Colon v. St. Clair, et al

Filing 101

FINDINGS and RECOMMENDATION re 74 Motion for Summary Judgment, signed by Magistrate Judge Gary S. Austin on 12/19/13. Referred to Judge Ishii. Objections Due in Thirty Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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GILBERT F. COLON,

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Case No. 1:07 cv 00932 AWI GSA PC

Plaintiff,

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vs.

DR. PETERSON, et al.,
Defendants

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FINDINGS AND RECOMMENDATION RE
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT
(ECF NO. 74)

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OBJECTIONS DUE IN THIRTY DAYS

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule

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302 pursuant to 28 U.S.C. § 636(b)(1). Pending before the Court is Defendants’ motion for

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summary judgment. Plaintiff has opposed the motion.1

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I.

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Procedural History
This action proceeds on the June 5, 2008, first amended complaint. Plaintiff, currently

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housed at Folsom State Prison, brings this action against correctional officials employed by the

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California Department of Corrections and Rehabilitation (CDCR) at the Sierra Conservation

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Center at Jamestown (SCC). The events at issue occurred while Plaintiff was housed at SCC.

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Defendants’ motion for summary judgment was filed on September 15, 2011 (ECF No. 74). On
July 10, 2012, the Court issued and re-served Plaintiff with the summary judgment notice required by Rand v.
Rowland, 154 F.3d 952 (9th Cir. 1998), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988)(ECF No. 92). The
order was re-served in response to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012).
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Plaintiff alleges an Eighth Amendment violation for inadequate medical care. Plaintiff names as
Defendants Dr. Peterson, Dr. St. Clair, Dr. Thomatos, Dr. Witwer, Dr. Greenough, Dr.
Sydenstricker, Dt. Stogsdill, Correctional Officer (C/O) Porter, and N. Grannis, Chief Inmate
Appeals Branch Officer. On May 27, 2009, an order was entered by the District Court,
dismissing Plaintiff’s claims against Defendants Porter, Grannis, Stogsdill, and St. Clair, with
prejudice. Defendant Thomatos filed an answer on November 18, 2009. Defendants
Sydenstricker and Witwer filed an answer on June 1, 2010. Defendant Peterson filed an answer
on October 25, 2010. On February 10, 2011, an order was entered, dismissing Defendant
Greenough pursuant to Federal Rule of Civil Procedure 41 on Plaintiff’s motion. Defendants
Thomatos, Sydenstricker, Peterson and Witwer filed the motion for summary judgment that is
now before the Court. Plaintiff has opposed the motion.
II.

Allegations
Plaintiff alleges generally that he did not receive adequate medical care while housed at

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SCC. Plaintiff suffers from chronic pain in his neck and elbow, sinus bleeding, difficulty

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swallowing with coughing and neck muscle weakness. Plaintiff alleges that he was prescribed

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Neurontin, which, in Plaintiff’s view, is not a pain medication.

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A.

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Plaintiff’s allegations regarding Dr. Peterson follow:

Dr. Peterson

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Dr. Peterson did willfully and purposely delay medical care by not
ordering proper tests (MRI, x-rays, blood work, etc.) or effective
pain medication and/or treatment to investigate and reduce
suffering and pain of Gilbert Francis Colon prior to medical
complaint that was submitted and even after such. . . . Dr. Peterson
submitted a routine CDC Form 7232 Physician’s Request For
Medical Services on April 5, 2005 that actually involved getting a
MRI taken on the Plaintiff’s cervical spine. From Dec. of 2002 to
the date of April 5th, 2005, it was approximately (3) years. From
actual documentation on which the Directors Level on appeal had
based their determination and decision on, this is when Dr.
Peterson Finally ordered an MRI to investigate the plaintiff’s
medical problem. The plaintiff was complaining about pain and
discomfort all along, so why had it taken so long for Dr. Peterson
to investigate this medical problem? Also, Gilbert F. Colon had
continuously and constantly requested pain medication for his pain
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from Dr. Peterson, and all Dr. Peterson did was upgrade the doses
of Neurontin which the plaintiff on many occasions requested
other medication because he indicated that the medications that
were given, were not working any longer, but he was denied! Also
on May 4, 2005, it states (in the Directors Level), that Dr. Peterson
evaluated the plaintiff of neck pain, etc. The doctor diagnosed
Gilbert F. Colon with ‘degenerative disc disease’ of the neck and
prescribed pain medications, which again was Neurontin which
actually is not a pain medication!

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Now again on May 5, 2005, x-rays of the cervical spine were
obtained. On June 8, 2005, Dr. Peterson re-evaluated the plaintiff
(Gilbert F. Colon) during a scheduled follow-up appointment. Dr.
Peterson informed the plaintiff that he had degenerative disc
disease and/or anterior spondycolisthesis (displacement of
vertebra) at the C-4 level. The Dr. requested a repeat MRI of the
cervical spine and indicated that Gilbert F. Colon would be seen in
7 days. Gilbert was never seen until August 1, 2005, by Dr.
Thomatos.

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(Am. Compl. 1:27-3:5).

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B.

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Regarding Dr. Thomatos, Plaintiff alleges the following:
The plaintiff actually believes, that Dr. Thomatos fabricated her
written doctor’s report at the time she wrote it as to what she
observed as for movement in regards to plaintiffs injuries. On
January 23, 2006, it states that Dr. Thomatos evaluated the
appellant regarding his appeal issues. It states that the plaintiff had
full movement on all aspects as written by the doctor. Obviously
the truth in this matter was somewhat stretched out by Dr.
Thomatos. Prior medical reports, x-rays, MRIs, etc., do indicate
that there is a medical problem concerning these areas of the
plaintiff’s body. That within itself would in fact cause limited
movement, regardless of what was written by Dr. Thomatos.

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Dr. Thomatos

(Am. Compl. 3:20-4:3).
C.

Dr. Sydenstricker
Regarding Dr. Sydenstricker, Plaintiff alleges the following:
Defendant Sydentstricker maliciously and purposely denied
plaintiff Gilbert Francis Colon effective proper treatment and
medication while perfectly knowing and realizing the severity of
pain that the plaintiff was experiencing during a follow up
examination and review of a cervical spine x-ray taken in regards
to plaintiff’s neck and lower back medical condition.

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On approximately the date of 1-7-04, Dr. Sydenstricker and
plaintiff were discussing the medical condition and results of an x-

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ray that was obtained from a doctors order that was actually
written and submitted by Dr. Sydenstricker at a previous medical
appointment. At this particular time, Dr. Sydenstricker examined
the plaintiff, and while examining Gilbert F. Colon, there was
obvious discomfort and limited movement due to the medical
condition. Now after the completion of the examination, Dr.
Sydenstricker indicated to the plaintiff that he would only
prescribe Gilbert Tylenol or Ibuprofen and Methocarbamol
(Robaxin) and nothing else since he did not believe that he was in
as much pain as he addressed. At this point a disagreement of
words ensued between the plaintiff and the doctor, and this is when
Dr. Sydenstricker had actually told the plaintiff to leave his office
which he did.

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Prior to this particular appointment, the plaintiff had complained of
this medical condition to this doctor approximately 2 to 3 times
before at previous appointment. This physician did not show any
sort of medical concern or interest at those previous times, nor did
he show any interest or caring at this time addressed as well.

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(Am. Compl. 8:22-9:19.)
D.

Dr. Witwer

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Regarding Dr. Witwer, Plaintiff alleges the following:

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Dr. Witwer purposely and intentionally avoided investigating the
medical condition, problem and pain that I (Gilbert Francis Colon)
was experiencing at the time of this examination. His observations
were very “quick” and did not even examine the painful areas with
hands on.

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On the Directors Level (page 3) of the first level response, it states
that on Dec 15th, 2005, Dr. Witwer evaluated the plaintiff. Dr.
Witwer noted that the plaintiff Gilbert F. Colon had on going neck
ache despite of minimal abnormalities. Dr. Witwer did not
examine the plaintiff good enough to even determine what was, or,
what wasn’t minimal abnormalities. Abnormalities are
abnormalities and that’s not normal! Dr. Witwer should have
examined the plaintiff thoroughly but failed to do so. Also, Dr.
Witwer prescribed Parafon Forte (Chlorzoxazone) which is in fact
for relief of acute painful musculoskeletal conditions. If the doctor
actually did examine the plaintiff as he was suppose to do, and also
read the doctors reports that were written previously from other
physicians as well as x-rays, MRIs, etc, he would have seen for
himself that this medication and symptom did not fit what he
actually prescribed for his patient.

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(Am. Compl. 4:7-26.)
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III.

Summary Judgment Standard
Summary judgment is appropriate when it is demonstrated that there exists no genuine

issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party

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[always bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those portions of
“the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,” which it
believes demonstrate the absence of a genuine issue of material
fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party meets its initial responsibility, the burden then shifts to the opposing
party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the

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existence of this factual dispute, the opposing party may not rely upon the denial of its pleadings,

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but is required to tender evidence of specific facts in the form of affidavits, and/or admissible

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discovery material, in support of its contention that the dispute exists. Rule 56(e); Matsushita,

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475 U.S. at 586 n. 11. The opposing party must demonstrate that the fact in contention is

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material, i.e., a fact that might affect the outcome of the suit under governing law, Anderson, 477

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U.S. at 248; Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir. 1996), and that the

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dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the

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nonmoving party, Matsushita, 475 U.S. at 588; County of Tuolumne v. Sonora Community

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Hosp., 263 F.3d 1148, 1154 (9th Cir. 2001).

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In the endeavor to establish the existence of a factual dispute, the opposing party need not

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establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed

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factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the

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truth at trial.” Giles v. Gen. Motors Acceptance Corp., 494 F.3d 865, 872 (9th Cir. 2007). Thus,

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the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to

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see whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ.
P. 56(e) advisory committee’s notes on 1963 amendments).

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In resolving the summary judgment motion, the court examines the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.
Rule 56(c). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, and
all reasonable inferences that may be drawn from the facts placed before the court must be drawn
in favor of the opposing party. Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962)(per curiam)). Nevertheless, inferences are not drawn out of the air,
and it is the opposing party’s obligation to produce a factual predicate from which the inference
may be drawn. Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal.
1985)(aff’d, 810 F.2d 898, 902 (9th Cir. 1987).

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Finally, to demonstrate a genuine issue, the opposing party “must do more than simply

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show that there is some metaphysical doubt as to material facts. Where the record taken as a

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whole could not lead a rational trier of fact to find for the nonmoving party, there is not ‘genuine

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issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted).

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IV.

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Medical Care
Under the Eighth Amendment, the government has an obligation to provide medical care

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to those who are incarcerated. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). “In

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order to violate the Eighth Amendment proscription against cruel and unusual punishment, there

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must be a ‘deliberate indifference to serious medical needs of prisoners.’” Id. (quoting Estelle v.

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Gamble, 429 U.S. 97. 104 (1976)). Lopez takes a two-prong approach to evaluating whether

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medical care, or lack thereof, rises to the level of “deliberate indifference.” First, a court must

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examine whether the plaintiff’s medical needs were serious. See Id. Second, a court must

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determine whether “officials intentionally interfered with [the plaintiff’s] medical treatment.” Id.

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at 1132.

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Defendants support their motion with the declaration of Dr. Thomatos, and copies of
relevant portions of Plaintiff’s medical record. Regarding Plaintiff’s care, Dr. Thomatos declares
the following:

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I have been a medical doctor at Sierra Conservation Center (SCC)
from 2003 to the present.
I have reviewed the relevant CDCR records for plaintiff,
GILBERT COLON from the time of his incarceration at SCC State
Prison. The record reflects that plaintiff was seen by many other
physicians and other health care providers at SCC, other prisons,
and outside medical providers during his incarceration. Doctors do
not determine which patients they see or when.
On 1/5/2004 plaintiff was prescribed Robaxin 750 mg and Motrin
600 mg for his acute muscle pain.
On 1/7/2004 Dr. SYDENSTRICKER ordered an x-ray of the
plaintiff’s cervical spine. The findings were that there was
narrowing of three discs in his lower cervical spine. The
impression was that he had lower cervical spondylothesis. Plaintiff
was also prescribed 750 mg of Robaxin, 600 mg of Motrin, and 60
mg of Toradol for his pain.
On 3/24/2004 plaintiff was prescribed Parafon Forte 500 mg and
Tylenol 500 mg.
Plaintiff obtained an MRI of his cervical spine on 4/15/2004. The
MRI demonstrated that the alignment of the plaintiff’s cervical
spine was normal. He had normal amounts of bone marrow with
minimal and moderate narrowing. It also showed an absence of
focal disc herniation. The resultant diagnosis was minimal
degenerative disc disease.
Degenerative disc disease is a very common condition that affects
many people as they age. Minimal degenerative disc disease is the
lowest gradation. It is treated with pain medication, muscle
relaxants, and anti-inflammatory drugs. Surgery is not necessary
or advisable.
Spondylothesis is the subtle movement of discs or the forward shift
of a vertebrae. It is also common with aging. It is often treated
with physical therapy exercises and medication that begins low and
increases incrementally to effectively manage the patient’s pain.
Doctors do not normally prescribe heavy narcotics and opiates for
either minimal degenerative disc disease or spondylothesis.
On 5/24/2004 Dr. Parkinson ordered an x-ray of plaintiff’s lower
back and noticed a slight degeneration of the disc between the L5
and S1 vertebrae.
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On 5/10/2004 I prescribed plaintiff 600 mg of Neurontin and 750
mg of Robaxin.
On 5/24/2004 Dr. Parkinson refilled plaintiff’s prescription of
Robaxin, he was also prescribed 500 mg of Tylenol and started on
400 mg of Neurontin.
On 9/27/2004 Dr. Parkinson prescribed 500 mg of Tylenol and 500
mg of Parafon Forte. He also advised stretching exercises.

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On 10/19/2004 plaintiff told Dr. Parkinson that he had taken
Neurontin in the past, but could not remember whether it was
helpful.
On 11/23/2004 Dr. SYTDENSTRICKER prescribed plaintiff 600
mg of Neurontin and 500 mg of Tylenol to treat his acute neck
pain.
On 12/23/2004 I prescribed plaintiff 600 mg of Neurontin, 500 mg
of Tylenol, and 500 mg of Robaxin. These medications were
prescribed to treat plaintiff’s complaints of pain in his back.
During that meeting plaintiff expressed to me that these
medications helped in treating his pain.
The records reflect that as of January, 2005 plaintiff was
prescribed 600 mg of Neurontin.
The records reflect that on 2/2/2005 Dr. PETERSON continued
plaintiff’s dosage of Robaxin to 750 mg and ordered an x-ray of
his cervical spine.
According to the x-ray plaintiff had mild degenerative disc disease.
Notwithstanding, his soft tissue appeared normal. In March, 2005
plaintiff’s dosage of Neurontin was increased to 800 mg.
On 4/20/2005 Dr. Kraft prescribed the plaintiff Ultram 200 mg,
Darvon 260 mg with steady doses of Tylenol and Ibuprofen.
On 5/4/2005 Dr. PETERSON diagnosed plaintiff with mild
degenerative disc disease, prescribed Neurontin, Tylenol and
Ibuprofen.
On 5/5/2004 another x-ray was obtained showing normal
prevertebral soft tissue and narrowing in disc spacing consistent
with minimal Degenerative Disc Disease.
On 5/25/2005 I continued plaintiff’s increased prescription of
Neurontin 800 mg.
On 6/21/2005 plaintiff’s prescription of Tylenol 500 mg and
Robaxin 750 mg was continued.

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On 8/1/2005 I increased plaintiff’s pain medication to 800 mg of
Neurontin. I continued his prescription of Robaxin and Ibuprofen.
On 10/24/05 I responded to plaintiff’s sick call and increased his
dosage of Neurontin to 900 mg.
On 11/9/2005 Dr. Howard evaluated plaintiff for complaints about
neck pain, the plaintiff told him that Neurontin was working. Dr.
Howard noted that plaintiff’s pain was out of proportion to the
physical findings of the MRI.

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On 12/15/2005 Dr. WITWER evaluated plaintiff for his ongoing
neck ache. He noted that plaintiff’s complaint of pain was out of
proportion and the findings of his MRI and x-ray showed minimal
abnormalities. Dr. WITWER prescribed plaintiff Parafon Forte for
relief of acute musculoskeletal abnormalities.
On 12/29/2005 Dr. Howard again evaluated Plaintiff’s neck, he
noted there was no tenderness, spasm, and that plaintiff was able to
flex his neck. He again noted that plaintiff’s complaint was out of
proportion to his actual injury and findings of the MRI. Dr.
Howard increased plaintiff’s dose of Neurontin to 1000 mg.
On 1/23/2006 I evaluated plaintiff in response to a 602 appeal for
medical care. I examined plaintiff’s neck and noted that he had
full movement on all aspects. He was able to take off his jacket,
outer shirt, and long sleeve undershirt. I noted there was no
tenderness or spasms and his reflexes were normal. I examined
his medical records from January of 2005. I prescribed plaintiff
Ultram and took him off Neurontin. Plaintiff said that Ultram
brought his pain down to a 7/10 from a 10/10.

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The findings of my 602 were consistent with the physical findings
of other doctors, his x-rays, and his MRIs.

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I did not falsify plaintiff’s report. Everything I said in the report
was my fair and accurate medical opinion.

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It was the standard of care at all times relevant to this complaint to
prescribe patients Neurontin, Ultram, Robaxin, Ibuprofen, and
Tylenol for acute neck pain. We would start patients on a lower
dosage and increase incrementally according to how well the
patient responded to the medication.
It was not standard to start patients on Morphine and Methadone.
Such drugs are highly addictive, dangerous, and often abused (this
is especially true in prison). They are only prescribed when a
patient has been diagnosed with a serious injury or as a last resort
if a patient is unresponsive to other pain medications.
At no time relevant to this complaint did the patient exhibit
symptoms of serious musculoskeletal injury warranting the
continuous prescription of heavy narcotics or opiates. During his
treatment by the medical staff at SCC, plaintiff was diagnosed with
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minimal Degenerative Disc Disease. The symptoms he was
complaining of were out of proportion to his physical findings,
MRI, and x-rays.

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At no time did I, or any of the treating doctors at SCC,
intentionally ignore plaintiff’s symptoms or complaints. At all
times, we responded to his needs in compliance with the standard
of care for treating neck and back pain.

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(Thomatos Decl. ¶¶ 1-34).
Defendants also submit copies of relevant portions of Plaintiff’s medical record. A
review of Defendants’ Exhibits 1-20 establishes that Plaintiff’s complaints of acute neck and
back pain were responded to with prescriptions of pain medication and that an x-ray was ordered
which indicated lower cervical spondylosis. Defendants’ Exhibit 3 establishes that Plaintiff
disagreed with the course of treatment, and demanded another medication which was denied.

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Defendants’ Exhibit 5 establishes that Plaintiff underwent an MRI of his cervical spine, which

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revealed that the alignment of his cervical spine was normal. Specifically, the MRI revealed

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“normal amounts of bone marrow with minimal and moderate narrowing.” It also showed an

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absence of focal disc herniation. The resultant diagnosis was minimal Degenerative Disc

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Disease. (Id.)

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As noted in Dr. Thomatos’ declaration, another x-ray was ordered on May 4, 2004, and

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on May 10, 2004, Plaintiff was prescribed 600 mg of Neurontin and 750 mg of Robaxin. On

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November 23 and December 23, 2004, Plaintiff was prescribed Neurontin and Tylenol. During

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2005, Plaintiff’s dose of Neurontin increased incrementally from 600 mg to 1000 mg. On May

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5, 2005, another x-ray was taken, showing normal prevertebral soft tissue and narrowing in disc

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spacing consistent with minimal Degenerative Disc Disease. Neurontin and Tylenol were

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continued. (Dfts’ Exh. 7-17.)

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On December 15, 2005, Dr. Witwer examined Plaintiff, noting that his complaint of pain

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was out of proportion to the findings of his MRI, which showed minimal abnormalities. Plaintiff

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was prescribed Parafon Forte 500 mg for relief of acute musculoskeletal conditions. Dr. Howard

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confirmed those findings on December 29, 2005. In response to Plaintiff’s inmate grievance

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regarding his medical care, Dr. Thomatos examined Plaintiff on January 23, 2006. Dr. Thomatos
examined Plaintiff’s neck and noted that he had “full movement on all aspects.” Plaintiff was
able to take off his jacket, outer shirt, and long sleeve undershirts. Dr. Thomatos noted that there

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was no tenderness or spasms and that Plaintiff’s reflexes were normal. Dr. Thomatos took

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Plaintiff off of Neurontin and prescribed Ultram. (Dfts’ Exh. 18-23.)

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The Court finds that Defendants have met their burden on summary judgment. Dr.
Thomatos’ declaration and Plaintiff’s medical record clearly establish that Plaintiff was seen on
numerous occasions for his neck pain, underwent diagnostic procedures, and was prescribed
medication determined by many physicians to be medically appropriate for Plaintiff’s condition.
Defendants’ evidence establishes the lack of existence of a triable issue of fact – the evidence
establishes that Defendants were not aware of and were not deliberately indifferent to a serious

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medical need of Plaintiff’s. The burden therefore shifts to Plaintiff to come forward with

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evidence of a triable issue of fact.

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Plaintiff’s opposition consists of 38 pages of argument, along with 99 unenumerated

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pages of his medical record and a two page declaration.2 Plaintiff’s argument in opposition is

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not made under the penalty of perjury, and will therefore not be considered as evidence in

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opposition. Plaintiff contests Defendants’ statements of undisputed facts, essentially arguing that

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they are not true. Plaintiff does not, however, direct the Court to any evidence in the record that

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supports his argument. Throughout his opposition, Plaintiff argues that “something else” was

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wrong with him, and that the medications prescribed were not effective. Plaintiff argues that

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surgery was “actually necessary,” despite Defendant’s opinions. Pages 1 through 4 of Plaintiff’s

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The June 5, 2008, first amended complaint is signed under penalty of perjury. A verified
complaint in a pro se civil rights action may constitute an opposing affidavit for purposes of the summary judgment
rule, where the complaint is based on an inmate’s personal knowledge of admissible evidence, and not merely on the
inmate’s belief. McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987)(per curiam); Lew v. Kona Hospital, 754
F.2d 1420, 1423 (9th Cir. 1985); Fed. R. Civ. P. 56(c)(4). The Court will therefore consider the first amended
complaint as an affidavit in opposition to the motion for summary judgment.

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Exhibits indicate that Plaintiff underwent spinal surgery in July of 2010. Plaintiff offers no
evidence, however, that surgery was indicated in 2004 or 2005. Page 4 of Plaintiff’s Exhibits,
dated July 14, 2010, establishes the following:

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CHIEF COMPLAINT: Degenerative disc disease, cervical spine,
C5-6, C6-7, with right C-5, C-6, and C-7 radiculopathy.
PRESENT SYMPTOMS: The present complaints are of continued
pain on both sides of the neck, right greater than left, with pain
from the base of the neck on the right radiating down the right arm
and extending principally to the index, middle and ring fingers
with weakness of grip, loss of strength in the arm, and unabated
pain in the arm over the past six months. Prior injections gave
temporary relief, but did not give lasting relief, as reported on
4/22/2010. He has not improved. He does continue with arm pain,
as well as mild difficulty with tandem walking in his gait.
The patient has been followed since January 15, 2009, and has
continued with unremitting pain in the same areas throughout
without new injuries.
PAST HISTORY
Illnesses: History of asthma.
Injuries
1. In 1974, he sustained an injury on a military ship when a crate
landed on his right side and he developed acute pain in the right
shoulder and down the right arm. He was later discovered as
having a biceps ruptured tendon which was repaired and this has
continued asymptomatic.
2. In 1981, he had an MVA when he hurt his low back.
3. He had a fall in 2007 when a toilet lid hit is right hand. This
created a new onset of pain down the right arm.
Operations: In 1980, right biceps tendon repair, right shoulder,
VA Hospital in Los Angeles, by Dr. Kay.

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(Pltf.’s Exhibits, p. 12).

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Plaintiff’s Exhibit 4 does not establish evidence that Defendants were deliberately

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indifferent to a serious medical need of Plaintiff’s. Exhibit 4 establishes that Plaintiff had spinal

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fusion surgery in 2010, and was suffering from, among other things, a new onset of pain that

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occurred from an accident in 2007. There is no evidence in the surgical report that the treatment

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of Plaintiff from 2004 to 2006 constituted deliberate indifference. The fact that Plaintiff had

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surgery four or five years after interacting with Defendants does not subject them to liability.

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Plaintiff has offered no evidence that surgery was indicated in 2004, 2005 or 2006, or that
Defendants were in any way deliberately indifferent to a serious medical need of Plaintiff’s in
2004 or 2005.

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Plaintiff also attaches the Director’s Level Appeal Response regarding inmate grievance

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No. SCC 06-00054, the grievance challenging the care at issue in this lawsuit. The Director’s

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Level response exhaustively catalogs Plaintiff’s medical care, ultimately concluding that:

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It is important to note that inmates may not demand a particular
medication, diagnostic evaluation, or course of treatment. In this
case, the institution has established that clinicians are attentive to
the appellant’s medical needs and have pursued a reasonable
evaluative course to determine the medical needs of the appellant.
It is important to note that the California Code of Regulations,
Title 15, Section (CCR) 3354 establishes that only qualified
medical personnel shall be permitted to diagnose illness and
prescribe medical treatment for inmates. It is not appropriate for
the appellant to self-diagnose his medical problems and then
expect a physician to implement the appellant’s recommendation
for a course of medical treatment. In this particular matter, the
appellant’s contention that he has not received adequate medical
care is refuted by the medical records and professional staff
familiar with the appellant’s medical history.

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(Pltf.’s Exhibits, p. 82). The Court has reviewed all of the medical records Plaintiff has

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submitted as exhibits in support of his opposition to summary judgment. Plaintiff’s own
evidence establishes that he received medical care for his condition. Although Plaintiff
vehemently disagrees with the course of his treatment, that does not subject Defendants to
liability under the Eighth Amendment. Plaintiff cannot prevail in a section 1983 action where
only the quality of treatment is subject to dispute. Sanchez v. Vild, 891 F.2d 240 (9th Cir. 1989).
Mere difference of opinion between a prisoner and prison medical staff as to appropriate medical
care does not give rise to a section 1983 claim. Hatton v. Arpaio, 217 F.3d 845 (9th Cir. 2000);
Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).
///
///
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V.

Conclusion and Recommendation
The gravamen of Plaintiff’s complaint is that Defendants failed to adequately address his

medical needs. Defendants, in Plaintiff’s opinion, failed to adequately treat his pain, and failed
to surgically intervene. Plaintiff has not, however, come forward with any competent medical
evidence to support his conclusion. Defendants have submitted evidence that establishes that the
medical care received by Plaintiff was appropriate and within sound medical practice.
Specifically, Defendants’ evidence establishes that Plaintiff’s contention that he was prescribed
an appropriate pain medication was contradicted by the results of his MRI. Defendants
submitted evidence that, in the view of medical professionals, surgery was not warranted. That
Plaintiff underwent spinal surgery five years later does not establish deliberate indifference.
Plaintiff must come forward with evidence that establishes, without dispute, that Defendants

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knew of and disregarded a serious medical condition of Plaintiff’s. Plaintiff has failed to do so.

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Accordingly, IT IS HEREBY RECOMMENDED that Defendants’ motion for summary

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judgment be granted in favor of Defendants and against Plaintiff.
These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Tile 28 U.S.C. § 636(b)(1). Within thirty

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within ten days after service of the objections. The parties are advised

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that failure to file objections within the specified time waives all objections to the judge’s

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findings of fact. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). Failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.

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Martinez v. Ylst, 951 F.2d 1152 (9th Cir. 1991).

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IT IS SO ORDERED.
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Dated:

December 19, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

6i0kij8d

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