ERICA P. GROSJEAN, Magistrate Judge.
Mario Gonzalez ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action is now proceeding on Plaintiff's Second Amended Complaint (ECF No. 25), on Plaintiff's Eighth Amendment claims against defendants R.N. Soto and Dr. Scharffenberg for deliberate indifference to serious medical needs. (ECF No. 94, p. 2).
On June 25, 2018, Defendants filed a motion for summary judgment. (ECF No. 123).
Defendants' motion for summary judgment is now before the Court. For the reasons that follow, the Court will recommend that Defendants' motions for summary judgment be granted.
Plaintiff alleges that on December 9, 2013, at or around 2:30 p.m., Plaintiff was discharged from Mercy Hospital in Bakersfield. Later in the evening, at around 7:30 p.m., Plaintiff was sent to the institution's C.T.C./T.T.A as he "complained of excruciating pain in relations [sic] to [his] catheter." He informed Defendant R.N. Soto that he wanted his catheter removed as he was in great pain and discomfort. Defendant Soto advised him that Defendant Soto could not do so without a doctor's order. Plaintiff believes that at that point a doctor's order should have been obtained to remove the catheter. It is his belief that the failure to obtain a doctor's order resulted in permanent injury.
On December 10, 2013, at or around 10:00 a.m., Defendant Dr. Scharffenberg advised Plaintiff that his catheter was to remain in place for one week. Plaintiff complained of excruciating pain and requested that the catheter be removed.
At or around 10:45 a.m. that same day, Defendant R.N. Padilla was ordered by Defendant Scharffenberg to provide a catheter deflation kit. However, when Defendant Padilla returned she informed Defendant Scharffenberg that they did not have the right size deflation syringe kit. Defendant R.N. Padilla then asked Defendant Dr. Scharffenberg, "Would you like me to remove the catheter?"
Defendant Dr. Scharffenberg stated that he himself could do it with the wrong size deflation kit. As Plaintiff complained of excruciating pain, Defendant Scharffenberg repeatedly badgered Plaintiff with statements such as "cut the show," "what's with the show," and "you need to be more mature, it's just a catheter."
Defendant Scharffenberg removed the catheter "knowingly and willingly using the wrong kit." Defendant Scharffenberg "failed to deflate the balloon valve properly yet he continued. [He] yanked on the catheter when he noticed resistance [he] pushed the catheter further back into [Plaintiff's] penile hole," causing Plaintiff further pain. Plaintiff claims that as a result he sustained permanent injury.
Plaintiff further alleges that at or around 11:00 a.m., Plaintiff informed Defendant C.O. Archuleta that he had a medical emergency, but that Defendant Archuleta failed to do anything.
At 12:00 p.m. or shortly thereafter, Plaintiff reported to Defendant Sgt. Chan that he had a medical emergency. He was advised by Defendant Chan that medical was aware of his condition. However, Defendant Sgt. Chan did not report the medical emergency.
At or around 3:30 p.m. Plaintiff informed Defendant Sgt. Devine of his medical emergency. Defendant Devine never reported the emergency.
At or around 4:00 p.m. Plaintiff informed Defendant C.O. Ceja that he was suicidal. Plaintiff states that "this was mental anguish plus desperation to receive help. [He] was bleeding from [his] penile hole and was suffering with pain" and that Defendant "Dr. Scharffenberg was torturing [him] to the point of having suicidal thoughts."
Plaintiff eventually received a Toradol 60 mg injection and was taken to Mercy Bakersfield by ambulance.
Plaintiff alleges that Defendant Warden Sherman "failed to adequately train his staff for medical emergency response. He failed to properly supervise his subordinates as a result [Plaintiff] suffered serious and permanent injury."
Plaintiff alleges that Defendants Edmund G. Brown Jr., Kelly Harrington, and J. Beard/Scott Kernan are responsible for illegal and unconstitutional policies, customs, and practices that caused Plaintiff's injuries, and that these defendants will continue to cause Plaintiff injury in the future.
For relief, Plaintiff requests compensatory and punitive damages for the constitutional violations, as well as for defendants to be accountable for potential "future medical bills requiring surgeries etc. . . ." Plaintiff would "like to be returned to the same condition before aforementioned constitutional violations occurred. This includes mental suffering, punitive damages for wrongful conduct oppressively applied with recklessness amounting to said deliberate indifference."
On December 5, 2016, defendants R. Devine, S. Sherman, A. Chan, S. Soto, M. Archuleta, M. Padilla, and R. Scharffenberg filed a motion to dismiss. (ECF No. 64). The motion was granted in part. (ECF No. 72). Plaintiff was "permitted to proceed on his Eighth Amendment claims against defendants R.N. Soto and Dr. Scharffenberg for deliberate indifference to serious medical needs," and all other claims and defendants were dismissed. (
"Defendants move for summary judgment on the grounds that Plaintiff did not have a serious medical need for the removal of his catheter, Defendants provided him constitutionally adequate care, and Plaintiff's injury was caused by his refusal of medically necessary treatment. Alternatively, Defendants are entitled to qualified immunity because no reasonable medical provider in their respective positions would believe that their conduct violated the Eighth Amendment, and the law was not clearly established that Defendants' conduct violated the Eighth Amendment." (ECF No. 123-2, p. 2).
As to defendant RN Soto, while Plaintiff told defendant Soto that he wanted the catheter removed, defendant Soto was not permitted to remove Plaintiff's catheter without a doctor's order. (ECF No. 123-2, p. 7). Defendant Soto explained to Plaintiff that the catheter needed to remain in place to treat his urinary retention. (
Defendants argue that not only did Plaintiff not have an objectively serious medical need for the removal of this catheter, he had a medical need for the catheter to remain in place to treat his urinary retention. (
As to defendant Dr. Scharffenberg, Plaintiff "claims that Dr. Scharffenberg knowingly and willingly used the wrong catheter deflation kit when he removed Plaintiff's catheter and negligently pulled on the catheter before completely deflating the balloon, resulting in pain and permanent injury." (
Moreover, defendant Scharffenberg was not deliberately indifferent to Plaintiff's medical needs. (
Finally, Defendants argue that, even if the Court finds that their actions violated the constitution, they are entitled to qualified immunity. (
Plaintiff argues that Defendants are not entitled to qualified immunity because it was clearly established at the time of the incident that Defendants were prohibited from subjecting Plaintiff to cruel and unusual treatment. (ECF No. 152, p. 2). Moreover, Defendants' conduct was so egregious that any reasonable official would have known that it violates the constitution. (
Plaintiff argues that it is his right to refuse treatment and/or to discontinue treatment. (
As to defendant Scharffenberg, he was deliberately indifferent "in so many ways." (
Not only did defendant Scharffenberg cause pain by yanking on the catheter that was not properly deflated, on his second attempt to remove the catheter he shoved the catheter further back into the penile hole, increasing Plaintiff's pain. (
After Plaintiff returned to his cell, he began to suffer from a priapism, a serious condition which can result in permanent injury. (
Plaintiff was later hospitalized for thirteen days, and faced amputation. (
While Defendants argue that the priapism was triggered by medications and premature removal of the catheter, this is speculation on behalf of Defendants and their medical expert witness. (
Summary judgment in favor of a party is appropriate when 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 moving for summary judgment "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 reviewing the evidence at the summary judgment stage, the Court "must draw all reasonable inferences in the light most favorable to the nonmoving party."
In reviewing a summary judgment motion, the Court may consider other materials in the record not cited to by the parties, but is not required to do so. Fed. R. Civ. P. 56(c)(3);
"[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show `deliberate indifference to serious medical needs.'"
Deliberate indifference is established only where the defendant subjectively "knows of and disregards an excessive risk to inmate health and safety."
Deliberate indifference can be established "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."
Where a prisoner is alleging a delay in receiving medical treatment, the delay must have led to further harm in order for the prisoner to make a claim of deliberate indifference to serious medical needs.
A difference of opinion between an inmate and prison medical personnel—or between medical professionals—regarding appropriate medical diagnosis and treatment is not enough to establish a deliberate indifference claim.
To begin, the Court notes that Plaintiff alleges that Defendants withheld relevant medical records in an effort to prevent him from adequately presenting his case. (ECF No. 152, p. 7). However, as Defendants point out, Plaintiff has presented no evidence of this assertion. Moreover, the Court already addressed the issue of at least some allegedly missing medical records when denying Plaintiff's motion to compel that was filed on January 16, 2018 (ECF Nos. 89 & 96). As Plaintiff provided no evidence to substantiate this allegation, and as it appears that this issue has already been addressed, the Court will not readdress this issue. Moreover, it does not appear that the medical records that Plaintiff alleges were destroyed are relevant to the motion for summary judgment. They appear to relate to medical care that occurred approximately two years before the incidents alleged in the complaint, and would not address the deficiencies in Plaintiff's evidence.
Turning to the merits of the motion, many of the relevant facts in this case are undisputed. On December 8, 2013, Plaintiff began complaining of abdominal pain. Defendants' Statement of Undisputed Facts ("DSUF") 8. On that same day Plaintiff was seen by a non-party nurse, who noted that Plaintiff's bladder felt distended. DSUF 9. Plaintiff told the nurse that he had a hard time peeing.
On December 9, 2013, Plaintiff was seen by defendant Soto in response to complaints of pain. DSUF 13. Plaintiff informed defendant Soto that he wanted the catheter removed. DSUF 14.
On December 10, 2013, Plaintiff was seen by defendant Scharffenberg. DSUF 21. Plaintiff demanded that his catheter be removed immediately. DSUF 22. Plaintiff signed a refusal of treatment form for removal of the catheter against medical advice (DSUF 24), and defendant Scharffenberg removed the catheter (DSUF 25).
Later in the evening, Plaintiff was seen in the Treatment and Triage Area complaining that he had a painful erection. DSUF 34.
The issue now before the Court is whether defendant RN Soto's refusal to remove the catheter on December 9, 2013, constituted deliberate indifference to Plaintiff's serious medical needs,
As to defendant Soto, even if Plaintiff can show that he had a serious medical need for the catheter to be removed immediately, which the parties dispute, there is no evidence that defendant Soto was deliberately indifferent to that need applying the legal standards discussed above. It is undisputed that defendant Soto provided treatment to Plaintiff, including examining Plaintiff, providing Tylenol for his pain, and educating Plaintiff regarding his condition.
The Court also finds that it is undisputed that defendant Soto contacted a doctor regarding Plaintiff's condition. While Plaintiff attempts to dispute this fact, Plaintiff has submitted no admissible evidence that contradicts defendant Soto's declaration and Plaintiff's medical records. Declaration of S. Soto, ¶ 5 ("I notified the on-call physician about Mr. Gonzalez's condition, and was informed that, per discharge instructions, the catheter was to remain in place for seven days for treatment of urinary retention."); ECF No. 123-5, p. 4 ("Dr. Igbinosa notified: Tylenol #3 x1 dose in TTA for discomfort/pain, RTC. I/P encouraged to drink more fluids.").
To dispute this, Plaintiff includes his own statement under penalty of perjury that defendant Soto failed to contact a physician, but there is no indication in Plaintiff's declaration that he has personal knowledge of this fact. Fed. R. Evid. 602 ("A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."). Plaintiff also submits a medical record that he alleges shows that defendant Soto failed to consult with a doctor. (ECF No. 152, p. 18). However, this conclusion is not at all clear from the medical record. It certainly does not say that defendant Soto refused to call a doctor. The Court's best transcription of the handwritten note is as follows:
It is unclear who wrote this note as the signature is illegible, although it says "TTA MD" in the upper right corner, indicating that a doctor was involved and may have been the author. In any event, this note supports defendant Soto's account of the facts, including that a doctor had previously instructed the catheter to remain, that someone (potentially defendant Soto or R.N. Standifer) consulted with a doctor or medical professional in response to Plaintiff's complaints, the appropriate course of treatment was discussed, and the author of the note and an R.N. decided on a medical response to Plaintiff's complaints that included keeping in the catheter at that time. While Plaintiff may disagree with this course of treatment, this note contradicts Plaintiff's claim that defendant Soto was deliberately indifferent to Plaintiff's complaints about his catheter.
Accordingly, as Plaintiff submitted no admissible evidence that defendant Soto was deliberately indifferent to his serious medical needs, the Court finds that summary judgment should be granted in favor of defendant Soto.
As to defendant Scharffenberg, Plaintiff also failed to provide sufficient admissible evidence that a reasonable jury could find that defendant Scharffenberg was deliberately indifferent to Plaintiff's medical needs.
Plaintiff concedes that defendant Scharffenberg removed the catheter based on Plaintiff's own request, against a doctor's earlier medical advice. Plaintiff bases his claim on defendant Scharffenberg's manner of removing the catheter.
As noted above, "a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner."
After review of all evidence presented, the Court finds that there is no evidence that defendant Scharffenberg's removal method, even if painfully or potentially negligently performed, indicated deliberate indifference to Plaintiff's medical needs. Plaintiff submits evidence that he was in pain during the removal procedure, and that afterwards he bled from his penis. (ECF No. 152, p. 4). He also submits evidence that defendant Scharffenberg was not kind during the removal procedure. Defendant Scharffenberg allegedly "badgered" Plaintiff, saying things such as "cut the show," "what[`]s with the show," and "you need to be more mature." (ECF No. 152, p. 11). But there is no evidence that defendant Scharffenberg knew of a less painful method of removal and purposefully chose this method in order to cause Plaintiff pain. Instead, the evidence indicates that defendant Scharffenberg believed that Plaintiff was not in as much pain as Plaintiff alleges. Even if this evidence were true, it merely shows a difference of opinion regarding Plaintiff's symptoms—not that defendant Scharffenberg was aware of a medical need and failed to attend to it. Put another way, although defendant Scharffenberg's comments as alleged by Plaintiff appear mean, they do not indicate that defendant Scharffenberg was deliberately indifferent to Plaintiff's medical needs.
Additionally, Plaintiff failed to submit any admissible evidence to dispute the fact that pain and discomfort can be a regular part of such a procedure.
Moreover, the fact that defendant Scharffenberg performed the removal at all suggests he was not deliberately indifferent to Plaintiff's medical needs. Plaintiff had requested removal of the catheter against medical advice. Defendant Scharffenberg performed the medical procedure that was requested by Plaintiff. Additionally, it is undisputed that on the evening of December 10, 2013, defendant Scharffenberg ordered that Plaintiff be transported by ambulance to Mercy Hospital Bakersfield. DSUF 35. Thus, at most, Plaintiff has submitted evidence of medical negligence, which is not a constitutional violation.
As Plaintiff has failed to provide evidence from which a fair-minded jury could conclude that defendant Scharffenberg was deliberately indifferent to Plaintiff's medical needs in removing the catheter, the Court finds that summary judgment should be granted in favor of defendant Scharffenberg.
Because the Court finds that a fair-minded jury could not reasonably find that Defendants were deliberately indifferent to Plaintiff's serious medical needs, the Court will recommend that Defendants' motion for summary judgment be granted.
Because Plaintiff failed to submit evidence from which a fair-minded jury could reasonably find that Defendants were deliberately indifferent to Plaintiff's serious medical needs, IT IS HEREBY RECOMMENDED that:
These findings and recommendations are submitted to the United States district judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these findings and recommendations, any party may file written objections with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within seven (7) days after service of the objections.
The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal.
Additionally, Plaintiff alleges that defendant Scharffenberg was "sadistic" in his removal procedure. (ECF No. 152, p. 5). "[W]henever prison officials stand accused of using excessive physical force in violation of the [Eighth Amendment], the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm."
