Opinion
CV 18-3372-JGB(E)
03-02-2021
MICHAEL LOUIS BEATTIE, Plaintiff, v. L. HALEEN, et al., Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Jesus G. Bernal, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Plaintiff, a state prisoner, filed this civil rights action pursuant to 42 U.S.C. section 1983 on April 23, 2018. Plaintiff alleges that health care providers at the California Men's Colony, East (“CMC-East”) denied Plaintiff constitutionally adequate medical care for his ulcerative colitis, pain and related conditions. The original Complaint named as Defendants: (1) licensed vocational nurse L. Haleen; (2) registered nurses S. Gonzalez, K. Casabar and N. Johnson; and (3) ten fictitious Defendants identified as doctors and nurses employed at CMC-East.
On November 30, 2018, the Court dismissed the Complaint with leave to amend. On April 1, 2019, Plaintiff filed a verified First Amended Complaint identifying the Defendants as: (1) medical doctors Dillen and Ward; (2) registered nurses Gonzalez, Casabar and Villez.
On April 29, 2019, Defendants Gonzalez and Casabar filed a motion to dismiss the First Amended Complaint. On June 25, 2019, the Court denied the motion to dismiss.
Defendants Gonzalez and Casabar filed an Answer on July 23, 2019 (“Defendants Gonzalez' and Casabar's Answer”). Defendant Ward filed an Answer on January 14, 2020. (“Defendant Ward's Answer”).
On January 28, 2020, the Court ordered Plaintiff to show cause in writing why the action should not be dismissed against Defendants Dillen and Villez for failure to effect timely service of process. Plaintiff did not file any timely response to the order to show cause. On March 3, 2020, the Court dismissed the action without prejudice as against Defendants Dillen and Villez.
On October 27, 2020, Defendants Ward, Gonzalez and Casabar (“Defendants”) filed “Defendants' Motion for Summary Judgment, etc.” On the same day, the Court issued a Minute Order inter alia advising Plaintiff of the requirements of Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952 (9th Cir. 1997) (en banc), cert. denied, 527 U.S. 1035 (1999). On December 28, 2020, Plaintiff filed “Plaintiff's Motion Opposing Defendants' Motion for Summary Judgment, etc., ” accompanied by documents and a declaration of Plaintiff.
SUMMARY OF ALLEGATIONS OF VERIFIED FIRST AMENDED COMPLAINT
In the verified First Amended Complaint, Plaintiff alleges:
Plaintiff has suffered from the serious medical condition of “Ulcerative Colitis” (“UC”) for over twenty years (First Amended Complaint, p. 2). The condition, which is usually triggered by stress, effects a breakdown in the lining of the colon, causing Plaintiff to experience symptoms ranging from frequent bowel movements and watery stool to severe abdominal pain, colonic convulsions, severe blood loss and a “round the clock” urge to expel waste (id.). Plaintiff has been taking “numerous chemo-class immunomudulators [sic] for more than 10 years” (id.). Plaintiff also has taken “steroids and citotoxins [sic]” (id.).
In 2014, Plaintiff signed “Advance Health Care Directives” expressing his desire to “allow his medical condition to run its course (when it flared up)” (id., p. 3). Plaintiff then indicated that he did not want any treatment for his UC condition, “only pain medications so as not to suffer needless pain” as his condition ran its course (id., pp. 3, 8).
In late 2015, while Plaintiff was housed at “Donovan state prison, ” Plaintiff's UC flared up (id., p. 3). At that time, Plaintiff informed prison officials of Plaintiff's wishes (id.). Plaintiff agreed to undergo any necessary screening or diagnostic tests to help plan for pain management as his condition ran its course (id.).
In April 2016, Plaintiff's condition became “quite painful” (id.). A prison doctor at “R.J. Donovan prison” prescribed morphine to be used at night to help Plaintiff sleep, which was all Plaintiff was seeking at the time (id.).
In May of 2016, Plaintiff had a telemedicine consultation with his long time “GI specialist” at which Plaintiff's end-of-life wishes were discussed (id.). The specialist approved Plaintiff's request for non-opiate pain medication for daytime and low dose morphine at night to help Plaintiff sleep (id.). Plaintiff's specialist approved this pain medication regimen (id.).
By late May of 2016, Plaintiff's condition was growing worse (id.). Plaintiff needed diapers to function away from the toilet (id.). On or about May 26, 2016, Plaintiff was transferred to CMC-East (id.).
On May 31, 2016, Plaintiff had an initial doctor's visit with Defendant Ward, during which Plaintiff discussed his medical wishes (id.). Ward expressed opposition to Plaintiff's end-of-life decisions and said that he, Ward, would not authorize pain medication for Plaintiff (id.). An argument occurred during which Plaintiff reiterated his right to refuse treatment and his right to allow his condition to run its course without suffering unnecessary pain (id., pp. 3-4). Ward again expressed disagreement with Plaintiff's decision and stated that, although Plaintiff could do what he wished, Ward would refuse to provide Plaintiff with pain medication and “would make sure plaintiff's ordeal was painful” (id., p. 4). Ward said he would take away Plaintiff's morphine and would begin taking away Plaintiff's daytime Tramadol (id.).
On June 6, 2016, Plaintiff had another visit with Ward, during which another argument occurred concerning Plaintiff's choices (id.). Ward said he was “fundamentally opposed” to Plaintiff's decision to let his UC condition run its course (id.). When Plaintiff said that Ward must recognize Plaintiff's rights, Ward responded “but I can make it very painful for you” (id.). Ward said he, Ward, already had gone to “the pain committee” and had caused Plaintiff's morphine to be discontinued and Plaintiff's daily Tramadol dose to be decreased from 200 mg to 150 mg (id.). Ward said that he, Ward, would look into having Plaintiff declared mentally incapable of making these decisions (id.). Ward said he, Ward, would “make this time the most painful plaintiff [had] ever had” because Ward opposed these kinds of end-of-life decisions (id.).
Beginning on or about June 6, 2016, Ward discontinued Plaintiff's morphine and decreased Plaintiff's dosage of Tramadol (id.). Plaintiff's condition began to deteriorate (id.). Between June 6, 2016 and June 20, 2016, Plaintiff submitted more than twenty requests for medical help, stating that Plaintiff was in pain, was suffering UC symptoms, and was asking that his pain medications be adjusted (id., pp. 4-5). Plaintiff pleaded for help on June 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19, 2016 (id., p. 5).
On June 7, 2016, Plaintiff saw Defendant Gonzalez (id.). Plaintiff described his condition and his position regarding palliative care (id.). Gonzalez said she could not understand why Plaintiff refused UC treatment and called Plaintiff's decision “stupid” (id.). When Plaintiff tried to explain that he had a right to refuse treatment, Gonzalez told Plaintiff that she had spoken with Ward and that, while Plaintiff could refuse treatment, medical staff including Gonzalez did not have to treat Plaintiff's pain (id.). Gonzalez said, “the pain management committee already approved the doctors [sic] request to discontinue your pain medications” (id.). Gonzalez told Plaintiff, “[a]ll you have to do is take your treatment again and we can re-order you your pain meds.” (id.).
The First Amended Complaint spells Defendant Gonzalez' name as “Gonzales.” However, the documents filed by Defendants and some of Plaintiff's Exhibits submitted in opposition to the Motion for Summary Judgment make it clear that the correct spelling is “Gonzalez.”
On June 8, 2016, Plaintiff collapsed in the shower (id.). A nurse, Villege, responded to the scene, and Plaintiff was transported to the infirmary (id.). The nurse told Plaintiff that medical staff members were aware of Plaintiff's condition, and that staff would not treat Plaintiff's pain because of Plaintiff's “refusal of treatment stance” (id.). The nurse said medical staff would provide pain medication if Plaintiff accepted his treatment (id.). The nurse made a phone call to the “on-call” doctor and said that Plaintiff was displaying signs of active UC, that Plaintiff was taking a “palliative stance” on treatment and that Dr. Ward did not wish to treat Plaintiff's pain until Plaintiff agreed to treatment for his condition (id., pp. 5-6). Plaintiff received nothing for his pain (id., p. 6).
On June 10, 2016, guards called infirmary staff because Plaintiff reported pain (id.). An unidentified nurse arrived, berated Plaintiff and told the guards that “we've already been through this with him” (id.). The nurse said she would not help Plaintiff until Plaintiff agreed to accept treatment (id.). The nurse said, “[y]ou will sit here and suffer as long as you hold out against treatment, ” and the nurse left without providing any care (id.).
By June 12, 2016, Plaintiff was “tapping out” of his decision to let his UC condition run its course, and he requested the resumption of treatment for that condition (id., p. 9). In response to a series of medical requests, Defendant Casabar saw Plaintiff on June 12, 2016 (id., p. 6). Casabar asked whether Plaintiff was ready to resume treatment (id.). Plaintiff said “yes” and asked when treatment could start (id.). Casabar responded that medical staff officials were “not in a big hurry to help plaintiff” (id.). Casabar said, “[y]ou brought this on yourself . . . so you can just suffer the consequences” (id.). At this point, Plaintiff's weight was down to 118 pounds and Plaintiff was in obvious distress (id., p. 7).
Plaintiff asked that either: (1) he receive Prednisone right away; or (2) he receive pain medication until treatment was resumed (id.). While asking Casabar for help, Plaintiff literally cried, saying he could not take the pain anymore (id., p. 7). Casabar said “no one was in a hurry to rush in and save [Plaintiff]” (id.). Casabar added, “You brought this on yourself. Now you can deal with the pain on your own.” (id.).
Between June 12, 2016 and June 20, 2016, Plaintiff continued to suffer extraordinary pain, as well as deterioration in his underlying condition (id.). Despite Plaintiff's requests and pleas for help, and despite the obvious severity of Plaintiff's condition, medical staff including Defendant Ward “purposefully” allowed Plaintiff to suffer further pain, causing Plaintiff's condition to deteriorate (id.).
On June 20, 2016, plaintiff “was finally saved” (id.). At that point, Plaintiff's weight was down to 95 pounds and he was suffering not only from UC but also from a blood infection (id.). After being forced to “un-sign” his Advanced Health Care Directives, Plaintiff was taken by ambulance to a hospital emergency room, where tests “revealed everything plaintiff had been saying” (id., p. 11). The hospital gave Plaintiff Prednisone (id., p. 10). Once Plaintiff agreed to restart his chemo and steroidal treatments, the medical staff became responsive to his needs, including his need for pain medication (id., p. 7).
Plaintiff claims that Defendants acted with deliberate indifference to Plaintiff's serious medical needs during the first ten days of June, 2016 by discontinuing Plaintiff's pain medication for non-medical reasons, i.e., Defendants' disagreements with Plaintiff's refusal of chemo treatment (id., pp. 8-9). Defendants also displayed deliberate indifference between June 10 and June 20, 2016 by intentionally delaying any care for Plaintiff's underlying condition in order to punish Plaintiff for having exercised his right to refuse medical treatment (id., pp. 8-9). Plaintiff asked to resume his treatment and to receive Prednisone (id., p. 9). Plaintiff should have been prescribed Prednisone as early as June 12, 2016, at a time when Plaintiff weighed 118 pounds (id.). Instead, Defendants chose to let Plaintiff suffer eight more days (id.). When Plaintiff finally received Prednisone at the hospital, Plaintiff's condition improved within a single day (id., p. 10).
Plaintiff seeks declaratory relief and compensatory and punitive damages (id., pp. 11-12).
DEFENDANTS' CONTENTIONS
Defendants contend:
1. The evidence allegedly establishes that Defendants did not act with deliberate indifference to Plaintiff's medical needs; and
2. Defendants allegedly are entitled to qualified immunity.
STANDARDS GOVERNING MOTIONS FOR SUMMARY JUDGMENT
Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the initial burden of offering proof of the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where a plaintiff bears the burden of proof with respect to the merits of the plaintiff's claims, the defendants may meet their initial burden on summary judgment either by producing evidence negating an essential element of the plaintiff's claim or by showing that the plaintiff does not have enough evidence of an essential element to carry the plaintiff's ultimate burden of persuasion. See Friedman v. Live Nation Merch., Inc., 833 F.3d 1180, 1188 (9th Cir. 2016); Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).
Once the moving party's burden is met, the party opposing the motion is required to go beyond the pleadings and, by the party's own affidavits or by other evidence, designate “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); Friedman v. Live Nation Merch., Inc., 833 F.3d at 1188 (where “a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense”) (citation and quotations omitted); Miller v. Glenn Miller Productions, Inc., 454 F.3d 975, 987 (9th Cir. 2006). A plaintiff who bears the burden of proof on the plaintiff's claims “‘must produce at least some significant probative evidence tending to support the complaint'” in order to defeat summary judgment. Smolen v. Deloitte, Haskins & Sells, 921 F.2d 959, 963 (9th Cir. 1990) (citation omitted).
The Court must “view the facts in the light most favorable to the non-moving party and draw reasonable inferences in favor of that party.” Scheuring v. Traylor Bros., Inc., 476 F.3d 781, 784 (9th Cir. 2007). Where different ultimate inferences reasonably can be drawn, summary judgment is inappropriate. Miller v. Glenn Miller Productions, Inc., 454 F.3d at 988.
A factual dispute is “genuine” only if there is a sufficient evidentiary basis upon which a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “material” only if it might affect the outcome of the lawsuit under governing law. Id. “At the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence.” Porter v. California Dep't of Corrections, 419 F.3d 885, 891 (9th Cir. 2005) (citation omitted).
A court may consider a verified complaint to be an affidavit within the meaning of Fed.R.Civ.P. 56(e) to the extent that the pleading demonstrates the plaintiff's personal knowledge of factual matters stated therein. See Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995). Accordingly, the Court has considered the allegations of Plaintiff's sworn First Amended Complaint. However, parties generally may not rely on unsworn allegations in their pleadings or legal memoranda to defeat summary judgment. See British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978), cert. denied, 440 U.S. 981 (1979). “Evidence may be offered ‘to support or dispute a fact' on summary judgment only if it could be presented in an admissible form at trial.” Southern California Darts Ass'n v. Zaffina, 762 F.3d 921, 925-26 (9th Cir. 2014) (citing Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003), cert. denied, 541 U.S. 937 (2004)) (internal quotations omitted); see also Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 846 (9th Cir. 2004).
SUMMARY OF EVIDENCE
I. Defendants' Evidence
In support of the Motion, Defendants rely on a few excerpts from Plaintiff's deposition and on the declarations of Defendants Ward, Gonzalez and Casabar.
The declarations of Defendants Ward, Gonzalez and Casabar are legally insufficient, and hence the Court cannot consider them. Under 28 U.S.C. section 1746, a declaration filed in federal court is procedurally sufficient only if the declaration is signed and subscribed in writing in substantially the following form: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).” Defendants' declarations do not contain any statement that the declarant swears under penalty of perjury that the contents of his or her declaration are true and correct. Moreover, the declarations of Defendants Gonzalez and Casabar bear no date of execution. Accordingly, in ruling on the Motion for Summary Judgment the Court does not consider the three declarations of the three Defendants. See In re World Trade Center Disaster Litigation, 722 F.3d 483, 488 (2d Cir. 2013) (omission of statement that declaration was made under penalty of perjury fatal; “[i]nclusion of the language ‘under penalty of perjury' is an integral requirement of the statute for the very reason that it impresses upon the declarant the specific punishment to which he or she is subjected for certifying to false statements”); Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1306-07 (5th Cir. 1988) (purported affidavit omitting statement that it was made under penalty of perjury and that the contents were true and correct insufficient under section 1746; as drafted, the purported affidavit “allows the affiant to circumvent the penalties for perjury”); Kersting v. United States, 865 F.Supp. 669, 676 (D. Haw. 1994) (declaration is sufficient under section 1746 if it “contains the phrase ‘under penalty of perjury' and states that the document is true”); see also Carter v. Boeing Co., 2016 WL 4595164, at *1 (W.D. Wash. Sept. 2, 2016) (refusing to consider purported declaration not signed under penalty of perjury on summary judgment); Khan v. Bank of America, N.A., 2015 WL 3919512, at *7 (N.D. Cal. June 25, 2015) (same); Davenport v. Bd. of Trustees Dist., 654 F.Supp.2d 1073, 1084 (E.D. Cal.2009) (same).
In any event, even if the Court were to consider Defendants' declarations, Plaintiff's evidence, discussed below, still would demonstrate the existence of material, triable issues of fact precluding summary judgment.
II. Admissions by Defendants
In their Answers, Defendants admitted certain facts alleged in the First Amended Complaint. In their “Statement of Uncontroverted Facts, etc.” (“SUF”), Defendants rely on, and hence appear to admit, other facts alleged in the First Amended Complaint. Still other admissions by Defendants appear in Defendants' responses to Plaintiff's Requests for Admissions (“RFAs”), submitted by Plaintiff herein. The Court summarizes Defendants' various admissions below:
Plaintiff suffers from ulcerative colitis, a condition that involves inflammation of the colon (Defendants Gonzalez' and Casabar's Answer, ¶ 5; Defendant Ward's Answer, ¶ 5). In 2014, while housed at the R.J. Donovan Correctional Facility (“Donovan”), Plaintiff signed an Advance Care Health Directive indicating that he did not want to receive any treatment for his ulcerative colitis except for pain medication (Defendants' SUF, Fact No. 4).
On May 26, 2016, Plaintiff was transferred from Donovan to CMC (Defendants' SUF, Fact No. 8). Defendant Ward saw Plaintiff on May 31, 2016 (Defendants Gonzalez' and Casabar's Answer, ¶ 11; Defendant Ward's Answer, ¶ 11). At that time, Plaintiff's reported weight was 128 pounds (Plaintiff's Ex. 47, Defendant Ward's Response to RFA Set 1, No. 17). During that appointment, Plaintiff's only complaint was his active ulcerative colitis (Plaintiff's Ex. 47, Defendant Ward's Response to RFA Set 1, No. 2). During that appointment, Ward reviewed Plaintiff's medical file, which reflected Plaintiff's medical history of ulcerative colitis and contained the “POLST” [“Physician Orders for Life Sustaining Treatment”] and Advance Health Care Directives (Plaintiff's Ex. 47, Defendant Ward's Responses to RFA Set 1, Nos. 4, 9). Plaintiff told Defendant Ward about Plaintiff's palliative approach to the treatment of Plaintiff's condition (Defendant Ward's Answer, ¶ 11). Plaintiff made clear that he did not want any treatment for his ulcerative colitis and wished only pain medication for the pain caused by that condition (Plaintiff's Ex. 47, Defendant Ward's Responses to RFA Set 1, Nos. 3, 7, 8). Plaintiff made clear that he was suffering pain from his ulcerative colitis and reported that morphine was providing Plaintiff adequate pain relief at night (id., Defendant Ward's Responses to RFA Set 1, Nos. 11, 13). Ward discussed the POLST and Advance Health Care Directives with Plaintiff, and asked Plaintiff questions concerning Plaintiff's treatment wishes, to which Plaintiff responded appropriately (id., Defendant Ward's Responses to RFAs Nos. 5, 10).
Defendant Ward saw Plaintiff on June 6, 2016 (Defendants Gonzalez' and Casabar's Answer, ¶ 12; Defendant Ward's Answer, ¶ 12). On or about June 6, 2016, Plaintiff's morphine was discontinued (Defendant Ward's Answer, ¶ 13).
Plaintiff submitted requests for medical care in which he complained of pain and symptoms of ulcerative colitis and requested changes in his pain medications (Defendants Gonzalez' and Casabar's Answer, ¶ 14; Defendant Ward's Answer, ¶ 14). Defendant Gonzalez saw Plaintiff on June 7, 2016, at which time Plaintiff informed Gonzalez that Plaintiff was suffering from ulcerative colitis (Defendants Gonzalez' and Casabar's Answer, ¶ 15; Defendant Ward's Answer, ¶ 15; Plaintiff's Ex. 49, Defendant Gonzalez' Responses to RFA Set 1, Nos. 1, 2). Plaintiff informed Gonzalez that Plaintiff was experiencing severe pain, which Plaintiff described as “off the charts” and Plaintiff said the pain was growing worse every day (Plaintiff's Ex. 49, Defendant Gonzalez' Response to RFA Set No. 1, No. 3). Plaintiff's bowel sounds were “hyperactive, ” a well known symptom of active ulcerative colitis, (id., Defendant Gonzalez' Responses to RFA Set No. 1, Nos. 6, 7).
Plaintiff submitted medical requests on and after June 12, 2016, in which he indicated a desire to resume treatment for his ulcerative colitis (Defendants Gonzalez' and Casabar's Answer, ¶ 26; Defendant Ward's Answer, ¶ 27).
On June 13, 2016, Plaintiff saw Defendant Casabar regarding Plaintiff's ulcerative colitis and Plaintiff's complaints of extreme pain (Plaintiff's Ex. 51, Defendant Casabar's Responses to RFA Set 1, Nos. 1, 2). Plaintiff told Casabar that he wanted to restart his treatment drugs (Plaintiff's Ex. 51, Defendant Casabar's Response to RFA Set 1, No. 4) After that visit, Casabar spoke with Defendant Ward regarding Plaintiff's pain medication and Plaintiff's request to restart his chemo drugs (Plaintiff's Ex. 52, Defendant Casabar's Responses to RFA Set No. 2, Nos. 17, 18). On June 17, 2016, Casabar reviewed four of Plaintiff's “Health Care Services Request Forms” regarding Plaintiff's ulcerative colitis (Plaintiff's Ex. 51, Defendant Casabar's Response to RFA Set 1, No. 9).
Plaintiff's weight was measured at 95 pounds when he was at the hospital on June 20, 2016 (Defendants Gonzalez' and Casabar's Answer, ¶ 21; Defendant Ward's Answer, ¶ 22). Plaintiff was prescribed Prednisone at the hospital on June 20, 2016 (Defendants Gonzalez' and Casabar's Answer, ¶¶ 26, 28; Defendant Ward's Answer, ¶ 27, 29).
III. Plaintiff's Evidence
Plaintiff relies on his declaration and on certain accompanying exhibits. Plaintiff's evidence, accepted as true for purposes of the Motion for Summary Judgment, shows the following:
A. Background
Plaintiff first developed ulcerative colitis in “1997/1998" while at other prisons (Declaration of Michael Louis Beattie (“Plaintiff's Dec.”), p. 1). Doctors prescribed various steroids or “chemo class drugs” for this condition (id.).
Plaintiff experiences periodic inflammatory “flare-ups” of his colitis, likely caused by stress (id.). The first sign of a flare-up is always diarrhea for more than a week (id., p. 2). The steroid Prednisone was and is one of the most well-known drugs for treatment of ulcerative colitis (id., pp. 1-2). Prednisone usually causes Plaintiff to get “back in remission fairly quickly” and has always been Plaintiff's “first line of defense” (id., p. 2). If Plaintiff does not receive Prednisone, or if Prednisone does not work, Plaintiff's symptoms grow steadily worse (id., p. 3). The lining of Plaintiff's colon begins to break down, becomes ulcerated, bleeds a lot and is very painful (id.). Plaintiff's stools contain mucus and either are bright red with blood or charcoal-like (id., p. 3). If the conditions persist for longer than a month, or if the symptoms worsen, Plaintiff experiences painful cramping in his lower abdomen and “violent involuntary muscle convulsions, ” which make sleeping difficult (id., pp. 3-5).
See also Beattie v. Risenhoover, 2012 WL 4477687, at *1 n.4 (N.D. Cal. Sept. 27, 2012) (“Prednisone is a cortisteroid that is used as an immune system suppressant in the treatment of ulcerative colitis.”).
In 2010, while Plaintiff was incarcerated at Pelican Bay State Prison, Chief Medical Officer Dr. Sayre wrote a “Medical Classification Chrono” stating that Plaintiff's medical risk was “high risk” and that Plaintiff needed “medium-intensity nursing” (Plaintiff's Exs. 2, 4). This chrono also stated, “UC on Remicaid” (id.). Dr. Sayre wrote Plaintiff a letter advising Plaintiff, inter alia, that: (1) “[a]s in [Plaintiff's] case, [ulcerative colitis] is typically a progressive disease that eventually involves destruction of the entire colon, ” at which point the only option is removal of the colon; (2) Dr. Sayre was not surprised that Plaintiff's Remicaid prescription was “failing”; (3) Remicaid was “a very dangerous drug” that was “given at the very end of the medical treatment of Ulcerative Colitis”; (4) they “should use it [Remicaid] as long as there is any benefit”; (5) Plaintiff was receiving two other medications to help with comfort and reductions in symptoms; and (6) Plaintiff was encouraged to submit sick call slips (“7362") for any problems or unexpected changes in condition (Plaintiff's Ex. 2).
In June of 2014, Plaintiff decided to refuse further treatment for his ulcerative colitis condition, and Plaintiff then signed an Advance Health Care Directive (see Plaintiff's Ex. 6). (This Advanced Healthcare Directive is not in the record). In February of 2016, Plaintiff and a doctor signed a POLST stating, inter alia, that Plaintiff suffered from “ulcerative proctitis” and had elected: (1) the option of “Do Not Attempt Resuscitation/DNR”; and (2) receipt of “Comfort Measures Only” for his condition, i.e., the use of “medication by any route, positioning, wound care and other measures to relieve pain and suffering” (Plaintiff's Ex. 7).
In “March/April 2016, ” while Plaintiff was at R.J. Donovan prison, Plaintiff asked his medical team for morphine for the pain, only at night (Plaintiff's Dec., p. 5). A doctor granted Plaintiff's request (id., pp. 5-6). In a “Medical Progress Note, ” dated March 24, 2016, a doctor recorded that: (1) Plaintiff's height was 5 feet, 3 inches and his weight was 133 pounds; (2) Plaintiff reported that he “had a lot of pain” and wanted “the minimal dose of narcotic” to take at bedtime so that Plaintiff could sleep; (3) Plaintiff had refused any kind of medication for his ulcerative colitis since 2012 and had refused medication to reduce the inflammation and pain “such as steroid suppositories”; (4) Plaintiff did not want to take any medication until he saw a gastroenterologist and had a colonoscopy which ruled out cancer; and (5) if Plaintiff did not have cancer, he would take regular medications as recommended (Plaintiff's Ex. 8). The doctor indicated that Plaintiff requested the lowest possible dose of narcotic, and that the doctor would prescribe 15 mg of morphine at bedtime (id.). The doctor stated that it did “not appear that [Plaintiff was] showing drug seeking behavior” (id.).
On May 18, 2016, while at the Donovan prison, Plaintiff saw Dr. Shpaner, Plaintiff's long-time gastroenterologist, via a “telemedicine custody consultation” (Plaintiff's Ex. 9; Plaintiff's Dec, p. 6). Dr. Shpaner recorded that: (1) Plaintiff previously had refused treatment, but finally decided to have a colonoscopy to learn his condition and prognosis; (2) Plaintiff probably would deny all treatment because he wanted to “know the condition of his disease and prognosis and let it run its course”; (3) Plaintiff complained about a period of worsening flare-ups with watery discharge and a moderate amount of bleeding, toilet visits 15 to 20 times per day, abdominal pressure and accidents; (4) Plaintiff wanted non-narcotic pain medication for use during the day; and (5) Plaintiff was taking morphine at night to help him sleep (id.). Dr. Shpaner recorded Plaintiff's height at 5 feet 4 inches and his weight as 130 pounds (id.). Dr. Shpaner prescribed 50 mg of Tramadol twice a day for abdominal pain, continued the morphine prescription and ordered Plaintiff scheduled for a colonoscopic examination and mucosal biopsies (id.). /// ///
A doctor completed a “Physician Request for Services” form on May 18, 2016 for the colonoscopy, which was approved on May 23, 2016 (Plaintiff's Ex. 10). A handwritten notation on this document states: “5/25/16 - transferred to CIM, emailed UM RN's” (id.). A Donovan nurse's “Nurses Progress Notes, ” dated May 24, 2016, recorded that Plaintiff was scheduled for transfer and that various medications were placed in an envelope, including “Tramadol 100 mg PO Per MD Order” (Plaintiff's Ex. 11). The Notes listed “Future Appointments, ” including a “Telemed GI TBS” (id.).
In May of 2016, Plaintiff's condition was deteriorating (Plaintiff's Dec., p. 6). By the time of Plaintiff's transfer to CMC-East, Plaintiff was wearing diapers and using sanitory wipes due to blood loss (id.).
B. The May 31, 2016 Appointment With Defendant Ward
After Plaintiff's transfer to CMC-East, Plaintiff saw Defendant Ward on May 31, 2016 (Defendants Gonzalez' and Casabar's Answer, ¶ 11; Defendant Ward's Answer, ¶ 11; Plaintiff's Dec., p. 6). Ward appeared to review Plaintiff's file on a computer, then asked Plaintiff why he was there (Plaintiff's Dec., p. 6). Plaintiff replied that he suffered from ulcerative colitis, and Plaintiff described his symptoms, including diarrhea, mucus discharge, blood loss, cramping, loss of functionality and Plaintiff's struggle with pain and insomnia (id., pp. 6-7). Ward asked Plaintiff about taking Prednisone, Asacol (Mesalamine) or Remicaid, the latter an intravenous chemo drug which Plaintiff had been prescribed (id., p. 7). Plaintiff explained that he did not want any treatment for his condition (id.). Ward responded authoritatively: “I won't help you with that” (id.). Plaintiff explained his rights and said that he had signed Advance Directives and a POLST (id.). Ward replied, “I saw that in your file. Why are you taking this stand?” (id.). Plaintiff said it was “complicated” and began to share his story, explaining his rationale for refusing treatment (id.). Plaintiff made it clear that he wanted only palliative care, and said he did not want to suffer pain needlessly as his condition ran its course (id.).
“Asacol is an anti-inflammatory medication used to treat ulcerative colitis.” Beattie v. Risenhoover, 2012 WL 4477687, at *1 n.4.
Defendant Ward said Plaintiff “seem[ed] much too young to make such a decision” (id.). Plaintiff responded that he was the one who “gets to decide, ” that he had made his decision and that all Plaintiff asked was that Ward respect and honor that decision (id.). Plaintiff said he did not want to suffer pain as his condition ran its course (id.). Plaintiff explained that his condition was “getting pretty bad” and asked for an increase in his morphine dose to three times a day due to the growing pain and increased symptoms Plaintiff was experiencing, including pressure in his colon, waves of muscle contractions, heat flashes and sweating (id., pp. 7-8).
Defendant Ward “said he wouldn't help in any way” (id., p. 8). Ward said, “I don't know why any doctors would allow you to do this” (id.). Plaintiff said, “It's my right to refuse treatment and not to be left in pain - needlessly” (id.). Ward said, “Well you certainly have a right to do what you want, but I don't have to treat your pain” (id.). Ward said, “You won't be getting morphine from me. You'll suffer the pain of your ordeal by yourself.” (id.). The argument continued for several minutes and it became clear to Plaintiff that Plaintiff was not going to get anywhere (id.).
Defendant Ward wrote a “Medical Progress Note” concerning the May 31, 2016 meeting with Plaintiff (Plaintiff's Ex. 12). Ward recorded Plaintiff's height as 5 feet 3 inches and his weight as 128 pounds (id.). Ward stated that Plaintiff's medical history was, inter alia, “significant for ulcerative colitis x20 years” (id.). Ward stated that Plaintiff reported worsening symptoms, including pain and diarrhea, which caused Plaintiff to want a colonoscopy, which would be “helpful with planning” (id.). Ward reported: “We reviewed a Physician's Orders for Life Sustaining Treatment (POLST) form that was completed where [Plaintiff] states that “he wants comfort measures only related to this disease process” (id.; original emphasis).
Defendant Ward recorded that he had discussed Plaintiff's use of narcotic analgesics, and that Plaintiff reported that he had used “MS Contin [morphine] 15 mg at night for amount a month” which had “helped significantly with his being able to sleep” (id.). Plaintiff reported that abdominal pain had interfered with Plaintiffs' ability to sleep (id.). Plaintiff also reported that he had been using Tramadol for a shorter time to help with his activities of daily living (id.). Plaintiff reportedly did not want to use morphine during the day because [Plaintiff] enjoyed reading during the day and did not want to be sedated (id.). Ward recorded that Plaintiff found Tramadol to be “particularly effective, ” although Plaintiff reported a “midday drop in pain relief” and wanted to address that. Ward suggested a lower dose of Tramadol three times a day and claimed that Plaintiff was “willing to try that” (id.). Plaintiff also requested sanitary wipes “given his frequent diarrhea” (id.).
In the portion of the “Medical Progress Note” labeled “MEDICATIONS, ” Ward recorded, inter alia, that Plaintiff had six prescriptions, including prescriptions for: (1) “Morphine extended release 15 mg 1 table by mouth every evening”; and (2) “Tramadol 50 mg crush and float 2 tablets by mouth twice a day for pain” (id.). Ward discontinued a prescription for a pain reliever Plaintiff reportedly said he was not using and a prescription for a medication for cramping that Plaintiff reportedly said was not effective (id.).
With respect to Plaintiff's ulcerative colitis, Ward's “Assessment/Plan” stated:
Ulcerative colitis with a history of not being on immune suppressants for several years and adopting a palliative plan of care. He has found MS Contin to be effective for pain at night. Will present this to the Pain Committee as well as his use of Tramadol during the day. Suggested a trial of Tramadol 50 mg t.i.d. to address the midday problem with pain management. Request for Services (RFS) done for colonoscopy.
On May 31, 2016, Ward signed a “Health Care Services Physician Request For Service” form requesting the “diagnostic procedure” of a colonoscopy (Plaintiff's Ex. 36). Ward stated that Plaintiff had a 20-year history of ulcerative colitis and had been refusing treatment, but “worsening of symptoms led to GI consult 5/18/16 that endorsed followup colonoscopy, RFS approved 5/23/16 at Donovan facility and then was transferred to Men's Colony, request that procedure be done here” (id.). The Request was approved on June 8, 2016 (id.). As indicated below, however, Plaintiff did not receive a colonoscopy until September 23, 2016, following Plaintiff's transfer to the California State Prison, Los Angeles County (see Plaintiff's Ex. 35; Plaintiff's Dec., p. 29).
C. Plaintiff's Requests for Health Care Services on June 4, 5 and 6, 2016
On Saturday, June 4, 2016, Plaintiff submitted a “Health Care Services Request Form, ” also known as a “CDC Form 7346" (Plaintiff's Ex. 14). Plaintiff requested a colonoscopy, “expedited to like tomorrow” (id.). Plaintiff also asked to see the doctor regarding Plaintiff's pain medication, saying that his condition was “steadily getting worse, ” and that the pain “was becoming more than I can take” (id.). Plaintiff said that his current pain medications were “no longer effective, ” that the matter was “urgent” and that his pain was “off the charts” (id.).
The Court takes judicial notice of the days of the week of various dates mentioned herein. See Fed.R.Evid. 201; Plotner v. AT & T Corp., 224 F.3d 1161, 1167 n.1 (10th Cir. 2000) (taking judicial notice “of the days of the week upon which the dates at issue fall”); Fisher v. United States, 2016 WL 11520616, at *2 (C.D. Cal. Nov. 23, 2016) (taking judicial notice that October 16, 2016 was a Sunday).
Plaintiff submitted a second “Health Care Services Request Form” on the same day, Saturday, June 4, 2016 (Plaintiff's Ex. 15). Plaintiff placed the notation “Urgent!” at the top of the form (id.). Plaintiff alleged that he suffered from ulcerative colitis and other problems, and that he was experiencing a moderate loss of blood and an increasing amount of pain (id.). Plaintiff stated that the “newest development” was “pain/tingling” and nausea which felt “exactly like getting kicked in the gonads” (id.). Plaintiff stated that he felt as if he was going to throw up and pass out (id.). Plaintiff said that his symptoms signaled that Plaintiff had a blockage in the colon (id.). Plaintiff again said that his pain was “completely off the charts” (id.).
Plaintiff submitted another “Health Care Services Request Form” on Sunday, June 5, 2016 (Plaintiff's Ex. 16). Plaintiff stated that he was recovering from the most painful episode he had experienced in six months (id.). According to Plaintiff, that afternoon Plaintiff had experienced pain signaling the need to pass waste (id.). Plaintiff recounted that, when Plaintiff sat on the toilet, Plaintiff experienced not only “normal intense pain” but Plaintiff also felt lightheaded and began throwing up (id.). Plaintiff alleged that the pain was “beyond a 10” during the two minutes of this experience lasted (id.).
Defendant Gonzalez received and reviewed these three requests on Monday, June 6, 2016. With respect to the first June 4 request, Gonzalez recorded that Plaintiff was seen that day by his provider and that the matter had been referred to “PCP Pain Management” with a compliance date of June 30, 2016 (Plaintiff's Ex. 14). On the second June 4 Request, Gonzalez appeared to note “Referral to PCP” and recorded that Dr. Ward had prescribed Plaintiff ibuprofen that day (Plaintiff's Ex. 15). With respect to the June 5 request, the handwriting is unclear, but it appears Gonzalez recorded that Plaintiff would be seen by Dr. Ward (Plaintiff's Ex. 16).
The record does not explain why medical personnel apparently did not receive and review Plaintiff's June 4 and June 5 requests until Monday, June 6.
D. Plaintiff's June 6, 2016 Appointment With Defendant Ward
Plaintiff saw Dr. Ward on Monday, June 6, 2016 (Plaintiff's Ex. 17a). According to Plaintiff, the visit did not “go well” (Plaintiff's Dec., p. 12). When Ward asked how Plaintiff was doing, Plaintiff said “not good, ” and said he needed morphine or something in its place because Plaintiff could not “handle this pain” (id.). Ward asked: “Well are you ready to restart your treatment?” (id.). Plaintiff said he did not want to take anything for his condition (id.). Ward responded, “Then your ordeal is going to get worse” and “I told you I wouldn't help you with this process” (id.). Ward physically examined Plaintiff while the two argued (id.). /// ///
Plaintiff said that Plaintiff needed the morphine and that the dose should be increased, not discontinued (id.). Plaintiff said the Tramadol was “not working at all” and made Plaintiff feel sick (id.). Ward made it clear that, if Plaintiff agreed to restart his treatment with Prednisone and the chemo drug Remicaid, Ward would provide whatever pain medications Plaintiff wanted (id., pp. 12-13). Plaintiff refused, telling Ward that Plaintiff had the right to refuse chemo drugs and the right not to suffer pain as his condition ran its course (id., p. 13).
According to Ward's “Medical Progress Note” concerning the June 6, 2016 appointment with Plaintiff, at the time of the appointment Plaintiff was 5 feet 3 inches tall and weighed 131 pounds (Plaintiff's Ex. 17a). Ward recorded that Plaintiff reported significant abdominal pain and that Plaintiff said he lately felt that “something has changed, causing increased pain and problems with constant bowel movements” (id.). Plaintiff requested a colonoscopy (id.). Ward stated that the colonoscopy had been scheduled at Plaintiff's prior place of incarceration, and that, on the last visit (apparently the May 31, 2016 visit), a “Request for Services had been done for followup colonoscopy” (id.). Ward recorded that Plaintiff recently had been taking “MS Contin extended release” for pain and Tramadol twice a day, and that, on the last visit, Ward had increased the Tramadol to 50 mg three times a day (id.). Ward reported that Plaintiff said this was not working well (id.). Ward reportedly explained to Plaintiff that Plaintiff's case had been presented to the Pain Committee on June 3, 2016 and that the Pain Committee was not supportive of extended release morphine at night, but suggested trying an increase of Tramadol to 100 mg three times a day “and check[ing] his inflammatory markers” (id.). Plaintiff reportedly was “agreeable to this plan” (id.).
In his unsworn Opposition, Plaintiff states that Ward was a member of the Pain Management Committee (Opposition, p. 5).
With respect to Plaintiff's ulcerative colitis, Ward's “Assessment and Plan” stated:
Chronic pain related to inflammatory bowel disease. RFS done for Telemedicine GI. RFS is pending for colonoscopy followup. Trial of increasing Tramadol 100 mg 3 doses a day. Explained to him [Plaintiff] that there is no support for using extended release morphine for inflammatory bowel disease at this facility. He is willing to try doing without this medication.
Under “FOLLOWUP, ” Ward stated there would be a followup in 30 days “to follow up on laboratory work and pain control” (id.).
A “Medication Reconciliation” document recorded Plaintiff's medications (Plaintiff's Ex. 17b). This document appears to bear Defendant Ward's signature and stamp, dated June 6, 2016. The box labeled “Stop” is checked next to Plaintiff's prescription for extended release morphine (id.). A “new rx” for Tramadol 50 mg three times a day (not 100 mg a day) is recorded (id.). In his declaration, Plaintiff states that, on June 6, 2016, his morphine was “cut” and his Tramadol was reduced (Plaintiff's Dec., p. 13).
However, a partial record of Plaintiff's medications indicates that, on June 6, 2016, Defendant Ward prescribed 100 mg of Tramadol twice a day (Plaintiff's Ex. 32).
Also on June 6, 2016, Defendant Ward signed a “Health Care Services Physician Request for Services” form, requesting a “Telemedicine GI” for Plaintiff (Plaintiff's Ex. 37). Ward checked the box labeled “Routine” rather than the boxes labeled “Urgent” or “Emergent” (id.). The Request was approved on June 14, 2016 (id.).
E. Apparent Visit With a Mental Health Counselor
A document titled “Interdisciplinary Progress Notes - General, signed on June 7, 2016, appears to reflect Plaintiff's visit with a mental health counselor on that date (Plaintiff's Ex. 18). The Notes indicate that Dr. Ward referred Plaintiff for “Bereavement, ” but Plaintiff reported that he was not experiencing mental health concerns or bereavement, but concerns regarding increased physical pain and changes to his medication (id.). The document records that a note from “Interdisciplinary Panel Review 5/27/16 (formerly Pain Management Committee), ” stated: “Ward/Currently on Tramadol and MS Contin for ulcerative colitis. Recommendations: MS Contin is contraindicated with IS's bowel condition, but Tramadol can be used so should DC the MS Contin.” (id.). The Interdisciplinary Panel Review note also states, inter alia, that Defendant Ward was “concerned that patient has a POLST and advanced directive and is fairly young for these” (id.). The Interdisciplinary Review Panel note apparently was authored the day after Plaintiff's transfer to CMC-East and before Plaintiff's initial visit with Defendant Ward on May 31, 2016.
In his unsworn Opposition, Plaintiff states that his psychologist authored these Notes (Opposition, p. 17).
Nothing in the record expressly explains why morphine, which Plaintiff's previous doctor prescribed and which Ward assertedly later prescribed in a “tapering dose” (as indicated below) allegedly was “contraindicated” for Plaintiff's condition.
F. Plaintiff's June 7, 2016 Request for Health Care Services and Triage Visit with Defendant Gonzalez
On Tuesday, June 7, 2016, Plaintiff submitted another “Health Care Services Request Form, ” labeled “EMERGENCY” at the top (Plaintiff's Ex. 19a). Therein, Plaintiff stated:
This is an emergency. I am in constant severe pain in my stomach and abdomin [sic]. My condition is getting worst [sic] almost daily. The pain is growing more constant and intense. I cannot eat or sleep because of (1) this pain and (2) the need to use the bathroom. I have had to use the toilet 20+ times in the past 12 hours. The stool is unformed, charcoal black, with a lot of red blood. And the pain is off the charts.(id.).
Defendant Gonzalez received and reviewed the request that day (id.). Plaintiff was escorted to the infirmary (Plaintiff's Dec., p. 14). Gonzalez recorded Plaintiff's pain as a “7" on a scale of 1 to 10 and noted “hyperactive bowel sounds” (id.). Gonzalez recorded Plaintiff's weight as 125 pounds (although Defendant Ward had recorded Plaintiff's weight as 131 pounds the day before) (id.). On June 7, Plaintiff was weighed wearing chains, so he actually then weighed 122 pounds (Plaintiff's Dec., p. 14). Gonzalez recorded that Plaintiff reported a feeling like a “growth or blockage” in his colon, that he had experienced stomach pain and nausea for the past “1-2 weeks, ” and that he had refused chemo for ulcerative colitis (Plaintiff's Ex. 19a).
Plaintiff described his condition and explained his refusal of treatment (Plaintiff's Dec., p. 15). Plaintiff said that his symptoms were worsening and that he was suffering increased pain, as well as cramping, “muscle-spasm-like contractions” and blood loss (id.). Plaintiff said he had developed new symptoms of vomiting and “heat-sweat flashes” (id.). Gonzalez said:
Yeah, well, I would imagine it would be painful. It's hard to understand why you or anyone would refuse treatment and expect us to help you. The whole thing seems stupid.(id.).
After listening to Plaintiff's abdomen with a stethoscope, Gonzalez said, “Doctor Ward already told you, all you need to do is take your treatment” (id., p. 16). After Plaintiff confirmed that his previous treatment had been Remicaid, a chemo drug given intravenously in the hospital, Gonzalez said, “As long as you refuse your treatment we aren't going to provide you opiates” (id.).
The conversation turned into an argument (id., p. 16). Plaintiff said:
You guys can't do this. . . . I have a right to do this. I have a right to refuse chemo drugs and still have my pain addressed. I'm sincere about my wishes. I'm deteriorating. I'm in the process of dying. My condition is getting bad. . . . I have to sit on the toilet every 30 minutes and drain blood. The cramping pain is off the charts. All I'm asking is for someone to help me. If the doctor won't listen to you, then I'm hoping you'll go over his head. I know you can go to the Chief Medical Officer, or the supervising Nurse.(id., pp. 16-17).
Gonzalez replied, “You want me to go around the doctor? . . . I'm not going to do that. What would make you think we have to help you do this?” (id., p. 17). Plaintiff said, “I can't do this” (id.). Gonzalez asked if Plaintiff wanted to resume his treatment (id.). Plaintiff said, “No. . .. No. No. I don't want my treatment. I just don't want to suffer like this. I shouldn't have to suffer like this” (id.). Gonzalez responded, “Well, you can't have both” (id.).
Gonzalez never told Plaintiff about a tapering dose (id.).
On the “Health Care Service Request Form, ” Gonzalez noted, inter alia, that a “pain management” appointment was “to be scheduled” (Plaintiff's Ex. 19a). The document also bears a handwritten notation stating “Ordered tapering dose of immediate release morphine, ” apparently bearing Defendant Ward's initial and a stamp dated June 7, 2016 (id.).
Also on June 7, 2016, Gonzalez wrote “Interdisciplinary Notes, ” indicating she had spoken to Ward about Plaintiff's June 7 Health Care Services Request (“Plaintiff's Ex. 19b). Gonzalez related that, during the assessment in triage that day, Plaintiff had said he had refused treatment in the past, that he had the right to do so, and that he needed a colonoscopy (id.). Gonzalez recorded that Plaintiff was “argumentative about his ulcerative colitis” (id.). Gonzalez reported that she had informed Plaintiff that Ward had placed an order “to slowly titrate morphine Dosage down” and that the plan was “to see how [Plaintiff] tolerates this program” (id.). Plaintiff also was referred to the Pain Committee (id.). Gonzalez also “sent an email to UM regarding approved RFS for colonoscopy” and recorded that Ward stated that Plaintiff had been “referred to GI as well” (id.).
G. Plaintiff's Health Care Services Requests on June 10, 11, 12 and 13, 2016; the June 13, 2016 Triage Visit With Defendant Casabar
Plaintiff had his first “tapering dose” of morphine on the night of Tuesday, June 7, 2016 (Plaintiff's Dec., p. 18). Wednesday was “terrible, ” Thursday was “worse, ” and Friday was “nothing but pain and suffering (Plaintiff's Dec., p. 18). Plaintiff could not sleep more than an hour at a time (id.). The days were “equally rough” (id.). Plaintiff was using the toilet every 30 minutes, was experiencing cramping and was “doubled over with abdominal pain” (id., pp. 18-19). Plaintiff experienced pressure and pain in the rectum, hot flashes, sweating, hyperventilating and vomiting simultaneous with blood and mucus draining from his rectum (id., p. 19). Plaintiff was wasting away, deteriorating, losing weight, losing motor function and losing coordination (id.). Plaintiff was in pain 24 hours a day (id.). Finally “tapping out, ” Plaintiff made the decision to restart treatment for his underlying condition (id.).
Plaintiff saw a doctor, possibly Dr. Dillen, on June 8, 2016 (Plaintiff's Ex. 21). The doctor noted Plaintiff's prescriptions for Tramadol 50 mg three times a day and for “MS 15 mg” (id.). The doctor prescribed anti-diarrheal medications and sent an email to Defendant Ward (id.).
On Friday, June 10, 2016, Plaintiff submitted a “Health Care Services Request Form, ” stating that Plaintiff had been going downhill ever since he stopped chemo and that Plaintiff needed to “get back on chemo” (Plaintiff's Ex. 23a). Defendant Casabar received and reviewed the request on June 11, 2016 (id.). The document contains the following notations, apparently by Casabar: “seen by triage RN 6/13/16” and “see attached.” The exhibit contains no attachment.
An unidentified medical provider, possibly a nurse, saw Plaintiff on June 10, 2016 (Plaintiff's Ex 22). The provider recorded that Plaintiff reported pain and the ineffectiveness of his pain medication, and said he wanted to see a doctor (id.). The provider purportedly assured Plaintiff that it was “not emergency” and apparently told him he should pursue the matter through the “7362 process” (id.).
Plaintiff submitted two “Health Care Services Request Forms” on Saturday June 11, 2019, both of which were received and reviewed by Casabar on June 12, 2019 (Plaintiff's Exs. 23B, 24; see Plaintiff's Dec., p. 19). Both requests bore the word “Emergency” at the top and began with the words “This is an emergency” (Plaintiff's Exs. 23B, 24). In both requests, Plaintiff stated that he had been suffering extreme pain for seven days, that Plaintiff needed his pain medication switched from morphine and Tramadol to Lyrica and that Plaintiff was ready to resume his treatment with “ASOCAL/Prednisone/REMICAID” (Plaintiff's Exs. 23b, 24). Defendant Casabar received and reviewed both Requests on June 12, 2016 and made the same notations on both Requests, apparently on June 13, 2016: “seen by triage RN on 6/13/16" and “see attached” (Plaintiff's Exs. 23B, 24). However, the exhibits contain no attachments.
Plaintiff submitted another “Health Care Services Request Form” on Sunday, June 12, 2016 (Plaintiff's Ex. 25; Plaintiff's Dec., p. 19). Plaintiff said he needed to see the doctor “ASAP” (Plaintiff's Ex. 25). Plaintiff said that he was in extreme pain and required a change in his pain medications to Lyrica (id.). Plaintiff also said, “I can't do this anymore” and asked to resume his treatment with “ASOCAL, Prednisone, REMICAID, etc.” (id.). Plaintiff said, “But we need to do this Monday. I can't handle this pain any more.” (id.).
Defendant Casabar received and reviewed the Request on Monday, June 13, 2016, and saw Plaintiff in triage on that date (id.; see Plaintiff's Dec., p. 20). Casabar recorded Plaintiff's weight as 118 pounds (down from 125 pounds recorded on June 7 and 131 pounds recorded on June 6, 2016) (Plaintiff's Ex. 25). According to Plaintiff, because Plaintiff again was weighed wearing chains, his weight probably was 115 pounds (Plaintiff's Dec., p. 21). Plaintiff was emaciated, had sunken eyes and looked like a skeleton (id.). As Plaintiff began to explain his situation, Casabar interrupted Plaintiff to say that she was aware of his case and asked if he was ready to resume his treatment (id., pp. 21-22). Plaintiff said yes and asked if Casabar could get Plaintiff started on Prednisone and do something for Plaintiff's pain (id., p. 22).
Casabar said, “I don't know . . . I don't think anyone's in a hurry to help you. You brought this on yourself so you may just have to live with the consequences until we're ready.” Plaintiff's Dec., p. 22). Casabar took Plaintiff's vitals, but did not examine Plaintiff at all (id.). Plaintiff was crying, saying he could not take it any more and asking for help (id., p. 23). Casabar said, “I doubt you're going to get anyone to rush in and save you. You brought this on yourself. Now you have to deal with the pain. . . .” (id.).
According to Plaintiff, “If those weren't [Casabar's] exact words, they were awfully close” (Plaintiff's Dec., p. 22).
Casabar recorded that Plaintiff was experiencing pain at a level of 7 on a scale of 1 to 10 associated with ulcerative colitis and diarrhea (Plaintiff's Ex. 25). Casabar recorded that Plaintiff had reported that he had taken “chemo drugs” during the period 2009-2014, that he thereafter had refused treatment, but that “he wants to be started on it again” (id.). Casabar recorded the following: “Dr. Ward notified regarding inmate's complaints and request. Dr. Ward stated that inmate was just seen in pain management committee and has been referred for a GI consult. Instructed to continue medications as ordered.” (Plaintiff's Ex. 25). Casabar signed the Request as “completed” on June 13, 2016 (id.).
Also on June 13, 2016, Plaintiff submitted another “Health Care Services Request Form, ” again requesting a switch in his pain medication to Lyrica and the resumption of his treatment, including Asacol, Prednisone and Remicaid (Plaintiff's Ex. 26). Plaintiff stated, “I can't do this - in too much pain - any more” (id.). Defendant Casabar received and reviewed this Request on June 14, 2016 and noted: “Seen by triage RN on 6/13/16" and “Above complaints/ request has been discussed with Dr. Ward” (id.). Casabar signed the Request as “completed” on June 14, 2016 (id.).
H. Plaintiff's Health Care Services Requests on June 15, 16 and 17, 2016
Over the next several days, Plaintiff's condition deteriorated further (Plaintiff's Dec., p. 24). Plaintiff submitted five “Health Care Services Request Forms” between June 15, 2016 and June 17, 2016.
On June 15, 2016, Plaintiff submitted two “Health Care Services Request Forms.” In one Request, Plaintiff stated that he was suffering a lot of pain and needed to get back on his medications, including chemo (Plaintiff's Ex. 27). Plaintiff said he had submitted three previous requests, but had not seen anyone (id.). Plaintiff said, “I need to see the doctor ASAP/URGENT” (id.). Defendant Casabar received and reviewed the Request on June 16, 2016 (id.). Casabar wrote: “PCP [Primary Care Provider] ¶ 6/27/20" and “See attached.” (id.). The document in the record contains no attachment. Casabar signed the Request as “completed” on June 17, 2016 (id.).
In the other June 15, 2016 Request, Plaintiff wrote that he was experiencing pain 24 hours a day and that the pain level varied from 5 to at least 10 (Plaintiff's Ex. 28). Plaintiff said that the need to be near a toilet, Plaintiff's inability to eat and the pain had taken over his life (id.). Plaintiff again wrote: “I need to see the doctor ASAP/URGENT” (id.). Plaintiff said that a “gap” in pain medication from noon to 6 p.m. was “tortulous [sic]” and needed to be addressed (id.). Plaintiff said he had submitted five Requests, but had still not seen anyone (id.). Casabar received and reviewed the Request on June 16, 2016 and made the following notations: “PCP . . . by 6/27/16”; “C-scope by 8/29/16”; “Telemed by 9/4/16” and “See Attached.” (id.). Casabar signed the Request as “completed” on June 17, 2016 (id.). The copy of the document in the record does not contain an attachment.
The next day, June 16, 2016, Plaintiff submitted two more “Health Care Services Request Forms” (Plaintiff's Exs. 29, 30). In one request, Plaintiff said he was trying to get treatment for his colitis and that this was his fifth request (Plaintiff's Ex. 29). Plaintiff stated, “I can't do this any more and want to start my treatment meds” (id.). Plaintiff added, “Please help. I can't handle the pain.” (id.). The request does not contain a date of receipt or review, but does contain a notation by Defendant Casabar stating “see attached” (id.). Casabar signed the Request as “completed” on June 17, 2016 (id.). The document in the record does not contain any attachment.
In the other June 16 request, Plaintiff again stated he was suffering pain in his stomach and low abdomen 24 hours a day, ranging from a level of 5 to 10 when the pain medication wore off (Plaintiff's Ex. 30). Plaintiff said he could not sleep, eat, move around or function at all (id.). Plaintiff said that he had been begging to see a doctor to make changes in his pain medication, that he could not “live like this any more, ” and that he was “falling deep into depression from it” (id.). The request does not contain a date of receipt or review, but does contain a notation by Defendant Casabar stating:
Seen in triage on 6/13/16. Above complaints and request has [sic] been addressed. Dr. Ward is aware. Has PCP F/up for change of medication by 6/27/16 . . . C-scope by 8/29/16 and Telemed appt for ulcerative colitis by 9/4/16.(id.). The document in the record does not contain any attachment. Casabar signed the Request as “completed” on June 17, 2016 (id.).
On June 17, 2016, Plaintiff submitted another “Health Care Services Request Form, ” stating that he was in “a full blown crisis” and “the worst [he had] ever been” (Plaintiff's Ex. 31). Plaintiff said, “I am in so much pain I can't function at all” (id.). Plaintiff stated, “Please, someone help me” (id). Triage nurse Johnson (no longer a Defendant) received and reviewed the request on June 27, 2016 (id.). The record contains no explanation for the delay. Johnson wrote “see progress note, ” but no such note is attached to the document in the record.
I. Plaintiff's Apparent Collapse, Subsequent Hospitalization and Subsequent Treatment at Other Prisons
Early on Monday, June 20, 2016, a “psych tech” found Plaintiff lying on the floor of his cell in a pool of blood originating from his rectum (Plaintiff's Dec., p. 28). Plaintiff had been on the toilet with “excuciatingly painful” cramps, draining blood and mucus, and “kind of slid or slumped from the toilet to the floor of the cell” (id.). Plaintiff was taken to the infirmary and given fluids through an I.V. (id.). Defendant Ward approached Plaintiff and asked if Plaintiff was ready to “revisit” Plaintiff's Advance Health Care plans (id.). Ward had the forms in his hand (id.). Wanting the pain to stop, Plaintiff signed some papers (id.).
According to a “Medical Progress Note” dated June 20, 2016 and apparently authored by Defendant Ward, Ward saw Plaintiff that day because a pysch tech “expressed concern” about Plaintiff's condition (Plaintiff's Ex. 34). In the “Subjective” portion of the Note, Ward stated that Plaintiff reportedly had been “having difficulty with pain lately” and had “been concerned that there has been a change in his ulcerative colitis and Gastroenterology and colonoscopy referrals are pending” (id.). Ward recorded Plaintiff's height as 5 feet 4 inches and his weight as 95 pounds (id.). Ward wrote:
Plaintiff alleges that Ward saw Plaintiff on June 20, 2016, asked about Plaintiff's “Advance Healthcare Plans” and had Plaintiff transferred to the hospital (Plaintiff's Dec., p. 29). Although the June 20, 2016 “Medical Progress Note” does not bear Ward's name or signature, the contents of the document support a reasonable inference that Ward was the author.
[Plaintiff] has lost a significant amount of weight. His weight this morning is 95 pounds which would indicate over a 30-pound weight loss over the last month. I talked to him about his goals and care. His Physician's Orders for Life Sustaining Treatment (POLST) form, which we had discussed earlier, stated that he wanted palliative measures only.
He is expressing a desire at this time to revise these goals stating that he is not ready to be at end of life and would like to restart treatment for ulcerative colitis. I discussed this with the team here and feel that it is in his best interest to transfer him to a higher level of care at this time to address his nutritional status and his work up the underlying condition [sic] that has led to this weight loss. Discussed with Medical Officer of the Day as well as the Chief Physician and Surgeon here.(id.).
Ward's “Assessment/Plan” stated:
1. Volume depletion. Will transfer to the Triage and Treatment area here and give a bolus of saline. . . .
2. Weight loss. Differential diagnosis here is broad, possible exacerbation of ulcerative colitis. He has expressed a desire for no treatment in the past, but has recently been changing his mind about this. Will transfer to the hospital setting where more aggressive treatment can be expedited.
3. Chronic pain. He is currently on Tramadol, no change at this time, has been discussed with the pain committee, he had been on extended release morphine once a day.(id.).
Ward had Plaintiff transferred by ambulance “CODE 2" to an outside hospital (Plaintiff's Dec., p. 29). “CODE 2" “means that the person might not make it” (id.). Although a prisoner ordinarily is transferred to a hospital in a prison van with several guards, Plaintiff was transferred by ambulance “because they wanted the medical technicians there in case something went bad” (id.).
A report from the Twin Cities Community Hospital, dated June 20, 2016, records that Plaintiff arrived at the hospital that afternoon (Plaintiff's Ex. 46). Plaintiff's “Chief Complaint” as related by the CMC “Nursing Triage Note” was blood in stool, abdominal pain, history of ulcerative colitis and a “30# weight loss in last 2 weeks” (id.). The hospital doctor prescribed antibiotics and Prednisone (id.; Plaintiff's Dec., p. 29).
On June 23, 2016, a prison doctor completed a “Health Care Services Physician Request for Services, ” stating that Plaintiff had seen his “PCP”, that Plaintiff had suffered a 30-pound weight loss “over last couple months, ” currently weighed 95 pounds, was reporting fatigue and weakness and “Acutely [sic] has Diffuse Abdominal Pain, Diarrhea + Blood in Stool” (Plaintiff's Ex. 38). The Request stated that Ward discussed the case with Dr. Sprague and that Plaintiff had “voluntarily chosen” not to treat his chronic ulcerative colitis (id.). The Request sought hospital services for evaluation and treatment(id.). The Request contained a check in the box marked “Emergent” (id.).
Although the Request identifies the “requesting physician” as “Mojica/Ward, ” the Request appears to have been written and signed by a physician other than Defendant Ward.
Following his transfer to the California State Prison, Los Angeles County, Lancaster, Plaintiff had a colonoscopy on September 23, 2016 (Plaintiff's Ex. 35; Plaintiff's Dec., p. 29). The reviewing physician found conditions “compatible with Chronic ulcerative colitis, remission” (id.). A “Medication Reconciliation Form” accompanying the reviewing physician's report recorded that Plaintiff's medications included Lyrica and Tramadol (id.). It is unclear when Plaintiff began taking Lyrica.
On April 19, 2017, Doctor Shpaner authored a “Telemedicine Custody Consultation Gastroenterology, ” memorializing a consultation conducted on April 18, 2017 (Plaintiff's Ex. 56). In April of 2017, Plaintiff was confined at the California State Prison, Sacramento, where he remains (id.). Plaintiff's height was recorded at 5 feet three inches and his weight at 138 pounds (id.). Dr. Shpaner recorded that a colonoscopy “from several months ago” showed “extensive scarring through the colon, but no active disease” (id.). Dr. Shpaner stated that, during the previous four months, Plaintiff had experienced three to four flare-ups of his ulcerative colitis condition which necessitated the use of Prednisone (id.). Plaintiff indicated a desire to discontinue “all opiates, ” manage his condition more naturally and resume a special diet (id.). Dr. Shpaner recorded that Plaintiff was maintaining his weight and otherwise had no specific complaints (id.). Dr. Shpaner's recommendations including the continuation of Plaintiff's Lyrica prescription “for the next several months at the current dose” and the discontinuation of Plaintiff's Tramadol prescription (id.).
DISCUSSION
I. Governing Legal Standards
A. Deliberate Indifference
A prison official can violate a prisoner's Eighth Amendment right to be free of cruel and unusual punishment if the official is deliberately indifferent to the prisoner's serious medical needs. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). “A ‘serious' medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain.'” McGuckin v. Smith, 974 F.2d at 1059 (citation omitted); see also Lopez v. Smith, 203 F.3d at 1131 (examples of “serious medical needs” include “a medical condition that significantly affects an individual's daily activities, ” and “the existence of chronic and substantial pain”; citation and internal quotations omitted). Defendants do not deny that Plaintiff's ulcerative colitis, pain and related conditions constituted serious medical conditions.
To establish deliberate indifference, a prisoner must show that prison officials knew of and disregarded an excessive risk to the prisoner's health or safety. Farmer v. Brennan, 511 U.S. at 837. The official must have been aware of facts from which the inference could be drawn that a substantial risk of serious harm existed, and must have also drawn the inference. Id. Thus, inadequate treatment due to accident, mistake, inadvertence, or even gross negligence does not amount to a constitutional violation. Estelle v. Gamble, 429 U.S. at 105-06; Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). “[A]n official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot . . . be condemned as the infliction of punishment.” Farmer v. Brennan, 511 U.S. at 838.
“Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, . . . and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Farmer v. Brennan, 511 U.S. at 842 (citations omitted); see Harrington v. Scribner, 785 F.3d 1299, 1304-05 (9th Cir. 2015) (“obviousness of a risk may be used to prove subjective knowledge, . . . [and] evidence of obviousness may present a disputed fact to defeat summary judgment”).
“The provision of some medical treatment, even extensive treatment over a period of years, does not immunize officials from the Eighth Amendment's requirements.” Edmo v. Corizon, Inc., 935 F.3d 757, 793 (9th Cir. 2019), cert. denied, 141 S.Ct. 610 (2020); see also Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000) (to show deliberate indifference, “[a] prisoner need not prove that he was completely denied medical care”); Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010) (to show deliberate indifference, “a prisoner is not required to show that he was literally ignored”) (citation omitted). 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); see also Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (prison officials may act with deliberate indifference when they “deny, delay, or intentionally interfere with medical treatment” (citation omitted); Snow v. McDaniel, 681 F.3d 978, 986 (9th Cir. 2012) (citations omitted), overruled on other grounds, Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc), cert. denied, 574 U.S. 1073 (2015) (“the way prison staff delivered medical care” may demonstrate deliberate indifference”). To show deliberate indifference based on a delay in medical treatment, a plaintiff must show that the delay caused substantial harm to the plaintiff. See Wood v. Housewright, 900 F.2d 1332, 1225 (9th Cir. 1990) (only delays that cause substantial harm violate the Eighth Amendment); Shapley v. Nevada Bd. of State Prison Commissioners, 766 F.2d 404, 407 (9th Cir. 1985) (same).
“Typically, 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.” Edmo v. Corizon, Inc., 935 F.3d 757, 786 (9th Cir. 2019), cert. denied, 141 S.Ct. 610 (2020) (citations, quotations and brackets omitted). “But that is true only if the dueling opinions are medically acceptable under the circumstances.” Id. (citation omitted); see also Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.), cert. denied, 519 U.S. 1029 (1996) (“where a defendant has based his actions on a medical judgment that either of two alternative courses of treatment would be medically acceptable under the circumstances, . . . [a plaintiff] must show that the course of treatment the doctors chose was medically unacceptable under the circumstances, . . . and the plaintiff must show that they chose this course in conscious disregard of an excessive risk to plaintiff's health.”) (citations omitted).
B. Right to Refuse Medical Treatment
Plaintiff had the right to make decisions regarding his medical treatment, including the decision to refuse treatment and to make end-of-life directives. See Cruzan ex rel. Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 278 (1990); Benson v. Terhune, 304 F.3d 874, 884 (9th Cir. 2002); Thor v. Superior Court, 5 Cal.4th 725, 731-49, 21 Cal.Rptr.2d 357, 855 P.2d 375 (1993) (prisoner has right to refuse life-sustaining treatment); Cal. Penal Code § 2600) (stating that a prisoner may be deprived of only such rights as are reasonably related to legitimate penological interests, but that “[n]othing in this section shall be construed to overturn the decision in Thor v. Superior Court, 5 Cal.4th 725"); Cal. Probate Code § 4650(a) (“In recognition of the dignity and privacy a person has a right to expect, the law recognizes that an adult has the fundamental right to control the decisions relating to his or her own health care, including the decision to have life-sustaining treatment withheld or withdrawn.”); former Cal. Code of Regs., tit. 15, § 3351(c) (“When an inmate has a valid advance health care directive or a valid executed Physicians Orders for Life Sustaining Treatment (POLST) [sic], health care staff shall act in accordance with the provisions of the advance health care directive, or POLST, as provided by law.”).
In 2018, after the events giving rise to Plaintiff's claims, section 3351 was renumbered without substantive change. The provisions of former section 3351 are now contained in section 3999.210 (filed 8-6-2018 pursuant to section 100, title 1, California Code of Regulations (Register 2018, No. 32)).
II. Triable Issues of Fact Exist Regarding Defendants' Alleged Deliberate Indifference.
Defendants argue that the evidence shows only a difference of opinion concerning the appropriate treatment for Plaintiff and that Defendants did not deny Plaintiff treatment. As indicated above, a difference of opinion between a physician and a prisoner concerning treatment does not constitute deliberate indifference where the physician's opinion is “medically acceptable under the circumstances.” Edmo v. Corizon, Inc., 935 F.3d at 786 (citation omitted); Jackson v. McIntosh, 90 F.3d at 332. However, a prison health care provider's refusal to provide treatment, or delay of treatment, for an unacceptable or non-medical reason can constitute deliberate indifference. See Jackson v. McIntosh, 90 F.3d at 332 (on summary judgment, defendant physicians were not entitled to qualified immunity when plaintiff alleged that they denied him a kidney transplant because of personal animosity); see also Egberto v. Nevada Dep't of Corr., 678 Fed. App'x 500, 503-04 (9th Cir. 2017) (prison officials interference with prisoner's treatment for non-medical reasons, such as personal animus, could constitute deliberate indifference); Wakefield v. Thompson, 177 F.3d 1160, 1165 (9th Cir. 1999) (prison official's failure to provide inmate with prescribed medication because official was “too busy” could show deliberate indifference); Hartsfield v. Colburn, 371 F.3d 454, 457 (8th Cir. 2004), cert. denied, 552 U.S. 1300 (2008) (delaying dental treatment on account of prisoner's behavior issues could show deliberate indifference).
As discussed below, Plaintiff's evidence, taken as true for purposes of this Motion, reasonably could show that Defendants denied and/or delayed pain medication for Plaintiff due to Defendants' personal disagreement with Plaintiff's choice to refuse treatment for his underlying ulcerative colitis condition, and not for any acceptable medical reason. Furthermore, Plaintiff's evidence, if credited, could show that Defendants deliberately disregarded Plaintiff's descriptions of his deteriorating condition, objective indicia of Plaintiff's deteriorating condition and Plaintiff's eventual requests to resume treatment for his underlying condition. Plaintiff's evidence reasonably could show that, as a result of Defendants' actions and inactions, Plaintiff unduly suffered pain, increasingly severe symptoms, a precipitous weight loss and the need for an emergency hospitalization.
Defendant Ward
Plaintiff's evidence would permit the reasonable conclusions that, on May 31, 2016, Defendant Ward was aware of: (1) the alleged contents of Plaintiff's medical file, including Plaintiff's Advance Health Care Directive and POLST; (2) Plaintiff's ulcerative colitis diagnosis and prior treatment and prescriptions, including prescriptions for morphine at night and Tramadol during the day; (3) the opinion of Plaintiff's prior physician that Plaintiff did not appear to be exhibiting drug-seeking behavior; (4) the colonoscopy order placed by Plaintiff's prior physician at the Donovan facility and approved at that facility but never performed due to Plaintiff's transfer to CMC; (5) Plaintiff's decision to forego treatment for his underlying ulcerative colitis condition and to use only palliative measures including pain medication; (6) the adequacy of morphine to control Plaintiffs' pain at night; (7) Plaintiff's opposition to using morphine during the day; and (8) Plaintiff's worsening condition. Plaintiff's evidence, if credited, would support the reasonable conclusion that, by June 6, 2016, Ward was aware that Plaintiff reportedly was experiencing severe abdominal pain and constant bowel movements.
See Jett v. Penner, 439 F.3d 1091, 1097 (9th Cir. 2006) (prisoner plaintiff opposing summary judgment was “entitled to an inference that [prison doctor] was aware of the filed grievance, medical slips, and aftercare instructions in [Plaintiff's] medical record”).
According to Plaintiff's evidence, Ward nevertheless told Plaintiff that Ward would not prescribe pain medication for Plaintiff because Ward personally disagreed with Plaintiff's exercise of Plaintiff's right to refuse treatment for his underlying ulcerative colitis condition. Assertedly knowing that Plaintiff was in great pain, Ward allegedly said that Ward would not prescribe pain medication unless Plaintiff resumed treatment for that underlying condition. Plaintiff's evidence, if credited, would permit a reasonable conclusion that Ward cancelled, and later tapered, the morphine previously prescribed by Plaintiff's prior physician, and that Ward did so only because of Ward's personal disagreement with Plaintiff's decision to receive palliative care only.
Although Defendant Ward's June 6, 2016 Medical Progress Note states that “it was the Pain Management Committee's recommendation to not be supportive of extended release morphine at night, ” nothing in the record indicates that the Pain Management Committee's “recommendation” prevented Ward from continuing Plaintiff's nighttime morphine prescription. To the extent Ward's statement, that there was “no support for using extended release morphine for inflammatory bowel disease at this facility, ” allegedly was based on an institutional blanket policy of refusing to prescribe morphine for this disease, any asserted reliance on such a blanket policy unrelated to a professional assessment of Plaintiff's medical condition and needs could support a finding of deliberate indifference. See Colwell v. Bannister, 763 F.3d at 1069-70 (finding genuine dispute as to whether prison officials acted with deliberate indifference when refusing to provide doctor-recommended cataract surgery based on prison's “one eye only” policy, and “not because non-treatment was a medically acceptable option.”); Snow v. McDaniel, 681 F.3d at 990 (doctor's statement “nope - gonna let you suffer until you tell me its [sic] working or not” in response to prisoner's request for additional pain medication was a “textbook example of the state of mind required to violate the Eighth Amendment.”); Jett v. Penner, 439 F.3d 1091, 1098 (9th Cir. 2006) (triable issue of fact as to whether doctor acted with deliberate indifference by refusing to request an orthopedic consultation based on a “competing administrative concern” that it would require referral to a non-contracted facility); Franklin v. Dudley, 2011 WL 2493770, at *9 (E.D. Cal. June 22, 2011) (“A blanket policy denying narcotic pain medication to inmates in the general population regardless of medical need violates [the Eighth Amendment].”).
Furthermore, if credited, Plaintiff's evidence also would show that: (1) Ward discontinued Plaintiff's morphine, then resumed only a “tapering dose” when Plaintiff's condition worsened; (2) after Defendant Casabar notified Ward of Plaintiff's descriptions of great pain and worsening symptoms and requests for a change in his pain medication on or about June 13, 2016, Ward simply continued Plaintiff's previously ordered medications; (3) Ward knew by June 13, 2016, or at least by June 16, 2016, (via communication with Casabar) that Plaintiff had complained of debilitating pain and worsening symptoms, wanted a change in his pain medication and wanted to resume treatment, including Prednisone, for his underlying colitis condition; (4) Ward was aware that Plaintiff was scheduled for an appointment regarding a “change of medication” by June 27, 2016, yet did not advance the date of that appointment in light of Plaintiff's worsening condition and his requests for pain medication and resumption of his colitis treatment; and (5) after June 16, 2016, and despite the urgency of Plaintiff's previous multiple requests for help containing descriptions of Plaintiff's worsening condition, worsening pain and requests to resume his treatment and to receive Prednisone, Ward did not take any action concerning Plaintiff's complaints and requests until after Plaintiff's collapse on June 20, 2016. A reasonable juror could conclude that Ward, knowing of Plaintiff's worsening condition and worsening pain, intentionally delayed providing effective pain treatment for Plaintiff and delayed ordering the resumption of treatment for Plaintiff's underlying condition, delays which allegedly caused significant harm to Plaintiff. See Edmo v. Corizon, Inc., 935 F.3d at 793 (continuation with “ineffective treatment plan” constituted deliberate indifference); Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989) (reversing grant of summary judgment for prison officials who allegedly were aware that the loss of plaintiff's dentures was causing him severe pain, bleeding gums and inability to eat properly, yet failed to take any action to relieve his pain or to prescribe a soft food diet until new dentures could be fitted); see also Arnett v. Webster, 658 F.3d 742, 754 (7th Cir. 2011) (“A prison physician cannot simply continue with a course of treatment that he knows is ineffective in treating the inmate's condition.”) (citation omitted); McElligott v. Foley, 182 F.3d 1248, 1257-58 (11th Cir. 1999) (summary judgment inappropriate under Eighth Amendment standards, where jail doctor prescribed only ineffective medication for inmate's increasingly severe symptoms of severe stomach pain and cramps, vomiting and inability to eat); Hathaway v. Coughlin, 37 F.3d 63, 68 (2d Cir. 1994), cert. denied, 513 U.S. 1154 (1995) (“A jury could infer deliberate indifference from the fact that [the defendant medical provider] knew the extent of [plaintiff's] pain, knew that the course of treatment was largely ineffective, and declined to do anything more to attempt to improve [plaintiff's] situation.”) (quoted with approval in Jett v. Penner, 439 F.3d at 1098; quotations omitted); Messner v. Murphy, 2016 WL 1389605, at *6-7 (E.D. Wisc. Apr. 6, 2016) (“Based on Messner's consistent complaints of abdominal pain and nausea, his testimony that he informed [prison doctor] of his history of colitis, and the failure of the prescribed medication to alleviate Messner's pain, the court concludes that a genuine dispute of material fact exists about whether and when [the doctor] was aware that Messner suffered from a serious medical condition.”); Fellows v. Baca, 2013 WL 12238537, at *11 (C.D. Cal. June 27, 2013), adopted, 2013 WL 12238844 (C.D. Cal. Aug. 14, 2013) (under Eighth Amendment standards, continuing to prescribe only largely ineffective pain medication for inmate's “persisting complaints” of abdominal pain could show deliberate indifference to inmate's kidney stones); Chess v. Dovey, 2011 WL 567375, at *21 (E.D. Cal. Feb. 15, 2011), adopted, 2011 WL 1219268, E.D. Cal., Mar. 30, 2011) (denying summary judgment on Eighth Amendment claim where doctor “ignored plaintiff's complaint about the ineffective nature of the Tylenol, aspirin and other medications he was being given and the pain being suffered as a result”); Franklin v. Dudley, 2010 WL 5477693, at *6 (E.D. Cal. Dec. 29, 2010) (summary judgment for physician's assistant inappropriate where plaintiff was previously prescribed narcotic pain medication, but defendant provided only ineffective non-narcotic pain medication).
Nothing in the record suggests that the Pain Management Committee constrained Defendant Ward in any way from prescribing other pain medication for Plaintiff, including morphine, or that Dr. Ward could not have consulted with the Pain Management Committee concerning Plaintiff's pain medications after receiving Casabar's reports. The record suggests that the Pain Management Committee's role was to make “recommendations” to the treating physician (see Plaintiff's Ex. 18 (recording “Recommendations” from the “Interdisciplinary Panel Review 5/27/16 (formerly Pain Management Committee)”)).
For the foregoing reasons, triable issues of fact exist concerning Plaintiff's claim of deliberate indifference against Defendant Ward.
Defendant Gonzalez
With respect to Defendant Gonzalez, Plaintiff's evidence would permit the reasonable conclusions: (1) on June 7, 2016, Gonzalez saw Plaintiff in response to Plaintiff's prior multiple requests for health care services; (2) Plaintiff told Gonzalez that Plaintiff had refused treatment for his underlying colitis condition; (3) Plaintiff told Gonzalez about Plaintiff's increased pain, which Gonzalez recorded as “7” on a scale of 1 to 10; (4) Gonzalez called Plaintiff's refusal of treatment for colitis “stupid” and said Plaintiff could not both refuse treatment and receive pain medication; (5) Gonzalez told Plaintiff that Plaintiff would not receive opiates for pain as long as he refused treatment for his underlying condition; and (6) Gonzalez refused to “go around the doctor” to help Plaintiff. Plaintiff's evidence, if credited, would permit the reasonable conclusion that Gonzalez refused to help Plaintiff obtain pain medication due to Gonzalez' personal disagreement with Plaintiff's refusal of treatment for his underlying colitis condition. See Snow v. McDaniel, 681 F.3d at 990; Jackson v. McIntosh, 90 F.3d at 332; Wakefield v. Thompson, 177 F.3d at 1165. A reasonable juror could conclude from Plaintiff's evidence that Defendant Gonzalez exhibited deliberate indifference to Plaintiff's serious medical needs. Accordingly, triable issues of fact exist concerning Plaintiff's claim of deliberate indifference against Defendant Gonzalez.
The fact that Defendants Gonzalez and Casabar were nurses, not physicians, does not necessarily absolve them of liability for deliberate indifference. See Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992), abrogated in part on other grounds, Saucier v. Katz, 533 U.S. 194 (2001) (“By choosing to rely upon a medical opinion which a reasonable person would likely determine to be inferior, the [non-medical] prison officials took actions which may have amounted to the denial of medical treatment and the ‘unnecessary and wanton infliction of pain.'”); see also Berry v. Peterman, 604 F.3d 435, 443 (7th Cir. 2010) (“Although a medical care system requires nurses to defer to treating physicians' instructions and orders in most situations, that deference may not be blind or unthinking, particularly if it is apparent that the physician's order will likely harm the patient.”) (citations omitted).
Defendant Casabar
Plaintiff's evidence would permit the reasonable conclusions that: (1) Defendant Casabar received Plaintiff's June 10, 2016 health care request on June 11, 2016 and received Plaintiff's two June 11, 2016 health care requests (both labeled “emergency” requests) on June 12, 2016, but did not respond to any of these requests until June 13, 2016; (2) the June 10 and June 11 health care requests informed Casabar that Plaintiff wanted to resume chemo, had been suffering extreme pain and needed his pain medications changed; and (3) on June 13, 2016, Casabar received Plaintiff's June 12, 2016 health care request which stated that Plaintiff was in extreme pain, could not handle the pain any more, and wanted a change in his pain medications to Lyrica and the resumption of his treatment including Prednisone and Remicaid.
Plaintiff's evidence, if credited, would permit the reasonable conclusions that, on June 13, 2016: (1) Casabar saw Plaintiff and recorded his weight as 118 pounds, but did not even examine Plaintiff; (2) Plaintiff was emaciated and weighed approximately 115 pounds without chains; (3) Casabar recorded Plaintiff's pain as a “7” on a scale of one to ten; (4) Plaintiff told Casabar that Plaintiff was ready to resume treatment for his underlying condition and asked for Prednisone and pain medication; (5) Casabar said that she did not think anyone was “in a hurry to help” or to “rush in [to] save” Plaintiff and that Plaintiff “brought this on [himself]” and might “just have to live with the consequences until we're ready, ” without any explanation of what “ready” meant; and (6) Casabar told Plaintiff that he had brought his condition on himself and would have to deal with the pain.
The medical records, if credited, show that Plaintiff's weight descended from 131 pounds on June 6 to 125 pounds on June 7 (which Plaintiff alleges actually was 122 pounds after subtracting the weight of the chains he was wearing), and thereafter to 118 pounds on June 13, six days later. Plaintiff's evidence permits the reasonable inference that Defendant Casabar was aware of this precipitous weight loss, yet did not respond to what obviously was an urgent need for medical attention. Plaintiff's evidence, if credited, also would permit the reasonable conclusion that, in response to Plaintiff's health care requests on June 15, 16 and 17, 2016, Casabar did not take steps to change Plaintiff's pain medication or to resume treatment for his underlying condition. Plaintiff's evidence would show that, during this time, Plaintiff's weight decreased from 118 pounds on June 13 to 95 pounds on June 20, a loss of 21 pounds in a week, and that a week after Casabar saw Plaintiff and left Plaintiff untreated, Plaintiff collapsed in acute distress and was taken to the hospital.
A reasonable juror could conclude from Plaintiff's evidence that Defendant Casabar exhibited deliberate indifference to Plaintiff's serious medical needs by refusing to help Plaintiff and that Defendant did so merely because of Plaintiff's prior decision to exercise his right to decline treatment for his underlying condition. A reasonable juror could conclude that Defendant Casabar refused to help while knowing that Plaintiff was in urgent need of help for his serious medical condition. See Edmo v. Corizon, Inc., 935 F.3d at 793; Snow v. McDaniel, 681 F.3d at 990; Jackson v. McIntosh, 90 F.3d at 332; Wakefield v. Thompson, 177 F.3d at 1165; Fellows v. Baca, 2013 WL 12238537, at *11; Chess v. Dovey, 2011 WL 567375, at *21. Accordingly, triable issues of fact exist concerning Plaintiff's claim of deliberate indifference against Defendant Casabar.
B. Defendants Are Not Entitled to Qualified Immunity
The defense of qualified immunity protects government officials from liability for civil damages as long as the officials' conduct does not violate clearly established constitutional or statutory rights of which a reasonable person would have known. Pearson v. Callahan, 555 U.S. 223, 231 (2009); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “To be clearly established, a right must be sufficiently clear that every reasonable official would have understood that what he or she is doing violates that right.” See Taylor v. Barkes, 575 U.S. 822, 135 S.Ct. 2042, 2044 (2015) (citations and quotations omitted); see also White v. Pauly, 137 S.Ct. 548, 552 (2017) (reiterating “the longstanding principle that ‘clearly established law' should not be defined ‘at a high level of generality'”) (citation omitted).
“If a genuine issue of material fact exists that prevents a determination of qualified immunity at summary judgment, the case must proceed to trial.” Bonivert v. City of Clarkston, 883 F.3d 865, 872 (9th Cir. 2018) (citation and quotations omitted); see also Wilkins v. City of Oakland, 350 F.3d 949, 956 (9th Cir. 2003), cert. denied, 543 U.S. 811 (2004) (“Where the officers' entitlement to qualified immunity depends on the resolution of disputed issues of fact in their favor, and against the non-moving party, summary judgment is not appropriate.”) (citation omitted). Where an issue of fact exists concerning a prison official's deliberate indifference, qualified immunity is inappropriate. See Jackson v. McIntosh, 90 F.3d at 332 (on summary judgment, defendant physicians were not entitled to qualified immunity when plaintiff alleged that they denied him a kidney transplant because of personal animosity); Trap v. United States, 2016 WL 6921128, at *3 (C.D. Cal. May 12, 2016) (“deliberate indifference and qualified immunity are mutually exclusive”) (citation omitted).
At the time of the events alleged here, it was clearly established that prison officials could not be deliberately indifferent to an inmate's serious medical needs, including serious and prolonged pain. See Farmer v. Brennan, 511 U.S. at 837; Lopez v. Smith, 203 F.3d at 1131; Leichner v. United States, 2019 WL 8112470, at *27 (C.D. Cal. Mar. 29, 2019), adopted, 2019 WL 8112503 (C.D. Cal. Aug. 14, 2019) (“By 2003, when Plaintiff began seeking medical care at MDC-LA, it was beyond serious dispute that a prison physician had a duty to address a prisoner's repeated complaints of chronic pain and other potentially severe physical symptoms.”). It was clearly established that prison medical officials could not delay treatment of an inmate's serious medical needs, continue to supply only ineffective treatment, or refuse treatment for unacceptable or non-medical reasons. See Colwell v. Bannister, 763 F.3d at 1066; Lopez v. Smith, 203 F.3d at 1132; Jackson v. McIntosh, 90 F.3d at 332; Wakefield v. Thompson, 177 F.3d at 1165; Hunt v. Dental Dep't, 865 F.2d at 200.
As discussed above, Plaintiff's evidence, taken as true for purposes of this Motion, shows the existence of issues of fact concerning Defendants' alleged statements, actions and inactions with respect to Plaintiff's pain and ulcerative colitis. Defendants are not entitled to qualified immunity on summary judgment. See Jackson v. McIntosh, 90 F.3d at 332; see also Reed v. Barcklay, 634 Fed. App'x 184, 186 (9th Cir. 2015) (qualified immunity unavailable where, “viewing the facts in the light most favorable to Reed, Dr. Barcklay deliberately chose not to provide effective medication that Reed had long been prescribed for serious migraines despite the substantial risk of harm to Reed. It was clearly established that a physician's failure to provide treatment that would alleviate an inmate's significant pain could constitute deliberate indifference in violation of the Eighth Amendment.”); Owens v. Clark, 2018 WL 4090600, at *13 (E.D. Cal. Aug. 27, 2018), adopted,, 2018 WL 4698321 (E.D. Cal. Sept. 28, 2018) (“a reasonable doctor would have known that failing to prescribe plaintiff alternative pain medication that adequately managed his chronic pain would violate plaintiff's Eighth Amendment rights”; defendant not entitled to qualified immunity); Gonzalez v. Ahmed, 67 F.Supp.3d 1145, 1157 (N.D. Cal. 2014) (denying qualified immunity where plaintiff's version of the facts established doctor did not reexamine plaintiff or amend treatment plan despite worsening symptoms, resulting in extreme pain and a perforated appendix); Masden v. Risenhoover, 2013 WL 1345189, at *17 (N.D. Cal. Mar. 29, 2013) (summary judgment for nurse inappropriate where evidence showed that nurse “continued to follow an ineffective course of pain treatment for Plaintiff despite his repeated complaints that her actions were exacerbating his condition and causing severe side effects”).
RECOMMENDATION
For the reasons discussed above, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying Defendants' Motion for Summary Judgment.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No. notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.