United States District Court, N.D. California
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT RE: DKT.
ILLSTON, UNITED STATES DISTRICT JUDGE.
Smith filed this pro se prisoner's 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 Smith. For the
reasons discussed below, summary judgment will be granted in
following facts are undisputed unless otherwise noted:
The events and omissions giving rise to this action occurred
in the time period from June 2014 through March 2015, at the
Correctional Training Facility (CTF) in Soledad, California.
At the relevant time, Smith was a prisoner at CTF.
Darrin Bright, D.O., and Rosana Lim-Javate, M.D., were on the
medical staff, and each served at times as the Chief
Physician and Surgeon at CTF. Neither Dr. Bright nor Dr.
Lim-Javate personally examined or treated Smith during the
relevant time period. Instead, their alleged liability stems
from the role of each in reviewing requests for services made
by other members of the medical staff, specifically, Dr.
Lim-Javate's denial of a request in June 2014, and Dr.
Bright's denial of two requests in early 2015. Docket No.
1 at 3. (For ease of reference, these challenged decisions
will be identified in the statement of facts as
“Decision # 1, “Decision # 2, ” and
“Decision # 3.”)
Smith's Medical Care
injured his shoulder at another prison in or about 2011 or
2012. Docket No. 1 at 3-4. He received cortisone injections
and physical therapy for his shoulder. Id. at 4.
After he arrived at CTF, Smith received cortisone injections
for his shoulder in December 2013. Id.
April 2014, Smith was examined by Dr. Friederichs, his
primary care provider, whose examination revealed that Smith
had a markedly decreased range of motion in the right
shoulder, avoided movement of the right shoulder, had
tenderness around the shoulder, and had moderate atrophy of
his right biceps. Id.; Docket No. 13-1 at 4-5. Dr.
Friederichs submitted a Request for Services
(“RFS”) for an MRI of the right shoulder, which
Dr. Lim-Javate approved on April 25, 2014. Docket No. 1 at 5;
Docket No. 17-2 at 5. The MRI was done on May 9, 2014. Docket
No. 17-4 at 15.
1, 2014, Dr. Friederichs submitted an RFS for an orthopedic
consultation on a routine basis for a rotator-cuff tear
because Smith's range of motion in his right shoulder had
decreased. Docket No. 17-2 at 6.
# 1: Dr. Lim-Javate, acting as chief physician
and surgeon on June 4, 2014, denied the June 1, 2014 RFS. Dr.
Lim-Javate explained her reasoning in her declaration:
[T]he clinical management was incomplete and I had not been
provided sufficient information about Mr. Smith's
condition to justify processing the RFS. I exercised my
medical judgment in denying this request for orthopedic
consult based on several factors. My notes show that I wanted
more information to explain Dr. Friederichs' finding of
bicep atrophy, because the MRI report showed that the long
head of the biceps tendon was intact and bicep atrophy may
not be solely caused by a rotator cuff tear. Moreover, Mr.
Smith's symptoms did not seem consistent with rotator
cuff tear. In addition, other possible causes of Mr.
Smith's complaints, such as impingement and frozen
shoulder, had not been documented as ruled out. Before an
orthopedic consult was ordered, I wanted to make sure that we
had the correct diagnosis.
No. 17-2 at 2-3. After denying this request, Dr. Lim-Javate
had nothing further to do with Smith's treatment.
Id. at 3.
August 19, 2014, Dr. Friederichs submitted another RFS
requesting an orthopedic consultation on a routine basis for
Smith's right shoulder pain. Docket No. 17-6 at 3. Dr.
Friederichs wrote that Smith reported the pain was affecting
his sleep and work duties in textiles; the x-rays were
unremarkable; corticosteroid shots were no longer effective;
Smith had limited abduction of the right shoulder to 70
degrees and elevation to 80 degrees; and Smith had passive
range of motion of abduction to 160 degrees and elevation to
160 degrees. Dr. Bright denied this RFS on August 26, 2014.
Docket No. 17-6 at 3. (Smith does not challenge this denial
in this action.) Dr. Bright explained in his declaration that
Dr. Friederichs' information suggested two possible
diagnoses, there was no clear indication of what Dr.
Friederichs wanted an orthopedic surgeon to do, and the
choice of treatment depended on the loss of function the
patient had. He further explained: “We do not put
patients at risk of surgery if they are not going to improve
their function.” Docket No. 17-6 at 3. Also, frozen
shoulders, such as that displayed by Smith, “typically
resolve on their own and do not need surgery.”
Friederichs submitted a new RFS on September 18, 2014, for an
orthopedic consultation on the basis that, contrary to
information in his previous request, the patient did
not have good passive range of motion and in fact
was getting worse. Based on this new information, Dr. Bright
approved the RFS for an orthopedic consultation on September
Kowall, an outside orthopedic surgeon, examined Smith on
October 22, 2014. See Docket No. 17-6 at 4. Dr.
Kowall recommended neurological studies prior to considering
surgery. Dr. Bright approved the requested neurological
studies. See Id. The studies were done in December
2014. The report for the studies concluded that the
“electrophysiologic findings are consistent with
moderate and chronic right suprascapular neuropathy. There is
no evidence for C5 radiculopathy.” Docket No. 22-1 at
Kowall examined Smith again on February 18, 2015. His notes
stated that Smith's “[c]ondition is multifactorial.
Needs tertiary care evaluation for potential surgical remedy
-- if any.” Docket No. 22-1 at 2.
Friederichs had a follow-up appointment with Smith on
February 20, 2015, and reviewed Dr. Kowall's notes from
February 18. Docket No. 22-1 at 13. Dr. Friederichs wrote
that Dr. Kowall had “reviewed the nerve conduction
studies and did not feel that he could help the patient with
surgery to repair his rotator cuff tear. The patient was
referred to a tertiary orthopedic center.”
Id. Dr. Friederichs' plan was to obtain a
further neurology consultation and an orthopedic consultation
at a tertiary care center. Id. Dr. Friederichs'
notes state that he explained to Smith that he would submit
the paperwork but that it was difficult to get an appointment
at a tertiary care center; he also emphasized the need to
continue the range of motion exercises. Id. at 14.
February 28, 2015, Dr. Friederichs submitted an RFS for a
“tertiary orthopedic consult.” Docket No. 17-7 at
# 2: Dr. Bright denied the February 28 RFS on
March 6, 2015. See Docket No. 17-7 at 21 (progress
notes). Dr. Bright explained his reasoning in his
[T]he procedure that Dr. Friederichs was seeking is a very
rare procedure and most orthopedic surgeons do not do it. We
knew that Mr. Smith had a suprascapular nerve injury, but if
it was due to trauma, surgery does not help and we would not
want to risk surgical complications with no chance of
improvement. So I needed to know more information before I
could approve the RFS. I communicated that need in the
“Denied RFS” notes dated March 6, 2015.
Docket No. 17-6 at 4.
Friederichs then submitted an RFS for a surgical consult on