Carreon v. Abdur-Rahman

          ORDER AND FINDINGS & 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. Pursuant to the district court's September 28, 2018 order, this action proceeds on plaintiff's Eighth Amendment deliberate indifference claims against defendants Dr. S. Abdur-Rahman and Dr. Lee.^[1] On June 17, 2019, defendants filed a motion for summary judgment. Plaintiff filed an opposition, and defendants filed a reply.

         As discussed below, the undersigned recommends that defendants' motion for summary judgment be granted in part and denied in part.

         II. Plaintiff's Claims

         In his verified complaint, plaintiff alleges that Dr. S. Abdur-Rahman failed to provide adequate medical care for plaintiff's serious medical needs, including failures to (a) timely provide a four-wheel walker, resulting in plaintiff falling and sustaining serious injuries; (b) extend morphine; (c) increase Lyrica; and (d) refer plaintiff to a specialist. (ECF No. 11.) Plaintiff alleges that defendant Dr. B. Lee was aware of plaintiff's serious medical needs, yet failed to ensure that plaintiff received care for plaintiff's serious medical needs, including a failure to provide a walker, and failure to provide adequate pain medication. (ECF No. 1 at 20-24.)

         III. 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; Walls v. Central Costa County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011). 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 June 17, 2019 (ECF No. 39-2), 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).

         IV. Undisputed Facts^[2] (“UDF”)

         1. Plaintiff Antonio Carreon is a prisoner in the custody of the California Department of Corrections and Rehabilitation (“CDCR”), who at all relevant times was housed at High Desert State Prison (“HDSP”).

         2. Defendant Dr. Abdur-Rahman was at all relevant times employed by CDCR as a Primary Care Physician (“PCP”) at HDSP.

         3. Defendant Dr. Lee was at all relevant times employed by CDCR as the Chief Physician and Surgeon at HDSP.

         4. Plaintiff has no formal training in medicine. (Pl.'s Dep. at 59.)

         5. On June 29, 2015, R. Reed, Physician's Assistant, completed a primary care provider progress note marked “late entry completed after entire chart review.” (ECF No. 19-1 at 12.) Reed charted plaintiff's “new arrival” with history of Parkinson's, “uses carbidopa/levodopa with some relief uses cane for stabilization.” (Id.) Reed noted plaintiff's resting right hand tremor, and “can walk without cane has parkinson [sic] shuffle.” (Id.) In the diagnosis section, Reed charted that plaintiff's Parkinson's was “at goal;” the plan was to “continue current treatment, physical therapy to help with stability movement, use cane as needed, consider neurology evaluation.” (ECF No. 19-1 at 12.) For neuropathy, continue Lyrica. (Id.)

         6. On June 29, 2015, a health care services physician request for services form was completed for plaintiff requesting physical therapy for plaintiff's Parkinson's “to help with stability.” (ECF No. 41 at 13.) On July 1, 2015, the request was approved. (ECF No. 41 at 13.)

         7. On July 23, 2015, plaintiff had an appointment with Dr. Abdur-Rahman, who addressed plaintiff's medical conditions, including, but not limited to, Parkinson's disease, seizure and psychiatric disorders, Hepatitis C, neuropathy of the legs, and high blood pressure. (ECF No. 39-6 at 6-7.)

         8. Dr. Abdur-Rahman noted plaintiff's Parkinson's disease was stable and that plaintiff had been referred through physical therapy to consider a possible neurology evaluation at a later date.

         9. Dr. Abdur-Rahman noted plaintiff's neuropathy of the legs was stable and that plaintiff should continue with the current regimen of Lyrica. Dr. Abdur-Rahman noted that plaintiff wanted to have the dose increased, but there was no medical indication at that time for such an increase. Dr. Abdur-Rahman noted plaintiff's disagreement with the doctor's decision, but plaintiff was informed of the availability of the administrative appeal process.

         10. According to plaintiff, Dr. Abdur-Rahman denied plaintiff's request for a walker, stating, “Well, we'll see in the future maybe, you know. When you get your physical therapy appointment scheduled we'll see how that goes.” (Pl.'s Dep. at 53.)

         11. Dr. Abdur-Rahman does not recall, and his notes do not indicate, whether plaintiff requested a walker during the July 23, 2015 appointment. But Dr. Abdur-Rahman noted that plaintiff self-reported he had been using a cane for one and a half to two years, and that he was recommended to possibly go to a walker. Dr. Abdur-Rahman understood that the possibility of switching to a walker would be addressed at a later date, after plaintiff's physical therapy appointment. (ECF No. 39-4 at 2.)

         12. Dr. Abdur-Rahman does not recall, and his notes do not indicate, any discussion during the July 23, 2015 appointment regarding Morphine or other pain medication. The list of “current medications” does not indicate that plaintiff was prescribed or taking Morphine or other pain medication at that time. Further, nothing in Dr. Abdur-Rahman's notes from such appointment indicate that plaintiff complained of pain or requested Morphine or other pain medication. (ECF No. 39-6 at 6-7.)

         13. Dr. Abdur-Rahman does not recall, and his notes do not indicate, any discussion regarding referral to a specialist. But Dr. Abdur-Rahman did note that plaintiff had already been referred through physical therapy to consider a possible neurology (specialist) evaluation at a later date. Dr. Abdur-Rahman understood that the need for a specialist referral would be addressed at a later date, after plaintiff's physical therapy appointment. (ECF No. 39-4 at 2.)

         14. During the July 23, 2015 appointment with plaintiff, Dr. Abdur-Rahman also looked at plaintiff's blood results and x-rays, and addressed plaintiff's seizure disorder, Hepatitis C diagnosis, and high blood pressure. (Pl.'s Dep. at 52, 64, 65.)

         15. On July 29, 2015, plaintiff saw a physical therapist who recommended plaintiff have six physical therapy visits for his lumbar pain and Parkinson's, and a neurological consult for his Parkinson's. (ECF No. 41 at 13; Pl.'s Dep. at 60.) The physical therapist noted plaintiff's “Tennetti [sic] Balance was 15/26.”^[3] (ECF No. 41 at 13.)

         16. On August 3, 2015, plaintiff completed a health care services request form, requesting to be seen because he was in pain from his back and neck, he gets no pain medication, and for his Parkinson's. (ECF No. 41 at 11.) “Balance starting to get bad.” (Id.)

         17. On August 5, 2015, plaintiff was seen by RN Garbutt, who assessed plaintiff as follows: “Alt. in mobility R/T Parkinson's ds., used cane -- unsteady gait.” (ECF No. 41 at 11.) The RN's plan was follow-up with plaintiff's PCP “as soon as possible -- fall risk.” (Id.) The RN wrote she would refer plaintiff to his PCP for “mobility evaluation.” (Id.) In the appended musculoskeletal complaint form, the RN wrote that plaintiff “says has not fallen but has stumbled & caught himself. Has obvious marked tremors with erratic head bobbing. Referred to see PCP as soon as possible R/T fall risk. Evaluate current cane use versus walker need.” (ECF No. 41 at 12.)

         18. Plaintiff saw a physical therapist again on August 12, 2015. (Pl.'s Dep. at 60.)^[4]

         19. On August 18, 2015, plaintiff submitted a CDCR 1824 Reasonable Accommodation Request, requesting a wheeled walker to help him balance. (ECF No. 41 at 14.) Plaintiff stated he has Parkinson's and was “having trouble balancing with just a cane, ” and “having trouble walking.” (Id.)

         20. On August 19, 2015, plaintiff fell in his cell at 16:30. (ECF No. 41 at 17.) The RN progress note states plaintiff arrived in “B Clinic in full c-spine precaution” complaining that he fell in his cell. The RN charted that plaintiff reported he “was turning around and I felt my leg start to give out I fell and hit the cement.” (Id.) Plaintiff denied having loss of consciousness or having a seizure.

         21. After the fall, plaintiff was transported to Banner Lassen Medical Center and found to have a nondisplaced T1 fracture. (ECF No. 39-4 at ¶ 9; 19-1 at 29.) Upon his return to prison, plaintiff was provided a two week lay-in where his pills and meals were delivered to him in his cell. (Pl.'s Dep. At 68.)

         22. On August 25, 2015, Dr. Abdur-Rahman saw plaintiff again. Dr. Abdur-Rahman noted plaintiff appeared for a follow-up visit after sustaining a fall and suffering injuries to his neck and back. (ECF No. 39-4 at ¶ 9.) Dr. Abdur-Rahman charted that plaintiff “states he believes the morphine ER is about to expire” (ECF No. 39-6 at 9), and requested that the morphine be extended a little longer for his back pain (ECF No. 39-4 at 3). Dr. Abdur-Rahman informed plaintiff that the morphine prescription was written for fifteen days, beginning August 20, 2015, so the prescription would not expire until September 4, 2015, another ten days. Dr. Abdur-Rahman did not extend the prescription further. (ECF No. 39-4 at ¶¶ 9-10.)

         23. During the August 25, 2015 appointment, plaintiff also raised questions about the use of a cane with Parkinson's. Dr. Abdur-Rahman noted that plaintiff had been seen twice so far by Physical Therapy for his lower back pain. Dr. Abdur-Rahman recommended to plaintiff that he discuss with his physical therapist whether a cane or a walker would be more suitable with his Parkinson's, and plaintiff agreed with this plan. (ECF No. 39-4 at ¶ 11.)

         24. The Reasonable Accommodation Panel (“RAP”), consisting of defendant Lee and other nonparties, met on August 26, 2015. (ECF No. 41 at 16.)^[5] T. Robertson, ADA Coordinator/Designee, reported that there was no medical indication for a walker or a wheelchair at this time; plaintiff was scheduled for six sessions with a physical therapist; pursuant to plaintiff's medical evaluation a wheelchair may be considered in the future; plaintiff was provided with a cane, a vest, and ability to access all programs, services and activities safely; and plaintiff could request the assistance of IDA workers for daily activities as needed. (ECF No. 41 at 16.) The RAP response was sent to plaintiff on September 11, 2015. (ECF No. 41 at 16.)

         25. Dr. Abdur-Rahman saw plaintiff again on September 30, 2015, regarding an administrative appeal in which plaintiff requested to receive a wheeled walker with handbrakes and a seat. Dr. Abdur-Rahman informed plaintiff that the wheeled walker with seat and handbrakes had already been received and therefore his appeal had been partially granted. Dr. Abdur-Rahman further noted that plaintiff was awaiting a neurology evaluation regarding his Parkinson's disease. (ECF Nos. 39-4 at ¶ 12; No. 39-6 at 12-13 (Ex. C).)

         26. During the September 30, 2015 appointment, Dr. Abdur-Rahman also addressed plaintiff's request to extend his Morphine prescription. Plaintiff had been prescribed morphine about six weeks after he fell. Dr. Abdur-Rahman denied plaintiff's request to refill his morphine prescription, as Dr. Abdur-Rahman did not feel there was a ...