United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS
LOPEZ AND MANASRAH'S MOTION FOR SUMMARY JUDGMENT BE
GRANTED (ECF NO. 94)
BARBARA A. McAULIFFE, UNITED STATES MAGISTRATE JUDGE
Walter Rapalo (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983, against Defendants
Lopez, S. Schaefer (erroneously sued as Schaffer) and
Manasrah for deliberate indifference to serious medical needs
in violation of the Eighth Amendment to the United States
before the court is Defendants Lopez and Manasrah's
motion for summary judgment filed pursuant to Federal Rule of
Civil Procedure 56. (ECF No. 94.) Plaintiff opposed the motion
(ECF Nos. 114, 115, 116, 117), and Defendants Lopez and
Manasrah replied (ECF No. 119). Plaintiff also submitted a
surreply. (ECF No. 122). The motion is deemed submitted.
Local Rule 230(1).
noted above, Defendants Lopez and Manasrah filed a motion for
summary judgment, Plaintiff responded and Defendants replied.
Thereafter, on April 15, 2016, Plaintiff filed a response to
Defendants' reply. (ECF No. 122.) This court's Local
Rules provide for a motion, an opposition, and a reply. Local
Rule 230(1). Neither the Local Rules nor the Federal Rules of
Civil Procedure provide the right to file a response to a
reply. See, e.g., Wyatt v. Zanchi,
No. 1:09-cv-01242 BAM PC, 2011 WL 5838438, at *5 (E.D. Cal.
Nov. 21, 2011). In this case, the court neither requested a
response to Defendants' reply nor granted a request on
Plaintiff's behalf to file such a response. Accordingly,
the court will recommend that Plaintiff's response to
Defendants' reply be stricken from the record and not
considered for purposes of summary judgment.
Defendants' Motion for Summary
Lopez and Manasrah argue that (1) there is no evidence to
support Plaintiff's claims against them for deliberate
indifference to his medical needs in violation of the Eighth
Amendment; and (2) Defendants Lopez and Manasrah are entitled
to qualified immunity. For the reasons explained below, the
court recommends granting Defendants' motion for summary
judgment is appropriate when the pleadings, disclosure
materials, discovery, and any affidavits provided establish
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). A material fact is one that
may affect the outcome of the case under the applicable law.
See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute is genuine “if the
evidence is such that a reasonable [trier of fact] could
return a verdict for the nonmoving party.” Id.
party seeking summary judgment “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). The exact nature of this
responsibility, however, varies depending on whether the
issue on which summary judgment is sought is one in which the
movant or the nonmoving party carries the ultimate burden of
proof. See Soremekun v. Thrifty Payless, Inc., 509
F.3d 978, 984 (9th Cir. 2007). If the movant will have the
burden of proof at trial, it must “affirmatively
demonstrate that no reasonable trier of fact could find other
than for the moving party.” Id. (citing
Celotex, 477 U.S. at 323). In contrast, if the
nonmoving party will have the burden of proof at trial,
“the movant can prevail merely by pointing out that
there is an absence of evidence to support the nonmoving
party's case.” Id.
movant satisfies its initial burden, the nonmoving party must
go beyond the allegations in its pleadings to “show a
genuine issue of material fact by presenting affirmative
evidence from which a jury could find in [its] favor.”
F.T.C. v. Stefanchik, 559 F.3d 924, 929 (9th Cir.
2009) (emphasis omitted). “[B]ald assertions or a mere
scintilla of evidence” will not suffice in this regard.
Id. at 929; see also Matsushita Electric
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986) (“When the moving party has carried its burden
under Rule 56, its opponent must do more than simply show
that there is some metaphysical doubt as to the material
facts.”) (citation omitted). “Where the record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no ‘genuine
issue for trial.'” Matsushita, 475 U.S. at
587 (quoting First Nat'l Bank of Arizona v. Cities
Serv. Co., 391 U.S. 253, 289 (1968)).
resolving a summary judgment motion, “the court does
not make credibility determinations or weigh conflicting
evidence.” Soremekun, 509 F.3d at 984.
Instead, “[t]he evidence of the [nonmoving party] is to
be believed, and all justifiable inferences are to be drawn
in [its] favor.” Anderson, 477 U.S. at 255.
Inferences, however, are not drawn out of the air; the
nonmoving party must produce a factual predicate from which
the inference may reasonably be drawn. See Richards v.
Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D.
Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987).
arriving at these findings and recommendations, the court
carefully reviewed and considered all arguments, points and
authorities, declarations, exhibits, statements of undisputed
facts and responses thereto, if any, objections, and other
papers filed by the parties. Omission of reference to an
argument, document, paper, or objection is not to be
construed to the effect that this court did not consider the
argument, document, paper, or objection. This court
thoroughly reviewed and considered the evidence it deemed
admissible, material, and appropriate.
Undisputed Material Facts
Plaintiff was seen by a prison doctor on April 25, 2005, for
a complaint of back pain and muscle spasm that he reported
having suffered from for a long time. (Doc. 95, Ex. A to
Declaration of Ratliff (“Ratliff Decl.”), CDCR
objects that the background facts from the years prior to his
treatment by Defendants are irrelevant. This objection is
overruled. Facts related to Plaintiff's back injury,
diagnoses, treatment and treatment recommendations provide
relevant background information regarding Plaintiff's
condition prior to his treatment by Defendants Lopez and
Manasrah. As discussed more fully below, the treatment
recommendations for Plaintiff's back prior to his
transfer to Kern Valley State Prison (“KVSP”) are
critical to his claim that Defendants Lopez and Manasrah were
deliberately indifferent to his need for back surgery or
Nevertheless, Plaintiff reported doing 400 pushups and the
“bars” 400 times. (Id.)
Plaintiff was prescribed Tylenol and Robaxin, was instructed
not to engage in sports and exercise for 90 days, and an
x-ray of his lumbosacral (LS) spine was ordered.
(Id. at CDCR 00832.)
x-rays of Plaintiff's lumbar spine were performed on May
4, 2005, and the results were normal. (Id. at CDCR
February 16, 2006, Plaintiff was again seen by a doctor and
complained of lower back pain that had been present for a
long time. (Id. at CDCR 00725.)
Plaintiff complained that treatment did not help.
Nevertheless, Plaintiff reported doing 500 push-ups three
times per week, the “bars” 200 times three times
a week, and doing 300 crunches three times per week.
was noted that the x-ray of the lumbar spine had been normal.
examination found that he had no paraspinal spasms and that
there was no pain with flexion, extension, flexion to the
right or left, or with rotation of the lumbar spine.
was diagnosed with low back pain secondary to athletic
Plaintiff was again instructed to decrease his exercise and
was also prescribed Prednisone. (Id. at CDCR 00832)
Having transferred to the Florence Corrections Center
(“FCC”) in Arizona, Plaintiff was then seen by a
doctor on September 22, 2008, complained of low back pain
radiating to his left leg, and was diagnosed with lower back
pain and sciatica. (Id. at CDCR 01043-44.)
Plaintiff was prescribed Naprosyn. (Id.)
October 18, 2008, Plaintiff was seen by a doctor at FCC and
reported that he had been suffering from intermittent lumbar
back pain since an automobile accident five years earlier.
(Id. at CDCR 01042-43.)
Plaintiff complained that the pain used to resolve for
periods of time but was getting worse and was now constant.
examination found that he had full range of motion, there
were no muscle spasms, and he ambulated without difficulty.
Plaintiff was diagnosed with probable compression sciatic
nerve palsy on the left. (Id.)
Plaintiff was prescribed Ibuprofen and Cyclobenzaprine.
Plaintiff was to have a follow-up in three weeks and an x-ray
of his lumbar spine. (Id.)
November 4, 2008, the x-ray of Plaintiff's lumbar spine
was completed. (Id. at CDCR 01060.)
x-ray showed narrowing at the L5-S1 vertebrae but no acute
Plaintiff was seen again for a follow-up on November 11,
2008. (Id. at CDCR 01040-41.)
examination showed full range of motion, no muscle spasms,
and that he ambulated without difficulty. (Id.)
Plaintiff's recent lumbar spine x-ray was viewed as
Plaintiff was diagnosed with probable compression sciatic
nerve palsy on the left. (Id.)
MRI was ordered. (Id.)
There was no need for surgery at this time in light of
Plaintiff's normal examination and function. (ECF No.
94-5, Declaration of Barnett (“Barnett Decl.”) p.
attempts to raise a dispute by arguing that the treatment
notes do not specifically state “no need for
surgery.” (ECF No. 115 at p. 2.) Although Plaintiff
correctly identifies that the treatment notes do not include
a statement regarding “no need for surgery, ” he
has not presented expert testimony in response to Dr.
Barnett's opinion that there was no need for surgery.
Further, Plaintiff admits that “surgery could not be
determined yet, ” which confirms that surgery was not
recommended or required at that time.
Plaintiff's MRI was performed on November 26, 2008, and
it found narrowing and herniation at the L5-S1 disc causing
the nerve to be pinched. (Doc. 95, Ex. A to Ratliff Decl.,
MRI finding that shows disc herniation does not compel
surgery. (Barnett Decl. at p. 5.)
argues that Dr. Barnett misstates the medical record because
a clinic note dated December 3, 2008 recommended follow-up
with Dr. Hegmann, and the follow-up with Dr. Hegmann resulted
in a note for “Consult-Offsite”
“Neurosurgery for L5-S1 lt disc herniation with
significant symptoms.” (ECF No. 115 at pp. 2-3; Ex. A
to Ratliff Decl. at CDCR 01039.) Plaintiff has not raised a
genuine dispute of material fact. First, Plaintiff has not
provided expert testimony to challenge Dr. Barnett's
expert opinion that disc herniation does not compel surgery.
Second, and more importantly, the referral for an offsite
consultation with neurosurgery does not result in an
inference that surgery was compelled by Plaintiff's disc
herniation in the absence of any order for back surgery by
the consulting neurosurgeon.
Imaging studies alone do not correlate with the severity of
the symptoms. (Barnett Decl. at p. 5.)
Most patients with disc herniation will improve within three
to four weeks. (Barnett Decl. at p. 5.)
objects that this statement is irrelevant. Plaintiff's
objection is overruled. Dr. Barnett's opinion that most
patients with disc herniation will improve is relevant to
whether or not Plaintiff's disc herniation compelled
also argues that Dr. Barnett's opinion supports
Plaintiff's claims because his complaints lasted longer
than four weeks and a diagnosis of chronic back pain was
repeatedly given. That Plaintiff's complaints may have
continued or that he was diagnosed with chronic back pain
does not raise a genuine dispute of fact or raise an issue
for trial as to how most patients with disc herniation
improve or whether he required surgery for his back.
Medications, including non-steroidal anti-inflammatory drugs
(e.g., Ibuprofen), may ameliorate the discomfort and physical
therapy can also be helpful. (Barnett Decl. at pp. 5-6.)
December 8, 2008, Plaintiff had a follow-up with his doctor
at FCC and reported that his current medications were
controlling his pain adequately. (Ex. A to Ratliff Decl. at
They discussed the MRI results and there were no new findings
in a physical exam. (Id.)
attempts to raise a dispute by arguing that his doctor
ordered a neurosurgery consult and the lack of new findings
does not mean that his condition was better. (ECF No. 115 at
p. 3.) Plaintiff's argument does not raise a genuine
dispute of fact that he discussed the MRI results and that
there were no new findings during the physical examination.
diagnosis remained probable compression sciatic nerve palsy
on the left. (Ex. A to Ratliff Decl. at CDCR 01050.)
doctor ordered a follow-up in one month and referred him for
a consult with neurosurgery. (Id.)
doctor did not order surgery. (Id.)
Instead, the doctor was considering a neurosurgical
consultation toward doing neurosurgery if Plaintiff continued
to have significant symptoms arising from the apparent disc
herniation seen on the MRI. (Id.; Barnett Decl. at
argues that this is a misstatement of his medical record
because the doctor's progress note states
“Consultation … Neurosurgery for L5-S1 left disc
herniation with significant symptoms.” (ECF No. 115 at
p. 4; Ex. A to Ratliff Decl. at CDCR 01050; Barnett Decl. at
p. 6.) Plaintiff's argument does not raise a genuine
issue for trial and confirms that his doctor ordered a
neurosurgical consultation for Plaintiff's disc
herniation and significant symptoms.
Plaintiff was seen for a follow-up on January 2, 2009. (Ex.
A. to Ratliff Decl. at CDCR 1048-49.)
Plaintiff reported that he was about to be transferred back
to prison in California. (Id.)
Plaintiff stated that the Tramadol helped a lot with the back
Plaintiff reported that, with certain movements, there was
pain with radiculopathy into the lower left leg.
physical examination of his back found full flexion with
minimal discomfort and full range of motion. (Id.)
Plaintiff was diagnosed with chronic back pain due to disc
herniation but it was noted that he was actually having less
pain than previously. (Id.)
argues that his diagnosis is repeatedly chronic back pain,
that there is still an order for neurosurgery consultation,
and that less pain at one point with medication does not mean
that the condition is no longer there. (ECF No. 115 at p. 4.)
Plaintiff's arguments do not raise a genuine dispute of
fact that he was diagnosed with chronic back pain and that he
was actually having less pain at that time.
Plaintiff was cleared to be transferred back to California
and was instructed to inform the CDCR that he will
“need f/u with neurosurgery.” (Ex. A. to Ratliff
Decl. at CDCR 01050.)
Plaintiff was then seen by a nurse on January 5, 2009, and
reported that he was not experiencing any problems at that
time, that he was taking his medication, and that he was
feeling good. (Id. at CDCR 01035.)
That his symptoms had significantly improved or virtually
resolved was consistent with expectations that most lumbar
herniation symptoms resolve spontaneously. (Id.)
argues that the medical record does not state that his back
problem had resolved. Plaintiff's argument does not raise
a genuine dispute of material fact. (ECF No. 115 at pp. 4-5.)
The record reflects Plaintiff's report that he was not
experiencing any problems, consistent with Dr. Barnett's
opinion that Plaintiff's symptoms had improved or
resolved. (Ex. A to Ratliff Decl. at CDCR 01035.) Plaintiff
has not presented expert testimony to counter Dr.
Barnett's expert opinion.
Plaintiff arrived at KVSP on January 7, 2009. (Id.
at CDCR 00742.)
Plaintiff was then seen by a doctor on January 14, 2009.
(Id. at CDC 00940.)
examination of his back found no tenderness and a normal
range of movement. (Id.)
plan was to continue him on Ibuprofen and Elavil.
June 12, 2009, Plaintiff was seen by medical staff regarding
a complaint of epigastric pain. (Id. at CDCR 00924.)
was noted that he was suffering from back pain and the plan
was to address the issue in six weeks. (Id.)
July 23, 2009, Plaintiff submitted an inmate appeal (log
number KVSP-34-09-12817) alleging that his appointment to see
a doctor in March 2009 was cancelled and not rescheduled.
(Id. at CDCR 00030.)
Plaintiff requested a referral for another MRI, pain
medication and back surgery. (Id.)
August 31, 2009, he was seen by Dr. Huang regarding his lower
back pain. (Id. at 00912.)
Plaintiff requested Tramadol and wanted the Amitriptyline to
be discontinued because he claimed it was not working.
examination found him in no apparent distress, he ambulated
without any problem, he had full range of motion in his back,
and his flexion/extension was normal. (Id.)
There was no neurological deficit and no radiculopathy.
Plaintiff was diagnosed with lower back pain and the plan was
to continue Motrin and discontinue Amitriptyline, with a
follow-up as needed. (Id.)
response to Plaintiff's inmate appeal, he was interviewed
by Nurse Grewal on September 22, 2009. (Id. at CDCR
Nurse Grewal noted that Dr. Huang discontinued his
Amitriptyline as Plaintiff requested and ordered that
Ibuprofen be continued to help with the pain. (Id.)
Nurse Grewal also noted that Dr. Huang did not deem it
medically necessary to order the MRI at that time.
argues that Dr. Huang does not state that an MRI was not
medically necessary. While correct, Dr. Huang did not order
Plaintiff was informed that treatment decisions are at the
discretion of the physician based on medical judgment, and