Opinion
No. C 09-1525 CW (PR)
03-14-2012
MICHAEL ISRAEL, Plaintiff, v. CHARLES D. LEE, M.D., et al., Defendants.
ORDER DENYING AS MOOT PLAINTIFF'S
MOTION TO STRIKE PORTIONS OF
DEFENDANT RODRIGUEZ'S DECLARATION;
DENYING PLAINTIFF'S MOTION TO
COMPEL DISCOVERY; DISMISSING CLAIMS
AGAINST DEFENDANT MASTO; AND
GRANTING DEFENDANTS RODRIGUEZ'S AND
LEE'S MOTION FOR SUMMARY JUDGMENT
(Docket nos. 39, 40, 46)
INTRODUCTION
Plaintiff Michael Isreal, an inmate currently incarcerated at the California Substance Abuse Treatment Facility (CSATF), originally filed this civil rights complaint in the form of a petition for a writ of habeas corpus. On August 24, 2009, the Court issued an Order of Dismissal and granted leave to amend with instructions for Plaintiff to file his complaint on the correct civil rights complaint form, to name as a defendant each person who violated his civil rights with an explanation of how each defendant violated his rights, and to provide proof of exhaustion of administrative remedies.
On September 25, 2009, Plaintiff filed a civil rights complaint alleging a claim of deliberate indifference to his serious medical needs while he was incarcerated at Salinas Valley State Prison (SVSP) in 2007. Plaintiff alleges Defendants Natividad Medical Center Doctor Daniel Masto, SVSP Health Care Manager Charles D. Lee and SVSP Nurse Practitioner Robin Rodriguez failed to provide proper treatment following his August 3, 2007 surgical hemorrhoidectomy and proctosigmoidoscopy, performed by Defendant Masto.
Hemorrhoidectomy is the surgical removal of hemorrhoids, which are enlarged or dilated veins located in and around the rectum and anus. Proctosigmoidoscopy is a procedure for examination of the anus, rectum, and distal sigmoid colon (the last segment of the colon before the rectum begins).
Specifically, Plaintiff maintains that after his surgery on August 30, 2007, Defendants Rodriguez, Lee and Masto acted with deliberate indifference to his medical needs as follows:
(1) Defendant Rodriguez refused to comply with Defendant Masto's post-operation orders, which caused Plaintiff's post-operation wounds to re-open and become infected; (2) Defendant Rodriguez administered the incorrect medication to Plaintiff for twenty-one days, causing Plaintiff considerable pain and suffering;
(3) Defendant Rodriguez performed an invasive procedure using a catheter in an unsanitary office instead of in a facility clinic, which led to Plaintiff contracting an infection; (4) Defendants Rodriguez's and Lee's actions, inactions, and refusal to contact Defendant Masto regarding his post-operation order following Plaintiff's allegedly abnormal recovery "caused Plaintiff unnecessary and wanton infliction of pain and suffering";
(5) Defendant Lee's policy prohibits inmates from recovering from surgical procedures in prison hospitals, and he did nothing despite Plaintiff's complaints; and (6) Defendant Masto mis-diagnosed Plaintiff, did not successfully carry out Plaintiff's hemorrhoidectomy, and did not do a follow up on the surgery. As a result, Plaintiff suffered continued pain, difficulty in voiding as well as rectal bleeding.
In its May 18, 2010 Order of Service, the Court conducted an initial screening of Plaintiff's complaint pursuant to 28 U.S.C. § 1915A(a) and found cognizable his Eighth Amendment claims against Defendants Rodriguez and Lee, alleging that these Defendants were deliberately indifferent to Plaintiff's serious medical needs. (May 18, 2010 Order at 5.) The Court dismissed Plaintiff's deliberate indifference claim against Defendant Masto with leave to amend for failure to state a cognizable Eighth Amendment claim. Plaintiff was given until June 18, 2010 to file an amendment to the complaint to reassert his claim against Defendant Masto if he could, in good faith, allege a valid basis for liability. Plaintiff was informed that the failure to do so would result in the dismissal of his Eighth Amendment claim against Defendant Masto without prejudice. To date, Plaintiff has not filed an amendment to the complaint; therefore, all claims against Defendant Masto will be dismissed with prejudice, as explained below.
On July 28, 2010, Defendant Lee submitted his answer. On August 17, 2010, Defendant Rodriguez submitted his answer.
On March 15, 2011, Defendants Rodriguez and Lee moved for summary judgment on the grounds that Plaintiff raises no issue as to any material fact, that they are entitled to judgment as a matter of law and that they are entitled to qualified immunity. On May 16, 2011, Plaintiff filed an opposition to Defendants' motion for summary judgment and a motion to strike Defendant Rodriguez's declaration as Plaintiff contends that it was submitted in bad faith. On June 8, 2011, Defendants filed their reply.
On December 22, 2011, Plaintiff filed a motion to compel discovery. On January 6, 2012, Defendants filed an opposition to Plaintiff's motion. On January 23, 2012, Plaintiff filed a reply to Defendants' opposition.
For the reasons discussed below, the Court DENIES as moot Plaintiff's motion to strike portions of Defendant Rodriguez's declaration; DENIES Plaintiff's motion to compel; DISMISSES with prejudice all claims against Defendant Masto; and GRANTS Defendants Rodriguez's and Lee's motion for summary judgment.
DISCUSSION
I. Plaintiff's Motion to Compel Discovery
Plaintiff has filed a motion to compel discovery (docket no. 46). Plaintiff has not filed a motion under Rule 56(d) of the Federal Rules of Civil Procedure to defer the resolution of the summary judgment motion pending resolution of his discovery requests.
Rule 56(d) provides a procedure by which a party may avoid summary judgment when such party has not had sufficient opportunity to discover affirmative evidence necessary to oppose the motion. See Garrett v. San Francisco, 818 F. 2d 1515, 1518 (9th Cir. 1987).
Garrett cites to Rule 56(f), the subsection in which the provisions pertaining to a party's inability to present facts essential to justify its opposition formerly were set forth; as of December 1, 2010, the applicable provision is Rule 56(d). See Fed. R. Civ. P. 56.
Even if Plaintiff had filed a motion under Rule 56(d), there is no indication that the requested discovery would enable Plaintiff to successfully oppose the motion for summary judgment as to the deliberate indifference claim against Defendants. Plaintiff states in his discovery motion that Defendants have failed to provide answers to his interrogatories despite his discovery requests. (Pl.'s Mot. Compel at 1.) As the Ninth Circuit stated in Continental Maritime v. Pacific Coast Metal Trades, 817 F.2d 1391, 1395 (9th Cir. 1987), "the party seeking a continuance bears the burden to show what specific facts it hopes to discover that will raise an issue of material fact." Plaintiff has not met this burden. The requested documents are sought without explanation of what specific, material facts these documents will likely disclose. Plaintiff does not explain in his motion to compel what specific facts he hopes to discover that will raise an issue of material fact. Plaintiff also fails to demonstrate how "additional discovery would have revealed specific facts precluding summary judgment." See Tatum v. City and County of S.F., 441 F.3d 1090, 1101 (9th Cir. 2006). The Court has reviewed the discovery requests and responses, and it does not appear that any further responses that could be required would affect the ruling on this motion. Thus, Plaintiff has not met his burden under Rule 56(d). Therefore, the Court will not defer ruling on the summary judgment motion. See Continental Maritime, 817 F.2d at 1395; Tatum, 441 F.3d at 1101. Accordingly, Plaintiff's motion to compel discovery (docket no. 46) is DENIED.
The Court will now address the merits of the Defendants' motion for summary judgment. II. Defendants' Motion for Summary Judgment
A. Standard of Review
Summary judgment is properly granted when no genuine and disputed issues of material fact remain and when, viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987).
The moving party bears the burden of showing that there is no material factual dispute. Therefore, the Court must regard as true the opposing party's evidence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. The Court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is based on personal knowledge and sets forth specific facts admissible in evidence. Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995).
Material facts which would preclude entry of summary judgment are those which, under applicable substantive law, may affect the outcome of the case. The substantive law will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where the moving party does not bear the burden of proof on an issue at trial, the moving party may discharge its burden of showing that no genuine issue of material fact remains by demonstrating that "there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. The burden then shifts to the opposing party to produce "specific evidence, through affidavits or admissible discovery material, to show that the dispute exists." Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), cert. denied, 502 U.S. 994 (1991). A complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. Celotex, 477 U.S. at 323.
B. Evidence Considered
A district court may only consider admissible evidence in ruling on a motion for summary judgment. See Fed. R. Civ. P. 56(e); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002).
In support of Defendants' motion for summary judgment, declarations have been filed by Custodian of Medical Records Deborah Christie, Defendant Rodriguez and Defendants' attorney, Matthew Roman, Esq.
Defendant Rodriguez has submitted two declarations. However, in this Order, the Court only cites to Defendant Rodriguez's declaration attached to the motion for summary judgment.
Plaintiff verified his complaint on September 22, 2009 by signing it under penalty of perjury. Plaintiff submitted his opposition to Defendants' motion for summary judgment and his motion to strike portions of Defendant Rodriguez's declaration on May 10, 2011. Plaintiff claims that the Court should strike portions of Defendant Rodriguez's declaration, stating:
In paragraph "2." And "4." Defendant Rodriguez swears that Dr. Masto's outpatient orders/post-ops were not available for her to review on August 30, 2007 to September 5, 2007. Defendant Rodriguez and her lawyer after reviewing Plaintiff[']s complaint and medical records had to know and should have known that she had signed Dr. Masto post ops order on August 30, 2007; See Exhibit-A, which represent four pages of Dr. Masto['s] outpatient orders that Defendant Rodriguez had reviewed, ignored and signed off on on August 30, 2007 and August 31, 2007. Which establishes that she knew she was not to give Plaintiff codeine. Nor wait 20 days to give Plaintiff laxative. See Exhibit-B.(Pl.'s Opp'n and Mot. to Strike at 3.) Plaintiff's allegations in his opposition and motion to strike are not verified in conformity with 28 U.S.C. § 1746 because Plaintiff does not assert any of these statements under "penalty of perjury." Meanwhile, Attorney Roman has submitted a declaration asserting that Defendant Rodriguez did not sign Dr. Masto's "post ops order on August 30, 2007," stating:
The relevant medical records, submitted as exhibits to the declaration of Health Records Technician Deborah Christie, were marked with "Post-It" tabs on each page . . . . [¶] The tabs were placed on the documents to mark them as the most relevant of the plaintiff's medical records, which include hundreds of pages of documents. The tabs were left on these documents as a result of a simple administrative error. [¶] The document reviewed by defendant nurse Rodriguez did not contain the tabs, and Nurse Rodriguez was able to see the note in its entirety. Per the declaration of Nurse Rodriguez, submitted herewith, the note is not in her handwriting, nor does it contain her signature.(Roman Decl. ¶ 3-5, Jun. 8, 2011.) In an abundance of caution, the Court will not consider the portions of Defendant Rodriguez's declaration alleged as having been made in bad faith; therefore, it DENIES Plaintiff's motion to strike as moot. Specifically, the Court will not consider the last sentences of paragraphs two and four of Defendant Rodriguez's declaration, alleging that Defendant Masto's Report was not available for Defendant Rodriguez to review when she prescribed Acetaminophen with Codeine on August 30, 2007 and September 5, 2007.
The Court is not considering the contents of Plaintiff's opposition, except for certain statements in his motion to strike relevant portions of Defendant Rodriguez's declaration. While not submitted under penalty of perjury, the Court will consider these statements in Plaintiff's motion so as to understand the complete factual circumstances.
Where, as here, Plaintiff has not filed a verified opposition to the motion for summary judgment, the Court may treat the allegations in a verified complaint as an opposing affidavit to the extent such allegations are based on Plaintiff's personal knowledge and set forth specific facts admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995) (treating a plaintiff's verified complaint as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746, he stated under penalty of perjury that contents were true and correct, and allegations were not based purely on his belief but on his personal knowledge).
Therefore, for the purposes of resolving the motion for summary judgment, the Court will treat Plaintiff's complaint as an affidavit in opposition to Defendants' motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. See Schroeder, 55 F.3d at 460 & nn.10-11.
C. Injunctive Relief Claims
Plaintiff seeks both injunctive relief and money damages. The jurisdiction of the federal courts depends on the existence of a "case or controversy" under Article III of the Constitution. PUC v. FERC, 100 F.3d 1451, 1458 (9th Cir. 1996). A claim is considered moot if it has lost its character as a present, live controversy, and if no effective relief can be granted: Where the question sought to be adjudicated has been mooted by developments subsequent to filing of the complaint, no justiciable controversy is presented. See Flast v. Cohen, 392 U.S. 83, 95 (1968). Where injunctive relief is involved, questions of mootness are determined in light of the present circumstances. See Mitchell v. Dupnik, 75 F.3d 517, 528 (9th Cir. 1996).
When an inmate has been transferred to another prison and there is no reasonable expectation nor demonstrated probability that he will again be subjected to the prison conditions from which he seeks injunctive relief, the claim for injunctive relief should be dismissed as moot. See Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th Cir. 1995). A claim that the inmate might be re-transferred to the prison where the injury occurred is too speculative to overcome mootness. Id.
When Plaintiff filed his complaint, he was incarcerated at SVSP. He alleged unconstitutional conditions of confinement during the period of his confinement at SVSP in 2007. Plaintiff sought injunctive relief to remedy these alleged injuries. On June 3, 2010, Plaintiff informed the Court he had been transferred to the California Correctional Institution, and thereafter, to High Desert State Prison (HDSP). On March 7, 2011, Plaintiff notified the Court that he was again transferred to CSATF. Because Plaintiff has not been incarcerated at SVSP since at least June, 2010, to the extent he seeks injunctive relief from the conditions of his confinement at SVSP those claims are DISMISSED as moot. The Court proceeds to resolve Defendants' motion for summary judgment as to Plaintiff's remaining claims for damages.
Should Plaintiff seek to allege that some or all of his claims extend to the conditions of his confinement at either HDSP in Susanville or CSATF in Corcoran, those claims must be brought in a separate lawsuit in the United States District Court for the Eastern District of California, the proper venue for claims arising in Lassen County, where Susanville is located, and in Kings County, where Corcoran is located. See 28 U.S.C. § 1391(b); 28 U.S.C. § 84(d).
D. Deliberate Indifference Claim
Deliberate indifference to a prisoner's serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). A determination of "deliberate indifference" involves an examination of 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. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). 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. (citing Estelle, 429 U.S. at 104). A prison official is deliberately indifferent if he knows a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only "be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists," but "must also draw the inference." Id. Consequently, in order for deliberate indifference to be established, there must exist both a purposeful act or failure to act on the part of the defendant and harm resulting therefrom. See McGuckin, 974 F.2d at 1060. If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk. Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002).
A claim of medical malpractice or negligence is insufficient to make out a violation of the Eighth Amendment. McGuckin, 974 F.2d at 1059; Toguchi v. Chung, 391 F.3d 1051, 1130 (9th Cir. 2004). Nor does a difference of opinion between a prisoner-patient and prison medical authorities regarding proper treatment amount to deliberate indifference. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). A mere difference in medical opinion is insufficient to support a claim for deliberate indifference. See Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). In particular, a plaintiff's opinion that medical treatment was unduly delayed does not, without more, state a claim of deliberate indifference. Shapely v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). Rather, in order to prevail on a claim based on delayed treatment, a plaintiff must show that the course of treatment the doctors chose was medically unacceptable under the circumstances, that such treatment was chosen in conscious disregard of an excessive risk to the plaintiff's health and that the delay resulted in harm to the plaintiff. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).
In determining whether a deprivation of a basic necessity is sufficiently serious to satisfy the objective component of an Eighth Amendment claim, a court must consider the circumstances, nature and duration of the deprivation. Id. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). With respect to the subjective component, the requisite state of mind depends on the nature of the claim. In prison-conditions cases, the necessary state of mind is one of "deliberate indifference." See, e.g., Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994) (outdoor exercise); Farmer, 511 U.S. at 834 (inmate safety); Estelle, 429 U.S. at 104 (inmate health); Wilson, 501 U.S. at 302-03 (general conditions of confinement).
Deliberate indifference describes a state of mind more blameworthy than negligence. See Farmer, 511 U.S. at 835 (citing Estelle, 429 U.S. at 104). Neither negligence nor gross negligence will constitute deliberate indifference. See Farmer, 511 U.S. at 835-36 & n.4; see also Estelle, 429 U.S. at 106 (establishing that deliberate indifference requires more than negligence).
The Court finds that Plaintiff has failed to raise a triable issue as to whether Defendants Rodriguez and Lee acted with deliberate indifference to his medical needs. To survive the summary judgment motion, Plaintiff must raise a triable issue of fact as to both the objective and subjective prongs of the deliberate indifference analysis.
Viewing the evidence in the light most favorable to Plaintiff, there is no triable issue because there is no evidence that Defendants acted with a conscious disregard for Plaintiff's health, that is, that they were, subjectively, deliberately indifferent to a risk to Plaintiff's medical needs, as explained below.
1. Defendant Rodriguez
a. Facts
Plaintiff's medical records indicate a history of chronic hemorrhoids with bleeding and prolapse. (Christie Decl., Ex. A., Dec. 8, 2010.)
Rectal "prolapse" occurs when the tissue that lines the rectum falls down into or protrudes through the anal opening.
On June 19, 2007, Defendant Rodriguez, Plaintiff's Primary Care Provider (PCP), examined Plaintiff regarding his chronic hemorrhoids. (Id., Ex. B; Rodriquez Decl. at 2:1-2.) Defendant Rodriguez's notes indicate that Plaintiff's hemorrhoids were not being relieved through the use of laxatives and suppositories. (Christie Decl., Ex. B.) Defendant Rodriguez subsequently referred Plaintiff to Defendant Masto, a physician who specialized in general surgery at the Natividad Medical Center. (Id.)
On August 1, 2007, Defendant Masto examined Plaintiff and indicated in his report that Plaintiff was referred to him because of "hemorrhoids of five years duration." (Id., Ex. C at 1.) Defendant Masto noted that, while Plaintiff did experience some bleeding both in the toilet bowl and on the toilet tissue, Plaintiff believed that there was "probably a cup of blood every time he ha[d] a bowel movement." (Id.) Defendant Masto observed that Plaintiff has a tendency to constipation and has associated pain and intermittent prolapse. (Id.) During the examination, Defendant Masto also noted that Plaintiff had an enlarged prostate, and internal and external hemorrhoids; however, there was no bleeding at the time of the examination. (Id. at 2.) Defendant Masto recommended that Plaintiff undergo both a hemorrhoidectomy and a proctosigmoidoscopy. (Id. at 2.) Defendant Masto provided Plaintiff with the following informed consent information regarding the hemorrhoidectomy:
[Plaintiff] understands that healing will take 4-6 weeks. He also understands that he will need to take Sitz baths for 10-15 minutes 3-4 times a day. He will require hemorrhoidal ointment, and it is imperative that he be on a regimen of stool softeners and laxatives as needed, since constipation will be a real problem after surgery. If he doesn't control his constipation problem, the hemorrhoids and he will have a similar problem as he has now. The patient understands these things and is agreeable to surgery.(Id. (footnote added).)
A sitz bath is a warm water bath used for healing or cleansing purposes. The water may contain medication and the baths are often recommended to relieve pain and speed healing after a hemorrhoidectomy.
On August 30, 2007, Defendant Masto operated on Plaintiff and performed both the hemorrhoidectomy and proctosigmoidoscopy. (Id., Ex. D at 1.) Defendant Masto's "Operative Report" indicated that the largest hemorrhoidal mass was located on the right sidewall, and that there were three hemorrhoidal masses present. (Id. at 1-2.) According to Defendant Masto's report, the three hemorrhoidal masses were "resected," leaving skin bridges between the masses. (Id. at 2.) After the hemorrhoidectomy was completed, Defendant Masto performed the proctosigmoidoscopy without incident. (Id.) Defendant Masto's report indicates that Plaintiff tolerated the procedure, and was sent to the postanasthetic recovery room following the surgery. (Id)
Resected means removed.
The "Outpatient Doctors['] Orders" given at the Natividad Medical Center recommended the use of sitz baths, hemorrhoidal ointment, stool softener, laxatives and an analgesia such as Percocet or Vicodin. (Id., Ex. E at 1.) Defendant Masto recommended against using Codeine as it causes constipation. (Id.)
On August 30, 2007, shortly after his surgical hemorrhoidectomy, Plaintiff returned from Natividad Medical Center to SVSP. (Rodriguez Decl. 2:1-2, Mar. 14, 2011.) Subsequently, SVSP Physician Duc Nguyen prepared a second post-surgery form recommending the use of sitz baths, hemorrhoidal ointment, and stool softeners, the resumption of regular medications and the removal of anal dressing and packing during the first sitz bath. (Christie Decl., Ex. F at 1.)
Also on August 30, 2007, upon his return to SVSP, Defendant Rodriguez examined Plaintiff. (Rodriguez Decl. 2:1-2.) Plaintiff complained of excruciating pain and indicated that he had not urinated since his return to SVSP. (Id. at 2:2-4.) Defendant Rodriguez ordered that a straight catheter be inserted to assist Plaintiff with urinating, but he was still unable to urinate. (Id. at 2:3.) Plaintiff alleges that Defendant Rodriguez performed an invasive procedure using a catheter in an unsanitary office instead of a facility clinic, which caused Plaintiff to contract an infection. (Compl. at 3.) Defendant Rodriguez subsequently prescribed Acetaminophen with Codeine. (Rodriguez Decl. 2:4.; Christie Decl., Ex. G at 1.) Plaintiff claims that Defendant Masto's report -- recommending against using Codeine -- was available for Defendant Rodriguez to review before she prescribed Acetaminophen with Codeine on August 30, 2007. (Pl.'s Opp'n and Mot. to Strike at 3.)
As explained above, Plaintiff's allegations in his motion to strike are not submitted under penalty of perjury; therefore, the Court only includes these statements in order to present a complete factual background.
Dr. Nguyen's August 30, 2007 physician order also prescribed the use of Acetaminophen with Codeine as needed for ten days and Hydrocortizone cream as needed for thirty days. (Christie Decl., Ex. H at 1.)
On August 31, 2007, Defendant Rodriguez examined Plaintiff in response to continued complaints regarding pain and difficulty in voiding. (Id., Ex. I at 1.) Defendant Rodriguez noted that the packing was removed from Plaintiff's rectum during his first sitz bath. (Id.) Defendant Rodriguez also ordered that Plaintiff use hemorrhoidal ointment (Anusol). (Id. at 3.)
On September 4, 2007, SVSP Physician Robert Bowman discontinued Plaintiff's prescription of Acetaminophen with Codeine. (Id., Ex. J at 1.) Dr. Bowman subsequently prescribed Vicodin four times per day for seven days, and triple the amount of antibiotic ointment to the anal area three times per day for fourteen days. (Id. at 1.) Dr. Bowman also ordered Plaintiff a thirty-day chrono for daily use of the disability shower. (Id. at 2.)
A "chrono" is a form that allows prisoners to request certain medical accommodations as deemed necessary by medical staff.
On September 5, 2007, while Defendant Rodriguez was at another SVSP medical clinic, she was informed that Plaintiff was experiencing pain and that the Vicodin prescribed by Dr. Bowman was unavailable. (Rodriguez Decl. 2:10-12.) Defendant Rodriguez subsequently faxed an order prescribing Acetaminophen with Codeine. (Id. at 2:12-13.) Again, Plaintiff claims that Defendant Rodriguez had the opportunity to review Defendant Masto's Report recommending against using Codeine before she prescribed Acetaminophen with Codeine on September 5, 2007. (Pl.'s Opp'n and Mot. to Strike at 3.)
On September 12, 2007, Defendant Rodriguez prescribed Senekot laxatives twice per day for five days. (Christie Decl., Ex. K at 1.) In the same order, Defendant Rodriguez also prescribed Ibuprofen to be taken twice per day for fourteen days. (Id)
On September 18, 2007, Defendant Rodriguez examined Plaintiff after he complained of rectal pain, as well as unrelated neck, shoulder and knee pain. (Id., Ex. L at 1.) Defendant Rodriguez prescribed Senekot laxatives to be taken three times per day as needed for ten days. (Id. at 3.)
On October 18, 2007, Defendant Rodriguez again examined Plaintiff regarding his complaints of continued constipation and rectal pain. (Id., Ex. M at 1.) Defendant Rodriguez prescribed Milk of Magnesia for his constipation, and educated him on the proper use of medication, fluids, diet and exercise. (Id. at 1.)
On November 18, 2007, Registered Nurse (RN) Ann Alton reported that Plaintiff informed a Licensed Vocational Nurse (LVN) in the C-yard that he was having rectal bleeding. (Id., Ex. N at 1.) Plaintiff alleges that Defendant Rodriguez refused to comply with Defendant Masto's post-operation orders, which caused Plaintiff's post-operation wounds to re-open and become infected. (Compl. at 3.) When the LVN asked Plaintiff to use a pad to save specimens, Plaintiff became angry. (Christie Decl., Ex. N at 1.) No blood or drainage was obtained from Plaintiff. (Id. at 1.) Nurse Alton subsequently instructed the LVN to place Plaintiff in the "MD line" (medical line) to be assessed on the yard for further examination. (Id. at 1.)
On December 14, 2007, Plaintiff was examined again after complaining that he was experiencing rectal bleeding during every bowel movement. (Id., Ex. O at 1.) Again, there was no evidence of bleeding at the time of the examination. (Id. at 1.)
On January 4, 2008, Plaintiff was examined after complaining about pain and constipation following his hemorrhoidectomy. (Id., Ex. P at 1.) A visual inspection of Plaintiff's rectum indicated no sign of rectal bleeding. (Id. at 1.) Plaintiff refused the recommended hemorrhoidal suppositories, and was instead given Metamucil to alleviate his constipation. (Id. at 1.) Plaintiff was assigned to the January 15, 2008 "MD line." (Id. at 1.)
On January 15, 2008, SVSP Physician Raskin examined Plaintiff, who was on the "MD line." Plaintiff complained about constipation, painful bowel movements and rectal bleeding. (Id., Ex. Q at 1.) Dr. Raskin revised Plaintiff's referral for a colonoscopy from routine to urgent. (Id. at 2.)
On January 31, 2008, the colonoscopy was performed on Plaintiff at the Natividad Medical Center. (Id., Ex. R at 1.) The procedure revealed a polyp and internal hemorrhoids. (Id. at 1.) The report indicated that a small amount of blood resulted from the inflamed hemorrhoids, but that some bleeding could have resulted from the healing surgical scar of the recent hemorrhoidectomy. (Id. at 1.) Dr. Tabbaa recommended that Plaintiff continue using his current medications, including laxatives and Anusol suppositories. (Id. at 1.)
A colon "polyp" is a fleshy growth on the inside lining of the colon.
The treatment of Plaintiff's hemorrhoids and associated pains and complaints continued while he was housed at SVSP.
b. Analysis
Plaintiff's allegations fail to raise a triable issue of fact as to whether Defendant Rodriguez acted with deliberate indifference under the subjective prong of Farmer. 511 U.S. at 834.
First, Plaintiff alleges that Defendant Rodriguez refused to comply with Defendant Masto's post-operation orders, which caused Plaintiff's post-operation wounds to re-open and become infected. (Compl. at 3.) In an effort to treat Plaintiff's complaints of excruciating pain and his inability to urinate, Defendant Rodriguez ordered a straight catheter in order to assist Plaintiff in urinating and prescribed Acetaminophen with Codeine to alleviate his pain. (Rodriguez Decl. 2:2-4, Mar. 14, 2011; Christie Decl., Ex. G at 1.) Plaintiff fails to raise a triable issue of fact because, even if Defendant Rodriguez's actions may have caused Plaintiff's post-operation wounds to re-open, her attempts to alleviate Plaintiff's pain demonstrate that she did not display a mental state of deliberate indifference to his serious medical needs.
Plaintiff also alleges that Defendant Rodriguez prescribed the incorrect medication -- specifically, Acetaminophen with Codeine -- to Plaintiff for twenty-one days, causing him considerable pain and suffering. (Compl. at 3.) Specifically, on August 30, 2007 and again on September 5, 2007, Plaintiff claims that Defendant Rodriguez had an opportunity to review Defendant Masto's Report that recommended against the use of Codeine because it causes constipation. (Pl.'s Opp'n and Mot. to Strike at 3.) First, Defendant Rodriguez made an effort to treat and alleviate Plaintiff's pain by recommending the use of Acetaminophen with Codeine. (Rodriguez Decl. 2:3-5; 10-14.) Second, Defendant Rodriguez's treatment was based on her medical judgment, consistent with her examinations of Plaintiff following his surgery. Third, Defendant Rodriguez's recommendation was consistent with Dr. Nguyen's August 30, 2007 post-operation order, also recommending Acetaminophen with Codeine. (Christie Decl., Ex. H at 1.) Plaintiff's argument evidences a difference of medical opinion, i.e., if Plaintiff had received another medication from Defendant Rodriguez, then he would not have suffered painful constipation. Even if Plaintiff should have received different treatment for his medical needs, a difference of opinion as to the treatment of his medical needs is insufficient, as a matter of law, to establish deliberate indifference. See Toguchi, 391 F.3d at 1058, 1059-60; Sanchez, 891 F.2d at 242. Although the medical treatment Plaintiff received may not have been what he considered proper treatment, he presents no evidence that Defendant Rodriguez was deliberately indifferent to his serious medical needs. Rather, she (1) diagnosed his medical conditions as they arose; (2) monitored his status with followup treatments; and (3) administered medication in an effort to alleviate his pain. Thus, Plaintiff has failed to provide evidence regarding an essential element of this claim. Even if Defendant Rodriguez's recommendation of Acetaminophen with Codeine specifically caused Plaintiff harm, Plaintiff has no evidence that Defendant Rodriguez purposefully acted with deliberate indifference to Plaintiff's serious medical needs. Plaintiff's allegations amount at most to negligence based on Defendant Rodriguez administering Acetaminophen with Codeine (rather than Vicodin) when attempting to alleviate Plaintiff's pain. However, as mentioned above, negligence and even gross negligence are not enough to amount to an Eighth Amendment violation. See Farmer, 511 U.S. at 835.
Plaintiff further alleges that Defendant Rodriguez performed an invasive procedure using a catheter in an unsanitary office instead of a facility clinic, which caused Plaintiff to contract an infection. (Compl. at 3.) First, Plaintiff makes a conclusory statement that the conditions were "unsanitary." Again, even if the conditions were unsanitary, Plaintiff's claim amounts only to negligence in providing treatment and does not support a claim of deliberate indifference. The record shows that Defendant Rodriguez ordered a straight catheter in order to assist Plaintiff with urinating following his complaints that he was unable to do so. (Rodriguez Decl. 2:6-7.) Defendant Rodriguez claims that "the procedures were performed with sterile equipment using proper techniques to limit discomfort." (Id. at 2:7-8.) Even if Plaintiff suffered an infection as a result of the insertion of the catheter, his medical records indicate that his complaints were not unheeded by Defendant Rodriguez, who continued to give him follow-up care according to his medical needs after the procedure. She did the following: (1) treated Plaintiff on numerous occasions to follow up on the procedure and on the original surgery by Defendant Masto; and (2) treated his post-surgery complaints, including rectal pain, as well as unrelated neck, shoulder and knee pain. Defendant Rodriquez prescribed medication according to Plaintiff's medical needs, including pain medication, ointments and laxatives. Therefore, the Court finds that Defendant Rodriguez was not deliberately indifferent because she did not deny treatment of Plaintiff's serious medical needs. Cf. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989) (summary judgment reversed where medical staff and doctor knew of head injury, disregarded evidence of complications to which they had been specifically alerted and, without examination, prescribed contraindicated sedatives).
Plaintiff also alleges that Defendants Rodriguez and Lee failed to contact Defendant Masto when it became apparent that Plaintiff's recovery from the hemorrhoidectomy was abnormal. (Compl. at 3, 5.) As explained below, Defendant Lee's only involvement in the administration of medical care to Plaintiff stems from his review of the treatment provided to Plaintiff by SVSP officials. First, Plaintiff provides no evidence indicating that Defendant Masto made such an instruction. Second, Defendant Masto informed Plaintiff of the complications that could result from the surgery. While the record shows Plaintiff suffered post-surgery pain, there is nothing in the record indicating that his recovery was "abnormal." Finally, as explained above, Plaintiff's complaints of rectal bleeding were never verified upon examination. (Christie Decl., Ex. N at 1, Ex. O at 1, Ex. P at 1.) Therefore, Plaintiff has failed to carry his burden of raising a genuine issue of fact to support his claim that Defendants Rodriguez's and Lee's actions in this regard rose to the level of deliberate indifference to his serious medical needs.
2. Defendant Lee
a. Facts
On August 5, 2007, Plaintiff submitted Appeal Log SVSP-07-4309 alleging misconduct on the part of Defendant Lee, SVSP's Health Care Manager, regarding Plaintiff's "healthcare needs and emergency requests for help." (Compl. at 16.) On August 30, 2007, Plaintiff's appeal was denied at the first level of review. (Id. at 17.) On December 26, 2007, Defendant Lee partially granted Plaintiff's appeal at the second level of review, stating that "[s]taff complaints are handled via a different process," and that "appellant [would] be scheduled an appointment within the next 30 days for him to discuss his issues with his PCP." (Id. at 18-19.) On April 4, 2008, Plaintiff's appeal was denied at the Director's Level of review. (Id. at 14-15.)
On September 6, 2007, Plaintiff submitted Appeal Log SVSP-07-4372 alleging that prison staff "discovered [he] had an oversized prostate [and] a PSA-blood test was done, but no cancer tumors were detected." (Id., Ex. B at 31.) Plaintiff claimed that the PSA test was "inaccurate," and requested that "a cancer specialist examine [him] and/or that [his] healthcare be placed in the hands of an experienced doctor, not a nurse practitioner!" (Id.) On December 27, 2007, Defendant Lee addressed Plaintiff's appeal at the second level of review, stating that "appellant's request to be seen by an experienced doctor and not by a nurse practitioner [was] denied in that inmates may not choose who serves their medical needs in yard clinics." (Id. at 35-36.) On April 7, 2008, Plaintiff's appeal was denied at the Director's Level of review. (Id. at 29-30.)
Prostate-specific antigen (PSA) is a substance produced by the prostate gland. Elevated PSA levels may indicate prostate cancer or a noncancerous condition such as prostatitis or an enlarged prostate.
On December 13, 2007, Plaintiff submitted Appeal Log SVSP-07-5334 requesting "medical help for a streptococus [sic] infection and profuse bleeding everytime [he had] a bowel movement throughout September, October, November, and . . . December" and alleging that "[n]othing [was] being done." (Id., Ex. A-1 at 21.) The first level of review was bypassed, and on February 26, 2008, Defendant Lee partially granted Plaintiff's appeal at the second level of review, stating:
The appellant was seen on January 29, 2008 by the PCP-MD. On January 31, 2008 a colonoscopy was completed. On February 5, 2008, the appellant was seen in a PCP-MD follow up appointment. On February 15, 2008 the appellant was seen in Audiology. On February 19, 2008 an x-ray of the upper GI was completed, and on February 20, 2008 the appellant was seen on the RN Line. [¶] It is in the opinion of the reviewer that the First Level review was appropriate and the appellant is receiving the appropriate medical care and treatment by licensed providers as is medically indicated.(Id. at 23-24.) On June 2, 2008, Plaintiff's appeal was denied at the Director's Level of review. (Id. at 19-20.)
On January 9, 2008, Plaintiff submitted Appeal Log SVSP-08-0163 alleging that none of the "incompetent medical staff (including Rodrigues [sic]) ever attempted to do a test of the blood in [his] stool." (Id. at 4.) The first level of review was bypassed, and on February 22, 2008, Defendant Lee addressed Plaintiff's appeal at the second level of review, stating:
At times in his complaint, Plaintiff misspells Defendant Rodriguez's name as "Rodrigues."
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[Plaintiff] was seen on August 31, 2007 for a follow up from his surgery and again on September 18, 2007. The appellant was seen by four other providers since that time. On September 12, 2007, complaining of pain after a bowel movement, the appellant was seen by a Registered Nurse and given Senekot at that time. There was no complaint of bleeding at that time. On October 18, 2007, the appellant was seen and reported a bowel movement on 10/17/07. At this visit the appellant was provided with Milk of Magnesia per the RN protocols. On November 18, 2007, the appellant saw the PCP who explained the CEA results, which were improved since his last test. The appellant saw a Registered Nurse on December 13, 2007 without any evidence of bleeding and also on December 18, 2007, assessed with no blood present.(Id. at 5-6.) On May 21, 2008, Plaintiff's appeal was denied at the Director's Level of review. (Id. at 2-3.)
b. Analysis
Plaintiff claims that Defendant Lee's "policy [prohibiting] most inmates from being allowed to recover from surgical procedures in [the] prison hospital" subjected him to torture by Defendant Rodriguez. (Compl. at 3.) Plaintiff fails to raise a triable issue because he provides no factual basis for the existence of any such policy.
Plaintiff also claims that Defendant Lee did nothing to address Plaintiff's "numerous complaint[s] for oversight and help . . . ." (Compl. at 3.) The Court construes Plaintiff's claim to allege that Defendant Lee acted with deliberate indifference to his serious medical needs because he did not sufficiently investigate Plaintiff's claims of inadequate care when he responded to the 602 appeals.
Defendant Lee provided decisions on Plaintiff's four 602 appeals at the second level of review on December 26, 2007, December 27, 2007, February 22, 2008 and February 26, 2008. (Compl. at 18-19; Ex. B at 35-36; Ex. A-1 at 23-24; Id. at 5-6.) Each of Defendant Lee's responses to Plaintiff's inmate appeals explained that his health record had been reviewed, and concluded that the care provided to Plaintiff was appropriate. Specifically, Plaintiff's first 602 appeal regarding need for medical treatment was partially granted by Defendant Lee at the second level of review because a meeting with Plaintiff's PCP -- Defendant Rodriguez -- was scheduled. Defendant Lee also addressed Plaintiff's second 602 appeal -- requesting to be seen by an experienced doctor and not by a nurse practitioner -- stating that such a decision was not to be made by inmates. Plaintiff's third 602 appeal -- relating to his infection and rectal bleeding -- was also addressed by Defendant Lee, who determined that Plaintiff was receiving appropriate medical care and treatment. Finally, Plaintiff's fourth 602 appeal -- alleging that SVSP medical staff, including Defendant Rodriguez, were "incompetent" and never tested the blood in his stool -- was considered by Defendant Lee who determined that Plaintiff's needs were being addressed. Plaintiff's disagreement with Defendant Lee's findings is insufficient, as a matter of law, to establish deliberate indifference. See Franklin, 662 F.2d at 1344. In addition, Plaintiff presents no evidence that Defendant Lee's conclusions demonstrated deliberate indifference.
Furthermore, to the extent that Plaintiff seeks relief against Defendant Lee for his failure to grant his 602 appeals, this claim must fail. Prisoners have no absolute constitutional right to have their grievances heard in a prison administrative appeal system. Although state statutes or regulations may give rise to constitutionally-protected liberty interests that cannot be taken away without due process of law, California prison regulations do not create such a liberty interest in an inmate grievance procedure. The regulations grant prisoners a purely procedural right and set forth no substantive standards, see Cal. Code Regs. tit. 15, § 3084 et seq. (applicable to state prisons), and such provisions cannot form the basis of a constitutionally cognizable liberty interest. See also Smith v. Noonan, 992 F.2d 987, 989 (9th Cir. 1993); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988).
Plaintiff has failed to carry his burden of raising a genuine issue of fact to support his claim that Defendant Lee's actions rose to the level of deliberate indifference to his serious medical needs. Accordingly, Defendant Lee is entitled to summary judgment.
3. Defendant Masto
Plaintiff maintains that, starting on August 30, 2007, Defendant Masto mis-diagnosed Plaintiff, did not successfully carry out Plaintiff's hemorrhoidectomy and did not do a follow up on the surgery. The Court's May 18, 2010 Order of Service listed the claims against Defendant Masto as follows:
Plaintiff's allegation that Nurse Practitioner Rodriguez and Dr. Lee violated Dr. Masto's order to tell him if Plaintiff's recovery was abnormal indicates that Dr. Masto was not aware of Plaintiff's post-surgery condition. Without knowledge of Plaintiff's condition, Dr. Masto could not have been deliberately indifferent to Plaintiff's serious medical need. If Dr. Masto "botched" Plaintiff's surgery or mis-diagnosed Plaintiff, he might be liable for the state law tort of medical negligence, but he would not be liable for an Eighth Amendment violation.(May 18, 2010 Order of Service at 5.) Therefore, because Plaintiff has not amended his claim to include any additional facts that state a cognizable claim against Defendant Masto, Plaintiff's claim against Defendant Masto is DISMISSED with prejudice.
4. Conclusion Relating to Remaining Defendants
In sum, the Court finds that Plaintiff has failed to raise a triable issue of fact as to whether Defendants Rodriguez and Lee acted with deliberate indifference under the subjective prong of Farmer. 511 U.S. at 834. Defendants Rodriguez and Lee are thus entitled to a judgment as a matter of law on Plaintiff's deliberate indifference claim. Accordingly, Defendants Rodriguez's and Lee's motion for summary judgment is GRANTED.
E. Qualified Immunity
Defendants Rodriguez and Lee claim, in the alternative, that even if Plaintiff's allegations revealed a constitutional violation, qualified immunity would protect them from liability on Plaintiff's deliberate indifference claim.
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). The rule of qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Saucier v. Katz, 533 U.S. 194, 202 (2001) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Defendants may have a reasonable, but mistaken, belief about the facts or about what the law requires in any given situation. Id. at 205. The threshold question in qualified immunity analysis is: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Id. at 201. A court considering a claim of qualified immunity must determine whether the plaintiff has alleged the deprivation of an actual constitutional right and whether such right was "clearly established." Pearson v. Callahan, 555 U.S. 223, 236 (2009). Where there is no clearly established law that certain conduct constitutes a constitutional violation, the defendant cannot be on notice that such conduct is unlawful. See Rodis v. City and County of S.F., 558 F.3d 964, 970-71 (9th Cir. 2009). The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable defendant that his conduct was unlawful in the situation he confronted. Saucier, 533 U.S. at 202.
On these facts, viewed in the light most favorable to Plaintiff, Defendants Rodriguez and Lee prevail as a matter of law on their qualified immunity defense because the record establishes no Eighth Amendment violation. However, even if a constitutional violation had occurred with respect to Plaintiff's claim of deliberate indifference to his serious medical needs, in light of clearly established principles at the time of the incident, Defendants Rodriguez and Lee could have reasonably believed their conduct was lawful. See Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1049-50 (9th Cir. 2002).
Defendants Rodriguez and Lee do not dispute that Plaintiff's right to be free from deliberate indifference to his serious medical needs was clearly established during the period within which the injuries complained of occurred. Given the circumstances, however, Defendant Rodriguez's actions were reasonably calculated to alleviate Plaintiff's pain and treat the core cause of Plaintiff's condition. Defendant Rodriguez personally treated or prescribed medications for Plaintiff at least eight times, and Plaintiff was seen by other medical staff on at least four occasions. In addition, Plaintiff was prescribed several medications, including Acetaminophen with Codeine, Anusol ointment, Vicodin, Senekot laxatives, Ibuprofen, Milk of Magnesia, and Metamucil. Meanwhile, Defendant Lee addressed Plaintiff's four 602 appeals, finding that his medical needs were being met. Based on the evidence available to Defendants, their actions were reasonable and appropriately tailored to Plaintiff's condition and symptoms. The Court finds that Defendants Rodriguez and Lee are entitled to qualified immunity because they have produced sufficient evidence that reasonable officers in their positions would have believed that their actions were reasonable based on the circumstances they confronted.
Accordingly, Defendants Rodriguez and Lee are entitled to qualified immunity with respect to Plaintiff's Eighth Amendment deliberate indifference claim, and their motion for summary judgment on this claim is GRANTED for this reason as well.
CONCLUSION
In light of the foregoing, the Court orders as follows:
1. Plaintiff's motion to strike portions of Defendant Rodriguez's declaration (docket no. 40) is DENIED as moot.
2. Plaintiff's motion to compel discovery (docket no. 46) is DENIED.
3. Plaintiff's claim against Defendant Masto is DISMISSED with prejudice for failure to state a claim.
4. Defendants Rodriguez's and Lee's motion for summary judgment (docket no. 39) is GRANTED. Plaintiff's federal claims stemming from the allegations in his complaints have all been resolved; however, the Court's ruling does not foreclose Plaintiff from proceeding with any related negligence or other state law claims in state court.
5. The Clerk of the Court shall enter judgment in favor of Defendants. All parties shall bear their own costs. The Clerk shall also terminate all pending motions and close the file.
6. This Order terminates Docket nos. 39, 40 and 46.
IT IS SO ORDERED.
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CLAUDIA WILKEN
United States District Judge