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McCurdy v. M. Rivero

United States District Court, N.D. California

September 11, 2019

JAMES MCCURDY, Plaintiff,
v.
M. RIVERO, et al., Defendants.

          ORDER GRANTING MOTION FOR SUMMARY JUDGMENT (DOCKET NO. 118)

          BETH LABSON FREEMAN UNITED STATES DISTRICT JUDGE

         Plaintiff, 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.[1] (Docket No. 13.)

         Defendant 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.”[2]) 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. A[3]). Defendant filed a reply. (Docket No. 139.)

         For the reasons stated below, Defendant's motion for summary judgment is GRANTED.

         DISCUSSION

         I. Statement of Facts [4]

         Plaintiff 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 summarized below.

         A. Medical Care

         Before 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 (“FMA”). (Id.)

         Upon 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. (Id.)

         Two 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.)

         On June 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.)

         On July 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 complaint. (Id.)

         On 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.)

         On 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 condition. (Id.)

         On 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.)

         On 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. (Id.)

         On 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.)

         On 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. (Id.)

         From 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.)

         On 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 ...


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