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Hunter v. White

United States District Court, E.D. California

May 23, 2018

DEMONDZA HUNTER, Plaintiff,
v.
W. WHITE, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT (ECF NOS. 40, 41.) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS

          GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Demondza Hunter (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff's Third Amended Complaint filed on July 18, 2016, against sole defendant Physician Assistant Clement Ogbuehi (“Defendant”), on Plaintiff's claims for inadequate medical care under the Eighth Amendment.[1] (ECF No. 23.)

         Currently before the court are the parties' cross-motions for summary judgment. For the reasons set forth below, the court recommends that Plaintiff's motion for summary judgment be denied, and Defendant's motion for summary judgment be granted.

         II. PROCEDURAL BACKGROUND

         On September 5, 2017, defendant Ogbuehi filed a motion for summary judgment, or in the alternative, for partial summary judgment.[2] (ECF No. 40.) On September 11, 2017, Plaintiff filed a cross-motion for partial summary judgment. (ECF No. 41.) On September 29, 2017, Defendant filed an opposition to Plaintiff's cross-motion. (ECF No. 44.) On November 15, 2017, Plaintiff filed a notice of non-opposition to Defendant's motion. (ECF No. 47.) On November 17, 2017, Defendant filed objections to Plaintiff's notice of non-opposition, which the court addressed in its May 7, 2018 order. (ECF No. 53.) The cross-motions are deemed submitted. Local Rule 230(l).

         III. SUMMARY JUDGMENT 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 School Dist., 658 F.3d 954, 960 (9th Cir. 2011), cert. denied, 132 S.Ct. 1807. 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. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010).

         In judging the evidence at the summary judgment stage, the court may not make credibility determinations or weigh conflicting evidence, Soremekun, 509 F.3d at 984 (9th Cir. 2007) (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). The court determines only whether there is a genuine issue for trial. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted).

         Because this court must liberally construe pro se pleadings, the arguments and evidence submitted in support of Plaintiff's cross-motion for summary judgment, (ECF No. 41), will be considered in tandem with, and as part of, Plaintiff's opposition to Defendant's motion for summary judgment.

         In arriving at these findings and recommendations, the court 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.

         IV. DEFENDANT'S EVIDENTIARY OBJECTIONS

         On September 29, 2017, Defendant filed evidentiary objections to twenty-one of the assertions in Plaintiff's declaration on grounds of relevance, hearsay, misstatement of documents, and lack of personal knowledge. (ECF No. 43.)

         In a motion for summary judgment, “a party does not necessarily have to produce evidence in a form that would be admissible at trial.” See Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001). “Rule 56[(c)] requires only that evidence ‘would be admissible', not that it presently be admissible.” Burch v. Regents of Univ. of Cal., 433 F.Supp.2d 1110, 1120 (E.D. Cal. 2006); see also Comite de Jornaleros de Redondo Beach, 657 F.3d at 964 n.7 (“Rule 56 is precisely worded to exclude evidence only if it's clear that it cannot be presented in an admissible form at trial.”) Thus, “[t]he focus is on the admissibility of the evidence's contents, not its form.” Estate of Hernandez-Rojas ex rel. Hernandez v. United States, 62 F.Supp.3d 1169, 1174 (S.D. Cal. 2014) (citing Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 846 (9th Cir. 2004)).

         While a court will consider a party's evidentiary objections to a motion for summary judgment, “[o]bjections such as lack of foundation, speculation, hearsay and relevance are duplicative of the summary judgment standard itself.” All Star Seed v. Nationwide Agribusiness Ins. Co., No. 12CV146 L BLM, 2014 WL 1286561, at *16-17 (S.D. Cal. Mar. 31, 2014) (citing Burch, 433 F.Supp.2d at 1119-20; see also Comite de Jornaleros de Redondo Beach, 657 F.3d at 964 n.7 (“[Rule] 56(c)(2) permits a party to ‘object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence' ” (quoting Fed.R.Civ.P. 56)).

         The court declines to address each of Defendant's objections, and will instead grant or deny an objection as needed for this order. The court finds Defendant's hearsay objections to be “boilerplate recitations of evidentiary principles or blanket objections without analysis applied to specific items of evidence, ” which should be rejected. Stonefire Grill, Inc. v. FGF Brands, Inc., 987 F.Supp.2d 1023, 1033 (C.D. Cal. 2013) (quoting Doe v. Starbucks, Inc., 2009 WL 5183773, at *1 (C.D. Cal. Dec. 18, 2009)). Thus, the court will address any specific objections as needed for its ruling on these summary judgment motions. Otherwise, the evidentiary objections are denied as unnecessary to address.

         V. SUMMARY OF ALLEGATIONS IN THE THIRD AMENDED COMPLAINT [3]

         Plaintiff is currently incarcerated at the California State Prison-Sacramento in Represa, California. Plaintiff's claims in the operative Third Amended Complaint arose while he was incarcerated at the California Substance Abuse Treatment Facility (SATF) in Corcoran, California. Plaintiff brings Eighth Amendment medical claims against defendant Physician Assistant Clement Ogbuehi, his primary care provider at SATF.

         Plaintiff alleges that defendant Ogbuehi denied him access to medical care. From August 25, 2011, through December 12, 2012, Plaintiff repeatedly submitted Health Care Services Request Forms complaining of low back pain, pain in back of his right thigh, right buttock pain, and pinching sensations with walking, numbness, and muscle contractions, all which interfere with his daily activities and sleep at night. From September 8, 2011, through November 8, 2012, defendant Ogbuehi conducted at least six follow-up medical visits concerning Plaintiff's prior spine condition dating back to 1987. Defendant Ogbuehi ignored Plaintiff's pleas to investigate his current complaints. During a visit on April 19, 2012, defendant Ogbuehi told Plaintiff that if he had not snitched on Ogbuehi's co-workers, Ogbuehi would have investigated Plaintiff's medical complaints. Defendant Ogbuehi did not have any training in neurological conditions diagnoses, and there was no available doctor with such training at SATF, so defendant Ogbuehi would have had to complete a referral for services to have a doctor outside of SATF investigate Plaintiff's medical complaints. In addition, on May 30, 2012, defendant Ogbuehi prescribed the medication Naproxen for Plaintiff based on Plaintiff's prior medical condition, notwithstanding that Plaintiff's blood count test disclosed a diagnosis indicative of internal bleeding caused by Naproxen. On August 2, 2012, defendant Ogbuehi himself made a diagnosis of “thrombocytopenia, ” which is internal bleeding caused by Naproxen, but continued to prescribe Naproxen to Plaintiff. (ECF No. 23 at 24:11-15.) On November 8, 2012, defendant Ogbuehi finally stopped the Naproxen due to his diagnosis.

         Plaintiff suffered from pain and inability to attend recreational yard activities for more than two years. On December 20, 2013, Dr. Shahram Ehteshami [not a defendant], Neurosurgeon, diagnosed Plaintiff with L3-4 broad disk bulge and L4-5 broad protrusion, causing effect upon the nerve roots. Dr. Eteshami recommended surgery by a qualified doctor. Plaintiff lost full range of motion at the pelvic/right hip, suffered from internal bleeding from May 30, 2012 to November 8, 2012, and was diagnosed and treated for major depression and anxiety. Plaintiff has irreparable neurological damage due to his medical complaints being uninvestigated and untreated for two years. Plaintiff seeks injunctive relief and compensatory damages.

         VI. EIGHTH AMENDMENT MEDICAL CLAIM

         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). Deliberate indifference is shown by “(a) a purposeful act or failure to respond to a prisoner's pain or possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d at 985 (citation and quotation marks omitted), Wilhelm, 680 F.3d at 1122. Deliberate indifference may be manifested “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. Where a prisoner is alleging a delay in receiving medical treatment, the delay must have led to further harm in order for the prisoner to make a claim of deliberate indifference to serious medical needs. McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997), (citing Shapely v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985)).

         “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, ' but that person ‘must also draw the inference.'” Id. at 1057 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994). “‘If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk.'” Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A showing of medical malpractice or negligence is insufficient to establish a constitutional deprivation under the Eighth Amendment.” Id. at 1060. “[E]ven gross negligence is insufficient to establish a constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)).

         “A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (internal citation omitted). To prevail, a plaintiff “must show that the course of treatment the doctors chose was medically unacceptable under the circumstances . . . and . . . that they chose this course in conscious disregard of an excessive risk to plaintiff's health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted).

         VII. DEFENDANT'S UNDISPUTED FACTS (DUF) [4]

         Defendant submitted the following facts in support of his motion for summary judgment. (ECF No. 40 at 25-34.)

         The Parties

         1. Plaintiff Demondza Hunter (C-99425) (Plaintiff), was at all relevant times, an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR), incarcerated at the California Substance Abuse Treatment Facility, Corcoran (CSATF). (Compl. p. 5.) Plaintiff is currently incarcerated at the California State Prison-Sacramento (CSP-Sacramento). (Compl. p. 1.)

         2. Defendant is a Physician Assistant and has been licensed to practice in the State of California since February 4, 1999. He received a Bachelor of Science degree and completed his Physician Assistant training at Charles Drew School of Medicine in Los Angeles, California in 1998, and was certified by the National Commission on Certification of Physician Assistants in 1999. He received a Doctor of Medicine from the Universidad Central Del Este (UCE), School of Medicine in San Pedro, Dominican Republic in 2009. (Decl. of Clement Ogbuehi, P.A. (Ogbuehi Decl.) at ¶ 1.)

         3. Defendant was employed as a Physician Assistant by CDCR from April 2011 to August 1, 2017. From April 2011 to March 2015, he served at California Substance Abuse Treatment Facility and State Prison (SATF State Prison) and from March 2015 to August 1, 2017, he served at Kern Valley State Prison. (Ogbuehi Decl. at ¶ 2.)

         4. As a P.A. at CSATF, Defendant's responsibilities included providing comprehensive chronic disease condition management (i.e., for diabetes, hypertension, hyperlipidemia, hepatitis C, pain management), immunizations, vaccinations, patient education, preventive care, public health exams, wound care, incision/drainage, suturing, pain management and physical exams to the inmate population. His job duties included reviewing medical records, instructing nurses and other medical staff, as well as providing direct medical care to inmates under physician supervision pursuant to the Delegation of Service Agreement. He has examined and treated dozens of patients with the medical conditions and diagnoses related to internal bleeding and spine injuries. (Ogbuehi Decl. at ¶ 2.)

         5. As a Staff Physician Assistant for CDCR, Defendant is familiar with the standard of care as it applies to Physician Assistants providing medical care and treatment to inmates in the California prison system. (Ogbuehi Decl. at ¶ 3.)

         6. According to his review of Plaintiff's medical records, the first time Defendant saw Plaintiff for a medical visit was September 8, 2011. He does not recall seeing or treating Plaintiff prior to September 8, 2011. Contemporaneous with seeing Plaintiff for that first medical visit, either just before he came into the examining room or at the same time, Defendant reviewed the medical records available to him. (Ogbuehi Decl. at ¶ 7.)

         Plaintiff's Claim Re Referral To Specialist

         7. Based on his review of Plaintiff's medical records, on September 8, 2011, Defendant understood Plaintiff was in a car accident in 1987 when he fell asleep at the wheel and went off the embankment. At that time, Plaintiff had a Harrington rod placed in his upper lumbar thoracic spine due to fracture of the spine element and also a repair of the upper portion of the femur on the right side. On December 26, 2003, Dr. Friedman conducted a musculoskeletal and neurological examination. Plaintiff was seen for chronic pain complaints and Dr. Friedman felt it was ligamentous in origin with no neurological deficits noted. (Ogbuehi Decl. at ¶ 8; Exhibit A: Consultation by Jack Friedman, M.D., 12/26/03.)

         8. Plaintiff had a CT scan on July 10, 2003. According to Dr. Friedman's December 26, 2003 Consultation Report, the salient points being an “annulus bulge at ¶ 5 through S1 per surgical deformity of lamella at L 3/4 and Harrington rod T9 through Tl2 and disc narrowing T12 through L1.” (Exhibit A: Consultation by Jack Friedman, M.D., 12/26/03.) No. acute changes were noted in Plaintiff's condition.

         9. Plaintiff had a MRI of his cervical spine on February 18, 2009. According to Dr. Mario Deguschi's MRI Report there was an indication of posttraumatic arthritis, reversal of the cervical lordosis which simply means the patient was tensing his muscles, mild degenerative disc disease, minimal disc bulges without herniation and mild spinal stenosis, but no acute changes were noted in Plaintiff's condition. (Ogbuehi Decl. at ¶ 10; Exhibit B: Report re MRI of Cervical Spine, 02/18/09.)

         10. Plaintiff had an x-ray of the lumbar spine, with four views, on October 25, 2010 that was ordered by Dr. Kokor. According to Dr. Muhammad Chaudhri's October 26, 2010, Report, there was no evidence of hardware failure and moderate degenerative changes were seen throughout lumbar spine. Dr. Chaudhri noted that if clinically concerned a complete L spine with oblique view could be obtained or if an examination indicated an injury an L spine CT could be obtained. No. acute changes were noted in Plaintiff's condition. (Ogbuehi Decl. at ¶ 11; Exhibit C: Three Views of the Lumbar Spine Report, 10/26/10.)

         11. Plaintiff had a CT of the lumbar spine on February 4, 2011. Dr. Benjamin Seligman's February 4, 2011 Radiology Interpretation Report noted Harrington rods and a healed L2 compression fracture, disc disease at ¶ 1-2, and no acute changes. (Ogbuehi Decl. at ¶ 12; Exhibit D: Radiology Interpretation, 02/04/11.)

         12. Plaintiff had an x-ray of the lumbar spine, with three views, on March 2, 2012 that was ordered by me. Dr. Tony Deeths compared the x-rays taken on March 2, 2012 with the x-rays taken on October 25, 2010. In his report dated March 7, 2012, Dr. Deeths found there was no change and no acute ...


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