ALLISON CLAIRE, Magistrate Judge.
Plaintiff Hilliard Williams is a state prisoner currently incarcerated at the Correctional Health Care Facility (CHCF) in Stockton, under the authority of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff proceeds in forma pauperis and with appointed counsel in this civil rights action filed pursuant to 42 U.S.C. § 1983. This case proceeds on plaintiff's original complaint on claims that defendant CDCR physicians Jarom Daszko and David Mathis were deliberately indifferent to plaintiff's serious medical needs in violation of the Eighth Amendment during plaintiff's previous incarceration at the California Medical Facility (CMF).
Presently pending for decision are defendants' separate motions for summary judgment.
Plaintiff filed his original complaint in May 2014, and completed his request to proceed in forma pauperis in June 2014. In September 2014, the court granted plaintiff's request to proceed in forma pauperis, and found that his complaint states cognizable Eighth Amendment claims against defendants Mathis and Daszko, for whom service of process was appropriate. The defendants filed separate answers to the complaint in December 2014, and the court issued an initial Discovery and Scheduling Order on December 31, 2014.
In March 2015, defendants filed separate motions for summary judgment premised on plaintiff's alleged failure to exhaust his administrative remedies before commencing this action. In February 2016, the undersigned recommended that both motions be denied; these findings and recommendations were adopted by the district judge in March 2016. Thereafter, defendants declined the court's invitation to participate in a settlement conference, and the court issued an Amended Discovery and Scheduling Order in April 2016, and a Further Amended Discovery and Scheduling Order later that month.
In November 2016, the court granted plaintiff's request for appointment of counsel and issued another Further Amended Discovery and Scheduling Order, which was further modified in May 2017 and September 2017 at the parties' requests.
Defendants filed their respective pending motions for summary judgment in November 2017. Plaintiff filed one comprehensive opposition to both motions, ECF No. 98; defendants filed separate replies, ECF Nos. 100, 101; plaintiff responded to defendant Mathis' evidentiary objections with a request that his response be construed as an authorized surreply, ECF No. 102. For the reasons offered by plaintiff,
Pursuant to the parties' preexisting stipulation to protect the confidentiality of plaintiff's medical records, all parties requested that such evidence be filed in this court under seal. Although this was a departure from the usual practice of this court, the undersigned granted the requests, subject to the following qualification:
ECF Nos. 86 at 1-2, 88 at 1-2, 95 at 2.
Summary judgment is appropriate when the moving party "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). Under summary judgment practice, the moving party "initially bears the burden of proving the absence of a genuine issue of material fact."
When the non-moving party bears the burden of proof at trial, "the moving party need only prove that there is an absence of evidence to support the nonmoving party's case."
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.
The opposing party must demonstrate that the fact in contention is material,
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial."
In evaluating the evidence to determine whether there is a genuine issue of fact," the court draws "all reasonable inferences supported by the evidence in favor of the non-moving party."
In applying these rules, district courts must "construe liberally motion papers and pleadings filed by pro se inmates and . . . avoid applying summary judgment rules strictly."
"[D]eliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain, proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed."
"In the Ninth Circuit, the test for deliberate indifference consists of two parts. First, the plaintiff must show a serious medical need by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain. Second, the plaintiff must show the defendant's response to the need was deliberately indifferent. This second prong . . . is satisfied by showing (a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference."
To prevail on a claim for deliberate indifference to serious medical needs, a prisoner must demonstrate that a prison official "kn[ew] of and disregard[ed] an excessive risk to inmate health or safety; the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference."
Whether a defendant had requisite knowledge of a substantial risk of harm is a question of fact. "[A] factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious. . . . The inference of knowledge from an obvious risk has been described by the Supreme Court as a rebuttable presumption, and thus prison officials bear the burden of proving ignorance of an obvious risk. . . . [D]efendants cannot escape liability by virtue of their having turned a blind eye to facts or inferences strongly suspected to be true."
When the risk is not obvious, the requisite knowledge may still be inferred by evidence showing that the defendant refused to verify underlying facts or declined to confirm inferences that he strongly suspected to be true.
Included in his reply brief are defendant Mathis' objections to the report of plaintiff's expert, Dr. Gregory Gilbert.
Defendant Mathis initially makes two general objections to Dr. Gilbert's expert report: first, that Dr. Gilbert's report is irrelevant to the question of deliberate indifference because it concludes only that defendants' treatment of plaintiff "fell below the minimum standard of medical care" and is thus limited to the question of medical negligence or malpractice, ECF No. 101-3 at 2; and second, because Dr. Gilbert did not examine plaintiff, some of his opinions are inadmissible under Federal Rule of Evidence 702
Plaintiff responds that "relevance" objections are improper on summary judgment, and the failure of Dr. Gilbert to examine plaintiff does not render his opinions inadmissible. Plaintiff emphasizes that Dr. Gilbert qualifies as an expert under Rule 702 because he is clinically qualified to opine on the treatment of burn injuries and pain management, and "painstakingly reviewed plaintiff's medical records (both from the CDCR and from the outside hospitals that treated his burn wounds), as well as the relevant medical literature and all of the deposition testimony from this case." ECF No. 102 at 3-4 (citing cases).
Defendant Mathis does not dispute that Dr. Gilbert is a qualified expert, which renders irrelevant his general objection based on relevance. Dr. Gilbert's avoidance of the term "deliberate indifference" is appropriate as it would otherwise reflect an improper legal conclusion. "[E]xpert testimony using the legally significant terms `deliberate indifference' and `objective reasonableness' should be excluded. [¶] But the cases also consistently hold that while an expert cannot testify as to `deliberate indifference' or `objective reasonableness' using those specific terms, . . . they may opine as to the appropriate standards of healthcare in a correctional facility[.]"
Moreover, "[i]t is axiomatic that a court only considers relevant evidence on a motion for summary judgment."
The court also overrules defendant Mathis' general objection to Dr. Gilbert's expert report on the ground that he did not physically examine plaintiff. Dr. Gilbert's specialized expertise and thorough review of plaintiff's medical records render his opinions both admissible and probative because based on "scientifically valid principles" and "rest[ing] on a reliable foundation . . . relevant to the task at hand."
Defendant Mathis next objects to several of Dr. Gilbert's specific opinions.
For purposes of summary judgment, the following facts are undisputed by the parties or as determined by the court, unless identified as disputed for the reasons noted.
• At all times relevant to this action, plaintiff Hilliard Williams was an inmate at the California Medical Facility (CMF), and defendants Jarom Daszko, M.D., and D. Mathis, M.D., were CDCR physicians on staff at CMF.
• In September 2012, plaintiff was 48 years old with several medical problems including a seizure disorder, asthma, anemia, lupus, rheumatoid arthritis, and chronic pain. Plaintiff used a wheelchair on a regular basis and was regularly prescribed several medications. To treat his chronic pain, plaintiff was regularly prescribed, three times per day, 15 mg immediate release (IR) morphine, 30 mg extended release (ER) morphine, and 650 mg acetaminophen. According to plaintiff's primary care physician (PCP) at CMF, Dr. John Wieland, plaintiff "followed through with treatments appropriately," "was always respectful," and exhibited no signs of "drug-seeking behavior." Smith Decl., Ex. 4 (Wieland Depo. at 53:20-2, 64:17-21).
• On September 7, 2012, a Friday, at approximately 1:15 a.m., another prisoner poured a mixture of boiling water, oil, Noxzema and Magic Shave on plaintiff while he was sleeping. Plaintiff was taken to the prison emergency room, known as the Treatment and Triage Area (TTA), at approximately 1:30 a.m.
• Defendant Dr. Daszko was the TTA physician on duty who initially treated plaintiff. Dr. Daszko noted that plaintiff was "in quite a bit of pain," "moaning," "shouting," "grimacing," and "writhing." Smith Decl., Ex. 3 (Daszko Depo. at 78:17-20, 80:23-81:1). To treat plaintiff's acute pain, Dr. Daszko gave plaintiff two doses of IR morphine intravenously: 5 milligrams (mg) at 2:22 a.m., and 5 mg at 3:57 a.m. Dr. Daszko started a saline IV and oversaw application of a salve to plaintiff's burns. At approximately 4:30 a.m., Dr. Daszko transferred plaintiff to San Joaquin General Hospital (SJGH) because he believed plaintiff needed direct, continuous care, and assessment whether his airway was compromised.
• At SJGH, plaintiff received additional morphine (2.5 mg morphine via IV at 7:25 a.m.) to relieve his pain, which he described as a "10" on an ascending scale of 0 to 10. Plaintiff was diagnosed with second-degree burns.
• Before his shift ended, Dr. Daszko confirmed with SJGH that plaintiff was stable and had no threat of airway compromise. Dr. Daszko spoke with a physician at the University of California, Davis, Medical Burn Center (Burn Center), who recommended that plaintiff be transferred there for observation within 72 hours. During the shift change, Dr. Daszko informed CMF physician, Dr. Mehta, of plaintiff's condition and treatment, and that plaintiff was scheduled for treatment later that day at the Burn Center.
• Plaintiff returned to CMF's TTA from SJGH at about 2:00 p.m., where he was treated by Dr. Mehta. Plaintiff described his pain as an "8" out of 10; Dr. Mehta prescribed one 30 mg ER morphine tablet, which plaintiff received at 3:02 p.m.
• Later that afternoon, plaintiff was transported to the Burn Center, where he was treated by Burn Fellow Dr. Mario Velez Palafox; there is no record evidence indicating that plaintiff received additional pain medication while at the Burn Center.
• Plaintiff was returned to CMF's TTA from the Burn Center at about 8:45 p.m., at which time he was treated by defendant Dr. Mathis, who did not administer or prescribe additional pain medications. Dr. Mathis reviewed Dr. Palafox's notes and followed his orders. Dr. Mathis debrided the burns on plaintiff's face and dressed the wounds with bacitracin/zinc ointment. Dr. Mathis instructed plaintiff to (a) leave the arm bandages in place until the following Thursday when he should return to the clinic for their removal and then be evaluated whether he required a return to the Burn Center; and (b) continue applying ointment to his face and return to the clinic if he needed more.
• It is undisputed that plaintiff's regularly prescribed pain medications were recommenced the evening of September 7, 2012, after plaintiff's appointment with Dr. Mathis, specifically, one 15 mg IR morphine tablet, one 30 mg ER morphine tablet, and 650 mg acetaminophen. Administered three times per day, these medications were continued the next morning, September 8, 2012, until September 10, 2012, when plaintiff was returned to the Burn Center.
• Three days later, on September 10, 2012, plaintiff was re-admitted to the Burn Center on referral from an unidentified CMF physician who determined that plaintiff had a fever and was at risk of cellulitis. Plaintiff remained at the Burn Center until September 13, 2012, when he was discharged. Smith Decl., Ex. 18 (ECF No. 96 at 177-221); Gilbert Report at 204-5 (ECF No. 97 at 10-1). While plaintiff was being treated at the Burn Center, he received narcotic drugs, including intravenous morphine and fentanyl, to treat his pain.
• On September 17, 2012, plaintiff was examined by Dr. Mehta, who was caring for Dr. Wieland's primary care patients in his absence. Dr. Mehta found plaintiff's burn lesions "drying, healing, and with scabbing," without vesicles, pustules or discharge. Dehoff Decl., Ex. F (Sept. 17, 2012 treatment note by Dr. Mehta, ECF No. 91 at 12);
• On September 20, 2012, plaintiff submitted an inmate health care appeal, Log No. CMF HC 12037206.
In this appeal, plaintiff requested the following relief:
• Also on September 20, 2012, plaintiff submitted a "Health Care Services Request Form," in which he stated: "Something is wrong with my arm and my eyes are still blurry. Please help. I am in lots of pain that's not going away. And I still have not seen the psych doctor `3rd request'." Smith Decl., Ex. 10 (ECF No. 96 at 152).
• On September 21, 2012, plaintiff saw defendant Dr. Daszko in the B-1 medical clinic when plaintiff was having his bandages changed; this was not a scheduled appointment with Dr. Daszko. Plaintiff testified that he asked Dr. Daszko for additional pain medication but Dr. Daszko prescribed only ice packs. Pltf. Depo. at 99:25 — 100:25.
• On September 23, 2012, plaintiff was seen by a triage nurse and described his pain as an "8" out of 10. Smith Decl., Ex. 10 (ECF No. 96 at 152).
• On September 24, 2012, after his return from vacation, Dr. Wieland met with plaintiff and prescribed him additional pain medication to treat his acute pain, in addition to his regularly prescribed medications to treat his chronic pain. Smith Decl., Ex. 12 (Wieland's Sept. 24, 2012 TTA treatment note, ECF No. 96 at 158).
• Plaintiff remained on an elevated dose of morphine until October 1, 2012. Smith Decl., Ex. 15 (Wieland's Sept. 24, 2012 ACC/PCP treatment note, ECF No. 96 at 167). Plaintiff avers that he did not suffer any adverse effects as a result of the additional morphine prescribed by Dr. Wieland; to the contrary, plaintiff reported that his pain level dropped "a whole lot" from "between 8 and 7" to "about a 6-1/2." Pltf. Depo. 102:13-104:6.
• On September 25, 2012, D. Pitkin, a CMF licensed clinical social worker, saw plaintiff and noted his reports that, since his assault, he had become hypervigilant, anxious and depressed, and was sleeping poorly and having nightmares. Smith Decl., Ex. 13 (Pitkin's Sept. 25, 2012 treatment note, ECF No. 96 at 161). Dr. Pitkin's treatment note states that plaintiff "is usually a calm and pleasant man, who today appears tortured by what has happened."
• On September 26, 2012, Dr. Morgenstern, a CMF psychiatrist, saw plaintiff and noted his complaints of insomnia and nightmares since his assault. Dr. Morgenstern diagnosed plaintiff with depression and an "Acute Stress Reaction;" he increased plaintiff's prescription for Remeron (an antidepressant), and offered him a prescription for Cymbalta (for depression, anxiety and neuropathic pain). Smith Decl., Ex. 14 (Morgenstern's Sept. 26, 2012 treatment note, ECF No. 96 at 164).
• Meanwhile, plaintiff's Inmate Appeal Log No. CMF HC 12037206, submitted September 20, 2012, was designated "received" by the CMF Appeals Office on September 25, 2012, and assigned to Dr. Wieland on September 29, 2012. Dr. Wieland interviewed plaintiff on October 16, 2012, and granted his appeal on First Level Review.
Smith Decl., Ex. 16 (Wieland's Oct. 16, 2012 treatment note, ECF No. 96 at 170).
• Later the same day, on October 16, 2012, CMF Chief Physician and Surgeon F. Rading, M.D., issued a formal First Level Decision granting plaintiff's Inmate Appeal Log No. CMF HC 12037206. Dr. Rading stated in pertinent part:
ECF No. 1 at 22-3.
The parties do not dispute that during the relevant period plaintiff's burn injuries and resulting pain were serious medical needs within the meaning of the Eighth Amendment, thus meeting the first of the court's two-prong deliberate indifference analysis.
The court assesses the evidence related to the specific occasions on which each defendant treated plaintiff, as documented in the record. Despite plaintiff's general allegations that he had numerous undocumented interactions with defendants between September 7 and September 24, 2012 — when they allegedly refused his requests for additional pain medication, told him he needed to wait for his PCP to return, and told plaintiff to "man up" or "suck it up" — there is no evidentiary basis for holding defendants accountable for plaintiff's treatment throughout this period of time. As even Dr. Gilbert notes, "Although not reflected in Mr. Williams' medical records, Mr. Williams stated that he saw Drs. Mathis and Daszko between September 13 and 24, 2012, and requested additional pain medications, which they denied him."
Dr. Daszko was the first physician to treat plaintiff following his injuries, beginning at 1:30 a.m., on September 7, 2012. Dr. Daszko started a saline IV, gave plaintiff two IV doses of IR morphine (5 mg at 2:22 a.m., and 5 mg at 3:57 a.m.), and oversaw application of a salve to plaintiff's burns. At 4:30 a.m., Dr. Daszko transferred plaintiff to SJGH for further assessment. At SJGH, plaintiff received 2.5 mg morphine at 7:25 a.m. Before ending his shift, Dr. Daszko confirmed with SJGH that plaintiff had no injuries to his airway and that his condition was stable, and made arrangements for plaintiff to be seen at the Burn Center that same afternoon. During the shift change, Dr. Daszko informed Dr. Mehta of plaintiff's condition, treatment, and appointment. Plaintiff does not contend that Dr. Daszko's treatment of plaintiff on September 7, 2012 was deliberately indifferent.
The next documented interaction between plaintiff and defendant Dr. Daszko was two weeks later, on September 21, 2012,
Dr. Daszko recalls plaintiff asking for additional pain medication on September 21, 2012, when the physician was "passing through B-1 clinic after completing my shift as MOD on my way to CSP Solano." Daszko Depo. at 92:18-9. Dr. Daszko testified that plaintiff "did not appear to be in any significant distress at the time," based on his "casual conversational tone" and "neutral" facial expression while conversing with Dr. Daszko and the other medical and custodial staff. Dehoff Decl., Ex. C (Daszko Depo. at 93:23-5, 94:1-10). Dr. Daszko testified that he responded to plaintiff as follows:
Dr. Daszko testified that, based on his experience and community standards of care, "it was not in anyone's best judgment to adjust a patient's pain medications on anything but an acute basis."
It is the opinion of plaintiff's medical expert, Dr. Gilbert, that Dr. Daszko falsely stated on September 21, 2012 that he was unable to prescribe plaintiff additional narcotic pain medication, and that providing plaintiff with ice packs was both inadequate to treat plaintiff's pain and "substandard medical care" because "the use of ice packs to treat burns could actually worsen Mr. Williams' condition and cause additional burns via frostbite." Gilbert Report at 210-11 (ECF No. 97 at 16-7).
The court assesses these allegations in the light most favorable to plaintiff. First, because plaintiff does not claim that the ice packs prescribed by Dr. Daszko caused exacerbation of his burn injuries or pain, or any new injury, this medical decision does not support a deliberate indifference claim. In the absence of demonstrated harm, plaintiff has no claim for deliberate medical indifference.
Next, Dr. Daszko concedes that he informed plaintiff that any changes to his regularly prescribed medications would need to be made by his PCP or acting PCP. However, even assuming Dr. Daszko had discretion to prescribe additional narcotic pain medication to plaintiff on September 21, 2012, plaintiff has not presented evidence demonstrating that Dr. Daszko's failure to do so was deliberately indifferent. Specifically, plaintiff has presented no evidence to refute Dr. Daszko's assessment that plaintiff's pain level appeared tolerable that day because plaintiff "did not appear to be in any significant distress" based on his "casual conversational tone" and "neutral" facial expression. Daszko Depo. at 93:23-5, 94:1-10. In his own deposition testimony, plaintiff conceded that he used a normal conversational tone in making his request to Dr. Daszko, Pltf. Depo. at 100:2-11, and chose not to press the interaction, which lasted only "seconds,"
Dr. Wieland, plaintiff's PCP, returned three days later, on September 24, 2012, and increased plaintiff's pain medications for a period of one week, until October 1, 2012. However, Dr. Weiland testified that his primary intent in doing so was not necessarily pain relief, but to demonstrate support for plaintiff.
Viewing plaintiff's interaction with Dr. Daszko on September 21, 2012 in context of all these circumstances, the undersigned finds that no reasonable trier of fact could conclude that Dr. Daszko "purposefully ignored" or "failed to respond" to a serious medical need for additional pain relief.
For these reasons, the undersigned recommends that defendant Dr. Daszko's motion for summary judgment be granted.
When plaintiff returned to CMF from the Burn Center at 8:45 p.m. on September 7, 2012, he was treated by receiving physician defendant Dr. Mathis.
Plaintiff contends that the condition of his burns and vital signs upon his return from the Burn Center on the evening of September 7, 2012, should have made it obvious to Dr. Mathis that plaintiff required additional pain medication. Plaintiff relies on Dr. Mathis' treatment note indicating that plaintiff had an elevated pulse of 110 beats per minute and elevated blood pressure of 140 over 79, and that Dr. Mathis "debrided [plaintiff's] 2 degree burns over the inferior forehead, across the nose, cheeks and some on the upper lip" without offering additional pain medication.
It is the opinion of plaintiff's expert, Dr. Gilbert, that "Dr. Mathis failed to provide the medically accepted standard of care to Mr. Williams, by declining to prescribe additional pain medication, specifically opiates, when Mr. Williams returned from UCDBC in at least four ways." Gilbert Report at 209-10 (ECF No. 97 at 15-6). Specifically, Dr. Gilbert opines:
Defendant Mathis responds that, on the subject evening, he made an informed medical decision that plaintiff did not require additional pain medication.
Mathis Decl. ¶¶ 12-3 (citing Ex. G, Mathis' Sept. 7, 2012 treatment note, ECF No. 89 at 35);
The assessments of Dr. Mathis and Dr. Gilbert demonstrate a material factual dispute concerning what pain medications had been administered to plaintiff prior to his treatment by Dr. Mathis on the evening of September 7, 2018. Dr. Mathis opines that plaintiff had been given his regular doses of pain medication "throughout the day on September 7, 2012," Mathis Decl.,¶ 13;
Review of the record evidence appears to support Dr. Gilbert's assessment. Shortly after plaintiff sustained his injuries, he received, at CMF's TTA, 5 mg IR morphine at 2:22 a.m., and 5 mg IR morphine at 3:57 a.m.; then, at 7:25 a.m., he received 2.5 mg IR morphine at SJGH. It appears that plaintiff received no other pain medication until 3:02 p.m., when he received 30 mg ER morphine upon his return to CMF from SJGH.
Dr. Mathis' apparent error in determining how much pain medication plaintiff had received on September 7, 2012, may reflect no more than negligence. However, a reasonable juror could conclude, alternatively, that such assessment was deliberately indifferent based on all the circumstances. Dr. Mathis' apparent error underscores the more fundamental material factual dispute concerning Dr. Mathis' subjective assessment of plaintiff's pain level. Dr. Mathis testified that plaintiff's burns "were no longer as acute as they were first thing in the morning." Mathis Depo. at 134:3-5. Nevertheless, it was the same day that plaintiff had sustained his injuries, which were sufficiently serious to warrant specialized care at SJGH and the Burn Center prior to Dr. Mathis receiving plaintiff back to CMF. Although Dr. Mathis and Dr. Gilbert dispute the inferences to be drawn about plaintiff's pain level based on his demeanor when he was treated by Dr. Mathis, plaintiff's objective injuries remained obvious.
Even had plaintiff received his regularly prescribed pain medications throughout the day on September 7, 2012 (and therefore that Dr. Mathis' assessment was correct), Dr. Gilbert opines that "patients who are on chronic narcotic therapy for their pain syndromes become tolerant of the narcotics they are taking and have lower pain thresholds than most people. Mr. Williams' chronic pain made his need for stronger, narcotic pain medications even more necessary." Gilbert Report at 206 (ECF No. 97 at 12). Dr. Gilbert relies on the "acute pain algorithm" set forth in CDCR's Pain Management Guidelines to opine that plaintiff should have been provided "additional narcotics for acute pain beyond [his] existing chronic pain medication doses."
Dr. Mathis' apparent mistake concerning the quantity of pain medications administered to plaintiff prior to treating him on the evening of September 7, 2012, defeats the argument that his decision to refrain from administering or prescribing additional pain medication was no more than a nonactionable difference of medical opinion. This principle applies "where a defendant has based his actions on a medical judgment that either of two alternative courses of treatment would be medically acceptable under the circumstances."
Whether Dr. Mathis knew of but disregarded plaintiff's alleged need for additional pain medication on September 7, 2012 presents material factual questions that cannot be resolved on summary judgment. Plaintiff has adduced sufficient evidence to require a trial on his medical deliberate indifference claim against defendant Mathis. For this reason, the undersigned recommends that defendant Mathis' motion for summary judgment be denied.
Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that:
1. Plaintiff's request that his response to defendant Mathis' evidentiary objections, ECF No. 102, be construed as an authorized surreply is GRANTED.
2. Defendant Mathis' objections to plaintiff's evidence, ECF No. 101-3, are OVERRULED for the reasons set forth above.
Additionally, IT IS HEREBY RECOMMENDED that:
1. Defendant Daszko's motion for summary judgment, ECF No. 90, be GRANTED; and
2. Defendant Mathis' motion for summary judgment, ECF No. 92, be DENIED.
These findings and recommendations are submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within seven (7) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.
Plaintiff's subject Health Care Appeal, submitted on September 20, 2012, does not attribute his inability to obtain additional pain medication to any specific provider. Plaintiff alleged only generally that he had "repeatedly asked for pain meds to address the severe pain that I am suffering," but was "repeatedly . . . told that I need to see my own PCP for any pain medication." Cmplt., Ex. A (ECF No. 1 at 24, 26).
Similarly, with the exception of specific allegations against Dr. Daszko on September 21, 2012, Cmplt. ¶ 33 (ECF No. 1 at 10), addressed below, the allegations of plaintiff's verified complaint assert only generally that "defendants . . . told [him] that he would have to wait for his own Primary Care Physician to return from vacation because no one other than his own PCP could change his pain medications pursuant to some in-house policy. Therefore he would just have to suck-it-up and deal the best that he could with the pain."
Wieland Depo. at 62:24-63:21.