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finding plaintiff's preference for stronger medication "represents precisely the type of difference in medical opinion between a lay prisoner and medical personnel that is insufficient to establish a constitutional violation"
Summary of this case from Colston v. GrovesOpinion
Case No. 10-6120 VBF (MRW)
08-08-2012
BRAD PARLIN, Plaintiff, v. S. SODHI, et al., Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Valerie Baker Fairbank, Senior United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
I. SUMMARY OF RECOMMENDATION
This is a state prisoner civil rights action. Plaintiff Parlin sued prison physicians and other medical providers alleging that they were deliberately indifferent to his medical needs. Specifically, Plaintiff claims that the prison medical staff deprived him of pain medication following brain surgery.
These defendants moved for summary judgment. Although Plaintiff contests the efficacy of the treatment he received, the uncontroverted evidence demonstrates that the prison medical staff was not deliberately indifferent toward him. Plaintiff's dissatisfaction with the pain medications he received and his desire for different, stronger medication amounts, at most, to a difference of opinion about his course of treatment. Under Ninth Circuit authority, that is insufficient to maintain a cause of action for a civil rights violation. Accordingly, there is no genuine dispute as to any material fact. The Court recommends that summary judgment be granted and the action be dismissed with prejudice.
II. FACTS AND PROCEDURAL HISTORY
A. Medical Background
Plaintiff was transferred to Lancaster state prison in August 2008. At that time, he was suffering from numerous serious health problems, including Valley Fever, Dandy-Walker Syndrome (a congenital brain malformation), and a brain cyst. Plaintiff was treated by state prison medical staff and outside health care providers.
Significantly, he had at least five operations on his brain while in custody, including the insertion and maintenance of shunts. Plaintiff claims that he endured extensive medical complications and has been in excessive pain as a result of and despite the medical treatment he received from prison staff.
B. The Civil Action
Plaintiff filed a civil rights complaint in this Court against 14 individuals. The Court screened the complaint pursuant to the Prison Litigation Reform Act. The Court (Magistrate Judge Mumm) determined that Plaintiff's allegations about substandard medical care regarding his conditions suggested medical malpractice, not deliberate indifference sufficient to maintain a civil action. "Plaintiff's allegations show that Plaintiff was provided intensive medical treatment, including a number of brain operations over a 6- or 7-month period. The very fact that Plaintiff was provided so much treatment negates any claim of deliberate indifference." (Docket # 7 at 6.) However, Judge Mumm determined that Plaintiff adequately stated a claim against 11 of the defendants (the Pain Claim Defendants) for allegedly denying him prescription pain medications. Accordingly, the Court dismissed the complaint with leave to amend or to pursue only the pain medication claim.
Plaintiff filed an amended complaint. The First Amended Complaint made virtually the same allegations against the same defendants. (Docket # 13 at 2.) Consistent with Judge Mumm's earlier decision, the Court (Magistrate Judge Wilner) ruled that "Plaintiff may proceed in this action only against the 11 Pain Claim Defendants on that claim as pled in the First Amended Complaint." (Id. at 3.) That claim alleged that those defendants "failed to provide medication to Plaintiff to ease the extreme pain and suffering that Plaintiff suffered from August 2008 to the present date" [i.e., March 8, 2011, the filing date of the FAC]. Plaintiff alleged, in pertinent part, that:
Each of these Defendants was aware . . . that Plaintiff was having adverse reactions to the limited amount of Tylenol with Codeine [i.e., Tylenol 3], which actually increased Plaintiff's pain and suffering, and either [1] continued to prescribe the Tylenol with Codeine, [2] failed to take corrective action after prescribing other pain relievers and being notified that they were not being dispensed, [3] failing [ ] to dispense the prescribed medication, [or 4] ordering [ ] the removal of a valid prescription without first taking steps to substitute a medication that would not lead to the increased and unnecessary suffering of Plaintiff, and/or a combination thereof."(Docket # 10 at 19.)
Two of the defendants (Drs. Misra and Rahimifar) moved to dismiss the First Amended Complaint for failure to state any claims against them. (Docket # 29, 31.) This Court issued a Report and Recommendation to grant the dismissal motion; judgment was entered dismissing those two defendants. (Docket # 43, 46.)
C. The Summary Judgment Motion
The nine remaining Pain Claim Defendants presently move for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Docket # 65.) The moving parties are physicians, nurses, physician's assistants, and the chief medical officer of the prison. The defense submitted declarations from the parties and considerable medical records regarding the course of Plaintiff's treatment and his pain medications. (Docket # 65-66.)
The nine remaining defendants moving for summary judgment are: (1) Nurse S. Sodhi; (2) Dr. Fortaleza; (3) Nurse Napolitano; (4) Dr. Wu; (5) Nurse D. Reed; (6) Dr. Fitter; (7) Dr. P. Finander, Chief Medical Officer at CSP-LAC; (8) Dr. Olukanmi; and (9) Nurse Practitioner J. Gocke.
In response, Plaintiff submitted a lengthy recitation of the facts from his perspective. He also submitted en masse several hundred pages of prison medical records related to his treatment. (Docket # 75-76.) Reading Plaintiff's statement in the light most favorable to him, Plaintiff does not now contend that he had any "adverse reactions" to Tylenol 3 as alleged in the complaint. Rather, at times, he complained about the prison staff's failure to provide him with Tylenol 3, and was dissatisfied with the effectiveness of the medication in combating his pain. (Docket # 75 at 8-9.) Plaintiff specifically demanded to be placed on stronger pain medication.
III. DISCUSSION
A. Standard of Review
Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." A "genuine dispute" about a "material fact" exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The substantive law that defines the elements of a claim will identify which facts are "material." Id. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id.
The party moving for summary judgment must present admissible evidence establishing that there is no genuine, material factual dispute and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court views the inferences it draws from the underlying facts in the light most favorable to the nonmoving party opposing summary judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the nonmoving party may not rest on its own conclusory allegations or mere assertions; it must set forth non-speculative evidence of specific facts. Emeldi v. University of Oregon, 673 F.3d 1218, 1233 (9th Cir. 2012). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party," there is no genuine issue for trial. Ricci v. DeStefano, 557 U.S. 557, ___, 129 S. Ct. 2658, 2677 (2009) (quoting Matsushita).
B. Deliberate Indifference to Prisoner's Serious Medical Needs
The Eighth Amendment prohibition against cruel and unusual punishment requires prisoners to receive necessary medical care. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). A claim for denial of adequate medical care must satisfy two elements: (1) the deprivation must be, in objective terms, sufficiently serious; and (2) prison officials must have subjectively acted with deliberate indifference. LeMaire v. Maass, 12 F.3d 1444, 1451 (9th Cir. 1993).
A serious medical need includes the "existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). However, "routine discomfort" is part of the penalty that criminal offenders pay for their offenses against society; and only deprivations that are "sufficiently grave" violate the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 8-9 (1992). "Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are 'serious.'" Hudson, 503 U.S. at 9.
Deliberate indifference requires that a defendant was aware of a substantial risk of harm to an inmate's health or safety from a serious medical need, and had no reasonable justification for the actions taken or the failure to act. Thomas v. Ponder, 611 F.3d 1144, 1150-51 (9th Cir. 2010). The "unnecessary and wanton infliction of pain" may constitute deliberate indifference by prison doctors or guards who intentionally deny or delay medical care, or intentionally interfere with prescribed treatment. Estelle, 429 U.S. at 104-05. However, prison officials who actually know of a substantial risk to an inmate's health, but respond reasonably to that risk, may be found free from liability. Thomas, 611 F.3d at 1150-51.
The Ninth Circuit recently explained that the "deliberate indifference doctrine is limited in scope." Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012). An unforeseeable accident, the inadvertent failure to provide medical care, or mere negligence or medical malpractice do not amount to deliberate indifference. Estelle, 429 U.S. at 105-06 and n.14. Likewise, a prisoner who alleges "nothing more than a difference of medical opinion" regarding medical treatment fails to establish deliberate indifference as a matter of law. Wilhelm, 680 F.3d at 1122 (physician who comes to different diagnosis not deliberately indifferent to plaintiff). The refusal to authorize recommended surgery for a serious, diagnosed condition may state claim for constitutional violation; however, a "difference of opinion between a physician and the prisoner - or between medical professionals" as to "what medical care is appropriate" does not amount to deliberate indifference. Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012).
C. Analysis
The gravamen of Plaintiff's claims against the Pain Claim Defendants is that he was denied appropriate pain medications following his medical procedures. The uncontroverted evidence clearly shows that Plaintiff went through an extensive course of treatments for his medical conditions, including numerous examinations, hospital stays outside of prison, and multiple operations. The medical record demonstrates that he continued to meet with and be examined by prison medical staff throughout 2008 and 2009. At different times, different medical personnel prescribed different pain medications for Plaintiff. The medications ranged from over-the-counter Tylenol to Tylenol 3 (with codeine) to Tramadol and Vicodin. (Docket # 66 at 3-4, 6.)
The defense motion sets forth the interaction that each of the named defendants had with Plaintiff. Some of the defendants (such as Dr. Fortaleza and Physician's Assistant Olukanmi) saw Plaintiff on several occasions. Some (such as Nurse Acosta or Dr. Fitter) saw him only once. Dr. Finander, the chief medical officer at the prison, apparently never treated Plaintiff directly; Dr. Finander's involvement relates to the review of administrative appeals regarding Plaintiff's treatment. Each defendant submitted a declaration explaining his or her interaction with Plaintiff, and the extent of the medical treatment provided. (Docket # 65.) The physicians suggest that Plaintiff may never be able to obtain full relief from his pain as a result of the combination of medical conditions from which he suffers. (Docket # 66 at 6.)
In response, Plaintiff claims that the lower strength medications were ineffective or caused him side effects. In his opposition to the summary judgment motion, Plaintiff lays out a detailed recitation of his interactions with the named medical professionals. (Docket # 75 at 5-24.) Viewed in the light most favorable to his claim, Plaintiff's statement shows that he repeatedly complained to medical personnel about his ongoing pain and headaches during 2008 and 2009. He expressed dissatisfaction with the Tylenol or prescription-strength Tylenol 3 he received. Plaintiff also had short gaps in time in which he received no pain medication at all. (Docket # 75 at 10.) Plaintiff told prison medical staff that "his medication isn't working and would like to try something else." (Docket # 75 at 9.) Similarly, Plaintiff specifically requested certain medications when he regularly met with medical staff. (Docket # 75 at 6-7.)
* * *
At its core, Plaintiff's claim is that he did not receive the type of treatment and pain medication that he wanted when he wanted it. His preference for stronger medication - Vicodin, Tramadol, etc. - represents precisely the type of difference in medical opinion between a lay prisoner and medical personnel that is insufficient to establish a constitutional violation. Prison officials did not unreasonably ignore Plaintiff's serious health condition and legitimate pain claims. To the contrary, the complete medical record for 2008 and 2009 demonstrates that Plaintiff received continuous medical attention, including several outside hospitalizations and operations. He continued to receive additional medical care and treatment beyond that.
Even when viewed in a light most favorable to his claim, Plaintiff received constant, ongoing medical treatment and consideration of his request for pain medications. His disagreement about what medications he should receive from defendants does not establish a right to relief. The Court concludes that Plaintiff's evidentiary showing does not create a genuine issue of material fact as to the objective component of his deliberate indifference claim.
Additionally, Plaintiff sets forth no admissible evidence to show that any medical professional subjectively acted wantonly against him to cause him to endure pain. No reasonable jury could find that any of the named Pain Claim Defendants acted in any way to deliberately harm him. To the contrary, the medical record taken as a whole shows that the entire medical team saw Plaintiff regularly, recorded and responded to his complaints - including his complaints regarding pain medication - and provided varying levels of medical care.
Despite his conclusory assertions in his opposition papers, Plaintiff identifies no misconduct, actions, or statements by any of the Pain Claim Defendants from which a jury could reasonably find that any defendant was indifferent to Plaintiff's needs. The voluminous medical record that Plaintiff submitted in opposition to the summary judgment motion only confirms the total lack of any evidence of subjective indifference by any of the named parties.
The Court notes that, in July 2009, Plaintiff saw Nurse Practitioner Gocke, who allegedly prescribed Tramadol for Plaintiff. Plaintiff further alleges that Defendant Gocke failed to follow through with the paperwork for the Tramadol prescription, and discontinued Plaintiff's Tylenol 3. (Docket # 75 at 9.) That conduct allegedly left Plaintiff without any pain medication at all, which could certainly form the basis of a malpractice claim.
However, the undisputed medical evidence shows that Defendant Gocke affirmatively requested that Plaintiff be designated as a "high priority" patient to see a physician. (Plaintiff's Ex. J at 20.) The request was granted, and Plaintiff acknowledges that he saw a specialist several days later. (Docket # 75 at 10.) Under no set of circumstances could a jury find that this defendant's conduct rose to the level of subjective and deliberate indifference to the care of a patient.
IV. RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the District Judge issue an Order: (1) accepting the findings and recommendation in this Report; (2) granting Defendants' motion for summary judgment regarding Plaintiff's pain medication claim; and (3) dismissing the action with prejudice. DATED: August 8, 2012
The remainder of Plaintiff's First Amended Complaint should be dismissed as to the other parties and the state and federal claims previously alleged. For the reasons set forth in the Court's earlier screening orders, the pleadings do not state a claim upon which relief may be granted. --------
/s/_________
HON. MICHAEL R. WILNER
UNITED STATES MAGISTRATE JUDGE