United States District Court, E.D. California
ARTHUR T. BUSSIERE Plaintiff
DR. W. KOKOR, et al., Defendants
ORDER ON FINDINGS AND RECOMMENDATION REGARDING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT(DOC. NOS. 73,
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.
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.
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C), this Court has conducted a de novo
review of the case.
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.
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,  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.
Objections - Tiggs-Brown
Tiggs-Brown objects that summary judgment should be granted
in her favor.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.
Objections - Dr. Hashemi
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.
Relevant Facts & Evidence
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 in
Plaintiff's esophagus. Dr. Krishan developed a plan in
which Plaintiff was to have another EGD in four to six weeks.
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.
October 31, Plaintiff was examined by Dr. Jackson.
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.
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. ...