Kaufman v. Spearman et al

Filing 104

ORDER by Judge James Donato granting 69 Motion for Summary Judgment. (lrcS, COURT STAFF) (Filed on 1/16/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOEL DAVID KAUFMAN,
Plaintiff,

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v.

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M. E. SPEARMAN, et al.,
Defendants.

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United States District Court
Northern District of California

Case No. 15-cv-02777-JD

ORDER GRANTING
DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT
Re: Dkt. Nos. 69, 91, 92, 93, 95, 96, 99

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Joel David Kaufman, a state prisoner proceeding pro se, has sued under 42 U.S.C. § 1983.

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He alleges that defendants, Dr. Branch, Dr. Bright and Warden Spearman, were deliberately

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indifferent to his serious medical needs by not providing a special medical diet due to his food

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allergies. Plaintiff argues that his allergies to gluten, soy and dairy have resulted respiratory

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distress that causes vomiting, abdominal pain, itching, hives, psoriasis, bleeding and dizziness. He

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also alleges he was not receiving the minimal required calories from his meals. This case was

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referred to the Pro Se Prisoner Mediation Program but did not settle. Defendants filed a motion

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for summary judgment. Plaintiff filed an opposition, and defendants filed a reply. The motion is

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granted.

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BACKGROUND

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The following facts are largely undisputed:
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Prior to the events of the underlying complaint plaintiff was incarcerated in San Quentin
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State Prison and was receiving a gluten-free diet. Motion for Summary Judgment (“MSJ”),

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Mackie Decl. Ex. B. It was noted at a June 16, 2014 medical appointment at San Quentin State
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Prison that plaintiff was intolerant to gluten, a protein found in wheat, barley and rye, but had a
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negative biopsy for celiac disease, which is associated with gluten intolerance. Id.; Branch Decl. ¶

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15.1 San Quentin medical staff also noted that plaintiff had wanted to stop receiving the gluten-

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free diet because it contained so many carbohydrates and it was difficult for him to feel full, but at

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the June 16, 2014, appointment, he said that he wanted the gluten-free diet at lunch. Mackie Decl.

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Ex. B. San Quentin medical staff told him that the food service program did not operate that way

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and that plaintiff did not qualify for the gluten-free diet. Id.
Plaintiff was transferred to Correctional Training Facility (“CTF”) on September 10, 2014.

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Docket No. 32 at 16. Defendant Spearman was the warden at CTF at the relevant time. MSJ

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Spearman Decl. ¶ 1. Dr. Branch was plaintiff’s primary care physician at CTF and Dr. Bright was
CTF’s Chief Medical Executive and later Chief Physician and Surgeon. MSJ Branch Decl. ¶¶ 1,

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United States District Court
Northern District of California

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4; Bright Decl. ¶ 1. Dr. Bright was Dr. Branch’s supervisor. Bright Decl. ¶ 5. Plaintiff indicated

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to Dr. Branch that he suffered from food allergies and that gluten was a particular concern.

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Branch Decl. ¶ 10. Dr. Branch reviewed plaintiff’s medical records and was unable to find a

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record of tests to confirm plaintiff had the allergy. Id. ¶ 11. Dr. Branch decided to run tests to

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confirm plaintiff’s assertion to ensure that she treated the correct condition. Id. ¶ 12.
On or about October 6, 2014, plaintiff’s father contacted the prison and stated that plaintiff

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reported he had lost over twenty pounds since being incarcerated in May due to his allergies

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preventing him from eating all of his meals. Docket No. 88 at 9. Warden Spearman responded to

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plaintiff’s father, noting that plaintiff weighed 154 pounds on May 5, 2014, and 146 pounds on

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September 23, 2014. Id. at 10. Plaintiff lost eight pounds over the course of four and a half

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months, and his body mass was normal for his weight and height. Id. at 10-11, 18-19.
Dr. Branch researched the appropriate tests to detect an autoimmune response to gluten.

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Id. ¶ 15. Dr. Branch ordered a tissue transglutaminase test (tTG) and an endomysial antibody test.

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Id. The tests came back negative on December 31, 2014. Id. ¶¶ 16-18.
Plaintiff’s father sent a letter to Warden Spearman on January 30, 2015, stating that

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plaintiff suffers from psoriasis that would be partially alleviated by lactase enzymes and that he

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Plaintiff states that he had a biopsy in 2011 to check for celiac disease, but it was negative.
Docket No. 86 at 11; Docket No. 88 at 18.
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has food allergies. Docket No. 80 at 6-7. On February 5, 2015, Warden Spearman sent the letter

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to Dr. Bright with a note to look into the concerns expressed about plaintiff’s health. Id. at 4-5.

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Dr. Branch ordered tests for allergies to egg white, cow’s milk, wheat, rye, barley, oat, peanut,

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soybean, egg yolk, cheddar cheese, cheese mold, and cocoa. Branch Decl. ¶ 19. On March 23,

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2015, those tests also came back negative. Id. Based on the results of all the tests, Dr. Branch

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determined that plaintiff did not suffer from food allergies and the foods she tested were not the

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cause of his symptoms. Id. ¶ 20.
Dr. Branch continued to treat plaintiff’s other complaints and discussed his food reactions.

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Id. ¶ 23. Dr. Branch ordered additional allergy tests for soybean, white bean and lentils, which, on
March 13, 2016, also came back negative. Id. ¶ 24.

United States District Court
Northern District of California

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Plaintiff suffers from urticaria, a skin reaction, and Dr. Branch hoped to discover whether

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allergens were causing the symptoms. Id. ¶ 25. Dr. Branch referred plaintiff to nondefendant Dr.

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Abernathy, an outside allergist and immunologist. Id. Dr. Abernathy first met plaintiff on May 3,

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2016. Branch Decl. Ex. E. Plaintiff told Dr. Abernathy that he was diagnosed as having a gluten

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sensitivity and being lactose deficient. Id. At that appointment, Dr. Abernathy stated that plaintiff

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should be skin tested for allergies in the future. Id. Dr. Abernathy also stated that with respect to

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food allergies:
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Gluten intolerance, presumably either he’s had a biopsy
illustrating the problem gatroenterologically or he’s had the
serologies for gluten sensitivity gliadin and gluten being
positive. I think that the rash is a consequence of the gluten
sensitivity and has its diagnosis of dermatitis herpetiformis.

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Milk intolerance as he is lactose deficient.

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Id.
Dr. Branch reviewed plaintiff’s canteen purchases to learn what he was consuming outside

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of prison meals. Id. ¶ 27. Plaintiff told Dr. Branch that through experimentation he learned he

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could tolerate sharp cheddar cheese, corn tortilla, roasted peanuts, beef stew, Snickers, Nestle

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Crunch, barbeque-flavored chips, corn chips, tortilla chips and packaged dry salami. Id. Plaintiff

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stated he could not tolerate ramen noodles, milkshakes, ice cream and sour cream. Id. ¶ 28. Based

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on this information, Dr. Branch did not change her opinion that plaintiff did not require a special
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diet. Id.
On July 7, 2016, plaintiff was seen again by Dr. Abernathy who conducted a skin test.

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Branch Decl. Ex. F. The skin test showed that plaintiff was allergic to shellfish and almonds

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which he stated he did not have an opportunity to eat. Id. Plaintiff also tested negative for a

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gluten allergy, with Dr. Abernathy stating, “[t]he sensitivity to gluten at least is ruled out on an

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IgE basis and I believe you have IgG RAST test to gluten. If they’re negative, then gluten should

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not be a problem.” Id. Dr. Abernathy spoke with Dr. Branch and told her that he suspected

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plaintiff’s urticaria was caused by environmental allergens and pollen. Id.; Branch Decl. ¶ 30. Dr.

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Branch again concluded that plaintiff did not need a special diet. Branch Decl. ¶ 29.
Dr. Bright had multiple discussions with Dr. Branch regarding plaintiff and met with

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United States District Court
Northern District of California

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plaintiff to discuss his psoriasis treatment. Bright Decl. ¶¶ 7-8. Dr. Bright approved of plaintiff’s

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medical treatment. Id. ¶ 9. Based on all the test results and treatment, Dr. Bright did not believe

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that plaintiff’s symptoms were caused by food and that environmental allergies could be

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responsible. Id. ¶ 11. Dr. Bright did not believe that a special diet was medically indicated for

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plaintiff. Id. ¶12.
Plaintiff suffered allergic reactions resulting in skin rashes on several occasions while at

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San Quentin State Prison, and he received medical help. Docket No. 86 at 131-140. These

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occurred on or about May 5, 2014, May 13, 2014 and July 28, 2014. Id. Plaintiff suffered

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additional reactions on September 15, 2014 and July 26, 2016, at CTF and was treated by medical

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staff. Id. at 152. Plaintiff has jail and prison admission documents that state that he had celiac

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disease Docket No. 86 at 166-67, 169. Dr. Branch failed to provide lactose enzymes. Docket No.

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85 at 6.

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In response to a letter from plaintiff, Dr. Abernathy advised him in a letter dated

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September 19, 2016, that skin tests against foods are not always 100% accurate. Docket No. 86 at

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107. He stated that there can be false positives and false negatives. Id. In response to another

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letter, Dr. Abernathy explained to plaintiff in a letter dated May 15, 2017, that the blood tests for

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gluten are accurate and specific but not totally sensitive. Id. at 108.

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LEGAL STANDARD

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

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“no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

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

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

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

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party. See id.

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A court shall 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

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United States District Court
Northern District of California

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

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

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

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

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

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

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

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

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

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

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

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

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The Court’s function on a summary judgment motion is not to make credibility determinations or

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

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

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

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

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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX
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Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A determination of

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

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prisoner’s medical need and the nature of the defendant’s response to that need. Id. at 1059.

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A serious medical need exists if the failure to treat a prisoner’s condition could result in

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

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

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

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

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prisoner has a serious need for medical treatment. Id. at 1059-60.
A prison official is deliberately indifferent if he or she knows that a prisoner faces a

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United States District Court
Northern District of California

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

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

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

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

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not actually know, the official has not violated the Eighth Amendment, no matter how severe the

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

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

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

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delay of surgery, without more, is insufficient to state a claim of deliberate medical indifference. .

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. . [Prisoner] would have . . . no claim for deliberate medical indifference unless the denial was

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harmful.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985).

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Adequate food is a basic human need protected by the Eighth Amendment. See Keenan v.

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Hall, 83 F.3d 1083, 1091 (9th Cir. 1996), amended, 135 F.3d 1318 (9th Cir. 1998). The Eighth

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Amendment right to food was clearly established as of at least 2001. Foster v. Runnels, 554 F.3d

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807, 815 (9th Cir. 2009). Denial of food service presents a sufficiently serious condition to meet

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the objective prong of the Eighth Amendment deliberate indifference analysis. Id. at 812-13; see,

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e.g., id. (denial of 16 meals over 23 days was “a sufficiently serious deprivation because food is

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one of life's basic necessities”); id. at 812 n.1 (denial of 2 meals over 9-week period was not
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sufficiently serious to meet objective prong of Eighth Amendment deliberate indifference). The

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Eighth Amendment requires only that prisoners receive food that is adequate to maintain health; it

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need not be tasty or aesthetically pleasing. See Graves v. Arpaio, 623 F.3d 1043, 1050 (9th Cir.

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2010) (per curiam) (Eighth Amendment requires that pretrial detainees be given food that meets or

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exceeds the U.S. Department of Agriculture’s Dietary Guidelines).
DISCUSSION

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Plaintiff argues that defendants were deliberately indifferent in failing to take his food

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allergies seriously, for failing to provide proper treatment and for not providing a special diet.

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Defendants counter that they thoroughly investigated plaintiff’s complaints and determined that

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plaintiff did not need a special diet or additional treatment than what they provided. Defendants

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United States District Court
Northern District of California

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point to the myriad of tests they administered, which came back negative, and their referral of

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plaintiff to the outside allergist and immunologist. All of the doctors concluded that plaintiff’s

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symptoms were not caused by food allergies and that it was more likely caused by environmental

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allergens and pollen. Defendants have met their burden in showing that there is no genuine

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dispute as to any material fact and they are entitled to judgment as a matter of law. Plaintiff has

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failed to meet his burden in showing that there is a genuine issue for trial.

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Plaintiff arrived at CTF in September 2014 and informed medical staff that he had a gluten

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allergy and several other food allergies. It is undisputed that plaintiff had a biopsy in 2011 to

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check for celiac disease, which is associated with a gluten allergy, and that plaintiff tested

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negative. It is also undisputed that plaintiff attempted to stop the gluten-free diet when he was

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receiving it at San Quentin State Prison.

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In response to plaintiff’s statements and concerns, Dr. Branch reviewed plaintiff’s medical

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records but was unable to find any tests that confirmed plaintiff’s beliefs regarding the allergies.

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Dr. Branch ordered two different tests for a gluten allergy, both of which came back negative. In

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response to plaintiff’s additional complaints, Dr. Branch ordered further tests for egg white, cow’s

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milk, wheat, rye, barley, oat, peanut, soybean, egg yolk, cheddar cheese, cheese mold, cocoa,

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soybean, white bean and lentils. All of these tests also came back negative for allergies.

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To treat plaintiff for his urticaria skin reaction and possible food allergies, Dr. Branch sent,
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and Dr. Bright approved, plaintiff’s referral to an outside allergist and immunologist. After

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multiple meetings, the outside doctor conducted skin tests and concluded that plaintiff did not

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have a gluten allergy but was allergic to shellfish and almonds. It is undisputed that plaintiff does

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not eat these foods in prison. The outside doctor ruled out sensitivity to gluten and believed that

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the urticaria was caused by environmental allergens. In light of all the tests performed at CTF and

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with the outside doctor ruling out the gluten allergy, defendants concluded that plaintiff still did

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not require a special diet.

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Defendants’ determination does not demonstrate deliberate indifference because of the
extensive medical testing and care employed to reach that decision. While plaintiff has a
difference of opinion and believes he does have a gluten allergy and requires a special diet, “[a]

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Northern District of California

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difference of opinion between a prisoner-patient and prison medical authorities regarding

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treatment does not give rise to a § 1983 claim.” Franklin, 662 F.2d at 1344. Even if certain

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doctors who previously treated plaintiff stated he was allergic to gluten, defendants are still

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entitled to summary judgment. There were no test results in plaintiff’s prison medical history that

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identified a gluten allergy, and the biopsy conducted in 2011 was negative.

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Plaintiff argues that it is possible that all of the tests were incorrect and it is possible that

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he is allergic to gluten. While both of these premises are possible, plaintiff cannot rely on

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possibilities to meet the high standard of deliberate indifference. Defendants relied on multiple,

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different medical tests that are the standard diagnostic tests for food allergies. That these tests

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could only possibly be wrong does not demonstrate a constitutional violation.

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There are references in various filings that plaintiff may have lost twenty pounds of weight

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during the first four and half months of his incarceration due to being unable to eat the prison food

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provided. It is undisputed that when Warden Spearman received this information in a letter from

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plaintiff’s father, Warden Spearman contacted prison medical officials to investigate. It is also

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undisputed that the medical records reflect that plaintiff lost eight pounds over the four and a half

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month period that his body mass was normal for his weight and height. Defendants are entitled to

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summary judgment with respect to any claim that plaintiff was denied food adequate to maintain

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his health. Similarly, defendants are entitled to summary judgment with respect to any claim that
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they were deliberately indifferent for failing to provide lactose enzymes. It is undisputed that

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while plaintiff was not able to consume ice cream, milkshakes or sour cream, he was able to eat

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cheese. Defendants provided plaintiff with sufficient nutrition and he has not shown that their

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denial of lactose enzymes violated the Eighth Amendment.

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Plaintiff also notes that he suffered many allergic reactions during his time in prison. Most

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of these occurred while he was in San Quentin State Prison and did not involve defendants.

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Plaintiff was provided treatment after the few episodes of allergic reactions he suffered while at

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CTF. To the extent plaintiff wanted to be provided a different injection than what was provided,

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this fails to demonstrate an Eighth Amendment violation.

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The undisputed evidence demonstrates that defendants provided an acceptable level of care

United States District Court
Northern District of California

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with the diagnostic testing, outside referrals and other treatment provided for plaintiff’s allergic

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reactions. While plaintiff disagrees with defendants’ medical opinion and the diagnostic results,

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this fails to present a constitutional violation, and defendants are entitled to summary judgment.

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Qualified Immunity

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The defense of qualified immunity protects “government officials . . . from liability for

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civil damages insofar as their conduct does not violate clearly established statutory or

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constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457

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U.S. 800, 818 (1982). The rule of “qualified immunity protects ‘all but the plainly incompetent or

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those who knowingly violate the law.’” Saucier v. Katz, 533 U.S. 194, 202 (2001) (quoting

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Malley v. Briggs, 475 U.S. 335, 341 (1986)). Defendants can have a reasonable, but mistaken,

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belief about the facts or about what the law requires in any given situation. Id. at 205. A court

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considering a claim of qualified immunity must determine whether the plaintiff has alleged the

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deprivation of an actual constitutional right and whether such right was clearly established such

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that it would be clear to a reasonable officer that his conduct was unlawful in the situation he

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confronted. See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (overruling the sequence of the

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two-part test that required determining a deprivation first and then deciding whether such right

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was clearly established, as required by Saucier). The Court may exercise its discretion in deciding

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which prong to address first, in light of the particular circumstances of each case. Pearson, 555
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U.S. at 236.
Even if the Court were to find that defendants had deprived plaintiff of a constitutional

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right, they would still be entitled to qualified immunity. The record demonstrates that numerous

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diagnostic tests were employed to determine if plaintiff suffered from food allergies and if they

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were the cause of his symptoms and that plaintiff was referred to an outside doctor, who agreed

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with the course of treatment by defendants. It would not be clear to a reasonable official or doctor

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that following the results of the various medical tests and the outside doctor’s opinion would be

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unlawful.

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CONCLUSION

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1. Defendants’ motion for summary judgment (Docket No. 69) is GRANTED.

United States District Court
Northern District of California

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2. Defendants motion for an extension of time to file a reply to plaintiff’s default judgment
motion (Docket No. 96) is GRANTED. Plaintiff’s motions for default judgment and damages

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(Docket Nos. 95, 99) are DENIED as meritless.
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3. Plaintiff’s motions to enforce subpoenas (Docket Nos. 91, 92, 93) are DENIED as moot

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because summary judgment is granted and the subject matter of the subpoenas was not relevant to
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the claims in this action.
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4. The stay in this case (Docket No. 21) is LIFTED. The Clerk shall terminate all
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pending motions, enter judgment, and close the file
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IT IS SO ORDERED.
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Dated: January 16, 2018
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JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOEL DAVID KAUFMAN,

Case No. 15-cv-02777-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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M. E. SPEARMAN, et al.,
Defendants.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

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That on January 16, 2018, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Joel David Kaufman
AT3133
P.O. Box 705
Soledad, CA 93960

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Dated: January 16, 2018

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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