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Andrew Ramirez v. D. Swingle

November 14, 2012


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


I. Introduction

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the original complaint filed January 5, 2011, as to defendants Physician's Assistant Medina and Chief Medical Officer ("CMO") Swingle. (Dkt. No. 1.) Plaintiff alleges that he received inadequate medical care. Pending before the court are defendants' July 20, 2012 motion for summary judgment (Dkt. No. 53), and plaintiff's motions for injunctive relief filed October 28, 2011, and January 20, 2012 (Dkt. Nos. 28 and 35).

On February 24, 2012, defendants filed an opposition to plaintiff's motions for injunctive relief. (Dkt. No. 38.) On June 22, 2012, defendants were ordered to file further briefing in support of their opposition. (Dkt. No. 50.) Defendants' summary judgment motion contains a supplemental opposition to plaintiff's motions for injunctive relief.

On July 26, 2012, the undersigned provided plaintiff with notice of the requirements for opposing a summary judgment motion pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012). On September 26, 2012, plaintiff filed a motion for an extension of time to file his opposition to defendants' summary judgment motion and supplemental opposition. (Dkt. No. 62.) On September 28, 2012, plaintiff filed a timely opposition. (Dkt. No. 64.) On October 16, 2012, defendants filed a reply. (Dkt. No. 65.)

Because plaintiff's opposition is timely, his motion for extension of time to file an opposition is denied as unnecessary.

After carefully reviewing the record, the undersigned recommends that defendants' summary judgment motion be granted and plaintiff's motions for injunctive relief be denied.

II. Motion for Summary Judgment

Defendants argue that they are entitled to summary judgment on the merits of plaintiff's claims and also based on qualified immunity.

A. Legal Standard for Summary Judgment

Summary judgment is appropriate when a moving party establishes 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 that 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). "[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. See 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. 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 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 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. Legal Standard for Eighth Amendment Claim

Generally, deliberate indifference to a serious medical need presents a cognizable claim for a violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). According to Farmer v. Brennan, 511 U.S. 825, 847 (1994), "deliberate indifference" to a serious medical need exists "if [the prison official] knows that [the] inmate [ ] face[s] a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." The deliberate indifference standard "is less stringent in cases involving a prisoner's medical needs than in other cases involving harm to incarcerated individuals because 'the State's responsibility to provide inmates with medical care ordinarily does not conflict with competing administrative concerns.'" McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992) (quoting Hudson v. McMillian, 503 U.S. 1, 6 (1992)), overruled on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). Specifically, a determination of "deliberate indifference" involves two elements: (1) the seriousness of the prisoner's medical needs; and (2) the nature of the defendant's responses to those needs. McGuckin, 974 F.2d at 1059. First, a "serious" medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the "unnecessary and wanton infliction of pain." Id. (citing Estelle, 429 U.S. at 104). Examples of instances where a prisoner has a "serious" need for medical attention include the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain. McGuckin, 974 F.2d at 1059-60 (citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 1990)).

Second, the nature of a defendant's responses must be such that the defendant purposefully ignores or fails to respond to a prisoner's pain or possible medical need in order for "deliberate indifference" to be established. McGuckin, 974 F.2d at 1060. Deliberate indifference may occur when prison officials deny, delay, or intentionally interfere with medical treatment, or may be shown by the way in which prison physicians provide medical care." Hutchinson v. United States, 838 F.2d 390, 392 (9th Cir. 1988). In order for deliberate indifference to be established, there must first be a purposeful act or failure to act on the part of the defendant and resulting harm. See McGuckin, 974 F.2d at 1060. "A defendant must purposefully ignore or fail to respond to a prisoner's pain or possible medical need in order for deliberate indifference to be established." Id. Second, there must be a resulting harm from the defendant's activities. Id. The needless suffering of pain may be sufficient to demonstrate further harm. Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002).

Mere differences of opinion concerning the appropriate treatment cannot be the basis of an Eighth Amendment violation. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). However, a physician need not fail to treat an inmate altogether in order to violate that inmate's Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition, even if some treatment is prescribed, may constitute deliberate indifference in a particular case. Id.

In order to defeat defendants' motion for summary judgment, plaintiff must "produce at least some significant probative evidence tending to [show]," T.W. Elec. Serv., 809 F.2d at 630, that defendants' actions, or failures to act, were "in conscious disregard of an excessive risk to plaintiff's health," Jackson v. McIntosh, 90 F.3d at 332 (citing Farmer, 511 U.S. at 837).

C. Qualified Immunity

"'Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was 'clearly established' at the time of the challenged conduct.'" Hunt v. County of Orange, 2012 WL 432297 at *7 (9th Cir. Feb. 13, 2012) (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011)). "A Government official's conduct violates clearly established law when, at the time of the challenged conduct, 'the contours of a right are sufficiently clear' that every 'reasonable official would have understood that what he is doing violates that right.'" Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (internal alterations omitted).

Although the court was once required to answer these questions in order, the United States Supreme Court has clarified that "while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory." Pearson v. Callahan, 555 U.S. 223, 236 (2009). In this regard, if a court decides that plaintiff's allegations do not make out a statutory or constitutional violation, "there is no necessity for further inquiries concerning qualified immunity." Saucier v. Katz, 533 U.S. 194, 201 (2001). Likewise, if a court determines that the right at issue was not clearly established at the time of the defendant's alleged misconduct, the court may end further inquiries concerning qualified immunity without determining whether the allegations in fact make out a statutory or constitutional violation. Pearson, 555 U.S. at 236--42.

In resolving the question of qualified immunity, the court views the facts in the light most favorable to the plaintiff. See Schwenk v. Hartford, 204 F.3d 1187, 1198 (9th Cir. 2009).

D. Plaintiff's Claims

Plaintiff alleges that in October 2009, he filed an administrative grievance alleging that defendant Medina did not provide him with adequate medical care. In the grievance, plaintiff alleged that defendant Medina mismanaged plaintiff's diabetes and pain medicines and failed to provide him with physical therapy. In the grievance, plaintiff also alleged that he required physical therapy because he was confined to a wheelchair. Plaintiff alleges that in November 2009, defendant Swingle interviewed him regarding this grievance. Plaintiff alleges that defendant Swingle agreed with defendant Medina's alleged mismanagement of his medical care.

Plaintiff alleges that on December 2, 2009, defendant Medina interviewed plaintiff. Plaintiff alleges that defendant Medina was very upset about the grievance plaintiff had filed against him. Plaintiff alleges that in retaliation, defendant Medina lowered plaintiff's pain medication dosage and began making unnecessary changes to plaintiff's insulin dosage. In the pending motions for injunctive relief, plaintiff requests that defendants be ordered to provide him with adequate pain medication, adequate doses of insulin, breathing treatments and a walker. Regarding pain medication, plaintiff specifically requests that he be provided with morphine or tramadol and gabapentin.

E. Defendants' Evidence

In support of the pending motion for summary judgment and supplemental opposition to plaintiff's motions for injunctive relief, defendants rely on the lengthy declaration of defendant Swingle. (Dkt. No. 53-3.) After reviewing this declaration, and supporting exhibits, the undersigned finds it necessary to set forth most of the lengthy declaration in order to put defendants' motion and supplemental opposition in context. Accordingly, the undersigned sets forth the relevant portions of defendant Swingle's lengthy declaration herein:


6. On October 2008, Ramirez was housed at Calipatria State Prison (Calipatria). (Attach. 1, [Unit Health Record] UHR 1-4.) He had a history of multiple co-morbid medical problems, including 1) Type 2 diabetes mellitus, 2) chronic pain with questionable radicular symptoms secondary to an old pelvic fracture and leg-length discrepancy, and 3) an incisional ventral hernia that had occurred after a 2006 surgery to repair a perforated colon caused by diverticulitis -- an infection in pockets (diverticulae) formed in the walls of the colon. Ventral hernias are not uncommon following surgery of the kind Ramirez had. (Id.) The hernia was surgically repaired with mesh in 2007, but recurred in 2008, with associated abdominal pain. (Id.) Ramirez was also followed for chronic obstructive pulmonary disease (COPD), coronary artery disease (CAD), hypertension (HTN), renal insufficiency, coccidiodomycosis (Valley Fever), loss of hearing, hepatitis C, obstructive sleep apnea (OSA), and morbid obesity because he was 5'3" tall and weighed over 200 pounds. (Id.)

7. Ramirez was prescribed a number of medications for his various medical problems, including metformin and glipizide for diabetes; tramadol, 50 mg., one tablet, t.i.d. (three times a day) (150 mg./daily) for nociceptive pain; and gabapentin (Neurontin), 300 mg., two tablets every morning, one tablet at noon, and two tablets in the evening (1,500 mg./daily) for neuropathic pain. (Attach. 1, UHR 1-2.) There are two types of nociceptive pain: somatic pain and visceral pain. Somatic pain comes from the joints, bones, muscles and other soft tissues, while visceral pain comes from the internal organs. Neuropathic pain is chronic pain that results from damage to or dysfunction of the peripheral or central nervous system. Treatment of pain is difficult and often complex, and is even more so in a correctional institution where many prisoners have histories of substance abuse, including prescription medications, and drug dealing. It is a constant struggle to provide appropriate pain relief while ensuring that a prisoner is not feigning or exaggerating pain symptoms to acquire opiate-type medications for his own use or to supply other inmates. Narcotic-type medications have significant value as recreational drugs for sale in correctional institutions. That trade is also a source of violence in prison as a result of disputes or dealers preying on prisoners who have access to medications because of a genuine illness. And narcotic-type medications and drugs like tramadol can have significant side effects, and can be lethal in overdose or when given to patients with co-morbid conditions.

8. A doctor at Calipatria found that Ramirez was at high risk for significant abdominal pain from a recurrent incisional ventral hernia, and for the possibility of drug seeking behavior because of a history of intravenous heroin addiction. (Attach. 1, UHR 4.)

9. In late October 2008, Ramirez was transferred from Calipatria to Alvarado Hospital for surgical evaluation for a recurrent ventral hernia at the edge of Marlex mesh that had been placed during the 2006 surgery for a perforated colon. (Attach. 1, UHR 5-12.) The surgeon found that Ramirez complained of severe abdominal pain that was not related to the recurrent hernia at the edge of the mesh. (Id.) The surgeon concluded that Ramirez had a small, reducible hernia close to the area of the previous repair that could be caused by "bunching" of the Marlex mesh used in the repair. (Id.) The surgeon found that further surgery might relieve Ramirez's chronic pain, but probably would not. (Id.) Ramirez decided not go to ahead with surgery because the benefits did not outweigh the risks. (Id.) Instead, the surgeon recommended pain management. (Id.) The surgeon increased Ramirez's gabapentin to 600 mg., three times a day (1,800 mg./daily) and continued the tramadol without change. (Id. at 12-13.) The surgeon noted that he would consider taking Ramirez off tramadol and placing him on methadone, 10 mg. two or three times a day, but that these pain medications would need adjustment to keep Ramirez from going back to the emergency room for medications. (Id.)

10. On November 5, 2008, a doctor at Calipatria noted that

Ramirez was on the maximum dose of pain medication usually given, that he had failed on Tylenol # 3, and that, without further evaluation, he could not get morphine and Dilaudid, which he claimed had provided him with pain relief in the past. (Attach. 1, UHR 14-17.) The doctor noted that Ramirez's old pelvic fracture and leg discrepancy was another issue for his chronic pain complaint, but was not evaluated that day, and that Ramirez used a cane to walk. (Id.) The doctor continued tramadol without change, but increased the gabapentin to 300 mg., three tablets in the morning, one tablet at noon, and three tablets in the evening (2,100 mg./daily). (Id. at UHR 17.)

11. On December 1, 2008, Ramirez was seen at Pioneer Hospital for a complaint of abdominal and chest pain. (Attach. 1, UHR 18-30.) He was diagnosed with an incisional hernia and told that it might cause a dull ache that could be treated with medication, and that it might occasionally cause severe pain if the intestine poked through and became twisted or trapped (incarcerated). (Id. at UHR

28.) Ramirez was told to limit heavy lifting, straining, or pushing and told that he might wear an abdominal binder or truss, similar to a brace that fit around the belly. (Id.) He was told to seek emergency care if he had a change in pain, the hernia protruded and would not go back in, or he had nausea or vomiting. (Id.) Ramirez was discharged on tramadol, 100 mg., three times a day (300 mg./daily) and gabapentin, 600 mg. in the morning, 300 mg. at noon, and 600 mg. in the evening (1,500 mg./daily). (Id. at UHR 30.)

12. On December 13, 2008, Ramirez was admitted again to Pioneer Hospital for worsening pain over the previous two days. (Attach. 1, UHR 31-36.) After examination, a doctor found no emergency condition. (Id. at UHR 32.) Ramirez was given intravenous (IV) Dilaudid for pain and discharged in stable condition to Calipatria the same day. (Id. at UHR 35-36.)

13. On December 22, 2008, a doctor at Calipatria saw Ramirez for follow-up on his many medical problems. (Attach. 1, UHR 37-40.) The doctor noted that Ramirez was having problems with chronic pain, which he attributed to the ventral hernia and pelvic fracture/leg discrepancy, and that he was on tramadol and gabapentin and did not want to try Tylenol # 3 (acetaminophen with codeine) in place of the tramadol. (Id.) The doctor noted that Ramirez's hernia was not tender at that time, that he should ask to be seen if he had increased pain, and that a recommendation for a medical transfer to another institution was pending approval. (Id.) Ramirez asked to try a wedge pillow to see if it would help relieve pain. (Id.) The doctor ordered gabapentin , 900 mg., one tablet, three times a day (2,700 mg/daily) for neuropathic pain for 90 days. (Id.) There was no evidence of neuropathic pain from the old hip fracture/leg discrepancy problem that would warrant this kind of pain medication, but gabapentin had been promoted for off-label use in treating pain without studies showing that it was effective in treating pain other than the two kinds for which it was approved. The doctor wrote a Comprehensive Accommodation Chrono (CDCR 7410) for ground floor/bottom bunk housing, a cane, insoles for Ramirez's shoes, and an abdominal binder. (Id. at UHR 41.) A wedge pillow would not provide relief for pain associated with the ventral hernia or the old pelvic fracture/leg discrepancy.

14. On January 22, 2009, a doctor saw Ramirez for follow-up and found that he had a large hernia that was not incarcerated and had intermittent pain. (Attach. 1, UHR 42-44.) Ramirez asked to try Tylenol # 3 for "breakthrough pain," which is sharp pain that comes on suddenly and is not alleviated by regular pain medications. (Id. at UHR 42.) The doctor ordered Tylenol # 3, two tablets, once in the morning and once in the evening, as needed, for abdominal pain, for 90 days. (Id. at UHR 44.)

15. On February 2, 2009, a neurologist saw Ramirez for complaints of low back pain, pain related to his ventral hernia, and difficulty walking. (Attach. 1, UHR 45-46.) The neurologist noted that Ramirez continued to complain of pain and went to the Treatment and Triage Area (TTA) -- the prison's emergency room -- for toradol injections, even though he was taking 2,700 mg. of gabapentin a day, tramadol and Tylenol # 3. (Id.) The neurologist noted that Ramirez should lose weight. (Id. at UHR 46.) The neurologist advised Ramirez to wear his abdominal binder and recommended a magnetic resonance imaging test (MRI) for his low back pain complaint. (Id.) The neurologist noted that Elavil could be added to the other pain medications if that did not pose a cardiac problem. (Id.) The doctor noted that Ramirez was awaiting transfer to a facility in northern California because he was on medications that made him sensitive to, and at increased risk, from high temperatures. (Id.)

16. On February 10, 2009, Ramirez again was admitted to Pioneer Hospital for a complaint of chest and abdominal pain. (Attach. 1, UHR 48-58.) A CT of Ramirez's abdomen showed that the hernia was not obstructed. (Id. at UHR 54.) He was given IV morphine sulfate and discharged back to Calipatria in stable condition. (Id.)

17. As of February 24, 2009, Ramirez was on gabapentin, 300 mg., three tablets, three times a day (2,700 mg. total) for neuropathic pain, and tramadol, 100 mg., one tablet, three times a day (300 mg./daily) for somatic/visceral pain. (Attach. 1, UHR 59-62.) He was also receiving blood glucose checks three times a day; Lantus insulin, 26 units every evening; sliding scale regular insulin in varying amounts depending on how much his finger stick blood glucose was above 200 mg/dL; and glipizide, five mg. ,one tablet, twice a day, for diabetes. (Id.) Lantus insulin (insulin glargine) is a long acting form of insulin used to treat Type 1 (insulin dependent) or Type 2 (non insulin dependent) diabetes. Glipizide is an oral medication that can be taken alone, or with insulin, to treat Type 2 diabetes. Glipizide causes the pancreas to produce insulin and helps the body use insulin efficiently.

Treatment at HDSP

18. Ramirez transferred to HDSP on March 4, 2009. (Attach. 1, UHR 63-64.)

19. On arrival at HDSP, Dr. Lankford wrote an order continuing Ramirez's diabetes treatment regimen and for tramadol and gabapentin, without changes. (Attach. 1, UHR 65-66.)

20. Tramadol is in a class of medications called opiate agonists that change the way the body senses pain. It is prescribed for moderate to moderately severe pain. It is not a Schedule II medication and a physician's assistant or nurse practitioner can change the dose written by a doctor. A Schedule II medication, however, requires a physician's co-signature for a physician's assistant to order, unless the physician's assistant has completed a special course of study. Nevertheless, tramadol can be habit forming and can have significant side effects as breathing difficulty or seizures and may not be appropriate for patients with a history of drug addiction, asthma or those with obstructive sleep apnea, which Ramirez had.

21. Tramadol was not in the CDCR formulary established by the Pharmacy and Therapeutics (P & T) Committee as part of the remedial plan in Plata v. Davis, U.S. Dist. Ct., N.D. Cal., No. C-01-1351 THE prisoner class action. Its use on a nonformulary basis required the approval of the institutions's Chief Medical Officer.

22. Gabapentin is not a Schedule II medication and a physician's assistant or nurse practitioner can change the dose written by a doctor. Gabapentin is in the CDCR formulary, but is only approved by the U.S. Food and Drug Administration (FDA) at present for the treatment of complex seizures in patients with epilepsy and post-herpetic neuralgia (PHN) (nerve pain caused by shingles). Although its manufacturer promoted its off-label use for the treatment of other nerve pain, such as diabetic neuropathy, the manufacturer was fined for doing so in the absence of evidence-based studies showing that the drug was effective in treating those types of pain. Ramirez did not have either of the kinds of nerve pain for which gabapentin was approved.

23. Both tramadol and gabapentin are potential drugs of abuse among patients with histories of drug abuse and in correctional institutions. For that reason, tramadol and gabapentin are given crushed in liquid and under direct observation therapy (DOT) to minimize the potential for hoarding them or giving them to other inmates.

24. On March 18, 2009, Nurse Practitioner Wrigley saw Ramirez and changed the gabapentin order for Dr. Lankford from 900 mg., three times a day, (2,700 mg. total) to 1,800 mg., twice a day (3,600 mg.). (Attach. 1, UHR 68-74.) That is the maximum daily amount of that medication. Wrigley continued tramadol, 100 mg., three times a day for low back pain on a non-formulary basis. (Id.) Wrigley also ordered metformin, 1,000 mg., twice a day for diabetes. (Id., at UHR 72.) The same day, Nurse Practitioner Wrigley wrote a Comprehensive Accommodation Chrono for, among other things, ground floor/bottom bunk housing, a cane, shoe insoles, an abdominal binder, and use of a wheelchair because Ramirez complained that he could not walk to the medical clinic for his diabetic medications because of chronic pain. (Id. at UHR 71.) Physician's assistants and nurse practitioners are primary care providers (PCPs) in CDCR institutions. They are expected to manage their patient population and care for individual patients based on CDCR treatment guidelines and protocols. The standard practice for pain management is that dosing should be adjusted to the lowest possible level to achieve function. Narcotic-type medications are used to treat nociceptive pain which cannot be controlled by non-narcotic medications and for which an objective cause can be found. Function is defined as the ability to perform activities of daily living (ADLs), such as grooming, dressing, housekeeping, walking to a dining hall or medical appointments, and mild daily exercise, such as walking around the track on the yard.

25. On March 24, 2009, Ramirez complained of pain from his hernia. (Attach. 1, UHR 75-76.) He was taken to the TTA and given Tylenol, 975 mg, one tablet, and referred for follow-up by a doctor. (Id.)

26. The next day, March 25, 2009, Nurse Practitioner Wrigley saw Ramirez, who asked that he be given morphine or Tylenol # 3 for pain, in addition to tramadol and gabapentin he had been prescribed. (Attach. 1, UHR 77.) Ramirez's request for additional and different opiate-type medications only a week after his gabapentin dose was increased, and before the effectiveness of the increase could be assessed, is a flag for possible drug-seeking behavior.

27. On April 2, 2009, Nurse Practitioner Wrigley changed

Ramirez's blood glucose checks to twice a day, rather than three times a day. (Attach. 1, UHR 79.) A hemoglobin A1C test done on April 3, 2009, was 6% which indicates well-controlled diabetes. (Id. at UHR 80.) The A1C test gives an indication of blood glucose control over the preceding two or three months. It is not subject to the variations present in finger stick blood glucose checks and, for that reason, gives a more accurate measure of the control of blood glucose in diabetics. Although goals are individualized for each patient, the general goal is an A1C below 7%.

28. On April 9, 2009, Nurse Practitioner Wrigley changed Ramirez's tramadol to 50 mg., three tablets, twice a day (300 mg/daily), rather than 100 mg. three times a day. (Attach. 1, UHR 81.)

29. On April 29, 2009, Nurse Practitioner Wrigley saw Ramirez who reported continued pain from his ventral hernia. (Attach. 1, UHR 83-84.) Wrigley noted that a surgical evaluation had been requested and added acetaminophen, 325 mg., two tablets, three times a day, as needed for pain.*fn1 (Id.) The addition of non-opioid medications, like acetaminophen, can increase the efficacy of opioid-type of medications, like tramadol, without the need to increase the dose of the opioid medication. But less than a week later, on May 6, 2009, Ramirez asked that his tramadol and gabapentin be given three times a day, rather than twice a day. (Id. at UHR 85.) That request was also a flag for possible drug-seeking behavior.

30. On May 21, 2009, Ramirez was hospitalized at Banner Lassen Medical Center (BLMC) for chest pain. (Attach. 1, UHR 86.) Ramirez returned to HDSP on May 24, 2009. (Id.)

31. On June 1, 2009, Ramirez was seen by Physician's Assistant Miranda and said that a full cardiac work-up had been negative, that he had had an asthma attack because he had been taking fewer puffs a day of his Amanex inhaler than had been ordered, and that he felt well. (Attach. 1, UHR 86-88.) Ramirez requested and was referred to a podiatrist for evaluation of his need for orthotics to lift his left heel, and to an ophthalmologist for an annual diabetes vision exam. (Id.) Miranda noted that Ramirez also had a ventral hernia and that a surgical consultation was pending. (Id.) Miranda found that Ramirez's diabetes was well-controlled, but Ramirez asked to see a doctor, claiming that sliding scale regular insulin should be given when he had a finger stick blood glucose above 150 mg/dl, rather than above 200 mg/dl, as the doctor had ordered. (Id.) Miranda continued Ramirez's medications without change and referred him to the Podiatry Clinic. (Id. UHR 88-89.) Miranda noted that Ramirez exhibited drug seeking behavior, even though his current doses of gabapentin and tramadol appeared to be adequate. (Id. at UHR 87.)

32. On June 24, 2009, Dr. Harvey saw Ramirez in the Podiatry Clinic for an annual diabetic foot examination. (Defs.' Ex. A, Swingle Decl., Attach. 1, UHR 89-90.) Ramirez asked for "special diabetic shoes," claiming that he had neuropathic pain in his feet when walking because of diabetes and his old pelvic fracture/leg discrepancy. (Id.) Dr. Harvey noted that Ramirez had tennis shoes that he wore to the exercise yard, as well as orthopedic boots that he wore to school, even though he sat during class. (Id.) Dr. Harvey found that, in the past, Ramirez had only been given an insole that lifted his left heel an insignificant amount, that there were no acute changes in his condition, and that Ramirez refused to walk to demonstrate his problem when asked to do so during the examination. (Id.) Dr. Harvey found that Ramirez did minimal walking without his orthopedic boots and did not demonstrate diabetic neuropathic pain that would qualify him for special diabetic shoes. (Id.)

33. On July 14, 2009, an ophthalmologist found that Ramirez did not have diabetic retinopathy. (Attach. 1, UHR 91-93.)

34. On August 3, 2009, Ramirez complained of a spike in pain from his ventral hernia but nursing staff noted that he presented a contradictory picture because he would grimace in pain for medical staff, but would stop, laugh, and show no signs of symptoms when talking with custody staff. (Attach. 1, UHR 94.)

35. On August 7, 2009, Ramirez had a hemoglobin A1C that was 5.6%, indicating that his diabetes was well-controlled. (Attach. 1, UHR 94.)

36. On August 10, 2009, an officer and a nurse observed Ramirez get out of his wheelchair and walk without difficulty or assistance. (Attach. 1, UHR 96.) Ramirez had been allowed to use the wheelchair to get to and from the medical clinic because he claimed he was unable to walk due to pain. (Id.) When asked why he was not using the wheelchair, Ramirez kicked the medical clinic grill gate and balanced on one foot with a cane while hitting the gate, without apparent signs of distress. (Id.) Nurse Practitioner Burgett issued a new Comprehensive ...

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