Mazza v. Austin et al

Filing 165

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 06/23/20 RECOMMENDING that defendants' motions for summary judgment 143 , 144 be granted. Judgment be entered for defendants Lipson, McCue, Kuersten, Austin and Tan; and the Clerk of Court be directed to close this case. Motions 143 , 144 referred to Judge Troy L. Nunley. Objections due within 21 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRYAN MAZZA,

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No. 2:14-cv-0874 TLN AC P

Plaintiff,
v.
L. AUSTIN, et al.,

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FINDINGS AND RECOMMENDATIONS
Defendants.

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I.

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Plaintiff Bryan Mazza is a state prisoner incarcerated at California State Prison Solano

Introduction

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(CSP-SOL), under the authority of the California Department of Corrections and Rehabilitation

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(CDCR). Plaintiff proceeds pro se and in forma pauperis with his “Operative Complaint &

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Addendum” (“complaint”) as consolidated by the court on October 28, 2015. See ECF No. 38.

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Plaintiff pursues Eighth Amendment claims under 42 U.S.C. § 1983 against defendants Lipson,

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McCue, Kuersten, Austin and Tan on the ground they were deliberately indifferent to plaintiff’s

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serious medical needs.

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Currently pending are motions for summary judgment filed separately by defendant Tan,

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ECF No. 143, and the remaining defendants Lipson, McCue, Kuersten and Austin, ECF No. 144.

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These matters are referred to the undersigned United States Magistrate Judge pursuant to 28

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U.S.C. § 636(b)(1)(B) and Local Rule 302(c). For the reasons set forth below, the undersigned

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recommends that both motions be granted.
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II.

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This action proceeds on plaintiff’s Eighth Amendment claims that defendants were

Background

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deliberately indifferent to his serious medical needs when they tapered, discontinued and/or

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refused to prescribe morphine to treat plaintiff’s chronic pain. See Compl., ECF No. 38 at 3-8,

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132-33.1 Plaintiff contends that he is “is a chronic care, high risk patient who suffers from several

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orthopedic maladies: degenerative joint disease in both hips; arthritis in most of his major primary

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mover joints; arthritis in lumbar spine; fractures, bone spurring, and ligament tears in both

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elbows.” Id. at 3-4 (with minor edits). Plaintiff alleges that he requires effective pain medication

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to function on a daily basis. Plaintiff contends that defendants’ actions were inconsistent with the

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recommendations of his specialists, neurologist Dr. Mitchell and rheumatologist Dr. McAlpine.

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As a result, plaintiff alleges that he experiences debilitating pain and depression and is unable to

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participate in rehabilitative physical activities. Id. at 7-8. Plaintiff seeks compensatory and

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punitive damages and injunctive relief. Id. at 133.

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III.

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Legal Standards
A.

Motions for Summary Judgment

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Summary judgment is appropriate when the moving party “shows that there is no genuine

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

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Civ. P. 56(a). Under summary judgment practice, the moving party “initially bears the burden of

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proving the absence of a genuine issue of material fact.” Nursing Home Pension Fund, Local 144

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v. Oracle Corp. (In re Oracle Corp. Securities Litigation), 627 F.3d 376, 387 (9th Cir. 2010)

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(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish

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this by “citing to particular parts of materials in the record, including depositions, documents,

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electronically stored information, affidavits or declarations, stipulations (including those made for

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purposes of the motion only), admission, interrogatory answers, or other materials” or by showing

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that such materials “do not establish the absence or presence of a genuine dispute, or that the

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Page references to filed documents reflect the electronic pagination accorded by the court’s
Case Management/Electronic Case Filing (CM/ECF) system, not the original pagination of the
documents.
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adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56

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(c)(1)(A), (B).

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When the non-moving party bears the burden of proof at trial, “the moving party need

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only prove that there is an absence of evidence to support the nonmoving party’s case.” Oracle

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Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B).

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Indeed, summary judgment should be entered, after adequate time for discovery and upon motion,

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against a party who fails to make a showing sufficient to establish the existence of an element

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essential to that party’s case, and on which that party will bear the burden of proof at trial. See

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Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the

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

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

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court demonstrates that the standard for entry of summary judgment ... is satisfied.” Id. at 323.

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

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party to establish that a genuine issue as to any material fact actually does exist. See Matsushita

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

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existence of this factual dispute, the opposing party may not rely upon the allegations or denials

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of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or

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admissible discovery material, in support of its contention that the dispute exists. See Fed. R.

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Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. Moreover, “[a] [p]laintiff’s verified complaint

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may be considered as an affidavit in opposition to summary judgment if it is based on personal

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knowledge and sets forth specific facts admissible in evidence.” Lopez v. Smith, 203 F.3d 1122,

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1132 n.14 (9th Cir. 2000) (en banc).2

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In addition, in considering a dispositive motion or opposition thereto in the case of a pro se
plaintiff, the court does not require formal authentication of the exhibits attached to plaintiff’s
verified complaint or opposition. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003)
(evidence which could be made admissible at trial may be considered on summary judgment); see
also Aholelei v. Hawaii Dept. of Public Safety, 220 Fed. Appx. 670, 672 (9th Cir. 2007) (district
court abused its discretion in not considering plaintiff’s evidence at summary judgment, “which
consisted primarily of litigation and administrative documents involving another prison and
letters from other prisoners” which evidence could be made admissible at trial through the other
inmates’ testimony at trial); see Ninth Circuit Rule 36-3 (unpublished Ninth Circuit decisions
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The opposing party must demonstrate that the fact in contention is material, i.e., a fact that

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might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Assoc., 809

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F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a

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reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers,

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Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

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In applying these rules, district courts must “construe liberally motion papers and

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pleadings filed by pro se inmates and … avoid applying summary judgment rules strictly.”

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Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). “This rule exempts pro se inmates from

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strict compliance with the summary judgment rules, but it does not exempt them from all

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compliance.” Soto v. Sweetman, 882 F.3d 865, 872 (9th Cir.) (original emphasis) (inmates

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remain obliged “to identify or submit some competent evidence” supporting their claims), cert.

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denied, 139 S. Ct. 480 (2018).

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B.

Deliberate Indifference to Serious Medical Needs

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“[D]eliberate indifference to serious medical needs of prisoners constitutes the

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unnecessary and wanton infliction of pain, proscribed by the Eighth Amendment. This is true

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whether the indifference is manifested by prison doctors in their response to the prisoner’s needs

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or by prison guards in intentionally denying or delaying access to medical care or intentionally

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interfering with the treatment once prescribed.” Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)

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(internal citations, punctuation and quotation marks omitted). To prevail, plaintiff must show

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both that his medical needs were objectively serious, and that defendant possessed a sufficiently

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culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991).

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“A ‘serious’ medical need exists if the failure to treat a prisoner’s condition could result in

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further significant injury or the “unnecessary and wanton infliction of pain.’” McGuckin v.

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Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (quoting Estelle, 429 U.S. at 104), overruled on other

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grounds by WMX Techs. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). Examples of

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may be cited not for precedent but to indicate how the Court of Appeals may apply existing
precedent).
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a serious medical need include “[t]he existence of an injury that a reasonable doctor or patient

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

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

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substantial pain.” Id. at 1059-60 (citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir.

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1990); Hunt v. Dental Dep’t, 865 F.2d 198, 200-01 (9th Cir. 1989)).

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The requisite state of mind is “deliberate indifference.” Hudson v. McMillian, 503 U.S. 1,

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5 (1992) (citation omitted). This requires a showing greater than medical malpractice,

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negligence, or civil recklessness. Farmer v. Brennan, 511 U.S. 825, 837 & n.5 (1994); Wood,

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900 F.2d at 1334. To establish deliberate indifference, a prisoner must demonstrate that the

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defendant “kn[ew] of and disregard[ed] an excessive risk to inmate health or safety; the official

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must both be aware of the facts from which the inference could be drawn that a substantial risk of

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serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. It is not

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enough that a reasonable person would have known of the risk or that a defendant should have

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known of the risk. Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). Rather, deliberate

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indifference is established only where the defendant subjectively knows of a risk and deliberately

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disregards it, causing harm. Id.; Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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Whether a defendant had requisite knowledge of a substantial risk of harm is a question of

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fact. “[A] factfinder may conclude that a prison official knew of a substantial risk from the very

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fact that the risk was obvious. The inference of knowledge from an obvious risk has been

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described by the Supreme Court as a rebuttable presumption, and thus prison officials bear the

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burden of proving ignorance of an obvious risk. . . . [D]efendants cannot escape liability by

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virtue of their having turned a blind eye to facts or inferences strongly suspected to be true . . . .”

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Coleman v. Wilson, 912 F. Supp. 1282, 1316 (E.D. Cal. 1995) (citing Farmer, 511 U.S. at 842-

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43) (internal quotation marks omitted).

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When the risk is not obvious, the requisite knowledge may still be inferred by evidence

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showing that the defendant refused to verify underlying facts or declined to confirm inferences

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that he strongly suspected to be true. Farmer, 511 U.S. at 842. Prisons officials may avoid

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liability by demonstrating “that they did not know of the underlying facts indicating a sufficiently
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substantial danger and that they were therefore unaware of a danger, or that they knew the

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underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was

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insubstantial or nonexistent.” Id. at 844; see also Wilson, 501 U.S. at 298.

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IV.

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Evidentiary Matters
A.

Request for Judicial Notice of Plaintiff’s Criminal History

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Defendants ask this court to take judicial notice of superior court records documenting

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plaintiff’s criminal history. ECF No. 145. Plaintiff has not expressly opposed this request nor

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disputed the authenticity of the proffered documents. Under Federal Rule of Evidence 201, this

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Court may take judicial notice of matters of public record. See United States v. Wilson, 631 F.2d

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118, 119 (9th Cir. 1980) (“a court may take judicial notice of its own records in other cases, as

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well as the records of an inferior court in other cases.”). This authority is limited by the

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requirement that the subject records be “directly related” to the matters at issue in the case at bar.

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U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.

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1992).

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The clear impetus for defendants’ request lies in plaintiff’s repeated disavowals of

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substance abuse at his February 5, 2019 deposition. The deposition transcript is replete with

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plaintiff’s denials and lack of recollection, and statements that his criminal history is irrelevant to

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this civil action. See generally ECF No. 146. Defendants argue that the proffered records

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“chronicle Mazza’s decades-long struggle with substance abuse” and thereby “undermine

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Mazza’s core allegation of misconduct in this action and directly inform the determination of

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whether the decision to discontinue his morphine prescription met the community standard of

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care.” ECF No. 145 at1-2.

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Plaintiff’s criminal history may not be relied on to find that plaintiff’s deposition

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testimony was false or misleading. “Credibility determinations, the weighing of the evidence,

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and the drawing of legitimate inferences from the facts are jury functions, not those of a judge,

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whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of

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the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”

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Anderson, 477 U.S. at 255 (emphasis added) (citation omitted). Evidence of plaintiff’s prior
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conduct may not be used to prove that he acted the same way in prison, as a matter of character.

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See Fed. R. Evid. 404(b). Whether defendant medical providers were deliberately indifferent to

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plaintiff’s serious medical needs depends on whether their chosen courses of treatment were

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medically acceptable in light of the risks and benefits to plaintiff as then known to defendants.

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Toguchi, 391 F.3d at 1057; Jett, 439 F.3d at 1096. Accordingly, evidence of plaintiff’s substance

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abuse history—including evidence that corroborates statements in prison plaintiff’s medical

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records, upon which defendants relied to reach their treatment decisions—may be relevant in

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determining the appropriateness of those decisions.

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Plaintiff’s entire criminal history is not “directly related” to the issues in this case.

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Borneo, 971 F.2d at 248. Only plaintiff’s instant commitment offenses and his subsequent

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challenge to his three-strikes sentence will be considered, and only for the limited purpose noted.

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Therefore, the court grants defendants’ request to take judicial notice of Defendants’ Exhibit A

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and grants in part their request to judicially notice Defendants’ Exhibit B. The court denies the

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request as to Defendants’ Exhibits C through F.

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Defendants’ Exhibit A contains an Abstract of Judgment, Minute Order, and Information

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from Napa County Superior Court Case No. CR125195, which reflect plaintiff’s June 2006 jury

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conviction for, in pertinent part, possession of a controlled substance (methamphetamine) and his

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current 25-year to life sentence under California’s three-strikes law. ECF No. 145 at 7-15.

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Defendants’ Exhibit B contains an attorney-prepared motion to dismiss plaintiff’s three-

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strikes sentence filed September 2009 in the Contra Costa County Superior Court, Case No. 5-

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061526-0. ECF No. 145 at 16-33. The motion states in pertinent part that plaintiff’s “current

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convictions [] stem without question from an addiction to controlled substances, most notably

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cocaine and methamphetamine.” Id. at 21. The court denies defendants’ request to judicially

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notice two attachments to the motion, a June 1989 psychiatric evaluation and a March 2006

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psychological evaluation, id. at 34-44.

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B.

Prison Yard Surveillance Video

Defendants have lodged a CD reflecting footage from a video-surveillance camera that
shows plaintiff in CSP-SOL’s Facility B exercise yard (previously “Yard 2”) on July 30, 2015 at
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7:50 p.m. CSP-SOL Sergeant C. Medina filed a declaration authenticating the footage, which he

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recorded from the surveillance system with a portable digital camera and reviewed after the

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footage was transferred to the CD. See Medina Decl. (ECF No. 144-4 at 161-63); Ganson Decl.

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(chain of custody) (ECF No. 144-3 at 2). Defendants lodged the CD, now designated as their

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Exhibit S, noting that it was “among the evidence that Dr. Barnett considered when rendering his

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expert medical-opinion testimony.” ECF No. 146 at 1; see also ECF No. 144-4 at 2. Defendants

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state that “[a] copy of the video was provided to nonparty prison officials to allow Mazza to view

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it.” ECF No. 146 at 1 n.1.

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The exhibit’s authentication satisfies Federal Rule of Evidence 901. Moreover, plaintiff

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does not object to the introduction of the CD nor assert that his activities reflected therein are

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inaccurate. Facts reflected in an authenticated video are admissible on summary judgment. Scott

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v. Harris, 550 U.S. 372, 380-81 (2007) (finding plaintiff’s version of the facts incredible because

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“blatantly contradicted” by the submitted video).

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The undersigned has reviewed the video, which is just under five minutes in length.

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Minimally spliced, it shows plaintiff exercising for a total of approximately eight minutes, as

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demonstrated by the date and time counter at the bottom of the screen. The video shows plaintiff,

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using a hyperextension bench, perform nine sit ups and then, with interval rests, fifty back

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extensions. Plaintiff’s movements appear agile.

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C.

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Defendants’ Objections to Plaintiff’s Evidence

Defendant Tan’s objection to plaintiff’s Exhibit 27, a 2011 California Medical Board

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Stipulated Settlement and Order (Compl. ECF No. 38 at 149-62) is sustained. As Dr. Tan asserts,

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ECF No. 161 at 1, this matter is irrelevant to the claims in this action. See Fed. R. Evid. 401.

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Defendants’ objections to the two inmate declarations submitted by plaintiff (Ex. A to Pl.

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Oppo., ECF No. 154 at 4-6), are sustained in part. As defendants assert, ECF No. 163-2 at 1-2,

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the relevance and admissibility of these declarations are limited by Fed. R. Civ. P. 56(c)(4).3 So

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Federal Rule of Civil Procedure 56(c)(4) provides: “An affidavit or declaration used to support
or oppose a motion must be made on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”
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limited, the substance of these declarations is included in the factual summaries set forth below.4

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Defendants’ objections to the “Health Care Services Request Forms” (Form CDC 7362)

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submitted by plaintiff, dated April 2014 to January 2015 (Ex. B to Pl. Oppo., ECF No. 154 at 7-

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19), are overruled. Contrary to defendants’ argument that these forms are both “immaterial and

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irrelevant,” ECF No. 163-2 at 3, plaintiff’s statements in these documents are relevant to his

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alleged pain symptoms during this period, as set forth below.

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Defendants’ objections to a 2018 letter prepared by Prison Law Office attorneys and

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addressed to Clark Kelso (Ex. C to Pl. Oppo., ECF No. 154 at 20-5) are sustained. Clark Kelso is

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the Court-Appointed Federal Receiver overseeing California’s Correctional Health Care Services

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(CCHCS). See Plata v. Schwarzenegger, Case No. 3:01-1351 JST (N.D. Cal. Jan. 23, 2008)

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(ECF No. 1063 (citing ECF No. 473)). The subject letter, which conveys 2015 and 2017 findings

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by the Office of the Inspector General (OIG) concerning the delegation of medical care at CSP-

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SOL, is not relevant to the claims in this action. See Fed. R. Evid. 401.

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Defendants next object to the fact that plaintiff attached a copy of his complaint and

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exhibits to his Opposition Memorandum (Ex. D to Oppo., ECF No. 154 at 29-201). The

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objection is sustained. The court considers these allegations and exhibits only as presented in the

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operative complaint (ECF No. 38).

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Defendants object to Exhibit 24 of plaintiff’s complaint (Compl., ECF No. 38 at 141-3;

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see also Oppo., ECF No. 154 at 165-78). Entitled “Corrospondence [sic] Control,” this exhibit

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sets forth the September 26, 2012 response of CCHCS’s Controlled Correspondence Unit (CCU)

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to plaintiff’s June 19, 2012 personal letter to Federal Receiver Clark Kelso. Plaintiff’s letter

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complained of inadequate medical care and stated that plaintiff had considered suicide. The letter

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resulted in an immediate mental health evaluation of plaintiff which concluded there was no

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imminent concern for plaintiff’s safety or mental health status. Shortly thereafter, a manager with

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the CCU sent plaintiff the subject September 26, 2012 response. Defendants contend this

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As correctly noted by defendant Tan, “[t]he only two independent declarations presented by
Mazza . . .support [his] contentions about pain but do nothing to contribute to the issue of liability
of any defendant.” ECF No. 161 at 3 n.3.
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response lacks foundation, contains hearsay, and is immaterial “except to the extent it supports

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the conclusion that plaintiff’s treatment met the standard of care.” ECF No. 163-2 at 3-4.

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Defendants’ objections are sustained in part; neither plaintiff’s personal letter to Kelso nor his

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resulting urgent mental health evaluation are relevant to the matters at issue. However, CCHCS’

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official assessment of plaintiff’s medical treatment in September 2012, based on a then-current

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review of plaintiff’s medical records, is relevant in evaluating defendants’ treatment decisions.

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Therefore, defendants’ objections are overruled as to the September 26, 2012 CCHCS/CCU

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response.

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Finally, defendants object to the admissibility of plaintiff’s declaration filed July 8, 2019

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(ECF No. 149)5 on the ground it is unverified. See ECF No. 163-2 at 4. The Ninth Circuit has

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held that “when a litigant appears pro se, the court “must consider as evidence in his opposition to

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summary judgment all of [plaintiff’s] contentions offered in motions and pleadings, where such

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contentions are based on personal knowledge and set forth facts that would be admissible in

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evidence, and where [plaintiff] attested under penalty of perjury that the contents of the motions

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or pleadings are true and correct.” Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (citing

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McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir.1987) (verified pleadings admissible to oppose

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summary judgment)); Johnson v. Meltzer, 134 F.3d 1393, 1399-1400 (9th Cir.1998) (verified

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motions admissible to oppose summary judgment); Schroeder v. McDonald, 55 F.3d 454, 460

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n.10 (9th Cir.1995) (pleading counts as ‘verified’ if the drafter states under penalty of perjury that

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the contents are true and correct).”)

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Application of this rule would normally support defendants’ general objection to

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plaintiff’s unverified declaration filed July 8, 2019 (ECF No. 149), as well as his unverified

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opposition filed the same day, which includes plaintiff’s summaries of undisputed and disputed

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facts (ECF No. 148). However, by order filed July 15, 2019, this court found several of

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plaintiff’s numerous filings on July 8, 2019 (ECF Nos. 148, 149, 153 and 154) directly responsive

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to defendants’ motions for summary judgment and construed them together as a “consolidated

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Defendants mistakenly reference this document as ECF No. 147. See ECF No. 163-2 at 4-14.
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opposition thereto.” ECF No. 159 at 1. The other matters filed that day (ECF Nos. 153 & 154)

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were verified. In addition, plaintiff’s complaint was verified, ECF No. 38, as was plaintiff’s reply

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brief filed August 29, 2019, ECF No. 164, and plaintiff attested to the truth of his February 5,

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2019 deposition testimony. The court construes these submissions collectively, and therefore

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overrules defendants’ objection.

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The court need not reach defendants’ numerous specific objections (ECF No. 163-2 at 4-

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14) to plaintiff’s July 8, 2019 declaration (ECF No. 149) but acknowledges that only those facts

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based on the affiant’s personal knowledge may be considered on summary judgment, Jones, 393

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F.3d at 923.

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IV.

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The court has reviewed the parties’ proffered undisputed and disputed facts and identified

Facts

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those relevant to plaintiff’s claim that defendants were deliberately indifferent in treating

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plaintiff’s pain symptoms.

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A.

Disputed Facts

• The parties dispute the accuracy of prison medical records reflecting that plaintiff has a
history of diverting prescription medications.
B.

Undisputed Facts

For purposes of summary judgment, the following facts are undisputed by the parties or as

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determined by the court upon review of the record. These facts include the medical assessments

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made by defendants and other medical providers.

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• Plaintiff Bryan Mazza, born in 1966, is a prison inmate incarcerated at CSP-SOL.

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Plaintiff is serving a 25-year-to-life sentence under California’s three-strikes law following a

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2006 conviction for, inter alia, possession of a controlled substance (methamphetamine). Df.

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Req. for Judicial Notice, Ex. A (ECF No. 145 at 7-16).

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• Plaintiff experiences chronic pain due to bone, joint and nerve damage caused by past

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injuries and ongoing degenerative processes. Objective imaging shows that plaintiff has

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degenerative joint disease in his hips and knees; degenerative disc disease in his neck; arthritis in

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both shoulders and elbows and in his left forearm; right cervical neuropathy; and a healed gunshot
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wound fracture to his right femur repaired with extensive fixation hardware.6

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• Plaintiff has pursued a lifelong commitment to physical fitness and has endeavored to

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continue pursuing vigorous exercise while incarcerated. Pl. Decl., ECF No. 149 at 1-6; see also

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July 30, 2015 video submitted by defendants.

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• From 2006 to 2010, plaintiff was incarcerated at the Martinez Detention Facility where

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he received medical care through the Contra Costa Regional Health Care Center. Compl., ECF

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No. 38 at 4; id. at 11-27. In August 2007, plaintiff was prescribed Vicodin and morphine in the

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form of MS Contin to treat his chronic pain; plaintiff requested that his MS Contin be

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discontinued and replaced with Ultram (tramadol), which was granted. Id. at 15-6. In January

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2008, plaintiff was prescribed tramadol and methadone for pain. Id. at 18.

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• From 2010 to 2011, plaintiff was incarcerated at San Quentin State Prison. On March 3,

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2010, LVN Gullem documented the report of a correctional officer that plaintiff had diverted his

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Methadone (March 3, 2010 Medical Management Referral). ECF No. 144-4 at 39 (Dfs. Ex. B);

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ECF No. 146 (Dfs. Ex. E to Plaintiff’s Deposition). The Referral contains a handwritten notation

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on the top that reads: “Caught I/M attempting to hide methadone. The escorting CO said that I/M

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Mazza has been caught multiple times.” The LVN checked the form’s standard option,

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“Exhibiting a pattern of non-compliance with the procedure for taking Nurse Administered or

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D.O.T. medications. If an inmate is suspected of cheeking/hoarding, etc. he is referred to the Unit

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Sgt. as well as the provider.” The word “cheeking” (concealing medication in one’s mouth to

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avoid swallowing it) is circled.

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These imaging results are included as exhibits to plaintiff’s complaint. See ECF No. 38 at 14,
29-34, 36, 38-9, 43, 45, 47, 49, 59-61, 63-4, 67-9, 72, 119. Although this evidence is not
authenticated, it is admissible for summary judgment purposes because it “could be presented in
an admissible form at trial.” Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003) (citation
omitted), cert. denied sub nom. U.S. Bancorp v. Fraser, 541 U.S. 937 (2004). Moreover, the
findings of these imaging tests are reflected in the treatment notes submitted by defendants. See
ECF No. 144-4 at 64, 68, 72. Plaintiff explains that he had surgeries on his right shoulder and
elbow in 1998 due to arthritis and bursitis; hip reconstruction and femur reduction surgery in
1995 after being shot; and that he sustained a fractured left elbow and “extruding C6 and C7
vertebrae” after being attacked by other prisoners in 2010. Pl. Decl., ECF No. 149 at 2.
12

1

• On August 12, 2010, Dr. Jenny Espinza-Marcus examined plaintiff as a chronic care

2

patient. ECF No. 144-4 at 37-8 (Dfs. Ex. B). Plaintiff was then regularly prescribed methadone,

3

gabapentin and naprosyn to treat his pain symptoms. He was recently prescribed a temporary

4

five-day increase in methadone by the Triage and Treatment Area (TTA), following a fall. Dr.

5

Espinza-Marcus declined plaintiff’s request to maintain the increased dose of methadone, but

6

added tylenol to his medication regime, noting, id. at 38:

7

At this point it is not appropriate to increase methadone since we
have not maximized other nonnarcotic pain medication modalities.
Also, his imaging does not support at this time an increase in
narcotics. As a matter of fact, it does not at this time support that he
is on narcotics at all so this may need to be reassessed in the future.

8
9
10

Dr. Espinza-Marcus ordered a lower back x-ray, again referred plaintiff to physical therapy, and

11

recommended that plaintiff be seen by “our other PCP provider next visit for another opinion

12

since plaintiff is very dissatisfied with the care he is getting from me and threatening lawsuit,

13

etc.” Id.

14
15
16
17
18
19

• On August 29, 2010, plaintiff sent a note to Dr. Espinza-Marcus on a Health Care
Services Request Form that provided the following, ECF No. 144-4 at 36 (Dfs. Ex. B):
Dr. Espinoza, I admit I haven’t been taking my gabapentin. It makes
me feel ill and doesn’t help. I didn’t want to tell you because I
thought you[‘d] think I was “shopping” for drugs. I have to be
honest. The methadone as a medication is effective. Could I please
have that prescription renewed. Or see me. I apologize for not
communicating.

20

• On August 31, 2010, San Quentin physician Dr. Jenny Espinoza-Marcus completed an

21

August 31, 2010 Chart Note for the express purpose of documenting that plaintiff’s “gabapentin

22

and methadone were both stopped because of cheeking.” See ECF No. 144-4 at 35 (Dfs. Ex. B).

23

The Note provides in pertinent part, id.:

24
25
26
27
28

This is to document that the patient’s gabapentin and
methadone were both stopped because of cheeking. His
toxicology showed undetectable levels of gabapentin and
methadone. The patient saw the RN complaining about this
[and suggested that his blood test was confused with that of
another inmate] . . . In any case, per policy gabapentin and
methadone were discontinued, as he was not taking it, per the
toxicology results. They should not be continued, as per
policy.
13

1

• Medical notes from the TTA on September 3, 2010, where plaintiff was treated for

2

gastroenteritis symptoms, state in pertinent part: “12 gabapentin caps were found in Pt. cell. Pt.

3

states he was cheeking them.” ECF No. 144-4 at 35 (Dfs. Ex. B); see also id. at 33.

4

• On September 10, 2010, Dr. Espinoza-Marcus again saw plaintiff, noted that his urine

5

toxicology showed he was cheeking both gabapentin and methadone, and explained that “[p]er

6

policy, his medications were appropriately discontinued and it is not appropriate to restart opiates

7

or controlled/restricted medications,” including tramadol, which plaintiff requested. ECF No.

8

144-4 at 31-2 (Dfs. Ex. B). Dr. Espinoza-Marcus prescribed omeprazole to help plaintiff’s

9

stomach better tolerate naprosyn and prescribed a tricyclic antidepressant to treat his neuropathic

10

pain; she noted that plaintiff continued to have capsaicin balm, had seen physical therapy,

11

received a wedge pillow for his legs, and could obtain a TENS (transcutaneous electrical nerve

12

stimulation) unit after his release from Administrative Segregation (Ad Seg). Id. at 32.

13

• On November 15, 2010, Dr. Espinoza-Marcus examined plaintiff “for a focused visit for

14

followup from [TTA] in which he was either in a fight or assaulted and sustained rib fractures and

15

small laceration on scalp” for which he was treated at Marin General Hospital. ECF No. 144-4 at

16

28 (Dfs. Ex. B). TTA prescribed plaintiff a short-term dose of morphine which Dr. Espinoza-

17

Marcus thought was reasonable to continue; she also changed his prescription for naprosyn to

18

indomethacin and refilled his prescription for tylenol.

19

• On November 29, 2010, plaintiff again saw Dr. Espinoza-Marcus. ECF No. 144-4 at

20

29-30 (Dfs. Ex. B). Plaintiff complained that his short-term dose of morphine (MS Contin) had

21

ended, that he continued to have rib pain and was coughing up foam. Plaintiff stated that he was

22

not taking the ibuprofen (naprosyn) or omeprazole due to his “thin stomach lining,” was not

23

taking the tylenol, and was taking indomethacin only once rather than three times a day. Id. at 30.

24

Dr. Espinoza-Marcus ordered a chest x-ray and prescribed a short-term dose of Tylenol with

25

Codeine. Dr. Espinoza-Marcus also prescribed Vitamin D, explaining that his deficit “might be

26

contributing to his chronic pain.” Id.

27
28

• On March 17, 2011, Dr. Espinoza-Marcus referred plaintiff to “PM&R” (Physical
Medicine and Rehabilitation) for assessment of his “chronic total body pain” in light of his
14

1

history of “med. seeking” and “cheeking/diverting gabapentin & methadone.” ECF No. 144-4 at

2

27 (Dfs. Ex. B).

3

• In April 2011, plaintiff was transferred to CSP-SOL.

4

• In May 2011, defendant Dr. J. Lipson was assigned as plaintiff’s primary care physician

5

(PCP). Dr. Lipson was a CDCR Physician and Surgeon, board certified in Family Medicine and

6

licensed by the Drug Enforcement Administration’s (DEA) Drug Diversion Division. Lipson

7

Decl. ¶ 2 (ECF No. 144-4 at 142).

8
9

• At plaintiff’s initial appointment on May 18, 2011, Dr. Lipson noted that plaintiff had
“good musculature throughout” but experienced “[c]hronic pain, including multiple sites of

10

osteoarthritis.” ECF No. 144-4 at 72-3 (Df. Ex. C). Although plaintiff denied that he had

11

cheeked his pain medications, Dr. Lipson explained that he was bound to regard the documented

12

information as accurate and could not re-prescribe restricted medications. Id. Dr. Lipson

13

continued plaintiff’s prescriptions for tylenol and indomethacin to treat his pain, ordered a wedge

14

pillow and knee braces to help reduce his joint stress, and completed referrals for an orthopedic

15

evaluation and an outside chronic-pain management specialist. Id. at 71, 73. The referral to an

16

outside chronic-pain management specialist was later “denied consistent with InterQual, a

17

clinical-decision support tool that applies objective outcome-related treatment standards.” Lipson

18

Decl. ¶ 8 (ECF No. 144-4 at 143). The referral to orthopedics was also denied on the ground that

19

plaintiff did not require a hip replacement. ECF No. 144-4 at 68 (Df. Ex. C).

20

• In June 2011, plaintiff reported improvement in his leg pain. Dr. Lipson continued

21

plaintiff’s pain medications and authorized a TENS unit. Dr. Lipson completed referrals for “an

22

MRI, to assess whether knee surgery might be appropriate, . . . physical therapy for his knee &

23

hip to help minimize the progression of his arthritis and alleviate pain, and . . . a hip injection to

24

treat his complaint of pain.” Lipson Decl. ¶ 9 (ECF No. 144-4 at 143); ECF No. 144-4 at 68-70

25

(Df. Ex. C).

26

• In July 2011, plaintiff’s MRI and hip injections were still pending. Plaintiff was not

27

tolerating the indomethacin so Dr. Lipson prescribed etodolac (another NSAID) and referred

28

plaintiff for kenalog injections to treat his hip pain. Plaintiff told Dr. Lipson that his pain was
15

1

severe, that he was tempted to “buy medications on the black market” and hoped his ineligibility

2

for narcotics could be reconsidered. Plaintiff again challenged his negative urinalsysis tests and

3

stated that he had previously diverted medications because he could not tolerate it on an empty

4

stomach and would take it later with meals. Lipson Decl. ¶ 10 (ECF No. 144-4 at 144); ECF No.

5

144-4 at 65-7 (Df. Ex. C).

6

• In September 2011, plaintiff complained of significant right shoulder pain with

7

numbness down his right arm into his hand and fingers. Plaintiff reported that he was “still

8

working out, but says he needs to do that because it makes him feel much better overall, but he is

9

hurting lying down. He has numerous areas of pain.” ECF No. 144-4 at 64. Dr. Lipson noted

10

that plaintiff’s “muscular physique indicated that he still was participating in intense workouts at

11

a level that exacerbated his conditions and contributed to his pain. To address his reports of

12

chronic pain I continued his pain medications and referred him for an x-ray of his shoulder, c-

13

spine, and elbow, and referred him for an EMG of his neck.” Lipson Decl. ¶ 11 (ECF No. 144-4

14

at 144); ECF No. 144-4 at 64 (Df. Ex. C).

15

• On October 12, 2011, in response to Dr. Lipson’s referral, neurologist Dr. Albert

16

Mitchell (not a defendant) conducted an EMG of plaintiff’s right upper extremity, which was

17

“suggestive of chronic R C6 radiculopathy.” Compl., ECF No. 38 at 63. Also in October 2011,

18

plaintiff received bilateral hip injections, which he found unhelpful; he also obtained orthotics.

19

ECF No. 144-4 at 62 (Df. Ex. C).

20

• In December 2011, plaintiff stated that physical therapy was helpful but he was still

21

experiencing extreme pain in his left hip that impaired his walking. Plaintiff expressed fear that

22

he would not be able to run again and frustration “that dealing with one joint at a time feels

23

inadequate and too slow and incomplete . . . that perhaps because of his history of working out

24

and appearing to be in overall good shape that his pain is not being taken seriously[.]” ECF No.

25

144-4 at 62 (Df. Ex. C). Plaintiff told Dr. Lipson that, as his PCP, he should be advocating for

26

plaintiff to restart more effective narcotic medications. Id. Dr. Lipson continued plaintiff’s

27

etodolac pain medication, referred him for an MRI of both hips, and noted that plaintiff was

28

scheduled for an MRI of his neck as a follow up on the positive EMG results. Dr. Lipson did not
16

1

refill plaintiff’s prescription for tylenol, which had expired, because plaintiff had not been

2

requesting it. Dr. Lipson noted that plaintiff was unwilling to try adjuvant psychiatric

3

medications that could provide pain relief or any psychiatric medications to treat his bipolar

4

disorder. Dr. Lipson ordered numerous laboratory tests to assess whether there were systemic

5

reasons for plaintiff’s pain and fatigue and referred plaintiff to the High Risk Clinic for further

6

workup. Lipson Decl. ¶ 13 (ECF No. 144-4 at 144-45); ECF No. 144-4 at 62-3 (Df. Ex. C).

7

• In January 2012, Dr. Lipson continued plaintiff’s medications, prescribed non-narcotic

8

injections to treat plaintiff’s left arm and wrist pain, and ordered a brace for plaintiff’s left wrist.

9

Plaintiff’s lab tests were normal. Dr. Lipson made two specialty referrals, one to Dr. McAlpine in

10

the Rheumatology Clinic, and another to Neurology. See Lipson Decl. ¶¶ 14-5 (ECF No. 144-4

11

at 145); ECF No. 144-4 at 58-61 (Df. Ex. C)

12

• On January 17, 2012, plaintiff had a consultation with CSP-SOL rheumatologist Dr.

13

McAlpine (not a defendant), who was also CSP-SOL Chief Physician and Surgeon. Based on

14

plaintiff’s medical record, statements and examination, Dr. McAlpine referred plaintiff for

15

consultation with neurologist Dr. Mitchell for consideration of epidural steroid injections and/or

16

surgery, and for an orthopedic evaluation of plaintiff’s right shoulder for possible consideration

17

by the Surgical Committee; prescribed Cymbalta (duloxetine) (30 mg BID), an antidepressant;

18

made a note to present plaintiff’s care to the Pain Committee; and set a follow-up appointment in

19

30 days. See Compl., ECF No. 38 at 50-55 (Pl. Ex. 10).

20

• On January 24, 2012, in response to Dr. Lipson’s referral, defendant Dr. J. McCue met

21

with plaintiff for his high-risk evaluation. Dr. McCue, who is board certified in internal and

22

geriatric medicine, was then CSP-SOL Chief Medical Executive (CME). As recounted by Dr.

23

McCue:

24
25
26
27
28

On January 24, 2012, I reviewed Mazza’s complaints of chronic pain
and depression, and the treatment he was receiving. Based on my
medical experience and expertise, as well as a review of records
relating to Mazza’s treatment at Solano, the treatment Dr. Lipson was
providing for Mazza's complaints of chronic pain was medically
appropriate and exceeded community standards of care. Morphine
was not medically indicated for Mazza's complaints of chronic pain.
Mazza’s medical records documented his prior diversion of
prescription medications, which demonstrated that he could not be
17

1

trusted to take medications as prescribed, or to safely use morphine
to manage his pain. I encouraged Mazza to try Cymbalta, an
antidepressant that I believed could both effectively treat Mazza’s
depression and might help alleviate his chronic pain. I discussed this
course of treatment with Dr. McAlpine, who agreed to follow up
concerning Mazza’s care. I also noted that Mazza’s case was
scheduled for consideration by the institution’s pain-management
committee.

2
3
4
5
6

McCue Decl. ¶ 8 (ECF No. 144-4 at 138); see also ECF No. 144-4 at 76-7 (Df. Ex. D).

7

• Dr. McCue “also sat on an interdisciplinary committee and pain-management

8

committee that discussed the preferred course of treatment to manage Mazza’s complaints of

9

chronic pain in light of his known medical history.” McCue Decl. ¶ 9 (ECF No. 144-4 at 138).

10

Although he did not direct plaintiff’s care, Dr. McCue avers that he “agreed with the course of

11

treatment advised by Mazza’s treating physician.” Id. Dr. McCue left CSP-SOL in September

12

2012. Id. ¶ 1.

13

• In early February 2012, rheumatologist Dr. McAlpine recommended tramadol (a

14

synthetic opioid) to treat plaintiff’s neck pain. Compl., ECF No. 38 at 56. Dr. Lipson, plaintiff’s

15

treating physician, agreed with this recommendation and prescribed it.7 Lipson Decl. ¶ 16 (ECF

16

No. 144-4 at 145).
• Later in February 2012, Dr. Lipson changed plaintiff’s etodolac prescription to Celebrex

17
18

(another NSAID) at plaintiff’s request, increased his tramadol dose, and renewed plaintiff’s

19

tylenol and Cymbalta. Lipson Decl. ¶ 17 (ECF No. 144-4 at 145); ECF No. 144-4 at 56-7 (Df.

20

Ex. C) Dr. Lipson observed in pertinent part, ECF No. 144-4 at 57:

21

The patient is at high risk of abuse, even acknowledging that he has
an addictive personality and he is concerned that by not getting
prescribed narcotics he may be forced to do things that would
become addictive [referencing plaintiff’s subjective complaints], but
at this point he has been discussed by the Pain Committee 3 times

22
23
24
25
26
27
28

7

Dr. Lipson notes that, “at that time, [Tramadol] was widely regarded as a safer treatment for
pain because the Federal Drug Administration (FDA) indicated that it did not pose a high risk of
dependency or abuse and the Drug Enforcement Agency (DEA) did not classify Tramadol as a
controlled substance.” Lipson Decl. ¶ 17 (ECF No. 144-4 at 145). Tramadol was reclassified by
the U.S. Drug Enforcement Agency, effective August 18, 2014, as a Schedule IV controlled
substance. See Federal Register, Vol. 79, No. 127, pp. 37623-30] (July 2, 2014). This change
was reflected in the California Correctional Health Care Services protocol. See CCHCS Care
Guide: Pain Management Part 3-Opioid Therapy.
18

1

within the last several months, and narcotics are not indicated given
the extreme high risk of abuse and diversion and Federal guidelines
and CDCR guidelines as well as the fact that at his young age with
numerous sites of osteoarthritis and internal derangement and his
continued working out, narcotics would ultimately be of questionable
benefit for the long term regardless. Will prescribe celecoxib,
increase his tramadol and start Tylenol for him to take at the same
time as tramadol.

2
3
4
5

• In March 2012, neurologist Dr. Mitchell prescribed morphine to treat plaintiff’s chronic

6
7

neck pain. Dr. Mitchell did not confer with Dr. Lipson, plaintiff’s treating physician. Lipson

8

Decl. ¶ 18 (ECF No. 144-4 at 145); ECF No. 144-4 at 80 (Df. Ex. E).
• On April 3, 2012, plaintiff was again seen by Dr. McAlpine who, in pertinent part,

9
10

noted his deferral to Dr. Mitchell’s assessment regarding plaintiff’s morphine prescription.

11

Compl., ECF No. 38 at 57-8.
• Plaintiff again saw Dr. Lipson on April 24, 2012, for complaints of increased back pain

12
13

and as a follow up to plaintiff’s TTA treatment for back spasms on April 29-20. Dr. Lipson

14

prescribed robaxin/methocarbamol to treat plaintiff’s spasms but observed, based on various

15

sources, that plaintiff appeared to be exaggerating his complaints of pain. Dr. Lipson declined to

16

prescribed Tramadol and morphine simultaneously, and informed plaintiff that he would not

17

“prescribe morphine unless the prescription from the neurologist expired, in which case [he]

18

would prescribe it only to taper Mazza off of it, to avoid withdrawal.” Because the morphine

19

prescription written by the neurologist was scheduled to expire on May 5, 2012, Dr. Lipson wrote

20

an order on April 30,ꞏ2012 to start tapering plaintiff off morphine beginning May 6, 2012.

21

Lipson Decl. ¶ 19 (ECF No. 144-4 at 145-46); ECF No. 144-4 at 54-5 (Df. Ex. C).
• Also, on April 30, 2012, Dr. McAlpine responded as follows to an inquiry from

22
23

plaintiff, Compl., ECF No. 38 at 84:

24

Dr. Mitchell can continue your pain meds. If Dr. Lipson had written
them then the Pain Committee of Solano would be in charge.

25

• Dr. Lipson recounts plaintiff’s May 7, 2012 appointment as follows, Lipson Decl. ¶ 20

26
27

(ECF No. 144-4 at 146):

28

////
19

1

7

At Mazza’s appointment the next day, on May 7, 2012, I found him
to be severely emotionally distressed because the morphine was
being discontinued. I did not observe any objective signs of
withdrawal or decreased function. I again explained that other
medicines were preferred methods of treatment for chronic pain and
lifelong narcotics are not medically indicated. He became angry and
aggressive, to the extent where another physician called custody
staff. The appointment was terminated because it was no longer
productive. I initially wrote the taper order but later opted to hold
the taper until a multi-disciplinary meeting could take place in
consideration of the complexity in treating this patient with addictive
behavior and competing medical concerns. I restored Mazza’s prior
dose of morphine.

8

Accord ECF No. 144-4 at 52-3 (Df. Ex. C); ECF No. 144-4 at 84, 87 (Df. Exs. F, G). Dr. Lipson

9

noted that the neurologist prescribing morphine (Dr. Mitchell) stated he would defer to the Pain

2
3
4
5
6

10
11
12

Committee. ECF No. 144-4 at 52 (Df. Ex. C).
• On May 10, 2012, plaintiff again saw Dr. Mitchell, who continued his prescription for
morphine. Compl., ECF No. 38 at 64; ECF No. 144-4 at 93 (Df. Ex. H).

13

• On May 16, 2012, an interdisciplinary meeting was convened at CSP-SOL to evaluate

14

plaintiff’s care. Those attending were Dr. Lipson, plaintiff’s primary care physician; CSP-SOL

15

CME Dr. McCue; Dr. McAlpine, Rheumatologist and CSP-SOL Chief Physician and Surgeon;

16

Dr. Cynthia Mitchell representing Mental Health; Dr, Kelly, plaintiff’s psychologist; and two

17

clinical counselors (Hughes and Baker) from plaintiff’s housing unit. See ECF No. 144-4 at 51

18

(Df. Ex. C). The findings of the group were recounted by Dr. Lipson in plaintiff’s May 17, 2012

19

Chart Note, as follows, id.:

20
21
22
23
24
25
26
27
28

The issues discussed were the patient's chronic pain, his mental
health issues, and his substance abuse history and possibly active use
and the best clinical management for the patient in light of all these
issues. The issues discussed were his chronic pain due to numerous
musculoskeletal injuries and history of trauma, his noncompliance
with recommendations and appropriate exercise recommendations,
the variability and inconsistency between observed behavior/
movements/activity and his complaint of symptoms as witnessed and
documented by staff in the [TTA], as well as his primary care
physician and staff in the yard who have seen him; also discussed
was his occasional lability in his mood and abnormally/bizarre
seemingly elevated mood and altered behavior/affect/personality; his
apparent lack of insight, manifested as unwillingness to accept
responsibility for prior substance use and misuse and diversion of
narcotics and other substances, his hostile behavior towards his
primary care physician regarding narcotics and the risks and benefits
of continuing him on narcotics, and his pattern of seeking pain
20

1
2
3
4
5
6
7
8
9
10
11

medications from different providers, including specialty provider
who prescribed him morphine but then declined to further prescribe
it, deferring to the pain committee who has addressed his pain issue
on at least 6 different occasions and assessed that the risk to narcotics
outweighs the benefits. The information from the clinical counselors
included prior history of cocaine, methamphetamine, and alcohol
abuse and positive methamphetamine tests while in [CDCR]
custody. On review of the patient’s total medical record, the
overwhelming recommendation and conclusion from the medical
and mental health staff on the interdisciplinary committee is to
continue the weaning of his morphine. A 128-C3 is being submitted
regarding the patient's inappropriate and potentially hostile and
aggressive behavior towards his primary care physician at the last
visit which necessitated his removal under the orders of the custody
officer because he would not leave at the direction of his primary
care physician. The patient will continue to be evaluated by his
mental health provider, as well as by his primary care physician, if
necessary with Custody present due to his previously hostile and
potentially threatening behavior.
• Dr. Lipson further explained in his declaration that he “was informed by the clinical

12

counselors that Mazza had a history of cocaine, methamphetamine, and alcohol abuse, and

13

positive methamphetamine tests while in CDCR custody. After reviewing Mazza’s case factors,

14

total medical record, the overwhelming recommendation and conclusion from both medical and

15

mental health staff on the committee was to proceed with tapering and terminating the morphine

16

prescription. I initiated the morphine taper.” Lipson Decl. ¶ 21 (ECF No. 144-4 at 146-47)

17

(citing Df. Ex. C at 5/17/12 Chart Note [ECF No. 144-4 at 51], and Df. Ex. G at 5/17/12

18

Medication Reconciliation [ECF No. 144-4 at 88]). Dr. Lipson continued plaintiff’s regular

19

prescriptions for, inter alia, tramadol, tylenol, naprosyn, and Cymbalta. Df. Ex. G at 5/17/12

20

Medication Reconciliation [ECF No. 144-4 at 88]).

21

• On June 21, 2012, a month after the interdisciplinary meeting, Dr. Mitchell again

22

prescribed morphine to plaintiff. Lipson Decl. ¶ 22 (ECF No. 144-4 at 147) (citing Df. Ex. G at

23

6/20/12 and 6/25/12 Medication Reconciliations [ECF No. 144-4 at 88-9]).

24

• Dr. Lipson saw plaintiff twice in August 2012, who complained of headaches due to

25

cervical radiculopathy and increased hip pain, and was awaiting epidural injections prescribed by

26

Dr. Mitchell. As summarized by Dr. Lipson, Lipson Decl. ¶ 23 (ECF No. 144-4 at 147):

27
28

In August 2012, I examined Mazza for follow up on his complaints
of pain. I granted Mazza's request to change his naproxen to
etodolac, increased his tramadol to 400 mg (the maximum adult
21

1

dose) and directed a follow-up appointment. I also discussed with
Mazza the need to balance his exercise with his body's limitations.
Mazza saw an outside orthopedic specialist, had epidural steroid
injections pending, and continued to receive the morphine prescribed
by neurology. I directed Mazza's return to the clinic for follow-up.
I referred Mazza for specialty services for chronic pain management,
an orthopedic consult, and a bone scan. The neurologist continued to
prescribe morphine, and I did not interfere with this prescription.

2
3
4
5
6

Accord, Aug. 17, 2012 Medical Progress Note, ECF No. 144-4 at 49-50 (Df. Ex. C) (“Neurology

7

recently increased his morphine and they will continue to be the prescriber for that, if the

8

neurologist feels that it continues to be indicated.”).
• Defendant L. Austin was CSP-SOL Chief Executive Officer (CEO) of Health Care

9
10

Services at CSP-SOL from 2009 until September 2017. Austin Decl. ¶ 1 (ECF No. 144-4 at 154).

11

On August 28, 2012, defendant Austin issued a Second Level Response to plaintiff’s appeal Log

12

No. SOL HC 12036635. Compl., ECF No. 38 at 99, 101-02.8 The appeal was multifaceted in

13

that plaintiff requested that he be prescribed morphine and referred to neurologist Dr. Mitchell;

14

stated that he disagreed with Dr. Lipson’s medical decisions and requested that he be assigned

15

another PCP; requested that he obtain new testing for substance abuse, that he be permitted to

16

conduct an Olson review of his medical records,9 and that be permitted to speak with a mental

17

health representative. Defendant Austin noted that, on First Level Review, plaintiff was

18

evaluated by Dr. McAlpine who presented plaintiff’s case to the Pain Management Committee,

19

which denied plaintiff’s request for morphine. Austin noted that Dr. McCue had evaluated

20

plaintiff’s medical needs on Second Level Review and that plaintiff saw Dr. Mitchell on June 21,

21

2012 and August 2, 2012, who prescribed morphine to plaintiff on August 2, 2012. Defendant

22

Austin stated that prison policies precluded assigning plaintiff another PCP. Plaintiff’s appeal

23

was partially granted on the following grounds, ECF No. 38 at 102:

24
25
26
27
28

8

Page 100 reflects a portion of the Director’s Level Decision on this appeal. Although this
portion is incomplete and undated, it appears the appeal was denied at this level on the ground
that plaintiff was “receiving treatment deemed medically necessary.” Compl., ECF No. 38 at
100.
9
An Olson review refers to the right of California inmates to inspect and copy non-confidential
records maintained in their central and medical files, as established by In re Olson (1974) 37 Cal.
App. 3d 783.
22

1

5

[Y]our appeal is partially granted, in that you were prescribed the
medication Morphine on August 2, 2012. You have been seen by
Dr. Mitchell, onsite Neurologist, who recommended cervical
epidural injections and a referral to see the Pain Management
Specialist, which is pending approval. You are being seen and
treated by Dr. McAlpine, Board Certified Rheumatologist for your
chronic pain issues. You are also being seen and provided treatment
by Solano Mental Health Department. You were seen by the Medical
Records Department for copies in July 2012.

6

• Defendant Austin avers that she is not a physician and “was not authorized to treat

2
3
4

7

inmates or direct an inmate’s specific course of medical care.” Austin Decl. ¶ 2 (ECF No. 144-4

8

at 154-55). Rather, as CEO, Austin’s responsibilities included “administrative oversight over the

9

appeals process,” which involved “reviewing and signing off on the responses to inmate health-

10

care appeals” to “ensur[e] that the proper steps were followed,” specifically, “whether the appeal

11

was assigned to a proper person for review, a review had been conducted, the response addressed

12

each issue raised, and the applicable time frames had been met.” Austin Decl. ¶¶ 2-4 (ECF No.

13

144-4 at 155).

14

• When Dr. Lipson saw plaintiff on August 31, 2012, he noted that plaintiff had a

15

specialty appointment with an outside orthopedist the week before and was awaiting an MRI. Dr.

16

Lipson noted that Dr. Mitchell extended plaintiff’s morphine prescription for ninety days, and that

17

Dr. McAlpine hand carried the prescription to the pharmacy because Dr. Mitchell was not on-site.

18

ECF No. 144-4 at 47-8 (Df. Ex. C).

19

• At this juncture, on September 26, 2012, CCHCS’s Controlled Correspondence Unit

20

(CCU) issued a response to plaintiff following a CCHCS inquiry into the letter plaintiff sent to

21

the Federal Receiver. The response found in pertinent part that plaintiff was receiving “five

22

prescriptions for pain medication” and “medical staff is providing medically necessary treatment

23

for [his] current health care needs.” See Compl., ECF No. 38 at 141-3; and Opposition

24

Memorandum, ECF No. 154 at 165-78.

25
26
27
28

• Dr. Lipson next saw plaintiff on October 19, 2012, and recounts, Lipson Decl. ¶ 24
(ECF No. 144-4 at 147):
In October 2012, Mazza declined an elbow sleeve to alleviate pain
and provide support because he did not want to pay for it. I offered
him an ace wrap instead. Mazza continued to receive the morphine
23

1

3

prescribed by neurology. I continued his treatment with duloxetine,
etodolac, tylenol, and tramadol. I also ordered x-rays of his left
elbow, referred him for orthotics, and referred him for a knee
injection to treat his pain. The neurologist continued to prescribe
morphine, and I did not interfere with this prescription.

4

Accord, Oct. 19, 2012 Medical Progress Note, ECF No. 144-4 at 44-7 (Df. Ex. C):

5

Cervical radiculopathy. Being managed by Neurology. He has
completed 2 epidural steroid injections. He said both times he had
about 2 days of pain relief and then it [re]occurred. He is going to
have a third. At this point, there is no indication to refer him or
prepare him for neurosurgery as there is still hope that the third
injection will help, and at that point, if the patient is still in significant
pain, may consider referral to Neurology versus Neurosurgery. Of
note, Neurology is the physician prescribing the patient’s morphine.
This is not being done by myself. It has been renewed by the Chief
Physician and Surgery [Dr. McAlpine] because the neurologist is not
on site during medication renewals to do that. He is also on
duloxetine, etodolac, Tylenol and tramadol.

2

6
7
8
9
10
11
12

• Dr. Lipson’s last record appointment with plaintiff was on November 19, 2012,

13

following a recent epidural injection and pain consult. Dr. Lipson made the following notes

14

regarding plaintiff’s pain medications, ECF No. 144-4 at 42-3 (Df. Ex. C) (Nov. 19, 2012

15

Medical Progress Note):

16
17
18
19
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21
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24
25
26
27
28

The patient says he is still in pain. He again spent several minutes
reviewing the history at San Quentin of his drµg screen that he feels
was erroneous, and I explained to him that that cannot be continually
revisited by us. His main concern today that he articulated is that it
stays in the healthcare record and would predispose any future
physicians to regard him suspiciously, to not trust his medical
conditions or to think that his medical needs or requests are
legitimate. In addition, he reviewed with me my note regarding the
Interdisciplinary Committee several months ago that also included
clinical counselors, at which time I had been informed that he had
had a positive methamphetamine screen that was in his C-File, and
he feels that this is erroneous. I explained to him that I would take
note of that, that I would document that in this progress note, and I
related to him that I was reporting what I had been told, but that I
would certainly also make note that he feels that that is incorrect, and
so I am putting that in this note as well.
. . . . Cervical radiculopathy and chronic pain. He is on morphine.
He is on duloxetine, etodolac, Tylenol, and tramadol. The
recommendation from the pain specialist was to discontinue the
morphine and start methadone 10 mg t.i.d. I discussed this via email with the Chief Physician and Surgeon [Dr. McAlpine], who is
aware of this, and it will need to be addressed by the Pain
Committee. At this point, the patient's pain is being managed by
Neurology. The Chief Physician and Surgeon (CP and S) has
24

1

renewed his narcotics in the past in lieu of the neurologist who was
not on site to renew his medications, and this will continue to be the
plan. In addition, the patient states that he was told by the pain
specialist that he needs a 4th epidural steroid injection.

2
3

…. We [] discussed his medical records and his concerns for the
discrepancy with those, and that I would place in the note his
articulation that he disagrees with what was reported to me regarding
having a positive methamphetamine test in his C-File, as well as
feeling that the documenting of diversion and drug testing at San
Quentin that necessitated the stopping of his narcotics is incorrect.

4
5
6
7
8
9

• Dr. Lipson left employment at CSP-SOL in January 2013. Lipson Decl. ¶ 1 (ECF No.
144-4 at 141.
• On January 8, 2013, Dr. A. Parmar conducted a telemedicine appointment with plaintiff,

10

renewed his prescription for morphine and suggested that oxycontin may be more effective.

11

Compl., ECF No. 38 at 66.

12

• A January 15, 2013 psychological evaluation is attached to plaintiff’s complaint as

13

Exhibit 26. Conducted by Dr. M. Smith, Ph.D., a clinical psychologist with CSP-SOL’s Ad Seg

14

Unit, the report states in pertinent part “[m]ethamphetamine addiction has impacted all areas of

15

his life, family, employment, relationships, etc.” Compl., ECF No. 38 at 148.

16

• On March 19, 2013, plaintiff had his first contact with defendant Dr. R. Tan, CSP-SOL

17

Physician and Surgeon. Dr. Tan interviewed and examined plaintiff on the First Level Review of

18

his administrative appeal Log No. SOL HC 13037465, the only appeal plaintiff exhausted before

19

filing the instant action. Compl., ECF No. 38 at 91-3; see also Tan Decl. ¶¶ 3-6, ECF No. 143-5

20

at 2-3. Dr. Tan’s First Level Response (written in the third person), issued April 16, 2013,

21

partially granted plaintiff’s appeal and provided in pertinent part, Compl., ECF No. 38 at 91-2:

22
23
24
25
26
27
28

You are requesting a neurosurgery referral for your chronic neck
pain. You state due to your neck pain you have numbness in
your right arm and hand. Records show you were seen by Dr.
Parmar in the Telemedicine Clinic on January 8, 2013, and he
suggested Oxycontin Extended Release (MS-ER) to 30 mg three
times a day (TIO). You are requesting this increase be done;
however you are able to do push-ups and aerobic exercises. Be
advised, Oxycontin is not one of the approved medications used to
manage chronic pain within the department and per your current
Medication Reconciliation Sheet you are being prescribed Tylenol,
Cymbalta, Morphine, and Tramadol. At this time Dr. Tan noted you
have no distress, your shoulders are strong and well developed, and
your extremities/limbs show no weakness at all. The EMG of your
25

1
2
3
4
5
6

neck from October 2011 showed chronic right C6 radiculopathy.
The MRI of your cervical spine showed degenerative disc disease
(DDD) in C6-C7 and moderate impingement on left cord. Therefore,
based on Dr. Tan's assessment and examination, along with your
medical history he determined a neurosurgery referral is not
medically indicated at this time. You are fully functional and the
MRI findings are not compatible with your complaints and
symptoms. However, Dr. Tan will request a follow-up with Dr.
Mitchell, onsite Neurologist, and he will refer you back to your
Primary Care Provider (PCP) for a 30-day follow-up to discuss
further pain management.

7

• Plaintiff’s follow-up with Dr. Mitchell, requested by Dr. Tan, took place on April 4,

8

2013. Dr. Mitchell requested that plaintiff be referred to a neurosurgeon for evaluation of his

9

cervical radiculopathy. However, the request was denied by the CSP-SOL InterQual/“IUMC”

10

(Institution Utilization Management Committee) on the ground that plaintiff lacked an adequate

11

“NSAIDS trial.” Compl., ECF No. 38 at 69.

12

• On May 29, 2013, CSP-SOL Acting CME Dr. A. Pfile (not a defendant) issued the

13

Second Level Response (written in the third person) to plaintiff’s appeal Log No. SOL HC

14

13037465. Compl., ECF No. 38 at 88-90; see also Tan Decl. ¶ 7, ECF No. 143-5 at 3-4. That

15

decision provides in pertinent part, ECF No. 38 at 89:

16
17
18
19
20
21
22
23
24

In your request for a second level review, Dr. Pfile, Chief Medical
Executive-Acting (CME-A), reviewed your medical history,
progress notes and any relevant radiographs, lab test results, and/or
any outside consultations relating to your appeal issues and noted
you were seen by Neurology on April 4, 2013, and referred to
Neurosurgery, however you do not meet lnterQual criteria for
neurosurgery evaluation. Additionally it is extensively documented
th[at] you engage in vigorous and frequent exercise, ha[ve]well
developed musculature, and displayed no functional limitation at
recent physician visits. This is not consistent with your stated limited
function. . . . [Y]ou will continue follow up with neurology and with
your primary care physician. The aforementioned reveals you have
not been subjected to any form of staff misconduct or deliberate
indifference and you have received, and continue to receive,
appropriate medical treatment.
• Defendant Dr. J. Kuersten has been Chief Medical Executive (CME) at CSP-SOL since

25

July 23, 2013; he became Acting CME April 13, 2013. As CME, Kuersten is required to

26

“oversee the staff physicians and other medical staff to help ensure that community standards of

27

care are met, monitor and address quality management and utilization management issues, review

28

and respond to enquiries from oversight entities, monitor compliance with treatment
26

1

requirements, oversee recruiting and performance of physicians, and respond to certain

2

administrative appeals” but does not generally treat inmates directly. Kuersten Decl. ¶ 1 (ECF

3

No. 144-4 at 130-31). Prior to becoming CME, Kuersten was a full-time CDCR Physician and

4

Surgeon.

5

• Although he was not plaintiff’s treating physician, Dr. Kuersten became involved with

6

plaintiff’s medical care in June 2013, after Dr. Lipson’s departure. Kuersten avers:

7

On approximately June 5, 2013, I was notified that Mazza's morphine
prescription had expired. This likely occurred because the
prescribing neurologist was not on-site. . . . When responding to the
morphine renewal request, I conducted a review of Mazza's Unit
Health Record and documented the results in a Medical Management
Note on June 5, 2013.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Mazza’s unit health record documented his history of degenerative
joint disease, polysubstance abuse, and drug diversion. Reports
showed that Mazza had been caught cheeking medications and that
he had tested negative for medications he was prescribed to take.
These drug-diversion behaviors indicated that inmate Mazza had a
significantly higher risk of adverse outcome if treated with morphine
or other potent narcotics.
Additionally, Mazza’s excellent functional status and aggressive
exercise regimen were well documented in the medical records.
These factors also weighed against treatment with morphine because,
from a medical standpoint, Mazza's reported level of functioning was
at a high enough level that did not support a medical need for
narcotics.
Since I could not tell from the medical record why the neurologist
believed that morphine was appropriate, whether he was aware of the
red flags for treatment, or whether he engaged in proper decision
making, I initially neither knew his treatment decisions to be
improper nor credited those decisions over my own. However, when
I contacted the neurologist [Dr. Mitchell] he informed me that he
may have felt somewhat pressured by Mazza to prescribe morphine
and that he had no objection to its discontinuation, especially if
discontinuation was recommended by the pain committee, which it
was.
The doctors in attendance at several pain-management committees
and a multi-disciplinary meeting had recommended discontinuation
of the prescription.
I supported the primary care team’s
recommendation to taper Mazza off of morphine. Based on my
medical education and experience, morphine was neither medically
indicated nor medically appropriate, and the risks of continued
treatment outweighed any potential benefits. Prescribing the taper,
in my opinion, could be done with minimal risk to Mazza. The
decision to taper also was consistent with CDCR policies, and both
state and federal pain-management guidelines.
27

1
2
3
4
5
6

I met with Mazza the following day, on June 6, 2013, to advise him
that a taper would start and the reasons for it. A slow opiate taper
was initiated to minimize any withdrawal symptoms, and an urgent
mental-health referral was made to ensure that Mazza’s needs could
be addressed. Given Mazza’s documented history of substance
abuse and the duration of his treatment with morphine, I was
concerned that he might react negatively to the taper, and might
experience anxiety or depression. I did not want the taper to cause
Mazza undue distress. I wanted him to understand that he could
notify staff if he experienced any adverse effects, and a mental-health
counselor could coach him along if necessary.

7

Kuersten Decl. ¶¶ 6-12 (ECF No. 144-4 at 131-32); accord ECF No. 144-4 at 96-7 (Df. Ex. I

8

(6/5/13 Medical Management Note and 6/6/13 Provider Progress Note).

9

• On June 27, 2013, Dr. Mitchell began the taper of plaintiff’s morphine and prescribed

10

the alternative medications of Toradol (an NSAID), and Lyrica (to treat neuropathic pain). ECF

11

No. 144-4 at 100 (Df. Ex. J)

12

• On July 10, 2013, plaintiff was seen by physician Dr. N. Largoza (not a defendant) who

13

recorded plaintiff’s “Chief Complaint” as “I have a 602, and I am requesting to have my

14

morphine restarted.” See ECF No. 144-4 at 103-04 (Df. Ex. K) (Medical Progress Note).

15

Plaintiff told Dr. Largoza noted that “morphine . . . worked better than the current Tylenol No. 3

16

and duloxetine” to treat his medical conditions, which he identified in the following order of

17

importance: “chronic headache, bilateral hip pain, bilateral knee pain, right shoulder pain, left

18

elbow pain [and] spine osteoarthritis.” Id. at 103. Plaintiff stated that “morphine gave him a

19

better response which allowed him to exercise with decreased pain.” Id. Dr. Largoza advised

20

plaintiff that “physicians can and often do change medications based on current circumstances,”

21

but told plaintiff that he would present his case to the Pain Committee. Id. at 103-04.

22

• On July 16, 2013, Dr. Largoza wrote a note to plaintiff, entered as an Interdisciplinary

23

Progress Note, that provided in pertinent part: “After careful review of your case, the Pain

24

Committee has denied your request. You will stay on your current pain meds.” ECF No. 144-4

25

at 107 (Df. Ex. L).

26

• On October 10, 2013, the CCHCS Chief (J. Lewis for L.D. Zamora, neither are

27

defendants) issued the Third Level Decision on plaintiff’s appeal Log No. SOL HC 13037465,

28

finding that “[n]o changes or modifications are required.” Compl., ECF No. 38 at 86-7; see also
28

1

Tan Decl. ¶ 7, ECF No. 143-5 at 3-4.

2

• On December 12, 2013, plaintiff had his only other interaction of record with defendant

3

Dr. Tan, who interviewed and examined plaintiff as part of a Second Level Review of his

4

administrative appeal Log No. SOL HC 13038044. ECF No. 144-4 at 113 (Df. Ex. N). On

5

December 17, 2013, in response to plaintiff’s request to again be prescribed morphine (MS

6

Contin), Dr. Tan took his case to a CSP-SOL Pain Committee meeting. Id. at 110, 113 (Df. Exs.

7

M, N). Dr. Tan and Kuerston were the only defendants at the meeting, which was attended by a

8

total of eleven staff members. As set forth in Dr. Tan’s December 19, 2013 Progress Note, the

9

Committee found as follows, id. at 110:

10

Dr. Tan presents Inmate/patient's request to re-instate MS-ER due to
severe bilateral hips pain, back pain. Dr. Tan presents patient's
clinical conditions, current treatment (T3 3x/day, & Cymbalta),
examination findings, co-morbid conditions (Migraine/chronic daily
HA, Avascular necrosis of left hip, C spine degenerative ds) and MH
status (not on any MH med).

11
12
13

PMC discussed, considered all of his medical conditions, current
treatment and recommended to continue current pain management
and denied his request to re-instate the MS d/t previous narcotic
abuse history and risk outweigh the benefit of prescribing narcotics.

14
15
16

• Due to plaintiff’s temporary incarceration at another institution in the fall of 2013, two

17

Second Level responses were prepared addressing plaintiff’s Log No. SOL HC 13038044. Dr.

18

Tan was informed by Dr. Pfile, CSP-SOL Acting CME, that “the institution would use the

19

typewritten appeal response that she had authored on August 19, 2013 because both Dr. Pfile’s

20

ultimate decision and mine were the same. My handwritten response of December 2013 was not

21

used as the official second level response.” Tan Decl. ¶¶ 9-11 (ECF No. 143-5 at 4-5); Compl.,

22

ECF No. 38 at 115-7 (Aug. 19, 2013 Second Level Decision); id. at 138-40 (Mar. 26, 2014 Third

23

Level Decision, denying appeal).

24

• On January 30, 2014, Dr. Mitchell again saw plaintiff and recommended that his

25

prescription for morphine be resumed. Compl., ECF No. 38 at 130; ECF No. 144-4 at 124 (Df.

26

Ex. Q). There is no indication in the record that this recommendation was implemented prior to

27

plaintiff commencing this action.

28

////
29

1

• On February 20, 2014, CSP-SOL physician Dr. Lori Kohler increased plaintiff’s dosage

2

of Cymbalta, and changed his prescription for verapamil to propranolol, in an effort to reduce the

3

frequency of his headaches. ECF No. 144-4 at 116-17 (Df. Ex. O).

4

• On April 22, 2014, plaintiff had a telemedicine consult, including examination, with Dr.

5

G. Williams, M.D., a Physical Medicine and Rehabilitation Specialist, “regarding [plaintiff’s]

6

chronic pain symptoms.” ECF No. 144-4 at 120-21 (Df. Ex. P). Dr. Williams did not

7

recommend any changes in plaintiff’s medications and found in pertinent part, id.:

8

The patient notes 6 out of 10 pain in the hips and back including neck
pain that radiates to the head, bilateral shoulder pain, low back pain,
bilateral hip pain, and bilateral knee pain. The patient states that
“since I do not get adequate pain relief, I’m unable to do exercises”
referring to exercises for his upper body and lower extremity yet has
superior bulk consistent with ongoing strength-based exercise
program. He notes that he last did any type of pushups, crunches,
sit-ups, squats, lunges or any strengthening exercises for his core
since 6 to 7 months ago. He notes that he does a small amount of
curls for his lower extremities not exceeding more than 10 pounds.
He states that pain is preventing him from performing exercises at
this time. He does have superior bulk throughout his whole body
consistent with strength based exercise program that is ongoing in a
patient who notes that he is also a certified trainer. His functional
history is in direct contrast with his superior bulk.

9
10
11
12
13
14
15
16

. . . . The patient’s claims that he is unable to perform exercises
because pain prevents him from performing exercises is not factually
correct as the patient would be unable to sustain the superior
musculature if he was not performing these exercises on an ongoing
basis. During today's appointment, stretching exercises for the neck
were provided including active range of motion and active assist
range of motion exercises with the patient verbalizing understanding
of the key concepts and knowing not to perform stretching exercises
for the neck fast. The patient also knows to stop any exercise that is
problematic. [¶] Again, the patient was commended for maintaining
superior bulk and continuing an exercise program allowing him a
superior functional status.

17
18
19
20
21
22
23

• From April 2014 through January 2015, plaintiff submitted several “Health Care

24

Services Request Forms” (Form CDC 7362). ECF No. 154 at 7-19 (Pl. Ex. B). These forms

25

recount plaintiff’s complaints of pain throughout his body, seek further evaluation including an

26

MRI, and request further treatment including a cortisone shot and stronger pain medication

27

consistent with Dr. Mitchell’s recommendations.

28

////
30

1

• Defendant Dr. Kuersten’s second and last direct involvement with plaintiff’s care was

2

his Second Level Response to plaintiff’s 2015 administrative appeal, Log No. SOL-HC-

3

15040586.10 Kuersten recounts (Kuersten Decl. ¶ 13 (ECF No. 144-4 at 133-34)):

4

In this role, I provided administrative oversight over the appeals
process. This entailed ensuring that the proper steps were followed:
I reviewed the first-level response and checked whether an interview
had occurred and whether the response was consistent with the
documentation available. Dr. Mulligan-Pfile had responded to
Mazza’s grievance at the first-level of review. She documented that
Mazza continued to engage in vigorous and frequent exercise, had
well-developed musculature, and displayed no apparent functional
limitations. Dr. Mulligan-Pfile also noted that Mazza's urine had
recently screened positive for methadone, even though he was not
being prescribed it at the time. Dr. Mulligan-Pflle did not conclude
that either treatment with morphine or any other additional treatment
was medically indicated. Rather, Dr. Mulligan-Pfile opined that
Mazza’s pain was appropriately managed under the CCHCS pain
management policy. Because Dr. Mulligan-Pfile’s response was
supported by the information and documents that I reviewed, the
appeal was deemed partially granted.

5
6
7
8
9
10
11
12
13

• Defendant Kuersten opines (Kuersten Decl. ¶¶ 3-4 (ECF No. 144-4 at 131)):

14

Based on my medical experience and expertise, I am competent to
diagnose and treat complaints of chronic pain. Morphine is a highly
addictive narcotic drug that generally is not appropriate for treating
chronic, non-cancer pain. Medical research lacks good evidence for
effectiveness or benefits of long-term opioid therapy for chronic noncancer pain.
Tolerance to opioids develops with repeated
administration, which means that a higher dosage will be required to
achieve the same effect. The risks of treating with morphine are well
established:
side effects include hyperalgesia (paradoxically
increased pain), severe constipation, respiratory depression,
generalized itching, fluid retention, and death. These risks increase
with increased dosages. Further, while dependence and addiction
may arise in any patient, the risks of abuse, diversion and overdosing,
and other adverse outcomes are increased for those patients with
histories of mental illness or substance abuse.

15
16
17
18
19
20
21
22
23

• As recently as July 30, 2015, plaintiff continued to vigorously exercise. See July 30,
2015 video submitted by defendants.

24

• CSP-SOL inmate Edward Christianson averred, in a declaration signed October 9, 2015,

25

that he has known plaintiff for more than 20 years and has “personally witnessed [plaintiff] come

26

from being a great athlete to being a man that is barely mobile . . . . he seems very depleted from

27
28

10

The record does not include a copy of this administrative appeal, which was submitted after
this case was filed.
31

1

what he used to be physically.” ECF No. 154 at 6.

2

• CSP-SOL inmate Joseph Kaufman averred, in a declaration signed October 9, 2015, that

3

he was plaintiff’s cellmate at CSP-SOL “[b]etween 2014 and 2015” and “personally witnessed,

4

on a daily basis,” plaintiff’s “struggle in dealing with chronic pain,” “both psychologically and

5

physically,” and has “seem[ed] at times very miserable.” ECF No. 154 at 5.

6

• On May 11, 2017, CSP-SOL physician Dr. Lori Kohler noted the Pain Committee’s

7

decision to taper plaintiff’s gabapentin and tramadol and not to prescribe opioids. ECF No. 144-4

8

at 127 (Df. Ex. R). Plaintiff told Dr. Kohler that if his pain meds were tapered, “he will be forced

9

to get them himself” and will “relapse.” Id. Dr. Kohler noted in part that plaintiff has “chronic

10

complaint of pain in joints [with] objective findings on imaging but he has been very functional

11

and exercises rigorously on a daily basis[.]” Id.

12

C.

13

Opinion of Defendants’ Medical Expert, Dr. Bruce P. Barnett

In addition to submitting their own declarations and exhibits, defendants Austin, Kuersten,

14

Lipson and McCue have submitted the declaration of their expert, Dr. Bruce P. Barnett, M.D.,

15

J.D., M.B.A. Dr. Barnett previously worked as a physician and medical executive for CCHCS,

16

including during the period relevant to this action, but there is no indication in the record that Dr.

17

Barnett had any direct responsibility for plaintiff’s medical care or review of plaintiff’s health

18

care appeals. See Barnett Decl. ¶¶ 1-2, and Ex. A (curriculum vitae) (ECF No. 144-4 at 5-6, 22-

19

4).

20

Dr. Barnett’s expertise includes “treatment of conditions . . . that manifest in the prison

21

population, including arthritis and degenerative joint diseases.” He is “on the editorial board of

22

the Journal of Correctional Health Care, a peer-reviewed journal;” “was a member of the Opioid

23

Workgroup Integrated Health Care and Policy Taskforce, a meeting of professionals sponsored by

24

the California Department of Public Health (CDPH);” and “also was a member of the Committee

25

convened at CCHCS to develop the Pain Management Guidelines first published in 2009.”

26

Barnett Decl. ¶ 3 (ECF No. 144-4 at 6).

27

////

28

////
32

1

Dr. Barnett’s opinions in this case are based upon his review of the relevant medical

2

records,11 pleadings, discovery materials and deposition testimony, as well as his training and

3

experience. Id. ¶ 6. Dr. Barnett has addressed the medical care provided by each defendant. In

4

summary, Dr. Barnett opines that none of the defendants, including defendant Tan, were

5

indifferent to plaintiff’s medical needs but instead “followed the standards of care for best

6

practices for prescribing opioids in accord with state and federal guidelines.” Id. ¶ 6 n.1 and ¶ 39

7

(ECF No. 144-4 at 7, 19) (fn. and citations omitted). Dr. Barnett explains:

8

Medication orders from the Defendants to [taper and] not prescribe
morphine to Mazza comported with community standards of care for
best practices and were consistent with public policy to reduce the
risk of death from opiate overdoses. Morphine is a highly addictive
drug that has been identified as a leading cause of overdose deaths.
Side effects from morphine include paradoxically increased pain
(hyperalgesia), severe constipation, respiratory depression,
generalized itching, fluid retention and death. Because of Mazza's
physical examinations, documented functional capacity, history of
drug abuse, and recent drug diversion Mazza's treating physicians
have reasonably determined they should not prescribe morphine to
Mazza . . . Moreover, the use of chronic morphine is disfavored by
authoritative medical experts who report that morphine use is often
ineffective in relieving chronic non-cancer pain and thus provides
insufficient benefits to justify the serious harmful side effects and
risk of death from overdose.

9
10
11
12
13
14
15
16
17

Barnett Decl. ¶¶ 33, 36 (ECF No. 144-4 at 16-8) (citing, inter alia, CDC Guidelines for

18

Prescribing Opioids for Chronic Pain – United States 2016).

19

VI.

20

Analysis
A.

21

Overview

The record amply supports a finding that plaintiff suffers chronic pain. “Examples of

22

serious medical needs include . . . ‘the existence of chronic and substantial pain.’” Lopez, 203

23

F.3d at 1131 (quoting McGuckin, 974 F.2d at 1059-60). The court finds accordingly that

24

plaintiff’s pain constitutes a “serious medical need” that satisfies the first part of the deliberate

25

indifference test. See Jett, 439 F.3d at 1096. No defendant asserts otherwise.

26
27
28

11

As set forth above, the undersigned has undertaken an independent review of the medical
records in tandem with the parties’ respective declarations. Dr. Barnett’s summary of the medical
record, which is not duplicated here, is consistent with the undersigned’s assessment.
33

1

The parties dispute whether defendants’ respective responses to plaintiff’s serious medical

2

needs met the second part of the deliberate indifference test, that is, whether defendants’

3

challenged “acts or omissions [were] sufficiently harmful to evidence deliberate indifference to

4

[plaintiff’s] serious medical needs.” Estelle, 429 U.S. at 106. A defendant is liable under a

5

deliberate indifference theory if he or she knows that plaintiff faces “a substantial risk of serious

6

harm and disregards that risk by failing to take reasonable measures to abate it.” Farmer, 511

7

U.S. at 837. “This ‘subjective approach’ focuses only ‘on what a defendant’s mental attitude

8

actually was.’ Farmer, 511 U.S. at 839. ‘Mere negligence in diagnosing or treating a medical

9

condition, without more, does not violate a prisoner’s Eighth Amendment rights.’ McGuckin,

10

974 F.2d at 1059 (alteration and citation omitted).” Toguchi, 391 F.3d at 1057. Thus, to

11

effectively oppose defendants’ motions, plaintiff must present admissible evidence demonstrating

12

a genuine and material factual dispute whether defendants acted with a “sufficiently culpable state

13

of mind.” Wilson, 501 U.S. at 297.

14
15
16

B.

Deliberate Indifference: Factual Dispute Common to Claims Against
All Defendants

The parties have devoted substantial briefing to their dispute about whether plaintiff’s

17

prison medical records are accurate regarding plaintiff’s reported history of substance abuse and

18

diversion of prescription medications. Plaintiff asserts that these allegations, initially noted at San

19

Quentin, are false and therefore that defendants were deliberately indifferent to plaintiff’s serious

20

medical needs when they relied on and perpetuated the allegations to deny plaintiff narcotic pain

21

medication at CSP-SOL. Defendants contend that they were obliged to consider the findings and

22

assessments of plaintiff’s prior medical providers and would have been deliberately indifferent to

23

ignore such documentation.

24

Plaintiff challenges the accuracy of three medical reports in particular:

25

(1) The March 3, 2010 Medical Management Referral, completed by San Quentin LVN

26

Gullem, documenting the report of a correctional officer that plaintiff was “attempting to hide

27

methadone [and] . . . has been caught multiple times.” ECF No. 144-4 at 39 (Dfs. Ex. B). At his

28

deposition, plaintiff testified that these statements were “unsubstantiated claims” and that he
34

1

“wasn’t cheeking medications.” Pl. Depo. at 13:3-10.

2

(2) The August 31, 2010 Chart Note completed by San Quentin physician Dr. Jenny

3

Espinoza-Marcus documenting that plaintiff’s “gabapentin and methadone were both stopped

4

because of cheeking” based on plaintiff’s blood test showing the presence of neither prescription.

5

ECF No. 144-4 at 35 (Dfs. Ex. B). At his deposition, plaintiff testified that this assessment by Dr.

6

Espinoza-Marcus was “untrue.” Pl. Depo. at 86:16-23.

7

(3) The May 17, 2012 Chart Note completed by CSP-SOL physician Dr. Lipson,

8

reflecting the findings of an interdisciplinary meeting concerning plaintiff’s care held the day

9

before. Dr. Lipson noted in pertinent part that “[t]he information from the clinical counselors

10

included prior history of cocaine, methamphetamine, and alcohol abuse and positive

11

methamphetamine tests while in [CDCR] custody. On review of the patient’s total medical

12

record, the overwhelming recommendation and conclusion from the medical and mental health

13

staff on the interdisciplinary committee is to continue the weaning of his morphine.” ECF No.

14

144-4 at 51 (Dfs. Ex. B). At his deposition, plaintiff testified that this Note contains “false

15

statements” and “none of it applies;” “[n]or was I diverting medication of any kind. I stuck to my

16

prescriptions because I needed them as far as being able to conduct my day-to-day living.” Pl.

17

Depo. at 33:9; 30:19-31:9. In his complaint, plaintiff describes this Note as “the death knell for

18

his pain relief” because Dr. Lipson shared his opinions with an interdisciplinary team that

19

included defendants Dr. McCue and Dr. McAlpine. Compl. ¶ 17, ECF No. 38 at 5-6.

20

Other than his own statements, plaintiff has presented no evidence to support a reasonable

21

inference that these and related portions of his medical records are inaccurate. Evidence of

22

plaintiff’s “clean” urinalyses and blood tests while incarcerated at CSP-SOL do not change his

23

test results at San Quentin. Courts considering similar scenarios have rejected the plaintiffs’

24

challenges for lack of evidence.12

25

12

26
27
28

See e.g. Swearington v. California Dep’t of Corr. & Rehab., 2014 WL 1671749, at *5, 2014
U.S. Dist. LEXIS 58757 (E.D. Cal. Apr. 28, 2014) (Plaintiff “claims falsification of medical
records [but] . . . offers no facts to suggest that such actions were the result of anything other than
the exercise of professional judgment or that that judgment was medically unacceptable”), aff’d,
624 Fed. Appx. 956, 958 (9th Cir. 2015); Davis v. Paramo, 2017 WL 2578747, at *14, 2017 U.S.
Dist. LEXIS 91766 (S.D. Cal. June 13, 2017) (“[A]lthough plaintiff claims falsification of his
medical records, he offers no facts supporting why and how his medical records were false.”),
35

1

“[A] party opposing a properly supported motion for summary judgment may not rest

2

upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing

3

that there is a genuine issue for trial.” Anderson, 477 U.S. at 248 (citation and internal quotation

4

marks omitted). “The mere existence of a scintilla of evidence in support of the plaintiff's

5

position will be insufficient; there must be evidence on which the jury could reasonably find for

6

the plaintiff.” Id. at 252. “‘[T]he issue of material fact required by Rule 56(c) to be present to

7

entitle a party to proceed to trial is not required to be resolved conclusively in favor of the party

8

asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed

9

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

10

truth at trial.’” Id. at 248-49 (quoting First National Bank of Arizona v. Cities Service Co., 391

11

U.S.253, 288-89 (1968).

12

Plaintiff has not identified evidence sufficient to put the accuracy of the medical records

13

into genuine dispute within the meaning of Rule 56. A reasonable jury could not find, based on

14

the record presented, that the challenged medical assessments were unsubstantiated. Indeed, the

15

medical record includes plaintiff’s own statement that he diverted medication. See ECF No. 144-

16

4 at 36 (Dfs. Ex. B) (Aug. 29, 2010 note plaintiff wrote to Dr. Espinza-Marcus stating, “I admit I

17

haven’t been taking my gabapentin.”). Also, evidence of plaintiff’s prior substance abuse as

18

reflected in his criminal history is consistent with the challenged reports.

19

Even if there were a dispute of fact as to the accuracy of these records, however, it would

20

not be a material dispute. This case turns on the state of minds of the defendants when they made

21

or endorsed decisions regarding morphine at CSP-SOL. Statements in earlier medical records are

22

relevant to the deliberate indifference inquiry only to the extent that they constitute information

23

on which defendants may have relied. If a defendant relied on information from past providers,

24
25
26
27
28

report and recommendation adopted, 2017 WL 2959170 (S.D. Cal. July 11, 2017); Warzek v.
Onyeje, 2020 WL 1865186, at *9, 2020 U.S. Dist. LEXIS 65567 (E.D. Cal. Apr. 14, 2020)
(report and recommendation) (“[A]lthough plaintiff claims falsification of his medical records, he
offers no evidence to support his contention, and plaintiff does not have an independent right to
an accurate prison record.” (Citations omitted).); see also Bartholomew v. Traquina, No. 10-cv03145 EFB P, 2011 WL 4085479, at *3, 2011 U.S. Dist. LEXIS 103574 (E.D. Cal. Sept. 13,
2011) (“The falsification of records itself is insufficient to state a cognizable claim of deliberate
indifference to plaintiff’s serious medical needs.”).
36

1

the inaccuracy of the information – even if proved – would not be probative of deliberate

2

indifference. To the contrary, defendants were obligated to review and consider all of plaintiff’s

3

medical records in making their own medical findings, assessments and treatment decisions.

4

Reliance on inaccurate medical records could only support deliberate indifference if the

5

inaccuracy was subjectively known to the defendant, and deliberately disregarded without

6

concern for the risk thereby posed to plaintiff. There is no evidence of that here, as discussed

7

further below.

8

C.

Deliberate Indifference: Individual Defendants

9

The narrow question before this court is whether there is a triable issue of fact regarding

10

the allegations that defendants were deliberately indifferent to plaintiff’s serious medical needs

11

when they tapered, discontinued and/or refused to prescribe him morphine. See Compl., ECF No.

12

38 at 3-8, 132-33. More specifically, plaintiff contends that defendants failed to abide by the

13

decisions of his medical specialists, neurologist Dr. Mitchell who prescribed morphine to

14

plaintiff, and rheumatologist Dr. McAlpine who endorsed that prescription. Id. Deliberate

15

indifference can be shown by the denial or delay of medical care or intentional interference with

16

prescribed treatment. Estelle, 429 U.S. at 104-05. The question on summary judgment is

17

whether there is sufficient evidence to put to a jury that the morphine recommendations were

18

overridden with the requisite culpable state of mind.

19

1.

Dr. Lipson

20

The evidentiary record demonstrates that Dr. Lipson sought extensive diagnostic

21

evaluations to assess plaintiff’s several medical conditions and prescribed numerous medications

22

and other treatments in an effort to reduce plaintiff’s pain. Upon assuming plaintiff’s care as his

23

PCP at CSP-SOL in May 2011 – and until Dr. McAlpine recommended tramadol in February

24

2012 and Dr. Mitchell prescribed morphine in March 2012 – Dr. Lipson declined plaintiff’s

25

requests to prescribe narcotic pain medications. Dr. Lipson’s reasons included not only plaintiff’s

26

prior medication diversion but his “good musculature throughout” and plaintiff’s reports that he

27

was “still working out.” ECF No. 144-4 at 64, 72-3. Dr. Lipson opined that plaintiff’s “muscular

28

physique indicated that he still was participating in intense workouts at a level that exacerbated
37

1

his conditions and contributed to his pain.” Lipson Decl. ¶ 11 (ECF No. 144-4 at 144). Plaintiff

2

has presented no evidence to support a reasonable inference that Dr. Lipson’s decision not to

3

prescribe narcotic medications during this period was “medically unacceptable” or reflected a

4

“conscious disregard of an excessive risk to plaintiff's health.” Jackson v. McIntosh, 90 F.3d 330,

5

332 (9th Cir. 1996).

6
7
8
9
10
11

When Dr. McAlpine recommended tramadol for plaintiff in February 2012, Dr. Lipson
prescribed it. ECF No. 144-4 at 56-7; Lipson Decl. ¶¶ 16-7 (ECF No. 144-4 at 145).
When Dr. Mitchell prescribed morphine for plaintiff in March 2012 (and Dr. McAlpine
agreed in April 2012), Dr. Lipson did not interfere, declining only to prescribe tramadol at the
same time. ECF No. 144-4 at 54-5; Lipson Decl. ¶ 19 (ECF No. 144-4 at 145).
Due to plaintiff’s documented history of medication diversion, Dr. Lipson opined that it

12

was in plaintiff’s best interests to taper his morphine prescription after the initial prescription

13

expired on May 5, 2012. However, in response to plaintiff’s emotional distress at this news and

14

Dr. Mitchell’s agreement to defer to the assessment of the Pain Committee, Dr. Lipson did not

15

initiate the taper. Dr. Mitchell renewed the prescription before the Pain Committee meeting,

16

which determined a week later that plaintiff’s morphine prescription should be tapered. On May

17

17, 2012, Dr. Lipson ordered the taper to commence and proceed over a two-week period, noting

18

that this decision reflected the opinion of the “Institutional Pain Committee and Interdisciplinary

19

Assessment.” ECF No. 144-4 at 88. That decision, though at odds with the opinion of

20

neurologist Dr. Mitchell, included the opinion of rheumatologist Dr. McAlpine, who was also

21

CSP-SOL Chief Physician and Surgeon.

22

A medical decision that overrides the opinion of a specialist is not deliberately indifferent

23

if it is an otherwise “medically acceptable option.” See Colwell v. Bannister, 763 F.3d 1060,

24

1068-70 (9th Cir. 2014); cf. Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012), overruled in

25

part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (rejection of specialist

26

medical opinion may constitute deliberate indifference if based on improper motives unrelated to

27

plaintiff’s medical needs). “[W]here a defendant has based his actions on a medical judgment

28

that either of two alternative courses of treatment would be medically acceptable under the
38

1

circumstances, plaintiff has failed to show deliberate indifference, as a matter of law.” Jackson v.

2

McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (citations omitted). The record is devoid of evidence

3

that the specialist’s opinion was rejected in favor of a “medically unacceptable” option.

4

Additionally, the record does not support a finding of harm to plaintiff as a result of the

5

morphine taper initiated by Dr. Lipson on May 17, 2012, which led to the discontinuation of

6

plaintiff’s morphine approximately June 1, 2012. “[A] prisoner can make no claim for deliberate

7

medical indifference unless the denial was harmful.” McGuckin, 974 F.2d at 1060. Plaintiff had

8

access to all of his other pain medications during this period, and Dr. Mitchell again prescribed

9

morphine three weeks later, on June 21, 2012. Thereafter, until his departure from CSP-SOL in

10

January 2013, Dr. Lipson deferred to Dr. Mitchell’s decision to prescribe morphine to plaintiff.

11

Dr. Lipson also prescribed tramadol for plaintiff during the same period.

12

“‘[A] plaintiff’s showing of nothing more than a difference of medical opinion as to the

13

need to pursue one course of treatment over another [is] insufficient, as a matter of law, to

14

establish deliberate indifference.’” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012)

15

(quoting Jackson, 90 F.3d at 332)). For the foregoing reasons, the undersigned finds that no

16

reasonable trier of fact could find Dr. Lipson’s initial refusal to prescribe plaintiff morphine or his

17

later taper of Dr. Mitchell’s morphine prescription, resulting in a three-week suspension of

18

plaintiff’s morphine, were acts taken in conscious disregard of plaintiff’s serious medical needs.

19

Accordingly, the undersigned recommends that summary judgment be granted for defendant Dr.

20

Lipson.

21

2.

22

Dr. McCue

Plaintiff contends that after the May 16, 2012 decision of the CSP-SOL interdisciplinary

23

committee, all of the remaining defendants – Drs. McCue, Kuersten, Tan and Austin – “embarked

24

on a directive to undermine the decisions made by Dr. McAlpine, and Neurology specialist Dr.

25

Mitchell’s course of pain management treatment[.]” Compl., ECF No. 38 at 7. In opposition to

26

the pending motions, plaintiff argues that “Dr. McCue having been in a position of authority

27

during the dates in question could of [sic] interceded on my behalf.” ECF No. 149 at 5.

28

////
39

1

Dr. McCue was, at this time, both a rheumatologist and CSP-SOL Chief Medical

2

Executive. Dr. McCue’s initial contact with plaintiff on January 24, 2012 was initiated by Dr.

3

Lipson’s request that McCue conduct a “high-risk evaluation” of plaintiff’s medical and treatment

4

needs. Dr. McCue found Dr. Lipson’s treatment plan was “medically appropriate” and that

5

“morphine was not medically indicated” to treat plaintiff’s complaints of chronic pain. ECF No.

6

144-4 at 76-7; McCue Decl. ¶ 8 (ECF No. 144-4 at 138). Dr. McCue recommended a

7

prescription for Cymbalta, requested that Dr. McAlpine also look into plaintiff’s care, and noted

8

that plaintiff’s care would be the subject of an upcoming pain management committee meeting.

9

Id.

10

Dr. McCue attended the May 16, 2012 pain committee meeting and sat in on “an

11

interdisciplinary committee and pain-management committees that discussed the preferred course

12

of treatment to manage Mazza’s complaints of chronic pain in light of his known medical

13

history.” McCue Decl. ¶ 9 (ECF No. 144-4 at 138). Dr. McCue avers that, although he did not

14

direct plaintiff’s care, he “agreed with the course of treatment advised by Mazza’s treating

15

physician.” Id. Dr. McCue left CSP-SOL in September 2012. Id. ¶ 1.

16

Dr. McCue involvement in plaintiff’s treatment was limited to his assessment that Dr.

17

Lipson’s medical care of plaintiff was appropriate. In the absence of any evidence supporting a

18

reasonable inference that Dr. Lipson’s care of plaintiff was “medically unacceptable” or evinced a

19

“conscious disregard of an excessive risk to [his] health,” Jackson, 90 F.3d at 332, Dr. McCue’s

20

agreement with Dr. Lipson’s care also fails to demonstrate deliberate indifference. Cf. Taylor v.

21

List, 880 F.2d 1040, 1045 (9th Cir. 1989) (supervisors may be liable only if they “participated in

22

or directed” constitutional violations or” knew of the violations and failed to act to prevent

23

them”). Accordingly, the undersigned recommends that summary judgment be granted for

24

defendant Dr. McCue.

25
26

3.

Dr. Tan

In addition to his allegations that all defendants undermined the treatment decisions of

27

Drs. Mitchell and McAlpine, Compl., ECF No. 38 at 7, plaintiff generally contends that Dr.

28

Tanacted in concert with the other defendants to take an active part in the actions that triggered
40

1

this complaint. Plaintiff points out that Dr. Tan’s name recurs in the record of plaintiff’s health

2

care appeals, reflecting his involvement. ECF No. 149 at 5-6.

3

The record shows that Dr. Tan participated in two of plaintiff’s administrative appeals.

4

Dr. Tan initially interviewed and examined plaintiff on March 19, 2013, on the First Level

5

Review of his administrative appeal Log No. SOL HC 13037465. Compl., ECF No. 38 at 91-2.

6

Plaintiff sought a neurosurgery referral for his neck and implementation of Dr. Parmar’s January

7

8, 2013 telemedicine suggestion plaintiff be prescribed oxycontin rather than morphine.13 Dr.

8

Tan found that neither a neurosurgery referral nor an oxycontin prescription were warranted

9

based on plaintiff’s overall strength and ability to vigorously exercise. Nevertheless, Dr. Tan

10

partially granted the appeal on the ground that he referred plaintiff to Dr. Mitchell and his PCP

11

for further evaluation.

12

Dr. Tan next interviewed and examined plaintiff on December 12, 2013, as part of a

13

Second Level Review of his administrative appeal Log No. SOL HC 13038044. ECF No. 144-4

14

at 110, 113. Plaintiff sought to reinstate his morphine prescription. Rather than reach an

15

immediate decision, Dr. Tan chose to present plaintiff’s request to the Pain Committee which met

16

five days later on December 17, 2013. The Committee denied plaintiff’s request, which Dr. Tan

17

recounted in a December 19, 2013 Progress Note. Id. at 110. Although Dr. Tan’s notes were not

18

included in the final decision, the formal Second Level Response reached the same conclusion.

19

In both of these instances Dr. Tan submitted plaintiff’s request to reinstate his morphine

20

prescription to more knowledgeable medical sources, first to Dr. Mitchell, then to the eleven-

21

member CSO-SOL Pain Committee. These actions demonstrate that, notwithstanding his own

22

professional assessments, Dr. Tan endeavored to obtain the most appropriate medical treatment

23

for plaintiff’s pain symptoms. More broadly, Dr. Tan’s participation in reviewing plaintiff’s

24

administrative appeals does not, without more, support a cognizable claim.14 Accordingly, the

25

13

26
27
28

Plaintiff’s reliance on Dr. Parmar’s telemedicine renewal of his morphine prescription on
January 8, 2013 is of limited relevance. The single-page, sparsely worded, “Office Visit Note”
noted both plaintiff’s complaint of increased neck pain and the fact that he remained “physically
active;” Compl., ECF No. 38 at 66.
14
A prisoner has no constitutional right to a grievance procedure and therefore no right to a
favorable response. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003), cert. denied, 541
41

1
2
3

undersigned recommends that summary judgment be granted for defendant Dr. Tan.
4.

Dr. Kuersten

Plaintiff contends that Dr. Kuersten “deviated from an ethical course in medicine when

4

assuming the role as my PCP, took the authoritative position to foment further abuse that

5

originated from Lipson’s chart note and allegations of ‘aggressive exercise’ and physique. . . .

6

[H]e overrode the treatment plan of the previous CME, Dr. McAlpine, neurology specialist Dr.

7

Mitchell and pain management specialist Dr. Parmar [.]” ECF No. 149 at 5.

8
9

Dr. J. Kuersten has been CSP-SOL Chief Medical Executive (CME) since July 23, 2013;
he became Acting CME on April 13, 2013. The record reflects three occasions when Dr.

10

Kuersten rejected plaintiff’s requests for morphine. The first occasion was on June 5, 2013, when

11

Dr. Kuersten, as Acting CME, received notification that plaintiff’s prescription for morphine had

12

expired. As set forth at length supra, Dr. Kuersten undertook a comprehensive review of

13

plaintiff’s medical records and contacted Dr. Mitchell to determine his rationale for prescribing

14

morphine. As reported by Dr. Kuersten, Dr. Mitchell informed him “that he may have felt

15

somewhat pressured by Mazza to prescribe morphine and that he had no objection to its

16

discontinuation, especially if discontinuation was recommended by the pain committee, which it

17

was.” ECF No. 144-4 at 96-7; Kuersten Decl. ¶¶ 6-12 (ECF No. 144-4 at 131-32). Dr. Kuersten

18

met with plaintiff the next day, on June 6, 2013, and informed him that a morphine taper would

19

begin. Id. Dr. Mitchell himself began the taper on June 27, 2013. ECF No. 144-4 at 100. Thus,

20

at this juncture, none of plaintiff’s medical providers were endorsing a prescription for morphine.

21

Dr. Kuersten’s second involvement with plaintiff’s care was his attendance at a December

22

17, 2013 pain committee meeting with ten other staff members. The committee as a whole

23

considered Dr. Tan’s presentation of plaintiff’s conditions and treatments and concluded that the

24

risks outweighed the benefits of prescribing him morphine. ECF No. 144-4 at 110, 113. As in

25

U.S. 1063 (2004); accord, George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) (“[r]uling
against a prisoner on an administrative complaint does not cause or contribute to [a constitutional]
violation”); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (prison official whose only role
involved the denial of a prisoner’s administrative grievance cannot be held liable under Section
1983), cert. denied, 530 U.S. 1264 (2000); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993)
(a “prison grievance procedure is a procedural right only, it does not confer any substantive right
upon the inmates”) (internal punctuation omitted).
42

26
27
28

1
2

June 2013, the decision reflected no disagreement among plaintiff’s medical providers.
The third and last involvement Dr. Kuersten had with plaintiff, as reflected in the record,

3

was his Second Level Review of plaintiff’s 2015 administrative appeal, Log No. SOL-HC-

4

15040586. Kuersten Decl. ¶ 13 (ECF No. 144-4 at 133-34). Dr. Mitchell had, on January 30,

5

2014, recommended the resumption of plaintiff’s morphine prescription. Compl., ECF No. 38 at

6

130; ECF No. 144-4 at 124. Nevertheless, this advice was rejected by plaintiff’s CSP-SOL

7

medical providers, as confirmed in Dr. Kuersten’s administrative response. Dr. Kuersten

8

endorsed the findings on First Level Review by Dr. Mulligan-Pfile that plaintiff “continued to

9

engage in vigorous and frequent exercise, had well-developed musculature, and displayed no

10

apparent functional limitations. [Also] . . . Mazza's urine had recently screened positive for

11

methadone, even though he was not being prescribed it at the time. Dr. Mulligan-Pflle did not

12

conclude that either treatment with morphine or any other additional treatment was medically

13

indicated.” Kuersten Decl. ¶ 13 (ECF No. 144-4 at 133-34). Dr. Kuersten’s decision was

14

supported by his assessment of the risks and benefits of prescribing morphine to patients with

15

histories of substance abuse or mental illness. Kuersten Decl. ¶ ¶ 3-4 (ECF No. 144-4 at 131).

16

This evidence shows that Dr. Kuersten actively engaged in the assessment of plaintiff’s

17

subjective complaints of pain, his ongoing physical activity, and his medical care to conclude that

18

plaintiff was effectively treated without morphine. “Eighth Amendment doctrine makes clear that

19

a difference of opinion between a physician and the prisoner – or between medical professionals –

20

concerning what medical care is appropriate does not amount to deliberate indifference. Rather,

21

to show deliberate indifference, the plaintiff must show that the course of treatment the doctors

22

chose was medically unacceptable under the circumstances and that the defendants chose this

23

course in conscious disregard of an excessive risk to the plaintiff's health.” Hamby v. Hammond,

24

821 F.3d 1085, 1092 (9th Cir. 2016) (citations and internal quotation marks omitted). Here Dr.

25

Kuersten concluded that again prescribing morphine created greater risks to plaintiff than

26

refraining from doing so. Neither plaintiff’s difference of opinion with Dr. Kuersten, nor Dr.

27

Mitchell’s intermittent recommendation for morphine, demonstrate that Dr. Kuersten’s decisions

28

were medically unacceptable. Therefore, the undersigned recommends that summary judgment
43

1

be granted for defendant Dr. Kuersten.

2

5.

3

CEO Austin

Plaintiff named defendant Austin in her role as CSP-SOL Medical Department’s Chief

4

Executive Officer (CEO) and alleged that she was “legally responsible” for the other defendants’

5

challenged conduct. Compl., ECF No. 28 at 2. Plaintiff contends that as CEO Austin “was aware

6

and participated in my health care by screening my HC 602s and not intervening when it should

7

of [sic] been appropriate.” ECF No. 149 at 5.

8

Defendant Austin contends that, because she is not a physician, she cannot be held

9

responsible for treatment decisions over which she had no authority. ECF No. 144-1 at 9. Austin

10

avers that in her role as CEO she was neither knowledgeable nor responsible for assessing the

11

quality of inmates’ medical care.15 Rather, as previously set forth, “the scope of [her] review was

12

purely administrative and was limited to overseeing compliance with the appeals process.” Austin

13

Decl. ¶ 7 (ECF No. 144-4 at 155). More specifically, defendant Austin avers that she “was never

14

responsible for, nor authorized to, diagnose or treat inmate Bryan Mazza,” “never sat in on or

15

participated in Mazza’s pain-management committee meetings,” and “never interfered with or

16

delayed the care directed by his treating physicians.” Id. ¶ 6.

17

Prison officials, particularly those in administrative positions, may be “liable for

18

deliberate indifference when they knowingly fail to respond to an inmate’s requests for help.”

19

Jett, 439 F.3d at 1098 (citations omitted). A correctional official with supervisory authority who

20

is informed of an alleged constitutional violation, e.g. when reviewing an inmate’s administrative

21

appeal, may be held responsible for failing to remedy such violation. Id.

22
23

The only appeal identified by the parties in which Austin participated resulted in plaintiff
receiving all of the relief he requested except for assignment of a new PCP. See Compl., ECF

24
15

25
26
27
28

Defendant Austin avers that “[w]hen reviewing inmate health-care appeals . . . I was not
authorized to, and did not, evaluate the substance of the response or the medical care provided”
and “did not review the inmate’s medical records or clinical findings” but relied on the expertise
of medical staff who were assigned to address the substantive health care issues. Austin Decl. ¶ 4
(ECF No. 144-4 at 155). Austin explains, “I am not a doctor and I am not licensed to prescribe
medications. I have no authority to overrule treatment determinations made by physicians or to
direct a physician to follow any particular course of treatment.” Id. ¶ 5.
44

1

No. 38 at 99, 101-02 (Aug. 28, 2012 Second Level Response to plaintiff’s appeal Log No. SOL

2

HC 12036635). No reasonable trier of fact could find that this appeal informed Austin of a

3

violation of plaintiff’s Eighth Amendment rights which she disregarded. There are no other

4

pertinent allegations against defendant Austin. There is no respondeat superior liability in § 1983

5

cases, Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978), so Austin cannot be liable on the

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theory that she is responsible as CEO for the actions of subordinate staff; this would be the case

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even if she had supervisory authority over medical treatment, which she did not. For these

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reasons, the undersigned recommends that summary judgment be granted for defendant Austin.

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D.

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Summary

Careful review of plaintiff’s substantial medical record demonstrates that he has been

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regularly provided care for his serious medical needs, including diagnostic imaging, medication,

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physical therapy, and specialist referrals. The decisions to deny plaintiff morphine were based on

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numerous medically appropriate factors, including plaintiff’s documented higher risk of abuse.

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All of the defendants sought to reduce plaintiff’s pain with treatments and modalities other than

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morphine. As noted by defendants’ medical expert, these decisions were consistent with the

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consensus of authoritative medical experts reflected in the CDC Guidelines for Prescribing

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Opioids for Chronic Pain that, as a general rule, the risks of prescribing morphine to relieve

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chronic non-cancer pain outweigh the benefits. Barnett Decl. ¶ 36. For these reasons, and the

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many others set forth above, the undersigned finds that no jury could find that any of the medical

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decisions challenged in this case reflect deliberate indifference to plaintiff’s serious medical

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needs.

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VII.

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For the foregoing reasons, IT IS HEREBY RECOMMENDED that:

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1. Defendants’ motions for summary judgment, ECF Nos. 143 and 144, be GRANTED;

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2. Judgment be entered for defendants Lipson, McCue, Kuersten, Austin and Tan; and

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3. 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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Conclusion

assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21)
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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that

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failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).  

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DATED: June 23, 2020

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