Opinion
Case No.: 19-cv-01957-JLS (JLB)
01-30-2021
KORY T. O'BRIEN, Plaintiff, v. SAJIB SAHA, et al., Defendants.
REPORT AND RECOMMENDATION RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF EACH CLAIM OF PLAINTIFF
[ECF No. 17]
Plaintiff Kory T. O'Brien ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, brings this civil rights action pursuant to 42 U.S.C. § 1983. (ECF Nos. 1, 4.) Plaintiff's complaint alleges that Defendants Sajib Saha, M.D. ("Dr. Saha"), David Clayton, M.D. ("Dr. Clayton"), and Margaret Deel, M.D. ("Dr. Deel") (collectively, "Defendants") were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment and that Dr. Saha and Dr. Clayton retaliated against him in violation of the First Amendment. (ECF No. 1.) Presently before the Court is a motion for summary judgment, or in the alternative, summary adjudication, filed by Defendants. (ECF No. 17.) Plaintiff opposes Defendants' motion. (ECF No. 23.) Defendants filed a reply. (ECF No. 24.)
The Court submits this Report and Recommendation to United States District Judge Janis L. Sammartino pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.3 of the Local Rules of Practice for the United States District Court for the Southern District of California. After a thorough review of Defendants' motion, Plaintiff's opposition, Defendants' reply, the record in this case, and the applicable law, the Court hereby RECOMMENDS that the District Court GRANT Defendants' motion for summary judgment.
I. BACKGROUND
The following facts are viewed in the light most favorable to Plaintiff. See Wright v. Beck, 981 F.3d 719, 726 (9th Cir. 2020) (on summary judgment, a court must view the facts in the light most favorable to the non-moving party). Unless otherwise indicated, the facts are undisputed.
Defendants have requested judicial notice of several documents and facts. (ECF No. 17-7.) The Court will address each request as it becomes relevant to this Order.
A. Plaintiff's Medical Records
Correct and true copies of portions of Plaintiff's medical records were attached to the Declaration of Bennet Feinberg, MD (ECF No. 17-5 ("Feinberg Decl.")), the Chief Medical Consultant for the California Correctional Health Care Services ("CCHCS") Office of Legal Affairs, who accessed Plaintiff's medical records kept in the ordinary course of business and which are available to him as a CCHCS healthcare provider. (Id. ¶ 6.) Additional medical records consistent with those attached by Dr. Feinberg were attached to Plaintiff's opposition. (ECF No. 23.)
Plaintiff was transferred to Richard J. Donovan Correctional Facility ("RJD") on November 26, 2016. (ECF No. 23 at 11.) On July 26, 2017, Plaintiff was seen on a California Department of Corrections and Rehabilitation ("CDCR") 602 appeal by Gina Casian, MD. (ECF No. 17-6 at 5-6.) Plaintiff's primary requests, as they relate to this motion, were to receive long-term opioid treatment such as methadone or morphine, to be prescribed a maximum dosage of gabapentin, to be interviewed by the pain management committee, and to be seen by a back specialist. (Id.) Plaintiff's past medical history was notable for chronic low back pain with a history of back surgery in or around 1999, and an MRI on May 26, 2017 showing mild degenerative changes and disc protrusion at L5-S1. (Id. at 5.) The medical record for this visit notes a history of chronic right shoulder pain and a history of polysubstance dependence. (Id.) As of July 26, 2017, Plaintiff was receiving the pain medication tramadol, as well as gabapentin. (ECF No. 17-6 at 5.) Plaintiff did not report difficulty performing daily activities and ambulated without an assistive device. (Id.) He was observed to walk normally without any limp, remove his shirt using both upper extremities without evidence of discomfort, and very quickly get up on the examination table. (Id.) The remainder of his physical examination was unremarkable. (Id. at 5-6.)
The medical record references Neurontin, which is also known as gabapentin. (See Feinberg Decl. ¶ 9.)
Dr. Casian assessed that Plaintiff did not meet the criteria for opioid treatment as he had "mild degenerative disc disease without significant limitation of functional capacity" and "[n]o red flag symptoms." (Id. at 6.) Dr. Casian also assessed that the risk of opioid treatment would be higher than the benefit, noting Plaintiff's history of bipolar disorder, polysubstance dependence, and noncompliance with psychotherapy. (Id.) Plaintiff's gabapentin was maintained at the then-present dose, and he was provided a referral to physical therapy and given a back brace for support. (Id.)
On September 18, 2017, B. Martin, MD requested an epidural steroid injection for Plaintiff, noting that Plaintiff's neuropathic pain was worse on the right side despite gabapentin therapy and physical therapy. (ECF No. 23 at 246.) On October 26, 2017, Plaintiff informed Dr. Martin that his neuropathy was well controlled on his current dose of gabapentin. (Id. at 247-48.) On physical examination, Dr. Martin noted that Plaintiff had no gait abnormality or dysfunction. (Id. at 248.)
On November 1, 2017, Plaintiff was seen for an outpatient pain management evaluation by Christopher Glazener, MD. (ECF No. 17-6 at 7-8.) On physical examination, Dr. Glazener noted that Plaintiff appeared relatively comfortable, was able to bend forward to 90 degrees from the erect position, he could walk on his toes and heels without any problem, and the only abnormality on physical examination was decreased sensation to light touch over the lateral aspect of the right thigh and calf. (Id. at 7.) Dr. Glazener diagnosed Plaintiff with having a right lumbar nerve root irritation and post laminectomy syndrome and gave him an epidural steroid injection. (Id.)
On November 29, 2017, Plaintiff was seen by Dr. Martin primarily to assess Plaintiff's chronic shoulder pain due to a torn rotator cuff. (Id. at 10-11.) Plaintiff informed Dr. Martin that he had insufficient pain relief on tramadol which he had been receiving for a minimum of six years prior to the evaluation. (Id. at 10.) Dr. Martin elected to switch Plaintiff from tramadol to methadone, and had Plaintiff sign an opioid pain medication contract. (Id. at 10-13.) Plaintiff added his initials to the contract indicating that he had specifically read and agreed to item number 13, acknowledging the following: "My provider may request urine or blood drug screens from time to time to monitor my use of pain medications, and to detect improper use of medications not prescribed. I agree to submit to these tests and understand if I refuse the testing, my provider will need to stop my opioid medication. In the event that these tests indicate that my use of opioids or other medications presents a health risk to myself or others, my provider may taper and stop the opioid medication." (Id. at 13.) Dr. Martin changed the prescription for methadone to morphine for shoulder pain on February 9, 2018, due to Plaintiff's complaints of nausea. (Id. at 14.) Dr. Martin also noted on February 9, 2018, that Plaintiff had no gait abnormality or dysfunction, and that he was exercising daily for 60 minutes. (Id. at 14-15.)
Plaintiff was seen for the first time by Dr. Saha on March 16, 2018. (Id. at 17-19.) Multiple medical issues were assessed at this visit. (Id.) With respect to chronic pain, the plan was to continue Plaintiff's current pain medication, although extensive patient education was provided regarding the proper use of and risks related to opiate analgesics such as morphine. (Id. at 18.) Plaintiff saw Dr. Saha again on April 20, 2018. (ECF No. 23 at 256-57.) Dr. Saha noted Plaintiff's pain was "well controlled with current pain medication" and Plaintiff denied any new symptoms. (Id. at 257.) On physical examination, Dr. Saha noted that Plaintiff was able to walk to the exam room without any difficulties and sit comfortably. (Id.) On May 29, 2018, Plaintiff saw Dr. Saha for multiple issues. (Id. at 258-59.) Dr. Saha noted that Plaintiff's chronic lower back pain was well controlled with current pain medication, and Plaintiff did not want to see a specialist for his lower back pain or have any surgery while inside the prison system. (Id. at 258.)
Plaintiff continued to see Dr. Saha for multiple issues without any change in his pain or pain management. (See id. at 260-68.) During his October 11, 2018 visit, Plaintiff reported that he was exercising 30 to 40 minutes each day. (Id. at 263.) On January 11, 2019, Dr. Saha saw Plaintiff for follow-up after right shoulder rotator cuff surgery on December 28, 2018, and a January 4, 2019 cardiology consult. (ECF No. 17-6 at 20-21.) Plaintiff's surgical incision was noted to be well-healed. (Id. at 20.) Plaintiff also reported that he was able to walk 90 minutes four times a week. (Id.)
On April 1, 2019, Plaintiff was seen in the Triage and Treatment Area ("TTA") by Erica Goyal, MD. (Id. at 22-24.) Plaintiff reported that he had been playing soccer when his foot collided with someone else's foot and subsequently became painful and swollen. (Id.) He was diagnosed with a soft tissue injury of the right foot and provided with crutches to use for two weeks. (Id. at 22.) For pain, Plaintiff was provided with ibuprofen to take in addition to his morphine, the dosage of which was unchanged. (Id.)
Regarding Plaintiff's chronic morphine prescription, Dr. Goyal noted that "if patient is able to play soccer, [I] would consider alternative therapies for pain control if indicated but this can be discussed in follow-up with [Primary Care Provider ("PCP")]." (Id.) Dr. Goyal also ordered x-rays, but Plaintiff signed a refusal for x-rays on April 2, 2019, writing, "Do not need or want x-ray of right foot." (Id. at 25.) Plaintiff was also scheduled for a follow-up with his PCP, Dr. Saha, within five days, but signed a refusal for this appointment, stating that his foot was no longer in severe pain so long as he kept it wrapped. (Id. at 26-27.) Plaintiff also returned his temporary crutches on April 5, 2019, which were due to expire on April 15, 2019. (Id. at 29.)
On April 5, 2019, Plaintiff saw Dr. Saha for a follow-up examination and mentioned that he regularly plays soccer for 15 to 30 minutes. (ECF No. 23 at 268-69.) Dr. Saha observed Plaintiff walking with a normal gait and without any difficulties. (Id. at 269.) Plaintiff saw Dr. Saha again on April 24, 2019, and again Dr. Saha noted that Plaintiff mentioned playing soccer regularly for 15 to 30 minutes. (ECF No. 17-6 at 30.) Dr. Saha also observed Plaintiff "walking with normal gait without any difficulties" and in "no acute distress" and "able to sit comfortably." (Id.)
On April 25, 2019, Chief Physician and Surgeon Ryan Barenchi, MD sent a message to Dr. Saha, which was filed in Plaintiff's medical record, with the subject "Opiate/gabapentin review." (Id. at 32-33.) In the message, Dr. Barenchi advised that "[i]n the spirit of patient safety and to promote safe prescribing practices[,] the chart of every patient on chronic opioid therapy at RJD is being systematically reviewed." (Id. at 32.) Dr. Saha was asked to "please consider" the following issues regarding Plaintiff:
• This patient is at high risk for opioid abuse/diversion. History of polysubstance abuse in the record.
• There has been no clinically significant improvement in function to warrant the continued use of opiates.
• There is no clinical evidence to support the use of chronic opiates for
this condition: Chronic back pain with radiculopathy.(Id.)
• The patient's physical exam findings are not consistent with the need for chronic opioids. Your note 4/5/2019 states the patient came in for ankle injury because they were 'playing soccer'. This is not consistent with a patient needing years of chronic opioid and gabapentin therapy. Other notes have normal exams as well.
• There is no clinical evidence to support the use of gabapentin.
• Concomitant gabapentin and opioid exposure is associated with a 49% higher risk of dying from an opioid overdose.
Plaintiff states that he has "never abused [opioids] (morphine, eg)" and does "not have a drug abuse history." (ECF No. 23 at 381.) He disputes that he has a history of polysubstance abuse. (Id. at 11.) In his separate statement, Plaintiff cites to a March 2019 statement in his medical record that there was no evidence of opiate "misuse throughout the year," and to a February 2018 statement in his medical record that he had a "[h]istory of long-term tramadol use without any difficulty." (Id. at 41 (citing ECF No. 23 at 254, 267.) The Court notes that neither of these is evidence that Plaintiff has no history of drug abuse. Moreover, as is addressed below (see infra note 15), Plaintiff does not dispute that a history of drug abuse was documented in his medical file.
On April 30, 2019, a serum drug screen test was performed on Plaintiff consistent with the monitoring outlined in the opioid pain medication contract. (Id. at 34-35.) This test came out negative for the presence of opiates. (Id. at 34-36.)
On May 20, 2019, Dr. Saha saw Plaintiff to review these results with him. (Id. at 36.) Dr. Saha noted the following:
Patient has been playing soccer regularly without any difficulty. Patient currently performing ADLs [activities of daily living] without any objective findings of ADL dysfunction from chronic lower back pain. Patient was observed walking into the clinic without any difficulty and no distress from pain noticed. Patient has positive history of multiple illicit drug use including cocaine, methamphetamines, marijuana in the past. Patient has multiple comorbidities including fatty liver, coronary artery disease status post angioplasty. There is no clear indication for continuing morphine, on the other hand due to negative drug screen test possible drug diversion which imposes potential risks to other inmates. Patient was informed that morphine will be
tapered off. Labs done on April 30, 2019 drug abuse panel 9 showed negative for opioids while patient taking morphine 15 mg p.o. twice daily, findings reviewed with patient, patient was very agitated, mentioned that this is a false result and mentioned that "I will take it to the district 7 court" and left the room with[out] physical exam and further discussion.(Id.)
Plaintiff contends that he has "never diverted medication." (ECF No. 23 at 28.) In support, Plaintiff cites to Dr. Saha's interrogatory response to the question of whether there were any formal reports and/or documents, other than allegations made by Dr. Saha, in Plaintiff's medical file and/or custody file from any person that Plaintiff was "cheeking, hoarding or sharing medication." (Id. at 28, 100.) Dr. Saha responded as follows: "I am not custodian of Plaintiff[']s CDCR custody file and am personally unaware of such reports therein. However, on April 30, 2019, Plaintiff[']s medical records state that a serum drug screen was performed on Plaintiff consistent with the monitoring outlined in the opioid pain medication contract. This test came out negative for the presence of opiates, despite Plaintiff[']s medication administration record showing his consistent use of morphine during the month of April 2019." (Id. at 100.) Plaintiff contends that the guidelines state "to use a urine detection test." (Id. at 45.) However, the Chronic Pain Provider-Patient Agreement/Informed Consent for Opioid Pain Medication signed by Plaintiff on November 29, 2017 states that the provider "may request urine or blood drug screens from time to time to monitor [Plaintiff's] use of pain medications, and to detect improper use of medications not prescribed." (ECF No. 17-6 at 13.) Plaintiff was given a blood drug screen consistent with this agreement. (Id. at 34-35.)
Dr. Saha also noted that he planned to continue Plaintiff's gabapentin prescription with the intention to see Plaintiff in one month and consider switching the gabapentin to another medication. (Id. at 37.) Dr. Saha also referred Plaintiff to mental health services for chronic pain management and added the topical pain medication capsaicin. (Id.) He noted that he would consider referring Plaintiff to a substance abuse disorder treatment team in the future, if Plaintiff agreed, and consider physical therapy as well. (Id.) Plaintiff was also to continue the pain medication ibuprofen or naproxen from the canteen as needed. (Id.) Dr. Saha decreased Plaintiff's morphine dose from 15 mg twice a day to 15 mg once a day. (Id. at 62.)
Later that day, Plaintiff submitted a Health Care Services Request Form (Form 7362), stating: "I am in sever[e] intractable pain. Must see Dr. immediately." (Id. at 38.) The next day, Plaintiff submitted another Form 7362, stating that he was in severe pain and unable to shower or complete daily functions. (Id. at 40.) That evening, Plaintiff reported to the nurses that he rated his pain level as 10 out of 10, the worst possible pain. (ECF No. 23 at 294.) Dr. Clayton ordered Plaintiff to be put on a wheelchair, but Plaintiff refused. (Id. at 295.)
Plaintiff continued to submit Form 7362s complaining of severe pain. (See ECF No. 17-6 at 39-41.) On May 22, 2019, Plaintiff saw Diane Posadas, R.N. (Id. at 42-56.) Plaintiff stated, "I want a paper trail documenting that I've been in pain since the doctor started tapering me off of my medication." (Id. at 43.) Consulted by nursing staff that same day, Dr. Saha documented the following: "Patient mentioned to the nurse that he has been submitting 7362 so that he can pursu[e] lawsuit against PCP for tapering off morphine. Again patient was observed walking to the clinic without any difficulty, walking normal. No restriction in range of motion noticed by RN for his shoulder. Will continue [to] monitor." (Id. at 57.) Plaintiff was referred to mental health services for pain management and to physical therapy for chronic lower back pain. (Id.; see also ECF No. 23 at 226.)
Sometime later in the day on May 22, 2019, Plaintiff submitted another Form 7362 stating, "My heart is ac[hing] causing mild pain" since Dr. Saha began tapering Plaintiff's morphine. (Id. at 59.) This form was received and reviewed by members of the nursing staff on May 23, 2019, who went that day to check on Plaintiff at his cell after he refused to come to the clinic. (Id. at 60.) Maricel Unson, RN, accompanied by Supervising RN Calderon, talked to Plaintiff. (Id.) Nurse Unson documented that Plaintiff was "able to get up from bed and walk to door with steady gait, with no apparent distress noted, no facial grimace[.] [Plaintiff] began talking continuously with high tone, appears upset and argumentative regarding pain medication issue. [Plaintiff] states '[I] have appt with Dr. Saha tomorrow 5-24-19, and I already told them I'm gonna put in a slip everyday [sic] to document medical indifference, and [I] am not even gonna come to my appt.'" (Id.) Officer R. Vasquez, who was on standby while the nurses talked to Plaintiff, noted that Plaintiff was "able to attend regular program which includes going to chow, going to pill line and yard time." (Id.) Plaintiff verbalized that he understood when to call man down if needed and understood his plan of care. (Id.)
On May 24, 2019, Plaintiff was seen for a follow-up by Dr. Saha for his lower back pain. (Id. at 62-64.) Plaintiff reported that since his morphine had been decreased, his lower back pain had been worsening and he was using a cane even though it was causing his right shoulder to hurt. (Id. at 62.) Plaintiff requested his morphine be increased, threatened to sue Dr. Saha, and repeatedly cursed. (Id.) On exam, Plaintiff was observed to be sitting comfortably in no acute distress and was observed walking normally with a cane. (Id. at 62-63.) However, Plaintiff's blood pressure was elevated at 163/109 and he complained of having had chest pains the night before. (Id.) Dr. Saha therefore had an EKG performed in the clinic which showed a normal sinus rhythm and no ST-T wave changes. (Id.) Nonetheless, given Plaintiff's multiple cardiac risk factors and worsening lower back pain, Dr. Saha recommended that Plaintiff be transferred to the emergency room. (Id.) Plaintiff refused and signed a refusal form. (Id. at 62, 66.) Dr. Saha noted that Plaintiff "is very manipulative." (Id. at 62.)
Dr. Saha suspected that Plaintiff had not been taking his blood pressure pill, trying to manipulate the system so that he could get pain medication. (Id. at 63.) Therefore, for Plaintiff's elevated blood pressure, Dr. Saha changed Plaintiff's blood pressure pills to be nurse administered and requested that Plaintiff's blood pressure be rechecked in one hour and again at 8 PM that night, with an RN follow up for a blood pressure check the next day. (Id.) Dr. Saha discontinued the capsaicin cream, which Plaintiff felt did not work, noting that Plaintiff also currently had Voltaren gel. (Id. at 60, 64.) Dr. Saha also noted that Plaintiff declined to start other pain medication including the antidepressant Cymbalta or the antiseizure medication carbamazepine. (Id. at 64.) Dr. Saha further ordered x-rays of the lumbar spine as well as "labs with ESR, CRP, cocci titer to rule out any active infection or inflammation." (Id.) Dr. Saha provided Plaintiff with a walker to use and ordered a mobility impaired vest, noting that he would consider an MRI of the lumbar spine in the future if Plaintiff's pain persisted after physical therapy or abnormal x-ray findings. (Id.; see also ECF No. 23 at 228, 242.)
Defendants request judicial notice of the fact the prescription drug Cymbalta (duloxetine) is a Serotonin Norepinephrine Reuptake Inhibitor used for peripheral neuropathy and chronic musculoskeletal pain, citing the Physician's Desk Reference, available at https://www.pdr.net/drug-summary/Cymbalta-duloxetine-288. (ECF No. 17-7 at 2, ¶ 1.) The Court finds it appropriate to take judicial notice of well-known medical facts, such as those contained in the Physician's Desk Reference. See Cutler v. Corr. Med. Servs., No. 3:08-CV-00507-BLW, 2011 WL 4479025, at *7 n.4 (D. Idaho Sept. 26, 2011) (citing United States v. Howard, 381 F. 3d 873, 880, n.7 (9th Cir. 2004)). Accordingly, the request is granted.
Plaintiff's repeat blood pressure one hour later on May 24, 2019 was significantly elevated at 193/118 and Dr. Saha had Plaintiff sent to the TTA for emergent evaluation. (Id. at 67.) In TTA, Plaintiff was seen by Michael Santos, MD, who noted Plaintiff's EKG in the TTA showed normal sinus rhythm with no ST or T wave changes and that Plaintiff had had a recent stress test of the heart one month prior on April 10, 2019 which showed normal perfusion with no reversible ischemia. (Id. at 68.) Dr. Santos noted: "Patient states the severe back pain keeps his blood pressure high. However, he was not in painful distress when he was seen at the TTA. He is not grimacing and he is able to carry out a pleasant conversation with the nurses and physician at the TTA. He is able to ambulate using his walker, with a steady gait and good posture, without any limp." (Id.)
Review of Plaintiff's medication administration record showed that he had "not been taking his antihypertensive medications namely Carvedilol and Lisinopril" and "refused to take Lisinopril and Carvedilol th[at] morning and th[at] afternoon." (Id.) Plaintiff was given his evening dose of these medications at the TTA and his blood pressure improved. (Id.) Plaintiff "was discharge[d] back to the yard in stable condition." (Id.) Dr. Santos noted that Plaintiff "was able to ambulate out of the TTA on his own without any pain." (Id.)
Plaintiff continued to submit numerous Form 7362's regarding back and chest pain. (See id. at 70-72.) On May 27, 2019, Plaintiff saw Raffaela Gunay, RN. (Id. at 73-85.) Plaintiff informed Nurse Gunay, "Dr. Saha stopped my morphine. I'm starting a paper trail for court. . . ." (Id. at 73.) Plaintiff refused an examination. (Id. at 86.)
Plaintiff continued to submit Form 7362s claiming to be in severe pain, which, he maintained, caused his blood pressure to rise and his chest to hurt. (See id. at 87-89.) Plaintiff further stated that he could not take ibuprofen due to gastrointestinal problems. (Id. at 87.) On May 28, 2019, Plaintiff saw Diane Posadas, RN. (Id. at 90-103.) Nurse Posadas referred Plaintiff for a PCP evaluation. (Id.)
On May 29, 2019, Plaintiff was seen by Dr. Clayton for a follow-up of Plaintiff's back pain. (Id. at 104-05.) On physical examination, Dr. Clayton noted that Plaintiff was "able to transition to chair and table with ease" and that "ambulation is brisk with minimal use of cane." (Id. at 104.) Dr. Clayton stated in his assessment: "I agree with Dr. Saha that neither the morphine [n]or gabapentin is indicated in this patient. Based on my examination he would do well with physical therapy and nonsteroidal anti-inflammatories as needed. He does not want to go to physical therapy and is adamant about needing narcotics and gabapentin." (Id. at 105.)
Dr. Clayton further noted that he went over with Plaintiff several alternative approved medications for chronic pain, including Elavil, nortriptyline, and Cymbalta. (Id.) Plaintiff did not want to be on Elavil or nortriptyline, so Dr. Clayton indicated he would start Plaintiff on "Cymbalta at a low dose and titrate up to effect." (Id.) Dr. Clayton also indicated that Plaintiff would be tapered off gabapentin over two weeks. (Id.; see also ECF No. 23 at 227.) Dr. Clayton added the following comment: "Patient became quite irate and left the office intending to file a grievance. He was then overheard discussing strategies with other inmates how to obtain gabapentin and narcotics more effectively while he was leaving the trailer." (Id.)
On May 31, 2019, the lumbar spine x-rays ordered by Dr. Saha were completed, finding as follows: "The gross alignment of the spine is within normal limits. The heights of the vertebral bodies are normal. Mild L5-S1 disc degenerative changes are present. Alignment is normal throughout flexion and extension. No fracture. No destructive osseous lesions are seen. The visualized portions of the sacroiliac joints are unremarkable." (Id. at 106.) The overall impression was "mild L5-S1 arthrosis." (Id.)
On June 1, 2019, Plaintiff was sent to the emergency room at Sharp Chula Vista with complaints of chest pain. (Id. at 107-08.) At Sharp Chula Vista, Plaintiff had "a normal EKG, chest x-ray, venous Dopplers of both legs, CBC, CMP, [and] negative troponin," and was transferred to Tri-City Medical Center for further work-up and management. (Id. at 107.) Plaintiff was seen by his cardiologist at Tri-City Medical Center and discharged in stable condition on June 2, 2019, with the diagnosis of atypical chest pain. (Id.) Plaintiff's cardiologist recommended adding Plavix and Imdur and a follow-up appointment in two weeks. (Id.)
On June 6, 2019, Plaintiff submitted a Form 7362 stating that he was not taking his blood pressure medication Lisinopril. (Id. at 109.) He stated he was taking isosorbide and Cardiloval for his blood pressure, which was "good," and he did not want to lower his blood pressure to dangerously low levels. (Id.)
Plaintiff was seen for a follow-up by Dr. Saha on June 7, 2019. (Id. at 110-13.) Plaintiff was experiencing chest pain, but less severe, and Dr. Saha advised him of the importance of taking his Lisinopril as prescribed. (Id. at 110.) Plaintiff reported that he was not experiencing any side effects from the Cymbalta, but worried about possible side effects like liver dysfunction. (Id.) Plaintiff was educated on the risks and benefits of Cymbalta and agreed to continue taking the medication with periodic liver function checks and to notify healthcare staff if he experienced any symptoms. (Id.) Dr. Saha also discussed the FDA indication for gabapentin with Plaintiff and advised Plaintiff that the tapering off of that medication would continue. (Id. at 112.) On physical exam, Plaintiff was noted to be able to sit comfortably, and all tests related to his back were normal. (Id. at 111.) /// /// ///
Dr. Saha further discussed the medications Lyrica and a tricyclic antidepressant with Plaintiff, and Plaintiff was informed that he was not a good candidate for Lyrica due to his history of alleged drug diversion and not a good candidate for a tricyclic antidepressant due to ongoing cardiac issues. (Id. at 112.) For Plaintiff's chronic back pain, in addition to taking the Cymbalta as prescribed, Dr. Saha advised Plaintiff he would be referred to physical therapy and mental health services for chronic pain management, that he may continue the Voltaren gel and Tylenol as needed for pain, but that he should avoid naproxen or ibuprofen due to his new heart medications. (Id.) Plaintiff was encouraged to engage in regular aerobic exercise and continue his stretching exercises and to let Dr. Saha know if he was interested in an epidural injection. (Id.) Dr. Saha also reviewed with Plaintiff his labs from June 4, 2019, which showed slightly elevated CRP at 10.5. (Id.) Dr. Saha stated that he would repeat the CRP test in one month, noting possible secondary to inflammation. (Id.)
Defendants request judicial notice of the fact that Lyrica (pregablin) is of the same class of drugs (gabapentinoids) as Neurontin (gabapentin), citing the Physician's Desk Reference, available at https://pdr.net/drug-information/lyrica?druglabelid=467; and https://pdr.net/drug-information/neurontin?druglabelid=2477. (ECF No. 17-7 at 3, ¶ 10.) The Court finds it appropriate to take judicial notice of well-known medical facts, such as those contained in the Physician's Desk Reference. See Cutler, 2011 WL 4479025, at *7 n.4. Accordingly, the request is granted.
Dr. Feinberg explained that the upper limit of normal for CRP (C-reactive protein) is 8. (Feinberg Decl. ¶ 39.) A person's CRP level "can be elevated in response to inflammation such as that caused by infection or cancer, but does not rise in response to pain." (Id.)
On June 10, 2019, Plaintiff was seen by Rajesh Patel, MD in psychiatry for a mental health consultation as requested. (Id. at 114-16.) Dr. Patel documented that he would be sending a message to Dr. Saha regarding Cymbalta which he felt might be activating Plaintiff's bipolar disorder and suggested that Dr. Saha instead "look into [the] option of Trileptal or Lyrica." (Id. at 114.) Plaintiff reported feeling irritable and short tempered on Cymbalta. (Id.) Dr. Patel followed up with a message to Dr. Saha. (Id. at 117.)
On June 12, 2019, Plaintiff was seen for a physical therapy consultation. (Id. at 118.) Plaintiff was observed to have "[n]o difficulties or abnormalities . . . with his gait," to have full strength, and to be "[f]ully mobile and ind[ependent] with everything." (Id.) Plaintiff reported feeling "very strongly that therapy won't do anything for him, as he already does [a] stretch and strength routine almost daily for back health." (Id.) The therapist noted that "[d]ue to patient's lack of interest in therapy and his knowledge of HEP, further treatment is not warranted at this time." (Id.)
On June 13, 2019, Plaintiff was seen by a nurse and Dr. Saha regarding Plaintiff's complaints of worsening lower back pain. (Id. at 120-21.) Dr. Saha noted Plaintiff's recent visit to psychiatry and the recommendation to discontinue Cymbalta and consider a trial for Trileptal or Lyrica. (Id. at 120.) Dr. Saha did not consider Plaintiff a good candidate for a controlled substance like Lyrica and informed Plaintiff as such. (Id.) However, due to multiple side effects, including hyponatremia, with Trileptal, Dr. Saha decided to defer to psychiatry and referred Plaintiff to psychiatry for a possible trial of Trileptal. (Id.) Dr. Saha noted that Plaintiff was to continue his current pain medication with Tylenol as needed for pain and noted that Plaintiff "was observed walking with walker with good posture" and "no gait abnormality." (Id.)
On June 21, 2019, Plaintiff was seen for a cardiology follow-up with Mohammed Pashmforoush, MD. (Id. at 122-23.) Dr. Pashmforoush reviewed Plaintiff's past cardiac history including his recent evaluation earlier that month. (Id. at 122.) Due to Plaintiff's complaints about severe headaches from the recently added isosorbide mononitrate, Dr. Pashmforoush recommended that Plaintiff continue with his current medications except for the isosorbide mononitrate. (Id.) Dr. Pashmforoush added that his "suspicion for active ischemia is fairly low," noting that Plaintiff "is able to walk long distances and exert himself without any angina." (Id.) Dr. Pashmforoush recommended a follow-up in six months. (Id.)
On June 28, 2019, Plaintiff was seen by Dr. Saha for a follow-up. (Id. at 124-27.) Regarding Plaintiff's chronic low back pain, Plaintiff was noted to no longer be on Cymbalta, having been switched by psychiatry to lamotrigine. (Id. at 126.) Plaintiff was advised to inform healthcare staff if he was interested in another epidural steroid injection, to continue activity modifications, to continue support with back brace, walker, and cane, to continue to use Voltaren gel and Tylenol for pain as needed, and to continue stretching exercises. (Id.) Dr. Saha also requested a repeat MRI of the lumbar spine due to Plaintiff's complaints of worsening symptoms. (Id.; see also ECF No. 23 at 237-41.)
On July 8, 2019, Plaintiff's repeat CRP test came back within the normal range at 3.9. (Id. at 129.)
On July 15, 2019, Plaintiff was seen for follow-up by Dr. Saha. (Id. at 128-29.) On exam, Plaintiff was noted to be able to sit comfortably, walk with a walker without any difficulty, and ambulate with normal gait in and out of the office. (Id. at 128.) An examination of the back showed normal findings. (Id. at 129.) Nonetheless, due to Plaintiff's complaints that his symptoms were not improved, Dr. Saha submitted a request for an epidural steroid injection. (Id.)
On July 19, 2019, Plaintiff informed a nurse that he disagreed with the safety of Tylenol to treat long-term chronic pain and informed her that he throws the medication away. (ECF No. 23 at 243.)
On July 25, 2019, Plaintiff was offered and refused a wheelchair. (Id. at 223.)
On July 31, 2019, Dr. Saha was asked to consult with a nurse regarding Plaintiff's back pain. (ECF No. 17-6 at 130-31.) Plaintiff appeared to have a new mild weakness in the right leg, and Dr. Saha had Plaintiff sent to Tri-City Medical Center to rule out cord compression. (Id. at 130.)
On July 31, 2019, Plaintiff was seen in the emergency department at Tri-City Medical Center. (Id. at 132-33.) X-rays of the lumbar spine showed moderate L5-S1 degenerative disc disease with no acute abnormality and x-rays of the sacrum and coccyx were negative. (Id. at 133.) Plaintiff's ESR and CRP were "within normal limits thus low suspicion for infectious etiology." (Id.) Plaintiff was given Toradol and Flexeril for the pain. (Id.) Physician Assistant Jackie Luu's impression was that Plaintiff's symptoms were "likely secondary to acute [or] chronic low back pain," noting a history suggestive of spinal stenosis. (Id.) No medications were prescribed on discharge from the emergency department, but gabapentin, Elavil, or naproxen were recommended for pain as well as a follow-up appointment with the prison provider. (Id.)
On August 6, 2019, Plaintiff was seen by Dr. Saha for a follow-up appointment. (Id. at 134-35.) Dr. Saha reviewed the emergency room recommendations with Plaintiff. (Id. at 134.) Dr. Saha explained that Plaintiff was not a candidate for NSAIDs such as naproxen due to being on dual antiplatelet therapy. (Id.) Dr. Saha further explained that Plaintiff was not a candidate for a tricyclic antidepressant such as Elavil due to his history of cardiac disease. (Id.) Dr. Saha also explained to Plaintiff the FDA indications for gabapentin, the recent memorandum regarding the use of gabapentin, and Plaintiff's past history of substance abuse in explaining why Plaintiff was not a good candidate for gabapentin. (Id.) A physical examination could not be performed as Plaintiff became argumentative, stating "I will see you in court," and left the room. (Id.)
On September 10, 2019, Plaintiff was scheduled for, but reportedly refused, the MRI of his lumbar spine. (Id. at 136-38; see also ECF No. 23 at 354-56.) Plaintiff denies refusing the MRI. (ECF No. 23 at 355.)
On September 26, 2019, Plaintiff was seen for chronic care PCP follow-up by Peyman Shakiba, MD. (ECF No. 17-6 at 139-40.) Dr. Shakiba noted that Plaintiff's "main focus today is to get gabapentin or pregabalin for pain because [he] reports no other pain medication works for him." (ECF No. 17-6 at 139.) Plaintiff arrived at the appointment using a cane. (Id. at 140.) However, Dr. Shakiba documented that Plaintiff walked with a normal gait and noted that his "cane does not even touch the ground." (Id.) Dr. Shakiba further observed Plaintiff jump on and off the exam table without any difficulty and observed no grimacing throughout the visit. (Id.) Dr. Shakiba did not complete Plaintiff's physical exam, because Plaintiff left after realizing he would not be getting pain medication. (Id.) Dr. Shakiba's assessment was that Plaintiff's ADLs did not appear to be affected based on observation of Plaintiff's ambulation, that there was no indication for Plaintiff to be on any narcotic pain medications, gabapentin, or Lyrica (pregabalin), and that Plaintiff could continue with his currently prescribed pain medications. (Id.) Dr. Shakiba also discontinued the order for a walker that Plaintiff had received many months prior. (Id. at 142-43.) Plaintiff refused to return the walker and left the clinic, with the nurse noting that Plaintiff "left the clinic with the use of the cane ambulating with a steady gait." (Id. at 142.)
Lyrica is also known as pregabalin. (Feinberg Decl. ¶ 39.)
On October 10, 2019, Plaintiff was scheduled for, but refused, the epidural steroid injection of his lumbar spine. (Id. at 144.)
On October 29, 2019, Dr. Shakiba noted in Plaintiff's medical file that "there is no medical indication at this time for an MRI" as Plaintiff "is able to do ADL and ambulates without any difficulty." (ECF No. 23 at 355-56.)
On January 6, 2020, Dr. Shakiba noted in Plaintiff's medical file that Plaintiff was observed to be malingering as he "repeatedly has been observed to ambulate normally" and "was seen ambulating normally outside the clinic." (Id. at 365-66.) Dr. Shakiba further noted that Plaintiff was refusing epidural injections for his back and all other nonnarcotic and non-pregabalin (Lyrica) treatment, adding that there was no indication for Lyrica or narcotic pain medication. (Id. at 365.)
On January 24, 2020, Plaintiff was transferred to Valley State Prison. (Id. at 53.)
On June 18, 2020, Plaintiff's case was evaluated by the CCHCS pain management committee for his chronic lower back pain. (ECF No. 17-6 at 145.) Plaintiff's case was presented by Rachelle Torres, MD. (Id.) The committee reviewed Plaintiff's history, failed medications, significant clinical findings, and objective data including x-rays and MRIs, and recommended as follows: "no indication for Lyrica or opiates." (Id.)
On June 30, 2020, Plaintiff was seen for PCP follow-up by Dr. Torres. (Id. at 146-49.) Dr. Torres discussed with Plaintiff the outcome of the pain management committee. (Id.) Plaintiff was informed that "he is not a candidate for gabapentin or Lyrica according to CCHCS guidelines." (Id.) He was reported as being "somewhat upset, and noted to the medical assistant that he will be opening up another lawsuit." (Id.) He also "reported to the medical assistant that he will start to submit more 7362's." (Id.)
B. Policies and Guidance
"While in years past it was not unusual for patients in this country to be prescribed opioids such as morphine for chronic musculoskeletal pain, expert opinions and national guidelines have moved away from this approach over the past several years." (Feinberg Decl. ¶ 13.) "Current medical best practices disfavor the use of opioids for chronic non-cancer pain, so as to minimize the risks of opioid dependence, addiction, and overdose." (Id.)
CDCR's 2019-2020 pain management policies "reflect the nation's opioid crisis, which has impacted inmates of prison facilities disproportionately." (Id. ¶ 14.) "The study entitled "Analysis of 2016 Inmate Death Reviews in the California Correctional Healthcare System" (Oct. 8, 2017) (authored by Kent Imai, MD), documents that the death rate from drug overdoses - most of which relate to abuse of opioids - had actually increased over the previous decade, and the death rate from drug overdoses in California's prisons was three times higher than in all U.S. state prisons." (Id.) Dr. Imai's report explained the disproportionate impact on California prisons and the campaign to end it as follows:
Available at https://cchcs.ca.gov/wp-content/uploads/sites/60/2017/11/2016-Inmate-Death-Reviews.pdf, pp. 31-32.
It should be recognized that this problem mirrors what is known to be happening in American society. The so-called opioid epidemic has resulted in similar increases in opioid use, abuse, addiction, and death by overdose. The Center for Disease Control (CDC) reported in January 2016, that drug overdose death rates had more than doubled from 2000 to 2014, from 6.2 to 14.7/100,000. The CCHCS has experienced a similar rise in drug overdose death rates over the past eleven years, with rates ranging from a low of 5.3/100,000 in 2007 to a high of 22.5/100,000 in 2016. The national concern
triggered by this problem has produced a campaign to educate the public about the dangers of addiction and overdose which accompany narcotic prescriptions for chronic non-cancer pain, and to educate prescribing physicians about safer opioid prescribing practices and encouraging the use of buprenorphine and naloxone to make opioid narcotic use less prone to death by overdose.(Id.)
Id. at p. 32.
On October 11, 2018, J. Clark Kelso, Receiver for medical care within CDCR, appointed pursuant to the Plata v. Schwarzenegger class action, issued a memorandum entitled "Treatment to Reduce the Burden of Disease and Deaths from Opioid Use Disorder." (ECF No. 17-6 at 151-53; see also Feinberg Decl. ¶ 15.) Citing the Imai study, the memorandum acknowledged that the death rate in California prisons was three times higher than in all U.S. state prisons. (Id. at 151.) The memorandum directed CDCR and CCHCS to begin planning for an expanded drug treatment program that focused upon "reducing opioid overdose deaths within CDCR." (Id. at 153.)
CDCR's current policies "reflect the recommendations of the United States Department of Health and Human Services, Center for Disease Control and Prevention [("CDC")]." (Feinberg Decl. ¶ 16.) The CDC has promulgated guidelines, which also strongly warn against the use of opiates, such as morphine, in the treatment of chronic non-cancer pain. (Id.)
See CDC Guideline for Prescribing Opioids for Chronic Pain, March 18, 2016, available at www.cdc.gov/drugoverdose/prescribing/guideline.html. Defendants request judicial notice of the authenticity and contents of this publication. (ECF No. 17-7 at 2, ¶ 5.) Because a government publication is a matter of public record and can be easily verified, it is a proper subject of judicial notice. See Corrie v. Caterpillar, Inc., 503 F.3d 974, 978 n.2 (9th Cir. 2007) (explaining that a court may take judicial notice of a government publication); see also Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006) (taking judicial notice of public records that "can be accessed at Santa Monica's official website"); Gent v. CUNA Mut. Ins. Soc'y, 611 F.3d 79, 84 n.5 (1st Cir. 2010) (taking judicial notice of information concerning the transmission of Lyme Disease from the CDC website). As the Court finds the publication relevant to this action, it takes judicial notice of the publication.
The Imai study and CDC guidelines have been utilized in establishing the current CCHCS Care Guide, "which reflects the strong disfavor of opiates in the treatment of chronic non-cancer pain in California prisons." (Id. ¶ 17.) "The guidelines also contain recommendations for discontinuation in cases where benefits are outweighed by risk, or where psychiatric instability, past substance abuse, or suspected abuse and/or diversion is present." (Id.)
See CCHCS Care Guide: Pain Management Part 3 - Opioid Therapy, March 2019. Defendants request judicial notice of the authenticity and contents of this care guide and of CCHCS Care Guide: Pain Management Part 2 - Therapy - Non-Opioid, September 2018, both available at https://cchcs.ca.gov/clinical-resources/. (ECF No. 17-7 at 2-3, ¶¶ 6, 7.) The Court finds the CCHCS publications relevant and the proper subject of judicial notice, and therefore takes judicial notice of their authenticity and the existence of the contents therein. See Corrie, 503 F.3d at 978 n.2; Santa Monica Food Not Bombs, 450 F.3d at 1025 n.2; see also Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001). However, the Court declines to receive the contents as evidence of the truth of the matters asserted therein as doing so is unnecessary for purposes of addressing this motion.
On or about April 18, 2019, CCHCS issued a memorandum stating that on February 12, 2019, the Systemwide Pharmacy and Therapeutics Committee reviewed gabapentin, its utilization, and recent patient-safety concerns with the drug. (ECF No. 17-6 at 155-56; see also Feinberg Decl. ¶ 22.) Given its high utilization in some institutions, the Committee decided to restate gabapentin's place in therapy. (Id. at 155.) The memorandum states that gabapentin is "a non-formulary medication that is FDA approved for the following two indications: (1) partial seizures and (2) postherpetic neuralgia." (Id.) The memorandum also states that "[t]here is minimal and weak evidence to support gabapentin use in the treatment of other types of neuropathic pain, including diabetic neuropathy." (Id.) The memorandum further notes the following findings in recent articles questioning the safety of gabapentin:
• 40 to 65% of people prescribed gabapentin misuse the medication.
• 15 to 22% of people abusing opioids also abuse gabapentin.(Id.) Given the foregoing, the Committee urged health care providers "to limit prescribing gabapentin to its FDA-approved indications as clinically appropriate" and directed institutional clinical staff to be trained to implement accordingly. (Id.)
• Autopsies and toxicology screenings discovered that 22% of people who died from a drug overdose had gabapentin in their systems.
• Concomitant gabapentin and opioid exposure was associated with 49% higher risk of dying from an opioid overdose.
C. CDCR Forms and Responses
1. CDC 7362 Health Care Services Request Forms
Plaintiff filed several CDC 7362 Health Care Services Request Forms, to which CCHCS responded. (See ECF No. 23 at 49-98; see also id. at 141-206.) In RJD HC 19001286, Plaintiff requested, among other things, to know which policy dictated that Plaintiff's order for gabapentin be discontinued. (ECF No. 23 at 74.) In the Institutional Level Response, dated October 30, 2019, CCHCS stated:
A [CCHCS] memorandum dated April 18, 2019 and entitled Gabapentin, directs California[] Department of Correction and Rehabilitation Health Care Services providers to limit prescribing Gabapentin to Food and Drug Administration (FDA) approved indications as clinically appropriate. Your previous order for Gabapentin was initiated for degenerative disk disease; however, this is not an FDA approved clinical indication. You were seen by your primary care provider on May 29, 2019 and your order for Gabapentin was discontinued. You were offered Cymbalta as an alternate medication for pain management.(Id. at 75.)
In the Headquarters' Level Response, dated January 15, 2020, CCHCS stated the following:
All prescriptions for gabapentin require nonformulary approval and are restricted to adjunctive therapy for partial onset seizures and post herpetic neuralgia, and can be considered in cases of objective evidence of severe disease, as outlined in the CCHCS Care Guide: Pain Management Part 2 -
Therapy- Non-Opioid.(Id. at 72.)
On multiple occasions, CCHCS noted that Plaintiff's PCP did not document a current condition that meets the criteria for nonformulary use of gabapentin. (See id. at 72, 75, 77, 80, 83, 92, 95.)
In response to additional complaints about Plaintiff's pain management, CCHCS responded:
[CCHCS] health care providers are trained to treat multiple types of pain in a systematic, step-wise approach based on comprehensive assessment and planning, as outlined in the CCHCS Care Guide: Pain Management. Complete pain relief is not a realistic goal. The goal is to reduce pain and improve function while avoiding significant side effects and risks associated with stronger pain medications or surgery. The assessment and monitoring of your pain is an ongoing process.(Id. at 86; see also id. at 54, 60, 72, 83, 89-90, 95-96.)
Many patients with chronic pain are able to manage adequately without medications and can function at a near-normal level. Patient-specific factors such as comorbidities, co-medications, previous history, and risk/benefit assessment are considered when making drug selection. Opioids are not the preferred treatment for chronic pain. Non-pharmacologic therapies and non-opioid therapies are preferred for managing chronic non-cancer pain. The guidelines for opioid therapy outlined in the CCHCS Care Guide: Pain Management Part 3 - Opioid Therapy, are based on the 2016 Centers for Disease Control and Prevention (CDC) Guidelines for Prescribing Opioids.
2. CDCR 22 Inmate/Parolee Requests for Interview, Item or Service
Between May 20, 2019 and August 15, 2019, Plaintiff submitted several CDCR 22 Inmate/Parolee Requests for Interview, Item or Service complaining of back pain and alleging that Dr. Saha was deliberately indifferent to his back pain. (ECF No. 23 at 375-81.) Plaintiff stated that Tylenol was not working for his pain and that he was unable to complete his daily activities, unable to sleep, unable to exercise, and unable to walk without pain. (Id. at 377-79.) Plaintiff also requested neurological medication (e.g., Lyrica or gabapentin). (Id. at 380.)
Dr. Deel responded to five of Plaintiff's CDCR 22 forms and Dr. Clayton responded to one. (Id. at 375-80.) On May 30, 2019, Dr. Deel informed Plaintiff that Dr. Saha was tapering him off gabapentin and had taken him off morphine because neither medication is appropriate for chronic pain. (Id. at 376.) On June 20, 2019, Dr. Deel informed Plaintiff that psychiatry had recommended against using Cymbalta and that due to his history of drug abuse, controlled substances such as opioids (e.g., morphine) and Lyrica or gabapentin are not recommended. (Id. at 377.) Dr. Deel further informed Plaintiff that his PCP was working to come up with a good pain control regimen. (Id.) In the meantime, Tylenol is the best medication for chronic pain. (Id.) On August 23, 2019, Dr. Clayton responded to Plaintiff's request for neurological medication, stating, "If you disagree with your doctor's care, you have the right to file a healthcare grievance." (Id. at 380.)
II. LEGAL STANDARDS
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56 empowers a court to enter summary judgment on factually unsupported claims or defenses to "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Summary judgment is appropriate if the materials in the record, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc).
Each party's position as to whether a fact is disputed or undisputed must be supported by: (1) citation to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) a showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1). The court may consider other materials in the record not cited to by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3). If a party supports its motion by declaration, the declaration must set out facts that would be admissible in evidence and show that the affiant or declarant is competent to testify on the matters stated. Fed. R. Civ. P. 56(c)(4). An affidavit will not suffice to create a genuine issue of material fact if it is "conclusory, self-serving . . . [and] lacking detailed facts and any supporting evidence." F.T.C. v. Publ'g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A fact is material if it could affect the outcome of the suit under the governing substantive law. Id. at 248. Where, as here, the opposing party will have the burden of proof at trial, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325.
When a defendant seeking summary judgment has carried its burden under Rule 56(c), the burden shifts to the plaintiff who "must do more than simply show that there is some metaphysical doubt as to the material facts." Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). The plaintiff "must come forward with specific facts showing that there is a genuine issue for trial." Matsushita, 475 U.S. at 587 (internal citation omitted). If the plaintiff fails to make a sufficient showing of an essential element of its case, the defendant is entitled to judgment as a matter of law. Celotex, 477 U.S. at 322-23. In ruling on a motion for summary judgment, the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor. Anderson, 477 U.S. at 255.
B. Other Legal Standards
"Section 1983 does not create any substantive rights, but is instead a vehicle by which plaintiffs can bring federal constitutional and statutory challenges to actions by state and local officials." Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006); see also Graham v. Connor, 490 U.S. 386, 393-94 (1989). It provides that:
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, 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 purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights." McDade v. West, 223 F.3d 1135, 1139 (9th Cir. 2000).
"To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right secured by the Constitution and laws of the United States, and (2) that the deprivation was committed by a person acting under color of state law." Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012); see also Rawson v. Recovery Innovations, Inc., 975 F.3d 742, 747 (9th Cir. 2020) ("Pursuant to § 1983, a defendant may be liable for violating a plaintiff's constitutional rights only if the defendant committed the alleged deprivation while acting under color of state law.").
Section 1983 requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 692-95 (1978) ("Congress did not intend § 1983 liability to attach where . . . causation [is] absent."). "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).
Supervisory prison officials may be liable under § 1983 if they were "personally involved in the constitutional deprivation or a sufficient causal connection exists between [their] unlawful conduct and the constitutional violation." Lemire v. Cal. Dep't of Corr. & Rehab., 726 F.3d 1062, 1085 (9th Cir. 2013) (citation omitted). This causal connection can be established by "knowingly refusing to terminate a series of acts by others, which the supervisor[s] knew or should have known would cause others to inflict a constitutional injury." Id. (quoting Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011)).
2. Qualified Immunity
Qualified immunity shields government officials under § 1983 unless "(1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was 'clearly established at the time.'" District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). A court may exercise its discretion in deciding which of the two prongs to address first. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
"A clearly established right is one that is 'sufficiently clear that every reasonable official would have understood that what he is doing violates that right.'" Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (quoting Reichle, 566 U.S. at 664). While a case need not be on all fours, "existing precedent must have placed the statutory or constitutional question beyond debate." Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citations omitted). Qualified immunity "protects 'all but the plainly incompetent or those who knowingly violate the law.'" Wesby, 138 S. Ct. at 589 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
A court must consider "whether the violative nature of [the defendants'] particular conduct is clearly established . . . in light of the specific context of the case." Hamby v. Hammond, 821 F.3d 1085, 1091 (9th Cir. 2016) (alteration in original) (quoting Mullenix, 577 U.S. at 12). The Supreme Court has made clear that a court must consider the "specific facts under review." Id. at 1090; see City & Cnty. of S.F. v. Sheehan, 575 U.S. 600, 135 S. Ct. 1765, 1775-76 (2015) ("We have repeatedly told courts—and the Ninth Circuit in particular—not to define clearly established law at a high level of generality." (quoting al-Kidd, 563 U.S. at 742)). /// /// /// ///
III. DISCUSSION
A. Parties' Filings
1. Defendants' Motion
Defendants move for summary judgment on the grounds that there is no genuine issue of material law as to any material fact and Defendants are entitled to judgment as a matter of law. (ECF No. 17 at 6.) In the alternative, Defendants move for partial summary judgment on each of Plaintiff's claims on the grounds that there is no genuine issue of material law as to any material fact as to each claim and Defendants are entitled to judgment as a matter of law. (Id.) Defendants argue there is no triable issue of material fact as to Plaintiff's claims because there is no evidence that Defendants "were aware of and consciously disregarded any serious risk to Plaintiff's health or medical needs, no evidence that they failed to summon medical care for an immediate serious medical need, no evidence of retaliation for an exercise of Plaintiff's First Amendment rights, and no evidence that Defendants caused any harm." (Id.) Defendants further move for summary judgment on their affirmative defense of qualified immunity. (Id.)
Citing the CCHCS memorandum of April 18, 2019, Defendants argue that the "combination of morphine and gabapentin is widely abused and potentially lethal" and provision of these drugs, which were demanded by Plaintiff, "who has a known drug addiction problem, would be contraindicated and a danger to his health and well-being." (Id. at 23.) Defendants argue that "Plaintiff has no need for these powerful drugs" because although he claimed to need a cane to walk, Plaintiff was able to play soccer, and at the same time he claimed to be in intractable pain, he was observed walking normally on the yard. (Id.) Defendants highlight that Plaintiff "tested negative for opiates at a time he was supposedly taking them twice a day, raising drug diversion fears." (Id.) Defendants argue that, "[i]n short, Plaintiff has utilized manipulative behavior and deception to try to obtain the narcotics he desires, and this lawsuit is an extension of that behavior." (Id.) Defendants argue that the Eighth Amendment does not guarantee an inmate his choice of medication and "certainly does not require a physician to prescribe medications that are, under the circumstances, medically inappropriate and extremely dangerous to the patient." (Id. at 23-24.)
Defendants further argue that there is no evidence they were deliberately indifferent to Plaintiff's medical needs. (Id. at 24-27.) Defendants argue that they did not observe Plaintiff in severe, intractable pain and other medical professionals who examined Plaintiff during the same time period similarly found him to be suffering little or no pain. (Id. at 24, 27.) Defendants' expert, Dr. Feinberg, has opined that opiates and gabapentin are "clearly unnecessary and contra-indicated" for Plaintiff. (Id. at 24.) Dr. Feinberg has further opined that Plaintiff was offered adequate pain relief medications and therapies, including:
• Referral to physical therapy and stretching exercises.(Id.)
• Referral to mental health services for chronic pain management/cognitive behavioral therapy.
• Referral for epidural steroid injections for his chronic back pain.
• Medications including Cymbalta, Tylenol, topical capsaicin and Voltaren gel, as needed for pain.
Defendants note that Plaintiff also refused the following treatment:
• On September 10, 2019, Plaintiff was scheduled for, but refused, an MRI of his lumbar spine.(Id. at 24-25.)
• On October 10, 2019, Plaintiff was scheduled for, but refused, an epidural steroid injection of his lumbar spine.
• On June 12, 2019, Plaintiff was seen for a physical therapy consultation as requested. Plaintiff was observed to have "no difficulties or abnormalities [] with his gait," and to be "fully mobile and independent with everything." Plaintiff was discharged the same day due to his lack of interest in participating.
Defendants add that the medical records establish that "Plaintiff was continuously seen, treated, and monitored by an inter-disciplinary team of doctors and specialists[,]" including his PCP, emergency room physicians at Tri-City Medical Center, TTA doctors, internal medicine specialists, a cardiologist, and many different nurses. (Id. at 25.) Plaintiff was seen at least seventeen times between April 1, 2019 and September 26, 2019. (Id.) In addition, Plaintiff's "demands for morphine and gabapentin/pregabalin were reviewed and rejected by Donovan Chief Physician and Surgeon Ryan Barenchi, M.D., and a CCHCS Pain Management Committee." (Id.) Lastly, Defendants aver that they provided Plaintiff with high quality medical care to the best of their abilities, bore him no personal animus or ill will, and that any decision regarding his treatment was made with the goal of improving his personal health and well-being. (Id. at 26-27.)
Next, Defendants claim they are entitled to summary judgment on Plaintiff's retaliation claim on the basis that Plaintiff "cannot demonstrate any linkage between his litigation threat and the discontinuation of his morphine and gabapentin." (Id. at 27.) Defendants argue that Dr. Clayton and Dr. Saha already contemplated discontinuing Plaintiff's morphine and gabapentin prior to Plaintiff's threat of litigation, that Plaintiff fails to demonstrate any chilling effect on his First Amendment rights, and Defendants' actions "clearly advanced the legitimately penological goal of preserving inmates' lives and well-being." (Id. at 28-29.)
Lastly, Defendants argue they are entitled to qualified immunity on the grounds that there are no authorities standing for the proposition that gabapentin and morphine are constitutionally required under the circumstances or that an inmate has a constitutional right to choose a particular medication for pain treatment, particularly when that inmate is receiving extensive care for his back and pain conditions. (Id. at 30-31.)
2. Plaintiff's Opposition
Plaintiff claims that he suffers from chronic back pain along with severe neuropathic pain caused by mild to moderate degenerative disc disease in his lumbar spine. (ECF No. 23 at 9.) Plaintiff had been prescribed gabapentin for severe neuropathic pain since November 2016. (Id.) Plaintiff asserts that CCHCS policy in place in September 2018 permitted the use of gabapentin for severe neuropathic pain and that Defendants continued to prescribe gabapentin for Plaintiff in 2018 and April 2019. (Id. at 9-10.) Plaintiff contends that Defendants relied on the opinions of non-treating medical officials in deciding to taper him off gabapentin and morphine and substitute over-the-counter medication (e.g., Tylenol). (Id. at 10.) Plaintiff asserts that Defendants were aware that he was in severe intractable pain. (See, e.g., id. at 17-20.) Plaintiff further contends that Defendants refused to prescribe him any neurological pain medication. (Id.) Plaintiff asserts that Defendants were inattentive to his medical needs by refusing "to provide a course of treatment [that] 'well controlled [his] pain.'" (Id.) Additionally, Plaintiff asserts that while his disease progressed from mild to moderate, Defendants only "resorted to past failed treatments and/or over-the-counter medications." (Id. at 34.)
With respect to his retaliation claim, Plaintiff contends that Dr. Saha and Dr. Clayton conspired to take an adverse action against him for threatening a course of legal action against Dr. Saha. (Id. at 35-36.)
3. Defendants' Reply
Defendants argue the material facts remain undisputed. (ECF No. 24 at 2.) Defendants claim it is undisputed that they provided Plaintiff with "abundant medical care and alternative pain management therapies." (Id. at 2-4.) Defendants referred Plaintiff for physical therapy, epidural injections, and chronic pain management/cognitive behavioral therapy through mental health services, and Defendants provided medications including Cymbalta, Tylenol, topical capsaicin, and Voltaren gel as needed for pain. (Id. at 4.) "Defendants' course of action complied with CCHCS guidelines and warning memorand[a] and was reviewed multiple times and found to be medically sound." (Id.) This includes reviews by the "CCHCS Chief of Policy and Risk Management, and the CCHCS Pain Management Committee." (Id.) Under these circumstances, Defendants argue that Plaintiff cannot prove deliberate indifference, and summary adjudication of Plaintiff's Eighth Amendment deliberate indifference claim is appropriate. (Id.)
Defendants further argue that Plaintiff has failed to raise a triable issue of fact with respect to at least three elements of a retaliation claim: that Defendants took adverse action in response to his threat to sue, that his First Amendment rights were chilled, and that the action taken did not advance a legitimate penological goal. (Id. at 4-5.)
Lastly, Defendants argue that they are entitled to qualified immunity as Plaintiff has shown "no authorities that stand for the proposition that dangerous drugs such as [N]eurontin (gabapentin) or morphine are constitutionally required under these circumstances." (Id. at 6.) In addition, Defendants argue that "Plaintiff has shown no authority sufficient to put Defendants on notice that the combination of physical therapy, referral for epidural injections, referral to mental health for chronic pain management/cognitive behavioral therapy, housing accommodations and medications including Cymbalta, Tylenol, topical capsaicin and Voltaren gel as needed for pain were medically unacceptable treatment for moderate chronic back pain." (Id.)
B. Analysis
1. Deliberate Indifference to Serious Medical Needs
a. Legal Standard
The government has an "obligation to provide medical care for those whom it is punishing by incarceration," and failure to meet that obligation can constitute an Eighth Amendment violation cognizable under § 1983. Estelle v. Gamble, 429 U.S. 97, 103-05 (1976). In order to prevail on an Eighth Amendment claim for inadequate medical care, a plaintiff must show "deliberate indifference" to his "serious medical needs." Id. at 104. This includes "both an objective standard—that the deprivation was serious enough to constitute cruel and unusual punishment—and a subjective standard—deliberate indifference." Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc).
To meet the objective element of the standard, a plaintiff must demonstrate the existence of a serious medical need. Estelle, 429 U.S. at 104. Such a need exists if failure to treat the injury or condition "could result in further significant injury" or cause "the unnecessary and wanton infliction of pain." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotation marks omitted) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled in part on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)).
A prison official is deliberately indifferent under the subjective element of the test only if the official "knows of and disregards an excessive risk to inmate health and safety." Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (internal quotation marks omitted) (quoting Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002)). This "requires more than ordinary lack of due care." Farmer v. Brennan, 511 U.S. 825, 835, (1994) (internal quotation marks omitted) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). "[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837. Deliberate indifference "may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care." Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988).
"In deciding whether there has been deliberate indifference to an inmate's serious medical needs, [courts] need not defer to the judgment of prison doctors or administrators." Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989). "Yet, an 'inadvertent [or negligent] failure to provide adequate medical care' alone does not state a claim under § 1983." Jett, 439 F.3d at 1096 (quoting Hutchinson, 838 F.2d at 392); see also Estelle, 429 U.S. at 106 ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner."); Toguchi, 391 F.3d at 1057 ("Mere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth Amendment rights." (citation omitted)). Moreover, "[a] difference of opinion between a physician and the prisoner—or between medical professionals—concerning what medical care is appropriate does not amount to deliberate indifference." Snow, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)). ///
b. Analysis
i. Serious Medical Need
Plaintiff claims that he suffers from mild to moderate degenerative disc disease in his lumbar spine, which causes chronic back pain and severe neuropathic pain, and that this condition is a serious medical need. (ECF No. 1 at 3-5; ECF No. 23 at 9, 23-24.) Indications that a plaintiff has a serious medical need include "[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." McGuckin, 974 F.2d at 1059-60. Each of these indicators is present here.
Plaintiff's medical records reflect that he has been diagnosed with mild to moderate L5-S1 degenerative disc disease. Plaintiff's medical records indicate that he had back surgery, a lumber laminectomy, in or around 1999. (ECF No. 17-6 at 5.) On September 6, 2012, an x-ray of Plaintiff's spine showed moderate degenerative disc disease at the L5-S1. (ECF No. 23 at 391.) On May 26, 2017, an MRI of Plaintiff's lower spine showed that he had "[m]ild degenerative changes with loss of disc space height and disc protrusion at L5-S1." (ECF No. 17-6 at 5; see also ECF No. 23 at 395, 397-400.) On May 31, 2019, x-rays of Plaintiff's lumbar spine showed "[m]ild L5-S1 disc degenerative changes," with the overall impression being "mild L5-S1 arthrosis." (Id. at 106.) On July 31, 2019, Plaintiff was seen in the emergency department at Tri-City Medical Center. (Id. at 132-33.) X-rays of the lumbar spine showed moderate L5-S1 degenerative disc disease with no acute abnormality. (Id. at 133.)
Over the years, Plaintiff's doctors have treated him for chronic low back pain and neuropathic pain related to his mild to moderate degenerative disc disease. Plaintiff's doctors prescribed him various medications to deal with the pain including tramadol, gabapentin, methadone, morphine, capsaicin cream, Voltaren gel, ibuprofen, naproxen, Tylenol, and Cymbalta. (See, e.g., id. at 5, 10, 14, 18, 37, 60, 105, 112, 126.) Plaintiff was also given epidural steroid injections for his condition and referred to physical therapy and to mental health services for chronic pain management. (See, e.g., id. at 6, 7, 37, 112, 114, 118.) In addition, Plaintiff was provided with a back brace, a cane, and a walker to assist with his daily activities. (See, e.g., id. at 6, 62, 64.)
Based on the foregoing, the Court finds that Plaintiff's mild to moderate degenerative disc disease is a serious medical need. Defendants do not contend otherwise. Accordingly, the Court turns to examine whether Plaintiff has raised a genuine dispute of material fact over whether Defendants were deliberately indifferent to his serious medical need in violation of the Eighth Amendment.
ii. Deliberate Indifference
Plaintiff claims that Defendants were deliberately indifferent to his serious medical needs when they substituted over-the-counter pain medication (e.g., Tylenol, Voltaren gel, capsaicin cream) for his prescription pain medication (e.g., morphine and gabapentin) and continued this course of treatment knowing it ineffectively treated Plaintiff's pain. (ECF No. 23 at 25-26.) Plaintiff further claims that Defendants were deliberately indifferent when they failed to reinstate a course of treatment that they knew had Plaintiff's pain "well controlled." (Id.) As a result, Plaintiff suffered unnecessary pain with the loss of mobility. (Id. at 26.)
Here, Plaintiff expresses a strong disagreement with Defendants over the proper course of treatment for his chronic back pain. "However, a mere 'difference of medical opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference.'" Toguchi, 391 F.3d at 1058 (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (finding the plaintiffs' argument that one medication was superior to another and therefore should not have been discontinued was a mere difference of medical opinion). In order "to prevail on a claim involving choices between alternative courses of treatment, a prisoner must show that the chosen course of treatment 'was medically unacceptable under the circumstances,' and was chosen 'in conscious disregard of an excessive risk to [the prisoner's] health.'" Id. (quoting Jackson, 90 F.3d at 332). ///
Defendants have demonstrated by undisputed evidence that the course of treatment they chose was medically acceptable under the circumstances and that they did not choose this course of treatment in conscious disregard of an excessive risk to Plaintiff's health. On the contrary, Defendants, following CDC, FDA, CDCR, and CCHCS guidance on the dangers posed by gabapentin and opioids, chose a course of treatment with the "goal of improving [Plaintiff's] personal health and well-being." (See ECF Nos. 17-2 ¶ 4; 17-4 ¶ 4.) The record demonstrates that CDCR and CCHCS were concerned about the risks posed to inmates by gabapentin and opioids, including the risk of abuse and death. (See Feinberg Decl. ¶¶ 14, 16-17; ECF No. 17-6 at 151-56.) The record further demonstrates that in April 2019, the Chief Physician and Surgeon at RJD, Dr. Barenchi, acting on this concern, was systematically reviewing the chart of every patient on chronic opioid therapy at RJD in order to promote safe prescribing practices. (ECF No. 17-6 at 32-33.) In accordance with this review, Dr. Barenchi asked Dr. Saha to consider certain issues regarding Plaintiff.
See also United States v. Garrison, 888 F.3d 1057, 1059 (9th Cir. 2018) ("There is now an epic crisis of deadly opioid abuse and overuse. . . . [I]n 2017, the Acting Secretary of Health and Human Services declared the national opioid abuse epidemic a public health emergency.").
In his message to Dr. Saha, Dr. Barenchi noted that his review of Plaintiff's chart indicated that Plaintiff was at high risk for opioid abuse/diversion given his history of polysubstance abuse documented in the record. (Id. at 32.) Plaintiff's medical record dating back to at least 2017 indicated that Plaintiff had a history of polysubstance dependence involving cocaine, ecstasy, marijuana, and methamphetamines. (See, e.g., id. at 5-6, 11, 15, 36.) The concern about diversion proved prescient as Plaintiff tested negative for morphine on April 30, 2019 during a routine drug screen test despite being prescribed morphine and purportedly taking it twice a day. (Id. at 34-36.) Dr. Barenchi further noted that there is no clinical evidence to support the use of chronic opiates or gabapentin for Plaintiff's condition. (Id. at 32.) Additionally, Dr. Barenchi noted the fact that Plaintiff had reported playing soccer, which is inconsistent with a patient needing years of chronic opioid and gabapentin therapy. (Id.) Another physician at RJD, Dr. Goyal, had similarly noted on April 1, 2019, that if Plaintiff was able to play soccer, alternative therapies for pain control should be considered. (Id. at 22.)
Plaintiff disputes that he had a history of polysubstance dependence, but he does not dispute that a history of polysubstance dependence was documented in his medical records and that Defendants relied on this documentation. Moreover, although Plaintiff complains of Dr. Saha putting a notation about prior drug abuse in his file on May 20, 2019 in response to Plaintiff's threat of litigation (ECF No. 23 at 35), it is undisputed that nearly a month earlier, on April 25, 2019, Dr. Barenchi, upon review of Plaintiff's medical record, had already noted his history of polysubstance abuse (ECF No. 17-6 at 32). For purposes of the summary judgment motion, the relevant issue is not whether Plaintiff had a history of drug abuse or opioid abuse (see supra note 4), but whether Defendants reasonably relied on information indicating that he had a history of polysubstance dependence.
On May 20, 2019, Dr. Saha subsequently determined that it was in Plaintiff's best interest to taper Plaintiff's morphine because: (1) Plaintiff was able to play soccer regularly without any difficulty; (2) Plaintiff was able to perform his activities of daily living without any objective findings of dysfunction from chronic lower back pain, (3) Plaintiff was observed walking into the clinic without any difficulty and in no distress from pain; (4) Plaintiff had a positive history of illicit drug use, including use of cocaine, methamphetamines, and marijuana; (5) Plaintiff had multiple comorbidities including fatty liver and coronary artery disease; (6) there was no clear indication for continuing morphine; and (7) Plaintiff had a negative drug screen test suggesting possible drug diversion which poses potential risks to other inmates. (Id. at 36.) On the same day Dr. Saha informed Plaintiff that he was tapering his morphine, he also noted that he planned to continue Plaintiff's gabapentin prescription but planned to see Plaintiff in one month and consider switching gabapentin to another medication. (Id. at 37.)
On May 29, 2019, after a physical examination of Plaintiff and observing Plaintiff transition to chair and table with ease and ambulate briskly with minimal use of his cane, Dr. Clayton noted in Plaintiff's medical record that he agreed with Dr. Saha that neither morphine nor gabapentin is indicated for Plaintiff. (Id. at 104-05.) Dr. Clayton stated that based on his examination, he felt Plaintiff would do well with physical therapy and nonsteroidal anti-inflammatories as needed. (Id. at 104.)
Based on the foregoing, Defendants did not arbitrarily discontinue Plaintiff's course of treatment, which included morphine and gabapentin. Their decision relied on guidance from the FDA, CDC, CDCR, and CCHCS, objective medical data, several medical opinions, including the medical opinions of two of Plaintiff's treating physicians, and Plaintiff's medical history and observed and self-reported activities of daily living. (See ECF Nos. 17-2 at 2-3; 17-3 ¶ 6; 17-4 ¶ 8.) Although Plaintiff contends that Defendants denied him medical treatment solely in reliance on "state policy," the medical record indicates otherwise. (ECF No. 23 at 30-31.) Defendants did not discontinue Plaintiff's course of treatment simply because of a policy without medical input from his treating physicians. Moreover, Plaintiff's statement that other inmates continued to receive gabapentin after the April 18, 2019 memorandum was issued underlines the individualized nature of the determination. (Id. at 36.)
The record further reflects that beginning on the day Dr. Saha informed Plaintiff that he would begin tapering his morphine, Plaintiff continuously complained of being in severe and intractable pain and unable to complete his daily activities. However, despite no objective signs of Plaintiff being in severe, intractable pain or being unable to complete his daily functions, the record demonstrates that Defendants (and other prison healthcare providers) were responsive to Plaintiff's complaints of pain. Both Dr. Saha and Dr. Clayton continuously discussed with Plaintiff alternative courses of treatment, carefully avoided contraindications with Plaintiff's other conditions, and tried to find the best course of treatment to alleviate Plaintiff's pain. Plaintiff was prescribed several medications to deal with his back pain including capsaicin cream, Voltaren gel, ibuprofen, naproxen, Tylenol, and Cymbalta. (See ECF No. 17-6 at 37, 60, 64, 105, 112, 126.) Plaintiff was also given an epidural steroid injection for his condition and referred to physical therapy and to mental health services for chronic pain management. (See, e.g., id. at 6, 7, 37, 112, 114, 118.) In addition, Dr. Saha ordered x-rays and an MRI for Plaintiff and provided him with a back brace and a walker to assist with his daily activities. (See, e.g., id. at 6, 64.) When Plaintiff developed a new symptom, Dr. Saha immediately sent Plaintiff to Tri-City Medical Center to rule out cord compression. (Id. at 130.)
Defendants state they never saw or evaluated Plaintiff where he showed objective symptoms of severe and intractable pain. (See ECF Nos. 17-2 ¶ 7; 17-3 ¶ 4; 17-4 ¶ 7.) The record supports these statements as there is no indication that anyone observed Plaintiff in severe and intractable pain and unable to complete his activities of daily living.
For example, Dr. Saha informed Plaintiff that he was not a good candidate for Lyrica due to his history of alleged drug diversion and not a good candidate for a tricyclic antidepressant due to ongoing cardiac issues. (Id. at 112.) Dr. Saha also informed Plaintiff at one point that he should avoid naproxen and ibuprofen due to his newly prescribed heart medication. (Id.)
Although Plaintiff contends that Defendants refused to prescribe him any neurological pain medication, Dr. Clayton prescribed Cymbalta for Plaintiff's neuropathic pain as Plaintiff's gabapentin was being tapered off. (See ECF Nos. 23 at 10; 17-6 at 105.) Plaintiff was later taken off Cymbalta on June 13, 2019 only on the advice of psychiatrist Rajesh Patel, M.D. with mental health services. (ECF No. 17-6 at 117, 120.)
In determining Plaintiff's new course of treatment, Defendants listened to other physicians and Plaintiff himself and adjusted course as needed. For example, Dr. Saha discontinued capsaicin cream when Plaintiff felt it did not work and discontinued Cymbalta on the recommendation of Plaintiff's mental health provider. (Id. at 60, 64, 114-16, 134.) Plaintiff also refused several medications and treatment options, including Cymbalta (at least initially), the antiseizure medication carbamazepine, ibuprofen, Elavil (when initially discussed), nortriptyline, Tylenol, and an epidural injection. (Id. at 64, 87, 105, 144; see also ECF No. 23 at 243, 365.) Plaintiff also refused a trip to the emergency room recommended by Dr. Saha on May 24, 2019 in response to Plaintiff's complaints, including a complaint of worsening back pain. (Id. at 62, 66.) In addition, Plaintiff attended only one session of physical therapy with the therapist noting his lack of interest as well as his ability to demonstrate the program's strength and stretch routine. (Id. at 118.)
Defendants' decision to change Plaintiff's course of treatment was reviewed by several medical professionals after Plaintiff left Defendants' care. Each of these professionals agreed with Defendants' decision to discontinue Plaintiff's morphine and gabapentin. On September 26, 2019, four months after Dr. Saha began tapering Plaintiff's morphine, Dr. Shakiba assessed that Plaintiff's activities of daily living did not appear to be affected. (Id. at 140.) Dr. Shakiba also noted that there was no indication for Plaintiff to be on any narcotic pain medications, gabapentin, or Lyrica (pregabalin), and that Plaintiff could continue with his currently prescribed pain medications. (Id.) She also discontinued Plaintiff's walker, finding it unnecessary. (Id. at 142-43.)
After Plaintiff transferred prisons, his case was presented to the CCHCS pain management committee. (Id. at 145.) The committee reviewed Plaintiff's history, failed medications, significant clinical findings, and objective data including x-rays and MRIs, and found "no indication for Lyrica or opiates." (Id. at 145.) On appeal, CCHCS further stated that degenerative disc disease is not an FDA-approved clinical indication for gabapentin. (ECF No. 23 at 75.) Lastly, Defendants' expert, Dr. Feinberg, opined that based on his review of the medical records and his training and experience, that Plaintiff was offered "timely, adequate and appropriate medical attention and care, and the course of treatment offered was medically acceptable under the circumstances." (Feinberg Decl. ¶ 58.)
Based on the foregoing, Defendants have established that they were not deliberately indifferent to Plaintiff's serious medical need, and Plaintiff has failed to raise a genuine issue for trial that Defendants' chosen course of treatment was medically unacceptable under the circumstances and chosen in conscious disregard of an excessive risk to his health. See, e.g., DeGeorge v. Mindoro, No. 17-CV-06069-LHK, 2019 WL 2123590, at *7 (N.D. Cal. May 15, 2019) (finding no deliberate indifference where "the record shows that after discontinuing plaintiff's morphine prescription, defendants took other reasonable steps to abate plaintiff's pain" including prescribing alternate, non-narcotic pain medication, which the plaintiff refused to take, and recommending physical therapy); Wesley v. Sayre, No. C 08-5035 SI PR, 2010 WL 3398526, at *7 (N.D. Cal. Aug. 27, 2010) (finding no deliberate indifference where the plaintiff failed to show that the course of treatment chosen instead of methadone, such as the Tylenol # 3, amitriptyline, physical therapy, injections, and routine appointments along with a visit to a specialist, and x-rays and an MRI, was medically unacceptable); see also Estelle, 429 U.S. at 107 (finding "the question whether an X-ray or additional diagnostic techniques or forms of treatment [for a back injury] is indicated is a classic example of a matter for medical judgment" and noting that "[a] medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment"); Miller v. Cal. Dep't of Corr. & Rehab., No. 16-CV-02431-EMC, 2018 WL 534306, at *16 (N.D. Cal. Jan. 24, 2018) ("What exists here is the sort of differences of opinion about the best way to address pain [morphine vs. non-narcotic pain medications] that courts have repeatedly held either not to state a claim or not to create a triable issue on the deliberate indifference prong of an Eighth Amendment claim.") (collecting cases).
Accordingly, the Court RECOMMENDS that Defendants' motion for summary judgment be GRANTED as to Plaintiff's Eighth Amendment claim for deliberate indifference to serious medical needs.
2. Retaliation
a. Legal Standard
A prisoner "retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822 (1974). A prisoner's First Amendment rights to file prison grievances and to pursue civil rights litigation in the courts are fundamentally important. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). "Without those bedrock constitutional guarantees, inmates would be left with no viable mechanism to remedy prison injustices." Id. As such, "purely retaliatory actions taken against a prisoner for having exercised those rights . . . violate the Constitution quite apart from any underlying misconduct they are designed to shield." Id.
"Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Id. at 567-68.
With respect to causation, elements two and three, "a plaintiff must show that his protected conduct was the substantial or motivating factor behind the defendant's conduct." Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (internal quotation marks and citation omitted). To show the presence of causation on a motion for summary judgment, a plaintiff "need only 'put forth evidence of retaliatory motive, that, taken in the light most favorable to him, presents a genuine issue of material fact as to [the defendant's] intent'" in taking an adverse action. Id. (quoting Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003)). As to the fourth element, "an objective standard governs the chilling inquiry; a plaintiff does not have to show that 'his speech was actually inhibited or suppressed,' but rather that the adverse action at issue 'would chill or silence a person of ordinary firmness from future First Amendment activities.'" Id. at 1271 (quoting Mendocino Env't Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999)). With respect to the fifth element, a prisoner plaintiff "bears the burden of pleading and proving the absence of legitimate correctional goals for the conduct of which he complains." Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995).
"Conspiracy is not itself a constitutional tort under § 1983," and it "does not enlarge the nature of the claims asserted by the plaintiff, as there must always be an underlying constitutional violation." Lacey v. Maricopa Cnty., 693 F.3d 896, 935 (9th Cir.2012) (en banc). A conspiracy "may, however, enlarge the pool of responsible defendants by demonstrating their causal connections to the violation[.]" Id.; see also Gilbrook v. City of Westminster, 177 F.3d 839, 858 (9th Cir. 1999), as amended on denial of reh'g (July 15, 1999) (finding substantial evidence to support the jury's verdict that the defendants retaliated and conspired to retaliate against the plaintiffs in a § 1983 action).
In order to establish liability under § 1983 based on an allegation that one defendant conspired with another in a civil rights violation, a plaintiff must "demonstrate the existence of an agreement or meeting of the minds to violate constitutional rights." Crowe v. Cnty. of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) (citation and internal quotation marks omitted). "Such an agreement need not be overt, and may be inferred on the basis of circumstantial evidence such as the actions of the defendants." Id. (citation omitted). "To be liable, each participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy." Id. (citation omitted).
b. Analysis
Plaintiff claims Dr. Saha and Dr. Clayton conspired to take adverse action against him for threatening a course of legal action against Dr. Saha. (ECF No. 23 at 35.) Plaintiff claims Dr. Saha's actions in documenting Plaintiff's history of drug abuse in his medical file on May 20, 2019, after Plaintiff threatened litigation, and adding comments about his manipulative behavior on May 24, 2019, led to Dr. Clayton's subsequent action in tapering Plaintiff's gabapentin. (Id. at 35-36.) Plaintiff further claims that Dr. Saha's failure to reinstate his gabapentin prescription constituted an adverse retaliatory action. (ECF No. 1 at 14.) Defendants argue that Plaintiff has failed to raise a triable issue of fact as to the last four elements of a retaliation claim. (ECF Nos. 17 at 27-28; 24 at 4-5.)
i. Dr. Saha
As to Dr. Saha, to the extent Plaintiff's retaliation claim against him is based on Dr. Saha's decision to taper his morphine, Plaintiff has failed to establish that Dr. Saha's decision was motivated by Plaintiff's threat to sue, as the threat was issued subsequent to and as a result of Dr. Saha's decision. (See ECF No. 17-6 at 36.) Moreover, to the extent Plaintiff's retaliation claim is based on Dr. Saha documenting Plaintiff's history of drug abuse and manipulative behavior, the Court finds that Plaintiff has failed to demonstrate that these actions were taken in violation of the First Amendment. (ECF No. 23 at 35-36.)
On May 20, 2019, Dr. Saha noted in Plaintiff's medical file that "[p]atient has [a] positive history of multiple illicit drug use[,] including cocaine[,] methamphetamine, [and] marijuana in the past." (ECF No. 17-6 at 36.) As addressed earlier, Plaintiff's medical file contains multiple references to Plaintiff's prior use of these drugs, and these references date back to at least 2017. (See, e.g., id. at 11, 15, 36; see also ECF No. 24 at 5.) Dr. Barenchi even noted Plaintiff's history of drug abuse after reviewing Plaintiff's medical file a month before Dr. Saha's May 20, 2019 notation, and explicitly asked Dr. Saha to consider this history in evaluating Plaintiff's continued need for opioids and gabapentin. (Id. at 32.) An adverse action taken against a prisoner "need not be an independent constitutional violation." Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (internal citations omitted). However, here, Plaintiff has failed to raise a genuine issue for trial that Dr. Saha's notation of Plaintiff's past drug history, when it was already notated throughout his medical file, and when it was directly relevant to the medical action he was taking and documenting, constituted an adverse action.
Next, Dr. Saha noted Plaintiff's manipulative behavior in his medical file on May 24, 2019, when specifically documenting an event in which it appeared (and was later confirmed) that Plaintiff was refusing to take his heart medication. (ECF No. 17-6 at 63, 68.) In this context, the Court finds that making such a medically appropriate notation does not constitute an adverse action. Accordingly, Plaintiff has failed to raise a triable issue of fact as to the first element of a retaliation claim with respect to Dr. Saha's notation of his manipulative behavior.
Plaintiff asserts that Dr. Saha added the notation regarding manipulative behavior to his medical file on May 22, 2019. (ECF No. 23 at 13, 35.) However, such notation does not appear in Plaintiff's medical file until May 24, 2019, in relation to Dr. Saha's suspicion that Plaintiff was not taking his blood pressure pills. (See ECF No. 17-6 at 62-64.) Dr. Saha noted that Plaintiff "mentioned that his blood pressure is high because of lower back pain but suspicion for patient is not taking blood pressure pill, patient is very manipulative." (Id. at 64.)
This leaves Plaintiff's retaliation claim based on Dr. Saha's failure to reinstate Plaintiff's gabapentin prescription after his multiple threats to sue Dr. Saha, which began on May 20, 2019 and continued thereafter (see, e.g., id. at 36, 57, 62). Plaintiff presents evidence that Dr. Saha submitted a new order for Plaintiff's gabapentin on May 22, 2019 (ECF No. 23 at 227), thus indicating a belief that it was appropriate to continue it, and then, despite Plaintiff's complaints of pain, failed to reinstate the prescription as Plaintiff continued his threats to sue. Therefore, for purposes of summary judgement, the Court finds that Plaintiff has put forth sufficient evidence of a retaliatory motive, that, taken in the light most favorable to him, presents a genuine issue of material fact as to Dr. Saha's intent in not reinstating Plaintiff's gabapentin.
As to the third element, the Court finds that there is also a triable issue of fact as to whether the decision to withhold pain medication "would chill or silence a person of ordinary firmness from future First Amendment activities." See Brodheim, 584 F.3d at 1271 (citation omitted). Defendants focus on whether there was any chilling effect on Plaintiff himself. (See ECF No. 17 at 28.) There is no dispute that Plaintiff did not subjectively experience any chilling effect. As Plaintiff states in his Complaint, between May 4, 2019 and September 13, 2019, he filed over fifty medical CDCR 7362 forms, six CDCR 602 grievance forms, numerous CDCR 22 requests for interview, numerous CDCR 1824 requests for medical accommodation, and, of course, this lawsuit. (ECF No. 1 at 7; see also ECF No. 23 at 141-206, 374-81.) However, that is not the test. Under an objective test, Plaintiff has raised a triable issue of fact as to this element.
Lastly, the Court turns to examine whether Plaintiff has raised a triable issue of fact as to the fifth element. Here, Plaintiff's retaliation claim against Dr. Saha fails. Plaintiff has failed to establish that discontinuing/not reinstating Plaintiff's gabapentin prescription did not reasonably advance a legitimate correctional goal. As argued by Defendants, the tapering off of Plaintiff's gabapentin, which was not medically indicated and dangerous for Plaintiff, had the effect of advancing "the legitimate penological goal of preserving inmates' lives and well-being." (ECF No. 17 at 28.) This goal was documented in the April 2019 CCHCS memorandum and Dr. Barenchi's review e-mail and was reflected in CDCR's updated policies and care guides. Plaintiff presents no evidence that tapering him off gabapentin and replacing it with other medications and pain reduction strategies did not reasonably advance this legitimate correctional goal.
As stated by Dr. Feinstein, the provision of gabapentin to Plaintiff, "would be contraindicated and a danger to his health and well-being." (Feinberg Decl. at ¶ 56.)
Plaintiff was also considered at high risk for drug diversion based on his negative drug screen test for opiates. (See ECF No. 17-6 at 32, 34-36.) As noted by Dr. Saha, drug diversion "imposes potential risks to other inmates." (Id. at 36.) Although gabapentin is not an opiate, Dr. Feinberg notes, relying on the April 18, 2019 CCHCS memorandum, that: (1) 40 to 65% of people prescribed gabapentin misuse the medication; (2) 15 to 22% of people abusing opioids also abuse gabapentin; (3) autopsies and toxicology screenings discovered that 22% of people who died from a drug overdose had gabapentin in their systems; and (4) concomitant gabapentin and opioid exposure was associated with 49% higher risk of dying from an opioid overdose. (Feinberg Decl. ¶ 22.) Thus, preventing the diversion of gabapentin in the prison system would also advance the legitimate penological goal of preserving inmates' lives and well-being.
Accordingly, Plaintiff has failed to raise a genuine issue of material fact that Dr. Saha's actions did not reasonably advance a legitimate correctional goal. See, e.g., Hicks, 73 F. Supp. 3d at 1305 (granting summary judgment in favor of the defendant on the prisoner plaintiff's retaliation claim where the prison had a legitimate penological goal in regulating prescription pain medication to avoid drug abuse and, in furtherance of that goal, revised its guidelines on the use of Baclofen and then discontinued the plaintiff's prescription because his use of Baclofen did not fall within the revised guidelines).
See also Miller, 2018 WL 534306, at *18 ("Taking a prisoner off opiates that are not appropriate for his medical condition . . . advances the legitimate penological goal of reducing prescription drug abuse and drug addiction among the prison population."); Hicks v. Dotson, 73 F. Supp. 3d 1296, 1305 (E.D. Wash. 2014) (finding the Washington State Department of Corrections "has a legitimate penological goal in regulating prescription pain medication to avoid drug abuse").
ii. Dr. Clayton
As to Dr. Clayton, there is no indication that Plaintiff threatened to sue or file a grievance against Dr. Clayton prior to any alleged adverse action by him. Dr. Clayton noted in Plaintiff's medical file on May 29, 2019, that after he informed Plaintiff that he would be tapering his gabapentin, Plaintiff "left the office intending to file a grievance." (ECF No. 17-6 at 105.) Thereafter, Plaintiff never saw Dr. Clayton again and there is no suggestion that this particular threat motivated Dr. Clayton's decision (which in fact preceded the threat). (See ECF No. 1 at 14.)
Thus, Plaintiff's claim against Dr. Clayton rests on whether Dr. Clayton conspired with Dr. Saha to retaliate against Plaintiff by tapering his gabapentin based on Plaintiff's threat to sue Dr. Saha. In his opposition, Plaintiff relies on the fact that Dr. Clayton noted in Plaintiff's medical record on May 29, 2019, that he "agree[s] with Dr. Saha that neither morphine [n]or gabapentin is indicated in this patient," and did so after Dr. Saha submitted a new order for Plaintiff's gabapentin on May 22, 2019. (ECF No. 36 at 505; see also ECF No. 23 at 227, 309.) Thus, Plaintiff contends that Dr. Clayton and Dr. Saha must have had a conversation and agreed to taper Plaintiff's gabapentin prescription at some point between those dates. (See ECF No. 1 at 15.)
However, even if Dr. Saha and Dr. Clayton had a conversation and agreed to taper Plaintiff's gabapentin, Plaintiff's retaliation claim against Dr. Clayton fails for the same reasons it fails against Dr. Saha. Plaintiff presents no evidence that tapering him off gabapentin and replacing it with other medications and pain reduction strategies did not reasonably advance the legitimate correctional goal of preserving inmates' lives and well-being. Accordingly, Plaintiff has failed to establish a retaliation claim against Dr. Clayton based on his participation in a conspiracy with Dr. Saha. /// /// /// ///
Based on the foregoing, the Court RECOMMENDS that Defendants' motion for summary judgment be GRANTED as to Plaintiff's retaliation claim against Dr. Saha and Dr. Clayton.
As the Court finds that Plaintiff has failed to raise a triable issue of material fact that Defendants' violated a constitutional right, the Court does not address Defendants' argument that they are entitled to qualified immunity.
IV. CONCLUSION
For the reasons discussed above, IT IS HEREBY RECOMMENDED that the District Court issue an Order: (1) adopting this Report and Recommendation; (2) GRANTING Defendants' motion for summary judgment.
IT IS ORDERED that no later than February 19 , 2021 , any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than March 5 , 2021 . The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. See Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).
IT IS SO ORDERED. Dated: January 30, 2021
/s/_________
Hon. Jill L. Burkhardt
United States Magistrate Judge