff's medical issues had been addressed to his satisfaction by the treatment plan recommended by Dr. Traquina. Treatment notes for that date indicate that Dr. Traquina examined plaintiff's back, obtained an xray of plaintiff's lumbar spine that revealed "minimal degenerative changes with small osteophytes," and diagnosed low back pain due to degenerative disc disease. Dr. Traquina prescribed a muscle relaxant, anti-inflammatory medication, and a back brace; he restricted plaintiff from work for 29 days, and referred plaintiff for an orthopedic consultation. (Traquina Depo. at 113-15, 135-6; Exh. 53 at 4, 6; Exh. 56.) At the Second Level Review, issued November 4, 2002, plaintiff's appeal was "partially granted" on the ground that plaintiff had obtained a referral to a specialist and been "issued a chrono for a 29-day lay-in." Plaintiff was also provided another back brace. (See Plaintiff's Exh. 109-8 at 17-22; Traquina Depo., Exh. 55.) It appears that plaintiff did not further pursue this appeal.

8. On November 30, 2002, pursuant to Dr. Traquina's October 23, 2002 referral, plaintiff was seen by orthopedist Dr. Kofoed. Based on plaintiff's October 2002 x-rays, Dr. Kofoed diagnosed, at L5-S1, "grade 1-2 spondylolisthesis with arthritis degenerative disc disease." Dr. Kofoed referred plaintiff for a lumbar MRI and prescribed methadone to treat plaintiff's pain; Dr. Kofoed was the first doctor to prescribe methadone to plaintiff. Dr. Kofoed noted that plaintiff wore a "corset." (Traquina Depo., Exh. 53 at 7; Exh. 54 at 5; Exh. 57.)

9. On January 7, 2003, Dr. Traquina again saw plaintiff, who complained of back pain with radiating pain to the left leg. Plaintiff's methadone prescription and work release chrono had been renewed in December by CSP-S physician Dr. Obedoza. On examination, Dr. Traquina noted that plaintiff's lumbar range of motion was decreased from the previous exam. Dr. Traquina diagnosed chronic back pain with radiculopathy on the left. While noting that plaintiff was able to "walk more than 200 yards without assistance" and "denies leg claudication on distance," Dr. Traquina placed plaintiff on light duty for 90 days, and instructed plaintiff on back exercises. Dr. Traquina noted that an MRI was pending, and referred plaintiff for an "EMG/NCS" [electromagnetic/nerve conduction study] and a neurology consultation. (Traquina Depo. at 116-17; Exh. 53 at 6, 8; Exh. 58.)

10. On January 28, 2003, pursuant to Dr. Traquina's January 7, 2003 referral, plaintiff was seen by neurologist Dr. Mitchell, who noted that plaintiff wore a corset, took methadone for pain, and was awaiting an MRI ordered by Dr. Kofoed. Dr. Mitchell diagnosed "chronic LBP [low back pain] r/o [rule out] specific radiculopathy," based on plaintiff's EMG results that revealed "non-specific nerve conduction abnormalities suggestive of proximal sciatica v. S1 root irritation. However, unable to confirm specific radiculopathy on EMG. . . lumbar MRI pending." (Traquina Depo. at 139-41; Exh. 58 at 1-2.)

11. Pursuant to Dr. Kofoed's November 30, 2002 referral, plaintiff obtained a lumbar MRI on February 24, 2003, which revealed the following (Traquina Depo., Exh. 59 at 2; Exh. 67 at 6):

1. Mild spondylitic changes primarily at L5-S1 and minimally at L4-5.

2. Small posterior central annular tear at L4-5.

3. Small left neural foraminal/paracentral disk protrusion at L4-5.

4. Moderate-sized, broad-based, predominately posterior central/left paracentral disk protrusion at L5-S1 with narrowing of the lateral recess on the left.

12. On March 12, 2003, Dr. Traquina became the CMO at CSP-S.

13. On March 15, 2003, plaintiff again saw orthopedist Dr. Kofoed, who referred plaintiff for a neurosurgical evaluation "to see if pt. is surgical candidate." (Traquina Depo., Exh. 64.) The referral was authorized by the MU Nurse on August 12, 2003. (Id.)

14. On April 27, 2003, plaintiff completed an "Inmate Request for Interview," requesting an interview with CMO Traquina, in which he stated that "I am bring[ing] to your attention an issue that may reach your office by a 602 appeal. I've had an MRI and found that my back pain is do (sic) because of a bulge and tear in two different disks in my spine!" (Dkt. No. 109-15 at 1 (Pltf. Exh. K).) Plaintiff stated that his "light duty chrono" had not accompanied his transfer to a new yard and, as a result, "doctors on this yard . . . will not medically unassign me, for 30 to 60 days so I can be seen by the spine specialist in hopes of getting back surgery!" (Id. at 2.) Plaintiff requested that Dr. Traquina "notify one of the doctors on this yard to give me the proper documentation . . . so [my counselor] can medically unassign me until I've been seen by the spine specialist and/or until after the back surgery!" (Id.)

15. On May 28, 2003, Dr. Traquina responded as follows to plaintiff's April 27, 2003 "Request for Interview" (Dkt. No. 109-15 at 1):

Mr. Watson: So far you got evaluations by orthopedist, neurologist, and primary care physician. You need to be seen by a neurosurgeon and Dr. Toppenberg will make the referral today. All the necessary [tests] (MRI, nerve conduction studies and x-rays) are done.

16. On October 22 and 23, 2003, in response to an October 19, 2003 letter from plaintiff requesting that he be given a "no get down chrono" (because his "mobility vest" was not sufficient to deter "get down" orders by correctional officers), CMO Dr. Traquina asked Dr. Toppenberg to review plaintiff's medical history and issue any appropriate chronos. (Traquina Depo, Exh. 60.) Dr. Toppenberg issued the requested "no get down chrono," signed by Dr. Tan, who added that the chrono was to remain in effect for plaintiff's "[l]ength of stay at CSP-Solano until surgical correction done." (Id., Exh. 61; Tan Depo. at 59-60, Exh. 29.) Dr. Traquina approved the chrono on November 6, 2003. (Id.)

17. Plaintiff also stated in his October 19, 2003 letter to CMO Traquina that he had been waiting four months to see a spine specialist, pursuant to Dr. Kofoed's referral. (Traquina Depo., Exh. 60, at 3.)

18. On November 24, 2003, plaintiff saw Dr. Tan, apparently for the first time, for complaints, inter alia, of chronic low back pain. Dr. Tan noted that plaintiff had been referred for a surgical consultation by Dr. Kofoed on March 15, 2003 (authorized on August 12, 2003), and that plaintiff's most recent lumbar MRI had been conducted in February 2003. Dr. Tan continued plaintiff on methadone, and thereafter called the UM Nurse, who stated that a new MRI would need to be conducted before the consultation proceeded, which she would arrange as soon as possible. Dr. Tan requested the new MRI, and that the consultation be expedited. (Tan Depo. at 61-73; Exhs. 30, 31.) UM records indicate that expedition of plaintiff's neurosurgical consultation was requested on November 26, 2003, and a new MRI ordered on the same date; the referral was reprocessed and re-authorized on December 1, 2003.*fn6 (Traquina Depo., Exhs. 64, 65; Tan Depo, Exhs. 31, 32.)

19. On April 7, 2004, plaintiff obtained a second MRI, with the following results (Tan Depo., Exh. 32; Traquina Depo., Exh. 66 at 1-2):

1. Spondylitic changes primarily at L5-S1.

2. Broad-based posterior central disc protrusion at L5-S1.

3. Bilateral neural foraminal narrowing at L4-5 and L5-S1.

4. Additional small bilateral neural foraminal disc protrusions at L4-5.

5. Facet joint arthropathy at L4-5 and L5-S1.

20. Plaintiff had four sessions of physical therapy in May and June 2004. (Dkt. No. 109-14 at 3-4 (Pltf. Exh. H).) Pursuant to plaintiff's initial evaluation, the therapist established goals of reduced pain and implementation of a home exercise program; he opined that plaintiff had "good" motivation and that his rehabilitative prospects were "good." (Id. at 4.) The physical therapist met with plaintiff three more times, and discharged him with a notation that plaintiff was doing "well," that his range of motion was increasing "to near normal," and that he was "encouraged to continue back exercises" as directed. (Id. at 3.) Plaintiff reported his pain level, both at the commencement of physical therapy, and at its conclusion, as "3 out of 10" (on an ascending scale, with "0" being "no pain"). (Id.)

21. On August 16, 2004, more than one year after Dr. Kofoed's March 15, 2003 referral of plaintiff to a neurosurgeon,*fn7 and utilizing the results of plaintiff's February 2003 MRI (not his more recent April 2004 MRI), plaintiff was evaluated by Dr. Farr, a spinal surgeon at Manteca Hospital, who diagnosed degenerative disc disease at L4-5 (degenerative disc with "a bulge") and at L5-S1 ("severe degenerative changes with edema at the end plate"). Dr. Farr opined as follows:

At this point, I feel we should start with the pain management, consider epidural injection. If he still continues to have pain without any improvement from lumbar epidural injection, I will consider getting a discogram at L3-4, L4-5, and L5-S1 level. I also feel that patient should start wearing good supportive shoes. I will see him back after he has his lumbar epidural injection and discogram if he is not getting better.

(Dkt. No. 109-10 at 8 (Aug. 16, 2004 report of Dr. Farr); see also Traquina Depo., Exh. 67 at 7; Tan Depo. at 79-80, Exh. 34 at 7.)

22. During the period between plaintiff's November 2003 appointment with Dr. Tan, and his August 2004 consultation with Dr. Farr (during which plaintiff had his second MRI and four sessions of physical therapy), plaintiff filed two more inmate appeals. In the first of these appeals (plaintiff's second relevant appeal), filed February 19, 2004 (Log No. 04-0830), plaintiff stated that he was "pending spinal surgery," was in constant pain, his equilibrium was unstable and he had nearly fallen three times. (Pltf. Exh. 109-9 at 12-19.) Plaintiff sought the following relief: "(1) to be issued a walking cane, (2) given the opportunity to be interview[ed] by the therapist who will be giving me lower back therapy, [and] (3) because of Dr. Chen's lack of proper treatment to be allowed to be seen by Dr. Solomon." (Id. at 13.) At the Informal Level Review, Dr. Chen granted plaintiff's requests for a cane and physical therapy, but denied plaintiff's request to be seen by Dr. Solomon, because he worked at a satellite clinic. (Id.) At the First Level Review, issued April 1, 2004, Dr. Noriega "partially granted" the appeal on the ground that plaintiff had been found disabled ("permanently mobility impaired"), and hence, "[a] cane chrono was issued on March 8, 2004, and you received your walking cane on March 24, 2004. [¶ ] You have been referred to physical therapy and sessions will start in the very near future." (Id. at 18.) At the Second Level Review, issued May 20, 2004, CMO Traquina "partially granted" plaintiff's appeal, noting in pertinent part that "you will be seen by the Physical Therapist on May 24, 2004." (Id. at 12.) It appears that plaintiff did not further pursue this administrative appeal.

23. In his third relevant appeal, filed April 28, 2004 (Log No. 04-1511), plaintiff complained that his medical condition had been ignored by medical staff for more than eight months. (Traquina Depo., Exh. 63, at 3.) Plaintiff sought physical therapy; a "proper modern back brace;" a "therapeutic pillow and full mattress with therapeutic cones;" to be accorded "schedul[ing] on an urgent and routine basis;" and compensation. (Id.) The grievance was "partially granted" at the First Level Review, because plaintiff had already been provided back and wrist braces, he was prescribed methadone and also took naprosyn, and he was scheduled for a neurological consultation. (Id. at 9.) Plaintiff's request for a therapeutic mattress was denied on the ground that such mattresses are issued only to "inmate/patients with grade 1 or higher level pressure sores, complications from pressure sores or other related conditions;"*fn8 his request for a therapeutic pillow was denied as unnecessary. (Id.) At the Second Level Review, issued July 9, 2004, CMO Traquina "partially granted" this appeal, for the reasons previously stated, and because plaintiff had received physical therapy during the period May 24, 2004, to June 28, 2004, with a discharge statement by the physical therapist that plaintiff's range of motion had improved and plaintiff had been advised to continue his back exercises. (Id. at 2.) It appears that plaintiff did not administratively exhaust this appeal.

24. On September 17, 2004, plaintiff was seen by defendant Rohrer, apparently for the first time. Dr. Rohrer made a "routine" referral for plaintiff to obtain epidural injections, based on Dr. Farr's August 2004 recommendation. (Rohrer Depo., Exh. 6 (Dkt. No. 109-2 at 13).) Dr. Rohrer also noted Dr. Farr's recommendation that if plaintiff showed "no improvement [then] consider discogram." (Id. at 12.) On November 3, 2004, noting "worsening of [plaintiff's] low back pain for two months," CSP-S physician Dr. Chen made an "urgent" referral for plaintiff to obtain epidural injections. (Dkt. No. 109-14 at 7.)

25. On January 13, 2005, Dr. Tan again saw plaintiff. Dr. Tan noted that plaintiff was continuing on methadone, and waiting for epidural injections; Dr. Tan advised plaintiff to continue doing his physical therapy exercises. (Tan Depo. at 97-8; Exh. 43.)

26. On January 14, 2005, Dr. Jabar administered a lumbar epidural injection. However, plaintiff reported on January 31, 2005, that the injection "made him worse." (Dkt. No. 109-14 at 6 (Pltf. Exh. H).)

27. In May 2005, plaintiff obtained another nerve conduction study.*fn9 (Dkt. No. 109-10 at 20.)

28. On July 15, 2005, in response to a letter from plaintiff dated July 5, 2005, Dr. Traquina informed plaintiff that "[y]our case is under reevaluation and your medication will be maintained until such time your reevaluation is completed." (Dkt. Nos.109-10 at 10; 109-15 at 8.) 29. On August 7, 2005, plaintiff filed a fourth administrative grievance (Log. No. 05-2351). (Dkt. No. 109-10 at 11-15, 18-20.) Plaintiff alleged that "ongoing delays, denials, and/or ignoring my serious medical needs has caused me continued pain and suffering;" that he was "an ADA inmate with a chronic condition which has caused my lower disk to degenerate completely leaving my vertebra at the base of my spine to be closed shut;" that Dr. Chen had reduced plaintiff's pain medication; and that his "medical condition is one that require[s] surgery and the doctor[s] have only delayed the process causing me to endure ongoing pain which could have been alleviated months ago!" (Id. at 14-15.) Plaintiff sought the following: "(1) immediate consultation with the Head Surgeon[,] (2) to find out why the ordered MRI had not been given[,] (3) to personally speak with a Head CMO to discuss my surgery and medication prescription, [and] (4) to speak with a Surgeon who specialize[s] in spinal surgery." (Id. at 14.)

30. On August 16, 2005, plaintiff underwent a third lumbar MRI, which identified the following (Traquina Depo., Exh. 72 at 2):

1. Disc dessication, disc bulges, and facet join arthropathy primarily at L5-S1 but also at L4-5.

2. Bilateral neural foraminal disc protrusions and neural foraminal narrowing L4-5, left more than right.

3. Bilateral neural foraminal and posterior central disc protrusions at L5-S1.

31. On September 14, 2005, Dr. Renee Kanan, Director of CDCR's Division of Correctional Health Care Services ("DCHCS"), responded in writing to a July 25, 2005 letter from plaintiff. (Dkt. No. 109-15 at 10-11 (Pltf. Exh. N)) Although Dr. Kanan's letter does not reference any defendant, copies of the letter were sent to the CSP-S Warden and the CSP-S Health Care Manager. Dr. Kanan's letter provided in pertinent part (id. at 10):

In your correspondence you state that you are concerned about your health, as you were diagnosed with degenerated disc disease two years ago. You state that you were receiving epidural injections for pain management and that those injections began to cause you pain in other areas of your body. You state that you have now ...


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