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Troy Cooper v. Pharmacist S. Naku

March 16, 2012


The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge


Plaintiff Troy Cooper ("Plaintiff"), a state prisoner proceeding pro se, brings this civil rights action under 42 U.S.C. § 1983, alleging Defendants acted with deliberate indifference to his serious medical needs in violation of the Eighth and Fourteenth Amendments to the United States Constitution. Defendants Kaur and Chen move for summary judgment on each of Plaintiff's claims, arguing Plaintiff's Fourteenth Amendment due process claim is duplicative of his Eighth Amendment claim, Defendants did not act with deliberate indifference to Plaintiff's serious medical needs, Plaintiff cannot establish that Defendants' actions or omissions caused Plaintiff harm, and alternatively, that Defendants are entitled to qualified immunity. (Defs.' Mot. for Summ. J. 8:13-14, 9:20-21, 10:1, 11:27-12:5, ECF No. 36.)

The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On February 1, 2012, the Magistrate Judge filed findings and recommendations, which were served on all parties, and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. (ECF No. 63.) Defendants filed objections to the findings and recommendations. (ECF No. 68.)

In accordance with 28 U.S.C. § 636(b)(1) and Local Rule 304, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis except on the issue whether Defendant Kaur acted with deliberate indifference concerning Plaintiff's serious medical needs.


A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A fact is 'material' when, under the governing substantive law, it could affect the outcome of the case." Thrifty Oil Co. v. Bank of Am. Nat. Trust & Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir. 2003)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of material fact is "genuine" when "'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Id. (quoting Anderson, 477 U.S. at 248).

When the defendant is the moving party and is seeking summary judgment on one or more of a plaintiff's claims, the defendant has both the initial burden of production and the ultimate burden of persuasion on [the motion]. In order to carry its burden of production, the [defendant] must either produce evidence negating an essential element of the [plaintiff's claim] or show that the [plaintiff] does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. In order to carry its ultimate burden of persuasion on the motion, the [defendant] must persuade the court that there is no genuine issue of material fact.

Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000)(citations omitted). If the moving party satisfies its initial burden, "the non-moving party must set forth, by affidavit or as otherwise provided in [Federal] Rule [of Civil Procedure ('Rule')] 56, 'specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987)(quoting Fed. R. Civ. P. 56(e)). The "non-moving plaintiff cannot 'rest upon the mere allegations or denials of the adverse party's pleading' but must instead produce evidence that 'set[s] forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1030 (9th Cir. 2008)(quoting Fed. R. Civ. P. 56(e)).

Evidence must be viewed "in the light most favorable to the non-moving party," and "all reasonable inferences" that can be drawn from the evidence must be drawn "in favor of [the non-moving] party." Nunez v. Duncan, 591 F.3d 1217, 1222-23 (9th Cir. 2010)(internal quotation marks omitted). However, "[t]he district court must . . . undertake some initial scrutiny of the inferences that could be reasonably drawn from the evidence" to determine "whether there remains sufficient probative evidence which would permit a finding in favor of the [non-moving party] based on more than mere speculation, conjecture, or fantasy." Barnes v. Arden Mayfair, Inc., 759 F.2d 676, 680-81 (9th Cir. 1985).


At all relevant times, Plaintiff was incarcerated at California State Prison-Solano ("SOL"). (Defs.' Statement of Undisputed Facts ("SUF") ¶ 1.) In essence, this action concerns Plaintiff's allegations that certain SOL medical staff acted with deliberate indifference concerning his serious medical need; specifically, his peripheral vascular disease ("PVD"). (Pl.'s First Am. Compl. ¶¶ 6-131.) Plaintiff's allegations concern medical treatment he received at SOL preceding the January 7, 2009, below-the-knee amputation of his right leg. Id.

Plaintiff was diagnosed with PVD in 2005. (SUF ¶ 2.) PVD is a progressive narrowing or blocking of the arteries which results in restricted blood flow to the leg. Id. ¶ 3. PVD can cause coldness, bluish discoloration, pain when walking, which is called "claudication," or gangrene in the extremities. Id. Between August 2005 and April 2008, Plaintiff underwent three surgical procedures on his right leg to treat his PVD. Id. ¶ 4. In April of 2008, he was prescribed Coumadin, a blood thinner, to treat his PVD. Id. ¶ 5.

At all relevant times, Defendant Kaur ("Kaur") was employed by SOL as a nurse. (Decl. of K. Kaur ("Kaur Decl.") ¶ 1.) She has been licensed in California as a registered nurse since 2004. Id. As a registered nurse, Kaur provides primary medical care to inmates. Id. ¶ 2. She triages patients' complaints, conducts physical examinations, refers inmates to doctors, and schedules appointments. Id.

Plaintiff's claims against Kaur involve his interactions with her on October 6, 2008, and October 22, 2008, concerning Plaintiff's complaint of right leg pain. (Pl.'s Dep. 28:3-29:7, 36:8-11, 39:4-8; Kaur Decl. ¶ 3.)*fn2 The parties dispute the extent of their interactions on these dates.

On November 5, 2008, Plaintiff had a follow up appointment with his vascular surgeon, who noted that the prior surgeries to correct or improve Plaintiff's circulation to his right leg failed. (SUF ¶ 25.) Therefore, Plaintiff underwent another right-leg surgery that same day. Id. Plaintiff underwent a fifth right-leg surgery on December 31, 2008, and had his right leg amputated below the knee on January 7, 2009, after attempts to restore circulation to his foot failed. Id. ¶¶ 32-33. Plaintiff contends Kaur's actions and/or omissions were a direct cause of his right leg amputation. (Pl.'s First Am. Compl. ¶ 125.)


Kaur seeks summary judgment on Plaintiff's Eighth Amendment deliberate indifference to serious medical needs claim, arguing, inter alia, "[n]othing in [her] conduct or treatment of [Plaintiff] demonstrates that she was indifferent to his medical needs." (Defs.' Mot. for Summ. J. 8:17-19.) Specifically, Kaur argues: "[i]n October 2008, [she] . . . treated and triaged [Plaintiff's] ailments, referred him to a doctor as needed, scheduled follow-up appointments, placed orders for prescriptions, and checked on the status of his prescriptions. Nothing in Kaur's conduct or treatment of [Plaintiff] demonstrates that she was indifferent to his medical needs." Id. at 8:14-18 (citation omitted). Plaintiff counters that Kaur's "motion for summary judgment [should be] denied." (Pl.'s Opp'n 2:10-12.)

"An inmate's complaint of inadequate medical care amounts to a constitutional violation if the inmate alleges 'acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.'" Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

In the Ninth Circuit, the test for deliberate indifference consists of two parts[:] First, the plaintiff must show a "serious medical need" by demonstrating that "failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain." Second, the plaintiff must show the defendant's response to the need was deliberately indifferent.

Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)(quoting McGukin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997)(en banc))(internal quotation marks and citations omitted). "For purposes of this motion," Kaur does not dispute that Plaintiff had a serious medical need. (Defs.' Mot. for Summ. J. 8 n.1.) Therefore, resolution of her summary judgment motion on Plaintiff's Eighth Amendment claim depends solely upon whether a genuine issue of material fact exists that she acted with deliberate indifference to his serious medical need.

Deliberate indifference is "satisfied by showing (a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). "[Deliberate i]ndifference 'may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care.'" Jett, 439 F.3d at 1096 (quoting McGuckin, 974 F.2d at 1059).

"[A]n 'inadvertent or negligent failure to provide adequate medical care alone does not state [a Constitutional violation].'" Id. (internal brackets omitted)(quoting McGuckin, 974 F.2d at 1059). "While poor medical treatment will at a certain point rise to the level of constitutional violation, mere malpractice, or even gross negligence, does not suffice." Wood, 900 F.2d at 1334. Further, "a mere difference of medical opinion is insufficient, as a matter of law, to establish deliberate indifference.'" Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004)(internal brackets omitted)(quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). "Rather, to prevail on a claim involving choices between alternative courses of treatment, a prisoner must show that the chosen course of treatment 'was medically unacceptable under the circumstances,' and was chosen 'in conscious disregard of an excessive risk to the prisoner's health.'" Id. (internal brackets omitted)(quoting Jackson, 90 F.3d at 332).

Concerning the parties' October 6, 2008, interaction, Kaur declares that she "treated [Plaintiff]" when "[h]e submitted a request for medical treatment for pain in his right-lower leg that he claimed began earlier that day." (Kaur Decl. ¶ 2.) Kaur further declares:

During [her] examination, [she] took [Plaintiff's] blood pressure, respiration, pulse, temperature, and checked his orientation and pain level. [She] examined his legs and ability to walk. He had no swelling, discoloration, or acute distress, and his left and right calves were the same size. [She] checked for Homans' signs-a test to check for possible blood clots by flexing the ankle while the knee is bent at a ninety-degree angle-which were negative. [She] found that [Plaintiff's] pedal pulse was weaker in his right foot than his left.

Based on [her] findings, [Kaur] scheduled [Plaintiff] for an immediate appointment with a doctor. [Defendant] Chen saw him that afternoon.

After [Plaintiff's] appointment with the doctor, [Kaur] scheduled him for his next appointment, instructed him to take his Coumadin . . . as prescribed, and to return to the clinic if he developed any swelling or redness or if his leg pain continued. [Kaur] also called the prison pharmacy to ensure that [Plaintiff's] Coumadin prescription was delivered to him.

(Kaur Decl. ¶¶ 4-6.)

Plaintiff testified during his deposition that Kaur examined him on October 6, 2008, and that he was subsequently seen by Dr. Chen on the same day. (Pl.'s Dep. 28:3-23, 32:10-21.) However, he disputes the extent to which Kaur examined his right foot. Plaintiff testified in relevant part as follows:

Q. When you arrived at the medical clinic, did Nurse Kaur see you right away?

A. Yes.

Q. Okay. And to the best of your recollection, what is it that you told her was your primary complaint?

A. Well, I told her I walk a certain distance and I would have to stop.

Q. Did you specify what that distance was?

A. Yes, I did.

Q. What did you tell her?

A. About 150 yards.

Q. Okay.

A. She then asked me to take off my boot and sock, and that's when she felt my Achilles tendon. She said at that time you have tendinitis, and she called another nurse to verify her diagnosis saying that that nurse had experience with that type of condition.

Q. When Nurse Kaur was examining your foot, did you feel she had any kind of animosity or ill will against you?

A. She didn't examine my foot. She examined my tendon ---

Q. Okay.

A. -- my Achilles tendon.

No, I didn't feel that she had any ...

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