Galik v. Namgalama et al

Filing 77

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 8/27/12 RECOMMENDING that 69 Motion for Summary Judgment be granted, and this case be closed. Referred to Judge William B. Shubb; Objections to F&R due within 21 days.(Dillon, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

KEVIN GALIK,

11

Plaintiff,

12
13

vs.
A. NANGALAMA, et al.,

14

Defendants.

15
16

No. 2: 09-cv-0152 WBS KJN P

FINDINGS & RECOMMENDATIONS
/

I. Introduction

17

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action

18

pursuant to 42 U.S.C. § 1983. On February 7, 2012, all of plaintiff’s claims were dismissed

19

except for the Eighth Amendment claim against defendant Duc alleging inadequate medical care.

20

(Dkt. No. 61.) On March 28, 2012, the undersigned granted defendant Duc’s motion to file a

21

second dispositive motion. (Dkt. No. 66.)

22

Pending before the court is defendant Duc’s summary judgment motion. (Dkt.

23

No. 69.) Defendant Duc originally filed this motion on April 18, 2012. (Id.) On June 12, 2012,

24

plaintiff filed an opposition. (Dkt. No. 73.) On June 15, 2012, defendant filed a reply. (Dkt. No.

25

74.)

26

////
1

1

On July 19, 2012, the court issued plaintiff notice of the requirements for

2

opposing a summary judgment motion pursuant to Woods v. Carey, 2012 WL 2626912 (9th Cir.

3

July 6, 2012). (Dkt. No. 75.) This order gave plaintiff the option of filing a new opposition, a

4

supplemental opposition or a statement that he chooses to rely on his previously filed opposition.

5

(Id.) This order also deemed defendant Duc’s summary judgment motion re-noticed as of the

6

filing date of the order. (Id.)

7
8
9

On August 2, 2012, plaintiff filed a notice stating that he chose to rely on his
previously filed opposition. (Dkt. No. 76.)
After carefully reviewing the record, the undersigned recommends that defendant

10

Duc’s summary judgment motion be granted.

11

II. Legal Standard for Summary Judgment

12

Summary judgment is appropriate when a moving party establishes that the

13

standard set forth in Federal Rule of Civil Procedure 56(c) is met. “The judgment sought should

14

be rendered if . . . there is no genuine issue as to any material fact, and that the movant is

15

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

16
17
18

Under summary judgment practice, the moving party
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.

19
20

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the

21

burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made

22

in reliance solely on the ‘pleadings, depositions, answers to interrogatories, and admissions on

23

file.’” Id. Indeed, summary judgment should be entered, after adequate time for discovery and

24

upon motion, against a party who fails to make a showing sufficient to establish the existence of

25

an element essential to that party’s case, and on which that party will bear the burden of proof at

26

trial. See id. at 322. “[A] complete failure of proof concerning an essential element of the
2

1

nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. In such a

2

circumstance, summary judgment should be granted, “so long as whatever is before the district

3

court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is

4

satisfied.” Id.

5

If the moving party meets its initial responsibility, the burden then shifts to the

6

opposing party to establish that a genuine issue as to any material fact actually exists. See

7

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to

8

establish the existence of such a factual dispute, the opposing party may not rely upon the

9

allegations or denials of its pleadings, but is required to tender evidence of specific facts in the

10

form of affidavits, and/or admissible discovery material, in support of its contention that the

11

dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party

12

must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome

13

of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

14

(1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.

15

1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could

16

return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433,

17

1436 (9th Cir. 1987).

18

In the endeavor to establish the existence of a factual dispute, the opposing party

19

need not establish a material issue of fact conclusively in its favor. It is sufficient that “the

20

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

21

versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 630. Thus, the “purpose of summary

22

judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a

23

genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory

24

committee’s note on 1963 amendments).

25
26

In resolving a summary judgment motion, the court examines the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
3

1

any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson,

2

477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the

3

court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587.

4

Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to

5

produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen

6

Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir.

7

1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply

8

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

9

as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no

10

‘genuine issue for trial.’” Matsushita, 475 U.S. at 586 (citation omitted).

11

III. Legal Standard for Eighth Amendment Claim

12

Generally, deliberate indifference to a serious medical need presents a cognizable

13

claim for a violation of the Eighth Amendment’s prohibition against cruel and unusual

14

punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). According to Farmer v. Brennan, 511

15

U.S. 825, 847 (1994), “deliberate indifference” to a serious medical need exists “if [the prison

16

official] knows that [the] inmate [ ] face[s] a substantial risk of serious harm and disregards that

17

risk by failing to take reasonable measures to abate it.” The deliberate indifference standard “is

18

less stringent in cases involving a prisoner’s medical needs than in other cases involving harm to

19

incarcerated individuals because ‘the State’s responsibility to provide inmates with medical care

20

ordinarily does not conflict with competing administrative concerns.’” McGuckin v. Smith, 974

21

F.2d 1050, 1060 (9th Cir. 1992) (quoting Hudson v. McMillian, 503 U.S. 1, 6 (1992)), overruled

22

on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997).

23

Specifically, a determination of “deliberate indifference” involves two elements: (1) the

24

seriousness of the prisoner’s medical needs; and (2) the nature of the defendant’s responses to

25

those needs. McGuckin, 974 F.2d at 1059.

26

////
4

1

First, a “serious” medical need exists if the failure to treat a prisoner’s condition

2

could result in further significant injury or the “unnecessary and wanton infliction of pain.” Id.

3

(citing Estelle, 429 U.S. at 104). Examples of instances where a prisoner has a “serious” need for

4

medical attention include the existence of an injury that a reasonable doctor or patient would find

5

important and worthy of comment or treatment; the presence of a medical condition that

6

significantly affects an individual’s daily activities; or the existence of chronic and substantial

7

pain. McGuckin, 974 F.2d at 1059-60 (citing Wood v. Housewright, 900 F.2d 1332, 1337-41

8

(9th Cir. 1990)).

9

Second, the nature of a defendant’s responses must be such that the defendant

10

purposefully ignores or fails to respond to a prisoner’s pain or possible medical need in order for

11

“deliberate indifference” to be established. McGuckin, 974 F.2d at 1060. Deliberate

12

indifference may occur when prison officials deny, delay, or intentionally interfere with medical

13

treatment, or may be shown by the way in which prison physicians provide medical care.”

14

Hutchinson v. United States, 838 F.2d 390, 392 (9th Cir. 1988). In order for deliberate

15

indifference to be established, there must first be a purposeful act or failure to act on the part of

16

the defendant and resulting harm. See McGuckin, 974 F.2d at 1060. “A defendant must

17

purposefully ignore or fail to respond to a prisoner’s pain or possible medical need in order for

18

deliberate indifference to be established.” Id. Second, there must be a resulting harm from the

19

defendant’s activities. Id. The needless suffering of pain may be sufficient to demonstrate

20

further harm. Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002).

21

Mere differences of opinion concerning the appropriate treatment cannot be the

22

basis of an Eighth Amendment violation. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996);

23

Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). However, a physician need not fail to

24

treat an inmate altogether in order to violate that inmate’s Eighth Amendment rights. Ortiz v.

25

City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious

26

medical condition, even if some treatment is prescribed, may constitute deliberate indifference in
5

1

a particular case. Id.

2

In order to defeat defendants’ motion for summary judgment, plaintiff must

3

“produce at least some significant probative evidence tending to [show],” T.W. Elec. Serv., 809

4

F.2d at 630, that defendants’ actions, or failures to act, were “in conscious disregard of an

5

excessive risk to plaintiff’s health,” Jackson v. McIntosh, 90 F.3d at 332 (citing Farmer, 511 U.S.

6

at 837).

7

IV. Background

8
9
10

This action is proceeding on the third amended complaint. (Dkt. No. 27.) The
following are plaintiff’s allegations that he received inadequate medical care for several
problems.

11

Back Injury

12

Plaintiff alleges that he did not receive adequate medical care for a back injury he

13

suffered in March 2007. (Dkt. No. 27 at 2.) Plaintiff alleges that between March 5, 2007, and

14

August 1, 2007, he submitted eight CDC 7362 forms requesting to be seen for his back injury.

15

(Id. at 3.) Plaintiff also alleges that on April 30, 2007, prison officials ordered a back brace for

16

him. (Id.) Plaintiff still had not received the back brace on June 7, 2007. (Id. at 4.) On May 15,

17

2007, plaintiff requested an x-ray for his back. (Id.) On June 13, 2007, Gabriel Borges ordered

18

x-rays of plaintiff’s back. (Id.) On July 19, 2007, plaintiff submitted a CDC 7362 form

19

requesting information about the egg crate mattress that had been ordered for his back. (Id. at 4.)

20

On July 26, 2007, plaintiff submitted a CDC 7362 form asking about the x-rays that had been

21

ordered, but not yet taken. (Id.)

22

On August 11, 2007, x-rays were taken of plaintiff’s back. (Id.) On August 13,

23

2007, Katherine Blackwell told plaintiff that his back injury had “healed over” and there was

24

nothing that could be done to remedy the lost mobility and discomfort he would experience. (Id.)

25

Mouth Sores

26

On August 28, 2007, plaintiff submitted a CDC 7362 form requesting to be seen
6

1

by medical staff for mouth sores. (Id. at 5.) On April 30, 2008, plaintiff submitted another CDC

2

7362 form requesting to be seen by medical staff for mouth sores. (Id.) On April 29, 2008,

3

plaintiff was seen by a “doe” defendant for his mouth sores, but no treatment was provided. (Id.)

4

Plaintiff submitted CDC 7362 forms requesting treatment for the sores in his mouth on May 19,

5

2008, and June 5, 2008. (Id. at 5.) On July 9, 2008, Dr. Wedell examined plaintiff, but provided

6

no treatment for his mouth sores. (Id.) On August 5, 2008, plaintiff submitted a CDC 7362 form

7

requesting treatment for his mouth sores. (Id.)

8
9

On September 8, 2008, plaintiff went to the emergency room for treatment for his
mouth sores, but no treatment was provided. (Id. at 6.) The medical staff at the emergency

10

room told plaintiff to notify nursing staff if the sores got any worse. (Id.) On October 10, 2008,

11

plaintiff was seen by defendant “doe” for follow-up on his mouth sores. (Id.) Plaintiff was again

12

instructed to notify nursing staff if his mouth sores got any worse. (Id.)

13

Hepatitis C – Allergic Reaction

14

Plaintiff alleges that on August 5, 2007, he was prescribed treatment for Hepatitis

15

C. (Id.)

16

C medication and other medications he was taking. (Id.)

17

Plaintiff suffered an allergic reaction as a result of the interaction between his Hepatitis

On October 24, 2007, plaintiff submitted a CDC 7362 form seeking treatment for

18

his allergic reaction. (Id.) Between October 21, 2007, and October 27, 2007, plaintiff suffered

19

severe burning, itching, and welts and rashes over a large portion of his body. (Id. at 6-7.) On

20

October 31, 2007, plaintiff was seen by defendant “doe” for treatment for the allergic reaction.

21

(Id. at 6.) Plaintiff alleges that it took approximately eight days for him to be seen by defendant

22

“doe” because this defendant determined that the allergic reaction did not meet emergency

23

criteria. (Id. at 7.)

24

On November 9, 2007, and December 17, 2007, plaintiff submitted CDC 7362

25

forms requesting treatment for the rash caused by the allergic reaction. (Id. at 8.) On December

26

21, 2007, plaintiff was examined by Dr. Sogge who provided no treatment for the rash. (Id.)
7

1

Hepatitis C – Discontinuation of Treatment

2

Plaintiff alleges that on December 25, 2007, his Hepatitis C treatment was

3

discontinued. (Id. at 7.) Plaintiff was informed that the treatment was not “in stock” and they

4

would have to get more. (Id.) Plaintiff alleges that for the Hepatitis C treatment to work, it must

5

be administered on a rigid schedule. (Id.) Plaintiff alleges that had he voluntarily requested to

6

stop the treatment once it began, he would have been subject to disciplinary action. (Id.)

7

On December 31, 2007, plaintiff was denied the last two injections for the

8

Hepatitis C treatment because defendant “doe” did not have enough time to get the injections

9

from the pharmacy. (Id. at 9.)

10

On June 5, 2008, plaintiff submitted a CDC 7362 form requesting to be seen by

11

medical staff regarding the discontinuation of the Hepatitis C treatment and to have his viral

12

levels checked. (Id.) On August 5, 2008, plaintiff submitted another CDC 7362 form requesting

13

testing of his viral levels. (Id.) Plaintiff alleges that there has been no satisfactory treatment for

14

his Hepatitis C since the discontinuation of his treatment. (Id.)

15

Chest Pains

16

On January 5, 2008, plaintiff experienced severe chest pains and notified Housing

17

Unit Custody Staff. (Id.) Defendant “doe” determined that plaintiff’s condition did not warrant

18

emergency care. (Id.) On January 10, 2008, plaintiff submitted a CDC 7362 form requesting to

19

be seen by medical staff for the chest pains. (Id. at 10.) On January 11, 2008, plaintiff was seen

20

at the R.N. line for chest pains and referred to cardiology. (Id.)

21

On January 11, 2008, plaintiff experienced severe chest pains and was taken to the

22

emergency room where he was given an E.K.G. test. (Id. at 9.) Plaintiff received no other

23

treatment. (Id. at 10.)

24

On January 17, 2008, defendant “doe” failed to ducat plaintiff for his medical

25

appointment and instead recorded plaintiff as a “no show” and that he “refused to come to

26

clinic.” (Id.) Plaintiff alleges that he had never been informed of the appointment. (Id.)
8

1

On January 19, 2008, plaintiff was seen by N.P. Bakewell who noted “possible

2

angina.” (Id. at 11.) N.P. Bakewell ordered blood pressure checks and scheduled a follow-up

3

appointment. (Id.)

4
5

On March 12, 2008, plaintiff submitted a CDC 7362 form requesting a cardiology
appointment. (Id.)

6

On September 24, 2008, plaintiff was seen by defendant “doe” in the A Facility

7

triage area regarding recurring chest pains. (Id.) Defendant “doe” referred plaintiff to “TTA for

8

evaluation” and rescheduled plaintiff for the M.O. line. (Id.) Defendant “doe” provided plaintiff

9

with no additional treatment for his chest pains. (Id.)

10

Medication Refills

11

Between January 1, 2007, and October 1, 2008, plaintiff submitted 87 CDC 7362

12

forms regarding medication refills. (Id.) Forty of these forms concerned prescriptions that had

13

expired for which plaintiff had not received refill prescriptions. (Id.) In the amended complaint,

14

plaintiff discusses these requests. (Id. at 11-18.)

15

Defendant Duc’s Involvement

16

Plaintiff alleges that defendants Duc was aware of the problems plaintiff had in

17

obtaining medical care and getting his medications refilled. Plaintiff alleges that he informed

18

defendant Duc of these problems through the inmate appeals process and through personal

19

communications. (Id. at 20.) Plaintiff alleges that defendant Duc took no steps to remedy these

20

problems. (Id.)

21

V. Analysis

22

Defendant Duc moves for summary judgment on grounds that his only

23

involvement in plaintiff’s medical problems described above was his review of two

24

administrative grievances. Defendant argues that his responses to these grievances did not

25

constitute deliberate indifference.

26

////
9

1

Defendant has provided copies of his responses to the two at-issue administrative

2

grievances, H-07-2603 and H-08-0202. (Dkt. No. 69-4 at 13-15, 26-28.) Grievance H-07-2603,

3

dated February 25, 2008, addressed plaintiff’s claims that his Hepatitis C medication weakened

4

his immune system and caused an allergic reaction, his claim regarding the mouth sore, and his

5

claim regarding a delay in receipt of treatment for his back injury. In his response to plaintiff’s

6

second level appeal, defendant Duc began by describing plaintiff’s description of the problem

7

and the action he requested:

8

You contend that you are currently receiving treatment for Hepatitis C and this
medication weakens your immune system and had allergic reactions. You broke
out in hives and were itching all over your body. On October 4, 2007, you saw
the doctor and received Diphenhydramine 50 mg. but it did not stop the itching
and irritation. On October 8, 2007, you wanted to go to the Emergency Room
(ER) but were told that your situation was not an emergency. That night, you
were sent to the ER and received a shot. The following night you received
another shot since your allergic reaction to the medication became worse. You
also state that on September 1, 2007, you had strep throat and were not allowed to
see the doctor, so you went to the ER. You had an MRI three months ago but do
not have the results. Eight months ago, you injured your back and it took two
weeks to see the nurse; two more weeks to see the doctor; and four months to get
an x-ray. You continue to state that you take Fexofenadine 180 mg. for your
allergies, but it always takes 2-3 weeks to get a refill on your prescription.

9
10
11
12
13
14
15

You request 1) that the lack and delay of medical care be corrected; 2) to be able
to see a doctor on a timely basis preferably before going to the ER, hospital, or
die; 3) that injuries should be treated before the injury heals over, not months
later; 4) that all medications be renewed without delay; 5) that if the doctor does
not have time to examine you, they should refer you to the ER without delay; 6)
that if a doctor does not know what a sore or something is, he should refer you to
a specialist in a timely manner without delay, not months later; 7) that all test
results be delivered in a timely manner and should be investigated from higher up
for criminal neglect of medical treatment; 8) to receive your MRI results from
someone qualified; 9) to see a specialist about the sore in your mouth; 10) to see a
specialist for pain management for your back and headaches; 11) to get treatment
and thyroid medications; 12) access to all your medical records and test results –
Olsen Review; 13) not to be denied when you request reasonable tests; and 14)
that doctors communicate without attitude.

16
17
18
19
20
21
22
23

(Dkt. No. 69-4 at 13.)

24

Defendant Duc then went on to describe the response to plaintiff’s grievance at

25

the First Level of Review:

26

////
10

1

1) Your access to medical care has been appropriate. 2) You have been seen in
the Doctor’s Line and by Consultants frequently and as requested. 3) You have
multiple medical problems and you have ongoing treatments and appointments in
different clinics. 4) All your medications are current. 5) You have had access to
the Doctor’s line and even been referred to outside consultations without
limitations. 6) Your records show that you have been referred to GI, Ears, Nose
and Throat, Podiatry. 7) Your lab tests have been discussed in the clinic today.
Most of your imaging studies have been discussed. Other studies are pending. 8)
MRI results have been requested and will be discussed with you by a Medical
Physician. 9) You have been referred to ENT. 10) You are currently getting
treatment for your illness including pain medications. 11) You can get access to
your medical records by requesting an Olsen review. 12 and 13) You have had
access to medical care including medical clinic and referral to consultations. 14)
My communications with patients is based on objectivity, not attitude.

2
3
4
5
6
7
8
9

(Id. at 14.)

10

Defendant Duc then responded to plaintiff’s second level grievance as follows:

11

13

In requesting a Second Level Review, you state that the problems that you have
mentioned in your First Level Appeal have not improved, in fact, you said it got
worse. You also state your First Level Appeal was granted, but nothing has
changed and would like to continue this appeal. You state that the Plata Court
order has been violated and this is still a criminal neglect of medical care.

14

****

15

The issues you mentioned were addressed adequately at the First Level of Review.
Your Unit Health Record was reviewed.

12

16
17
18
19
20
21

You were seen in the clinic on August 28, 2007, September 2, 4 and 13, 2007 to
treat your sore throat and ear infection. You were seen on October 9, 2007 for
chronic care, Hepatitis and Hyperlipidemia. You developed a skin rash on
October 10, 2007 and was initially treated with Benadryl without relief.
Therefore, Solumedrol was administered later on the same day to address the
problem. You were seen the next day by Dr. Nangalama who continued the
treatment with Prednisone and Hydrocortisone cream. He also ordered an Ear
Nose and Throat (ENT) consultation for lesion in your mouth. You were
subsequently seen by Dr. Sogge on November 7, 2007 and December 21, 2007 to
take care of your Hepatitis C. You completed your course of Hepatitis C
treatment on December 31, 2007 as stated by Dr. Sogge.

22
23
24
25
26

You were also seen by Dr. Nangalama on a regular basis on November 15 and 29,
2007; December 20, 2007; and January 17, 2008. It has been noted that you
refused to come to the clinic on January 24, 2008. You were also seen on
February 7, 2008, at the clinic for follow up of Hypertension and Hyperlipidemia.
During the same visit, Nurse Practitioner Bakewell discussed with you your back
pain and its treatment. The result of the MRI of your Lumbar Spine was also
discussed with you. Physical Therapy was ordered. Cardiology and Stress Test
were also ordered to address your history of chest pain.
11

1

In summary, you have been given medical attention in a timely and timely manner
which meets the Standards of Medical Practice.

2
3

(Id. at 14-30.)

4

Grievance H-08-0202, dated April 23, 2008, addressed plaintiff’s claims alleging

5

delay in receipt of care for chest pain and Hepatitis C. In his response to plaintiff’s second level

6

appeal, defendant Duc began by describing plaintiff’s description of the problem and the action

7

he requested:

8

You contend that for nine (9) days you had chest pain but the staff in the
Emergency Room (ER) were too busy to provide medical care. On January 7,
2008, the chest pain worsened so you were taken to the ER. You feel that your
life is in danger and since you did not receive medical attention immediately, you
feel that this is a form of medical criminal. To this date, you still have not seen a
doctor.

9
10
11

You also state that your last two shots for Hepatitis C were supposed to be on
December 27, 2007 but you did not receive it. The medical staff informed you
that your in between shots were too long and so you did not get the shot. You feel
that this is a neglect of medical care. On January 11 and 12, 2008 your EKG
results were normal. You state that these were all good but you should have been
able to talk to a doctor sooner since now you experience constant chest pain. This
is criminal neglect of medical care.

12
13
14
15

Action Requested: 1) That the lack of and the delay of medical care be corrected
so you could get proper medical care; 2) To be seen by a doctor in a timely
manner; 3) That injury or chest pains be checked and be treated immediately, not
after the problem or injury has cleared up; 4) That if the doctors do not have time
to see you, they should refer you to the ER without delay; 5) The medical staff
should always call the doctor in your case, they did not; 6) The doctor should refer
you to specialist if they do not know for sure what is causing your chest pain; 7)
Tests should be done right away; 8) For an Olsen Review; 9) Medical staff
coordinate without the attitude; 10) That medical staff should also be written up
when they do not do their job or be reprimanded and put into their personnel file;
11) To see a heart specialist; 12) To get a heart stress test; 13) To have your chest
checked and tested by an expert; 14) Pain management.

16
17
18
19
20
21
22
23

(Id. at 26.)

24

////

25

////

26

////
12

1

Defendant Duc then described the response to plaintiff’s first level grievance:

2

Your appeal was partially granted at the FLR. The first level reviewer responded
as follows:

3
Your Unit Health Record (UHR) was reviewed and showed that you have been
seen in the clinic multiple times in the past three (3) months. On January 17,
2008, you were seen in the Medial Officer’s (MO) Line and prescribed Nitro 0.4
mg., one tablet as needed for chest pain; Metoprol 50 mg. daily; ECASA 81 mg.
one tablet daily. A referral to the cardiologist was initiated and a chest x-ray was
also ordered.

4
5
6
7

On January 24, 2008, you were seen again in the MO Line and prescribed Prilosec
20 mg., 1 tablet everyday; Naproxen 250 mg. one tablet twice a day as needed for
pain; Tramadol 50 mg. one tablet three times a day. You were seen again on
February 7, 2008 and a double mattress chrono was issued. Laboratory work was
also requested.

8
9
10

In summary, you have had unlimited access to medical clinic and received
appropriate medical care including referral to the Specialty Clinics, Physical
Therapy, ENT, Cardiology and GI Specialist. You have had Imaging Studies,
MRI, Lab Tests, EKG and appropriate medications were prescribed. Distressed
patients are sent into the Emergency Room for evaluation, treatment and care. A
call to the physician is placed for all emergencies.

11
12
13

As for our request for an Olsen Review, you need to submit a GA-22 to the
Medical Records Department. Your request to have the medical staff
reprimanded is unfounded, and therefore denied.

14
15
16

(Id. at 27.)

17

Defendant Duc then responded to plaintiff’s second level grievance as follows:

18

In requesting a Second Level Review, you state that it took approximately 30 days
to see a doctor for your chest pain. You still have not received an Olsen Review
after submitting two requests. Someone split the two pages of your 602 appeals
by adding another page in between. There is still a lack of delay in diagnosis,
treatment and prognosis. All this is based on saving money, looking good, not
healthcare. You also state that this is still criminal neglect of medical care or
treatment.

19
20
21
22
23
24
25

Second Level Response: 1) Your Unit Health Record was reviewed. You were
seen on December 20, 2007 by Dr. Nangalama and on December 21, 2007 by Dr.
Sogge, the GI specialist. Thereafter, you were seen at the clinic on January 7,
2008. You were seen on January 11, 2008 after you filed a 7362 form for chest
pain on January 10, 2008. You were then seen by Dr. Nangalama for this
complaint on January 17, 2008. You were called to the clinic to be seen again on
January 24, 2008; however, you refused to come to the clinic. You were seen
again on January 29, February 21, March 6, March 13 and March 20, 2008.

26
13

1

[1)]From the review above, you were seen within one week after your complaint
of chest pain and not 30 days later as you claimed. 2) Nobody split the two pages
of your 602 at the First Level of Review. 3) There is no delay in diagnosis,
treatment, prognosis or attempt at saving money, and 4) there is no criminal
neglect of medical care or treatment.

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

(Id. at 28.)
Defendant has also provided the declaration of defendant Duc which summarizes
his involvement in the grievances described above:
1. I am a medical doctor and have been licensed to practice medicine in the State
of California since 1977. I have been employed by the California Department of
Corrections and Rehabilitation (“CDCR”) since September 2004. I have been a
Physician and Surgeon at California State Prison at Sacramento, California
(“CSP-Sac”) since September 2004. As a Physician and Surgeon, I am generally
responsible for providing medical care to inmates in the facility clinics. I
examine, interview, diagnose, and treat medical and psychiatric conditions of
inmates. As part of my duties at CSP-Sac, I conduct second level reviews of
inmate 602 appeals. By virtue of my education, training, experience, and
employment, I have personal knowledge of and am competent to testify as to the
matters set forth in this declaration.
2. My only involvement with Mr. Galik’s treatment for his back injury, mouth
sores, Hepatitis C, and chest pains during the relevant time period is limited to my
second level review of two 602 Appeals filed by Mr. Galik regarding the same.
3. Mr. Galik’s first relevant 602 Appeal was filed on November 19, 2007, Log
No. SAC H-07-2603. Mr. Galik contended the Hepatitis C medication weakened
his immune system and caused an allergic reaction. He also complained of a
mouth sore and demanded a consultation with a specialist. He complained about
a delay in treatment for a back injury. He demanded his MRI results. The 602
demanded more timely medical treatment. I conducted the second level review.

18
19

4. During my second level review of the first relevant 602 Appeal filed by Mr.
Galik, Log No. SAC H-07-2603, I examined Mr. Galik’s Unit Health Record and
related documents. I noted Mr. Galik’s medical treatment as follows:

20
21

a. Mr. Galik was seen in the clinic on August 28, 2007 and September 2, 4 and
13, 2007 for treatment of his sore throat and ear infection.

22

b. Mr. Galik received treatment for chronic care, HCV, and Hyperlipidemia on
October 9, 2007.

23
24

c. Mr. Galik developed a skin rash on October 10, 2007. It was initially treated
with Benadryl without relief. Therefore, Solumedrol was administered later on
the same day to address the problem.

25
26

d. Mr. Galik was seen by Dr. Nangalama on October 11, 2007. Dr. Nangalama
continued his treatment with Prednisone and Hydrocortisone cream. He also
14

1

ordered an Ear, Nose and Throat consultation for a lesion (mouth sore) in Mr.
Galik’s mouth.

2
3

e. Mr. Galik was subsequently seen by Dr. Sogge on November 7, 2007 and
December 21, 2007 for Mr. Galik’s HCV.

4

f. Mr. Galik completed the course of HCV treatments on December 31, 2007.

5

g. Mr. Galik was seen on a regular basis by Dr. Nangalama on November 15 and
29, 2007, December 20, 2007 and January 17, 2008.

6
7
8

h. Mr. Galik was treated at the clinic for follow-up of Hypertension and
Hyperlipidemia on February 7, 2008. During the visit, Nurse Practitioner
Bakewell discussed Mr. Galik’s back and pain treatments, and results of his MRI
scan on the lumbar with him. Physical therapy, cardiology and stress tests were
ordered to address Mr. Galik’s history of chest pain.

9
10

Based on the medical treatment noted above, I concluded that the [sic] Mr. Galik
received medical treatment in a timely and adequate manner meeting the standards
of medical practice.

11
12

5. Mr. Galik’s second relevant 602 Appeal was filed on January 30, 2008, Log
No. SAC H-08-0202. He complained of delay in medical care for his chest pain
and Hepatitis C.

13
14

6. During my second level review of the second 602 Appeal filed by Mr. Galik,
Log No. SAC H-08-0202, I examined Mr. Galik’s Unit Health Record and related
documents. I noted Mr. Galik’s medical treatment as follows:

15
a. Mr. Galik was treated by Dr. Nangalama on December 20, 2007.
16
b. Mr. Galik was treated by Dr. Sogge, GI specialist, on December 21, 2007.
17
c. Mr. Galik was seen at the clinic on January 7, 2008.
18
19
20
21

d. Mr. Galik was seen again on January 8, 2008, after filing a 7362 form for chest
pain on January 10, 2008. He was again referred by Dr. Nangalama for the same
complaint on January 17, 2008. A referral to the cardiologist was initiated and a
chest x-ray was also ordered.
e. Mr. Galik was called to the clinic to be seen again on January 24, 2008, but he
refused to report to the clinic.

22
23
24

f. Mr. Galik was seen again on January 29, February 21, March 6, March 13 and
March 20, 2008.

25

g. Mr. Galik has had unlimited access to medical clinic. He was referred to the
Speciality Clinics, Physical Therapy, ENT, Cardiology, and GI Specialist. He had
imaging studies, MRI, lab tests, EKG and appropriate medications prescribed.

26

Based on the medical treatment noted above, I concluded that Mr. Galik was seen
15

1
2
3
4
5
6
7
8
9
10

within one week of his complaint of chest pain, not 30 days later as Mr. Galik
claimed. I also concluded that there was no delay in diagnosis, treatment, or
prognosis. Thus, there was not criminal neglect of medical care or treatment.
7. Based on my review of Mr. Galik’s medical records, the medical care provided
to Mr. Galik has been appropriate and consistent with his symptoms and medical
presentation. In my medical opinion, the medical records show that his medical
providers evaluated, treated, and otherwise competently assessed Mr. Galik’s
condition and recommended treatment consistent with Mr.Galik’s clinical
presentation. The treatment provided by his medical providers appeared to be in
compliance with the standard of care.
(Dkt. No. 69-2 at 1-4.)
Defendant argues that his responses to plaintiff’s grievances, set forth above, did
not constitute deliberate indifference to plaintiff’s serious medical needs.
At the outset, the undersigned observes that in his opposition to the pending

11

motion, plaintiff states that his claim regarding his back injury is his “substantive” Eighth

12

Amendment claim in this action. (Dkt. No. 73 at 23.) Plaintiff alleges that the only reason he

13

raised the other medical issues was to demonstrate a pattern of medical neglect. (Id.) In fact,

14

plaintiff’s opposition addresses only his claim regarding lack of treatment for his back injury.

15

Based on these statements, the undersigned finds that plaintiff is not pursuing these other claims.

16

Accordingly, these claims are dismissed. Fed. R. Civ. P. 41(a).

17

The undersigned also observes that defendant’s summary judgment motion does

18

not address plaintiff’s claim that defendant improperly denied his administrative appeals alleging

19

his inability to obtain medication refills. The findings and recommendations addressing

20

defendant’s first summary judgment motion set forth this claim. Considering that defendant was

21

granted permission to file a second dispositive motion, his failure to address this claim is

22

puzzling. However, as noted above, because plaintiff is not pursuing his claim alleging an

23

inability to obtain prescription refills, defendant’s failure to address this claim is excused.

24

In his order adopting the findings and recommendations addressing defendant’s

25

first dispositive motion, the Honorable William B. Shubb set forth the relevant legal standards

26

for reviewing plaintiff’s claims against defendant Duc:
16

1

While “prison administrators” can be “liable for deliberate indifference when they
knowingly fail to respond to an inmate’s request for help,” Jett1, 439 F.3d at 1098,
this theory of liability is viable only if the administrator is reviewing a present
need for medical care and, in ignoring the need, acts in deliberate indifference to
that need.

2
3
4

If, on the other hand, an administrator is reviewing only past conduct by
subordinate that amounted to deliberate indifference to a serious medical need but
that cannot be remedied at the time of the administrator’s review, the
administrator could not be said to be acting in deliberate indifference to that need.
In such a case, however, the prisoner could still have a viable claim against the
administrator based on the administrator’s “action or inaction in the training,
supervision, or control of his subordinates; for his acquiescence in the
constitutional deprivation; or for his conduct that showed a reckless or callous
indifference to the rights of others” so long as there is “a sufficient causal
connection between the supervisor’s wrongful conduct and the constitutional
violation.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Larez v.
City of Los Angeles, 946 F.2d 630 (9th Cir. 1991); Hansen v. Black, 885 F.2d
642, 646 (9th Cir. 1989) (internal quotation marks omitted); see Jones v. County
of Sacramento, No. CIV 2: 09-1025 WBS DAD, 2010 WL 2843409, * 7 (E.D.
Cal. July 20, 2010) (discussing Ninth Circuit cases involving supervisors’ review
of subordinates allegedly unconstitutional conduct and concluding that “the Ninth
Circuit has found a supervisor’s conduct sufficient to establish the requisite causal
link only when the supervisor engaged in at least some type of conduct before the
unconstitutional incident and the supervisor knew or should have known that his
conduct could cause the constitutional violation the plaintiff has suffered”
(emphasis in original)).

5
6
7
8
9
10
11
12
13
14
15

(Dkt. No. 61 at 3-4.)

16

Turning to the merits of the pending motion, in his opposition plaintiff suggests

17

that defendant Duc was aware of the allegedly inadequate medical care he received for his back

18

other than through his review of administrative grievances. As noted above, in the third amended

19

complaint plaintiff alleges that he made defendant aware of his medical problems through

20

administrative appeals and personal communications. The third amended complaint does not

21

describe these personal communications. In his declaration, defendant Duc states that his only

22

involvement in plaintiff’s medical care regarding the medical issues raised in the third amended

23

complaint was through his review of administrative appeals.

24

////

25
26

1

Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
17

1

In his opposition, plaintiff alleges that defendant Duc was a member of the

2

rotating medical staff team treating his back pain during the seven months after he injured his

3

back. (Dkt. No. 73 at 4.) Plaintiff does not describe any personal communications he had with

4

defendant Duc during that time regarding allegedly inadequate medical care for his back injury.

5

For these reasons, the undersigned finds that plaintiff has not demonstrated that defendant Duc

6

was aware of the allegedly inadequate medical care he received for his back injury other than

7

through defendant’s review of the two administrative grievances discussed above. Accordingly,

8

the undersigned considers whether defendant’s involvement in these grievances demonstrated

9

deliberate indifference.

10

Grievance H-07-2603 addressed plaintiff’s claims regarding treatment of his back

11

injury. In this grievance, plaintiff claimed that he had not been informed of the results of his

12

MRI. As discussed above, in the third amended complaint, plaintiff claims that on August 13,

13

2007, Katherine Blackwell told him that his back injury had “healed over” and there was nothing

14

to be done to remedy the lost mobility and discomfort he would experience. (Dkt. No. 27 at 4.)

15

In his opposition, plaintiff claims that he broke his back. (Dkt. No. 73 at 9.) Plaintiff contends

16

that in his administrative grievance, he informed defendant Duc that he wanted medical treatment

17

for his back before it healed over. (Id. at 7.) Plaintiff claims that he informed defendant that he

18

had not received an MRI of his back until five months after the injury and had not been informed

19

of the results three months after the MRI was performed. (Id.) Attached to plaintiff’s opposition

20

are medical records which plaintiff claims support his claims.

21

Attached as an exhibit to plaintiff’s opposition is a report dated June 13, 2007,

22

titled “Examination: Thoraculumbar Spine 2 VWS.” (Id. at 16.) This report concludes, “Mild

23

compression fractures of T7 and T8 which appear old. A superimposed acute fracture could not

24

be excluded. If clinically indicated, an MRI could be obtained.” (Id. at 16.)

25
26

Attached as an exhibit is the result of an MRI on plaintiff’s lumbar spine on
August 13, 2007. (Dkt. No. 73 at 14.) This report does not state that plaintiff had a broken back.
18

1

Instead, the section of the report titled “Impression” stated, “Old, moderate inferior end-plate

2

wedge compression deformities of T7 and T8. Mild spondylitic bulge at T7-8 and T8-9. No

3

neurologic compromise is identified. No herniated nucleus is seen.” (Id. at 15.)

4

Also attached is a report dated August 11, 2008, titled “Cervical Spine, 3 VWS.”

5

(Id. at 13.) This report concludes, “Extensive uncovertebral hypertrophic changes. Loss of disc

6

height and osteophystosis seen at C5-C6. Need for further assessment by MRI of the cervical

7

spine should be judged on a clinical basis.” (Id.)

8

At the time defendant Duc issued his response to grievance H-07-2603 on

9

February 25, 2008, plaintiff had received an MRI of his back. In his response to this grievance,

10

defendant Duc stated that on February 7, 2008, Nurse Practitioner Bakewell discussed the results

11

of the MRI with plaintiff. As indicated above, the MRI report does not state that plaintiff had a

12

broken or fractured back. There is no evidence in the record that at the time defendant Duc

13

reviewed grievance H-07-2603 that plaintiff’s back required further treatment. While the August

14

11, 2008 report from the examination of plaintiff’s cervical spine called for possibly another MRI

15

of plaintiff’s back, this report was issued after defendant Duc addressed the two administrative

16

grievances discussed above.

17

At best, in grievance H-07-2603, plaintiff asked defendant Duc to review alleged

18

past misconduct in connection with the treatment of his back injury. The record contains no

19

evidence linking Duc to any alleged wrongful conduct by other prison officials regarding the

20

treatment of plaintiff’s back injury. Accordingly, defendant Duc should be granted summary

21

judgment as to this claim.

22

Although plaintiff abandoned his other claims, the undersigned observes that

23

defendant Duc’s responses to plaintiff’s appeals regarding these issues do not demonstrate

24

deliberate indifference. In his complaint, plaintiff alleges that he suffered mouth sores beginning

25

in August 2007, which continued to bother him through October 2008. In his February 25, 2008

26

responses to appeal no. H-07-2603, defendant Duc stated that plaintiff had been referred for an
19

1

Ear, Nose and Throat consultation for the lesion in his mouth. This response does not

2

demonstrate deliberate indifference to plaintiff’s need for medical care for his mouth lesion.

3

Rather, this response indicates that plaintiff was going to receive treatment for this condition.

4

At the time defendant Duc reviewed grievance H-07-2603 on February 25, 2008,

5

plaintiff had finished his hepatitis C treatment and the rash allegedly caused by this treatment had

6

been successfully treated. For these reasons, defendant Duc’s response to plaintiff’s grievance

7

complaining about the treatment he received for this rash did not constitute deliberate

8

indifference.

9

In his responses to grievance H-07-2603, defendant Duc informed plaintiff that he

10

had, in fact, completed his hepatitis C treatment on December 31, 2007, as stated by Dr. Sogge.

11

After reviewing plaintiff’s records, defendant Duc concluded that plaintiff’s claim that he did not

12

receive his final hepatitis C injections was not correct. Defendant Duc’s response to plaintiff’s

13

appeal alleging that he was denied his final hepatitis treatment did not constitute deliberate

14

indifference.

15

In his response to appeal H-08-0202, defendant Duc described plaintiff’s

16

treatment for chest pain. Defendant Duc also refuted plaintiff’s claim that it took 30 days for

17

plaintiff to see a doctor for chest pains. Because plaintiff’s medical records, as described by

18

defendant Duc in his response to plaintiff’s appeal, indicated that plaintiff had received timely

19

care for his chest pains, including medication, a referral to a cardiologist and a chest x-ray,

20

defendant Duc’s denial of the grievance raising this claim did not constitute deliberate

21

indifference.

22

For the reasons discussed above, defendant Duc should be granted summary

23

judgment. Defendant Duc also argues that he is entitled to qualified immunity. Because the

24

undersigned finds that defendant Duc is entitled to summary judgment as to the merits of

25

plaintiff’s Eighth Amendment claim, the issue of qualified immunity need not be further

26

////
20

1

addressed.2

2

Accordingly, IT IS HEREBY RECOMMENDED that defendant Duc’s summary

3 judgment motion be granted, and this case be closed.
4

These findings and recommendations are submitted to the United States District

5 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty6 one days after being served with these findings and recommendations, any party may file written
7 objections with the court and serve a copy on all parties. Such a document should be captioned
8 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
9 objections shall be filed and served within fourteen days after service of the objections. The
10 parties are advised that failure to file objections within the specified time may waive the right to
11 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
12 DATED: August 27, 2012
13
14

_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

15
16 gal152.sj(3)
17
18
19
20
21
22
23
24
25
26

2

“The doctrine of qualified immunity protects government officials from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555
U.S. 223, 231, 129 S. Ct. 808, 815 (2009). The defendant bears the burden of establishing
qualified immunity. Crawford-El v. Britton, 523 U.S. 574, 586-87 (1998).
The Supreme Court in Saucier v. Katz, 533 U.S. 194 (2001), outlined a two-step
approach to qualified immunity. The first step requires the court to ask whether “[t]aken in the
light most favorable to the party asserting the injury, do the facts alleged show the officer's
conduct violated a constitutional right?” Saucier, 533 U.S. at 201. If the answer to the first
inquiry is yes, the second inquiry is whether the right was clearly established: in other words,
“whether it would be clear to a reasonable officer that his conduct was unlawful in the situation
he confronted.” Saucier, 533 U.S. at 201.
21