Espey v. Deuel Vocational Institution

Filing 92

ORDER signed by Magistrate Judge Kendall J. Newman on 7/1/2015 ORDERING the parties to file the further briefing described in this order, within 14 days.(Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FLOYD ESPEY, 12 13 14 15 16 No. 2:13-cv-2147 TLN KJN P Plaintiff, v. ORDER DEUEL VOCATIONAL INSTITUTION, et al., Defendants. 17 18 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 19 to 42 U.S.C. § 1983. Pending before the court is defendants’ motion for summary judgment. 20 (ECF No. 73.) For the following reasons, further briefing is ordered as to plaintiff’s claim 21 alleging that the decisions by defendants Street and Awatani to change plaintiff’s seizure 22 medication violated the Eighth Amendment. 23 Plaintiff alleges that when he arrived at Deuel Vocational Institution (“DVI”), defendants 24 Street and Awatani changed his seizure medication. (ECF No. 15 at 7.) Plaintiff alleges that 25 prior to being housed at DVI, he had been taking Dilantin, Gabapentin (aka Neurontin), and 26 Phenobarbital for seizures. (Id. at 7.) Plaintiff alleges that defendants improperly discontinued 27 Gabapentin and Phenobarbital, which had been effective in treating his seizures. (Id. at 7-8.) 28 Plaintiff alleges that as result of the discontinuation of these drugs, and the substitution of 1 1 different anti-seizure medication, he suffered a seizure. (Id.) 2 The parties do not dispute that when plaintiff arrived at DVI on April 30, 2013, from the 3 Shasta County Jail, he had prescriptions for Dilantin, Gabapentin and Phenobarbital. The parties 4 do not dispute that Dilantin and Phenobarbital had been prescribed to treat plaintiff’s seizure 5 disorder. While defendants claim that Gabapentin was not previously prescribed for seizures, see 6 ECF No. 89-2 at 2 (declaration of defendant Awatani stating that Gabapentin is not “indicated” 7 for grand mal seizures), defendants previously submitted evidence indicating that Gabapentin can 8 be used to treat seizures. See ECF No. 14-1 at 2) (declaration of Dr. Fox stating that Gabapentin 9 is used to treat both epilepsy and seizures). 10 The parties do not dispute that on May 9, 2013, nine days after plaintiff arrived at DVI, 11 defendant Street tapered off plaintiff’s Phenobarbital prescription, replacing it with Tegretol, and 12 continued plaintiff’s Dilantin prescription. The parties do not dispute that on May 9, 2013, 13 defendant Street also tapered off plaintiff’s Gabapentin prescription. 14 The parties do not dispute that on June 3, 2013, approximately four weeks after plaintiff 15 arrived at DVI, defendant Awatani refused plaintiff’s request to reinstate Gabapentin. The parties 16 do not dispute that on July 8, 2013, approximately nine weeks after plaintiff arrived at DVI, 17 defendant Awatani refused plaintiff’s request to reinstate Phenobarbital and Gabapentin, in part, 18 because they were non-formulary. 19 20 The parties do not dispute that plaintiff suffered seizures on July 14, 2013, and July 23, 2013. Defendants argue that they did not act with deliberate indifference to plaintiff’s serious 21 22 medical needs when they changed plaintiff’s seizure medications because in his first three months 23 at DVI, plaintiff did not report any seizures, which indicated that the prescribed medications were 24 effective and there was no reason to change them or to seek approval for non-formulary drugs.1 25 (ECF No. 89-2 at 2.) The problem with this argument is that the record does not support this 26 argument. For example, when defendant Street made her decision on May 9, 2013, to discontinue 27 28 1 In contrast, in his declaration, Dr. Fox states that DVI staff tapered plaintiff off of Gabapentin and Phenobarbital because of plaintiff’s history of drug abuse. (ECF No. 14-1 at 2.) 2 1 Gabapentin and Phenobarbital, plaintiff had only been at DVI for nine days. Thus, defendant 2 Street had no opportunity to observe the effectiveness of the other drugs. When plaintiff had his 3 seizures in July 2013, he had not been housed at DVI for three months. Defendants offer no other 4 expert evidence regarding the length of time required to gauge the effectiveness of anti-seizure 5 medications. 6 Defendants also argue that their decisions not to prescribe Gabapentin and Phenobarbital 7 were supported by other medical evidence, including a normal EEG and plaintiff’s later diagnosis 8 of pseudo-seizures. Defendants’ summary judgment motion contains no expert evidence 9 describing or explaining pseudo-seizures, or the treatment for this condition. In his previously 10 submitted declaration, Dr. Fox describes pseudo-seizures, but does not state that this condition 11 does not require the prescription of anti-seizure drugs. (ECF No. 14-1 at 4.) 12 Defendants’ summary judgment contains no expert evidence specifically stating that the 13 combinations of anti-seizure drugs plaintiff was prescribed in place of Gabapentin and 14 Phenobarbital, specifically Keppra and Dilantin, were adequate to treat his seizure disorder. 15 Defendants’ declarations do not specifically address the effectiveness of the other drugs 16 compared to Gabapentin and Phenobarbital. In his declaration, Dr. Fox states that Keppra and 17 Dilantin, taken together, are equally as effective in treating plaintiff’s seizure disorder as 18 Gabapentin and Phenobarbital. (Id.) However, from the time plaintiff arrived at DVI to when he 19 suffered his first seizure, plaintiff was not prescribed Keppra and Dilantin in combination. 20 Plaintiff was prescribed Dilantin and Tegretol in combination, and then Keppra and Tegretol in 21 combination. Dr. Fox’s declaration does not address the effectiveness of these combined 22 prescriptions compared to Gabapentin and Phenobarbital. The undersigned is not a medical 23 expert and cannot make these comparisons. 24 In his November 14, 2013 report prepared after plaintiff transferred to Pleasant Valley 25 State Prison (“PVSP”), Dr. Chakatos rejected plaintiff’s request for Gabapentin and 26 Phenobartibal, and found that Dilantin, aka phenytoin, was adequate to treat plaintiff’s seizures. 27 While this statement may address plaintiff’s claim challenging the effectiveness of Dilantin and 28 Tegretol, it does not address the effectiveness of Keppra and Tegretol, which plaintiff was 3 1 prescribed by defendants just days before his first seizure. 2 Because plaintiff had two seizures in July after defendants discontinued the two 3 medications he alleged were effective in treating his seizure disorder, for the reasons discussed 4 above, the undersigned cannot find that defendants have demonstrated that they did not act with 5 deliberate indifference when they replaced Gabapentin and Phenobarbital with other anti-seizure 6 drugs. Expert evidence regarding the effectiveness of the drug combinations prescribed in place 7 of Gabapentin and Phenobarbital is required for the undersigned to evaluate the subjective 8 component of deliberate indifference. Neither party has provided any expert evidence on this 9 point. Accordingly, the parties are directed to file further briefing, including expert evidence such 10 as the declarations by appropriate experts, regarding the effectiveness of the combinations of the 11 anti-seizure drugs defendants’ prescribed in comparison to Gabapentin and Phenobarbital.2 12 Accordingly, IT IS HEREBY ORDERED that within fourteen days of the date of this 13 order, the parties shall file the further briefing described above. 14 Dated: July 1, 2015 15 16 17 18 19 20 Esp2147.fb 21 2 22 23 24 25 26 27 28 Defendants also argue that plaintiff’s refusal to take his anti-seizure medication caused his seizures. The medical records submitted by defendants indicate that from July 11, 2013, until July 14, 2013, when plaintiff had his first seizure, plaintiff may not have been taking any seizure medication. The records submitted by defendants demonstrate that plaintiff consistently refused to take Tegretol after it was prescribed by defendant Street on May 9, 2013. On July 11, 2013, defendant Street replaced Dilantin with Keppra. However, the records before the court indicate that plaintiff did not begin receiving Keppra, aka Levetiracetam, until July 24, 2013. (ECF No. 73-4 at 50). Therefore, plaintiff’s failure to receive Keppra may have contributed to his suffering of seizures in July 2013. For this reason, the undersigned is not persuaded by defendants’ argument that plaintiff caused the seizures by refusing to take his medication. The undersigned also observes that plaintiff does not claim that his failure to receive Keppra caused him to suffer the seizures or that defendants were responsible for his failure to receive Keppra. 4

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