Opinion
No. CIV S-04-0115 MCE PAN P.
August 16, 2006.
ORDER AND FINDINGS RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that defendant Kofoed violated his rights under the Eighth Amendment by acting with deliberate indifference to his serious medical need for treatment of complete neuropathy of plaintiff's leg and foot, including failure to provide follow-up medical care, and by allowing plaintiff's injury to progress to a 90 degree knee lock, requiring another surgery. Plaintiff has also included a pendent state law negligence claim arising from the same facts. This matter is before the court on defendant's motion for summary judgment.
On March 27, 2006, plaintiff was directed to file complete copies of documents plaintiff appended to his opposition and reply. After receiving an extension of time, and seeking another, plaintiff filed the documents on June 19, 2006. Because plaintiff has now complied with the order, the court will deny plaintiff's June 12, 2006 motion for second extension of time.
SUMMARY JUDGMENT STANDARDS UNDER 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).Under summary judgment practice, 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. Indeed, 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. In such a circumstance, 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 then shifts to the opposing party to establish that a genuine issue as to any material fact actually 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 its contention that the dispute exists. See Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 586 n. 11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, 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), 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 Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its 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).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed.R.Civ.P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the 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). Finally, to demonstrate a genuine issue, 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 10, 2004, the court advised plaintiff of the requirements for opposing a motion 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), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
ANALYSIS
Except as otherwise noted, these facts are not in dispute.
Plaintiff is an inmate incarcerated at California Medical Facility ("CMF"), Vacaville, California. Plaintiff suffers from sickle cell anemia, which caused damage to both hips sufficient to require bilateral hip replacement surgery. On June 9, 1997, Dr. Oh performed surgery to replace plaintiff's left hip. During that surgery, plaintiff's sciatic nerve was damaged. Dr. Kofoed did not perform or assist in plaintiff's June 9, 1997 hip surgery. The last time Dr. Oh treated plaintiff was on June 26, 1997.
Dr. John Kofoed, M.D. is an orthopedic surgeon who is an independent contractor with the California Department of Corrections (CDC). Dr. Kofoed is also employed in private practice by The Specialities Orthopedics Medical Corporation. Dr. Kofoed conducts a weekly orthopedic clinic on Monday mornings and performs surgery on Tuesday mornings at CMF.
Dr. Kofoed is an independent contractor with the CDC. Dr. Kofoed is under contract to "perform examinations, make diagnoses, issue prescriptions, recommend treatment, and request surgery." An independent medical review board at CMF decides whether there is a medical necessity for any surgery recommended for an inmate by a contract doctor. As an independent contractor, Dr. Kofoed does not have the power to control the surgical schedules of inmates which he has recommended for surgery, nor to control or insure that inmate patients attend their physical therapy appointments.
The Medical Authorization Review (MAR) Committee is established within each correctional treatment center's (CTC) service area, and is composed of staff physician representatives from each institution within the service area. (Cal. Admin. Code., tit. 15, § 3352.) The MAR Committee meets to approve or disapprove requests for medical services, and approved cases are forwarded with supporting documentation to the Health Care Review (HCR) committee. (Id.) The HCR Committee, which minimally consists of two Assistant Deputy Directors, a Chief Medical Officer, and two physicians, then meets to approve or deny services approved by the MAR Committee. (Id. at § 3352.1.)
Dr. Kofoed first examined plaintiff on August 18, 1997. Upon examination, Dr. Kofoed diagnosed plaintiff with "complete sciatic neuropathy." There was no medical treatment reasonably available which could have been performed by Dr. Kofoed to repair the damage to plaintiff's left sciatic nerve. Dr. Kofoed treated plaintiff by ordering a nerve conduction study, EMG test, and left knee x-ray. Plaintiff was ordered to continue with physical therapy treatments 3 to 4 days per week to help increase the range of motion to plaintiff's knee. Physical therapy consisted of whirlpool bath, exercise bicycle, gait training, range of motion/strength exercise, education and a home exercise program. Dr. Kofoed also referred plaintiff to a neurologist and physical medicine specialist for pain management.
Plaintiff attempts to dispute this fact by stating "Dr. Kofoed did not see plaintiff for 14 months to see if there was any reasonable treatment for plaintiff's sciatic nerve damage and complete neuropathy." (Pl.'s Opp'n at 9.) However, Dr. Kofoed determined in his examination of plaintiff on August 18, 1997 that "[t]here was no medical treatment reasonably available which could have been performed by Dr. Kofoed to repair the damage to plaintiff's left sciatic nerve." In other words, the damage to plaintiff's left sciatic nerve was permanent and could not be repaired by Dr. Kofoed.
Dr. Kofoed was aware plaintiff was in pain. (Pl.'s Opp'n, Ex. A.)
Plaintiff appended two documents as Exhibit A to his opposition, page 3 from a declaration by Dr. Kofoed, and page 8 from Points and Authorities in Support of Motion for Summary Judgment. These two pages were taken from documents filed on September 28, 2001 in Frazier v. California Department of Corrections, et al., CIV S-00-0022 LKK JFM P (defendants' motion for summary judgment granted based on plaintiff's failure to exhaust administrative remedies prior to suit; case dismissed without prejudice). (Pl.'s June 19, 2006 Response to court order.) A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986);United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
Dr. Kofoed did not see plaintiff again until October 14, 1998.
Plaintiff approximates the time frame between August 18, 1997, the first day Dr. Kofoed examined plaintiff and October 14, 1998, the next time Dr. Kofoed examined plaintiff, as a period of fourteen months, by rounding the total up by about four days.
Plaintiff saw other health care providers at CMF between August 18, 1997 and October 14, 1998. For example, on August 28, 1997, E.R. Johnson, M.D., a physical medicine specialist, signed a Referring Physician's Report that stated:
Severe pain (L) foot leg 2B Reflex Sympathetic Dystrophy ["RSD"] Request has been made for urgent (L) lumbar sympathetic block. Please eval[uate] re: any other recommendations.
Dr. Johnson referred plaintiff to neurology at CMF. (Pl.'s Opp'n, Ex. D, at 23.)
On September 4, 1997, plaintiff presented at the B-1 Clinic for follow-up for his left hip pain. (Pl.'s Opp'n, Ex. D, at 25.) The chart reflects plaintiff was approved for a sympathetic block trial. (Id.) Plaintiff reported he had tried Elavil before but it didn't work and had bad side effects. The chart reflects plaintiff can't tolerate Tylenol/Codeine, Morphine or Percodan. (Id.) Plaintiff's prescription for 10 mg Oxycodone for severe pain was renewed. (Id.)
On September 4, 1997, plaintiff was seen by Dr. Parker, a surgeon at CMF, who also diagnosed plaintiff with RSD and noted "for Eval. by D. Johe, much less swollen now — for block for RSD." (Pl.'s Opp'n, Ex. D, at 24.)
On September 5, 1997, neurologist Dr. Jaber performed a left sympathetic nerve block to relieve plaintiff's discomfort of inflamed nerves. (September 28, 2001 Decl. of Dr. Kofoed, at 3 Ex. C.)
This information is located in Dr. Kofoed's declaration filed September 28, 2001, at 3 Ex. C, in CIV S-00-0022 LKK JFM P. (See n. 5 infra.)
On September 7, 1997, John H. Friend, M.D., a neurologist, reported the results of the nerve conduction studies to CMF and confirmed Dr. Kofoed's diagnosis of complete neuropathy of the sciatic nerve distribution. (Pl.'s Opp'n, Ex. B.) Dr. Friend recommended plaintiff be "scheduled for repeat EMG testing of the common peroneal and posterior tibial nerve distributions for evidence of regenerated motor activity in approximately six weeks." (Id.)
Plaintiff was treated in the clinic on September 16, 1997 for his complaints of leg cramps and pain. (Pl.'s Opp'n, Ex. D, at 26.) Dr. J. Johe referred plaintiff back to Dr. Johnson stating plaintiff "known to you. Severe shooting pain and loss of sciatic nerve function below knee. No relief from trial of Lumbar Sympathetic Block. Please reevaluate patient." (Id. at 26.)
On October 23, 1997, plaintiff was examined by Dr. Johnson, who ordered an x-ray of plaintiff's hip, physical therapy twice a week for four weeks, Oxycodone 10 mg for severe pain and a neurology consult. (Id. at 27.)
Plaintiff was treated by various other health professionals between October 23, 1997 and October 14, 1998 and prescribed various pain medications, including Oxycodone, Toradal and Demerol. (Pl's Opp'n, Ex. D.)
From August 14, 1997 to February 9, 1998, plaintiff had 50 scheduled physical therapy appointments, but did not go to 26 of the appointments. Dr. Kofoed maintains that plaintiff was dropped from the physical therapy program on February 9, 1998 for failure to show for six scheduled appointments in a row even though plaintiff was authorized to attend physical therapy until August 5, 1999. (September 21, 2005 Kofoed Decl. (hereafter "Kofoed Decl.") at 12.) Plaintiff, however, has provided a memo from Nate Hohsfield, a CMF physical therapist with ten years' experience, who claims in his professional opinion it was plaintiff's pain that prevented plaintiff from participating in physical therapy. (Pl.'s Opp'n, Ex. H.) Mr. Hohsfield also opined that the reason plaintiff was in a wheelchair so long after surgery was due to plaintiff's pain. (Id.)
All references to "Kofoed Decl." without reference to a date refer to Dr. Kofoed's Declaration filed in the instant action on September 21, 2005.
On September 18, 1998, plaintiff was seen by Dr. L.A. Shabayz, who noted plaintiff's left knee contracture and referred plaintiff to see Dr. Kofoed in Orthopedics. (Pl.'s Opp'n, Ex. D at 39.)
On October 14, 1998, Dr. Kofoed examined plaintiff's left knee, ordered x-rays and recommended that arthroscopic surgery be performed to plaintiff's left knee.
By October 14, 1998, plaintiff had a left knee contracture (locked at 90 degrees), which could only be corrected by surgery. Plaintiff contends the contracture was caused by severe pain and by Dr. Kofoed not seeing plaintiff from August 18, 1997 until October 19, 1998. (Pl.'s Opp'n at 9.) In his deposition, plaintiff stated he had a knee contracture as a result of the sciatic nerve damage. (Pl.'s Dep. Tr. at 28.) On the consultation form, Dr. Kofoed stated the rationale for the treatment was "(L) knee contracture due to sciatic nerve injury from prior total hip replacement." (Pl.'s Opp'n, Ex. D at 39.) In his declaration submitted herein Dr. Kofoed opined that the contracture was caused by the lack of exercise and the failure of plaintiff's left knee to positively respond to physical therapy and a home exercise program. (Kofoed Decl. at 12.)
Plaintiff was seen by other health care providers between October 14, 1998 and March 9, 1999. (Pl.'s Opp'n, Ex. D, at 40-42.)
Dr. Kofoed performed surgery on plaintiff's left knee on March 9, 1999. The surgery was successful as it released plaintiff's left leg from a 90 degree lock. Plaintiff's "left leg was able to extend from 90 degrees to a straight position, 5 degrees short of full extension. . . . [Plaintiff] is now able to freely ambulate and walk without any assistance of crutches or a cane." (September 28, 2001 Kofoed Decl. at 7.)
This information is located in Dr. Kofoed's declaration filed September 28, 2001, at 7, in CIV S-00-0022 LKK JFM P. (See n. 5 infra.)
Dr. Kofoed opines that:
Based on information available to Dr. Kofoed, there was no medical need to perform surgery on plaintiff's left knee prior to October 14, 1998, because plaintiff's knee contracture was being properly treated by a physical therapy regimen which was designed to increase mobility to his left knee.
(Kofoed Decl. at 13.) Dr. Kofoed opines that the delay from October 14, 1998, when he first recommended surgery, to the March 9, 1999 surgery did not increase plaintiff's left knee contracture, or cause any additional damage to plaintiff's sciatic nerve, foot, leg or left knee. (Kofoed Decl. at 13.) Plaintiff, however, contends Dr. Kofoed did not see plaintiff between August 20, 1997 and October 13, 1998 or between October 15, 1998 and May 8, 1999, to determine whether plaintiff needed surgery or not. (Pl.'s Opp'n at 9.) Plaintiff further contends that the delay caused plaintiff to suffer pain. (Id.)
Dr. Kofoed states he treated plaintiff in good faith and did not take any action intended to harm or cause additional pain to plaintiff. (Kofoed Decl. at 13.) Dr. Kofoed further contends he provided plaintiff the appropriate diagnosis and treatment which was consistent with the degree of knowledge and skill ordinarily possessed and exercised by members of Dr. Kofoed's profession in similar circumstances. (Id.) Plaintiff, on the other hand, contends that the fact that Dr. Kofoed did not examine or treat plaintiff for a period of fourteen months and specifically failed to follow-up on tests and other treatments ordered by Dr. Kofoed demonstrates Dr. Kofoed's deliberate indifference to plaintiff's serious medical needs. (Pl.'s Opp'n at 9.) Moreover, plaintiff contends that Dr. Kofoed's failure to provide plaintiff with follow-up care was not consistent with the degree of knowledge and skill ordinarily possessed and exercised by members of Dr. Kofoed's profession in similar circumstances. (Id.)
Finally, plaintiff disputes Dr. Kofoed's statement that at no time did Dr. Kofoed fail to perform a medical procedure on plaintiff which should have been performed because Dr. Kofoed did not examine plaintiff during those fourteen months to see what medical procedures could have been performed.
II. Plaintiff's Claims
In his complaint, plaintiff states that the damage to his sciatic nerve caused him severe pain and partial paralysis to his left leg and foot. (Id. at 3.) Plaintiff claims that defendant Kofoed violated his rights under the Eighth Amendment by acting with deliberate indifference to his serious medical needs by failing to provide any follow up medical care following his release from the hospital. (Id. at 4.) Plaintiff also claims defendant Kofoed was deliberately indifferent by failing to perform the knee release surgery for almost five months after Dr. Kofoed examined plaintiff on October 14, 1998. (Id.) Plaintiff contends his left foot and knee are crippled with permanent damage to plaintiff's sciatic nerve. (Id.)
Defendant Kofoed seeks summary judgment on the ground that there is no evidence he was deliberately indifferent to plaintiff's need for treatment.
In order to prevail on his Eighth Amendment claim plaintiff must prove that he had a "serious medical need" and that defendants acted with "deliberate indifference" to that need.Estelle v. Gamble, 429 U.S. 97, 105 (1976). A medical need is serious if "the failure to treat a prisoner's condition could result in further significant injury or the `unnecessary and wanton infliction of pain.'" McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (quoting Estelle, 429 U.S. at 104). Deliberate indifference is proved by evidence that a prison official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference."Farmer v. Brennan, 511 U.S. 825, 837 (1994). Mere negligence is insufficient for Eighth Amendment liability. Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).
Whether a defendant had requisite knowledge of a substantial risk is a question of fact and a fact finder may conclude that a defendant knew of a substantial risk based on the fact that the risk was obvious. Farmer, 511 U.S. at 842. While the obviousness of the risk is not conclusive, a defendant cannot escape liability if the evidence shows that the defendant merely refused to verify underlying facts or declined to confirm inferences that he strongly suspected to be true. Id. Deliberate indifference specifically to medical needs "may be shown by circumstantial evidence when the facts are sufficient to demonstrate that a defendant actually knew of a risk of harm."Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir. 2003).
"Prison officials are deliberately indifferent to a prisoner's serious medical needs when they deny, delay, or intentionally interfere with medical treatment." Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (internal citations and quotation marks omitted). However, delay in providing medical treatment to a prisoner does not constitute deliberate indifference unless the delay causes substantial harm. Shapely v. Nevada Bd. of State Prison Com'rs, 766 F.2d 404 (9th Cir. 1985). Additionally, "a plaintiff's showing of nothing more than `a difference of medical opinion' as to the need to pursue one course of treatment over another [is] insufficient, as a matter of law, to establish deliberate indifference." Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (as amended) (1996). In order to prevail on a claim involving choices between alternative courses of treatment, a plaintiff must show that the course of treatment the doctors chose was medically unacceptable under the circumstances and that they chose this course in conscious disregard of an excessive risk to the plaintiff's health. See Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (citing Farmer, 551 U.S. at 837),cert. denied, 519 U.S. 1029 (1996).
Plaintiff's claim against defendant Kofoed arises out of said defendant's failure to provide plaintiff with follow-up care from August 18, 1997 to October 14, 1998 and for delaying surgical intervention on plaintiff's contracture to his left knee once he was seen by Dr. Kofoed on October 14, 1998. Plaintiff was not provided surgery on his knee until March 9, 1999.
Defendant Kofoed does not dispute that he did not see plaintiff for these periods of time, but contends that plaintiff was not in need of treatment by Dr. Kofoed because he was under the care of other doctors at the prison and had been prescribed a prescription of physical therapy and referred to a neurologist for further tests and pain regulation. Dr. Kofoed also argues that plaintiff suffered no further injury to his knee by virtue of the five month delay prior to treatment of the knee contracture. Thus, defendant Kofoed argues his actions did not constitute deliberate indifference to a serious medical need and there was no medical procedure he failed to provide.
The medical records provided by plaintiff demonstrate plaintiff was provided medical care from August 18, 1997 to October 14, 1998. Plaintiff was referred to physical therapy, a neurologist and a physical medicine specialist for pain management. The medical records provided by plaintiff demonstrate that these orders were carried out. Plaintiff was seen by neurologist Dr. Friend for a nerve conduction study. Plaintiff was given a sympathetic block and he was prescribed pain medications in an effort to stop the pain. While it is common knowledge that damage to one's sciatic nerve results in severe pain, and it is undisputed that Dr. Kofoed was aware plaintiff was in pain, plaintiff has provided no evidence to demonstrate that Dr. Kofoed, an orthopedic surgeon, was responsible to treat plaintiff for pain. Indeed, many orthopedic surgeons refuse to administer pain medications and require patients to obtain them from their general physicians, often to avoid medication interaction problems. Dr. Kofoed appropriately referred plaintiff to other doctors for pain management.
Moreover, plaintiff has provided no evidence to support his theory that there was some alternative treatment Dr. Kofoed could have provided. Indeed, Dr. Kofoed found plaintiff had suffered complete neuropathy to his sciatic nerve and there was no medical treatment reasonably available which could have been performed by Dr. Kofoed to repair the damage to plaintiff's left sciatic nerve. Even if repair to the nerve had been possible, that repair would have been referred to a neurologist, not to an orthopedic surgeon. Dr. Kofoed referred plaintiff to a neurologist and plaintiff was subsequently seen by a neurologist. The neurologist, Dr. Friend, confirmed the complete neuropathy diagnosis. Plaintiff testified at his deposition that Dr. Friend told plaintiff on September 7, 1997: "You're injured. All I can do is keep you comfortable with pain meds . . . you know. There's nothing too much more that I can do. Your [sciatic nerve] injury is too extensive." (Pl.'s Dep. Tr. at 33.)
This information is located in defendants' points and authorities in support of motion for summary judgment filed September 28, 2001, at 8, in CIV S-00-0022 LKK JFM P. (See n. 5 infra.)
The eventual knee lock sustained by plaintiff is more problematic. Arguably, an orthopedic surgeon would know that failure to attend physical therapy or maintain a home exercise program would cause a patient with extensive sciatic nerve injury to eventually sustain a knee lock. However, plaintiff presents no evidence that Dr. Kofoed knew plaintiff was not going to physical therapy or that plaintiff was sustaining increasing reductions to his range of motion in his left leg. Plaintiff has presented no evidence that he requested to see Dr. Kofoed but was refused, or that he presented to medical clinic with complaints of knee contracture prior to September 18, 1998.
Plaintiff has presented no evidence that he requested physical therapy to notify Dr. Kofoed that plaintiff was in too much pain to perform the physical therapy ordered. Although plaintiff has provided a statement by physical therapist Nate Hohsfield, dated November 29, 2001, that plaintiff's inability to perform physical therapy was due to plaintiff's pain level, Mr. Hohsfield did not state he had relayed this information to Dr. Kofoed or any other medical professional in an effort to control plaintiff's pain so that he could participate in physical therapy.
Dr. Kofoed, on the other hand, stated he had no information prior to October 14, 1998 that plaintiff's left knee required surgery, because plaintiff was being treated by physical therapy designed to increase mobility to plaintiff's left knee. Dr. Kofoed confirmed that the physical therapy records of October 20, 1997 showed plaintiff had a 90 degree range of motion in the left knee which was being treated three to four days a week by physical therapy and exercise he was to perform at home. (September 28, 2001 Kofoed Decl. at 6.) Even if Dr. Kofoed had reviewed plaintiff's medical records during this time, they would not have disclosed the fact that plaintiff's knee was starting to lock up. Because plaintiff did not participate in physical therapy due to his pain, there were no physical therapy records to reflect a gradual contracture of his knee. There is no evidence that plaintiff presented at medical clinic to complain of such contracture until September 18, 1998. The contracture appears to be the result of a gradual lack of activity because the degree of lock in plaintiff's knee did not increase between October 14, 1998, when Dr. Kofoed first diagnosed the lock and March 9, 1999, when the lock was released by surgery. There is no evidence that Dr. Kofoed knew plaintiff had a serious medical need for an immediate orthopedic consultation prior to September 18, 1998.
This information is located in Dr. Kofoed's declaration filed September 28, 2001, at 6, in CIV S-00-0022 LKK JFM P. (See n. 5 infra.)
Thus, there is no evidence in the record that Dr. Kofoed would have performed the surgery at some point prior to October 14, 1998, even if he had been informed of plaintiff's failure to attend physical therapy. On this record, the court cannot find that Dr. Kofoed was deliberately indifferent to plaintiff's serious medical needs from October 1997 to October 14, 1998.
Finally, there was an almost five month delay from October 14, 1998 when Dr. Kofoed was made aware of the contracture, to the surgery on March 9, 1999 when the lock was released. However, plaintiff has provided no evidence that this delay was caused by the deliberate indifference of Dr. Kofoed. It is undisputed that all surgeries must first be approved by the MAR.
Moreover, plaintiff's evidence is insufficient to show that any delay in receiving the surgery caused him substantial harm. Plaintiff provided no evidence that the knee lock worsened from the date of diagnosis to the date of surgery. While plaintiff did state that he experienced pain during the five month period of delay, the undisputed evidence shows he was continuing to receive Oxycodene for pain. (Pl.'s Opp'n, Ex. D, at 42.) Moreover, plaintiff has failed to demonstrate that the pain he suffered was a direct result of the knee lock rather than from the injury to his sciatic nerve or his sickle cell anemia. Dr. Kofoed opined that the delay in surgery did not increase plaintiff's left knee contracture or cause any additional damage to plaintiff's sciatic nerve, foot, leg or left knee. Plaintiff has failed to provide any medical evidence to the contrary. This court finds that plaintiff has not presented evidence sufficient to create a triable issue of material fact as to whether defendant Dr. Kofoed deliberately delayed the surgical repair of his knee lock.
For all of the foregoing reasons, this court finds that there is no triable issue of material fact as to whether defendant Kofoed acted with deliberate indifference to plaintiff's serious medical needs, and this court further finds that defendant Kofoed is entitled to summary judgment on plaintiff's Eighth Amendment claim. Since plaintiff's constitutional claims are without merit, the court should decline to exercise supplemental jurisdiction over plaintiff's state law negligence claims against Dr. Kofoed as well. See 28 U.S.C. § 1367(c)(3).
On March 8, 2006, plaintiff also filed a motion for summary judgment. In light of the above findings and recommendations, this court will also recommend that plaintiff's motion be denied.
IT IS ORDERED that plaintiff's June 12, 2006 motion for extension is denied; and
IT IS HEREBY RECOMMENDED that:
1. Defendant Kofoed's December 21, 2005 motion for summary judgment be granted;
2. The court should decline to exercise supplemental jurisdiction over plaintiff's state law negligence claims;
3. Plaintiff's March 8, 2006 motion for summary judgment be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 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. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).