THELTON E. HENDERSON, District Judge.
Plaintiff, an inmate at the Correctional Training Facility in Soledad, California (CTF), filed a
Now before the Court is Defendants' combined motion to dismiss and motion for summary judgment. Plaintiff has filed an opposition
The following facts are undisputed unless otherwise noted:
In 1971, Plaintiff was involved in a motorcycle accident that left his lower right leg permanently and severely disfigured and approximately 1 to 1.5 inches shorter than his left leg. SAC at 4. This disability causes Plaintiff severe lower back, hip, and leg pain unless he wears an orthopedic shoe.
Plaintiff had a successful total knee replacement while in CDCR custody in November 2008. Bright Decl. ¶ 12. Records of Plaintiff's physical therapy treatments reflect that in January, 2009 he was "doing well," and was observed to have a "non-antalgic gait" and mobility "without assist." Fox Decl. ¶ 5; Ganahl Decl. Ex. B at 4. In February 2009 he could "work out hard," including doing squats and steps; in March 2009 he was "doing lunges"; and in May 2009 he could walk two to three miles every day. Fox Decl. ¶ 5; Ganahl Decl. Ex. B at 5. Plaintiff's medical records reflect that his replaced knee functions well. Fox Decl. ¶ 5; Bright Decl. ¶ 12.
In August 2010, Plaintiff sought to be moved from the first housing tier to the second, which requires traversing up and down a flight of stairs in order to access programs, services, and activities occurring throughout the day. Fox Decl. ¶ 6. Plaintiff's primary care physician, Dr. Friederichs, approved that request.
In 2010, while housed at CTF, Plaintiff received new orthotic shoes that were too narrow and too long. SAC at 5. On January 4, 2011, Plaintiff submitted a Health Care Appeal, identified by log number CTF-S-11-00064, seeking new orthopedic shoes. Dkt. 22-2 Ex. B at 6. Because the request sought a disability accommodation, it was processed as an ADA request. Bright Decl. ¶ 13. Defendant Nurse Fox, the responding ADA nurse for that appeal, scheduled Plaintiff to be examined by Defendant Dr. Bright and provided Dr. Bright with Plaintiff's relevant medical documentation to review for purposes of that examination. Fox. Decl. ¶¶ 7-8.
On January 28, 2011, Dr. Bright, then Chief Physician and Surgeon at CTF and head of CTF's ADA program and clinic, interviewed and evaluated Plaintiff in response to his appeal seeking new orthopedic shoes. Bright Decl. ¶¶ 1, 14; Ganahl Decl. Ex. D, Dkt. 39-6 at 8-9. Nurse Fox was present during that evaluation. Fox Decl. ¶ 8. Plaintiff arrived to the evaluation at the CTF ADA clinic from his housing unit, a distance of nearly 350 yards, without his cane; his mobility at that time was observed to be brisk, with no discernible limp or impairment of any kind. Fox Decl. ¶ 9; Bright Decl. ¶ 19; Ganahl Decl. Ex. D, Dkt. 39-6, at 2-3.
During the evaluation, Dr. Bright determined that the orthopedic shoes Plaintiff possessed at the time were serviceable. Bright Decl. ¶ 16. Although Plaintiff's orthopedic shoes were worn and too small, they were sufficient for him to maintain mobility.
In the course of the January 28, 2011 evaluation, Dr. Bright also reviewed Plaintiff's other disability needs, including a prior prescription for a cane. Bright Decl. ¶ 19. Dr. Bright's examination revealed that Plaintiff had a normal gait and cadence, and no pain or tenderness with his range of motion.
Dr. Bright then completed a Disability Placement Program Verification for Plaintiff, noting that Plaintiff maintains sufficient mobility without a cane and may be housed on a second tier. Bright Decl. ¶ 22. Dr. Sepulveda, the Chief Medical Executive at CTF, signed that form on January 31, 2011, indicating his review and approval of the findings.
On January 31, 2011, Plaintiff submitted a Health Care Services Request Form requesting that his right to a cane be reinstated. Bright Decl. ¶ 25; Ganahl Decl. Ex. D, Dkt. 39-6, at 11. Plaintiff was evaluated by Dr. Friederichs, his primary care physician, on February 7, 2011, and Dr. Friederichs did not conclude that Plaintiff's condition warranted the use of a cane. Bright Decl. ¶ 26; Ganahl Decl. Ex. D, Dkt. 39-6, at 12-13.
On February 28, 2011, Dr. Sepulveda provided a second-level response to Plaintiff's appeal number CTF-S-11-00064, affirming Dr. Bright's determination that Plaintiff did not require a cane, but would be referred to an orthotics provider for new orthopedic shoes, and stating that Plaintiff could obtain and use state-issue extra-wide shoes along with his insoles, which would provide reasonable accommodation if his orthopedic shoes became unserviceable before he was able to obtain new ones. Fox Decl. ¶ 15; Dkt. 22-2 Ex. B at 16-18.
Dr. Friederichs again evaluated Plaintiff on April 25, 2011, July 8, 2011, and November 7, 2011. Bright Decl. ¶ 29; Ganahl Decl. Ex. D, Dkt. 39-7, at 2-3, 6-7, 10-11. The November 7, 2011 Medical Progress Note states that Plaintiff was "managing fairly well" without a cane. Bright Decl. ¶ 29; Ganahl Decl. Ex. D, Dkt. 39-7, at 10-11. It also notes that Plaintiff had not yet been seen by an orthopedic specialist to replace his orthopedic shoes, but does not indicate that Plaintiff's orthopedic shoes, at that time, were unserviceable or did not provide sufficient accommodation to Plaintiff. Ganahl Decl. Ex. D, Dkt. 39-7, at 10-11. In a November 7, 2011 Physician Request for Services, Dr. Friederichs renewed the request that Plaintiff be scheduled for a routine orthotics consultation.
On December 9, 2011, Plaintiff signed a document stating he had been fitted for new orthopedic shoes and a lift by Sunrise's Orthotics/Prothetics. Ganahl Decl. Ex. D, Dkt. 39-7, at 14. Plaintiff's January 25, 2012 signature on that document verifies he received the orthopedic shoes and lift and was satisfied that the fit was correct.
In 2004, Plaintiff filed a lawsuit against the CDCR and California State Prison — Solano, where he was formerly housed, alleging that the defendants in that case were deliberately indifferent to his medical need for orthopedic boots.
Failure to state a claim is a ground for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dismissal for failure to state a claim is a ruling on a question of law.
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the statement need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."
Summary judgment is properly granted when no genuine disputes of material fact remain and when, viewing the evidence most favorably to the nonmoving party, the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 56(c);
The moving party bears the initial burden of identifying those portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine issue of material fact.
Material facts which would preclude entry of summary judgment are those which, under applicable substantive law, may affect the outcome of the case. The substantive law will identify which facts are material.
A district court may only consider admissible evidence in ruling on a motion for summary judgment.
Defendants Dr. Bright and Nurse Fox argue they are entitled to summary judgment on Plaintiff's Eighth Amendment claim for deliberate indifference to medical needs on the ground that there are no material facts in dispute. Defendants add that, assuming their actions are found to be unconstitutional, it would not have been clear to a reasonable official that such conduct was unlawful and that therefore they are entitled to qualified immunity.
Deliberate indifference to a serious medical need violates the Eighth Amendment's proscription against cruel and unusual punishment.
"A `serious' medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the `unnecessary and wanton infliction of pain.'"
A showing of nothing more than a difference of medical opinion as to the need to pursue one course of treatment over another is insufficient, as a matter of law, to establish deliberate indifference,
Regarding Plaintiff's Eighth Amendment claim premised on denial of orthopedic shoes, the Court finds the claim fails at the first step — the objective component — because Plaintiff has not alleged facts or provided evidence to show a "serious medical need."
Deliberate indifference may occur when prison officials intentionally deny or delay medical care.
The undisputed facts show that, although the orthopedic shoes that Plaintiff sought to replace in January 2011 were worn, Dr. Bright determined they were not so worn that Plaintiff could not utilize them or that they would prevent his access to programs and services. Bright Decl. ¶ 16. Dr. Bright also determined that using the shoes, or not having custom orthotics at all, would not cause any further harm to Plaintiff.
In his opposition, Plaintiff argues that, in prescribing the new orthopedic shoes, Dr. Bright impliedly admitted that Plaintiff had a "serious medical need" for new orthopedic shoes. Opp'n. at 15-17. Not so. While Defendants do not dispute that orthopedic shoes are helpful in accommodating Plaintiff's physical needs, the evidence shows that Dr. Bright prescribed new orthopedic shoes in 2011 as a courtesy to Plaintiff because they would be useful to him, but believed the shoes Plaintiff possessed at that time "were not so worn or small that Loutzenhiser could not utilize them, or that they would prevent his access to programs and services or cause him further harm." Bright Decl. ¶ 16. The act does not amount to an admission that, without the new shoes, Plaintiff would suffer "further significant injury or the `unnecessary and wanton infliction of pain.'"
Plaintiff also points to notes in his medical record indicating that he suffers from chronic knee and foot pain. Opp'n. at 21-23; Pl. Decl. Ex. A. None of these records state, however, that Plaintiff's previous orthopedic shoes exacerbated his pain. Thus, Plaintiff's evidence does not support a finding of any further injury or harm from the delay.
Plaintiff also cannot satisfy the subjective component of his claim because, even assuming Plaintiff had a serious medical need for new orthopedic shoes, Plaintiff has not come forward with any evidence to show Dr. Bright or Nurse Fox acted with deliberate indifference to that need. The record belies any argument that Defendants Bright and Fox purposefully ignored or failed to respond to an alleged need for new orthopedic shoes. Rather, Defendants sought to provide Plaintiff with new shoes.
Although Dr. Bright determined that the orthopedic shoes Plaintiff possessed on January 28, 2011 were serviceable and sufficient to meet his needs, out of courtesy to Plaintiff, Dr. Bright recommended new orthopedic shoes. Bright Decl. ¶ 16; Ganahl Decl. Ex. D, Dkt. 39-6, at 2-3. Dr. Bright completed the paperwork necessary to assist Plaintiff in obtaining those shoes. Bright Decl. ¶¶ 18, 23; Ganahl Decl. Ex. D, Dkt. 39-6, at 6, 10.
In doing so, Dr. Bright took all the steps he reasonably could have taken in assisting Plaintiff to obtain new orthopedic shoes. Dr. Bright did not have the final authority to actually provide new orthopedic shoes to Plaintiff. Rather, he could — and did — recommend that they be provided to Plaintiff, but the final decision to provide orthopedic shoes to an inmate-patient must be made by an orthopedic specialist. Bright Decl. ¶ 8 & Ex. A. Further, Dr. Bright was not aware of a delay in providing the orthotics consultation and orthopedic shoes to Plaintiff.
In his opposition, Plaintiff claims Dr. Bright must have known of the delay in providing him with orthopedic shoes because specialty clinic staff are required to notify either the Chief Medical Officer or the Chief Physician and Surgeon of routine consultation delays of more than ninety days. Opp'n. at 19-21. Plaintiff points to CDCR policy on outpatient services.
Accordingly, Defendants Dr. Bright and Nurse Fox are entitled to summary judgment on Plaintiff's Eighth Amendment claim premised on the delay in Plaintiff's receipt of new orthopedic shoes.
Similarly, Plaintiff's Eighth Amendment claim premised on the cancellation of his cane prescription fails at the first step — the objective component. The cane was not a "serious medical need," the deprivation of which could result in further significant injury or the "unnecessary and wanton infliction of pain."
The undisputed evidence shows that during the times relevant to this case, Plaintiff was mobile and well-functioning. For more than six months after Plaintiff's 2008 knee replacement surgery, Plaintiff engaged in a rigorous, directed physical therapy regimen. Fox Decl. ¶ 5. In addition, in 2010 Plaintiff requested second-tier housing, which would require traversing a flight of stairs to access services and activities, and his Primary Care Physician, Dr. Friederichs, approved that request.
Dr. Bright, in his January 28, 2011 evaluation of Plaintiff, determined that Plaintiff had a normal gait and sufficient mobility to walk significant distances that required traversing stairs, hills, and uneven terrain without difficulty, and to maintain unimpeded access to the programs, services, and activities for which he is eligible. Bright Decl. ¶ 19. Indeed, Plaintiff arrived to that evaluation at the ADA clinic without his cane, which required him to travel roughly 350 yards, including stairs.
Plaintiff's lack of need for a cane is affirmed by his subsequent medical records. Between January 2011 and October 2013, Plaintiff was seen by Dr. Friederichs roughly thirteen times. Bright Decl. ¶¶ 29, 33; Ganahl Decl. Ex. D, Dkt. 39-6 at 12-13 & Dkt. 39-7 at 2-3, 6-7, 10-11, 16-17, 19-20; Ganahl Decl. Ex. F, Dkt. 39-9 at 14-15, 19-20 & Dkt. 39-10 at 10-11, 19 & Dkt. 39-11 at 1, 11-12. Other than a brief mention of the cancellation of the cane in the notes of the first appointment following that cancellation, the only mention of Plaintiff's need for, or access to, a cane in Dr. Friederichs' notes of those appointments was a statement that Plaintiff was "managing fairly well" without the cane. Bright Decl. ¶¶ 29, 33; Ganahl Decl. Ex. D, Dkt. 39-6, at 12 & Dkt. 39-7 at 10. And none of the roughly five renewals of Plaintiff's Comprehensive Accommodation Chrono during that period granted Plaintiff permission to possess a cane. Ganahl Decl. Ex. D, Dkt. 39-6 at 15 & Dkt. 39-7 at 12; Ganahl Decl. Ex. F, Dkt. 39-9 at 8, 11 & Dkt. 39-11 at 4.
Plaintiff argues he did have a "serious medical need" for a cane based on an August 9, 2010 comprehensive accommodation chrono completed by Dr. Friederichs, which noted Plaintiff's entitlement to a cane at that time. Opp'n. at 30-31. But Dr. Friederichs' determination that a cane was warranted in August 2010 does not render incorrect Dr. Bright's determination, nearly six months later, to the contrary. All medical professionals reviewing Plaintiff's disability status and accommodations through October 2013 also determined Plaintiff did not need a cane. Dkt. 22 Ex. B, at 16-18; Bright Decl. ¶ 26; Ganahl Decl. Ex. D, Dkt. 39-6, at 12-13; Bright Decl. ¶ 27; Ganahl Decl. Ex. D, Dkt. 39-6, at 15.
Defendants have submitted a declaration from Dr. Bright setting forth that, under CDCR guidelines, a cane should be provided to an inmate-patient where the inmate-patient has a disability that significantly restricts ambulating or causes severe chronic pain, severe lower extremity edema (swelling), or acute injury. Bright Decl. ¶¶ 3, 7 & Ex. A. Dr. Bright determined that Plaintiff did not suffer from any of these conditions, and thus did not qualify for use of a cane under CDCR guidelines.
Finally, even assuming a serious medical need for a cane, Plaintiff has not come forward with any evidence to show Dr. Bright or Nurse Fox acted with deliberate indifference to that need — the subjective component. Here, neither Dr. Bright or Nurse Fox "knew of" Plaintiff's need for a cane because, in their professional judgments, that "need" did not exist. Bright Decl. ¶ 20; Fox Decl. ¶ 18.
Plaintiff argues that Dr. Bright had no authority to issue or remove his cane because Dr. Friederichs, and not Dr. Bright, was the physician who had originally prescribed the cane for Plaintiff. Opp'n. at 32-33. Plaintiff's support for this position is Dr. Bright's interrogatory response stating that a "prescribing physician" determines whether an assistive device is medically necessary for the inmate-patient. Opp'n. at 32; Pl. Decl. at A-21. Plaintiff's argument assumes that "prescribing physician" refers only to a physician who first prescribed an assistive device to an inmate-patient. But Plaintiff provides no support for this interpretation. For an inmate to possess a health care appliance the inmate must indeed possess a clinical prescription for the appliance. Fox Decl. ¶ 12 & Ex. A. Only CDCR facility-employed health care staff and contractors may issue diagnoses or prescriptions for inmates, and they may only do so "within the scope of their licensure[.]" Cal. Code Regs., tit. 15, § 3354. Consequently, under department regulations, a "prescribing physician" is not necessarily the first person who wrote a prescription, but rather any CDCR physician who, within the authority of his or her licensure, may prescribe use of medications or assistive devices. As Chief Physician and Surgeon and a primary care physician, and as head of the ADA clinic at CTF and Salinas Valley, Dr. Bright has the authority to prescribe ADA accommodations, such as a cane, and is thus a "prescribing physician."
Further, even if Nurse Fox believed that Plaintiff had a serious medical need for a cane, she did not have the authority to provide one to him. Nurse Fox's role in this case was limited to carrying out physicians' orders. Fox Decl. ¶ 11. Section 54030.11 of the CDCR Operations Manual requires that, for an inmate to possess a health care appliance, such as a cane, the inmate must have a clinical prescription for the appliance. Fox Decl. ¶ 12 & Ex. A. But Nurse Fox does not have prescribing privileges. Fox Decl. ¶ 13. Plaintiff argues that, because Nurse Fox was likely aware that Dr. Bright was not the "prescribing physician" who originally prescribed the cane to him, she should have also known that Dr. Bright had no right to cancel that prescription, and thus she was under no duty to assist him in carrying out the cancellation of that prescription. Opp'n. at 37-40. As explained above, however, Dr. Bright had the authority to cancel the prescription.
At most, Plaintiff's disagreement with the determination that he did not need a cane amounts to a difference of medical opinion. Plaintiff's mere disagreement with Defendants' decisions, however, does not establish deliberate indifference.
Accordingly, Defendants Dr. Bright and Nurse Fox are entitled to summary judgment on Plaintiff's Eighth Amendment claim premised on the cancellation of his cane prescription.
Defendants CDCR and CTF-Medical argue they are entitled to summary judgment on Plaintiff's ADA claim on the ground that there are no material facts in dispute.
Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132 (1990). To succeed on his ADA claim, Plaintiff must demonstrate that: (1) he is an individual with a disability; (2) he is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities; (3) he was either excluded from participation in or denied the benefits of the public entity's services, programs or activities, or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by reason of his disability.
Plaintiff argues that he has a qualifying disability insofar as his leg discrepancy makes it painful for him to walk and bend. Opp'n. at 44-46. Plaintiff further argues that because it is painful for him to walk to the CTF recreational yard and the CTF chapel, he has been denied "meaningful access" to these services.
Defendants, in their summary judgment motion, offer no argument or evidence addressing the four elements of an ADA claim or showing that the elements are not satisfied in this case. Rather, Defendants focus entirely on Plaintiff's claim for money damages and argue that he is not entitled to money damages here because he cannot show intentional discrimination as required by
Consequently, the Court finds Defendants have not met their burden on summary judgment as to the ADA claim. Specifically, Defendants fail to demonstrate the absence of a genuine issue of material fact as to whether Plaintiff has a qualifying disability and was excluded from participation in or denied the benefits of qualifying services, programs, or activities by reason of that disability. Accordingly, Defendants CDCR and CTF-Medical are not entitled to summary judgment on Plaintiff's ADA claim.
Defendants argue that Plaintiff's state-law breach of contract claim should be dismissed as to Defendant CDCR because the CDCR has Eleventh Amendment immunity. The Court agrees. The Eleventh Amendment bars from the federal courts suits against a state by its own citizens, citizens of another state, or citizens or subjects of any foreign state.
This Eleventh Amendment immunity also extends to suits against a state agency,
Defendants argue that Plaintiff's state-law breach of contract claim should also be dismissed as to individual Defendants Dr. Bright and Nurse Fox because Dr. Bright and Nurse Fox were not parties to the settlement agreement in
Accordingly, Defendants' motion to dismiss Plaintiff's breach of contract claim will be GRANTED.
For the foregoing reasons, the Court orders as follows:
1. Defendants' motion to dismiss is hereby GRANTED IN PART and DENIED IN PART as follows:
a. Defendant's motion to dismiss Plaintiff's state-law breach of contract claim is GRANTED as to all Defendants.
b. Defendants' motion to dismiss Plaintiff's claim for punitive damages is DENIED as moot because Plaintiff only seeks injunctive relief on his remaining ADA claim.
2. Defendants' motion for summary judgment is hereby GRANTED IN PART and DENIED IN PART as follows:
a. Summary judgment is GRANTED in favor of Defendants Dr. Bright and Nurse Fox on Plaintiff's Eighth Amendment claim.
b. Summary judgment is DENIED with respect to Plaintiff's ADA claim against CDCR and CTF-Medical.
c. Summary judgment is DENIED as to Plaintiff's claim for injunctive relief because the ADA provides for injunctive relief.
3. The case is hereby REFERRED to Magistrate Judge Nandor Vadas for settlement proceedings on Plaintiff's ADA claim seeking injunctive relief against CDCR and CTF-Medical. Such proceedings shall take place within 120 days of the date this order is filed, or as soon thereafter as Magistrate Judge Vadas' calendar will permit. Magistrate Judge Vadas shall coordinate a place, time, and date for one or more settlement conferences with all interested parties and/or their representatives and, within fifteen days of the conclusion of all settlement proceedings, shall file with the Court a report thereon. The Clerk is directed to serve Magistrate Judge Vadas with a copy of this Order.
4. The Clerk is further directed to terminate Dr. Bright and Nurse Fox as defendants on the court docket.
5. In view of the referral, further proceedings in this case are hereby STAYED. If the case is not settled, the Court will enter a new scheduling order for further proceedings.
6. The Clerk is further directed to ADMINISTRATIVELY CLOSE the case pending the stay. This has no legal effect; it is purely a statistical procedure.
This Order terminates docket nos. 39 and 45.
IT IS SO ORDERED.
