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Deavon E. Torrence v. F. Hsueh

January 25, 2013


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


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 September 22, 2010. Plaintiff alleges that defendants Saukhla, Andreasen, McKenzie, Grannis, Walker, Haile, Bick and Hsueh*fn1 were deliberately indifferent to plaintiff's serious medical needs by allegedly failing to timely diagnose and appropriately treat plaintiff's March 12, 2008 severe head, neck, and spinal injuries. On June 22, 2012, defendants filed a motion for summary judgment. As explained below, the court recommends that defendants' motion for summary judgment be granted.

II. Plaintiff's Allegations

Plaintiff is proceeding on the verified amended complaint filed September 22, 2010. (Dkt. No. 10.) Plaintiff alleges that on March 12, 2008, plaintiff suffered a severe head, neck, and spinal injury totally paralyzing him in all four extremities, and that defendants displayed deliberate indifference to plaintiff's complaints, treating him only with Ibuprofen. Plaintiff claims it took over one year to diagnose plaintiff with a broken neck.

Specifically, plaintiff contends defendants Dr. Hsueh, Dr. Saukhla, and Haile were deliberately indifferent to plaintiff's serious medical needs in treating plaintiff's neck and spinal injury, and that Dr. Saukhla was deliberately indifferent in treating plaintiff's ankle injury, which plaintiff claims occurred as a result of his spinal injury. Plaintiff also argues that defendants Dr. Andreasen, McKenzie, Dr. Bick, Walker and N. Grannis were deliberately indifferent to plaintiff's serious medical needs, and violated his due process rights, based on their role in addressing plaintiff's administrative appeals.

III. Defendants' Motion for Summary Judgment

On June 22, 2012, defendants moved for summary judgment on the grounds that there are no genuine issues of material facts, that plaintiff failed to adduce competent evidence in support of his claims, and that defendants are entitled to qualified immunity; thus, defendants contend they are entitled to judgment as a matter of law. (Dkt. No. 80.) Plaintiff did not file a timely opposition. On July 19, 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 an opposition. (Dkt. No. 86.) On August 23, 2012, plaintiff filed an opposition and a declaration with exhibits. (Dkt. No. 92.) Defendants filed a timely reply. (Dkt. No. 93.) On September 24, 2012, plaintiff filed a reply to defendants' objections to plaintiff's responses to defendants' statement of undisputed facts. (Dkt. No. 94.) While this reply is technically a sur-reply for which plaintiff did not seek leave of court to file, the court has considered plaintiff's filing.

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 November 10, 2010, and July 19, 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. 11, 86); 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, unless otherwise noted.

1. At all times relevant to this lawsuit, plaintiff Deavon E. Torrence was a prisoner properly in the custody and control of the California Department of Corrections and Rehabilitation ("CDCR") at California Medical Facility ("CMF") in Vacaville, California.

2. Plaintiff is not a doctor, has no medical training, has never worked in the medical field, and has no expertise in the field of medicine.

3. In 1987 or 1988, prior to being incarcerated, plaintiff was involved in a motor vehicle accident causing him whiplash and back pain. (Pl.'s Depo. at 21-22.)

4. Dr. Hsueh has been a licensed physician and surgeon in the State of California since 1997 and is board certified in internal medicine.

5. Dr. Hsueh is a contract physician with the CDCR at CMF.

6. On March 12, 2008, Dr. Hsueh examined plaintiff in the B-1 Emergency Room because plaintiff had collided with another inmate while playing basketball, had hit another inmate's chest, and had fallen backward, hitting the ground.*fn3 (Hsueh Decl. ¶ 3 & Ex. A.)

7. Plaintiff indicated that he had not lost consciousness or had visual disturbances.*fn4

8. Plaintiff stated he had had shortness of breath ("got the wind knocked out") but at the present time did not have shortness of breath or chest pain.*fn5 (Hsueh Decl. ¶ 3 & Ex. A.)

9. Plaintiff complained only of pain at the back of his head ("occipit") but with no nausea/vomiting, no focal weakness and no neck pain other than from a neck brace which was in place at the time Hsueh examined him.*fn6 (Hsueh Decl. ¶ 3 & Ex. A.)

10. Plaintiff did complain of numbness/tingling in his fingertips and toes, but this was improving.*fn7 (Hsueh Decl. ¶ 3 & Ex. A.)

11. Plaintiff did not present with bowel or bladder dysfunction, a common symptom of injuries to the spinal cord.

12. During Dr. Hsueh's examination of plaintiff, Dr. Hsueh noted that plaintiff was in no apparent medical distress, and his vital signs had been checked and were normal.*fn8

(Hsueh Decl. ¶ 4 & Ex. A.)

13. Plaintiff's head was normal in shape and showed no signs of trauma.

14. There was a small soft tissue swelling over the occipit and plaintiff was mildly tender to palpation there, but Dr. Hsueh felt no defect on plaintiff's scalp.

15. Dr. Hsueh also performed examinations of plaintiff's neck and extremities.

16. Plaintiff's neck was not tender to palpation and there was no spine step off. This means there was no misalignment of the bones of the cervical spine.*fn9 (Hsueh Decl. ¶ 5.)

17. Dr. Hsueh was unable to check plaintiff's neck range of motion because of the presence of the neck brace.*fn10 (Hsueh Decl. ¶ 5 & Ex. A.)

18. Dr. Hsueh's examination of plaintiff's extremities revealed no clubbing (enlargement of the ends of the fingers and toes), no cyanosis (blue color), and no edema (swelling).*fn11 (Hsueh Decl. ¶ 5 & Ex. A.)

19. With the assistance of Dr. Capozzoli, a board certified Neurologist, Dr. Hsueh also performed a neurological examination of plaintiff.

20. Plaintiff was alert and oriented and his pupils were equal, round and reactive to light.

21. Plaintiff's extraocular muscles were intact and he exhibited no facial asymmetry/dysarthria.

22. Facial asymmetry results from damage to Cranial Nerve VII, the facial nerve.

23. Dysarthria is a motor speech disorder resulting from neurological injury to the motor component of the speech system and is characterized by poor articulation of sounds.

24. Cranial Nerves II-XII were normal.

25. While plaintiff's muscle strength was normal, his sensation to light touch on his fingers was diminished.

26. Also, Dr. Hsueh's examination revealed that plaintiff subjectively believed he had decreased sensation over his right thigh, right shin area, and toes.*fn12 (Hsueh Decl. ¶ 6 & Ex.


27. Deep tendon reflexes were, however, symmetric and there was no sign of clonus. Clonus is a series of involuntary muscle contractions and relaxations and is a sign of motor neuron lesions such as spinal cord damage.

28. Plaintiff did not present with ataxia, which is better known as clumsiness and is a neurological sign and symptom consisting of gross lack of coordination.

29. Dr. Hsueh also ordered x-rays of plaintiff's cervical spine on March 12, 2008. These x-rays showed no fractures or subluxation.

30. Dr. Hsueh assessed plaintiff as having occipital pain and peripheral numbness (legs, toes, fingers).

31. Dr. Hsueh repeated the sensation to light touch/pinprick and vibration exams on plaintiff and the results were normal.*fn13 (Hsueh Decl. ¶ 8 & Ex. A.)

32. After (a) completing a full assessment of plaintiff's medical condition and symptoms, (b) performing a full neurological examination with the assistance of Dr. Capozzoli, and (c) reviewing the x-rays with Dr. Capozzoli, Dr. Hsueh diagnosed plaintiff with a spinal contusion.*fn14 (Hsueh Decl. ¶ 9 & Ex. A.)

33. A spinal contusion is one of the most common types of spinal cord injury. The spinal cord is bruised but not severed and results in temporary (usually one to two day) neurologic deficits, and the patient fully recovers without structural damage.*fn15 (Hsueh Decl. ¶ 9.)

34. Dr. Hsueh told plaintiff, with the assistance of Dr. Capozzoli, to expect resolution of the numbness in one day.*fn16 (Hsueh Decl. ¶ 10 & Ex. A.)

35. Dr. Hsueh's plan was to treat plaintiff with Motrin as needed for his pain.

36. Plaintiff was scheduled to follow-up in the Urgent Care Clinic (UCC) in one day and was told to return to the clinic/ER if he experienced an increase in numbness or weakness.

37. Plaintiff acknowledged his awareness of the instructions upon discharge back to his housing unit.*fn17 (Hsueh Decl. ¶ 10 & Ex. A.)

38. Dr. Hsueh wrote an order for Motrin, 600 mg tablets, taken by mouth twice a day for 10 days for plaintiff, and an order for an urgent care clinic follow-up in one day.

39. Plaintiff was also given Motrin during Dr. Hsueh's examination of him.

40. Dr. Saukhla has been a licensed physician and surgeon in the State of California since 1998 and is board certified in internal medicine.

41. Dr. Saukhla has been employed by the CDCR at CMF since February 1999 as a physician and surgeon.

42. On the night of March 12, 2008, plaintiff returned to the B-1 Emergency Room (ER) with complaints of worsening numbness symptoms and was evaluated by Dr. Steven Mo.

43. During his examination of plaintiff's upper extremities, Dr. Mo noted normal range of motion and strength and that plaintiff had subjective numbness in his palms and fingertips.*fn18 (Saukhla Decl. ¶ 4 & Ex. A.)

44. During his examination of plaintiff's lower extremities, Dr. Mo noted that plaintiff had subjective numbness, right greater than left. (Saukhla Decl. ¶ 4 & Ex. A.)

45. Dr. Mo also noted that deep tendon reflexes were slightly decreased throughout, but that plaintiff's motor function was within normal limits.

46. Dr. Mo assessed plaintiff with a cervical compression injury, and transferred plaintiff to the Emergency Room at Doctors Medical Center San Pablo.

47. In the early morning hours of March 13, 2008, plaintiff was evaluated at Doctor's Medical Center San Pablo.

48. A computed tomography (CT) scan was taken of plaintiff's cervical spine.

49. The CT scan showed no acute fractures.

50. Plaintiff was discharged with Motrin and a diagnosis of neck pain.

51. Plaintiff arrived back at CMF a little after 4:00 a.m. on March 13, 2008, and Dr. Mo noted that plaintiff received a CT scan at Doctors Medical Center, which was negative, and that he had a triage appointment upcoming per Hsueh's March 12, 2008 order.

52. At approximately 8:30 a.m., Dr. Mo wrote an order for Ibuprofen*fn19 for

plaintiff for his pain.

53. At approximately 10:30 a.m. on March 13, 2008, plaintiff had a follow up appointment with Physician Assistant Warhover.

54. Plaintiff complained of head pain but no nausea, vomiting or vision changes.

55. Plaintiff reported tingling in his upper and lower extremities.

56. Warhover noted that plaintiff had a negative CT scan at Doctors Medical Center, and that plaintiff had no bowel or bladder issues.

57. During the examination, Warhover noted that plaintiff's upper and lower extremities strength was 5 out of 5, the neurological exam was normal, and plaintiff's cranial nerves were grossly intact.

58. Warhover assessed plaintiff with numbness/tingling in his upper and lower extremities, and told him to expect that this condition would continue to improve as the inflamation decreased.

59. Warhover also discussed the examination with Dr. DiTomas, the Chief Physician and Surgeon, who noted that plaintiff had a normal neck CT with no headaches, no nausea or vomiting, and no vision changes. (Saukhla Decl. ¶ 7 & Ex. D.)

60. Dr. DiTomas noted that plaintiff's cranial nerves were fully intact and that he had been seen by the neurologist (Dr. Capozzoli) the day before. (Saukhla Decl. ¶ 7 & Ex. D.)

61. DiTomas felt that the diagnosis was compatible with spinal contusion.

62. Dr. DiTomas noted that plaintiff had no increase of symptoms since the day before, and in fact had shown some improvement. (Saukhla Decl. ¶ 7 & Ex. D.)

63. Warhover wrote an order for Ibuprofen 600 mg, by mouth three times a day as needed for pain for two weeks for plaintiff and for plaintiff to follow up with his primary care physician ("PCP") early the following week.

64. Warhover also ordered a Medical Lay-In for plaintiff from March 13 to March 20, 2008.

65. Plaintiff filled out a Health Care Services Request Form dated March 14, 2008, requesting physical therapy ("PT") and a Magnetic Resonance Imaging ("MRI").

66. Plaintiff, however, refused to be seen by the triage nurse.

67. On March 18, 2008, Dr. Saukhla examined plaintiff.

68. Plaintiff stated that he wanted an MRI of his neck and also PT, but that he had already been sent out for a CT scan.

69. Plaintiff stated that his symptoms were decreasing, but that he had tingling in his hands, abdominal wall and legs.*fn20 (Saukhla Decl. ¶ 9 & Ex. F.)

70. Dr. Saukhla noted that plaintiff had no weakness, no bladder/bowel incontinence, and that he was able to ambulate very well.*fn21 (Saukhla Decl. ¶ 9 & Ex. F.)

71. During Dr. Saukhla's examination, he noted that plaintiff had 5 out of 5 power in his extremities, his deep tendon reflexes were 2 out of 4, and his gait was within normal limits. (Saukhla Decl. ¶ 9 & Ex. F.)

72. Dr. Saukhla assessed that plaintiff was improving and had no new symptoms, but plaintiff wanted further imaging. (Saukhla Decl. ¶ 9 & Ex. F.)

73. Dr. Saukhla's plan was to continue plaintiff's current medications but there was no reason or medical indication for physical therapy at that time, and that plaintiff should avoid physical therapy at that time.

74. Dr. Saukhla wrote an order for an MRI of plaintiff's cervical spine*fn22 and for plaintiff to follow-up in two weeks.

75. On March 25, 2008, Dr. Saukhla had a follow-up appointment with plaintiff regarding his HIV.

76. Dr. Saukhla noted that the tingling in plaintiff's extremities had decreased, that his strength was good, and that he had no bladder or bowel incontinence.

77. Plaintiff stated that he was taking his medications and suffering no side effects.

78. Dr. Saukhla's examination of plaintiff's extremities revealed no clubbing, cyanosis or edema. (Saukhla Decl. ¶ 10 & Ex. G.)

79. Dr. Saukhla noted that plaintiff was awaiting the MRI of his cervical spine which Dr. Saukhla had ordered for him on March 18, 2008, but that plaintiff was improving.

80. Plaintiff filled out a Health Care Services Request Form dated March 26, 2008, regarding a sore ankle, knee, and possible damage.

81. Plaintiff was evaluated by the triage nurse on March 27, 2008.

82. On April 14, 2008, Dr. Saukhla examined plaintiff because he had complaints related to a sprain of his right ankle two weeks before.*fn23 (Saukhla Decl. ¶ 12 & Ex. I.)

83. Plaintiff had not come in on the day he sustained the ankle injury for an evaluation either in the B1 clinic or urgent care clinic.

84. Dr. Saukhla noted no swelling or redness, that the pain had decreased, and plaintiff was able to walk well.*fn24 (Saukhla Decl. ¶ 12 & Ex. I.)

85. Dr. Saukhla also noted that plaintiff did not mention anything about his neck.*fn25 (Id.)

86. Dr. Saukhla's examination of plaintiff's right ankle revealed no swelling, no redness, no pain, and plaintiff had full range of motion.*fn26 (Id.)

87. Dr. Saukhla assessed plaintiff with a right ankle sprain with a negative exam.

88. Plaintiff was very concerned about a tendon/ligament rupture or an ankle fracture despite Dr. Saukhla's reassurance.

89. Dr. Saukhla did order an x-ray of plaintiff's right ankle, and Dr. Saukhla noted that plaintiff was still awaiting the MRI of his neck.

90. On April 22, 2008, plaintiff had x-rays taken of his right ankle which Dr. Saukhla had ordered on April 14, 2008.

91. The x-rays showed no acute osseous abnormality, which meant there was no problem with plaintiff's ankle bone.

92. On May 5, 2008, plaintiff had the MRI of his cervical spine which Dr. Saukhla had ordered on March 18, 2008.

93. The findings showed that the gross alignment of the cervical spine was within normal limits and the vertebral bodies were uniform in height without fracture.

94. The impression of the Radiologist, Dr. Schultz, was a C2 cervical cord lesion.

95. The differential diagnoses*fn27 included contusion, demyelinization,*fn28 a possible infarct,*fn29 and less likely, a tumor.

96. Post gadolinium sequences were recommended for further characterization.

97. Dr. Haile has been a licensed physician in the State of California since 2002 and is board certified in internal medicine.

98. Dr. Haile has been employed by the CDCR at CMF as a physician and surgeon since 2002.

99. Dr. Haile was plaintiff's PCP beginning June 2008 until plaintiff transferred to California ...

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