United States District Court, E.D. California
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
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