Ashker v. Cate et al

Filing 40

ORDER by Judge Claudia Wilken granting 22 Motion to Dismiss and Motion for Summary Judgment (cwlc1, COURT STAFF) (Filed on 3/30/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TODD ASHKER,
No. C 09-2948 CW

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Plaintiff,
v.
MATTHEW CATE, et al.,

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United States District Court
For the Northern District of California

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ORDER GRANTING
DEFENDANTS' MOTION
TO DISMISS AND
MOTION FOR SUMMARY
JUDGMENT

Defendants.

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________________________________/

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On June 30, 2009, pro se Plaintiff Todd Ashker, an inmate

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housed in the Secured Housing Unit (SHU) at Pelican Bay State

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Prison (PBSP), filed this civil rights complaint against several

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Defendants.

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the complaint and the First Amended Complaint (1AC).

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Nos. 5 and 12.

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Court found the following causes of action to be cognizable:

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(1) an Eighth Amendment cause of action for deliberate

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indifference to serious medical needs against Defendants Dr.

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Michael Sayre, Family Nurse Practitioner (FNP) Sue Risenhoover,

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FNP Maureen McLean and Nurse James Flowers; and (2) a state law

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cause of action for negligence for breach of a professional duty

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of care against Defendants Dr. Sayre, FNP Risenhoover, FNP McLean,

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The Court, pursuant to 28 U.S.C. § 1915A, reviewed
See Docket

In its June 1, 2010 order reviewing the 1AC, the

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Nurse Flowers, Nurse Pam Labans and Nurse R. Robinson.1

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Defendants move to dismiss all causes of action based on the

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doctrine of res judicata, move to dismiss the state causes of

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action against FNP McLean and Nurses Labans and Robinson for

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failure to exhaust state remedies and move for summary judgment of

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all causes of action based on Plaintiff's failure to raise a

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triable issue of material fact with regard to their merits.

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Plaintiff has filed an opposition and Defendants have replied.

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The motion was taken under submission and decided on the papers.

United States District Court
For the Northern District of California

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For the foregoing reasons, the Court grants the motion.

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BACKGROUND
On October 24, 1990, Plaintiff was shot by a PBSP guard and,

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as a result, sustained severe and permanently disabling injuries

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to his right forearm, wrist, hands and fingers, which cause him

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ongoing pain.2

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Sayre and other PBSP staff regarding their medical treatment of

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these injuries.

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resulted in a jury verdict, on May 22, 2009, in favor of Plaintiff

Plaintiff has brought several lawsuits against Dr.

The last lawsuit, Ashker v. Sayre, C 05-3759 CW,3

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Plaintiff identifies R. Robinson as a nurse. Defendants do
not state that R. Robinson is not a nurse, but identify him with
the title, "Mr." Because Defendants do not specifically state
that this Defendant is not a nurse, the Court adopts Plaintiff's
characterization of him as a nurse.
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Plaintiff verifies under penalty of perjury that the
allegations in his 1AC are true and correct and requests that they
be considered as evidence with his declaration. See Ashker Dec.
at ¶ 30. Defendants do not object to this request. The Court
accepts the factual allegations that are within Plaintiff's
personal knowledge as admissible evidence.
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On June 18, 2007, Plaintiff filed a supplemental complaint
in this case.
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and against Dr. Sayre on the claims that Dr. Sayre knowingly

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disregarded Plaintiff's serious medical needs and was negligent in

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his treatment of Plaintiff.

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421, May 22, 2009 Jury Verdict.

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one month after the jury rendered its verdict in case number C 05-

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3759 CW, Plaintiff filed the instant action.

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See Case No. C 05-3759 CW, Docket No.
On June 30, 2009, approximately

The following are the relevant facts in this case regarding

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each Defendant in the light most favorable to Plaintiff.

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I. Dr. Sayre

United States District Court
For the Northern District of California

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Dr. Sayre is the PBSP Chief Medical Officer, responsible for

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the supervision of the PBSP medical staff, including FNP

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Risenhoover, who was Plaintiff's primary care provider (PCP) from

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March 2006 to December 19, 2008.

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See 1AC at ¶ 20.

On June 6, 2007, Plaintiff met with Dr. Sayre for treatment

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of his injured arm.

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experiencing serious arm pain and stomach issues, including

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chronic diarrhea which Plaintiff thought was caused by the non-

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steroidal anti-inflammatory drugs (NSAIDs) that FNP Risenhoover

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had prescribed for his pain.

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forearm tendons, which Plaintiff said felt extremely tight and

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inflamed from use the previous day, and his wrists, which he said

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hurt all the time.

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Plaintiff's forearm and wrist, stated, "Oh, that's just mild

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arthritis."

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associated with his ulna nerve felt worse and was so bad that it

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caused him sleep loss and that he was desperate for relief.

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Sayre said, "I'll look into it."

Plaintiff told Dr. Sayre that he was

Plaintiff showed Dr. Sayre his

Dr. Sayre, without carefully examining

Plaintiff also told Dr. Sayre that the pain

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Dr.

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Plaintiff filed several 602 appeals, in which he complained

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that he was being prescribed the wrong pain medication and

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requested to be seen by a qualified specialist.

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2007, Dr. Sayre denied Plaintiff's 602 appeal number 2007-11142;

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on December 27, 2007, he denied Plaintiff's 602 appeal number

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2007-11497; on December 2, 2008, he granted Plaintiff's request in

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602 appeal number 18-08-12852 for an examination by an independent

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specialist to determine the proper level of pain medication and

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denied Plaintiff's request for an immediate change in his pain

On September 13,

United States District Court
For the Northern District of California

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medication.

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independent medical examination, Plaintiff was not examined by an

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independent physician or specialist.4

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II. FNP Risenhoover

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Although Dr. Sayre granted Plaintiff's request for an

On June 20, 2007, Plaintiff saw FNP Risenhoover for treatment

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of his injured arm, hand and wrist.

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fingers which were swollen and purple in color.

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he had severe stabbing pain in his forearm and his nerve pain was

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worse.

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the pain.

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prescribed for Plaintiff in the past and Plaintiff informed FNP

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Risenhoover that they did not alleviate his arm and wrist pain and

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caused him stomach pain.

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of desperation, he would try the elavil, even though in the past

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he had experienced bad side effects from it.

He showed her his hand and
He also told her

FNP Risenhoover prescribed NSAIDs, tylenol and elavil for
Except for the elavil, these medications had been

Plaintiff told FNP Risenhoover that, out

After Plaintiff

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On June 18, 2010, pursuant to the Court's Order for
Specific Performance in case number C 05-3759 CW, Plaintiff was
seen by an independent pain consultant. See Case No. C 05-2759
CW, Docket No. 501.
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began taking the elavil, he started to experience blurred vision

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and agitation.

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clinic for his scheduled thirty-day follow-up visit with FNP

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Risenhoover, but he was taken back to his cell and denied this

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visit because custody staff observed that he appeared to be very

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agitated.

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was not seen again by FNP Risenhoover until August 14, 2007.

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Therefore, from July 20 to August 14, 2007, Plaintiff was without

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any medication for his nerve pain.

On July 19, 2007, Plaintiff was escorted to the

The elavil prescription expired on July 20, 2007 and he

United States District Court
For the Northern District of California

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On August 2, 2007, Plaintiff was examined by a

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gastroenterologist, Dr. Martinelli,5 who recommended that

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Plaintiff's medication regimen be changed from the NSAIDs to

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codeine-tylenol no. 3 to control pain and to relieve stomach

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problems.

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explained Dr. Martinelli's recommendation to change his pain

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medication.

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Sayre and that they would not follow Dr. Martinelli's

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recommendation.

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pain medication regimen.

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Plaintiff that his recommendation to switch to codeine-tylenol was

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not followed because of Plaintiff's history of drug abuse.

On August 14, 2007, Plaintiff saw FNP Risenhoover and

FNP Risenhoover said that she had consulted with Dr.

FNP Risenhoover maintained Plaintiff on the same
On August 23, 2007, Dr. Martinelli told

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On August 30, 2007, Plaintiff was interviewed by FNP

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Risenhoover regarding Plaintiff's 602 Appeal number 07-11142.

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Risenhoover said she'd been ordered to prescribe codeine-tylenol

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no. 3 as Plaintiff's pain medication, even though she believed

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Plaintiff did not need it.

She also ordered ibuprofen, regular

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FNP

The parties do not provide Dr. Martinelli's first name.
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tylenol, elavil and zantac.

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visit with FNP Risenhoover "was supposed to happen on September

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29, 2007."

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29, 2007, during which time he suffered unnecessary pain and

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discomfort because the pain medication was only effective for six

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hours and caused nausea, stomach cramps and lethargy.

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effects from the elavil became worse and the zantac and ibuprofen

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made his diarrhea and stomach pain worse.

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Plaintiff saw FNP Risenhoover and she discontinued all medication

1AC ¶ 57.

Plaintiff's thirty-day follow-up

However, she did not see him until October

The side

On October 29, 2007,

United States District Court
For the Northern District of California

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except for 400 milligrams of ibuprofen and almacone antacid

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chewable tablets for stomach pain.

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On December 20, 2007, at his next appointment with FNP

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Risenhoover, she prescribed 400 milligrams of ibuprofen per day,

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1300 milligrams of tylenol per day and one almacone tablet every

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other day.

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alleviating his hand and wrist pain and the stomach pain caused by

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the medication.

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These medications continued to be ineffective in

Between January 3, 2008 and December 19, 2008, Plaintiff saw

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FNP Risenhoover eight or nine times.

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him that she would only prescribe ibuprofen and tylenol for his

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pain.

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medications did not relieve his pain and caused him to have severe

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stomach problems.

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examination of Plaintiff's arm or hand and, on a few occasions,

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she falsely entered in Plaintiff's medical record that she had

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examined his arm.

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that he was not in pain and that, though his right grip strength

On each occasion, she told

Plaintiff repeatedly informed FNP Risenhoover that these

FNP Risenhoover never conducted a careful

She falsely wrote in Plaintiff's medical record

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was mildly weaker than his left, his right finger and wrist range

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of motion was normal.

1AC at ¶ 84.

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On December 20, 2008, Plaintiff was examined by Dr. Carl

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Shin, the pain specialist who testified for Defendants in case no.

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C 05-3759 CW.

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Plaintiff's right arm, hand, fingers and wrist were abnormal and

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his grip strength was very weak.

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arm brace did not fit correctly and was not adequate for his

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needs.

Dr. Shin noted that the range of motion of

He also noted that Plaintiff's

Dr. Shin recommended that Plaintiff be fitted for a proper

United States District Court
For the Northern District of California

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arm brace, that he see a wrist specialist and that his pain

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medication be changed to tramadol.

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FNP Risenhoover did not follow any of Dr. Shin's recommendations.

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On March 26, 2009, Plaintiff met with Dr. Claire Williams, a

1AC at ¶ 93.

Dr. Sayre and

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PBSP doctor.

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arm and hand, noting weakness and limited range of motion.

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Williams prescribed codeine-tylenol no. 3, twice per day, 650

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milligrams of regular tylenol every six hours, zantac twice per

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day and sucralfate four times a day for stomach discomfort.

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Plaintiff's symptoms improved with this combination of

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medications.

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their effectiveness.

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a doctor, and was told "he was on the list."

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III. Nurse Flowers

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Dr. Williams carefully examined Plaintiff's right
Dr.

However, as of May, 2009, the medications had lost
Plaintiff submitted several requests to see

Nurse Flowers acted as a "gatekeeper" between Plaintiff and

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FNP Risenhoover.

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requests to Nurse Flowers to see FNP Risenhoover for treatment of

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his pain and stomach symptoms.

On at least nine occasions Plaintiff made

Nurse Flowers classified

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Plaintiff's symptoms and complaints as "routine," which caused

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long delays in Plaintiff being treated by FNP Risenhoover.

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IV. Family Nurse Practitioner McLean

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As PBSP Health Care Manager, FNP McLean reviewed the care

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inmates received, and supervised, trained and evaluated other PBSP

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medical staff.

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Statement.

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problem and the inadequacy of the medication FNP Risenhoover was

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prescribing for him.

Plaintiff's Ex. G, Health Care Manager Duty

FNP McLean knew about Plaintiff's serious medical

On October 17, 2007, FNP McLean reviewed

United States District Court
For the Northern District of California

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Plaintiff's 602 appeal number 07-11142 and affirmed Dr. Sayre's

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response, which indicated that FNP Risenhoover's medical treatment

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of Plaintiff was appropriate and there was no justification for an

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investigation.

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Sayre's determination of Plaintiff's 602 appeal number 07-11497.

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On January 8, 2009, FNP McLean adopted Dr. Sayre's determination

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of Plaintiff's 602 appeal number 18-08-12852 which granted

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Plaintiff's request to be seen by an independent doctor and denied

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his request to have an immediate change in his medication.6

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V. Nurse Labans and Nurse Robinson

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On January 24, 2008, FNP McLean affirmed Dr.

Nurses Labans and Robinson knew that information in

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Plaintiff's medical record that he had abused drugs was false, but

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they refused Plaintiff's requests to change it.

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2008, Nurses Labans and Robinson denied Plaintiff's January 14,

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2008 602 appeal number 08-11738.

On March 19,

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In its order screening the complaint, the Court found that
a different claim against FNP McLean, based on her denial of
Plaintiff's 602 appeal concerning an allegedly false entry in his
medical record, did not state a cognizable claim.
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DISCUSSION
I. Motion to Dismiss

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A. Legal Standard

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A complaint must contain a Ashort and plain statement of the

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claim showing that the pleader is entitled to relief.@

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Civ. P. 8(a).

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Fed. R.

On a motion under Rule 12(b)(6) for failure to

state a claim, dismissal is appropriate only when the complaint

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does not give the defendant fair notice of a legally cognizable
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United States District Court
For the Northern District of California

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claim and the grounds on which it rests.

Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 555 (2007).

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complaint is sufficient to state a claim, the court will take all

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material allegations as true and construe them in the light most

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favorable to the plaintiff.

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896, 898 (9th Cir. 1986).

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In considering whether the

NL Indus., Inc. v. Kaplan, 792 F.2d

However, this principle is inapplicable

to legal conclusions; Athreadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements,@ are not
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taken as true.

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009)

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(citing Twombly, 550 U.S. at 555).

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When granting a motion to dismiss, the court is generally

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required to grant the plaintiff leave to amend, even if no request

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to amend the pleading was made, unless amendment would be futile.

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Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911

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F.2d 242, 246-47 (9th Cir. 1990).

In determining whether

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amendment would be futile, the court examines whether the
complaint could be amended to cure the defect requiring dismissal
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"without contradicting any of the allegations of [the] original

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complaint."

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Cir. 1990).

Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th

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B. Res Judicata

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Defendants argue that, because there was a final judgment in

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case no. C 05-3759 CW, and the other elements of res judicata are

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met, Plaintiff's causes of action against Dr. Sayre are barred.
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“Res judicata bars a suit when ‘a final judgment on the

United States District Court
For the Northern District of California

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merits of an action precludes the parties or their privies from

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relitigating issues that were or could have been raised in that

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action.’”

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F.3d 681, 688 (9th Cir. 2010).

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is ‘(1) an identity of claims; (2) a final judgment on the merits;

ProShipLine Inc. v. Aspen Infrastructures Ltd., 594
Res judicata applies “when there

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and (3) identity or privity between parties.’”

Id.

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Plaintiff does not dispute that there was a final judgment on
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the merits in case number C 05-3759 CW, or that he and Dr. Sayre,

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were parties in both lawsuits.

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no identity of claims because the events in this lawsuit occurred

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after June 18, 2007, when he filed a supplemental complaint in the

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first lawsuit.

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Instead, he argues that there is

To determine whether an identity of claims exists, a court

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considers four factors: “(1) whether the two suits arise out of
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the same transactional nucleus of facts; (2) whether rights or

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interests established in the prior judgment would be destroyed or

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impaired by prosecution of the second action; (3) whether the two
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suits involve infringement of the same right; and (4) whether

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substantially the same evidence is presented in the two actions.”

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Id. (citation omitted; emphasis in original).

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arise out of the ‘same transactional nucleus’ depends upon

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‘whether they are related to the same set of facts and whether

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they could conveniently be tried together.’”

“Whether two suits

Id.

(quoting W.

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Sys., Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir. 1992)) (emphasis
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in original).

However, the rule that a judgment is conclusive as

United States District Court
For the Northern District of California

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to every matter that could have been asserted does not apply to

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new claims that arise while the first action was being litigated.

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Los Angeles Branch NAACP v. Los Angeles Unified School Dist., 750

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F.2d 731, 739 (9th Cir. 1984).

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litigation of claims based on events that occurred after the

Thus, res judicata does not bar

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filing of the complaint in the first lawsuit.

Curtis v. Citibank,

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N.A., 226 F.3d 133, 139 (2nd Cir. 2000) (cited in Adams v.
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California Dep't of Health Servs., 487 F.3d 684, 693 (9th Cir.

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2007)).

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events that occurred after the filing of the complaint or the

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supplemental complaint, then the res judicata bar would encompass

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them.

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However, if the parties litigated claims arising from

Los Angeles Branch NAACP, 750 F.2d at 740.
There is no dispute that the claims in both cases involved

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infringement of the same right: Plaintiff's constitutional right
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to receive adequate medical treatment for his serious medical

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condition and his state law right to receive an acceptable level

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of medical care.

There is no dispute that the claims in both
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actions arise out of the same transactional nucleus of facts, that

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is, Plaintiff's medical treatment and the medication prescribed

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for the pain in his injured arm and wrist.

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Plaintiff's argument that his claims arose after he filed a

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supplemental complaint in his previous case, Defendants cite

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In response to

evidence of Plaintiff's medical condition after the date of his

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supplemental complaint that Plaintiff presented to the jury at his
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United States District Court
For the Northern District of California

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trial.
The following post-June 2007 evidence was presented in case
number C 05-3795 CW.
On May 12, 2009, toward the end of his trial, Plaintiff
testified as follows:
Ever since I was taken off tramadol on 9/27/06, I have been
in a lot more pain and discomfort, whereas before being taken
off tramadol, my pain level was generally around a three. . .
Since going back to NSAIDs and tylenol, my pain level has
been around a seven depending on use. All writing is painful
for me in the wrist joint, fingers, inner forearm, . . . This
pain effects [sic] my ability to sleep. And it's affected my
ability to concentrate and focus on tasks, like drafting
legal documents and writing letters. I dread having to do
any writing, but still must generally do some writing every
day regarding legal issues, personal issues, maintaining
contact with wife, family, friends, correspondence courses,
etc.
[A]ll writing is a very slow, painful process for me and the
200 milligrams of ibuprofen and tylenol 13 milligrams per day
does not work for this pain. . . . And I have had to take a
lot more around 1200 milligrams of ibuprofen and 1300
milligrams of Tylenol per day for the past -- between I would
say October and April of this year in order to do the legal
writing that I have had to do and get a bit more sleep
including an unbelievable amount to prepare for this trial
right here.

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At the expense of my stomach, which has felt a lot worse,
taking superfed (phonetic) a day. Superfed is a medication
that coats your stomach. It's given -- I am taking four a
day of that now.

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Skilling Dec., C 05-3795 CW Trial Transcript (TR) May 12, 2009 at
387-90.

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Plaintiff also testified about his March 26, 2009 examination
by Dr. Williams, describing the medications Dr. Williams

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prescribed for him and how the medications affected his arm and
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wrist pain and his stomach.

TR at 390-91.

In questioning Dr.

United States District Court
For the Northern District of California

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Sayre, Plaintiff stated, "Dr. Sayre, isn't it true that during the

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time -- at the time period in question '06, '07, '08, I had not

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had any nerve conduction tests done since 2001?"

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Sayre responded, "If you say so."

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Plaintiff questioned Dr. Cory Weinstein, his expert witness, who

TR at 884.

TR at 884.

Dr.

Also, at his trial,

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had examined Plaintiff several time during the years 2000 through
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2009.

At the trial, Dr. Weinstein testified about his medical

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findings regarding Plaintiff's arm and his recommended treatment

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plan.

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examined Plaintiff in December 2008.

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direct and cross-examination by Plaintiff about his medical

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findings regarding Plaintiff's condition in 2008.

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TR at 459-528.

Dr. Carl Shin, Defendant's medical expert,
Dr. Shin was questioned on

TR at 932-1014.

This testimony placed in issue Plaintiff's medical condition

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and Dr. Sayre's conduct up to the date of the trial.
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Further, at the 2009 trial, the jury instruction on

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compensatory damages told the jury to consider Plaintiff's "loss

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of enjoyment of life experienced and which with reasonable
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probability will be experienced in the future," and Plaintiff's

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"physical pain and suffering experienced and which with reasonable

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probability will be experienced in the future."

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CW, Docket No. 416, Final Jury Instructions at 8.

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Case C 05-3759

The jury was not instructed to limit its consideration of the
evidence to those events which occurred prior to June 2007.

Thus,

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the jury considered evidence of Plaintiff's medical condition
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through May 12, 2009, the date of his trial testimony, and

United States District Court
For the Northern District of California

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considered Plaintiff's future physical pain and suffering and loss

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of enjoyment of life as damages beyond that date.

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In this case, Plaintiff's claims against Dr. Sayre arise from

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events that took place from June 2007 through December 2008,

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before the jury rendered its verdict in case number C 05-3759 CW.

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Therefore, all of these claims and the resulting damages were
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considered by the jury and included in its verdict.

Thus, there

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is an identity of claims in the two cases.
Plaintiff argues that res judicata does not apply because his

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present claims against Dr. Sayre were not administratively

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exhausted during the pendency of his previous case and, thus, he

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could not have asserted them at that time.

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Although

administrative exhaustion is a requirement before a prisoner's

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civil rights claim can be filed in federal court, the jury would
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not have known about this requirement.

Based on the evidence

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presented at trial and the jury instructions, the jury was

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deciding Plaintiff's claims through May 2009 and damages based
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upon those claims.

Thus, res judicata applies even if Plaintiff's

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claims against Dr. Sayre were unexhausted at the time of the

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trial.

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Although Plaintiff does not dispute that there is privity

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between Dr. Sayre and the other Defendants in this case, the Court

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examines whether privity exists.

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Privity exists among parties when there is a sufficient
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commonality of interest such that they are so closely aligned in

United States District Court
For the Northern District of California

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interest that one is the virtual representative of the other.

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Nordhorn v Ladish Co., Inc., 9 F.3d 1402, 1405 (9th Cir. 1993).

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Characteristics demonstrating such representation include a close

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relationship, an identity of relevant interests, substantial

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participation in the prior lawsuit and tactical maneuvering that

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would benefit both parties.

Irwin v. Mascott, 370 F.3d 924, 930

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(9th Cir. 2004).
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In regard to FNP Risenhoover, Plaintiff acknowledges that the

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claims against her and Dr. Sayre are "intertwined" because,

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"although FNP Risenhoover was Ashker's primary care provider from

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2006-2008, she did so under the direct supervision, guidance, and

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direction of Dr. Sayre."

Pl.'s Opp. at 10; Pl.'s Ex. G, Duties of

PBSP Nurse Practitioner.

FNP Risenhoover was a defendant in the

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prior lawsuit; Plaintiff voluntarily dismissed with prejudice all
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claims against her on February 25, 2009, before his case against

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Dr. Sayre went to trial.

Based upon Plaintiff's evidence and

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acknowledgment that the claims against FNP Risenhoover are
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intertwined with those against Dr. Sayre, and that there is a

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close relationship and an identity of interests between them,

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there is privity between them such that the res judicata bar that

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applies to Dr. Sayre's claims also bars the claims against FNP

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Risenhoover.

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The remaining Defendants argue that Dr. Sayre represented

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their interests in the previous litigation because he was sued in
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his role as PBSP Chief Medical Officer and, even though he was the

United States District Court
For the Northern District of California

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only Defendant left at trial, the trial included evidence of

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Plaintiff's treatment by all PBSP medical providers.

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discussed below, the Court rules in favor of these Defendants for

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other reasons, it does not address whether there is privity

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between them and Dr. Sayre.

Because, as

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C. Lack of Exhaustion of State Law Causes of Action
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Defendants argue that the state law causes of action against
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18

FNP McLean and Nurses Labans and Robinson should be dismissed as

19

unexhausted because Plaintiff failed to submit claims against them

20

to the California Victim Compensation and Government Claims Board

21

within six months of the incidents giving rise to the claims.

22
23

Pursuant to the California Tort Claims Act (CTCA), Cal. Gov't
Code §§ 900 et seq., a personal injury claim against a public

24
employee must be filed with the Board within six months after the
25
26

date of the event that gave rise to the claim.

Cal. Gov't Code

27

§ 911.2(a).

Compliance with the CTCA filing requirement is

28

mandatory; failure to file a claim within the requisite time
16

1

period is a bar to future tort suits.

2

996 F. Supp. 975, 977 (N.D. Cal. 1998).

3

received by the Board when the claimant deposits it in the mail.

4

Cal. Gov't Code § 915.2.

5
6

Hernandez v. McClanahan,
A claim is deemed

Plaintiff's proof of service for his claim to the Board
indicates that, on October 9, 2008, he gave it to prison officials

7
to be mailed.

Therefore, the claim is deemed to be filed on

8
9

October 9, 2008.

Plaintiff's claim to the Board was brought

United States District Court
For the Northern District of California

10

against all named Defendants in this case.

Roman Dec., Ex. B.

11

November 24, 2008, the Board sent Plaintiff a letter informing him

12

that his claim was "being accepted only to the extent it asserts

13

allegations that arise from facts or events that occurred during

14

the six months prior to the date it was presented."

Id. at 1.

On

In

15
the same letter, the Board indicated that, because of the
16
complexity of Plaintiff's claims, it believed that the court
17
18

system was the appropriate forum for resolving them.

Id.

On

19

December 26, 2008, the Board sent Plaintiff a letter informing him

20

that his claim had been rejected on December 18, 2008.

21

Because Plaintiff filed his claim on October 9, 2008, it

22

exhausts only causes of action based on facts or events which

23

occurred up to six months previous to this date, that is, on or

24
after April 9, 2008.
25
26

1. FNP McLean

27

Plaintiff's state law claim against FNP McLean is based on

28

the allegations that, on October 17, 2007, January 24, 2008 and
17

1

April 8, 2008, she affirmed Dr. Sayre's decisions regarding three

2

602 appeals that Plaintiff had filed.

3

these events occurred before April 9, 2008, Plaintiff's state law

4

causes of action against FNP McLean based upon them is

5

unexhausted.

6

1AC at ¶¶ 57, 77.

Because

2. Nurse Labans

7
Plaintiff's state law claim against Nurse Labans is based
8
9

upon the allegations that, on March 19, 2008, she denied his 602

United States District Court
For the Northern District of California

10

appeal and told him that "the drug abuse history" notation in his

11

medical record was based on his use of tramadol for many years and

12

that there would be no change in this notation in his medical

13

record.

14

2008, this cause of action is unexhausted.

1AC at ¶¶ 73-75.

Because this occurred before April 9,

15
3. Nurse Robinson
16
Plaintiff's only allegation against Nurse Robinson is that,
17
18

on March 19, 2008, he, along with Nurse Labans, denied one of

19

Plaintiff's 602 appeals which requested that the "drug abuse"

20

notation in Plaintiff's medical record be expunged.

21

occurred before April 9, 2008, the cause of action is unexhausted.

22
23

Because this

Plaintiff argues that these causes of action are exhausted
because, in his claim to the Board, he notified it that his claims

24
constituted continuing violations.

He also argues that the Board

25
26
27

failed to inform him that his claim was late and, if he had known
this, he would have taken corrective action.

28
18

1

The continuing violation theory generally is applied to a

2

continuing policy and practice on an organization-wide basis.

3

Green v. Los Angeles County Superintendent of Schs., 883 F.2d

4

1472, 1480 (9th Cir. 1989).

5

policy or practice operated at least in part within the

6

limitations period.

Id.

The plaintiff must show that the

A plaintiff may also show a continuing

7
violation by alleging a series of related acts, one or more of
8
9

which falls within the limitations period. Id.

However, a

United States District Court
For the Northern District of California

10

continuing impact from past violations does not give rise to a

11

continuing violation.

12

Cir. 2001).

13

allegedly wrongful act, he or she is on notice that his or her

14

rights have been violated and the statute of limitations is deemed

Knox v. Davis, 260 F.3d 1009, 1013 (9th

In other words, when a plaintiff learns of the

15
to have commenced at that time.

Id. at 1014.

16
Plaintiff cannot survive a timeliness challenge by claiming a
17
18

continuing violation on the part of FNP McLean, Nurse Labans or

19

Nurse Robinson because all of their conduct at issue occurred

20

outside of the limitations period.

21
22
23

Furthermore, in its November 24, 2008 letter to Plaintiff,
the Board did inform him that his claim was only accepted for
events that occurred within the six months prior to the date it

24
was presented to the Board.

Therefore, Plaintiff was on notice

25
26
27

that any claim based on events before the six month cutoff was not
accepted by the Board and was not exhausted.

28
19

1

Defendants' motion to dismiss the state law causes of action

2

against FNP McLean, Nurse Labans and Nurse Robinson for lack of

3

exhaustion is granted.

4

II. Summary Judgment

5
6

A. Legal Standard
Summary judgment is properly granted when no genuine and

7
disputed issues of material fact remain, and when, viewing the
8
9

evidence most favorably to the non-moving party, the movant is

United States District Court
For the Northern District of California

10

clearly entitled to prevail as a matter of law.

11

56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

12

Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.

13

1987).

14

Fed. R. Civ. P.

The moving party bears the burden of showing that there is no

15
material factual dispute.

Therefore, the court must regard as

16
true the opposing party's evidence, if supported by affidavits or
17
18

other evidentiary material.

19

815 F.2d at 1289.

20

in favor of the party against whom summary judgment is sought.

21

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

22

587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952

23

Celotex, 477 U.S. at 324; Eisenberg,

The court must draw all reasonable inferences

F.2d 1551, 1558 (9th Cir. 1991).

24
Material facts which would preclude entry of summary judgment
25
26
27

are those which, under applicable substantive law, may affect the
outcome of the case.

The substantive law will identify which

28
20

1

facts are material.

2

242, 248 (1986).

3

Anderson v. Liberty Lobby, Inc., 477 U.S.

Where the moving party does not bear the burden of proof on

4

an issue at trial, the moving party may discharge its burden of

5

production by either of two methods.

6

Nissan Fire & Marine Ins.

Co., Ltd., v. Fritz Cos., Inc., 210 F.3d 1099, 1106 (9th Cir.

7
2000).
8
The moving party may produce evidence negating
an essential element of the nonmoving party’s
case, or, after suitable discovery, the moving
party may show that the nonmoving party does not
have enough evidence of an essential element of
its claim or defense to carry its ultimate
burden of persuasion at trial.

9

United States District Court
For the Northern District of California

10
11
12
13

Id.

14

If the moving party discharges its burden by showing an

15

absence of evidence to support an essential element of a claim or

16

defense, it is not required to produce evidence showing the

17

absence of a material fact on such issues, or to support its

18

motion with evidence negating the non-moving party's claim.

Id.;

19
see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990);
20
Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991).

If

21
22

the moving party shows an absence of evidence to support the non-

23

moving party's case, the burden then shifts to the non-moving

24

party to produce "specific evidence, through affidavits or

25

admissible discovery material, to show that the dispute exists."

26

Bhan, 929 F.2d at 1409.

27
28
21

If the moving party discharges its burden by negating an

1
2

essential element of the non-moving party’s claim or defense, it

3

must produce affirmative evidence of such negation.

4

F.3d at 1105.

5

burden then shifts to the non-moving party to produce specific

6

Nissan, 210

If the moving party produces such evidence, the

evidence to show that a dispute of material fact exists.

Id.

7
If the moving party does not meet its initial burden of
8
9

production by either method, the non-moving party is under no

United States District Court
For the Northern District of California

10

obligation to offer any evidence in support of its opposition.

11

Id.

12

ultimate burden of persuasion at trial.

This is true even though the non-moving party bears the
Id. at 1107.

13

B. Deliberate Indifference to Serious Medical Needs

14

Plaintiff’s Eighth Amendment cause of action is based on the

15
fact that he has the serious medical condition of a permanently
16
disabled right arm and wrist which causes him constant pain.

He

17
18

claims that Defendants have treated him with deliberate

19

indifference by not providing him with the proper pain medication.

20

The treatment a prisoner receives in prison and the

21

conditions under which he is confined are subject to scrutiny

22

under the Eighth Amendment.

23

(1993).

Helling v. McKinney, 509 U.S. 25, 31

Deliberate indifference to serious medical needs violates

24
the Eighth Amendment's proscription against cruel and unusual
25
26

punishment.

Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin

27

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

28

grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136
22

1

(9th Cir. 1997) (en banc).

2

indifference" involves an examination of two elements: the

3

seriousness of the prisoner's medical need and the nature of the

4

defendant's response to that need.

5
6

A determination of "deliberate

Id.

A prison official is deliberately indifferent if he knows
that a prisoner faces a substantial risk of serious harm and

7
disregards that risk by failing to take reasonable steps to abate
8
9

it.

Farmer, 511 U.S. at 837.

The prison official must not only

United States District Court
For the Northern District of California

10

“be aware of facts from which the inference could be drawn that a

11

substantial risk of serious harm exists,” but he “must also draw

12

the inference.”

13

of the risk, but was not, then the official has not violated the

14

Eighth Amendment, no matter how severe the risk.

Id.

If a prison official should have been aware

Gibson v. County

15
of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002).
16
In order for deliberate indifference to be established,
17
18

therefore, there must be a purposeful act or failure to act on the

19

part of the defendant and resulting harm.

20

1060; Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404,

21

407 (9th Cir. 1985).

22

are egregious nor that they resulted in significant injury to a

23

McGuckin, 974 F.2d at

Neither a finding that a defendant's actions

prisoner is required to establish a violation of the prisoner's

24
federal constitutional rights.

McGuckin, 974 F.2d at 1060, 1061.

25
26

Deliberate indifference may be shown when prison officials deny,

27

delay or intentionally interfere with medical treatment, or in the

28

way in which prison officials provide medical care.
23

Id. at 1062

1

(delay of seven months in providing medical care during which

2

medical condition was left virtually untreated and plaintiff was

3

forced to endure "unnecessary pain" sufficient to present

4

colorable § 1983 claim).

5
6

"A difference of opinion between a prisoner-patient and
prison medical authorities regarding treatment does not give rise

7
to a § 1983 claim."

Franklin v. Oregon, 662 F.2d 1337, 1344 (9th

8
9

Cir. 1981).

Similarly, a showing of nothing more than a

United States District Court
For the Northern District of California

10

difference of medical opinion as to the need to pursue one course

11

of treatment over another is insufficient, as a matter of law, to

12

establish deliberate indifference.

13

1051, 1058-60 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242

14

(9th Cir. 1989).

Toguchi v. Chung, 391 F.3d

15
Defendants concede, for the purposes of this motion, that the
16
condition of Plaintiff's arm constitutes a serious medical need.
17
18

Therefore, whether Plaintiff has raised a triable issue of fact to

19

preclude summary judgment on this cause of action depends on the

20

evidence of each Defendant's response to that need.

21
22
23

Because Plaintiff's state law negligence cause of action is
based on the same allegations as his Eighth Amendment cause of
action, the Court reviews them together.

24
C. Dr. Sayre and FNP Risenhoover
25
26
27

As discussed above, the causes of action against Dr. Sayre
and FNP Risenhoover are barred by res judicata.

28
24

Thus, there is no

1

need to address whether they are entitled to summary judgment on

2

the causes of action against them.

3

D. FNP McLean

4

The evidence against FNP McLean is that she denied several of

5
6

Plaintiff's 602 appeals.

FNP McLean's denial of Plaintiff's 602

appeals may have delayed a change in Plaintiff's pain medication.

7
However, this alone is not sufficient to amount to evidence that
8
9

United States District Court
For the Northern District of California

10
11

she was deliberately indifferent to Plaintiff's serious medical
need.
Plaintiff also submits evidence that, on January 8, 2009, FNP

12

McLean affirmed Dr. Sayre's decision to grant in part Plaintiff's

13

602 appeal.

14

medication changed, but granted his request to be examined by an

The decision denied Plaintiff's request to have his

15
independent doctor.

Although Plaintiff states that he was never

16
seen by an independent doctor, he was subsequently examined by Dr.
17
18

Williams, a PBSP staff doctor, who changed Plaintiff's pain

19

medication to his satisfaction.

20

affirmation of Dr. Sayre's decision does not demonstrate

21

deliberate indifference to Plaintiff's medical needs.

22
23

FNP McLean's January 8, 2009

Plaintiff also argues that FNP McLean is liable based upon
her supervisory duties.

However, a supervisor generally "is only

24
liable for constitutional violations of his subordinates if the
25
26

supervisor participated in or directed the violations, or knew of

27

the violations and failed to act to prevent them."

28

List, 880 F.2d 1040, 1045 (9th Cir. 1989).
25

Taylor v.

A supervisor may also

1

be held liable if he or she implemented "a policy so deficient

2

that the policy itself is a repudiation of constitutional rights

3

and is the moving force of the constitutional violation."

4

v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en

5

banc).

6

Redman

Plaintiff does not submit evidence that FNP McLean

7
participated in or directed any constitutional violations by her
8
9

subordinates or that she implemented a policy that was the moving

United States District Court
For the Northern District of California

10

force behind any constitutional violations.

Therefore,

11

Defendants' motion for summary judgment of the causes of action

12

against FNP McLean is granted.

13

E. Nurse Flowers

14

The evidence against Nurse Flowers is that, on many

15
occasions, he classified Plaintiff's complaints of arm, wrist and
16
stomach pain as "routine" and as a result Plaintiff experienced
17
18

long delays in obtaining appointments to see FNP Risenhoover.

19

However, the evidence shows that, over the period of time that FNP

20

Risenhoover was Plaintiff's PCP, he saw her many times.

21

Nurse Flowers characterized Plaintiff's complaints as "routine"

22

does not amount to evidence of deliberate indifference or

23

negligence.

That

Therefore, summary judgment is granted in favor of

24
Nurse Flowers on Plaintiff's Eighth Amendment and negligence
25
26

causes of action.

27
28
26

1

F. Qualified Immunity

2

Defendants argue that the doctrine of qualified immunity

3

shields them from liability on Plaintiff's causes of action.

4

The defense of qualified immunity protects "government

5

officials . . . from liability for civil damages insofar as their

6

conduct does not violate clearly established statutory or

7
constitutional rights of which a reasonable person would have
8
9

known."

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

A

United States District Court
For the Northern District of California

10

defendant may have a reasonable, but mistaken, belief about the

11

facts or about what the law requires in any given situation.

12

Saucier v. Katz, 533 U.S. 194, 205 (2001).

13

in qualified immunity analysis is:

14

favorable to the party asserting the injury, do the facts alleged

The threshold question

"Taken in the light most

15
show the officer's conduct violated a constitutional right?"

Id.

16
at 201.

A court considering a claim of qualified immunity must

17
18

determine whether the plaintiff has alleged the deprivation of an

19

actual constitutional right and whether such right was "clearly

20

established."

21

Where there is no clearly established law that certain conduct

22

constitutes a constitutional violation, the defendant cannot be on

23

Pearson v. Callahan, 555 U.S. 223, 231 (2009).

notice that such conduct is unlawful.

Rodis v. City & County of

24
San Francisco, 558 F.3d 964, 970-71 (9th Cir. 2009).

The

25
26
27

relevant, dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a reasonable

28
27

1

defendant that his conduct was unlawful in the situation he

2

confronted.

Saucier, 533 U.S. at 202.

3

On these facts, viewed in the light most favorable to

4

Plaintiff, Defendants FNP McLean and Nurse Flowers7 prevail as a

5

matter of law on their qualified immunity defense because the

6
Court has found no Eighth Amendment violation.

However, even if a

7
8
9

constitutional violation had occurred with respect to Plaintiff's
Eighth Amendment cause of action, in light of clearly established

United States District Court
For the Northern District of California

10

principles at the time of the incident, FNP McLean and Nurse

11

Flowers could have reasonably believed that their respective

12

behavior, reviewing Plaintiff's 602 appeals and characterizing

13

Plaintiff's symptoms as routine, were lawful.

14

CONCLUSION

15
Based upon the foregoing, Plaintiff's causes of action
16
17

against Dr. Sayre and FNP Risenhoover are barred by res judicata;

18

Plaintiff's state law causes of action against FNP McLean and

19

Nurses Labans and Robinson are dismissed for failure to exhaust

20

state remedies; summary judgment is granted in favor of FNP McLean

21

on the Eighth Amendment cause of action; and summary judgment is

22

granted in favor of Nurse Flowers on the Eighth Amendment and

23
negligence causes of action.

The clerk of the court shall enter a

24
25
26
7

27
28

The claims against Dr. Sayre and FNP Risenhoover are barred
by res judicata. Plaintiff does not bring any constitutional
claims against Nurses Labans and Robinson.
28

1

separate judgment in favor of Defendants.

2

their own costs of litigation.

3

All parties shall bear

IT IS SO ORDERED.

4
5
Dated: March 30, 2012
6

CLAUDIA WILKEN
United States District Judge

7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29