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Solano v. Tate

United States District Court, E.D. California

September 3, 2017

LIBRADO SOLANO, JR., Plaintiff,
v.
DR. HAROLD TATE, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [ECF, 31]

         Plaintiff Librado Solano, Jr. is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Defendants' motion for summary judgment, filed April 13, 2017.

         I. PROCEDURAL BACKGROUND

         This action is proceeding against Defendants Dr. Tate and Dr. Yin for deliberate indifference to a serious medical need in violation of the Eighth Amendment.

         Defendants filed an answer to the complaint on November 3, 2015.

         As previously stated, Defendants filed a motion for summary judgment on April 13, 2017. Plaintiff filed an opposition on July 24, 2017, and Defendants filed a reply on July 31, 2017.

         II.

         LEGAL STANDARD

         Any party may move for summary judgment, and the Court shall grant summary judgment if the movant shows that 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) (quotation marks omitted); Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to by the parties, but it is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

         In resolving cross-motions for summary judgment, the Court must consider each party's evidence. Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir. 2011). Plaintiff bears the burden of proof at trial, and to prevail on summary judgment, he must affirmatively demonstrate that no reasonable trier of fact could find other than for him. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Defendants do not bear the burden of proof at trial and in moving for summary judgment, they need only prove an absence of evidence to support Plaintiff's case. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010).

         In judging the evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, Soremekun, 509 F.3d at 984 (quotation marks and citation omitted), and it must draw all inferences in the light most favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted).

         In arriving at this recommendation, the Court has carefully reviewed and considered all arguments, points and authorities, declarations, exhibits, statements of undisputed facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of reference to an argument, document, paper, or objection is not to be construed to the effect that this Court did not consider the argument, document, paper, or objection. This Court thoroughly reviewed and considered the evidence it deemed admissible, material, and appropriate.

         III.

         DISCUSSION

         Defendants Drs. Tate and Yin move for summary judgment, or in the alternative, summary adjudication, on the grounds that (1) they were not deliberately indifferent to Plaintiff's serious medical needs; and (2) Plaintiff did not sustain an injury that can be attributed to the doctors' alleged conduct.

         A.Summary of Plaintiff's Complaint

         On June 11, 2013, Plaintiff was transferred to the California Correctional Facility Special Housing Unit in Tehachapi. (Compl. 4, [1] ECF No. 1.) During the intake examination, Plaintiff informed the medical staff that he had a hernia injury on the left side and testicular pain. (Id.) Plaintiff was advised that he would need to bring the issues to the attention of medical staff. (Id.)

         On June 13, 2013, Plaintiff told a nurse at the clinic that he had a hernia injury and lump that were causing testicular pain and he had been prescribed medication and referred for surgery while housed at Folsom State Prison. (Id. at 4-5.) Plaintiff was advised that he would receive pain medication that evening. (Id. at 5.) Plaintiff did not receive any pain medication and submitted a Health Care Request. (Id.)

         After being informed that he would not receive any pain medication until he was seen by a doctor, Plaintiff was seen by Dr. Thomas Bingamon on June 27, 2013. (Id. at 5.) Dr. Bingamon informed Plaintiff that his hernia surgery had been approved and that an appointment had to be made with the surgeon. (Id.) Plaintiff asked if he could receive a different pain medication because the Naproxen was not helping. (Id.) Dr. Bingamon refused to change Plaintiff's medication and told him to “hang in there.” (Id.)

         On June 30, 2013, Plaintiff filed an inmate appeal seeking a change in his pain medication. (Id. at 5.) Plaintiff saw the surgeon on July 2, 2013 and was advised that his surgery would take place within two months. (Id.)

         On July 9, 2013, Dr. Tate interviewed Plaintiff in regards to his inmate appeal. (Id. at 5.) Plaintiff told Dr. Tate that the pain medication was not helping the severe pain from the hernia and testicle; and he needed better pain control while he waited for surgery. (Id.) Dr. Tate refused to change the medication and informed Plaintiff that he would be okay. (Id.)

         On October 4, 2013, Plaintiff had still not received surgery and submitted a Health Care Request to discover the status of his surgery and complain about the hernia and testicular pain. (Id. at 5.) Plaintiff saw Dr. Tate on October 21, 2013. (Id.) Dr. Tate threatened to take Plaintiff off his Naproxen for abusing pain medications. (Id.) Plaintiff alleges that Dr. Tate refused to allow him to discuss his medical condition which was getting worse and causing more pain. (Id.)

         Plaintiff underwent surgery on December 6, 2013 and was discharged that same day. (Id. at 6.) On December 14, 2013, Plaintiff had a sneezing attack and the incision site began to swell up and cause severe pain. (Id.) Several hours later, Plaintiff was taken to the Medical Clinic and was seen by Dr. Allan J. Yin. (Id.) Dr. Yin informed Plaintiff that his sneezing had caused the mesh to come apart causing internal bleeding and surgery would be needed. (Id.) Plaintiff asked to be sent to the hospital because the pain and swelling was increasing. (Id.) Dr. Yin refused to send Plaintiff to the hospital, but prescribed two Ibuprofen for pain and sent Plaintiff back to his cell stating that he would check on Plaintiff later. (Id.) Five hours later, Plaintiff woke up soaked in blood from the incision site. (Id.) Plaintiff was taken to the hospital by ambulance. (Id.)

         On December 17, 2013, Plaintiff returned from the hospital. (Id. at 6.) The following morning Plaintiff was to be seen by Dr. Tate and told correctional officers that he was not able to walk and needed a wheelchair. (Id.) The officers told Plaintiff that they would check on a wheelchair, but never returned. (Id.) On December 19, 2013, Plaintiff was escorted to the medical clinic for an appointment. (Id.) Plaintiff saw Dr. Tate who informed Plaintiff that the only reason the incision would have reopened was if Plaintiff cut it open himself. (Id.) Dr. Tate examined the incision and told Plaintiff that the appointment was over. (Id.) Plaintiff told Dr. Tate that he was afraid to walk back to the housing unit because he had been on bed rest and could fall. (Id.) Dr. Tate told Plaintiff that if he fell the correctional officers would pick him up. (Id.) Plaintiff had to walk back to his cell “in severe agony and pain.” (Id.)

         B. Defendants' Objections to Plaintiff's Declaration

         Defendants object to Plaintiff's declaration submitted in response to their declarations. “[O]bjections to evidence on the ground that it is irrelevant, speculative, and/or argumentative, or that it constitutes an improper legal conclusion are all duplicative of the summary judgment standard itself, and are thus “redundant” and unnecessary to consider here. Burch v. Regents of Univ. of California, 433 F.Supp.2d 1110, 1119 (E.D. Cal. 2006); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Factual disputes that are irrelevant or unnecessary will not be counted.”). Thus, the Court does not consider such objections, and will only address the objections that are considered relevant and material to resolving the instant motion.

         C. Statement of Undisputed Facts

         1. At all times relevant to his claims, Plaintiff was incarcerated at California Correctional Institution (“CCI”). (ECF No. 1, Compl. at pg. 4-7; Jeffery Decl., ¶ 2, Ex. A, Dep. at 8:6-11.)

         2. On May 20, 2013, Plaintiff's primary care physician at Folsom State Prison (“Folsom”) diagnosed Plaintiff with a left inguinal hernia. Plaintiff's physician advised him to use a hernia belt and to avoid heavy lifting. (Feinberg Decl. ¶ 10, Ex. C.)

         3. Plaintiff's doctor at Folsom also submitted a referral for Plaintiff to consult with a surgeon to schedule a “routine” hernia repair surgery. On May 23, 2013, the referral for the routine surgery consult was approved at Folsom. (Feinberg Decl. ¶ 10, Ex. D.)

         4. A referral that is characterized as “routine” is one in which the service is provided within 90 calendar days of an order. (Feinberg Decl. ¶ 10, fn. 2.)

         5. On June 11, 2013, Plaintiff transferred from Folsom to CCI. (Compl. at pg. 4; Feinberg Decl. ¶ 10, Ex. E.)

         6. Upon his arrival at CCI, Plaintiff was first examined by a physician assistant on June 27, 2013. The physician assistant (“PA”) noted Plaintiff's left-sided hernia and described it as slightly tender. The PA also provided Plaintiff with a prescription for Naproxen, an anti-inflammatory. The exam note also documented that prior to his transfer to CCI, Plaintiff had been approved for a left hernia repair. The PA indicated that Specialty Services would be contacted regarding the approval. (Feinberg Decl. ¶ 10, Ex. G.)

         7. On July 2, 2013, Plaintiff consulted with off-site surgeon Michael A. Michael regarding the hernia procedure. Dr. Michael agreed to perform the surgery and issued an order for a “left inguinal hernia repair with mesh.” In his notes, Dr. Michael made no indication of surgical urgency. Nor did he recommend additional pain medication. (Feinberg Decl. ¶ 10, Exs. H, I, J; Tate Decl. ¶ 5.)

         8. Dr. Tate first examined Plaintiff on July 9, 2013. Plaintiff complained of left-sided inguinal hernia pain and pain in his right testicle. He requested morphine to replace the Naproxen he was taking and sought the status of the hernia procedure. (Feinberg Decl. ¶ 10, Ex. K; Tate Decl. ¶¶ 6-7, Ex. A.)

         9. Prior to the July 9, 2013 examination, Dr. Tate reviewed Plaintiff's medical records and learned that Plaintiff had recently been diagnosed with a left-sided hernia and that he met with a surgeon regarding an approved routine surgery repair. Dr. Tate also reviewed Plaintiff's medication profile. (Tate Decl. ¶¶ 4-5.)

         10. During the July 9, 2013 exam, Dr. Tate noted Plaintiff's abdomen was flat and normally active. He also measured the hernia and noted that it was mild to moderately tender upon palpitation. Dr. Tate also saw that Plaintiff had a small hydrocele on his right testicle. Plaintiff denied having fever, nausea, vomiting or blood in his stool. (Feinberg Decl. ¶ 10, Ex. K; Tate Decl. ¶¶ 6-7, Ex. A.)

         11. On July 9, 2013, Dr. Tate concluded that Plaintiff's condition did not medically indicate a prescription for morphine. (Tate Decl. ¶¶ 4-7, Ex. A.)

         12. At the July 9, 2013 exam, Dr. Tate told Plaintiff that he would not prescribe morphine and recommended that Plaintiff continue to take Naproxen twice a day in conjunction with the Docusate Sodium. (Feinberg Decl. ¶ 10, Ex. K; Tate Decl. ¶ 7, Ex. A.)

         13. In the July 9, 2013 consult, Dr. Tate also updated Plaintiff on the status of the hernia procedure. Dr. Tate explained that Dr. Michael had agreed to perform the hernia surgery that had been approved at Folsom and he advised Plaintiff that routine referrals may take up to three months just to schedule. (Feinberg Decl. ¶ 10, Ex. K; Tate Decl. ¶¶ 7-8, Ex. A.)

         14. Dr. Tate concluded that he had no reason to recommend upgrading the procedure from routine to priority. (Tate Decl. ¶¶ 4-8, Ex. A.)

         15. Dr. Tate next examined Plaintiff on September 6, 2013. Plaintiff requested stronger medication for hernia pain and a stool softener. During the exam, Plaintiff reported escalating pain and painful bowel movements. He also said that he had run out of the Naproxen and ...


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