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Rapalo v. Lopez

United States District Court, E.D. California

March 8, 2017

WALTER RAPALO, Plaintiff,
v.
S. LOPEZ, et al., Defendants.

          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

         Findings and Recommendations

         I. Introduction

         Plaintiff 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 Constitution.

         Currently before the court is Defendants Lopez and Manasrah's motion for summary judgment filed pursuant to Federal Rule of Civil Procedure 56.[1] (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).

         II. Plaintiff's Surreply

         As 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.

         III. Defendants' Motion for Summary Judgment[2]

         Defendants 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.

         A. Legal Standard

         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.

         The 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.

         If the 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)).

         In 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).

         In 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.

         B. Undisputed Material Facts[3]

         1. 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 00974.)

         Plaintiff 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 neurosurgical consult.

         2. Nevertheless, Plaintiff reported doing 400 pushups and the “bars” 400 times. (Id.)

         3. 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.)

         4. The x-rays of Plaintiff's lumbar spine were performed on May 4, 2005, and the results were normal. (Id. at CDCR 00037.)

         5. On 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.)

         6. Plaintiff complained that treatment did not help. (Id.)

         7. 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. (Id.)

         8. It was noted that the x-ray of the lumbar spine had been normal. (Id.)

         9. An 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. (Id.)

         10. He was diagnosed with low back pain secondary to athletic activity. (Id.)

         11. Plaintiff was again instructed to decrease his exercise and was also prescribed Prednisone. (Id. at CDCR 00832)

         12. 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.)

         13. Plaintiff was prescribed Naprosyn. (Id.)

         14. On 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.)

         15. Plaintiff complained that the pain used to resolve for periods of time but was getting worse and was now constant. (Id.)

         16. An examination found that he had full range of motion, there were no muscle spasms, and he ambulated without difficulty. (Id.)

         17. Plaintiff was diagnosed with probable compression sciatic nerve palsy on the left. (Id.)

         18. Plaintiff was prescribed Ibuprofen and Cyclobenzaprine. (Id.)

         19. Plaintiff was to have a follow-up in three weeks and an x-ray of his lumbar spine. (Id.)

         20. On November 4, 2008, the x-ray of Plaintiff's lumbar spine was completed. (Id. at CDCR 01060.)

         21. The x-ray showed narrowing at the L5-S1 vertebrae but no acute changes. (Id.)

         22. Plaintiff was seen again for a follow-up on November 11, 2008. (Id. at CDCR 01040-41.)

         23. An examination showed full range of motion, no muscle spasms, and that he ambulated without difficulty. (Id.)

         24. Plaintiff's recent lumbar spine x-ray was viewed as normal. (Id.)

         25. Plaintiff was diagnosed with probable compression sciatic nerve palsy on the left. (Id.)

         26. An MRI was ordered. (Id.)

         27. 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. 5.)

         Plaintiff 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.

         28. 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., CDCR 01052.)

         29. An MRI finding that shows disc herniation does not compel surgery. (Barnett Decl. at p. 5.)

         Plaintiff 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.

         30. Imaging studies alone do not correlate with the severity of the symptoms. (Barnett Decl. at p. 5.)

         31. Most patients with disc herniation will improve within three to four weeks. (Barnett Decl. at p. 5.)

         Plaintiff 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 surgery.

         Plaintiff 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.

         32. 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.)

         33. On 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 CDCR 01050.)

         34. They discussed the MRI results and there were no new findings in a physical exam. (Id.)

         Plaintiff 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.

         35. The diagnosis remained probable compression sciatic nerve palsy on the left. (Ex. A to Ratliff Decl. at CDCR 01050.)

         36. The doctor ordered a follow-up in one month and referred him for a consult with neurosurgery. (Id.)

         37. The doctor did not order surgery. (Id.)

         38. 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 p. 6.)

         Plaintiff 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.

         39. Plaintiff was seen for a follow-up on January 2, 2009. (Ex. A. to Ratliff Decl. at CDCR 1048-49.)

         40. Plaintiff reported that he was about to be transferred back to prison in California. (Id.)

         41. Plaintiff stated that the Tramadol helped a lot with the back pain. (Id.)

         42. Plaintiff reported that, with certain movements, there was pain with radiculopathy into the lower left leg. (Id.)

         43. The physical examination of his back found full flexion with minimal discomfort and full range of motion. (Id.)

         44. 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.)

         Plaintiff 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.

         45. 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.)

         46. 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.)

         47. That his symptoms had significantly improved or virtually resolved was consistent with expectations that most lumbar herniation symptoms resolve spontaneously. (Id.)

         Plaintiff 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.

         48. Plaintiff arrived at KVSP on January 7, 2009. (Id. at CDCR 00742.)

         49. Plaintiff was then seen by a doctor on January 14, 2009. (Id. at CDC 00940.)

         50. An examination of his back found no tenderness and a normal range of movement. (Id.)

         51. The plan was to continue him on Ibuprofen and Elavil. (Id.)

         52. On June 12, 2009, Plaintiff was seen by medical staff regarding a complaint of epigastric pain. (Id. at CDCR 00924.)

         53. It was noted that he was suffering from back pain and the plan was to address the issue in six weeks. (Id.)

         54. On 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.)

         55. Plaintiff requested a referral for another MRI, pain medication and back surgery. (Id.)

         56. On August 31, 2009, he was seen by Dr. Huang regarding his lower back pain. (Id. at 00912.)

         57. Plaintiff requested Tramadol and wanted the Amitriptyline to be discontinued because he claimed it was not working. (Id.)

         58. An 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.)

         59. There was no neurological deficit and no radiculopathy. (Id.)

         60. Plaintiff was diagnosed with lower back pain and the plan was to continue Motrin and discontinue Amitriptyline, with a follow-up as needed. (Id.)

         61. In response to Plaintiff's inmate appeal, he was interviewed by Nurse Grewal on September 22, 2009. (Id. at CDCR 00021.)

         62. Nurse Grewal noted that Dr. Huang discontinued his Amitriptyline as Plaintiff requested and ordered that Ibuprofen be continued to help with the pain. (Id.)

         63. Nurse Grewal also noted that Dr. Huang did not deem it medically necessary to order the MRI at that time. (Id.)

         Plaintiff argues that Dr. Huang does not state that an MRI was not medically necessary. While correct, Dr. Huang did not order an MRI.

         64. Plaintiff was informed that treatment decisions are at the discretion of the physician based on medical judgment, and are ...


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