Opinion
No. C 08-3766 WHA (PR).
September 14, 2010
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Docket No. 14)
INTRODUCTION
This is a civil rights action filed under 42 U.S.C. 1983 by a state prisoner proceeding pro se. Plaintiff claims that defendants Dr. N. Dayalan and Dr. C. Sinnaco did not provide adequate medical care while he was incarcerated at the California Training Facility in Soledad, California. The claims against a third defendant, Registered Nurse M. Nadey, were dismissed. Defendants Dayalan and Sinnaco have moved for summary judgment. Although he was give an opportunity to oppose the motion, plaintiff has not done so. For the reasons set out below, the motion for summary judgment is GRANTED.
ANALYSIS
The motion for summary judgment is unopposed. A district court may not grant a motion for summary judgment solely because the opposing party has failed to file an opposition. Cristobal v. Siegel, 26 F.3d 1488, 1494-95 n. 4 (9th Cir. 1994) (unopposed motion may be granted only after court determines that there are no material issues of fact). The court may, however, grant an unopposed motion for summary judgment if the movant's papers are themselves sufficient to support the motion and do not on their face reveal a genuine issue of material fact. See Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1029 (9th Cir. 2001); see also North American Specialty Insurance Company v. Royal Surplus Lines Insurance Company, 541 f.3d 552, 558 (5th Cir. 2008) (if no factual showing is made in opposition to a motion for summary judgment, the district court is not required to search the record sua sponte for a triable issue of fact).The papers in support of the motion for summary judgment show that Dr. Dayalan and Dr. Sinnaco were not deliberately indifferent to plaintiff's medical needs in violation of the Eighth Amendment. Deliberate indifference to a prisoner's serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A prison official is deliberately indifferent if she knows that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Neither negligence nor gross negligence will constitute deliberate indifference. Id. at 835-36 n. 4 (1994).
Defendants have presented plaintiff's medical records along with declarations by defendant Dr. Dayalan and a medical doctor with expertise in the treatment of staph infections who reviewed plaintiff's medical records. These papers show that Dr. Dayalan examined plaintiff on August 17, 2007, for a boil in his armpit, diagnosed a possible "staph" infection, prescribed antibiotics in intramuscular, oral and ointment form, prescribed pain relief medication, and ordered a follow-up examination for five days later in case the antibiotics did not work (Dayalan Decl. ¶¶ 4-7; Grigg Decl. Ex. A at 24). Dr. Dayalan did not order laboratory tests because the infection was not serious at that stage and test results might have been misleading (Dayalan Decl. ¶¶ 6-7). Dr. Sinacco examined plaintiff two weeks later for two boils on his armpit and one on his leg, suspected that plaintiff had a staph infection of the "MRSA" type, and treated it as such by prescribing different kinds of antibiotics, also in intramuscular, oral and ointment form, as well as pain medication (Grigg Decl. Ex. A at 27-28). Plaintiff's condition thereafter improved (Orr Decl. ¶ 19). In the following months, plaintiff experienced recurrences of the infection, and received treatment from additional doctors who are not defendants, including draining and tests on plaintiff's boils, as well and prescribing antibiotics and pain relief medication (Grigg Decl., Ex. A at 16, 30-32).
As explained by Dr. Orr, an expert in the field, when contracted outside of a hospital setting, an MRSA infection on the skin of the type plaintiff suffered may be treated more conservatively with warm soaks and/or drainage, or more aggressively with antibiotics (Orr Decl. ¶¶ 8-9). In taking plaintiff's history, evaluating his symptoms, and ordered antibiotics, Dr. Dayalan and Dr. Sinnaco provided the medically appropriate treatment for a staph infection that was at the stage of plaintiff's infection, and in fact provided more aggressive treatment than some doctors would have ( id. ¶¶ 13-16, 18). The decision not to order laboratory tests was proper because the infection was relatively "minor" at that time, and the results of the test could have been misleading ( id. ¶ 14). The recurrences that plaintiff later experienced are common with staph infections even after they have been treated properly, and in this case the recurrences do not indicate that the treatment defendants provided was medically insufficient ( id. ¶ 20). Indeed, Dr. Orr states that the treatment plaintiff received was the "same sort of appropriate treatment that doctors routinely provide" for staph infections outside of prisons ( id. ¶ 16).
While plaintiff's complaint is verified, and as such is treated as a sworn affidavit opposing summary judgment motion to the extent it sets forth matters based on the plaintiff's personal knowledge and sets forth specific facts admissible in evidence, see Schroeder v. McDonald, 55 F.3d 454, 460 nn. 10-11 (9th Cir. 1995), the complaint sets forth no factual allegations that contradict or dispute the defendants' account of the medical treatment they provided. Rather, plaintiff's claims are premised on his opinion that the treatment he received from Dr. Dayalan and Dr. Sinacco was not the proper type of medical treatment for his condition. However, "[a] difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 claim." Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). Even a difference of opinion between doctors as to the need to pursue one course of treatment over another is insufficient, as a matter of law, to establish deliberate indifference. Toguchi v. Chung, 391 F.3d 1051, 1058-60 (9th Cir. 2004) (emphasis added). Here, plaintiff's disagreement with the opinion of both the defendant doctors and the expert opinion of a third doctor as to whether the treatment he received was medically appropriate does not create a create a triable issue of fact as to whether defendants were deliberately indifferent to his medical care. In addition, the unrefuted medical evidence indicates that plaintiff's condition commonly recurs even after doctors have proved the proper form of medical treatment. As a result, the recurrences of the condition does not create a triable issue of fact that the treatment defendants provided was deficient, let alone deliberately indifferent to plaintiff's medical needs.
In sum, defendants' unopposed summary judgment papers establish that they did not violate his constitutional rights, and there is no genuine issue of material fact either evident from those papers or created by any factual allegations in plaintiff's verified complaint. Consequently, defendants are entitled to summary judgment on plaintiff's claims.
CONCLUSION
Defendants' motion for summary judgment (docket number 14) is GRANTED. The clerk shall enter judgment and close the file.
IT IS SO ORDERED.
Dated: September 10, 2010.