United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this action filed pursuant to 42 U.S.C. § 1983. The court currently has before it defendant's motion for summary judgment based on defendants claim that she was not deliberately indifferent to plaintiff's serious medical need. ECF No. 21. Plaintiff has filed a response (ECF No. 29) and defendant has replied (ECF No. 27).
I. Plaintiff's Allegations
Plaintiff asserts that defendant Fadaki violated her rights under the Eighth Amendment when Fadaki failed to provide appropriate treatment for her osteoarthritis. ECF No. 1 at 4-5. Specifically, plaintiff alleges that she has osteoarthritis in her left hip and that a lack of treatment over the past two years had led to osteoarthritis in her right hip, scoliosis, muscle cysts in her back, and severe, chronic pain in her back and legs. Id. at 4. Plaintiff further alleges that despite being aware of her pain issues, Fadaki has reduced her pain medication and refused to send her to an orthopedic specialist. Id. at 4-5.
II. Defendant's Summary Judgment Motion
Defendant moves for summary judgment on the grounds that she was not deliberately indifferent to plaintiff's serious medical need and that she provided appropriate treatment for plaintiff's osteoarthritis. ECF No. 21. Defendant was only employed at the Solano County Jail from April 10, 2013, through August 9, 2013. Defendant's Statement of Undisputed Material Facts ("DSUF") (ECF No. 21-1) at 1, ¶ 1. During that time, plaintiff's prescription for tramadol reached the maximum dose and a decision was made to bring plaintiff's prescription back to a safe level and treat her pain with NSAIDs and prescribe tramadol as necessary for breakthrough pain. ECF No. 21-2 at 2. Defendant also argues that an orthopedic consult was not warranted at that time because good medical practice was to delay joint replacement surgery for as long as possible. Id.
III. Plaintiff's Opposition
At the outset, the court notes that plaintiff has failed to comply with Federal Rule of Civil Procedure 56(c)(1)(A), which requires that "a party asserting that a fact... is genuinely disputed must support the assertion by... citing to particular parts of materials in the record...." Plaintiff has also failed to file a separate document disputing defendants' statement of undisputed facts, as required by Local Rule 260(b).
However, it is well-established that the pleadings of pro se litigants are held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). Nevertheless, "[p]ro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled on other grounds, Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012) (en banc). However, the unrepresented prisoners' choice to proceed without counsel "is less than voluntary" and they are subject to the "handicaps... detention necessarily imposes upon a litigant, " such as "limited access to legal materials" as well as "sources of proof." Jacobsen v. Filler, 790 F.2d 1362, 1364-65 & n.4 (9th Cir. 1986). Inmate litigants, therefore, should not be held to a standard of "strict literalness" with respect to the requirements of the summary judgment rule. Id.
The court is mindful of the Ninth Circuit's more overarching caution in this context, as noted above, that district courts are to "construe liberally motion papers and pleadings filed by pro se inmates and... avoid applying summary judgment rules strictly." Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). Accordingly, the court considers the record before it in its entirety despite plaintiff's failure to be in strict compliance with the applicable rules. However, only those assertions in the opposition which have evidentiary support will be considered.
In opposition, plaintiff argues that defendant did not meet the applicable standard of care because there was a "complete lack of medical care, " including the denial of effective pain medication and refusal to refer her to a specialist. ECF No. 29.
IV. Undisputed Material Facts
Plaintiff has not disputed the accuracy of the medical records produced by defendant that document the treatment that she received. The facts outlined in the timeline below are undisputed.
June 22, 2011-November 13, 2013: Plaintiff was incarcerated at the Solano County Jail. Plaintiff's Statement of Undisputed Material Facts (ECF No. 29-1) at 1, ¶ 1.
September 11, 2012: Plaintiff was examined by Dr. Douglas, who determined her request for stronger analgesic medications was not justified. Declaration of Dr. John Levin, M.D. ("Levin Decl.") at 3, ¶ 6(B). Dr. Douglas ordered prescriptions for 50 mg of Naprosyn twice a day for thirty days and 50 mg of Tylenol twice a day for fourteen days. Id. at ¶ 6(C); ECF No. 21-7 at 3.
November 13, 2012: An x-ray of plaintiff's hip showed mild osteoarthritis in her right hip and severe osteoarthritis in her left hip. Levin Decl. at 3, ¶ 6(E).
November 14, 2012: Physician assistant ("P.A.") Jeffrey issued plaintiff her first prescription for tramadol. Id. at ¶ 6(F).
November 29, 2012: P.A. Jeffrey adds an unspecified dosage of Tylenol to plaintiff's tramadol and Naprosyn in response to plaintiff's request for increased pain medication. Id. at 3, ¶ 6(G).
January 25, 2013: P.A. Jeffrey prescribes plaintiff fentanol in an unspecified dosage and 25 mg of Indocin twice a day for ten days after plaintiff complains that her back is hurting and she is not getting any ...