Wilkins v. Ahern

Filing 242

ORDER GRANTING 172 MOTION TO SEAL MEDICAL RECORDS; GRANTING 176 ALAMEDA COUNTY DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION; GRANTING 195 PRISON HEALTH SERVICES DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. Signed by Judge Maxine M. Chesney on September 24, 2010. (mmcsec, COURT STAFF) (Filed on 9/24/2010)

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Wilkins v. Ahern Doc. 242 1 2 3 4 5 6 7 8 9 10 + IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) ) Plaintiff, ) ) v. ) ) SHERIFF GREG AHERN, et al., ) ) Defendants. ______________________________ ) KEENAN WILKINS, No. C 08-1084 MMC (PR) ORDER GRANTING MOTION TO SEAL MEDICAL RECORDS; GRANTING ALAMEDA COUNTY DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION; GRANTING PRISON HEALTH SERVICES DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Docket Nos. 172, 176, 195) On February 22, 2008, plaintiff, a pretrial detainee then incarcerated at the Santa Rita County Jail ("SRCJ"), filed the above-titled civil rights action under 42 U.S.C. 1983.1 Thereafter, plaintiff twice amended his complaint. The Court found the allegations in plaintiff's second amended complaint ("SAC"), when liberally construed, stated the following cognizable claims for relief based on events alleged to have occurred during plaintiff's incarceration at SRCJ: retaliation, unconstitutional conditions of confinement, unlawful use of excessive force, denial of due process, denial of medical care and denial of mental health care. The SAC was ordered served on approximately sixty defendants. Now before the Court are (1) the motion for summary adjudication filed on behalf of 1 Plaintiff currently is incarcerated at the Glenn Dyer Detention Facility in Oakland. Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 Alameda County employees against whom plaintiff has asserted claims for the denial of medical and mental health care ("Alameda County defendants"), and (2) the motion for summary judgment filed on behalf of Prison Health Services, Inc. and certain of its employees ("PHS defendants"), against whom plaintiff also has asserted claims for the denial of medical care. Plaintiff has opposed the motions, defendants have replied, and plaintiff has filed a sur-reply. DISCUSSION I. Legal Standard Summary judgment is proper where the pleadings, discovery, and affidavits show there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Fed. R. Civ. P. 56(c). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See id. The court will grant summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial[,] . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also Anderson v. Liberty Lobby, 477 U.S. at 248 (holding fact is material if it might affect outcome of suit under governing law; further holding dispute about material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party"). The moving party bears the initial burden of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The burden then shifts to the nonmoving party to "go beyond the pleadings, and by his own affidavits, or by the `depositions, answers to interrogatories, or admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" See Celotex, 477 U.S. at 324 (citing Fed. R. Civ. P. 56(e)). 2 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 For purposes of summary judgment, the court must view the evidence in the light most favorable to the nonmoving party; if the evidence produced by the moving party conflicts with evidence produced by the nonmoving party, the court must assume the truth of the evidence submitted by the nonmoving party. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). The court's function on a summary judgment motion is not to make credibility determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). II. Background Plaintiff claims several instances of inadequate medical and mental health care during his incarceration at SRCJ. He names as defendants (1) SRCJ officials and employees; (2) Criminal Justice Mental Health ("CJMH"), a division of Alameda County's mental health department that provides mental health care in the county jails, and certain of its employees; and (3) Prison Health Services, Inc. ("PHS"), an organization that contracts with the Alameda County Sheriff's Department to provide medical care in the county jails, and certain of its medical staff.2 A. The Provision of Medical Care Services at SRCJ3 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PHS is a national organization that provides health care in correctional facilities, and it has been doing so at SRCJ since 1987. (Declaration David Sanchas Supp. Alameda Cty. Defs.' Mot. Summ. J. ("Sanchas Decl.") 3.) Alameda County contracts with PHS to provide medical care for all inmates at SRCJ. PHS maintains a staff of nurses, nurse practitioners and physicians onsite at SRCJ, and these medical health professionals, not Sheriff's officials, make all decisions regarding the course of an inmate's medical treatment. The SRCJ and CJMH defendants have filed a joint motion for summary adjudication of plaintiff's medical and mental health care claims against them. The PHS defendants have filed a separate motion for summary judgment addressing plaintiff's medical claims against 27 them. 26 28 3 2 The following facts are undisputed. 3 1 2 3 4 5 6 7 8 9 10 (Declaration of Mark Foster Supp. Alameda Cty. Defs.' Mot. Summ. J. ("Foster Decl.") 4-6.) B. The Procedure for Inmates to Obtain Medical Care at SRCJ Prior to admission to SRCJ, inmates are screened by PHS personnel to ensure they are medically cleared for admittance and that medical issues are identified and scheduled for follow-up care. Thereafter, if an inmate needs medical treatment, he submits a medical request slip, also referred to as a sick call request slip, to PHS directly, either by personally handing it to PHS medical personnel or by placing it in a medical/sick call box. Deputies and other SRCJ employees are not involved in this request process. They do not review the medical request slips and are not privy to the confidential information contained therein. (Foster Decl. 7-9.) PHS staff receive the sick call request slips and prepare a list of inmates to be seen. The list is given to deputies who escort the inmates to the nurse's station maintained in each housing unit. The decision to refer an inmate to a doctor is made based on the nurse's assessment and the inmate's medical symptoms. Deputies and other SRCJ employees are not involved in deciding whether a particular inmate should be seen by a physician. (Foster Decl. 10-11.) In the event of a medical emergency observed by a deputy or other jail official, the deputy or official will immediately call a nurse and advise such individual of the medical situation. Such a call requires a response by the nurse on call, as individual deputies do not assess whether an inmate requires medical care. In addition, each cell is equipped with an intercom, which permits the inmate direct contact with Jail Housing Control personnel, in order that medical care can be summoned in the case of a medical emergency. (Foster Decl. 12-15 13-15.) C. Mental Health Services at SRCJ United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CJMH is a division of Behavioral Health Care Services, Alameda County's mental health department. CJMH staffs a clinic with mental health care professionals within SRCJ and provides inmates with mental health assessment, treatment and suicide prevention care. 4 1 2 3 4 5 6 7 8 9 10 ((Declaration of Mildred Swafford Supp. Alameda Cty. Defs.' Mot. Summ. J. ("Swafford Decl.") 5.) When inmates arrive at SRCJ, they must complete a screening form, which includes questions relating to psychiatric issues. If an inmate identifies psychiatric problems on the screening form, a medical nurse will refer the inmate to CJMH for follow-up. A CJMH mental health professional will then see the inmate for a more thorough mental health assessment, which includes obtaining a past psychiatric history, a medication history, a suicide risk assessment and a mental status examination. The initial goal is to determine the most likely diagnosis, identify the most pressing mental health issue, and decide how soon the inmate needs to be seen again and whether he needs to be seen by a psychiatrist for medication. (Swafford Decl. 6-7.) Patients may be seen for follow-up in the clinic area of the jail or in the inmate's housing unit. CJMH logs inmate appointments at the clinic into a computer and provides an appointment list to deputies, who are dispatched to bring inmates into the clinic. If an inmate is seen in the housing unit, mental health workers visit the inmate where he is housed. CJMH also makes mental health care workers available twice a week in the mental health housing unit, Unit 9, to deal with emergent situations. (Swafford Decl. 8.) In addition to being referred for mental health care by the screening nurse as described above, an inmate can self-refer by presenting a sick call slip to the nurses, who then pass it on to CJMH. Further, deputies or medical nurses can refer an inmate for evaluation even absent an inmate's request, although CJMH cannot compel an inmate to accept treatment absent a court order. While deputies can refer an inmate to CJMH, they play no role in the clinical assessment of that inmate. (Swafford Decl. 9.) CJMH staff psychiatrists can prescribe psychiatric medication to inmates as medically appropriate. (Declaration of Fred Rosenthal Supp. Alameda Cty. Defs.' Mot. Summ. J. ("Rosenthal Decl.") 2, Declaration of Brian Thomas Supp. Alameda Cty. Defs.' Mot. Summ. J. ("Thomas Decl.") Thomas Decl. 2.) Neither the Director of CJMH nor licensed therapists who work for CJMH are legally authorized to prescribe medication. (Swafford 5 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 Decl. 13; Declaration of Thomas Resburg Supp. Alameda Cty. Defs.' Mot. Summ. J. ("Resburg Decl.") Resburg Decl. 3.) III. Deliberate Indifference Standard As noted, plaintiff claims several instances of constitutionally inadequate medical and mental health care while he was incarcerated at SRCJ. Deliberate indifference to a prisoner's serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment.4 See Estelle v. Gamble, 429 U.S. 97, 104 (1976). Serious medical needs include a prisoner's mental health needs. See Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). A determination of "deliberate indifference" involves an examination of two elements: the seriousness of the prisoner's medical need and the nature of the defendant's response to that need. McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A "serious" medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the "unnecessary and wanton infliction of pain." Id. (citing Estelle v. Gamble, 429 U.S. at 104). A prison official is deliberately indifferent if he knows a prisoner faces a "substantial risk of serious harm" and disregards that risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only "be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists," but "must also draw the inference." Id. Consequently, in order for deliberate indifference to be established, there must exist both a purposeful act or failure to act on the part of the defendant and harm resulting therefrom. See McGuckin, 974 F.2d at 1060. 4 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 Plaintiff was a pretrial detainee at the time his claims arose. Claims by pretrial detainees are analyzed under the Due Process Clause of the Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). Because pretrial detainees' rights under the 26 Fourteenth Amendment are comparable to prisoners' rights under the Eighth Amendment, however, the Ninth Circuit applies the Eighth Amendment standard of review to pretrial 27 detainees' claims, including claims of inadequate medical care. See Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996) (holding Eighth Amendment guarantees provide minimum 28 standard of medical care for pretrial detainees). 25 6 1 2 3 4 5 6 7 8 9 10 IV. Motion to File Records Under Seal In order to protect plaintiff's privacy in the instant action, the Alameda County defendants, i.e., SRCJ and CJMH, have moved to file under seal plaintiff's medical and mental health records submitted in support of their motion for summary adjudication. Plaintiff has not objected to defendants' motion. The Court finds good cause for granting the motion, and, for the following reasons, further finds plaintiff will not be prejudiced thereby. First, the PHS defendants, who have filed a separate motion for summary judgment with respect to plaintiff's medical claims, have submitted a complete copy of plaintiff's medical records in support of their motion for summary judgment and have served plaintiff with a copy thereof. (See Docket Nos. 197, 198, 199, 200 & 210). Second, the record shows plaintiff has obtained from CJMH a copy of his mental health records for the relevant time period. (See Documents Filed Under Seal Supp. Alameda Cty. Defs.' Mot. Summ. J. Ex V at 108-113.) Further, plaintiff has relied on records from both his medical and mental health files in support of his opposition to the motions for summary judgment. Consequently, the Court will grant the motion to file the records under seal in the interest of plaintiff's privacy, and will summarize and cite to the records as appropriate in the instant order. V. Plaintiff's Medical Claims Plaintiff brings five claims of alleged constitutionally inadequate medical care against SRCJ officials and employees and PHS medical staff.5 The Court addresses below each of plaintiff's claims in turn; the facts are undisputed unless otherwise noted.6 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 The SRCJ defendants against whom plaintiff asserts medical care claims are: Deputies Anderson, Arnold, Arrivas, Bao, Barrosa, Brawley, Cabreras, Cody, 24 Dalton, De La Fuente, Gonzales, Robertson, Snider, St. Denis, and Strickland; Sgts. Molloy and Shaull; Technicians Bryan and Marks; and Commander Harris. 25 The PHS defendants against whom plaintiff asserts medical claims are: Dr. I-Fei Chen, Dr. Harold Orr, Wilfredo Reyes, L.V.N, Maria Sardi, R.N., and Prison Health 26 Services, Inc. 27 5 As the medical claims brought against the SRCJ defendants arise from the same events as the medical claims brought against the PHS defendants, the Court addresses jointly 28 the evidence and arguments of both groups of defendants with respect to each medical claim. 7 6 1 2 3 4 5 6 7 8 9 10 A. Broken Finger May 2007 1. Background Plaintiff claims he did not receive timely and adequate pain care from SRCJ and PHS staff for a broken finger. The evidence submitted by the parties in support of and opposition to the motions for summary judgment shows the following: On May 16, 2007,7 plaintiff accidentally slammed his finger in a heavy door at some time after 10:00 p.m. (Opp'n Ex. I-2.) Approximately ten minutes after plaintiff notified a deputy of his injury, Nurse J. Comer ("Nurse Comer") arrived, examined the finger, and bandaged it. (Decl. Rocky Tuttle Supp. Alameda Cty. Defs.' Mot. Summ. J. ("Tuttle Decl.") 2-4; Opp'n Ex. I-2.) Additionally, Nurse Comer contacted Dr. Wilson, who told Nurse Comer to schedule an x-ray for plaintiff for the next day and prescribed Motrin for five days, until May 21. (Decl. Harold Orr Supp. PHS Defs.' Mot. Summ. J. ("Orr Decl.") 7& Ex. B PHS228-00426, 00483.) Nurse Comer scheduled an x-ray for the following day and cleared plaintiff to return to his cell. (Tuttle Decl. 4.) The next day, May 17, an x-ray was taken of plaintiff's finger. The x-ray showed the finger was broken. That same date, Dr. Wilson ordered the dressing on the finger to be changed every day until the finger was healed. (Orr Decl. 7 & Ex. B PHS228-00425, 00483.) The next day, May 18, Nurse Mastroianni requested an orthopedic consultation for plaintiff's finger injury. She also prescribed the oral antibiotic Keflex. (Orr Decl. 8 & Ex. B PHS228-00483.) On May 21, the dressing on plaintiff's finger was changed. That same date, plaintiff filed a SRCJ grievance, complaining that he had not yet received his x-ray results or been provided with pain medication for the pain in his finger. (Opp'n Ex. G.) May 21 also was the final day of plaintiff's Motrin prescription. A dressing change was scheduled for the next day, May 22, but plaintiff was out for a United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 All further dates referenced in this section are in 2007, unless otherwise noted. 8 1 2 3 4 5 6 7 8 9 10 court appearance. On May 23, when the dressing on his finger was changed, plaintiff requested pain medication. He was prescribed Vicodin for seven days, until May 30. (Orr Decl. 8a & Exs. B PHS228-00443, 00481.) On May 24, plaintiff had an orthopedic consultation. A splint was put on his finger and he was scheduled to return for follow-up in one month. (Orr Decl. 8 & Ex. B PHS22800451.) On June 1, two days after the final day of plaintiff's Vicodin prescription, plaintiff submitted a request for a refill, which request stated: "Pain Meds Ran Out for Finger." (Ex. B PHS228-00508.) In response to his request, he was seen on June 6 by Nurse Anderson. She examined plaintiff and noted no signs or symptoms of distress. She referred plaintiff to Nurse Mastroianni, who saw him the next day, June 7, and refilled his Vicodin prescription for an additional seven days, through June 14. (Orr Decl. 9 & Ex. B PHS228-00425, 00444, 00479.) On June 10, plaintiff submitted an SRCJ grievance, complaining that he had not received adequate medical attention for the pain caused by his broken finger. (Opp'n Ex. H1.) The grievance was investigated by defendant Sgt. M. Molloy ("Sgt. Molloy"), who, on June 12, asked PHS to provide a written response outlining the treatment plaintiff had received for his injury. (Decl. M. Molloy Supp. Alameda Cty Defs.' Mot. Summ. J. ("Molloy Decl.") 5-6 & Ex. C.) On June 14, PHS responded, summarizing plaintiff's May 16, 23 and 24 visits with medical personnel. Additionally, Molloy was told by PHS that the continual use of pain medication can cause severe medical problems and, consequently, in each case, PHS must balance the benefits of continued use of pain medication against other potential harm to the patient. Plaintiff's SRCJ grievance subsequently was denied. (Molloy Decl. 9; Opp'n Ex. H-2.) On June 21, plaintiff was seen for follow-up for his finger injury by the orthopedic doctor. It was noted that plaintiff had lost his splint and was five weeks post-injury. The doctor's medical plan was for plaintiff to increase his activity as tolerated. No further treatment was prescribed. (Orr Decl. 10 & Ex. B PHS228-00444.) The records do not 9 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 reflect that plaintiff made any further medical complaints regarding the May 16 injury to his finger. 2. Analysis a. Alameda County Defendants Plaintiff maintains that the failure of certain SRCJ personnel to adequately respond to his finger injury and subsequent complaints of pain amounted to deliberate indifference to his serious medical needs. The Court, however, finds plaintiff has raised no triable issue of fact with respect to deliberate indifference on the part of any SRCJ defendant. Rather, the undisputed evidence shows that SRCJ personnel promptly responded to and investigated plaintiff's complaints of injury and pain, and appropriately referred him to PHS for treatment. Further, the undisputed evidence shows the SRCJ personnel were not put on notice that a substantial risk of serious harm to plaintiff existed. In particular, there is no dispute that SRCJ deputy Tuttle immediately summoned medical care on being told by plaintiff of the finger injury, PHS Nurse Comer responded to Tuttle's call for medical care within ten minutes, and Sgt. Molloy investigated plaintiff's grievance regarding medical care, which investigation showed plaintiff had been seen daily by medical personnel after the initial response by Nurse Comer, the finger had been x-rayed the day after the injury, follow-up medical appointments had been provided, and plaintiff had seen an orthopedist approximately a week after the injury. Additionally, the undisputed evidence shows SRCJ personnel did not act with deliberate indifference to plaintiff's needs for pain medication. In particular, there is no dispute that medical assessments and decisions regarding prescription pain medication are not within the purview of SRCJ personnel. Further, the undisputed evidence shows that when investigating plaintiff's grievance Sgt. Molloy also investigated plaintiff's complaint of inadequate pain management, and PHS advised Sgt. Molloy that pain medication, in fact, had been prescribed, but that because continued use of pain medication can cause severe medical problems, PHS had exercised its best medical judgment in deciding the length of time in which plaintiff would be given such prescription medication. 10 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 Plaintiff's contention that SRCJ personnel failed to adequately respond to his complaints of pain in the period between his two seven-day prescriptions for Vicodin likewise do not suggest SRCJ personnel acted in conscious disregard of a serious risk of harm to plaintiff. In particular, the undisputed evidence shows that SRCJ personnel knew PHS staff were treating plaintiff and using their medical judgment for his complaints of pain, and that SRCJ grievance unit investigations failed to reveal any reason for SRCJ personnel to believe PHS was indifferent to any serious medical need. Based on the above, the Court concludes there is no evidence from which a reasonable trier of fact could conclude any SRCJ defendant had the subjective state of mind required to establish deliberate indifference to plaintiff's serious medical needs. b. PHS Defendants United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff claims PHS staff acted with deliberate indifference to his serious medical needs by failing to provide him with prompt and adequate treatment for his finger injury. The undisputed evidence shows, however, that the injury to plaintiff's finger was promptly diagnosed and appropriately treated by PHS staff. In particular, such evidence shows the following: within ten minutes of reporting his injury, plaintiff was seen by Nurse Comer, who bandaged the finger, prescribed Motrin for five days, and scheduled an x-ray for plaintiff; the next day, plaintiff had an x-ray that showed the finger was broken; the following day, an orthopedic consultation was ordered and plaintiff was prescribed oral antibiotics; three days later, the dressing on plaintiff's finger was changed; two days after that, when plaintiff had been without Motrin for one day due to the expiration of his prescription, plaintiff was prescribed Vicodin for pain for seven days; the next day, plaintiff had an orthopedic consultation and a splint was put on his finger; one week later, after plaintiff had been without Vicodin for one day due to the expiration of his prescription, plaintiff submitted a request for a refill and within one week his prescription was refilled; one week after that prescription expired plaintiff was seen for follow up for his finger injury by the orthopedic doctor and no further treatment was prescribed. Plaintiff further claims PHS medical staff acted with deliberate indifference because 11 1 2 3 4 5 6 7 8 9 10 they failed to treat his finger pain until May 23, seven days after the injury. The Court finds plaintiff's contentions unsupported by the evidence. As noted, plaintiff was treated with Motrin from May 16, the day of his injury, through May 21. Dr. Orr, the PHS Health Care Manager, has attested that plaintiff's treatment with Motrin for the first week after his injury was medically appropriate, based on the nature and extent of plaintiff's injury, and plaintiff has not presented evidence that calls such medical assessment into dispute. In particular, although plaintiff was seen almost daily by medical personnel during the time he was taking Motrin, there is no evidence in the medical records that shows plaintiff complained to PHS personnel that he was not receiving adequate pain control. Further, plaintiff went only one day without any form of pain medication, specifically, he would have taken his last Motrin on May 21 and was prescribed Vicodin on May 23, and the record shows the reason plaintiff was not seen by a medical practitioner on May 22 was because he was away at court. Plaintiff also claims PHS staff acted with deliberate indifference when his first Vicodin prescription expired on May 30 but was not refilled until June 7. The Court finds no evidence that the delay in refilling the Vicodin prescription amounted to deliberate indifference. In particular, the evidence shows plaintiff's Vicodin prescription was not scheduled to be renewed automatically, and, as attested by Dr. Orr, due to the length of time that had elapsed following plaintiff's injury it would have been appropriate to provide no further narcotic pain medication after the first prescription expired. (Orr Decl. 55.) Consequently, PHS personnel could not have been expected to renew the prescription without a specific complaint from plaintiff that he was suffering from pain that would warrant such renewal. In view of plaintiff's June 1 medical request expressing only that his pain medication had run out, and not that he was suffering from pain, let alone severe pain, and because it was medically appropriate that further narcotic pain medication not be provided at such time, the time between plaintiff's refill request and the refilling of the prescription was not unreasonable. Based on such evidence, the Court finds plaintiff has failed to raise a triable issue as to whether the PHS defendants acted with deliberate indifference to plaintiff's serious 12 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 medical needs when diagnosing and treating his broken finger and providing him with pain medication. B. Treatment After Alleged August 8, 2007 Assault 1. Background Plaintiff claims that at approximately 4:30 p.m. on August 8, 2007, a deputy grabbed his right arm and threw him to the ground in his cell and, as a result, he hit his head and suffered a blackout and concussion, swelling and bruising on the left side of his head, and sharp pains in his left shoulder. He further claims he pushed the medical call button in his cell but no deputy came until pill call, at approximately 6:30 p.m. Plaintiff further claims he did not receive adequate treatment for his injures. (SAC V(C) at 3:17-5:6.) The evidence submitted by the parties in support of and opposition to the motions for summary judgment shows the following: On August 8, plaintiff submitted a request for medical services for injuries he alleges he received as a result of his having been assaulted. (Orr Decl. 11 & Ex. B PHS22800507.) That same date, at 6:30 p.m., plaintiff was seen by defendant Wilfredo Reyes, L.V.N., ("Reyes"), for complaints of headache and shoulder pain. Plaintiff told Reyes that he had fallen. He also reported a history of shoulder injuries. Reyes examined plaintiff, found no signs of acute distress, and scheduled plaintiff for further evaluation the following day at sick call. (Orr Decl. 11 & Ex. B PHS228-00439.) That same date, plaintiff, after being examined by Reyes, filed an SRCJ grievance, complaining he had been assaulted by a deputy and denied immediate medical care. (Decl. Ben Schaull Supp. Alameda Cty. Defs.' Mot. Summ. J. ("Schaull Decl.") 3.) The next day, August 9, plaintiff was seen at sick call by Dr. Pajong. According to Dr. Pajong's notes, plaintiff complained of left temple pain without double vision and light sensitivity. There was a question as to whether plaintiff had lost consciousness when he was injured. No other signs of acute distress were found. Dr. Pajong assessed plaintiff as having fallen and suffered a left temple hematoma and questionable left shoulder pain. Vicodin was prescribed, x-rays were ordered, and a follow-up appointment with an orthopedist was 13 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 scheduled. (Orr Decl. 12 & Ex. B PHS228-00438-00439.) Dr. Pajong told plaintiff to let medical staff know immediately if plaintiff started to suffer from double or blurred vision. (Ex. B PHS228-00506.) The next day, August 10, plaintiff complained of episodic double vision. That same date he was seen by medical staff. At the time of his examination he stated he was not having any trouble with his vision. On examination, plaintiff's vital signs were normal. Tenderness was noted to his forehead and left side of the head. Plaintiff was scheduled to follow up for further evaluation three days later, on August 13. (Orr Decl. 13 & Ex. B PHS228-00440.) On August 13, it was recommended that plaintiff be seen at the eye clinic for his complaint of double vision; a request for an internal consultation with the eye clinic was submitted that day. (Orr Decl. 14 & Ex. PHS-228-00440.) Also on August 13, plaintiff had x-rays taken of his skull and shoulder for his complaints of pain following his injury. (Ex. B PHS228-0497.) On August 15, plaintiff was seen in sick call for review of his x-ray results. He was informed that the x-ray results were negative for injury, and that he would be seen by the orthopedist for further follow up. Plaintiff's vital signs were normal and he denied any signs or symptoms of nausea, vomiting or double vision at that time. The plan was for plaintiff to return to the clinic as needed. (Orr. Decl. 15 & Ex. B PHS228-00440.) The next day, August 16, plaintiff was seen by Dr. Bachellor, an orthopedic specialist. Plaintiff did not complain of stiffness in his neck. He reported a history of having a previous left shoulder separation. On examination, there was no evidence of left shoulder separation, and it was noted that the x-rays of his left shoulder were within normal limits. Dr. Bachellor's impression was that plaintiff had a questionable strain of the left shoulder. Plaintiff was scheduled to see a physical therapist to increase shoulder-joint range of motion. (Orr. Decl. 16 & Ex. B PHS228-00448, 00449.) On August 17, defendant Sgt. Schaull denied plaintiff's SRCJ grievance, in which plaintiff claimed he had been assaulted and denied immediate medical care. (Opp'n Ex. W.) 14 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 On August 20, plaintiff filed a medical request slip, complaining of continuing neck pain and stating his belief that he was being prevented from receiving medical care because of medical staff's desire to protect the SRCJ personnel who had assaulted him. (Ex. B PHS228-00503. The next day, August 21, plaintiff was seen by the physical therapist, Rodney Silva ("Silva"). Plaintiff complained of left shoulder pain but did not report any problem with his neck. Silva's assessment was that plaintiff had sprained the ligament in his shoulder. The plan was for plaintiff to increase range of motion through self-stretching and to return on August 29. (Orr Decl. 17 & Ex. B PHS228-00448.) The next day, August 22, plaintiff was seen at the medical clinic by Dr. Horatio Campos. Plaintiff claimed to have been beaten and to have sustained injuries to his left shoulder and neck. Dr. Campos's assessment was that plaintiff had a strain of the cervical `spine and left shoulder. Dr. Campos ordered cervical spine and lateral shoulder x-rays and prescribed Darvocet, a pain medication. (Orr Decl. 18 & Ex. B PHS228-00441.) The xrays were taken the next day, on August 23, and showed no abnormality. (Orr Decl. 18 & Ex. B PHS228-00496.) On September 4, plaintiff was seen again by Silva, the physical therapist. Plaintiff complained of increased pain from his stretching exercises. Silva's evaluation was that plaintiff had pain on palpation to the distal end of the clavicle. Plaintiff informed Silva that he was scheduled to have a Mumford procedure, a surgery to remove the end of the clavicle. Silva discharged plaintiff from further physical therapy at that time. (Orr Decl. 19.) On September 11, plaintiff declined to be seen at the eye clinic, stating he no longer was having blurred vision. (Orr Decl. 20 & Ex. B PHS228-00436.) On September 28, plaintiff was seen by the optometrist. Plaintiff reported that he had experienced mild fuzziness in his vision in August, but that such condition had improved and that he no longer had double vision. The optometrist's impression was that plaintiff likely had mild macular edema in August. The plan was for plaintiff to return to the clinic in eight weeks. The prognosis was favorable. (Orr Decl. 22 & Ex. B PHS228-0045.) 15 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 2. Analysis a. Alameda County Defendants Plaintiff claims that after he pushed the intercom for medical assistance after having been assaulted on August 8, SRCJ personnel did not timely respond to his need for medical care and thereafter failed to ensure he was properly treated for the injuries he sustained. Plaintiff's contentions are unsupported by the evidence. To support his allegation that he was assaulted and attempted to summon medical care at approximately 4:30 p.m. on August 8, plaintiff has submitted a copy of a disciplinary report filed by deputy E. Thibodeaux on that same date, reporting that at 4:20 p.m. plaintiff would not return to his cell after being ordered by Thibodeaux to do so and, when plaintiff began to walk away, Thibodeaux grabbed the left shoulder of plaintiff's shirt and escorted him to his cell. (Opp'n Ex. O.) The report, however, substantiates neither plaintiff's assertion that he was assaulted nor that he attempted to summon medical help. Further, assuming such assertions are true,8 plaintiff has presented no evidence to show that any SRCJ official actually heard and ignored his request for medical attention made via the intercom, or that the failure of SRCJ personnel to respond to his cell resulted from deliberate indifference to his need for medical care. Additionally, plaintiff's evidence shows that on the same date plaintiff allegedly was assaulted, defendant Deputy Barrosa brought plaintiff a sick call slip and defendant Technician Bryan told plaintiff that Bryan had called PHS to ensure that plaintiff would be seen at sick call the following day. (SAC V(C) at 4:6-8, 13-19, 22-26, 5:1-2.) Further, the undisputed evidence shows that after plaintiff filed his SRCJ grievance on August 8, complaining he had been assaulted and needed immediate medical care, the grievance was investigated by Sgt. Schaull, who determined from plaintiff's PHS medical records that two hours after the alleged assault plaintiff had been seen by a nurse who noted United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff's SAC is verified; consequently, his factual allegations contained therein constitute admissible evidence. 16 8 1 2 3 4 5 6 7 8 9 10 no outward signs of trauma and found plaintiff talkative, alert and oriented. (Opp'n Ex. W.) Additionally, there is no evidence suggesting plaintiff suffered any injury due to the alleged delay in his being seen by medical personnel. Specifically, when plaintiff was seen by a doctor the day after the assault he was cleared to go to his cell, and subsequent x-ray results for injury were negative. (Schaull Decl. 4-7.) Based on the above, the Court finds plaintiff has failed to raise a triable issue of fact with respect to whether any SRCJ defendant acted with deliberate indifference to plaintiff's serious medical needs in connection with plaintiff's efforts to obtain medical care after allegedly having been assaulted on August 8. b. PHS Defendants United States District Court 11 For the Northern District of California Plaintiff claims the PHS defendants acted with deliberate indifference to his serious medical needs by failing to properly treat the head and shoulder injuries he suffered after the alleged assault on August 8. The undisputed evidence, however, shows no deliberate indifference. In particular, sets of x-rays were ordered in response to plaintiff's complaints of shoulder and head pain, but no evidence of any significant abnormality was found. Additionally, medical staff was alert for signs of a serious head injury and followed up on plaintiff's complaints of double vision, but no evidence supported a diagnosis of a serious head injury. Specifically, the evidence shows the following: within two hours after he was injured, plaintiff was evaluated in his cell by Nurse Reyes, who saw no sign of a condition requiring emergency treatment or evaluation and put plaintiff on the sick call list for the next day; two days after plaintiff was injured he was seen by Dr. Pajong who examined plaintiff, saw no signs of serious injury, prescribed Vicodin, and ordered x-rays of plaintiff's skull and left shoulder; three days after plaintiff was injured he was seen by medical staff for complaints of double vision and scheduled for a return visit in three days; in the week after plaintiff was injured he was seen for a follow-up visit and referred to the eye clinic, had x-rays taken of his skull and shoulder, had the x-rays reviewed and saw an orthopedist; in the second week after he was injured plaintiff was seen by a physical therapist, was prescribed pain medication and 17 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 had x-rays taken that showed no abnormality; and in the month following plaintiff's injury, plaintiff was again seen by the physical therapist, declined to go to the eye clinic for his complaints of double vision, and subsequently saw an optometrist, who determined plaintiff had mild swelling of the eye, a condition not requiring further treatment. In sum, the undisputed evidence shows plaintiff was extensively evaluated and treated by PHS nursing staff, staff doctors, the orthopedic doctor, the physical therapist and the optometrist. At most, plaintiff has shown that he did not agree with the treatment he received. "A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a 1983 claim." Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). Accordingly, the Court finds plaintiff has failed to raise a triable issue as to whether the PHS defendants were deliberately indifferent to plaintiff's serious medical needs following the injury suffered by plaintiff on August 8. C. Treatment Between September 11 and November 7, 2007 1. Background United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff claims he experienced back pain, chest pain and difficulty breathing after being assaulted by a deputy at around 9:00 a.m. on September 11. He claims he tried to summon medical attention, but the intercom button in his cell was not working, and medical attention was not provided until September 14. Thereafter, he alleges, he was not seen by doctors between September 16 and October 31, despite submitting many medical request slips and filing many grievances regarding back and shoulder pain, headaches and dizziness. (SAC V(D) at 5:9-28). The evidence submitted by the parties in support of and opposition to the motions for summary judgment shows the following: On September 11, at 10:20 a.m., plaintiff was seen by Nurse Mastroianni, complaining that a previous injury to his left shoulder had been aggravated when a deputy handcuffed him that morning. He also complained that he had been having diarrhea for two days. Mastroianni ordered x-rays of plaintiff's left shoulder and prescribed Pepto-Bismol and Flexeril, a muscle relaxant. She instructed plaintiff to report to medical staff if the diarrhea 18 1 2 3 4 5 6 7 8 9 10 continued. (Orr Decl. 20 & Ex. B PHS228-00419, 00436.) Two days later, on September 13, an x-ray was taken of plaintiff's left shoulder. It showed no abnormality. (Orr Decl. 20 & Ex. B PHS228-00495.) Plaintiff was seen again by Nurse Mastroianni the following day, September 14. He reported his diarrhea had resolved. He complained of increased lower back pain and that non-steroidal pain medications upset his stomach. After examining plaintiff, Nurse Mastroianni assessed his condition as a lumbar strain. She prescribed analgesic balm for the lumbar spine area twice a day and for plaintiff to follow up as needed. (Orr Decl. 21 & Ex. B PHS228-00417, 00435.) On September 22, plaintiff filed a grievance with SRCJ officials, complaining that he had submitted a call form on September 16 but hadn't been seen for medical care until September 19. (Opp'n Ex. DD.) Sgt. Molloy investigated plaintiff's complaints by asking PHS to respond. On September 28, PHS responded, stating that plaintiff's most recent examination and x-ray results were negative for injury, and that plaintiff had been taken off all pain medications and prescribed an analgesic balm. (Molloy Decl. 16 & Ex. E.) Plaintiff's SRCJ grievance claiming inadequate care subsequently was denied. (Opp'n Ex. DD-2.) On September 24, plaintiff was seen by defendant Dr. Harold Orr ("Dr. Orr"), who had been contacted by plaintiff's mother, a former patient of Dr. Orr, and asked to look in on plaintiff. Dr. Orr saw plaintiff briefly, reviewed plaintiff's records, and called plaintiff's mother and told her that plaintiff was being followed and treated appropriately by medical staff. Dr. Orr did not enter a progress note because, as the medical director, he oversees the treatment of many inmates and does not enter progress notes unless there is a specific reason to do so, such as altering the care regimen. Dr. Orr did not schedule an appointment to see plaintiff the following day, as plaintiff did not need any immediate treatment at the time and it was appropriate for plaintiff to be seen in the regular course of scheduled follow-ups. (Orr Decl. 24.). On September 28, plaintiff was seen by the optometrist for his previously scheduled 19 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 appointment. (Orr Decl. 22 & Ex. B PHS228-0045.) On October 15, plaintiff filed a grievance with SRCJ officials, complaining he had been denied medical attention by the housing nurse. The grievance was denied on October 20 because the housing nurse had determined plaintiff's complaints were not an emergency and he was scheduled for a follow-up appointment pursuant to the normal course of scheduling. (Orr Decl. 24, Opp'n Ex. GG.) On October 23, plaintiff obtained an order from the superior court, directing that plaintiff be seen for complaints for migraines and back pain that he had brought to the attention of the court. The next day, the PHS nurse noted plaintiff's chart was not available and rescheduled an appointment for plaintiff with the nurse practitioner or doctor once the chart became available. That same day, October 24, plaintiff filed another SRCJ grievance, complaining he was not being provided with adequate medical care, including treatment for his shoulder pain. Plaintiff's grievance was denied on the ground he was receiving treatment, just not of the type plaintiff felt was appropriate. (Orr Decl. 24, Opp'n Ex. KK.) On October 26, plaintiff filed a grievance, complaining that PHS still had not complied with the superior court's order. (Opp'n Ex. LL.) On October 29, plaintiff's chart was available and Dr. Orr requested that plaintiff be seen by the nurse practitioner. Plaintiff could not be seen on October 30, as he was out for a court appearance. (Orr Decl. 24.) On October 31, plaintiff was seen by Nurse Mastroianni. Plaintiff complained of having headaches on the left side of his head after sustaining head trauma in August 2007. He stated he had been using Motrin, but that it caused stomach upset. He also reported taking Tylenol, but stated it was not effective. He stated he had been experiencing lower back pain since September 11, and that the analgesic balm was not effective. He also complained of left shoulder pain from an old injury and stated he was supposed to have had surgery in the past; he also said the pain was not responsive to physical therapy. Additionally, he said that he had lost eleven pounds secondary to depression and wanted to see a psychiatrist, and he complained of having a cough with yellow green sputum. After examining plaintiff, Nurse Mastroianni prescribed Baclofen, a muscle relaxant; Percogesic, a 20 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 pain medication; and Humibid, a decongestant. Nurse Mastroianni scheduled plaintiff for a follow-up medical appointment on November 5, and noted plaintiff was scheduled for a psychiatric appointment on November 15. On November 5, plaintiff was seen by Dr. Wilson. Plaintiff reported a decrease in coughing. He complained of headaches and low back pain. Dr. Wilson referred plaintiff to physical therapy for core strengthening and flexibility exercises, and noted in the medical report that although plaintiff had multiple complaints, the examination of plaintiff was "uncompelling" (Orr Decl. 25 & Ex. B PHS228-00416, 00447), meaning, there was no objective evidence to support plaintiff's subjective complaints (Orr Decl. 25). On November 7, plaintiff was transferred to Atascadero State Hospital ("Atascadero"). (Molloy Decl. 4.) 2. Analysis a. Alameda County Defendants United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff claims SRCJ personnel did not timely respond to his need for medical care after he was assaulted on September 11 and for lengthy periods of time thereafter. The undisputed evidence, however, shows otherwise. First, such evidence shows that plaintiff claims he was assaulted at approximately 9:00 a.m., and that he was seen that same day at 10:20 a.m. by Nurse Mastroianni, who ordered x-rays of plaintiff's left shoulder and prescribed a muscle relaxant and Pepto-Bismol. Second, the undisputed evidence shows that between September 22 and October 26 plaintiff filed three SRCJ grievances, each of which Sgt. Molloy promptly investigated by asking PHS to respond, and that PHS responded that plaintiff was seen by a PHS nurse less than two hours after the incident, no signs of trauma were observed, x-rays taken two days later were negative, and PHS health care givers saw plaintiff on one other occasion in September, four other occasions in October, and once more in November. Plaintiff also claims the SRCJ defendants acted with deliberate indifference to his serious medical needs because the intercom button in his cell was not working when he tried to summon medical help after he was assaulted. Plaintiff, however, has presented no 21 1 2 3 4 5 6 7 8 9 10 evidence that shows any SRCJ defendant either knew the intercom was broken or failed to fix it in conscious disregard of a substantial risk of harm to plaintiff's health and safety. Further, the undisputed evidence shows that even though the intercom button was not working, plaintiff was seen by a nurse within ninety minutes of having been injured, and the nurse found no objective evidence of a serious condition or injury. Based on the above, the Court concludes plaintiff has failed to raise a triable issue with respect to whether any SRCJ defendant acted with deliberate indifference to plaintiff's serious medical needs following his alleged assault on September 11. b. PHS Defendants Plaintiff complains the PHS defendants denied him treatment for his back and shoulder pain, headaches and dizziness from September 16 until October 31, when he was seen by Nurse Mastroianni. While the evidence shows plaintiff was not seen by any PHS defendant during the relevant period, plaintiff has failed to raise a triable issue with respect to whether the reason for his failure to be seen was due to defendants' deliberate indifference. Rather, the undisputed evidence shows that from September 16 to October 31, PHS received no direct request for medical care from plaintiff. Instead, PHS was made aware of plaintiff's complaints because he filed several SRCJ administrative grievances. Upon request from the SRCJ grievance unit, PHS promptly responded that they were aware of plaintiff's complaints, which were being addressed. Additionally, within one week of PHS's receiving the superior court's order for a medical report concerning plaintiff's complaints, plaintiff was seen and thoroughly evaluated by Nurse Mastroianni, and five days later he was seen by Dr. Wilson.9 Moreover, there is no evidence showing plaintiff suffered any harm as a result of the claimed delay. In particular, the undisputed evidence shows that prior to September 16 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The superior court's issuance of such order does not lead to an inference that defendants acted with deliberate indifference to plaintiff's medical needs. The undisputed 27 evidence is that PHS often receives orders from the superior court, requesting that inmates be seen for complaints they have brought to the attention of the court at the time they appear 28 before the court. (Orr Decl. 24.) 22 9 1 2 3 4 5 6 7 8 9 10 plaintiff was medically evaluated on three occasions, that thereafter he was seen by Dr. Orr on September 24 and by the optometrist on September 28, and that there was nothing to indicate an emergency or new injury to plaintiff at any of those appointments, or at the time he was seen on October 31. Based on the above, the Court concludes plaintiff has failed to raise a triable issue with respect to whether any PHS defendant acted with deliberate indifference to plaintiff's serious medical needs following his alleged assault on September 11. D. Treatment for Back Pain Between March 19 and April 4, 2008 1. Background Plaintiff claims he was not seen promptly for medical care when he was transferred back to SRCJ from Atascadero, and was not given pain medication for his back. The evidence submitted by the parties in support of and opposition to the motions for summary judgment shows the following: Plaintiff returned to SRCJ from Atascadero on March 19, 2008.10 The transfer form noted that the medications plaintiff had been taking at Atascadero, other than psychiatric medications, had been prescribed on an "as needed" basis and, consequently, were not sent with plaintiff when he was transferred back to SRCJ. (Orr Decl. 26 & Ex. B PHS22800352, 00353, 00359.) Upon his arrival at SRCJ, plaintiff was screened by a nurse. The intake examination showed plaintiff had reported chronic headaches and back pain. He was prescribed Tylenol 650 two times a day for five days. It was noted that plaintiff stated he had been weaning himself off Seroquel, a psychiatric medication. He was scheduled for a psychiatric appointment. (Orr Decl. 26.) Twelve days later, on March 31, plaintiff filed a grievance with SRCJ officials, complaining that, among other things, he had not received follow-up medical care for his headaches and back pain after his return to SRCJ. On April 2, Sgt. Molloy requested a United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 All further dates referenced in this section are in 2008, unless otherwise noted. 23 1 2 3 4 5 6 7 8 9 10 response from PHS concerning plaintiff's complaints. On April 3, PHS responded that plaintiff had been prescribed Tylenol, he had not submitted any sick call request slips to PHS after his return to SRCJ, and, as of March 20, he had been refusing his psychiatric medications every day. Also on April 3, the SRCJ grievance unit asked PHS to have plaintiff seen by medical personnel as soon as possible; PHS responded by seeing plaintiff the next day. On April 4, plaintiff was seen by Nurse Mastroianni. He reported a history of migraine headaches and treatment with Imitrex at Atascadero. He also complained of low back pain for which he had received multiple treatments that were somewhat effective. He further complained he was not receiving his psychiatric medications. After examining plaintiff, Nurse Mastroianni was not convinced he had migraine headaches, and thought the headaches might be tension related. Nurse Mastroianni prescribed Robaxin and acetaminophen, and referred plaintiff to the psychiatry clinic and for a physical therapy consult. (Orr Decl. 28 & Ex. B PHS228-00235-36.). United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On April 11, in further response to Sgt. Molloy's investigation of plaintiff's medical grievance, PHS informed Sgt. Molloy of plaintiff's examination by Nurse Mastroianni and that there were no findings that would warrant prescribing the pain medication plaintiff was requesting in his grievance. (Molloy Decl. 20 & Ex. G.) Subsequently, on April 14 and April 29, plaintiff refused to see the physical therapist. (Orr Decl. 31 & Ex. B PHS228-00241.) 2. Analysis a. Alameda County Defendants Plaintiff's contention that the SRCJ defendants did not provide him with prompt and adequate medical attention upon his return from Atascadero is not supported by the evidence. Rather, the undisputed evidence shows the following: subsequent to plaintiff's return to SRCJ from Atascadero on March 19, plaintiff did not communicate with SRCJ officials about alleged inadequate medical care until he filed a grievance on March 31; two days later, Sgt. Molloy investigated the grievance by requesting a response from PHS; the following day 24 1 2 3 4 5 6 7 8 9 10 the grievance unit asked PHS to see plaintiff as soon as possible; plaintiff was seen by PHS the very next day; one week later PHS informed Sgt. Molloy of the results of plaintiff's examination, specifically, that there were no medical findings that would warrant prescribing the particular pain medication plaintiff was requesting. Based on the above, the Court concludes there is an absence of evidence to support a finding that the SRCJ defendants acted with deliberate indifference to plaintiff's serious medical needs. b. PHS Defendants Plaintiff's contention that the evidence shows he was not promptly seen by PHS medical staff upon his return to SRCJ, and that he was not provided the medication he had been receiving at Atascadero, is equally unavailing. In particular, the undisputed evidence shows that on March 19, the day of plaintiff's return to SRCJ, the transfer form sent with plaintiff from Atascadero showed that the medications he reported to have been taking for his physical conditions were being taken on an "as needed basis"; that same date, he was seen by a PHS nurse who prescribed Tylenol for five days for plaintiff's complaint of headaches and back pain; as of March 31 plaintiff had not submitted any sick call slips to PHS; within one day of being notified of plaintiff's SRCJ grievance, a PHS nurse saw plaintiff, prescribed Robaxin and acetaminophen, and planned for plaintiff to be seen by the psychiatry department and to receive a physical therapy consultation; on both April 14 and 29 plaintiff refused to see the physical therapist. Based on the above, the Court concludes plaintiff has failed to raise a triable issue as to whether the PHS defendants acted with deliberate indifference to his serious medical needs by failing to promptly see him upon his return to SRCJ and to prescribe medication for his complaints of pain. United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 1 2 3 4 5 6 7 8 9 10 E. Treatment Between July 15 and September 2, 2008 1. Background Plaintiff complains he aggravated his back and shoulder injuries on July 15, when he was moved to a top tier bunk, and that he received inadequate medical care for his injuries because he was not provided with a medical chrono for a lower bunk and did not receive proper attention for his back and shoulder pain. He further complains he did not receive adequate medical care for his chronic weight loss. The evidence submitted by the parties in support of and opposition to the motions for summary judgment shows the following: Plaintiff's medical chart does not contain any record of plaintiff's sustaining an injury on July 15. Instead, the record reflects that on July 16, a deputy reported that plaintiff refused to go to an outside appointment for evaluation of a condition in his mouth. The reason provided by plaintiff was that he could not move because of a disc problem he had suffered at Atascadero. That same date, plaintiff was seen by PHS medical staff, who examined plaintiff, assessed chronic back pain, prescribed Neurontin and scheduled him to be seen at sick call. (Orr Decl. 37 & Ex. B PHS228-00229.) The next day, July 17, plaintiff was seen by defendant Dr. I-Fei Chen ("Dr. Chen"). (Orr Decl. 38; Chen Decl. 4.) Plaintiff requested a chrono, specifically, a medical order for him to be placed on a lower bunk in a lower tier. Dr. Chen examined plaintiff, who was not in acute distress. Dr. Chen's assessment was that plaintiff had chronic low back pain, with no objective signs of any abnormality. Dr. Chen denied plaintiff's chrono request. She encouraged plaintiff to perform self-directed physical therapy for range of motion and strengthening. (Decl. Dr. I-Fei Chen Supp. PHS Defs.' Mot. Summ. J. ("Chen Decl.") 8). The next week, on July 25, Deputy Franco "unofficially" gave plaintiff a lower bunk at plaintiff's request, despite the lack of a medical order. (SAC V(F) at 9:1-4.) On July 31, plaintiff was seen by Dr. Chen pursuant to a superior court order to address plaintiff's back and left shoulder pain. Dr. Chen noted in the medical chart that she had already addressed plaintiff's back pain on July 17. Additionally, she noted that when she 26 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 attempted to examine plaintiff's shoulder, she was unable to do so because plaintiff refused to move his left arm or let her passively move his arm. He also refused to sign a release of responsibility and said he wanted to file a grievance. (Orr Decl. 40; Chen Decl. 5). On August 5, Sgt. Molloy asked PHS to respond to an SRCJ grievance plaintiff had filed, in which plaintiff complained of inadequate medical attention. The investigation showed that the last sick call slip PHS had received from plaintiff was dated June 30, and that PHS had received no sick call slips from plaintiff complaining of a re-injury to his shoulder; additionally, plaintiff had been seen in sick call on five occasions after June 26. PHS further advised Sgt. Molloy there was no medical indication for further x-rays and that medical records from Atascadero did not support plaintiff's claims of a back and shoulder injury other than a complaint of shoulder pain, which had been treated with Tylenol. (Molloy Decl., 22-23 & Ex. H.) Thereafter, plaintiff obtained another superior court order, dated August 26, for evaluation of his shoulder and back. The next day, Dr. Chen responded to the superior court, expressing her frustration with what she described as plaintiff's continued attempts to manipulate the medical staff. In particular, Dr. Chen explained that she had examined plaintiff's back, which was normal, and that he refused to allow her to assess his shoulder. She stated it would be a disservice to plaintiff to enable his behavior, and she requested the court be judicious in its further issuance of such orders. (Orr Decl. 41; Chen Decl. 6). That same date, August 27, plaintiff filed a SRCJ grievance, complaining he needed to be seen by another doctor. Sgt. Molloy asked PHS to respond; two days later, PHS informed Sgt. Molloy that plaintiff had been seen by a nurse practitioner and two doctors on several occasions, there was no medical indication that a second opinion was required, and there was no medical need for a lower tier, lower bunk chrono. (Molloy Decl. 24-25 & Exs. I & J.) On September 2, plaintiff was seen by Dr. Wilson. Plaintiff claimed he had suffered a shoulder separation in September 2006 and surgery was pending. Dr. Wilson's assessment was left shoulder separation with joint pain, low back pain and decreased weight. Dr. Wilson 27 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 ordered laboratory testing, a physical therapy consultation, analgesic balm, Ensure and Percogesic. He also approved a lower bunk chrono, and ordered plaintiff's weight to be checked at regular intervals. (Orr Decl. 42.) Thereafter in 2008, plaintiff was seen as follows: on September 18 by Dr. Chen; on October 1 by Dr. Wilson, who ordered an orthopedic consult for plaintiff's complaints of shoulder and back pain; on October 2 for physical therapy; on October 16 in the orthopedic clinic for possible treatment of his shoulder pain with steroid injections; and on December 31 by a PHS nurse, at which time anti-inflammatory medication was prescribed and x-rays of plaintiff's shoulder were ordered. (Chen Decl. 7; Orr Decl. 44, 46, 49, 52.) On January 6, 2009, plaintiff was seen twice by Dr. Magat, pursuant to a court order for evaluation of pain in plaintiff's left shoulder, possible rotator cuff injury and back pain with a possible degenerative disc. Dr. Magat noted that plaintiff had refused the previously ordered x-rays of plaintiff's shoulder and neck, and that plaintiff would not allow Dr. Magat to examine his left shoulder. On January 15, plaintiff refused to sign a request-for-information form to allow Dr. Magat to receive his records from Kaiser regarding his left shoulder. (Orr Decl. 5253.) 2. Analysis a. Alameda County Defendants United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff claims he received constitutionally inadequate medical care between July 15 and September 2, 2008, because he was not timely provided a medical chrono for a lower bunk for his back and shoulder pain, was not seen often enough by medical staff for said pain, and was not treated for his chronic weight loss. The undisputed evidence shows that no SRCJ defendant acted with deliberate indifference to plaintiff's medical needs in such regard. First, plaintiff has presented no evidence that any SRCJ defendant acted with deliberate indifference to his com

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