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Randall Scott Cash v. Dorothy A. Swingle

June 28, 2012

RANDALL SCOTT CASH, PLAINTIFF,
v.
DOROTHY A. SWINGLE, 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 Swingle, Nepumaceno, Miranda, and Walker move for summary judgment. Dckt. No. 36. For the reasons that follow, the undersigned recommends that the motion be denied.

I. Background

This action proceeds on the verified complaint filed May 3, 2010. Dckt. No. 1. Plaintiff's allegations are as follows, and the undersigned will note where the facts are undisputed: While housed at San Quentin State Prison ("SQSP"), plaintiff was treated for lower back injury sustained in an automobile crash in 1984, including "extreme sciatica" in his right hip and "protruded discs in L1-L5." Id. at 4.*fn1 Dr. Wu at SQSP first prescribed "some low dosage of anti-inflammatory medication," which was ineffective to treat the pain. Following an MRI in 2006, Dr. Wu prescribed Tramadol in increasing dosages, eventually reaching 150 mg in the morning and 100 mg in the evening. Id. When the Tramadol became ineffective, Dr. Wu prescribed "Methadone 10 mg BID." Id.

Plaintiff also received three series of epidural injections from Dr. Pappas to treat his back pain while at SQSP. Id. The first gave short-term pain relief, the second had no effect, and the third "had actual detrimental effect causing other neurological problems in plaintiff's hands, feet and legs." Id. at 4-5. Dr. Pappas decided that further epidural injections would be futile. Id. at 5. Instead, plaintiff continued on pain medication. Id.

Five days before plaintiff was transferred to High Desert State Prison ("HDSP"), Dr. Pachynski at SQSP changed his medication from "Tramadol 100 mg BID" to "Methadone 5 mg BID" and continued his prescription for Gabapentin (also referred to in the parties' papers by the brand name Neurontin). Id.

Plaintiff alleges that, upon his transfer to HDSP on December 9, 2008, he was cut off from all his medication without being seen by a doctor. Id. It is undisputed that, on February 11, 2009, defendant Miranda (a physician's assistant) met with plaintiff to discuss his medical condition and develop a treatment plan for him. Dckt. No. 36-2, Defs.' Sep. Stmt. of Undisp. Facts ISO Mot. for Summ. J. (hereinafter "DUF") 5; Dckt. No. 38, Pl.'s Resp. to DUF (hereinafter "PUF") 5. Defendant Miranda claims that, before the meeting, he reviewed plaintiff's health record to determine his medical condition. DUF 6; see PUF 6 (plaintiff responds that he has no way of knowing whether this asserted fact is true). Plaintiff alleges, however, that defendant Miranda diagnosed him with arthritis after a cursory review of his health record and a two-minute interview with him. Dckt. No. 1 at 7. Plaintiff alleges that, based on that diagnosis, which differed from the diagnoses reached by plaintiff's caregivers at SQSP, defendant Miranda denied him all pain medication other than Gabapentin and Naprosyn, which did not treat his protruded discs. Id. at 7; PUF 9-10.

For his part, defendant Miranda declares simply that his review of plaintiff's health record led him to conclude that plaintiff "did not have a medical condition that required him to be prescribed Tramadol and Methadone." DUF 7; Dckt. No. 36-3, Decl. of R. Miranda ISO Defs.' Mot. for Summ. J. (hereinafter "Miranda Decl."), ¶ 8. The parties do not dispute that defendant Miranda instead prescribed plaintiff Naprosyn and Gabapentin and referred him to a physiatrist (physical therapist) and for possible epidural injections. DUF 9-10; PUF 9-10. Plaintiff claims that he told defendant Miranda that there was no point in taking Gabapentin or doing physiatry because they did not relieve his pain and that epidural injections were also unhelpful and actually caused harm. PUF 13-14.

It is undisputed that plaintiff did not appear at the "pill line" to receive his medications in March, May, June, and December 2009. DUF15, 17, 18; PUF 15, 17, 18. In addition, plaintiff requested cancellation of his physiatry appointments. DUF 16; PUF 16.

Plaintiff appealed defendant Miranda's treatment decisions. Dckt. No. 1 at 5. Defendant Nepumaceno, a medical doctor, completed the first level appeal, approving of defendant Miranda's decision without examining plaintiff. Id. At the second level, defendant Swingle, also a medical doctor, again approved that decision without examining plaintiff. Id. at 6. At the third and final level of appeal, defendant Walker (not a medical doctor but Chief of California Prison Health Services, Office of Third Level Appeals, Health Care), reviewed the appeal. Id. at

7. Plaintiff does not indicate the result of the third level review, but complains that it took 13 months, during which time he suffered pain from not receiving the proper medications. Id.

II. 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 asks whether the evidence presents a sufficient disagreement to require submission to a jury.

The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to "'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments). Procedurally, under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets its burden with a properly supported motion, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson., 477 U.S. at 248; Auvil v. CBS "60 Minutes", 67 F.3d 816, 819 (9th Cir. 1995).

A clear focus on where the burden of proof lies as to the factual issue in question is crucial to summary judgment procedures. Depending on which party bears that burden, the party seeking summary judgment does not necessarily need to submit any evidence of its own. When the opposing party would have the burden of proof on a dispositive issue at trial, the moving party need not produce evidence which negates the opponent's claim. See e.g., Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323- 24 (1986). ("[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.'"). 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 ...


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