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Mark Anthony Moreno v. D. Medina

June 29, 2012



Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. The remaining defendants in this action, Medina, James, and Hitchcock, move for summary judgment . Dckt. No. 49. For the reasons that follow, the undersigned recommends that the motion be granted in part and denied in part.

I. Background

This action proceeds on the verified complaint filed June 13, 2008. Dckt. No. 1. Plaintiff alleges that defendant Medina deprived him of necessary testosterone injections between December 4, 2007 and June 5, 2008, retaliated against plaintiff for filing a staff complaint against him by canceling plaintiff's hydrocodone prescription and confiscating medical appliances and chronos, deprived him of necessary testosterone gel between May 24, 2008 and June 5, 2008. Dckt. No. 1 at 4.*fn1 Plaintiff alleges, "I told Dr. James and . . . [he] did nothing."

Id. Plaintiff further alleges that, beginning on June 5, 2008, defendant Medina ordered that plaintiff be given testosterone injections on such a frequent basis as to cause plaintiff to suffer adverse side effects. Id. Lastly, plaintiff alleges that defendant Hitchcock seized his medical appliances (including a cane, a knee brace, a double mattress, and a "waistchain chrono"), telling him the seizure was "because of stupid paper work you file on the Dr. Medina." Id. at 5.

In its screening order of November 12, 2008, the court concluded that plaintiff had stated cognizable claims for purposes of 28 U.S.C. § 1915A that defendants Medina, James and Hitchcock were deliberately indifferent to plaintiff's serious medical needs and that defendant Medina retaliated against plaintiff. Dckt. No. 12 at 1-2.

Briefing on the current motion demonstrates that the following facts are undisputed unless otherwise indicated*fn2 At all relevant times, plaintiff was an inmate at High Desert State Prison ("HDSP"). Dckt. No. 49-2, Defs.' Stmt. of Undisp. Facts in Supp. of Defs.' Mot. for Summ. J. (hereinafter "DUF") 1. Defendant James was a physician at HDSP, defendant Medina was a physician assistant, and defendant Hitchcock was a correctional officer. DUF 2-4. Defendant Medina was plaintiff's primary medical care provider. DUF 5.

Defendants contend that plaintiff had a prescription for hydrocodone when he arrived at HDSP. DUF 7. Plaintiff disputes this, declaring that he had had a prescription for oxycodone at his previous institution (R.J. Donovan), but that it was cancelled the day before he transferred to HDSP. Dckt. No. 95, "Pl. Answering Defs.' Mot. for Summ. J." (hereinafter "Pl.'s Decl.") at 1. Defendant relies on the declaration of defendant Medina but provides no substantiating documentation. Plaintiff cites to his "outpatient medical record," which is not appended to his opposing papers. However, defendants have previously provided many of plaintiff's medical records appended to defendants' opposition to plaintiff's September 20, 2010 motion to compel. See Dckt. No. 81. Those records show that plaintiff requested oxycodone for pain following his transfer to HDSP. Dckt. Nos. 81-8 at 9, 14, 81-7 at 49. The court could not locate in the records any reference to a hydrocodone prescription for plaintiff at the time of his transfer to HDSP.

Defendants claim that plaintiff stated he was taking hydrocodone for testicular cancer, but that defendant Medina discovered from plaintiff's medical records that plaintiff did not have cancer and consequently canceled the prescription as not medically necessary. DUF 8-10. Plaintiff, on the other hand, claims that he never told defendant Medina he had testicular cancer but rather complained of testicular pain. Pl.'s Decl. at 1. According to plaintiff, he was given hydrocodone for 30 days from February 19, 2008 by defendant Medina for testicular pain. Pl.'s Decl. at 2. He claims that defendant Medina told him he would not continue the prescription unless plaintiff dropped a staff complaint he had filed against defendant Medina, which plaintiff refused to do. Pl.'s Decl. at 2; Dckt. No. 1, Compl. at 4.

Again, both parties simply rely on their declarations to establish their opposing versions of the facts. The court notes that plaintiff's medical records filed in opposition to the motion to compel show that, consistent with plaintiff's assertions, hydrocodone was ordered for plaintiff on February 19, 2008 for testicular pain and was administered for approximately thirty days. Dckt. Nos. 81-6 at 30, 81-9 at 15. Those records also show that, consistent with defendants' assertions, plaintiff periodically indicated to medical staff, including defendant Medina, that he had a history of testicular cancer. Dckt. Nos. 81-8 at 14, 81-7 at 27, 39, 41, 81-6 at 49.

The parties do not dispute that plaintiff had been diagnosed with hypogonadism, a condition requiring treatment with intramuscular testosterone injections. DUF 16-17. Defendant Medina declares that he ordered the injections, counseled plaintiff multiple times on their importance, and ensured the medical clinic was offering them, but that plaintiff refused most of them between December 3, 2007 and June 4, 2008. DUF 19-22. Plaintiff declares that he was never offered testosterone injections during that period or counseled by defendant Medina as to their importance, and that he had to go on a hunger strike to obtain the testosterone treatment.

Pl.'s Decl. at 2-3. Again the parties rely solely on their declarations to support their factual claims. The medical records appended to defendants' opposition to plaintiff's motion to compel tend to support plaintiff's version of the facts, however. A document dated January 17, 2008 notes an order for intramuscular testosterone injections, but another document dated two days later discontinued that order, replacing it with one for topical testosterone gel (possibly due to plaintiff's complaint that the injections caused him to develop lumps called lipomas). Dckt. Nos. 81-6 at 34, 36, 81-8 at 14. Documents from the same month indicate that plaintiff was on a hunger strike until he got testosterone shots and pain medication. Dckt. Nos. 81-8 at 14, 81-7 at 46, 48, 49 (progress note by defendant James stating, "He [plaintiff] indicates that the reason for his hunger strike is that he is not getting shots of testosterone and he is not getting oxycodone."). Defendant James noted on January 22, 2008 that he would try to obtain plaintiff's medical history to "see why a urologist in the past thought that he [plaintiff] was having testicular pain and what the reason for the testicular atrophy may have been and what the particular need for testosterone treatment would be." Dckt. No. 81-7 at 49. Thus, it appears that medical staff had not determined that testosterone shots were necessary as of that date and that plaintiff was not receiving them, but he was getting topical testosterone gel. On March 4, 2008, defendant James again noted the need to determine what treatment plaintiff had received in the past for his testicular problems. Dckt. No. 39. It further appears possible that testosterone shots had still not been ordered for plaintiff as of April 22, 2008, when defendant Medina ordered that plaintiff continue the topical gel and that his testosterone level be measured, "as the levels done last month was [sic] subtherapeutic." Dckt. No. 81-7 at 27.

According to defendants, defendant James had no involvement in plaintiff's treatment with testosterone and pain medication. Dckt. No. 49-1, Defs.' P.'s & A.'s in Supp. of Mot. for Summ J., at 6. Plaintiff claims that he informed defendant James of defendant Medina's allegedly unconstitutional care but that defendant James did nothing. Compl. at 4. The medical records show that plaintiff did complain of his need for testosterone shots and oxycodone to defendant James, who concluded that further review of plaintiff's medical history was necessary to substantiate plaintiff's claimed need for testosterone and pain medication for testicular pain. Dckt. Nos. 81-7 at 49 (note dated January 22, 2008 stating "He [plaintiff] indicates that the reason for his hunger strike is that he is not getting shots of testosterone and he is not getting oxycodone."), 81-7 at 39 (note dated March 4, 2008 stating "The patient is here requesting a testosterone blood level. He was getting injections of testosterone IM once a month and then that has been changed to the topical gel.").

It is undisputed that, on March 4, 2008, defendant James examined plaintiff, who stated that he was not disabled and performed the necessary exercises to so demonstrate. DUF 24-25. (It appears from the medical records that plaintiff wished to be transferred back to R.J. Donovan and may have believed that his disabled status would prevent that transfer). See Dckt. No. 81-8 at 14 (note by medical staff stating that plaintiff wanted to be off ADA, give up "WC" and his cane and go back to R.J. Donovan).) Accordingly, defendant James issued an order that plaintiff be removed from the Disability Placement Program ("DPP"). DUF 26.

According to defendants, defendant Hitchcock confiscated plaintiff's medical appliances and chronos associated with his participation in the DPP on June 4, 2008 after being ordered to do so by the medical department in accord with defendant James's March 4, 2008 order. DUF 29-30. Defendant Hitchcock declares that he did not believe he was subjecting plaintiff to any risk of harm but that, on the contrary, plaintiff would not be harmed by the loss of these items because plaintiff's doctor had ordered it. DUF 33. Plaintiff, however, declares that defendant Hitchcock knew that the items were ordered seized not because he no longer needed them but in retaliation for the staff complaint he had filed against defendant Medina. Pl.'s Decl. at 2, 3; Compl. at ...

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