Summary
assuming prisoner's improperly healed Achilles tendon, swollen knee, separated shoulder, and complaints of "very severe pain" were objectively serious medical needs
Summary of this case from Livingston v. UgborOpinion
No. C 11-0183 LHK (PR)
02-24-2014
JOE ABBOTT, Plaintiff, v. E. TOOTELL, et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; DENYING MOTION FOR PRELIMINARY INJUNCTION; REFERRING CASE TO SETTLEMENT PROCEEDINGS (Docket Nos. 88, 103, 105, 122)
Plaintiff, proceeding pro se, filed an amended civil rights complaint pursuant to 42 U.S.C. § 1983 against prison officials at San Quentin State Prison ("SQSP"). Plaintiff alleges that defendants Chief Medical Officer ("CMO") Dr. Tootell, Dr. Grant, Dr. Jones, Lieutenant Arnold, and Sergeant Seman were deliberately indifferent to plaintiff's serious medical needs, in violation of the Eighth Amendment.
The parties appear to use CMO and Chief Medical Executive ("CME") interchangeably. For purposes of consistency, the court will refer to Dr. Tootell as the CMO.
Defendants have moved for summary judgment. Plaintiff has filed an opposition and supporting papers, and defendants have filed a reply. Plaintiff has also filed a motion for preliminary injunction. Defendants have filed an opposition, and plaintiff has filed a reply. Having carefully considered the papers submitted, the court hereby GRANTS in part and DENIES in part defendants' motion for summary judgment, and DENIES plaintiff's motion for preliminary injunction for the reasons set out below.
BACKGROUND
The following facts are viewed in the light most favorable to plaintiff, and are undisputed unless otherwise indicated.
Plaintiff is an inmate on death row at SQSP. (Am. Compl. at ¶ 2.) From 2006 through 2008, plaintiff had an ice chrono, which allowed him to receive ice to help ameliorate his chronic pain in his right knee and right shoulder. (Pl. Decl. at ¶¶ 2-4.)
On April 8, 2008, Dr. Matan, an outside orthopedic specialist, performed surgery on plaintiff's right knee. (Am. Compl. at ¶ 23.) Dr. Matan provides orthopedic consultations and surgeries for some inmates at SQSP. (Matan Decl. at ¶ 2.) In general, Dr. Matan gives specific restrictions via chronos for patients like plaintiff, and the restrictions are often based on the patient's self-reporting of his or her subjective symptoms; however, Dr. Matan notes that rarely is there actual evidence to support a specific restriction or chrono. (Id. at ¶ 4.) On May 8, 2008, Dr. Matan issued a permanent medical chrono for plaintiff, stating "no handcuffs behind plaintiff's back; instead plaintiff should be cuffed in waist restraints." (Am. Compl. at ¶ 26; Matan Decl. at ¶ 6, Ex. 1.)
On January 9, 2009, during a chronic care visit with Dr. Jones, plaintiff's primary care physician at the time, Dr. Jones re-ordered an ice chrono, but informed plaintiff that the chrono may not be approved because the CMO had changed the policy for ice chronos. (Pl. Decl. at ¶ 10.) Specifically, Dr. Tootell instituted a policy that only allowed ice to be ordered in a postoperative procedure involving swelling or an acute injury, but not for chronic pain. (Am. Compl. at ¶ 24.) On January 23, 2009, Dr. Matan performed surgery on plaintiff's right shoulder. (Id. at ¶ 23.) On February 23, 2009, plaintiff's "ice chrono" was not renewed because of the new ice policy. (Pl. Depo. at 93-94.) Plaintiff asserts that the policy denied him the use of ice for his chronic pain even though ice had been effective in assisting with plaintiff's daily activities by alleviating severe pain and swelling. (Am. Compl. at ¶ 25.) Plaintiff states that because of the policy, Dr. Jones, Dr. Matan, and Dr. Grant did not renew plaintiff's ice chronos. (Id.)
On March 20, 2009, plaintiff was moved to the Adjustment Center from the East Block based on an accusation that plaintiff had assaulted someone. (Id. at ¶ 28.) The Adjustment Center is the most secure housing unit in the prison, and it is where death row inmates are housed if they have disciplinary problems. (Grant Decl. at ¶ 2.) The Adjustment Center has more strict security than other housing units at SQSP. (Id.) Dr. Grant is the primary care physician for inmates housed in the Adjustment Center. (Id. at ¶ 3.) When inmates arrive at the Adjustment Center, Dr. Grant reviews all of their chronos to ensure that they meet the guidelines of the prison. (Id.) Once Dr. Grant approves or disapproves of the chronos, Dr. Tootell reviews the chrono as well. (Id.)
On March 26, 2009, Dr. Grant saw plaintiff, and concluded that plaintiff's right knee was swollen and plaintiff walked with a limp. (Am. Compl. at ¶ 28.) Dr. Grant noted that plaintiff had extensive medical issues, including hypertension, right knee pain, asthma, dyspepsia, and voiding issues. (Grant Decl. at ¶ 6, Ex. 1.) Plaintiff informed Dr. Grant about his shoulder injury and surgery, as well as the chronos issued by Dr. Matan. (Am. Compl. at ¶ 28.) Dr. Grant responded that "we don't do that" in the Adjustment Center. (Id.) Dr. Grant then turned to Sergeant Seman and asked, "How do you want to handle this?" (Pl. Decl. at ¶ 20.) Sergeant Seman instructed Dr. Grant to write a modified cuff chrono. (Id.) Dr. Grant rescinded plaintiff's waist restraint chrono and wrote one for modified cuffs instead. (Am. Compl. at ¶ 28; Grant Decl. ¶ 6.)
"Modified cuffs" are handcuffs with a 6-inch long chain of links separating the cuffs. (Am. Compl. at ¶ 66.)
On May 26, 2009, plaintiff saw Dr. Grant again. (Grant Decl. at ¶ 7.) Plaintiff requested waist restraints and told Dr. Grant that he was having problems with his right knee. (Id.) Dr. Grant denied plaintiff's requests for a waist restraint chrono and a no-kneeling chrono because Dr. Grant did not feel they were medically necessary. (Id.) Dr. Grant referred plaintiff to an outside orthopedist for further assessment. (Id., Ex. 2.)
On June 4, 2009, Dr. Matan issued another medical chrono for "waist restraints / no hands behind back," "no kneeling on plaintiff's knees," and for an ankle wrap. (Am. Compl. at ¶ 29.)
On June 5, 2009, plaintiff was placed in a holding cell pending the transfer of his property. (Id. at ¶ 31.) Sergeant Seman asked plaintiff who was writing his chronos. (Id.) Plaintiff said that the specialist wrote them, and Sergeant Seman said that for every doctor that plaintiff got to write him chronos, Sergeant Seman had one who could take them away. (Id.) Lieutenant Arnold told Sergeant Seman that if the CMO writes an order, they have to abide by it, and Sergeant Seman responded that he had "taken care of it." (Id. at ¶ 32.) Plaintiff never got his chrono back. (Id.)
Later that day, Dr. Grant rescinded all of the medical chronos authorized by Dr. Matan the day before. (Id. at ¶ 33.) Plaintiff believes that Dr. Grant did so on the order of Sergeant Seman and Lieuteant Arnold. (Id.) The following day, Dr. Grant issued a chrono for double cuffs for plaintiff in order to help plaintiff's shoulder concern. (Grant Decl. at ¶ 8.) Dr. Grant believed that double cuffs would decrease the internal rotation on plaintiff's shoulder. (Id.) On June 8, 2009, Dr. Grant approved Dr. Matan's recommendation that plaintiff receive a chrono allowing plaintiff to stand for the application of leg-irons. (Id. at ¶ 9.) Normally, inmates in the Adjustment Center have to kneel while staff place leg irons on them. (Id.) Dr. Grant also approved the chrono for no kneeling to prevent plaintiff's knee pain from worsening. (Id.)
Neither party has defined the term "double cuffs," but, based on the papers presented, the court infers that "double cuffs" are less restrictive than "modified cuffs," but more restrictive than "waist restraints."
On June 18, 2009, Dr. Matan prepared a chrono for "no leg irons" on plaintiff's right Achilles heel, and no handcuffs behind plaintiff's back. (Id. at ¶ 10; Matan Decl. at ¶ 7, Ex. 2.) On July 2, 2009, Dr. Grant denied both chronos because he did not believe they were medically necessary. (Grant Decl., Ex. 5.)
On July 10, 2009, Dr. Grant saw plaintiff again, and did not note any concerns regarding plaintiff's shoulder. (Grant Decl. at ¶ 11.) Plaintiff complained of knee pain, and Dr. Grant noted that plaintiff had received a corticosteroid injection for the pain. (Id., Ex. 6.)
On September 28, 2009, plaintiff sent a letter to Dr. Tootell, asking about the status of his request for double cuff medical chrono. (Am. Compl. at ¶ 54.) Plaintiff also asked Dr. Tootell to review his chart because plaintiff did not understand why his chronos had been rescinded. (Id.) Dr. Tootell never responded. (Id.)
On October 16, 2009, Dr. Grant saw plaintiff again. Plaintiff requested a double cuff chrono instead of modified cuffs. (Grant Decl. at ¶ 12.) Dr. Grant noted that plaintiff's shoulder and knee pain were stable, and after Dr. Grant assessed whether a double cuff could be issued for plaintiff given the Adjustment Center's security needs, Dr. Grant issued a chrono for double cuffs for two months with the possibility of a renewal. (Id., Ex. 7.)
On October 23, 2009, Dr. Grant examined plaintiff. (Id., Ex. 8.) Even though plaintiff could not put his right arm behind his back, Dr. Grant "refused plaintiff various medical items." (Am. Compl. at ¶ 38.) Dr. Grant met with plaintiff specifically to address plaintiff's shoulder concerns. (Grant Decl. at ¶ 13.) After meeting with plaintiff, Dr. Grant decided to continue plaintiff on double cuffs and again referred plaintiff to Dr. Matan for further input. (Id.)
On November 13, 2009, plaintiff refused to come out of his cell for the second time, claiming that he could not comply with the procedures for double-cuffing. (Id. at ¶ 14.) Double cuffing requires an inmate to place both hands out of the handcuff port so that staff can place handcuffs around the inmate. (Id.) At that time, Dr. Grant believed that plaintiff could rotate his shoulder enough so that staff could cuff him. (Id., Ex. 9.)
On December 4, 2009, Dr. Grant met with plaintiff, and they spoke about plaintiff's shoulder concern. (Id. at ¶ 15.) Dr. Grant noted that plaintiff had limited range of motion in his right shoulder, and was unable to put both hands behind his back. (Id.) However, because of the Adjustment Center's strict security requirements, Dr. Grant referred plaintiff's issue to Dr. Tootell to assess how best to handle the situation. (Id.) Nonetheless, Dr. Grant wrote a double cuff chrono for plaintiff to help alleviate handcuffing difficulties as well as relieve any pain to plaintiff's shoulder. (Id., Ex. 10.)
On December 18, 2009, it was determined that plaintiff should return to the East Block in order to accommodate the difficulty plaintiff was having putting both hands behind his back at the same time with the security precautions of the prison. (Decl. Ebert at ¶¶ 3-4.) That same day, plaintiff was re-housed in East Block, where Dr. Jones again became plaintiff's primary care physician. (Am. Compl. at ¶ 64.) On January 7, 2010, plaintiff was taken to a special committee - the Interdisciplinary Treatment Team ("IDTT") - and, without evaluating plaintiff, Dr. Jones stated that modified handcuffs could restrain plaintiff without further injury to plaintiff's shoulder. (Id.; Jones Decl. at ¶ 8.) Dr. Jones further stated that she could not authorize a medical chrono for waist restraints. (Am. Compl. at ¶ 66.)
On January 14, 2010, plaintiff saw Dr. Jones and requested an x-ray of his shoulder and assistance in getting his medical appliances - a cane and a walking boot - returned. (Am. Compl. at ¶ 67.) Dr. Jones denied the requests because she did not believe that they were medically necessary, but she referred plaintiff to a physical therapist for evaluation. (Id.; Jones Decl. at ¶ 11.) On February 2, 2010, the physical therapist recommended that plaintiff's medical boot and walking cane be returned, that medical chronos be issued, and that plaintiff receive physical therapy. (Am. Compl. at ¶ 68.) However, the physical therapist later included an addendum to his recommendation, and noted that he had observed plaintiff walking without difficulty without a cane or walking book after the physical therapy session. (Jones Decl. at ¶ 12.) Thus, the physical therapist withdrew his initial recommendation that plaintiff receive a walking boot and cane. (Id.) Later on, Dr. Jones admitted that she made the physical therapist change his diagnosis in the addendum, and told plaintiff that if plaintiff had a problem with that, plaintiff could file an administrative grievance about it. (Pl. Decl. at ¶ 108.)
On February 18, 2010, plaintiff appeared before the IDTT again, where Dr. Jones again denied a medical chrono for the medical boot and cane. (Am. Compl. at ¶ 69.) Plaintiff again requested waist chains, and Dr. Jones again denied the request, standing by her decision for modified cuffs. (Id.)
Six to eight weeks later, Dr. Jones again denied plaintiff an x-ray of his shoulder. (Id. at ¶ 70.) On April 22, 2010, however, Dr. Jones approved a chrono for a cane and waist chains because her other attempts to address plaintiff's shoulder pain were not successful. (Jones Decl. at ¶ 13, Ex. 4.)
Plaintiff asserts that, because of defendants' actions, plaintiff has a permanent limp due to an improperly healed Achilles, and swollen knee. Plaintiff further asserts that he has uncontrollable spasms in his lower leg and continues to suffer pain in his right shoulder.
DISCUSSION
I. Motion for Summary Judgment
A. Legal Standard
Summary judgment is proper where the pleadings, discovery and affidavits demonstrate that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.
The party moving for summary judgment 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. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. But on an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id. at 325.
Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The court is only concerned with disputes over material facts and "factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248. It is not the task of the court to scour the record in search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party has the burden of identifying, with reasonable particularity, the evidence that precludes summary judgment. Id. If the nonmoving party fails to make this showing, "the moving party is entitled to judgment as a matter of law." Celotex Corp., 477 U.S. at 323.
The court's function on a summary judgment motion is not to make credibility determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence must be viewed in the light most favorable to the nonmoving party, and the inferences to be drawn from the facts must be viewed in a light most favorable to the nonmoving party. See id. at 631.
B. Plaintiff's Claims
Plaintiff claims that defendants' failure to treat plaintiff's medical injuries resulted in further injury, such as an improperly healed Achilles, a swollen knee, a separation in his right shoulder, and very severe pain. (Am. Compl. at ¶ 75.) Defendants argue that they are entitled to judgment as a matter of law because the evidence is undisputed that none of them had the requisite culpable state of mind to meet the deliberate indifference standard.
Deliberate indifference to a prisoner's serious medical needs violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A prison official violates the Eighth Amendment only when two requirements are met: (1) the deprivation alleged is, objectively, sufficiently serious, and (2) the official is, subjectively, deliberately indifferent to the inmate's health or safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994).
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." Id. The existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain are examples of indications that a prisoner has a "serious" need for medical treatment. McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).
A prison official exhibits deliberate indifference when he knows of and disregards a substantial risk of serious harm to inmate health. See Farmer, 511 U.S. at 837. The official must both know of "facts from which the inference could be drawn" that an excessive risk of harm exists, and he must actually draw that inference. Id. "A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 claim." Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). Similarly, a claim of medical malpractice or negligence is insufficient to establish a violation of the Eighth Amendment. McGuckin, 974 F.2d at 1059. In particular, a plaintiff's opinion that medical treatment was unduly delayed does not, without more, state a claim of deliberate indifference. Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). Where doctors have chosen one course of action and a prisoner-plaintiff contends that they should have chosen another course of action, the plaintiff "must show that the course of treatment the doctors chose was medically unacceptable under the circumstances, . . . and the plaintiff must show that they chose this course in conscious disregard of an excessive risk to plaintiff's health." Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted).
1. Dr. Grant
Plaintiff alleges that Dr. Grant was deliberately indifferent to his serious medical needs because Dr. Grant repeatedly denied plaintiff's request for chronos for waist restraints and no kneeling, both of which were chronos issued by Dr. Matan. Dr. Grant responds that his treatment of plaintiff was proper, and that the chronos were not medically necessary at the time Dr. Grant denied plaintiff's requests.
As an initial matter, portions of plaintiff's declaration are inadmissible because they are not based on personal knowledge. See Strong v. Valdez Fine Foods, 724 F.3d 1042, 1045 (9th Cir. 2013). Thus, to the extent plaintiff's declaration is not based on personal knowledge, those portions will not be considered by the court. Defendants also urge the court to strike portions of plaintiff's declaration as sham. A party may not "create an issue of fact by an affidavit contradicting his prior deposition testimony." Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012).
Defendants point out that plaintiff raises new facts concerning Dr. Grant, Sergeant Seman, and Dr. Jones. These facts were not raised in plaintiff's amended complaint nor mentioned during plaintiff's deposition. In plaintiff's amended complaint, plaintiff stated that, on March 26, 2009, he told Dr. Grant about the chrono for waist restraints. Dr. Grant responded, "we don't do that here in the Adjustment Center," rescinded the waist chrono, and wrote plaintiff a chrono for modified cuffs. (Am. Compl. at ¶ 28.) Similarly, plaintiff's testimony in his deposition reiterated what plaintiff wrote in his amended complaint. (Zelidon-Depeda Decl., Ex. 1, Ex. 13 at 40.) In plaintiff's declaration in support of his opposition to defendants' motion for summary judgment, plaintiff newly asserted that on March 26, 2009, when Sergeant Seman brought plaintiff to see Dr. Grant, Dr. Grant told plaintiff that the Adjustment Center does not "do waist restraints," and turned to ask Sergeant Seman, "how do you want to handle this?" (Pl. Decl. at ¶ 20.) In response, asserts plaintiff, Sergeant Seman directed Dr. Grant to write a modified cuff chrono instead, and Dr. Grant complied. (Id.) In plaintiff's amended complaint and plaintiff's deposition, plaintiff did not mention that Sergeant Seman and Dr. Grant had any discussion at all, much less a pointed discussion about what cuffs to use on plaintiff on March 26, 2009.
With respect to sham affidavits, the rule applies in situations in which a party attempts to "create an issue of fact by an affidavit contradicting his prior deposition testimony." Van Asdale v. Int'l Game Technology, 577 F.3d 989, 998 (9th Cir. 2009). While the rule is to be applied with caution in any event, id., the omission of a fact is not the same as the contradiction of a fact. Thus, the "sham affidavits" rule is inapplicable in this context. Plaintiff's declaration is based on his personal knowledge and is not contradicted by any allegations he made in his complaint or deposition.
Plaintiff takes issue with the fact that Dr. Grant "rescinded" the chronos written by Dr. Matan, and did not approve plaintiff's requests for those chronos, as part of the treatment plan even though plaintiff believed that those chronos were essential. The evidence shows that, over the course of nine months, Dr. Grant personally met with plaintiff six times. (Grant Decl. at ¶¶ 6, 7, 11, 12, 13, 15.) Over the course of those months, Dr. Grant would examine plaintiff, treat plaintiff's ailments, refer plaintiff to the orthopedist, and reject plaintiff's requests for certain chronos even though Dr. Matan had issued the chronos. Dr. Grant asserts that he made these decisions because Dr. Grant believed that the chronos were not medically necessary. However, plaintiff's alleges that Dr. Grant's decisions were not based on proper medical determinations, as exemplified by Dr. Grant's compliance with Sergeant Seman's direction to use modified cuffs on plaintiff rather than waist restraints. The court concludes that there is a genuine issue of material fact regarding whether Dr. Grant was deliberately indifferent to plaintiff's medical needs. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (stating that if it were proved at trial that doctors denied a prisoner on dialysis a kidney transplant because of personal animosity, and that the delay in performing the transplant was "medically unacceptable," that would demonstrate deliberate indifference).
Alternatively, defendants argue that Dr. Grant is entitled to qualified immunity. The defense of qualified immunity protects "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A court considering a claim of qualified immunity must determine: (1) whether the plaintiff has alleged the deprivation of an actual constitutional right, and (2) whether such right was clearly established such that it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. See Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).
Here, plaintiff claims that Dr. Grant refused to honor the chronos, knowing that they were helpful to plaintiff and implies that Dr. Grant's decisions were influenced not by his medical knowledge, but by the opinions of correctional staff. Viewing the facts in the light most favorable to plaintiff, the court concludes that Dr. Grant is not entitled to qualified immunity. See Jackson, 90 F.3d at 332 (rejecting defendants' claim for qualified immunity based on plaintiff's allegation that "the doctors chose to deny him the opportunity for a kidney transplant, not because of an honest medical judgment, but on account of personal animosity").
Accordingly, defendants' motion for summary judgment as to Dr. Grant is DENIED.
2. Dr. Jones
Plaintiff alleges that Dr. Jones was deliberately indifferent to his serious medical needs after plaintiff returned to her care from the Adjustment Center. Dr. Jones responds that her treatment of plaintiff was proper.
Based on the evidence, plaintiff returned to the care of Dr. Jones in December 2009, when plaintiff was re-housed in the East Block. (Opp. at 14.) Dr. Jones concedes that in January 2010, she met with the IDTT and concluded that a chrono for modified handcuffs would be sufficient to treat plaintiff even though Dr. Jones had not personally examined plaintiff in the previous months. (Jones Decl. at ¶ 8.) Dr. Jones stated that she was familiar with plaintiff's medical history and, based on her experience and medical training, believed that modified cuffs were appropriate for him at the time. (Id.) At most, Dr. Jones' conclusion about what was appropriate for plaintiff was negligent, which is insufficient to establish a violation of the Eighth Amendment. See Toguchi, 391 F.3d at 1060-61. Again, plaintiff does not and cannot show that the course of treatment Dr. Jones chose was medically unacceptable under the circumstances, and that she chose this course in conscious disregard of an excessive risk to plaintiff's health. See id. at 1058.
Plaintiff also complains that, on January 14, 2010, Dr. Jones denied plaintiff's request for an x-ray of his shoulder, as well as the return of plaintiff's walking boot and cane to assist plaintiff in walking. Dr. Jones' medical notes indicate that Dr. Jones addressed plaintiff's other medical issues, and renewed plaintiff's personal athletic shoe chrono, but declined to renew his chrono for a walking cane because Dr. Jones had observed that plaintiff's gait was normal and stable. (Jones Decl. at ¶ 10, Ex. 2.) Dr. Jones also referred plaintiff to physical therapy. (Id.) Again, plaintiff's dissatisfaction with Dr. Jones' decision is a matter of a difference of medical opinion. See Toguchi, 391 F.3d at 1058, 1059-60. Moreover, "[a] medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment." Estelle, 429 U.S. at 107.
Finally, in plaintiff's opposition, plaintiff argues for the first time that, in February 2010, Dr. Jones admitted that she made the physical therapist to change his diagnosis that plaintiff needed a walking boot or cane. (Pl. Decl. at ¶¶ 106-110.) Defendants argue that the court should strike this new statement as a sham. However, the statement is an omission rather than a contradiction of a fact. See Van Asdale , 577 F.3d at 998. Thus, the "sham affidavits" rule is inapplicable in this context. Nonetheless, even assuming the truthfulness of plaintiff's assertion that Dr. Jones persuaded the physical therapist to change his opinion regarding whether a walking cane or boot was medically necessary for plaintiff, there is an absence of evidence that the recommendation for or against a walking cane or boot was not based on medical opinion. See Toguchi, 391 F.3d at 1058, 1059-60. Specifically, plaintiff has not shown that the course of treatment Dr. Jones chose was medically unacceptable under the circumstances and that she chose this course in conscious disregard of an excessive risk to plaintiff's health. See id. at 1058.
Defendants have met their burden of demonstrating the absence of a genuine issue of material fact. Thus, defendants are entitled to judgment as a matter of law as to Dr. Jones.
Because the court is granting summary judgment on the merits as to Dr. Jones, it is unnecessary to also discuss qualified immunity.
3. Lieutenant Arnold and Sergeant Seman
Plaintiff claims that Lieutenant Arnold and Sergeant Seman directed Dr. Grant to rescind the medical chronos issued by Dr. Matan on June 4, 2009. (Pl. Depo. at 135.) Specifically, on that day, Sergeant Seman told plaintiff that for every doctor plaintiff persuaded to write a chrono for him, Sergeant Seman could find a doctor to take it away. (Id. at 107.)
With respect to Sergeant Seman, there is an absence of evidence that Dr. Grant rescinded the chronos in June 2009 because Sergeant Seman directed him to do so. (Pl. Depo. at 107.) Plaintiff admitted that Sergeant Seman had walked into another room with plaintiff's chrono, and plaintiff "presumes" that Dr. Grant was in that other room. (Id.) Moreover, even assuming that plaintiff had a serious medical need, there is no evidence that Sergeant Seman was aware that plaintiff faced a substantial risk of serious harm without the chronos, and that Sergeant Seman disregarded that risk by failing to take reasonable steps to abate it. See Farmer, 511 U.S. at 837. In addition, in order for deliberate indifference to be established, there must be a purposeful act or failure to act on the part of the defendant and resulting harm. See McGuckin, 974 F.2d at 1060.
Here, the June 4, 2009 chronos written by Dr. Matan were for waist restraints, no kneeling, and an ankle wrap on plaintiff's right Achilles heel. (Am. Compl. at ¶ 29.) The evidence is undisputed that the following day, Dr. Grant wrote a chrono for plaintiff to receive double cuffs. (Grant Decl. at ¶ 8.) Three days thereafter, Dr. Grant issued a chrono allowing plaintiff to stand for the application of leg irons. (Id. at ¶ 9.) Then, on July 2, 2009, Dr. Grant denied another chrono issued by Dr. Matan for no leg irons and no handcuffs behind plaintiff's back. (Id. at ¶ 10.) Within this one month of time between the day plaintiff alleges Sergeant Seman destroyed his June 4, 2009 chronos, and the day Dr. Grant denied similar chronos, there is no evidence that there was any resulting harm that was caused by Sergeant Seman's act of destroying the June 4, 2009 chronos. See McGuckin, 974 F.2d at 1060.
Plaintiff's only specific allegation against Lieutenant Arnold is that Lieutenant Arnold reminded Sergeant Seman that if the Chief Medical Officer wrote a chrono for an inmate, correctional staff have to honor it. Plaintiff alleges that Lieutenant Arnold should have made Sergeant Seman return the June 4, 2009 chronos written by Dr. Matan. This allegation is insufficient to sustain a claim of deliberate indifference to plaintiff's serious medical needs. Even assuming plaintiff had a serious medical need, there is no indication that Lieutenant Arnold would know that a failure to return the chronos would result in a substantial risk of serious harm or that Lieutenant Arnold disregarded that risk by failing to take reasonable steps to abate it. See Farmer, 511 U.S. at 837.
For all the above reasons, defendants' motion for summary judgment as to Lieutenant Arnold and Sergeant Seman is GRANTED.
Because the court is granting summary judgment on the merits, it is unnecessary to also discuss qualified immunity.
4. Chief Medical Officer Dr. Tootell
Plaintiff had an ice chrono from 2006 through early 2009 to treat his chronic pain. Plaintiff claims that in early 2009, Dr. Tootell instituted a deficient policy to allow chronos for ice to treat only acute injuries. The chronos would last for a maximum of two weeks, absent unusual circumstances. Because of this policy, plaintiff alleges that on February 22, 2009, plaintiff's ice chrono was not renewed to treat his chronic pain. Plaintiff further alleges that a representative from the California Appellate Project wrote two letters to Dr. Tootell requesting that Dr. Tootell review plaintiff's medical record and reconsider permitting waist restraints and an ice chrono. (Pl. Decl., Ex. 8.) Plaintiff also wrote a letter to Dr. Tootell requesting the same. (Id.) Plaintiff alleges that Dr. Tootell never responded to any of the letters. (Am. Compl. at ¶ 54.)
Dr. Tootell responds that in 2009, she was told by medical staff that providing ice to inmates with ice chronos was impacting their ability to deliver medicine to inmates, and because of the way the ice was packaged, it was logistically difficult to deliver the ice in a timely manner. (Tootell Decl. at ¶ 3.) Based on these concerns, Dr. Tootell met with other medical providers at SQSP to discuss ice chronos. (Id. at ¶ 4.) Dr. Tootell states that, in her experience, ice is usually helpful for inmates with acute injuries for two weeks, and after those two weeks, "there is no medical evidence that ice is helpful for medical conditions." (Id.) As such, Dr. Tootell and the medical staff at SQSP determined that, absent unusual situations where medical concerns warranted the use of ice, ice chronos would be limited to two weeks. (Id. at ¶¶ 4, 7.)
"Supervisory liability exists . . . without overt personal participation in the offensive act if supervisory officials implement a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation." Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (internal quotation marks omitted). Here, the evidence is undisputed that, Dr. Tootell made a decision, based on her medical training and experience, to limit ice chronos to two weeks absent unusual circumstances because she was unaware of any medical evidence that ice was helpful for medical concerns beyond two weeks. (Tootell Decl. at ¶¶ 4, 6.) If a medical provider thinks that an ice chrono is medically indicated for an inmate beyond the two weeks, and coordinates the request with the nursing staff, Dr. Tootell will approve the request. (Id. at ¶ 5.) Drawing all factual inferences in favor of plaintiff, a reasonable jury could not find that Dr. Tootell's policy was deliberately indifferent to plaintiff's medical needs by restricting the use of ice chronos. See id. at 1447.
Plaintiff disputes the veracity of this statement. (Pl. Decl. at ¶ 13.) However, on January 8, 2009, when Dr. Jones rewrote an ice chrono for plaintiff, she indicated that it may not be approved because of the new ice chrono policy, however, she believed that an ice chrono was "reasonable." (Pl. Opp., Ex. 3.) Notably, there is no evidence that Dr. Jones attempted to coordinate the request for renewal with the nursing staff, nor is there evidence that Dr. Jones believed the ice chrono was "medically indicated" or medically necessary.
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With respect to plaintiff's allegations that Dr. Tootell ignored plaintiff's letters requesting that she review and reconsider plaintiff's requests for chronos, plaintiff alleges that Dr. Tootell received and ignored the letters sent to her by plaintiff and the California Appellate Project. Thus, argues plaintiff, Dr. Tootell knew that plaintiff was concerned about the discontinuation of his medical chronos, and did nothing to abate the risk. There is a genuine issue of material fact whether Dr. Tootell was deliberately indifferent to plaintiff's serious medical needs. See Jett v. Penner, 439 F.3d 1091, 1098 (9th Cir. 2006) (concluding that genuine issue of material fact existed at the summary judgment stage, and inmate was entitled to an inference that supervisory doctor received the letters inmate declared that inmate sent to him). Alternatively, defendants argue that Dr. Tootell is entitled to qualified immunity. Viewing the facts in the light most favorable to plaintiff, the court concludes that Dr. Tootell is not entitled to qualified immunity. See id. (citing Estelle, 429 U.S. at 104). The law was clearly established that prison administrators are liable for deliberate indifference when they knowingly fail to respond to an inmate's requests for help. See Jett, 439 F.3d at 1098.
Defendants' motion for summary judgment against Dr. Tootell is GRANTED in part and DENIED in part.
II. Motion for Preliminary Injunction
Plaintiff's motion for preliminary injunction requests that he receive two quarts of ice, twice daily to alleviate his pain and swelling for his left Achilles tendon, which plaintiff ruptured on August 4, 2012. Defendants argue, inter alia, that plaintiff is seeking to use the request for preliminary injunctive relief as a means to litigate a claim unrelated to those set forth in his amended complaint. They argue that he cannot seek relief related to events occurring after the filing of the instant lawsuit which are not related to the incident at issue. This court agrees. The purpose of a preliminary injunction is to preserve the relative positions of the parties until a trial on the merits can be held. University of Texas v. Camenisch, 451 U.S. 390, 395 (1981). The preliminary injunction is meant to protect the plaintiff from irreparable injury and preserve the court's power to render a meaningful decision on the merits. Los Angeles Memorial Coliseum Commission v National Football League, 634 F.2d 1197, 1200 (9th Cir. 1980).
Plaintiff's motion instead asks the court to issue a preliminary injunction to require the prison to change the status quo, as plaintiff does not presently have an ice chrono. Moreover, "[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). Here, the court has granted summary judgment to Dr. Tootell regarding the ice chrono policy. Thus, plaintiff can not establish that he is likely to succeed on the merits regarding the ice policy claim.
Moreover, plaintiff's motion claims that plaintiff is not receiving ice even after plaintiff injured his left Achilles tendon on August 4, 2012. The allegations in plaintiff's motion have all arisen after the filing of plaintiff's underlying first amended complaint. Thus, plaintiff could not have exhausted these claims prior to bringing this action. The plain language of 42 U.S.C. § 1997e(a) provides that no § 1983 action "shall be brought . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The Ninth Circuit's decision in McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002) holds that prisoners who are incarcerated at the time they file a civil action which challenges the conditions of their confinement are required to exhaust "all administrative remedies as are available" as a mandatory precondition to suit. See McKinney, 311 F.3d at 1198.
Accordingly, plaintiff's motion for preliminary injunction is DENIED.
III. Referral to Pro Se Prisoner Settlement Program
Prior to setting this matter for trial and appointing pro bono counsel to represent plaintiff for that purpose, the court finds good cause to refer this matter to Judge Vadas pursuant to the Pro Se Prisoner Settlement Program for settlement proceedings on the claim set forth above. The proceedings will consist of one or more conferences as determined by Judge Vadas. The conferences shall be conducted with Dr. Tootell and Dr. Grant, as well as defendants Guithrie, Thompson, Zeiler, Van Mastrigt, Cullen, Orozco, Dacanay, McGehee, Asuncion, and Wong, or their representatives, attending by videoconferencing if they so choose.
CONCLUSION
1. Defendants' motion for summary judgment is GRANTED as Dr. Jones, Lieutenant Arnold, and Sergeant Seman. Defendants' motion for summary judgment is GRANTED in part and DENIED in part as to Dr. Tootell. Defendants' motion for summary judgment is DENIED as to Dr. Grant.
2. Plaintiff's motion for preliminary injunction is DENIED.
3. The instant case is REFERRED to Judge Vadas pursuant to the Pro Se Prisoner Settlement Program for settlement proceedings on the remaining claim in this action, as described above. The proceedings shall take place within ninety (90) days of the filing date of this order. Judge Vadas shall coordinate a time and date for a settlement conference with all interested parties or their representatives and, within ten (10) days after the conclusion of the settlement proceedings, file with the court a report regarding the prisoner settlement proceedings.
5. The clerk of the court shall mail a copy of this order to Judge Vadas in Eureka, California.
6. The instant case is STAYED pending the settlement conference proceedings. The clerk shall ADMINISTRATIVELY CLOSE this action until further order of the court.
IT IS SO ORDERED. DATED: 2/24/14
/s/_________
LUCY H. KOH
United States DistricJudge