Joseph Allen Tidwell v. Dr. Paul Gallagher et al

Filing 67

ORDER ACCEPTING FINDINGS,CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Andrew J. Guilford for Report and Recommendation (Issued) 63 . The Court accepts and adopts the Magistrate Judge's Report and Recommendation. IT IS ORDERED that: (1) summary judgment in favor of Defendant is granted; and (2) Judgment shall be entered dismissing the action with prejudice. (Attachments: # 1 Report and Recommendation) (dml) (Attachment 1 replaced on 6/28/2017) (dml).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JOSEPH ALLEN TIDWELL,

) NO. CV 14-5072-AG(E)
)
Plaintiff,
)
)
v.
) REPORT AND RECOMMENDATION OF
)
PAUL GALLAGHER,
) UNITED STATES MAGISTRATE JUDGE
)
)
Defendant.
)
______________________________)

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This Report and Recommendation is submitted to the Honorable

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Andrew J. Guilford, United States District Judge, pursuant to

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28 U.S.C. section 636 and General Order 05-07 of the United States

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District Court for the Central District of California.

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PROCEEDINGS

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Plaintiff, a state prisoner incarcerated at the California Men’s

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Colony (“CMC”), filed this pro se civil rights action on July 8, 2014,

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alleging that CMC prison doctors assertedly were deliberately

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indifferent to Plaintiff’s medical needs in violation of the Eighth

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Amendment.

On August 13, 2014, the Court dismissed the Complaint with

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leave to amend.

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On September 5, 2014, Plaintiff filed a First Amended Complaint

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against only one Defendant, Plaintiff’s alleged primary care physician

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Dr. Paul Gallagher.

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motion to dismiss the First Amended Complaint.

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the Court issued an “Order Dismissing First Amended Complaint with

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Leave to Amend.”

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On February 23, 2015, Defendant Gallagher filed a
On September 7, 2015,

On September 29, 2015, Plaintiff filed a Second

Amended Complaint.

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On December 14, 2015, Defendant filed a motion to dismiss the

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Second Amended Complaint.

On January 4, 2016, Plaintiff filed an

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opposition to the motion to dismiss.

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issued an “Order re Motion to Dismiss Second Amended Complaint.”

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Order granted the motion to dismiss in part, dismissing without leave

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to amend and with prejudice Plaintiff’s official capacity claim for

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damages and Plaintiff’s claim of deliberate indifference based on

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Defendant’s medical decisions regarding what treatments to give

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Plaintiff.

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with leave to amend, inter alia deeming sufficient Plaintiff’s claim

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of deliberate indifference based on the alleged delay in the proper

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diagnosis and treatment of Plaintiff’s assertedly suspected, serious

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medical condition after March 5, 2013.

On May 27, 2016, the Court
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The Court otherwise dismissed the Second Amended Complaint

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On June 22, 2016, Plaintiff filed a Third Amended Complaint, the

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operative pleading.

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///

On July 13, 2016, Defendant filed an Answer.

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On March 10, 2017, Defendant filed a Motion for Summary Judgment.

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On the same date, the Court issued a Minute Order inter alia advising

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Plaintiff of the requirements of Rule 56 of the Federal Rules of Civil

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Procedure.

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(en banc), cert. denied, 527 U.S. 1035 (1999).

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Plaintiff filed a “Response to Defendant’s Motion for Summary

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Judgment,” constituting Plaintiff’s Opposition to the Motion

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(“Opposition”).

See Rand v. Rowland, 154 F.3d 952, 957-58 (9th Cir. 1997)
On April 10, 2017,

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ALLEGATIONS OF THIRD AMENDED COMPLAINT

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In the Third Amended Complaint (“TAC”), Plaintiff alleges:

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On November 22, 1996, a doctor diagnosed Plaintiff with

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osteomyelitis in his left clavicle (TAC, p. 5).

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January 20, 1998, a doctor diagnosed Plaintiff’s condition

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as chronic osteomyelitis, a life-long condition (id.).

On

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On November 8, 2012, Plaintiff saw Defendant Gallagher

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and explained to Defendant Plaintiff’s history of chronic

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osteomyelitis (id., “D. Claims” attachment, p. 1).

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Plaintiff told Gallagher Plaintiff was in great pain from an

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infection and requested a low bunk chrono and a “no lift”

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chrono (id.).

Defendant denied the requests (id.).

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On December 4, 2012, Defendant wrote a medical progress

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note stating that Plaintiff’s condition did not require an

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MRI (id.).
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After an emergency visit, another physician requested

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an MRI for Plaintiff (id.).

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February 11, 2013 and showed a sinonasal cyst and bone spurs

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(id.).

The MRI was performed on

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On March 5, 2013, Defendant failed to intervene and

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left Plaintiff in debilitating pain, telling Plaintiff it

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was not acceptable to seek emergency treatment for

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Plaintiff’s pain (id.).

On May 29, 2013, Plaintiff saw Dr.

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Kowall, an off-site orthopedic surgeon (id.).

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was unable to evaluate Plaintiff because Defendant had not

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sent Dr. Kowall the MRI results (id.).

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Plaintiff saw Dr. Kowall again, but once again Dr. Kowall

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was unable to evaluate Plaintiff because Defendant had not

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sent the MRI results (id.).

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pain was worsening and the infection spreading, making it

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hard for Plaintiff to breathe and to swallow (id.).

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Plaintiff could not move his arm and had to keep it in a

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sling for a year (id., pp. 1-2).

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from one bone to another and can even cause death if left

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unchecked (id.).

Dr. Kowall

On June 12, 2013,

In the meantime Plaintiff’s

Osteomyelitis can spread

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After making numerous medical requests, Plaintiff had a

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biopsy on September 5, 2015 (id., p. 2).

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as Plaintiff had been telling Defendant all along, that

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Plaintiff had osteomyelitis and a staph infection (id.).

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The delays in treatment attributable to Defendant caused

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Plaintiff unnecessary pain and further injury (id.).
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The biopsy showed,

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Plaintiff now has a permanent disability because he cannot

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lift more than 15 pounds (id.).

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Defendant’s failure twice to send Dr. Kowall the MRI

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report contributed to a six-month delay in receiving the

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bone biopsy and antibiotic treatment for Plaintiff’s

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condition (id.).

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DEFENDANT’S CONTENTIONS

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Defendant contends the undisputed facts show that:

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Defendant was not deliberately indifferent to Plaintiff’s

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serious medical needs because inter alia: (1) there assertedly was no

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material delay in Plaintiff’s treatment; and (2) Defendant did not

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deliberately fail to send the MRI report in order to impede or delay

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Plaintiff’s medical treatment; rather, Defendant followed proper

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procedures and any delay was the fault of others;

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2.

Plaintiff cannot base an Eighth Amendment deliberate

indifference claim on a showing of negligence; and

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3.

Defendant is entitled to qualified immunity.

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STANDARDS GOVERNING MOTION FOR SUMMARY JUDGMENT

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Summary judgment is appropriate if the evidence, viewed in the
light most favorable to the nonmoving party, demonstrates that there
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is no genuine issue of material fact and that the moving party is

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entitled to judgment as a matter of law.

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party moving for summary judgment bears the initial burden of offering

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proof of the absence of any genuine issue of material fact.

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Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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burden is met, the party opposing the motion is required to go beyond

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the pleadings and, by the party’s own affidavits or by other evidence,

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designate “specific facts showing that there is a genuine issue for

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trial.”

Fed. R. Civ. P. 56(c).

The

Celotex

Once the moving party’s

Fed. R. Civ. P. 56(e); Miller v. Glenn Miller Productions,

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Inc., 454 F.3d 975, 987 (9th Cir. 2006).

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motion must submit evidence sufficient to establish the elements that

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are essential to that party’s case, and for which that party will bear

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the burden of proof at trial.

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322.

The party opposing the

Celotex Corp. v. Catrett, 477 U.S. at

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The Court must “view the facts in the light most favorable to the

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non-moving party and draw reasonable inferences in favor of that

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party.”

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2007).

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summary judgment is inappropriate.

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Productions, Inc., 454 F.3d at 988.

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the court does not make credibility determinations or weigh

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conflicting evidence.”

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F.3d 885, 891 (9th Cir. 2005) (citation omitted).

Scheuring v. Traylor Bros., Inc., 476 F.3d 781, 784 (9th Cir.
Where different ultimate inferences reasonably can be drawn,
Miller v. Glenn Miller
“At the summary judgment stage,

Porter v. California Dep’t of Corrections, 419

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A factual dispute is “genuine” only if there is a sufficient

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evidentiary basis upon which a reasonable jury could return a verdict

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for the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S.
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242, 248 (1986).

A factual dispute is “material” only if it might

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affect the outcome of the lawsuit under governing law.

Id.

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“Evidence may be offered ‘to support or dispute a fact’ on

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summary judgment only if it could be presented in an admissible form

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at trial.”

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925-26 (9th Cir. 2014) (citing Fraser v. Goodale, 342 F.3d 1032, 1036-

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37 (9th Cir. 2003), cert. denied, 541 U.S. 937 (2004)) (internal

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quotations omitted); see also Fonseca v. Sysco Food Servs. of Arizona,

Southern California Darts Ass’n v. Zaffina, 762 F.3d 921,

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Inc., 374 F.3d 840, 846 (9th Cir. 2004) (“Even the declarations that

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do contain hearsay are admissible for summary judgment purposes

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because they ‘could be presented in an admissible form at trial.’”)

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(citations omitted).

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speculation for the critical facts, without a showing of foundation in

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personal knowledge[] for the facts claimed to be at issue” is

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insufficient.

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Fed. App’x 359, 360 (9th Cir. 2013).

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insufficient to defeat summary judgment.

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Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 950 n.9 (9th

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Cir. 2011) (en banc), cert. denied, 565 U.S. 1200 (2012).

Purported evidence which “sets out mere

John M. Floyd & Assoc., Inc. v. Tapco Credit Union, 550
Conclusory statements are
Comite de Jornaleros de

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EVIDENCE

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I.

Evidentiary Issues

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Both parties rely on medical records, including medical progress

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notes authored by Defendant.

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authenticated by the CMC custodian of medical and health records (see

Defendant has submitted medical records

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Declaration of Tania Daniel in Support of Defendant’s Motion for

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Summary Judgment).

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and several other medical records, without authentication.

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has not objected to the lack of authentication of Plaintiff’s

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submissions.

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submitted by both parties.

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*12 (E.D. Cal. Sept. 23, 2013), adopted, 2014 WL 931830 (E.D. Cal.

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Mar. 7, 2014) (considering unauthenticated prison medical records on

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summary judgment because the documents could be made admissible at

Plaintiff has submitted many of the same records,
Defendant

The Court will consider all of the documentary evidence
See Foster v. Statti, 2013 WL 5348098, at

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trial); Fryman v. Traquina, 2009 WL 113590, at *11 n.5 (E.D. Cal.

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2009) (overruling foundation objection to prison medical records,

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where "it cannot reasonably be disputed that the records in question

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are plaintiff's medical records from his prison file," or that "they

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are created and maintained by prison officials”).

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The relevance of some of Plaintiff’s evidence is limited or

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absent.

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Plaintiff complained to Defendant about pain and swelling due to

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Plaintiff’s asserted osteomyelitis (Opposition, Ex. 2).

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alleges that, on November 8, 2012, Defendant purportedly called

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Plaintiff a liar and said Defendant thought Plaintiff was faking the

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pain (id.).

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Plaintiff to stop seeking emergency treatment for the pain (id.).

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his Opposition to the Motion for Summary Judgment, Plaintiff makes

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allegations concerning Defendant’s asserted misconduct unrelated to

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Defendant’s alleged failure to send the MRI report and images to Dr.

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Kowall, including allegations that Defendant refused to treat

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Plaintiff and disagreed with the advice of a specialist, Dr. Griffin

Plaintiff declares that in July and November of 2012,

Plaintiff

Plaintiff alleges that, on March 5, 2013, Defendant told

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In

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(Opposition, pp. 2, 4-5, 9-10, 13-14).

These allegations primarily

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concern Plaintiff’s claim for allegedly inadequate medical treatment

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which the Court previously dismissed with prejudice.

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only the claim of alleged delay in the proper diagnosis and treatment

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of Plaintiff’s condition after March 5, 2013.

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evidence has little or no relevance to this issue.

At issue here is

The above described

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Plaintiff also purports to rely on Defendant’s responses to
requests for admissions.

However, the responses generally do not

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provide probative evidence concerning the issues presented here, and

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the Court cannot consider responses purportedly admitting the

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genuineness of various documents because Plaintiff has not attached

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the referenced documents.

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A Court may consider a verified complaint to be an affidavit

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within the meaning of Fed. R. Civ. P. 56(e) to the extent that the

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pleading demonstrates the plaintiff’s personal knowledge of factual

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matters stated therein.

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(9th Cir. 1995).

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properly, however.

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Amended Complaint states simply: “I Joseph Allen Tidwell declare that

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the facts are true and correct.

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section 1746, a declaration filed in federal court is procedurally

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sufficient if the declaration is signed and subscribed in writing in

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substantially the following form: “I declare (or certify, verify, or

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state) under penalty of perjury under the laws of the United States of

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America that the foregoing is true and correct.

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Plaintiff’s purported verification fails to state that the declaration

See Schroeder v. McDonald, 55 F.3d 454, 460

The Third Amended Complaint is not verified
The purported verification attached to the Third

June 7 - 16.”

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Under 28 U.S.C.

Executed on (date).”

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is made under penalty of perjury, a fatal defect.

See In re World

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Trade Center Disaster Litigation, 722 F.3d 483, 488 (2d Cir. 2013)

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(omission of statement that declaration was made under penalty of

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perjury fatal; “[i]nclusion of the language ‘under penalty of perjury’

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is an integral requirement of the statute for the very reason that it

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impresses upon the declarant the specific punishment to which he or

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she is subjected for certifying to false statements”); Nissho-Iwai

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American Corp. v. Kline, 845 F.2d 1300, 1306-07 (5th Cir. 1988)

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(purported affidavit omitting statement that it was made under penalty

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of perjury and that the contents were true and correct insufficient

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under section 1746; as drafted, the purported affidavit “allows the

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affiant to circumvent the penalties for perjury”); Kersting v. United

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States, 865 F. Supp. 669, 676 (D. Haw. 1994) (declaration is

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sufficient under section 1746 if it “contains the phrase ‘under

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penalty of perjury’ and states that the document is true”).

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Nevertheless, the Court has considered the factual allegations in the

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Third Amended Complaint and in Plaintiff’s unsworn Opposition, to the

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extent it appears Plaintiff could present the factual allegations in

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admissible form at trial.

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Zaffina, 762 F.3d at 925-26.

See Southern California Darts Ass’n v.

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II.

Summary of Undisputed Evidence Concerning Events Underlying
Plaintiff’s Claim

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This section consists of a chronological summary of the

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undisputed evidence concerning the events underlying Plaintiff’s

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claim.

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section, infra, to the extent other evidence is also pertinent to the

The Court also will discuss other evidence in the “Discussion”

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analysis.

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In November of 1996, a doctor diagnosed Plaintiff with

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osteomyelitis and prescribed antibiotics (Opposition Ex. U).

In

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October of 2012, Plaintiff saw Dr. Griffin, a consulting provider, who

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recorded that Plaintiff suffered from “[p]ossible chronic

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osteomyelitis,” but that this diagnosis was “doubtful” given a normal

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sedimentation rate and CRP (C-Reactive Protein) (Opposition, Ex. V).

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Dr. Griffin said X-rays showed only an old fracture (id.).

However,

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Dr. Griffin suggested an MRI due to the chronic nature of the problem

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and the lack of imaging studies other than an X-ray (id.).

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Griffin suggested referral to an orthopedic surgeon if the MRI was

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abnormal (id.).

Dr.

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On November 8, 2012, Plaintiff saw Defendant for left clavicle

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pain (Opposition, Ex. W).

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regarding Griffin’s doubtful diagnosis of chronic osteomyelitis

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despite normal test results, and mentioned the MRI which Dr. Griffin

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“may or may not have ordered” (id.).

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request for Tylenol No. 3 for a “15-year-old fracture,” denied a low

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bunk chrono, and said no “intervention” was planned (id.).

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stated that he had nothing to offer Plaintiff except Tylenol and

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nonsteroidals, which Plaintiff declined because he said they did not

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help (id.).

Defendant recorded Dr. Griffin’s comments

Defendant declined Plaintiff’s

Defendant

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Sometime in November of 2012, Plaintiff underwent incision and

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debridement of the left clavicle area and received antibiotics (see

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Defendant’s Ex. K).
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On December 4, 2012, Plaintiff saw Defendant to discuss the

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denial of an MRI (Opposition, Ex. X).

Defendant said Plaintiff did

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not meet the criteria for an MRI due to tests showing a normal

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sedimentation rate, normal C-reactive protein, normal white count and

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no evidence of “any chronic inflammation per se” (id.).

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noted that x-rays had been done (id.).

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the tests “pretty much ruled out osteomyelitis” and said nothing

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further needed to be done, although Defendant did change Plaintiff’s

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pain medication (id.).

Defendant

Defendant told Plaintiff that

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Sometime in January 2013, Plaintiff received another course of
antibiotics (see Defendant’s Ex. K).

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On February 11 or 12, 2013 Plaintiff received an MRI, which

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apparently had been ordered by a Dr. Campbell (Defendant’s Exs. A, C).

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The MRI did not exclude osteomyelitis, but did suggest possible

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Paget’s disease (id.).

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On February 13, 2013, Plaintiff saw Defendant for a followup

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(Defendant’s Ex. B).

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told Plaintiff that, if Plaintiff had not heard from Defendant by the

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next Monday, Plaintiff should make an appointment to see Triage (id.).

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Defendant indicated that he was not going to prescribe narcotics

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unless the MRI showed an abnormality, in which case an orthopedic

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referral “probably would be appropriate” (id.).

Defendant did not yet have the MRI report and

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On February 22, 2013, Plaintiff saw Defendant to discuss the MRI
results (Defendant’s Ex. C).

After reviewing the MRI report,
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Defendant recorded that the cause of Plaintiff’s pain could not be

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determined definitively based solely on the MRI results (Defendant’s

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Ex. C; Declaration of Paul S. Gallagher in Support of Motion for

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Summary Judgment [“Defendant’s Dec.”), ¶ 5).

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the time that, although the MRI results did not rule out

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osteomyelitis, the cause of Plaintiff’s pain was likely not

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osteomyelitis (Defendant’s Dec., ¶ 5).

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Barber, an internist, Defendant ordered a bone scan (Defendant’s Ex.

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C).

Defendant believed at

After consultation with Dr.

Defendant concluded that the MRI was unlikely to show a possible

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infection but that a bone scan might identify an infection as the

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possible cause of Plaintiff’s pain (Defendant’s Dec., ¶ 5).

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denied Plaintiff’s request for narcotics (Defendant’s Ex. C).

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same day, Defendant completed a Physician Request for Services (“RFS”)

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form requesting a bone scan (Defendant’s Ex. D; Defendant’s Dec., ¶

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6).

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D).

Defendant
On the

This request was approved on February 25, 2013 (Defendant’s Ex.

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On March 5, 2013, Plaintiff saw Defendant again (TAC, Ex. F;

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Defendant’s Ex. E).

Defendant explained his assessment of the MRI

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report, which indicated cystic-type changes (Defendant’s Dec., ¶ 7).

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Defendant stated the MRI showed that osteomyelitis could not be ruled

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out although Defendant believed osteomyelitis “was not likely” (id.).

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Defendant reported that a bone scan had been ordered and “should be

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done sometime within the next few weeks to 1 month” (Defendant’s Ex.

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E).

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On April 3, 2013, Defendant completed another RFS form, again
requesting a bone scan (Defendant’s Ex. F).
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This request was approved

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on April 4, 2013 (id.).

The record does not indicate why the bone

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scan initially requested on February 22, 2013 (and approved on

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February 25, 2013) had not been performed as of April 3, 2013.

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The bone scan was performed on April 18, 2013 (Defendant’s Ex.

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G).

The bone scan showed “[m]ild increased activity in the medial

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left clavicle” and stated that “[i]n the right setting this could

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represent osteomyelitis although is nonspecific [sic]” (id.).

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On April 29, 2013, Defendant completed an RFS form requesting

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consultation with an orthopedist in light of the bone scan results

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(Defendant’s Ex. H; Defendant’s Dec., ¶ 9).

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on April 30, 2013 (Defendant’s Ex. H).

This request was approved

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Around that time, infectious disease specialist Dr. Daniel Park

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began working on Plaintiff’s case in order to assist with the

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diagnosis of a possible infection (Defendant’s Dec., ¶ 11).

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On May 29, 2013, Plaintiff had an initial consultation with Dr.

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Kowall, an orthopedic surgeon (Defendant’s Ex. I; Declaration of Mark

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Kowall, M.D., in Support of Defendant’s Motion for Summary Judgment

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[“Kowall Dec.”], ¶ 4).

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diagnoses: (1) left proximal clavicle closed fracture; (2) subsequent

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reported osteomyelitis; and (3) chronic osteomyelitis/sternoclavicular

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joint infection” (Kowall Dec., ¶ 4).

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that, because no radiology films were available, he could not evaluate

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Plaintiff properly (Defendant’s Ex. I).

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send Plaintiff’s MRI images, bone scan images, X-rays and recent

Dr. Kowall formed three “preliminary possible

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However, Dr. Kowall recorded

Dr. Kowall requested that CMC

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culture results to Dr. Kowall for review (Defendant’s Ex. J; Kowall

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Dec., ¶ 4).

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consultation with Dr. Park (Kowall Dec., ¶ 4).

Dr. Kowall also requested an infectious disease

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On June 12, 2013, Dr. Kowall conducted a follow up examination of

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Plaintiff (Kowall Dec., ¶ 5).

By that time, Dr. Kowall had received

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copies of the MRI report and the bone scan report (id.).

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Kowall made a second request to CMC for the MRI images, bone scan

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images, X-rays and culture results (id.; Defendant’s Ex. J).

Even so, Dr.

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By June 25, 2013, Dr. Kowall had reviewed the bone scan images

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(Kowall Dec., ¶ 6).

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Plaintiff’s pain could not be determined definitively from the MRI and

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bone scan, and that a bone biopsy was appropriate to determine whether

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the pain was related to a bacterial infection or a non-bacterial

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orthopedic problem (id.).

Dr. Kowall concluded that the cause of

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On June 28, 2013, at Defendant’s request, Plaintiff saw Dr. Park

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concerning Plaintiff’s “Suspected osteomyelitis” (Defendant’s Exs. K,

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L; Defendant’s Dec., ¶ 11).

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excluded a diagnosis of osteomyelitis (Defendant’s Ex. K).

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diagnosed “possible osteomyelitis of the left clavicle” but said that

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the work-up had been complicated by several courses of antibiotics in

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the past which could have suppressed infection (id.).

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Plaintiff reportedly had been off antibiotics for four to five months

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and had not suffered any “obvious recurrent infection” (id.).

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Park said that the examination that day was “pretty unremarkable” and

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that the MRI and bone scan were “not strongly supportive of infection”

Dr. Park noted that the MRI had not

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Dr. Park

However,

Dr.

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(id.).

Dr. Park stated that Plaintiff would be monitored clinically

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and “we will expedite a work-up for osteomyelitis” (id.).

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recorded that it would be better to get cultures and “perhaps even a

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bone biopsy” prior to starting antibiotics, and advised Plaintiff not

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to start a course of antibiotics without consulting Dr. Park (id.).

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Dr. Park also stated that he would try to discuss the case further

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with Dr. Kowall, who reportedly had given Plaintiff a “thorough

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examination,” but who reportedly had not had access to all of

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Plaintiff’s records or the actual imaging studies (id.).

Dr. Park

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On July 10, 2013, Plaintiff had a follow up appointment with

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Defendant (Defendant’s Ex. L; Defendant’s Dec., ¶ 12).

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recorded that Dr. Kowall had been “unable to make decisions because of

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lack of information with none of the imaging studies available to him”

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(Defendant’s Ex. L).

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“which have all been followed up on,” one of which had been a

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consultation with Dr. Park (id.).

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“felt that the possibility of an osteomyelitis was there but the

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likelihood not high” (id.).

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Plaintiff had presented with a draining wound just below the area of

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swelling and inflamation of the clavicle that was positive for staph,

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and that Plaintiff had started a two-week course of antibiotics (id.).

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Defendant said he had asked Dr. Park to see Plaintiff in approximately

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two weeks (id.).

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osteomyelitis and a recurrent staph infection and set a follow up date

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of July 23, after Plaintiff had finished the course of antibiotics

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(id.).

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///

Defendant

Dr. Kowall reportedly had made suggestions

Defendant recorded that Dr. Park

Defendant recorded that, on July 1, 2013,

Defendant assessed Plaintiff as having possible

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The next day, July 11, 2013, Defendant completed a “Comprehensive

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Accommodation Chrono” specifying that Plaintiff should have a bottom

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bunk and a left arm sling and stating that Plaintiff had limited use

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of his left arm and a 15 pound lifting limit (Defendant’s Ex. M;

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Defendant’s Dec., ¶ 13).

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On July 24, 2013, Plaintiff saw Dr. Park, after having finished

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the course of antibiotics (Defendant’s Ex. N).

Dr. Park recorded that

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Plaintiff would have a bone biopsy performed by Dr. Kowall, and that

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Plaintiff would have to stay off antibiotics so that “optimal

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cultures” could be obtained from the bone biopsy (id.).

12

date, Dr. Park completed an RFS form requesting a bone biopsy, noting

13

that Plaintiff would have to be “off antibiotics” for six weeks prior

14

to the procedure and that Dr. Park and Dr. Kowall had agreed on this

15

plan (Defendant’s Ex. O).

16

(id.).

17

authorization for a bone biopsy but that, because Plaintiff had

18

experienced a recurrence of drainage and was taking antibiotics, the

19

biopsy had to wait until Plaintiff was off antibiotics for six weeks

20

(id., ¶ 7).

On that same

The request was approved the same day

Dr. Park also told Dr. Kowall that Dr. Park had requested

21
22

On August 20, 2013, Plaintiff saw Dr. Park again (Defendant’s Ex.

23

P).

24

timeframe to pass so we can have a bone biopsy that would optimal

25

yield [sic] and we will follow up with Scheduling to ensure this will

26

be done” (id.).

27

in two weeks from August 20, 2013 (id.).

28

///

Dr. Park recorded that the doctors were “waiting for the 6-week

The six week waiting period reportedly would expire

17

1

On September 6, 2013, Plaintiff underwent the bone biopsy, which

2

showed a “light growth” of staph which could have been an contaminant,

3

but no Paget’s disease (Defendant’s Ex. Q; Defendant’s Dec., ¶ 14).

4

Plaintiff thereafter was treated “presumptively” with a six-week

5

course of antibiotics to cover the possibility that he suffered from

6

mild osteomyelitis or a staph infection (Defendant’s Dec., ¶ 14).

7
8
9
10

On September 11, 2013, Plaintiff saw Dr. Park for a follow up
visit (Defendant’s Ex. R).

Dr. Park recorded that the infection would

be treated with high dose oral antibiotics for eight weeks (id.).

11
12

On September 18, 2013, Dr. Kowall emailed Dr. Park regarding the

13

biopsy (Kowall Dec., ¶ 8).

14

with degenerative subluxation of sternooclavical joint (id.).

15

was also some bacteria in the specimen, revealing a potential

16

bacterial infection (id.).

The result of the biopsy was consistent
There

17
18

Plaintiff saw Dr. Park again on September 19, 2013 (Defendant’s

19

Ex. S).

20

agreed there was “no indication for orthopedic intervention with

21

debridement” (id.).

22

likelihood of cure with oral antibiotics” (id.).

Dr. Park had communicated with Dr. Kowall and the two doctors

Dr. Park opined that Plaintiff had “a high

23
24

On October 9, 2013, Plaintiff saw Dr. Park again (Defendant’s Ex.

25

T).

26

although Plaintiff reported some pain and clicking around the

27

sternoclavicular joint (id.).

28

to make sure there was no dislocation (id.).

Plaintiff’s CRP had normalized and the swelling had resolved,

Dr. Park said he would order an X-ray

18

1

Plaintiff saw Defendant again on December 2, 2013 (TAC, Ex. J).

2

By that time, Plaintiff had finished his full course of antibiotic

3

therapy (id.).

4

pain and wanted surgery to “clean out” the shoulder area of bone spurs

5

and other debris (id.).

6

therapy (id.).

Plaintiff did not have a sling, but complained about

Defendant referred Plaintiff for physical

7
8

DISCUSSION

9
10

Prison officials can violate the Constitution if they are

11

“deliberately indifferent” to an inmate’s serious medical needs.

12

Farmer v. Brennan, 511 U.S. 825, 834 (1994); Estelle v. Gamble, 429

13

U.S. 97, 104 (1976).

14

jail official must “both be aware of facts from which the inference

15

could be drawn that a substantial risk of serious harm exists, and he

16

must also draw the inference.”

17

“[A]n official’s failure to alleviate a significant risk that he

18

should have perceived but did not, while no cause for commendation,

19

cannot . . . be condemned as the infliction of punishment.”

20

838.

21

429 U.S. at 105-06; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.

22

2000) (en banc).

23

inadvertence, or even gross negligence does not amount to a

24

constitutional violation.

25

Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004).

26

official’s failure to alleviate a significant risk that he should have

27

perceived but did not, while no cause for commendation, cannot . . .

28

be condemned as the infliction of punishment.”

See

To be liable for “deliberate indifference,” a

Farmer v. Brennan, 511 U.S. at 837.

Allegations of negligence do not suffice.

Id. at

Estelle v. Gamble,

Thus, inadequate treatment due to accident, mistake,

Estelle v. Gamble, 429 U.S. at 105-06;

19

“[A]n

Farmer v. Brennan, 511

1

U.S. at 838.

2
3

Defendant does not dispute that Plaintiff’s condition presented a

4

serious medical need.

5

Cir. 1992) (“A ‘serious’ medical need exists if the failure to treat a

6

prisoner’s condition could result in further significant injury or the

7

‘unnecessary and wanton infliction of pain.’”), overruled on other

8

grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir.

9

1997) (citation omitted); Lopez v. Smith, 203 F.3d at 1131 (examples

See McGuckin v. Smith, 974 F.2d 1050, 1059 (9th

10

of “serious medical needs” include “a medical condition that

11

significantly affects an individual’s daily activities,” and “the

12

existence of chronic and substantial pain”; citation and internal

13

quotations omitted); Conroy v. Avalos, 2010 WL 1268150, at *4 (D.

14

Ariz. Mar. 30, 2010) (finding that reasonable jury could conclude

15

osteomyelitis is a “serious medical need”); Osbey v. Health

16

Professionals Ltd., 2009 WL 175041, at *10 (C.D. Ill. Jan. 22, 2009)

17

(“Plaintiff's osteomyelitis is clearly a serious medical need.”).

18
19

Prison officials may demonstrate deliberate indifference when

20

they “deny, delay, or intentionally interfere with medical treatment.”

21

Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation

22

omitted).

23

Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1988) (negligent delays

24

in administering pain medication do not violate the Constitution).

25

Furthermore, a deliberate indifference claim based on alleged delay in

26

medical treatment is not cognizable unless the delay caused harm to

27

the plaintiff.

28

1994); Shapley v. Nevada Bd. of State Prison Commissioners, 766 F.2d

However, negligent delays do not violate the Constitution.

See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir.

20

1

404, 407 (9th Cir. 1985).

Plaintiff must show that Defendant’s act or

2

omission caused the alleged constitutional deprivation.

3

County of San Diego, 942 F.2d 1435, 1454 (9th Cir. 1991) (en banc),

4

cert. denied, 502 U.S. 1074 (1992), abrogated in part on other

5

grounds, Farmer v. Brennan, 511 U.S. 825 (1994); Leer v. Murphy, 844

6

F.2d 628, 633 (9th Cir. 1988).

See Redman v.

7
8
9

The undisputed evidence shows that Plaintiff received the MRI on
February 11, 2013, and that Defendant had the MRI report, at least, by

10

February 22, 2013.

11

which Defendant thought would occur within a few weeks to a month.

12

When the bone scan apparently did not occur during that time period,

13

Defendant sent another RFS for a bone scan on April 3.

14

above, the record does not indicate why the bone scan initially

15

requested on February 22 had not been performed as of April 3.

16

Plaintiff has produced no evidence to show that this delay was the

17

fault of Defendant.

On that date, Defendant ordered the bone scan,

As indicated

18
19

In his Third Amended Complaint, Plaintiff asserts in conclusory

20

fashion that Defendant purportedly delayed providing the MRI results

21

to Dr. Kowall (see TAC, “D. Claims” attachment, pp. 1-2).

22

Opposition, Plaintiff adds allegations that Defendant purportedly also

23

delayed sending “other reports” to Dr. Kowall, including the results

24

of the bone scan (Opposition, pp. 3, 6, 8).

25

allegations, which concern other delays in sending other reports, are

26

not pleaded in the Third Amended Complaint, the Court need not

27

consider the allegations.

28

412, 413 (9th Cir. 2008) (district court did not err in granting

In his

Because these new

See Ward v. Clark County, 285 Fed. App’x

21

1

summary judgment on claim which plaintiff did not allege in her

2

pleading but only in her opposition to summary judgment; “[a] party

3

may not circumvent [Federal Rule of Civil Procedure] Rule 8’s pleading

4

requirements by asserting a new allegation in response to a motion for

5

summary judgment”).

6

failed to submit evidence that any alleged delay in sending the bone

7

scan results to Dr. Kowall caused any harm to Plaintiff.

In any event, as discussed below, Plaintiff has

8
9

Defendant contends he did not intentionally fail to send the MRI

10

report or other documents to Dr. Kowall or prevent the documents from

11

reaching Dr. Kowall.

12

Christine Britton, a CMC Senior Radiologic Technician who assertedly

13

has knowledge of the policies and procedures concerning the processing

14

of RFS forms at CMC (see Declaration of Christine Britton in Support

15

of Motion for Summary Judgment).

16

institutional physician issues an RFS, the Utilization Management

17

Department enters the RFS into the computer for review by “Sacramento”

18

(id., ¶ 5).

19

approval by either the CMC Chief Medical Officer or the Chief

20

Physician and Surgeon (id.).

21

an “offsite handler” for handling and the coordination of logistics

22

necessary to carry out the requested medical service, including

23

arrangement for transportation to an off-site medical provider if

24

requested (id., ¶¶ 6-7).

25

medical record and requests that any of the patient’s relevant

26

documents, such as medical records, test results, radiological images

27

and reports be sent to the off-site provider (id., ¶ 8).

28

“scheduler” makes that request to the California Department of

Defendant has submitted the declaration of

According to Britton, after an

Upon approval, the RFS is processed for review and

Once approved, the RFS is forwarded to

The “out to medical nurse” reviews the

22

The

1

Corrections and Rehabilitation Images and Records Center located in

2

Sacramento or directly to the medical facility or laboratory where the

3

images or documents initially were generated (id.).

4

contends that any delay in the provision of the MRI report or other

5

documents to Dr. Kowall was attributable to CMC staff, and not to

6

Defendant.

Thus, Defendant

7
8
9

Nothing submitted by Plaintiff conflicts with Defendant’s
contention that any delay in the provision of documents to Dr. Kowall

10

was attributable to persons other than Defendant.

11

pages purportedly from a “Patient Health Care Education Policy” of

12

California Correctional Health Care Services concerning “Outpatient -

13

Specialty Services” (Opposition, Ex. 1).

14

sections providing that: (1) the primary care physician shall inform a

15

patient of the plan for specialty services including “a general time

16

frame” of expected service delivery; (2) if a speciality service is

17

rescheduled the primary care physician must notify the patient;

18

(3) with exceptions, the primary care physician should review a

19

consultant’s report of a routine consult within three business days;

20

(4) follow up appointments with the speciality provider may occur

21

according to the indicated time frame only with the approval of the

22

primary care physician unless that physician documents a reason for

23

another time; (5) at the follow up appointment with the primary care

24

physician, the physician shall discuss the specialty provider’s

25

findings and recommendations and complete an RFS for each service

26

recommended by the specialty provider; (6) for follow up visits

27

requested by the specialist, the primary care physician is responsible

28

to determine the need for such a visit and must document a reason for
23

Plaintiff submitted

Plaintiff has marked the

1

using an alternative strategy; and (7) the primary care physician

2

shall write orders for follow up with the speciality and diagnostic or

3

other testing (Opposition, Ex. 1).

4

controverts Defendant’s evidence that: (1) the RFS is forwarded to an

5

off-site handler for coordination of logistics necessary to carry out

6

the requested medical service; (2) an “out to medical nurse” reviews

7

the medical record and sends a request to have documents such as

8

medical records, test results and radiological images sent to the off-

9

site provider; and (3) a “scheduler” makes the actual request to the

None of Plaintiff’s evidence

10

Sacramento Images and Records Center or to the facility which

11

generated the documents.

12
13

Therefore, the uncontroverted facts show that Defendant was not

14

responsible for the delay in Dr. Kowall’s receipt of the MRI results

15

or other documents, and hence cannot be deemed to have been

16

deliberately indifferent in the manner alleged by Plaintiff.

17

McGuckin v. Smith, 974 F.2d at 1062 (affirming summary judgment for

18

defendant doctors where there was no evidence that either doctor was

19

responsible for the failure promptly to perform a CT scan on plaintiff

20

or to schedule diagnostic examinations; rather, the evidence suggested

21

that other prison personnel scheduled surgical treatments and were

22

charged with ensuring that surgeries occurred promptly); see also

23

Wright v. Swingle, 482 Fed. App’x 294, 295 (9th Cir. 2012) (affirming

24

summary judgment for defendant, where plaintiff “failed to raise a

25

genuine issue of material fact as to whether defendants were involved

26

in or had any control over ordering and stocking prescription

27

medication and thus were responsible for its delay”) (citations

28

omitted);
24

See

1

Furthermore, Defendant has presented uncontradicted evidence that

2

any delay in providing the MRI results to Dr. Kowall did not delay the

3

biopsy or the subsequent antibiotic treatment.

4

shows that Defendant requested consultation with an orthopedist on

5

April 29, 2013, that a request approved on April 30, 2013, and that

6

Dr. Kowall examined Plaintiff a month later, on May 29, 2013.

7

record does not indicate the reason for the month-long delay before

8

Plaintiff saw Dr. Kowall, but Plaintiff has submitted no evidence

9

suggesting that this delay was attributable to any act or omission by

10

The medical evidence

The

Defendant.

11
12

Dr. Kowall did not have the MRI report or films when he examined

13

Plaintiff on May 29.

However, the undisputed evidence shows that Dr.

14

Kowall did have the MRI report and the bone scan report (if not the

15

films) without significant delay.

16

time of the June 12, 2013 examination of Plaintiff.

Dr. Kowall had these reports by the

17
18

It is true that the bone scan, first ordered by Defendant on

19

February 22, did not occur until April 18.

However, Plaintiff has

20

produced no evidence from which it could be reasonably inferred that

21

Defendant was responsible for this delay.

22

the bone biopsy on July 24 and the biopsy did not occur until

23

September 6, the evidence shows that the bone biopsy was delayed for a

24

medically legitimate reason: Plaintiff needed to finish a course of

25

antibiotics and wait for six weeks thereafter before the biopsy could

26

occur.

27

inferred that Defendant was responsible for the delay in Plaintiff’s

28

receipt of either the bone scan or the bone biopsy.

Although Defendant ordered

Thus, there is no evidence from which it could be reasonably

25

1

Moreover, according to Dr. Kowall, while MRI images and reports

2

generally are helpful in the diagnosis of orthopedic conditions and

3

injuries, an MRI does not provide a definitive diagnosis of a

4

bacterial bone infection (Kowall Dec., ¶ 9).

5

as the bone biopsy revealed, Plaintiff had a bacterial infection, for

6

which a course of oral antibiotics was the appropriate treatment, not

7

surgical intervention (id.).

8

Kowall had received the actual MRI images to review during his initial

9

evaluations of Plaintiff, Dr. Kowall would not have been able to

Dr. Kowall states that,

Dr. Kowall states that, even if Dr.

10

diagnose the bacterial infection and recommend an appropriate course

11

of treatment without the bone biopsy (id.).

12

inability to review the MRI images and report during his first

13

evaluation of Plaintiff, and his inability to review the MRI images

14

during his second evaluation of Plaintiff, did not delay Plaintiff’s

15

diagnosis or the treatment of the bacterial infection (id.).

16

According to Dr. Kowall, the definitive diagnosis, and the treatment,

17

had to await the results of the bone biopsy (id.).

18

submitted any evidence to controvert the content of Dr. Kowall’s

19

declaration.

Therefore, Dr. Kowall’s

Plaintiff has not

20
21

In sum, Plaintiff has failed to produce evidence sufficient to

22

raise a genuine issue of fact concerning his allegation that

23

Defendant, with deliberate indifference, materially delayed the

24

transmittal to Dr. Kowall of the MRI results or other medical records.

25

Plaintiff also has failed to produce evidence sufficient to raise a

26

genuine issue of fact regarding whether Plaintiff suffered any harm as

27

a result of any such delay.

28

negligence committed by Defendant is insufficient to show

Any evidence purportedly showing medical

26

1

unconstitutional deliberate indifference.

See Estelle v. Gamble, 429

2

U.S. 97, 105-06 (1976); Lopez v. Smith, 203 F.3d at 1131.

3

Accordingly, Defendant is entitled to summary judgment on Plaintiff’s

4

remaining claim of alleged delay in medical treatment.

5

this conclusion, the Court need not, and does not, reach the issue of

6

qualified immunity.

In light of

7
8

RECOMMENDATION

9
10

For all of the foregoing reasons, IT IS RECOMMENDED that the

11

Court issue an Order: (1) accepting and adopting this Report

12

and Recommendation; (2) granting summary judgment in favor of

13

Defendant; and (3) dismissing the action with prejudice.

14
15

DATED: April 24, 2017.

16
17
18

/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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NOTICE
Reports and Recommendations are not appealable to the Court of

3

Appeals, but may be subject to the right of any party to file

4

objections as provided in the Local Rules Governing the Duties of

5

Magistrate Judges and review by the District Judge whose initials

6

appear in the docket number.

7

Federal Rules of Appellate Procedure should be filed until entry of

8

the judgment of the District Court.

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No notice of appeal pursuant to the