Johnson v. Chau

          FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' summary judgment motion. (ECF No. 58.) Plaintiff alleges that defendants violated his Eighth Amendment right to adequate medical care and state law. For the reasons stated herein, the undersigned recommends that defendants' summary judgment motion be granted as to plaintiff's Eighth Amendment claims. The undersigned also recommends that plaintiff's state law claims be dismissed.

         II. Legal Standard for Summary Judgment

         Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil procedure 56 is met. “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).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ” which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed.R.Civ.P. 56(c)).

         “Where the nonmoving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case.” Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed.R.Civ.P. 56 advisory committee's notes to 2010 amendments (recognizing that “a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact”). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 323.

         Consequently, if the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such a factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material in support of its contention that such a dispute exists. See Fed.R.Civ.P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1575 (9th Cir. 1990).

         In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 630. Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'” Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments).

         In resolving a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed.R.Civ.P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita, 475 U.S. at 586 (citation omitted).

         By contemporaneous notice provided on April 12, 2017 (ECF No. 15), plaintiff was advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

         III. Legal Standard for Eighth Amendment Claim

         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); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). To state a claim a plaintiff “must show (1) a serious medical need by demonstrating that failure to treat [his] condition could result in further significant injury or the unnecessary and wanton infliction of pain, ” and (2) that “the defendant's response to the need was deliberately indifferent.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (citing Jett, 439 F.3d at 1096). “Deliberate indifference is a high legal standard, ” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and 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).

         Mere ‘indifference,' ‘negligence,' or ‘medical malpractice' will not support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle v. Gamble, 429 U.S. 97, 105-06 (1976)).

         Further, “[a] difference of opinion between a physician and the prisoner-or between medical professionals-concerning what medical care is appropriate does not amount to deliberate indifference.” Snow, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)). Rather, a plaintiff is required to show that the course of treatment selected was “medically unacceptable under the circumstances” and that the defendant “chose this course in conscious disregard of an excessive risk to plaintiff's health.” Snow, 681 F.3d at 988 (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)).

         IV. Plaintiff's Claims

         This action proceeds on the first amended complaint as to defendants Dr. Chau, Dr. Pettersen, Dr. Rudas and Dr. Smith. (ECF No. 12.) Plaintiff alleges that defendants denied his requests for morphine and tramadol in violation of the Eighth Amendment and state law.

         Plaintiff alleges that on June 1, 2015, defendant Chau examined plaintiff for his multilevel cervical spondylitis. (Id. at 9.) Plaintiff alleges that he asked defendant Chau to prescribe tramadol and morphine for pain, which had previously been prescribed for him at Salinas Valley State Prison (“SVSP”) and the Correctional Training Facility (“CTF”). (Id. at 9-10.)

         On June 4, 2015, plaintiff received notification that the Pain Management Committee had denied his request for reinstatement of tramadol and morphine. (Id. at 10.)

         On June 24, 2015, defendant Pettersen reviewed plaintiff's medical records, reflecting plaintiff's multilevel cervical spondylitis and previous prescriptions for tramadol and morphine. (Id.) Defendant Pettersen took no action to “correct the apparent deliberate indifference to plaintiff's serious medical condition requiring pain medication sufficient to decrease his ongoing severe pain…” (Id.)

         On July 16, 2015, defendant Rudas reviewed plaintiff's medical records, reflecting plaintiff's multilevel cervical spondylitis and previous prescriptions for tramadol and morphine. (Id. at 11.) Defendant Rudas took no action to “correct the apparent deliberate indifference to plaintiff's serious medical condition requiring pain medication sufficient to decrease his ongoing severe pain…” (Id.)

         On July 18, 2015 and August 28, 2016, defendant Smith, reviewed plaintiff's medical records reflecting plaintiff's multilevel cervical spondylitis and previous prescriptions for tramadol and morphine. (Id. at 11-12.) Defendant Smith took no action to “correct the apparent deliberate indifference to plaintiff's serious medical condition requiring pain medication sufficient to decrease his ongoing severe pain…” (Id. at 11-12.)

         V. Defendants' Evidence

         In their statement of undisputed facts, defendants allege that in October 2012, plaintiff was incarcerated at Ironwood State Prison (“ISP”) and had been on morphine for six months for the relief of chronic neck pain. (ECF No. 58-3 at 1.) In support of this claim, defendants cite a medical record for plaintiff dated October 10, 2012 from ISP stating, in relevant part, that plaintiff had been on morphine for more than six months. (ECF No. 58-4 at 4.) The October 10, 2012 medical record also states that the plan was to taper plaintiff off morphine and start NSAIDS. (Id.)

         Defendants allege that plaintiff's morphine prescription was discontinued in 2012 and he was placed on the muscle-relaxant Robaxin. (ECF No. 58-3. at 1.) In support of this claim, plaintiff cites a medical record for plaintiff from ISP dated December 19, 2012. (ECF No. 58-4 at 6.) This record states that plaintiff's morphine was stopped because a “hoarding form” was filled out for medication non-compliance. (Id.) The December 19, 2012 record states that Robaxin 750 mg was substituted for morphine. (Id.)

         Defendants allege that in March 2013, plaintiff had newly arrived at the California Institution for Men (“CIM”) and was prescribed tramadol. (ECF No. 58-3 at 1.) In support of this claim, defendants cite plaintiff's medical record from CIM dated March 15, 2013. (ECF No. 58-4 at 8.) The record states that plaintiff has a follow-up appointment as a new arrival. (Id.) Regarding neck pain, the record states,

He has tried Tylenol No. 3; he has tried methadone; he has tried oxcarbazepine, some sort of tricyclic antidepressant and NSAIDS. He says that none of these were working for him. He was recently seen by another doctor, specifically a neurosurgeon who recommended that the patient be given morphine. He said that he is not exercising now because he is in a lot of pain. He is rating his pain today as 10 out of 10, 0 as no pain and 10 is crying pain. He said that he has never tried Ultram before in the past.

(Id.)

         On March 15, 2013, the CIM doctor wrote plaintiff's relevant pain assessment plan as follows herein:

The patient is requesting morphine today for his pain in the neck. He does have obvious MRI report of spinal stenosis. He also has had some noncompliance issues with the compliance of morphine itself. At this time I discussed with the patient the realistic expectations of the plan. I told him that I cannot take his pain away, I can only help him relieve some of his pain, and at this point I explained to him that I would like to try the Ultram a few times a day on an as-needed basis, and that this is a controlled substance.

(Id.)

         The undersigned observes that Ultram is also known as tramadol.

         In September 2014, plaintiff transferred to Mule Creek State Prison (“MCSP”). (Plaintiff's deposition at 32.) When plaintiff arrived at MCSP, he was taking tramadol and not morphine. (Id.)

         In his declaration, defendant Chau states that he examined plaintiff on June 1, 2015 regarding plaintiff's history of chronic neck pain due to cervical spondylosis/stenosis. (ECF No. 58-5 at 2.) In his declaration, defendant Chau states that during his examination of plaintiff on June 1, 2015, he diagnosed plaintiff with chronic neck pain that was fairly controlled. (Id.) Defendant Chau also states,

Although Johnson had previously been taking morphine for the relief of his pain, this had been stopped long before my involvement in Johnson's care. There are serious concerns regarding the long-term prescription of morphine, such as addiction, and it was not medically indicated at this time as there ...