United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion for summary judgment. (ECF No. 85.) Defendants argue that they are entitled to qualified immunity. For the following reasons, the undersigned recommends that defendants' motion be granted in part and denied in part.
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).
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's 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), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1575 (9th Cir. 1990).
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 contemporaneous notice provided on July 30, 2014, (ECF No. 22-2), plaintiff was advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) ( en banc ); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
Legal Standard for Qualified Immunity
In analyzing a claim of qualified immunity, a court must examine (1) whether the facts as alleged, taken in the light most favorable to plaintiff, show that the defendant's conduct violated a constitutional right, and (2) if a constitutional right was violated, whether, "in light of the specific context of the case, " the constitutional right was so clearly established that a reasonable official would understand that what he or she was doing violated that right. See Saucier v. Katz, 533 U.S. 194, 201-02 (2001). If no constitutional right was violated, the inquiry ends and the defendant prevails. Saucier, 533 U.S. at 201.
To meet the "clearly established" requirement, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). This requires defining the right allegedly violated in a "particularized" sense that is "relevant" to the actual facts alleged. Id . "Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct." Brosseau v. Haugen, 543 U.S. 194, 198 (2004).
Courts are not required to address the two inquiries in any particular order. Rather, courts may "exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson v. Callahan, 555 U.S. 223, 243 (2009). Plaintiff's Claims
This action is proceeding on the original complaint as to the following claims: 1) defendant Physician's Assistant Miranda allowed plaintiff's medication to expire; 2) on September 18, 2008, defendant Licensed Vocational Nurse Clark denied plaintiff his medication; 3) on December 23, 2008, defendants Correctional Officers McBride and Kelly made plaintiff go outside in his underwear and shower shoes when there was snow on the ground; 4) on December 23, 2008, defendants Correctional Officers Leon and Morris transported plaintiff outside in his underwear and shower shoes after taking over his transport from defendants McBride and Kelly; 5) on December 23, 2008, defendant Correctional Sergeant Hougland applied leg irons so tightly on plaintiff that plaintiff's legs bled; 6) on December 23, 2008, defendants Correctional Officers Leon and Morris used excessive force causing plaintiff to suffer back injuries.
The undersigned describes plaintiff's claims herein.
Claims Against Defendant Miranda
Plaintiff alleges that in 2006, he was diagnosed with kidney stones while housed at Salinas Valley State Prison ("SVSP"). (ECF No. 1 at 4.) Plaintiff was later transferred to Mule Creek State Prison ("MCSP"). (Id.) While at MCSP, plaintiff was sent to a urologist who recommended surgery. (Id.) Plaintiff was sent to High Desert State Prison ("HDSP") before he could receive surgery. (Id.)
In June 2008, plaintiff was having severe problems with his kidneys. (Id.) On June 16, 2008, plaintiff was sent to see former defendant LaJeunesse, a urologist located in Reno, Nevada. (Id.) Defendant LaJeunesse told plaintiff that he would receive surgery on his right kidney first and that stents would be implanted during the surgery. (Id.) Defendant LaJeunesse told plaintiff that it was important to remove the stents to prevent infection. (Id.)
The first surgery occurred on July 9, 2008, as planned. (Id.) On July 18, 2008, plaintiff was seen for follow-up. (Id. at 5.) At that time, plaintiff was having problems with the stents and was told that he would have the second surgery within one month and the stents would be removed at that time. (Id.)
Plaintiff was not returned to defendant LaJeunesse for the second surgery on August 18, 2008, as planned. (Id.) Plaintiff's medications, which had been prescribed following the first surgery, began to expire. (Id.) Plaintiff became ill and had large amounts of blood in his urine. (Id.)
Plaintiff alleges that from August 18, 2008, until September 9, 2008, Nurse Ling referred plaintiff to defendant Miranda on an emergency basis because of pain and because plaintiff had not been returned to Reno for his second surgery. (Id. at 5-6.) Plaintiff alleges that he suffered an infection because defendant Miranda allowed his medications to expire. (Id.)
Claims Against Defendant Clark
On September 17, 2008, plaintiff returned to Reno for his second surgery. (Id. at 6.) On September 17, 2008, plaintiff returned to HDSP after his surgery. (Id.) When plaintiff went to the pill line on the morning of September 18, 2008, to receive his medication, defendant Clark allegedly denied plaintiff all of his medications. (Id.) Defendant Clark told plaintiff that after he left the prison on September 17, 2008, all of his medications were thrown out. (Id.) Plaintiff did not receive his medication for six days and suffered severe pain. (Id.)
Claims Against Defendants McBride and Kelly
Plaintiff alleges that on December 23, 2008, defendants McBride and Kelly came to his cell door. (Id. at 10.) They told plaintiff to cuff up. (Id.) They told plaintiff that he was being taken to see the sergeant. (Id.) Plaintiff cuffed up in his underwear and shower shoes. (Id.) Defendants took plaintiff outside even though he was wearing only his underwear and shower shoes. (Id.) Snow was on the ground. (Id.)
Claims Against Defendant Hougland
Plaintiff alleges that on December 23, 2008, defendant Hougland placed leg irons on his lower legs. (Id. at 11.) Plaintiff alleges that the leg irons were so tight that they cut into his legs and caused bleeding. (Id.)
Claims Against Defendants Leone and Morris
Plaintiff alleges that on December 23, 2008, defendants McBride and Kelly handed him off to defendants Leone and Morris for transport to the sergeant. (Id.) Plaintiff alleges that defendants Leone and Morris made him walk outside even though he was only wearing his underwear and shoes. (Id.) Plaintiff also alleges that defendants Leone and Morris forced plaintiff to the ground, injuring his back. (Id.)
The claims that defendant Miranda failed to return plaintiff to Reno for his second surgery in September 2008 and that defendant Clark denied plaintiff access to medical care and medication on September 9, 2008, were dismissed based on plaintiff's failure to administratively exhaust these claims. (ECF No. 65.)
Plaintiff's claims alleging that defendants McBride and Kelly used excessive force and that defendant Clark failed to give plaintiff medication on December 23, 2008, were dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failing to state claims upon which relief may be granted. (ECF No. 81.) All claims against defendant LaJeuenesse have been dismissed. (Id.)
Motion for Summary Judgment: Defendant Miranda
Plaintiff alleges that defendant Miranda failed to provide him with adequate medical care in violation of the Eighth Amendment. In particular, plaintiff alleges that between August 18, 2008, and September 9, 2008, defendant Miranda allowed his prescription for antibiotics to expire, causing plaintiff to suffer an infection. Plaintiff also alleges that during that time, defendant Miranda allowed his prescriptions for pain medication to expire.
"[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show deliberate indifference to serious medical needs.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two part test for deliberate indifference requires the plaintiff to show (1) "a serious medical need' by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain, '" and (2) "the defendant's response to the need was deliberately indifferent." Jett, 439 F.3d at 1096; Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012).
Deliberate indifference is shown where the official is aware of a serious medical need and fails to adequately respond. Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1018 (9th Cir. 2010). "Deliberate indifference is a high legal standard." Simmons, 609 F.3d at 1019; Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). The prison official must be aware of facts from which he could make an inference that "a substantial risk of serious harm exists" and he must make the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Defendants argue that defendant Miranda did not act with deliberate indifference to plaintiff's serious medical needs. In support of this argument, defendants rely on the declaration of defendant Miranda and the exhibits attached to his declaration. (ECF No. 85-3.) In his declaration, defendant Miranda states, in relevant part,
4. Kimbro has a history of kidney stones for which he underwent treatment in 2008.
5. On July 7, 2008, Kimbro was prescribed morphine 15 mg for 30 days "till kidney stones addressed surgically, then OFF morphine." (Ex. A.)
6. On July 22, Kimbro's morphine prescription was increased to 30 mg (as indicated by the checkbox ordering morphine 15 mg stopped and then handwritten prescription for MS04 30 mg at the bottom of the page), and Kimbro was given a new thirty-day supply. (Ex. B.) Unless renewed or changed, the morphine prescription would expire on August 21, 2008.
7. Kimbro's medical records show that he submitted a Health Care Services Request Form (CDC 7362) on August 14, 2008, in which he complained that his second kidney stone surgery was overdue and that his medication runs out on August 21, 2008. (Ex. C.) It is not clear to which medication Kimbro is referring. Kimbro further specifies his morphine runs out on August 29, 2008, and that his "other pain medication expires as well." Kimbro's request was received by the triage registered nurse (RN) on August 18, 2008. (Id.)
8. Kimbro's medical records show that he submitted a Health Care Services Request Form (CDC 7362) on August 19, 2008, in which he complained that he "must see a doctor, pill line worker Clark says all my medication has been discarded because I left the prison for 1 day for surgery. I have no medication and just had them refilled before my surgery." (Ex. D.) The request form does not indicate that it was received by the triage RN. (Id.)
9. Kimbro's medical records show that he submitted a Health Care Request Services Form (CDC 7362) on August 22, 2008, in which he complained as follows: "need to see doctor - saw nurse line about meds to no avail. Have not had second surgery for kidney stones. Still have stints inside. Pain meds ran out...very much pain with new rash on body." (Ex. E.) This request was received on August 27, 2008, by the triage registered nurse (RN), who noted on August 28, 2008 that "PA Miranda will renew his Tramadol." (Id.) The RN further noted that Kimbro was to be scheduled to see the medical doctor on 9/3/08. (Id.)
10. Kimbro's medical records show that he submitted a Health Care Services Request Form (CDC 7362) on August 25, 2008, in which he complained that he is "very ill. Stints in kidney have caused more bleeding - pain. Meds have not been refilled. Rash on his back by kidneys. No word on second surgery. Weak feel bad all day." (Ex. F.) This request was received by the triage RN on August 27, 2008.
11. Kimbro's medical records show that he submitted a Health Care Services Request Form (CDC 7362) on September 4, 2008, in which he complained: "I have not had my medication for pain done yet. I have severe pain. Please I need to be seen. Still no word on surgeries. Can't sleep have hard time walking to chow kidney stones worse than ever." (Ex. G.) This request was received by the triage RN on September 5, 2008. (Id.) RN Goulding completed the bottom portion of the form on September 9, 2008, indicating that "Tramadol order waiting on non-formulary. [Morphine] Order expired. PA Miranda renewed Ibuprofen 600 mg [orally as needed] for pain. MD apt to be scheduled for medication evaluation (patient to be seen MD today [9/9] 1330.)" (Id.)
12. Providers do not need to see patients before their medication expires. Unless changed or renewed, the expiration date concludes the original intended treatment, which does not continue indefinitely. If the inmate wants his medication re-filled or renewed, he must submit a Health Care Services Request Form (CDC 7362), which is processed by the triage nurse. The triage nurse is then responsible for printing the inmate's medication reconciliation form, highlighting the medication that is being requested by the inmate, and placing the form in the medical provider's box. Once I receive the highlighted medication reconciliation form in my inbox, I will check the inmate's chart and determine whether or not to refill or renew the medication.
13. Kimbro's medication administration records (MARS) reveal that during the month of August 2008, Kimbro had valid prescriptions for Flomax, Gabapentin, Morphine, Tramadol and the following "keep on person" medications: fiber tabs, Phenazopyridine (pyridium), Simvastatin, and Urocit-K. (Ex. H.)
14. Flomax is used to treat difficult urination. Gabapentin, Morphine, and Tramadol are pain medications. Phenazopyridine (pyridium) is used to treat urinary tract pain. Simvastatin is used to treat high cholesterol. Urocit-K (or potassium citrate) is used to treat kidney stones.
15. The only medications which had an expiration date between August 18, 2008, and September 9, 2008, were Morphine (August 21, 2008), Phenazopyridine (August 21, 2008) and Tramadol (August 29, 2008).
16. On August 28, 2008, I refilled Kimbro's Tramadol prescription for three months. (Ex. I.) I bridged this order, meaning that I renewed the prescription without a face-to-face visit with the patient.
17. On August 30, 2008, I refilled Kimbro's Morphine prescription for three months. (Ex. J.) I bridged this order, meaning that I renewed the prescription without a face-to-face visit with the patient.
18. On August 30, 2008, I stopped Kimbro's Phenazopyridine prescription. (Id.) I stopped this medication, which is used to treat urinary tract pain, because it is not intended for long term use. The medication reconciliation form indicated that a last dispense date of July 22, 2008, and an expiration date of August 21, 2008, meaning Kimbro had already been taking it for a month. (Ex. J.) I would not typically prescribe Phenazopyridine for more than three days.
19. On September 9, 2008, I treated inmate Kimbro and documented the visit on an Interdisciplinary Progress Note (CDC Form 7230). (Ex. K.) I documented that Kimbro was here for a follow-up visit on kidney stones. (Id.)
20. September 9, 2008, was my first face-to-face visit with Kimbro concerning the issue of his medications expiring following his June 2008 kidney surgery. I am not responsible for scheduling medical appointments. If an inmate requests to be seen by a medical doctor, he must submit a Health Care Services Request Form (CDC 7362), which is processed by the triage nurse and forwarded to the office technician who is responsible for determining the next available date for an appointment.
21. During the September 9, 2008 visit, I noted that Kimbro stated that he had right back pain from stones. I noted that Kimbro further stated that he had a right renal stent placed on June 9, 2008, and that he was scheduled with urology for left kidney stent placement, yet he complained he was experiencing painful urination and red (dark) tinted urine since he had his stent placed. I noted that Kimbro complained of chronic low back pain secondary to degenerative disc disease and requested a refill of his morphine prescription (30 mg twice daily), stating that he ran out 16 days ago. I noted that Kimbro said that he had not received Tramadol (50 mg) either. Finally, I noted that Kimbro said he had dull, constant low back pain that is 8/10 on scale. (Id.)
22. During the September 9, 2008 visit, I noted that I prescribed him Tylenol with codeine for 10 days and pyridium for 10 days. Tylenol with codeine is used to treat pain. Pryidium is used to treat urinary tract pain. I further noted that for his chronic low back pain, I would not refill morphine. However, I noted that the non-formulary request form was filled out to activate Tramadol 50 mg for 90 days. Finally I noted to continue Gabapentin 800 mg.
23. Tramadol is a non-formulary medication, meaning that it is not routinely stocked in the pharmacy. Requests for non-formulary medications must be submitted for approval by the Chief Physician and Surgeon or Chief Medical officers.
24. At all times between August 18, 2008 and September 9, 2008, plaintiff had a valid prescription for pain medications, including Tramadol, Gabapentin and Ibuprofen.
25. At no time did I intentionally allow Kimbro's medications to expire. Rather, once Kimbro's complaints that his medications were expiring came to my attention, I evaluated the need to renew the particular medication. Specifically, I bridged orders renewing his Tramadol and ...