United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, JUDGE
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
Plaintiff's Verified Complaint
time he filed this action in 2015, plaintiff was 38 years
old,  and claims that he cannot sit or stand
“without experiencing extremely severe pain.”
(ECF No. 1 at 8-9.) 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.)
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.)
also alleges that defendants Dr. Pfile 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.) 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.)
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.
seeks declaratory relief,  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.)
Plaintiff's Motion for Disclosure
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.
provision of the redacted version renders moot
plaintiff's motion, which is denied.
Plaintiff's Motion for Sanctions
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.)
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.”
“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).
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.
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.
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.
and importantly, defendants are correct that plaintiff may
only rebut Dr. Barnett's expert medical opinion with the
opinion of another medical expert. Because plaintiff is not a
medical doctor, his lay opinions are insufficient.
of these reasons, plaintiff's motion for sanctions is
Plaintiff's Motion to Strike Declarations
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.
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.
Defendants' Motion to Strike
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.
Plaintiff's Motion to File Sur-reply
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
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).
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.
Defendants' Motion for Summary Judgment
The Parties' Arguments
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 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.
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
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.)
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
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.)
defendants contend they are entitled to qualified immunity.
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.)
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.)
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
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.
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.)
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.)
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.)
Summary Judgment Standards
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.”
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.
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).
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).
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
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.)
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
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).
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).
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,
Undisputed Facts (“UDF”)
Plaintiff Michael Aaron Witkin is a state prisoner in the
custody of the CDCR.
all times relevant to this action, plaintiff was housed at
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.)
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.)
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.)
treatment is a challenging medical issue, especially in the
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.
clinicians are required to be familiar with the Pain
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.
Pain-management medications are generally classified as
non-opioid analgesics, neuropathic pain agents, and opioids.
Non-opioid analgesics include non-steroidal anti-inflammatory
drugs (NSAIDs), such as Motrin.
Neuropathic pain agents target nerve-based pain and include
certain anticonvulsant and antidepressant drugs.
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
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.
treating physician must stringently weigh the risks and
benefits of opioids, including the patient's co-morbid
medical, psychiatric, and substance-abuse histories.
Plaintiff played contact sports from junior high through
junior college. (Deposition of Michael Witkin (Witkin Dep.)
at 17:15-24, 20:5-21:1.)
2004, plaintiff received a back injury as the result of an
encounter with a police officer. (Witkin Dep. at ...