STANLEY A. BOONE, Magistrate Judge.
Plaintiff Nathan Charles Carey ("Plaintiff") is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
This action is proceeding on Plaintiff's claim against Defendant Dr. Alphonso ("Defendant") for deliberate indifference to a serious medical need in violation of Eighth Amendment.
Plaintiff filed this action on May 8, 2013. On February 9, 2014, the Court screened Plaintiff's complaint and found that Plaintiff stated a cognizable claim against Defendant for deliberate indifference to a serious medical need in violation of the Eighth Amendment. (ECF No. 6.) The Court granted Plaintiff the option of filing an amended complaint or notifying the Court of his intent to proceed on the claim against Defendant Dr. Alphonso only. (ECF No. 6.) On March 3, 2014, Plaintiff notified the Court of his intent to proceed on the claim against Defendant Dr. Alphonso only. (ECF No. 7.)
On May 26, 2015, Defendant filed a motion for summary judgment. (ECF No. 29.) On June 15, 2015, Plaintiff filed an opposition to Defendant's motion and a response to Defendant's statement of undisputed facts. (ECF Nos. 30, 31.) On July 15, 2015, Defendant filed a reply to the opposition for motion for summary judgment and a reply to Plaintiff's response to Defendant's statement of undisputed facts. (ECF Nos. 34, 35.) Plaintiff filed a rebuttal to Defendant's reply, which is construed as a surreply, on August 12, 2015. (ECF No. 36.)
Any party may move for summary judgment, and the Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Washington Mutual Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3);
Defendant does not bear the burden of proof at trial and in moving for summary judgment, he need only prove an absence of evidence to support Plaintiff's case.
However, in judging the evidence at the summary judgment stage, the Court may not make credibility determinations or weigh conflicting evidence,
Plaintiff alleges that his Eighth Amendment rights were violated when Defendant acted with deliberate indifference to his serious medical needs.
Plaintiff suffers from a back injury. While incarcerated at the Sierra Conservation Center (SCC) in Jamestown, he was given a temporary lower bunk. In January 2012, Plaintiff was transferred to California Substance Abuse and Treatment Facility at Corcoran State Prison ("SATF"), where he is currently incarcerated. Prison staff did not accommodate Plaintiff's medical chrono for a lower bunk. Plaintiff spent the first six months in excruciating pain as he was housed on the top tier on a top bunk. During that time, he begged for x-rays and an MRI. These examinations proved that Plaintiff suffers from severe nerve damage. Doctor A. Alphonso continued to deny that Plaintiff was in need of a lower bunk/lower tier chrono. Plaintiff continued to experience loss of functionality in his hips and knees from the nerve damage and he remains in constant sometimes debilitating pain. Plaintiff filed multiple appeals, which were all denied.
On November 13, 2012, the bunks in building 1 were raised due to a court order related to wheelchair accessibility. Plaintiff informed the building correctional Officer Ascevito, if the bunks were going to be increased in height by one and one half feet, he would not be able to be housed in that building because he already experienced pain from the top bunk. Officer Ascevito and Officer Southerland looked at each other and laughed.
On November 20, 2012, when Plaintiff returned from his job assignment, Officer Ascevito stopped him and told him the only way he would move Plaintiff is if he provided a name and CDC number of an inmate who was threatening Plaintiff. Fifteen minutes after Plaintiff arrived back in the building, the announcement was made that the bunks were going to be increased in height at 10:00 a.m. Plaintiff immediately expressed his medical concerns to Officer Ascevito who informed Plaintiff he could not be moved.
At 4:30 p.m. that day, Officer Marquez found Plaintiff standing next to his bunk. Officer Marquez advised Plaintiff to visit him after the inmate count was complete. When Plaintiff went to his office with all of his medical documents, Officer Marquez agreed that Plaintiff should have a lower bunk, but nothing could be done without a chrono from a doctor. Officer Marquez spoke with Sergeant Ponder, who told Marquez to write Plaintiff a disciplinary violation for delaying a peace officer.
On November 21, 2012, Plaintiff could not get on the top bunk and received a second disciplinary violation.
On November 22, 2012, Plaintiff again advised prison officials that he would not get on the top bunk. At this time, he had removed his mattress to the floor and was sleeping there at night. On this same day, Sergeant Ponder and three or four other correctional officers went to Plaintiff's cell to harass and threatened Plaintiff about the issue.
Plaintiff presently has difficulty walking and has continuous progressive pain in his back which radiates to his hips and knees.
The Eighth Amendment's prohibition against cruel and unusual punishment protects prisoners not only from inhumane methods of punishment but also from inhumane conditions of confinement."
Prison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and personal safety,
For claims arising out of medical care in prison, Plaintiff "must show (1) a serious medical need by demonstrating that failure to treat [his] condition could result in further significant injury or the unnecessary and wanton infliction of pain," and (2) that "the defendant's response to the need was deliberately indifferent."
The Plaintiff's claim against Defendant arises out of Plaintiff's disagreement with Defendant's decision not to give Plaintiff a lower bunk/lower tier Chrono. Defendant argues that Plaintiff's back condition did not present an objectively serious medical need and Defendant did not act with deliberate indifference to Plaintiff's back condition, specifically Plaintiff's request for a low bunk/tier Chrono at SATF.
"A medical decision not to order [a form of treatment] . . . does not represent cruel and unusual punishment."
Under the SATF Operational Procedure (OP) 458 and Chapter 23 of the Inmate Medical Services Policies & Procedures (IMSP&P), an inmate is eligible for bottom bunk/ground floor housing if the inmate has:
Therefore, Plaintiff needed to have one of the conditions in the eligibility list in order to receive lower bunk/ground floor housing. Defendant argues that Plaintiff did not meet any of the criteria for lower bunk/ground floor housing, and specifically Plaintiff's back condition did not physically prevent him from climbing to the upper bunk and it was not unduly painful or dangerous for him to do so.
Plaintiff was transferred to SATF in January 2012. On April 15, 2013, Defendant wrote Plaintiff a Chrono for a lower bunk after PA Tiggs-Brown and Dr. Ugwueze recommended one. Therefore, the question is whether the delay in giving Plaintiff the low bunk/tier Chrono between January 2012 and April 15, 2013, was deliberate indifference by Defendant. Delays in providing medical care may manifest deliberate indifference.
Plaintiff claims that the failure to provide him with a medically appropriate bunk and cell assignment (low bunk/tier) caused him to suffer severe, disabling pain in the course of accessing his top bunk on a higher tier. Plaintiff argues that he experienced loss of functionality in his hip and knees from the nerve damage, and that he has been in constant, and sometimes, debilitating pain. However, contrary to Plaintiff's claim, the evidence does not support his interpretation.
Prior to Plaintiff's incarceration at SATF, he was incarcerated at Sierra Conservation Camp and saw doctors there for his back pain. On December 23, 2008, Dr. Lincoln Russin found that Plaintiff's alignment was normal, he does not have an arthritic disease, no fracture or congenital anomaly can be detected, and no abnormality can be detected. (ECF No. 29-4 at 23.)
On February 17, 2009, Dr. Edwin Bangi examined Plaintiff for a follow-up for back problems and noted that Plaintiff had tenderness of the paravertebrals at L3-L4-L5 and T10-T11, pain with hip flexion and extension, limitation of rotatory movement, positive Waddell sign on axial loading, negative modified SLR. (ECF No. 29-4 at 24.) Dr. Bangi also noted that Plaintiff was able to do heel walk, tiptoes, and a full squat and that he had no abnormality of gait. (ECF No. 29-4 at 24.) Dr. Bangi denied Plaintiff's request for a MRI and Chrono for low bunk, low tier finding that the Inmate Policies and Guidelines criteria did not support dispensing a Chrono for this condition. (ECF No. 29-4 at 24.)
On April 29, 2009, Dr. Bangi examined Plaintiff and denied Plaintiff's request for a low bunk, low tier Chrono, because Plaintiff did not meet the criteria. (ECF No. 29-4 at 25.) On July 7, 2009, Dr. Bangi noted that Plaintiff should continue his current treatment plan and self-directed physical therapy exercises would be beneficial for Plaintiff's chronic low back pain. (ECF No. 29-4 at 26.)
On September 11, 2009, Dr. Georgia Thomatos saw Plaintiff and noted that Plaintiff's x-rays were completely normal, and that there were not even vertebral height differences, which is seen with disk bulges. (ECF No. 29-4 at 27.) Dr. Thomatos did not excuse Plaintiff from his scullery work assignment, and indicated that a CDCR 1845 (Disability Placement Program Verification) evaluation confirmed that that there was no permanent disability and Plaintiff's objective data did not support his claimed disability. (ECF No. 29-4 at 27.) Dr. Thomatos specifically noted that Plaintiff had been observed on the yard showing no disability whatsoever. (ECF No. 29-4 at 27.) That same day, Dr. J. St. Clair signed off on CDC 128C that indicated that Plaintiff does not have a permanent disability. (ECF No. 29-4 at 28.)
On October 20, 2009, Dr. Thomatos saw Plaintiff for a follow-up and denied Plaintiff's low bunk and low tier request, because Plaintiff had no trouble with his knees at all and his low back pain was unsubstantiated by any xrays. (ECF No. 29-4 at 33.) On June 8, 2010, Dr. Thomatos examined Plaintiff and indicated that the Indocin and the TENS unit is working great for his back and that he is able to function. (ECF No. 29-4 at 30.) On September 19, 2010, Plaintiff was seen by J. Krpan, D.O., who noted that Plaintiff's spine exam palpated from the cervical spine to the sacrum reveals no significant abnormalities, he has a slight bit of muscle spasm in the lumbar region about L2-L3 on the right side, and he has some discomfort with palpation over the sciatic nerve in the buttocks. (ECF No. 29-4 at 31.)
On September 24, 2010, Dr. Thomatos noted that Plaintiff stated that he was back to normal without any problems regarding his low back. (ECF No. 29-4 at 32.) On October 20, 2009, Dr. Thomatos noted that Plaintiff was able to get up and down and walk without difficulty and that there was no indication for Plaintiff's low tier request because his knees are working fine and he is able to get up and down without difficulty. (ECF No. 29-4 at 33.) On January 7, 2011, Dr. Thomatos noted that Plaintiff's Indocin seems to control Plaintiff's low back pain. (ECF No. 29-4 at 34.)
On May 20, 2011, Plaintiff was seen by Dr. Curtis Allen, who observed that Plaintiff had palpation of the cervical to the lumbar spine reveals no bony deformity, 5/5 motor skills, and a normal gait and was able to walk on his heels and on his toes. (ECF No. 29-4 at 35.) Dr. Allen found that Plaintiff had lumbar pain with descriptions of neuropathic-type pain in a nondermatomal fashion. (ECF No. 29-4 at 35.)
On May 2, 2011, Plaintiff had x-rays of his back, which revealed a mild disc space narrowing at L5-S1, minimal spurring of S1, and mild narrowing and sclerosis of facet joints at L5-S1. (ECF No. 29-4 at 37.) Dr. Lucy Miller found that the x-rays showed that mild degenerative changes have developed at L5-S1. (ECF No. 29-4 at 37.)
On July 25, 2011, Plaintiff had an electromyogram and nerve conduction study done which had normal results, except for decreased peroneal compound motor unit amplitudes on the left (symptomatic) side. (ECF No. 29-4 at 38-43.) Further, the study found:
(ECF No. 29-4 at 38.)
The medical evidence shows that Plaintiff had received x-rays, an electromyogram and nerve conduction study, and consultations in response to his complaints of lower-back pain during his incarceration at Sierra Conservation Camp. The results of Plaintiff's consultations and tests prior to his transfer to SATF do not indicate that he had a severe orthopedic condition which physically prevented him or made it dangerous for him to climb to the upper bunk or be on the upper tier.
In January 2012, Plaintiff was transferred to SATF. After Plaintiff's transfer to SATF, Defendant saw Plaintiff on multiple occasions in 2012 and early 2013. Plaintiff was also seen by another primary doctor and specialists during this time period.
On February 28, 2012, Defendant observed that Plaintiff's gait was normal. (ECF No. 29-5 at 3.) Defendant noted that Plaintiff "came in ambulating without distress." (ECF No. 29-5 at 3.) On March 16, 2012, Defendant noted that he observed Plaintiff after the appointment as he was walking in the yard back to his building with a normal gait and not limping. (ECF No. 29-5 at 4.) Defendant also noted that he explained to Plaintiff that he did not qualify for a lower bunk based on CDCR criteria. (ECF No. 29-5 at 4.)
On March 29, 2012, Plaintiff had an x-ray of his right hip, which was ordered by Defendant, and the x-ray revealed no acute hip fracture or dislocation, joint space was normal, and mineralization appears normal. (ECF No. 29-5.) On that same day, Plaintiff also had an x-ray of his right knee, as ordered by Defendant, which revealed no acute fracture or abnormal knee finding, no suprapatellar effusion, no joint narrowing, no erosions or spurs, and no joint calcifications. (ECF No. 29-5 at 7.) On April 11, 2012, Plaintiff had an x-ray of his lumbar spine, which was ordered by Dr. Scharffenberg, that revealed no lumbar spine fracture or other acute changes and mild spondylosis changes identified at the L5-S1 disc levels, with severe degenerative disk disease at the L5-S1 disc levels. (ECF No. 29-5 at 8.)
On May 23, 2012, Dr. Robert Scharffenberg noted that Plaintiff had chronic low back pain and that Plaintiff was using a TENS unit. (ECF No. 29-5 at 6.) Dr. Scharffenberg noted that Plaintiff's back was tender on the right parapsinally in the right low lumbosacral spine. (ECF No. 29-5 at 9.) On June 27, 2012, Dr. Scharffenberg noted that although Plaintiff complained that he had difficulty walking, Plaintiff was "able to walk unaided just fine at this visit." (ECF No. 29-5 at 10.) Dr. Scharffenberg did note that Plaintiff's x-ray report showed severe degenerative disk disease at L5 to S1. (ECF No. 29-5 at 10.) Dr. Scharffenberg also found that Plaintiff appeared to be unhappy with care no matter what was suggested, and was generally demanding and unhappy. (ECF No. 29-5 at 10.)
On July 24, 2012, Defendant saw Plaintiff and noted that Plaintiff was not eligible for ADA status at that time. (ECF No. 29-5 at 12.)
On July 31, 2012, Plaintiff had an MRI of his back that revealed slightly low-lying conus at level of the L2 and central disc extrusion at L5/S1 with loss of normal disc space height and narrowing of both neural foramina and probable impingement of both exiting L5 nerve roots at neural foraminal compartment. (ECF No. 29-5 at 13.)
On August 14, 2012, Defendant examined Plaintiff after receiving Plaintiff's MRI results. (ECF No. 29-5 at 14.) On October 19, 2012, Defendant noted that Plaintiff had no muscle weakness. (ECF No. 29-5 at 17.)
In October 2012 and March 2013, Plaintiff was seen by two Telemedicine Neurological Surgical Consultation physicians, Dr. Rahimifar and Dr. Leramo, who both did not recommend that Plaintiff receive a lower bunk Chrono. (ECF No. 29-5 at 18-19, 23.) Dr. Rahimifar noted in October 2012 that Plaintiff was walking without any pelvic tilt and he was in no distress. (ECF No. 29-5 at 18.) Dr. Rahimifar found that Plaintiff had degenerative lumbar disc disease longstanding and chronic with narrowing of the disc space at L5-S1 with a small central calcified disc at L5-S1 with slight left foraminal narrowing and right foramen patent. (ECF No. 29-5 at 18.) Dr. Rahimifar found that Plaintiff should avoid heavy lifting over 40 pounds and not do any repetitive bending and twisting. (ECF No. 29-5 at 18.) In March 2012, Dr. Leramo noted that Plaintiff had a mildly antalgic gait, symmetrical reflexes, and normal motor power. (ECF No. 29-5 at 23.) Dr. Leramo found that Plaintiff had chronic low back pain with degenerative disc disease at L5-S1 and that Plaintiff should not do any heavy lifting or repetitive bending and twisting. (ECF No. 29-5 at 23.)
On November 6, 2012, Defendant examined Plaintiff and filled out a CDC 7410 that Plaintiff should have a soft lumbar corset and be restricted from heavy lifting and repetitive bending and twisting. (ECF No. 29-5 at 22.)
On March 13, 2013, PA Tiggs-Brown saw Plaintiff and completed a Disability Placement Program Verification evaluation (CDC 1845), and noted that verification of claimed disability was not confirmed regarding mobility impairment. (ECF No. 29-5 at 24-25.) PA Tiggs-Brown indicated that Plaintiff was "able to ambulate greater than 100 yards without assistive devices." (ECF No. 29-5 at 25.) On March 13, 2013, PA Tiggs-Brown completed a CDC 7410 form indicating that Plaintiff should have a bottom bunk for one-year. (ECF No. 29-5 at 26.) On March 18, 2013, Dr. Ugwueze approved the CDC 7410 request for a bottom bunk for one-year. (ECF No. 29-5 at 26.)
On April 15, 2013, Defendant noted that Plaintiff did not meet the criteria to be identified as disabled or DPM. (ECF No. 29-5 at 30.) Defendant prepared a CDC 7410 form that Plaintiff that Plaintiff should have a bottom bunk for one year, as well as the back brace and TENS unit that had previously been authorized. (ECF No. 29-5 at 31-32.)
On May 21, 2013, Defendant noted that Plaintiff seemed to be seeking increased pain medications and that Plaintiff had been observed multiple times pushing another inmate in a wheelchair on the yard. (ECF No. 29-5 at 33.) On May 30, 2013, Defendant stated that he observed Plaintiff walking without difficulty or a limp to the clinic. (ECF No. 29-5 at 34.)
Therefore, Plaintiff received numerous consultations and tests, including an x-ray and MRI, during his incarceration at SATF. However, the consultations and tests do not support Plaintiff's claim that he should have been given a lower bunk Chrono prior to April 15, 2013. Plaintiff was observed walking normally and there is nothing to suggest that he could not climb to the upper bunk. Defendant noted that Plaintiff was walking without distress on multiple occasions. (ECF No. 29-5 at 3, 4, 34.) In addition, Dr. Scharffenberg observed Plaintiff walking without distress in 2012. (ECF No. 29-5 at 10.) Even PA Tiggs-Brown noted that Plaintiff was able to ambulate greater than 100 yards without assistive devices and that Plaintiff's claimed disability was not confirmed regarding mobility impairment. (ECF No. 29-5 at 24-25.)
The fact that Defendant's decision not to give Plaintiff a lower bunk Chrono differed from that of PA Tiggs-Brown reflects nothing more than a "`difference of medical opinion" as to the need to pursue one course of treatment over another[, which is] . . . insufficient, as a matter of law, to establish deliberate indifference." Jackson v. McIntosh, 990 F.3d 330, 332 (9th Cir. 1996); Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) ("[A] mere `difference of medical opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference.'") (citation omitted); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989) ("A difference of opinion does not amount to a deliberate indifference to Sanchez'[s] serious medical needs.").
Plaintiff fails to allege facts showing Defendant's conclusion was medically unacceptable under the circumstances. Plaintiff's belief that he should have been given a lower bunk Chrono earlier does not suffice to create a triable issue of fact regarding whether Defendants' failure to give a lower bunk Chrono earlier rose to the level of deliberate indifference. See Jett v. Penner, 439 F.3d at 1096 (plaintiff must demonstrate "a purposeful act or failure to respond to a prisoner's pain or possible medical need.") (citing Estelle, 429 U.S. at 104); see also Toguchi, 391 F.3d at 1058 ("[A] mere `difference of medical opinion" as to the prescription drug plan is not sufficient to invoke the Eighth Amendment.) Plaintiff has failed to demonstrate anything beyond his mere disagreement with the treatment provided.
Accordingly, two medical professionals at Sierra Conservation Center and one medical professional at SATF agreed that Plaintiff was not entitled to a lower bunk/lower tier Chrono for his back pain. This suggests that Defendant's decision to not provide a lower bunk/lower tier Chrono was not medically unacceptable under the circumstances. See Moreno v. Medina, 2013 WL 3350819, at * 4 (E.D. Cal. 2013) (fact that the same course of treatment was recommended by multiple physicians suggests that the treatment was not medically unacceptable under the circumstances).
Plaintiff has failed to establish that Defendant was deliberately indifferent to a serious medical need. Rather, as evidenced above, Plaintiff was provided adequate treatment for his back pain and Plaintiff's mere disagreement with the treatment provided does not support a claim for deliberate indifference by Defendant. Plaintiff has not submitted evidence to show that Defendant's decision to not write a lower bunk/lower tier Chrono for Plaintiff was medically unacceptable under the circumstances, nor that Defendant made that determination in conscious disregard of an excessive risk to Plaintiff's health. Thus, Defendant is entitled to summary judgment.
Based on the foregoing, it is HEREBY RECOMMENDED that Defendant's motion for summary judgment be GRANTED and judgment be entered in favor of Defendant.
Further, the Court DIRECTS the Clerk of Court to assign a District Court Judge to the present matter because only the Plaintiff has consented to proceed before a United States Magistrate Judge.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after being served with these Findings and Recommendations, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Replies to the objections may be filed within fourteen (14) days after service of any objections. The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
