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Bussiere v. Kokor

United States District Court, E.D. California

April 4, 2017

DR. W. KOKOR, et al., Defendants


         On July 29, 2016, Defendants filed a Motion for Summary Judgment (“Defendants' Motion”). See Doc. No. 73. On March 2, 2017, the Magistrate Judge issued a findings and recommendations (the “F&R”) in which she recommended that the Court: (1) grant Defendants' Motion as to “Plaintiff's claims against Defendant Kokor” and “Plaintiff's claim against Defendant Hashemi relating to Plaintiff's visit with this Defendant on October 26, 2012;” and (2) deny Defendants' Motion “as to Plaintiff's remaining claims against Defendants Tiggs-Brown and Hashemi.” See Doc. No. 90.

         The F&R was served upon the parties and contained notice that any objections were to be filed within twenty-one days after service. See id. Plaintiff filed objections to the F&R on March 20, 2017, see Doc. No. 92, and Defendants filed objections to the F&R on March 27, 2017, see Doc. No. 93.

         In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of the case.

         Plaintiff's Objections

         Plaintiff's objections are brief. Plaintiff states that he has no opposition to the F&R's conclusions with respect to Dr. Kokor, he requests that the court review the incident with Dr. Hashemi that occurred on October 26, 2012, and he requests a case settlement hearing and trial date with respect to the remaining claims. See Doc. No. 92.

         The Court has reviewed the F&R's analysis of Plaintiff's interactions with Dr. Hashemi on October 26. On that day, Dr. Hashemi declined to send Plaintiff to the hospital, but instead examined Plaintiff, found no tenderness or distension, ordered Plaintiff to continue his medications, and ordered Plaintiff follow up in 10-25 days. The Court agrees with the F&R that the dispute appears to be a mere disagreement over Dr. Hashemi's medical judgment, and thus, is not a basis for an Eighth Amendment claim. See Estelle v. Gamble, 429 U.S. 97, 107 (1976); Colwell v. Bannister, 763 F.3d 1060, 1068 (9th Cir. 2014); see also Hashemi Dec. ¶¶ 12, 15. While Plaintiff's opposition appears to rely on procedures that were performed during his hospitalization, [1] at best this evidence might suggest that Dr. Hashemi's chosen course of treatment was negligent. Neither negligence nor gross negligence will support an Eighth Amendment medical mistreatment claim. See Lemire v. California Dept. of Corr. & Rehab., 726 F.3d 1062, 1082 (9th Cir. 2013). Plaintiff's objection is overruled.

         Defendant's Objections - Tiggs-Brown

         Defendant Tiggs-Brown objects that summary judgment should be granted in her favor.[2]Tiggs-Brown contends that because the undisputed evidence shows that she has gone before the Medical Authorization Review Committee (“MARC”) on Plaintiff's behalf, and because MARC approval is not required for Prilosec renewal, summary judgment should be granted. The Court disagrees. As explained by the F&R, while Tiggs-Brown did go before the MARC on Plaintiff's behalf, that was in connection with a separate and unrelated prescription that occurred two weeks prior to Plaintiff's request for Prilosec. See Doc. No. 90 at 17 n.7; Doc. No. 73-5 at ¶¶ 8, 10, 13. Further, Plaintiff stated in his verified complaint that Tiggs-Brown told Plaintiff that she would not refill the Prilosec because she did not want to go before the MARC. See Doc. No. 12 at 5. Tiggs-Brown's objection is overruled.

         Defendants' Objections - Dr. Hashemi

         Dr. Hashemi objects that summary judgment should be granted as to the remaining claim against her. The remaining claim is based on Dr. Hashemi's failure to schedule a follow up appointment for Plaintiff with Dr. Krishan of Mercy Hospital. After review, the Court agrees that summary judgment in favor of Dr. Hashemi is appropriate.

         a. Relevant Facts & Evidence

         As discussed by the F&R, Plaintiff suffers from end stage liver disease, a.k.a. cirrhosis. On October 27, 2012, Plaintiff saw Dr. Kokor and complained that his stomach was distended and that he had been vomiting all day. Dr. Kokor referred Plaintiff to Mercy Hospital (an outside hospital) for further evaluation and to check for abdominal bleeding. At Mercy Hospital, Dr. Krishan performed an abdominal paracentesis and an esophagogastroduodenoscopy (“EGD”). Dr. Krishan found varices[3] in Plaintiff's esophagus. Dr. Krishan developed a plan in which Plaintiff was to have another EGD in four to six weeks.

         On October 30, 2012, Plaintiff was discharged from Mercy Hospital. The physician's discharge instructions included a “suggestion for follow-up” for Plaintiff to have a follow up visit with Dr. Krishan in two weeks. Plaintiff's inmate discharge summary stated that Plaintiff was to “continue his medications as before and he will follow [sic] with [Dr.] Krishan in 2 weeks.” Plaintiff returned to prison that day. Plaintiff was taken to the prison Treatment Triage Area where he received an intake evaluation, including a review of the medical records from Mercy Hospital.

         On October 31, Plaintiff was examined by Dr. Jackson.

         On November 2, 2012, Plaintiff saw Dr. Hashemi, after complaints of nausea and vomiting. Dr. Hashemi transferred Plaintiff to the triage department and to another physician. Dr. Hashemi did not submit a Form 7221 doctor's request for services regarding the two-week follow up with Dr. Krishan. After November 2, Dr. Hashemi had no further involvement with or control of Plaintiff's condition or treatment.

         Plaintiff did not have a follow up visit with Dr. Krishan within two weeks of discharge. After November 2, 2012, Plaintiff submitted “medical slips”/Health Care Services Request Forms on November 12, 18, and 30, 2012, in which he stated that he had not seen Dr. ...

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