United States District Court, N.D. California
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT (DOCKET
LABSON FREEMAN UNITED STATES DISTRICT JUDGE
a California inmate, filed the instant pro se civil
rights action pursuant to 42 U.S.C. § 1983 against
prison officials at various institutions. The Court found the
amended complaint, (Docket No. 11, hereinafter “Am.
Compl.”), stated cognizable claims under the Eighth
Amendment and ordered Defendants to file a motion for summary
judgment or other dispositive motion. (Docket No. 13.)
Dr. B. Deal filed a motion for summary judgment on the
grounds that he did not discontinue Plaintiff's
prescription for tramadol, there are no genuine disputes on
any material fact with respect to the medical treatment that
Plaintiff received, and Defendant is entitled to qualified
immunity. (Docket No. 118, hereinafter
“Mot.”) Plaintiff filed an opposition along with
exhibits in support thereof, (Docket No. 136, Exs. A-E), as
well as a sworn declaration, (Docket No. 141, Ex.
Defendant filed a reply. (Docket No. 139.)
reasons stated below, Defendant's motion for summary
judgment is GRANTED.
Statement of Facts 
arrived at SQSP on June 24, 2014, and remained there until he
was transferred to another prison on January 22, 2015.
(Tootell Decl. ¶ 6; Am. Compl. at 26.) From October 30,
2014 to December 4, 2014, Plaintiff was temporarily
transferred to Napa County Jail to attend a criminal court
proceeding. (Am. Compl. at 24.) Accordingly, Plaintiff was
housed at SQSP for less than six months during which time he
received treatment for his medical and mental health needs as
his transfer to SQSP on June 24, 2014, Plaintiff had a
prescription for Ultram (tramadol) 50 mg from a county jail,
where he was previously incarcerated, to treat his chronic
abdominal pain. (Tootell Decl. ¶¶ 6, 8, Ex. A at
MCCURDY-MSJ 0151-02.) Tramadol, which is a generic name for
Ultram, is a centrally acting synthetic opioid analgesic,
which has narcotic effects and has been classified as having
addiction potential. (Id. ¶ 7.) Tramadol is a
“non-formulary, ” category IV controlled
substance, per the California Correctional Health Care
Services (“CCHCS”) Formulary guidelines.
(Id.) CDCR medical providers are encouraged to use
the drugs listed in the CCHCS formulary, and the pharmacy
must dispense generic equivalents when available.
(Id.) If there is not a suitable agent on the
formulary medication list for an inmate, a medical provider
may provide a drug that is non-formulary on a
patient-specific basis, but only after submitting a request
and receiving approval from the Facility Medical Authority
his arrival at SQSP on June 24, 2014, Plaintiff was seen and
evaluated by a registered nurse. (Id. ¶ 8, Ex.
A at MCCURDY-MSJ 0100-03.) The nurse completed McCurdy's
initial health screening and documented it in a CDCR 7277
form. (Id.) The nurse noted on the form that
Plaintiff had a history of on-and-off abdominal pain and had
prescriptions for Neurontin (gabapentin) and Ultram/tramadol
from a previous provider. (Id.) Plaintiff's
medical records also show that Dr. Rivero requested
authorization to continue the tramadol 50 mg for two weeks
until Plaintiff could be evaluated by a provider, by
completing a Non-Formulary Drug Request form, CDCR 7374.
(Id.) Dr. Rivero's request for tramadol was
approved the next day by a SQSP medical authority.
days later, on June 26, 2014, Plaintiff was seen and
evaluated by Dr. Lee as part of his intake process at SQSP.
(Id. ¶ 9, Ex. A at MCCURDY-MSJ 0104-07.) During
the visit, Plaintiff told Dr. Lee that he was on tramadol for
abdominal pain. (Id.) Plaintiff further stated that
he had the abdominal pain near his bellybutton for about two
years. (Id.) Plaintiff described the pain as
“squeezing that comes and goes, ” but not
radiating. (Id.) Plaintiff also stated that he had
one bowel movement a day, and that he exercised by doing 500
push-ups daily since incarcerated in January 2014.
(Id.) Plaintiff denied having any fever, weight
loss, anorexia, nausea, vomiting, constipation, diarrhea,
change in stools, or urinary symptoms. (Id.) Dr.
Lee's physical examination notes state that
Plaintiff's abdomen appeared normal. (Id.) Dr.
Lee's assessment also showed that Plaintiff had a history
of hepatitis C and opiate use. (Id.) Dr. Lee's
treatment plan was to: (1) order laboratory tests; (2)
maintain Plaintiff's prescription for tramadol until July
9, 2014; (3) decrease the dosage to 50 mg per day for two
weeks after July 9; (4) take Plaintiff off the medication two
weeks after July 9; (5) order hepatitis C antibody test; (6)
get more information regarding Plaintiff's family medical
history; (7) examine the temporal arteries, and test his
blood's ferritin level; (8) provide Plaintiff a chrono
for contact lenses and solution for immediate use; (9) refer
him to optometry for glasses; (10) request Plaintiff's
medical records from previous providers; and (11) refer
Plaintiff to mental health services for his mental health
needs. (Id.) Plaintiff was also scheduled for a
follow-up within 30 to 35 days. (Id.)
30, 2014, Plaintiff refused laboratory tests that were
ordered by Dr. Lee. (Id. ¶ 10, Ex. A at
MCCURDY-MSJ 0108-09.) According to Plaintiff, he did not show
up for the lab tests because he was under the impression that
the labs were merely for hepatitis C bloodwork, and he had to
“pick and choose” days to use his ducats for
making appointments. (McCurdy Decl. ¶ 21.)
28, 2014, Plaintiff submitted health care services request
for abdominal pain, and was seen by a registered nurse.
(Tootell Decl. ¶ 11, Ex. A at MCCURDY-MSJ
0110.) The nurse noted Plaintiff's request for tramadol
to treat his pain. (Id.) The nurse noted
Plaintiff's vital signs and that his pain level was a
three on a scale of one to ten. (Id.) Plaintiff
denied that he had diarrhea. (Id.) Plaintiff was
then scheduled to be seen by a physician for his pain
August 1, 2014, Plaintiff was seen, evaluated, and treated by
Dr. Devers for his chronic abdominal pain complaint.
(Id. ¶ 12, Ex. A at MCCURDY-MSJ 0111-12.) Dr.
Devers noted that Plaintiff had chronic abdominal pain,
hepatitis C, history of left inguinal and umbilical hernia,
and family history of hemochromatosis. (Id.) Dr.
Devers also noted that Plaintiff was frustrated because he
was tapered off tramadol and gabapentin medications.
(Id.) Dr. Devers further noted that Plaintiff's
medical records showed that he had a history of polysubstance
abuse. (Id.) Plaintiff denied having nausea,
vomiting, constipation, or diarrhea. (Id.) Plaintiff
told Dr. Devers that tramadol did not help him much, but a
combination of tramadol and gabapentin did improve his pain.
(Id.) When Dr. Devers suggested a trial of Elavil,
Plaintiff declined that medication. (Id.) According
to Plaintiff, he refused Elavil because he had serious side
effects to the anti-depressant medication in the past.
(McCurdy Decl. ¶ 21.) Dr. Devers also offered Plaintiff
Tylenol and non-steroidal anti-inflammatory medications, but
he again declined those medications. (Tootell Decl.
¶ 12, Ex. A at MCCURDY-MSJ 0111-12.) Dr. Devers
explained to Plaintiff that his pain syndrome did not justify
narcotic medications at that time. (Id.) Dr. Devers
encouraged Plaintiff to go to the Triage and Treatment Area
(“TTA”) when he has an episode of acute pain.
(Id.) Dr. Devers's treatment plan for
Plaintiff's hepatitis C was to order follow-up lab tests
including genotype and viral load. (Id.) Plaintiff
was scheduled for a follow-up visit in three to four weeks
with laboratory results. (Id.)
August 2, 2014, Plaintiff walked into SQSP's TTA for
abdominal pain complaint. (Tootell Decl. ¶ 13,
Ex. A at MCCURDY-MSJ 0113-14.) Plaintiff reported that he had
abdominal pain for two years. (Id.) A registered
nurse documented Plaintiff's vital signs, and noted that
Plaintiff denied having any nausea, vomiting, or trauma.
(Id.) The nurse also noted that Plaintiff had no
acute distress. (Id.) Plaintiff informed the nurse
that he was on gabapentin and tramadol for pain.
(Id.) Plaintiff was scheduled for a follow-up
primary care provider visit for his pain complaints within
three to five days. (Id.) Plaintiff was advised to
return to the TTA if his condition became worse, and after
drinking ample water, was returned to his cell in stable
August 12, 2014, Plaintiff was seen again by Dr. Devers for
abdominal pain complaints. (Id. ¶ 14, Ex. A at
MCCURDY-MSJ 0115-25.) Dr. Devers noted that Plaintiff had
chronic abdominal pain for two years, etiology unclear;
hepatitis C; history of left inguinal and umbilical hernia
repair in 2000; and family history of hemochromatosis.
(Id.) Plaintiff complained to Dr. Devers that he was
prescribed tramadol and gabapentin in the past but now he had
nothing. (Id.) Dr. Devers, however, noted that
Plaintiff had declined ibuprofen, Tylenol, and Elavil for his
abdominal pain management at the last visit. (Id.)
After assessing and evaluating Plaintiff, Dr. Devers noted
that Plaintiff was not in acute distress, and that his past
ultrasound and current laboratory tests for comprehensive
metabolic panel, CBC, and “coags” were all
normal. (Id.) Dr. Devers's plan was to treat
Plaintiff's chronic abdominal pain with ibuprofen and
Tylenol on an as-needed basis, getting Plaintiff's full
medical record from his previous providers, and performing a
CT scan to look for etiologies. (Id.) Dr. Devers
also discussed at length with Plaintiff how he should use the
pain medications in light of his hepatitis C condition.
(Id.) Regarding Plaintiff's hepatitis C, Dr.
Devers noted that Plaintiff's laboratory studies were
reassuring. (Id.) Dr. Devers discussed the
laboratory results with Plaintiff, who stated that he would
wait until he mainlines to pursue treatment for hepatitis C.
(Id.) Dr. Devers also noted that she offered
Plaintiff a visit with a provider at SQSP, but Plaintiff
stated that he would like to wait. (Id.) Plaintiff
was to have a follow-up in 30 days. (Id.)
September 2, 2014, Plaintiff was seen by a registered nurse
for pain complaints in response to a health care services
request form dated August 31, 2014. (Id. ¶ 15,
Ex. A at MCCURDY-MSJ -0126.) The nurse documented
Plaintiff's vital signs and noted that his pain level was
a four on a scale of one to ten. (Id.) Plaintiff
asked for tramadol to manage his pain complaints.
(Id.) The nurse noted that Plaintiff's then
current medications included Tylenol and Motrin.
(Id.) The nurse also noted that Plaintiff was seen
by a physician on August 12, 2014, and that the doctor had
explained to him why tramadol was not indicated for his
condition. (Id.) The nurse advised Plaintiff to take
his prescribed pain medications Motrin and Tylenol.
(Id.) The nurse also noted that Plaintiff was to be
seen by a physician for further evaluation as scheduled.
September 24, 2014, Plaintiff was seen by Dr. Leighton for a
follow-up from his August 12, 2014 treatment regarding his
chronic abdominal pain and hepatitis C complaints.
(Id. ¶ 16, Ex. A at MCCURDY-MSJ 0127-33.)
Plaintiff reported to Dr. Leighton that tramadol and some
other narcotic were effective in treating his pain.
(Id.) He also reported that he gets abdominal pain
several times a day. (Id.) Plaintiff's then
current medications included Acetaminophen 325 mg, Ibuprofen
600 mg, and artificial tears. (Id.) After assessing
and evaluating Plaintiff, Dr. Leighton noted that Plaintiff
was a well-nourished 29-year-old man in no acute distress.
(Id.) Dr. Leighton noted that Plaintiff did not
appear to be in any severe pain, and his abdomen was
completely normal. (Id.) Dr. Leighton also noted
that Plaintiff's then recent laboratory test showed that
he was immune to hepatitis A and B, completely normal
metabolic panel, normal amylase and lipase, normal PT and
INR, normal CBC, and normal urinalysis. (Id.) Dr.
Leighton's plan was to treat Plaintiff's chronic
abdominal pain with amitriptyline 25 mg every evening, and to
follow-up in four to six weeks. (Id.) Plaintiff
initially did not want to take any medication other than
tramadol, but Dr. Leighton convinced him to start with
amitriptyline 25 mg every evening because he had a documented
allergic reaction to tramadol, which caused him nausea and
vomiting. (Id.) Regarding Plaintiff's hepatitis
C, Dr. Leighton noted that Plaintiff did not appear to have
any sequelae, and the disease did not appear to be active.
(Id.) Thus, the plan was to recheck laboratories in
a year. (Id.) A follow-up appointment was scheduled
for Plaintiff's abdominal pain complaints. (Id.)
October 4, 2014, a nurse issued a medication management
referral to Plaintiff because for three consecutive days, he
did not show up for his nurse-administered amitriptyline 25
mg that was prescribed for him to treat his chronic abdominal
pain. (Id. ¶ 17, Ex. A at MCCURDY-MSJ 0134-35.)
On October 6, 2014, Dr. Leighton stopped the order for
amitriptyline because Plaintiff refused to take it.
October 30, 2014 to December 4, 2014, Plaintiff was
transferred out of SQSP to Napa County Jail. (Am. Compl. at
24; Tootell Decl. ¶ 18.) Upon his return to SQSP on
December 4, 2014, Dr. Wu prescribed Plaintiff acetaminophen
650 mg for one month to treat Plaintiff's abdominal pain
complaints, and scheduled Plaintiff for a primary care
provider follow-up within two weeks. (Tootell Decl. ¶
18, Ex. A at MCCURDY-MSJ 0136.)
December 5, 2014, Plaintiff submitted a health care services
request form asking to continue medication that he had at the
county jail before he returned to SQSP. (Id. ¶
19, Ex. A at MCCURDY-MSJ 0137-39.) Plaintiff's request
was received and reviewed by a registered nurse on December
8, 2014. (Id.) The next day, on December 9, 2014,
Plaintiff was seen by Dr. Alvarez. (Id.) After
assessing and evaluating Plaintiff, Dr. Alvarez noted that
Plaintiff had no new complaints and symptoms but continued to
claim to have chronic abdominal pain. (Id.) Dr.
Alvarez also noted that Plaintiff's then recent
laboratory test showed normal results. (Id.) Dr.
Alvarez further noted that Plaintiff had several surgeries in
the past including umbilical hernia, but Plaintiff's pain
syndrome did not match with what would be expected with
intermittent adhesional obstructions. (Id.) Dr.
Alvarez further noted that Plaintiff had an extensive history
of substance abuse and opiate seeking behavior.
(Id.) Dr. Alvarez's plan was to treat
Plaintiff's chronic abdominal pain with Prilosec.
(Id.) Dr. Alvarez advised Plaintiff that opiates or
tramadol was not indicated for his condition. (Id.)
Dr. Alvarez planned to order an upper endoscopy, a
colonoscopy, and CT scan with contrast if Plaintiff continued
to have the abdominal pain symptoms. (Id.) Dr.
Alvarez further noted that Plaintiff had no red flags for
serious or systemic disease process of the abdomen.
(Id.) Dr. Alvarez educated Plaintiff about the
inappropriateness of opiates for the type of pain complained
prior to comprehensive workup including upper and ...