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Vlasich v. Nareddy

United States District Court, E.D. California

July 25, 2017

STEVEN VLASICH, Plaintiff,
v.
DR. C. NAREDDY and DR. O. BEREGOVSKAYA, Defendants.

          FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE DENIED (ECF NO. 41)

         I. BACKGROUND

         Steven 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).

         On March 7, 2017, Defendants filed a motion for summary judgment.[1] (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).

         Defendants' 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.

         II. PLAINTIFF'S ALLEGATIONS IN THE COMPLAINT

         Plaintiff 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.

         Plaintiff 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 extreme pain.

         Sometime 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 wedge pillow.

         Plaintiff 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 his cell.

         Plaintiff 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.

         On July 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         Plaintiff 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 him.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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 with contrast.

         The 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).

         Plaintiff 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.

         Plaintiff 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. Nareddy.

         Since 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.

         Finally, 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, or malignant.

         On 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 and specialists.

         Plaintiff requests monetary damages and injunctive relief.

         III. SUMMARY JUDGMENT STANDARD

         Summary 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).

         A party 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)).

         In 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).

         In 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)).

         Additionally, 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).

         IV. DEFENDANTS' SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS (“SSUMF”) [2]

         1. 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.

         2. The 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.

         3. The lower back pain was aggravated in 2005 when Plaintiff was stretching. SSUMF 3; Vlasich Depo. Tr. at 19:7-20.

         4. 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.

         5. The 2005 Report also stated a diagnosis that “[d]egenerative facet joint disease is seen bilaterally.” SSUMF 5; Nareddy Decl., Exhibit A, p. 1.

         6. 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.

         7. Plaintiff has no medical training nor has he taken any medical training courses. SSUMF 9; Vlasich Depo. Tr. at 12:24-13:4.

         8. The 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.

         9. It was Plaintiff who requested methadone after he complained he needed something stronger. SSUMF 13; Vlasich Depo. Tr. at 30:22-31:10.

         10. Dr. Neubarth reduced Plaintiff's methadone dosage from 80 mg to 60 mg. SSUMF 14; Vlasich Depo. Tr. at 17:11-22.

         11. 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.[3]

         12. 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.[4]

         13. 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.

         14. Defendant Dr. Beregovskaya was a physician at Corcoran during the 2011-2012 period. SSUMF 22; Beregovksaya Decl. ¶ 3.

         15. 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.

         16. Dr. 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.

         17. The 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.

         18. 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.

         19. 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. ¶ 8.

         20. 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 & Exhibit B.

         21. Plaintiff's methadone was reduced from 60 mgs to 50 mgs a day for 90 days. SSUMF 40; Nareddy Decl., Exhibit A, p. 9.

         22. Dr. 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 64:15-65:1.

         23. 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.

         24. The next time Plaintiff saw Dr. Nareddy was on October 25, 2011. SSUMF 47; Nareddy Decl., Exhibit A, p. 13; Nareddy Decl. ¶ 6.

         25. 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. at 71:1-21.

         26. Dr. 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.

         27. Dr. 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. ¶ 6.

         28. The 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. 16.[5]

         29. The physical therapist also noted that Plaintiff had 0 atrophy in his muscle. SSUMF 57; Nareddy Decl., Exhibit A, p. 15.

         30. Plaintiff told the therapist he did not have problems eating. SSUMF 58; Vlasich Depo. Tr. at 77:2-11.

         31. On 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.[6]

         32. 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.

         33. On February 22, 2012, Plaintiff was sent to the emergency room for suspected rapid or irregular heartbeats, tachycardia. ...


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