Cruz v. Ahlin, et al.

Filing 54

FINDINGS and RECOMMENDATIONS Recommending that Defendant's Motion for Summary Judgment be Granted 31 , signed by Magistrate Judge Erica P. Grosjean on 8/21/2018: 21-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PETER CASEY CRUZ,
Plaintiff,

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FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
BE GRANTED

v.

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Case No. 1:13-cv-00988-LJO-EPG (PC)

JONATHAN HAMRICK,
(ECF NO. 31)

Defendant.

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OBJECTIONS, IF ANY, DUE WITHIN
TWENTY-ONE DAYS

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I.

PROCEDURAL HISTORY

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Peter Casey Cruz (“Plaintiff”) is a civil detainee proceeding pro se and in forma

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pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. “This action now

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proceeds with Plaintiff's First Amended Complaint, filed on January 7, 2015, against defendant

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Jonathan Hamrick, M.D., on Plaintiff’s medical claim under the Fourteenth Amendment.”

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(ECF No. 19, p. 2).

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On December 13, 2017, Defendant filed a motion for summary judgment. (ECF No.

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31). On March 29, 2018, Plaintiff filed a provisional opposition to the motion. (ECF No. 41).

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On July 16, 2018, Plaintiff filed his opposition to the motion. (ECF No. 52). On July 20, 2018,

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Defendant filed his reply. (ECF No. 53).

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Defendant’s motion for summary judgment is now before the Court. For the reasons

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that follow, the Court will recommend that Defendant’s motion for summary judgment be

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granted.
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II.

PLAINTIFF’S CLAIM
a. Summary of First Amended Complaint
Plaintiff is a civil detainee at Coalinga State Hospital (“CSH”). On March 24, 2011,

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Plaintiff rolled his ankle. Plaintiff was briefly given use of a wheelchair. The next day,

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Duncan ordered that Plaintiff’s wheelchair be taken from him. Duncan ordered that Plaintiff be

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either moved to a downstairs unit with a wheelchair or remain on the upstairs unit without a

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wheelchair. Due to pain and inconvenience of moving, Plaintiff was forced to remain in the

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upstairs unit without a wheelchair. Plaintiff was given insufficient pain reliever medication

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after the injury.

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Defendant Hamrick reviewed x-rays of Plaintiff’s ankle, but did not see any signs of a

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break. He did not order an MRI or CT scan. Plaintiff demanded an MRI or CT scan. Plaintiff

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received an MRI after interference from the CSH patients’ rights advocate and program

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administrator. Defendant Hamrick found upon viewing the MRI that Plaintiff had torn his

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tendon badly. Plaintiff received corrective surgery on June 27, 2011. Plaintiff was moved to a

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downstairs unit after the surgery.

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Defendant Hamrick prescribed Oxycodone for the pain, but Plaintiff refused it based on

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previous experience with the medication. Defendant Hamrick refused to prescribe an

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alternative pain reliever, leaving Plaintiff in constant and immense pain.

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Following surgery, unknown individuals put a trash bag over Plaintiff’s ankle to cover it

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during shower time, but this resulted in having his dressings replaced, contrary to Dr. Smith’s

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instructions. Plaintiff suffered swelling and pain from the early removal of the dressing.

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On July 25, 2011, Plaintiff was moved to another unit and had difficulty getting

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assistance packing his property. He hobbled around on one foot to pack his own belongings,

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which was difficult because he has a 22-inch television and three sound bars, each weighing

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about 37 pounds. No staff member offered to help Plaintiff pack. However, they helped him

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move his property to the other unit.

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On August 17, 2011, Dr. Smith prescribed rehabilitation. However, no one scheduled
rehabilitation for him.
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Plaintiff continues to suffer from pain and reduced use of his ankle.

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b. Screening Order
The Court1 found a cognizable Fourteenth Amendment claim against Defendant for

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inadequate medical care based on the allegation that Defendant “knew that Plaintiff’s pain

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medication was ineffective and refused to provide another medication, resulting in ‘constant,

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immense pain’ for three weeks.” (ECF No. 7, p. 4; ECF Nos. 12, 15. 16, & 19). The case is

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now proceeding against Defendant on this claim. (Id.).

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III.

DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
a. Defendant’s Position
Defendant argues that his decision after Plaintiff’s surgery to prescribe Oxycontin as an

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alternative pain reliever to Percocet was appropriate. (ECF No. 31, p. 9). Not only was

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Oxycontin a medically appropriate prescription, but Percocet was not available for prescription

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at CSH. (Id.). Defendant alleges that he “exercised [his] professional judgment at all times

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while treating Mr. Cruz for his ankle injury.” (ECF No. 31-3, p. 3, ¶ 8).

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b. Plaintiff’s Position

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Plaintiff argues that he received inadequate medical care. Plaintiff alleges that

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Defendant Hamrick prescribed Oxycontin for Plaintiff’s pain, but that Oxycontin is ineffective

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at relieving Plaintiff’s pain. (ECF No. 52, p. 17). Plaintiff alleges that prior to Defendant

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prescribing Oxycontin, Dr. Smith (Plaintiff’s orthopedic surgeon) prescribed Percocet, which

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was effective at relieving Plaintiff’s pain. (Id.).

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c. Legal Standard for Summary Judgment

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Summary judgment in favor of a party is appropriate when there “is no genuine dispute

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as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

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P. 56(a); Albino v. Baca (“Albino II”), 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (“If there

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is a genuine dispute about material facts, summary judgment will not be granted.”). A party

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asserting that a fact cannot be disputed must support the assertion by “citing to particular parts

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Magistrate Judge Gary S. Austin was the magistrate judge assigned to this case until October 13, 2015.
(ECF No. 11).

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of materials in the record, including depositions, documents, electronically stored information,

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affidavits or declarations, stipulations (including those made for purposes of the motion only),

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admissions, interrogatory answers, or other materials, or showing that the materials cited do not

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establish the absence or presence of a genuine dispute, or that an adverse party cannot produce

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admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
A party moving for summary judgment “bears the initial responsibility of informing the

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district court of the basis for its motion, and identifying those portions of ‘the pleadings,

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depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

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any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

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Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). If the moving party

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moves for summary judgment on the basis that a material fact lacks any proof, the Court must

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determine whether a fair-minded jury could reasonably find for the non-moving party.

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla

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of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on

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which the jury could reasonably find for the plaintiff.”). “[A] complete failure of proof

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concerning an essential element of the nonmoving party’s case necessarily renders all other

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facts immaterial.” Celotex, 477 U.S. at 322. “[C]onclusory allegations unsupported by factual

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data” are not enough to rebut a summary judgment motion. Taylor v. List, 880 F.2d 1040,

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1045 (9th Cir. 1989), citing Angel v. Seattle-First Nat’l Bank, 653 F.2d 1293, 1299 (9th Cir.

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1981).

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In judging the evidence at the summary judgment stage, the Court “must draw all

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reasonable inferences in the light most favorable to the nonmoving party.” Comite de

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Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). It

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need only draw inferences, however, where there is “evidence in the record… from which a

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reasonable inference… may be drawn…”; the court need not entertain inferences that are

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unsupported by fact. Celotex, 477 U.S. at 330 n. 2 (citation omitted). Additionally, “[t]he

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evidence of the non-movant is to be believed….” Anderson, 477 U.S. at 255. Moreover, the

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Court must liberally construe Plaintiff’s filings because he is a prisoner proceeding pro se in
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this action. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010).
In reviewing a summary judgment motion, the Court may consider other materials in

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the record not cited to by the parties, but is not required to do so. Fed. R. Civ. P. 56(c)(3);

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Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001).

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d. Legal Standard for Fourteenth Amendment Inadequate Medical Care Claim
As a civil detainee, Plaintiff’s right to medical care is protected by the substantive

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component of the Due Process Clause of the Fourteenth Amendment. Youngberg v. Romeo,

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457 U.S. 307, 315 (1982); Mitchell v. Washington, 818 F.3d 436 (9th Cir. 2016). Under this

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provision of the Constitution, Plaintiff is “entitled to more considerate treatment and conditions

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of confinement than criminals whose conditions of confinement are designed to punish.” Jones

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v. Blanas, 393 F.3d 918, 931 (9th Cir. 2004) (quoting Youngberg, 457 U.S. at 321-22).

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Liability may only be imposed when a defendant fails to use “professional judgment.”

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Youngberg, 457 U.S. at 323. A defendant fails to use professional judgment when his or her

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decision is “such a substantial departure from accepted professional judgment, practice, or

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standards as to demonstrate that [he or she] did not base [his or her] decision on such a

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judgment.” Id. In determining whether a defendant has met his or her constitutional

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obligations, “decisions made by the appropriate professional are entitled to a presumption of

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correctness.” Id. at 324. “[T]he Constitution only requires that the courts make certain that

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professional judgment in fact was exercised. It is not appropriate for the courts to specify

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which of several professionally acceptable choices should have been made.” Id. at 321

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(quoting Romeo v. Youngberg, 644 F.2d 147, 178 (3d Cir. 1980) (Seitz, C. J., concurring),

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vacated, 457 U.S. 307 (1982)).

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“Under both the ‘professional judgment’ and the ‘deliberate indifference’ standards,

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mere negligence or medical malpractice does not violate the Constitution. Medical malpractice

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does not become a constitutional violation merely because the patient is institutionalized. [A]

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complaint that a physician has been negligent in diagnosing or treating a medical condition

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does not state a valid claim of medical mistreatment under the Constitution…. Nor can a

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plaintiff base a constitutional claim on a difference of opinion with medical staff regarding the
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nature of appropriate medical treatment.” Cranford v. Quigley, No. CV 07-871FMCJTL, 2008

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WL 5450354, at *4 (C.D. Cal. Dec. 30, 2008) (alteration in original) (citations and internal

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quotation marks omitted).

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e. Analysis

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To begin, much of what Plaintiff presents in his oppositions to the motion for summary

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judgment do not relate to Defendant or the facts at issue in this case. Instead, Plaintiff brings

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up facts related to claims against defendants that have already been dismissed from this case

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and facts related to other instances in which he allegedly received subpar medical treatment.

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Defendant also presents evidence and arguments not related to the claim proceeding in this

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case.
This case is only proceeding against defendant Hamrick, and only on Plaintiff’s claim

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that Defendant “knew that Plaintiff’s pain medication was ineffective and refused to provide

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another medication, resulting in ‘constant, immense pain’ for three weeks.” (ECF No. 7, p. 4;

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ECF Nos. 12, 15. 16, & 19). Accordingly, the Court will only address evidence and arguments

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related to whether Defendant used his professional judgment in prescribing Plaintiff pain

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medication. All other evidence is not relevant to the determination of Defendant’s motion for

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summary judgment.

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As to Plaintiff’s allegation that Defendant knowingly provided ineffective pain

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medication, Plaintiff submitted a statement, under penalty of perjury, that he informed

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Defendant that, based on his prior experience with Oxycontin/Oxycodone,

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Oxycontin/Oxycodone does not work on Plaintiff. (ECF No. 52, p. 17; ECF No. 10, p. 7).

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Additionally, Dr. Smith (Plaintiff’s orthopedic surgeon) had prescribed Percocet (Defendant’s

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Separate Statement of Undisputed Fact (“DSSUF”) 10), which was effective at relieving

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Plaintiff’s pain (ECF No. 52, p. 17; ECF No. 10, p. 6). Despite this, when Plaintiff returned to

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CSH after his surgery, Defendant prescribed Oxycontin. DSSUF 10.

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Defendant has submitted evidence, in the form of his own declaration, that he

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“exercised [his] professional judgment at all times while treating Mr. Cruz for his ankle injury.”

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(ECF No. 31-3, p. 3, ¶ 8).
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Defendant has also submitted evidence, in the form of a declaration from Dr. Bruce

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Barnett,2 that Defendant’s decision to prescribe Oxycontin was sensible. (ECF No. 31-4, p. 3, ¶

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9). Oxycontin is less vulnerable to abuse. (Id.). Additionally, unlike Percocet, it does not

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contain acetaminophen, and for patients with a known liver disease (such as Plaintiff), it is

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appropriate to limit acetaminophen prescriptions. (Id.). Moreover, Plaintiff’s claim that

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Oxycontin was not effective on him is inconsistent with his claim that Percocet helped. (Id. at

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pgs. 2-3, ¶¶ 7-8). “Oxycontin is the same drug that [Plaintiff] said was effective in helping his

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pain when he took the drug along with acetaminophen as Percocet.” (Id. at p. 3, ¶ 8). It is Dr.

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Barnett’s professional opinion that Defendant’s decision to treat Plaintiff’s pain with Oxycontin

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was “reasonable, within the community standards of care, and showed substantial consideration

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for Cruz’s medical condition.” (Id. at ¶ 10).

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Based on the evidence presented, the Court finds that Defendant’s motion for summary

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judgment should be granted. Plaintiff presented no evidence that Defendant’s treatment was a

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“substantial departure from accepted professional judgment, practice, or standards,”

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Youngberg, 457 U.S. at 323, while Defendant has presented evidence that he used professional

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judgment, and that the treatment was reasonable and within the community standards of care.

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Plaintiff can testify as to how he has reacted to taking Oxycontin in the past, but Plaintiff is not

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a medical expert and thus cannot give expert testimony regarding the effectiveness of

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Oxycontin. Additionally, based on Plaintiff’s evidence, Plaintiff did not explain to Defendant

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exactly why he thought Oxycontin would not be effective. He simply told Defendant it did not

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work in the past. He provided no examples, and he has presented no evidence that there are

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records in his medical file indicating that Oxycontin is ineffective on him.

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Therefore, even taking all of Plaintiff’s evidence as true and construing it in the

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light most favorable to Plaintiff, Defendant’s evidence that he used his professional judgment is

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undisputed and Plaintiff’s evidence would only establish at most a difference of opinion as to

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Dr. Barnett is a California licensed physician, and has been since 1978. (ECF No. 31-4, p. 1, ¶ 1). He
graduated from Harvard Medical School in 1975, and has “more than thirty years of experience in the fields of
Family Medicine, Urgent Care, and Emergency Medicine.”
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the medication Plaintiff should have been prescribed. As described above, Plaintiff cannot

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“base a constitutional claim on a difference of opinion with medical staff regarding the nature

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of appropriate medical treatment.” Cranford, 2008 WL 5450354, at *4. Accordingly, the

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Court will recommend that Defendant’s motion for summary judgment be granted.

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IV.

CONCLUSION AND RECOMMENDATION
Because, even taking all of Plaintiff’s evidence as true and construing it in the light

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most favorable to Plaintiff, there is at most a difference of opinion as to the medication Plaintiff

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should have been prescribed, the Court finds that Defendant’s motion for summary judgment

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should be granted.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Defendant’s motion for summary judgment be GRANTED; and

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2. The Clerk of Court be directed to close this case.

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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 Title 28 U.S.C. § 636(b)(l). Within twenty-

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one (21) days after being served with these findings and recommendations, any party may file

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written objections with the court. Such a document should be captioned "Objections to

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Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be

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served and filed within seven (7) days after service of the objections. The parties are advised

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that failure to file objections within the specified time may result in the waiver of rights on

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appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan,

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923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

August 21, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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