Schultz v. California Department of Corrections and Rehabilitation et al
Filing
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FINDINGS and RECOMMENDATIONS to: 1) Deny Plaintiff's 51 Motion for Summary Judgment; 2) Deny Defendant's 71 Motion for Summary Judgment; 3) Grant Plaintiff's 77 Motion for Correction; Fourteen (14) Day Objection Deadline signed by Magistrate Judge Michael J. Seng on 9/14/2015. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 10/1/2015. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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KENNETH SCHULTZ,
Plaintiff,
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v.
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CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION,
et al.,
Defendants.
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Case No. 1:11-cv-00988-LJO-MJS
FINDINGS AND RECOMMENDATIONS
TO:
1) DENY PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT (ECF No. 51.)
2) DENY DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT (ECF No. 71.)
3) GRANT PLAINTIFF’S MOTION FOR
CORRECTION (ECF No. 77.)
FOURTEEN (14) DAY OBJECTION
DEADLINE
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I.
PROCEDURAL HISTORY
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 1 & 6.) The action
proceeds against Defendant Kim on Plaintiff’s Eighth Amendment inadequate medical
care claim. (ECF Nos. 9 & 22.)
Before the Court are the parties’ cross-motions for summary judgment. (ECF
Nos. 51 & 71.) The parties filed oppositions (ECF Nos. 70 & 75.) and replies (ECF Nos.
74 & 76.). Plaintiff also filed a motion to correct a typographical error in his opposition to
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Defendant’s motion for summary judgment. (ECF No. 77.) These matters are deemed
submitted. Local Rule 230 (l).
II.
MOTION FOR SUMMARY JUDGMENT
A.
Legal Standard
Any party may move for summary judgment, and “[t]he [C]ourt shall grant
summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Each party’s position, whether it be that a fact is disputed or undisputed, must be
supported by (1) citing to particular parts of materials in the record, including but not
limited to depositions, documents, declarations, or discovery; or (2) “showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that
an adverse party cannot produce admissible evidence to support the fact.” Fed R. Civ.
P. 56(c)(1).
“Where the moving party will have the burden of proof on an issue at trial, the
movant must affirmatively demonstrate that no reasonable trier of fact could find other
than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
Cir. 2007). If the burden of proof at trial rests with the nonmoving party, then the
moving party need only point to “an absence of evidence to support the nonmoving
party’s case.” Id. Once the moving party has met its burden, the nonmoving party must
point to "specific facts showing that there is a genuine issue for trial." Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)).
In evaluating the evidence, “the [C]ourt does not make credibility determinations
or weigh conflicting evidence,” and “it draws all inferences in the light most favorable to
the nonmoving party.” Id.
B.
Factual Background
On February 9, 2009, Plaintiff sought medical care for a skin lesion, flu-like
symptoms, and sore muscles. On February 11, 2009, Dr. Yu saw Plaintiff and ordered
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blood tests and noted the skin lesion plus issues with constipation. On February 18,
2009, a metabolic panel flagged four items as high, prompting retesting. February 20,
2009 retest results were relatively normal.
Plaintiff’s muscle and joint pain increased, and so on May 15, 2009, Dr. Yu
ordered a comprehensive metabolic panel.
On June 9, 2009 and July 14, 2009, Plaintiff complained to nurse D. McGrew of
increased pain, loss of sleep, and difficulty walking. McGrew informed Plaintiff that his
tests appeared normal, but that he would see a doctor the following week.
On July 22, 2009, Plaintiff saw Defendant Kim for pain. He inquired about his
blood test results and asked if he had chronic sepsis. Defendant Kim informed Plaintiff
he did not have sepsis and that he may “have to learn to live with the pain.” (ECF Nos.
70-1 at 3; 71-1 at 6; 51 at 4.)
According to the medical records, Defendant Kim noted at the time that Plaintiff’s
skin lesion was either basal cell carcinoma or actinic keratosis, and he referred Plaintiff
to Dr. Sanchez for excision. Dr. Kim also noted that Plaintiff’s pain could come from
chronic fatigue syndrome or depression. The parties dispute whether Dr. Kim treated
Plaintiff disrespectfully, raised his voice at him, or snapped at him during the visit.
On July 29, 2009, Plaintiff submitted an inmate appeal regarding Dr. Kim’s care.
On August 2, 2009, Plaintiff submitted a health care request form due to his
increasing pain. On August 4, 2009, Plaintiff saw nurse McGrew regarding this request.
On August 18, 2009, Plaintiff saw nurse Brabant for his pain. Nurse Brabant
scheduled Plaintiff for lab tests and x-rays. The lab tests were nonspecific and the xrays showed Plaintiff had “Minimal arthritic changes” in his hips, “Bilateral osteoarthritis,”
and “Possible bilateral tendinitis” in his shoulders. (ECF No. 51 at 31-32.)
On September 22, 2009, Defendant Kim followed-up on Plaintiff’s biopsy and
excision of his chest lesion. Defendant removed the sutures and discharged Plaintiff
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from the chronic care program with follow-up in two months. Defendant did not address
Plaintiff’s pain.
On November 23, 2009, Defendant saw Plaintiff for his final follow-up and
interviewed him regarding his inmate appeal against Defendant. Defendant advised
Plaintiff to not self-diagnose or request unnecessary testing. He also noted that in the
absence of evidence of sepsis, Plaintiff may have hypochondriasis or antisocial
personality disorder. The parties dispute whether this interaction was hostile. Plaintiff
alleges Defendant was angry and responded with rage.
In early 2010, Plaintiff saw Dr. Karan. Dr. Karan scheduled Plaintiff for additional
x-rays and blood and urine tests.
Dr. Karan came to a probable diagnosis of
polymyalgia rheumatic (“PMR”) and treated Plaintiff with prednisone. The prednisone
produced dramatic relief, and Dr. Karan confirmed that Plaintiff had PMR.
By
December 2010, Plaintiff was off the prednisone and by March 2011, he could jog four
miles a day, four or five times per week.
Dr. Kim avers that when he saw Plaintiff in 2009 he was unfamiliar with PMR.
PMR is a rare disease, and it did not occur to Defendant that Plaintiff could have PMR.
Defendant submitted a declaration from Dr. Barnett who opines “that the care Dr.
Kim provided was within the community standard, and certainly did not amount to
deliberate indifference.”
(ECF No. 71-3 at 7.)
According to Dr. Barnett, Plaintiff’s
presentation was atypical for PMR.
C.
Inadequate Medical Care
A claim of medical indifference requires: 1) a serious medical need, and 2) a
deliberately indifferent response by defendant. Jett v. Penner, 439 F.3d 1091, 1096
(9th Cir. 2006). A serious medical need may be shown by demonstrating that “failure to
treat a prisoner's condition could result in further significant injury or the ‘unnecessary
and wanton infliction of pain.’” Id.; See also McGuckin v. Smith, 974 F.2d 1050, 105960 (9th Cir. 1992) (“The existence of an injury that a reasonable doctor or patient would
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find important and worthy of comment or treatment; the presence of a medical condition
that significantly affects an individual's daily activities; or the existence of chronic and
substantial pain are examples of indications that a prisoner has a ‘serious’ need for
medical treatment.”).
The deliberate indifference standard is met by showing: a) “a purposeful act or
failure to respond to a prisoner's pain or possible medical need”, and b) “harm caused
by the indifference.” Jett, 439 F.3d at 1096. “Deliberate indifference is a high legal
standard.”
Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).
“Under this
standard, the prison official must not only ‘be aware of the facts from which the
inference could be drawn that a substantial risk of serious harm exists,’ but that person
‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 U.S. 825,
837 (1994)). “‘If a prison official should have been aware of the risk, but was not, then
the official has not violated the Eighth Amendment, no matter how severe the risk.’” Id.
(brackets omitted) (quoting Gibson v, Cnty. of Washoe, 290 F.3d 1175, 1188 (9th Cir.
2002)). “[A]n inadvertent failure to provide adequate medical care” does not, by itself,
state a deliberate indifference claim for § 1983 purposes. McGuckin, 974 F.2d at 1060
(internal quotation marks omitted); See also Estelle v. Gamble, 429 U.S. 97, 106 (1976)
(“[A] complaint that a physician has been negligent in diagnosing or treating a medical
condition does not state a valid claim of medical mistreatment under the Eighth
Amendment. Medical malpractice does not become a constitutional violation merely
because the victim is a prisoner.”). “A defendant must purposefully ignore or fail to
respond to a prisoner's pain or possible medical need in order for deliberate indifference
to be established.” McGuckin, 974 F.2d at 1060.
1.
Parties’ Arguments
Defendant Kim argues that: 1) he properly treated Plaintiff for conditions he knew
required treatment, 2) PMR is a rare disease that Defendant was unfamiliar with and did
not suspect in Plaintiff, 3) Plaintiff’s PMR was correctly diagnosed and treated, and 4)
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Plaintiff did not suffer any significant harm from the delay in treatment. Defendant failed
to diagnose Plaintiff with PMR because of unfamiliarity with the disease not disregard
for Plaintiff’s medical needs. None of the other medical personnel who saw Plaintiff
during the same time period diagnosed PMR.
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Plaintiff contends that at his July 22, 2009 appointment, Defendant dismissed
him without examining him, scheduling tests, or attempting to determine the cause of
his pain. Instead, Defendant informed Plaintiff that he was “going to have to learn to live
with the pain,” and that he did not have sepsis.
diagnosed Plaintiff with chronic fatigue syndrome or depression, he never provided
Plaintiff with treatment nor referred him to a specialist for such conditions. As a result of
Defendant’s deliberate indifference, between July 22, 2009 and April 2010, Plaintiff
suffered unnecessary pain and has permanent thinning of his joint lining.
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Analysis
The parties do not dispute that Plaintiff suffered a serious medical condition –
muscle and joint pain diagnosed as PMR. Therefore, the Court need only determine
whether there is a genuine issue of material fact as to whether Defendant Kim was
deliberately indifferent to Plaintiff’s medical needs. The issue in this regard is whether
Defendant Kim denied, delayed, or interfered with Plaintiff’s medical treatment or
whether he was simply negligent in diagnosing and treating Plaintiff for his pain. See
Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1987).
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Even if Defendant preliminarily
Defendant contends that he treated Plaintiff for the condition that he knew
required treatment, i.e. his skin lesion, and that he did not even suspect Plaintiff had
PMR.
However, the issue is not whether Defendant ultimately properly diagnosed
Plaintiff with PMR or whether he properly treated Plaintiff for other medical conditions,
but whether Defendant failed to treat Plaintiff for his complaints of muscle and joint pain.
“A finding that the defendant repeatedly failed to treat an inmate properly or that a single
failure was egregious strongly suggests that the defendant's actions were motivated by
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'deliberate indifference' to the prisoner's medical needs.” McGuckin, 974 F.2d at 1062.
Defendant admits that at his initial appointment with Plaintiff he told him that he
may “have to learn to live with the pain,” and that at a follow-up appointment he did not
address Plaintiff’s complaints of pain. Defendant submits a declaration from Dr. Barnett
who opines that Defendant’s advice to “live with the pain” was “reasonable,” given
Plaintiff was jogging daily. (ECF No. 71-3 at 6.) However, as Plaintiff points out, his
medical records do not support Dr. Barnett’s declaration that he was able to jog daily at
the time. Around that time, Plaintiff complained of the exact opposite – he had difficulty
being able to walk and was no longer able to jog.
Defendant noted possible diagnoses of chronic fatigue syndrome, depression,
hypochondriasis, or antisocial personality disorder for Plaintiff’s pain. But it is not clear
from the record what, if any, treatment was available or recommended for such
conditions or whether Defendant refused to provide treatment that was available.
Defendant contends that Plaintiff was already on Naproxen, which is commonly
used for pain relief, and that a failure to provide other pain medication reflects a
difference of opinion as to treatment, not deliberate indifference. Yet, here again, there
is contradiction in therecord: Plaintiff’s medical records indicate that he is allergic to
Naproxen. (ECF No. 71-3 at 19, 22, 26.)
The above-noted conflicts and ambiguities in the record leave the case
unsuitable for summary judgment. It is recommended that the parties’ cross-motions for
summary judgment be DENIED.
D.
Qualified Immunity
Defendant Kim argues that he is entitled to qualified immunity because there is
no evidence demonstrating that he was deliberately indifferent or interfered with,
denied, or delayed Plaintiff’s medical treatment.
Plaintiff argues that Defendant is not immune from liability because he acted with
deliberate indifference.
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Government officials enjoy qualified immunity from civil damages unless their
conduct violates “clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
In ruling upon the issue of qualified immunity, one inquiry is whether, “[t]aken in the light
most favorable to the party asserting the injury, do the facts alleged show the
[defendant's] conduct violated a constitutional right.” Saucier v. Katz, 533 U.S. 194, 201
(2001), overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009) (“Saucier
procedure should not be regarded as an inflexible requirement”). The other inquiry is
“whether the right was clearly established.” Id. The inquiry “must be undertaken in light
of the specific context of the case, not as a broad general proposition . . . .” Id. “[T]he
right the official is alleged to have violated must have been ‘clearly established’ in a
more particularized, and hence more relevant, sense: The contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Id. at 202 (citation omitted). In resolving these issues, the Court
must view the evidence in the light most favorable to Plaintiff and resolve all material
factual disputes in favor of Plaintiff. Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir.
2003).
Qualified immunity protects “all but the plainly incompetent or those who
knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
As noted above, the conflicting evidence in this case leaves the Court unable to
determine whether Defendant Kim acted with deliberate indifference to Plaintiff’s serious
medical need. The Court cannot determine if Defendant’s acts or failures to act were
protected by the doctrine of qualified immunity without having first determined what
those acts and inactions were and whether they violated Plaintiff’s Constitutional rights.
See Lolli v. Cnty. of Orange, 351 F.3d 410, 421 (9th Cir. 2003) (factual disputes on
excessive force and medical indifference claims made a finding of qualified immunity
inappropriate at the summary judgment stage). It is recommended that Defendant’s
motion for summary judgment in this regard be DENIED.
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III.
MOTION FOR CORRECTION OF TYPOGRAPHICAL ERROR
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Plaintiff moves to correct a typographical error in his opposition to Defendant’s
motion for summary judgment. (ECF No. 77.) On page 7, lines 14-16, Plaintiff wishes
to replace the word “a” with “no” in the sentence “Thus there is a genuine issue for a
final judgment and/or trial.” (ECF No. 75.) There is no objection from Defendant. It is
recommended that Plaintiff’s motion be GRANTED.
IV.
CONCLUSION AND RECOMMENDATION
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The Court finds that there are genuine issues of material fact as to Defendant’s
liability. Based on the foregoing, the Court HEREBY RECOMMENDS that the parties’
cross-motions for summary judgment be DENIED (ECF Nos. 51 & 71.) and Plaintiff’s
motion for correction be GRANTED (ECF No. 77.).
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These Findings and Recommendations are submitted to the United States
District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).
Within
fourteen
(14)
days
after
being
served
with
these
Findings
and
Recommendations, any party may file written objections with the Court and serve a
copy on all parties. Such a document should be captioned “Objections to Magistrate
Judge’s Findings and Recommendations.” Any reply to the objections shall be served
and filed within fourteen (14) days after service of the objections. The parties are
advised that failure to file objections within the specified time may result in the waiver of
rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter
v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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Dated:
September 14, 2015
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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