Ray v. Hedgepath et al

Filing 43

ORDER by Judge Charles R. Breyer denying 39 Motion for Summary Judgment; granting 32 Motion for Summary Judgment (Attachments: # 1 Certificate/Proof of Service) (beS, COURT STAFF) (Filed on 6/26/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN FRANCISCO DIVISION

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PAUL E. RAY,
Plaintiff,

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No. C 12-0032 CRB (PR)
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT;

v.
A. HEDGPETH, Warden, et al.,

ORDER DENYING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT

Defendants.
/

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INTRODUCTION

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Plaintiff claims that prison medical staff provided him with constitutionally

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inadequate medical care. For the reasons stated herein, defendants’ motion for summary

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judgment is GRANTED in favor of all defendants as to all claims. Plaintiff’s motion for

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summary judgment is DENIED.
BACKGROUND

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The following factual allegations, unless specifically noted as being offered by only
one party, are not disputed.

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No. C 12-0032 CRB (PR)
ORDER GRANTING DEFS.’ MOT. FOR SUMM. J.

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I.

Dr. Pompan

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On December 19, 2009, plaintiff, then imprisoned at Salinas Valley State Prison, was

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kicked in his right arm while playing football with other inmates. He was soon examined by

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an emergency room physician, who ordered an urgent MRI of plaintiff’s arm and referred

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him to an orthopedic specialist.

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On January 14, 2010, defendant Dr. Pompan, a board certified orthopedic surgeon,

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first examined plaintiff regarding the injury. He believed that plaintiff had injured his biceps

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muscle and may have partially torn the biceps tendon. The injury was unusual because such

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tendon ruptures are caused by heavy lifting, rather than blunt force, such as a kick.

United States District Court
For the Northern District of California

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Defendants assert that Pompan felt surgery was not warranted because of the nature of injury,

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and because the injury was “chronic,” being close to a month old. In order to evaluate

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plaintiff’s treatment options, Pompan recommended that he receive an urgent MRI which

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would reveal whether the injury was a partial or complete tear.

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On February 17, 2010, plaintiff underwent an MRI examination, which showed a

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muscle injury and some tearing of the distal biceps tendon fibers. A follow-up appointment

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with Pompan was scheduled for March 9, but plaintiff failed to attend.

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Pompan reviewed the MRI. He noted in plaintiff’s chart that surgery was one possible

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treatment, but that many patients do well under a more conservative, nonsurgical treatment.

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Surgery was disfavored in plaintiff’s case because such treatment would be difficult on an

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injury as old as plaintiff’s. Pompan recommended that plaintiff be examined by an upper

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extremity specialist if he would like to be considered for surgery to repair the chronic partial

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tear. The referral to a specialist was approved by the prison, but UC Davis and UC San

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Francisco declined to see plaintiff.

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On May 7, 2010, plaintiff met with Dr. Pompan to discuss his treatment options.

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Upon examination of plaintiff, Pompan saw that the tear of the biceps tendon was a partial

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one, as the tendon was intact. He told plaintiff that surgery was not needed. Plaintiff,

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however, insisted that he wanted to be considered for surgery. Pompan explained that

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No. C 12-0032 CRB (PR)
ORDER GRANTING DEFS.’ MOT. FOR SUMM. J.

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plaintiff’s injury was outside his area of his expertise, and recommended that plaintiff see an

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upper extremity expert, and requested a referral on plaintiff’s behalf. He recommended that

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plaintiff use a muscle rub to the biceps, and continue strengthening his arm through

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exercise.

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While waiting to be seen by a specialist, plaintiff underwent electromyography and

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nerve conduction velocity testing. The tests showed that he has mild to moderate nerve

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damage in both arms. Such nerve damage, according to defendants, is not associated with

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the partial biceps rupture and may be, rather than the kick to the arm, the cause of his

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plaintiff’s pain. Plaintiff was offered various pain medications for his arm, but he refused to

United States District Court
For the Northern District of California

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take them.
On March 9, 2011, plaintiff saw an UC Davis upper extremity specialist, who noted

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that surgery on the arm was unlikely to yield a good outcome. On September 13, 2011,

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Pompan met with plaintiff and repeated the recommendation that plaintiff be seen by an

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upper extremity specialist. Because he is a contract specialty-care consultant for the CDCR,

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Pompan could only recommend a referral. He hadn’t the authority or power to refer plaintiff

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to an upper extremity specialist.

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On June 14, 2012, an orthopedic surgeon at San Joaquin General Hospital examined

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plaintiff. He noted that plaintiff had good muscle strength and virtually full range of motion.

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The arm, he observed, showed substantial healing subsequent to a partial biceps muscle

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tendon rupture. In a follow-up visit, the expert concluded that no treatment was warranted.

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Plaintiff claims that these facts show that Pompan was deliberately indifferent to his

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serious medical needs, in violation of the Eighth Amendment. More specifically, according

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to plaintiff, Pompan (1) failed to “schedule an appointment and perform a surgical procedure

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to repair or reconstruct [plaintiff’s] bicep tendon within the prescribed window that he

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prescribed” (MSJ, Jeffery Decl., Ex. A, Pl.’s Dep. 61:25–62:3), and (2) delayed treatment by

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recommending that he be examined by an upper extremities specialist.

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No. C 12-0032 CRB (PR)
ORDER GRANTING DEFS.’ MOT. FOR SUMM. J.

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II.

Dr. Sepulveda
Plaintiff claims that Dr. Sepulveda violated his Eighth Amendment rights by being

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deliberately indifferent to his serious medical needs. At Salinas Valley, Dr. Sepulveda

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reviewed medical services requests and second-level appeals. In January 2011, more than a

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year after plaintiff was injured, Dr. Sepulveda reviewed plaintiff’s second-level appeal

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requesting surgery because an operation, according to plaintiff, was necessary. Sepulveda

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denied the appeal after reviewing plaintiff’s medical file and the medical literature

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concerning distal biceps tendon ruptures. He concluded that nonsurgical treatment was

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preferred for plaintiff’s injury. Surgery, according to Sepulveda, was unnecessary, and

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For the Northern District of California

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would have needlessly exposed plaintiff to other health risks perhaps further injury to his

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arm. Also, by the time plaintiff’s second-level appeal was reviewed, the injury was more than

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one year old and well into the chronic stage, where the likelihood of a positive outcome was

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low and the risk of complications high.

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III.

Defendants’ Evidence

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Defendants have presented evidence regarding biceps muscle and biceps tendon

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injuries. According to this evidence, biceps muscle injuries are “best treated with pain relief

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and gentle range of motion exercises, followed by gradual strengthening,” and are not treated

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with surgery. (MSJ at 2.)

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A distal biceps tendon rupture is a relatively common injury which occurs mainly in

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middle-aged men during heavy work or lifting. “Partial ruptures are initially managed

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conservatively, that is without surgery.” “Most patients with partial distal biceps tears do

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well and achieve good results without surgery.” (Id. at 2–3) Such patients often regain full

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range of motion, though they will experience some weakness, often losing up to 10% of

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pre-injury elbow flexion and some forearm strength in turning motions. (Id. at 3.)

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Surgery is considered only when nonsurgical options have failed. (Id. at 2.) The

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American College of Occupational and Environmental Medicine’s guidelines conclude that

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“Conservative treatment of partial tendon ruptures generally has a good outcome. Surgical

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ORDER GRANTING DEFS.’ MOT. FOR SUMM. J.

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reattachment of a partially ruptured tendon to bone has a poorer success rate.” (MSJ at 3.) If

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treatment is delayed, the likelihood that surgery will help decreases substantially. (Id.)
When surgery is considered, it is usually reserved for patients under 40 years of age

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who need full arm strength (for work) or who have persistent pain. Such an operation is best

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done when the injury is acute, that is, within the first few weeks of injury. However, surgery

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improves the condition only moderately, and patients have a high risk that post-operative

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stiffness will greatly impair, rather than improve, function. Surgery may also cause nerve

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damage and continued pain. (Id.)

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In sum, three physicians have provided evidence by way of declarations that general

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For the Northern District of California

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medical opinion disfavors surgical treatment for injuries such as plaintiff’s. (MSJ, Barnett

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Decl. ¶ 5, 11; Pompan Decl. ¶ 17–21; Sepulveda Decl. ¶ 7–10.) “There is no need to

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consider surgical repair unless the patient is younger than 40 years and needs the full strength

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in flexion as a heavy laborer.” (Id., Barnett Decl. ¶ 5) (emphasis added). Furthermore,

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“functional improvement after surgery is often modest.” (Id.)

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IV.

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Plaintiff’s Evidence
Plaintiff asserts that Pompan showed deliberate indifference to his serious medical

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needs by failing to perform surgery, or by failing to arrange to have surgery performed

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within a short time after the injury. He bases this assertion on (1) his unsupported belief that

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he required surgery, and (2) Pompan’s note that “surgery is possible for primary repair, but

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may be more difficult with time.” (Pl’s. Opp. to MSJ, Ex. C.) Plaintiff fails to mention that

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Pompan wrote the following immediately after the previous sentence appeared: “some

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patients do well with conservative management[;] some patients who undergo surgery

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become stiff, and may have problems if . . . therapy is not available.” (Id.)

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No. C 12-0032 CRB (PR)
ORDER GRANTING DEFS.’ MOT. FOR SUMM. J.

DISCUSSION

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I.

Standard of Review
Summary judgment is proper where the pleadings, discovery and affidavits

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demonstrate that there is “no genuine dispute as to any material fact and [that] the movant is

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entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those

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which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

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248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a

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reasonable jury to return a verdict for the nonmoving party. Id.

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The party moving for summary judgment bears the initial burden of identifying those

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For the Northern District of California

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portions of the pleadings, discovery and affidavits which demonstrate the absence of a

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genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where

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the moving party will have the burden of proof on an issue at trial, it must affirmatively

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demonstrate that no reasonable trier of fact could find other than for the moving party. On an

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issue for which the opposing party by contrast will have the burden of proof at trial, as is the

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case here, the moving party need only point out “that there is an absence of evidence

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to support the nonmoving party’s case.” Id. at 325.

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Once the moving party meets its initial burden, the nonmoving party must go beyond

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the pleadings and, by its own affidavits or discovery, set forth specific facts showing that

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there is a genuine issue for trial. Fed. R. Civ. P. 56(c). The Court is concerned only with

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disputes over material facts and “[f]actual disputes that are irrelevant or unnecessary will not

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be counted.” Anderson, 477 U.S. at 248. It is not the task of the court to scour the record in

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search of a genuine issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.

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1996). The nonmoving party has the burden of identifying, with reasonable particularity, the

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evidence that precludes summary judgment. Id. If the nonmoving party fails to make

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this showing, “the moving party is entitled to judgment as a matter of law.” Celotex, 477

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U.S. at 323 (internal quotations omitted).

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No. C 12-0032 CRB (PR)
ORDER GRANTING DEFS.’ MOT. FOR SUMM. J.

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II.

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

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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 needs and the nature

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of the defendant’s response to those needs. McGuckin v. Smith, 974 F.2d 1050, 1059 (9th

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

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1136 (9th Cir. 1997) (en banc)). A prison official is deliberately indifferent if he knows that

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a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take

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For the Northern District of California

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reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994) (equating standard

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with that of criminal recklessness). The prison official must not only “be aware of facts from

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

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also draw the inference.” Id. Consequently, in order for deliberate indifference to be

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established, there must exist both a purposeful act or failure to act on the part of the

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defendant and harm resulting therefrom. See McGuckin, 974 F.2d at 1060.

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In order to prevail on a claim of deliberate indifference to medical needs, a plaintiff

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must establish that the course of treatment the doctors chose was “medically unacceptable

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under the circumstances” and that they embarked on this course in “conscious disregard of an

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excessive risk to [plaintiff’s] health.” See Toguchi v. Chung, 391 F.3d 1051, 1058-60 (9th

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Cir. 2004). A claim of mere negligence related to medical problems, or a difference of

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opinion between a prisoner patient and a medical doctor, is not enough to make out a

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violation of the Eighth Amendment. Id.; Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir.

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1981).

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A.

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Defendant Pompan is entitled to summary judgment as a matter of law. The

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undisputed record shows that Pompan provided plaintiff with appropriate and reasonably

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timely medical treatment. More specifically, Dr. Pompan met with and examined plaintiff,

Dr. Pompan

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No. C 12-0032 CRB (PR)
ORDER GRANTING DEFS.’ MOT. FOR SUMM. J.

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ordered an MRI, considered various treatment options, and recommended consultation with

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specialists. Rather than showing deliberate indifference, the record of these actions shows

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that Pompan was aware of plaintiff’s condition, considered treatment options (including

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surgery), and took reasonable steps to treat plaintiff’s injury. Such evidence shows nothing

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close deliberate indifference.

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That Pompan did not act as plaintiff desired, especially in arranging for plaintiff to see

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a specialist or receive surgery, is not sufficient to demonstrate deliberate indifference. As to

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the first, the matter was largely beyond Pompan’s control. As noted above, he could only

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recommend that plaintiff see a specialist — he had no power to order such action. Walker v.

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For the Northern District of California

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Benjamin, 293 F.3d 1030, 1038 (7th Cir. 2002) (a delay in treatment that is not within the

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doctor’s control does not constitute deliberate indifference).

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As to the second, viz., refusing to treat plaintiff with surgery, the undisputed record

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shows that Pompan considered and rejected surgical treatment. This same record shows that

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medical opinion largely disfavors surgical treatment, and that even when surgery is (rarely)

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performed, it is likely to give little to no relief.

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In no way, then, has plaintiff shown a genuine issue of material fact the physician’s

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treatment was “medically unacceptable under the circumstances” and was chosen “in

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conscious disregard of an excessive risk to [the prisoner’s] health.” Toguchi, 391 F.3d at

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1058. Defendants, however, have presented evidence that surgery is rarely a good treatment

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for anyone, that nonsurgical treatment is favored, and that when surgery is considered, it is

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reserved for persons who are under 40 and who need full arm strength for work. Also,

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plaintiff has not shown that surgery would have been more successful than the treatment

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offered. Specialists other than Pompan found plaintiff’s condition to be properly treated

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without surgery. In sum, plaintiff has failed to set forth specific facts showing that there is a

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genuine dispute for trial. Accordingly, the motion for summary judgment in favor of

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defendant Pompan as to all claims is GRANTED.

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No. C 12-0032 CRB (PR)
ORDER GRANTING DEFS.’ MOT. FOR SUMM. J.

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B.

Dr. Sepulveda

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Plaintiff claims that Sepulveda was deliberately indifferent to his serious medical

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needs because they knew through plaintiff’s inmate appeals that Pompan was providing

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constitutionally inadequate health care and failed to intervene. Defendant Sepulveda is

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entitled to summary judgment as a matter of law. As determined above, plaintiff has not

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shown a genuine dispute that Pompan violated his Eighth Amendment rights. His claims

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against Sepulveda, then, necessarily fail. Also, by the time Sepulveda reviewed plaintiff’s

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grievance, it was far too late for surgery to have been any benefit. Accordingly, the motion

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for summary judgment in favor of Sepulveda as to all claims is GRANTED.

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For the Northern District of California

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CONCLUSION
Plaintiff having failed to show that there are triable issues of material fact as to any of

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his claims, defendants’ motion for summary judgment (Docket No. 32) is GRANTED in

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favor of defendants Pompan and Sepulveda as to all claims. Plaintiff’s motion for summary

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judgment (Docket No. 39) is DENIED. The Clerk shall enter judgment in favor of all

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defendants as to all claims, terminate Docket Nos. 32 and 39, and close the file.

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IT IS SO ORDERED.
DATED: June 25, 2013

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CHARLES R. BREYER
United States District Judge

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No. C 12-0032 CRB (PR)
ORDER GRANTING DEFS.’ MOT. FOR SUMM. J.