1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAYMOND NEWSON, No. 2:18-cv-2010 CKD P 12 Plaintiff, 13 v. ORDER AND 14 STEPHEN SHAW, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff is proceeding pro se. At all times relevant, plaintiff was a prisoner at the 18 California Medical Facility and defendants Shaw and Ikegbu were employed there as physicians. 19 The claims which remain arise under the Eighth Amendment and California tort law. ECF No. 9 20 & 18. Defendants motion for summary judgment is before the court. 21 I. Standards 22 A. Summary Judgment 23 Summary judgment is appropriate when it is demonstrated that there “is no genuine 24 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 25 Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by 26 “citing to particular parts of materials in the record, including depositions, documents, 27 electronically stored information, affidavits or declarations, stipulations (including those made for 28 ///// 1 purposes of the motion only), admissions, interrogatory answers, or other materials. . .” Fed. R. 2 Civ. P. 56(c)(1)(A). 3 Summary judgment should be entered, after adequate time for discovery and upon motion, 4 against a party who fails to make a showing sufficient to establish the existence of an element 5 essential to that party’s case, and on which that party will bear the burden of proof at trial. See 6 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an 7 essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” 8 Id. 9 If the moving party meets its initial responsibility, the burden then shifts to the opposing 10 party to establish that a genuine issue as to any material fact exists. See Matsushita Elec. Indus. 11 Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of 12 this factual dispute, the opposing party may not rely upon the allegations or denials of their 13 pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 14 admissible discovery material, in support of its contention that the dispute exists or show that the 15 materials cited by the movant do not establish the absence of a genuine dispute. See Fed. R. Civ. 16 P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in 17 contention is material, i.e., a fact that might affect the outcome of the suit under the governing 18 law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. 19 Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is 20 genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving 21 party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 22 In the endeavor to establish the existence of a factual dispute, the opposing party need not 23 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 24 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 25 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 26 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 27 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 28 amendments). 1 In resolving the summary judgment motion, the evidence of the opposing party is to be 2 believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the 3 facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 4 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 5 obligation to produce a factual predicate from which the inference may be drawn. See Richards 6 v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 7 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than 8 simply show that there is some metaphysical doubt as to the material facts . . .” “Where the 9 record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, 10 there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 11 B. Eighth Amendment Denial or Delay of Medical Care 12 Denial or delay of medical care can violate the Eighth Amendment. Estelle v. Gamble, 13 429 U.S. 97, 104-05 (1976). A violation occurs when a prison official causes injury as a result of 14 his or her deliberate indifference to a prisoner’s serious medical needs. Id. 15 A plaintiff can show a “serious medical need” by demonstrating that “failure to treat a 16 prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton 17 infliction of pain.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) citing Estelle, 429 U.S. at 18 104. “Examples of serious medical needs include ‘[t]he existence of an injury that a reasonable 19 doctor or patient would find important and worthy of comment or treatment; the presence of a 20 medical condition that significantly affects an individual’s daily activities; or the existence of 21 chronic and substantial pain.’” Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) citing 22 McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1991). 23 “Deliberate indifference” includes a purposeful act or failure to respond to a prisoner’s 24 pain or possible medical need. Jett, 439 F.3d at 1096. 25 A showing of merely negligent medical care is not enough to establish a constitutional 26 violation. Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105- 27 106. A difference of opinion about the proper course of treatment is not deliberate indifference, 28 nor does a dispute between a prisoner and prison officials over the necessity for or extent of 1 medical treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 2 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Furthermore, 3 mere delay of medical treatment, “without more, is insufficient to state a claim of deliberate 4 medical indifference.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 5 1985).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAYMOND NEWSON, No. 2:18-cv-2010 CKD P 12 Plaintiff, 13 v. ORDER AND 14 STEPHEN SHAW, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff is proceeding pro se. At all times relevant, plaintiff was a prisoner at the 18 California Medical Facility and defendants Shaw and Ikegbu were employed there as physicians. 19 The claims which remain arise under the Eighth Amendment and California tort law. ECF No. 9 20 & 18. Defendants motion for summary judgment is before the court. 21 I. Standards 22 A. Summary Judgment 23 Summary judgment is appropriate when it is demonstrated that there “is no genuine 24 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 25 Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by 26 “citing to particular parts of materials in the record, including depositions, documents, 27 electronically stored information, affidavits or declarations, stipulations (including those made for 28 ///// 1 purposes of the motion only), admissions, interrogatory answers, or other materials. . .” Fed. R. 2 Civ. P. 56(c)(1)(A). 3 Summary judgment should be entered, after adequate time for discovery and upon motion, 4 against a party who fails to make a showing sufficient to establish the existence of an element 5 essential to that party’s case, and on which that party will bear the burden of proof at trial. See 6 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an 7 essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” 8 Id. 9 If the moving party meets its initial responsibility, the burden then shifts to the opposing 10 party to establish that a genuine issue as to any material fact exists. See Matsushita Elec. Indus. 11 Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of 12 this factual dispute, the opposing party may not rely upon the allegations or denials of their 13 pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 14 admissible discovery material, in support of its contention that the dispute exists or show that the 15 materials cited by the movant do not establish the absence of a genuine dispute. See Fed. R. Civ. 16 P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in 17 contention is material, i.e., a fact that might affect the outcome of the suit under the governing 18 law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. 19 Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is 20 genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving 21 party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 22 In the endeavor to establish the existence of a factual dispute, the opposing party need not 23 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 24 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 25 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 26 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 27 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 28 amendments). 1 In resolving the summary judgment motion, the evidence of the opposing party is to be 2 believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the 3 facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 4 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 5 obligation to produce a factual predicate from which the inference may be drawn. See Richards 6 v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 7 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than 8 simply show that there is some metaphysical doubt as to the material facts . . .” “Where the 9 record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, 10 there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 11 B. Eighth Amendment Denial or Delay of Medical Care 12 Denial or delay of medical care can violate the Eighth Amendment. Estelle v. Gamble, 13 429 U.S. 97, 104-05 (1976). A violation occurs when a prison official causes injury as a result of 14 his or her deliberate indifference to a prisoner’s serious medical needs. Id. 15 A plaintiff can show a “serious medical need” by demonstrating that “failure to treat a 16 prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton 17 infliction of pain.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) citing Estelle, 429 U.S. at 18 104. “Examples of serious medical needs include ‘[t]he existence of an injury that a reasonable 19 doctor or patient would find important and worthy of comment or treatment; the presence of a 20 medical condition that significantly affects an individual’s daily activities; or the existence of 21 chronic and substantial pain.’” Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) citing 22 McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1991). 23 “Deliberate indifference” includes a purposeful act or failure to respond to a prisoner’s 24 pain or possible medical need. Jett, 439 F.3d at 1096. 25 A showing of merely negligent medical care is not enough to establish a constitutional 26 violation. Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105- 27 106. A difference of opinion about the proper course of treatment is not deliberate indifference, 28 nor does a dispute between a prisoner and prison officials over the necessity for or extent of 1 medical treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 2 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Furthermore, 3 mere delay of medical treatment, “without more, is insufficient to state a claim of deliberate 4 medical indifference.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 5 1985). Where a prisoner alleges that delay of medical treatment evinces deliberate indifference, 6 the prisoner must show that the delay caused “significant harm and that defendants should have 7 known this to be the case.” Hallett v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002); see 8 McGuckin, 974 F.2d at 1060. 9 C. California Negligence by a Health Care Provider 10 In California, liability ensues for “a negligent act or omission to act by a health care provider 11 in the rendering of professional services, which act or omission is the proximate cause of a personal 12 injury.” Cal. Civ. Proc. Code § 340.5(2). “The elements of a cause of action in tort for professional 13 negligence are: (1) the duty of the professional to use such skill, prudence and diligence as other 14 members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate 15 causal connection between the negligent conduct and the resulting injury; and (4) actual loss or 16 damage resulting from the professional’s negligence.” Burgess v. Superior Court, 2 Cal. 4th 1064, 17 1077 (Cal. 1992) (citation and internal quotation marks omitted). 18 II. Defendant Dr. Shaw 19 A. Allegations 20 In his complaint, which is signed under the penalty of perjury, plaintiff alleges as follows 21 with respect to defendant Dr. Shaw: 22 1. In October 2016, plaintiff began having pain in his left elbow that radiated down to his 23 hand. The pain was so severe that it interfered with his sleep, grip, and mobility because he was 24 unable to use his walker. At the time, Dr. Shaw was his primary care provider, 25 2. On October 14, 2016, plaintiff sent a written request for treatment from Dr. Shaw 26 which went unanswered. Plaintiff sent a second request for treatment on October 17, which also 27 went unanswered. A third request was submitted on October 20, and, in response, plaintiff was 28 granted access to the medical unit on October 21. Plaintiff reported his pain and mobility 1 problems to an unidentified staff member and was told an appointment with Dr. Shaw would be 2 scheduled. 3 3. On November 7, 2016, plaintiff submitted a fourth request for medical treatment. On 4 November 9, plaintiff was again granted access to the medical facility. There he was told he 5 would see Dr. Shaw and a rheumatologist, Dr. Vo, on November 15. 6 4. Plaintiff did meet with Dr. Shaw and Dr. Vo on November 15. Plaintiff explained to 7 Dr. Shaw that he was suffering extreme pain in his left elbow which had only gotten worse over 8 the passage of time. Plaintiff also indicated the pain was causing him mobility problems. 9 Defendant Dr. Shaw told plaintiff that he would follow up with the rheumatologist and 10 neurologist. 11 5. Plaintiff met with Dr. Shaw on December 12, 2016 and explained that his problems 12 had not improved. Dr. Shaw opined that the cause of the pain could be a ligament sprain, 13 arthritis, inflammation or tendonitis, but conducted no tests. Instead, Dr. Shaw referred plaintiff 14 to a “procedure clinic.” 15 6. Plaintiff was seen by neurologist Dr. Koshy on December 27. Dr. Koshy 16 recommended Gabapentin and to repeat “NCS / EMG,” which are electrical tests of nerves and 17 muscles. However, plaintiff was not provided Gabapentin and the electrical tests were not 18 conducted. Dr. Koshy also recommended that a splint and physical therapy be considered, 19 however neither were provided. 20 7. On January 8, 2017, plaintiff filed written notice to Dr. Shaw indicating his left arm 21 still hurt and he would like a brace or something similar. Nothing was provided. 22 8. Plaintiff met with Dr. Shaw on January 17. Dr. Shaw reviewed the notes of Dr. 23 Koshy’s examination. Plaintiff advised Dr. Shaw that Dr. Koshy indicated a splint could help 24 with the pain, but a splint was not provided. Dr. Shaw referred plaintiff to “Physical Medicine 25 and Rehabilitation.” Plaintiff never saw anyone for “Physical Medicine and Rehabilitation.” 26 9. On January 27, plaintiff received a steroid injection at the “procedure clinic” from Dr. 27 Mathis. 28 ///// 1 10. Plaintiff saw Dr. Shaw on February 6, 2017. Plaintiff explained that the steroid 2 injection only worked for a few hours and other than that his pain had not subsided. Nothing was 3 done or provided. 4 11. Plaintiff saw Dr. Vo on February 21. Dr. Vo determined the pain in his left arm was 5 not related to Reynaud’s Syndrome. 6 12. On June 29, 2017, defendant Shaw prescribed capsaicin cream. 7 13. On July 11, 2017, plaintiff requested an ace bandage, heat-gel or something to 8 alleviate his pain and mobility problems. In response, Tylenol was provided, but it did not help. 9 14. On July 13, plaintiff requested in writing that he be given an X-ray. None was 10 provided. 11 15. Plaintiff complained again in writing on August 10, 2017 of continued pain and 12 mobility problems. Nothing was done. 13 16. Dr. Shaw prescribed Gabapentin on August 30. 14 17. On September 4, 2017 plaintiff filed a prisoner grievance concerning the care he had 15 received with respect to his left arm. 16 18. On October 5, 2017, Dr. Shaw ordered an X-ray of plaintiff’s left arm. The X-ray 17 was taken October 9 and revealed that his left elbow had sustained a fracture. On October 17, Dr. 18 Shaw ordered that plaintiff be permitted to use an arm sling. 19 18. Plaintiff was sent to see an orthopedist on November 14, 2017. The orthopedist told 20 plaintiff that because of the delay in diagnosis, there was nothing he could do as plaintiff’s broken 21 bone had nearly healed. 22 B. Eighth Amendment 23 Defendants argue Dr. Shaw was not at least deliberately indifferent to the condition of 24 plaintiff’s left arm. Plaintiff’s chief complaint is that Dr. Shaw failed to order an x-ray until about 25 one year after plaintiff first reported the pain in his left arm. In his declaration, Dr. Shaw 26 addresses this as follows: 27 In October 2016, Plaintiff complained of pain in his left elbow and related symptoms. . . This request focused on Plaintiff’s pain in his 28 left arm, but also noted various other conditions, including low back 1 pain, asthma, and a request for a flu shot. Plaintiff did not inform any health care provider that he had struck or acutely injured his 2 elbow. There was no bruising present at or near plaintiff’s elbow. 3 In assessing the possibility of a fracture, I am generally looking for a report of acute injury, swelling and/or bruising, physical deformity, 4 or a decrease in range of motion. In the absence of any of those factors, the community standard of care does not require the use of 5 X-rays, or other imaging studies to assess the presence of a fracture. 6 Plaintiff did not report acute injury, swelling and/or bruising, physical deformity, or a decrease in range of motion at any time in 7 association with his complaints of elbow pain. As a result, I did not believe Plaintiff had likely sustained a fracture. . . 8 Particularly in assessing Plaintiff, I noted that a number of other 9 factors were the more likely causes of Plaintiff’s ongoing complaints of pain. Notably, Plaintiff has regularly complained of pain and 10 numbness in his left arm, hand, and wrist. If I ordered an X-ray every time plaintiff complained of pain, I would be ordering X-rays every 11 month. For this reason, I must consider other factors which are indicative of a fracture. . . 12 Plaintiff submitted numerous [requests for medical care] regarding 13 his elbow pain and numerous other complaints. Plaintiff was examined on several occasions including by myself, and his pain was 14 regularly attributed to his cervical radiculitis, Raynaud’s Syndrome, carpal tunnel syndrome, or other unknown neurological causes. 15 Plaintiff was prescribed Gabapentin, a neurological pain medication, in August 2017. Again, this reflects the fact that I and Plaintiff’s 16 other health care providers, attributed his complaints of pain to his ongoing neurological conditions. 17 18 ECF No. 49-3 at 3-4. Plaintiff does not meaningfully dispute any of the above. 19 As indicated above, Dr. Shaw changed course in October, 2017 and ordered an X-ray. Id. 20 at 5. The X-ray revealed a “nondisplaced radial head fracture which may be subacute.” “No 21 evidence of joint effusion.” ECF. No. 57 at 79. Dr. Shaw does not indicate why he changed his 22 mind concerning the X-ray and there is no evidence plaintiff’s condition changed rendering an X- 23 ray a more medically appropriate course of action other than the fact that the treatments up until 24 that point had been ineffective and there was still no clear diagnosis for plaintiff’s left arm pain. 25 After a follow up X-ray on December 6, 2017, the radiologist compared the results to the 26 October 9, 2017 X-ray: 27 ///// 28 ///// 1 FINDINGS: Barely perceptible radial head fracture suggestive of healing. No new fracture or dislocation. No joint effusion. No 2 radiopaque foreign body. 3 IMPRESSION: Near completely healed radial head fracture. 4 ECF No. 57 at 132. 5 Viewing all evidence before the court in the light most favorable to plaintiff, the court 6 cannot find there is a genuine issue of material fact as to whether defendant was deliberately 7 indifferent to plaintiff’s left arm problems by failing to order an X-ray until October, 2017. There 8 is no evidence rebutting Dr. Shaw’s expert opinion that an X-ray was not within the standard of 9 care, and his explanation as to why not is reasonable. 10 As indicated above, plaintiff alleges his requests for medical treatment went unanswered 11 on certain occasions or that responses to his requests were delayed. But this is not automatically 12 attributable to Dr. Shaw as plaintiff seems to suggest. Simply because plaintiff requests to see Dr. 13 Shaw does not necessarily mean it is Dr. Shaw’s fault that such visits did not occur without any 14 evidence supporting it was his fault. Also, as reflected in Dr. Shaw’s affidavit, a request for a 15 visit at certain times prompted Dr. Shaw to review plaintiff’s medical records to determine if a 16 change in treatment was warranted. From the record before the court, including the contents of 17 numerous medical records submitted by both parties detailing attempts by several medical 18 professionals to treat plaintiff’s issues including issues with plaintiff’s left arm, it is clear that, on 19 the whole, plaintiff’s problems with his left arm were not ignored by Dr. Shaw. 20 It appears plaintiff claims that at certain times, Dr. Shaw should have taken some other 21 action other than order an X-ray, such as provide a brace or refer plaintiff to an orthopedic 22 specialist. However, plaintiff fails to point to any evidence indicating failure to provide plaintiff 23 with a brace, etc. caused plaintiff any injury or that failure to take such action amounts to 24 deliberate indifference. Again, even after it was determined that plaintiff had sustained a fracture 25 to his left elbow, essentially no action was taken. In his opposition, plaintiff asserts that when he 26 was examined on November 14, 2017 by an orthopedic surgeon after it had been determined that 27 plaintiff had sustained a fracture, the surgeon indicated rehab was needed. ECF No. 57 at 13. 28 ///// 1 However, in the report generated after the visit, no rehabilitation plan or even exercises are 2 identified. Id. at Ex. L.1 3 As indicated above, plaintiff indicates that he was in pain and notes that plaintiff was only 4 provided medication for pain relief, such as Tylenol, Gabapentin and a steroid injection on a few 5 occasions over the course of approximately one year. But, plaintiff fails to indicate what other 6 medications should have been provided and point to any evidence indicating a failure to provide 7 such medications amounts to deliberate indifference. Notably, plaintiff does not indicate that he 8 requested any pain medication other than the pain medication provided and was denied. 9 Based on all the evidence before the court, the court finds that there is no genuine issue of 10 material fact as to whether defendant Shaw was at least deliberately indifferent to plaintiff’s left 11 arm issues. Furthermore, there is a no genuine issue of material fact as to whether Dr. Shaw’s 12 failure to order an X-ray caused plaintiff any actionable injury as there is no evidence indicating 13 that an earlier diagnosis of plaintiff’s fractured elbow would have resulted in reduced pain or 14 faster healing. In this respect it is worth noting that plaintiff does not indicate his condition has 15 improved with respect to his left arm and there is evidence in the record that plaintiff was still 16 complaining of elbow pain as late as January 30, 2018. ECF No. 57 at 134. Finally, there is no 17 genuine issue of material fact as to whether Dr. Shaw’s other actions, such as not providing 18 plaintiff a brace, did cause plaintiff actionable injury. 19 B. Negligence 20 As indicated above, Dr. Shaw provides expert testimony that his treatment was within the 21 standard of care for a California physician and his testimony is mostly corroborated by Dr. Ikegbu 22 (see, 10-11 supra), especially with respect to the ordering of an X-ray. ECF No 49-4. There is no 23 expert opinion refuting Dr. Shaw or Dr. Ikegbu’s testimony. As indicated above, Dr. Shaw did 24 eventually order that plaintiff’s left arm be X-rayed and that the X-ray revealed a fracture. But, there 25 ///// 26
27 1 There is a notation that reads “ELBOW RADIAL FRACTURE: REHAB EXERCISES” but, again, no exercises or rehabilitation plan are identified after the notation nor is any other post- 28 visit treatment plan. Id. 1 is nothing before the court suggesting that the delay in the ordering of the X-ray was the result of 2 negligence. 3 As with plaintiff’s Eighth Amendment claim, there is no genuine issue of material fact as to 4 whether any of Dr. Shaw’s other actions or inactions was the proximate cause of any actionable injury 5 suffered by plaintiff. 6 For these reasons, defendants are entitled to summary judgment with respect to plaintiff’s 7 negligence claim against Dr. Shaw. 8 III. Defendant Dr. Ikegbu 9 A. Allegations 10 In his complaint, plaintiff alleges he submitted a grievance concerning the treatment he 11 had received for the pain in his left arm, and that defendant Dr. Ikegbu interviewed plaintiff as to 12 the contents of the grievance on September 26, 2017. During the interview, plaintiff told Dr. 13 Ikegbu about his extreme pain, mobility impairment and the lack of treatment he had received 14 from Dr. Shaw over the past year including that Dr. Shaw never ordered X-rays. Dr. Ikegbu took 15 no action with respect to plaintiff and denied his grievance. 16 B. Eighth Amendment 17 Defendants argue that defendant Dr. Ikegbu was not deliberately indifferent to the 18 condition of plaintiff’s left arm. Defendants have provided a copy of the grievance submitted by 19 plaintiff. In the grievance plaintiff indicates that “over the pas[t] months, I’ve been suffering 20 severe burning pain + numbness in my left arm, elbow + hand,” and “none of the treatment thus 21 far [has] help[ed] the pain . . .” ECF No. 49-4 at 31 & 33. Plaintiff also indicated the pain, 22 burning and numbness impacted his daily activities. Id. at 33. 23 In the grievance, plaintiff provided the following background concerning his condition: 24 . . . [I]t has been noted through x-rays that I have cervical arthrosis the x-ray shows one of my spine neck disk is pinching the nerve 25 affecting my left arm, I’ve been given shots, meds, electric shocks, physical therapy. Neither has help[ed] the burning [which] is at a 8 26 to 10 level, it seem as though post spinal surgery and maybe Valley Fever is contributing to these problems. 27 Id.
28 ///// 1 Plaintiff sought the following relief in his grievance: 2 Specialty treatment in cervical + spinal arthrosis area as well as . . . nerve specialist to address burning, etc.; need test for possible carpel 3 tunnel given weak left hand grip + numbness + pain, also if my doctor has run out of treatment options I’m requesting input from the 4 CP+S + the [Chief Medical Officer]. 5 Id. at 31 & 33. 6 In her affidavit, Dr. Ikegbu indicates as follows: 7 In September 2017, I reviewed one of plaintiff’s health care appeals, complaining that he was not receiving adequate treatment for 8 complaints of elbow pain. I reviewed Plaintiff’s medical records. I noted Plaintiff’s history of complaints of pain and numbness in the 9 left hand and arm. I noted Plaintiff’s ongoing treatment for a number of neurological conditions associated with Plaintiff’s complaints of 10 pain. Nothing in the records suggested to me that Plaintiff has sustained an elbow fracture. Plaintiff’s full range of motion and lack 11 of bruising suggested that such a fracture was unlikely. 12 I denied the appeal, indicating that no intervention was necessary. . . 13 In assessing the possibility of a fracture, I am generally looking for a report of acute injury, swelling and/or bruising, physical deformity, 14 or a decrease in range of motion. In the absence of any of those factors, the community standard of care does not require the use of 15 X-rays, or other imaging studies to assess the presence of a fracture. 16 Plaintiff did not report acute injury, swelling and/or bruising, physical deformity, or a decrease in range of motion at any time in 17 association with his complaints of elbow pain. As a result, I did not believe Plaintiff likely sustained a fracture. 18 I did not intervene in Plaintiff’s care, or order an X-ray of plaintiff’s 19 elbow, because I did not believe an X-ray was medically indicated. 20 Id. at 2-3. Plaintiff does not meaningfully dispute any of the above. 21 Plaintiff’s grievance was denied on October 5, 2017. Id. at 35. 22 The court agrees with defendants that there is no genuine issue of material fact as to 23 whether Dr. Ikegbu was at least deliberately indifferent to plaintiff’s problems with his arm. As 24 with Dr. Shaw, plaintiff’s primary complaint with respect to Dr. Ikegbu is that she did not order 25 an X-ray of plaintiff’s left arm. Dr. Ikegbu reviewed plaintiff’s complaints, reviewed plaintiff’s 26 medical records and then spoke with plaintiff. Dr. Ikegbu provides expert testimony which is 27 reasonable that, given all of the circumstances, an X-ray was not within the standard of care. 28 Plaintiff does not provide any expert testimony to refute Dr. Ikegbu’s. It is worthy of note that 1 Dr. Shaw ordered an x-ray shortly after Dr. Ikegbu completed her review. But, Dr. Shaw’s 2 decision to order an X-ray, on the record before the court, indicates nothing more than a 3 difference of opinion which, as indicated above, cannot establish deliberate indifference. 4 Also, plaintiff fails to point to anything suggesting Dr. Ikegbu caused plaintiff any 5 actionable harm. Dr. Ikegbu completed her review of plaintiff’s extensive medical history and 6 condition on October 5, 2017. Dr. Shaw ordered that day that plaintiff’s arm be X-rayed. Even 7 after it was revealed plaintiff had sustained an elbow fracture, no treatment was prescribed. There 8 is nothing before the court that any action taken by Dr. Ikegbu would have resulted in plaintiff not 9 suffering from an actionable injury. 10 For all of these reasons, defendants’ motion for summary judgment with respect to 11 plaintiff’s Eighth Amendment claim against Dr. Ikegbu should be granted. 12 B. Negligence 13 Defendants are entitled to summary judgment with respect to plaintiff’s negligence claim 14 against Dr. Ikegbu as well. There is no evidence before the court that Dr. Ikegbu ever acted in a 15 manner inconsistent with the skill, prudence and diligence other California physicians commonly 16 possess and exercise. Also, as with plaintiff’s Eighth Amendment claim, there is no evidence 17 suggesting a proximate causal connection between Dr. Ikegbu’s conduct and actionable injury. 18 IV. Conclusion 19 For all of the foregoing reasons, the court will recommend that defendants’ motion for 20 summary judgment be granted and this case be closed. 21 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court 22 assign a district court judge to this case. 23 IT IS HEREBY RECOMMENDED that: 24 1. Defendants October 14, 2020 motion for summary judgment (ECF No. 49) be granted; 25 and 26 2. This case be closed. 27 These findings and recommendations are submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 1 | after being served with these findings and recommendations, any party may file written 2 || objections with the court and serve a copy on all parties. Such a document should be captioned 3 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 4 || objections shall be served and filed within fourteen days after service of the objections. The 5 || parties are advised that failure to file objections within the specified time may waive the right to 6 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 7 | Dated: July 27, 2021 / hice MN fe Ho. AG CAROLYN K DELANEY? 9 UNITED STATES MAGISTRATE JUDGE 10 1] 12 | 4 B news2010.msj 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13