6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8
9 GEORGE MARTIN, 10 Case No. 17-01690 BLF (PR)
11 Plaintiff, ORDER GRANTING 12 DEFENDANTS’ MOTION 13 v. FOR SUMMARY JUDGMENT; GRANTING 14 MOTION TO RESUBMIT 15 W. MUNIZ, et al., EXHIBITS
16 Defendants. (Docket Nos. 149, 167) 17
19 Plaintiff, a California inmate, filed the instant pro se civil 20 rights action pursuant to 42 U.S.C. § 1983 against prison officials 21 at the Salinas Valley State Prison (“SVSP”). Plaintiff’s second 22 amended complaint (“SAC”) is the operative complaint in this 23 matter. Dkt. No. 129.1 After screening the SAC, the Court 24 ordered the matter to proceed on the Eighth Amendment claim 25 26 1 All page references herein are to the Docket (ECF) pages shown 27 in the header to each document and brief cited, unless otherwise with respect to Plaintiff’s pain management, including the denial 1 of corrective surgery to address the chronic pain, against 2 Defendants Dr. Kim R. Kumar, Dr. Darrin M. Bright, Tuan Anh 3 Tran (Pharmacist), Dr. Edward Miles Birdsong, and Dr. Jennifer 4 Villa at SVSP. Dkt. No. 137 at 7.2 5 Defendants filed a motion for summary judgment pursuant 6 to Rule 56 on the grounds that there is no genuine issue as to any 7 material fact, that they are entitled to judgment as a matter of law, 8 and they are also entitled to qualified immunity. Dkt. No. 149. 9 In support, Defendants filed a declaration by Defendant Dr. 10 Bright and exhibits. Dkt. Nos. 149-1, 149-2. Plaintiff filed 11 opposition along with his declaration and exhibits in support.3 12 13 2 In the same order, the Court struck portions of the SAC 14 containing allegations against Defendants Dr. Eric Sullivan and 15 Warden W. Muniz as improperly joined to this action and terminated them from this action. Dkt. No. 137 at 6. 16
17 3 Plaintiff submits over 400 pages of documents separated into Exhibits A through F. Dkt. Nos. 158-1 through 158-7. Exhibit A 18 is labeled as “Re: Dr. Kim R. Kumar participation in a series of 19 negligent events that culminated in deliberate indifference in my medical needs.” Dkt. No. 158-1 at 1 (consisting of 70 pages). 20 Exhibit B is labeled as “Re: Dr. Bright, M. Darrin, participating 21 in a series of negligent events that cause me harm; deliberate indifference to medical needs.” Dkt. No. 158-2 at 1 (consisting 22 of 55 pages). Exhibit C is labeled as “Re: Dr. Edward Miles 23 Birdsong, malicious participation in series of negligent events that caused me harm; deliberate indifference to my medical 24 needs.” Dkt. No. 158-3 at 1 (consisting of 28 pages). Exhibit D 25 is labeled as “Re: (PIC) T. A. Tran, Defend. Participation in a series of events that caused Plaintiff known harm; deliberate 26 indifference to my serious RX pharmacological therapy Dkt. Nos. 158, 158-1 through 158-7. Defendants filed a reply. 1 Dkt. No. 159. 2 Defendants later filed a motion to resubmit the exhibits in 3 support of their summary judgment motion attached to an 4 amended declaration by Defendant Dr. Bright, authenticating the 5 resubmitted medical records that are otherwise identical to those 6 originally submitted. Dkt. No. 167 at 2. Good cause appearing, 7 the motion is GRANTED. The amended declaration of 8 Defendant Bright and the authenticated exhibits newly submitted 9 under Docket No. 167-1 shall supersede those previously filed 10 with Defendants’ summary judgment motion under Docket Nos. 11 149-1 and 149-2. 12 For the reasons stated below, Defendants’ motion for 13 summary judgment is GRANTED. 14
15 DISCUSSION 16 I. Statement of Facts4 17 A. Plaintiff’s Surgery in 2001 and Transfer to SVSP 18 19 20 (consisting of 47 pages). Exhibit E is labeled as “SVSP appeals 21 exhausted in support of motion for opposition to Defend. summary of judgment [sic].” Dkt. No. 158-5 at 1 (consisting of 22 78 pages); Dkt. No. 158-6 (consisting of 91 pages). The label for 23 Exhibit F is not legible, Dkt. No. 158-7 at 1, but it contains a copy of Defendants’ response to Plaintiff’s request for 24 admissions, a copy of a guide from the Medical Board of 25 California, excerpts from California’s regulations and the state prison health care polices, and medical articles. Id. at 2-77. 26 Plaintiff transferred to SVSP on February 14, 2007. Bright 1 Decl. ¶ 95; Dkt. No. 167-1 at 10-17. At that time, Plaintiff’s 2 transfer papers noted that Plaintiff had a post-cervical 3 laminectomy and fusion of his cervical spine from C4-C7 in 4 March 2001. Bright Decl. ¶ 5; Dkt. No. 167-1 at 10. Plaintiff 5 had been issued a wheelchair due to a supposed spinal cord 6 injury. Id. 7 According to Plaintiff’s declaration and the papers he 8 submitted in support of his opposition, he underwent an 9 unnecessary surgery at Mercy Hospital in Bakersfield by 10 neurologist Dr. M. Rahimifar, not a party to this action, involving 11 a metal disc implant in his spine in May 2006, the year before he 12 was transferred to SVSP. Martin Decl. ¶¶ 5-8; Dkt. No. 157 at 3- 13 5; Dkt. No. 158-1 at 12-13. The following month he suffered a 14 fall, injuring his neck, and was again seen by Dr. Rahimifar on 15 June 22, 2006. Dkt. No. 158-1 at 14-15. In August 2006, Dr. 16 Rahimafar recommended a “flex/extension C-Spine surgery,” 17 which Plaintiff refused. Dkt. No. 158-1 at 18-22. Plaintiff 18 claims that ever since the May 2006 surgery, he has been unable 19 to use his upper or lower limbs for even a short period of time 20 without suffering paralysis/numbness and agonizing intractable 21 pain. Martin Decl. ¶ 6; Dkt. No. 15 at 5-6. According to the 22 transfer papers, it was also noted that Plaintiff had again refused a 23 24
25 5 Citations to Defendant Bright’s amended declaration refer to Docket No. 167-1 at 1-8. All other citations to Docket No. 167-1 26 are to the exhibits offered in support of Defendants’ motion for surgery in December 2006 for spinal cord decompression. Dkt. 1 No. 167-1 at 11. 2 At the time of his transfer to SVSP, Plaintiff was taking 3 three pain medications but not taking any blood pressure 4 medication. Bright Decl. ¶ 10; Dkt. No. 167-1 at 11-12. In 5 March 2007, medical staff refilled Plaintiff’s prescription for 6 tramadol, a pain reliever. Id. In July 2007, Plaintiff was given 7 atenolol, a blood pressure medication. Bright Decl. ¶ 11; Dkt. 8 No. 167-1 at 17. 9 On July 12, 2007, Plaintiff got into an altercation with 10 another inmate; a Rules Violation Report was issued 11 documenting the incident. Dkt. No. 158-2 at 10. The reporting 12 officer stated that after an inmate began swinging at Plaintiff’s 13 face with clinched fists, Plaintiff stood up from his wheelchair 14 and started swinging back with his own clinched fists. Id. On 15 July 13, 2007, progress notes from a medical visited also stated 16 that Plaintiff had gotten out of his wheelchair during an assault 17 with another inmate on July 12, 2007. Bright Decl. ¶ 5; Dkt. No. 18 167-1 at 15.6 Staff noted that Plaintiff was very flexible and ran 19 about 10 feet during that fight. Id. Another medical staff 20 documented witnessing Plaintiff run about 10 feet toward his 21 22
23 6 In his declaration, Defendant Bright states that this incident occurred on January 3, 2017. Bright Decl. ¶ 5. However, a 24 review of the medical records indicate that this incident took 25 place on July 12, 2007. Dkt. No. 167-1 at 15. It also appears that the separate report of staff witnessing Plaintiff run about 10 feet 26 took place on the same date, perhaps even based on the same wheelchair and independently sitting down in it. Id.; Dkt. No. 1 167-1 at 16. 2 In August 2007, his primary care physician at the time, who 3 is not a party to this action, indicated that Plaintiff had borderline 4 high blood pressure but did not prescribe any additional 5 medications for it. Bright Decl. ¶ 11; Dkt. No. 167-1 at 14. 6 According to the papers submitted by Plaintiff, he filed an 7 inmate grievance (Log No. SVSP-A-07-03523) claiming to have 8 an adverse reaction when taking medication under the “crush and 9 float” policy. Dkt. No. 158-1 at 25. The second level appeal 10 reviewed Plaintiff’s health record and found that he had been 11 taking prescribed medications tramadol three times a day in crush 12 and float form throughout August and September 2007, and only 13 reported experiencing a sore throat on occasion. Id. The 14 director’s level appeal also found that Plaintiff was seen various 15 times throughout the period by the PCP and nurses, and none of 16 the documentation of those visits demonstrated there was any 17 clinical correlation to his claim that his medication was the cause 18 of his sore throat. Id. at 27. 19 B. Medical Care Since 2013 20 Between February 2013 and August 2013, Plaintiff either 21 refused medications or failed to appear at the pill line to receive 22 his medications on more than 100 occasions, which were 23 prescribed by various physicians who are not a party to this 24 action. Bright Decl. ¶ 12; Dkt. No. 167-1 at 15-41. In August 25 2013, Plaintiff also refused a vaccination, and refused to be tested 26 21, 22. 1 Plaintiff filed a health care appeal form in July 2013, 2 complaining about crushed medication. Dkt. No. 158-2 at 28. 3 On September 4, 2013, Defendant Bright prepared the response 4 for the first level appeal, stating that it was denied because 5 Plaintiff was being provided crushed and floated form medication 6 pursuant to policy. Id. 7 Plaintiff was also prescribed Tylenol #3 (with codeine) for 8 the first time on December 13, 2013. Bright Decl. ¶ 13. The 9 pharmacist, Defendant Tran, provided the medication in a 10 crushed form. Dkt. No. 158-4 at 17. On January 21, 2014, staff 11 began providing Plaintiff with Tylenol #3 in liquid form, then 12 stopped on February 1, 2014. Id.; Dkt. No. 167-1 at 42-44. 13 The medical records also include numerous occasions of 14 Plaintiff’s non-compliance with SVSP medical staff throughout 15 2014. Bright Decl. ¶ 15. On January 26, 2014, and March 25, 16 2014, Plaintiff refused to take his heart medication. Id.; Dkt. No. 17 167-1 at 46. In April 2014, he refused to take Elevil, an 18 antidepressant, and Carbamazepine, which is used to treat pain. 19 Id.; Dkt. No. 167-1 at 48-49. In May 2014, Plaintiff refused to 20 take his blood pressure medication, clonidine, even after being 21 informed that such a refusal would increase the risk of a stroke 22 and could lead to paralysis or death. Id.; Dkt. No. 167-1 at 51-53. 23 That same month, Plaintiff also refused to take any of his 24 medication unless he received morphine. Id.; Dkt. No. 167-1 at 25 54. On May 14, 2014, Plaintiff saw Dr. S. Posson, a nonparty, to 26 Dr. Posson noted that Plaintiff had a chronic sore throat but 1 denied having any difficulty swallowing. Id. He received 2 extended released morphine that same day. Dkt. No. 158-2 at 32; 3 Dkt. No. 158-4 at 16. Then in June 2014, Plaintiff refused to sign 4 for copies of certain medical records, and was uncooperative and 5 argumentative with staff in July, September, and October 2014. 6 Bright Decl. ¶ 16; Dkt. No. 167-1 at 55-58; Dkt. No. 158-1 at 56- 7 57. In November 2014, he refused to wear a mobility vest, which 8 is used to identify inmates who are hearing or visually impaired 9 in the event of an emergency. Id.; Dkt. No. 167-1 at 59. He also 10 initially refused to go to an appointment with Dr. Posson on 11 December 26, 2014, but later showed up at the clinic seeking a 12 visit. Id.; Dkt. No. 167-1 at 60-61; Dkt. No. 158-1 at 60-61. 13 Plaintiff continued to be uncooperative during 2015. During 14 July and August 2015, Plaintiff refused to take medication for 15 pain and spasms on five separate occasions. Bright Decl. ¶ 17; 16 Dkt. No. 167-1 at 63-67. On March 11, 2015, Defendant 17 Birdsong noted that Plaintiff was belligerent and refusing to 18 cooperate. Id.; Dkt. No. 167-1 at 73. On August 14, 2015, 19 Defendant Birdsong met with Plaintiff to discuss his refusal to 20 take his medication and noted that Plaintiff declined to take a flu 21 shot and vaccinations for twinrix (a vaccine against hepatitis A 22 and hepatitis B) and pneumonia. Id.; Dkt. No. 167-1 at 71. On 23 August 15, 2015, Plaintiff was not cooperative during a 24 telemedicine consult with a psychiatrist, a nonparty. Id.; Dkt. 25 26 No. 167-1 at 70.7 On December 11, 2015, Plaintiff became 1 belligerent while interacting with Dr. Carl Bourne, a nonparty, 2 and called him a “liar.” Id.; Dkt. No. 167-1 at 68. 3 Plaintiff’s noncompliance continued during 2016. On May 4 3, 2016, Defendant Dr. Villa discontinued the extended release 5 morphine and ordered immediate release morphine instead. 6 Bright Decl. ¶ 19; Dkt. No. 167-1 at 107-108. However, Dr. 7 Villa discontinued the immediate release morphine on May 13, 8 2016, because Plaintiff refused to take it. Id.; Dkt. No. 167-1 at 9 104. Then followed further instances of noncompliance with 10 medical staff: on June 27, 2016, Plaintiff refused to take 11 immediate release morphine for pain, Bright Decl. ¶ 20, Dkt. No. 12 167-1 at 103; on June 30, 2016, he refused to sign a document so 13 that he could receive copies of his medical records which he had 14 requested, id., Dkt. No. 167-1 at 101-102; on July 11, 2016, 15 Plaintiff demanded that staff provide him with early release 16 morphine and again refused immediate release morphine and 17 18
19 7 Defendants also assert that on September 21, 2015, Plaintiff refused an eye exam for glaucoma. Bright Decl. ¶ 17; Dkt. No. 20 167-1 at 69. Plaintiff objects to the admission of this eye exam 21 into evidence, asserting that the Court had ordered no vision care issues could be addressed in this action. Martin Decl. ¶ 13. That 22 prohibition, however, was on Plaintiff, to limit the breath of this 23 action to his pain management issues. Dkt. No. 137 at 6. Defendants submitted this evidence as another example of 24 Plaintiff’s persistent non-compliance in response to their attempts 25 to provide treatment. Even so, the Court will sustain Plaintiff’s objection and disregard this evidence as there is plenty of other 26 evidence to support Defendants’ argument regarding Plaintiff’s gabapentin, id., Dkt. No. 167-1 at 100; he refused to go to a 1 medical appointment on July 29, 2016, id., Dkt. No. 167-1 at 99; 2 on August 22, 2016, he refused his pain medications and 3 demanded that Defendant Birdsong provide him with opioids id., 4 Dkt. No. 167-1 at 98. On August 25, 2016, Plaintiff filed an 5 inmate grievance against Defendant Villa for discontinuing his 6 immediate release morphine. Dkt. No. 167-1 at 97. 7 On October 12, 2016, Plaintiff had an MRI of the cervical 8 and thoracic spine that showed no significant disease. Bright 9 Decl. ¶ 6; Dkt. No. 167-1 at 91; Dkt. No. 158-2 at 38-41. That 10 same month, Plaintiff stated that he would no longer work with 11 medical staff and would “just deal with the courts from now on.” 12 Id. ¶ 20; Dkt. No. 167-1 at 96. On December 1, 2016, he was 13 examined by Dr. K. Kaur, not a party to this action, who noted 14 that Plaintiff informed him that he could not take crushed/float 15 medication “due to dysphagia, since 2002.” Dkt. No. 167-1 at 16 94. However, Dr. Kaur noted that after reviewing Plaintiff’s 17 records, he did not find “any limitations as far as dysphagia with 18 crushed liquids” and that Plaintiff was “eating normal.” Id. at 95. 19 Throughout 2016 and 2017, Plaintiff was given Tylenol 20 three times per day for pain. Bright Decl. ¶ 21; Dkt. No. 167-1 at 21 92. 22 On January 20, 2017, Plaintiff had a telemedicine consult 23 with Dr. D. Ramberg, to review his current thoracic and cervical 24 MRI. Dkt. No. 158-2 at 42-43. Dr. Ramberg noted that another 25 surgery to address Plaintiff’s back complaints would require a 26 result that [Plaintiff] would be happy with.” Id. at 43. Dr. 1 Ramberg opined, “I doubt that his complaints would improve.” 2 Id. 3 On March 9, 2017, Plaintiff was again seen by Dr. Kaur, 4 who noted that Plaintiff sought liquid morphine and refusing to 5 take crush and float meds because of dysphagia. Dkt. No. 158-2 6 at 47. Dr. Kaur stated that Plaintiff had “unfounded claims which 7 medically are not substantiated, such as dysphagia to crush & 8 float medications although he tolerates regular diet.” Id. 9 Plaintiff filed this action on March 28, 2017. Dkt. No. 1. 10 C. Plaintiff’s Claims 11 This action is proceeding only on Eighth Amendment 12 deliberate indifference claims based on the following allegations 13 in the SAC involving the treatment for Plaintiff’s chronic pain; it 14 does not include the improperly joined claims that were stricken 15 from this action. Dkt. No. 137 at 6. Plaintiff claims that in 16 February 2007, he was given the wrong blood pressure medicine 17 and that another pain medication, tramadol, was improperly 18 cancelled. Dkt. No. 129 at 11-13. Plaintiff claims that Defendant 19 Tran was deliberately indifferent to him from 2007 through 2015, 20 and that he has been falsely labeled as a “non-compliant” patient. 21 Id. at 13-14. Plaintiff claims that at some point in 2013, he was 22 given Tylenol with codeine but was later given a different drug 23 which tasted strange. Id. at 17-18. Plaintiff claims that his 24 prescription for extended release morphine was cancelled in 2016 25 and replaced with “crush-float morphine” which is inadequate. 26 medication, a CAT scan, and surgeries during 2016 and 2017. Id. 1 at 23-30. 2 II. Summary Judgment 3 Summary judgment is proper where the pleadings, discovery 4 and affidavits show that there is “no genuine dispute as to any 5 material fact and the movant is entitled to judgment as a matter of 6 law.” Fed. R. Civ. P. 56(a). A court will grant summary 7 judgment “against a party who fails to make a showing sufficient 8 to establish the existence of an element essential to that party’s 9 case, and on which that party will bear the burden of proof at trial 10 . . . since a complete failure of proof concerning an essential 11 element of the nonmoving party’s case necessarily renders all 12 other facts immaterial.” Celotex Corp. v. Cattrett, 477 U.S. 317, 13 322-23 (1986). A fact is material if it might affect the outcome 14 of the lawsuit under governing law, and a dispute about such a 15 material fact is genuine “if the evidence is such that a reasonable 16 jury could return a verdict for the nonmoving party.” Anderson 17 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 18 Generally, the moving party bears the initial burden of 19 identifying those portions of the record which demonstrate the 20 absence of a genuine issue of material fact. See Celotex Corp., 21 477 U.S. at 323. Where the moving party will have the burden of 22 proof on an issue at trial, it must affirmatively demonstrate that 23 no reasonable trier of fact could find other than for the moving 24 party. But on an issue for which the opposing party will have the 25 burden of proof at trial, the moving party need only point out 26 party’s case.” Id. at 325. If the evidence in opposition to the 1 motion is merely colorable, or is not significantly probative, 2 summary judgment may be granted. See Liberty Lobby, 477 U.S. 3 at 249-50. 4 The burden then shifts to the nonmoving party to “go 5 beyond the pleadings and by her own affidavits, or by the 6 ‘depositions, answers to interrogatories, and admissions on file,’ 7 designate specific facts showing that there is a genuine issue for 8 trial.’” Celotex Corp., 477 U.S. at 324 (citations omitted); Fed. 9 R. Civ. P. 56(e). “This burden is not a light one. The non- 10 moving party must show more than the mere existence of a 11 scintilla of evidence.” In re Oracle Corporation Securities 12 Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Liberty 13 Lobby, 477 U.S. at 252). “The non-moving party must do more 14 than show there is some ‘metaphysical doubt’ as to the material 15 facts at issue.” Id. (citing Matsushita Elec. Indus. Co., Ltd. v. 16 Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “In fact, the non- 17 moving party must come forth with evidence from which a jury 18 could reasonably render a verdict in the non-moving party’s 19 favor.” Id. (citing Liberty Lobby, 477 U.S. at 252). If the 20 nonmoving party fails to make this showing, “the moving party is 21 entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. 22 at 323. 23 The Court’s function on a summary judgment motion is not 24 to make credibility determinations or weigh conflicting evidence 25 with respect to a material fact. See T.W. Elec. Serv., Inc. V. 26 1987). The evidence must be viewed in the light most favorable 1 to the nonmoving party, and the inferences to be drawn from the 2 facts must be viewed in a light most favorable to the nonmoving 3 party. See id. at 631. It is not the task of the district court to 4 scour the record in search of a genuine issue of triable fact. 5 Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). The 6 nonmoving party has the burden of identifying with reasonable 7 particularity the evidence that precludes summary judgment. Id. 8 If the nonmoving party fails to do so, the district court may 9 properly grant summary judgment in favor of the moving party. 10 See id.; see, e.g., Carmen v. San Francisco Unified School 11 District, 237 F.3d 1026, 1028-29 (9th Cir. 2001). 12 A. Deliberate Indifference 13 Deliberate indifference to a prisoner’s serious medical needs 14 violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 15 104 (1976). A prison official violates the Eighth Amendment 16 only when two requirements are met: (1) the deprivation alleged 17 is, objectively, sufficiently serious, and (2) the official is, 18 subjectively, deliberately indifferent to the inmate’s health or 19 safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). 20 A “serious” medical need exists if the failure to treat a 21 prisoner’s condition could result in further significant injury or 22 the “unnecessary and wanton infliction of pain.” Id. The 23 following are examples of indications that a prisoner has a 24 “serious” need for medical treatment: the existence of an injury 25 that a reasonable doctor or patient would find important and 26 condition that significantly affects an individual’s daily activities; 1 or the existence of chronic and substantial pain. McGuckin v. 2 Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on 3 other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 4 1136 (9th Cir. 1997) (en banc). 5 A prison official is deliberately indifferent if he knows that a 6 prisoner faces a substantial risk of serious harm and disregards 7 that risk by failing to take reasonable steps to abate it. See 8 Farmer, 511 U.S. at 837. The official must both know of “facts 9 from which the inference could be drawn” that an excessive risk 10 of harm exists, and he must actually draw that inference. Id. If a 11 prison official should have been aware of the risk, but was not, 12 then the official has not violated the Eighth Amendment, no 13 matter how severe the risk. Gibson v. County of Washoe, 290 14 F.3d 1175, 1188 (9th Cir. 2002). 15 A claim of medical malpractice or negligence is insufficient 16 to make out a violation of the Eighth Amendment. See Toguchi 17 v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004); Hallett v. 18 Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Franklin v. Oregon, 19 662 F.2d 1337, 1344 (9th Cir. 1981); see, e.g., Frost v. Agnos, 20 152 F.3d 1124, 1130 (9th Cir. 1998) (finding no merit in claims 21 stemming from alleged delays in administering pain medication, 22 treating broken nose and providing replacement crutch, because 23 claims did not amount to more than negligence); McGuckin, 974 24 F.2d at 1059 (mere negligence in diagnosing or treating a medical 25 condition, without more, does not violate a prisoner’s 8th 26 Cir. 1990) (repeatedly failing to satisfy requests for aspirins and 1 antacids to alleviate headaches, nausea and pains is not 2 constitutional violation; isolated occurrences of neglect may 3 constitute grounds for medical malpractice but do not rise to level 4 of unnecessary and wanton infliction of pain). 5 B. Analysis 6 This action is based on the claim regarding treatment for 7 Plaintiff’s chronic pain related to certain longstanding injuries to 8 his neck and back, and the alleged failure to provide corrective 9 surgeries to address that pain. Dkt. No. 137 at 6. With regards to 10 this treatment, Plaintiff claims the following; (1) in February 11 2007, he was given the wrong blood pressure medicine and that 12 another pain medication, tramadol, was improperly cancelled; (2) 13 Defendant Tran was deliberately indifferent to him from 2007 14 through 2015, and that he has been falsely labeled as a “non- 15 compliant” patient; (3) at some point in 2013, he was given 16 Tylenol with codeine but was later given a different drug which 17 tasted strange; (4) his extended release morphine was cancelled 18 in 2016 and replaced with “crush-float morphine” which is 19 inadequate; and (5) he was denied pain medication, a CAT scan, 20 and surgeries during 2016 and 2017. See supra at 11. 21 Defendants do not dispute that Plaintiff’s pain issues in his 22 neck and back constitute a serious medical issue. Dkt. No. 149 at 23 12. Rather, they assert that they were not deliberately indifferent 24 to his needs. Id. Defendants assert that the evidence establishes 25 that Plaintiff’s medical needs have not been ignored at SVSP, and 26 or surgeries. Id. at 13; Bright Decl. ¶ 7. With respect to 1 Plaintiff’s claim that he needs surgery, Defendants assert that 2 there are no physical findings in his medical exams or imaging 3 that support his request for surgery. Id. Defendants assert that 4 the biggest challenge that medical staff have faced in treating 5 Plaintiff appropriately is his continuous and long history of 6 refusing medications, treatments, and evaluations, and of being 7 noncompliant with recommended treatments and medications. 8 Id. 9 Furthermore, Defendants assert that although Plaintiff insists 10 on receiving opioid medications, there is no medical evidence 11 establishing that opioids are superior to nonsteroidal anti- 12 inflammatory drugs (NSAIDS) or Tylenol in treating pain or 13 improving function in connection with chronic neck or back pain. 14 Dkt. No. 149 at 13. Defendants also dispute Plaintiff’s claim that 15 at least since 2002 he cannot take “crush and float” medication 16 because of dysphagia, the medical term for swallowing 17 difficulties, because there is no medical evidence that he has any 18 limitations with regard to swallowing. Id. Accordingly, 19 Defendants assert that there is no evidence to support Plaintiff’s 20 contention that he cannot ingest “crush and float” or “immediate 21 release” morphine. Id. With respect to the allegation that he was 22 denied pain medication during 2016 and 2017, Defendants assert 23 that he was given Tylenol three times per day for pain throughout 24 that time. Id. at 15; Bright Decl. ¶ 21. When Plaintiff was 25 offered other medications, he refused them. Id. Despite 26 assert that they consistently attempted to treat Plaintiff’s pain 1 with appropriate medications and concluded that he does not 2 need surgery. 3 With respect to the allegation that he was given wrong 4 blood pressure medication in February 2007, and that another 5 pain medication, tramadol, was improperly cancelled during that 6 period, Defendants assert it is meritless. Dkt. No. 149 at 13. 7 Defendants assert that the medical records indicate that Plaintiff 8 was not taking blood pressure medication when he was 9 transferred to SVSP in 2007. Id. Plaintiff was first given 10 atenolol, a blood pressure medication, on July 12, 2007. Id. In 11 addition, Defendants assert that medical staff refilled Plaintiff’s 12 prescription for tramadol in March 2007. Id. at 14. 13 With regard to the allegation that Defendant Tran was 14 deliberately indifferent to Plaintiff and that he was falsely labeled 15 as a “non-compliant” patient, Defendants assert that there were 16 numerous instances in which Plaintiff was noncompliant with 17 medical staff from 2013 through 2016. Dkt. No. 149 at 14-15. 18 With respect to the allegation that Plaintiff was provided 19 Tylenol with codeine at some point in 2013, but was later given a 20 different drug which tasted strange, Defendants assert that their 21 actions during that period did not violate the Eighth Amendment. 22 Dkt. No. 149 at 15. Defendants assert that the medical records 23 show that Plaintiff was first prescribed Tylenol #3 on December 24 13, 2014. Id. On January 21, 2014, staff began providing him 25 with liquid Tylenol #3, which likely tasted strange to Plaintiff. 26 February 1, 2014. Id. Defendants assert that these actions were 1 part of their ongoing efforts to treat Plaintiff’s pain. 2 In opposition, Plaintiff asserts that Defendants have violated 3 his Eighth Amendment rights with their “excessive denial of pain 4 management medicine,” failure to treat his “pre-existing 5 neurological and orthopedic damages to prevent worsening, and 6 failure to place him in a medical facility conducive to his pre- 7 existing and worsening condition. Dkt. No. 157 at 3. Plaintiff 8 asserts that there are no records to support a 2001 spinal surgery 9 contrary to Defendant Bright’s declaration. Id. at 6. Plaintiff 10 asserts that his exhibits “A thru F” show that he has serious 11 neurological and orthopedic injuries to warn of medical treatment 12 or need for corrective surgeries. Id. at 9. In his declaration, 13 Plaintiff recounts problems with his neck and back since 2003 14 and a damaging surgery in May 2006. Martin Decl. ¶¶ 4-9, Dkt. 15 No. 158. Plaintiff asserts generally that there remain genuine 16 issues of material facts and that “each Defendant knew and 17 disregarded the laws to maliciously inflict harm and to seek 18 [Plaintiff’s] demise.” Id. at ¶ 10. Plaintiff asserts that Defendant 19 Bright has failed “to offer any law or approved state license for 20 the unlawful practice of crush-float drug dispensed… without 21 consent.” Id. at ¶ 11. He asserts that he had a right to withhold 22 consent to taking crush-float medication, and that he cannot be 23 deemed non-compliant for withholding consent. Id. at ¶14. 24 Plaintiff asserts that Defendants are focusing on covering up and 25 concealing “the thoracic spinal damages that [have] been 26 ¶ 19. 1 In reply, Defendants assert that Plaintiff’s opposition is 2 largely incoherent and fails to address any of their contentions. 3 Dkt. No. 159 at 2. Defendants assert that the evidence they 4 submit establishes that Plaintiff does not have a spinal cord injury 5 and does not need surgery. Id.; id. at 3. They also assert that 6 there is no evidence that Plaintiff has any limitations in 7 swallowing that would prevent him from ingesting “crust and 8 float” medication. Id. Rather, Defendants assert, the evidence 9 indicates that medical staff at SVSP have consistently attempted 10 to provide appropriate care for Plaintiff’s pain despite his 11 belligerence and noncompliance, and that their biggest obstacle 12 in treating Plaintiff properly has been his continuous history of 13 refusing medications, treatments, and evaluations, and being 14 noncompliant with recommended treatments and medications. 15 Id. They assert, therefore, that Plaintiff’s Eighth Amendment 16 claim against them must fail. Id. at 5. 17 Viewing the evidence in the light most favorable to Plaintiff, 18 the Court finds there exists no genuine dispute as to any material 19 fact relating to Plaintiff’s claim of deliberate indifference against 20 Defendants. The evidence submitted by Defendants establishes 21 that there is an absence of evidence to support Plaintiff’s claim 22 that Defendants provided constitutionally deficient treatment for 23 his chronic pain, including the failure to provide corrective 24 surgeries. Rather, his medical records and inmate grievances 25 show that Plaintiff’s main objections to the treatment provided by 26 float form and switching him from extended relief morphine to 1 immediate relief morphine. See supra at 7, 8, 9, 10, 11. He 2 repeatedly asserted throughout 2013 through 2017 that he could 3 not take medication in crush-float form because he has trouble 4 swallowing due to dysphagia. Id. However, the various treating 5 physicians, both parties and nonparties, found no evidence to 6 substantiate this claim. Id. In fact, one appeal decision noted 7 that during August and September 2007, Plaintiff was able to 8 take tramadol three times a day in crush and float form and only 9 reported experiencing a sore throat on occasion, with no apparent 10 correlation to the form of his medication. Id. at 6. Plaintiff’s 11 assertion in this regard have also been inconsistent, as during one 12 visit on May 14, 2014, he stated to Dr. Posson that although he 13 had a chronic sore throat, he had no difficulty swallowing. Id. at 14 7-8. Furthermore, doctors noted that despite his claim of 15 dysphagia, Plaintiff was still eating normally and tolerating a 16 regular diet. Id. at 10, 11. The evidence shows that Defendants 17 were aware that Plaintiff was able to swallow his medication in 18 crush-float form and that his ability to eat a normal diet 19 contradicted any indication that he had dysphagia. Accordingly, 20 it cannot be said that they knew of an excessive risk of harm to 21 Plaintiff if they continued to prescribe crush and float form where 22 Plaintiff was able to ingest it but simply chose not to. The same 23 is true of the extended release morphine versus the immediate 24 release morphine: Defendants provided morphine for his pain 25 which Plaintiff rejected because of the prescribed form of the 26 Plaintiff receiving treatment for his chronic pain was his own 1 conduct, i.e., failing to show up for pill call and refusing to take 2 his medication, because he essentially disagreed with 3 Defendants’ chosen course of treatment of giving medication in 4 crush and float form or as extended release or immediate release. 5 However, this mere difference of medical opinion as to the need 6 to pursue one course of treatment over another is insufficient, as a 7 matter of law, to establish deliberate indifference. See Toguchi, 8 391 F.3d at 1058; Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 9 1989). Therefore, it cannot be said that Defendants acted with 10 deliberate indifference to Plaintiff’s pain when they continuously 11 prescribed medication which he repeatedly refused. 12 Furthermore, Defendants have also demonstrated the 13 absence of a genuine issue of material fact with respect to 14 Plaintiff’s claim that surgery should have been provided to treat 15 his pain. Defendants assert that there are no physical findings in 16 Plaintiff’s medical exams or imaging to support his request for 17 surgery. See supra at 16-17. A review of the medical records 18 submitted by both parties reveals no evidence that surgery was 19 ever recommended to alleviate Plaintiff’s chronic pain but then 20 denied. Rather, Plaintiff states that he had one damaging surgery 21 in May 2006 which caused injuries to his limbs resulting in either 22 “paralysis/numbness” or “agonizing intractable pain,” and when 23 the same surgeon recommended another surgery a few months 24 later, Plaintiff refused it. Id. at 4. The records also indicate that 25 Plaintiff again refused surgery in December 2006. Id. This 26 arrived at SVSP. The only mention of surgery thereafter appears 1 in the medical records submitted by Plaintiff from January 2017, 2 when he had a telemedicine consult with Dr. Ramberg. Id. at 10. 3 Dr. Ramberg’s conclusion at that time was that another surgery to 4 address Plaintiff’s back complaints would require a “major 5 operation with significant risks” which was not likely to result in 6 any change that Plaintiff would be happy with. Id. Dr. Ramberg 7 opined that he doubted that Plaintiff’s complaints would improve. 8 Id. This opinion by a nonparty does indicates that surgery was 9 not a viable option to alleviate Plaintiff’s chronic pain such that 10 Defendants’ denial of the surgery cannot be considered deliberate 11 indifference. 12 To refute Defendants’ showing of an absence of a genuine 13 issue of material fact, Plaintiff must designate specific facts 14 showing there is a genuine issue for trial. See Celotex Corp., 477 15 U.S. at 324. Plaintiff has failed to do so. First of all, although 16 Plaintiff rejects Defendant Bright’s assertion that he had surgery 17 in March 2001 as indicated by his transfer papers to SVSP, see 18 supra at 14, this dispute is not over a material fact since a surgery 19 that did or did not take place nearly twenty years ago while 20 incarcerated at a different institution is not relevant on the issue 21 of whether SVSP Defendants denied Plaintiff treatment for his 22 chronic pain as he claims. Secondly, Plaintiff asserts that he did 23 not give “consent” to the type of medication prescribed and that 24 he should not be deemed noncompliant thereby. Id. However, 25 his decision to reject otherwise appropriately prescribed pain 26 indifference with respect to his pain management where they 1 were unaware of any hindrance to his ability to ingest the 2 medication. The risk of harm to Plaintiff was created by his own 3 refusal to take the medication as prescribed, not by any action on 4 the part of Defendants. 5 In support of his opposition, Plaintiff submitted over 400 6 pages of documents separated into Exhibits A through F, but fails 7 to explain the relevancy of much of these papers. Dkt. Nos. 158- 8 1 through 158-7. Plaintiff refers to these exhibits in general as 9 “medical records, documents, appeals, policies, statutes, 10 regulations, CDCR memorandum, letters from state experts, state 11 and federal agencies, actions under president[ial] authority, and 12 local state agencies acting under governor authority and state and 13 federal class action court orders (Plata/Armstrong/Clark).” 14 Martin Decl. ¶ 9, Dkt. No. 158 at 5-6. Other than being grouped 15 into 6 separate exhibits with a general description on the first 16 page, the documents in each exhibit are presented in no apparent 17 order. See supra at 2, fn. 3. Some documents included in one 18 exhibit are also duplicated in another. See, e.g., Dkt. Nos. 158-2 19 at 32, 158-4 at 16. Plaintiff’s submission of these documents is 20 also inadequate to establish deliberate indifference because he 21 describes some of the exhibits as containing evidence of a “series 22 of negligent events.” See supra at 2, fn. 3. Negligence is 23 insufficient to make out a violation of the Eighth Amendment. 24 See Toguchi, 391 F.3d at 1060. Moreover, Plaintiff provides no 25 description of the allegedly negligent events contained in the 26 knew that he faced a substantial risk of serious harm and 1 disregarded that risk by failing to take reasonable steps to abate 2 it. See Farmer, 511 U.S. at 837. 3 Without any specific explanation from Plaintiff, the Court 4 cannot determine the relevancy of much of these documents. See 5 Fed. R. Evid. 401, 402. Plaintiff makes very little reference to 6 specific documents in the exhibits in either his opposition brief or 7 his declaration to support his arguments and assertions; rather, he 8 frequently refers to the exhibits “A thru F” as a whole or to an 9 entire exhibit or lengthy pages therein. See, e.g., Dkt. No. 157 at 10 4, 7, 9, 10; Dkt. No. 158 at 10. Therefore, the Court has only 11 considered the medical records and inmate appeals therein that 12 contain clearly relevant facts pertaining to the issues in this 13 matter as included in the statement of facts above. See supra at 14 2-8. Otherwise, for lack of any specific explanation or argument 15 from Plaintiff establishing the relevancy of these documents, or 16 their authenticity, the remainder of his papers cannot be 17 considered evidence. See Fed. R. Evid. 901(a). 18 Based on the foregoing, Plaintiff has failed in opposition to 19 meet his burden of pointing to specific facts showing that there is 20 a genuine issue for trial or produce evidence from which a jury 21 could reasonably render a verdict in Plaintiff’s favor. See Liberty 22 Lobby, 477 U.S. at 252. 23 Defendants have also shown that there is no genuine dispute 24 as to any material fact with respect to the remaining allegations 25 regarding Plaintiff’s treatment. See supra at 12. First with 26 medicine in February 2007, the evidence shows that Plaintiff was 1 not taking blood pressure medication when he was transferred to 2 SVSP in February 2007. See supra at 3. He was not prescribed 3 blood pressure medication atenolol until July 2007. Id. at 4, 13. 4 Accordingly, this claim is without any factual basis. Nor is there 5 any factual basis for Plaintiff’s claim that Defendants improperly 6 cancelled his prescription for tramadol as the medical records 7 show that the prescription was refilled in March 2007. Id. 8 Plaintiff offers no evidence in opposition to establish a dispute 9 over this fact. 10 With respect to the claim that Defendant Tran was 11 deliberately indifferent for falsely labelling Plaintiff as “non- 12 compliant,” Defendants have demonstrated that the medical 13 records contain numerous instances of Plaintiff’s non-compliance 14 from 2013 through 2016. See supra at 3-11. These instances 15 include repeated failures to appear at the pill line to receive his 16 medication, refusing vaccinations or to be tested for various 17 diseases, refusals to take various medications for his heart, 18 antidepressants, blood pressure, and pain management, being 19 belligerent and argumentative at clinical visits, and refusals to go 20 to medical appointments. Id. Accordingly, there is no genuine 21 dispute that Plaintiff was actively non-compliant during the 22 relevant time period. 23 Lastly, with respect to the claim that Plaintiff was given 24 Tylenol with codeine in 2013 but was later given a different drug 25 which tasted strange, Defendants have provided an explanation 26 This incident regarding the strange tasting medication contains no 1 indication that Defendants were aware of an excessive risk to 2 Plaintiff which they disregarded. As the undisputed facts show, 3 the medicine in liquid form was shortly discontinued. Id. at 5. 4 Accordingly, Defendants have shown the absence of a genuine 5 issue of material fact with respect to this claim. 6 Based on the undisputed facts, Defendants have shown there 7 is an absence of a genuine dispute of material fact with respect to 8 the Eighth Amendment claims against them. See Celotex Corp., 9 477 U.S. at 323. Plaintiff has failed to meet his burden of 10 identifying with reasonable particularity the evidence that 11 precludes summary judgment, see Keenan, 91 F.3d at 1279, or 12 submit evidence from which a jury could reasonably render a 13 verdict in his favor, In re Oracle Corporation Securities 14 Litigation, 627 F.3d at 387. Accordingly, Defendants are entitled 15 to summary judgment on all the claims against them. See Celotex 16 Corp., 477 U.S. at 323.8 17
18 CONCLUSION 19 For the reasons stated above, Defendants Dr. Kim R. 20 Kumar, Dr. Darrin M. Bright, Tuan Anh Tran, Dr. Edward Miles 21 Birdsong, and Dr. Jennifer Villa’s motion for summary judgment 22 is GRANTED. Dkt. No. 149. The Eighth Amendment 23 24
25 8 Because the Court finds no constitutional violation, it is not necessary to address Defendants’ remaining arguments regarding 26 punitive damages and qualified immunity. Dkt. No. 149 at 16- 1 || deliberate indifference claims against them are DISMISSED 2 || with prejudice. 3 This order terminates Docket Nos. 149 and 167. 4 The Clerk shall close the file. 5 IT IS SO ORDERED. 6 7 || Dated: _December 21, 2020_ jh OM hhw gman 8 BETH LABSON FREEMAN 9 United States District Judge 10 1 12
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19 20 21 22 23 24 25 || Order Granting MSJ PRO-SE\BLFICR.17\01690Martin_grant-MSJ 26 27