Opinion
No. C 01-3577 SI (pr)
December 13, 2002
ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANTS
INTRODUCTION
Michael A. Sweet, an inmate currently housed at the Mule Creek State Prison, filed this pro se civil rights action under 42 U.S.C. § 1983. Plaintiff and defendants have moved for summary judgment and each has opposed the other's motion. The court finds no triable issues of material fact exist and defendants are entitled to judgment as a matter of law. The court therefore will grant defendants' motion for summary judgment and deny plaintiff's motion for summary judgment. The court also will rule on several other miscellaneous motions now pending.
BACKGROUND
Michael A. Sweet alleged in his complaint that prison staff at Salinas Valley State Prison ("SVSP") were deliberately indifferent to his medical need for pain medication when he returned to the prison after a 3-day hospitalization in August 2000.
The following facts are undisputed, unless otherwise noted.
On August 22, 2000, Sweet was stabbed on the side of his neck by another inmate at SVSP. He was taken to Salinas Valley Memorial Healthcare System (the "outside hospital") where he underwent a right neck exploration with repair of the right common carotid artery. Sweet was given medication to control his hypertension and remained intubated for two days to allow the swelling in his neck to decrease. After extubation he did well and was ready to be discharged back to SVSP on August 25, 2000.
Sweet claims his wound was nine inches long. The original stab wound was noted by a treating physician to be 1 centimeter long. Plaintiff's Motion For Summary Judgment, Exh. B, p. 15.
A nurse's note entry dated August 25, 2000 at the outside hospital notes that at 9:00 a.m. Sweet complained of feeling pain which he rated as a "5" on a 1-to-10 scale. The surgical consultant wrote a prescription for the pain medication Vicodin as well as three other medicines. The nurse's notes from the outside hospital showed that Sweet was repeatedly given morphine for pain and Versed for agitation during his hospitalization. Plaintiff's Motion For Summary Judgment, Exh. B, pp. 28, 29.
The nurses' notes from the outside hospital suggest that Sweet's pain was not constant. For example, a nurse note at 1900 hours on an unstated dated states "0 c/o pain or discomfort at this time" and a nurse note at 2215 hours on the same day states "Pt writing notes. Very inappropriate notes regarding wanting to get to know the outside of the hospital." At 1800 hours on another day, a nurse noted "Pt resting comfortably," and was given medications for pain and agitation a few hours later. Plaintiff's Motion For Summary Judgment, Exh. B, pp. 28, 29.
Frequently, immediately after surgery, pain is at its worst because the nerves and tissues have been acutely affected, which can result in swelling and irritation. As the postoperative period continues, healing commences and the swelling and irritation subside and there is less pain.
Sweet returned to SVSP on August 25, 2000. An "Emergency Care Flow Sheet" from the prison shows that it was filled out by an R.N. at 12:20 on August 25. The nurse wrote that Sweet "denies pain at this time" and "Dr. Hynum notified 1415," and noted Sweet's blood pressure, pulse rate, respiration rate and current medications. See Edgar Decl., Exh. 1. Defendant Edgar did not write these notes. None of the litigants identify the reporting nurse.
The parties disagree as to whether defendant Edgar even saw or evaluated Sweet. Edgar was a licensed vocational nurse who worked as a medical technical assistant ("MTA") at SVSP at the relevant time, primarily in a supervisory capacity doing scheduling and inmate appeals. Edgar submitted a declaration stating that she did not recall inmate Sweet and that there were no entries in Sweet's progress or nurses notes made by her that would have indicated she evaluated inmate Sweet. Edgar also declared that, if she had seen Sweet and if he indicated to her or if she recognized that he was in severe pain, she would have contacted the nurse on duty at the correctional treatment center to ask the nurse to call the doctor to evaluate and treat the inmate's pain because a nurse cannot medicate without a doctor's order.
Sweet submitted a declaration in which he stated that he did discuss his pain with defendant Edgar, with whom he "had a face-to-face confrontation" upon his arrival at the prison after returning from the hospital. Sweet Decl., ¶ 2. He stated that he showed her his surgical incision, that he had further conversations about his pain prescription written by the treating physician, and that Edgar stated she would take care of it and continued to state she would take care of it as Sweet continued to complain about increasing pain. Finally, according to Sweet, Edgar told him to "stop crying like a baby" and that she would "talk to the doctor again, so, until [sic] you'll just have to wait. `I'm only one person.'" Sweet Decl., ¶ 3.
Dr. Hynum evaluated Sweet at SVSP on August 25, 2000. Dr. Hynum's notes indicate he evaluated Sweet at 1415 (i.e., 2:15 p.m.) and thereafter. When Dr. Hynum evaluated Sweet, he noted that Sweet was alert and in no acute distress and that Sweet's blood pressure and heart rate were normal. Dr. Hynum declares that Sweet did not complain to him that he was in pain. Dr. Hynum's assessment was that Sweet was stable and made notes for follow-up treatment of Sweet (e.g., "Medline next week," "gen surgery clinic next week," and listed several medications for Sweet). Even though Dr. Hynum heard no complaint of pain from Sweet he ordered Tylenol #3 with codeine, a narcotic pain medication, 1 tablet by mouth every 4 hoursas needed for pain for 7 days. Dr. Hynum also ordered that Sweet be brought to the clinic the next day for a wound and blood pressure check.
The patient progress notes summarized Dr. Hynum's plan for Sweet at 2:35 on August 25. Dr. Hynum declared that the notation "D/C Meds — see order sheet," summarized the medicines he prescribed for Sweet. Dr. Hynum did not intend by the letters "D/C" to mean discontinue any pain medications prescribed for inmate Sweet (although Sweet argues that it did). Dr. Hynum never wrote an order to stop any pain medications prescribed for Sweet. The pain medication order he did write remained valid for the time period indicated.
VENUE AND JURISDICTION
Venue is proper in the Northern District of California under 28 U.S.C. § 1391 because a substantial part of the events or omissions giving rise to the claims occurred at SVSP in Monterey County, which is located within the Northern District. This court has federal question jurisdiction over this action brought under 42 U.S.C. § 1983.See 28 U.S.C. § 1331.
LEGAL STANDARD FOR SUMMARY JUDGMENT
Defendants moved to dismiss or in the alternative for summary judgment but did not distinguish between pleading problems and proof problems. Because the parties focused their efforts on the evidence (including the defendants' declarations, plaintiff's declaration, and the medical records), the court does not reach the motion to dismiss.
The court will grant summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (a fact is material if it might affect the outcome of the suit under governing law, and a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.")
Generally, as is the case with defendants' challenge to plaintiff's deliberate indifference claim (and with plaintiff's challenge to defendants' qualified immunity defense), the moving party bears the initial burden of identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. The burden then shifts to the nonmoving party to "go beyond the pleadings, and by his own affidavits, or by the `depositions, answers to interrogatories, or admissions on file, 'designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (citations omitted). Where, as is the situation with defendants' qualified immunity defense and with plaintiff's motion as to his deliberate indifference claim, the moving party bears the burden of proof at trial, he must come forward with evidence which would entitle him to a directed verdict if the evidence went uncontroverted at trial. See Houghton v. Smith, 965 F.2d 1532, 1536 (9th Cir. 1992). He must establish the absence of a genuine issue of fact on each issue material to his affirmative defense. Id. at 1537; see also Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. When the movant has come forward with this evidence, the burden shifts to the non-movant to set forth specific facts showing the existence of a genuine issue of fact on the defense.
A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 nn. 10-11(9th Cir. 1995) (treating plaintiff's verified complaint as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746, plaintiff stated under penalty of perjury that contents were true and correct, and allegations were not based purely on his belief but on his personal knowledge).
The court's function on a summary judgment motion is not to make credibility determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence must be viewed in the light most favorable to the nonmoving party, and the inferences to be drawn from the facts must be viewed in a light most favorable to the nonmoving party. See id. at 631.
DISCUSSION
A. Deliberate Indifference To Medical Needs
Deliberate indifference to serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To prove that the response of prison officials to a prisoner's medical needs was constitutionally deficient, the prisoner must establish (1) a serious medical need and (2) deliberate indifference to that need by prison officials. McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A medical need is serious if the failure to treat the prisoner's condition could result in further significant injury or the "`unnecessary and wanton infliction of pain.'" Id. at 1059 (quoting Estelle v. Gamble, 429 U.S. at 104). A prison official is deliberately indifferent if he knows that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.Farmer v. Brennan, 511 U.S. 825, 847 (1994).
When, as here, the prisoner seeks only damages against defendants, the "inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Leer explained that "it is important to distinguish the causal connection required when a plaintiff seeks injunctive or declaratory relief as opposed to damages." Id. In the former case, a broader and more generalized approach to causation is taken. See id.
When plaintiffs, such as the inmates, seek to hold an individual defendant personally liable for damages, the causation inquiry between the deliberate indifference and the eighth amendment deprivation must be more refined. We must focus on whether the individual defendant was in a position to take steps to avert the [harm], but failed to do so intentionally or with deliberate indifference. In order to resolve this causation issue, we must take a very individualized approach which accounts for the duties, discretion, and means of each defendant. Sweeping conclusory allegations will not suffice to prevent summary judgment. . . . The prisoner must set forth specific facts as to each individual defendant's deliberate indifference.Id. at 633-34 (citations omitted).
Sweet has failed to raise a triable issue of fact that defendants were deliberately indifferent to his medical needs.
Sweet argues that Dr. Hynum was deliberately indifferent in writing a prescription for Tylenol #3 after the outside hospital doctor had prescribed Vicodin. The only evidence before the court is that Tylenol #3 and Vicodin are comparable in their pain-relieving properties. Indeed, the only evidence before the court is to the contrary: Dr. Lucine declared that the two pain medications "are essentially equivalent as analgesics." Lucine Decl., ¶ 11. Sweet had no constitutional right to receive a particularly named drug if the drug given to him had comparable properties. When Dr. Hynum examined him and ordered Tylenol #3 in place of the Vicodin ordered by the outside hospital doctor, he was not deliberately indifferent to Sweet's medical needs in writing such an order. Sweet may have wanted Vicodin rather than Tylenol #3, but that mere difference of opinion as to which of the two medically acceptable courses of treatment should have been followed does not establish deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); see also Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.), cert. denied, 519 U.S. 1029 (1996) (where defendant doctors have chosen one course of action and a plaintiff contends that they should have chosen another course of action, the 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").
Dr. Lucine further explained that many pain medications can be prescribed to a patient and that one physician might prefer a medication different from what another physician would prescribe due to the physician s experience and the drugs' availability.
Sweet next argues that Dr. Hynum was deliberately indifferent because he promptly rescinded the order for Tylenol #3. The assertion lacks any evidentiary support. Sweet does not state that Dr. Hynum told him he was revoking the Tylenol #3 prescription nor does he state that during his week of pain that anyone ever told him that the pain medication prescription had been revoked. Rather, he guesses that Dr. Hynum's notation "D/C meds — see order sheet" meant that he was discontinuing medications. Against this guess is Dr. Hynum's statement that the "D/C" notation referred to discharge medications rather than to discontinue medications. See Hynum Decl., Exh. 2, p. 2. The use of "D/C" to mean discharge rather than discontinue is consistent with the several "D/C" references made by the outside hospital staff for example, a nurse at the outside hospital wrote on August 25, 2000 at 9:00 "Orders for DC written" and at 11:20 "DC'ing to prison hospital with guards." Plaintiff's Motion For Summary Judgment, Exh. B, p. 34. Neither note makes any sense if "DC" referred to discontinue rather than discharge. Sweet also contends that a diagonal line drawn through one entire page of Dr. Hynum's notes shows that Hynum cancelled the pain prescription (even though there were eight other instructions on the same page that Sweet does not contend were cancelled), but there is no evidence that Dr. Hynum drew the line across the page or what the line actually meant. Just as there is no evidence that Dr. Hynum cancelled the Tylenol #3 prescription moments after writing it, there is no evidence that Dr. Lucine consulted with Dr. Hynum about it.
Sweet next points to a statement in a response to an inmate appeal to try to show deliberate indifference by Dr. Hynum. An inmate appeal response prepared on February 22, 2001 contains the following statement: "When you returned to SVSP from your stay at Natividad Medical Center, responsibility for your care reverted to staff physicians employed by the department. In their medical opinions, there was no medical necessity for the medications that were prescribed to you while in the community. Appropriate medication was prescribed to manage your pain and all prescribed medication was delivered to you." Plaintiff's Motion For Summary Judgment, Exh. C, p. 4. The response was signed by medical appeals coordinator Deborah Ruisi and health care manager Norman Baron, neither of whom is a defendant. The hearsay statement cannot be attributed to any particular defendant in this action. Even if the statement could be attributed to a defendant in this action, the statement — when read in context rather than read out of context, as by Sweet — is that appropriate substitute medications were ordered and given to Sweet, a statement that directly contradicts Sweet's assertions that he received no pain medications.
The determination that Sweet has failed to raise a triable issue of fact that Dr. Hynum revoked the prescription for Tylenol #3 also disposes of another of Sweet's arguments against Dr. Hynum. That is, Sweet has failed to raise a triable issue of fact that Dr. Hynum did not attend to Sweet's pain. Dr. Hynum did evaluate Sweet and wrote a prescription for a pain medication to be used on an "as needed" basis. Cf. Walker v. Benjamin, 293 F.3d 1030, 1038 (7th Cir. 2002) (doctor entitled to summary judgment where plaintiff claimed to have not received antibiotics the doctor prescribed for him but failed to produce any evidence showing that the failure was in any way within that doctor's control).
Sweet contends that defendants misled the court by stating that he was released to the yard rather than to administrative segregation. This is an immaterial fact. His destination upon release from the clinic matters not a whit to his deliberate indifference claim.
Sweet argues that Dr. Hynum's declaration that Sweet was stable and did not complain of pain is not believable because it made no sense for him to write out a prescription for pain medication if he believed Sweet was stable and not in pain. But Sweet ignores the fact that Dr. Hynum wrote the prescription for Tylenol #3 "as needed for pain." The idea that a postoperative patient not in pain at the moment might later experience pain is not an impossibility despite Sweet's assumption to the contrary.
Sweet also argues that some problem — he isn't clear what the problem is — exists because Dr. Hynum stated in his declaration that it was his normal practice to note a conversation with any other physician but that such conversations were not noted in his medical notes despite Dr. Hynum's statement in his interrogatory responses that he had ordered the pain medication after consulting with Sweet's surgeons. See Plaintiff's Opposition To Motion For Summary Judgment, p. 16; Exh. B (Response To Interrogatory No. 9. The materiality of this fact has not been shown by Sweet but, even if he could show it was material, it would not help him because Sweet has simply misread the record. Dr. Hynum's handwritten notes show that he had a discussion with the ENT surgeon on the morning of August 25, 2000. See Hynum Decl., Exh. 2, p. 1 ("D/W ENT surgeon this a.m."). Moreover, the nurse's note from the outside hospital for 1120 on August 25, 2000 states, in part, "Dr. Block updated prison MD." Plaintiff's Motion For Summary Judgment, Exh. B, p. 34.
Sweet has failed to present any evidence or raise a triable issue of fact that Dr. Hynum or Dr. Lucine was deliberately indifferent to Sweet's medical needs.
Sweet also has failed to raise a triable issue of fact that nurse Edgar was deliberately indifferent to his medical need for pain medication. The undisputed facts are that Sweet was seen by a prison doctor within just a few hours of being discharged from the outside hospital. He was discharged from the hospital at or about 11:20 a.m., evaluated by a prison nurse at 12:20 p.m. and evaluated by a prison doctor at 2:20 p.m. who wrote a prescription for pain. Even assuming Sweet's version of what transpired between him and nurse Edgar is true, her insensitive comment and her failure to get him to a doctor sooner than two hours after his arrival at the prison from the outside hospital do not rise to the level of a constitutional violation. Regardless of whether Edgar helped him or ignored his pleas for help, the time that passed was quite short, and he was undeniably evaluated by another nurse at the prison upon his arrival from the outside hospital.
Although the focus of Sweet's complaint is on the defendants' conduct during the first few hours following his return to SVSP, Sweet also appears to suggest that defendants should be liable for his pain in the days following his return to SVSP. He has not, however, submitted evidence that he complained of his pain in the ensuing days to any defendant and that such a complaint was ignored by a defendant. See Leer v. Murphy, 844 F.2d at 633-34; Walker v. Benjamin, 293 F.3d at 1038.
Even viewing the evidence and the inferences drawn therefrom in the light most favorable to Sweet, no reasonable jury could return a verdict for him and against any of the defendants. The defendants are entitled to judgment as a matter of law on the deliberate indifference claim.
B. Qualified Immunity
The defense of qualified immunity protects "government officials. . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The rule of qualified immunity "`provides ample protection to all but the plainly incompetent or those who knowingly violate the law.'"Burns v. Reed, 500 U.S. 478, 495 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court set forth a particular sequence of questions to be considered in determining whether qualified immunity exists. The court must consider this threshold question: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Id. at 201. If no constitutional right was violated if the facts were as alleged, the inquiry ends and defendants prevail. See Id. If, however, "a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established. . . . `The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Id. at 201-02 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
The first step under Saucier is to determine whether a constitutional violation was alleged. The constitutional right alleged is the Eighth Amendment right to be free from cruel and unusual punishment. Deliberate indifference to serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. at 104; McGuckin v. Smith, 974 F.2d at 1059. The existence of chronic and substantial pain are examples of indications that a prisoner has a "serious" need for medical treatment. See id. at 1059-60. The allegations of the complaint, liberally construed and taken in the light most favorable to Sweet, show a violation of his constitutional rights by defendants. Sweet's allegations that defendant Edgar ignored his pleas for help for his escalating and torturous pain and allegations that Drs. Hynum and Lucine cancelled a prescription for pain medication moments after Dr. Hynum wrote it despite Sweet's constant pleas for pain medication adequately showed deliberate indifference to a serious medical need. As a matter of pleading, plaintiff's First Amendment Complaint sufficed to allege a deliberate indifference claim even if it would not suffice to prove such an injury.
The next step under Saucier is to consider whether the contours of the right were clearly established, an inquiry that "must be undertaken in light of the specific context of the case, not as a broad general proposition." Saucier, 533 U.S. at 201. The undisputed facts are critical because one must have a specific set of facts in mind to which to apply the law. As evident in discussion above, the undisputed evidence shows that Sweet was seen and evaluated by a nurse other than Edgar upon his arrival at the prison and was seen and evaluated by Dr. Hynum two hours later, who wrote and never cancelled a prescription for Tylenol #3 for Sweet. And under Sweet's version of the facts, Edgar saw him before he was seen by Dr. Hynum and she made an insensitive comment and did not get him pain medication. There is no right for a prisoner to obtain a particular brand of pain reliever, let alone a clearly established right to obtain it. No reasonable prison doctor examining Sweet would have thought it was unlawful to write a prescription for a pain reliever with comparable properties to the one written by a physician at an outside hospital. And there is no clearly established right of a prisoner to be completely free from any delay in obtaining medication for pain. No reasonable prison medical technical assistant would have though it unlawful to not medicate a prisoner during the two hours between his arrival at the prison (at which time he was evaluated by another nurse) and his visit to a prison physician just two hours later. Defendants met their burden of proof in their moving papers. Plaintiff did not introduce any evidence to show the existence of a genuine issue of fact on the defense. Defendants are entitled to judgment as a matter of law on their qualified immunity defense.
CONCLUSION
Defendants' motion for summary judgment is GRANTED (Docket #14). Judgment will be entered in defendants' favor and against plaintiff.
Plaintiff's motion for summary judgment is DENIED. (Docket #19.)
Plaintiff's motion for sanctions is DENIED as frivolous. (Docket #26.)
Plaintiff's "Motion For Adjudication On The Merits of Plaintiff's First Amended Complaint" is DENIED. (Docket #12.) The motion was wholly unnecessary and wasteful of the court's resources.
IT IS SO ORDERED.