No. Civ. S-02-1408 FCD KJM P.
October 19, 2005
MEMORANDUM AND ORDER
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On August 30, 2005, the magistrate judge filed findings and recommendations granting in part and denying in part defendants' motion for summary judgment. Defendants' motion was granted as to all defendants except defendant Mericle. Said findings and recommendations were served on all parties and contained notice that any objections thereto were to be filed within twenty days. On September 21, 2005, defendants received an extension of time to object, and as permitted, filed their objections on October 3, 2005. Plaintiff did not file objections and did not file a response to defendants' objections.
The magistrate judge construed defendants Runnels and Briddle's motion for summary judgment as a motion to dismiss, ultimately granting the motion on the ground that plaintiff did not exhaust his administrative remedies. FR at 2:1-4:9. As to defendant Baron, the magistrate judge granted summary judgment in his favor, finding that Baron did not act deliberately indifferent to plaintiff's medical needs. FR at 9:15-22.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court declines to adopt the findings and recommendations with respect to the denial of the motion for summary judgment as to defendant Mericle; in all other respects, the court adopts the findings and recommendations. Therefore, for the reasons set forth below, defendants' motion for summary judgment is GRANTED in its entirety.
Plaintiff alleges that defendant Mericle violated his Eighth Amendment right against cruel and unusual punishment when Mericle was deliberately indifferent in treating plaintiff's significant shoulder injury. The Eighth Amendment protects against cruel and unusual punishment. U.S. Const. amend. VIII. Cruel and unusual punishment occurs in the medical context, if the mistreatment rises to the level of deliberate indifference to serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104. Thus, the court must resolve two inquiries: 1) whether Mericle acted with deliberate indifference and 2) whether plaintiff had serious medical needs.
An official is deliberately indifferent when he knows of and disregards an excessive risk to inmate health or safety, or is aware of facts from which an inference could be drawn that a substantial risk of serious harm exists, and he draws the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). "A defendant must purposefully ignore or fail to respond to a prisoner's pain or possible medical need in order for deliberate indifference to be established." McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992) (overrulled on other grounds).
A serious need for medical treatment is required in addition to deliberate indifference for a finding of cruel and unusual punishment. "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 are examples of indications that a prisoner has a serious need for medical treatment." Id. at 1059-1060 (internal citations and quotations omitted).
Plaintiff alleges that defendant Mericle was deliberately indifferent to his serious medical needs in delaying referral to an orthopedist for plaintiff's shoulder condition, which ultimately led to atrophy of his arm. Delay that causes significant harm is sufficient to constitute cruel and unusual punishment violative of the Eighth Amendment. See Hunt v. Dental Dep't, 865 F.2d 198, 201 (9th Cir. 1989) (concluding a delay of dental treatment for three months is sufficient for a finding of deliberate indifference); Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (finding it possible that a delay of treatment for six days could constitute deliberate indifference).
The magistrate judge found that defendant Mericle was deliberately indifferent in treating plaintiff's shoulder injury since " nothing was done beyond a prescription for pain relievers for a condition that ultimately led to the atrophy of the arm." (F R at 9:3-9:5.) Such a finding does not fairly characterize Mericle's treatment of plaintiff.
Mericle provided treatment to plaintiff on a number of occasions following the subject incident on May 11, 2001 when plaintiff was stabbed in the tricep. Mericle treated plaintiff on June 18, 2001 because plaintiff claimed that he was losing weight and had cancer. Ten days later, Mericle prescribed pain medication and treated plaintiff for pain he complained of in his middle finger. On July 3, 2001, plaintiff first complained of his shoulder pain to Mericle, who in response, prescribed Motrin and ordered plaintiff to schedule a check up appointment. In late July 2001, plaintiff complained of shortness of breath and pain in his shoulder, to which Mericle treated his ailments, ordered tests, and conducted an x-ray. On August 7, 2001, Mericle had a follow-up examination with plaintiff regarding his asthma condition. Thereafter on September 10, 2003, Mericle evaluated plaintiff's asthma and shoulder problems and administered an injection two days later, which relieved plaintiff's shoulder pain for roughly 24 hours. Mericle again examined plaintiff's shoulder injury on September 24, 2001, ordered an x-ray and referred him to an orthopedist, who (albeit fortuitously) had also been treating plaintiff for the same shoulder injury (on May 21, 2001 and again on August 20, 2001). Plaintiff was examined by the orthopedist, pursuant to Mericle's referral, on October 26, 2001.
In total, Mericle treated plaintiff eight times after he was stabbed on May 11, 2001. Moreover, it is notable that while the magistrate judge focused on Mericle's delay in referring plaintiff to the orthopedist, the orthopedist had treated plaintiff twice before Mericle formally made the referral to him. As such, Hunt and Broughton, which provide that delay can constitute deliberate indifference are inapplicable to the instant case, because contrary to those cases, Mericle timely treated plaintiff for the shoulder injury he suffered. See Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988) (finding no delay where record demonstrated the defendants were attentive to the plaintiff's medical needs). A reasonable trier of fact could not find that Mericle acted deliberately indifferent to plaintiff's medical needs by treating plaintiff eight times for a variety of aliments between June and September 2001, prescribing medication on three separate occasions to alleviate his shoulder pain, and employing various tests and procedures to further evaluate the scope of plaintiff's shoulder injury, ultimately resulting in a referral to a specialist (all within a 75 day period).
Because the court finds that defendant Mericle did not act deliberately indifferent in treating plaintiff's shoulder injury, the court GRANTS defendants' motion for summary judgment in its entirety.
IT IS SO ORDERED.