CAROLYN K. DELANEY, Magistrate Judge.
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. This action proceeds on the First Amended Complaint filed November 9, 2012, in which plaintiff alleges that four defendants at Mule Creek State Prison were deliberately indifferent to his serious medical needs when he experienced post-surgical complications in his right hand. (ECF No. 13 ("FAC").) Pending before the court is defendants' December 20, 2013 motion for summary judgment (ECF No. 43), which has been briefed by the parties (ECF Nos. 47, 51). For the reasons discussed below, the undersigned will recommend that defendants' motion be granted.
Summary judgment is appropriate when it is demonstrated 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). A party asserting that a fact cannot be disputed must support the assertion by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials. . ." Fed. R. Civ. P. 56(c)(1)(A).
Summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.
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.
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 resolving the summary judgment motion, the evidence of the opposing party is to be believed.
In determining whether summary judgment is appropriate, the court considers the following record facts
At all relevant times, plaintiff was a state prisoner housed at Mule Creek State Prison. (DUF 1.) In late December 2009, plaintiff broke his right hand by punching a metal door.
On January 16, 2010, plaintiff submitted a health care services request form stating:
(FAC at 21.) Plaintiff had pulled back the dressing of the wound. He saw that the wound was open and had lots of yellowish pus coming out of it that smelled bad. (ECF No. 47 at 70-71.)
Abraham Niazi is a Registered Nurse who worked in the Triage and Treatment Area ("TTA") at Mule Creek State Prison. (DUF 2.) On January 17, 2010, Niazi asked that plaintiff be brought to the TTA as soon as possible for a medical assessment concerning his complaints of a right hand wound. (ECF No. 43-6 at 5.)
Plaintiff told Niazi that he needed to see the doctor. Plaintiff told Niazi that he was "told by surgeon Craig Lovett and other medical staff to notify the physician if I saw signs of infection and that I needed him to call the doctor to treat my [right] hand and change my dressing that was contaminated with foul smelling pus[]." (ECF No. 47 at 71.)
Niazi did not notice any odor emitting from the open wound. (Niazi Dec., ¶ 5; ECF No. 43-6 at 5.) He does not personally recall if he performed any treatment to the area; however, the medical form indicates that treatment was done. Niazi advised plaintiff to keep the affected area dry and clean. Niazi further advised plaintiff that if his right hand developed swelling, redness, pus with an odor, unrelieved pain, numbness, or he noticed tingling in his fingers, to come back to the TTA for treatment and further evaluation. Niazi concluded that contacting the on-call medical doctor was not warranted.
According to plaintiff, Niazi stated: "It's Sunday and I'm the only one here, and you'll be alright." (ECF No. 47 at 71.) Plaintiff became upset and "reiterated what I was told about notifying the physician and I expressed my fears that my [right] hand was infected." (ECF No. 47 at 72.) Niazi sent plaintiff back to his cell without scheduling a follow-up appointment with a doctor. (ECF No. 47 at 72;
Plaintiff asserts that two-and-half months later when his cast came off, "the wound was closed" but his right hand was swollen. "As time went by it began to swell, became real painful and my 4th and 5th digits would become stiff, locking up frequently for days at a time." Plaintiff's fingers continued to swell and lock up intermittently. (ECF No. 47 at 72.)
Dr. Richard Galloway is a medical doctor who, at all relevant times, was employed at Mule Creek State Prison as a Physician and Surgeon. (DUF 15-16.) Plaintiff's allegations concern Dr. Galloway's medical treatment of plaintiff in 2010 and his response to plaintiff's administrative appeal in 2011.
On November 7, 2010, ten months after his examination by Niazi, plaintiff submitted a health care services request form stating:
(ECF No. 43-2 at 5.)
Dr. Galloway examined plaintiff on November 9, 2010. (ECF No. 43-2 at 7.) Plaintiff and Dr. Galloway give differing accounts of what happened at that appointment:
Plaintiff declares that he explained to Dr. Galloway that the condition of his hand was "ongoing," with it
(ECF No. 47 at 81.) Plaintiff declares that Dr. Galloway responded "that the prison would be too reluctant to provide surgery due to cost and plaintiff's prison term" and declined to send him to an outside specialist.(
Dr. Galloway declares that plaintiff reported "that three days prior his right hand had been injured during an aggressive exercise regimen, but that the pain was improving." (Galloway Dec., ¶ 6.)
Dr. Galloway further declares that, on examination of plaintiff's right hand, there was a scar and some deformity consistent with plaintiff's report of old repair, but nothing indicating a re-fracture, infection, or other issue of immediate concern. (Galloway Dec., ¶ 6.) Dr. Galloway ordered an X-ray of plaintiff's hand and a follow-up visit in one week. (ECF No. 43-2 at 7.)
On November 23, 2010, Dr. Galloway saw plaintiff in a follow-up visit. (DUF 21.) Plaintiff declares that his hand was still painful and swollen but had better mobility. He asserts that he asked again to be sent to Dr. Lovett to have the hardware in his hand removed, but Dr. Galloway again declined to refer him to Dr. Lovett. (ECF No. 47 at 82-83.)
Dr. Galloway's medical notes for that appointment indicate that plaintiff's pain had diminished over the week and his hand had "significantly improved." Dr. Galloway's exam indicated a nearly normal range of motion in plaintiff's right hand. A wet reading was obtained of the film indicating no fracture. In view of these developments, plaintiff was directed to return to the clinic on an as-needed basis. (Galloway Dec., ¶ 7; ECF No. 43-2 at 9.) Moreover, plaintiff's final radiology report, dated November 17, 2010, failed to indicate any changes since his prior X-ray in February 2010. (Galloway Dec. ¶ 7; ECF No. 43-2 at 11, 13.) In light of these facts, Dr. Galloway concluded that plaintiff's condition did not warrant an orthopedic consult. (Galloway Dec., ¶ 7.)
On January 6, 2011, Dr. Galloway prepared a first-level response to medical appeal No. MCSP 16-10-13110, in which plaintiff complained of swelling and limited motion in his right hand and requested that the hardware be removed. (FAC at 35-36.) A request for an orthopedic evaluation of plaintiff's hand had already been submitted by Physician Assistant Karen Todd on December 8, 2010
At all relevant times, Karen Todd was employed as a Physician's Assistant at Mule Creek State Prison. (DUF 30.)
On December 6, 2010, plaintiff submitted a health services request form asking for treatment of his right hand after injuring it in "Ad Seg" (Administrative Segregation). (ECF No. 47 at 86.) Two days later, plaintiff came to the clinic complaining of trouble with flexion of the No. 4 digit of his right hand and pain to the area. Plaintiff stated that his hand had been surgically repaired, that he had exacerbated the injury in Ad-Seg, and that an X-ray had been taken. (Todd Dec., ¶ 4; ECF No. 43-4 at 5.)
Plaintiff was examined by non-defendant Nurse Wnuk. Wnuk's report noted that plaintiff had a surgical scar and that his right hand was "well healed" with some edema. It noted that plaintiff denied any recent injury and said the swelling had always been there. It further noted that plaintiff had decreased strength-to-hand grip in the range of 4 to 5. (Todd Decl., ¶ 5, Exh. A.) Plaintiff again requested to see Dr. Lovett and have the hardware in his hand removed. (ECF No. 47 at 91.)
Nurse Wnuk consulted with P.A. Todd concerning plaintiff's request to have his hardware removed. After reviewing plaintiff's November 17, 2010 X-ray report, Todd concluded that an urgent orthopedic consult was not warranted. On December 8, 2010, Todd requested a routine referral to an orthopedic specialist, which was approved the next day. (Todd Dec., ¶ 8, Exh. A.)
Plaintiff declares that Todd declined to personally examine him, and that her routine referral to an outside specialist, which could take three months to process, constituted inadequate treatment in light of his pain and suffering. (ECF No. 47 at 91-92.)
Plaintiff filed a 602 administrative appeal seeking to have the hardware in his hand removed. As set forth above, Dr. Galloway denied this appeal at the first level of review, noting plaintiff's pending routine referral to a specialist.
From June 2010 to April 2011, Leonard Heffner was employed as Chief Executive Officer of Health Services at Mule Creek State Prison. (DUF 44.)
On February 7, 2011, Heffner prepared a second-level response to plaintiff's medical appeal No. MCSP-16-10-13110, in which plaintiff requested that the plate and screws in his hand be removed. (Heffner Dec., ¶ 4; FAC at 41-42.) Heffner reviewed the records of plaintiff's medical treatment and administrative appeals, described above. His response noted that plaintiff's December 2010 referral to an orthopedist was pending. Heffner concluded that plaintiff had received medically appropriate treatment for his hand. (Heffner Dec., ¶¶ 5-8; FAC at 41-42.)
In March 2011, petitioner continued to seek medical treatment for his swollen right hand. (ECF No. 47 at 99, 103.) He was examined by non-defendant MCSP medical staff who noted plaintiff's complaints of swelling and lack of mobility in his hand. (Id. at 101, 105.)
On April 1, 2011, pursuant to P.A. Todd's referral, plaintiff was examined by his former surgeon, Dr. Lovett. Dr. Lovett noted:
(ECF No. 43-3 at 10.) Dr. Lovett concluded that plaintiff would be "best served with hardware removal[.]"
On May 12, 2011, Dr. Lovett surgically removed the hardware from plaintiff's right hand. Dr. Lovett noted "[l]oose hardware right 4th metacarpal" and "[p]ossible infection right 4th metacarpal." (ECF No. 43-3 at 12.) Describing the surgical procedure, Dr. Lovett noted "extremely dense and thickened granulation tissue consistent with a chronic infection of an indolent type. . . . Each 1 of the screws was loose except for the most proximal screw. Unfortunately there was brown tinged almost chronic purulent opening tissue that was cultured. . . but the fracture did appear to be, for the most part, healed." (
One month after surgery, Dr. Lovett conducted a follow-up examination of plaintiff. He noted that plaintiff was "seen for a postoperative visit after removal of hardware, which was loose, as well with subsequent cultures showing a positive staph infection which had been ongoing for unfortunately probably over a year since the time of surgery." (FAC at 55.) Dr. Lovett noted that plaintiff's swelling was significantly down, his pain had markedly improved, and that he still had a "fair amount of scarring, which is expected[.]" Dr. Lovett recommended physical therapy to improve the range of motion in plaintiff's right hand. (
Denial or delay of medical care for a prisoner's serious medical needs may constitute a violation of the prisoner's Eighth and Fourteenth Amendment rights.
In the Ninth Circuit, the test for deliberate indifference consists of two parts.
Second, the plaintiff must show the defendant's response to the need was deliberately indifferent.
A showing of merely negligent medical care is not enough to establish a constitutional violation.
Defendants assert that plaintiff has failed to establish a genuine dispute of material fact as to whether they were deliberately indifferent to plaintiff's serious medical needs in 2010 and 2011 concerning the treatment of his right hand. Making all reasonable inferences in plaintiff's favor, the court summarizes the record facts in light of the applicable legal standard:
As to Nurse Niazi, plaintiff submitted a health care services request form concerning his right hand a few days after having his stitches removed following surgery. The stitches had burst open at plaintiff's knuckle and pus was leaking out; plaintiff's hand was swollen. Niazi reviewed the request and asked that plaintiff be sent to the Treatment and Triage Area "ASAP" as plaintiff was at risk of infection of an open wound. Plaintiff told Niazi that Dr. Lovett told him to "notify the physician" if there were signs of infection, and asked to see a doctor. After examining plaintiff, Niazi detected no odor from the pus and noted that there appeared to be no infection. Niazi concluded that contacting a doctor was not warranted.
Deliberate indifference may be shown when prison officials ignore express orders from a prisoner's treating physician.
While Dr. Lovett noted in June 2011 that a culture from the surgical site evidenced a "positive staph infection which had been ongoing for unfortunately probably over a year," this cannot serve to impute a "deliberately indifferent" state of mind to Nurse Niazi in January 2010. (In fact, when Dr. Lovett visually examined plaintiff's hand in April 2011, he noted "no signs of infection.") Because neither a difference of opinion between a prisoner and medical staff, nor medical negligence, amount to deliberate indifference, plaintiff has not created a genuine dispute of material fact as to Nurse Niazi.
Dr. Galloway examined plaintiff's hand in November 2010 and found no indications of infection. He ordered an X-ray of plaintiff's hand and conducted a follow-up examination one week later, during which he noted that plaintiff's pain had diminished and his hand had "significantly improved." Based on these examinations and the X-ray result, which indicated no fracture or changes since February 2010, Dr. Galloway determined that plaintiff did not need to be seen by his surgeon, despite plaintiff's request to have the hardware in his hand removed. As the evidence shows a mere difference in opinion between plaintiff and a prison doctor as to the appropriate course of treatment, plaintiff has not raised a genuine dispute of material fact on this basis.
In responding to plaintiff's administrative appeal in January 2011, Dr. Galloway noted that plaintiff's routine referral to Dr. Lovett was pending. In light of this upcoming appointment and plaintiff's recent evaluations by prison medical staff, plaintiff's belief that his condition required an urgent referral to Dr. Lovett was a difference of opinion as to the proper course of treatment. Thus plaintiff has not shown a genuine dispute of material fact as to Dr. Galloway.
In December 2010, P.A. Todd consulted with the examining nurse about plaintiff's condition and reviewed plaintiff's recent X-rays. Based on this information, she put in a routine referral for plaintiff to be examined by his surgeon, as requested. The fact that plaintiff believed his condition required an urgent — not routine — referral is a difference of opinion not actionable under the Eighth Amendment. Plaintiff thus fails to show a genuine dispute of material fact as to P.A. Todd.
Like Dr. Galloway, Heffner reviewed plaintiff's administrative appeal and noted that he recently had been referred to Dr. Lovett. In light of this upcoming appointment and plaintiff's recent evaluations by prison medical staff, Heffner concluded that an urgent referral to Dr. Lovett was not warranted. Plaintiff has not raised a genuine dispute of material fact as to whether Heffner's response, under these circumstances, constituted deliberate indifference to a serious medical need. Thus the undersigned concludes that all four defendants are entitled to summary judgment.
Accordingly, IT IS HEREBY ORDERED that the May 21, 2014 findings and recommendations are VACATED.
IT IS HEREBY RECOMMENDED that defendants' motion for summary judgment (ECF No. 43) be granted.
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)(l). Within fourteen 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." The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.
