United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE DENIED (ECF
Vlasich (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis
with this civil rights action filed pursuant to 42 U.S.C.
§ 1983. This action now proceeds on Plaintiff's
Second Amended Complaint, against defendants Dr. C. Nareddy
and Dr. O. Beregovskaya (“Defendants”) on a claim
for inadequate medical care in violation of the Eighth
Amendment. (ECF Nos. 17, 18, 21, & 22).
March 7, 2017, Defendants filed a motion for summary
judgment. (ECF No. 41). On April 24, 2017, Plaintiff
filed his opposition to the motion. (ECF No. 48). On May 1,
2017, Defendants filed a reply to Plaintiff's opposition
(ECF No. 50) and evidentiary objections to materials
submitted by Plaintiff in opposition to Defendants'
motion for summary judgment (ECF No. 51).
motion for summary judgment is now before the court. Local
Rule 230(1). For the reasons that follow, the Court
recommends that Defendants' motion be denied.
PLAINTIFF'S ALLEGATIONS IN THE COMPLAINT
is presently incarcerated at California State
Prison-Sacramento in Represa, California, in the custody of
the California Department of Corrections and Rehabilitation
(“CDCR”). The events at issue in the Second
Amended Complaint allegedly occurred at Corcoran State Prison
(“CSP”) in Corcoran, California, when Plaintiff
was incarcerated there. This case is proceeding against
defendants Dr. C. Nareddy and Dr. O. Beregovskaya. Defendants
Dr. C. Nareddy and Dr. O. Beregovskaya were employed by the
CDCR at CSP at the time of the events at issue.
Plaintiff's factual allegations follow.
had an MRI exam on May 6, 2005, which found he had
degenerative facet joint disease bilaterally, causing left
neural foraminal stenosis with slight flattening of the L5
nerve root. Due to the impingement of Plaintiff's L5
nerve root, Plaintiff was treated with Methodone, and he was
sent to pain specialists who gave him epidurals about three
times a year. The Methodone and epidurals alleviated the
in 2011, Dr. Barnett from Sacramento ordered doctors at CSP
to reduce or eliminate all prescriptions for opiate pain
medications. In 2011, Plaintiff was taking 60 mgs. of
Methodone, and he used a walker, a double mattress, and a
used the walker in his cell, but on February 16, 2011, Lt.
Ruiz [who is no longer a defendant in this case] ordered
Officer Price to take the walker out of the cell, and from
that time on, Plaintiff could only use the walker outside his
cell. This caused Plaintiff extreme pain at times, and he
fell numerous times because he could not use the walker in
filed an inmate appeal concerning the walker. On May 25,
2011, Plaintiff saw Dr. O. Beregovskaya, who purposely
falsified Plaintiff's medical report attempting to defend
the confiscation of the walker. Dr. Beregovskaya did not
examine Plaintiff but wrote that Plaintiff had a
“normal exam, ” failing to confirm that Plaintiff
was disabled due to back pain. (ECF No. 17 at 7:5-6). Dr.
Beregovskaya reduced Plaintiff's pain medication from 60
mgs. to 50 mgs. and denied the appeal. Earlier, on April 25,
2011, Dr. Beregovskaya had examined Plaintiff and found
abnormalities which corroborated an impingement of the nerve
root. At that time, Dr. Beregovskaya concluded that Plaintiff
needed the pain medication and noted that a reduction of
medication caused Plaintiff extreme pain.
26, 2011, Plaintiff saw Dr. Nareddy, who found that Plaintiff
had tachycardia (a fast heart rate) of 120-130 per minute,
and Plaintiff was sent to the E.R. Dr. Nareddy falsified his
report in an attempt to justify the eventual termination of
Plaintiff's pain medication. Dr. Nareddy knew that the
results of the May 6, 2005 MRI justified treating Plaintiff
with strong pain medication, but he wrote that the 2005 MRI
showed “left neural feraminal stenosis at ¶ 5-SI
with no impinging nerve.” (Id. at
7:25-26). He also wrote that Plaintiff's most recent
exams revealed complaints of pain disproportionate with the
results of the exams. Dr. Nareddy also lied about other
things on his report.
October 25, 2011, Plaintiff saw Dr. Nareddy, after repeatedly
requesting an increase in pain medication to the level he
received from 2007-2009. Plaintiff told Dr. Nareddy about his
impinged nerve root and increased pain. Dr. Nareddy filled
out a Pain Committee report, purposely falsifying it by
writing that the 2005 MRI showed no impingement and no
radiculopathy (radiating pain). Yet on the 2005 MRI it states
there is radiating pain. Dr. Nareddy forced Plaintiff to do
examination exercises which caused Plaintiff pain, then wrote
that he thought Plaintiff was malingering.
January 19, 2012, the Pain Committee claimed to have reviewed
Plaintiff's medical file, yet made false reports about
his condition. On the same page that the Pain Committee
reported that “there is apparently no radiation of the
pain” and “[h]is back went out in 2005 and has
been painful ever since with pain radiating down the left
side.” (Id. at 8:23-25). Dr. Wong [who is no
longer a defendant in this case] was the head of the Pain
Committee, which recommended that Plaintiff be taken off
Methodone and that his walker, double mattress, and wedge
pillow be taken away.
January 27, 2012, Dr. Nareddy started to taper off
Plaintiff's pain medication and ordered that Plaintiff go
without the walker, double mattress, and wedge pillow. When
Plaintiff complained to Dr. Nareddy, Dr. Nareddy did not
care. Plaintiff's Methodone was reduced from 50 to 40
mgs., and within three days he was in extreme pain, could not
sleep, and had loose bowels. On February 10, 2012, Plaintiff
was told he would see a doctor on February 13, 2012, but on
February 13, 2012, he was ignored. Plaintiff had an episode
of bladder incontinence.
February 22, 2012, Plaintiff, using a wheel chair, saw Dr.
Nareddy. Plaintiff was in extreme pain. Dr. Nareddy found
that Plaintiff had tachycardia again and Plaintiff was sent
to the E.R. where Dr. Nguyen said that the tachycardia was
probably caused by Plaintiff's pain. Dr. Nguyen ordered a
slight increase of Methodone and prescribed Tylenol 3, but
Plaintiff's Methodone was never increased. Plaintiff
filed medical requests explaining his pain, and Dr. Nareddy
ignored them, purposely leaving Plaintiff in pain.
February 29, 2012, Plaintiff fell and went to the E.R. He was
prescribed Tylenol 3 for a week or two but was still in pain.
Plaintiff saw PA Sisodia, Dr. Nareddy's assistant,
concerning the first level of an appeal. Plaintiff's
pulse was 134 and his blood pressure was 139/91, but
Plaintiff was not sent to the E.R. Sisodia told Plaintiff
that the Pain Committee had reported no impingement.
Plaintiff told Sisodia this was a lie and that Plaintiff
would send her a copy of the 2005 MRI. Plaintiff sent Sisodia
a copy of his 2005 MRI an hour later. Sisodia refused to give
Plaintiff any pain medications or submit a request for an MRI
and a specialist.
wrote to Dr. Nareddy explaining about the impingement and
sent him a copy of the 2005 MRI. On March 12, 2012, Plaintiff
was scheduled to see Dr. Clark, but Dr. Clark refused to see
March 16, 2012, Plaintiff blacked out due to extreme pain and
lack of sleep, and hit his head on the sink and lacerated his
forehead. Plaintiff was taken to the E.R. and was placed in a
holding cell in his wheelchair. After about 15 minutes,
Plaintiff requested to be taken out of the holding cell, but
both nurses Kayun [who is no longer a defendant in this case]
and B. Morean [who is no longer a defendant in this case]
refused. Plaintiff was in so much pain that he involuntarily
urinated on himself. After about 30 minutes, Plaintiff was in
such pain that he slid out of the wheelchair so he could lie
down, even if it was in his own urine. The two nurses left
Plaintiff there for another 3 or 3 1/2 hours. When Plaintiff
was examined by Dr. Aye, Dr. Aye found abnormalities in
Plaintiff's exam, and prescribed a shot of Toredol and a
week or two of Tylenol 3 and Prednisone. Plaintiff was
scheduled to see the yard doctor (Dr. Nareddy) in one week.
March 20, 2012, Plaintiff saw PA Sisodia and requested
something for his pain, a new MRI, and consultation with a
specialist. She refused to treat the pain, but requested a
new MRI and a specialist. Dr. Beregovskaya denied
Plaintiff's requests for an MRI and a specialist.
March 27, 2012, Plaintiff blacked out again and fell, went to
the E.R. and saw Dr. Aye. Dr. Aye refused to do anything for
Plaintiff's pain, saying that Dr. Nareddy was
Plaintiff's yard doctor and so Dr. Nareddy would have to
treat Plaintiff's chronic pain. Plaintiff told Dr. Aye
that Dr. Nareddy refused to see or help him, but Dr. Aye said
his hands were tied.
April 2, 2012, Plaintiff saw Dr. Clark who told Plaintiff
that he had no authority to help Plaintiff get a new MRI or
treat his pain. Plaintiff showed him a copy of the 2005 MRI
and he noted in his report that it showed left L5 flattening.
April 8, 2012, Plaintiff started having problems with his
right leg and could not get out of bed. He asked the licensed
vocational nurse to ask Dr. Nareddy to order a bedpan or
urine bottle, but the nurse told Plaintiff that Dr. Nareddy
refused to see or help him. Plaintiff had to urinate and
defecate off his bed while lying down, in extreme pain.
April 10, 2012, Plaintiff was sent to the E.R. where Dr. Gil
refused to treat his pain but sent him for an MRI. However,
Plaintiff only received a CT scan, which cannot show nerve
impingements. A CT scan with contrast would have shown nerve
impingement, but the CT scan Plaintiff received was not done
results of the CT showed nothing wrong. Plaintiff told Dr.
Nareddy that that the results contradicted the 2005 MRI and
told Dr. Nareddy he needed a new MRI, but Dr. Nareddy said,
“you know that is not going to happen.”
(Id. at 12:10-11).
developed chronic high blood pressure due to pain, but it
went away after surgery when he was given Metoprodol.
Plaintiff continued writing to the federal receiver in
Sacramento, and filed appeals and submitted medical requests
almost every day.
was told he would see an ortho-specialist from CDCR, Dr.
Williams [who is no longer a defendant in this case], via
tele-med, so he wrote Dr. Williams a 10-page letter which Dr.
Williams admitted receiving. Thus, Dr. Williams knew about
Plaintiff's medical history, the falsified report, and
the 2005 MRI, but he refused to talk about it or go through
Plaintiff's documents. He pretended that he had no clue
what was wrong with Plaintiff and refused to order an MRI or
a specialist, or prescribe pain medication. Additionally, Dr.
Williams purposely falsified his report to support Dr.
February [Plaintiff failed to specify the year], Plaintiff
had not gone to yard or taken a shower. He was bedridden and
in extreme pain, but for eight months doctors Nareddy and
Beregovskaya refused Plaintiff pain relief, his walker in his
cell, MRIs, and surgical consultations.
someone in Sacramento ordered that Plaintiff be given a real
physical examination, and the results were abnormal.
Accordingly, Sacramento ordered that Plaintiff be given a new
MRI. On July 30, 2012, Plaintiff was given an MRI, which
showed left foraminal stenosis with impingement at ¶ 5,
a bulge with impingement at ¶ 5, and two nodular
densities at ¶ 2 and L4. On August 13, 2012, Plaintiff
was given another MRI, with contrast, that found that the
tumor at ¶ 4 was a benign hemangioma, but the tumor at
¶ 2 was found to displace nerve roots posteriorly. It
was found that the tumor could be a hemangiomata, schwannoma,
August 27, 2012, Plaintiff had another MRI, with contrast,
which found another benign tumor at ¶ 9. On September
28, 2012, Plaintiff saw neurosurgeon Dr. T. Wiebe, who
recommended surgery. On November 27, 2012, Plaintiff had
surgery. Afterward, Plaintiff was told that the tumor at
¶ 2 was growing inside a nerve root, and the right L5
had nerve impingement, which the MRIs did not show. By
purposely refusing a new MRI for so long, defendants Nareddy
and Beregovskaya attempted to prevent Plaintiff from
corroborating his initial MRI. Defendants Nareddy and
Beregovskaya knew from the May 6, 2005 MRI that Plaintiff had
an impingement of the nerve root, and they knew he was in
pain because he told them. They also knew Plaintiff had been
treated for pain for the past 6-7 years by numerous doctors
requests monetary damages and injunctive relief.
SUMMARY JUDGMENT STANDARD
judgment in favor of a party is appropriate when 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); Albino v. Baca
(“Albino II”), 747 F.3d 1162, 1169 (9th
Cir. 2014) (en banc) (“If there is a genuine dispute
about material facts, summary judgment will not be
granted.”). “A party asserting that a fact cannot
be or is genuinely disputed must support the assertion by (A)
citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or (B)
showing that the materials cited do not establish the absence
or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the
fact.” Fed.R.Civ.P. 56(c)(1).
moving for summary judgment “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), quoting Fed.R.Civ.P.
56(c). If the moving party moves for summary judgment on the
basis that a material fact lacks any proof, the court must
determine “whether a fair-minded jury could reasonably
find for the [non-moving party].” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)
(“The mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient;
there must be evidence on which the jury could reasonably
find for the plaintiff.”). “[A] complete failure
of proof concerning an essential element of the nonmoving
party's case necessarily renders all other facts
immaterial.” Celotex, 477 U.S. at 322.
“[C]onclusory allegations unsupported by factual
data” are not enough to rebut a summary judgment
motion. Taylor v. List, 880 F.2d 1040, 1045 (9th
Cir. 1989) (citing Angel v. Seattle-First Nat'l
Bank, 653 F.2d 1293, 1299 (9th Cir. 1981)).
reviewing a summary judgment motion, the Court may consider
other materials in the record not cited to by the parties,
but is not required to do so. Fed.R.Civ.P. 56(c)(3);
Carmen v. San Francisco Unified School Dist., 237
F.3d 1026, 1031 (9th Cir. 2001).
judging the evidence at the summary judgment stage, the Court
“must draw all reasonable inferences in the light most
favorable to the nonmoving party.” Comite de
Jornaleros de Redondo Beach v. City of Redondo Beach,
657 F.3d 936, 942 (9th Cir. 2011). It need only draw
inferences, however, where there is “evidence in the
record . . . from which a reasonable inference . . . may be
drawn”; the court need not entertain inferences that
are unsupported by fact. Celotex, 477 U.S. at 330 n.
2. But, “if direct evidence produced by the moving
party conflicts with direct evidence produced by the
nonmoving party, the judge must assume the truth of the
evidence set forth by the nonmoving party with respect to
that fact.” Leslie v. Grupo ICA, 198 F.3d
1152, 1158 (9th Cir. 1999) (quoting T.W. Elec. Serv.,
Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d
626, 630-31 (9th Cir. 1987)).
the Court must liberally construe Plaintiff's filings
because he is a pro se prisoner. Thomas v.
Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010).
DEFENDANTS' SEPARATE STATEMENT OF UNDISPUTED MATERIAL
FACTS (“SSUMF”) 
Plaintiff Steven Vlasich was involved in a motorcycle
accident and a car accident when he was younger. SSUMF 1;
Excerpts of Transcript of Deposition of Steven Vlasich
(“Vlasich Depo. Tr.”) at 26:22-27:11.
accidents may have caused his lower back pain, which he has
been dealing with since his “late teens early
20s.” SSUMF 2; Declaration of Dr. Nareddy, M.D.
(“Nareddy Decl.”), Exhibit A, p. 2; Vlasich Depo.
Tr. at 19:7-11; 27:1-21.
lower back pain was aggravated in 2005 when Plaintiff was
stretching. SSUMF 3; Vlasich Depo. Tr. at 19:7-20.
Plaintiff received a magnetic resonance imaging (MRI) of his
lower spine on May 6, 2005 that showed “left neural
foraminal stenosis with slight flattening of the L5 nerve
root.” SSUMF 4; Nareddy Decl., Exhibit A, p. 1;
Declaration of Dr. Olga Beregovskaya, M.D. in Support of
Motion for Summary Judgment/Summary Adjudication
(“Beregovskaya Decl.”) ¶ 5.
2005 Report also stated a diagnosis that
“[d]egenerative facet joint disease is seen
bilaterally.” SSUMF 5; Nareddy Decl., Exhibit A, p. 1.
Degenerative facet joint disease can lead to chronic lower
back pain but is seldom treated with anything other than pain
management, including exercise and pain medication. SSUMF 6;
Beregovskaya Decl. ¶ 5.
Plaintiff has no medical training nor has he taken any
medical training courses. SSUMF 9; Vlasich Depo. Tr. at
degenerative disease and flattened nerve identified in the
2005 MRI report did not require surgery and no doctor
prescribed surgery for Plaintiff prior to 2012. SSUMF 10;
Beregovskaya Decl. ¶ 5; Excerpt of Transcript of
Deposition of Steven Vlasich on May 29, 2009, in Vlasich
v. J. Neubarth, et al., Case No. 1:07-cv-01760-SMM,
Exhibit B, at 27:3-5.
was Plaintiff who requested methadone after he complained he
needed something stronger. SSUMF 13; Vlasich Depo. Tr. at
Neubarth reduced Plaintiff's methadone dosage from 80 mg
to 60 mg. SSUMF 14; Vlasich Depo. Tr. at 17:11-22.
Even while on the highest dose of methadone, 80 mg per day,
Plaintiff continued to complain of lower back pain and
difficulty getting in and out of his bunk and the shower.
SSUMF 15; Vlasich Depo. Tr. at 42:1-43:2; Nareddy Decl.,
Exhibit A, p. 2.
According to Plaintiff, “at any given time” his
pain could reach a level of 9 out of 10, even while on this
high dosage. SSUMF 16; Nareddy Decl., Exhibit A, p. 2;
Vlasich Depo. Tr. at 42:11-43:2.
CDCR promulgated policies in the 2009 Pain Management
Guidelines which restricted access to opioids only where the
patient had a chronic and serious disease. SSUMF 18; Clark
Decl. ¶ 3.
Defendant Dr. Beregovskaya was a physician at Corcoran during
the 2011-2012 period. SSUMF 22; Beregovksaya Decl. ¶ 3.
Plaintiff has only seen Dr. Beregovskaya twice. The first
time was for a chronic care follow up appointment on April
25, 2011. SSUMF 23; Vlasich Depo. Tr. at 49:24-50:6;
56:13-25; Beregovskaya Decl., ¶ 7.
Beregovskaya was working in the emergency room of
Corcoran's hospital, and was asked to see Mr. Vlasich
because he had a scheduled appointment at the chronic care
clinic and his regular primary care doctor was not available
that day. SSUMF 24; Beregovskaya Decl. ¶ 7.
second and only other time Plaintiff saw Dr. Beregovskaya was
on or about May 24, 2011, when they discussed Plaintiff's
602 health care appeal of his walker being confiscated. SSUMF
28; Beregovskaya Decl. ¶ 8; Nareddy Decl., Exhibit A, p.
7; Vlasich Depo. Tr. at 60:11-15; 60:23-25; 61:3-9.
Plaintiff was told that his walker was removed from the cell
because his “celly had a history of making weapons out
of things.” SSUMF 29; Vlasich Depo. Tr. at 50:7-25.
Inmate patients cannot have assistive devices such as a
walker inside their cells unless they are medically verified
as having a mobility impairment. SSUMF 30; Beregovskaya Decl.
Plaintiff would have been allowed to have a walker inside his
cell only if a medical provider verified his disability and
completed a Form 1845, “Disability Placement Program
Verification, ” identifying him in a category of
“mobility impairment - with or without assistive
device.” SSUMF 31; Beregovskaya Decl. ¶ 8 &
Plaintiff's methadone was reduced from 60 mgs to 50 mgs a
day for 90 days. SSUMF 40; Nareddy Decl., Exhibit A, p. 9.
Nareddy was not involved in Plaintiff's medical care
until July 26, 2011, when he first saw Plaintiff for a
chronic care appointment. SSUMF 41; Nareddy Decl. ¶ 5;
Nareddy Decl., Exhibit A, pgs. 10-11; Vlasich Depo. Tr. at
Plaintiff's appointment with Dr. Nareddy on July 26, 2011
was in response to his complaint of having his methadone
tapered down to 50 mgs a day. SSUMF 42; Nareddy Decl. ¶
5; Nareddy Decl., Exhibit A, pgs.10-12.
next time Plaintiff saw Dr. Nareddy was on October 25, 2011.
SSUMF 47; Nareddy Decl., Exhibit A, p. 13; Nareddy Decl.
Plaintiff came into the clinic walking with a folded up
walker, which Dr. Nareddy noted. SSUMF 48; Nareddy Decl.,
Exhibit A, p. 13; Nareddy Decl. ¶ 6; Vlasich Depo. Tr.
Nareddy assessed his lower back pain, including leg raising
tests, observing his gait, and having him stand on his toes
and heels. SSUMF 49; Nareddy Decl., Exhibit A, p. 13; Nareddy
Decl. ¶ 6.
Nareddy also sent Plaintiff for assessment with a physical
therapist, which the Pain Committee required to assess
whether to reverse its decision to taper his medication.
SSUMF 54; Vlasich Depo. Tr. at 73:5-15; Nareddy Decl. ¶
physical therapist noted that Plaintiff carried his walker
into the physical therapy session and wrote “? Need for
walker.” SSUMF 56; Nareddy Decl., Exhibit A, p.
physical therapist also noted that Plaintiff had 0 atrophy in
his muscle. SSUMF 57; Nareddy Decl., Exhibit A, p. 15.
Plaintiff told the therapist he did not have problems eating.
SSUMF 58; Vlasich Depo. Tr. at 77:2-11.
January 27, 2012 Dr. Nareddy wrote instructions for
Plaintiff's methadone to be tapered down from 50 mg,
eventually to 2.5 mg a day, and to be completely off
methadone within 70 days (by May 4, 2012) in accordance with
the Pain Committee's decision. SSUMF 63; Nareddy Decl.,
Exhibit A, p. 19.
Starting February 2012, Plaintiff began to submit numerous
health care requests specifically asking for methadone. SSUMF
64; Vlasich Depo. Tr. at 85:21-86:18.
February 22, 2012, Plaintiff was sent to the emergency room
for suspected rapid or irregular heartbeats, tachycardia.