Opinion
No. 2:17-CV-0174-KJM-DMC-P
09-23-2020
ERROL LOVELL UNDERWOOD, Plaintiff, v. R. TAN, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court are Defendants' motions for summary judgment and to dismiss. See ECF Nos. 26 and 35. Defendants' motion for summary judgment was filed on October 28, 2019, and their motion to dismiss was filed on March 3, 2020. Despite being granted numerous extensions of time, both motions are unopposed. / / / / / / / / / / / /
Defendants state that Plaintiff has misspelled various names; "Egipto as Eqipto, Kuersten as Knersten, and Ko as Cole." ECF No. 26-1, fn. 1. The Court shall address Defendants by the names offered in their motions.
I. PLAINTIFF'S ALLEGATIONS
This action proceeds on Plaintiff's civil rights complaint, filed on January 26, 2017. See ECF No. 1. Plaintiff names the following as Defendants: (1) Nurse Egipto; (2) Dr. Tan; (3) Dr. Largoza; (4) Dr. Kuersten; and (5) Dr. Ko.
Plaintiff Errol Underwood is an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR), and at all times relevant to this lawsuit was housed at California State Prison - Solano (SOL or prison) in Vacaville, CA. Plaintiff alleges that on February 1, 2016, he was shot by a 40 millimeter weapon in his right calf and right elbow during a physical altercation at the prison. See ECF No. 1, pg. 5. After the incident, Plaintiff was transported to the prison infirmary and was seen by Nurse Egipto. Plaintiff told Egipto that he felt that he had broken his arm, but Egipto dismissed the injury as swelling which would subside.
Plaintiff's complaint does not specify what sort of weapon caused the injury, but Defendants state that "he was shot in his right calf and right arm by a 40 mm foam round." Plaintiff offers no opposition to this assertion.
Plaintiff was subsequently escorted to administrative segregation. Plaintiff continued to suffer pain due to his injury and, after four days, pleaded for additional medical assistance. On February 4, 2016, Plaintiff was seen by Nurse Lahara inside administrative segregation. Lahara allegedly acknowledged the poor condition of his injury and asked why Plaintiff did not contact the medical staff sooner. Lahara then sent Plaintiff to have x-rays taken and a soft cast was subsequently placed on his arm. Plaintiff was then scheduled to see a physician at San Joaquin General Hospital who stated that Plaintiff suffered from fractures in his arm.
On February 18, 2016, and March 1, 2016, Plaintiff had medical appointments with Dr. Tan. Plaintiff requested a change in his prescription medication, but Dr. Tan refused. Plaintiff claims that Dr. Tan submitted false reports stating that Plaintiff had no family and was exercising regularly. At some later date, Nurse Lahara informed plaintiff that Dr. Tan had placed a request for an MRI scan for Plaintiff; however, that request was denied. / / /
Defendants Largoza and Kuersten were both members of the Institutional Utilization Management Committee (Committee) and allegedly denied Plaintiff MRI access despite being aware of the gunshot wound to his elbow.
On October 3, 2016, Plaintiff was seen by Dr. Ko. Plaintiff claims that Dr. Ko recognized the severity of his condition and told Plaintiff that he would place a request for an MRI scan. On November 8, 2016, Plaintiff did in fact receive an MRI scan; however, he was never given the results of that scan. Plaintiff's condition deteriorated and he was eventually admitted to San Joaquin General Hospital for four days.
Upon his return to the prison, Plaintiff had a subsequent appointment with Dr. Ko on December 7, 2016. Plaintiff told Dr. Ko about the extreme pain in Plaintiff's elbow. However, Dr. Ko simply told Plaintiff to be patient. Dr. Ko allegedly failed to provide Plaintiff with adequate pain medication.
Plaintiff claims that the Defendants violated his Eighth Amendment rights due to their indifference to his medical needs. Plaintiff requested medical treatment for his arm injury, but was refused by Defendant Egipto. Plaintiff alleges defendants Tan and Ko refused to provide him with necessary medical treatment, specifically an MRI, and denied him adequate pain medication. He further alleges defendants Largoza and Kuersten also denied Plaintiff an MRI, even though it was requested by another doctor.
II. PROCEDURAL HISTORY
Plaintiff filed his complaint on January 26, 2017, alleging constitutional violations against Defendant Dr. Tan, Dr. Ko, Dr. Largoza, Dr. Kuersten, and Nurse Egipto. See ECF No. 1. On July 3, 2018, Magistrate Judge Craig M. Kellison screened the complaint under 28 U.S.C. § 1915A and found that Plaintiff stated a cognizable Eighth Amendment claim for deliberate indifference to his serious medical needs, specifically that Egipto refused medical treatment, Tan and Ko refused to provide an MRI and denied adequate pain medication, and that Largoza and Kuersten denied him an MRI. See ECF No. 10, at 1-2. Defendants answered the complaint, and the Court issued a Discovery and Scheduling Order on March 26, 2019. See ECF No. 22.
Discovery was open until July 29, 2019, and is now closed. See ECF No. 22. On October 28, 2019, Defendants filed their motion for summary judgment. See ECF No. 26. On November 14, 2019, Plaintiff filed multiple requests for additional time to submit an opposition, which the Court granted. See ECF Nos. 32 and 34. Pursuant to the Court's most recent time extension, opposition to the pending motion for summary judgment was due by June 3, 2020. See ECF No. 34. To date, Plaintiff has failed to submit an opposition to the pending motion for summary judgment.
Additionally, Defendants note that Defendant Egipto has recently died and have submitted a motion to dismiss Defendant Egipto pursuant to Federal Rule of Civil Procedure 25(a). See ECF No. 35. This motion is also unopposed and should be granted.
On March 3, 2020, Defendants filed a motion to dismiss deceased Defendant Egipto because Plaintiff failed to file a motion for substitution. See ECF No. 35. Under Federal Rule of Civil Procedure 25(a)(1), a civil suit against a deceased party must be dismissed unless a party moves for substitution within 90 days of a service noting death. See Fed. R. Civ. P. 25. After the deceased party is dismissed, the action proceeds with the remaining parties. See Fed. R. Civ. P. 25(a)(2).
On October 30, 2019, Defendants submitted an amended notice of suggestion of death of Defendant Egipto, notifying Plaintiff of Defendant Egipto's death. See ECF No. 30. To date, and despite having been granted an extension of time to respond to Defendants' motion to dismiss, no motion for substitution has been filed. Because no motion for substitution has been filed, Defendants' motion to dismiss should be granted and Defendant Egipto should be dismissed pursuant to Rule 25(a)(1).
III. STANDARD FOR SUMMARY JUDGEMENT
The Federal Rules of Civil Procedure provide for summary judgment or summary adjudication when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). The standard for summary judgment and summary adjudication is the same. See Fed. R. Civ. P. 56(a), 56(c); see also Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. See / / / / / / Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under summary judgment practice, the moving party
. . . always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Id., at 323 (quoting former Fed. R. Civ. P. 56(c)); see also Fed. R. Civ. P. 56(c)(1).
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). To demonstrate that an issue is genuine, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted). It is sufficient that "the claimed factual dispute be shown to require a trier of fact to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631.
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, see Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Ultimately, "[b]efore the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Anderson, 477 U.S. at 251.
IV. THE EVIDENCE
Defendants' motion for summary judgment is supported by their statement of undisputed facts, see ECF No. 26-2, as well as the sworn declarations of: (1) R. Tan, (2) N. Largoza, (3) N. Kuersten, (4) F. Ko, (5) M. Kwaye, (6) Feinberg, and (7) Steven E. Vong. Defendants state that the following facts are undisputed:
| Defendants' Undisputed Material Facts | Evidentiary Support |
|---|---|
| I. THE PARTIES AND BACKGROUND INFORMATION. | |
| 1. Plaintiff Errol Underwood (V-20128) is aninmate in the custody of the CaliforniaDepartment of Corrections and Rehabilitation(CDCR), and at all times relevant to thislawsuit was housed at California State Prison -Solano (SOL) in Vacaville, CA. | 1. Pl.'s Complaint (Compl.), ECF No. 1 at 1-2. [footnote omitted] |
| 2. Plaintiff has not received any medicaltraining. | 2. Deposition of Errol Underwood, Vol. I at26:16-18 (Underwood Dep.) (Exhibit A to theDeclaration of Steven E. Vong in Support ofDefendants' Motion for Summary Judgment(Vong Dec.). |
| 3. Defendant, Nurse Egipto, worked withCDCR at SOL at all times relevant to thislawsuit. | 3. Declaration of Kwaye (Kwaye Decl.) at ¶ 4. |
| 4. Defendant, Dr. Tan, worked with CDCR atSOL at all times relevant to this complaint. | 4. Declaration of Tan (Tan Decl.) at ¶ 2. |
| 5. Dr. Tan was Plaintiff's primary carephysician at SOL from February 18, 2016,through April 29, 2016. | 5. Tan Decl. at ¶ 2. |
| 6. At all relevant times to this lawsuit,Defendant Dr. Largoza was the ChiefPhysician & Surgeon (CP&S) at SOL, andreviewed and signed off on Plaintiff's healthcare appeal log number SOL HC 16041256. | 6. Declaration of Largoza (Largoza Decl.) at¶¶ 1-3. |
| 7. At all relevant times to this lawsuit,Defendant Dr. Kuersten was the ChiefMedical Executive at SOL. | 7. Declaration of Kuersten (Kuersten Decl.) at¶¶ 1-4. |
| 8. Defendant, Dr. Ko, worked with CDCR atSOL at all times relevant to this complaint,and was Plaintiff's primary care physician atSOL from May 2016 to January 2017. | 8. Declaration of Ko (Ko Decl.) at ¶¶ 1-4. |
| II. PLAINTIFF'S PAIN TREATMENT | |
|---|---|
| 9. On February 1, 2016, Plaintiff was involvedin a fight at SOL where he picked up aninmate and slammed the inmate to the ground. | 9. Underwood Dep., at 45:12-47:4, Exhibit Bto Underwood Dep. |
| 10. Later that day, Plaintiff was involved inanother fight, where he was shot in his rightcalf and right arm by a 40 mm foam round. | 10. Compl., ECF No. 1 at 5-6; UnderwoodDep. at 47:11-48:25, Exhibit H to UnderwoodDep. |
| 11. Plaintiff sustained a laceration to his neck,left ear, and right elbow on February 1, 2016,and he also had pain and a protrusion to hisright elbow. | 11. Exhibit A of Appx of Exh.[footnoteomitted]; Declaration of Feinberg (FeinbergDecl.) at ¶ 9. |
| 12. At 3:45 p.m. on February 1, 2016, OfficerHilton escorted Plaintiff to the Triage andTreatment Area (TTA), where he was treatedfor an ear laceration, and Registered Nurse(RN) Page noted "RTC" in stable condition. | 12. Exhibit A of Appx of Exh.; Feinberg Decl.at ¶ 9; Tan Decl. at ¶ 3a. |
| 13. Nurse Egipto was not at SOL, out sick,and did not see Plaintiff on February 1, 2016. | 13. Kwaye Decl. at ¶¶ 1-4; Feinberg Decl. at ¶32. |
| 14. On or around February 2, 2016, Plaintiffsubmitted a Health Care Services Request(CDCR form 7362) complaining of pain. | 14. Exhibit B of Appx of Exh; Tan Decl. at ¶3b; Feinberg Decl. at ¶ 10. |
| 15. Plaintiff was seen for this Request onFebruary 4, 2016, by RN Lahara who noted"involved in altercation 3 days ago - slammedopponent - opponent landed on right arm,sustained big bruise and redness and swellingfrom inferior area of right upper arm pastelbow to half of forearm. Unable to straightenright arm, with deformed right thumb." | 15. Exhibit C of Appx of Exh; Tan Decl. at ¶3c; Feinberg Decl. at ¶ 10. |
| 16. RN Lahara had Plaintiff transferred to theTTA for further evaluation. | 16. Exhibit C of Appx of Exh.; Feinberg Decl.at ¶ 10. |
| 17. On February 4, 2016, Dr. Kohler sawPlaintiff in the TTA, noting that Plaintiff wasattacked 3 days ago on February 1, 2016,someone fell on his right arm and shoulder,and that he reported pain. | 17. Exhibit C of Appx of Ex.h; Tan Decl. at ¶3c; Feinberg Decl. at ¶ 11; Kuersten Decl. at ¶5 a; Ko Decl. at ¶ 6a. |
| 18. Dr. Kohler ordered x-rays of Plaintiff'sright shoulder, right humerus, right elbow,right forearm, right wrist, and right hand,finding mild arthritis but no fracture in theshoulder, no fracture of the humerus, and anolecranon avulsion fracture around the rightelbow. | 18. Exhibit C of Appx of Exh.; Tan Decl. at ¶3c; Feinberg Decl. at ¶ 11; Kuersten Decl. at ¶5 a; Ko Decl. at ¶ 6a. |
| 19. Plaintiff was prescribed Tylenol 3 (T3)with Codeine, an opioid pain medication, andToradol for pain | 19. Exhibit C of Appx of Exh.; Tan Decl. at ¶3c; Feinberg Decl. at ¶ 11; Kuersten Decl. at ¶5 a; Ko Decl. at ¶ 6a. |
| 20. Dr. Kohler applied a splint to Plaintiff'selbow, ordered follow-up with Plaintiff'sPrimary Care Provider (PCP), and submitted arequest for referral to orthopedic surgery,which was approved by Dr. Largoza onFebruary 5, 2016. | 20. Exhibit C of Appx of Exh.; Tan Decl. at ¶3c; Feinberg Decl. at ¶¶ 11-12; Largoza Decl.at ¶ 4; Kuersten Decl. at ¶ 5a; Ko Decl. at ¶6a. |
| 21. On February 5, 2016, Plaintiff went to theTTA again and was seen by RN Ogunleyebecause he was complaining of pain. | 21. Exhibit D of Appx of Exh.; Tan Decl. at ¶3d; Feinberg Decl. at ¶ 12. |
| 22. RN Ogunleye noted that Plaintiff's statewas "Calm, no apparent distress" as he wasawaiting to see the doctor at 12:15 that sameday. | 22. Exhibit D of Appx of Exh.; Tan Decl. at ¶3d. |
| 23. Dr. Tarrar examined Plaintiff on February5, 2016, noting that Plaintiff has pain from analtercation when someone fell on him, therewas bruising around the elbow area, but theexam was otherwise unremarkable, Plaintiffwas taking T3, and Plaintiff was "talking withofficer and laughing and moving arm whendistracted." | 23. Exhibit D of Appx of Exh.; Tan Decl. at ¶3d; Feinberg Decl. at ¶ 12. |
| 24. Plaintiff was provided a sling, had painmedication ordered, and was instructed abouthis medication and sling. | 24. Exhibit D of Appx of Exh.; Tan Decl. at ¶3d; Feinberg Decl. at ¶ 12. |
| 25. On February 8, 2016, Plaintiff wasprescribed Sulindac, a nonsteroidal anti-inflammatory drug (NSAID) and capsaicincream for his pain. | 25. Exhibit E of Appx of Exh.; Tan Decl. at ¶3e; Feinberg Decl. at ¶ 13. |
| 26. On February 12, 2016, Plaintiff went toSan Joaquin General Hospital (SJGH), whereDr. William J. Holmes diagnosed an elbowcontusion, did not believe the patient'savulsion fracture was new, discontinued thesplint, and recommended an MRI of the elbowif Plaintiff continued to have significant painwith no improvement over the next two tofour weeks. | 26. Exhibit F of Appx of Exh.; Tan Decl. at ¶3f; Feinberg Decl. at ¶ 14; Kuersten Decl. at ¶5b; Ko Decl. at ¶ 6b. |
| 27. On February 14, 2016, Plaintiff was seenby Dr. Lotersztain in the TTA for pain, andafter examining Plaintiff, Dr. Lotersztain felthe was "already on adequate treatment:Sulindac, Tylenol #3, sling to immobilize (notwearing it). Explained: No indication forstronger narcotics. Follow-up with PCP asscheduled." | 27. Feinberg Decl. at ¶ 15. |
| 28. On February 18, 2016, Plaintiff saw Dr.Tan, and Plaintiff complained about extremepain in his elbow, and requested stronger painmedication than his current T3 and Sulindac. | 28. Exhibit G of Appx of Exh.; Tan Decl. at ¶3g; Feinberg Decl. at ¶ 16; Ko Decl. at ¶ 6c. |
| 29. Dr. Tan reviewed history of trauma andrecent orthopedic surgery consultationrecommendations, and on exam, saw thatPlaintiff's right elbow had no redness, wasable to fully extend to 180 degrees and fullyflex, with a small, less than 1 cm, lump on theback of the elbow. | 29. Exhibit G of Appx of Exh.; Feinberg Decl.at ¶ 16. |
| 30. Dr. Tan noted that Plaintiff "was sitting inwaiting area comfortable and move[s] hisarm/elbow normally when he walks out ofoffice." | 30. Exhibit G of Appx of Exh.; Tan Decl. at ¶3g; Feinberg Decl. at ¶ 16. |
| 31. In his assessment, Dr. Tan felt there was"no indication for stronger narcotics such asmorphine or methadone at this time,"recommended conservative treatment,continue T3, Sulindac, capsaicin cream, warmcompresses as well as an elbow sling, re-evaluating in 4 weeks, and to consider an MRIas advised by Ortho[pedics] if significant paincontinues. | 31. Exhibit G of Appx of Exh.; Tan Decl. at ¶3g; Feinberg Decl. at ¶ 16; Ko Decl. at ¶ 6c. |
| 32. On or around February 26, 2016,California Correctional Health Care Servicesreceived Plaintiff's 602 grievance, SOL HC16041256, requesting an MRI and strongerpain medication. | 32. Exhibit H of Appx of Exh.; Largoza Decl.at ¶ 5. |
| 33. On March 1, 2016, Dr. Tan examined thePlaintiff again as a follow up to the February18, 2016 visit, and Plaintiff complained thathis pain was not getting better. | 33. Exhibit I of Appx of Exh.; Tan Decl. at ¶3h; Feinberg Decl. at ¶ 17; Largoza Decl. at ¶7b. |
| 34. Dr. Tan conducted a physical examinationof Plaintiff, noting that there was no swellingand no redness of Plaintiff's right elbow, andthat there was a small cyst like lump on thedorsal side of his elbow/upper forearm. | 34. Exhibit I of Appx of Exh.; Tan Decl. at ¶3h; Feinberg Decl. at ¶ 17; Largoza Decl. at ¶7b. |
| 35. Dr. Tan recommended continuing T3 andSulindac, Capsaicin, and warm compression,as there was "No indication for strongernarcotics [such as] morphine or methadone atthis time." | 35. Exhibit I of Appx of Exh.; Tan Decl. at ¶3h; Feinberg Decl. at ¶ 17; Largoza Decl. at ¶7b. |
| 36. Dr. Tan also noted that he would submit arequest for services (RFS) for MRI of rightelbow because Plaintiff was having significantpain. | 36. Exhibit I of Appx of Exh.; Tan Decl. at ¶3h; Feinberg Decl. at ¶ 17; Largoza Decl. at ¶7b. |
| 37. On March 9, 2016, Dr. Largoza referredDr. Tan's RFS to discussion with theInstitutional Utilization ManagementCommittee (IUMC), a group of physicians atSOL, as the RN of the Institution UtilizationManagement (IUM) noted that there was "nosubset for above" on the RFS, referring toInterQual criteria, a well-respected and widelyused medical decision making tool that isutilized to assist with making approvaldecisions for medical procedures and studies. | 37. Exhibit I of Appx of Exh.; Tan Decl. at ¶3h; Feinberg Decl. at ¶ 18; Largoza Decl. at ¶7c. |
| 38. On March 16, 2016, Plaintiff submitted aCDCR form 7362 complaining of pain. | 38. Exhibit J of Appx of Exh.; Tan Decl. at ¶3i. |
| 39. On March 18, 2016, RN Gardner assessedPlaintiff, and noted that medical staff wouldfollow-up when the MRI would be scheduled,and that his condition on release was "stable." | 39. Exhibit J of Appx of Exh.; Tan Decl. at ¶3i. |
| 40. On March 29, 2016, the IUMC consideredand denied Dr. Tan's RFS for an MRI forPlaintiff, as Plaintiff had not yet exhaustedconservative management and did not have animminent need for surgery, and recommendedto continue conservative treatment forPlaintiff. | 40. Tan Decl. at ¶ 3j; Feinberg Decl. at ¶ 18;Largoza Decl. at ¶¶ 6-10; Ko Decl. at ¶ 6d. |
| 41. Dr. Largoza was on the IUMC, and Dr.Tan was also at the meeting to presentPlaintiff's case. | 41. Tan Decl. at ¶ 3j; Largoza Decl. at ¶ 8. |
| 42. Dr. Kuersten was not present for thisIUMC meeting and did not participate in anydecision to deny Plaintiff an MRI. | 42. Kuersten Decl. at ¶ 6. |
| 43. On April 6, 2016, Plaintiff submittedanother CDCR form 7362 complaining ofpain. | 43. Exhibit L of Appx of Exh. |
| 44. On April 8, 2016, RN Lajara assessedPlaintiff, noting that Plaintiff alreadysubmitted a 602 for increased painmedications, which was denied by his PCP,and that the IUMC denied his MRI. | 44. Exhibit L of Appx of Exh. |
| 45. RN Lajara also noted that Plaintiff'sSulindac was refilled, she would schedule [a]PCP [appointment], and that Plaintiffverbalized understanding and was in stablecondition on release. | 45. Exhibit L of Appx of Exh. |
| 46. On April 29, 2016, Dr. Largoza issued theInstitutional level response for Plaintiff's 602SOL HC 16041256, denying Plaintiff'srequest for stronger pain medication because itwas not medically indicated to prescribePlaintiff with stronger pain medication, anddenying his request for an MRI in that theRFS was already denied by the IUMC. | 46. Exhibit H of Appx of Exh. |
| 47. Dr. Largoza noted that it wasrecommended to continue monitoringPlaintiff's arm and to treat it conservatively. | 47. Exhibit H of Appx of Exh. |
| 48. On May 9, 2016, Dr. Kuersten wascovering for the TTA doctor and examinedPlaintiff for Plaintiff's complaint of pain. | 48. Exhibit M of Appx of Exh; Feinberg Decl.at ¶ 19; Kuersten Decl. at ¶ 5c; Ko Decl. at ¶6e. |
| 49. Dr. Kuersten noted that there was "Noswelling or deformity" in the right elbow, thathe "observed [Plaintiff] undressing sweatshirtw/o difficulties" and that Plaintiff was"presenting right elbow pain with conflictingpresentation," and "possesses secondary gainissues (reported pain level not compatible withpresentation and exam.)." | 49. Exhibit M of Appx of Exh.; FeinbergDecl. at ¶ 19; Kuersten Decl. at ¶ 5c; Ko Decl.at ¶ 6e. |
| 50. Dr. Kuersten placed a medication order forToradol for pain relief, prescribed a neopreneelbow sleeve, ordered a follow upappointment with Plaintiff's PCP in 14 days,and placed a RFS for a Physical Therapy (PT)evaluation. | 50. Exhibit M of Appx of Exh.; FeinbergDecl. at ¶ 19; Kuersten Decl. at ¶ 5c; Ko Decl.at ¶ 6e. |
| 51. On May 16, 2016, Plaintiff was seen forinitial PT consultation, where Plaintiff wasinstructed in stretches and exercises toimprove range of motion, decrease pain, andimprove strength. | 51. Feinberg Decl. at ¶ 20. |
| 52. The records indicate that "Patient toleratedtreatment well," and follow-up was scheduled. | 52. Feinberg Decl. at ¶ 20. |
| 53. At a PT follow-up on May 23, 2016,Plaintiff reported that he felt more pain whendoing the exercises, and was discharged fromPT and referred back to his PCP. | 53. Feinberg Decl. at ¶ 21. |
| 54. On May 23, 2016, Dr. Ko examinedPlaintiff as a follow up to the May 9, 2016appointment. | 54. Exhibit N of Appx of Exh.; Feinberg Decl.at ¶ 22; Ko Decl. at ¶ 6f. |
| 55. Dr. Ko's exam of Plaintiff's right elbowshowed that it was essentially normal, with noswelling, no effusion, no heat, and nodeformity. | 55. Exhibit N of Appx of Exh.; Feinberg Decl.at ¶ 22; Ko Decl. at ¶ 6f. |
| 56. Dr. Ko noted that Plaintiff completed hislast session of PT, recommended to repeat x-rays and to continue treating with T3 andSulindac, and that the RFS for a MRI wasdenied by the IUMC on March 9, 2016. | 56. Exhibit N of Appx of Exh.; Feinberg Decl.at ¶ 22; Ko Decl. at ¶ 6f. |
| 57. On June 1, 2016, Plaintiff received an x-ray of his right elbow, as referred by Dr. Ko. | 57. Exhibit O of Appx of Exh.; Feinberg Decl.at ¶ 23; Ko Decl. at ¶ 6g. |
| 58. The x-ray showed a chronic avulsionfracture of the olecranon present withretraction of the fragments, which appearedstable, no acute fracture or dislocation, well-preserved joint spaces, and the visual softtissues were unremarkable. | 58. Exhibit O of Appx of Exh.; Feinberg Decl.at ¶ 23; Ko Decl. at ¶ 6g. |
| 59. On August 10, 2016, and August 16, 2016,Plaintiff did not appear to take his painmedication. | 59. Exhibit P of Appx of Exh.; Ko Decl. at ¶6h. |
| 60. On September 5, 2016, Plaintiff submittedanother CDCR form 7362 complaining ofpain. | 60. Exhibit Q of Appx of Exh.; Ko Decl. at ¶6i. |
| 61. On September 7, 2016, RN Lajaraassessed Plaintiff, noting that Plaintiff had notbeen taking Sulindac, but that she informedhim that Sulindac was current and would helphis pain, and that the IUMC denied his MRI. | 61. Exhibit Q of Appx of Exh.; Ko Decl. at ¶6i. |
| 62. RN Lajara also noted that she requested arefill of Plaintiff's Sulindac submitted it to thepharmacy, and she would request a follow upwith his PCP. | 62. Exhibit Q of Appx of Exh.; Ko Decl. at ¶6i. |
| 63. On October 3, 2016, Dr. Ko saw Plaintiff,felt that Plaintiff had a small bursitis of theolecranon, told Plaintiff that he would speakto the Utilization Committee again aboutseeking an MRI, and submitted a RFS for aMRI. | 63. Exhibit R of Appx of Exh.; Feinberg Decl.at ¶ 24; Ko Decl. at ¶ 6j. |
| 64. On October 4, 2016, Plaintiff's MRI wasapproved. | 64. Exhibit R of Appx of Exh., Exhibit S ofAppx of Exh.; Largoza Decl. at ¶ 11; Ko Decl.at ¶ 6j. |
| 65. On October 30, 2016, Plaintiff submittedanother CDCR form 7362 complaining ofpain. | 65. Exhibit S of Appx of Exh.; Ko Decl. at ¶6k. |
| 66. On November 1, 2016, RN Lajaraassessed Plaintiff, noting that he was takingSulindac and T3, and discharged him, notingthat he returned to housing and wasambulatory. | 66. Exhibit S of Appx of Exh.; Ko Decl. at ¶6k. |
| 67. On November 8, 2016, Plaintiff receivedan MRI of his right elbow, which suggestedthere was ongoing triceps tendinosis, intactligaments, and no osseous or articularabnormalities. | 67. Exhibit T of Appx of Exh.; Feinberg Decl.at ¶ 25; Ko Decl. at ¶ 6l. |
| 68. The MRI did not reveal any nerve damage. | 68. Exhibit T of Appx of Exh.; Ko Decl. at ¶6l. |
| 69. Plaintiff was at SJGH from December 2,2016, to December 5, 2016 for hip pain, andafter an orthopedic consultation with Dr.Dowbak, Plaintiff's "physical findings werenot consistent with any orthopedic problems." | 69. Exhibit U of Appx of Exh.; Feinberg Decl.at ¶ 26; Ko Decl. at ¶ 6m. |
| 70. The SJGH team recommended "no changein his home medication regime," starting withT3 for chronic pain management, andfollowing up with PCP for chronic painmanagement. | 70. Exhibit U of Appx of Exh.; Feinberg Decl.at ¶ 26; Ko Decl. at ¶ 6m. |
| 71. On December 7, 2016, Dr. Ko sawPlaintiff for a follow-up appointment afterPlaintiff was discharged from SJGH. | 71. Exhibit V of Appx of Exh.; Feinberg Decl.at ¶ 27; Ko Decl. at ¶ 6n. |
| 72. Dr. Ko examined Plaintiff's right elbowand found that the swelling of olecranon bursahad completely resolved, and there were nogross abnormalities. | 72. Exhibit V of Appx of Exh; Feinberg Decl.at ¶ 27; Ko Decl. at ¶ 6n. |
| 73. Dr. Ko also found that there were minimalfindings on imaging and physical exam notconsistent with the degree of pain claimed. | 73. Exhibit V of Appx of Exh.; Feinberg Decl.at ¶ 27; Ko Decl. at ¶ 6n. |
| 74. Dr. Ko ordered T3s at a standard dose for14 days. | 74. Exhibit V of Appx of Exh.; Ko Decl. at ¶6n. |
| 75. On December 21, 2016, Dr. Ko sawPlaintiff, noting that Plaintiff went to TTAtwice, and that Plaintiff was orderedibuprofen. | 75. Exhibit V of Appx of Exh.; Ko Decl. at ¶6o. |
| 76. Dr. Ko noted that an orthopedic consult inhospital stated "physical findings were notconsistent with any orthopedic problems." | 76. Exhibit V of Appx of Exh.; Ko Decl. at ¶6o. |
| 77. Dr. Ko also noted that"moaning/crying/complaint" of pain isexaggerated and NOT consistent with minimalfindings on imaging and exam. | 77. Exhibit V of Appx of Exh.; Ko Decl. at ¶6o. |
| 78. Dr. Ko noted that T3s would expire, but hewould renew them one more week at a lowerdose. | 78. Exhibit V of Appx of Exh.; Ko Decl. at ¶6o. |
| 79. On December 28, 2016, Plaintiff wasadministered T3 for his pain per an order fromDr. Ko. | 79. Exhibit W of Appx of Exh.; Ko Decl. at ¶6p. |
| 80. On December 29, 2016, the PainManagement Committee, including Dr.Kuersten, Dr. Largoza, and Dr. Ko, reviewedPlaintiff's case for ongoing T3s, and theydetermined T3s and opiates were not indicatedfor Plaintiff. | 80. Largoza Decl. at ¶ 12; Kuersten Decl. at ¶5d; Ko Decl. at ¶ 6q. |
| 81. No pain contract was formed, and Plaintiffwould continue to be on a plan to receive painmedication. | 81. Largoza Decl. at ¶ 12; Kuersten Decl. at ¶5d; Ko Decl. at ¶ 6q. |
| 82. On December 30, 2016, Dr. Ko sawPlaintiff, noted that Plaintiff had exaggeratedmoaning of pain, and planned to allow theprescription for T3s to expire. | 82. Exhibit V of Appx of Exh.; Ko Decl. at ¶6r. |
| 83. On January 9, 2017, Plaintiff submitted aCDCR form 7362 complaining of pain. | 83. Exhibit X of Appx of Exh.; Ko Decl. at ¶6s. |
| 84. On January 10, 2017, Plaintiff went toSJGH for a consultation with Dr. J. Pettegrew,an orthopedist. | 84. Exhibit X of Appx of Exh.; Feinberg Decl.at ¶ 28; Kuersten Decl. at ¶ 5e.; Ko Decl. at ¶6s. |
| 85. Dr. Pettegrew conducted a physicalexamination of Plaintiff's right elbow, andalso reviewed the MRI of the right elbow. | 85. Exhibit X of Appx of Exh.; Feinberg Decl.at ¶ 28; Kuersten Decl. at ¶ 5e; Ko Decl. at ¶6s. |
| 86. Dr. Pettegrew recommended no surgicalintervention, but conservative treatment withphysical therapy and oral anti-inflammatories. | 86. Exhibit X of Appx of Exh.; Feinberg Decl.at ¶ 28; Kuersten Decl. at ¶ 5e; Ko Decl. at ¶6s. |
| 87. On January 12, 2017, Plaintiff submitted aCDCR form 7362 complaining of pain. | 87. Exhibit Y of Appx of Exh.; Ko Decl. at ¶6t. |
| 88. On January 17, 2017, Plaintiff was seen byRN Lajara, who noted that he would agree totake Capsaicin for pain. | 88. Exhibit Y of Appx of Exh.; Ko Decl. at ¶6t. |
| 89. On January 18, 2017, Plaintiff wasadministered capsaicin topical cream for hispain per an Order from Dr. Ko. | 89. Exhibit W of Appx of Exh.; Ko Decl. at ¶6t. |
| 90. On March 21, 2019, Plaintiff was seen bya new PCP, Dr. Mo, for a complaint of rightAchilles tendinitis secondary to jumping whileplaying basketball. | 90. Feinberg Decl. at ¶ 29. |
| 91. Dr. Mo also noted that "[Plaintiff] He hasalso had problems with his elbows which arerelatively stable at this time," and Plaintiff'sonly current pain medication is over-the-counter Tylenol. | 91. Feinberg Decl. at ¶ 29. |
| 92. T3 with codeine was the strongestrecommended pain medication by Dr. Kohleron February 4, 2016, by Dr. Tarrar onFebruary 5, 2016, by Dr. Rohrer on February8, 2016, by Dr. Lotersztain on February 14,2016, by Dr. Sweeney on December 2, 2016,as well as on the discharge instructions by theemergency room physician at SJGH afterPlaintiff was sent there by Dr. Sweeney thatday. | 92. Feinberg Decl. at ¶ 30. |
| 93. The opinion that Plaintiff's medicalconditions did not medically justify theprescription of pain medications stronger thanT3 with codeine was shared by all physicianstreating Plaintiff from February 2016 toJanuary 2017. | 93. Feinberg Decl. at ¶ 30. |
| 94. Chronic pain is a common complaint inprison, and it is the medically acceptedstandard of care to treat chronic pain with painmedication, physical therapy, exercises, andstretching. | 94. Tan Decl. at ¶ 4; Kuersten Decl. at ¶¶ 7, 9. |
| 95. Medical research shows weak evidence forthe effectiveness of long-term opioid therapyfor chronic non-cancer pain, as tolerance toopioids develops with repeated administration,which means that a higher dosage will berequired to achieve the same effect. | 95. Kuersten Decl. at ¶ 8. |
| 96. Adverse outcomes for opioid painmedication include risks of addiction,overdose, and death. | 96. Kuersten Decl. at ¶¶ 13-14; Ko Decl. at ¶7. |
| 97. An MRI is generally indicated when apatient has failed an adequate trial ofconservative management and/or hassymptoms or findings that suggest animminent need for surgical management. | 97. Tan Decl. at ¶ 6; Kuersten Decl. at ¶ 10. |
| 98. No doctor ever told Plaintiff that heneeded surgery for his elbow. | 98. Underwood Dep. at 77:5-7; Feinberg Decl.at ¶ 31. |
| 99. Dr. Tan did not believe that his treatmentof Plaintiff would endanger Plaintiff or puthim at risk of serious harm. | 99. Tan Decl. at ¶¶ 4-12. |
| 100. Dr. Kuersten never intentionallydisregarded any significant risk to Plaintiff'shealth or pain management, and did notbelieve that Plaintiff had a substantiallyserious medical need for a different course oftreatment than he was provided. | 100. Kuersten Decl. at ¶¶ 14-15. |
| 101. Dr. Largoza did not believe that denyingPlaintiff an MRI or stronger narcotic painmanagement would endanger Plaintiff or puthim at risk of serious harm. | 101. Largoza Decl. at ¶ 13. |
| 102. Dr. Ko provided Plaintiff appropriatemedical care within the community standardof care and at no time intentionally orknowingly caused Plaintiff any harm. | 102. Ko Decl. at ¶¶ 7-10. |
| 103. Plaintiff has not required an orthopedicsurgery follow-up, and currently appears tohave no significant issues with his elbows inthat he is able to actively play basketball andis on no stronger pain medication than over-the-counter strength Tylenol. | 103. Feinberg Decl. at ¶ 31. |
V. DISUCSSION
In their motion for summary judgment, Defendants argue: (1) Defendants are immune from suit for damages to the extent they are sued in their official capacities; (2) Plaintiff's claim for injunctive relief is moot; (3) Plaintiff cannot prevail against Defendants Tan, Kuersten, Largoza, and Ko on the merits of his Eighth Amendments claims for medical indifference because they acted appropriately under the circumstances and did not disregard an excessive risk to Plaintiff's health; and (4) Defendants Tan, Kuersten, Largoza, and Ko are entitled to qualified immunity because their conduct did not violate a clearly established right and was reasonable.
A. Immunity
Defendants argue they are immune from suit to the extent plaintiff seeks damages against them in their official capacities. The Court agrees. The Eleventh Amendment prohibits federal courts from hearing suits brought against a state both by its own citizens, as well as by citizens of other states. See Brooks v. Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991). The Eleventh Amendment also bars actions seeking damages from state officials acting in their official capacities. See Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir. 1995); Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992) (per curiam).
B. Injunctive Relief
In his complaint, Plaintiff seeks permanent injunctive relief in the form of an order that Dr. Ko "remove himself" as Plaintiff's primary care physician. See ECF No. 1, pg. 11. Citing their undisputed statement of fact no. 90, Defendants argue Plaintiff's claim for injunctive relief is moot because Plaintiff's has been switched to a new primary care physician, Dr. Mo. The Court agrees that the undisputed evidence establishes that Plaintiff's claim for injunctive relief is moot because the relief he has been provided the relief he seeks. See Murphy v. Hunt, 455 U.S. 478, 481 (1982). / / / / / / / / /
C. Eighth Amendment Claims
Defendants argue the undisputed evidence establishes that they were not deliberately indifferent to Plaintiff's serious medical needs because they responded appropriately to Plaintiff's medical condition and did not disregard an excessive risk to plaintiff's health. Defendants conclude that plaintiff cannot establish these essential elements and, therefore, are entitled to judgment as a matter of law. The Court agrees.
The treatment a prisoner receives in prison and the conditions under which the prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 511 U.S. 825, 832 (1994). The Eighth Amendment ". . . embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency." Estelle v. Gamble, 429 U.S. 97, 102 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with "food, clothing, shelter, sanitation, medical care, and personal safety." Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when two requirements are met: (1) objectively, the official's act or omission must be so serious such that it results in the denial of the minimal civilized measure of life's necessities; and (2) subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison official must have a "sufficiently culpable mind." See id.
Deliberate indifference to a prisoner's serious illness or injury, or risks of serious injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105; see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). An injury or illness is sufficiently serious if the failure to treat a prisoner's condition could result in further significant injury or the ". . . unnecessary and wanton infliction of pain." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). Factors indicating seriousness are: (1) whether a reasonable doctor would think that the condition is worthy of comment; (2) whether the condition significantly impacts the prisoner's daily activities; and (3) whether the condition is chronic and accompanied by substantial pain. See Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc).
The requirement of deliberate indifference is less stringent in medical needs cases than in other Eighth Amendment contexts because the responsibility to provide inmates with medical care does not generally conflict with competing penological concerns. See McGuckin, 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to decisions concerning medical needs. See Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989). The complete denial of medical attention may constitute deliberate indifference. See Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical treatment, or interference with medical treatment, may also constitute deliberate indifference. See Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate that the delay led to further injury. See McGuckin, 974 F.2d at 1060.
Negligence in diagnosing or treating a medical condition does not, however, give rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a difference of opinion between the prisoner and medical providers concerning the appropriate course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).
The Court observes at the outset that the analysis in this case is necessarily narrowed by Plaintiff's failure to oppose Defendants' motion. Because Plaintiff has not submitted any response to Defendants' motion, the evidence presented by Defendants is necessarily undisputed. Moreover, by not opposing the motion, Plaintiff cannot meet his burden on summary judgment of presenting to the Court evidence to indicate a genuine dispute of material fact exists. In this case, Defendants prevail if they meet their initial burden of demonstrating that Plaintiff cannot establish an essential element of his claims. As discussed below, Defendants have established that, as a matter of law, Plaintiff cannot prevail.
1. Defendant Tan
Defendants argue that Dr. Tan did not deliberately disregard Plaintiff's medical needs and responded appropriately to Plaintiff's medical condition. Specifically, Defendants state:
Dr. Tan treated Plaintiff by reviewing his history of trauma and recent orthopedic surgery consultation recommendations, physically examining him, and ordering T3, Sulindac, capsaicin cream, warm compresses as well as an elbow sling to treat Plaintiff's pain. (UMF Nos. 28-29.) There was "no indication for stronger narcotics such as morphine or methadone." (UMF No. 31.)
Dr. Tan also submitted a RFS for MRI of right elbow within four weeks of Plaintiff's February 12, 2016 appointment at SJGH with Dr. Holmes. (UMF No. 36.) Dr. Tan's decision to treat Plaintiff's pain with medication such as T3, Sulindac, and Capsaicin was medically acceptable and consistent with treatment of Plaintiff by other medical professionals. (UMF Nos. 28-35, 92-94.) Use of conservative pain treatment protocols is medically appropriate. See, e.g., Hamby v. Hammond, 821 F.3d 1085, 1094 (9th Cir. 2016); Reyes v. Smith, No. 2:12-cv-0652-KJM-DMC, 2019 WL 250573, at *8 (E.D. Cal. Jan. 17, 2019).
ECF No. 26-1, pgs. 19-20.
The Court agrees with Defendants that Dr. Tan's conduct did not constitute a violation of Plaintiff's Eighth Amendment rights. The record, as presented by Defendants, clearly demonstrates that Dr. Tan reviewed Plaintiff's medical condition, performed physical examinations, prescribed medication, and requested an MRI scan of Plaintiff's arm. The undisputed evidence establishes that Defendant Tan provided treatment and, therefore, was not deliberately indifferent.
2. Defendant Kuersten
Defendants argue that Dr. Kuersten did not deliberately disregard Plaintiff's medical needs and responded appropriately to Plaintiff's medical condition. Specifically, Defendants state that:
Dr. Kuersten treated Plaintiff at the TTA, physically examined him, and ordered medication for pain relief, an elbow sleeve, and submitted a RFS for physical therapy. (UMF Nos. 48-50.) Dr. Kuersten also reviewed Plaintiff's case for ongoing T3s on December 29, 2016, and decided that there was insufficient medical indication to treat Plaintiff's pain with narcotics. (UMF Nos. 80-81.) Dr. Kuersten's treatment of Plaintiff's pain was consistent with recommendations from other doctors,
medically acceptable, and complied with medical standards. (UMF Nos. 48-50, 92-94.) See, e.g., Hamby, 821 F.3d at 1094; Reyes, No. 2:12-cv-0652-KJM-DMC, 2019 WL 250573, at *8.
ECF No. 26-1, pg. 20.
The Court agrees with Defendants that Dr. Kuersten's conduct did not constitute a violation of Plaintiff's Eighth Amendment rights. According to the evidentiary record before the Court, Dr. Kuersten treated plaintiff's injury by providing him with a physical examination, an elbow sleeve, and an order for pain medication. As is evident from his complaint, Plaintiff believes that the pain medication he received was inadequate. However, a difference of opinion as to the proper course of treatment is not proper grounds for finding Eighth Amendment deliberate indifference. See Jackson, 90 F.3d at 332. As with Dr. Tan, the undisputed evidence establishes that Dr. Kuersten provided treatment and, for this reason, was not deliberately indifferent.
3. Defendant Largoza
Defendants argue that Dr. Largoza did not deliberately disregard plaintiff's medical needs and responded appropriately to plaintiff's medical condition. Specifically, Defendants state that:
Dr. Largoza approved a referral for Plaintiff to orthopedic surgery on February 5, 2016, reviewed Plaintiff's medical records and treatment plan in issuing a response to 602 grievance SOL HC 16041256, and reviewed Plaintiff's case for ongoing T3s on December 29, 2016, as part of the Pain Management Committee. (UMF Nos. 20, 46, 80-81.) Dr. Largoza's decisions to deny Plaintiff's request for stronger pain medication and an MRI complied with medical standards because the IUMC committee considered the request and discussed it as a group, none of Plaintiff's requests were medically indicated, as Plaintiff had not yet exhausted conservative treatment and did not have symptoms or findings that suggested an imminent need for surgical management, and Plaintiff's health care was being managed and reviewed and evaluated on a continuous basis. (UMF Nos. 37, 46-47.)
ECF No. 26-1, pg. 20.
The Court agrees with Defendants that Dr. Largoza's conduct did not constitute a violation of Plaintiff's Eighth Amendment rights. Dr. Largoza was responsible for reviewing Plaintiff's administrative grievance and requests for stronger pain medication and an MRI scan. According to Largoza, the request for stronger pain medication was denied because it was not medically indicated to prescribe Plaintiff with stronger medication. See ECF No. 26-2, pg. 48. Also, Plaintiff's request for an MRI scan was denied because the request Dr. Tan placed for the scan (the RFS) was denied by the Institutional Utilization Management Committee. Thus, Largoza's denial of Plaintiff's requests was not motivated by deliberate indifference to Plaintiff's medical needs but instead an adherence to the decisions of prior physicians and committees. To the extent Plaintiff disagrees with the denial of medication, disagreement with a course of treatment does not give rise to a claim under the Eighth Amendment.
4. Defendant Ko
Defendants argue that Dr. Ko did not deliberately disregard plaintiff's medical needs and responded appropriately to plaintiff's medical condition. Specifically, Defendants state that:
Dr. Ko treated Plaintiff by physically examining him, continuing pain medication, ordering x-rays, and submitting a RFS when Plaintiff had a small bursitis of the olecranon. (UMF Nos. 54-58, 63-65, 67-89.) Dr. Ko's treatment was consistent with the community standard of care, as it is the medical standard to avoid narcotics that could result in risks of addiction, overdose, and death. (UMF Nos. 92-96, 102.) See, e.g., Hamby, 821 F.3d at 1094; Reyes, No. 2:12-cv-0652-KJM-DMC, 2019 WL 250573, at *8.
ECF No. 26-1, pg. 21.
The Court agrees with Defendants that Dr. Ko's conduct did not constitute a violation of Plaintiff's Eighth Amendment rights. Defendants provide evidence that Dr. Ko examined Plaintiff's medical condition, ordered or requested further examinations, and continued Plaintiff's pain medication. To the extent Plaintiff argues that Dr. Ko's failure to secure him either an MRI scan or stronger pain medication violated his constitutional rights, the Court disagrees. As discussed above, a difference of opinion as to the proper course of treatment does not constitute an Eighth Amendment violation. As with the other Defendants, Plaintiff here, by virtue of his non-opposition, does not offer evidentiary support for the assertion that Dr. Ko deliberately disregarded a risk to Plaintiff's health. Therefore, no genuine dispute of fact exists as to whether Dr. Ko's conduct constituted an Eighth Amendment violation. / / / / / / / / /
D. Qualified Immunity
Defendants argue that Drs. Tan, Kuersten, Largoza, and Ko are entitled to qualified immunity. The Court agrees.
Government officials enjoy qualified immunity from civil damages unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In general, qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). In ruling upon the issue of qualified immunity, the initial inquiry is whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the defendant's conduct violated a constitutional right. See Saucier v. Katz, 533 U.S. 194, 201 (2001). If a violation can be made out, the next step is to ask whether the right was clearly established. See id. This inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition . . . ." Id. "[T]he right the official is alleged to have violated must have been 'clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. at 202 (citation omitted). Thus, the final step in the analysis is to determine whether a reasonable officer in similar circumstances would have thought his conduct violated the alleged right. See id. at 205.
When identifying the right allegedly violated, the court must define the right more narrowly than the constitutional provision guaranteeing the right, but more broadly than the factual circumstances surrounding the alleged violation. See Kelly v. Borg, 60 F.3d 664, 667 (9th Cir. 1995). For a right to be clearly established, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand [that] what [the official] is doing violates the right." See Anderson v. Creighton, 483 U.S. 635, 640 (1987). Ordinarily, once the court concludes that a right was clearly established, an officer is not entitled to qualified immunity because a reasonably competent public official is charged with knowing the law governing his conduct. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). However, even if the plaintiff has alleged a violation of a clearly established right, the government official is entitled to qualified immunity if he could have ". . . reasonably but mistakenly believed that his . . . conduct did not violate the right." Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001); see also Saucier, 533 U.S. at 205.
The first factors in the qualified immunity analysis involve purely legal questions. See Trevino v. Gates, 99 F.3d 911, 917 (9th Cir. 1996). The third inquiry involves a legal determination based on a prior factual finding as to the reasonableness of the government official's conduct. See Neely v. Feinstein, 50 F.3d 1502, 1509 (9th Cir. 1995). The district court has discretion to determine which of the Saucier factors to analyze first. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). In resolving these issues, the court must view the evidence in the light most favorable to plaintiff and resolve all material factual disputes in favor of plaintiff. See Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003).
Defendants argue that all factors indicate that they are entitled to qualified immunity. Specifically, Defendants state that:
The undisputed evidence establishes that there are no issues of material fact concerning Dr. Tan's, Dr. Kuersten's, Dr. Largoza's, and Dr. Ko's treatment of Plaintiff's pain and request for an MRI. See supra, III. Here, Plaintiff's claim regarding the treatment and decisions of Dr. Tan, Dr. Kuersten, Dr. Largoza, and Dr. Ko regarding pain medication and an MRI amounts to a difference of opinion as to his medical treatment, which does not rise to the level of a constitutional violation. See Sanchez, 891 F.2d at 242; Hamby, 821 F.3d at 1092; Miller v. California Dep't of Corr. & Rehab., No. 16-CV-02431-EMC, 2018 WL 534306, at *19 (N.D. Cal. Jan. 24, 2018) (granting qualified immunity and finding no constitutional violation for decision to prescribe non-narcotic pain medications even where the patient continued to complain of pain while on morphine). Furthermore, there is no clearly established constitutional right to stronger narcotic pain medication, as case law demonstrates that use of conservative pain treatment protocols is medically appropriate. See, e.g., Hamby, 821 F.3d at 1094; Reyes, No. 2:12-cv-0652-KJM-DMC, 2019 WL 250573, at *8. Nor is there a clearly established right for an incarcerated Plaintiff to dictate their medical treatment. See Vaught v. Ugwueze, No. 1:11-CV-00623-GBC PC, 2012 WL 6570998, at *5 (E.D. Cal. Dec. 17, 2012), aff'd, 542 F. App'x 569 (9th Cir. 2013) (citing Bowring v. Godwin, 551 F.3d 44, 47-48 (4th Cir. 1977). Because Plaintiff's allegations do not constitute deliberate indifference, Dr. Tan, Dr. Kuersten, Dr. Largoza, and Dr. Ko cannot be held liable for violating his Eighth Amendment rights.
Additionally, based on the state of the law in 2016, it is not readily apparent that Dr. Tan, Dr. Kuersten, Dr. Largoza, and Dr. Ko pursued a clearly unconstitutional course of treatment concerning Plaintiff's pain and need for an MRI, when medical providers prescribed T3s with Codeine and surgery was not required. Dr. Tan, Dr. Kuersten, Dr. Largoza, and Dr.
Ko assessed Plaintiff as receiving treatment deemed medically necessary. (UMF Nos. 9-89, 92-102.) There is no evidence showing that Dr. Tan, Dr. Kuersten, Dr. Largoza, and Dr. Ko consciously disregarded an excessive risk to Plaintiff. See UMF Nos. 99-102; cf. Toguchi, 391 F.3d at 1058. Not only did the Defendants lack the mindset necessary to sustain an Eighth Amendment violation, but the testimony of expert Dr. Feinberg conclusively establishes that a reasonable doctor could believe the treatment provided was competent. (UMF Nos. 92-93, 99-102.) Additionally, the decision to deny Plaintiff an MRI was considered with the IUMC, a group of medical professionals, and Dr. Largoza acted reasonably and would have no reason to believe that his decision would violate the Constitution. (UMF Nos. 37, 40.) At a minimum, Dr. Tan, Dr. Kuersten, Dr. Largoza, and Dr. Ko, are entitled to qualified immunity from damages because a reasonable doctor could have believed that their treatment and conduct were lawful under the circumstances.
ECF No. 26-1, pgs. 27-28.
The Court agrees that Defendants are entitled to qualified immunity. It is initially the plaintiff's burden to allege a violation has been clearly established such that the officers should have been on notice. Luna v. Ridge, 436 F. Supp. 2d 1163, 1173 (S.D. Cal. 2006) ("[b]road generalities in the articulation of the constitutional right at issue . . . are insufficient to identify a clearly established right . . ."). "Except in the rare case of an 'obvious' instance of constitutional misconduct . . . [p]laintiffs must identify a case where an officer acting under similar circumstances as [defendants] was held to have violated the Fourth Amendment." Sharp v. Cty. of Orange, 871 F.3d 901, 911 (9th Cir. 2017) (emphasis in original) (quoting White v. Pauly, 137 S.Ct. at 552).
As discussed above, Plaintiff cannot prevail on his Eighth Amendment claims against the Defendants. Because Plaintiff cannot demonstrate that any constitutional violation occurred, he cannot, as a matter of law, show that Defendants' conduct violated a clearly established right. Therefore, Defendants are entitled to qualified immunity. / / / / / / / / / / / / / / / / / /
V. CONCLUSION
Based on the foregoing, the undersigned recommends that:
1. Defendants' motion to dismiss Defendant Egipto, ECF No. 35, be granted;
2. Defendant Egipto be dismissed;
3. Defendants' motion for summary judgment, ECF No. 26, be granted; and
4. Judgement as a matter of law be entered in favor of Defendants Tan, Kuersten, Largoza, and Ko.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after being served with these findings and recommendations, any party may file written objections with the court. Responses to objections shall be filed within 14 days after service of objections. Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: September 23, 2020
/s/_________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE