MICHAEL J. SENG, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff's first amended complaint against Defendants Drs. Harishkumar Patel and Richard Le for medical indifference in violation of the Eighth Amendment of the United States Constitution. (ECF No. 9.)
Before the Court is Defendants' November 7, 2016 motion for summary judgment. (ECF No. 36.) On March 17, 2017, Plaintiff filed an opposition. (ECF No. 44.) On March 24, 2017, Defendants filed a reply. (ECF No. 46.) The matter is submitted. Local Rule 230(l).
Also on March 17, 2017, Plaintiff filed, under separate cover, his Statement of Disputed Facts (ECF No. 43) and a collection of exhibits in support of his opposition (ECF No. 45.) On March 24, 2017, Defendants filed, along with their reply, objections to portions of Plaintiff's exhibits. (ECF No. 46-1.) Plaintiff did not file a response to these objections or seek leave to.
Defendants object to the admission of four paragraphs in Plaintiff Delton Taylor's Declaration (ECF No. 45 at 113). They also object to the admission of Plaintiff's Exhibit N (ECF No. 45 at 110-12).
The Court addresses each objection in turn.
knowledge as required by Fed. R. Evid. 602, is overruled. Although Plaintiff attributes the declaration to "information and belief", there is competent evidence before the Court, including Dr. Patel's own examination notes (Patel Decl. Ex. 2), that support this claim and it does not appear to be disputed.
Defendants' objection that this statement also lacks personal knowledge is overruled as to Plaintiff's own recollection of his interaction with Dr. Le and the latter's comments, if any, but sustained as to Plaintiff's attempt to testify as to Dr. Le's subjective state of mind.
Defendants object to Paragraph 49 as hearsay. Fed. R. Evid. 801, 802. It appears this statement merely reflects what Plaintiff was thinking or believed at the time he filed his 602 and thus the motivation for the 602. As such, it is not hearsay. However, the Court is unaware of any basis upon which Plaintiff's motivation for filing the grievance might be relevant to the issues now before the Court, and so finds the statement to be irrelevant.
Defendants object that this statement misstates the evidence and constitutes hearsay. The first sentence in the statement appears to be a matter of record not in dispute (
objection is sustained. (However, that X-rays and MRIs function in different ways and produce different results is a fact not reasonably in dispute and one which the Court will judicially notice.)
Any party may move for summary judgment, and "[t]he [C]ourt 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). 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 absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).
The party seeking summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact."
In ruling on a motion for summary judgment, a court does not make credibility determinations or weigh evidence.
Local Rule 260(b) requires that "any party opposing a motion for summary judgment . . . reproduce the itemized facts in the Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied on in support of that denial." Here, Plaintiff presents his own "Statement of Disputed Facts" (ECF No. 43) to identify facts he disputes, but he does not say why he disputes them or cite to portions of the record that support a different interpretation of the facts. Plaintiff did file a sworn declaration setting forth his own version of the facts, but he does not therein cite to portions of the record he believes supports those facts. (Decl. of D. Taylor in Supp. of Opp'n (ECF No. 45 at 113-22).)
However, the body of Plaintiff's opposition brief refers to portions of the record, such as his own deposition testimony, his declaration, and the complaint, which he believes support his interpretation of the facts. Thus, wherever a fact is brought into dispute by facts presented in Plaintiff's verified complaint and sworn opposition, declaration, and deposition testimony, the latter facts will be considered here insofar as they otherwise are competent and material.
Unless otherwise stated, all facts reflected below are found to be undisputed.
In 2010, at Kern Medical Center, Plaintiff had surgery on his lower back to treat an infection in his spine. (Taylor Dep. (ECF No. 45 Ex. A) 10:21-11:17 & 12:2-5.) He thereafter underwent post-surgery check-ups and occupational physical therapy. (
In 2013, Plaintiff, detained at the Kern County Jail Lerdo Facility, began to experience stabbing lower back pain and numbness radiating down into his thighs. (
Plaintiff arrived at Wasco State Prison ("WSP") on or about October 13 or 18, 2013. (Taylor Dep. 8:17-23; Decl. of Dr. B. Barnett (ECF No. 36-2 Ex. C) ¶ 8.) On or about October 30, 2013, he was seen by Dr. Soleimani for low back pain as severe as it had been when Plaintiff was in the Kern County Jail. (Taylor Dep. 9:16-10:11, 27:12-15; Decl. of Dr. H. Patel (ECF No. 36-2 Ex. A) ¶ 2; Barnett Decl. ¶ 8.) Dr. Soleimani referred Plaintiff for a lower spine X-ray, prescribed Tylenol 3, Naproxen, and Robaxin, and ordered a back brace. (Taylor Dep. 10:12-19; Patel Decl. ¶ 2; Barnett Decl. ¶ 10.) X-rays on November 4, 2013 showed severe degenerative changes at L4-5 and L5-S1. (Compl. (ECF No. 9) Ex. 1-A; Patel Decl. ¶ 2; Barnett Decl. ¶ 10.) The medications did little to alleviate Plaintiff's back pain. (Decl. of D. Taylor (ECF No. 45 at. 113-22) ¶ 3.)
Plaintiff first saw Defendant Dr. Patel on November 25, 2013. (Taylor Dep. 18:11-20:16, 21:1-4; Taylor Decl. ¶ 13; Patel Decl. ¶ 2.) Plaintiff explained to Dr. Patel that "each day it was getting harder . . . to get around." (Taylor Dep. 20:3-6.) Plaintiff says he tried to show Dr. Patel his Kern Medical Center records, but Dr. Patel refused to look at them, stating there was "nothing wrong" with Plaintiff. (
Dr. Patel continued Plaintiff's prescriptions for Tylenol 3 and Naproxen (Taylor Dep. 20:7-10, 21:23-25; Patel Decl. ¶ 2) and referred Plaintiff for physical therapy; Plaintiff attended eight sessions between January 23, 2014 and February 20, 2014. (Patel Decl. ¶¶ 2-3.)
Plaintiff benefitted from the physical therapy. (Taylor Dep. 25:2-10.) However, he asked for additional therapy, and the physical therapist reportedly asked Dr. Patel for another referral, but Dr. Patel refused. (
On November 25, 2013, Plaintiff requested referral to a spine specialist, and Dr. Patel refused. (Taylor Dep. 20:23-21:4, 22:21-23:2.)
On January 3, 2014, Plaintiff saw Dr. Patel again and requested stronger pain medication. (Taylor Dep. 22:1-4; Patel Decl. ¶ 3.) Dr. Patel claims he told Plaintiff he had to first conduct a physical examination; however, Plaintiff refused to submit to the exam and left the room. (Patel Decl. ¶ 3.) Plaintiff's recollection differs. Plaintiff states that when he entered Dr. Patel's office, Dr. Patel repeated that there was "nothing wrong" with Plaintiff. (Taylor Dep. 23:15-18.) When Plaintiff again attempted to show Dr. Patel his medical records, Dr. Patel refused to look at them, stating "Well, if you have another operation, there's—basically you won't get better." (
On March 10, 2014, Plaintiff saw Dr. Patel in response to his inmate health care appeal ("602"). (Taylor Dep. 24:8-16; Patel Decl. ¶ 4.) According to Dr. Patel, Plaintiff wanted a referral to a spine specialist and a prescription for a stronger pain medication. (Patel Decl. ¶ 4.) Dr. Patel states he reviewed medical records from Plaintiff's 2010 surgery. (
According to Plaintiff, Dr. Patel noted that Plaintiff was walking slowly. Dr. Patel viewed Plaintiff's lower spine; Plaintiff interprets this to mean that Dr. Patel looked at previously taken X-rays. (Taylor Dep. 24:17-25:1.) Plaintiff states Dr. Patel "never" conducted a physical examination of Plaintiff. (Taylor Dep. 33:24-34:3.)
On February 7, 2014, Plaintiff saw Dr. Le in response to Plaintiff's request for a stronger pain medication. (Taylor Dep. 31:7-16; Decl. of Dr. Le (ECF No.36-2, Ex. B) ¶ 2.) Nursing staff asked Dr. Le if Plaintiff could have Tylenol 3. (Le Decl. ¶ 2.) Plaintiff only saw Dr. Le once. (Taylor Dep. 32:6-11; Le Decl. ¶ 2.) Dr. Le reports that Plaintiff had no difficulty walking and no functional limitations on examination. (Le Decl. ¶ 3.) Dr. Le reviewed Plaintiff's "medical file" and the November 2013 spine X-ray. (
Plaintiff disputes Dr. Le's assessment of his physical mobility. According to Plaintiff, Dr. Le instructed Plaintiff to lay on the examination table on his back with his legs hanging off the table and then raise his legs; when Plaintiff was unable to fully raise his legs because of pain, Dr. Le said, "Well, there's no reason for you not to be able to raise your legs this high." (Taylor Dep. 32:25-33:12.) Plaintiff states Dr. Le refused to refer him to a specialist and refused to look at Plaintiff's medical records or his X-ray. (
On March 28, 2014, Plaintiff was transferred to Centinela State Prison, where he saw a Dr. Ortega. (Taylor Dep. 34:4-9; Barnett Decl. ¶ 17.) Dr. Ortega tapered Plaintiff down to a lower dose of Tylenol 3 and ordered non-narcotic medications and physical therapy. (Taylor Dep. 34:18-22; Barnett Decl. ¶ 17.) On April 11, 2014, Dr. Ortega ordered another X-ray; it showed no change from the films taken November 4, 2013. (Taylor Dep. 34:13-14; Barnett Decl. ¶ 18.) On May 6, 2014, Plaintiff complained that his low back pain was worsening and that he was not tolerating the non-narcotic pain medications. (Barnett Decl. ¶ 19.) Dr. Ortega ordered an MRI of Plaintiff's spine. (Taylor Dep. 34:13-14; Barnett Decl. ¶ 18.) The MRI showed degeneration at L3/4, L4/5, and L5/S1 with disc bulges at L2/3, L/3/4, L/4/5, and L5/S1. (Taylor Dep. 35:15-16; Barnett Decl. ¶ 20.) A second MRI, performed in August 2014 at the request of consulting neurosurgeon Dr. Yoo, suggested the possibility of an infection in Plaintiff's spine. (Taylor Dep. 36:2-3; Barnett Decl. ¶ 21.) Dr. Yoo believed it unlikely Plaintiff had an infection, but in an abundance of caution performed surgery and fused lumbar levels L4-L5 in August 2014. (Taylor Dep. 36:9-11; Barnett Decl. ¶ 22.) Dr. Yoo found no sign of infection. (Barnett Decl. ¶ 22.) Plaintiff reports that he "feel[s] a lot better" and is in "a lot less pain" following surgery. (Taylor Dep. 37:5-8.) Plaintiff still uses a cane post-surgery, but was told his mobility would improve over time. (
The Eighth Amendment entitles prisoners to medical care, and a prison official violates the Eighth Amendment when he acts with deliberate indifference to an inmate's serious medical needs.
A prison official shows deliberate indifference to such a need if he "knows of and disregards an excessive risk to inmate health."
A prison doctor's provision of care constitutes medical indifference where the doctor ignores a previous treating physician's instructions, knows that a course of treatment was ineffective but continued it anyway, or delays necessary treatment without justification.
Negligence, inadvertence, or differences of medical opinion between the prisoner and health care providers, however, do not amount to a constitutional violation.
For the reasons set forth below, the Court recommends denying Defendants' motion.
Mere negligence, medical malpractice, or difference in medical opinion are insufficient to establish deliberate indifference. While the findings and treatment plans of the staff at Centinela are compelling, the Court must consider what information was known and available to Defendants at the time they treated Plaintiff. Nor can the Court truly credit Plaintiff's lay assertion that a thorough examination of Plaintiff's medical record would have resulted in a different treatment plan.
However, there is a dispute as to whether Dr. Patel, on two separate occasions, demonstrated callous disregard for Plaintiff's complaints of severe back pain by refusing to review his medical records, refusing to prescribe a more powerful pain medication, refusing to continue beneficial physical therapy, and in effect jumping to the conclusion that there was "nothing wrong" with Plaintiff. The same is true as to Dr. Le's arguably cavalier response to Plaintiff's complaint that he did not have full range of motion of his legs and experienced no relief from the prescribed pain medication. The cause of Plaintiff's pain and the fact that he ultimately was found not to have an infection is of no consequence. The issue is whether Defendants were deliberately indifferent to Plaintiff's pain while he was housed at WSP. It is up to a jury to decide which version of the facts to credit and whether Defendants' actions amounted to deliberate indifference.
Dr. Barnett's declaration does not support a contrary finding.
Ultimately, a reasonable jury could find that Defendants acted with deliberate indifference by not more thoroughly responding to and exploring the cause of Plaintiff's complaints of continuing limited mobility and severe pain. Defendants are thus not entitled to judgment in their favor.
Based on the foregoing, IT IS HEREBY RECOMMENDED that:
1. Defendants' motion for summary judgment (ECF No. 36) be DENIED.
These Findings and Recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within
IT IS SO ORDERED.