Opinion
No. CIV S-04-0583 MCE DAD P.
June 26, 2006
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief pursuant to 42 U.S.C. § 1983. The matter is before the court on defendant Exum's motion for summary judgment.
BACKGROUND
When plaintiff commenced this action, he was confined at High Desert State Prison ("High Desert"). By a notice of change of address filed on April 5, 2005, plaintiff notified the court of his transfer to California State Prison — Solano.
This case is proceeding on plaintiff's original complaint, filed January 29, 2004. The defendant is Wade F. Exum, M.D. The allegations of plaintiff's complaint are summarized here: On December 31, 2002, plaintiff and two hundred other black inmates at High Desert were accused of being members of a gang and were placed in administrative segregation; staff took all medications; for almost two years, plaintiff had been receiving medication for manic depression or bipolar affective disorder; on January 9, 2003, plaintiff was seen in administrative segregation by Dr. Salenger, who did not ask plaintiff how he was feeling or what symptoms he had, but said, "I'm going to wait on giving you your medication," to see what happens; plaintiff believed Dr. Salenger was bullying him with his power; on January 16, 2003, the black inmates were released from administrative segregation; plaintiff sent several requests for refills of the medications he had been taking; on February 24, 2003, plaintiff was seen by Dr. Exum, a psychiatrist whom plaintiff had not seen before; plaintiff tried to explain how he was feeling; although Dr. Exum had plaintiff's medical file, he did not look at it; Dr. Exum put his feet up on the desk, laughed at plaintiff, and accused plaintiff of wanting the medication to get high; Dr. Exum refused to prescribe refills of the medications plaintiff had been prescribed previously; after leaving the doctor's office, plaintiff went into a depressive period as a result of not receiving his medication; plaintiff was unable to control his actions and tried to commit suicide; plaintiff almost bled to death and received 32 stitches in his left wrist; Dr. Exum came to see plaintiff after plaintiff's suicide attempt and accused plaintiff of being a fake; plaintiff filed a staff complaint; every time plaintiff asked to see a doctor, Dr. Exum was sent to see him; after Dr. Exum found out about the staff complaint, he came to see plaintiff, laughed about the complaint, and said he was going to win; after the suicide attempt, plaintiff was on suicide watch more than twelve times, but medical staff refused to give plaintiff anti-depressant or anti-psychotic medication and filled plaintiff's medical file with paperwork saying there was nothing wrong with him; some doctors ordered medication for plaintiff, but the orders were stopped; plaintiff has attempted suicide four or five times; at High Desert State Prison there is no treatment available for plaintiff or treatment was refused.
According to the evidence presented by both parties, plaintiff was seen by defendant Exum on February 25, 2003.
Plaintiff contends that Dr. Exum acted with deliberate indifference to plaintiff's medical needs, subjected him to mental abuse, denied him adequate mental health care, and subjected him to cruel and unusual punishment. Plaintiff requests (1) treatment by qualified doctors and psychologists who are up-to-date on how to treat his condition; (2) transfer to an institution that provides suicide prevention and one-on-one therapy as well as group therapy; (3) medication to control plaintiff's mood swings and the voices he hears; (4) counseling and psychotherapy so that plaintiff can learn how to live and maintain a positive lifestyle; (5) compensatory damages in the sum of $100,000; (6) punitive and exemplary damages; and (7) transfer to a medical institution.
Defendant Exum filed an answer to the complaint on September 28, 2004. A discovery order was issued on October 5, 2004, and a scheduling order was filed on February 2, 2005. Defendant filed a timely motion for summary judgment motion on September 1, 2005, and plaintiff filed his opposition on September 28, 2005. On October 11, 2005, defendant filed a reply and objections to plaintiff's exhibits. Plaintiff filed a reply to the reply, together with a response to defendant's objections to exhibits.
By order filed November 22, 2005, the dates set for pretrial conference and jury trial were vacated.
THE PARTIES' ARGUMENTS AND EVIDENCE
I. Defendant's Motion
Defendant seeks judgment in his favor on the grounds that he provided plaintiff with adequate medical services consistent with community standards and that he was not deliberately indifferent to plaintiff's psychiatric medical needs.
Defendant offers his declaration dated August 22, 2005. He declares that he has been licensed as a medical doctor and psychiatrist in California since 1982 and is currently a contract psychiatrist for the California Department of Corrections and Rehabilitation at Salinas Valley State Prison. He is not involved with and has no control over any medical or psychiatric care plaintiff is receiving currently. In February 2003, he was employed at High Desert State Prison as a contract psychiatrist. His duties involved pre-admission screening of inmates regarding their psychiatric care, admission and discharge of inmates, evaluations and crisis intervention treatment, and prescription of psychiatric medication.
Defendant declares as follows regarding his treatment of plaintiff on February 25, 2003: He performed a psychiatric assessment and examination consistent with the community standards of care for psychiatrists and consistent with CDC policies and procedures; he reviewed plaintiff's medical file prior to and during the examination; the examination lasted approximately 40-45 minutes; plaintiff's main complaint was that he had not received psychiatric medication since December 2002; plaintiff related that he had been prescribed Lithium, Seroquel, and other medications; plaintiff cited a history of treatment for paranoid schizophrenia, seizures, and other medical problems; plaintiff admitted a 25-year history of substance abuse, including alcohol, PCP, and LSD, and admitted that he was incarcerated for killing three people while driving "under the influence"; defendant found no gross evidence of psychosis or disorganization; plaintiff's speech was clear and coherent, and he was oriented times three; he appeared goal directed and responsive, his affect was appropriate and broad in range, and his mood seemed eurythmic; plaintiff did not tell defendant he was experiencing extreme mood swings; plaintiff denied suicidal or homicidal ideation; plaintiff's interaction with defendant was highly cognitive and was not suggestive of psychotic symptoms; in his review of plaintiff's medical records, defendant found that on January 2, 2003, plaintiff's medication was discontinued due to reported hoarding of medications; because defendant found no gross evidence of psychosis or mental illness, it was his professional opinion that plaintiff was not in need of prescription or psychiatric medicine; defendant noted that plaintiff should be monitored for mental health deterioration; defendant scheduled plaintiff for a return appointment in six weeks; when defendant explained his decision to plaintiff, plaintiff became argumentative and demanding and was disgruntled about the decision not to prescribe medication; plaintiff disagreed with defendant's opinion that any conditions or problems he had in the past did not justify receiving similar treatment and medications absent a diagnosis warranting such treatment and medications; defendant told plaintiff that consuming the kinds of medication he was demanding would make him feel drugged or high if he did not have a clinical condition for which the medications were indicated; plaintiff threatened to sue defendant and to commit self-harm if defendant did not prescribe medications for him.
Defendant declares that, in his opinion, plaintiff did not have a serious medical need when defendant examined him on February 25, 2003. Defendant states that he was not indifferent to plaintiff's needs, did not believe plaintiff faced any substantial risk of harm by not being prescribed medications, and would not have disregarded any potentially serious risk of harm to plaintiff. He felt that supplying plaintiff with the medications he was demanding was contraindicated and would have been harmful to plaintiff's health, given his drug-seeking behavior and substance abuse background. Defendant noted that plaintiff had been without medications for two to three months and that he had made no suicide attempts or gestures in that time. Defendant states that he treated plaintiff with dignity and professionalism, to the best of his ability. In his expert opinion, his treatment of plaintiff on February 25, 2003, was consistent with the community standard of care and with departmental procedures and policies for the treatment of prisoners seeking psychiatric or mental health care.
Defendant declares that on February 26, 2003, he learned that plaintiff had cut his wrists. Plaintiff was admitted to the emergency room, and upon defendant's entering the room, plaintiff said to defendant, "I don't want to talk to you," and initiated voluntary mutism. Defendant observed plaintiff and noted that he appeared alert and calm and exhibited no symptoms of psychosis. Plaintiff was examined by medical staff and was admitted to a safety cell. In defendant's opinion, plaintiff's injuries were more consistent with suicidal gesture than with suicidal attempt and were inflicted with the hope of getting a doctor to prescribe psychotropic medication for him.
On the basis of the statements made in his declaration, defendant argues that the facts demonstrate that he did not violate plaintiff's constitutional rights, that he treated plaintiff with dignity, respect, and professionalism in an honest effort to provide plaintiff with appropriate medical care, and that his actions were consistent with the community standard of care and in compliance with departmental procedures and policies governing mental health treatment. Defendant contends that he is therefore entitled to judgment as a matter of law.
Defendant asserts that plaintiff cannot establish that defendant knew of any substantial risk of serious harm or that he deliberately disregarded such a risk, given the evidence that defendant reviewed plaintiff's medical file, was familiar with plaintiff's history, and thoroughly examined plaintiff during a psychiatric assessment that lasted 40 to 45 minutes. Defendant argues that it was his expert medical opinion, based on his training as a psychiatrist, that plaintiff did not need highly intoxicating psychiatric medication because there was no gross evidence of psychosis or mental illness and plaintiff denied suicidal or homicidal ideation. Defendant concludes that plaintiff's disagreement with defendant's refusal to prescribe medication on February 25, 2003, was nothing more than a difference of opinion as to diagnosis and treatment and is not a basis for an Eighth Amendment violation.
II. Plaintiff's Opposition
Plaintiff's opposition consists of six pages of argument, plaintiff's declaration under penalty of perjury, and documentary exhibits numbered 1 through 12A. Plaintiff argues that defendant was deliberately indifferent to plaintiff's serious medical needs when he failed to provide appropriate medical treatment and medications. Plaintiff contends that, as a result of not receiving his medications, he was not able to control his actions and attempted suicide.
The sixth page of plaintiff's argument does not follow the first five pages but is instead the final page of the 28-page opposition.
Plaintiff denies that the examination on February 25, 2003, lasted as long as 40 to 45 minutes. Plaintiff asserts that the defendant examined him for five to seven minutes at most, denied psychiatric medications, and then excused plaintiff from his office. Plaintiff argues that no psychiatrist in the CDC system has 40 to 45 minutes to examine an inmate. He contends that interviews with psychiatrists never last more than ten minutes per inmate and that defendant's usual examination in Building 5 consisted of coming to an inmate's cell door and asking the inmate whether he was "okay" and whether he was receiving his medications.
Plaintiff argues that he told the defendant he had a medical history of treatment for paranoid schizophrenia, seizures and other medical problems, that he had not been treated for his conditions since December 2002, and that his demons were talking to him again. Plaintiff asserts that the defendant laughed at what plaintiff was saying, told plaintiff he did not look crazy, remarked that plaintiff just wanted to get high, and told plaintiff to leave without ever looking in plaintiff's file during the five- to seven-minute interview. Plaintiff reiterates that he had never seen the defendant before this examination. He contends that, if the defendant had opened plaintiff's file he would have seen plaintiff's long and continuing history of mental health problems, as well as the record of medications prescribed by psychiatric doctors at High Desert. Plaintiff contends that he tried to explain to the defendant that he had a long history of mental health problems before incarceration but defendant refused to listen.
Plaintiff concludes that defendant inflicted unnecessary and wanton pain on him by refusing medications and thereby causing him to slash his wrists. Plaintiff contends that defendant's refusal to listen and failure to study plaintiff's medical records demonstrated deliberate indifference and criminal recklessness. Plaintiff reasons in the alternative that if defendant studied the file before and during the examination, as claimed, that would prove deliberate indifference because defendant's decision to deny treatment would have been made with knowledge of plaintiff's history. Plaintiff asserts that all of his medications were renewed after the episode on February 26, 2003, and that they have been continued to the present.
In a declaration dated September 21, 2005, plaintiff declares the following facts under penalty of perjury: on February 25, 2003, he was examined by the defendant for less than seven minutes; defendant refused to listen to plaintiff and laughed when plaintiff tried to tell him how he was feeling and what he was going through; during the examination, defendant placed his feet on the desk, leaned back in his chair, told plaintiff he did not look crazy to him, started laughing, and said plaintiff did not need medications and just wanted to get high; defendant did not open plaintiff's medical file during the time plaintiff was in the office with him; the defendant denied plaintiff civil conversation and appropriate medical treatment; since the events at issue, plaintiff has continuously been on several psychiatric medications for his psychological conditions.
Plaintiff's first two exhibits appear to be offered in support of his argument regarding pre-incarceration mental health needs and medication history. Exhibit 1 appears to be an original letter addressed to plaintiff and dated November 25, 2002, from a mental health center concerning plaintiff's request for a copy of records of treatment by Dr. Lim. Exhibit 2 appears to be a copy of the second page of an examination of plaintiff on November 4, 2002, by Alan Roche, M.D. Exhibit 2 includes a section on past medical history and indicates "Significant for bipolar disease for which he takes Lithium and Senoquel [sic] and another medication that he is unaware of the name of."
Plaintiff's Exhibit 3 is a copy of a CDC medical record form imprinted with plaintiff's name. It appears that two photographs were attached to the original form, both subscribed with notations dated February 26, 2003, indicating that the photographs depict plaintiff's wrists on that date.
The Clerk has designated plaintiff's opposition as a document to be maintained on paper. The document has been placed in the court file that contains documents filed in this action prior to the court's conversion to electronic filing.
Plaintiff's Exhibit 4 is an original document signed by plaintiff and dated February 25, 2003. It appears to be comprised of notes concerning plaintiff's interview with defendant.
Plaintiff's Exhibit 5 is an original document signed by an inmate named D. Smith and dated February 28, 2003. It concerns events seen or heard by the inmate on the day plaintiff was examined by defendant. This document is not a notarized statement or a declaration under penalty of perjury. Similarly, Exhibit 5A is an original document signed by an inmate named Leslie James Jones and dated September 20, 2005. It concerns the usual length of psychiatric interviews in California prisons. This document is not a notarized statement or a declaration under penalty of perjury.
Plaintiff's Exhibits 6 through 10 are copies of documents from plaintiff's prison medical records. These copies reflect that medications were prescribed for plaintiff on February 27, 2003, and during the months thereafter. Exhibit 9 is a discharge summary reflecting that plaintiff was admitted to the emergency room on February 26, 2003, and discharged on March 4, 2003. The summary refers to plaintiff's history of polysubstance abuse, mentions medication hoarding, and reflects that plaintiff was admitted to a safety cell because he had made a significant suicidal gesture and complained of depression upon arrival at the emergency room. The summary includes the physical findings of the doctor who examined plaintiff and concludes with an impression of schizophrenia. The summary reflects that plaintiff was prescribed Lithium Carbonate and Prozac and that he was discharged from the hospital after he stabilized. Exhibit 10 is a consent form dated April 11, 2002, by which plaintiff consented to taking Prozac.
Plaintiff's Exhibit 11 consists of the first and second level responses to plaintiff's inmate appeal concerning defendant's treatment of him in February 2003. Plaintiff's appeal was granted at the first level and denied at the second level. The first-level response refers to plaintiff's allegations that defendant asked him why he had been hoarding medications and that plaintiff responded that his former cellmate had left some of his medications behind. The appeal response at the first level indicates that plaintiff was referred to California Medical Facility/Department of Mental Health on March 28, 2003, was accepted for transfer, and was transferred on April 14, 2003, for inpatient mental health treatment. The response at the second level, dated June 17, 2003, reflects that a treatment team reviewed plaintiff's file on May 21, 2003, determined that plaintiff was designated for care in the clinical case management system and was receiving mental health services at that level of care, and concluded that placement at High Desert was appropriate.
Plaintiff's Exhibit 12 is a copy of a classification chrono dated September 17, 2003, indicating that plaintiff's case was reviewed by a treatment team on September 16, 2003, and that he was retained at Mule Creek pending a DMH transfer. The document indicates that the committee reviewed plaintiff's classification in absentia due to his psychiatric instability and the fact that he was housed in a safety cell at that time.
Plaintiff's Exhibit 12A is a copy of a medical record dated March 1, 2003, noting that plaintiff presented as confused, with disorganized speech and thought process, admitted hearing voices, presented as delusional and paranoid but denied suicidal or homicidal ideation, and claimed to have a microphone in his left wrist where it was bandaged.
Under the Local Rules of Practice, a party opposing a motion for summary judgment is required to reproduce the facts contained in the moving party's statement of undisputed facts and to admit each fact that is undisputed and deny each fact that is disputed, including with each denial a citation to the evidentiary documents relied upon in support of the denial. Local Rule 56-260(b). A party opposing summary judgment is also permitted to file a concise statement of disputed facts, with citations to the record, that presents additional material facts as to which there is a genuine issue precluding summary judgment. Id. Plaintiff did not reproduce the facts contained in defendant's statement of undisputed facts and admit or deny each fact. Nor did plaintiff submit his own statement of disputed facts.
III. Defendant's Reply and Objections to Plaintiff's Evidence
Defendant notes plaintiff's failure to comply with Local Rule 56-260(b) and argues that all facts listed in defendant's statement of undisputed facts are now admitted and undisputed. Defendant argues that he is entitled to summary judgment because the undisputed facts demonstrate that he provided constitutionally adequate medical care and was not deliberately indifferent to any of plaintiff's medical needs. Citing Springate v. Weighmasters Murphy, Inc. Money Purchase Pension Plan, 217 F. Supp. 2d 1007, 1016 n. 3 (C.D. Cal. 2002), defendant contends that summary judgment may be granted on the basis of the moving party's uncontroverted statement of undisputed facts where the opposing party fails to contest the facts as required by local rule.
Defendant offers a copy of the medical record he generated after seeing plaintiff on February 25, 2003. Defendant argues that this document corroborates his declaration and shows that he thoroughly reviewed plaintiff's records and conducted a lengthy examination, as he could not have prepared such a document if the examination had lasted only five to seven minutes and he had not reviewed plaintiff's medical file.
Defendant contends that he met his initial responsibility of demonstrating the absence of a genuine issue of material fact regarding his medical treatment of plaintiff, that the burden shifted to plaintiff to establish the existence of a genuine issue as to any material fact, and that plaintiff did not meet his burden because he cited no evidence that defendant was aware of a risk of harm to plaintiff and disregarded that risk.
Defendant reviews the statements in plaintiff's declaration and notes that plaintiff does not declare that he told defendant he was suicidal and that medication stopped this problem. Defendant reasons that even if plaintiff's version of the facts as stated in his declaration were true defendant could not have been deliberately indifferent if he did not know plaintiff's history, had not seen plaintiff before, and did not know that plaintiff faced a substantial risk of harm.
Defendant asserts that plaintiff's declaration fails to dispute the following facts asserted by defendant regarding his examination of plaintiff on February 25, 2003: defendant found no evidence of psychosis or disorganization; plaintiff's speech was clear and coherent; plaintiff was oriented times three; plaintiff appeared goal directed and responsive; plaintiff's affect was appropriate; plaintiff was not experiencing mood swings; plaintiff denied suicidal ideation; plaintiff had been without medication for two to three months and had not made any suicide attempts in that time frame; plaintiff disagreed with defendant's opinion that medication was contraindicated and threatened to sue defendant and commit self-harm if defendant did not prescribe medication. Defendant concludes that, in the absence of any evidence to dispute these facts, there is no evidence to dispute defendant's medical opinion that plaintiff was not in need of psychiatric medication, and there is no evidence that defendant knew plaintiff faced a substantial risk of harm and consciously disregarded such risk. Defendant reiterates that plaintiff's mere disagreement with defendant's decision is not a basis for a finding of deliberate indifference.
The medical record submitted by defendant in rebuttal to plaintiff's argument is a CDC form titled "Chronological Interdisciplinary Progress Notes." The form is dated February 25, 2003, 1450 hours, and is signed by defendant, whose notes fill the entire page. The first line indicates that plaintiff complained of not having had medications since December. The next eleven lines record plaintiff's statements that he had been prescribed "`Lithium, Serqua or something, and Cogentin,'" had been sent to administrative segregation with a large number of black inmates because of a mistake, had a history of treatment for paranoid schizophrenia, seizures, and other medical problems, had been "taking meds all my life," admitted a history of PCP, marijuana, LSD, and other substance abuse for about 25 years, and was incarcerated for a vehicular accident with a fatality while he was "`under the influence.'"
The remaining thirteen lines of the medical record include defendant's observations, assessment, and prognosis. Defendant observed that plaintiff was oriented times three, his speech was clear and coherent, he was goal-directed and responsive, his affect was appropriate and broad in range, his mood seemed eurythmic, there was no gross evidence of psychosis or disorganization, and plaintiff denied suicidal or homicidal ideation. Defendant's review of the medication orders for plaintiff revealed that Lithium, Neurontin, and Seroquel were discontinued on January 2, 2003 due to reported hoarding. Defendant noted in brackets that "M.H. [mental health] chart entries, med clinic entries, and records room review of C-file for 128 entries do not document # of meds hoarded" but an outpatient record had an entry showing that medications had been discontinued due to hoarding. Defendant concluded that plaintiff had medication compliance issues with a history of schizophrenia, affective disorder, and polysubstance abuse. The record concludes with defendant's decision: "No reinstitution of meds @ this pt — monitor for any M.H. deterioration. Recall 6 wks." (Def.'s Reply to Pl.'s Opp'n, Ex. A.)
Defendant's objections to plaintiff's exhibits are set forth in a separate document. Defendant objects to plaintiff's Exhibits 1 and 2 on the grounds that they contain hearsay, lack foundation, and are not relevant to defendant's examination of plaintiff on February 25, 2003. Defendant objects to plaintiff's Exhibit 3 because the copies of pictures of plaintiff's wrists are not legible and the pictures lack foundation and are not relevant to this action. Defendant objects to plaintiff's Exhibit 4, the statement by plaintiff concerning the examination on February 25, 2003, because the exhibit lacks foundation, contains hearsay, and is not made under penalty of perjury. Defendant objects to plaintiff's Exhibits 5 and 5A, the statements of inmates Smith and Jones, because the exhibits lack foundation, contain hearsay, and are not made under penalty of perjury. In addition, defendant objects that inmate Jones has never been treated at High Desert State Prison and therefore any opinion concerning treatment at that institution would be speculative and lack foundation. Defendant objects to plaintiff's Exhibits 6 through 12A, the copies of medical records, on the grounds that the exhibits lack foundation, are hearsay, contain irrelevant information, have not been presented with any explanation of how they are relevant, and, in some cases, are not legible and it is impossible to determine who authored them.
IV. Plaintiff's Reply to Defendant's Reply and Objections
Plaintiff states that he does not fully understand the Local Rules and indicates that he was assisted by a knowledgeable inmate at High Desert but has only recently obtained assistance at CSP-Solano. Plaintiff notes that he is a mental patient and that some of his difficulties arise from being medicated. Plaintiff requests that the court construe his filings liberally, afford him the benefit of any doubt, and hold his pro se filings to less stringent standards than documents filed by attorneys.
Plaintiff argues that defendant's evidence does not prove that defendant provided him with psychiatric treatment consistent with community standards of care and within CDC policies and procedures. Plaintiff reiterates his contentions that the examination lasted no more than seven minutes, that defendant put his feet on the desk and laughed at plaintiff, and that defendant said plaintiff did not look crazy and only wanted the medications to get high. Plaintiff points to his own evidence that he was placed back on his medications two days after he was examined by defendant and that he has been on the medications ever since. Plaintiff argues in conclusion that, if defendant had adequately reviewed plaintiff's psychiatric file and if defendant had not been judgmental, he would have rendered adequate treatment and plaintiff's attempted suicide would not have happened.
With regard to defendant's objection to Exhibit 1, plaintiff denies that the document contains hearsay and lacks foundation. Plaintiff denies that he submitted an Exhibit 2 dated November 14, 2002, and does not respond to defendant's objections to Exhibit 2. Plaintiff contends that the photographs in Exhibit 3 do not lack foundation, are relevant, and have merit. Plaintiff admits that Exhibits 4, 5, and 5A are not sworn under penalty of perjury but asserts that he did the best he could without knowledge of legal requirements. Plaintiff asserts that Exhibit 4 does not lack foundation, is not hearsay, and has merit, that Exhibits 5 and 5A also have merit, and that inmate Jones is an expert witness based on his experience as a prisoner. With regard to the medical records in Exhibits 6 through 12A, plaintiff asserts that the records are signed by various doctors and are relevant.
Plaintiff's Exhibit 2 is dated November 4, 2002.
STANDARDS FOR SUMMARY JUDGMENT PURSUANT TO RULE 56
Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party
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.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. 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. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. Summary judgment should be granted "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden shifts to the opposing party to establish that a genuine issue as to any material fact does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits and/or admissible discovery material in support of the contention that a dispute exists.See Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 586 n. 11. The party opposing summary judgment must show that any fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987);Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In trying to establish the existence of a factual dispute, the party opposing summary judgment need not establish a material issue of fact conclusively in his or her 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." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments).
The evidence of the party opposing summary judgment is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the party opposing summary judgment. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587. Inferences will not be drawn out of the air, however; it is the opposing party's obligation to produce a factual predicate from which an inference may be drawn.See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). The opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
On June 3, 2004, the court advised plaintiff of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
LEGAL STANDARDS APPLICABLE TO PLAINTIFF'S CLAIMS
The Civil Rights Act under which plaintiff is proceeding provides that
[e]very person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.42 U.S.C. § 1983. The statute requires an actual connection or link between the actions of the defendant and the deprivation alleged to have been suffered by the plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person `subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
In the present action, plaintiff's claims arise under the Eighth Amendment. The unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986);Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). In order to prevail on a claim of cruel and unusual punishment, a prisoner must allege and prove that objectively he suffered a sufficiently serious deprivation and that subjectively prison officials acted with deliberate indifference in allowing or causing the deprivation to occur. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991).
Where a prisoner's Eighth Amendment claims arise in the context of medical care, the prisoner must allege and prove "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. at 106. Such a claim has two elements: "the seriousness of the prisoner's medical need and the nature of the defendant's response to that need." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991). A medical need is serious "if the failure to treat the prisoner's condition could result in further significant injury or the `unnecessary and wanton infliction of pain.'" McGuckin, 974 F.2d at 1059 (quoting Estelle v. Gamble, 429 U.S. at 104). Indications of a serious medical need include "the presence of a medical condition that significantly affects an individual's daily activities." Id. at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
If a prisoner establishes the existence of a serious medical need, he or she must then show that prison officials responded to the serious medical need with deliberate indifference. Farmer, 511 U.S. at 834. In general, deliberate indifference may be shown when prison officials deny, delay, or intentionally interfere with medical treatment, or it may be shown by the way in which prison officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988). Before it can be said that a prisoner's civil rights have been abridged with regard to medical care, however, "the indifference to his medical needs must be substantial. Mere `indifference,' `negligence,' or `medical malpractice' will not support this cause of action."Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06). Deliberate indifference is "a state of mind more blameworthy than negligence" and "requires `more than ordinary lack of due care for the prisoner's interests or safety.'" Farmer, 511 U.S. at 835 (quoting Whitley, 475 U.S. at 319).
Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S. at 104-05. To establish a claim of deliberate indifference arising from delay, a plaintiff must show that the delay was harmful. See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994) (per curiam); McGuckin v. Smith, 974 F.2d at 1059; Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989); Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam).
Mere differences of opinion between a prisoner and prison medical staff as to proper medical care do not give rise to a § 1983 claim. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).
DISCUSSION
Plaintiff has not complied with the requirements of Local Rule 56-260(b). Defendant contends that all facts contained in defendant's statement of undisputed facts are admitted and undisputed due to plaintiff's failure to comply with the rule. Defendant argues that summary judgment should be granted on the basis of defendant's uncontroverted statement of undisputed facts.
Defendant's reliance on Springate v. Weighmasters Murphy, Inc. Money Purchase Pension Plan, 217 F. Supp. 2d 1007, 1016 n. 3 (C.D. Cal. 2002), is misplaced. In that case, summary judgment was granted for the plaintiff on the basis of plaintiff's uncontroverted statement of undisputed facts. The defendants, who were represented by counsel, had failed to contest the plaintiff's facts in the manner required by Rule 56-2 of the Local Rules of the United States District Court for the Central District of California. The rule provided that "the Court will assume that the material facts as claimed and adequately supported by the moving party are admitted to exist without controversy except to the extent that such material facts are (a) included in the `Statement of Genuine Issues' and (b) controverted by declaration or other written evidence filed in opposition to the motion." Id. In contrast, Rule 56-260(b) of the Local Rules of the United States District Court for the Eastern District of California does not require or even permit the court to assume that the moving party's facts are admitted when the opposing party fails to reproduce the facts and admit or deny each of them.
Reliance on Springate is also misplaced because in this case the party opposing summary judgment, unlike the parties opposing summary judgment in the Central District case, is a plaintiff proceeding pro se. District courts in this circuit are required to advise pro se plaintiffs of the requirements for opposing a motion for summary judgment made by defendants. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). By order filed June 3, 2004, the pro se plaintiff in this case was advised of the briefing and evidentiary requirements and was cautioned that defendants' evidence may be taken as the truth and that defendants' motion for summary judgment may be granted "[i]f plaintiff fails to contradict the defendants' evidence with counteraffidavits or other admissible evidence." Plaintiff was not advised that facts listed in a defendant's statement of undisputed facts may be deemed admitted if he fails to comply with the requirements of Local Rule 56-260(b).
Accordingly, the facts set forth in defendant's statement of undisputed facts will not be deemed admitted except to the extent that the pro se plaintiff has failed to contradict defendant's evidence with admissible evidence.
The undersigned finds that defendant has borne his initial responsibility of informing the court of the basis for his motion and of presenting evidence which he believes demonstrates the absence of a genuine issue of material fact. Defendant's evidence establishes that as of February 25, 2003, he had been licensed as a medical doctor and psychiatrist in California for over twenty years, he reviewed plaintiff's medical file on February 25, 2003, and conducted a thorough examination, and he formed the opinion that plaintiff was not in need of psychiatric medication at that time. Defendant's evidence demonstrates that his opinion was based on the following facts: plaintiff's medications had been discontinued on January 2, 2003, due to reported hoarding of medications; plaintiff had not received psychiatric medication since December 2002 when he was placed in administrative segregation; plaintiff had a long history of abusing various substances; when defendant examined plaintiff, he found no gross evidence of psychosis or disorganization; plaintiff was oriented, his speech was clear and responsive, his affect was appropriate, and he appeared goal directed and responsive; plaintiff's interaction with defendant was highly cognitive and not suggestive of psychotic symptoms; plaintiff did not state that he was experiencing extreme mood swings; plaintiff denied suicidal and homicidal ideation. On the basis of these facts, defendant decided not to reinstate the discontinued psychiatric medications but to schedule plaintiff for a further appointment in six weeks in order to monitor plaintiff for mental health deterioration. When defendant advised plaintiff of his decision and treatment plan, plaintiff threatened to sue defendant and commit self-harm. Defendant explained to plaintiff that past conditions and problems did not justify receiving similar treatment and medications absent a diagnosis showing that the same treatment and medications were still warranted. Defendant also explained that consuming the requested psychiatric medications would make plaintiff feel drugged or high if he did not have the clinical conditions for which those medications are indicated.
Defendant has supported his contention that he did not believe plaintiff faced any substantial risk of harm by not being prescribed medications that had been discontinued two or three months earlier, particularly when supplying such medications was contraindicated by a history of substance abuse. In the absence of evidence that defendant was aware of and disregarded a substantial risk of harm, defendant has carried his initial burden of demonstrating entitlement to judgment in his favor on plaintiff's Eighth Amendment claim.
The burden shifts to plaintiff to establish the existence of a genuine issue of material fact. After careful consideration of plaintiff's opposition, the undersigned finds that plaintiff has offered evidence to dispute the following portions of defendant's Undisputed Fact 4: (1) the statement that defendant performed his psychiatric assessment and examination of plaintiff on February 25, 2003, consistent with the community standards of care for psychiatrists and with CDC policies and procedures; (2) the statement that defendant reviewed plaintiff's file before and during the examination; and (3) the statement that the examination lasted approximately 40-45 minutes. Plaintiff disagrees with defendant's expert opinion as expressed in defendant's Undisputed Fact 8 but has offered no expert opinion to rebut defendant's. Plaintiff has offered neither argument or evidence that disputes defendant's Undisputed Facts 1, 2, 3, 5, 6, 7, and 9.
After careful consideration of the evidence submitted by plaintiff with his opposition, the undersigned finds that plaintiff's declaration dated September 21, 2005, is the only admissible evidence relevant to the disputed portions of defendant's Undisputed Fact 4. In the declaration, plaintiff declares under penalty of perjury that he was examined for less than seven minutes and that defendant did not open plaintiff's medical file during the time plaintiff was in the office. (Pl.'s Opp'n to Def.'s Mot. for Summ. J., Decl. of Michael Anderson dated Sept. 21, 2005, at 1-2.)
Although plaintiff has also offered an inmate statement concerning the length of psychiatric appointments in California prisons in general, the Jones statement is neither notarized nor sworn under penalty of perjury, and it is not based on personal knowledge of psychiatric examinations at High Desert State Prison or personal knowledge of the specific psychiatric examination at issue in this case. (See Pl.'s Opp'n, Ex. 5A.) In addition, plaintiff has not demonstrated that inmate Jones qualifies as an expert witness. The Smith statement submitted by plaintiff is neither notarized nor sworn under penalty of perjury, and it contains no information about the length of defendant's examination of plaintiff, defendant's review of plaintiff's file, or the community standards of care. (See id., Ex. 5.) Plaintiff's notes dated February 25, 2003, are neither notarized nor sworn under penalty of perjury. (See id., Ex. 4.) While plaintiff's contemporaneous notes are silent about the length of the examination on February 25, 2003, the notes describe a conversation that appears to have exceeded seven minutes.
The remainder of plaintiff's evidence concerns facts that are not in dispute: plaintiff received treatment for mental health needs prior to incarceration (Exhibits 1 and 2); plaintiff cut his wrists on February 26, 2003 (Exhibit 3); psychiatric medicines were prescribed for plaintiff after February 25, 2003 (Exhibits 6-10 and 12A); plaintiff pursued an inmate appeal concerning defendant's examination (Exhibit 11); plaintiff had a period of psychiatric instability in September 2003 (Exhibit 12). Plaintiff has not offered evidence that shows what pre-incarceration medical records, if any, were in his medical file as of February 25, 2003, when defendant reviewed the file. Plaintiff's evidence contradicts plaintiff's assertion that "[i]mmediately after Plaintiff's episode [on February 26, 2003,] all his medications were renewed and have continued to this present time." (Pl.'s Opp'n at 5.) The evidence before this court shows that prior to December 31, 2002, plaintiff was prescribed Lithium, Seroquel, and Cogentin. Plaintiff's exhibits concerning treatment after February 26, 2003, show that his Lithium prescription was reinstated on February 27, 2003, but the exhibits do not show that his Seroquel and Cogentin prescriptions were ever reinstated.
In light of plaintiff's pro se status, the undersigned has examined plaintiff's complaint, which he signed under penalty of perjury, and the exhibits attached to the complaint. The undersigned finds that the complaint contains no allegation concerning the length of the examination on February 25, 2003, but it does contain an allegation that defendant "never open my file in front of me." (Compl., Attachs. at 2.) The exhibits to the complaint are for the most part duplicates of the exhibits offered in support of plaintiff's opposition to summary judgment, along with a copy of the claim plaintiff submitted to the state board of control and copies of various articles of a general nature concerning the treatment of manic depression.
"A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact" precluding summary judgment. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). See also Summers v. A. Teichert Son, Inc., 127 F.3d 1150, 1152 (9th Cir. 1997). On summary judgment the court is not to weigh the evidence or determine the truth of the matters asserted but must only determine whether there is a genuine issue of material fact that must be resolved by trial. See Summers, 127 F.3d at 1152. Nonetheless, in order for any factual dispute to be genuine, there must be enough doubt for a reasonable trier of fact to find for the plaintiff in order to defeat a defendant's summary judgment motion. See Addisu, 198 F.3d at 1134.
Plaintiff has provided nothing more than a scintilla of admissible evidence concerning the length of the examination conducted by defendant on February 25, 2003. That scintilla of evidence consists of plaintiff's own testimony uncorroborated by any documentary evidence. The medical record generated by defendant on February 25, 2003, and plaintiff's contemporaneous notes, his inmate appeal, and his allegations concerning his interview with defendant all support an inference that more than seven minutes were required for defendant to review the files prior to the interview, to converse with plaintiff while observing him, and to prepare the medical record that was generated. The dispute over the length of the examination is not sufficiently probative to constitute a genuine issue of material fact that must be resolved by a trial. Whether the examination lasted 5 minutes or 45 minutes, plaintiff has not contradicted defendant's evidence that he reviewed plaintiff's medical and central files, interacted with plaintiff and observed him, formed an opinion that was based on the files, his observations, and his training, and wrote detailed notes for the file.
Plaintiff has also provided nothing more than a scintilla of admissible evidence concerning defendant's review of the file while plaintiff was in the office with defendant. That scintilla of evidence consists of plaintiff's own testimony. The dispute over when defendant reviewed the file is not sufficiently probative to constitute a genuine issue of material fact that must be resolved by a trial. Regardless of when defendant reviewed plaintiff's files, defendant has established that he did review the files, raised issues arising from information in the files, and based his decision on what he found in the files as well as on his observations and training.
No evidence offered by plaintiff supports a conclusion that defendant acted with the substantial indifference required to support an Eighth Amendment claim of constitutionally inadequate medical or mental health care. Such indifference is an element essential to plaintiff's constitutional claim, and plaintiff's complete failure of proof concerning the subjective element of his claim renders all other facts immaterial. Plaintiff has demonstrated nothing more than dissatisfaction with the defendant's bedside manner and a layperson's disagreement with a doctor's decision on how to treat a patient. Summary judgment should be entered for defendant.
Accordingly, IT IS RECOMMENDED that:
1. Defendant's September 1, 2005 motion for summary judgment be granted; and
2. This action be dismissed.
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 twenty 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. A document containing objections should be titled "Objections to Findings and Recommendations." Any reply to objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may, under certain circumstances, waive the right to appeal the District Court's order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).