Estrada v. Rowe et al

Filing 141

ORDER GRANTING 112 , 116 , 120 DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT; GRANTING 131 PLAINTIFF'S MOTION TO AMEND DECLARATIONS; DENYING 129 PLAINTIFF'S ADMINISTRATIVE REQUEST; DENYING 136 PLAINTIFF'S MOTION TO STRIKE. Signed by Judge Maxine M. Chesney on January 9, 2012. (mmcsec, COURT STAFF) (Filed on 1/9/2012) (Additional attachment(s) added on 1/9/2012: # 1 Certificate of Service) (tlS, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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JAIME IGNASCIO ESTRADA, )
)
)
Plaintiff,
)
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v.
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LINDA CAROL ROWE, M.D., )
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MICHAEL SAYRE, M.D.,
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NANCY ADAM, M.D.,
)
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Defendants.
____________________________)

No. C 08-2801 MMC (PR)
ORDER GRANTING DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT;
GRANTING PLAINTIFF’S MOTION TO
AMEND DECLARATIONS; DENYING
PLAINTIFF’S ADMINISTRATIVE
REQUEST; DENYING PLAINTIFF’S
MOTION TO STRIKE
(Docket Nos. 112, 116, 120, 128, 129, 131, 136)

On June 5, 2008, plaintiff, a California prisoner incarcerated at Pelican Bay State

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Prison (“PBSP”) and proceeding pro se, filed against Linda Rowe, M.D. (“Dr. Rowe”) and

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Michael Sayre, M.D. (“Dr. Sayre”), two physicians employed at PBSP, the above-titled civil

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rights action under 42 U.S.C. § 1983, claiming deliberate indifference to his serious medical

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needs and seeking injunctive relief. Subsequently, the Court granted plaintiff’s request to

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amend his complaint to include a claim for damages, and plaintiff thereafter filed his First

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Amended Complaint (“FAC”). After defendants filed an answer to the FAC, the Court

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referred the matter to Magistrate Judge Nandor J. Vadas for mediation proceedings; the

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parties were unable to reach an agreement. Plaintiff then moved to file a supplemental

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complaint alleging ongoing inadequate medical care and naming Nancy Adam, M.D. (“Dr.

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Adam”), as an additional defendant. The Court granted plaintiff’s request and directed

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defendants to file, if appropriate, a motion for summary judgment or other dispositive motion

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with respect to the claims found to be cognizable in the FAC and supplemental complaint.

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On August 27, 2010, defendants filed three separate motions for summary judgment.

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By order filed January 25, 2011, the Court, pursuant to Rule 56(d) of the Federal Rules of

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Civil Procedure, denied the motions without prejudice, to permit the parties to resolve

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pending discovery matters. On February 28, 2011, plaintiff reported the parties were able to

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resolve their discovery disputes and that plaintiff would not seek to compel further discovery,

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after which the Court afforded defendants leave to renew their motions for summary

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judgment.

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Now before the Court are: (1) Dr. Rowe’s renewed motion for summary judgment;

for summary judgment. Plaintiff has opposed the motions, and defendants have filed replies.

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For the Northern District of California

(2) Dr. Adam’s renewed motion for summary judgment; and (3) Dr. Sayre’s renewed motion

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United States District Court

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Also before the Court are: (1) plaintiff’s motion to amend two of his declarations;

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(2) plaintiff’s request for administrative relief; (3) plaintiff’s request for judicial notice; and

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(4) plaintiff’s motion to strike defendants’ reply briefs.

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BACKGROUND
In the FAC and supplemental complaint, plaintiff alleges he suffers from degenerative

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disc disease and sciatica, causing him chronic back pain and mobility problems. Plaintiff

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claims the medications prescribed for him at PBSP failed to lessen his pain or improve his

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mobility. He alleges defendants denied his requests for additional diagnostic procedures,

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alternate medications, and referral to a specialist.

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Plaintiff claims Dr. Rowe provided constitutionally inadequate care from June 2006

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through August 2008, the time during which Dr. Rowe acted as plaintiff’s primary care

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physician. Plaintiff claims Dr. Adam provided constitutionally inadequate care from

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October 2008 to the time plaintiff filed his supplemental complaint. Plaintiff claims Dr.

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Sayre, in his capacity as PBSP’s Chief Medical Officer, acted with deliberate indifference to

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plaintiff’s serious medicals needs.

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The evidence submitted by the parties in support of and opposition to defendants’

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motions for summary judgment shows the following1:

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Dr. Rowe treated plaintiff for the first time on March 28, 2006, in connection with a

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sick call. (Rowe Decl. Supp. Mot. Summ. J. (“Rowe Decl.”) ¶ 6.) She served as plaintiff’s

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primary care physician from that date until August 6, 2008. (Id. ¶ 7.) Over that time, she

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interacted directly with plaintiff during 26 to 27 medical visits. (Id. ¶ 8.) Dr. Rowe treated

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plaintiff for a variety of medical issues, including fatigue, allergic rhinitis, nose bleeds,

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pterygium (tissue growth on eye), heartburn, H Pylori (stomach infection), high blood

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pressure, headaches, involuntary arm movement, shoulder discomfort, and back pain. (Id. ¶¶

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9-22.)
Dr. Rowe first saw plaintiff for his complaints of back pain on June 22, 2006. (Id.

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¶ 11.) At that time, plaintiff claimed to have low back pain that had been worsening over the

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previous six months and was radiating to his hip with some numbness to his leg. (Id.) Dr.

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Rowe noted, however, plaintiff walked well, got up and down from his chair without

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difficulty, and had full range of motion in his back. (Rowe Decl., Ex. A at 88.) She

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nonetheless ordered X-rays and gave plaintiff Tylenol for the pain he described. (Id. at 61.)

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Dr. Rowe reviewed the X-rays with plaintiff on July 20, 2006. (Rowe Decl. ¶ 11.)

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She informed him that the X-rays showed he had mild arthritis at L3-L4 and that otherwise

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his back was normal. (Id. ¶ 11 & Ex. A at 80.) She continued him on Tylenol for pain as he

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was not able to use nonsteroidal anti-inflammatory drugs due to his recent treatment for a

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stomach infection. (Id. ¶ 11 & Ex. A at 65.)

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Dr. Rowe saw plaintiff for complaints of back pain again on April 10, 2007. (Rowe

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Decl. ¶ 14.) She prescribed Tylenol, Elavil, and Robaxin, a muscle relaxant. (Id. ¶ 14 & Ex.

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A at 546, 551-52.)

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Dr. Rowe saw plaintiff again on August 20, 2007, October 4, 2007, and October 25,

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2007, for complaints of low back pain, gastroesophageal reflux, and allergic rhinitis. (Rowe

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Decl. ¶ 17 & Ex. A at 1127, 1133, 1150-51, 1171, 1177.) She continued him on Tylenol for

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The facts are undisputed unless otherwise noted.
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arthritis and also prescribed Motrin as an alternate pain medication. (Id.)

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Dr. Rowe saw plaintiff again on December 18, 2007 for low back pain. (Rowe Decl. ¶

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19.) She diagnosed him with continuing arthritis and prescribed Salsalate for the pain. (Id. ¶

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19 & Ex. A at 509.) She advised him there was no single medication that would work

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indefinitely and that there was no cure. (Id. ¶ 19 & Ex. A at 1094.) As of the time of that

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visit, plaintiff had been given Motrin, Naprosyn, Voltaren, Elavil, Tylenol, and muscle

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relaxants for back pain. (Id.) She also reminded him that nonsteroidal anti-inflammatory

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drugs were dangerous in the long term as they affect the gastrointestinal tract and kidneys.

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(Id.) Dr. Rowe determined plaintiff did not need to see a specialist at that time. (Id. ¶ 19 &
Ex. A at 1096.)

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Dr. Rowe again saw plaintiff for back pain on February 1, 2008. (Rowe Decl. ¶ 20 &

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Ex. A at 1051, 1057.) She continued him on Salsalate and Elavil. (Id. ¶ 20 & Ex. A at 508.)

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On August 6, 2008, Dr. Rowe saw plaintiff for high blood pressure. (Rowe Decl. ¶ 22

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& Ex. A at 1382-83.) To help lower his blood pressure, she discontinued the Salsalate and

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other nonsteroidal anti-inflammatory drugs, and prescribed Tylenol for his back pain. (Id.)

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After that visit, Dr. Rowe had no other direct involvement in plaintiff’s medical care. (Id. ¶

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23.)

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Dr. Adam first treated plaintiff on October 6, 2008 when she saw him for an

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appointment relating to his blood pressure. (Adam Decl. Supp. Mot. Summ. J. (“Adam

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Decl.”) ¶ 6.) At that appointment, Dr. Adam and plaintiff also discussed his allergies and

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complaints of back pain. (Id.) For the pain, Dr. Adam instructed plaintiff to continue taking

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Acetaminophen and Salsalate as needed, as well as Amitriptyline as scheduled. (Id. ¶ 6 &

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Ex. A at 713-14) She also recommended exercises and stretches. (Id.)

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On December 15, 2008, Dr. Adam saw plaintiff for a follow-up after he had been seen

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for a neurology consult (Adam Decl. ¶ 9); plaintiff stated his back pain had decreased with

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Salsalate and Tylenol. (Id. ¶ 9 & Ex. A at 692-95.) Dr. Adam also continued him on Elavil

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and prescribed Indocin “just for the days of really bad pain.” (Id.) She advised him to

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increase his physical conditioning, as he stated he was not exercising. (Id.) Plaintiff
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expressed an interest in physical therapy, and Dr. Adam recommended he first increase his

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physical conditioning and start a regular exercise routine. (Id.)

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On January 29, 2009, Dr. Adam saw plaintiff for his hypertension. (Adam Decl.

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¶ 10.) At that visit, he complained of continued back pain and a tingling sensation on the left

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side of his back, as well as rib pain and other joint pains. (Id.) Dr. Adam diagnosed him as

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having minimal degenerative joint and disc disease; she further observed that he had

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inconsistent symptoms. (Id. ¶ 10 & Ex. A at 1693-97.) She instructed him to increase his

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walking and to get on a regular exercise routine so she could then assess whether he would

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benefit from physical therapy. (Id.) She increased his dose of Salsalate, and he agreed to try

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discontinuing Elavil to avoid over-medicating. (Id.)
On February 18, 2009, plaintiff submitted a Disability Placement Program

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Verification request form. (Adam Decl. ¶ 11 & Ex. A at 1796.) Dr. Adam determined

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plaintiff’s condition did not rise to the level of a disability, and denied the request. (Id.)

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On March 4, 2009, Dr. Adam saw plaintiff again for his hypertension and complaints

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of back pain. (Adam Decl. ¶ 12.) He described an exacerbation of his pain and stated that no

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medication had given him significant relief. (Id. ¶ 12 & Ex. A at 1406-08.) Dr. Adam

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continued plaintiff on Tylenol and Salsalate. (Id.) She discussed Robaxin with him but

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decided to hold off prescribing it in light of his other medical issues. (Id.) She referred

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plaintiff to physical therapy, but the referral was denied on the ground there was no evidence-

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based reason for the therapy. (Id. ¶ 12 & Ex. A at 1811.)

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On July 9, 2009, Dr. Adam had one other appointment with plaintiff, regarding left

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knee pain resulting from a twisted ankle. (Adam Decl. ¶ 13.) After that appointment, Dr.

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Adam had no other direct involvement in plaintiff’s medical care. (Id.)

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In July 2008, plaintiff had a lumbar spine X-ray. (Adam Decl. ¶ 7.) The X-ray

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showed “mild degenerative disc disease” and results indicative of muscle spasm. (Id.) These

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findings were similar to those made in connection with the earlier X-ray taken in June 2006,

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as well as those regarding a later X-ray taken in May 2010, which indicated little change in

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the condition of plaintiff’s back. (Id.) Plaintiff also had an MRI of his lumbar spine, on
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October 30, 2009. (Decl. Sayre Supp. Mot. Summ. J. (“Sayre Decl.) ¶ 14 & Ex A at 2211.)

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The findings showed plaintiff had no significant degenerative disc desiccation (reduced water

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content of disk), no evidence of arachnoiditis (inflammation), no focal disc protrusion, no

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evidence of spondylolisthesis (slippage of vertebra) or spondylolysis (disc space

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degeneration). (Id.) The MRI showed plaintiff to have mild degenerative facet disease. (Id.)

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The results were otherwise normal. (Id.)

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In November 2009, plaintiff submitted another Disability Placement Program

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Verification request (Sayre Decl. ¶ 15 & Ex. A at 2213), following which Dr. Williams, a

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PBSP staff physician, found no disability could be verified because plaintiff had just had a
normal MRI of the spine and no mobility issues had been identified. (Id.)

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As noted, Dr. Sayre is PBSP’s Chief Medical Officer. (Decl. Sayre Supp. Mot.

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Summ. J. ¶ 1.) In that capacity, Dr. Sayre reviewed plaintiff’s Disability Placement Program

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Verification requests and the staff physicians’ denials of those requests. (Id. ¶¶ 13, 15.) Dr.

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Sayre also saw plaintiff on three visits, all in response to plaintiff’s inmate appeals. (Id. ¶¶ 7,

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10, 11.)

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The first such appeal involved plaintiff’s complaints against Dr. Rowe. (Id. ¶ 7.)

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Plaintiff alleged therein that Dr. Rowe: (1) limited the scope of her sick calls to one medical

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issue, and (2) had poor skills in her dealings with inmates. (Sayre Decl. Ex. B at 630.) On

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November 8, 2006, Dr. Sayre met with plaintiff regarding those complaints. (Id.) Dr. Sayre

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noted plaintiff’s first contention was not true, and that Dr. Rowe followed the community

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standard of typically addressing three inmate complaints per sick call. (Id.) Regarding the

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second issue, Dr. Sayre determined there likely were cultural differences between plaintiff

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and Dr. Rowe and that plaintiff’s complaints were not consistent with Dr. Sayre’s many

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dealings with Dr. Rowe. (Id.) Consequently, Dr. Sayre denied the appeal. (Id.)

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Dr. Sayre saw plaintiff again on April 23, 2008 for an Americans with Disabilities Act

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(“ADA”) appeal. (Id. ¶ 10.) During that visit, Dr. Sayre determined plaintiff had no ADA-

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level disabilities and required no accommodation. (Id.) Dr. Sayre’s determination was based

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on careful questioning regarding the standard activities of daily living and plaintiff’s ability
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to accomplish them. (Id.)
Dr. Sayre saw plaintiff again on June 18, 2008, in response to an inmate appeal in

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which plaintiff requested Dr. Rowe be removed as his primary care physician. (Id.

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Because the matter was not within the scope of the inmate appeal process, the appeal was

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denied. (Id.) During that visit, however, Dr. Sayre asked plaintiff about his conflict with Dr.

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Rowe. (Id.) Dr. Sayre determined that the conflict arose from a disagreement between what

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plaintiff believed to be his medical condition and what both Dr. Rowe and Dr. Sayre

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concluded was typical low back pain. (Id.) Dr. Sayre determined Dr. Rowe was providing

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proper treatment. (Id.) Dr. Sayre had no other in-person contact with plaintiff. (Id. ¶ 16.)2
On September 10, 2010, plaintiff filed a state habeas petition in the Del Norte County

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¶ 11.)

Superior Court. (Defs.’ 2/25/2011 Req. for Jud. Not., Ex. C.) As in the instant action,

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plaintiff’s state habeas petition raised a constitutional claim of deliberate indifference to his

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back pain. (Id.) In the state action, the court ordered the California prison medical receiver

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to file a return to the petition, which return was filed on or about November 18, 2010. (Pl.’s

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2/14/2011 Mot. for PI, Ex. A.) In his return, the receiver concluded plaintiff’s condition was

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not severe and that California Department of Corrections and Rehabilitation (“CDCR”)

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medical staff had provided plaintiff with proper care. (Id. at 4-5.) Nevertheless, “to ensure

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[p]etitioner’s health care needs continue[d] to be fully and properly addressed prospectively,”

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the receiver adopted the Corrective Action Plan (“CAP”) proposed by the “reviewing

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physician,” Dr. Beisenherz, which CAP included a consultation with a specialist in

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physiatry/pain management. (Id. at 5.) Thereafter, on or about January 13, 2011, plaintiff

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was evaluated by G. Williams, M.D. (“Dr. G. Williams”), a “physical medicine and

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rehabilitation doctor specializing in disabilities and painful conditions.” (Pl.’s 2/14/2011

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Mot. for PI, Ex. C.)

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Plaintiff has submitted copies of five additional inmate appeals reviewed by Dr.
Sayre in 2009 and 2010. (Pl.’s Exs. Supp. Opp. to Sayre Mot. Summ. J.) The record of
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complaints, reviewed his health record, and issued a decision. (Id.) Indeed, four of the five
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Dr. G. Williams noted that the comprehensive radiologic studies of plaintiff’s lumbar

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spine were negative for spinal mediated pain. (Id.) He did, however, diagnose “chronic

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myofascial related pains causing low back pain.” (Id.) According to Dr. G. Williams,

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“[l]ack of an adequate stretching program ha[d] contributed to [plaintiff’s] condition.” (Id.)

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He recommended a physical therapist evaluate plaintiff’s exercise program “to ensure that he

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is not performing it incorrectly.” (Id.) In his opinion, nonsteroidal anti-inflammatory drugs

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and Tylenol were appropriate medications. (Id.) In the event plaintiff’s pain worsened, he

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recommended “trigger point injections” during “painful episodes.” (Id.) Plaintiff now

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receives injections for severe pain. (Pl.’s Decl. Supp. Opp. to Sayre Mot. Summ. J. ¶ 31.)

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For the Northern District of California

United States District Court

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DISCUSSION
I.

Motion for Summary Judgment

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A.

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Summary judgment is proper where the pleadings, discovery, and affidavits show

Legal Standard

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there is “no genuine dispute as to any material fact and the movant is entitled to judgment as

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

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outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

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dispute as to a material fact is genuine if the evidence is such that a reasonable jury could

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return a verdict for the nonmoving party. See id.

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The court will 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

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

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concerning an essential element of the nonmoving party’s case necessarily renders all other

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facts immaterial.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving

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party bears the initial burden of identifying those portions of the record that demonstrate the

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absence of a genuine issue of material fact. Id. The burden then shifts to the nonmoving

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party to “go beyond the pleadings and by [his] own affidavits, or by the ‘depositions, answers

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to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a

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genuine issue for trial.’” See id at 324 (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

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

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evidence submitted by the nonmoving party. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158

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(9th Cir. 1999). The court’s function on a summary judgment motion is not to make

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credibility determinations or weigh conflicting evidence with respect to a disputed material

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fact. See T.W. Elec. Serv. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.

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1987).

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A verified complaint may be used as an opposing affidavit under Rule 56, as long as it
is based on personal knowledge and sets forth specific facts admissible in evidence. See

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Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995) (treating plaintiff’s

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verified complaint as opposing affidavit where, although verification not in conformity with

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28 U.S.C. § 1746, plaintiff stated, under penalty of perjury, contents were true and correct,

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and allegations were not based purely on information and belief but rather on personal

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knowledge).

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B.

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Deliberate indifference to a prisoner’s serious medical needs violates the Eighth

Deliberate Indifference to Serious Medical Needs

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Amendment’s proscription against cruel and unusual punishment. See Estelle v. Gamble,

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429 U.S. 97, 104 (1976). A determination of “deliberate indifference” involves an

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examination of two elements: “the seriousness of the prisoner’s medical need and the nature

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of the defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.

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1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136

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(9th Cir. 1997) (en banc). A “serious” medical need exists if the failure to treat a prisoner’s

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condition could result in further significant injury or the “unnecessary and wanton infliction

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of pain.” Id. (citing Estelle v. Gamble, 429 U.S. at 104). A prison official is deliberately

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indifferent if he knows a prisoner faces a substantial risk of serious harm and disregards that

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risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837

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(1994). The prison official must not only “be aware of facts from which the inference could
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be drawn that a substantial risk of serious harm exists,” but “must also draw the inference.”

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Id. Consequently, in order for deliberate indifference to be established, there must exist both

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a purposeful act or failure to act on the part of the defendant and harm resulting therefrom.

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See McGuckin, 974 F.2d at 1060.

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A claim of medical malpractice or negligence is insufficient to make out a violation of

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the Eighth Amendment. Id. at 1059. Nor does “a difference of opinion between a prisoner-

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patient and prison medical authorities regarding treatment” amount to deliberate indifference.

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Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). In particular, a plaintiff’s opinion

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that medical treatment was unduly delayed does not, without more, state a claim of deliberate
indifference. Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir.

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1985). Rather, in order to prevail on a claim based on delayed treatment, a plaintiff must

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show “the course of treatment the doctors chose was medically unacceptable under the

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circumstances,” such treatment was chosen “in conscious disregard of an excessive risk to

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the plaintiff’s health,” and the delay resulted in harm to the plaintiff. See Jackson v.

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

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C.

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The record amply demonstrates the physician defendants here provided plaintiff with

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adequate care. Defendants, as well as other PBSP physicians and an outside physician,

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examined plaintiff on multiple occasions and provided him treatment for his medical needs.

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As set forth above, plaintiff was seen at numerous medical visits for low back pain between

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June 2006 and March 2009. The evidence demonstrates defendants continuously assessed

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plaintiff’s symptoms and recommended treatment according to his clinical presentation.

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In addition to the examinations they performed, PBSP physicians ordered and

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followed up on the results of radiographic and other testing procedures. In particular,

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plaintiff had X-Rays of his back in 2006, 2008, and 2010. (Adam Decl. ¶ 7.) All showed

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mild arthritis. (Id.) Further, an MRI of plaintiff’s lumbar spine was ordered in 2009. (Sayre

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Decl. ¶ 14.) The results showed mild degenerative facet disease and an otherwise normal

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back. (Id.) These various diagnostic results, which plaintiff does not dispute, further
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demonstrate defendants provided appropriate medical care.

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In addition to treatment for his back problems, the record shows PBSP physicians saw

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plaintiff on multiple occasions for primary care visits as well as treatment for allergic rhinitis,

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nose bleeds, pterygium (tissue growth on eye), heartburn, H Pylori (stomach infection), high

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blood pressure, headaches, involuntary arm movement, shoulder discomfort, and knee pain.

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(Rowe Decl. ¶¶ 9-22; Adam Decl. ¶ 13.) Dr. Rowe reports that she alone saw plaintiff at 26

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to 27 medical visits in a 29-month period. (Rowe Decl. ¶¶ 7, 8.)

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The record also shows pain medication was regularly provided. In addition to

Indocin, and Robaxin for his back pain. (Rowe Decl. ¶ 19; Adam Decl. ¶¶ 6, 9.) Plaintiff

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For the Northern District of California

Tylenol, plaintiff was given Motrin, Naprosyn, Voltaren, Elavil, Salsalate, Amitriptyline,

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United States District Court

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reported benefits from many of these treatments. (Adam Decl. Ex. A at 694, 859, 1685; Pl.

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Decl. Supp. Opp. Rowe Mot. Summ. J. ¶ 24.) While plaintiff claims he asked for and was

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denied other pain medications, he admits his requested medications were either

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contraindicated or were on the non-formulary list. (Pl.’s Decl. Supp. Opp. Rowe Mot.

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Summ. J. ¶¶ 12, 27; FAC ¶ 16.)

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Finally, the record demonstrates that plaintiff received prompt and thorough reviews

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of his various inmate appeals and had several in-person interviews regarding such appeals.

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Appeal reviewers regularly investigated plaintiff’s complaints, reviewed his health care

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record and appeal history, and determined prison health care staff was properly providing for

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plaintiff’s medical needs. Plaintiff presents no evidence that defendants failed to respond to

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his medical appeals.

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The above analysis is not altered by the fact that plaintiff eventually saw an outside

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specialist, Dr. G. Williams, who recommended trigger point injections. At most, such

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recommendation evidences a difference of opinion regarding the type of pain treatment

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plaintiff should receive. A mere “difference of medical opinion . . . [is] insufficient, as a

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matter of law, to establish deliberate indifference.” Jackson v. McIntosh, 90 F.3d 330, 332

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(9th Cir. 1996). Further, the diagnosis given by the specialist was consistent with that made

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by defendants here, and trigger point injections were only recommended in the event the pain
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worsened. (See Pl.’s 2/14/2011 Mot. for PI, Ex. C.) Plaintiff admits he is now receiving the

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trigger point injections. (Pl. Decl. Supp. Opp. to Sayre Mot. Summ. J. ¶ 31.) There is no

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evidence indicating plaintiff’s condition was in any manner worsened as a result of his

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waiting for this particular course of treatment, let alone that the wait was the result of

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deliberate indifference to his condition.

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In sum, considering the evidence in the light most favorable to plaintiff, the Court

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finds plaintiff fails to raise a triable issue of material fact as to whether defendants were

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deliberately indifferent to plaintiff’s serious medical needs. Accordingly, summary judgment

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will be granted in favor of defendants.
II.

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Plaintiff’s Motion to Amend
Plaintiff has filed a motion to correct mistakes in the declarations he submitted in

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support of his oppositions to the summary judgment motions filed by defendants Sayre and

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Adam. In connection therewith, plaintiff re-writes three of the paragraphs contained in his

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earlier-filed declarations. The motion will be granted, and plaintiff’s declarations are deemed

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amended.

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III.

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Plaintiff’s Request for Judicial Notice
Plaintiff has filed a request for judicial notice of court records in three prisoner civil

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rights cases either previously or now pending in this district: Madrid v. Gomez, No. 90-3094;

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Plata v. Schwarzenegger, No. 01-1351; and Ashker v. Sayre, No. 05-3759. No opposition

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having been filed, and good cause appearing, the request will be granted.3

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IV.

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Plaintiff’s Motion to Strike
Plaintiff moves to strike defendants’ replies, filed in support of their respective

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motions for summary judgment, on the ground such briefs were untimely filed. The Court

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has not relied on the reply briefs in making the above rulings on defendants’ motions for

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summary judgment. Accordingly, plaintiff’s motion to strike such briefs will be denied as

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moot.

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3

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The Court notes, however, that none of said cases is relevant to the Court’s
resolution of the issues raised here.
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1

V.

Plaintiff’s Motion for Administrative Relief
Plaintiff renews his prior request for the Court to make and mail to plaintiff copies of

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3

plaintiff’s oppositions to defendants’ summary judgment motions. According to plaintiff,

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PBSP regulations impose a 100-page limit on the number of copies PBSP will make for a

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prisoner, thereby precluding plaintiff from keeping a copy of the oppositions for himself. In

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previously denying the request, the Court informed plaintiff he is required to complete the

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Clerk’s Office’s form request for photocopies and pay the applicable copying fees described

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therein; a copy of the form request was sent to plaintiff. Plaintiff has failed to submit the

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Clerk’s form request for photocopies along with the copying fees. Accordingly, the renewed
motion for administrative relief will be denied.

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For the Northern District of California

United States District Court

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CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1. Defendants’ motions for summary judgment are hereby GRANTED. (Dkt. Nos.

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112, 116, 120.)

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2. Plaintiff’s motion to amend his declarations in support of his oppositions to the

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summary judgment motions filed by defendants Sayre and Adam is hereby GRANTED.

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(Dkt. No. 131.)

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3. Plaintiff’s request for judicial notice is hereby GRANTED. (Dkt. No. 128.)

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4. Plaintiff’s motion to strike defendant’s reply briefs is hereby DENIED as moot.

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(Dkt. No. 136.)

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5. Plaintiff’s renewed motion for administrative relief is hereby DENIED. (Dkt. No.
129.)

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6. The Clerk shall enter judgment in favor of all defendants and close the file.

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This order terminates Docket Nos. 112, 116, 120, 128, 129, 131, and 136.

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IT IS SO ORDERED.

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DATED: January 9, 2012
_________________________
MAXINE M. CHESNEY
United States District Judge
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