Gonzalez v. Chudy et al

Filing 36

ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT; ADDRESSING NON-DISPOSITIVE MOTIONS. Signed by Judge Claudia Wilken on 3/31/2013. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 3/31/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ERIC L. GONZALEZ,
Plaintiff,

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No. C 10-3732 CW (PR)
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT;
ADDRESSING NON-DISPOSITIVE
MOTIONS

v.

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DR. J. CHUDY, et al.,

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Defendants.

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(Docket nos. 17, 18, 19, 23,
26)

________________________________/

United States District Court
For the Northern District of California

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INTRODUCTION

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Plaintiff, a state prisoner incarcerated at the Correctional

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Training Facility (CTF) at Soledad, filed this pro se civil rights

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action pursuant to 42 U.S.C. § 1983, alleging deliberate

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indifference to his serious medical needs.

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Defendants have filed a motion for summary judgment.

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Plaintiff has opposed the motion, Defendants have filed a reply

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and Plaintiff has filed a sur-reply.

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non-dispositive motions filed by the parties.

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For the reasons discussed below, the Court GRANTS Defendants’
motion for summary judgment.
BACKGROUND

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Also pending are various

The following facts are taken from Plaintiff’s verified

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amended complaint (Docket no. 8), and the parties’ admissible

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evidence submitted in support of and in opposition to the motion

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for summary judgment.

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noted.

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The facts are undisputed unless otherwise

Plaintiff claims Defendants Dr. Joseph Chudy, Dr. Darrin
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Bright and Dr. Michael Sepulveda provided him with

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constitutionally inadequate medical care by failing to arrange a

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timely consultation for him with a podiatrist.

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Defendants is a licensed physician and is being sued for actions

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taken while acting as the Chief Medical Officer (CMO) at CTF.

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Each of the

The allegations in the amended complaint concern events that

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took place at CTF between August 20, 2009 and September 9, 2010.

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Dr. Chudy was the CMO at CTF from July 2006 through June 2009, and

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from October 2009 through November 2010.

Decl. Dr. Chudy Supp.

United States District Court
For the Northern District of California

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Mot. Summ. J. (Chudy Decl.) ¶ 2.

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months for medical reasons, Dr. Sepulveda was the acting CMO from

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July 2009 through September 2009.

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Summ. J. (Sepulveda Decl.) ¶ 2.

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one day on August 20, 2009, Dr. Bright, a CTF staff physician who

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also acted as Chief Physician, served as the acting CMO for that

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day only.

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¶ 2.

When Dr. Chudy was out for three

Decl. Dr. Sepulveda Supp. Mot.

When Dr. Sepulveda was out for

Decl. Dr. Bright Supp. Mot. Summ. J. (Bright Decl.)

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As described by Defendants:

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The Chief Medical Officer is responsible for planning
and directing the work of the Clinical Care Services
staff, for supervising subordinate department heads, for
implementing general policy directives, directing the
clinical work of the department, advising Health Care
Services Division, and acting as a member of the
Warden’s executive staff. As a senior member of the
health care management team, the CMO works with other
division managers and supervisors to improve quality,
resolve problems, and develop programs. The CMO manages
second level 602 appeals by reviewing and evaluating
determinations by the appeals coordinator.

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Chudy Decl. ¶ 2.
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Plaintiff’s medical records and administrative appeals show
that he first complained of swelling in both legs on May 27, 2009,

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2

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when he was seen by CTF Chief Physician Dr. Bright for bilateral

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emergency leg edema.

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and Plaintiff’s past medical conditions of chest pain, high blood

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pressure and high cholesterol, Dr. Bright ordered an

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electrocardiogram (EKG), chest x-rays and blood tests.

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Decl. ¶ 5.

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lower leg pain; his vital signs were found to be normal.

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Compl. Ex. A4.

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of the tests ordered by Dr. Bright came back within normal limits.

United States District Court
For the Northern District of California

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Sepulveda Decl. ¶ 5.

Based on the swelling

Bright

On June 9, 2009, Plaintiff complained to a nurse about
Amen.

On June 16, 2009, Plaintiff was advised that all

Bright Decl. ¶ 5.
On June 19, 2009, Plaintiff complained to a nurse of pain in

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both of his calves and told her that blood tests previously had

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been ordered for his symptom of swollen ankles.

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Summ. J. (Opp’n) Ex. A10.

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request medical attention because his condition was not an

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emergency.

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inadequate medical care for the pain and swelling in his calves,

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and expressed his fear that he might be experiencing poor

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circulation that could cause a stroke or heart attack (No. CTF-14-

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09-11915) (June 602). Id.; Opp’n Ex. A10.

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Plaintiff’s appointment to see CTF physician Dr. Lim-Javate -- for

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what was noted in the medical record as athlete’s foot -- was

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rescheduled to take place in two to four weeks, due to time

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constraints.

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Pl.’s Opp’n Mot.

The nurse provided him with a form to

Bright Decl. ¶ 5.

He then filed a grievance claiming

On June 24, 2009,

Amen. Compl. Ex. A8, Opp’n Ex. A14.

On July 3, 2009, Plaintiff came to the infirmary and

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complained to a nurse that both of his lower legs and ankles were

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swollen and in pain.

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doctors at that time because they were seeing prisoners in

She told him that he could not be seen by

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administrative segregation.

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Plaintiff filed a second grievance claiming inadequate medical

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care because he required emergency care and the nurse was not

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qualified to diagnose his medical needs (No. CTF-14-09-12024)

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(July 602).

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care services request form for the “severe pain and swelling in my

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lower legs and ankles.”

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seen by a nurse, who noted that neither of his lower legs was

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swollen but both legs had some redness and were warm to the touch.

Id.

Bright Decl. ¶ 6.

That same day,

On July 7, 2009, Plaintiff submitted a medical

Bright Decl. Ex. A19.1

On July 8, he was

United States District Court
For the Northern District of California

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She instructed Plaintiff to elevate both of his lower legs while

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resting and to return to the clinic if his condition worsened.

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Id.

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medications for high blood pressure (Atenolol), high cholesterol

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(Simvastatin) and provided an inhaler for breathing difficulty and

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chest tightness (Proventil).

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The next day, July 9, CTF medical staff renewed Plaintiff’s

Bright Decl. ¶ 6.

On July 27, 2009, Dr. Sepulveda responded, at the first level

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of review, to Plaintiff's June 602 concerning inadequate care for

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the pain and swelling in his legs.

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Plaintiff's request to receive adequate medical care, in

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accordance with prison regulations, for his leg pain and swelling.

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Sepulveda Decl. ¶ 7 & Ex. A6-7.

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that Plaintiff already was receiving adequate care for his leg

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swelling, because CTF doctors were exploring the possible

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relationship between the leg swelling and Plaintiff’s heart

Dr. Sepulveda granted

It was Dr. Sepulveda’s opinion

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None of the exhibits attached to any Defendant's
declaration include page numbers. The Court therefore identifies
the exhibits with the page numbers inserted on the documents by
the Court's electronic filing system (ECF).
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condition.

Sepulveda Decl. ¶ 7.

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On August 6, 2009, Plaintiff was seen by CTF Nurse

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Practitioner (NP) Maria Koziol for complaints of foot pain.

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Sepulveda Decl. Ex. A20.

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might be that Plaintiff’s orthopedic shoes were not well-fitted.

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Id.

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Plaintiff to be seen by a podiatrist.

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reviewed and approved by the Chief Physician, Dr. Bright.

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Sepulveda Decl. ¶ 8.

She theorized that the cause of the pain

She submitted a Routine Request for Service (RFS) form for
Id.

The RFS had to be

United States District Court
For the Northern District of California

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On August 20, 2009, a response was issued with respect to

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Plaintiff's July 602 asking that he receive emergency medical care

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for his leg swelling and pain and be diagnosed and treated by a

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doctor, not a nurse.2

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was investigated by RN L. Hernandez, who interviewed Plaintiff and

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wrote the response.

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Koziol for a podiatrist consult, RN Hernandez wrote: "08/06/09 you

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were evaluated by the Nurse Practitioner and appropriate

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medication and treatment was [sic] ordered (Request for

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Service/Podiatry Consult)."

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diagnosed and treated by a doctor was partially granted in that

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"[a]ll patients are assigned to a Primary Care Physician," and

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Plaintiff had been evaluated by both a doctor and a nurse

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practitioner.

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Bright Decl. ¶ 8 & Ex. A13.

The July 602

With respect to the RFS submitted by NP

Id.

Plaintiff's request to be

Id.

Dr. Bright, acting in his capacity as Acting CMO for the day,

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approved the response written by RN Hernandez.

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Dr. Bright, he partially granted Plaintiff's request to be

Id.

According to

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2

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The July 602 went directly to the second level of review.
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diagnosed and treated by a doctor because: "I personally examined

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[Plaintiff] on May 27, 2009 and he was seen by N.P. Koziol on

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August 6, 2009, thus he saw two medical providers for his leg

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swelling and pain, in addition to multiple visits with CTF's

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registered nurses, in a span of less than three months."

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Decl. ¶ 8.

Bright

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On August 25, 2009, Dr. Bright, acting in his capacity as

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Chief Physician, reviewed NP Koziol's RFS for Plaintiff to be seen

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by a podiatrist.

United States District Court
For the Northern District of California

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review of the RFS:
As Chief Physician, I had the responsibility of
reviewing and approving the RFS. On August 25, 2009, I
denied Mr. Gonzalez’s request to see the podiatrist as
Mr. Gonzalez was already receiving adequate treatment
for his leg swelling. At the time of the denial, I
(along with CTF medical staff) still believed that Mr.
Gonzalez’s leg swelling and pain was possibly related to
a more serious heart issue (including high blood
pressure) and we were attempting to treat those
underlying issues. The denial of the podiatrist visit
was justified because we believed that a podiatrist
could not treat his heart issues, thus there was no
reason to approve the visit. In addition, the
podiatrist, Dr. Kristal, was only available for urgent
consults as he covered four different CDCR facilities in
2009 and 2010: CTF, Avenal State Prison, Pleasant Valley
State Prison and Salinas Valley State Prison. During
that period, emergency cases were sent to the hospital
whereas routine podiatric needs were provided by the
primary care physicians. Mr. Gonzalez’s swelling was
not considered a life-threatening emergency.

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Bright Decl. ¶ 7.
Also on August 25, 2009, Dr. Sepulveda responded at the

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He avers the following with respect to his

second level of review to Plaintiff's June 602 requesting adequate
medical care.

The 602 was partially granted, in that Dr.

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Sepulveda determined Plaintiff was receiving adequate medical care
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for his problems of leg swelling and pain.
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A8.
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6

Sepulveda Decl. Ex.

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On September 12, 2009, CTF doctors stopped Plaintiff’s beta

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blockers, believing they might be the cause of the leg swelling

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and pain.

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Office (PLO) received a letter from Plaintiff complaining about

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his failure to receive medical care.

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September 23, 2009, Plaintiff was sent for a cardiology

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consultation and stress test for evaluation of his complaints of

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chest pain.

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noted other than an “asymptomatic abnormal blood pressure response

Chudy Decl. ¶ 6.

On September 18, 2009, the Prison Law

Amen. Compl. Ex. A15.

Chudy Decl. Exs. A24 & A25.

On

No abnormalities were

United States District Court
For the Northern District of California

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during the test.”

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wrote to the Attorney General's Office requesting further

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information about Plaintiff's blood test results, leg pain and

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swelling.

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advised the PLO that the swelling was a side effect of the beta

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blockers, which had been stopped on September 12, 2009, and that

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CTF doctors were treating the swelling as a symptom of underlying

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heart issues.

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Plaintiff on November 30, 2009, informing him of their

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communications with Dr. Chudy.

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Id. Ex. A24.

On October 19, 2009, the PLO

Amen. Compl. Ex. A17.

On November 9, 2009, Dr. Chudy

Chudy Decl. ¶ 13a.

The PLO wrote a letter to

Amen. Compl. Ex. A 17.

On November 23, 2009, Plaintiff requested new orthopedic

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shoes because his arch supports were not working.

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¶ 7 & Ex. A26.

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treating physician, Dr. Jamari, who approved his request for new

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orthopedic inserts.

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inserts from the specialty clinic on December 18, 2009.

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A29.

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Chudy Decl.

On December 3, 2009, Plaintiff was seen by his

Id. & Ex. A28.

Plaintiff received the
Id. & Ex.

On January 7, 2010, Dr. Chudy spoke a second time with the
PLO regarding Plaintiff's complaints of chest pains and leg pain
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and swelling.

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Plaintiff's records did not suggest serious heart disease, he also

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noted that the combination of chest pain and leg swelling made it

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difficult to rule out the possibility.

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Although he previously told the PLO that

Chudy Decl. ¶ 13b.

In March 2010, Plaintiff received Director's level responses

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to both his June and July 602s.

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Plaintiff's medical records showed that he had been evaluated by

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licensed clinical staff and was receiving treatment deemed

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medically necessary.

United States District Court
For the Northern District of California

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Both appeals were denied because

Chudy Decl. Exs. A11-13 (June 602) & A16-18

(July 602).

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On June 1, 2010, Plaintiff submitted a health care services

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request form complaining of continuing pain in both feet despite

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the arch supports.

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he saw his primary care physician, who submitted a routine RFS

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recommending that he see a podiatrist to reassess the efficacy of

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his orthotics and that his feet be x-rayed.

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On July 7, 2010, Dr. Chudy approved the request to see the

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podiatrist because the medical records showed a decreased

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likelihood that the leg swelling and pain were symptoms of a more

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serious heart issue.

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responded to Plaintiff's most recent medical appeal for new

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orthopedic shoes and partially granted the appeal by confirming

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approval of the RFS to see the podiatrist, who would determine

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appropriate treatment and the need for additional orthotics.

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& Ex. A19.

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Chudy Decl. ¶ 8 & Ex. A31.

Chudy Decl. ¶ 8.

On June 21, 2010,

Id. & Exs. A32 & A33.

On July 8, 2010, Dr. Chudy

Id.

On July 22, 2010, Plaintiff was seen by the CTF podiatrist,

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Dr. Ira Kristal, who ordered x-rays of Plaintiff's feet.

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Decl. Ex. A28.

The x-rays were taken on July 27, 2010.
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Chudy
Chudy

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Decl. ¶ 9 & Ex. A30.

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deformities in both great toes.

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the appearance of the right and left feet were “otherwise

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unremarkable”.

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dislocation or other osseous abnormality.

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Id.

Plaintiff was diagnosed with mild bunion
Id.

The x-ray results noted that

There was no evidence of recent fracture,
Id.

On September 9, 2010, Dr. Kristal submitted a routine RFS for

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Plaintiff to be seen by a specialist in order to obtain

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“functional orthotics” for his feet.

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2011, Plaintiff was seen by prosthetic and orthotic consultant Dr.

Opp’n Ex. A37.

On May 26,

United States District Court
For the Northern District of California

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Randy Furushiko, who found that Plaintiff had “significant

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pronated feet” and poorly fitted shoes.

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Plaintiff receive customized orthotics and “extra depth” shoes to

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accommodate them.

He recommended that

Id.

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Id.

DISCUSSION
I.

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Non-Dispositive Motions
Plaintiff has filed three motions asking the Court to take

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judicial notice of his having served Defendants with requests for

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answers to interrogatories.

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subject for judicial notice.

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DENIED.

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Discovery matters are not a proper
Accordingly, these motions are

After Plaintiff filed his amended complaint, Defendants moved

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to file an amended answer thereto.

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amended answer was filed on May 7, 2012.

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II.

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The motion is GRANTED; the

Legal Standard for Summary Judgment
Summary judgment is only proper where the pleadings,

26

discovery and affidavits show there is “no genuine issue as to any

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material fact and that the moving party is entitled to judgment as

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a matter of law.”

Fed. R. Civ. P. 56(c).
9

Material facts are

1

those that may affect the outcome of the case.

Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A dispute as to a

3

material fact is genuine if the evidence is such that a reasonable

4

jury could return a verdict for the nonmoving party.

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Id.

The court will grant summary judgment “against a party who
fails to make a showing sufficient to establish the existence of

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an element essential to that party’s case, and on which that party

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will bear the burden of proof at trial.”

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Catrett, 477 U.S. 317, 322-23 (1986); see also Anderson, 477 U.S.

10
United States District Court
For the Northern District of California

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at 248 (holding fact to be material if it might affect outcome of

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suit under governing law).

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burden of identifying those portions of the record that

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demonstrate the absence of a genuine issue of material fact.

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burden then shifts to the nonmoving party to “go beyond the

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pleadings, and by his own affidavits, or by the ‘depositions,

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answers to interrogatories, or admissions on file,’ designate

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‘specific facts showing that there is a genuine issue for trial.’”

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Celotex, 477 U.S. at 324 (citing Fed. R. Civ. P. 56(e)).

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Celotex Corp. v.

The moving party bears the initial

The

In considering a motion for summary judgment, the court must

20

view the evidence in the light most favorable to the nonmoving

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party; if, as to any given fact, evidence produced by the moving

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party conflicts with evidence produced by the nonmoving party, the

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court must assume the truth of the evidence set forth by the

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nonmoving party with respect to that fact.

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ICA, 198 F.3d 1152, 1158 (9th Cir. 1999).

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a summary judgment motion is not to make credibility

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determinations or weigh conflicting evidence with respect to a

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10

See Leslie v. Grupo
The court’s function on

1

disputed material fact.

2

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

3

See T.W. Elec. Serv. v. Pacific Elec.

A district court may consider only admissible evidence in

4

ruling on a motion for summary judgment.

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56(e); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002).

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A verified complaint may be used as an opposing affidavit under

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Rule 56, as long as it is based on personal knowledge and sets

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forth specific facts admissible in evidence.

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McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995).

United States District Court
For the Northern District of California

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11

See Fed. R. Civ. P.

See Schroeder v.

III. Deliberate Indifference Standard
Deliberate indifference to serious medical needs violates the

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Eighth Amendment’s proscription against cruel and unusual

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punishment.

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

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on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133,

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1136 (9th Cir. 1997) (en banc).

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indifference” involves an examination of two elements: the

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seriousness of the prisoner’s medical need, and the nature of the

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defendant’s response to that need.

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

A determination of “deliberate

See id., 974 F.2d at 1059.

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A serious medical need exists if the failure to treat a

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prisoner’s condition could result in further significant injury or

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the unnecessary and wanton infliction of pain.

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of an injury that a reasonable doctor or patient would find

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important and worthy of comment or treatment, the presence of a

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medical condition that significantly affects an individual’s daily

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activities, or the existence of chronic and substantial pain are

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examples of indications that a prisoner has a serious need for

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medical treatment.

Id. at 1059-60.
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Id.

The existence

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A prison official is deliberately indifferent if he knows

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that a prisoner faces a substantial risk of serious harm and

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disregards that risk by failing to take reasonable steps to abate

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it.

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official must not only “be aware of facts from which the inference

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could be drawn that a substantial risk of serious harm exists,”

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but he “must also draw the inference.”

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deliberate indifference to be established, therefore, there must

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be a purposeful act or failure to act on the part of the defendant

United States District Court
For the Northern District of California

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Farmer v. Brennan, 511 U.S. 825, 837 (1994).

and resulting harm.

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Id.

The prison

In order for

See McGuckin, 974 F.2d at 1060.

Deliberate indifference may be shown when prison officials

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deny, delay or intentionally interfere with medical treatment, or

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it may be shown in the way in which they provide medical care.

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See id. at 1062.

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prisoner-patient and prison medical authorities regarding

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treatment nor a showing of nothing more than a difference of

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

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over another is sufficient to establish deliberate indifference.

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See Toguchi v. Chung, 391 F.3d 1051, 1059-60 (9th Cir. 2004).

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order to prevail on a claim involving choices between alternative

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courses of treatment, a plaintiff must show that the course of

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treatment the doctors chose was medically unacceptable under the

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circumstances, and that they chose this course in conscious

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disregard of an excessive risk to the plaintiff’s health.

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1058.

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acting with deliberate indifference when they are unable to render

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or cause to be rendered medical treatment because of a lack of

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resources that is not within their power to cure.

But neither a difference of opinion between a

In

Id. at

Further, individual defendants cannot be held liable for

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Peralta v.

1

Dillard, 704 F.3d 1124, 1129 (9th Cir. 2013).

2

IV.

Analysis

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Plaintiff claims that Defendants acted with deliberate

4

indifference to his serious medical needs between August 20, 2009

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and September 9, 2010, by failing to ensure that he see a

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podiatrist for his symptoms of foot and leg swelling and pain.

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A.

Serious medical need

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Defendants acknowledge that a triable issue exists as to

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whether Plaintiff’s chronic leg and foot pain constitute a serious

United States District Court
For the Northern District of California

10

medical need.

The Court, for purposes of the present motion,

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assumes without deciding that Plaintiff has shown that he has a

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serious medical need.

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B.

Deliberate Indifference

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Defendants argue that Plaintiff cannot show that they acted

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with deliberate indifference by not ensuring that he see a

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podiatrist during the relevant time period because 1) no visit

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with a podiatrist was ordered prior to July 8, 2010; 2) no

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podiatrist was readily available for non-emergency podiatric

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concerns; 3) when acting as CMO Defendants were not responsible

20

for ensuring that Plaintiff see a podiatrist; and 4) each

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Defendant responded medically appropriately to Plaintiff's medical

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appeals.
Plaintiff responds that Defendants, in their capacity as

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CMO's and, therefore, reviewers of his medically-related

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administrative appeals, had the authority and were required to

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ensure that he was receiving constitutionally adequate medical

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care.

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1

The Court finds that the question whether Defendants acted

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with deliberate indifference to Plaintiff's serious medical needs

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does not turn on whether they could have ensured Plaintiff's

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access to a podiatric visit that had not been ordered yet or

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whether they personally were responsible for making podiatric

6

referrals.

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if it raises a genuine issue of material fact as to whether

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Defendants were aware of Plaintiff's serious medical need and

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acted with deliberate indifference by failing to take reasonable

Instead, the Court reviews the evidence to determine

United States District Court
For the Northern District of California

10

steps to abate harm.

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Cir. 2006).

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1.

See Jett v. Penner, 439 F.3d 1091, 1098 (9th

Dr. Bright

It is undisputed that, during the relevant time period, Dr.

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Bright was a CTF staff physician and also acted as the Chief

15

Physician, responsible for reviewing physician requests to refer

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prisoners to specialists.

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August 20, 2009.

He acted as CTF CMO for one day, on

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It also is undisputed that Dr. Bright was involved in

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Plaintiff's medical care on the following three occasions only:

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1) On May 27, 2009, Dr. Bright, acting as a staff physician, saw

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Plaintiff for an emergency complaint of leg swelling and, based on

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the swelling and Plaintiff’s past medical conditions of chest

23

pain, high blood pressure and high cholesterol, ordered an EKG,

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chest x-rays and blood tests; 2) on August 20, 2009, acting as CMO

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for that day only, Dr. Bright partially granted Plaintiff's July

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602 request to receive appropriate medical care and be seen by a

27

doctor instead of a nurse; and 3) on August 25, 2009, acting as

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Chief Physician, Dr. Bright denied NP Koziol's request that
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1

Plaintiff be referred to a podiatrist.

2

Plaintiff does not object to Dr. Bright's actions on May 27,

3

2009.

4

deliberate indifference when he denied the RFS on August 25.

5

Specifically, Plaintiff maintains that Dr. Bright knew that

6

Plaintiff's foot swelling was not the result of a heart condition

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and that he required a podiatric consult.

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argument on the following: 1) the test results that had been

9

ordered by Dr. Bright in May showed that Plaintiff did not have a

He maintains, however, that Dr. Bright acted with

Plaintiff bases his

United States District Court
For the Northern District of California

10

heart condition;

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2) Dr. Bright's partial grant of the July 602 on August 20

12

indicated his approval of RN Hernandez's statement that, when

13

Plaintiff was evaluated by NP Koziol, "appropriate medication and

14

treatment was [sic] ordered (Request for Service/Podiatry

15

Consult);" 3) Plaintiff's July 602 states that foot pain was the

16

initial source of his leg swelling; and 4) on June 24, 2009, CTF

17

physician Dr. Lim-Javate wrote in his medical notes that Plaintiff

18

required further attention for his feet.

19

Dr. Bright maintains that the undisputed evidence shows that

20

he did not act with deliberate indifference to Plaintiff's serious

21

medical needs because his decision to deny the RFS was based on

22

his conclusion that Plaintiff's problems were due to his numerous

23

heart-related symptoms, as well as on the unavailability of the

24

podiatrist.

25

The Court, having reviewed the parties' evidence and

26

considered it in the light most favorable to Plaintiff, finds

27

Plaintiff's evidence of deliberate indifference insufficient for

28

the following reasons.
15

1

As an initial matter, the fact that the EKG, chest x-rays and

2

blood tests ordered by Dr. Bright in May 2009 all came back within

3

normal limits does not establish that Dr. Bright knew that

4

Plaintiff's leg swelling was not being caused by a heart-related

5

condition.

6

time, had complained of chest pain and breathing difficulty and

7

was taking certain medications, including beta blockers, to

8

control possible causes of heart problems, such as high blood

9

pressure.

Instead, the evidence shows that Plaintiff, at that

Consequently, even though the test results came back

United States District Court
For the Northern District of California

10

within normal limits, it was reasonable for Dr. Bright to consider

11

whether Plaintiff's leg swelling and pain might be attributable to

12

the medications being used to keep possible heart-related problems

13

under control.

14

negative implications, Dr. Bright and other CTF doctors, including

15

Dr. Chudy, surmised that the swelling might be a side-effect of

16

the beta blockers.

17

September 12, 2009.

18

a possible heart condition, CTF doctors ordered that he undergo a

19

stress echocardiogram on September 23, 2009.

20

test indicated that he had a history of all-night chest pain,

21

heart palpitations and skipped heartbeats.

22

Notably, after the tests came back without

As a result, those drugs were discontinued on
Additionally, based on Plaintiff's history of

The report from that

Bright Decl. ¶¶ 23-24.

Further, the evidence does not support Plaintiff's contention

23

that Dr. Bright's approval of the August 20, 2009 second level

24

response to Plaintiff's July 602 shows that Dr. Bright knew that

25

Plaintiff needed to see a podiatrist and that NP Koziol's RFS

26

should be approved.

27

that NP Koziol acted appropriately by addressing Plaintiff's

28

concerns and submitting the RFS, was a determination on the merits

Plaintiff assumes that the July 602 response

16

1

of the RFS.

2

before the referral can be implemented.

3

evidence that the RFS had been forwarded to Dr. Bright to review

4

as Chief Physician before the second level response was issued,

5

the record does not support the conclusion that Dr. Bright should

6

have authorized the RFS when he reviewed the July 602 in his

7

capacity as Acting CMO.

8
9

An RFS requires approval from the Chief Physician
Because there is no

It is undisputed that Dr. Bright based his denial of the RFS
in part on the fact that the podiatrist, Dr. Kristal, was not

United States District Court
For the Northern District of California

10

readily available to see patients at CTF.

11

was not immediately available, the alternatives were

12

hospitalization or treatment by Plaintiff's primary care

13

physician.

14

necessary and that Plaintiff was treated by his primary care

15

physician.

16

emergency situation such as this does not amount to deliberate

17

indifference.

18

Given that a podiatrist

The evidence shows that hospitalization was not

Denial of immediate access to a specialist in a non-

See Peralta, 704 F.3d at 1129.

Finally, the Court finds unpersuasive Plaintiff's argument

19

that Dr. Bright acted with deliberate indifference by focusing on

20

the swelling in Plaintiff's legs rather than his foot pain.

21

According to Plaintiff, his medical grievances and Dr. Lim-

22

Javate's medical notes from June 24, 2009 make clear that he was

23

complaining about foot pain that he believed was the cause of his

24

leg swelling.

25

does not support Plaintiff's contention.

26

June and July 602s and his visits with medical staff focus almost

27

exclusively on his concerns about leg swelling and pain, which he

28

deems an emergency because such symptoms might indicate poor

The Court has reviewed the evidence and finds it

17

Instead, Plaintiff's

1

circulation that could lead to a heart attack or stroke.

2

Exs. A10, A17, A22; Bright Decl. Ex. A19.

3

from Dr. Lim-Javate are inconsequential because they indicate only

4

that Plaintiff was to be seen for "athletes' feet" and that Dr.

5

Lim-Javate was unable to see Plaintiff that day because of time

6

constraints.

7

Opp'n

Moreover, the notes

Amen. Compl. Ex. A8, Opp’n Ex. A14.

Based on the above, the Court finds that, even when the facts

8

are considered in a light most favorable to Plaintiff, he has

9

failed to raise a triable issue with respect to whether Dr. Bright

United States District Court
For the Northern District of California

10

acted with deliberate indifference to his serious medical needs.

11

Instead, the undisputed evidence shows that Dr. Bright had a

12

reasonable basis for his opinion that heart issues caused

13

Plaintiff’s swelling and that a referral to a podiatrist was not

14

indicated.

15

problems were podiatric, the delay in providing specialist

16

treatment did not amount to deliberate indifference in view of the

17

unavailability of a podiatrist at CTF because of staffing

18

constraints and the non-emergency nature of the condition.

19

Accordingly, summary judgment is GRANTED in favor of Dr. Bright.

20

Even if Dr. Bright had believed that Plaintiff's

2.

Dr. Sepulveda

21

The undisputed evidence shows that Dr. Sepulveda was CMO at

22

CTF from July 2009 through September 2009, and that from October

23

2009 through December 2010 he was CMO at Salinas Valley State

24

Prison and had no affiliation with CTF.

25

Sepulveda never personally treated Plaintiff.

26

¶ 10.

27

medical care were limited to his first and second level responses

28

to Plaintiff's June 602, on July 27 and August 25, 2009,

Sepulveda Decl. ¶ 2.

Dr.

Sepulveda Decl.

His interactions with Plaintiff concerning inadequate

18

1

respectively.
Plaintiff claims Dr. Sepulveda acted with deliberate

3

indifference to his serious medical needs when, in the second

4

level response to Plaintiff's June 602 on August 25, 2009, Dr.

5

Sepulveda failed to address the fact that, on that same date, Dr.

6

Bright had denied the RFS referral to a podiatrist.

7

maintains this shows Dr. Sepulveda intentionally disregarded

8

Plaintiff's need to see a podiatrist.

9

argues that Dr. Sepulveda should have addressed the issue and

10
United States District Court
For the Northern District of California

2

ensured that Plaintiff see a podiatrist because Dr. Sepulveda

11

knew, from Plaintiff's medical records, that the leg swelling was

12

not related to a heart condition.

13

Plaintiff

Additionally, Plaintiff

The evidence does not support Plaintiff's contentions.

The

14

record shows that on August 25, 2009, Dr. Sepulveda partially

15

granted Plaintiff's June 602 requesting adequate medical care for

16

his leg pain and swelling because Dr. Sepulveda determined that

17

Plaintiff was receiving adequate care.

18

Dr. Sepulveda noted that, on August 20, 2009, "an RFS for stress

19

test and podiatry consult were ordered" and that "[a]ll RFS

20

requests will be reviewed by the Chief Physician & Surgeon for

21

InterQual criteria and approval/denial."

22

Further, in the response,

Sepulveda Decl. Ex. A9.

Contrary to Plaintiff's assertion that this response shows

23

that Dr. Sepulveda intentionally disregarded Dr. Bright's denial

24

of the RFS, it shows only that Dr. Sepulveda was not aware of the

25

denial, which Dr. Bright issued the same day that Dr. Sepulveda

26

issued the second level response.

27

to have acted with deliberate indifference simply because he

28

responded to Plaintiff's 602 without being aware of Dr. Bright's
19

Dr. Sepulveda cannot be found

1

denial of the RFS.

2

1988) (finding no constitutional right to the proper functioning

3

of a prison administrative appeal system).

4

See Mann v. Adams, 855 F.2d 639, 640 (9th Cir.

Plaintiff also argues Dr. Sepulveda should have ensured that
he be seen by a podiatrist because he knew, based on Plaintiff's

6

medical records, that Plaintiff's complaints of leg swelling and

7

pain were not related to a heart condition.

8

Plaintiff's medical records showing complaints of chest pain and

9

heart palpitations as well as his medication for high cholesterol

10
United States District Court
For the Northern District of California

5

and blood pressure, it was not unreasonable for Dr. Sepulveda to

11

conclude that the swelling and pain might be related to heart

12

issues.

13

that, in addition to a possible heart condition, Plaintiff’s

14

swelling could have been the result of the beta blockers he took

15

as blood pressure medication.

16

doctors stopped Plaintiff’s beta blockers on September 12, 2009,

17

but continued to monitor his heart issues.

18

10.

19

Sepulveda Decl. ¶¶ 5-8.

However, based on

Further, Dr. Sepulveda surmised

Consequently, as noted above, CTF

Sepulveda Decl. ¶¶ 9-

Based on the above, the Court finds Plaintiff has failed to

20

raise a triable issue with respect to whether Dr. Sepulveda acted

21

with deliberate indifference to his serious medical needs.

22

Instead, the evidence shows a difference of opinion which was

23

neither medically unacceptable nor held "in conscious disregard of

24

an excessive risk” to Plaintiff's health.

25

1058.

26

Sepulveda.

Toguchi, 391 F.3d at

Accordingly, summary judgment is GRANTED in favor of Dr.

27

//

28

//
20

1
2

3.

Dr. Chudy

Plaintiff alleges that Dr. Chudy acted with deliberate

3

indifference to his serious medical needs by failing to ensure

4

that he see a podiatrist between August 20, 2009 -- when NP Koziol

5

submitted the RFS -- and September 9, 2010.

6

undisputed that Dr. Chudy served as CMO at CTF from July 2006

7

through November 2010 and was on medical leave from July 2009

8

through September 2009.

9

period Dr. Sepulveda was acting CMO.

United States District Court
For the Northern District of California

10

The evidence is

As noted above, during that three month

It also is undisputed that Dr. Chudy never personally treated

11

Plaintiff.

12

involvement in Plaintiff's medical care was limited to the

13

following.

14

Instead, the evidence shows that Dr. Chudy's

On November 19, 2009, Dr. Chudy spoke with the PLO regarding

15

Plaintiff's leg swelling.

16

was a side effect of the beta blockers that were stopped on

17

September 9, 2009.

18

treatment of Plaintiff's leg swelling as a symptom of underlying

19

heart issues.

20

He advised the PLO that the swelling

He also discussed the CTF medical team's

Chudy Decl. ¶ 13a.

On January 7, 2010, Dr. Chudy spoke a second time with the

21

PLO regarding Plaintiff's complaints of chest pains and leg pain

22

and swelling.

23

Plaintiff's records did not suggest serious heart disease, he also

24

noted that the combination of chest pain and leg swelling made it

25

difficult to rule out the possibility.

26

Although he previously told the PLO that

Chudy Decl. ¶ 13b.

Thereafter, on November 23, 2009, Plaintiff requested new

27

orthopedic shoes because his arch supports were not working.

28

Chudy Decl. ¶ 7 & Ex. A26.

On December 3, 2009, Plaintiff was
21

1

seen by his treating physician, Dr. Jamari, who approved his

2

request for new orthopedic inserts.

3

received the inserts from the specialty clinic on December 18,

4

2009.

5

appeal concerning his foot pain until June 10, 2010, when he

6

complained that the arch supports were not alleviating his

7

symptoms.

8

primary care physician, who recommended that he be seen by a

9

podiatrist.

Id. & Ex. A28.

Id. & Ex. A 22.

Plaintiff

Plaintiff did not file another medical

Chudy Decl. ¶ 8 & Ex. A31.

Id. & Ex. A32.

On June 21, he saw his

On July 7, 2010, Dr. Chudy approved

United States District Court
For the Northern District of California

10

the referral to a podiatrist, and on July 8 he partially granted

11

Plaintiff's most recent medical appeal to see a podiatrist.

12

that point in time, Plaintiff's medical records showed a decreased

13

likelihood that his swelling was a symptom of heart disease.

14

& Ex. A19.

15

At

Id.

Plaintiff was seen by the podiatrist, Dr. Kristal, on July

16

22, 2010, and x-rays of his feet were ordered.

17

¶ 13c & Ex. A35.

18

showed bunions.

19

Dr. Kristal submitted a referral for Plaintiff to be seen by a

20

specialist in order to obtain “functional orthotics” for his feet.

21

Amen. Compl. Ex. A20.

22

Plaintiff concerning his request for a permanent lower bunk chrono

23

because of his foot condition.

24

having bilateral subtalar joint coalition with chronic foot pain,

25

and determined that he required orthotics and a lower bunk chrono.

26

Opp’n Ex. A38.

27

and orthotic consultant Dr. Furushiko, who found that Plaintiff

28

had “significant pronated feet” and poorly fitted shoes; he

Chudy Decl.

The x-rays were taken on July 27, 2010 and
Chudy Decl. ¶ 9 & Ex. A36.

On September 9, 2010,

On March 29, 2011, Dr. Kristal saw

Dr. Kristal assessed Plaintiff as

On May 26, 2011, Plaintiff was seen by prosthetic

22

1

recommended that Plaintiff receive customized orthotics and “extra

2

depth” shoes to accommodate them.

3

Opp'n Ex. A37.

Plaintiff argues Dr. Chudy acted with deliberate indifference
to his serious medical needs because he had a duty to ensure that

5

Plaintiff saw a podiatrist.

6

communications with the PLO and his decision to issue arch

7

supports show that he knew Plaintiff’s swelling was not caused by

8

heart issues.

9

Chudy communicated with the PLO he was of the opinion that

10
United States District Court
For the Northern District of California

4

Plaintiff's complaints of leg swelling and pain were heart-

11

related.

12

documented history of high blood pressure, high cholesterol, heart

13

palpitations and chest pains.

14

podiatrist was not readily available for routine visits and that

15

staff physicians were required to evaluate and treat prisoners for

16

non-emergency foot-related complaints.

17

after having received orthopedic arch supports on December 18,

18

2009, complained, six months later, on June 10, 2010, that they

19

weren't working, Dr. Chudy, on July 7, 2010, approved the request

20

for Plaintiff to see a podiatrist, which visit took place on July

He claims that Dr. Chudy's

The evidence, however, shows that at the time Dr.

This opinion was reasonable based on Plaintiff's

Dr. Chudy also was aware that the

21
22
23
24
25
26
27
28
23

Moreover, when Plaintiff,

1

22, 2010.3

2

Based on the above, the Court finds that, even when viewed in

3

the light most favorable to Plaintiff, the evidence fails to raise

4

a triable issue of fact with respect to whether Dr. Chudy acted

5

with deliberate indifference to Plaintiff's serious medical needs.

6

Instead, the evidence shows that Dr. Chudy's decisions pertaining

7

to Plaintiff's medical care were reasonable and not made in

8

conscious disregard of an excessive risk to Plaintiff's health.

9

Toguchi, 391 F.3d at 1058.

Accordingly, summary judgment is

United States District Court
For the Northern District of California

10

GRANTED in favor of Dr. Chudy.

11

V.

12
13

Qualified Immunity
All Defendants argue that they are entitled to qualified

immunity.

The defense of qualified immunity protects “government

14
3

15
16
17
18
19
20
21
22
23
24
25
26
27

Plaintiff's evidence that Dr. Kristal, in September 2010,
assessed him as having subtalar joint coalition does not change
the result. Dr. Chudy's concern that Plaintiff's leg swelling and
pain might be heart-related was reasonable, even if some other
foot condition later was diagnosed. Moreover, according to Dr.
Chudy, subtalar joint coalition -- a bridge between the bones in
the rear foot -- is an extremely rare genetic condition that
typically presents as mild pain and discomfort, inflammation,
recurrent sprains in the foot, or other foot abnormalities, and
does not cause leg swelling. Chudy Decl.
¶¶ 9-10. Because of
the statistical infrequency of subtalar joint coalition and the
fact that the “bone bridge” did not appear in the x-rays of
Plaintiff’s feet taken on July 27, 2010, Dr. Chudy maintains that
it is unlikely that he suffers from this condition. But, even if
he does, many people live with the condition for their entire
lives without receiving treatment other than over-the-counter
orthotic inserts. Id. Therefore, Dr. Chudy opines that Plaintiff
received appropriate treatment by being provided with arch
supports in December 2009, a podiatrist visit in July 2010, and a
referral to an orthotics specialists in September 2010. Id.
Plaintiff presents no medical evidence that calls Dr. Chudy's
opinion in this regard into question.

28
24

1

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

2

conduct does not violate clearly established statutory or

3

constitutional rights of which a reasonable person would have

4

known.”

5

threshold question in qualified immunity analysis is: “Taken in

6

the light most favorable to the party asserting the injury, do the

7

facts alleged show the officer’s conduct violated a constitutional

8

right?”

9

dispositive inquiry in determining whether a right is clearly

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

Saucier v. Katz, 533 U.S. 194, 201 (2001).

The

The relevant,

United States District Court
For the Northern District of California

10

established is whether it would be clear to a reasonable defendant

11

that his conduct was unlawful in the situation he confronted.

12

at 202.

Id.

13

On the facts presented herein, viewed in the light most

14

favorable to Plaintiff, Defendants prevail as a matter of law on

15

their qualified immunity defense because the record establishes no

16

constitutional violation.

17

occur, however, Defendants reasonably could have believed their

18

conduct was lawful.

19

Defendants that they failed to take reasonable steps to abate a

20

substantial risk of harm to Plaintiff by providing him with the

21

above-described care and treatment for his complaints of leg

22

swelling and pain.

Even if a constitutional violation did

Specifically, it would not have been clear to

23

Accordingly, Defendants are entitled to qualified immunity,

24

and their motion for summary judgment is GRANTED for this reason

25

as well.

26
27

CONCLUSION
For the foregoing reasons, the Court orders as follows:

28
25

1
2
3
4
5
6
7

1.

Summary judgment is GRANTED in favor of all Defendants.

(Docket no. 26.)
2.

Plaintiff’s motions for judicial notice are DENIED.

(Docket nos. 17, 18, 19.)
3.

Defendants' motion to file an amended answer to the

amended complaint is GRANTED. (Docket no. 23.)
The Clerk of the Court shall enter judgment in favor of

8

Defendants and close the file.

9

costs.

All parties shall bear their own

United States District Court
For the Northern District of California

10

This Order terminates Docket nos. 17, 18, 19, 23 and 26.

11

IT IS SO ORDERED.

12
13

Dated: 3/31/2013
4/1/2013

CLAUDIA WILKEN
United States District Judge

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