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Hollis v. Risenhoover

United States District Court, N.D. California

July 22, 2019

MARVIN GLENN HOLLIS, Plaintiff,
v.
RISENHOOVER, et al., Defendants.

          ORDER GRANTING MOTION FOR SUMMARY JUDGMENT WITH RESPECT TO CLAIMS AGAINST DEFENDANTS RISENHOOVER AND ADAM; SETTING BRIEFING SCHEDULE FOR REMAINING DEFENDANTS TO FILE RENEWED SUMMARY JUDGMENT MOTION (DOCKET NO. 76)

          BETH LABSON FREEMAN, UNITED STATES DISTRICT JUDGE.

         Plaintiff, a California state prisoner, filed a pro se civil rights complaint under 42 U.S.C. § 1983 against medical personnel at Pelican Bay State Prison (“PBSP”), where Plaintiff was formerly housed. Finding the complaint stated a cognizable Eighth Amendment claim for deliberate indifference to serious medical needs, the Court issued an order of service and directed Defendants to file a motion for summary judgment or other dispositive motion. (Docket No. 53.) Defendants S. Risenhoover, N. Adam, M. McCall, and J. Afdahl[1] filed a motion for summary judgment on the grounds that there is no genuine dispute of material facts that Defendants acted with deliberate indifference to serious medical needs.[2] (Docket No. 76, hereafter “Mot.”[3]) Plaintiff filed opposition, (Docket No. 86), and Defendants filed a reply, (Docket No. 87). For the reasons stated below, Defendants' motion for summary judgment is GRANTED IN PART.

         DISCUSSION

         I. Background

         The underlying actions which are the basis of this action occurred while Plaintiff was formerly incarcerated at PBSP where Defendants were employed. At the time, Defendant S. Risenshoover was a nurse practitioner (now retired), Defendant N. Adam was a physician, Defendant M. McCall was a psychiatrist, and Defendant J. Afdahl was a psychiatric technician.

         A. Plaintiff's Claims

         Plaintiff claims that when he arrived at PBSP on January 21, 2016, he had several prescriptions to treat his chest pain, “borderline” diabetes, hypertension, and mental health. (Compl. at 5.) After Defendant Risenhoover examined him, she discontinued several of the prescriptions, stating that PBSP does not prescribe such medication. (Id. at 6-7.) After Plaintiff notified Defendants that he was having chest pain, problems with his heart, and extreme pain in his lower back and shoulder, they failed to respond. (Id. at 7.) Plaintiff also claims that Defendant McCall and Afdahl discontinued his mental health medication which has caused him to suffer psychologically, including depression, anxiety, and symptoms associated with bipolar. (Id. at 9-10.)

         Based on the foregoing allegations, the Court found the complaint, liberally construed, stated a cognizable claim under the Eighth Amendment. (Docket No. 53 at 2.)

         B. Statement of Facts [4]

         Plaintiff arrived at PBSP on January 21, 2016. During intake that day, Nurse C. Timoshenko, not a party to this action, conducted a review of Plaintiff's medical records and an initial health screening, and found that Plaintiff had the following medical conditions: hypertension (high blood pressure), pure hyperglyceridemia (elevated triglycerides), history of chest pain, cataracts, lumbar degenerative disk disease, bilateral flat feet, shoulder impingement, and gastroesophageal reflux disease (GERD). (Adam Decl. ¶ 3, Ex. A, AG 073-074.) Because of his shoulder problems, Plaintiff had a chrono [order] for an extra pillow and a lower/bottom bunk assignment. (Id., Ex. A, AG 157.)

         Plaintiff's previously prescribed medications, which did not arrive with him at PBSP, were Buspirone (for anxiety), aspirin (for shoulder pain), clotrimazone cream (for foot fungus), lamotrigine (for bipolar disorder), Mintox (for excess stomach acid), metformin (for pre-diabetes), metropol (for high blood pressure), nitroglycerin (for acute angina), omeprazole (i.e., Prilosec, for ulcers/heartburn), simvastatin (to lower cholesterol levels) and tramadol (for acute or severe pain). (Adam Decl. ¶ 4, Ex. A, AG 073-074.)

         When Plaintiff complained of chest pain at the urgent care clinic on January 21, 2016, Dr. Andrew Dorfman, not a party to this action, ordered him metoprolol 25 mg. and sublingual nitroglycerin over the telephone. (Adam Decl. ¶ 5, Ex. A, AG 075, 077-081.) Dr. Dorfman noted that the EKG taken at the urgent care clinic by the RN that same day showed no change from an EKG taken on October 14, 2015, three months before. (Id.)

         The same day (January 21, 2016), Physician's Assistant Laurie Thomas, not a party to this action, renewed Plaintiff's previous prescription for the pain medication tramadol, but only for seven days until Plaintiff could be evaluated by his Primary Care Provider (“PCP”). (Adam Decl. ¶ 6, Ex. A, AG 098.)

         According to Defendants, tramadol is a synthetic opioid analgesic drug that is highly addictive. (Adam Decl. ¶ 7.) Addition to opioid medications like tramadol results in the need for stronger and stronger doses to alleviate the pain, and also affects patients' respiration. (Id.) Moreover, because of tramadol's stimulant effects, it can allow people to feel themselves to be high-functioning while taking dangerously high doses. (Id.) This combination is dangerous. (Id.) Withdrawal from tramadol is similar to withdrawing from an opiate medication, with symptoms such as depression, anxiety, fatigue, GI distress, etc. (Id.)

         According to Defendants, at the time of these events, the medical community was becoming increasingly aware of the epidemic problems of opioid use. (Id.) In addition, recent studies showed that long term opioid treatment does not provide medical benefits for chronic pain such as Plaintiff reported. (Id.) As a result, the California Correctional Health Care Services began to discontinue use of opioids for chronic pain, instead reserving opioid prescription only for cancer patients and for those in acute pain for short periods of time. (Id.)

         On January 27, 2016, Defendant Risenhoover reviewed Plaintiff's past medical records with him and discussed with Defendant Dr. Adam by telephone the plan to taper off Plaintiff's tramadol medication. (Adam Decl. ¶ 8, Ex. A, AG -82-086.) In Defendant Adam's medical judgment, tramadol was not medically indicated for Plaintiff at the time because he was not in severe pain, his pain was chronic and not acute, and the risks of prescribing highly addictive tramadol far outweighed the benefits. (Id.) Defendant Risenhoover needed Defendant Adam's approval to begin tapering Plaintiff off tramadol because in the state of California, a nurse practitioner like Defendant Risenhoover cannot independently prescribe or otherwise manage a patient's medication but must be supervised by a medical doctor. (Id.) Defendants Risenhoover and Adam also agreed to discontinue nitroglycerin, metformin, aspirin, simvastatin, and anti-fungal cream because they also were not medically indicated according to Plaintiff's latest physical examination and laboratory results. (Id.) Plaintiff did not have angina, diabetes, muscle or joint pain, high cholesterol or foot fungus. Plaintiff agreed to this plan of care. (Id.)

         Defendant Dr. McCall was assigned as Plaintiff's psychiatrist. (Adam Decl. ¶ 9, Ex. A, AG 099.) On February 2, 2016, Defendant McCall ordered prescriptions of the psychotropic medications Buspirone and Lamotrigine for 90 days, for Plaintiff's anxiety and bipolar disorders. (Id.)

         According to Defendants, on February 9, 2016, psychiatric technician Defendant Afdahl, who was assigned to dispense medication to inmates and to inspect their mouths to make sure they swallow the medication, indicated that Plaintiff refused to show her his mouth. (Adam Decl. ¶ 10, Ex. A, AG 101-102.) According to Plaintiff, this report was “untrue” and a “false allegation” by Defendant Afdahl. (Opp. at 30.) This incident was reported to Defendant Adam. (Adam Decl. ¶ 10, Ex. A, AG 103.) These types of incidents are a concern for several reasons. (Adam Decl. ¶ 10.) There are custody and safety concerns; in prisons it is common for inmates to “cheek” (i.e., not swallow) their medications, and then save the medications for later sale to other inmates. Sometimes inmates save up their medications in this way and then take them all at once, which can result in overdoes. (Id.) Finally, and most importantly, there is a medical concern, because if an inmate is not swallowing his medication, then he is not receiving the treatment he needs. (Id.)

         As a result of the above incident, on February 10, 2016, Defendant McCall prescribed that Plaintiff's medication was to be crushed and floated in a cup of water when given. (Adam Decl. ¶ 11, Ex. A, AG 105.)

         Plaintiff complained of chest pain on February 26, 2016, and again on March 1, 2016, but did not appear to be in distress. (Adam Decl. ¶ 12, Ex. A, AG 107-109, 111-119.) An EKG performed on March 1, 2016, showed normal sinus rhythm, which means ...


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