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Davis v. Kalisher

United States District Court, N.D. California

June 5, 2017

MARLON O. DAVIS, Plaintiff,
v.
G. KALISHER, et al., Defendants.

          ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANTS RE: DKT. NOS. 27, 30

          SUSAN ILLSTON, United States District Judge

         INTRODUCTION

         Marlon Davis, formerly an inmate at the Correctional Training Facility in Soledad, filed this pro se civil rights action under 42 U.S.C. § 1983. This action is now before the court for consideration of the motion for summary judgment filed by defendants and opposed by Davis. For the reasons discussed below, summary judgment will be granted in defendants' favor.

         BACKGROUND

         This action concerns the responses of three prison doctors to Davis' eye problems. Davis contends that defendants violated his Eighth Amendment right to be free from cruel and unusual punishment by their deliberate indifference to his eye care needs. He also contends that defendants violated their duties under California Government Code § 845.6 to provide immediately needed medical care when they failed to arrange for him to have eye surgery.

         The following facts are undisputed unless otherwise noted:

         The events and omissions giving rise to this action occurred from about June 2014 through April 2016, at the Correctional Training Facility (CTF). At the relevant time, Davis was a prisoner at CTF. After filing this action, Davis was released from prison in about April 2016. See Docket No. 5.) At the relevant time, defendants G. Kalisher, M.D., Z. Ahmed, M.D., and S. Posson, D.O. were on the medical staff at CTF.

         The first events alleged in Davis' amended complaint occurred in June 2014. Prior to that, he had requested and received refills of his eye drops in October 2013 and February 2014 for his “irritated eyes.” (Docket No. 27-3 at 2-3.) The Naphcon-A eye drops ordered for him are used to relieve eye redness, itching, and watering that commonly occur with allergies. (Docket No. 27-2 (Posson Declaration) at 2-3 & n.1.)

         On June 14, 2014, Davis submitted a form requesting care for a “throbbing pain” in his left eye that was “causing redness and irr[i]tation.” (Docket No. 27-3 at 4.)[1] He was seen by a nurse on June 15, 2014. (Id.) Dr. Kalisher examined Davis on June 30, 2014, and made an urgent request for Davis to see an optometrist. (Docket No. 27-3 at 5-7.) Dr. Bright approved the request. According to Davis, Dr. Kalisher did not give Davis any ice packs or medications to relieve swelling of the eye, and did not prescribe Restasis eye drops on this day. (Docket No. 6 at 5.) (Defendants dispute this. The court accepts Davis' version as true for purposes of resolving the motion for summary judgment.)

         On July 2, 2014, optometrist Reed Sammet examined Davis. Dr. Sammet suspected that Davis had glaucoma and also noted “pterygium OS.”[2] He prescribed Artificial Tears ophthalmic solution, which is a lubricant eye drop used to relieve dry and irritated eyes. Dr. Sammet also wrote a prescription for new eyeglasses. (Docket No. 27-2 at 3 & n.3; Docket No. 27-3 at 8-9.)

         On July 3, 2014, Dr. Kalisher followed up with Davis regarding the eye pain. Dr. Kalisher prescribed LiquiTears for 90 days. LiquiTears are lubricant eye drops used to relieve dry eye symptoms like burning and irritation. Dr. Kalisher's notes also mentioned “possible glaucoma?” (Docket No. 27-2 at 3 & n.4; Docket No. 27-3 at 10.)

         On July 15, 2014, Dr. Sammet requested that Davis receive treatment for glaucoma, and recommended that Davis begin treatment with Latanoprost for a year. Latanoprost is an ophthalmic solution used to treat glaucoma. (Docket No. 27-2 at 3 & n.5; Docket No. 27-3 at 11.)[3] Dr. Kalisher ordered Latanoprost eye drops for Davis the next week. (Docket No. 27-2 at 3; Docket No. 27-5 at 12.)

         On August 6, 2014, Davis requested refills for his Latanoprost and LiquiTears prescriptions. The prescriptions were refilled the next day. (Docket No. 27-2 at 3-4; Docket No. 27-3 at 13.)

         On August 13, 2014, Davis had a glaucoma progress evaluation with Dr. Sammet. Dr. Sammet recommended a four-month follow-up appointment and possible second ocular hypotensive medication if the internal eye pressure increased to greater than 15 mm. (Docket No. 27-2 at 4; Docket No. 27-3 at 12.)

         On November 6, 2014, Davis submitted a form requesting care for pain in his left eye causing him headaches. (Docket No. 27-3 at 14.) Dr. Kalisher examined Davis on November 10, and submitted an urgent request for Davis to see an optometrist. (Docket No. 27-2 at 4; Docket No. 27-3 at 15-17.)

         Dr. Shao Li, an optometrist, examined Davis on November 19, 2014. Dr. Li noted that Davis' internal eye pressure had increased to 16 mm. in both eyes and wrote a new prescription for eyeglasses. (Docket No. 27-2 at 4; Docket No. 27-3 at 18; Docket No. 27-4 at 2-3.)

         Davis had a follow-up appointment with Dr. Kalisher on November 21, 2014, and received his new eyeglasses on December 12, 2014. (Docket No. 27-2 at 4; Docket No. 27-3 at 18; Docket No. 27-4 at 3.)

         On December 13, 2014, Davis submitted a form requesting that he be sent to an outside specialist. He complained that the pain in his left eye was “getting more intense, ” and wanted to see an outside specialist because the treatment he was receiving in prison was not effective, in his view. (Docket No. 27-4 at 4.) Dr. Kalisher examined Davis on December 19, and submitted an urgent request for Davis to see an ophthalmologist, which Dr. Bright approved that day. (Docket No. 27-2 at 4; Docket No. 27-4 at 5-6.)

         Dr. Rasheed, an ophthalmologist, examined Davis on January 5, 2015. Dr. Rasheed suspected Davis had ocular hypertension rather than glaucoma, and advised stopping the glaucoma medication. He also recommended an offsite follow-up appointment. (Docket No. 27-2 at 4; Docket No. 27-4 at 6.)

         On February 10, 2015, Davis had a follow-up appointment with Dr. Kalisher and reported that the pain in his eye was better but still persisted. (Docket No. 27-2 at 4; Docket No. 27-4 at 7.)

         On April 28, 2015, Davis submitted a form requesting care for his left eye because he was experiencing more eye pain and “eye drops are no avail.” (Docket No. 27-4 at 8.) A registered nurse examined him on April 30, and provided him with Artificial Tears. (Docket No. 27-2 at 5; Docket No. 27-4 at 9.)

         On May 6, 2015, Dr. Brent Wells, an optometrist, examined Davis and noted “physiological large cupping v. glaucoma” and dry eye syndrome. Dr. Wells recommended that Davis use warm compresses and artificial tears, and have yearly follow-up appointments. (Docket No. 27-2 at 5; Docket No. 27-4 at 10.)

         On May 15, 2015, Davis submitted a form requesting care for his continued pain and irritation in the left eye. He wrote that “the artificial-tears solution are no. avail, ” and he wanted to see an off-site specialist. (Docket No. 27-2 at 5; Docket No. 27-4 at 11.) On May 18, a registered nurse examined Davis and wrote that he had an appointment scheduled for May 27 with Dr. Kalisher. (Docket No. 27-2 at 5; Docket No. 27-4 at 11-1.)

         On May 5 or 22, 2015, Davis filed an inmate health care appeal stating that he had been seeing medical care providers for some time, the “artificial tears are not effective” and he was having vision troubles. He requested that he be sent to see an off-site specialist for more effective treatment. (Docket No. 27-5 at 25 (appeal form dated May 22); (Docket No. 6 at 6 (verified allegation that appeal was filed on May 5, 2015). Davis also requested Restasis eye drops in this appeal, or in an appeal dated July 11, 2015 that was attached to the May 5 or 22, 2015 appeal. (Docket No. 27-5 at 23.)

         On June 5, 2015, Dr. Kalisher examined Davis, noted that Davis had dry eye syndrome, and requested Restasis eye drops. (Docket No. 27-2 at 5; Docket No. 27-4 at 16. (Davis apparently had learned about Restasis drops on television. (Docket No. 6 at 5.))

         On June 15, 2015, Davis requested care for his left eye, which was painful and “sticking with dryness, ” and the “drops are no avail.” (Docket No. 27-4 at 17. A registered nurse examined him the next day and referred him to his primary care provider. (Defendants urge that the phrase “drops are no avail.” meant drops were to no avail; Davis does not disagree.)

         On June 17, 2015, Dr. Posson (who was the chief medical executive at the prison) denied Dr. Kalisher's request to prescribe Restasis eye drops. (Docket ...


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