Scott v. Keller

Filing 108

ORDER signed by District Judge Kent J. Dawson on 3/29/2010 ORDERING 82 Motion for Extension is denied; 78 80 Motion for Summary Judgment is granted; and the Clerk is to enter judgment for defendants Brar and Aytman. (Matson, R)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
MAURICE SCOTT, Plaintiff, v. MTA KELLER, et al., Defendants. Case No. 2:07-CV-00184-KJD-PAL ORDER

Presently before the Court is Defendant Arvindra Brar's Motion for Summary Judgment (#78). Plaintiff filed a response in opposition (#84) to which Defendant Brar replied (#79). Also before the Court is Defendant Anitra Aytman's Motion for Summary Judgment (#80). Plaintiff filed a response in opposition (#83) to which Defendant Aytman1 replied (#85). Finally before the Court is Plaintiff's Motion for Forty-Five (45) Day Extension of Time to Obtain Oral Deposition (#82).2

A t the time the factual allegations of the complaint occurred, Defendant Aytman was known as Anitra Gage.

I t is unclear from the record whether Plaintiff has ever received a copy of his deposition testimony. However, h a v in g conducted an exhaustive review of Plaintiff's deposition, the Court finds that no facts contained in the deposition w o u ld have raised genuine issues requiring the Court to deny Defendants' motions for summary judgment. Therefore, the C o u r t denies Plaintiff's motion for an extension.

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I. Background Avrindra Brar, M.D., is a licensed physician and surgeon in the State of California. He has been employed as a physician and surgeon with the California Department of Corrections and Rehabilitiation ("CDCR") at California State Prison, Corcoran ("Corcoran") since 2001. He works as a yard doctor and emergency room doctor and his responsibilities include treating inmates at various clinics in the prison and in the emergency room. Defendant Anitra Aytman ("Aytman") is a nurse family practitioner in the State of California. She was employed at Corcoran in 2005. Aytman treated and provided nursing services to inmates, including Plaintiff. Plaintiff Maurice Scott suffered a hand injury on January 4, 2005, while incarcerated at the California State Prison, Solano ("Solano"). On January 6, 2005, Dr. Rohrer diagnosed Scott with recurrent swelling of the right hand and Scott received a prescription for Motrin, a pain reliever and anti-inflammatory medication. An x-ray showed a fracture at the proximal end (closest to the knuckle) of the fourth metacarpal. The fourth metacarpal refers to the metacarpal bone connected to the ring finger. Scott's x-ray also showed that the proximal end of the damaged metacarpal was displaced dorsally, meaning that it was out of alignment and toward the palm of the hand. On April 6, 2005, Scott was transferred to Corcoran. On May 5, 2005, Scott was seen by the first time by Defendant Aytman. She obtained a history from Scott who complained of pain with periodic numbness and tingling in his hand. Scott was assessed with a fracture and referred for an orthopedic consultation and was prescribed Motrin. On May 6, 2005, Aytman issued a notification of diagnostic test results and also issued a request for a referral to an orthopedist for follow up. On June 8, 2005, Scott had another x-ray of his right wrist and hand. The x-ray of the wrist showed healed fractures at the base of the fourth and fifth metacarpal bones. It also showed slight posterior subluxation (dislocation) of the base of the fourth and fifth metacarpal bones. Dr. Neubarth prescribed Neurotonin for relief of pain.

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On August 2, 2005, Defendant Aytman saw Scott for the second time. Scott was referred to physical therapy and prescribed medication for acid reflux. Scott was seen for an orthopedic consultation on August 17, 2005, by Dr. Smith, an orthopedic surgeon at Corcoran. Dr. Smith noted the results of the June 8th x-ray and noted that Scott complained of numbness and tingling in his hand. Dr. Smith referred Scott for an Electromyogram ("EMG") and nerve conduction studies ("NCS"). An EMG tests the electrical activity of muscles and is used to detect many diseases and conditions including peripheral nerve damage. An NCS tests the motor and sensory nerves electrical conduction ability primarily evaluating numbness, tingling, burning or weakness in arms and legs. Dr. Smith noted that he needed to see Scott again, and until the tests were conducted nothing could be done for Scott, other than prescribe anti-inflammatory medication. Scott was also seen in the clinic by Aytman on September 12, 2005. Aytman noted that the EMG had been deferred. She noted the EMG had been scheduled by Dr. Sanchez with follow up after the EMG was completed. Aytman also saw Scott on November 1, 2005, but Plaintiff only complained on that date of chest pain caused by reflux. Dr. Brar examined Scott for the first time on October 24, 2005. Scott complained that the EMG and NCS had not been conducted yet. Scott was wearing a wrist splint and receiving Neurotonin and Motrin for pain. Brar diagnosed Scott with a history of metacarpal fracture and wrist trauma. Brar contacted staff in the Utilization Management Office ("UMO"), responsible for approving and scheduling tests. The UMO informed Brar that it had not received any order for an EMG and NCS. Brar then ordered the test for Scott. Brar also ordered follow up with Dr. Smith within thirty (30) days of the tests being completed. Dr. Pineda performed the tests on November 14, 2005. As a result of the tests, Pineda diagnosed Scott with mild carpal tunnel syndrome and mild Guyon's canal syndrome, and recommended a wrist splint for Scott. Carpal tunnel syndrome has symptoms including numbness,

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tingling and is commonly treated with wrist splints. Guyon's canal syndrome, entrapment of the ulnar nerve as it passes through the wrist, is also treated with the use of a splint. Dr. Brar then examined Scott again on December 6, 2005 in response to two inmate grievances that Scott submitted regarding the medical treatment of his right wrist. One grievance requested that Scott be sent to an outside orthopedic surgeon. Brar denied this request, because Scott was receiving care from Dr. Smith. Brar ordered the nursing staff to contact Dr. Pineda to determine what type of splint should be ordered for Scott. The second grievance complained that Scott had not been seen by a doctor for treatment of his right hand. Brar granted the grievance and told Scott that he would be treated by the specialist. II. Standard for Summary Judgment Summary judgment may be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of showing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. The burden then shifts to the nonmoving party to set forth specific facts demonstrating a genuine factual issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Fed. R. Civ. P. 56(e). All justifiable inferences must be viewed in the light must favorable to the nonmoving party. See Matsushita, 475 U.S. at 587. However, the nonmoving party may not rest upon the mere allegations or denials of his or her pleadings, but he or she must produce specific facts, by affidavit or other evidentiary materials as provided by Rule 56(e), showing there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The court need only resolve factual issues of controversy in favor of the non-moving party where the facts specifically averred by that party contradict facts specifically averred by the movant. See Lujan v. Nat'l Wildlife Fed'n., 497 U.S. 871, 888 (1990); see also Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 345 4

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(9th Cir. 1995) (stating that conclusory or speculative testimony is insufficient to raise a genuine issue of fact to defeat summary judgment). Evidence must be concrete and cannot rely on "mere speculation, conjecture, or fantasy. O.S.C. Corp. v. Apple Computer, Inc., 792 F.2d 1464, 1467 (9th Cir. 1986). "[U]ncorroborated and self-serving testimony," without more, will not create a "genuine issue" of material fact precluding summary judgment. Villiarimo v. Aloha Island Air Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). Summary judgment shall be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Summary judgment shall not be granted if a reasonable jury could return a verdict for the nonmoving party. See Anderson, 477 U.S. at 248. III. Analysis Both Defendants have moved for summary judgment asserting that no genuine issue of material fact prevents the court from granting summary judgment for them and against Plaintiff because the undisputed facts show that each Defendant did not take actions that violated Plaintiff's Eighth Amendment rights, and even if such facts were found, Defendants are entitled to qualified immunity. Under 42 U.S.C. § 1983, to maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show `deliberate indifference to serious medical needs.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104(1976)). The Ninth Circuit employs a two-part test of deliberate indifference requiring a plaintiff to (1) first show a "serious medical need" by demonstrating that "failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain," and (2) the defendant's response to the need was deliberately indifferent. McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (citing Estelle 429 U.S. at 104) (internal quotations removed). A plaintiff may satisfy the second prong by demonstrating (1) the prison official engaged in a purposeful act or 5

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failure to respond to a prisoner's pain or possible medical need, and (2) harm caused by the indifference. Jett, 439 F.3d at 1096 (citing McGuckin, 974 F.2d at 1060.) Indifference "may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care." McGuckin, 974 F.2d at 1060. "A prisoner need not show harm was substantial; however, such would provide additional support for the inmate's claim that the defendant was deliberately indifferent to his needs." Jett, 439 F.3d at 1096. Although Scott makes claims for deliberate indifference resulting from both denial and delay of medical treatment, as he was eventually treated, all of his claims are really for delay of treatment. In the Ninth Circuit, "mere delay of surgery, without more, is insufficient to state a claim of deliberate medical indifference . . . unless the denial was harmful." Shapley v. Nevada Bd. of State Prison Com'rs, 766 F.2d 404, 407 (9th Cir. 1985). [A] finding that the defendant's activities resulted in "substantial" harm to the prisoner is not necessary, although a finding that the inmate was seriously harmed by the defendant's action or inaction tends to provide additional support to a claim that the defendant was "deliberately indifferent" to the prisoner's medical needs: the fact that an individual sat idly by as another human being was seriously injured despite the defendant's ability to prevent the injury is a strong indicium of callousness and deliberate indifference to the prisoner's suffering McGuckin, 974 F.2d at 1060 (internal citations removed). Once Plaintiff has established the

18 harmfulness of the delay, "it is up to the fact finder to determine whether or not the defendant was 19 `deliberately indifferent' to the prisoner's medical needs." Id. A finding that the delay in treatment 20 was an "isolated occurrence" or "isolated exception" to the inmate's overall medical treatment tends 21 to weigh against a finding of deliberate indifference. See e.g. Wood v. Housewright, 900 F.2d 1332, 22 1334 (9th Cir. 1990); Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir.1986). "On the other 23 hand, a finding that the defendant repeatedly failed to treat an inmate properly or that a single failure 24 was egregious strongly suggests that the defendant's actions were motivated by `deliberate 25 indifference' to the prisoner's medical needs." McGuckin, 974 F.2d at 1060-61. "In sum, the more 26 6

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serious the medical needs of the prisoner, and the more unwarranted the defendant's actions in light of those needs, the more likely it is that a plaintiff has established `deliberate indifference' on the part of the defendant." Id. at 1061. A. Dr. Arvindra Brar Plaintiff asserts that genuine issues of fact are raised regarding Defendant Brar's deliberate indifference because Brar did not grant Plaintiff's request to see an "outside" orthopedic surgeon. However, this denial of Plaintiff's grievance on our about December 6, 2005, does not evidence a purposeful act or failure to respond to Plaintiff's serious medical need for several reasons. First, Dr. Brar first examined Plaintiff on October 24, 2005, more than nine months after Plaintiff's hand and wrist injury occurred. Dr. Brar discovered that the orthopedist's order, on August 17, 2005, that Scott undergo an EMG and NCS had not been conducted or scheduled. In direct response to that situation, Brar ordered the tests "URGENT" and as a direct result of his efforts the tests were conducted three weeks later on November 14, 2005. Then, in response to Plaintiff's grievances initially filed on September 20, 20053 and October 20, 2005, Dr. Brar met with Plaintiff on December 6, 2005. Since Plaintiff had undergone the tests as ordered by Dr. Brar, he denied the request to see an outside orthopedic surgeon and told Scott that he would be seen by Dr. Smith and made a request that a follow-up be scheduled. The failure to allow Scott to see an outside surgeon did not intentionally delay Scott's treatment. Instead, the record showed that Dr. Brar expedited the treatment when delay was brought to his attention. There is no evidence in the record that Dr. Brar was aware that Scott's treatment would be delayed after all tests had been completed because Plaintiff merely needed a consultation with the in-house orthopedic surgeon. Plaintiff now alleges for the first time, on August 13, 2009, two years after his amended complaint (#14) was filed, that Dr. Brar violated California Government Code § 845.6 which makes

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T h is grievance directly led to the October 24, 2005 meeting with Dr. Brar.

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a public employee liable if he knew that a prisoner was in need of immediate medical care and failed to take reasonable action. However, Plaintiff has failed to demonstrate good cause under Federal Rule of Civil Procedure 16(b) for failure to amend within the time specified in the scheduling order. Accordingly, the court will not construe Plaintiff's opposition to the motion for summary judgment as a motion to amend his pleadings. Even if the Court would do so, such an amendment would be futile, because Dr. Brar did summon medical care when presented with evidence of delay in Scott's treatment. Thus, Plaintiff has failed to demonstrate that Dr. Brar was deliberately indifferent to his serious medical needs. Therefore, the Court grants Dr. Brar's motion for summary judgment. B. Anitra Aytman Similarly, Plaintiff asserts Defendant Aytman delayed his treatment, disputing that she ordered an orthopedic evaluation after initially seeing him after the transfer to Corcoran on May 5, 2005. However, the documentary evidence demonstrates that Aytman did order the orthopedic evaluation on May 5, 2005. The evaluation was approved on May 9, 2005, though the record is unclear as to who signed the approval. The orthopedic evaluation did not occur until August 17, 2005, but Plaintiff has not demonstrated that Aytman was responsible for the delay. There is no indication that Aytman had any knowledge of the delay, until possibly August 2, 2005. These facts, without more, do not establish that Plaintiff's Eighth Amendment rights were violated. Similar to Dr. Brar, in opposition, Plaintiff has alleged that Aytman violated California Government Code § 845.6. The Court denies any motion to amend the complaint in opposition to the motion for summary judgment. Plaintiff has not shown good cause for failing to amend the complaint earlier. Thus, the Court grants summary judgment to Defendant Aytman, because Plaintiff has failed to raise genuine issues of material fact that would establish that Aytman violated his constitutional rights. /// /// 8

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IV. Conclusion Accordingly, IT IS HEREBY ORDERED that Plaintiff's Motion for Forty-Five (45) Day Extension of Time to Obtain Oral Deposition (#82) is DENIED; IT IS FURTHER ORDERED that Defendant Arvindra Brar's Motion for Summary Judgment (#78) is GRANTED; IT IS FURTHER ORDERED that Defendant Anitra Aytman's Motion for Summary Judgment (#80) is GRANTED; IT IS FURTHER ORDERED that the Clerk of the Court enter JUDGMENT for Defendants Arvindra Brar and Anitra Aytman and against Plaintiff. DATED this 29th day of March 2010.

_____________________________ Kent J. Dawson United States District Judge

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