1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JASON SMITH, 11 Case No. 19-02119 BLF (PR) Plaintiff, 12 ORDER GRANTING v. DEFENDANTS’ MOTION FOR 13 SUMMARY JUDGMENT 14 DR. LAW FU, et al., 15 Defendants. (Docket No. 29) 16
17 18 Plaintiff, a California inmate, filed the instant pro se civil rights action pursuant to 19 42 U.S.C. § 1983 against medical staff at the Correctional Training Facility (“CTF”). Dkt. 20 No. 1. The Court found the complaint stated a cognizable claim under the Eighth 21 Amendment and ordered Defendants Dr. Law Fu, Dr. Rachel Ross,1 Dr. Mark Kowall,2 M. 22 Votaw, and S. Posson to file a motion for summary judgment or other dispositive motion. 23 Dkt. No. 4.3 24 1 Defendant Dr. Rachel Ross has not yet been served, and the last request for waiver of 25 summons sent to her at the address provided by Plaintiff has not been returned. Dkt. Nos. 16, 20, 22. 26
2 Defendant Dr. Mark Kowall separately filed a motion to dismiss and motion for summary 27 judgment which has been addressed in a separate order. Dkt. Nos. 27, 39, 51. 1 Defendants Fu, Votaw, and Posson filed a motion for summary judgment pursuant 2 to Rule 56 on the ground that undisputed material facts establish that they did not act with 3 deliberate indifference to any serious medical need. Dkt. No. 29. In support, Defendants 4 filed declarations and exhibits.4 Id. Plaintiff filed opposition along with a declaration and 5 exhibits in support. Dkt. Nos. 45, 46. Defendants filed a reply. Dkt. No. 47. 6 For the reasons stated below, Defendants’ motion for summary judgment is 7 GRANTED. 8 9 DISCUSSION 10 I. Statement of Facts5 11 A. Parties 12 Plaintiff is an inmate at the Correctional Training Facility (“CTF”) in Central 13 Soledad, where he was housed during the underlying events of this action. Dkt. No. 1 at 1. 14 Defendant Dr. Fu is a physician and surgeon, who is employed by the CDCR and 15 currently works at Deuel Vocational Institution (“DVI”) in Tracy. Fu Decl. ¶ 1, Dkt. No. 16 29-2. Defendant Fu was working at CTF at the time of the underlying events of this 17 action. Id. Defendant Fu reviewed Plaintiff’s medical records maintained by the CDCR 18 and is familiar with its contents. Id. ¶ 4, Ex. A. 19 Defendant Dr. Posson is an osteopathic physician and surgeon, who is currently 20 employed by the CDCR as Chief Medical Executive at CTF. Posson Decl. ¶ 1. His 21 state a First Amendment claim, but Plaintiff filed notice that he wished to proceed solely 22 on the Eighth Amendment claim. Dkt. No. 5. Accordingly, the First Amendment claim was stricken from the complaint. Dkt. No. 6 at 1. 23
4 In support of their summary judgment motion, Defendants submit the declarations of 24 Defendant Fu, Dkt. No. 29-2, Defendant Posson, Dkt. No. 29-3, Defendant Votaw, Dkt. No. 29-4, and counsel Wil Fong, Dkt. No. 29-5. The declarations are accompanied by 25 exhibits that contain authenticated copies of excerpts from Plaintiff’s health care records and inmate appeal records. Id. 26 1 responsibilities include overseeing medical care services to inmates. Id. Defendant 2 Posson reviewed Plaintiff’s health care grievance package, his health records, and all 3 pertinent departmental policies and procedures. Id. ¶ 8. 4 Defendant M. Votaw is employed by the CDCR as a Prison Health Care Grievance 5 Coordinator at CTF. Votaw Decl. ¶ 1. Her responsibilities involve processing and 6 forwarding 602 appeals to CDCR medical staff for review in accordance with Title 15 7 guidelines. Id. ¶ 8. Defendant Votaw reviewed Plaintiff’s health care appeal records 8 maintained by the CDCR and is familiar with its contents, including Plaintiff’s appeal No 9 CTF HC 18001258, related to this lawsuit. Id. ¶ 3, Ex. A. 10 B. Methadone Taper 11 Plaintiff had surgery on his right shoulder on June 10, 2015. Smith Decl. ¶ 9, Dkt. 12 No. 46; id., Ex. C. He was prescribed Methadone (15 to 20 mg per day) to threat his 13 chronic pain as of June 17, 2015. Id., Ex. D. 14 Plaintiff was diagnosed with osteoarthritis in his right shoulder on October 12, 15 2016. Fu Decl. ¶ 7, Ex. A at CDCR-000010. At that time, Plaintiff was still prescribed 16 Methadone, an opioid pain medication, for 15 mg daily (10 mg in the morning, and 5 mg 17 in the afternoon). Id., Ex. A at CDCR-000159. 18 On March 22, 2018, as part of his treatment plan, Plaintiff signed a Chronic Pain 19 Provider-Patient Agreement/Informed Consent for Opioid Pain Medication with his 20 primary care provider (“PCP”), Dr. Friederichs. Fu Decl. ¶ 8, Ex. A at 000122. In that 21 agreement, Plaintiff agreed that while he was taking Methadone, he would not use any 22 other non-prescribed mood-altering drugs. Id. Plaintiff also agreed to routine urine drug 23 testing and acknowledged that testing positive for improper drug use could result in his 24 Methadone being tapered and stopped. Id. 25 On May 21, 2018, Plaintiff submitted a urine sample for drug testing which came 26 back positive for cannabis/marijuana. Fu Decl. ¶ 9, Ex. A at CDCR-000159, 000281. 1 CDCR policy. Id. According to Defendants, using marijuana while taking Methadone 2 posed an adverse health risk to Plaintiff as doing so increases the risk of central nervous 3 system depression. Id. Plaintiff later challenged the validity of the positive urine sample, 4 contending that the result could have been a false positive because he was taking other 5 medication, i.e., Motrin, Ibuprofen, and Naproxen, which was available at the prison’s 6 canteen, free of cost. Smith Decl. ¶ 11, Ex. E. 7 Defendant Fu saw Plaintiff one time on July 29, 2018, during a clinic appointment 8 at CTF. Id. ¶ 6. Defendant Fu was not Plaintiff’s primary care provider, but he evaluated 9 Plaintiff on that date while covering an extra work shift at CTF. Id., Ex. A at CDCR-0681. 10 At this appointment, Defendant Fu tapered Plaintiff off Methadone due to his pain contract 11 violation for testing positive for cannabis on May 21, 2018. Id. ¶ 10, Ex. A at CDCR- 12 000156-000157, 000222, 000255. At that time, Plaintiff was being provided Methadone, 13 15 mg daily. Id. Defendant Fu’s taper plan consisted of 10 mg of Methadone daily for 14 seven days, then 5 mg daily for another seven days. Id. ¶ 11, Ex. A at CDCR-000020, 15 000021, 000158.6 As an alternative pain medication, Defendant Fu offered Plaintiff 16 Tylenol 3 (Tylenol with codeine), but Plaintiff stated he could not take that medication 17 because he was allergic to codeine. Fu Decl. ¶ 12; Smith Decl. ¶ 12. Defendant Fu noted 18 that Plaintiff would follow-up with his PCP for alternative treatment for his shoulder and 19 further evaluation of his chronic pain care. Id., Ex. A at CDCR-000157. Defendant Fu 20 had no further involvement in Plaintiff’s medical care after that appointment. 21 According to Plaintiff, Defendant Fu was the only physician who made the decision 22 to discontinue his methadone treatment on July 29, 2018.7 Smith Decl. ¶ 12. Plaintiff also 23 6 This prescription is reflected in Plaintiff’s medical records as Methadone, 5 mg, 24 BIDAM+PM (once in the morning and once in the afternoon) from 7/29/18 (first dose) to 8/5/18 (stop date); and then 5 mg, qPM (once in the afternoon) from 8/5/18 (first dose) to 25 8/12/18 (stop date).
26 7 Defendants assert that Dr. Anderson, not a party to this action, made the decision to 1 states that Defendant Fu told him during their appointment that had Plaintiff signed the 2 waiver of liability presented to him by Defendant Kowall on July 25, 2018, for an 3 evaluation for orthopedic surgery, the methadone treatment would not have been 4 discontinued. Smith Decl. ¶ 15. 5 Plaintiff had three follow-up appointments thereafter regarding his pain 6 management care. First on August 6, 2018, Plaintiff met with Defendant Dr. Ross, 7 complaining of his methadone tapering. Fu Decl., Ex. B at CDCR 000155, Dkt. No. 29-1 8 at 19. According to the progress notes, Defendant Ross discussed the 4 classes of drugs to 9 try help manage his chronic pain: acetaminophen, anti-inflammatories that are 10 nonsteroidal, antiseizure medicine, and antidepressants. Id. Defendant Ross also informed 11 Plaintiff of the option to use Capsaicin, a cream that has been known to help with chronic 12 pain in the past. Id. The notes indicate that Plaintiff chose a trial of the Capsaicin Cream. 13 Id. Defendant Ross noted that Plaintiff’s taper of Methadone would finish in 6 days. Id. 14 Plaintiff’s Methadone taper finished on August 12, 2018. Smith Decl. ¶ 20. 15 Plaintiff had his next follow-up on September 6, 2018, with Dr. Anderson, who is 16 not a party to this action. Fu Decl., Ex. B at CDCR 000154-000155, Dkt. No. 29-1 at 18- 17 19. The progress notes indicate that Plaintiff was “very upset” regarding the Methadone 18 taper and requested to be placed back on it due to uncontrolled pain. Id. at CDCR-000154. 19 Dr. Anderson discussed with Plaintiff “at length” the reason for the Methadone taper, i.e., 20 the breach in pain management contract. Id. at CDCR-000155. Dr. Anderson indicated 21 that she would not reinstate the Methadone but would do a trial of non-narcotic 22 medication, “oxcarbazepine twice daily.” Id. 23
24 000112; Dkt. No. 29-1 at 11-12. On September 9, 2019, Nurse Carlos Soriano sent an electronic message to Dr. Anderson regarding Plaintiff’s prescription for oxcarbazepine, 25 which Plaintiff reported was “not working for him.” Id., Ex. A at CDCR-000112. In response on September 12, 2018, Dr. Anderson messaged, “I discontinued it,” which 26 clearly refers to the oxcarbazepine, not the methadone. Id. Dr. Anderson then states: 1 Plaintiff had another follow-up on September 27, 2018, with Dr. Thao Nguyen, not 2 a party to this action. Fu Decl., Ex. B at CDCR 000152-000153, Dkt. No. 29-1 at 16-17. 3 The progress notes indicate that Plaintiff was still “very upset” over the Methadone taper. 4 Id. at CDCR-000152. Dr. Nguyen noted that Plaintiff had tried “trileptal, sulindac, 5 ibuprofen, naproxen, and Tylenol 3.” Id. at CDCR-000153. In response to Plaintiff’s 6 request for PT (physical therapy) and theraband, Dr. Nguyen “referred him.” Id. Elavil 7 was also prescribed to help Plaintiff sleep. Id. 8 According to Plaintiff, the only medication he was prescribed to alleviate his 9 chronic pain and opioid withdrawal from August 12, 2018 to September 6, 2018, was 10 Capsaicin Cream, which only inflamed his right shoulder chronic pain. Smith Decl. ¶ 20. 11 Three days after his last Methadone dose on August 12, 2018, Plaintiff filed an 12 “emergency” health care appeal seeking care for his chronic pain and opioid withdrawal 13 symptoms, i.e., headaches, dizziness, diarrhea, cramps, etc. Id. ¶¶ 20, 21. That appeal is 14 discussed below. 15 C. Health Care Appeal 16 On August 15, 2018, Plaintiff submitted a 602 Health Care Appeal (“602 Appeal”), 17 complaining of being removed from Methadone; it was assigned appeal No. CTF HC 18 18001258. Votaw Decl. ¶ 5, Ex. A at CDCR-00679. Pursuant to departmental procedure, 19 Plaintiff’s appeal was clinically triaged on August 16, 2018, by M. Chua, Health Care 20 Appeals Registered Nurse, to determine if his appeal was to be processed on an expedited 21 basis. Id. ¶ 6, Ex. A at CDCR-00679. RN Chua noted Plaintiff’s appeal should be 22 processed as a non-expedited appeal. Id. 23 On August 21, 2018, Defendant Votaw screened the appeal, and assigned it to the 24 Central Clinic Primary Care Provider. Votaw Decl. ¶ 7, Ex. A at CDCR-00679. She does 25 not determinate whether an inmate’s 602 appeals should be processed as expedited or non- 26 expedited and did not do so with respect to Plaintiff’s appeal. Id. ¶ 9. The determination 1 licensure. Id. 2 On October 18, 2018, Defendant Posson prepared the Institutional Level Response 3 for Plaintiff’s 602 Health Care Appeal (“602 Appeal”) regarding Plaintiff’s complaint of 4 being removed from Methadone. Posson Decl. ¶ 7, Ex. B at CDCR-00682-00684. A face- 5 to-face interview was not conducted as Plaintiff did not request one by initialing the 6 appropriate box on the 602 Appeal grievance form. Id., Ex. B at CDCR-00679. Defendant 7 Posson’s response noted the fact that Plaintiff had tested positive for marijuana after a 8 random urine drug screen with his PCP on May 21, 2018. Id. ¶ 8, Ex. A at CDCR-000159, 9 000281; id., Ex. B at CDCR-00683. It was also noted that Plaintiff continued to receive 10 Methadone until he was seen for a follow-up with Defendant Fu on July 29, 2018. Id. ¶ 9. 11 At that appointment, Defendant Fu advised Plaintiff that his positive marijuana urine drug 12 screen constituted a violation of his pain care contract. Id., Ex. A at CDCR-000156- 13 000157; id., Ex. B at CDCR-00683. Plaintiff’s plan of care was changed to taper him off 14 Methadone, with a follow-up to discuss alternative pain management therapies such as 15 oxcarbazepine. Id., Ex. A at CDCR-000020, 000021, 000154-055, 000158; id., Ex B at 16 CDCR-00683. Defendant Posson also noted that Plaintiff had informed his “PCP” on July 17 29, 2018, that he did not want to sign the liability documents required for treatment by the 18 outside specialist, and that in refusing to sign, he was only refusing to waive liability and 19 not the procedure. Id. ¶ 11, Ex. A at CDCR-000156; id., Ex. B at CDCR-00683. 20 Defendant Posson’s response informed Plaintiff that while he has the right to refuse most 21 health care, Plaintiff is encouraged to cooperate with his health care providers to achieve 22 optimal clinical outcome, and he also has the right to refuse to sign waivers or consents, 23 but it may result in the specialty provider exercising their right to refuse treatment. Id. 24 Defendant Posson also informed Plaintiff that patient-specific factors such as 25 comorbidities, previous history, and risk/benefit assessment are considered when making 26 drug selection. Id. ¶ 12, Ex. B at CDCR-000683. Plaintiff was also informed that opioids 1 and non-opioid therapies are preferred for managing chronic non-cancer pain. Id. 2 Defendant Posson stated that the opioid therapy guidelines outlined in the CCHCS Care 3 Guide: Pain Management Part 3 – Opioid Therapy, which sets forth the CDCR’s policy, 4 are based on the 2016 Centers for Disease Control and Prevention Guidelines for 5 Prescribing Opioids. Id. Defendant Posson stated that Plaintiff’s medical condition would 6 continue to be monitored, with care provided as determined as medically or clinically 7 indicated by the PCP. Id. ¶ 13, Ex. B at CDCR-0183-0184, 0302. Lastly, Defendant 8 Posson stated that California law directs Plaintiff’s health care providers to offer and 9 provide only the care they determine to be currently medically or clinically necessary for 10 him, in accordance with appropriate policies and procedures. Id. ¶ 14, Ex, B at CDCR- 11 00684. Previous orders from other health care facilities or staff, input from health care 12 consultants, and/or his own personal preferences may be considered, but do not control the 13 professional judgment of his current health care providers. Id. Based on these reasons, 14 Defendant Posson’s decision at the Institutional Level Response was that no additional 15 intervention was needed. Id. ¶ 15, Ex. B at CDCR-00682-00684. 16 According to Plaintiff, various medical providers, including his surgeon Dr. Paik, 17 PCP Dr. T. Friederichs, and Dr. Anderson, had recommended physical therapy as recently 18 as September 6, 2018. Smith Decl. ¶ 24, Ex. L. 19 II. Summary Judgment 20 Summary judgment is proper where the pleadings, discovery and affidavits show 21 that there is “no genuine dispute as to any material fact and the movant is entitled to 22 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment 23 “against a party who fails to make a showing sufficient to establish the existence of an 24 element essential to that party’s case, and on which that party will bear the burden of proof 25 at trial . . . since a complete failure of proof concerning an essential element of the 26 nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. 1 the lawsuit under governing law, and a dispute about such a material fact is genuine “if the 2 evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 4 Generally, the moving party bears the initial burden of identifying those portions of 5 the record which demonstrate the absence of a genuine issue of material fact. See Celotex 6 Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on an issue 7 at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other 8 than for the moving party. But on an issue for which the opposing party will have the 9 burden of proof at trial, the moving party need only point out “that there is an absence of 10 evidence to support the nonmoving party’s case.” Id. at 325. If the evidence in opposition 11 to the motion is merely colorable, or is not significantly probative, summary judgment may 12 be granted. See Liberty Lobby, 477 U.S. at 249-50. 13 The burden then shifts to the nonmoving party to “go beyond the pleadings and by 14 her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on 15 file,’ designate specific facts showing that there is a genuine issue for trial.’” Celotex 16 Corp., 477 U.S. at 324 (citations omitted); Fed. R. Civ. P. 56(e). “This burden is not a 17 light one. The non-moving party must show more than the mere existence of a scintilla of 18 evidence.” In re Oracle Corporation Securities Litigation, 627 F.3d 376, 387 (9th Cir. 19 2010) (citing Liberty Lobby, 477 U.S. at 252). “The non-moving party must do more than 20 show there is some ‘metaphysical doubt’ as to the material facts at issue.” Id. (citing 21 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “In 22 fact, the non-moving party must come forth with evidence from which a jury could 23 reasonably render a verdict in the non-moving party’s favor.” Id. (citing Liberty Lobby, 24 477 U.S. at 252). If the nonmoving party fails to make this showing, “the moving party is 25 entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. at 323. 26 The Court’s function on a summary judgment motion is not to make credibility 1 Elec. Serv., Inc. V. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 2 The evidence must be viewed in the light most favorable to the nonmoving party, and the 3 inferences to be drawn from the facts must be viewed in a light most favorable to the 4 nonmoving party. See id. at 631. It is not the task of the district court to scour the record 5 in search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 6 1996). The nonmoving party has the burden of identifying with reasonable particularity 7 the evidence that precludes summary judgment. Id. If the nonmoving party fails to do so, 8 the district court may properly grant summary judgment in favor of the moving party. See 9 id.; see, e.g., Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1028-29 10 (9th Cir. 2001). 11 A. Deliberate Indifference 12 Deliberate indifference to a prisoner’s serious medical needs violates the Eighth 13 Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A prison official violates the 14 Eighth Amendment only when two requirements are met: (1) the deprivation alleged is, 15 objectively, sufficiently serious, and (2) the official is, subjectively, deliberately indifferent 16 to the inmate’s health or safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). 17 A “serious” medical need exists if the failure to treat a prisoner’s condition could 18 result in further significant injury or the “unnecessary and wanton infliction of pain.” Id. 19 The following are examples of indications that a prisoner has a “serious” need for medical 20 treatment: the existence of an injury that a reasonable doctor or patient would find 21 important and worthy of comment or treatment; the presence of a medical condition that 22 significantly affects an individual’s daily activities; or the existence of chronic and 23 substantial pain. McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled 24 on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) 25 (en banc). 26 A prison official is deliberately indifferent if he knows that a prisoner faces a 1 to abate it. See Farmer, 511 U.S. at 837. The official must both know of “facts from 2 which the inference could be drawn” that an excessive risk of harm exists, and he must 3 actually draw that inference. Id. If a prison official should have been aware of the risk, 4 but was not, then the official has not violated the Eighth Amendment, no matter how 5 severe the risk. Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). 6 B. Analysis 7 Plaintiff claims Defendant Fu “knowingly, unlawfully, and with specific intent 8 violated [his] rights by: (1) levying reprisal against Plaintiff for… not waiving his Rights 9 to Liability prior to receiving Medical treatment and (2) subjecting Plaintiff to cruel and 10 unusual punishment by abruptly discontinuing previously prescribed medication of 11 Methadone without prescribing any Low Level medication in order to avoid withdrawal 12 symptoms.” Dkt. No. 1 at 8. 13 Plaintiff claims Defendant Votaw “knowingly, unlawfully, and with specific intent 14 violated Plaintiff’s rights by Deliberately ignoring plaintiff’s submitted Emergency Appeal 15 per Title 15 3084.9(a)(1), and screening such appeal as a regular Appeal thereby subjecting 16 Plaintiff to significant injuries which could have been avoided by occurred as a direct 17 result of Defendant M. Votaw’s action.” Dkt. No. 1 at 9. 18 Plaintiff claims Defendant Posson “knowingly, unlawfully, and with specific intent 19 violated Plaintiff’s rights by Deliberately taking NO action on intervening to requested 20 recommended Physical Therapy and NO intervention on Low Level medication in order to 21 avoid withdrawal symptoms.” Dkt. No. 1 at 10 (original emphasis). 22 Defendants first assert that the undisputed facts show that Defendants Fu, Posson, 23 and Votaw did not participate in any act that deprived Plaintiff of his federally protected 24 rights by being deliberately indifferent to any of Plaintiff’s serious medical needs. Dkt. 25 No. 29 at 13. They assert that Plaintiff was provided with Methadone for his chronic pain 26 on the condition that he refrain from using any non-prescribed mood-altering drug, such as 1 urine test on May 21, 2018. Id. Because he violated his pain contract and CDCR policy 2 and because using marijuana and Methadone posed a health risk to him, Dr. Anderson 3 decided to taper Plaintiff off the Methadone and try him on an alternative non-opioid 4 medication, such as oxcarbazepine.8 Id. Defendants assert that when Defendant Fu saw 5 Plaintiff on July 29, 2018, for the purpose of tapering him off Methadone by bringing his 6 15 mg daily dose down to 10 mg for one week and then 5 mg for another week, his course 7 of treatment was medically appropriate and consistent with CDCR policy. Id. at 13-14. 8 Defendants also assert that Defendant Posson’s decision that no intervention on Plaintiff’s 9 602 appeal was needed at the Institutional Level Review was proper because Plaintiff’s 10 Methadone was not abruptly stopped, as he claimed, and he continued to receive PCP 11 follow-up appointments regarding his pain management after the tapering. Id. at 14. 12 Furthermore, Defendants assert that Defendant Votaw played no role in determining 13 whether Plaintiff’s 602 Appeal should be processed as an expedited or non-expedited 14 appeal, and that Defendant Votaw did not provide Plaintiff with any medical care nor was 15 she involved in making any medical decisions for him. Id. Based on these facts, 16 Defendants assert that they did not cause Plaintiff to suffer any deprivation of his 17 constitutional rights. 18 Defendants also assert that that there is no evidence that they acted with deliberate 19 indifference towards Plaintiff. Dkt. No. 29 at 16. Defendants assert that Plaintiff was 20 properly tapered off his Methadone when he violated his pain contract and CDCR policy 21 by testing positive for marijuana use. Id. Defendants assert that the medical care he 22 received was not medically unacceptable, and his difference of opinion in that regard is not 23 sufficient to establish deliberate indifference. Id. 24 In opposition, Plaintiff maintains that Defendant Fu deliberately and intentionally 25 interfered with his previously prescribed Methadone treatment. Dkt. No. 45 at 11. 26 1 Plaintiff repeats his claim that Defendant Fu told him that he was discontinuing the 2 Methadone because Plaintiff refused to sign Defendant Kowall’s waiver of liability on July 3 25, 2018, but that he would document the reason as Plaintiff’s positive urine sample test 4 for cannabis. Id. Plaintiff asserts that Defendant Posson purposefully omitted his 5 declaration contending that the urine test could have been a false positive from his 6 decision, and that his failure to intervene was deliberate and intentional, causing Plaintiff 7 further pain and suffering. Id. at 12. Plaintiff asserts that his documented medical records 8 confirm that he had been taking Methadone since June 17, 2015, and that Defendants Fu 9 and Posson were aware of his chronic pain which warranted the Methadone prescription 10 for over three years. Id. Therefore, Plaintiff asserts the records raise an inference that 11 Defendants Fu and Posson were aware of Plaintiff’s need for chronic pain medication at 12 the time Defendant Fu discontinued the Methadone. Id. Furthermore, Plaintiff asserts 13 Defendant Fu was deliberately indifferent to his chronic pain in abruptly discontinuing his 14 Methadone medication, failing to prescribe any low level medication in its place, and then 15 attempting to prescribe the one medication to which Plaintiff was allergic. Id. at 13-14. 16 Plaintiff asserts that he has also raised a triable issue that the Capsaicin Cream that was 17 prescribed from August 12, 2018 to September 6, 2018, was an inappropriate substitute for 18 methadone. Id. at 14. In support, Plaintiff requests judicial notice of several cases 19 involving claims for insufficient pain management. Id. at 13-15. Plaintiff asserts, 20 therefore, Defendants are not entitled to summary judgment because undisputed material 21 facts show that Defendants were aware of Plaintiff’s ongoing opioid withdrawal symptoms 22 but disregarded those symptoms. Id. at 15. 23 In reply, Defendants assert that Plaintiff does not dispute that his May 21, 2018, 24 urine sample tested positive for marijuana. Dkt. No. 47 at 1. Defendants also assert 25 Plaintiff does not dispute that the use of marijuana constituted a violation of his pain 26 treatment contract and CDCR policy, and that using marijuana while taking Methadone 1 Dr. Anderson to decide to take Plaintiff off of Methadone, and for Defendant Fu to 2 evaluate Plaintiff for the purpose of tapering him off Methadone on July 29, 2018.9 Id. at 3 2. Furthermore, Defendants assert Plaintiff does not dispute that Defendant Fu tapered 4 him off of Methadone rather than stop it “cold turkey”; in his grievance, Plaintiff 5 complained that “there should have been a longer period of tapering.” Id. at 2; Posson 6 Decl., Ex. A at CDCR-00680. Defendants point out that Plaintiff complains for the first 7 time in opposition that Defendant Fu should have referred him to the prison’s Pain 8 Management Committee or the Clinical Opiate Withdrawal Scale (“COWS”), id., citing 9 Smith Decl. ¶¶ 17-18. Defendants assert, however, that the tapering of Plaintiff’s 10 Methadone was medically appropriate, and that Plaintiff presents no evidence to the 11 contrary. Id. at 2. With respect to Defendant Posson, Defendants assert Plaintiff does not 12 dispute the medical records reviewed by Defendant Posson in conducting the Institutional 13 Level Review of Plaintiff’s health care grievance, which showed that (1) Plaintiff violated 14 his pain care contract by testing positive for marijuana; (2) Defendant Fu tapered Plaintiff 15 off of Methadone because he violated his pain care contract; and (3) Plaintiff had received, 16 and was continuing to receive, physician evaluations for his pain management plan of care. 17 Id. For these reasons, Defendants assert, Defendant Posson appropriately determined that 18 no additional intervention was needed at that time. Id. With respect to physical therapy, 19 Defendants assert that Plaintiff did not raise that issue in his health care grievance, and 20 therefore there was no reason for Defendant Posson to specifically address that issue. Id. 21 Lastly, Defendants assert Plaintiff presents no opposition or discussion addressing 22 Defendant Votaw’s motion for summary judgment. Id. Defendants assert that Defendant 23 Votaw only administratively processed Plaintiff’s heath care grievance by forwarding it to 24 medical staff for review, and she played no role in determining whether the grievance 25 should be processed as expedited or non-expedited nor was she involved in Plaintiff’s 26 1 medical care. Id. at 2-3. 2 Viewing the evidence in the light most favorable to Plaintiff, the Court finds there 3 exist no genuine dispute as to any material fact relating to Plaintiff’s claim of deliberate 4 indifference against Defendants. First with respect to Defendant Votaw, Defendants 5 submit evidence showing that Nurse Chua, not a party to this action, was the medical staff 6 who decided that Plaintiff’s health care grievance was not to be expedited. See supra at 6. 7 In response, Plaintiff fails to submit evidence showing that Defendant Votaw did anything 8 else but forward Plaintiff’s health care grievance to the proper medical staff after Nurse 9 Chua’s designation. Plaintiff presents no evidence that Defendant Votaw’s role was 10 anything more than that or that she had authority to override Nurse Chua’s determination. 11 Accordingly, summary judgment should be granted with respect to the Eighth Amendment 12 claim against Defendant Votaw because there is simply no evidence that she acted with 13 deliberate indifference with respect to Plaintiff’s serious medical needs. See Celotex 14 Corp., 477 U.S. at 323. 15 With regards to Defendant Fu, there are several factual disputes, but none are 16 material. Even if the Court assumes Defendant Fu was the one who ordered the taper as 17 Plaintiff asserts, the undisputed evidence shows that Plaintiff tested positive for marijuana 18 from a urine sample that was taken on May 21, 2018. See supra at 3-4. There is no 19 dispute that using marijuana violated the terms of Plaintiff’s pain treatment contract. Id. at 20 4. Although Plaintiff asserts that the result could have been a false positive, the fact 21 remains that Defendant Fu had a reasonable basis to discontinue the Methadone treatment 22 based on his belief that Plaintiff had violated the pain care contract as indicated by the 23 positive urine test. Furthermore, the evidence shows that Defendant Fu did not “abruptly” 24 discontinue the Methadone as Plaintiff claims, but that Defendant Fu ordered it be tapered 25 over a two-week period. Id. at 4. When Plaintiff declined the offer of Tylenol with 26 codeine as an alternative pain medication, Defendant Fu noted that Plaintiff would follow 1 Decl., Ex. A at CDCR-000157. There is no dispute that Plaintiff had a follow-up 2 appointment just a week later, on August 6, 2018. Id. at 5. In opposition, Plaintiff asserts 3 that Defendant Fu was designated as his “PCP” on July 29, 2018, attempting to assert 4 thereby that Defendant Fu was responsible for his care thereafter. Dkt. No. 45 at 3. 5 However, there is no evidence to support this assertion, and Defendant Fu’s declaration 6 states that he was merely covering an extra work shift at CTF at that time. See supra at 4. 7 Furthermore, the Court notes that Plaintiff alleged in his health care grievance that 8 Defendant Fu “was NOT and has NEVER BEEN [Plaintiff’s] PCP on 07/29/18.” Fu 9 Decl., Ex. B at CDCR-00678 (original emphasis). Contrary to this earlier allegation, 10 Plaintiff now claims that Defendant Fu was his PCP. But this fact is ultimately immaterial 11 because there is no evidence that Defendant Fu knew that Plaintiff faced a substantial risk 12 of serious harm and disregarded that risk when he decided to taper Plaintiff’s Methadone 13 medication. See Farmer, 511 U.S. at 837. Plaintiff asserts in opposition that the 14 information in his medical records was sufficient to raise an inference that Defendant Fu 15 was aware of his need for chronic pain medication at the time he discontinued the 16 Methadone. See supra at 13. However, Defendant Fu must both know of facts from 17 which the inference could be drawn, and he must actually draw that inference. Plaintiff 18 provides no evidence that Defendant Fu actually drew that inference. If Defendant Fu 19 should have been aware of risk but was not, and here there is no evidence that he was, then 20 Defendant Fu has not violated the Eighth Amendment, no matter how severe the risk. See 21 Gibson, 290 F.3d at 1188. At most, Defendant Fu was negligent for failing to be aware of 22 the risk, but negligence is not sufficient to make out a violation of the Eighth Amendment. 23 See Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). 24 Lastly, with respect to Plaintiff’s claim that Defendant Fu was “levying reprisal” 25 against him for not waiving his rights and liability when he saw Defendant Kowall for an 26 orthopedic referral on July 25, 2018, this allegation is conclusory without any evidentiary 1 that Plaintiff was seen for his positive urine test for cannabis and refusal for right shoulder 2 procedure. Fu Decl., Ex. B at CDCR-000156. Plaintiff explained that he refused the 3 procedure because he did not want to sign a waiver for risks of surgery. Id. There is no 4 evidence that Defendant Fu was aware of Plaintiff’s refusal to sign a waiver before 5 Plaintiff described the incident to him during this appointment. Rather, the evidence 6 shows that Defendant Fu knew Plaintiff tested positive for cannabis prior to seeing 7 Plaintiff, and that Defendant Fu intended to begin tapering Plaintiff off of Methadone at 8 this appointment because Plaintiff violated the pain contract. Id.; Fu Decl. ¶ 10. 9 Furthermore, Plaintiff offers no explanation as to what stake Defendant Fu had in the 10 waiver of liability from Defendant Kowall such that Defendant Fu had a reason to retaliate 11 against Plaintiff for his failure to sign. Rather, the undisputed facts are that Plaintiff tested 12 positive for marijuana during a random urine test on May 21, 2018, and that it violated 13 Plaintiff’s pain contract. It is also undisputed that Defendant Fu ordered a gradual 14 Methadone taper over a two week period, and that Plaintiff received the full benefit of that 15 taper. To the extent that Plaintiff disagrees with the length and manner of tapering, it is 16 merely a difference of opinion between a prisoner-patient and prison medical authorities 17 regarding treatment which does not give rise to a § 1983 claim. See Franklin v. Oregon, 18 662 F.2d 1337, 1344 (9th Cir. 1981). There is also no evidence that Defendant Fu 19 intentionally did not refer Plaintiff to the Pain Management Committee or to COWS, 20 despite knowing that doing so would abate a substantial risk of serious harm to Plaintiff. 21 Rather, Defendant Fu saw Plaintiff for the first time and for the limited purpose of tapering 22 his Methadone on July 29, 2018. Defendant Fu knew that Plaintiff was to have follow-up 23 care with his PCP for alternate treatment of his shoulder and evaluations of pain, and that 24 Plaintiff could submit health care requests for any medical problems that arose. Plaintiff 25 provides no evidence in opposition showing that Defendant Fu was otherwise aware of an 26 excessive risk of harm to Plaintiff and chose to disregard it. Lastly, there is no evidence 1 Rather, Plaintiff had several follow-up appointments with other physicians. Accordingly, 2 it cannot be said that the evidence regarding Defendant Fu’s actions during the single 3 appointment he had with Plaintiff on July 29, 2018, is such that a reasonable jury could 4 return a verdict in favor of Plaintiff. See Liberty Lobby, Inc., 477 U.S. at 248. 5 With respect to Defendant Posson, there is no genuine dispute of material fact that 6 he acted with deliberate indifference in deciding no intervention was necessary at the 7 Institutional Level Review of Plaintiff’s health care grievance. Plaintiff claims that 8 Defendant Posson wrongfully took no action with respect to his request for physical 9 therapy. See supra at 11. However, as Defendants point out in reply, Plaintiff’s health 10 care grievance makes no mention of a request for physical therapy; accordingly, Defendant 11 Posson could not have been deliberately indifferent for failing to address it. See supra at 12 14; Posson Decl., Ex. B at CDCR-00678-00680. Rather, Plaintiff’s primary concern in the 13 health care grievance was with regards to his Methadone taper and the lack of alternative 14 pain medication. Id. Defendant Posson’s decision was based on information in Plaintiff’s 15 health record, which indicated that Plaintiff tested positive for cannabis, which is 16 undisputed. Plaintiff’s use of cannabis violated his pain contract, which is also undisputed. 17 Accordingly, it appeared to Defendant Posson that the taper of Methadone ordered by 18 Defendant Fu on July 29, 2018, was appropriate. The plan thereafter was for Plaintiff to 19 have a follow-up with his PCP to discuss alternative pain management therapies, which is 20 also undisputed. Plaintiff thereafter had three follow-up appointments to discuss his pain 21 management, and at each visit the physician prescribed a trial of alternative pain treatment. 22 See supra at 5-6. Because this information indicated that Plaintiff’s taper was appropriate 23 and that his need for alternative pain management therapies was being addressed, it cannot 24 be said that Defendant Posson knew of a substantial risk of serious harm to Plaintiff and 25 ignored it. As with Defendant Fu, Plaintiff asserts that information in his medical records 26 was sufficient to raise an inference that Defendant Posson was aware of Plaintiff’s need for 1 from which the inference could be drawn, and he must actually draw that inference. 2 Plaintiff provides no evidence that Defendant Posson drew such an inference. If 3 Defendant Posson should have been aware of risk but was not, that is mere negligence on 4 his part, and is not sufficient to make out a violation of the Eighth Amendment. See 5 Toguchi, 391 F.3d at 1060. Absent evidence that he actually drew the inference, 6 Defendant Posson has not violated the Eighth Amendment, no matter how severe the risk. 7 See Gibson, 290 F.3d at 1188. 8 Plaintiff cites to several cases which he asserts supports denying Defendants’ 9 summary judgment motion. Dkt. No. 45 at 13-15. However, these cases are mostly 10 distinguishable from Plaintiff’s case and therefore inapplicable and the last case provides 11 support for granting summary judgment in favor of Defendants. The first case, Anderson 12 v. Kimura-Yip, et al., Case No. 2:12-cv-00261-MCE-KJN (2017), involved a case where 13 opioid based therapy was stopped “cold turkey.” Dkt. No. 45 at 13. That case is 14 distinguishable from Plaintiff’s case because as discussed above, his Methadone was not 15 stopped “cold turkey” but tapered over a two-week period. The second case, Donges v. 16 Durett, et al., Case No. CIV S-09-0360-DAD (2011), involved a pretrial detainee who 17 claimed inadequate medical and mental health care under the Fourteenth Amendment, and 18 is therefore inapplicable to Plaintiff’s Eighth Amendment claim. Dkt. No. 45 at 14. The 19 third case, Strain v. Sandham, et al., Case No. CIV S-05-0474-GEH-GGH (2009), also 20 involved a case where methadone was stopped “cold turkey” upon an inmate’s transfer to 21 the prison, which is inapplicable to the facts of this case. Dkt. No. 45 at 14. The fourth 22 case, Owens v. Clark, et al., Case No. 2:15-CV-0982-TLN-KFN (2018), involved a 23 morphine taper. Dkt. No. 45 at 14-15. However, the inmate in Owens claimed that he was 24 denied any alternative pain management until the morphine was completely “washed out” 25 of his system. Here, the undisputed evidence shows that Plaintiff was provided with 26 alternative pain management therapies even before he was completely tapered off of 1 || involved the issue of whether defendant provided medication to alleviate symptoms of 2 || withdrawal for Percocet. /d. Although the magistrate judge recommended that 3 || defendants’ summary judgment should be denied on that claim, the district court did not 4 || adopt that recommendation and instead granted summary judgment, finding there was 5 || evidence that defendant prescribed alternative medication at the same time he took inmate 6 || off of Percocet. The Ninth Circuit affirmed the district court’s grant of summary judgment 7 || on appeal. Hudson v. Nangalama, et al., 505 Fed.Appx. 644, 2013 WL 2277001 (9th Cir. 8 || 2013). The facts of Hudson are similar to the case at bar, and therefore supports a grant of g || summary judgment in favor of Defendants rather than Plaintiff. 10 Based on the undisputed facts, Defendants have shown there is an absence of a 11 || genuine dispute of material fact with respect to the Eighth Amendment claims against 2 them. See Celotex Corp., 477 U.S. at 323. Plaintiff has failed to meet his burden of E 13 || identifying with reasonable particularity the evidence that precludes summary judgment, S 14 || see Keenan, 91 F.3d at 1279, or submit evidence from which a jury could reasonably 3 15 || render a verdict in his favor, In re Oracle Corporation Securities Litigation, 627 F.3d at 16 || 387. Accordingly, Defendants Fu, Posson, and Votaw are entitled to summary judgment 5 17 || on all the claims against them. See Celotex Corp., 477 U.S. at 323.
19 CONCLUSION 20 For the reasons stated above, Defendants Dr. Law Fu, M. Votaw, and S. Posson’s 21 || motion for summary judgment is GRANTED. Dkt. No. 29. The Eighth Amendment 22 || deliberate indifference claims against them are DISMISSED with prejudice. 23 The Clerk shall terminate these Defendants from this action. 94 This order terminates Docket No. 29. 25 IT IS SO ORDERED. □ 26 || Dated: September 1, 2020 Aah Lowe jrconsee BETH LABSON FREEMAN a7 United States District Judge
1 Order Granting MSJ PRO-SE\BLF\CR.19\02119Smith_grant-msj.Defs 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26