Opinion
21-55326
11-15-2022
KORY T. O'BRIEN, Plaintiff-Appellant, v. SAJIB SAHA, State Prison Doctor; DAVID CLAYTON, State Prisoner Doctor; MARGARET DEEL, M.D., State Prisoner Doctor, Defendants-Appellees.
NOT FOR PUBLICATION
Submitted November 10, 2022 [**] San Francisco, California
Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding D.C. No. 3:19-cv-01957-JLS-JLB
Before: WALLACE, O'SCANNLAIN, and FERNANDEZ, Circuit Judges.
MEMORANDUM [*]
Kory T. O'Brien appeals the district court's grant of defendants' motion for summary judgment. As the facts are known to the parties, we repeat them only as necessary to explain our decision.
I
O'Brien's claims that defendants acted with deliberate indifference fail because, at most, the doctors did not provide the treatment O'Brien desired when they refused to prescribe him gabapentin and more morphine. To prevail on a deliberate indifference claim under the Eighth Amendment, a plaintiff must establish two facts: (1) the existence of a "serious medical need," and (2) that the defendants' "response to the need was deliberately indifferent." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). The second prong requires a showing that the defendants "[knew] of and disregard[ed] an excessive risk to inmate health and safety." Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). A mere "'difference of medical opinion' as to the need to pursue one course of treatment over another [is] insufficient, as a matter of law, to establish deliberate indifference." Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc). Instead, to prevail, the plaintiff must show that the treatment "was medically unacceptable under the circumstances" and was chosen "in conscious disregard of an excessive risk" to the plaintiff's health. Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016).
O'Brien fails to present any evidence that would demonstrate that the pain killers that defendants prescribed him were "medically unacceptable under the circumstances." Id. Following the California Correctional Health Care Services' (CCHCS) guidance on the dangers posed by gabapentin and opioids such as morphine, defendants concluded that they had to stop providing O'Brien with those medications in light of his prior drug use, his medical condition, and their suspicions of drug diversion. Thus, the defendants based their decisions on the guidance and on their independent medical opinion on the plaintiff's specific condition.
Neither is the CCHCS's gabapentin policy unconstitutional as it does not command the prison doctors to deny gabapentin to all inmates, regardless of their medical needs. It is true "that . . . [a] blanket, categorical denial of medically indicated . . . [treatment] solely on the basis of an administrative policy . . . is the paradigm of deliberate indifference." Colwell v. Bannister, 763 F.3d 1060, 1063 (9th Cir. 2014). However, in this case, the CCHCS's gabapentin policy did not deny inmates access to the drug regardless of medical need. Instead, it "urge[d] health care providers to limit prescribing gabapentin to its FDA-approved indications as clinically appropriate." Thus, doctors still had the discretion to prescribe gabapentin in the circumstances where, in their opinion, it was needed. The defendants decision that gabapentin was not required in O'Brien's case in light of suspected drug diversion and his specific health issues does not mean that the CCHCS instituted a "blanket," unconstitutional policy.
II
O'Brien argues that, in response to his lawsuit threats, the defendants took retaliatory actions, thereby infringing his First Amendment rights. First, he claims that the doctors made notations in his file about his prior drug use and about his manipulative behavior designed to obtain opioids. Second, O'Brien argues that the doctors deprived him of gabapentin and reduced his morphine dose.
"[A] viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). Specific to the first prong, the adverse action must be substantial enough as to "chill or silence a person of ordinary firmness from future First Amendment activities." Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009).
O'Brien's first retaliation theory fails because defendants' actions did not constitute an adverse action. Even before the defendants noted O'Brien's history in his file, it contained numerous references to his drug abuses. Further, O'Brien fails to carry his burden to present evidence showing that the notation about his manipulations of his blood pressure would "chill or silence a person of ordinary firmness from future First Amendment activities." Id.
O'Brien's second retaliation theory fares no better because he does not present evidence showing that tapering off his gabapentin and morphine did not serve the "legitimate correctional goal" of minimizing opioid dependence and preventing him from diverting drugs to other inmates, thereby putting their lives at risk. Rhodes, 408 F.3d at 567. The goal of limiting the use of gabapentin and other opioids was well documented in the CCHCS guidelines and memorandum and Dr. Barenchi's communication to Dr. Saha. Further, O'Brien tested negative for morphine in a drug test conducted on April 30, 2019. Since O'Brien was prescribed to take morphine twice a day, his negative drug test result confirms that he was not taking the medicine as prescribed, and was thus likely diverting morphine to other inmates, putting their lives in danger.
O'Brien's motion for oral argument, Docket No. 5, is DENIED.
AFFIRMED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).