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Witkin v. Lotersztain

United States District Court, E.D. California

February 23, 2018

MICHAEL AARON WITKIN, Plaintiff,
v.
MARIANA LOTERSZTAIN, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN, JUDGE

         I. Introduction

         Plaintiff is a state prisoner, proceeding pro se and in forma pauperis. Defendants' motion for summary judgment, and various related motions and a request, are before the court. As discussed below, plaintiff's request for sua sponte summary judgment in his favor should be denied, and defendants' motion for summary judgment should be granted.

         II. Plaintiff's Verified Complaint

         At the time he filed this action in 2015, plaintiff was 38 years old, [1] and claims that he cannot sit or stand “without experiencing extremely severe pain.” (ECF No. 1 at 8-9.)[2] When housed at Pleasant Valley State Prison (“PVSP”), plaintiff claims his doctor diagnosed plaintiff with a spinal injury resulting in nerve damage and prescribed nerve pain medication oxcarbazepine, and told plaintiff that if his condition did not improve, he would need an MRI to determine why the pain is so severe. (ECF No. 1 at 6.)

         Plaintiff states the nerve pain medication provided limited relief, and his mobility was still impaired. On September 7, 2012, plaintiff was transferred to California State Prison, Solano (“CSP-Solano”). Despite presenting with complaints of extreme pain, plaintiff contends that his primary care physician (“PCP”) at CSP-Solano, defendant Dr. Lotersztain, refused to prescribe adequate pain relief, to perform an MRI to determine the etiology of plaintiff's pain, or to refer plaintiff to an appropriate specialist. In addition, at various appointments, plaintiff declares that Dr. Lotersztain told plaintiff: “I know you're in severe pain, but the thing is we're just not going to spend any money to do anything about it.” (ECF No. 1 at 8, 9.) Or, the pain is “part of being in prison.” (ECF No. 1 at 9.) On February 4, 2015, when plaintiff allegedly presented with extremely severe pain, plaintiff claims Dr. Lotersztain acted exasperated, and immediately declared that “I'm not gonna give you an MRI. . . . I know your mobility is impaired and I know you're in a great deal of pain. Look, I don't care, it[']s part of the penalty for your crimes.” (ECF No. 1 at 10.)

         Plaintiff also alleges that defendants Dr. Pfile[3] and Dr. Kuersten denied plaintiff's administrative appeals seeking pain relief, and failed to obtain medical treatment for plaintiff, despite having knowledge that “extreme departures from the standard of care pervaded [CSP-Solano's] medical services operation.” (ECF No. 1 at 8.) In one appeal, plaintiff notes that although staff claims plaintiff is in exceptional physical fitness, they fail to address those times he was “completely immobilized by his back injury and unable to get up off the floor, much less walk.” (ECF No. 1 at 20.)[4] Plaintiff claims staff “never diagnosed the problem [or gave] a reasonable explanation for why [plaintiff] has been suffering such severe pain at his fairly young age.” (Id.)

         In his Eighth Amendment cause of action, plaintiff claims that Dr. Lotersztain's refusal to treat plaintiff's serious medical need caused the wanton and unnecessary infliction of pain, causing him 18 months of extremely severe pain. (ECF No. 1 at 10.) Plaintiff contends that defendants Lotersztain, Pfile and Kuersten had a duty to order an MRI to rule out or confirm disc herniation and refer plaintiff to a neurologist or orthopedic specialist, but refused to do so. (Id.)

         Plaintiff seeks declaratory relief, [5] as well as money damages for the alleged violation of his Eighth Amendment rights, and includes various state law claims against Dr. Lotersztain. (ECF No. 1 at 4-5; 10-12; 7 at 4.)

         III. Related Motions

         A. Plaintiff's Motion for Disclosure

         On May 18, 2017, plaintiff filed a motion for order requiring disclosure of post-deposition communications between defense counsel and the expert, Dr. Barnett. On July 10, 2017, defendants filed an opposition to the motion; however, without waiving their objection, defendants provided plaintiff with a redacted version of all post-deposition communications between defense counsel and Dr. Barnett. Plaintiff did not file a reply.

         The provision of the redacted version renders moot plaintiff's motion, which is denied.

         B. Plaintiff's Motion for Sanctions

         On June 13, 2017, plaintiff filed a motion for sanctions, claiming that Dr. Barnett's amended declaration was submitted in bad faith. Plaintiff seeks exclusion of the declaration, and monetary sanctions. Specifically, plaintiff states that Dr. Barnett submitted his amended declaration after his March 28, 2017 deposition, and now concludes that “[d]efendants['] treatment of Plaintiff's pain complaints was appropriate and consistent with all authoritative standards of care.” (ECF No. 76 at 1, citing Barnett Am. Decl. at ¶ 12.) Plaintiff argues that such conclusion is “directly contradicted by his deposition testimony, ” and is “therefore submitted in bad faith.” (Id.) Plaintiff contends that because Dr. Barnett repeatedly testified that the standard of care requires that patients suffering neurological symptoms be referred to neurology, that Dr. Barnett's testimony that plaintiff suffered from neurological symptoms, required that plaintiff be referred to neurology contradicts the doctor's conclusion that the medical treatment met the standard of care, rendering the amended declaration a “sham affidavit” which precludes this court's consideration on summary judgment, citing see Yeager v. Bowlin, 693 F.3d 1076, 1080-81 (9th Cir. 2011). (ECF No. 76 at 3.) Plaintiff contends that because the amended declaration is a sham affidavit, defendants cannot use the amended declaration to support their motion for summary judgment. (Id.)

         In opposition, defendants contend that there is no legal basis to exclude Dr. Barnett's declarations because he is a medical expert who reviewed plaintiff's case and rendered his expert opinion regarding the care provided by defendants. (ECF No. 77 at 2.) Plaintiff's disagreement with Dr. Barnett's conclusions is insufficient to exclude Dr. Barnett's declarations because only a medical expert can refute Dr. Barnett's conclusions. In any event, defendants argue that Dr. Barnett's expert opinion was unchanged by the amended declaration, which only added a couple of footnotes reiterating his deposition testimony for clarification. (ECF No. 77 at 3.) Further, defendants contend that despite plaintiff's two cited instances where he complained of neurological symptoms, Dr. Barnett testified that such symptoms only equate to a temporary impairment, not requiring referral to a specialist. (Id., citing Barnett Dep. at 84-85; 111; 253.) Moreover, defendants argue that Dr. Barnett opined that physical therapy is “the only modality proven to improve chronic low back pain. Narcotics don't make it better and surgery is not a good solution either.” (Id., citing Barnett Dep. at 253-54.) Because plaintiff said physical therapy makes it better, Dr. Barnett testified that he “would not order an MRI, ” or a “CT because we have a diagnosis and we have a treatment. We have chronic low back pain of the garden variety that responds to physical therapy.” (Id.)

         The “sham affidavit” rule provides that a “party cannot create an issue of fact by an affidavit contradicting . . . prior deposition testimony.” Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012) (quotation marks and citation omitted). To apply the rule, the court must “make a factual determination that the contradiction [is] actually a sham” and conclude that the inconsistency is “clear and unambiguous.” Van Asdale v. Int'l Game Tech., 577 F.3d at 989, 998 (9th Cir. 2009). A declaration that “elaborates upon, explains, or clarifies prior testimony” does not trigger exclusion. Id. (citation omitted).

         Plaintiff's motion is not well-taken. First, as argued by defendants, the changes made by Dr. Barnett were not substantive. Specifically, both declarations contain paragraph 12 in which Dr. Barnett declares that “defendants' treatment of plaintiff's pain complaints was appropriate and consistent with all authoritative standards of care.” (ECF Nos. 30-7 at 16; 63-1 at 16.) The footnotes Dr. Barnett added reiterated his deposition testimony and merely clarified the declaration.

         Second, plaintiff argues that his symptoms of numbness and sensation loss in his right leg, and muscle spasms on August 1, 2013 and December 2, 2014 (ECF No. 72 at 53), constitute neurological symptoms requiring referral to a specialist, and because Dr. Barnett testified that the standard of care required a patient suffering neurological symptoms to be referred to a specialist, Dr. Barnett attempts to mislead the court in his amended declaration. However, review of Dr. Barnett's deposition confirms that he distinguished between a “chronic impairment” and a “momentary impairment, ” identifying the nature of plaintiff's impairment as momentary . (Barnett Dep. at 111.) Dr. Barnett testified that he would be inclined to refer someone to specialty care where the specialty care would be of benefit: “I'm looking at a patient who has a condition that I believe a specialist can help and should help, and that would be someone who is notably impaired with a disease or a condition that will require a specialist's assistance to improve.” (Barnett Dep. at 84-85.) Although Dr. Barnett testified that plaintiff had some numbness and loss of sensation in his right leg, he would not order an MRI or surgery because plaintiff was improving with physical therapy, and physical therapy was the proper treatment. (Barnett Dep. 253-54.) Such testimony does not support plaintiff's view that the deposition testimony contradicts Dr. Barnett's declaration.

         In addition, Dr. Barnett's review of plaintiff's medical records showed plaintiff “continued to be physically active. He continued to exercise.” (Barnett Dep. at 253.) Dr. Barnett confirmed plaintiff's complaints in the record, including frequent complaints that his acute back pain was at times worse. (Id. at 255.) But Dr. Barnett testified that “overall [plaintiff] does not demonstrate -- even when he does say he has lots of pain, he doesn't demonstrate a persistent functional impairment.” (Id. at 255-56.) The records document that plaintiff “walks with no discomfort, walks with ease, no physical impairment. He's doing push-ups, which is hard to do if you have significant -- which is impossible really if you have significant low back disease because you have to support your entire torso with your low back when you do pushups.” (Id. at 256.) In light of Dr. Barnett's deposition testimony, and review of his declarations, the undersigned does not find a contradiction between Dr. Barnett's deposition testimony and his declarations, or that the inconsistency plaintiff alleges is clear and unambiguous.

         Finally, and importantly, defendants are correct that plaintiff may only rebut Dr. Barnett's expert medical opinion with the opinion of another medical expert.[6] Because plaintiff is not a medical doctor, his lay opinions are insufficient.

         For all of these reasons, plaintiff's motion for sanctions is denied.

         C. Plaintiff's Motion to Strike Declarations

         In his opposition, plaintiff moves to strike both declarations by Dr. Barnett. (ECF No. 72 at 51.) Plaintiff argues that Dr. Barnett's declarations are “conclusory and have no evidentiary value.” (Id. at 51.) However, Dr. Barnett graduated from Harvard Medical School in 1975, is licensed to practice medicine in California, is board-certified in family medicine, and has practiced within the correctional health care field since 2007. (ECF No. 30-7 at 1-2, 18.) Dr. Barnett provided an expert medical opinion based on his training and expertise, review of plaintiff's extensive medical records, deposition, and complaint, as well as the discovery responses provided in this action, and the June 1, 2015 screening order. Dr. Barnett identified the medical records he found pertinent. Plaintiff provided no legal authority for his claim that only a neurologist could provide an expert opinion in this case. Moreover, as a lay person, plaintiff cannot refute Dr. Barnett's expert medical opinion. Plaintiff's motion to strike Dr. Barnett's declarations is denied.

         Plaintiff also seeks to strike portions of defendants' declarations. However, as medical doctors, each defendant is capable of rendering a medical opinion as to plaintiff's diagnosis and proper treatment. While plaintiff may disagree with their diagnoses, such disagreement provides no basis to strike their declarations. Plaintiff's motion to strike portions of defendants' declarations is also denied.

         D. Defendants' Motion to Strike

         Defendants' motion to strike plaintiff's Exhibits A, B, C and D, which are health care appeals and responses filed after this lawsuit was filed, is granted. The court has not considered such exhibits because plaintiff's administrative appeals filed after the instant action was filed are not relevant to the instant motion.

         E. Plaintiff's Motion to File Sur-reply

         On July 18, 2017, plaintiff filed a motion for leave to file a sur-reply to defendants' reply, along with his sur-reply. (ECF Nos. 80, 80-1.) Defendants opposed the motion, arguing there is no valid reason to file a sur-reply. Plaintiff filed a reply.

         The Local Rules do not authorize the routine filing of a sur-reply. Nevertheless, a district court may allow a sur-reply “where a valid reason for such additional briefing exists, such as where the movant raises new arguments in its reply brief.” Hill v. England, 2005 WL 3031136, at *1 (E.D. Cal. 2005); accord Norwood v. Byers, 2013 WL 3330643, at *3 (E.D. Cal. 2013) (granting the motion to strike the sur-reply because “defendants did not raise new arguments in their reply that necessitated additional argument from plaintiff, plaintiff did not seek leave to file a sur-reply before actually filing it, and the arguments in the sur-reply do not alter the analysis below”), adopted, 2013 WL 5156572 (E.D. Cal. 2013).

         Here, defendants did not raise new arguments in the reply brief, and plaintiff's arguments in his sur-reply do not impact the court's analysis. For these reasons, plaintiff's motion to file a sur-reply (ECF No. 80-1) is denied.

         IV. Defendants' Motion for Summary Judgment

         A. The Parties' Arguments

         1. Defendants' Positions

         Defendants contend that Dr. Lotersztain's decision to treat plaintiff with non-narcotic medications, not to perform an MRI, not to refer plaintiff to a back specialist, and not to refer plaintiff for surgery was medically acceptable under the circumstances. Plaintiff's initial back injury occurred about 12 years ago, during an altercation with a police officer. Plaintiff recovered from the injury, but began having episodes of acute lower back pain. Defendants argue that plaintiff was seen by Dr. Lotersztain and CSP-Solano medical staff numerous times regarding his complaints of lower back pain, yet received the same diagnosis of chronic lower back pain, most likely caused by degenerative disc disease, by multiple physicians at PVSP, CSP-Solano, and outside medical facilities. Plaintiff was provided with multiple x-rays and diagnostic tests which confirmed that he presented with no red flags[7] requiring an MRI or consultation with a specialist for surgery. Defendants contend that plaintiff's primary complaint throughout his visits was that, at almost 40 years old, he is unable to play sports at the same elite level that he claims he was once able to do. Plaintiff is able to work out vigorously, “advance his game, ” play sports, walk, run, and perform his regular daily activities with little to no difficulty. He was observed at every appointment as being in no objectively observable pain, being able to perform all diagnostic tests without being in any objectively observable pain, being able to walk, and sit up and down without difficulty. Defendants argue that it is not defendants' constitutional duty to return plaintiff to the same level of athleticism he had when he was 20 years old.

         In addition, defendants argue that plaintiff's history of drug abuse and the medical records do not indicate that opiates or stronger pain medication was medically necessary. The medical examinations did not show objective evidence of severe disease or impairment, and was confirmed by diagnostic tests. Defendants contend that plaintiff's disagreement with his medical treatment does not establish deliberate indifference.

         Further, defendants contend that Dr. Lotersztain did not believe that treating plaintiff's pain with non-narcotics and without surgery posed a risk to his health or safety. Dr. Lotersztain saw plaintiff multiple times, performed multiple diagnostic and medically appropriate tests, but found plaintiff did not display any red flags making him a possible candidate for surgery. All of the defendants and Dr. Barnett declare that Dr. Lotersztain's treatment of plaintiff's chronic pain was appropriate and in line with prevailing medical standards. (ECF No. 30-2 at 35.) Moreover, Dr. Barnett testified that the decisions to treat plaintiff with non-narcotics and without surgery did not pose a substantial risk to plaintiff's health. Even assuming Dr. Loterstzain told plaintiff that his pain was “a part of prison life, ” such claim does not show a lack of medical judgment or disregard of plaintiff's medical needs, and does not create a triable issue of material fact given the medical evidence presented. (ECF No. 30-2 at 36.)

         Defendants argue that the denial of plaintiff's grievances by Dr. Kuersten and Dr. Pfile does not state a constitutional violation because he has no constitutional right to a particular grievance procedure. In addition, Dr. Pfile was not required to take additional steps because Dr. Pfile conducted a full review of plaintiff's medical records and complaints and determined Dr. Lotersztain's diagnosis was appropriate, and an MRI, back surgery and opiates were not medically necessary or within the standard of care. Because Dr. Kuersten's role was primarily administrative, ensuring all documents were completed, and the medical opinions of the treating doctor and the second level appeals reviewer aligned and there was no apparent departure from medical standards, defendants argue that Dr. Kuersten was not required to review the medical records or take additional steps.

         Defendants argue that Dr. Lotersztain did not commit medical negligence or malpractice because her decision to treat plaintiff according to prevailing medical standards and not provide him with an MRI, referral to a specialist, back surgery, or opiates, was the proper course of treatment in light of diagnostic testing and objective observations that plaintiff presented with no red flags and his condition did not warrant treatment according to his requests. Defendants argue that, contrary to proper treatment plans, plaintiff chose to continue working out vigorously and playing contact sports, re-injuring his back and placing him in discomfort. (ECF No. 30-2 at 38.)

         Finally, defendants contend they are entitled to qualified immunity.

         In support of their motion, defendants provided, inter alia, declarations from each defendant, as well as the declaration and amended declaration of their expert witness, Dr. Barnett. (ECF Nos. 30-4, 30-5, 30-6, 30-7, 63-1.)

         2. Plaintiff's Opposition

         Plaintiff argues that he suffered a devastating spinal injury on December 4, 2012, for which all defendants treated him. (ECF No. 72 at 10.) Specifically, he claims that on December 4, 2012, he suffered a “rupture of a nucleus pulposus (central portion of the invertebral disc) in his lumbar spine, a debilitating spinal injury, which causes the nerve root disorders radiculopathy and sciatica, dramatically reducing mobility and function, and causing excruciating, constant pain. (ECF No. 72 at 7.) Plaintiff claims his symptoms were obvious, even to laypersons, but despite awareness of a possible catastrophic spinal cord injury, each defendant refused to verify that plaintiff's neurological function was intact, and refused to refer him to a specialist, or provide him with adequate pain medication, subjecting plaintiff to almost four years of “extreme, extreme level” pain, and loss of mobility and function. (ECF No. 72 at 7-8, citing Witkin Dep. 55:24-25.) Plaintiff contends that Dr. Kuersten and Dr. Pfile were deliberately indifferent to plaintiff's need for a referral to neurology and an MRI at the time he sustained the spinal injury. Plaintiff objects that Dr. Barnett is not an expert in neurology or “a scientist of the human central nervous system.” (ECF No. 72 at 5.)

         Plaintiff maintains that defendants failed to provide him with adequate pain medication, resulting in his having to endure “completely unmanaged pain.” (ECF No. 72 at 7-8.) Plaintiff argues that a jury could find defendants liable based solely on the four medical encounters on December 12, 2012, January 9, 2013, April 4, 2013, and June 11, 2013. (ECF No. 72 at 55.) Plaintiff contends that despite presenting with overt indications of progressive neurological deficits, defendants purposefully disregarded his symptoms. (ECF No. 72 at 56.)

         Plaintiff contends that by June of 2013, defendant Lotersztain suspected plaintiff was suffering from a lumbar disc herniation and purposefully disregarded plaintiff's request for an MRI, and that by 2015, plaintiff was still effectively disabled and off work from January to May due to ongoing and worsening neurological symptoms.

         Plaintiff argues that Dr. Lotersztain treated plaintiff “worse than an animal” because although she suspected him of suffering from a herniated disc, knowing it is excruciatingly painful, she “took pleasure in watching plaintiff suffer pain and dramatic mobility loss.” (ECF No. 72 at 56.) Plaintiff asked her for narcotic pain medication for over two years at almost every encounter, noting Dr. Lotersztain concedes there were “at least ‘thirty-five' encounters.” (ECF No. 72 at 56.) Plaintiff argues that defendants' current claim that the denial of narcotic pain medication was based on plaintiff's history of substance abuse is unsupported because there is no evidence that Dr. Lotersztain was even aware of such history or that she took such history into account when she decided not to provide such medication. (ECF No. 72 at 56.) Plaintiff argues that even if the defendants had made a conscious decision to let plaintiff's spinal injury heal on its own over a four year period, such decision should have been made by a neurosurgeon. (Id.)

         In support of his opposition, plaintiff provided his own declaration and supplemental declaration, as well as the declarations of his mother, and several inmates. (ECF No. 72 at 63-77; 122-24; 172-86.)

         3. Defendants' Reply

         Defendants counter that plaintiff's opposition is based on his belief that “multiple nurses, doctors, and physical therapists at [CSP-Solano] and at outside hospitals falsified medical records and medical encounters with plaintiff in order to deny him proper treatment, ” but offers no evidence to support such accusations. (ECF No. 77 at 1.) Defendants contend that the medical records and diagnosis show plaintiff was provided with excellent medical care, and was not a candidate for opiates or surgery, and that every single medical doctor who evaluated plaintiff's case determined plaintiff suffers from chronic low back pain and degenerative disc disease. (ECF No. 77 at 4.) Plaintiff's desire to be returned to the “first class athlete” status he claims he once enjoyed is not guaranteed under the Eighth Amendment, and his attempt to dispute every medical record over a period of years is not sufficient to raise a genuinely disputed material fact. Plaintiff failed to present any competent expert testimony demonstrating that defendants were professionally negligent or deliberately indifferent, and his unqualified opinions amount to a mere difference of opinion, which is insufficient to establish deliberate indifference or professional negligence under California law. (ECF No. 77 at 2.)

         B. Summary Judgment Standards

         Summary judgment is appropriate when the moving party “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).

         Under summary judgment practice, the moving party “initially bears the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by “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 by showing that such materials “do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at trial, “the moving party need only prove that there is an absence of evidence to support the nonmoving party's case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325.); see also Fed.R.Civ.P. 56(c)(1)(B). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as whatever is before the district court demonstrates that the standard for entry of summary judgment . . . is satisfied.” Id. at 323.

         If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed.R.Civ.P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

         In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'” Matsushita, 475 U.S. at 587 (citations omitted).

         “In evaluating the evidence to determine whether there is a genuine issue of fact, ” the court draws “all reasonable inferences supported by the evidence in favor of the non-moving party.” Walls v. Central Costa County Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita, 475 U.S. at 587 (citation omitted).

         By contemporaneous notice provided on April 8, 2016 (ECF No. 30-1), plaintiff was advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). Also, the court earlier provided Rand notice on July 6, 2015. (ECF No. 13 at 3-4, 6.)

         C. Legal Standards

         1. Eighth Amendment

         While the Eighth Amendment of the United States Constitution entitles plaintiff to medical care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference to an inmate's serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Plaintiff “must show (1) a serious medical need by demonstrating that failure to treat [his] condition could result in further significant injury or the unnecessary and wanton infliction of pain, ” and (2) that “the defendant's response to the need was deliberately indifferent.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

         To establish “deliberate indifference” to such a need, the prisoner must demonstrate: “(a) a purposeful act or failure to respond to a prisoner's pain or possible medical need, and (b) harm caused by the indifference.” Jett, 439 F.3d at 1096. Deliberate indifference “may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care.” Id. (citations omitted). The defendant must have been subjectively aware of a serious risk of harm and must have consciously disregarded that risk. See Farmer v. Brennan, 511 U.S. 825, 845 (1994). An “isolated exception” to the defendant's “overall treatment” of the prisoner does not state a deliberate indifference claim. Jett, 439 F.3d at 1096. Similarly, “mere malpractice, or even gross negligence” in the provision of medical care does not establish a constitutional violation. Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990); see also Farmer, 511 U.S. at 835 (deliberate indifference is “a state of mind more blameworthy than negligence” and “requires ‘more than ordinary lack of due care for the prisoner's interests or safety'”) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)); Wilhelm, 680 F.3d at 1123 (a “negligent misdiagnosis” does not state a claim for deliberate indifference).

         In addition, “[a] difference of opinion between a physician and the prisoner -- or between medical professionals -- concerning what medical care is appropriate does not amount to deliberate indifference.” Snow, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)); Wilhelm, 680 F.3d at 1122-23 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, plaintiff “must show that the course of treatment the doctors chose was medically unacceptable under the circumstances and that the defendants chose this course in conscious disregard of an excessive risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation marks omitted). Deliberate indifference may be found if defendants “deny, delay, or intentionally interfere with [a prisoner's serious need for] medical treatment.” Hallet v. Morgan, 296 F.3d 732, 734 (9th Cir. 2002).

         In order to prevail on a claim involving defendants' choices between alternative courses of treatment, a prisoner must show that the chosen treatment “was medically unacceptable under the circumstances” and was chosen “in conscious disregard of an excessive risk to plaintiff's health.” Jackson, 90 F.3d at 332. In other words, so long as a defendant decides on a medically acceptable course of treatment, his actions will not be considered deliberately indifferent even if an alternative course of treatment was available. Id. 2. State Law Negligence Claim A public employee is liable for injury to a prisoner “proximately caused by his negligent or wrongful act or omission.” Cal. Gov't Code § 844.6(d). Under California law, “‘[t]he elements of negligence are: (1) defendant's obligation to conform to a certain standard of conduct for the protection of others against unreasonable risks (duty); (2) failure to conform to that standard (breach of duty); (3) a reasonably close connection between the defendant's conduct and resulting injuries (proximate cause); and (4) actual loss (damages).'” Corales v. Bennett, 567 F.3d 554, 572 (9th Cir. 2009) (quoting McGarry v. Sax, 158 Cal.App.4th 983, 994 (2008)).

         D. Undisputed Facts[8] (“UDF”)

         Background

         1. Plaintiff Michael Aaron Witkin is a state prisoner in the custody of the CDCR.

         2. At all times relevant to this action, plaintiff was housed at CSP-Solano.

         3. Since June of 2013, defendant Dr. Lotersztain was plaintiff's primary care physician at CSP-Solano. (ECF No. 1 at 5; Lotersztain Decl. at ¶¶ 3, 7.)

         4. At all relevant times, defendant Dr. Pfile was a Chief Physician and Surgeon at CSP-Solano, and reviewed plaintiff's health care appeal log numbers SOL HC 14038941 and SOL-HC-13038309 at the second level of review. (Mulligan-Pfile Decl. (hereafter “Pfile Decl.”) at ¶1; ECF No. 1 at 32.) From approximately September 7, 2012, to December 13, 2012, Dr. Pfile was plaintiff's primary care physician. (Pfile Decl. at ¶ 4.) Dr. Pfile also saw plaintiff on April 4, 2013, while temporarily covering clinic. (ECF No. 72 at 245.)

         5. At all relevant times, defendant Kuersten was a Chief Medical Executive at CSP-Solano, and reviewed Dr. Pfile's decision concerning plaintiff's health care appeal log number SOL HC 14038941 at the second level of review. Dr. Kuersten also treated plaintiff on occasion. See, e.g., ECF No. 30-9 at 12, 19-21; Pl.'s Bates No. 41 (ECF No. 72 at 190); 72 at 224.)

         Pain Management

         6. Pain treatment is a challenging medical issue, especially in the correctional setting.

         7. California's Prison Health Care Services (“CPHCS”) has developed pain-management guidelines to provide clinicians with a standardized framework to address pain problems in their patients. The guidelines provide clinical and decision-support information for the management of acute and chronic pain, including the use of opioid medications like methadone. The guidelines are periodically reviewed and revised to reflect current scientific information and outcome data.

         8. CDCR clinicians are required to be familiar with the Pain Management Guidelines.

         9. Under the guidelines, the primary focus of pain management is to preserve or restore a patient's functional status sufficient to allow the patient to perform the activities of daily living and participate in facility programming.

         10. Pain-management medications are generally classified as non-opioid analgesics, neuropathic pain agents, and opioids.

         11. Non-opioid analgesics include non-steroidal anti-inflammatory drugs (NSAIDs), such as Motrin.

         12. Neuropathic pain agents target nerve-based pain and include certain anticonvulsant and antidepressant drugs.

         13. Opioids (narcotics) are the chronic-pain treatment of last resort. This is because evidence supporting the effectiveness of opioids for long-term treatment of non-cancer chronic pain is limited, and opioids are associated with potentially serious harm, including adverse medical events and abuse potential.

         14. Therefore, the use of opioids is appropriate for chronic-pain management only where (1) there is ongoing objective evidence of severe disease; and (2) the disease prevents the patient from performing the activities of daily living.

         15. The treating physician must stringently weigh the risks and benefits of opioids, including the patient's co-morbid medical, psychiatric, and substance-abuse histories.

         Plaintiff's Medical History

         16. Plaintiff played contact sports from junior high through junior college. (Deposition of Michael Witkin (Witkin Dep.) at 17:15-24, 20:5-21:1.)

         17. In 2004, plaintiff received a back injury as the result of an encounter with a police officer. (Witkin Dep. at ...


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