The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff, a state prisoner proceeding through counsel, seeks relief pursuant to 42 U.S.C. § 1983. The parties have consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). Pending before the court is defendants' motion for summary judgment, filed May 20, 2011. Plaintiff filed an opposition, and defendants filed a reply. The motion was heard before this court on June 30, 2011. Plaintiff was represented telephonically by Karen Travis; defendants were represented by Martha Stringer. For the reasons set forth below, this court finds that defendants' motion for summary judgment is granted as to defendants Rohrer and Mahon-Howe, and denied as to defendants Rallos and Traquina.
This case is proceeding on count one of the original complaint, filed November 19, 2009.*fn1 Plaintiff alleges that defendants violated plaintiff's Eighth Amendment rights by failing to provide plaintiff with adequate physical therapy following plaintiff's January 24, 2007 total right knee replacement, a serious medical procedure. (Dkt. No. 1 at 7.) Plaintiff contends defendants knew that physical therapy following that surgery was essential for the surgery to succeed, and that defendants knew, or should have known, that if the initial replacement fails, a second knee replacement is highly dangerous, less likely to succeed, and carries a high risk of permanent crippling. Plaintiff contends defendants consciously disregarded these risks, in deliberate indifference to plaintiff's serious medical needs. As a consequence, plaintiff alleges that his first knee replacement failed, and he suffered additional severe injury to his opposite hip due to his crippling walk, which causes plaintiff constant pain, and he suffered a three-year delay before undergoing a revision of the failed knee replacement. (Id.)
III. Motion for Summary Judgment
Defendants move for summary judgment on the grounds that defendants'
treatment does not constitute deliberate indifference.*fn2
(Dkt. No. 38 at 2.) At the hearing on the instant motion,
plaintiff's counsel confirmed that plaintiff challenges the failure of
defendants to comply with Dr. Shifflett's March 8, 2007 order for
"more aggressive physical therapy," and
does not challenge the provision of physical therapy, or lack thereof,
from the date of surgery, January 24, 2007, to March 7, 2007. Rather,
plaintiff claims that defendants failed to provide plaintiff with
hands on physical therapy from March 8, 2007, through June 2010, when
plaintiff received the second knee replacement surgery on his right
knee, and this lack of physical therapy was allegedly in deliberate
indifference to plaintiff's serious medical needs. Plaintiff contends
that defendants issued routine requests for physical therapy, knowing
the therapy was not likely to be provided, and failed to expedite the
requests or follow-up to ensure plaintiff received the "more
aggressive" physical therapy Dr. Shifflett ordered.
A. Legal Standard for Summary Judgment
Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil Procedure 56 is met. "The court shall grant summary judgment if the movant shows that 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).*fn3
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 then-numbered Fed. R. Civ. P. 56(c).) "Where the nonmoving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory committee's notes to 2010 amendments (recognizing that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact"). 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. Celotex Corp., 477 U.S. 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.
Consequently, 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. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such a 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 such a dispute exists. See Fed. R. Civ. P. 56(c); 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 Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
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 a 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. See 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. See 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. See 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).
B. Civil Rights Claims Standards
The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658, 692 (1978) ("Congress did not intend § 1983 liability to attach where . . . causation [is] absent."); Rizzo v. Goode, 423 U.S. 362 (1976) (no affirmative link between the incidents of police misconduct and the adoption of any plan or policy demonstrating their authorization or approval of such misconduct). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
For purposes of the instant motion for summary judgment, the court finds the following facts undisputed, except as otherwise noted.*fn4
1. At all times relevant herein, plaintiff was a state prisoner incarcerated at the California State Prison, Solano ("CSP-Solano").
2. From 2003 to May 2007, defendant Dr. Alvaro Traquina was the Chief Medical Officer ("CMO") and the Health Care Manager ("HCM") at CSP-Solano. As CMO, defendant Traquina's duties in connection to patient care were to oversee the operations of the clinics, and to respond to health care delivery problems presented by institution staff or managers. As HCM, defendant Traquina managed the transfer of patients to or from other institutions and community providers. In June 2007, another individual assumed the title and duties of HCM.
3. Defendant Dr. Jason Rohrer is a primary care physician at CSP-Solano.
4. Defendant Dr. Tessie Rallos is a primary care physician at CSP-Solano. The signature stamp used in medical records identifies defendant Rallos as a physician and surgeon. (Dkt. No. 28-1 at 7.)
5. Defendant Kathleen Mahon-Howe was a family nurse practitioner at CSPSolano who submitted referrals for physical therapy.
6. None of the defendants is a physical therapist, and defendants claim each must rely on the physical therapist to prescribe plaintiff's treatment.
7. Dr. Michael Shifflett is an orthopedic surgeon at Queen of the Valley Hospital ("QVH").
8. On January 24, 2007, Dr. Shifflett performed a total knee arthroplasty (replacement) on plaintiff at QVH.
9. Plaintiff was an inpatient in the acute care section of QVH for two days after surgery and was then transferred into the rehabilitation side of QVH for occupational and physical therapy for three days after surgery.
10. Dr. Corby Kessler is a physiatrist at the rehabilitation department of QVH. 11. Dr. Kessler supervised plaintiff's physical therapy between January 26 and January 29, 2007, at QVH.
12. On January 27, 2007, Dr. Kessler dictated health and physical exam notes, stating:
We will continue with endurance and strengthening program.
Because of the situation where [plaintiff] lives he will need to be fairly mobile and independent. It is expected that little post hospitalization physical therapy will be available. The patient will be provided comprehensive instructions on how to perform an appropriate home exercise program, continued strength and endurance building. . . . (Dkt. No. 30 at 20.) Plaintiff contends that because the instructions are not available for review, it is not possible to determine if they were "comprehensive."
13. Dr. Kessler, in his January 29, 2007 discharge summary, discharge follow-up section, stated:
The patient is being discharged to CSP-Solano. He has done very well with this program. No additional physical therapy is indicated. No orthopedic follow-up is indicated. A physician can remove the staples and attend to any follow-up incision issues after discharge. (Dkt. No. 30 at 16.)
14. Plaintiff was discharged back to CSP-Solano on January 29, 2007.
15. While in the rehabilitation side of QVH, plaintiff was given physical therapy so plaintiff could learn to do exercises for his right knee. (Dkt. No. 27-2 at 10.) Defendants contend that at discharge from QVH, plaintiff was given a comprehensive set of instructions on how to perform an appropriate home exercise program and continued strength and endurance building. Plaintiff argues that because the alleged instructions are not currently available, it is not possible to determine whether or not they were "comprehensive." In deposition, plaintiff stated he could not recall Dr. Kessler personally giving plaintiff any instructions about what plaintiff should do to rehabilitate plaintiff's knee on his own. (Dkt. No. 27-2 at 10.)
16. After the knee replacement in January 2007, Dr. Shifflett, by telephone order, ordered a Continuous Passive Motion ("CPM") machine for plaintiff to use six hours per day. Dr. Shifflett had no idea whether CSP-Solano had a CPM machine, and Dr. Shifflett did not believe that anyone from the prison called him to indicate they did not have a CPM machine.
17. On January 31, 2007, defendant Rallos examined plaintiff's right knee and ordered ice to be applied daily for five days. (Dkt. No. 28 at 2.)
18. On February 5, 2007, Dr. Rohrer examined plaintiff, and referred him to physical therapy. (Dkt. No. 29-1 at 7.) On February 9, 2007, defendant Rohrer completed a referral for plaintiff to receive physical therapy, and circled "routine." (Dkt. No. 28-3 at 15.)*fn5
19. On February 20, 2007, plaintiff had an appointment with physical therapist Robert Spriggs at CSP-Solano. Spriggs' report of the consultation states that plaintiff complained of an inability to fully extend his knee due to persistent edema. (Dkt. No. 32 at 27.) Spriggs' objective findings were:
STRENGTH - rt. knee 3-3, others 4-5/5.
ROM - right knee (-)5E-90E, others WFL FUNCTION - ambulatory with crutches independently. (Id.) Spriggs' assessment stated:
[Plaintiff] understands he will need to limit his weight bearing RLE with the crutches until his edema is resolved. He will need to avoid closed-chained strengthening exercises also pending edema resolution. [Plaintiff] understands also to avoid any rigorous exercise pending clearance from his PCP [or] physical therapist. (Id.) Spriggs set forth plaintiff's program as: "Open-chained self-exercise instruction. Positioning instruction to reduce edema and facilitate gravitational knee extension," and identified the following goals: "Patient to demonstrate sound technique/understanding of above instruction. (Completed today, patient denying any increase in his resting pain post-ex)." (Id.)
Plaintiff contends that Spriggs handed plaintiff a sheet of paper for some back exercises, not knee exercises, and that when plaintiff brought this fact to Spriggs' attention, the therapist responded that plaintiff could do one of the exercises on the paper because the therapist didn't have a knee paper. (Dkt. No. 34-2 at 7-8.) In his deposition, plaintiff stated Spriggs told plaintiff that he really needs physical therapy with equipment, similar to what they have at CMF with access to universal weight machines, leg exercise machines, and similar machines for strengthening your leg, but that CSP-Solano doesn't have that equipment. (Dkt. No. 34-2 at 8.)
20. On February 26, 2007, defendant Rohrer saw plaintiff in the satellite clinic for follow-up after knee surgery. (Dkt. No. 29-1 at 10.) Defendant Rohrer noted plaintiff had moderate edema, and saw a physical therapist on February 20, 2007. (Id.) Defendant Rohrer also signed a referral marked "routine" for plaintiff to have a follow-up appointment with Dr. Shifflett. (Dkt. No. 28-3 at 14.) The bottom of the referral form provides a space for notes from the appointment with Dr. Shifflett, and includes Dr. Shifflett's March 8, 2007 recommendation that plaintiff "needs more aggressive P.T." (Dkt. No. 28-3 at 14.)
21. On March 8, 2007, Dr. Shifflett noted plaintiff "developed a lot of swelling in the leg that has persisted whenever he is active to any extent," and plaintiff reported he was not getting any physical therapy. (Dkt. No. 27-9 at 26.) Upon examination, Dr. Shifflett found moderate to severe enlargement about the knee some of which is effusion, some is extraarticular. The leg is somewhat swollen as well below the knee. The knee is tight in extension at minus 15 degrees, flexion goes to 100 degrees. There is slight medial laxity.
Gait is antalgic with the knee bent. (Dkt. No. 27-9 at 26.) Dr. Shifflett's impression was "status-post knee arthroplasty with residual flexion contracture." (Id.)
22. In Dr. Shifflett's first Forensic Clinic Report dated March 8, 2007, Dr. Shifflett set forth the following plan for plaintiff:
The patient should have more aggressive physical therapy to gain extension now so that he does not require manipulation under anesthesia and so that he has a better gait pattern for weight distribution across the prosthesis to prevent premature failure due to loosening. We will discuss with the medical staff at California State Prison Solano. ¶ Return in 6 weeks with x-ray.
(Dkt. No. 27-9 at 26.) In Dr. Shifflett's second Forensic Clinic Report dated March 8, 2007, and signed on March 22, 2007, Dr. Shifflett set forth the following plan for plaintiff:
The patient should have more aggressive therapy and a more aggressive exercise program. He needs to have better extension if he is going to have a successful outcome both from the standpoint of gait energy expenditure and longevity of the prosthesis. We will call to review this with his primary care physicians. (¶) Return in 6 weeks with new x-ray.
(Dkt. No. 27-9 at 27.) In his deposition, Dr. Shifflett confirmed that he stands by both notes from March 8, 2007.*fn6 (Dkt. No. 27-3 at 25.)
Although the March 8, 2007 notes indicate that Dr. Shifflett would discuss more aggressive physical therapy with prison medical staff, Dr. Shifflett did not discuss this fact with prison staff, and Dr. Shifflett did not know if his staff did so. Dr. Shifflett also confirmed that no one from the prison called Dr. Shifflett to inquire as to what he meant by "more aggressive physical therapy," and most communication with the prison was through the office. Dr. Shifflett did not know whether plaintiff followed Dr. Kessler's home exercise program instructions, but Dr. Shifflett testified that plaintiff indicated he was trying to do his exercises.
23. On March 15, 2007, defendant Rallos noted plaintiff should be rescheduled in three to four weeks. (Dkt. No. 28-1 at 8.) On March 19, 2007, plaintiff presented at clinic but had to be rescheduled due to overbooking. (Dkt. No. 28-1 at 7.)
24. On March 20, 2007, defendant Dr. Rallos noted Dr. Shifflett's March 8, 2007 order for physical therapy, that plaintiff saw a prison physical therapist on February 20, 2007, and that plaintiff was instructed on home exercises. (Dkt. No. 28 at 3.) Dr. Rallos examined plaintiff, and noted that plaintiff's right knee was swollen, but there was no evidence of infection. Plaintiff's flexion was 90 degrees, and the extension was almost full. Defendant Rallos instructed plaintiff to continue his physical therapy home exercises, and made a referral for outside facility physical therapy. (Dkt. No. 28 at 3; 28-1 at 8.) The words "emergent, urgent or routine" are not circled on the referral form. (Dkt. No. 28-1 at 10.) Dr. Rallos' handwritten notes on the referral form state: "saw Dr. Shifflett 3/8/07 =) more PT recommended" and "Pt relates not getting enough PT here?" (Dkt. No. 28-1 at 10.) At this appointment, plaintiff also complained of pain in his right breast for the past two weeks, and defendant Rallos diagnosed and wrote a referral for a cystic breast mass. (Dkt. No. 28-1 at 9.)
25. On March 21, 2007, plaintiff filed an inmate appeal claiming that the CSPSolano medical department failed to provide a total comprehensive physical therapy program for plaintiff. (Dkt. No. 28-4 at 4.) Plaintiff asserted he needed "real hands-on" physical therapy with all the necessary equipment and guidance for complete rehabilitation.
26. On April 3, 2007, physical therapist Spriggs consulted with plaintiff for "status post right knee replacement." (Dkt. No. 32 at 28.) In plaintiff's history, Spriggs noted that plaintiff: had previous arthroscope on same knee in 2/05 with a menisectomy and lateral capsular release. Surgical report for the TKR was extensive suggesting complicating factors. (Id.) Plaintiff reported having a cane for two years, and complained of "persistent edema with inability to either extend or flex joint fully," and "of recent left hip pain." (Id.) Spriggs' objective findings were:
STRENGTH - right knee 3-3 (pain/edema limiting), others WFL.
ROM - right knee (-7E)-90E, others WFL
FUNCTION - ambulates with cane in proper (contralateral) hand using two point gait pattern.
EDEMA - moderate residual right knee.
(Id.) Spriggs' assessment was:
Patient with apparent complex total knee replacement with persistent edema. The limitation in AROM appears to be largely the result of fluid retention. Patient will need to adhere to a consistent program of limb elevation which should help him accelerate the fluid dissipation. [Plaintiff] will also need to participate with an open-chained strengthening program which he will be instructed in today. I would expect this patient to full[y] recover if he does not succumb to overuse delays during the recovery process. (Id.) Spriggs instructed plaintiff in open-chained strengthening self-exercise program, and proper evaluation technique, and provided plaintiff sheets with illustrations of exercises. (Id.) Spriggs noted goals were: Edema reduction, restoration of 0-90E AROM as a minimum with 4/5 strength. (Id.) Spriggs signed the February 9, 2007 referral form, and noted plaintiff should follow-up within "6 [illegible]." (Dkt. No. 28-3 at 15.)
27. Defendant Rallos responded to plaintiff's March 21, 2007 appeal at the informal level on April 5, 2007, noting the February 20, 2007 physical therapy consultation with Spriggs. Defendant Rallos noted that plaintiff was given instructions on how to do exercises, and that defendant Rallos had given plaintiff a referral for outside physical therapy.
On March 30, 2007, defendant Rallos wrote plaintiff a five day lay-in (dkt. no. 28-01 at 11), and on April 2, 2007, a seven day lay-in (dkt. no. 28-1 at 12).
28. On April 10, 2007, plaintiff appealed defendant Rallos' response to the first formal level, noting Dr. Shifflett ordered "aggressive physical therapy" on March 8, 2007, and plaintiff had not been given physical therapy. (Dkt. No. 28-4 at 4; 28-3 at 2.)
29. On May 1, 2007, plaintiff had another appointment with Spriggs, but plaintiff showed up, then left. (Dkt. No. 32 at 29.)
30. On May 10, 2007, defendant Mahon-Howe made a referral for outside physical therapy and noted that a referral for outside physical therapy had been pending since March 20, 2007. Defendant Mahon-Howe submitted another referral, and "routine" is circled on the May 10, 2007 referral form. (Dkt. No. 28-3 at 12.) Mahon-Howe set forth the medical necessity as:
51 y/o. Knee replacement. Unable to fully extend knee. . . .
Aggressive outside P.T. recommended. First request for outside P.T. 3-20-07. (Dkt. No. 28-10 at 2.) On the bottom of the form, a future PT appointment at QVH is noted for "06/22/07 at 1400." (Id.)
31. On May 15, 2007, plaintiff last saw Spriggs. Plaintiff was still having moderate edema around the right knee, and reported that plaintiff was performing the exercises that he had been given "as best as possible, however the edema is acting as a major deterrent to return of normal function." (Dkt. No. 32 at 30.) Spriggs noted that plaintiff should be given ice and short term NSAID treatment until the edema problem "is better controlled." (Id.)
32. Defendant Rohrer interviewed plaintiff on May 17, 2007, concerning his first formal level appeal. (Dkt. No. 28-4 at 4.) In connection with the appeal, on May 15, 2007, Dr. Rohrer made a referral for plaintiff to see an outside physical therapist.*fn7 (Dkt. No. 19 at 4.) In addition, defendant Rohrer charted the following on May 16, 2007: "Please fax orthopedic note from 3/8/07 and physical therapy referrals 5/10/07 and March 20, 2007 to ext 3202." (Dkt. No. 29-1 at ...