United States District Court, E.D. California
ORDER AND FINDINGS & RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
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. On June 17, 2019, defendants filed a
motion for summary judgment. Plaintiff filed an opposition,
and defendants filed a reply.
discussed below, the undersigned recommends that
defendants' motion for summary judgment be granted in
part and denied in part.
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.)
Legal Standard for Summary Judgment
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.
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).
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).
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
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).
Undisputed Facts (“UDF”)
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”).
Defendant Dr. Abdur-Rahman was at all relevant times employed
by CDCR as a Primary Care Physician (“PCP”) at
Defendant Dr. Lee was at all relevant times employed by CDCR
as the Chief Physician and Surgeon at HDSP.
Plaintiff has no formal training in medicine. (Pl.'s Dep.
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.)
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.)
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.)
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.
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.
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.)
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.)
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.)
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
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.)
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.” (ECF No. 41 at
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.)
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.)
Plaintiff saw a physical therapist again on August 12, 2015.
(Pl.'s Dep. at 60.)
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
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.
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.)
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.)
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.)
Reasonable Accommodation Panel (“RAP”),
consisting of defendant Lee and other nonparties, met on
August 26, 2015. (ECF No. 41 at 16.) 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.)
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).)
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 ...