Joaquin v. Buda

• Court: District Court, N.D. California
• Decided: January 4, 2024
• Docket: 4:22-cv-04766
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JEFFEREY ALLAN JOAQUIN, Case No. 22-cv-04766-JST

8 Plaintiff, ORDER OF DISMISSAL v. 9 Re: ECF No. 19 10 DANIEL BUDA, et al., Defendants. 11

12 13 Plaintiff, an inmate at Mendocino County Jail, has filed a pro se action pursuant to 42 14 U.S.C. § 1983 against correctional officials at San Quentin State Prison (“SQSP”), where he was 15 previously housed. Plaintiff’s second amended complaint is before the Court for screening 16 pursuant to 28 U.S.C. § 1915A. 17 DISCUSSION 18 A. Standard of Review 19 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 20 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 22 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 23 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 24 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 25 989, 993 (9th Cir. 2020). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 1 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 2 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 3 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). 4 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 5 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 6 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a 7 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 8 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 9 U.S. 42, 48 (1988). 10 B. Procedural Background 11 The amended complaint alleged that the medical treatment provided by Pelican Bay State 12 Prison (“PBSP”) doctors Daniel Buda, Laurie Thomas, Elena Tootell, and Donna Jacobsen; 13 Associate Warden D. Blythe; Warden Jim Robertson; outside oral maxillofacial surgeon William 14 Martey; and Dr. Martey’s female assistant for Plaintiff’s salivary gland infection constituted 15 deliberate indifference to Plaintiff’s serious medical needs, in violation of the Eighth Amendment. 16 ECF No. 10 (“FAC”). The Court dismissed the amended complaint with leave to amend because 17 the amended complaint did not allege facts from which it could be reasonably inferred that 18 defendants Buda, Thomas, Jacobsen, Blythe, Robertson, and Tootell acted unreasonably in 19 referring Plaintiff to defendant Martey for surgery and because the amended complaint indicated 20 that prison officials provided Plaintiff with prompt and regular treatment for his infection. The 21 Court found that, at most, the amended complaint stated a state-law claim for negligence. ECF 22 No. 17. 23 C. Second Amended Complaint 24 The second amended complaint, ECF No. 19 (“SAC”), names as defendants Pelican Bay 25 State Prison doctors Daniel Buda, Laurie Thomas, Elena Tootell, and Donna Jacobsen. Plaintiff 26 again alleges that the medical treatment for Plaintiff’s salivary gland infection violated the Eighth 27 Amendment, specifically the referral to an oral maxillofacial surgeon instead of an ENT; 1 Tootell’s failure to intubate Plaintiff when he had trouble breathing due to swelling from the 2 infection. 3 According to the second amended complaint and the medical records attached to Plaintiff’s 4 initial complaint, Plaintiff received the following treatment, or lack thereof, for his infected 5 salivary gland. 6 Plaintiff first reported an issue with his salivary gland on September 8, 2019, stating that 7 his salivary gland was blocked and that the pain was at level 9. He requested medical treatment. 8 On September 9, 2019, Plaintiff was seen by RN Rochuba in response to this request. RN 9 Rochuba emailed defendant Buda, stating that she had no SNP for infection pain and asked if 10 defendant Buda could provide a prescription for something for a few days. Defendant Buda 11 responded that Plaintiff’s reported condition usually improved with warm compresses and that 12 Plaintiff could obtain ibuprofen from the canteen if he had pain. SAC at 5, 13, 19. 13 On September 25, 2019, Dr. Martinez examined Plaintiff and ordered an antibiotic, 14 amoxicillin, to treat the infection. SAC at 5, 17. 15 On October 25, 2019, in response to Plaintiff’s report that his salivary gland was still 16 infected, defendant Thomas prescribed the antibiotic cephalexin for Plaintiff, as well as 650 mg of 17 acetaminophen. ECF No. 1-1 at 22. 18 On November 14, 2019, in response to Plaintiff’s report that there was an increase in pus 19 discharge from his salivary gland, defendant Buda prescribed a 10-day course of the antibiotic 20 clindamycin for Plaintiff and ordered a culture of the infected area. ECF No. 1-1 at 27. 21 On November 24, 2019, Plaintiff again sought treatment for his salivary gland, stating that 22 pus was still coming out of the gland, that the pain was at a level 9, and that there was a lump on 23 the left side of his throat under the jawline that was tender to the touch. On November 25, 2019, 24 RN Nasr saw Plaintiff in response to this request. RN Nasr sent Plaintiff to the Critical Treatment 25 Center where he was seen by defendant Thomas. Defendant Thomas did a physical examination 26 of the affected area. In the progress notes, defendant Thomas noted that the infection had not 27 responded to three different antibiotics (Augmentin, Cephalexin, and Clindamycin); that a 1 referred to an ear-nose-and-throat doctor on November 2, 2019, but that there had been no word 2 on the referral. Defendant Thomas put in a high-priority order for Plaintiff to be evaluated by an 3 oral maxillofacial surgeon and wrote in the medical notes that Plaintiff would need the stone 4 surgically excised. Defendant Thomas advised Plaintiff to continue with arm compresses and 5 gentle massage, and to rinse out his mouth with a chlorhexidine rinse. SAC at 6, 19, 21-23. 6 This order to be evaluated by an oral maxillofacial surgeon was promptly approved by 7 defendants Jacobsen and Tootell and scheduled for December 16, 2019. ECF No. 1-1 at 39-40. 8 Around ten days prior to his operation, Plaintiff submitted a medical slip informing 9 medical staff that his throat was beginning to swell due to the infection. Defendant Tootell was 10 afraid for Plaintiff when she heard this, and discussed with medical staff in the Critical Treatment 11 Center whether they should intubate Plaintiff to ensure that he would be able to continue to 12 breathe. Defendant Tootell and medical staff decided against intubation because it would cause 13 Plaintiff discomfort and left him in his cell. ECF No. 19 at 7. 14 On December 16, 2019, oral maxillofacial surgeon Dr. Martey performed the oral surgery, 15 which caused Plaintiff detrimental harm. ECF No. 19 at 6. 16 Defendant Buda followed up with Plaintiff on January 7, 2020. In the progress notes, 17 defendant Buda noted that Plaintiff reported no pain relief following the surgery and continued to 18 have pain, swelling, and drainage. ECF No. 1-1 at 46. On January 21, 2020, Plaintiff had a 19 follow-up appointment with Dr. Martey. Dr. Martey concluded that Plaintiff would need an ENT 20 evaluation. ECF No. 1-1 at 59. On February 2, 2020, defendant Buda saw Plaintiff for a follow- 21 up evaluation of the left salivary gland and ordered a soft tissue neck CT scan with contrast. ECF 22 No. 1-1 at 58. The CT scan indicated that Plaintiff had a significantly dilated left submandibular 23 duct with ranula and multiple sialoliths. ECF No. 1-2 at 54. 24 Plaintiff was scheduled to be seen by an ENT via telemedicine on March 2, 2020. ECF 25 No. 1-1 at 57. The ENT concluded that there was some scarring of the left salivary gland after the 26 irrigation and drainage performed by Dr. Martey and opined that Plaintiff might need to remove 27 the gland. The ENT requested a face-to-face followup with Plaintiff for a more thorough exam. 1 person by an ENT doctor. Defendant Tootell approved the request that same day. ECF No. 1-2 at 2 35. The follow-up appointment was scheduled with Dr. Ow for April 15, 2022. ECF No. 1-2 at 3 39; ECF No. 1-2 at 23. In the meantime, defendant Buda prescribed Plaintiff with tramadol to 4 address the pain. ECF No. 1-2 at 39. On March 11, 2020, Plaintiff was seen by defendant Tootell, 5 who memorialized in the progress notes that, based on the recent ENT recommendation, the 6 salivary gland should not be irrigated and drained and the plan was to wait on definitive surgical 7 removal. ECF No. 1-1 at 57; ECF No. 1-2 at 36. 8 On April 2, 2020, Dr. Ow cancelled the appointment because of COVID. ECF No. 1-2 at 9 23. Plaintiff was seen by Dr. Ow on April 27, 2020, and again on May 22, 2020. ECF No. 1-2 at 10 32, 37. Dr. Ow diagnosed Plaintiff as having a complete blockage of the left salivary drainage 11 system with a large mucocele/ranula. Dr. Ow presented Plaintiff with two treatment options: (1) a 12 referral to Dr. Squires to consider endoscopic removal of the stones; or (2) Dr. Ow could prefer a 13 two-hour outpatient surgery to excise the gland. ECF No. 1-2 at 36, 54. Because it could take 14 several months to obtain a contract for Plaintiff to be seen by Dr. Squires, Plaintiff elected to 15 proceed with the surgery by Dr. Ow. ECF No. 1-2 at 43-44. 16 The patient education materials (discharge papers) provided to Plaintiff after both his 17 September 9 and November 25 appointments stated as follows:

18 DIAGNOSIS . . . . You may need to see an ear, nose, and throat specialist (ENT or otolaryngologist) for 19 diagnosis and treatment. You may also need to have diagnostic tests, such as: • An X-ray to check for a stone. 20 • Other imaging studies to look for an abscess and to rule out other causes of swelling. These tests may include: 21 - Ultrasound. - CT scan. 22 - MRI. • Culture and sensitivity test. This involves collecting a sample of pus for testing in the 23 lab to see what bacteria grow and what antibiotics they are sensitive to. The testing sample may be: 24 - Swabbed from a salivary gland duct. - Withdrawn from a swollen gland with a needle (aspiration). 25 TREATMENT 26 Viral salivary gland infections usually clear up without treatment. Bacterial infections are usually treated with antibiotic medicine. Severe infections that cause difficulty with 27 swallowing may be treated with an IV antibiotic in the hospital. flexible scope (endoscope) may be inserted into the duct to find a stove and remove it. 1 • Breaking up a stone using sound waves. • Draining an infected gland (abscess) with a needle. 2 • In some cases, you may need surgery so your health care provider can: - Remove a stone. 3 - Drain pus from an abscess. - Remove a badly infected gland. 4 HOME CARE INSTRUCTIONS 5 • Take medicines only as directed by your health care provider. • If you were prescribed an antibiotic medicine, finish it all even if you start to feel 6 better. • Follow these instructions every few hours: 7 - Suck on a lemon candy to stimulate the flow of saliva. - Put a warm compress over the gland. 8 - Gently massage the gland. • Drink enough fluid to keep your urine clear or pale yellow. 9 • Rinse your mouth with a mature of warm water and salt every few hours. To make this mixture, add a pinch of salt to 1 cup of warm water. 10 • Practice good oral hygiene by brushing and flossing your teeth after meals and before you go to bed. 11 • Do not use any tobacco products, including cigarettes, chewing tobacco, or electronic cigarettes. 12 13 ECF No. 1-2 at 47. 14 D. Dismissal with Prejudice 15 Plaintiff alleges that Defendants violated the Eighth Amendment in the following ways. 16 Defendant Buda did not provide him with antibiotics or pain medication within a reasonable time 17 after learning of the infected gland and Plaintiff’s constant and severe pain. Plaintiff ultimately 18 did not receive antibiotics until two and a half weeks after he first reported the infection; and did 19 not receive adequate pain medication until approximately eight months later, in or around April 20 2020. Defendants were aware that Plaintiff should only be seen by an ENT doctor and failed to 21 intervene when Plaintiff was referred to an oral maxillofacial surgeon for operation. Defendant 22 Tootell failed to intubate Plaintiff after being informed that Plaintiff was having trouble breathing 23 due to swelling from the infection. ECF No. 19 at 8-9. 24 The second amended complaint again fails to state a violation of the Eighth Amendment. 25 The second amended complaint’s allegations do not give rise to a reasonable inference that 26 Defendants acted, or failed to act, in conscious disregard of an excessive risk to Plaintiff’s health. 27 Deliberate indifference to a prisoner’s serious medical needs violates the Eighth 1 97, 104 (1976). A prison official is deliberately indifferent if he knows that a prisoner faces a 2 substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate 3 it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). In order for deliberate indifference to be 4 established, therefore, there must be a purposeful act or failure to act on the part of the defendant 5 and resulting harm. See McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled in 6 part on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). 7 “A difference of opinion between a prisoner-patient and prison medical authorities regarding 8 treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th 9 Cir. 1981). Similarly, a showing of nothing more than a difference of medical opinion as to the 10 need to pursue one course of treatment over another is insufficient, as a matter of law, to establish 11 deliberate indifference. See Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). In order to 12 prevail on a claim involving choices between alternative courses of treatment, a plaintiff must 13 show that the course of treatment the doctors chose was medically unacceptable under the 14 circumstances and that he or she chose this course in conscious disregard of an excessive risk to 15 plaintiff’s health. Toguchi, 391 F.3d at 1058. A claim of medical malpractice or negligence is 16 insufficient to make out a violation of the Eighth Amendment. See Toguchi, 391 F.3d at 1060; 17 see, e.g., McGuckin, 974 F.2d at 1059 (mere negligence in diagnosing or treating medical 18 condition, without more, does not violate prisoner’s Eighth Amendment rights). 19 At most, Plaintiff has stated a difference of opinion between himself and his physicians as 20 to the appropriate course of treatment. Although Plaintiff may believe that defendant Buda 21 delayed unreasonably in providing him with antibiotics and prescription-strength pain medication; 22 that defendant Tootell should have intubated him upon learning that his throat was swelling from 23 the infection; and that Defendants should not have allowed him to be referred to an oral 24 maxillofacial surgeon, Plaintiff’s medical records and the patient education materials contradict 25 his belief that the treatment provided by Defendants was medically unacceptable. 26 Contrary to Plaintiff’s allegations, the patient education materials (discharge 27 documentation) do not establish that the only proper course of treatment was referral to an ENT 1 patient education materials recommend the medical treatment provided by Defendants. The 2 patient education materials state that the patient may need to consult an ENT for diagnosis and 3 treatment and also state that treatment may include draining an infected gland or probing and 4 widening the salivary gland to allow a stone to pass. The patient education materials do not state, 5 or imply, that the only specialist appropriate for treating a salivary gland infection is an ENT. Nor 6 do the patient education materials state, or imply, that referral to any other kind of specialist is 7 medically unacceptable and would knowingly put a patient at substantial risk of serious harm. In 8 addition, the record indicates that a referral for an ENT was made on November 2, 2019, two 9 months after Plaintiff first reported issues with his salivary gland and soon after the second course 10 of antibiotics had proven ineffective; and that the referral to the oral surgeon was ordered on 11 November 25, 2019 because Plaintiff’s condition had worsened significantly and the ENT referral 12 had not been acted upon. Given this context and the treatment options listed in the patient 13 education materials, the choice to refer Plaintiff to an oral surgeon while waiting for the ENT 14 referral was not medically unacceptable and did not consciously disregard an excessive risk to 15 Plaintiff’s health. 16 Defendant Buda’s decision to initially prescribe warm compresses and ibuprofen before 17 prescribing antibiotics and prescription strength medication is also consistent with the patient 18 education materials. The materials explain that viral salivary gland infections usually clear up 19 without treatment, but bacterial infections require antibiotics, and that the recommended home 20 treatments are warm compresses, gentle massage, stimulating the flow of saliva, and rinsing with a 21 mixture of warm water and salt. There is nothing in the record indicating that defendant Buda 22 knew that Plaintiff’s salivary gland infection was bacterial, not viral, when he first learned of it, 23 and Plaintiff was prescribed antibiotics within two weeks of reporting the salivary gland infection. 24 Given Plaintiff’s medical records and the treatment options listed in the patient education 25 materials, the choice to initially prescribe warm compresses and ibuprofen was not medically 26 unacceptable and did not consciously disregard an excessive risk to Plaintiff’s health. 27 Defendant Tootell’s failure to intubate Plaintiff upon learning that he had trouble breathing 1 Plaintiff’s health. Plaintiff argues that the failure to intubate violated the Eighth Amendment 2 because when a patient reports trouble breathing, choosing not to intubate because of the patient’s 3 discomfort is medically unacceptable. However, Plaintiff has drawn an unsupported conclusion 4 from defendant Tootell’s statements. Plaintiff reports that defendant Tootell told him that she and 5 the medical staff were so concerned when he reported having difficulty breathing that she and the 6 medical staff considered admitting him to the infirmary and intubating him, but decided against 7 him because they worried that intubation would cause him discomfort. Defendant Tootell did not 8 state or imply that intubation was the only reasonable or acceptable medical treatment for trouble 9 breathing due to swelling from an infection. Trouble breathing due to throat swelling from an 10 infection can be treated in numerous ways, including but not limited to intubation. 11 Finally, the SAC and the medical records filed with the Court indicate that prison officials, 12 including Defendants, provided Plaintiff with prompt and regular treatment for his infection. 13 After being informed of Plaintiff’s infected salivary gland on September 9, 2019, prison officials 14 provided the following treatment over the next two months: three different courses of antibiotics (a course of amoxicillin starting September 25; a course of cephalexin starting October 25; and a 15 course of clindamycin starting November 14); a November 2, 2019 referral to an ENT; a 16 November 18, 2019 culture of the infected area; and a November 25, 2019 high priority order for 17 Plaintiff to be seen by an oral surgeon for excision of what they believed to be a stone in 18 Plaintiff’s salivary gland when there was no progress on the ENT referral. The surgery was 19 scheduled for two and a half weeks after the order was put in. When the surgery was unsuccessful 20 in addressing Plaintiff’s pain or the discharge, Plaintiff was referred to, and seen by, an ENT; had 21 a CT scan of the affected area; and prescribed prescription-strength pain medication. 22 The Court finds that the SAC fails to state an Eighth Amendment violation. At most, 23 Plaintiff has alleged a difference of opinion between himself and Defendants as to the appropriate 24 medical treatment. The dismissal of the second amended action is with prejudice because Plaintiff 25 was previously granted leave to amend and has been unable to cure this deficiency. Foman v. 26 Davis, 371 U.S. 178, 182 (1962) (dismissal with prejudice may be appropriate where repeated 27 failure to cure deficiencies by amendments previously allowed). 1 CONCLUSION 2 For the foregoing reasons, the Court DISMISSES this action with prejudice for failure to 3 state a claim. 4 IT IS SO ORDERED.

5 Dated: January 4, 2024 6 JON S. TIGAR 7 nited States District Judge 8 9 10 11 a 12

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