Taylor v. Lewis et al

Filing 40

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 7/19/21 RECOMMENDING that defendant's motion for summary judgment 38 be granted. Motion for Summary Judgment 38 referred to Judge John A. Mendez. Objections due within 14 days.(Plummer, M)

Case 2:18-cv-00149-JAM-DMC Document 40 Filed 07/19/21 Page 1 of 19
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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOE NATHAN TAYLOR,

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Plaintiff,

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v.

No. 2:18-CV-0149-JAM-DMC-P

FINDINGS AND RECOMMENDATIONS

J. MA,

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Defendant.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42

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U.S.C. § 1983. Pending before the Court is Defendant’s unopposed motion for summary

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judgment, ECF No. 38. The undersigned United States Magistrate Judge recommends granting

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Defendant’s motion.

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Case 2:18-cv-00149-JAM-DMC Document 40 Filed 07/19/21 Page 2 of 19
I. PLAINTIFF’S ALLEGATIONS

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According to the operative first amended complaint, Plaintiff is an inmate at

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California State Prison – Sacramento (CSP-Sac) and the events giving rise to this complaint

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occurred at CSP-Sac. ECF No. 12, page 1. J. Ma, a primary care physician employed at CSP-Sac,

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is the sole remaining Defendant.

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Plaintiff claims he previously underwent an “arthroscopic knee surgery” in 2002

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that removed cartilage from within Plaintiff’s knee and causes the bones to painfully grind

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together. See id. at 4, 13. Plaintiff describes his pain as “excessive grating and loud hurtful

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popping” of the knee joint, necessitating careful movement to avoid temporary pain. Id. at 7.

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Plaintiff allegedly also suffers from spinal and degenerative arthritis that Plaintiff describes as

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pain and stiffness in his neck, upper back and shoulders, as well as numbness in both hands. Id. at

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5. Plaintiff claims his pain prevents him from sleeping, performing daily functions, and working.

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Id. at 2. Allegedly, Defendant Ma’s treatments included limiting “walking; standing; stooping;

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and going up [and] down stairs,” wearing a knee brace on Plaintiff’s left knee and orthopedic

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shoes, and using a walking cane for five months. Id. at 5, 8. A different doctor, J. Wedell,

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determined Plaintiff needed a steroid injection. Id. at 6. After this shot, Plaintiff claims he had

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“his left knee drained of fluids twice and two more steroid injections performed by Dr. Ma.” Id.

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Plaintiff asserts this proves Ma’s knowledge “that Plaintiffs injury and his pain is significant and

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needs protection.” Id. at 7.

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Defendant, according to the complaint, purposefully lied that Plaintiff was on

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Methadone to cope with Plaintiff’s pain before using Tramadol. Id. at 6. Plaintiff asserts he never

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took Methadone and never showed any side effects from taking Tramadol that justified

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discontinuing its use. Id. at 6-7. Plaintiff claims that when Ma took Plaintiff off Tramadol and

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proscribed Ibuprofen, the lack of pain relief caused Plaintiff to take Ibuprofen in larger doses. Id.

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at 7. Plaintiff alleges that the daily five to six 400 mg doses of Ibuprofen medication Plaintiff is

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now taking is adversely affecting his gastrointestinal tract. Id. at 8-9. Plaintiff alleges he acquires

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the Ibuprofen “if he is able to make it to the prison canteen” and “if he doesn’t make it then there

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exist no relief at all and no treatment.” Id. at 8. In conclusion, Plaintiff alleges that his medical
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issues and debilitating condition are a result of the arthroscopic surgery and Ma has failed to

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provide adequate medical relief. Id. 7-8.

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II. THE PARTIES’ EVIDENCE

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Defendant supports his motion for summary judgment with a Statement of

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Undisputed Facts with references to attached evidence. ECF No. 38-2. According to the

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Defendant, the followings facts are undisputed:

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1.
Plaintiff Joe Taylor (D-86762) is a state prisoner currently
housed at California State Prison – Sacramento (CSP-Sac), where he was
also housed at the time of the alleged events. (Defendant’s Exhibit A,
declaration of A. Crawford and documents from Plaintiff’s central file
(DX A, p. 1.))

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2.
Defendant Ma is a physician employed by the California
Department of Corrections and Rehabilitation, who worked at California
State Prison – Sacramento. (First Amended Complaint, § B.)

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3.
Plaintiff has chronic knee pain, intermittent back pain and
shoulder pain. (Defendant’s Exhibit B, declaration of K. Bliss and
documents from Plaintiff’s medical file (DX B, p. 3.))

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4.
Plaintiff’s medical record indicates that he had arthroscopic
knee surgery in 2002, that there was a time his pain appeared worse and
was put on Methadone between August 2011 and June 2012. (DX B, p. 3.)
Plaintiff’s was prescribed Tramadol for his back pain. (DX B, p. 5.)

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5.
Tramadol is a short acting opioid and is used to treat
moderate to severe pain in adults. [(Defendant’s Exhibit C, Pain
Management Guidelines](DX C, p. 14.))

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6.
In 2009, the State of California Prison Health Care Services
published a Pain Management Guideline to standardize the evaluation and
treatment of pain within the California Prison Health Care Services
system. (DX C.) Under the Health Care Services Pain Management
Guidelines, Tramadol is a non-formulary drug and chronic use is not
recommended for chronic pain. (DX C.) Short term use of Tramadol may
be considered for patients not responsive to Tylenol #3 (acetaminophen
and codeine). (Id.)

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7.
Narcotics are disfavored for long term treatment of noncancer pain, even in patients without a history of abuse. (DX C, p. 1.)
There is little evidence supporting the long-term use of opiates for chronic
muscle and joint pain, and at the same time there is increasing awareness
that opioids are subject to abuse. (DX C, p. 1.)

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8.
For chronic pain treatment, the focus is on increasing the
patient’s function. (DX C, p. 2, 5, 7.) The overriding message to the
patient is that nothing is likely to take away all of their pain. (DX C, p. 27.)
9.
Plaintiff was evaluated by Dr. Ma on April 23, 2014 for
complaints of left knee pain. (DX B, p. 3-4.) Plaintiff complained of
worsening pain and stated that he had not be able to work out that much
due to the pain. Plaintiff was on a number of medications including
Aspirin, 81 mg daily once a day and Tramadol, 100 mg twice a day. Dr.
Ma believed the knee pain was from arthritis and explained to Plaintiff
about the nature of his knee condition. Dr. Ma believed that nonsteroidal
anti-inflammatory medication for pain control was a better treatment plan.
He told Plaintiff to slow down his weight bearing exercise. Dr. Ma also
offered a job modification, which Plaintiff declined. (DX B, p. 4.)
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As a result of that evaluation, Dr. Ma ordered an x-ray of
Plaintiff’s left knee. (DX B, p. 4.)
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The x-ray study showed a joint effusion without acute
osseous injury identified. No fracture or dislocation was seen, and mild
degenerative changes were present. (DX B, p. 5.)
12.
On July 9, 2014, Plaintiff was seen by Dr. Ma again for
knee pain. Dr. Ma had previously evaluated Plaintiff’s left knee, and in the
most recent evaluation did not see any signs of meniscus tear or ligament
tear. Dr. Ma did not see any signs of an operable condition and therefore
no indication for a MRI or Orthopedic Surgeon consult was ordered. (DX
B, p. 7.)
13.
Plaintiff’s job was noted as a tier tender which involved
frequent and repetitive walking up and down stairs. Dr. Ma told Plaintiff
to modify his activity and ordered a knee brace. (DX B, p. 7.)
14.
Dr. Ma saw the Plaintiff for left knee pain on August 19,
2014. (DX B, p. 9.) Dr. Ma noted active and passive range of motion,
which was essentially normal although Plaintiff had some pain when he
fully extended and fully flexed his left knee. (Id.) There was crepitus noted
in the left knee and also tenderness to palpation along the medical and
lateral aspect of Plaintiff’s knee. (Id.) The anterior-posterior drawer test,
valgus-varus test and Lachman test were normal. The McMurray test was
questionably positive. (Id.) Dr. Ma believed Plaintiff’s knee issue was
caused by some degeneration, with possible internal derangement, and that
Plaintiff was a good candidate for a steroid injection. (Id.) Dr. Ma again
recommended that Plaintiff quit his job to avoid walking up and down
stairs repetitively to avoid irritation to his knee and would update his
chrono. (DX B, p. 9-10.)
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On October 20, 2014, Plaintiff was seen by Dr. Ma for
several medical issues, including his chronic left knee pain. Dr. Ma noted
that he previously thought to send Plaintiff for an MRI, but that there was
not much clear indication for him to get surgical repair. (DX B, p. 13-14.)
Therefore Dr. Ma held off the MRI request and recommended a steroid
injection, which was provided by another medical provider. (DX B, pp.
13-14.)
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16.
Following the steroid injection, Plaintiff stated that his knee
pain had subsided and he was happy with the injection result. (DX B, p.
16.) Dr. Ma recommended conservative treatment, including activity
modification and intermittent steroid injection, rather than operable
pathology. (DX B, p. 13-16.)
17.
On December 24, 2014, Plaintiff was seen for a follow up
on his left knee pain and for an eye issue. (DX B, p. 16.) The medical
progress note indicates Plaintiff had arthroscopic surgery back in 2002,
and that a previous x-ray showed significant osteoarthritis involving the
left knee. Dr. Ma recommended that Plaintiff get another aspiration and
steroid injection. (Id.)
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On January 6, 2015, Dr. Ma performed a left knee intraarticular steroid injection for Plaintiff’s chronic knee pain. (DX B, p. 18.)
Dr. Ma again noted that Plaintiff had a history of left knee surgery in 2002
for meniscus pathology, but felt another injection would provide another
period of pain relief. Dr. Ma also discussed alternative options with
Plaintiff. (Id.) Dr. Ma also cautioned Plaintiff about his weight-bearing
activities, and told him to notify medical if Plaintiff felt the pain getting
worse or noticed swelling or redness. (Id.)
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On February 20, 2015, Dr. Ma saw Plaintiff for a follow-up
from offsite specialty consult. (DX B, p. 21.) It appeared that the transport
was a mistake, as Plaintiff was seen by an Ophthalmologist on January 13,
2015. Otherwise, Plaintiff had no complaints. (Id.)
20.
On April 16, 2015, Dr. Ma saw Plaintiff for, among other
things, chronic bilateral knee pain. Plaintiff complained the pain was
worse on the left side in the past several months. (DX B. p. 22-23.)
Plaintiff also complained of chronic back pain. (Id.) Dr. Ma noted that he
had performed a steroid injection a couple of months prior, which
achieved pain relief, but now Plaintiff was stating he felt weak in the left
knee and was having some knee buckling. (Id.) His prior x-ray showed
some degenerative change. His right knee was noted as good. The reported
buckling in his knee raised some concern about possible internal
derangement, however, Plaintiff’s physical examination was essentially
normal or insignificant. (Id.) Dr. Ma wrote a request for Plaintiff to get
physical therapy to strengthen his quadriceps muscle. He discussed the
plan with Plaintiff, and Plaintiff was in agreement. (Id.) As for Plaintiff’s
back pain, there was no new development and he denied radiation of the
pain, therefore, Dr. Ma encouraged Plaintiff to continue stretching. (Id.)
Dr. Ma also re-ordered a knee brace for Plaintiff’s left knee. (Id.)
21.
Dr. Ma saw Plaintiff the following month on June 19, 2015,
for a follow up on his left ankle and laboratory results. (DX B, p. 26-27.)
X-rays of Plaintiff’s ankle showed no fracture or dislocation. (Id.) During
the exam, Dr. Ma noted that Plaintiff was wearing a left knee brace, and
recommended that Plaintiff not wear his knee brace in his cell, and elevate
his left leg whenever possible. (Id.)
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On June 30, 2015, Plaintiff was seen by Physical Therapist
L. Herrera for physical therapy for his knee.
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Plaintiff went to physical therapy again on July 21, 2015.
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24.
On August 13, 2015, Plaintiff was seen by Dr. Ma for
intermittent left ankle swelling and pain as a result of a sports injury. (DX
B, p. 28.) Plaintiff had sprained his ankle and x-rays reported no fracture
or dislocation. (Id.) Plaintiff noted that the swelling became worse after he
has been walking or jogging. (Id.) Dr. Ma again advised Plaintiff to stop
his weight-bearing activities for the present, and do gradual weightbearing in the future. (Id.)
25.
On November 2, 2015, Plaintiff was seen by Dr. Ma for
other medical issues. However, Dr. Ma documented Plaintiff’s history of
chronic bilateral knee pain, but noted that Plaintiff did not complain of his
knee pain on this visit. (DX B, p. 30)
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On February 9, 2016, Dr. Ma examined Plaintiff for several
chronic medical problems, including hypertension, hyperlipidemia and
chronic bilateral knee pain. (DX B, p. 40-41.) During this visit, Plaintiff
complained of knee pain, particularly on the left side. (Id.) His
prescription of Tramadol was set to expire in two weeks and Plaintiff
requested to be on the medication continuously. (Id.) The objective portion
of the exam noted that he was not in acute distress and walked with a
normal gait. (Id.) Plaintiff did have some intermittent swelling and severe
arthritis, and as a result Dr. Ma believed that Tramadol was likely
indicated and renewed the medication. (Id.)
27.
On April 20, 2016, Dr. Ma saw the patient regarding
complaints of swollen ankles and loss of balance. (DX B, p. 40-41.) He
examined Plaintiff, and also requested an MRI for him. (Id.)
28.
On May 18, 2016, Plaintiff was seen by Dr. Ma for a
follow up related to a blood pressure issue, laboratory results and
dizziness. (DX B, p. 48-49.)
29.
On June 27, 2016, Dr. Ma saw Plaintiff for a follow up of
his MRI results. (DX B, p. 51, 53.) Dr. Ma discussed Plaintiff’s MRI
results which were reported as normal. He also noted that at the time
Plaintiff walked with a normal gait. (DX B, p. 53.)
30.
One month later Plaintiff was seen for a chronic care follow
up of hypertension, hyperlipidemia, bilateral knee pain and dizziness. (DX
B, p. 56-57.) As to his bilateral knee pain, his pain had been under
adequate control and there were no new development. (Id.) Both his
chronic knee pain and back pain were stable, and the plan was to continue
him on his current treatment regimen, including Tramadol. (Id.) His
hypertension was well-controlled, hyperlipidemia was normalized and his
chronic knee and back pain were stable. (Id.) As to his dizziness, he had a
MRI of the brain that reported as normal. (Id.) He was encouraged to get
his vision checked and corrected if indicated. The plan was to monitor him
and he was advised to notify medical if his condition worsened. Further he
was scheduled for a six month follow up for his chronic care. (Id.)
31.
The medical record indicates the Plaintiff was seen by
another health care provider for a follow up regarding dizziness on
September 23, 2016. He reported no recent episodes, and a previous MRI
of his brain and labs were unremarkable. (DX B, p. 61-62.) Plaintiff was
referred to optometry. (Id.)
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32. On November 18, 2016, Plaintiff refused his appointment for a
follow up regarding his dizziness. (DX B, p. 67.) His medical record were
reviewed, his last visit for dizziness was on September 23, 2016. He had
an optometry exam on October 23, 2016 and a new prescription of glasses
ordered.
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On December 8, 2016, Dr. Ma saw Plaintiff for a follow up
regarding a headache, eye pain, and also for a follow up regarding
dizziness and syncope. (DX B, p. 70-71.) Dr. Ma previously performed a
physical examination on Plaintiff but did not find any explanation for his
symptoms. (Id.) An MRI of Plaintiff’s brain was done on June 13, 2016,
which reported as negative. (DX B, p. 51.)
34.
In July 2016, Dr. Ma had prescribed several different
medications for the headaches and dizziness. (DX B, p. 53.) Dr. Ma had
previously informed Plaintiff that vision change or incorrect vision acuity
could cause or trigger headaches. At the time, Plaintiff was seen by the
optometrist and was awaiting eyeglasses. (Id.) Dr. Ma also saw Plaintiff
regarding other issues, including his hypertension and hyperlipidemia.
Plaintiff’s bilateral knee pain was noted as the same and under adequate
control with no new development. (DX B, p. 70-71.) As such, the current
treatment regimen was continued. (Id.)
35.
On January 27, 2017, Plaintiff was seen for a follow up for
his headaches and dizziness. (DX B, p. 72.) The etiology was unclear, he
was treated with Augmentin for two weeks for a presumptive diagnosis of
sinus infection, which did not seem to provide significant headache
improvement. He stated his head is slightly better, since he did not have
much yard time, and he believed the antihistamine medication may help a
little bit. As part of the objective exam, Dr. Ma noted that he was walking
with a normal gait. (Id.)
36. Dr. Ma had requested a refill of Plaintiff’s Tramadol, on
February 2, 2017, but it was only approved for a two-week refill, as Dr.
Ma’s supervisor felt there was no clear indication for the medication. (DX
B, p. 75.) For this reason, Dr. Ma saw Plaintiff again on February 14,
2017, for a follow up on his chronic pain management and medication.
(DX B, p. 76.) Dr. Ma also reeducated Plaintiff on the pain management
goal, which was aiming for functionality. (Id.) Dr. Ma explained to
Plaintiff that there was no clear clinical research data showing that long
term use of opioid medication (such as Tramadol) was beneficial to
control chronic non-cancer pain such as his back and knee pain, and that
this was the main reason he should be weaned off of Tramadol. (Id.)
Plaintiff disagreed with the assessment, so Dr. Ma told him that his case
would be presented at the next Pain Management Committee meeting.
(Id.) Dr. Ma put in a request to taper Plaintiff off the Tramadol
medication. (Id.) The tapering was scheduled to start on February 19, 2017
with a lower dose of 50 mg of Tramadol twice a day for ten days, followed
by 50 mg of Tramadol once a day for an additional four days, for a total of
two weeks. Dr. Ma expected that the pain management to meet by that
time, but they had not. (DX B, p. 85.)
37.
On February 17, 2017, Dr. Ma prescribed Plaintiff
Tramadol 50 mg BID for five days. (DX B, p. 81.)
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38.
On March 3, 2017, Plaintiff saw Dr. Ma for a follow up
visit for his chronic pain management. (DX B, p. 85.) Dr. Ma had planned
to present Plaintiff’s case to the pain management committee in February
2017, but there was no committee that month. (Id.) As a result, Dr. Ma put
in another request for approval to continue tapering of Tramadol
medication for Plaintiff. (Id.) The request was approved, with an expected
tapering of four to six weeks. (Id.)

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39.
At the March 3, 2017 visit, Dr. Ma noted that Plaintiff was
unhappy and stated he could not function. (Id.) Plaintiff was working in
the laundry and stated he has to throw sheets and clothes frequently. (Id.)
In January 2017, Dr. Ma had issued Plaintiff a job limitation noting that he
should avoid prolonged walking and standing, and repetitively going up
and down stairs because of his prior knee issues. (DX B, p. 71.) Dr. Ma
also noted in the medical record that Plaintiff was still taking, among other
pain medical, including aspirin, Tylenol and Ibuprofen (400 mg, three
times a day), and that Plaintiff was not in acute distress, and walked with a
normal gait, demonstrating no difficulty sitting up or down from a chair.
(DX B, p. 85.)

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40.
On March 7, 2017, Plaintiff visited Dr. Ma’s office
regarding a health care appeal that he filed complaining that his pain was
not adequately controlled, and that he wanted his previously prescribed
Tramadol medication back to his original dose of 100 mg twice a day.
(DX B, p. 88.) Plaintiff further stated that he suffered a lot of pain and had
trouble maintaining activities of daily living, since the discontinuation of
Tramadol, however, upon further questioning Plaintiff revealed that he
was still able to do activities, but argued that he has to fight through the
pain in order to keep up to the normal level of his daily living. (Id.)

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41.
At his previous visit (approximately a week earlier), Dr.
Ma told Plaintiff that he should be on a tapering dose of Tramadol for a
total of four to six weeks until discontinuation. Dr. Ma realized that he had
only ordered Tramadol for two weeks, which Plaintiff had already
finished. (DX B, p. 85.) Dr. Ma told Plaintiff he would put in another
request for Plaintiff to get a continuation of the tapering dose of Tramadol
for a total of four weeks with 50 mg twice a day for two weeks, and then
50 mg once a day for two weeks (DX B, p. 88.) At this visit, Dr. Ma also
explained to Plaintiff the details of the California Department of
Corrections and Rehabilitation guidelines for chronic non-cancer pain
management. That non-cancer chronic pain (such as his) is not indicated
for long-term narcotic medication management and that Tramadol is now
considered one of the narcotic medications. (Id.) That was the reason the
request for Plaintiff’s Tramadol refill was denied. (Id.) Nonetheless, Dr.
Ma informed Plaintiff that he would present Plaintiff’s case to the Pain
Management Committee and let him know the final decision. (Id.)

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42.
On March 20, 2017, Plaintiff was scheduled for an
appointment to discuss the Pain Management Committee decision of his
case. (DX B, p. 96.) However, there was a mistake in scheduling, as the
pain management committee did not meet until later in the afternoon. Dr.
Ma informed Plaintiff that he would reschedule Plaintiff for another
appointment in or two to discuss his pain management. (Id.)

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43.
Dr. Ma presented Plaintiff’s case to the pain management
committee on March 20, 2017. (DX B, p. 93.) Dr. Ma presented Plaintiff’s
pain management referral to the pain management committee, indicating
on the referral that Plaintiff wanted to be back on Tramadol, that Plaintiff
had a history of knee pain and back pain, and that he had been on
Tramadol until February 2017, when his refill of Tramadol was denied.
(Id.) Dr. Ma also indicated that since then he had more knee and back pain
and wanted back on Tramadol. The committee approved Plaintiff for
Tramadol was not necessary at this point. (DX B, p. 94.)

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44.
Plaintiff was scheduled to see Dr. Ma on March 29, 2017,
but Plaintiff refused to attend his appointment. (DX B, p. 99.) Dr. Ma
documented Plaintiff’s refusal in a physician’s order and also dictated a
clinic note. (Id.)

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45.
Dr. Ma saw Plaintiff on June 9, 2017, regarding his chronic
medical issues, including a complaint of intermittent left knee pain. (DX
B, p. 111.) A physical exam of vital signs and measurements was
conducted. (Id.) The examination of his left knee showed mild crepitus
(grating), but no swelling or deformity. (Id.) Plaintiff had normal range of
motion, actively and passively, no muscle atrophy, and no joint line
tenderness to palpation. (Id.) Valgus, varus and drawer tests were negative
(for deformities or stress). (Id.) Plaintiff was advised to modify his
activities to avoid exacerbation of the pain, and to take NSAIDS or
Tylenol as needed. (Id.) Dr. Ma ordered a left knee x-ray. (Id.)

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46.
Nurse Bergado noted on June 9, 2017, that Plaintiff was
ambulatory but complaining of left knee pain. (DX B, p. 118.)

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47.
The June 13, 2017 x-rays of Plaintiff’s left knee showed
mild degenerative changes of the knee, but no acute fracture, dislocation
or joint effusion.

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48.
On July 17, 2017, Nurse Lyndon noted Plaintiff had knee
joint pain, left knee pain. (DX B, p. 112.) At the time, Plaintiff’s
medications included a keep on person Aspirin EC 81, mg. (DX B, p.
113.)

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49.
On September 14, 2017, Plaintiff was seen by Dr. Ma, with
Plaintiff’s chief complaint being a drop in weight from 246 to 229 in the
past six months. (DX B, p. 118-119) The etiology was unclear, but the rate
of weight loss was not considered that rapid. (Id.) Dr. Ma ordered baseline
lab tests. (DX B, p. 119.)

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50.
Plaintiff had an office visit with Dr. Moghaddam, in March
2018. A note on Plaintiff’s bilateral knee pain indicated that he exercised
daily, did lots of squats and pushups, but stopped doing burpees. (DX B, p.
130-131.) There were no issues with ADL (activities of daily living), and
it was documented that Plaintiff was able to work without any issues. (Id.)
Dr. Moghaddam also conducted an examination of Plaintiff’s left knee
pain, which the doctor found to be unremarkable. Dr. Moghaddam
educated Plaintiff on exercising. (Id.)

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51.
Plaintiff was seen by Dr. Ma on April 6, 2018 for a follow
appointment regarding Plaintiff’s hypertension. (DX B, p. 132-133.)
Plaintiff was encouraged to do moderate and regular exercise. (Id.)
52.
On August 6, 2018, Plaintiff was seen by Dr. Moghaddam
for a follow up appointment concerning generalized body aches and pain.
(DX B, p. 135-136.) Plaintiff reported that his leg pain was markedly
improved after he discontinued his medication, simvastatin. (Id.) Plaintiff
reported morning stiffness for up to 30 minutes in his knees, but he was
able to do daily exercise. (Id.) An examination of Plaintiff was
unremarkable, and he did not want any further workup. (Id.)
53.
On December 11, 2018, Dr. Ma saw Plaintiff for nose
bleeds. (DX B, p. 138.)
54.
A few days later, on December 20, 2018, Plaintiff was seen
by Dr. Ma for several medical complaints, including bilateral knee pain.
(DX B, p. 139-141.) Plaintiff claimed he had not been on any narcotic
medication since his Tramadol was discontinued in early 2017. (Id.)
Although he complained of pain, Plaintiff was able to maintain his
baseline activity of daily living. (Id.) In addition to his joint pain, the
Plaintiff complained of intermittent facial and extremity swelling/edema.
(Id.) Dr. Ma’s assessment and plan for Plaintiff’s pain was to check on a
possible rheumatoid factor, and to test for lupus. (Id.)
55.
On January 7, 2019, Plaintiff was seen by Dr. Ma for body
aches. (DX B, p. 145-146.) Dr. Ma had previously ordered an ANA
(antinuclear antibodies) test, which reported positive, but the more specific
tests for Lupus were negative. The ANA test was unclear, so another test
was ordered to rule out rheumatoid arthritis. (Id.)
56.
Plaintiff had a rheumatology telemedicine consult with Dr.
Kotha on April 18, 2019. Dr. Kotha ordered that Plaintiff be started on
MTX (Methotrexate) to treat rheumatoid arthritis. (DX B, p. 150-151.)
57.
On April 30, 2019, Plaintiff was seen by Dr. Quidwai, as a
follow up to his rheumatology telemedicine. An April 4, 2019 x-ray of
Plaintiff’s left knee was reviewed with him. The x-ray indicated tricompartmental spurring, and a physical examination of Plaintiff’s left
knee showed minimal effusion on medial aspect of the knee joint, and
negative Murphy, and anterior posterior drawer sings, as well as no
instability of the patella. (DX B, p. 152.) Plaintiff was on methotrexate,
and the plan was for the patient to follow up in six weeks. (Id.)
58.
On May 30, 2019, Plaintiff had another rheumatology
telemedicine consult with Dr. Kotha, and Plaintiff’s prescription of
methotrexate was increased to 25 mg. (DX B, p. 152-154.)
59.
On August 29, 2019, Plaintiff had a third rheumatology
telemedicine consult with Dr. Kotha. (DX B, p. 155-157.) The prescription
for methotrexate was discontinued, and a prescription for sulfasalazine
was discussed with Plaintiff. (Id.)
60.
On September 10, 2019, Plaintiff had another consultation
with Dr. Kotha. (DX B, p. 158-160.)
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1

61.
Plaintiff was seen on November 19, 2019, by Dr. Quidwai
for low back pain and multiple joint pains. (DX B, p. 147.) Plaintiff was
given acetaminophen 650 mg up to three times a day. Plaintiff was told to
take ibuprofen as needed for pain control. (Id.)

2
3

ECF No. 38-2, pages 1-12.

4

In support of the Statement of Undisputed Facts, Defendant Ma offers the

5
6

following exhibits:

7

DX A

Declaration of custodian of records Amber Crawford with
attached non-confidential portions of Plaintiff’s prison central
file. See ECF No. 38-3.

DX B

Declaration of custodian of record K. Bliss with attached
portions of Plaintiff’s medical file. See ECF No. 38-4.

DX C

Pain Management care guide, part 3, relating to opioid therapy.
See ECF No. 38-5.

8
9
10
11

When bringing a motion for summary judgment, the moving party must submit a

12
13

Statement of Undisputed Facts that cites to specific portions of “any pleading, affidavit,

14

deposition… or other document relied upon to establish that fact.” E.D. Cal. Local Rule 260(a).

15

Opposing parties have two options in response. Opposing parties must reproduce movant’s

16

Statement of Undisputed Facts and deny any fact cited therein with reference to supporting

17

evidence or file a Statement of Disputed Facts that cites to the record with any additional material

18

facts that present a genuine issue. See E.D. Cal. Local Rule 260(b).
Plaintiff did not file an opposition or declaration disputing Defendant’s Statement

19
20

of Undisputed Facts. In light of Plaintiff’s failure to comply with Local Rule 260(b), the Court

21

deems Plaintiff to have admitted those facts not disputed by his submissions. See, e.g.. Fed. R.

22

Civ. P. 56(e); Beard v. Banks, 548 U.S. 521, 527 (2006) (“[B]y failing specifically to challenge

23

the facts identified in the defendant's statement of undisputed facts, [plaintiff] is deemed to have

24

admitted the validity of the facts contained in the [defendant's] statement.”); Brito v. Barr, No.

25

2:18-cv-00097-KJM-DB, 2020 WL 4003824, at *6 (E.D. Cal. July 15, 2020); see also Jones v.

26

Blanas, 393 F.3d 918, 923 (9th Cir. 2004).

27

///

28

///
11

Case 2:18-cv-00149-JAM-DMC Document 40 Filed 07/19/21 Page 12 of 19
III. STANDARDS FOR SUMMARY JUDGMENT

1
2

The Federal Rules of Civil Procedure provide for summary judgment or summary

3

adjudication when “the pleadings, depositions, answers to interrogatories, and admissions on file,

4

together with affidavits, if any, show that there is no genuine issue as to any material fact and that

5

the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The

6

standard for summary judgment and summary adjudication is the same. See Fed. R. Civ. P.

7

56(a), 56(c); see also Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). One of

8

the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. See

9

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under summary judgment practice, the

10
11

moving party

13

. . . always bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of “the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any,” which it believes demonstrate the absence of a
genuine issue of material fact.

14

Id., at 323 (quoting former Fed. R. Civ. P. 56(c)); see also Fed. R. Civ. P. 56(c)(1).

15

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

12

16

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

17

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

18

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

19

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

20

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

21

dispute exists. See Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 n.11. The

22

opposing party must demonstrate that the fact in contention is material, i.e., a fact that might

23

affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S.

24

242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th

25

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

26

return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436

27

(9th Cir. 1987). To demonstrate that an issue is genuine, the opposing party “must do more than

28

simply show that there is some metaphysical doubt as to the material facts . . . . Where the record
12

Case 2:18-cv-00149-JAM-DMC Document 40 Filed 07/19/21 Page 13 of 19
1

taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no

2

‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). It is sufficient that “the

3

claimed factual dispute be shown to require a trier of fact to resolve the parties’ differing versions

4

of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631.

5

In resolving the summary judgment motion, the court examines the pleadings,

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

1987). Ultimately, “[b]efore the evidence is left to the jury, there is a preliminary question for the

14

judge, not whether there is literally no evidence, but whether there is any upon which a jury could

15

properly proceed to find a verdict for the party producing it, upon whom the onus of proof is

16

imposed.” Anderson, 477 U.S. at 251.

17
IV. DISCUSSION

18

Defendant Ma contends judgment as a matter of law is appropriate because the

19
20

undisputed evidence shows he was not deliberately indifferent to Plaintiff’s serious medical

21

needs. Defendant Ma also argues he is entitled to qualified immunity.

22
23

A.

Deliberate Indifference
Plaintiff bases his claim on “deliberate indifference amounting to cruel and

24

unusual punishment through pain,” i.e. medical needs in violation of the Eighth Amendment. ECF

25

No. 12, page 4. The treatment a prisoner receives in prison and the conditions under which the

26

prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel

27

and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan,

28

511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts
13

Case 2:18-cv-00149-JAM-DMC Document 40 Filed 07/19/21 Page 14 of 19
1

of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102

2

(1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v.

3

Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with

4

“food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy,

5

801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when

6

two requirements are met: (1) objectively, the official’s act or omission must be so serious such

7

that it results in the denial of the minimal civilized measure of life’s necessities; and (2)

8

subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of

9

inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison

10
11

official must have a “sufficiently culpable mind.” See id.
Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious

12

injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105;

13

see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health

14

needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), abrogated on other grounds by

15

Sandin v. Conner, 515 U.S. 472 (1995). An injury or illness is sufficiently serious if the failure to

16

treat a prisoner’s condition could result in further significant injury or the “. . . unnecessary and

17

wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled

18

on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); see

19

also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). Factors indicating seriousness

20

are: (1) whether a reasonable doctor would think that the condition is worthy of comment; (2)

21

whether the condition significantly impacts the prisoner’s daily activities; and (3) whether the

22

condition is chronic and accompanied by substantial pain. See Lopez v. Smith, 203 F.3d 1122,

23

1131-32 (9th Cir. 2000) (en banc).

24

The requirement of deliberate indifference is less stringent in medical needs cases

25

than in other Eighth Amendment contexts because the responsibility to provide inmates with

26

medical care does not generally conflict with competing penological concerns. See McGuckin,

27

974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to

28

decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir.
14

Case 2:18-cv-00149-JAM-DMC Document 40 Filed 07/19/21 Page 15 of 19
1

1989). The complete denial of medical attention may constitute deliberate indifference. See

2

Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical

3

treatment, or interference with medical treatment, may also constitute deliberate indifference. See

4

Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate

5

that the delay led to further injury. See McGuckin, 974 F.2d at 1060.

6

Negligence in diagnosing or treating a medical condition does not, however, give

7

rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a

8

difference of opinion between the prisoner and medical providers concerning the appropriate

9

course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh,

10

90 F.3d 330, 332 (9th Cir. 1996).

11

In his motion for summary judgment, Defendant argues:

12

21

Plaintiff’s claims are refuted by the undisputed evidence which
establishes that Dr. Ma tried a plethora of medical options for treating
Plaintiff’s knee pain. Part of Dr. Ma’s medical responsibility is the
exercise of independent medical judgment. Dr. Ma had no legal obligation
to follow a previous medical plan, or to prescribe Plaintiff’ the medication
of his choice, especially since Plaintiff’s medical records establish that
Plaintiff was still having pain despite being prescribed Tramadol. Implicit
in Plaintiff’s interference argument is the suggestion that, once a doctor
prescribed a certain treatment, Plaintiff is vested with some legal
entitlement to that plan, no matter how effective. But it has long been held
that, while inmates have a right to constitutionally adequate medical care,
they do not have any right to choice of treatment. See, e.g., Forbes v.
Edgar, 112 F.3d 262, 267 (7th Cir. 1997).
Plaintiff’s medical records show that Dr. Ma ordered x-rays and
other tests, provided Plaintiff with a brace to lessen Plaintiff’s knee pain,
suggested that Plaintiff move to a different assignment, referred Plaintiff
for physical therapy and to a rheumatoid specialist, and provided Plaintiff
with medication that Dr. Ma believed would better treat Plaintiff’s pain.
For all of these reasons, Dr. Ma is entitled to judgment as a matter of law.

22

ECF No. 38-1, pgs. 4-5

23

The Court agrees. Contrary to Plaintiff’s allegations of no treatment and pain that

13
14
15
16
17
18
19
20

24

interferes with daily activities, Plaintiff’s complaint concedes the fact that Ma has treated

25

Plaintiff. See ECF No. 12, pages 5-6. Ma proscribed leg braces, medical chronos, a cane, steroid

26

injections, and alternative methods for pain management in Plaintiff’s left knee. Id. Defendant

27

submitted evidence of orders for Plaintiff to receive radiology services and laboratory testing for

28

Plaintiff’s hypertension and hyperlipidemia. See ECF No. 38-4, pages 40-41; 59. Plaintiff’s
15

Case 2:18-cv-00149-JAM-DMC Document 40 Filed 07/19/21 Page 16 of 19
1

allegations that Ma’s treatments were a deliberate attempt to “substantiate prolonged years of

2

opioid use… to justify discontinuing the tramadol medication” are vague, conclusory, and

3

without citations to any evidence. ECF No. 12, page 7. Plaintiff claims that Ma’s treatments do

4

not address the pain from Plaintiff’s arthroscopic surgery and that Tramadol is the best option for

5

pain relief. See ECF No. 12, pages 10-11. However, opinions from a second doctor, Dr. Wedell,

6

resulted in treatment similar to those recommended or administered by Ma. Id. at 6; see also ECF

7

No. 38-4, page 20. Plaintiff’s dissatisfaction that the steroid shots “proved to eliminate the pain

8

but after the effects has worn out” and that Ibuprofen has not proven as effective is insufficient

9

evidence for raising an Eighth Amendment claim based on medical necessity. ECF No. 12, page

10

7. Finally, Plaintiff does not show that Ma denied or delayed medical care, and Plaintiff offers no

11

showing of evidence that Ma’s choice of treatments led to further injury.

12
13
14
15

B.

Qualified Immunity
Defendant Ma contends that qualifiedly immunity applies here because he did not

violate Plaintiff’s clearly established Eighth Amendment rights. Ma argues:

20

The uncontroverted medical evidence establishes that Plaintiff’s treating
physicians, including Dr. Ma, reacted reasonably to Plaintiff’s known medical
needs by conducting physical assessments, providing physical therapy, ordering
tests, administering steroid injections, aspirating the knee, allowing Plaintiff to
wear tennis shoes, prescribing medically appropriate pain medication, and
referring Plaintiff to an specialist. (DUF Nos. 9-75.) The law is not so clear that
reasonable medical professionals would have believed these actions to be
unlawful. See Hamby v. Hammond, 821 F.3d 1085, 1093 (2016) (granting
qualified immunity when physicians pursued treatment decisions based on
“legitimate medical opinions” previously held to be reasonable under the Eighth
Amendment).

21

ECF No. 38-1, page 9

22

Government officials enjoy qualified immunity from civil damages unless their

16
17
18
19

23

conduct violates “clearly established statutory or constitutional rights of which a reasonable

24

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In general,

25

qualified immunity protects “all but the plainly incompetent or those who knowingly violate the

26

law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). In ruling upon the issue of qualified

27

immunity, the initial inquiry is whether, taken in the light most favorable to the party asserting the

28

injury, the facts alleged show the defendant’s conduct violated a constitutional right. See Saucier
16

Case 2:18-cv-00149-JAM-DMC Document 40 Filed 07/19/21 Page 17 of 19
1

v. Katz, 533 U.S. 194, 201 (2001). If a violation can be made out, the next step is to ask whether

2

the right was clearly established. See id. This inquiry “must be undertaken in light of the specific

3

context of the case, not as a broad general proposition . . . .” Id. “[T]he right the official is

4

alleged to have violated must have been ‘clearly established’ in a more particularized, and hence

5

more relevant, sense: The contours of the right must be sufficiently clear that a reasonable

6

official would understand that what he is doing violates that right.” Id. at 202 (citation omitted).

7

Thus, the final step in the analysis is to determine whether a reasonable officer in similar

8

circumstances would have thought his conduct violated the alleged right. See id. at 205.

9

When identifying the right allegedly violated, the court must define the right more

10

narrowly than the constitutional provision guaranteeing the right, but more broadly than the

11

factual circumstances surrounding the alleged violation. See Kelly v. Borg, 60 F.3d 664, 667 (9th

12

Cir. 1995). For a right to be clearly established, “[t]he contours of the right must be sufficiently

13

clear that a reasonable official would understand [that] what [the official] is doing violates the

14

right.” See Anderson v. Creighton, 483 U.S. 635, 640 (1987). Ordinarily, once the court

15

concludes that a right was clearly established, an officer is not entitled to qualified immunity

16

because a reasonably competent public official is charged with knowing the law governing his

17

conduct. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). However, even if the plaintiff

18

has alleged a violation of a clearly established right, the government official is entitled to

19

qualified immunity if he could have “. . . reasonably but mistakenly believed that his . . . conduct

20

did not violate the right.” Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001); see

21

also Saucier, 533 U.S. at 205.

22

The first factors in the qualified immunity analysis involve purely legal questions.

23

See Trevino v. Gates, 99 F.3d 911, 917 (9th Cir. 1996). The third inquiry involves a legal

24

determination based on a prior factual finding as to the reasonableness of the government

25

official’s conduct. See Neely v. Feinstein, 50 F.3d 1502, 1509 (9th Cir. 1995). The district court

26

has discretion to determine which of the Saucier factors to analyze first. See Pearson v. Callahan,

27

555 U.S. 223, 236 (2009). In resolving these issues, the court must view the evidence in the light

28

most favorable to plaintiff and resolve all material factual disputes in favor of plaintiff. See
17

Case 2:18-cv-00149-JAM-DMC Document 40 Filed 07/19/21 Page 18 of 19
1

Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003).

2

As discussed above, Plaintiff has a clearly established Eighth Amendment right of

3

medical necessity. The first part of the Saucier analysis asks whether this clearly established right

4

is sufficiently clear so that a reasonable officer would know their conduct violates this right.

5

Anderson, 483 U.S. at 640. Ma is entitled to qualified immunity as a matter of law if Ma violated

6

Plaintiff’s Eighth Amendment right, but Ma believed his conduct did not violate Plaintiff’s right.

7

As discussed above and as a matter of law, Ma did not violate Plaintiff’s Eighth Amendment right

8

because Ma was not deliberately indifferent to Plaintiff’s medical needs. Even if Ma violated

9

Plaintiff’s rights, there is evidence Ma acted reasonably. Dr. Wedell’s second opinion, orders for

10

lab results, and general treatment plans indicate Ma’s conduct was reasonable and not deliberately

11

indifferent. ECF No. 12, page 6; see also ECF No. 38-4, page 20. Based on prior factual findings

12

viewed in the light most favorable to the Plaintiff, Ma passes the Saucier analysis and thus Ma is

13

entitled to qualified immunity. See Saucier v. Katz, 533 U.S. 194, 201 (2001); Martinez, 323 F.3d

14

at 1184.

15
V. CONCLUSION

16
17
18

Based on the foregoing, the undersigned recommends that Defendant’s motion for
summary judgment, ECF No. 38, be granted.

19

These findings and recommendations are submitted to the United States District

20

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days

21

after being served with these findings and recommendations, any party may file written

22

objections with the court. Responses to the objections shall be filed within 14 days after service of

23

objections. Failure to file objections within the specified time may waive the right to appeal. See

24

Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

25
26
27
28

Dated: July 19, 2021

____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE
18

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