Bruce v. Sayre et al

Filing 45

Order by Magistrate Judge Nandor J. Vadas granting 36 Motion for Summary Judgment. (Attachments: # 1 Certificate/Proof of Service)(njvlc1, COURT STAFF) (Filed on 7/10/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISON

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VINCENT BRUCE,

Case No. 14-cv-4298-NJV (PR)

Plaintiff,
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ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

v.
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MICHAEL SAYRE, et. al.,

United States District Court
Northern District of California

Defendants.
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Docket No. 36

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Plaintiff, a state prisoner, proceeds with a pro se civil rights complaint under 42 U.S.C. §

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1983. Plaintiff alleges that defendants, Dr. Ikegbu and Dr. Adam, provided inadequate medical

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care for his shoulder and back pain. On January 13, 2017, Defendants filed a motion for summary

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judgment. (Doc. 36.) Defendants had previously filed a motion for summary judgment on

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November 10, 2015. (Doc. 22.) Plaintiff did not file an opposition to the first motion for

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summary judgment and instead sought additional discovery. On July 5, 2016, the court ordered

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additional discovery to be provided to plaintiff. (Doc. 32.) On August 15, 2016, plaintiff sought

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an additional 30 days to file an opposition after receiving the additional discovery. (Doc. 33.)

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Because plaintiff had received additional discovery, the court terminated the motion for summary

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judgment without prejudice and ordered defendants to refile it after several months so that plaintiff

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would have sufficient time to prepare his opposition. (Docs. 34, 35.) It was refiled on January 13,

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2017. (Doc. 36.) On February 9, 2017, plaintiff requested an additional 90 days to file an

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opposition because he had approaching deadlines in other cases. (Doc. 43.) The court denied the

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extension in part and provided plaintiff an additional 28 days to file an opposition. (Doc. 44.) The

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court noted that plaintiff had had more than 14 months to review the motion for summary

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judgment. 1 Several months have passed since plaintiff was provided the extension, and he has not

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filled an opposition or otherwise communicated with the court. The court will still look to the

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merits of the motion for summary judgment and for the reasons set forth below the motion is

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granted.
DISCUSSION

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Legal Standard

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Summary judgment is proper where the pleadings, discovery, and affidavits show there is
“no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

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law.” See Fed. R. Civ. P. 56(a). Material facts are those that may affect the outcome of the case.

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See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is

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Northern District of California

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genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving

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party. See id.
A court shall grant summary judgment “against a party who fails to make a showing

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sufficient to establish the existence of an element essential to that party’s case, and on which that

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party will bear the burden of proof at trial[,] . . . since a complete failure of proof concerning an

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essential element of the nonmoving party's case necessarily renders all other facts immaterial.”

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See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the initial

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burden of identifying those portions of the record that demonstrate the absence of a genuine issue

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of material fact. Id. The burden then shifts to the nonmoving party to “go beyond the pleadings

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and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on

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file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” See id. at 324

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(citing Fed. R. Civ. P. 56(e) (amended 2010)).

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For purposes of summary judgment, the court must view the evidence in the light most

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favorable to the nonmoving party; if the evidence produced by the moving party conflicts with

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evidence produced by the nonmoving party, the court must assume the truth of the evidence

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submitted by the nonmoving party. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999).

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The original and refiled motions for summary judgment are nearly identical.
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The court’s function on a summary judgment motion is not to make credibility determinations or

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weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv., Inc. v.

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Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

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Deliberate indifference to serious medical needs violates the Eighth Amendment’s

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proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976);

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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX

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Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A determination of

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“deliberate indifference” involves an examination of two elements: the seriousness of the

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prisoner’s medical need and the nature of the defendant’s response to that need. Id. at 1059.
A “serious” medical need exists if the failure to treat a prisoner’s condition could result in further

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significant injury or the “unnecessary and wanton infliction of pain.” Id. The existence of an

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injury that a reasonable doctor or patient would find important and worthy of comment or

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treatment; the presence of a medical condition that significantly affects an individual’s daily

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activities; or the existence of chronic and substantial pain are examples of indications that a

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prisoner has a “serious” need for medical treatment. Id. at 1059-60.

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A prison official is deliberately indifferent if he or she knows that a prisoner faces a

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substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate

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it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only “be aware of

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facts from which the inference could be drawn that a substantial risk of serious harm exists,” but

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he “must also draw the inference.” Id. If a prison official should have been aware of the risk, but

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was not, then the official has not violated the Eighth Amendment, no matter how severe the risk.

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Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). “A difference of opinion

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between a prisoner-patient and prison medical authorities regarding treatment does not give rise to

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a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).

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Facts

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Despite plaintiff’s failure to file an opposition, the court has looked to plaintiff’s verified

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amended complaint. The following facts are undisputed, unless otherwise noted.

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Dr. Ikegbu

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Dr. Ikegbu first treated plaintiff on July 18, 2011. Motion for Summary Judgment (“MSJ”)

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Ikegbu Decl. at 2. She diagnosed plaintiff with chronic left shoulder pain, most likely due to

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rotator cuff strains, and found a full range of motion without tenderness. Id. Plaintiff did not

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complain of chronic back pain. Id.
On July 28, 2011, another doctor provided a cardiology consultation for plaintiff, who did

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not complain of shoulder or back pain. Id. On August 9, 2011, a nurse treated plaintiff for

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shoulder and hip pain, prescribing Ibuprofen, 600 mg, for 60 days. Id. On September 14, 2011,

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Dr. Ikegbu administered a steroid injection of Lidocaine to plaintiff’s right hip to address hip pain.
Id. at 3. Plaintiff did not complain of back pain and noted low level shoulder pain of 2 out of 10.

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Id.
Plaintiff was treated on October 12, October 26 and November 4, 2011, for other medical

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problems, and he did not complain of shoulder or back pain.

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On November 23, 2011, plaintiff complained of shoulder pain and noted that the earlier

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steroid injection helped with pain. Id. He said the pain was 5 out of 10 in his left shoulder. He

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did not describe any back pain. Id.
On December 7, 2011, Dr. Ikegbu treated plaintiff for shoulder pain that plaintiff described

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as a 3 out of 10. Dr. Ikegbu thought the pain was likely due to osteoarthritis of the

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acromioclavicular/glenohumeral joint. She prescribed x-rays, continued stretching, continued

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Ibuprofen, consideration of a steroid injection and further follow-up pending the radiology report.

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Id.

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On December 16, 2011, an outside radiologist evaluated the x-rays of plaintiff’s left

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shoulder that were taken on December 13, 2011. The doctor found no evidence of fracture or

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dislocation and noted that no degenerative changes were observed. The doctor concluded that the

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x-rays did not show there was anything orthopedically wrong with the shoulder. Id.

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On January 18, February 17, March 7, April 9 and April 10, 2012, plaintiff was treated by

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medical staff who provided him with additional Ibuprofen and information about yoga and back

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exercises. Id. at 4; MSJ Exs. L, M, N.
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Plaintiff filed an inmate appeal concerning inadequate treatment for pain in his shoulders.
MSJ, Alweiss Decl. at 2. On May 21, 2012, Dr. Ikegbu interviewed plaintiff concerning the

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appeal. Ikegbu Decl. at 4. She noted that his left shoulder x-ray from December 13, 2011, and a

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right shoulder x-ray from February 20, 2008, were both normal and that he should continue taking

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600 mg of Ibuprofen. Id. Dr. Ikegbu denied plaintiff’s request for an orthopedic referral because

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he did not present with any surgically correctable disorder, but she did request a new x-ray for his

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right shoulder and an accommodation for double-cuff handcuffs. Id. at 5. She denied physical

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therapy because plaintiff had good power, muscle tone and range of motion and physical therapy

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would not provide any benefit. Id. She denied hot and cold packs because they are beneficial for

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acute injury, not chronic pain. Id.

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On May 25, 2012, an outside radiologist evaluated plaintiff’s right shoulder x-ray. The

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doctor concluded that there was minimal degenerative change of the acromioclavicular joint and

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no significant changes of the glenohumeral joint. Id. Plaintiff was regularly seen by medical staff

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for the remainder of 2012 and 2013 during which time he was continually provided Ibuprofen 600

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mg. Id. at 5-6. At a February 21, 2013, exam, medical staff noted that while plaintiff had

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tenderness, he had normal range of motion and minimal osteoarthritis. Id. at 6. There was no sign

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of impingement or tear during his back exam. Id.

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Plaintiff was treated on October 21, 2013, when he reported that his shoulders were stiff

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and sore, stretching was mildly effective and Ibuprofen worked well for the pain. Id. at 7. He

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denied any numbness or tingling. Id. Dr. Ikegbu treated plaintiff on November 6, 2013. Plaintiff

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did not complain of chronic back pain but did note chronic deep pain in his left shoulder with

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some clicking. He was able to perform stretches and had occasional relief with Ibuprofen. Id. Dr.

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Ikegbu found no loss of muscle bulk and full range of motion, though there was mild tenderness

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with clicking. Id. at 8. She continued the prescription for Ibuprofen 600 mg and advised that he

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continue stretching exercises. This was plaintiff’s last visit with Dr. Ikegbu. Id.

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Dr. Adam

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Dr. Adam became plaintiff’s primary care physician in February 2014. Adam Decl. at 2.

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On February 20, 2014, plaintiff was treated for lower back pain. He did not have any

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abnormalities, there was no pain upon palpatation and he had full range of motion. He requested

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more Ibuprofen, which was provided. Id. Dr. Adam treated plaintiff on March 21, 2014, for

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hypertension; plaintiff did not complain of shoulder or back pain. Id.

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Plaintiff was treated by other medical staff in March and April 2014 for his shoulder and
back pain. Id. at 2-3. Dr. Adam treated him on May 9, 2014, for shoulder and back pain. Id. at 4.

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Dr. Adam noted that earlier plaintiff’s pain had gone away and only returned after plaintiff started

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chest/shoulder exercises. Dr. Adam diagnosed likely rotator cuff tendinopathy in the left shoulder,

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advised he cut back on shoulder exercises, and use a warm towel and cold compress after

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exercising and increased his Ibuprofen dosage, which had been reduced. Id. Plaintiff was treated

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by other medical staff later in May and in June 2014. Id.

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On August 11, 2014, Dr. Adam reviewed plaintiff’s treatment. Dr. Adam concluded that

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plaintiff’s continued back and shoulder pain was a result of his chest and shoulder exercises and

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that his use of Ibuprofen would not make the conditions go away. Id. Dr. Adam treated plaintiff

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again on September 16, 2014 for left shoulder pain and diagnosed bicipetal tendinitis with

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shoulder osteoarthritis and possible involvement of teres minor. Dr. Adam prescribed two

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sessions of physical therapy to establish an exercise plan. Dr. Adam also advised plaintiff against

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movements that cause pain and not to use the Ibuprofen to mask the pain. Id. at 4-5. Plaintiff

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began the physical therapy the week of September 23, 2014. Id. He filed this lawsuit on

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September 24, 2014. (Doc. 1.)

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Analysis

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It is undisputed that defendants provided plaintiff with a great deal of medical care during

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the relevant time. Plaintiff was seen by defendants or other medical staff several times a month

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for more than three years. Assuming that plaintiff’s shoulder and back pain qualifies as a serious

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medical need, defendants were not deliberately indifferent in the treatment they provided.
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Defendants have met their burden in showing that there is no genuine dispute of material fact and

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they are entitled to summary judgment.

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Defendants regularly examined and treated plaintiff, providing pain medication, x-rays and

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consultations with radiologists. Plaintiff argues that he should have been referred to a shoulder

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specialist, yet the x-rays indicated there was nothing orthopedically wrong with the shoulder.

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Plaintiff also sought hot and cold packs, yet that remedy is not recommended for chronic pain. To

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the extent that plaintiff disagrees with these medical decisions, this difference of opinion does not

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demonstrate deliberate indifference. Franklin, 662 F.2d at 1344.

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Defendants noted that plaintiff had full range of motion and good muscle tone and power.
To treat his reported pain, plaintiff was continually prescribed pain medication. Dr. Adam

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concluded that plaintiff’s pain was being caused by his chest and shoulder exercises and provided

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physical therapy to devise a new exercise plan. It is unclear if plaintiff followed the new plan or

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continued to perform chest and shoulder exercises that were causing him pain.

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Defendants have met their burden in showing that there is no genuine dispute of material

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fact and they are entitled to summary judgment. Plaintiff has failed to meet his burden in

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demonstrating that defendants were aware of a substantial risk of serious harm and disregarded

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that risk by failing to take reasonable steps. The undisputed facts show that defendants took

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reasonable steps to treat plaintiff’s medical needs and they are entitled to summary judgment.

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CONCLUSION

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1. Defendants’ motion for summary judgment (Docket No. 36) is GRANTED.

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2. The Clerk shall terminate all pending motions, enter judgment, and close the file.

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IT IS SO ORDERED.

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Dated: July 10, 2017
________________________
NANDOR J. VADAS
United States Magistrate Judge

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