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Mario Williams v. Jason T. Huffman

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


November 16, 2012

MARIO WILLIAMS, PLAINTIFF,
v.
JASON T. HUFFMAN, M.D.,*FN1 ET AL.,
DEFENDANTS,

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

ORDER AND FINDINGS AND RECOMMENDATIONS

I. Introduction

Plaintiff, a state prisoner proceeding without counsel, seeks relief pursuant to 42 U.S.C. § 1983. This case is proceeding on the first amended complaint, filed April 29, 2011. Plaintiff alleges that defendants Dr. Traquina, L. Austin, and L. Mefford were deliberately indifferent to plaintiff's serious medical needs by delaying the scheduling of plaintiff's back surgery. On June 7, 2012, plaintiff filed a motion for summary judgment. On June 27, 2012, defendants filed a motion for summary judgment. As explained below, the court recommends that defendants' motion for summary judgment be granted, and plaintiff's motion be denied.

II. Plaintiff's Allegations

Plaintiff is proceeding on the verified amended complaint filed April 29, 2011, alleging that defendants were deliberately indifferent to plaintiff's serious medical needs by delaying the scheduling of plaintiff's back surgery. (Dkt. No. 8.) Plaintiff alleges the following:

On January 27, 2009, Dr. Nguyen ordered an urgent MRI for plaintiff's back injury. On January 28, 2009, Dr. Rallos discussed plaintiff's case with Dr. Traquina, Chief Medical Officer, who is responsible for scheduling outside surgeries. Defendants Austin and Mefford are also responsible for scheduling outside surgeries. The January 28, 2009 MRI revealed plaintiff was suffering from spinal injury. Dr. Rallos ordered an urgent consultation to neurosurgery. Suzanne Silva, LVN, outside scheduling, issued an urgent notice to put plaintiff on Dr. Huffman's schedule for February 9, 2009. On February 9, 2009, Dr. Huffman ordered x-rays of plaintiff's lumbar spine, and reviewed plaintiff's MRI report which "showed collapse of the disc space, dehydration of the intervertebral disc at L4-5, at L3-4, and loss of disc height at L2-3." (Dkt. No. 8 at 5.) On the Forensic clinic follow-up consultation, Dr. Huffman found plaintiff was suffering from right lower extremity sciatica, limp, pain causing difficulty with ambulation, and sleep difficulty due to the pain, and weakness. Plaintiff alleges defendant Huffman told plaintiff that he needed surgery, and that plaintiff agreed to the surgery. (Id. at 6.) Plaintiff alleges that on many occasions between February and May 2009, he continued to complain to prison medical officials that he was in pain, and that he needed his back surgery. (Id.) Plaintiff alleges he completed health care services request forms and 602 appeals to obtain back surgery due to his pain and suffering. Plaintiff alleges defendants were responsible to timely schedule plaintiff's back surgery, and their delay in timely scheduling the back surgery amounts to deliberate indifference to plaintiff's serious medical needs. (Id.)

III. Defendants' Motion for Summary Judgment

Defendants move for summary judgment on the grounds that there are no genuine issues of material facts, that plaintiff's claims are improperly based on theories of respondeat superior and/or vicarious liability, and that defendants are entitled to qualified immunity; thus, defendants contend they are entitled to judgment as a matter of law. Plaintiff filed an opposition, and defendants filed a reply. (Dkt. Nos. 87, 88.) On July 25, 2012, plaintiff was advised of the requirements for filing an opposition to a motion for summary judgment under Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998), and granted an additional thirty days in which to file a supplemental opposition. (Dkt. No. 98.) On August 17, 2012, plaintiff filed a response stating he would rely on his original opposition. (Dkt. No. 91.) In his 212 page opposition, plaintiff provided a declaration signed under penalty of perjury. (Dkt. No. 87 at 33-37.)

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).*fn2

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 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).

By orders filed May 31, 2011, and July 25, 2012, the court advised plaintiff of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. Nos. 12, 89); see Rand, 154 F.3d at 957.

B. Undisputed Facts

For purposes of the instant motion for summary judgment, the court finds the following facts undisputed.

1. Plaintiff was in the custody of the California Department of Corrections and Rehabilitation ("CDCR") at California State Prison in Solano ("CSP-Solano") in 2009.

2. Defendant Austin is the Chief Executive Officer of Health Care Services at CSP-Solano. She has worked for the California Department of Corrections and Rehabilitation for approximately two and one half years. (Ex. C to Appendix, Austin Decl. ¶2.)

3. As Chief Executive Officer of Health Care Services, defendant Austin works under the leadership of the Regional Administrator. She is responsible for planning, organizing, and coordinating delivery of a multi-functional health care system. The system features a full range of medical, mental health, dental, pharmacy and medication management, specialized care and clinic services, and allied health. She serves as the Department's and the Medical Receiver's principal advisor on the institution's specific application of health care policies and procedures. (Ex. B to Appendix, Austin Decl. ¶3.)

4. Defendant Mefford is the Correctional Health Services Administrator II at CSP-Solano. (Ex. B to Appendix, Mefford Decl. ¶2.)

5. As the Correctional Health Services Administrator, defendant Mefford has supervisory authority over the ancillary service areas of the health care department, such as the laboratories, radiology department, and medical records. Additionally, she supervises the administrative aspects of the health care department, such as departmental budgets, and inmate medical administrative grievances. She has held this position for approximately six years. (Ex. B to Appendix, Mefford Decl. ¶3.)

6. Since March of 2003, defendant Dr. Traquina has served as the Chief Medical Officer ("CMO") at CSP-Solano. Dr. Traquina received his medical license from the State of California in 1980, and is certified as a specialist by the American Board of Surgery.

7. As the Chief Medical Officer, Dr. Traquina plans, organizes, and directs the medical, dental, psychiatric, and clinical services for the care and treatment of inmates housed at the prison; he plans and assigns work; supervises admissions, assigns cases to physicians, checks case histories and progress; examines, diagnoses, prescribes, and administers treatment; performs minor surgeries and supervises postoperative care of patients; diagnoses cases; prescribes medical and surgical treatment; directs the clinical and pathological work and orders examinations and analyses, x-rays, dental work, special diets, and medications; conducts staff conferences and in services training; exercises expenditure controls for equipment and supplies; prepares the institution health care budget; develops and implements the long range planning of health care programs; establishes and approves local health care policy and procedure; and prepares comprehensive medical reports.

8. On January 22, 2009, plaintiff submitted a CDC Form 7362, Request for Health Care Services form, complaining of excruciating pain in his right leg. (Ex. A to Appendix, Traquina Decl. ¶5; Dkt. No. 87 at 49.)

9. On January 23, 2009, plaintiff was issued a chrono for a lower bunk and to have a wheelchair for two weeks. (Dkt. No. 87 at 53.) Dr. Traquina approved the chrono on February 5, 2009. (Id.)

10. Plaintiff was examined by a Registered Nurse on January 25, 2009, who reported that plaintiff was unable to ambulate due to leg and hip pain. (Ex. A to Appendix, Traquina Decl. ¶6.)

11. Plaintiff completed another 7362 on January 26, 2009, complaining of pain in his right leg for the past two weeks, which he ranked ten on a scale of one to ten. (Ex. A to Appendix, Traquina Decl. ¶7; Dkt. No. 87 at 55.) Plaintiff had cramps and spasms, and was unable to walk on the leg.

12. On January 26, 2009, Dr. Noriega examined plaintiff, assessing muscle spasms in the lower back and thigh, and prescribed an injection of Toradol and Robaxin. (Dkt. No. 87 at 64.)

13. On January 28, 2009, plaintiff received an MRI of the lumbar spine and hip, which revealed degenerative disc disease. (Ex. A to Appendix, Traquina Decl. ¶8.)

14. On January 28, 2009, plaintiff was issued a chrono for a ground floor cell and crutches for one month, and a bottom bunk for six months. (Dkt. No. 87 at 66.) Dr. Traquina approved this chrono on February 5, 2009. (Id.)

15. On January 29, 2009, treating Dr. Nguyen of CSP-Solano requested an urgent referral for plaintiff to see an orthopedic surgeon, noted that he discussed plaintiff's case with Dr. Traquina on January 28, 2009, and also authorized surgery if the orthopedic surgeon recommended it.*fn3 (Ex. A to Appendix, Traquina Decl. ¶9, Ex. D.) Near the bottom of the Request for Services Form, follow-up is circled, and Dr. Nguyen wrote: "for ? surgical planning after MRI. *Please send Films." (Id., Ex. D.) Dr. Traquina declares that this notation indicates that surgery was authorized by the prison on January 29, 2009. (Ex. A to Appendix, Traquina Decl. ¶9.)

16. On January 29, 2009, Suzanne Silva, LVN, from CSP-Solano outside medical scheduling, faxed an urgent request for plaintiff to be seen by Dr. Huffman on February 9, 2009. (Id., Ex. E, Dkt. No. 1 at 38.) The appointment with orthopedic surgeon Dr. Huffman was confirmed on February 3, 2009. (Dkt. No. 1 at 45; Traquina Decl. ¶10.*fn4

17. On February 5, 2009, Dr. Traquina approved two "Comprehensive Accommodation Chronos" for plaintiff to receive lower bunk and ground floor housing, and access to a wheelchair and crutches. (Dkt. No. 87 at 53, 66.) The chrono form states that "[a] physician shall complete this form if an inmate requires an accommodation due to a medical condition." (Id.)

18. On February 8, 2009, a medical code was called on plaintiff. (Dkt. No. 87 at 78.) Plaintiff complained of pain from his lower back down to his toes, and acute spasms, and claimed he could not stand or walk. He was assessed as having acute lower back pain and impaired mobility, and given an injection of 60 mg. of Toradol. (Id.)

19. Plaintiff was examined by Dr. Huffman on February 9, 2009, who recommended surgery if supported by the MRI findings. Dr. Huffman noted that he needed the MRI to review. (Ex. A to Appendix, Traquina Decl. ¶11.)

20. In his written report, Dr. Huffman recorded plaintiff's present illness history as follows. (Dkt. No. 87 at 80.) Plaintiff hurt his back playing basketball. After the injury, plaintiff experienced increasing pain on the right side of his back over the next 24 hour period, radiating into his thigh, leg and foot. Plaintiff's pain was severe over the next two weeks, but then plaintiff received an injection of Toradol which helped somewhat. Plaintiff is now managing the pain but still has significant pain, which causes difficulty in walking, and causes a limp. Plaintiff cannot put weight on his right leg, and has difficulty sleeping. Plaintiff's pain is relieved by sitting and resting and by medications, but is exacerbated by ambulating. Motrin and Soma seemed to help. Dr. Huffman's recommendations state:

At this time, I would like to obtain the copies of the MRI films to review myself. The patient appears to have L3-4 foraminal stenosis which I suspect would give more L3 nerve root symptoms and his symptoms actually present as more L4-K5 nerve root symptoms on examination and history. If all the things are consistent, once I get a chance to personally review the MRI, I would consider decompression around the L4-L5 nerve roots. I discussed this with the patient and he is interested in surgical intervention if that is the case. At this time, my recommendation is to obtain the MRI. If the MRI is consistent with the history and clinical examination, then proceed with surgical micro decompression. If not, I will see the patient back for further examination. (Dkt. No. 1 at 50.)

21. On February 9, 2009, Dr. Nguyen approved a follow-up request for plaintiff to see Dr. Huffman regarding the collapse in his disc space. Dr. Nguyen noted that plaintiff did not have his January 28, 2009 MRI films with him when he was treated by Dr. Huffman on February 9, 2009, and requested they be sent with plaintiff for the follow-up. (Ex. A to Appendix, Traquina Decl. ¶13, Ex. G.) Dr. Nguyen said plaintiff should have a follow-up appointment within 14 days. (Id.) The form was faxed to Dr. Huffman's office on February 9, 2009. (Id.)

22. On February 17, 2009, the radiologist's report from the CT scan of plaintiff's abdomen and pelvis noted:

Marked degenerative disc changes at L2-3 and L3-4. Moderate broad-based disc protrusion at L2-3 with some effacement of the ventral subarachnoid space. Moderate broad-based protrusion of the disc at L3-4, which in association with hypertrophy of the ligaments flave bilaterally and hypertrophic changes within the facet joints bilaterally, results in a mild to moderate spinal stenosis. Both neural foraminal canals moderately narrowed at this level as well. No significant disc disease at L4-5 or L5-S1.

(Dkt. No. 87 at 87.) The radiologist concluded that plaintiff had "moderate lumbar spondylosis at L2-3 and L3-4 . . . Spondylodiscitis at either of these two levels cannot be excluded." (Id. at 88.) 23. On February 26, 2009, during an examination for unrelated complaints, Dr. Nguyen noted "please check f/u appointment with Dr. Huffman for surgery." (Ex. A to Appendix, Traquina Decl. ¶14.)

24. On March 10, 2009, Renee with the Napa Valley Orthopedic Group sent a request for surgical authorization, appending a copy of Dr. Huffman's consultation report, and requested that prior to scheduling, a copy of the MRI film be sent to the forensic unit for review. The bottom of the documents states "4/29 Dr. Huffman reviewed and surgery info for Tina." (Ex. A to Appendix, Traquina Decl. ¶15.)*fn5

25. On March 15, 2009, plaintiff filed a 602 appeal noting his back injury, his consultation with a spinal surgeon, and that he was awaiting surgery. (Dkt. No. 87 at 92.) Plaintiff stated that he "continue[s] to have back spasms and extreme pain in legs, and buttocks, hip area," and that he could not put pressure on his right leg. (Id.) Plaintiff asked to be sent out for surgery to be relieved of the extreme pain and discomfort. (Id.) On May 8, 2009, at the second level of review, T. Brimhall, Health Care Manager, informed plaintiff that all the paperwork was sent to Queen of the Valley Hospital as requested by Dr. Huffman, and "is pending scheduling." (Dkt. No. 87 at 96.) The Outside Scheduling Office was contacted again on May 6, 2009, and confirmed that plaintiff's surgery date was set for the month of May 2009. (Id.) None of the rulings on plaintiff's March 15, 2009 appeal bear any of the named defendants' signatures.

26. On March 19, 2009, plaintiff completed a 7362 and complained of extreme pain in his right leg with numbness in his fingers. Plaintiff inquired as to the surgery for his back, and stated that the "pain medication is not really helping." (Ex. A to Appendix, Traquina Decl. ¶15; Dkt. No. 87 at 90.) Plaintiff was seen by a Registered Nurse that day who contacted the outside scheduling office, and was informed that plaintiff was one of the priority to go, and the appointment may be next month. (Ex. A to Appendix, Traquina Decl. ¶15.)

27. On April 30, 2009, Tina from the Napa Valley Orthopaedic Group faxed an outpatient scheduling form, noting plaintiff's May 11, 2009 appointment with Dr. Huffman, with a surgery date of May 21, 2009. (Id., Ex. K.) The form also states that "patient didn't see hospitalist this day, didn't have pre op testing with him. Rescheduled to 5-19-09 at 1:00." (Id.)

28. On May 1, 2009, Dr. Huffman signed "Preadmission Surgery Orders," noting the May 21, 2009 surgery date, and the May 11, 2009 pre-operative appointment, and ordering certain pre-operative tests. (Dkt. No. 1 at 87.)

29. Dr. Huffman's surgery scheduling form is not signed or dated, but the surgery is marked "elective," and described the surgery to be performed. (Dkt. No. 1 at 75.) The form notes a pre-operative appointment for May 11, 2009, and surgery on May 21, 2009. (Id.) The bottom of the form contains the following handwritten notes:

5-6 faxed prison. 4-29-09 Renee said ok to schedule. Dr. Reviewed MRI. 4/30 told Renee Seen 4-20-09 by hospitalist. Faxed Faxed 5-1 (Dkt. No. 1 at 75.)

30. Surgery was subsequently scheduled for May 21, 2009. Plaintiff was scheduled to see Dr. Huffman for a preoperative visit on May 11, 2009. (Ex. A to Appendix, Traquina Decl. ¶16.)

31. On May 5, 2009, Laura Mefford, R.N., and Dr. Traquina signed a Request for Authorization for Temporary Removal for Medical Reasons to allow plaintiff to leave the prison for the May 11, 2009 preoperative visit.*fn6 (Ex. A to Appendix, Traquina Decl. ¶17, Ex. L; Dkt. No. 87-1 at 81.)

32. On May 11, 2009, Dr. Huffman examined plaintiff for the preoperative visit. Dr. Huffman had reviewed the MRI and confirmed that surgery would be beneficial, and plaintiff agreed. (Ex. A to Appendix, Traquina Decl. ¶18.)

33. On May 19, 2009, Dr. Rohrer signed a follow-up request for plaintiff to undergo the surgical procedure. (Ex. A to Appendix, Traquina Decl. ¶19.)

34. On May 21, 2009, plaintiff was admitted to Queen of the Valley Hospital, and micro decompression surgery was performed that day. (Ex. A to Appendix, Traquina Decl. ¶20.) Plaintiff's diagnosis was lumbar stenosis/sciatica. (Id., Ex. O.) Dr. Huffman performed a hemilaminectomy/foraminotomy at L3-4 and L4-5. (Dkt. No. 87-1 at 40.)

35. Although the surgery was approved by prison staff in January 2009, the surgery was not to be performed at the prison, and plaintiff had to be evaluated by Dr. Huffman on several occasions prior to undergoing surgery, and the normal administrative requirements had to be met in the meantime.*fn7 (Ex. A to Appendix, Traquina Decl. ¶23.)

36. Dr. Traquina did not treat inmate plaintiff for his back pain.*fn8 Additionally, he did not participate in scheduling his back surgery. Although he may have approved his surgery, he did not determine the date that surgery would be performed. The Outside Scheduling Office coordinates dates with the outside medical provider, and the scheduling of same is determined by the availability of the outside medical provider. (Ex. A to Appendix, Traquina Decl. ¶24.)

37. Dr. Traquina did not intend for inmate plaintiff to suffer unnecessary pain, or to delay the scheduling of his back surgery any longer than was necessary.*fn9 (Ex. A to Appendix, Traquina Decl. ¶25.)

38. Although she is a Registered Nurse, defendant Mefford has not worked in this capacity since 2003. At CSP-Solano, she has worked solely in an administrative capacity, and does not provide direct medical care to inmates at the prison. (Ex. B to Appendix, Mefford Decl. ¶4.)

39. Defendant Mefford does not participate in the direct medical treatment of inmates generally, nor does she participate in the decision to refer inmates to outside medical providers for examination or treatment.*fn10 (Ex. B to Appendix, Mefford Decl. ¶5.)

40. When a medical provider at the prison recommends an inmate for outside services, the provider forwards the request to the Outside Scheduling Department, which then coordinates the appointment with the outside medical provider, based upon the availability of the outside provider. The Outside Scheduling Department is located at the prison. (Ex. B to Appendix, Mefford Decl. ¶6.)

41. Scheduling outside appointments can often involve coordinating with multiple offices, including the outside provider, and in the case of surgery, with the hospital where the surgery will take place. (Ex. B to Appendix, Mefford Decl. ¶7.)

42. If the outside provider requests that the inmate bring medical records with him to the outside examination, it is the responsibility of the outside schedulers to prepare these documents, and to forward them to the custody staff tasked with transporting the inmates.*fn11

(Ex. B to Appendix, Mefford Decl. ¶8.) 43. When an inmate is approved for outside medical services, a Request for Authorization of Temporary Removal for Medical Reasons Form (CDC Form 7252) must be completed. The 7252 contains the inmate's personal information, the address of the outside provider, the purpose of the outside treatment, and the reason why the service cannot be provided at the prison. (Ex. B to Appendix, Mefford Decl. ¶9.)

44. As the Correctional Health Services Administrator, defendant Mefford previously was responsible for reviewing and signing 7252s, which have already been completed by the time they reach her desk. Defendant Mefford's responsibility was to review the document to make sure the personal information of the inmate, as well as the outside provider, was entered correctly. She did not review the inmate's medical records prior to completing a 7252, nor was she provided any information pertaining to the inmate's medical history.*fn12 (Ex. B to Appendix, Mefford Decl. ¶10.)

45. Defendant Mefford has never provided medical care to plaintiff, nor was she required to do so. (Ex. B to Appendix, Mefford Decl. ¶11.)

46. Defendant Mefford did not participate in scheduling inmate plaintiff's May 2009 back surgery. Her involvement was limited to signing the 7252, which authorized his temporary removal from the prison for the purposes of receiving outside medical care. Defendant Mefford has never scheduled an inmate's surgery at CSP- Solano, whether it is to be performed at the prison or at an outside facility.*fn13 (Ex. B to Appendix, Mefford Decl. ¶12.)

47. Defendant Mefford has never seen or spoken to plaintiff.

48. Defendant Austin is not a medical doctor, and she does not provide medical care to inmates at the prison.*fn14 (Ex. B to Appendix, Austin Decl. ¶4.)

49. Thus, defendant Austin does not participate in the treatment of inmates, nor does she participate in the decision to refer inmates to outside medical providers.*fn15 (Id., ¶5.)

50. When a medical professional at the prison determines that an inmate would benefit from treatment at an outside facility, the physician forwards a request for services to the prison's outside scheduling office, which then coordinates scheduling the appointment with the outside provider. Defendant Austin does not work in the outside scheduling office, nor does she schedule outside appointments for inmates.*fn16 (Id., ¶6.)

51. Defendant Austin did not schedule plaintiff's May 2009 back surgery, nor did she participate in the decision as to when to schedule inmate plaintiff back surgery. In fact, she has never scheduled any inmate's surgery, either at the prison or at an outside medical facility.*fn17

(Id., ¶7.)

52. Defendant Austin has never provided medical care to plaintiff, nor has she ever seen or spoken to him. (Id., ¶8.)

53. Plaintiff testified that the outside scheduling office at CSP-Solano is responsible for scheduling inmates' appointments with outside medical providers. (Ex. D to Appendix, Pl.'s Depo. at 12:21-13:6.)

54. Plaintiff testified that he filed several medical administrative appeals (CDC Form 7362), and a general administrative appeal (CDC Form 602), but the defendants were not the prison staff that responded to them.*fn18 (Ex. D to Appendix, Pl.'s Depo. at 20:3-7.)

55. Plaintiff never complained directly to Dr. Traquina, but Dr. Traquina was notified on January 28, 2009, that plaintiff was being sent to an outside provider. (Ex. D to Appendix, Pl.'s Depo. at 20:8-12.)

56. Besides the January 28, 2009 record that mentions Dr. Traquina, plaintiff does not have any other medical records that refer to defendants.*fn19 (Ex. D to Appendix, Pl.'s Depo. at 21:13-25.)

57. Plaintiff has seen Dr. Traquina before, but he has never seen defendants Austin or Mefford. (Ex. D to Appendix, Pl.'s Depo. at 22:1-7.)

58. Plaintiff sued defendant Mefford because defendant Mefford signed the authorization that permitted him to leave the prison to see an outside medical provider.*fn20 (Ex. D to Appendix, Pl.'s Depo. at 22:11-23:1.)

59. Defendant Austin does not appear in any of plaintiff's medical records, and she is being sued because she is CEO of Health Care and is "in charge."*fn21 (Ex. D to Appendix, Pl.'s Depo. at 24:10-25.)

60. None of the defendants personally treated plaintiff for his back pain prior to the May 2009 surgery.*fn22 (Ex. D to Appendix, Pl.'s Depo. at 28:9-29:2.)

61. Plaintiff sued defendants Mefford and Austin because they are prison administrators.*fn23 (Ex. D to Appendix, Pl.'s Depo. at 21:13-22:7.)

62. Plaintiff sued defendant Austin because she is CEO, and "in charge."*fn24 (Ex. D to Appendix, Pl.'s Depo. at 24:17-25.)

63. In response to an interrogatory asking how outside surgeries are scheduled at the prison, plaintiff responded he does not know. (Ex. F to Appendix, Supplemental Responses to Defendant Austin's First Set of Interrogatories.)

C. Legal 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).

Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) (no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979) (no liability where there is no evidence of personal participation). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal participation is insufficient).

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 the 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).

D. Analysis

i. Defendant L. Austin

In his deposition, plaintiff claimed that he sued defendant Austin, Chief Executive Officer ("CEO"), because she is a prison administrator and is "in charge." Plaintiff now claims that defendant Austin participated in scheduling plaintiff's back surgery. In his opposition, plaintiff claims that defendant Austin was "notified of plaintiff's urgent medical condition," and that defendants "were aware of plaintiff's complaints of extreme pain and suffering, and the need to have urgent surgery to relieve the pain and suffering he was experiencing." (Dkt. No. 87 at 9.)

"Liability under [§ ] 1983 arises only upon a showing of personal participation by the defendant. A supervisor is only liable for the constitutional violations of . . . subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them. There is no respondeat superior liability under [§ ] 1983." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citations omitted).

Here, it is undisputed that defendant Austin does not appear in any of plaintiff's medical records, and did not personally respond to plaintiff's administrative appeals or health care services request forms. In her response to interrogatory no. 7, defendant Austin stated that she does not approve or schedule surgeries at outside hospitals. (Dkt. No. 81 at 73.) Defendant Austin confirmed that all requests for services go through the Interqual System, not the CEO. (Id. at 75) Plaintiff adduced no competent evidence to rebut defendant Austin's evidence that she did not medically treat plaintiff, and that she was not involved in approving or scheduling plaintiff's surgery.*fn25

Thus, defendant Austin's role as CEO, without more, is insufficient to demonstrate liability in this action. Plaintiff does not offer any evidence to suggest that defendant Austin engaged in any specific acts that violated plaintiff's constitutional rights or failed to investigate any of her employees' acts that may have violated plaintiff's constitutional rights. Rather, plaintiff's claims appear to stem from his belief that defendant Austin is liable as a supervisor. Defendant Austin attests to the fact that she was not involved in plaintiff's medical treatment, and did not participate in the scheduling of plaintiff's surgery. (Dkt. No. 82-2 at 5.)

Therefore, the court recommends that summary judgment be granted in favor of defendant Austin due to her lack of personal participation in plaintiff's alleged constitutional violations.

ii. Defendant L. Mefford

Plaintiff argues that "defendants were medical officials responsible for timely scheduling, approving, and authorizing plaintiff's back surgery." (Dkt. No. 87 at 3.) Specifically, plaintiff contends that defendant Mefford is linked to plaintiff's treatment because she signed the 7252 form regarding plaintiff's urgent need for back surgery. (Dkt. No. 86 at 5.) However, defendant Mefford's May 12, 2009 signature on the 7252 form is the only fact establishing a connection to plaintiff.

Defendant Mefford adduced evidence that her sole responsibility in signing 7252 forms is to review the document to make sure the personal information of the inmate, as well as the outside provider, was entered correctly. Defendant Mefford declares that she does not provide medical treatment to inmates, she does not schedule surgeries, and that prior to completing the 7252 forms, she does not review inmates' medical histories, and she is not provided an inmate's medical history. Plaintiff failed to rebut Mefford's declaration with competent evidence. Plaintiff adduced no evidence demonstrating that defendant Mefford was responsible for scheduling, approving, or authorizing plaintiff's surgery, or that defendant Mefford was responsible for any delay in scheduling the surgery. Indeed, there is no evidence that defendant Mefford was responsible for signing a 7252 form prior to May 12, 2009, or that defendant Mefford was aware of any delay in the scheduling of plaintiff's surgery.

Plaintiff adduced no evidence demonstrating that defendant Mefford was responsible for sending MRI films to Dr. Huffman for the February 2009 appointment.

Moreover, by signing the 7252 form on May 12, 2009, defendant Mefford authorized plaintiff's release from the prison for pre-operative care. Thus, her sole action in this case assisted plaintiff in obtaining back surgery. Such action, without more, cannot be construed as deliberate indifference.

Plaintiff offers no evidence suggesting that defendant Mefford engaged in any specific acts that violated plaintiff's constitutional rights. Thus, defendant Mefford is entitled to summary judgment.

iii. Defendant Dr. Traquina

The record evidence reflects that Dr. Nguyen discussed plaintiff's case with Dr. Traquina on January 28, 2009, and on January 28, 2009, plaintiff received an MRI. On January 29, 2009, Dr. Nguyen issued an urgent referral for plaintiff to be seen by Dr. Huffman, the outside orthopedic surgeon, and an urgent request for an appointment was faxed on the same day. On February 5, 2009, Dr. Traquina approved two chronos for plaintiff to receive lower bunk housing and access to a wheelchair and crutches. (Dkt. No. 87 at 53, 66.) On February 8, 2009, when plaintiff presented with acute lower back pain, plaintiff was provided an injection of 60 mg. of Toradol for pain. On February 9, 2009, plaintiff was seen by Dr. Huffman. During the February 9, 2009 appointment with Dr. Huffman, plaintiff reported that plaintiff's pain:

was severe for about 2 weeks and then he got some medications for it including a Toradol injection which helped somewhat and he is now managing the pain but he still has significant pain. His pain is causing him difficulty with ambulation, causing him to limp. He has a hard time weightbearing on the right leg because it increases his pain and it is making him difficult to sleep. The pain is relieved by sitting and resting and by the medications. It is made worse by ambulating. He has been taking Motrin, Soma and Tylenol 3. The Motrin and Soma seemed to help so he stopped taking the Tylenol 3 because it wasn't really helping.

(Dkt. No. 87 at 80.) It is undisputed that plaintiff's January 28, 2009 MRI films were not transported with plaintiff for the February 9, 2009 appointment.

Plaintiff argues that defendants "refused to send plaintiff's MRI films to the neurosurgeon to review, causing the delay." (Dkt. No. 87 at 11.) Although plaintiff's MRI films were not transported with plaintiff to the February 9, 2009 appointment, plaintiff adduced no evidence demonstrating that Dr. Traquina was responsible for making sure plaintiff was accompanied by the MRI films, or that Dr. Traquina refused to send the MRI films with plaintiff to the appointment. Indeed, plaintiff adduced no evidence demonstrating Dr. Traquina's personal involvement beyond the January 28, 2009 discussion and the February 5, 2009 approvals of the chronos. Moreover, plaintiff failed to identify, by competent evidence, the person responsible for ensuring that plaintiff's MRI films accompanied plaintiff to his February 2009 appointment with Dr. Huffman.*fn26

Plaintiff appears to argue that the accommodation chronos demonstrate that Dr. Traquina treated plaintiff for his pain. However, these chronos addressed housing, and provided access to a wheelchair and crutches, and are unrelated to plaintiff's back surgery. The chronos do not indicate that they were issued based on plaintiff's complaints of pain, but rather accommodated plaintiff's issues with mobility. Also, Dr. Traquina did not issue the chronos; rather, he simply approved them. In addition, the approval of these chronos does not evidence deliberate indifference; rather, the chronos demonstrate appropriate conduct on the part of Dr. Traquina. Thus, these chronos do not support plaintiff's allegation that Dr. Traquina intentionally delayed plaintiff's surgery, or that Dr. Traquina was deliberately indifferent to plaintiff's serious medical needs.

Plaintiff also argues that Dr. Traquina was aware that plaintiff's condition was urgent, and that plaintiff was in extreme pain and needed to be scheduled for surgery. However, the record demonstrates that to the extent Dr. Traquina was personally involved, Dr. Traquina did not fail to respond or intentionally delay plaintiff's surgery. Rather, the record reflects that once Dr. Traquina discussed plaintiff's case with Dr. Nguyen, plaintiff was provided an MRI on the same day, and received an urgent referral to an orthopedic surgeon. Dr. Traquina appropriately approved two accommodation chronos to address plaintiff's serious mobility issues. Dr. Traquina declares that he approved plaintiff's surgery on January 29, 2009, subject to Dr. Huffman's belief that surgery was appropriate. Plaintiff adduced no evidence demonstrating that Dr. Traquina was personally involved in plaintiff's medical care, or in scheduling plaintiff's surgery, after February 5, 2009. When plaintiff presented in acute pain on February 8, 2009, he was provided with pain medication by injection, and Dr. Huffman's medical report reflects that on February 9, 2009, plaintiff was managing his pain. Thus, plaintiff failed to demonstrate that Dr. Traquina was aware that plaintiff was suffering extreme pain due to an alleged delay in scheduling plaintiff's surgery, or that Dr. Traquina was deliberately indifferent to such pain.

Moreover, defendants adduced evidence that Dr. Traquina was not involved in scheduling plaintiff's back surgery, and did not determine the date surgery was to be performed. (Dkt. No. 82-2 at 17.) Plaintiff failed to rebut such evidence with competent evidence.

Plaintiff also alleges that defendant Traquina was aware that plaintiff needed surgery to alleviate his severe pain by virtue of the administrative appeals and health care service request forms that plaintiff submitted. However, plaintiff failed to adduce evidence demonstrating that Dr. Traquina was responsible for responding to these appeals and requests. Absent such link or connection, plaintiff cannot demonstrate liability on the part of Dr. Traquina. Plaintiff adduced no evidence demonstrating that Dr. Traquina was personally involved in plaintiff's treating plaintiff's back injury or complaints of pain, or in addressing administrative concerns about plaintiff's medical care, after the February 5, 2009 approval of the chronos.*fn27

Defendant Traquina's role as Chief Medical Officer, without more, cannot demonstrate deliberate indifference.

Finally, plaintiff contends that his need for surgery was "urgent." However, plaintiff provided no evidentiary support for this claim. Dr. Nguyen sought an urgent referral for plaintiff to see Dr. Huffman. However, plaintiff presented no medical records demonstrating that Dr. Huffman ordered plaintiff to have surgery on an urgent basis. On Dr. Huffman's surgery scheduling form, he marked the elective choice, and did not mark emergency or urgent. (Dkt. No. 1 at 75.) Also, Dr. Huffman provided a declaration stating that the surgery was elective.

(Dkt. No. 87-1 at 40.) Thus, plaintiff's view that the surgery was urgent appears to be a difference of opinion from that of Dr. Huffman, the treating orthopedic surgeon. It is well established that 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). While plaintiff subjectively believed he should have had surgery sooner, there is no evidence in the record, viewed objectively, that plaintiff required surgery on an urgent basis.

For all of the above reasons, defendant Dr. Traquina is entitled to summary judgment.

IV. Qualified Immunity

Alternatively, defendants contend they are entitled to qualified immunity.

Because plaintiff's Eighth Amendment claims against defendants lack merit, the court need not reach the defense of qualified immunity.

V. Plaintiff's Motion for Summary Judgment

Because no triable issue of material fact exists as to whether defendants Traquina, Austin and Mefford violated plaintiff's Eighth Amendment rights by delaying plaintiff's back surgery, plaintiff's motion for summary judgment should be denied.

VI. Plaintiff's Motion for Expert Witness

On June 29, 2012, plaintiff filed a motion seeking the appointment of a neutral expert witness by the court. (Dkt. No. 84.) However, because plaintiff failed to adduce evidence demonstrating defendants' personal involvement in any alleged delay in scheduling plaintiff's surgery, expert testimony would not change the outcome. Thus, plaintiff's motion is denied.

VII. Conclusion

Accordingly, IT IS HEREBY ORDERED that plaintiff's June 29, 2012 motion (dkt. no. 84) is denied; and

IT IS RECOMMENDED that:

1. Defendants' June 27, 2012 motion for summary judgment (dkt. no. 82) be granted;

2. Plaintiff's June 7, 2012 motion for summary judgment (dkt. no. 81) be denied; and

3. This action be dismissed.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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