United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING CROSS-MOTIONS
FOR SUMMARY JUDGMENT (ECF NOS. 40, 41.) OBJECTIONS, IF ANY,
DUE WITHIN FOURTEEN DAYS
S. AUSTIN UNITED STATES MAGISTRATE JUDGE
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. (ECF No. 23.)
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
September 5, 2017, defendant Ogbuehi filed a motion for
summary judgment, or in the alternative, for partial summary
judgment. (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).
SUMMARY JUDGMENT STANDARD
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).
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.
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).
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
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.
DEFENDANT'S EVIDENTIARY OBJECTIONS
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.)
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)).
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.
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.
SUMMARY OF ALLEGATIONS IN THE THIRD AMENDED COMPLAINT
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.
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.
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
EIGHTH AMENDMENT MEDICAL CLAIM
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)).
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)).
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
DEFENDANT'S UNDISPUTED FACTS (DUF)
submitted the following facts in support of his motion for
summary judgment. (ECF No. 40 at 25-34.)
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.)
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.)
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.)
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.)
Claim Re Referral To Specialist
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.)
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
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.)
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.)
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.)
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