Smith v. Adams et al

Filing 61

ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT; ADDRESSING NON-DISPOSITIVE AND DISCOVERY-RELATED MOTIONS. Signed by Judge Claudia Wilken on 3/26/2013. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 3/26/2013)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 JARMAAL SMITH, Plaintiff, 5 6 7 8 9 No. C 10-4389 CW (PR) ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; ADDRESSING NON-DISPOSITIVE AND DISCOVERY-RELATED MOTIONS v. DR. NANCY ADAM, et al., (Docket nos. 27, 31, 33, 34, 35, 36, 42, 50, 52, 53) Defendants. ________________________________/ United States District Court For the Northern District of California 10 11 12 INTRODUCTION Plaintiff, a state prisoner incarcerated at Pelican Bay State 13 Prison (PBSP), filed this pro se civil rights action pursuant to 14 42 U.S.C. § 1983, alleging deliberate indifference to his serious 15 medical needs by medical practitioners at PBSP. 16 Defendants Dr. Nancy Adam, Family Nurse Practitioner (FNP) 17 Sue Risenhoover, Registered Nurse (RN) Joseph Escobar, and 18 Licensed Vocational Nurses (LVN) Rebecca Stone and Andrey Andrsh 19 have filed a motion for summary judgment. 20 the motion and Defendants have filed a reply. 21 various non-dispositive motions filed by the parties. 22 23 Plaintiff has opposed Also pending are For the reasons discussed below, the Court GRANTS Defendants’ motion for summary judgment. 24 BACKGROUND 25 The following facts are taken from the parties’ verified 26 pleadings, declarations and attached documentary evidence. 27 are undisputed unless otherwise noted. 28 They Since February 2006, Plaintiff has been treated by prison 1 1 doctors for his intermittent migraine headaches and facial nerve 2 twitching. 3 he was prescribed the following medications at the noted 4 correctional institutions for his headaches: 5 High Desert State Prison: 6 2/06 - Motrin 400 mgs., Naproxen 500 mgs. 7 California State Prison-Sacramento: 8 8/06 - Robaxin 50 mg. 9 9/06 - Elavil 10-25 mg. His medical records reflect that, through July 2008, United States District Court For the Northern District of California 10 11/06 - Naproxen 500 mgs., Tylenol 975 mgs. 11 1/07 - Isomethept/Dichloralph 12 2/07 - Midrin, Tramadol 50 mg., Naproxen 500 mgs. 13 California Substance Abuse Treatment Facility (CSATF): 14 5/07 - Ultram 50 mg. 15 7/07 - Robaxin 750 mgs., Methocarbamol 750 mgs. 16 9/07 - Methocarbamol 750 mgs., Ultram 50 mgs., Tramadol 50 mgs. 17 10/07 - Methocarbamol 750 mg. 18 11/07 - Imitrex 100 mg., Methocarbamol 750 mg. 19 12/07 - Motrin 800 mg. 20 California State Prison-Corcoran (Corcoran): 21 5/08-6/08 - Acetaminophen/Codein no. 3, Ibuprofen 800 mgs. 22 7/08 - Acetaminophen/Codein no. 3, Ibuprofen 800 mgs., Tramadol 30 mgs. 23 24 25 Pl.’s Decl. Supp. Opp’n Summ. J. (Pl.’s Decl.) ¶ 41. In December 2007, a doctor at CSATF referred Plaintiff for a 26 neurology consultation for his complaints of facial numbness and 27 twitching. 28 Corcoran before the consultation took place. Opp’n Ex. J at 181. Plaintiff was transferred to 2 On August 12, 2008, 1 while incarcerated at Corcoran, Plaintiff had a neurologic 2 consultation. 3 presenting illness as follows: 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 The consulting neurologist described Plaintiff’s This is a 27-year-old male who is complaining of twitching of various portions of the body. He also complains of some headaches. Apparently in 2006, was stabbed on the left cheek and subsequently began having facial twitching. The twitching, however, extended to the rest of the head, the throat, the neck, and the upper and lower extremity. The patient had an electrodiagnostic studies [sic] done by Dr. Lin and there was normal nerve conduction study of the left upper extremity and of the left face. He was placed on Neurontin but did not tolerate it because of nausea, vomiting and of abdominal pains. The patient complains of numbness in various portions to the body. In 2006, had an MRI scan because “he was assaulted by a C.O.” The scan was reportedly negative although we do not have the formal report. The patient also complains of chest pains and was recently sent to a hospital for a same workup, it was negative but he is now complaining of numbness of the veins where he had been punctured. Opp’n Ex. K at 188. The neurologist’s examination of Plaintiff was unremarkable. 17 He summarized his impressions as follows: “Diffuse twitching and 18 total headache etiology unclear.” 19 that Plaintiff be prescribed Lyrica, 50 mg. four times a day, “to 20 see if this neurotic pain and the twitching might respond.” 21 Lyrica is used to treat pain from damaged nerves. 22 recommended blood tests and an MRI scan of Plaintiff’s head. 23 Id. at 189. He recommended Id. He also In early September 2008, Plaintiff’s physician at Corcoran 24 prescribed Gabapentin, 300 mg. three times a day, for Plaintiff. 25 Opp’n Ex. K at 190. 26 that is approved to prevent seizures and treat post-herpetic 27 neuralgia. 28 Decl.) ¶ 6 & Ex. A. Gabapentin (brand name Neurontin) is a drug Decl. Michael Sayre, M.D., Supp. Mot. Summ. J. (Sayre Headaches and neuropathic pain are off-label 3 1 uses of Gabapentin. 2 continued his prescriptions to treat his headaches with 3 Acetaminophen/Codein no. 3 four times a day, and Ibuprofen, 800 4 mgs. four times a day. 5 the doctor increased the Gabapentin prescription to 600 mgs. three 6 times a day “for facial twitching” and prescribed Tramadol, a pain 7 reliever, 50 mgs. four times a day, for Plaintiff’s headaches. 8 Id. at 193. 9 Id. Additionally, Plaintiff’s doctor Opp’n Ex. K at 192. In November 2008, Plaintiff was transferred to PBSP on December 2, 2009. United States District Court For the Northern District of California 10 Pursuant to California Department of Corrections and 11 Rehabilitation (CDCR) policy, his existing prescriptions were 12 continued for thirty days upon his arrival. 13 liquid form of Gabapentin was ordered, which equaled 16 cc three 14 times a day. 15 (Ly Decl.) Ex. A. 16 Sayre Decl. ¶ 3. The Id. & Decl. Valerie Ly, Esq., Supp. Mot. Summ. J. On December 22, 2009, FNP Risenhoover, with the approval of 17 Dr. Sayre, the Chief Medical Officer at PBSP, changed the order 18 for Gabapentin to be given two times a day instead of three. 19 Decl. Exs. B & E. 20 to twice a day because a third pill pass was not indicated for 21 Plaintiff’s case. 22 an extraordinary staff effort that must have significant benefit 23 to be justified. 24 days. 25 Ly According to Dr. Sayre, the order was changed Sayre Decl. ¶ 4. Id. At PBSP, a third pill pass is The new prescription was ordered for seven Ly Decl. Ex. B. LVNs Andrsh and Stone were two of the nurses who administered 26 the Gabapentin. 27 December 22 and 23, LVN Stone gave him only 14 cc of the drug, 28 instead of the prescribed 16 cc, and that LVN Andrsh did the same Plaintiff filed grievances complaining that, on 4 1 2 on December 25. Ly Decl. Exs. C & D. The Gabapentin was discontinued on December 29, 2009, by FNP 3 Risenhoover and Dr. Sayre’s orders, for the reason that it was not 4 medically indicated for Plaintiff’s condition. 5 Ly Decl. Ex B. 6 7 8 9 United States District Court For the Northern District of California 10 11 12 Sayre Decl. ¶ 25; As explained by Dr. Sayre in his declaration: Mr. Smith’s original prescription for Gabapentin in 2008 was for an off-label use of neuropathy. However, recent medical research has shown that Gabapentin is not truly effective for most cases of neuropathy. Gabapentin is currently only approved for adjunctive therapy for seizures and post-herpetic neuralgia and, as such, have the evidenced base documentation to support use [sic]. Headaches and neuropathic pain are off-label uses of Gabapentin and have no evidence based documentation to support its use [sic]. Sayre Decl. ¶ 6. In support of his declaration, Dr. Sayre has attached a 13 medical article published in May 2010 that discusses the results 14 15 of several medical studies on the off-label use of Gabapentin for, among other things, neuropathic pain and migraine symptoms. Based 16 on these studies, the article concludes that such off-label uses 17 provide questionable benefit and can increase the potential for 18 harmful side effects for the patient. 19 Sayre Decl. Ex. A. Dr. Sayre further explains in his declaration that it is CDCR 20 practice “to not prescribe medication for off-label use unless 21 there is documented evidence based need” and it is “established 22 CDCR pharmacy and formulary policy to use evidence based medicine 23 and prescribing practices.” 24 statement, Dr. Sayre has attached to his declaration the CDCR 25 policy on off-label use of prescription medications, which 26 provides as follows: 27 28 I. Sayre Decl. ¶ 7. In support of his Definitions Off-label use: use of a drug for an indication not 5 listed in doses not of a drug listed in 1 2 3 II. Policy 4 The off-label use of a drug shall be based on sound scientific evidence, expert medical judgment, or published literature and should be done in good faith with the safety and best interest of the patient-inmate in mind. All efforts should be made to utilize drug regimens approved by the Food and Drug Administration before using an off-label drug. A risk-benefit assessment must prove the off-label use would represent a significant medical advantage to the patient-inmate and outweigh all potential negative outcomes. The practitioner who prescribes a drug is responsible for deciding which drug to use, the dosing regimen and the indication for use in each patient inmate. The decision should be made based on information contained in the drug’s label. 5 6 7 8 9 10 United States District Court For the Northern District of California the package labeling, use of a drug at supported in the package labeling, or use in the presence of a contraindication the package labeling. 11 12 Sayre Decl. Ex. B. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 On January 5, 2010, Plaintiff was seen by Dr. Adam. He complained of severe headaches every one to three months and nerve twitching. According to Dr. Adam’s progress notes of the meeting, Plaintiff told her that he had been prescribed Neurontin (Gabapentin) in 2008, which “helped his nerve twitching” when he was taking 800 mg. twice a day, “but did not help his headaches,” and that since his prescription had been discontinued on December 29, “he has had daily episodes of twitching on his face, scalp, throat.” Ly Decl. Ex. F at 1. Plaintiff asked for a prescription for Gabapentin and to see a specialist for his headaches and nerve twitching. Compl. ¶ 22. He also asked for a prescription for Tylenol #3 (with codeine) for his headaches. Ly Decl. Ex. F at 1. After examining Plaintiff, Dr. Adam wrote that he suffered from headaches, possibly migraine, occurring only every one to two months and that he did not have neurological symptoms, such as 28 6 1 localized weakness or vision changes, during the headaches. 2 Decl. Ex. F at 1. 3 Tylenol #3, to be taken as needed for the headaches. 4 she “warned” Plaintiff that if he used the medication 5 continuously, instead of only as needed, it would be discontinued; 6 she expected he would use approximately eight doses a month. 7 Ly Based on these observations, she prescribed In so doing, Id. Concerning Plaintiff’s nerve twitches, Dr. Adam noted that, 8 while he stated that the twitches abate with Neurontin use, 9 “Neurontin is not medically indicated for this condition.” Ly United States District Court For the Northern District of California 10 Decl. Ex. F at 1. 11 neurology specialist was not medically indicated. Decl. Nancy 12 Adam, M.D., Supp. Mot. Summ. J. (Adam Decl.) ¶ 3. Dr. Adam wrote 13 that she would obtain Plaintiff’s entire medical chart so that she 14 could review the neurology consultation he had in 2008 and try to 15 determine whether the consultation had been for his headaches or 16 facial twitching, the reason Neurontin had been prescribed, and 17 what medications previously had been tried for his headaches. 18 Decl. Ex. F at 1-2. 19 She also determined that a consultation with a Ly On January 13, 2010, Dr. Adam determined that Plaintiff had 20 requested and received seven doses of Tylenol #3 between January 7 21 and 13, whereas she had expected him to receive at most eight 22 doses a month. 23 regularly, rather than as needed; therefore, she discontinued the 24 prescription. She concluded that he was taking the medication Adam Decl. ¶ 4. 25 On January 14, 2010, Plaintiff submitted an emergency health 26 care request asking to have his Tylenol #3 medication reinstated. 27 Compl. ¶ 135. 28 He told her that his headaches had returned since the Tylenol #3 On January 27, 2010, he was seen by Nurse Elliott. 7 1 had been discontinued, that he was experiencing continued painful 2 nerve twitching, and that he also was having chest pains. 3 Elliott scheduled him to see a physician for these concerns. 4 Decl. Ex. I. 5 Nurse Ly On February 25, 2010, Plaintiff was seen by FNP 6 Risenhoover in response to his sick call slips. 7 Plaintiff, the following occurred at that visit: he inquired why 8 he had not been seen sooner and Risenhoover replied that she “did 9 not think his condition was serious enough to warrant immediate According to United States District Court For the Northern District of California 10 attention . . . ." 11 don't believe you need Gabapentin for your condition and that 12 medication is not issued by" the CDCR. 13 also "attempted to explain to this nurse that he had recently been 14 experiencing chest pain and cramping around his heart area," that 15 in August 2008 he was hospitalized for an irregular heartbeat –- 16 the origin of which had not been determined –- and that he had 17 been advised to tell prison staff to refer him to a cardiologist. 18 Compl. ¶¶ 159-161. 19 cardiologist because his condition was getting worse, but 20 Risenhoover responded that he would have to submit another sick 21 call slip because he could only talk about one issue at a time. 22 Compl. ¶¶ 163-166. 23 reviewed his file prior to his visit. 24 don't need to, migraines are not treated with Gabapentin." 25 ¶ 169. 26 Compl ¶ 148. Risenhoover also stated, "I Compl. ¶ 153. Plaintiff He asked Risenhoover to refer him to a Plaintiff asked Risenhoover whether she had Risenhoover responded, "I Compl. She did not prescribe Plaintiff any medication. In contrast to Plaintiff’s evidence, Defendants present 27 evidence of Risenhoover’s progress notes from her February 25, 28 2010 meeting with Plaintiff, which show that she examined him, 8 1 reviewed his medical chart, including his neurology consultations 2 in 2008 and his EKG results from December 2009, informed him that 3 Gabapentin was not medically indicated, and prescribed Ergotamine 4 for his migraine headaches and Ibuprofen and Almag (an antacid) 5 for his chest pains. 6 EKG and chest x-rays. 7 the x-ray was taken on March 10, 2010, and showed that Plaintiff’s 8 heart was not enlarged and there had been no change since his last 9 chest x-ray in December 2009. United States District Court For the Northern District of California 10 Ly Decl. Ex. J. She also ordered another Plaintiff refused the EKG, id. Ex. L at 1; Id. Ex. K. On March 18, 2010, Defendant RN Escobar responded to 11 Plaintiff’s cell when he complained of chest pains. 12 told Escobar that he felt as if he had lost his breath for several 13 minutes. 14 62.1 15 reviewed his file. 16 not show an enlarged heart and that he had no shortness of breath, 17 was not gasping for air, and was speaking clearly. 18 escorted Plaintiff back to his cell without referring him for 19 further care. 20 Plaintiff Escobar took Plaintiff’s vital symptoms; his pulse was Escobar escorted Plaintiff to the medical clinic and He noted that Plaintiff’s previous x-rays did Escobar Ly Decl. Ex. L. Later that night, Plaintiff complained of dizziness and 21 shortness of breath. 22 staff and Plaintiff was seen by a nurse in the medical clinic who 23 assessed him and concluded that his symptoms did not appear to be 24 cardiac related. 25 sick call list the next day for a doctor’s appointment; he was A correctional officer contacted medical Plaintiff was told that he would be put on the 26 27 28 1 For an adult, a normal resting heart rate ranges from 60 100 beats per minute. Sayre Decl. ¶ 8. 9 1 given Almacone for indigestion and Ibuprofen for chest pain and 2 was returned to his cell. 3 Ly Decl. Ex. M. On March 23, 2010, Plaintiff was seen by a nurse for 4 complaints of cramping around the heart. 5 last chest x-ray, taken on March 2, 2010, was normal. 6 him Tylenol for pain, advised him to continue to take Almacone for 7 indigestion, and told him she would review his file and discuss 8 his complaints with his physician. 9 The nurse noted that his She gave Ly Decl. Ex. N. On April 1, 2010, Plaintiff was seen by Risenhoover for United States District Court For the Northern District of California 10 complaints of chest pains, headaches and nerve twitches. 11 requested a renewal of his prior Gabapentin prescription, saying 12 that it worked better than Tylenol #3 for his symptoms. 13 Risenhoover reviewed his medical file; she offered to prescribe 14 Ergotamine, Ibuprofen, Naprosyn and Tylenol for his headaches but 15 he refused, saying that only Gabapentin worked but he would take a 16 prescription for Tylenol #3. 17 for seven days and told him that she would refer his case to the 18 medical committee for review. 19 20 Risenhoover prescribed Tylenol #3 Ly Decl. Ex. P. On April 1 and 10, 2010, Plaintiff underwent EKGs for his chest pains. The results were unremarkable. 21 22 He Adam Decl. ¶ 5. DISCUSSION I. Non-Dispositive Motions 23 A. 24 Plaintiff originally named as a Defendant in this action LVN To Enlarge Time and Amend Complaint (Docket Nos. 31, 34) 25 “A. Anders.” 26 Defendants’ counsel represented that no individual by that name 27 ever had been employed at PBSP. 28 Plaintiff to provide the correct name and address for that In response to the Court’s Order of Service, Consequently, the Court directed 10 Defendant. 2 the Court with the requested information and, subsequently, after 3 learning the Defendant’s true identity, moved to amend his 4 complaint to add LVN Andrey Arsh as a Defendant. 5 has been served with the complaint and appeared as a Defendant in 6 this case. 7 time to discover this Defendant’s identity is DENIED as moot; his 8 motion to amend his complaint to name Andrey Arsh as a Defendant 9 is GRANTED. 10 United States District Court For the Northern District of California 1 B. 11 Early in these proceedings, Plaintiff filed a motion for a 12 preliminary injunction directing Defendants to provide him with 13 Gabapentin. 14 it had not been served on Defendants and informed Plaintiff that 15 he could file a renewed motion for preliminary injunctive relief. 16 Plaintiff moved for an extension of time to provide Since then, Arsh Accordingly, Plaintiff’s motion for an extension of Reconsideration (Docket no. 35) The Court denied the motion without prejudice because By way of the present motion for reconsideration, Plaintiff 17 objects to the Court’s direction that he file a renewed motion for 18 a preliminary injunction and asks the Court to decide his prior 19 motion on the merits. 20 because the Court, by this Order, grants Defendants’ motion for 21 summary judgment. 22 injunctive relief. 23 24 25 C. Plaintiff’s request is DENIED as moot Therefore, Plaintiff is not entitled to Discovery-Related Motions 1. Subpoena Duces Tecum (Docket no. 27) Plaintiff moves the Court, pursuant to Rule 45 of the Federal 26 Rules of Civil Procedure, to prepare, issue and serve a subpoena 27 duces tecum on a non-party, Maureen McClean, Chief Executive 28 Officer of PBSP, for the production of documents pertaining to the 11 1 investigation of his administrative appeals and other complaints 2 filed by inmates against Defendants. 3 request because Plaintiff has not used proper procedures for the 4 issuance and service of a subpoena duces tecum, and also because 5 he has not sought the requested documents from them directly 6 pursuant to Rule 34. 7 the date of his reply, he has sought the documents from Defendants 8 and they have objected to his requests on grounds of privilege. 9 Defendants object to the In response, Plaintiff asserts that, as of Defendants are correct that the Court is not responsible for United States District Court For the Northern District of California 10 preparing and serving subpoenas for Plaintiff. 11 filing of Plaintiff’s motion the parties have engaged in further 12 discovery and filed their papers in support of and in opposition 13 to Defendants’ motion for summary judgment. 14 developed by the parties, the Court finds that the documents 15 Plaintiff seeks by way of this subpoena duces tecum are not 16 relevant to a decision on the merits of his claims. 17 he does not charge any Defendant with the improper denial of an 18 administrative appeal and, as discussed in more detail below, 19 complaints brought by other inmates against Defendants are not 20 relevant to a determination whether Defendants provided him with 21 constitutionally adequate medical care. 22 motion is DENIED. 23 2. Further, since the Based on the record Specifically, Accordingly, Plaintiff’s Additional Interrogatories (Docket no. 33) 24 Plaintiff, having served Defendants Dr. Adam and FNP 25 Risenhoover with interrogatories and requests for production of 26 documents and received their responses thereto, moves to expand 27 the twenty-five interrogatory limit set forth at Rule 33(a)(1). 28 Defendants object to the request because Plaintiff already has 12 1 served on these Defendants three sets of combined interrogatories 2 and requests for production of documents that include twenty 3 interrogatories directed to each of them, he does not state how 4 many additional interrogatories he intends to propound, and he 5 does not make a particularized showing demonstrating the need for 6 additional interrogatories. 7 motion is DENIED. 8 9 3. The Court agrees. Accordingly, the Deposition of Dr. Adam (Docket nos. 36, 42) Prior to the filing of Defendants’ motion for summary United States District Court For the Northern District of California 10 judgment, Plaintiff moved for leave of court to take the oral 11 deposition of Dr. Adam. 12 because of the parties’ failure to meet and confer to resolve the 13 discovery matter out of court. 14 right to discovery in this regard could be accommodated by way of 15 written depositions conducted pursuant to Rule 31, and stated that 16 it would modify that procedure to allow the deponents to provide 17 written answers to the written deposition questions. 18 Plaintiff informed Defendants’ counsel of his intent to depose Dr. 19 Adam orally. 20 questions could be answered through interrogatories or the 21 deposition could be conducted via written deposition, as provided 22 in the Court’s order. 23 The Court denied the motion as premature The Court noted that Plaintiff’s Thereafter, Defendants’ counsel responded that Plaintiff’s Plaintiff then filed the instant motion for leave of Court to 24 take the tape-recorded deposition of Dr. Adam at PBSP. 25 oppose the motion and also seek a protective order precluding the 26 deposition. 27 not complied with Court’s discovery schedule for noticing a 28 deposition and that allowing him to depose Dr. Adam orally would Defendants Specifically, Defendants object that Plaintiff has 13 1 impose undue burden and expense on Defendants and the CDCR, 2 including: transportation of Plaintiff to and from the deposition, 3 providing security for the deposition, providing the means of 4 recording the deposition, and transcribing the deposition. 5 Further, Defendants assert that the information Plaintiff seeks by 6 way of the deposition either already has been provided to him in 7 response to his discovery requests or could be provided to him by 8 way of written deposition. 9 A plaintiff has no absolute right to attend a deposition in United States District Court For the Northern District of California 10 his action. 11 many privileges and rights, including the right under 28 U.S.C. 12 § 1654 of parties to plead and manage their own causes personally. 13 See In re Terry L. Collins, 73 F.3d 614, 615 (6th Cir. 1995) 14 (citing Price v. Johnston, 334 U.S. 266, 285-86 (1948)). 15 determining whether to permit an inmate to attend pretrial 16 depositions, the court should consider the costs and security 17 risks involved in transporting the inmate to the deposition site 18 and in maintaining his presence at the deposition, the importance 19 of the testimony of the deponent to the claims alleged, the need 20 for the inmate to be physically present during the deposition, the 21 inmate's individual security history, general security issues, and 22 the availability of alternative means to accommodate the concerns 23 of both the inmate and the prison officials. 24 Lawful incarceration results in the limitation of In See id. at 615. The Court finds that in view of the undisputed evidence of 25 security concerns and expenses detailed by Defendants and 26 Plaintiff’s ability to obtain the information he seeks from Dr. 27 Adam by other means, allowing him to depose Dr. Adam orally in 28 this case is not warranted. Accordingly, Plaintiff’s motion is 14 1 DENIED and Defendants’ motion for a protective order is GRANTED. 2 3 4. Motion to Compel (Docket no. 52) Plaintiff has filed a motion to compel responses to 4 interrogatories and requests for production of documents to which 5 Defendants have asserted objections. 6 motion. 7 8 9 a. Defendants oppose the Accusations/Lawsuits By Other Inmates In Plaintiff’s interrogatory numbers 2 to Dr. Adam, 2 to FNP Risenhoover, 2 to RN Escobar and 1 to LVN Stone, he inquires United States District Court For the Northern District of California 10 whether they have been accused of negligence or cruel and unusual 11 punishment by any inmate. 12 Adam, 3 and 4 to FNP Risenhoover, and 3 and 4 to RN Escobar he 13 inquires whether they ever have been sued by any inmate and, if 14 so, the nature of the claim asserted in the lawsuit. 15 interrogatory numbers 4-6 to LVN Stone he inquires whether any 16 inmate has lodged a complaint against Stone concerning a failure 17 to provide medication. 18 relevant because it will establish Defendants’ motive or intent. In interrogatory numbers 3 and 4 to Dr. In Plaintiff claims this information is 19 Defendants object to these requests on the grounds they seek 20 character evidence and information that is not relevant or likely 21 to lead to the discovery of admissible evidence, is beyond the 22 scope of permissible discovery pursuant to Rule 26, seeks 23 confidential information that is protected by Defendants’ and 24 third parties’ rights of privacy, and is unduly burdensome. 25 The Court agrees with Defendants that evidence of medical 26 accusations and/or complaints made by other inmates is irrelevant 27 and not reasonably calculated to lead to the discovery of 28 admissible evidence concerning Defendants’ motive or intent with 15 1 respect to their treatment of Plaintiff. 2 against Defendants are based on his own medical treatment. 3 Accusations of negligence and/or a violation of the Eighth 4 Amendment or lawsuits filed by other inmates fail to evidence 5 Defendants’ liability toward Plaintiff. 6 not demonstrated that his need for the information, which concerns 7 the medical care of other inmates, outweighs the privacy rights of 8 Defendants and the inmates making the accusations. 9 are also overbroad as to time and scope and would impose an undue Plaintiff’s claims Further, Plaintiff has The requests United States District Court For the Northern District of California 10 burden on Defendants. 11 Plaintiff’s contention that information about other complaints 12 lodged against LVN Stone for failure to provide medication is 13 relevant to his retaliation claim against Stone, because that 14 claim was dismissed by the Court. 15 with respect to these interrogatories is DENIED. 16 17 b. Additionally, there is no merit to Accordingly, Plaintiff’s motion Defendants’ Employment History In Plaintiff’s interrogatory numbers 12 to Dr. Adam, 14 to 18 FNP Risenhoover, 5 to RN Escobar and 7 to LVN Stone, he inquires 19 about their employment histories prior to working at PBSP. 20 interrogatory numbers 10-13 to FNP Risenhoover, 6-8 to RN Escobar 21 and 2 to LVN Stone, he inquires whether they were terminated from 22 any previous employment. 23 that would show whether similar misconduct occurred at any medical 24 facilities that previously employed Defendants. 25 In Plaintiff states he is seeking evidence Defendants object to these requests on the grounds they seek 26 information that is not relevant, is not likely to lead to the 27 discovery of admissible evidence, is beyond the scope of 28 permissible discovery pursuant Rule 26, and is confidential and 16 1 2 protected under the official information privilege. The Court finds the requested information is not discoverable 3 because it is inadmissible character evidence and is not relevant 4 to any claim or defense in this case. 5 histories do not make the facts alleged by Plaintiff more or less 6 probable and are of no consequence in determining whether 7 Defendants acted with deliberate indifference to Plaintiff’s 8 serious medical needs. 9 respect to these interrogatories is DENIED. United States District Court For the Northern District of California 10 11 c. Defendants’ employment Accordingly, Plaintiff’s motion with Defendants’ Medical Education In interrogatory numbers 14 to Dr. Adam and 18–19 to FNP 12 Risenhoover Plaintiff generally inquires about the education 13 required to become a neurologist, nurse practitioner and 14 physician’s assistant. 15 show that Dr. Adam does not have the education of a neurologist 16 and that FNP Risenhoover has less knowledge than Dr. Adam. 17 also claims that FNP Risenhoover’s lack of education should have 18 caused her to defer to the neurologist’s recommendation. He claims the information is relevant to He 19 Defendants object to this request on the grounds that it 20 seeks information that is not relevant, not likely to lead to the 21 discovery of admissible evidence, and is beyond the scope of 22 permissible discovery pursuant to Fed. R. Civ. P. 26. 23 Plaintiff has failed to show how knowledge of these 24 Defendants’ educational backgrounds would lead to the discovery of 25 admissible evidence relevant to his claims against them. 26 by Defendants, Dr. Adam does not contend that she is a neurologist 27 or has the education of one, consequently, she cannot comment on 28 the education required to become a neurologist. 17 As noted Further, FNP 1 Risenhoover does not contend that she is a physician. 2 provided Plaintiff with showing that Dr. Adam is a licensed 3 physician and FNP Risenhoover is a licensed family nurse 4 practitioner. 5 medicine is not contested. 6 Opp’n Ex. H. Defendants Thus, their authority to practice Based on the above, the Court finds Plaintiff is not entitled 7 to receive this information from Defendants. 8 request to compel answers to these interrogatories is DENIED. 9 United States District Court For the Northern District of California 10 Accordingly, his d. Medical Records Plaintiff’s interrogatory/document request number 20 to FNP 11 Risenhoover requests a copy of an order written by her on January 12 13, 2010, discontinuing Plaintiff’s Tylenol # 3 medication. 13 Defendants object on the grounds that Plaintiff’s medical records 14 are equally available to him and that they are not in possession 15 of any such order. 16 medical records discussed in their motion for summary judgment as 17 exhibits to the motion. 18 exist, Plaintiff already has, or has access to the documents 19 requested. 20 contains the medication administration form for the Tylenol #3. 21 It shows that the Tylenol #3 was discontinued on January 13, 2010, 22 by Dr. Adam, not by FNP Risenhoover. 23 24 25 26 Further, Defendants included copies of the Thus, to the extent that such records In particular, Exhibit H to Defendants’ motion Based on the above, Plaintiff’s motion to compel production of this information is DENIED. e. Other Inmates’ Medication Administration Plaintiff’s interrogatory number 20 (labeled as 19) to FNP 27 Risenhoover inquires how many inmates in Plaintiff’s housing unit 28 at PBSP were receiving medication three times a day on December 18 1 22, 2009. 2 retaliation claim against Stone. 3 this claim against Stone was dismissed by the Court. 4 Plaintiff has not shown how evidence concerning whether other 5 inmates were receiving a third pill pass is relevant to his 6 medical care. 7 production of this information is DENIED. 8 Plaintiff claims this information is relevant to his Further, Accordingly, Plaintiff’s motion to compel the f. 9 As discussed above, however, Summary The Court, having reviewed the parties’ arguments and United States District Court For the Northern District of California 10 evidence in support thereof, concludes that Plaintiff is not 11 entitled to an order compelling Defendants to provide him with the 12 requested discovery. 13 discussed below, that the merits of Plaintiff’s claims are 14 amenable to decision without such information. 15 motion to compel is DENIED in its entirety. Further, the Court finds, for the reasons Accordingly, the 16 D. 17 Plaintiff has filed a motion to stay decision on the motion 18 for summary judgment pending the completion of ongoing discovery 19 and his filing of an opposition to the motion for summary 20 judgment. 21 Plaintiff’s request. 22 Motion to Stay Summary Judgment (Docket no. 53) Defendants have filed a statement of non-opposition to The motion is DENIED as moot because Plaintiff is not 23 entitled to further discovery and the motion for summary judgment 24 has been fully briefed by the parties and is ready for decision by 25 the Court. 26 of Defendants’ motion for summary judgment. 27 II. 28 Accordingly, the Court proceeds to address the merits Motion for Summary Judgment Plaintiff claims that Defendants provided him with 19 1 constitutionally inadequate medical treatment for his headaches, 2 facial nerve twitching and chest pains. 3 A. 4 Summary judgment is only proper where the pleadings, Legal Standard 5 discovery and affidavits show there is “no genuine issue as to any 6 material fact and that the moving party is entitled to judgment as 7 a matter of law.” 8 those that may affect the outcome of the case. Anderson v. 9 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a Fed. R. Civ. P. 56(c). Material facts are United States District Court For the Northern District of California 10 material fact is genuine if the evidence is such that a reasonable 11 jury could return a verdict for the nonmoving party. 12 Id. The court will grant summary judgment “against a party who 13 fails to make a showing sufficient to establish the existence of 14 an element essential to that party’s case, and on which that party 15 will bear the burden of proof at trial.” 16 Catrett, 477 U.S. 317, 322-23 (1986); see also Anderson, 477 U.S. 17 at 248 (holding fact to be material if it might affect outcome of 18 suit under governing law). 19 burden of identifying those portions of the record that 20 demonstrate the absence of a genuine issue of material fact. 21 burden then shifts to the nonmoving party to “go beyond the 22 pleadings, and by his own affidavits, or by the ‘depositions, 23 answers to interrogatories, or admissions on file,’ designate 24 ‘specific facts showing that there is a genuine issue for trial.’” 25 Celotex, 477 U.S. at 324 (citing Fed. R. Civ. P. 56(e)). 26 Celotex Corp. v. The moving party bears the initial The In considering a motion for summary judgment, the court must 27 view the evidence in the light most favorable to the nonmoving 28 party; if, as to any given fact, evidence produced by the moving 20 1 party conflicts with evidence produced by the nonmoving party, the 2 court must assume the truth of the evidence set forth by the 3 nonmoving party with respect to that fact. 4 ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). 5 a summary judgment motion is not to make credibility 6 determinations or weigh conflicting evidence with respect to a 7 disputed material fact. 8 Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 9 See Leslie v. Grupo The court’s function on See T.W. Elec. Serv. v. Pacific Elec. A district court may consider only admissible evidence in United States District Court For the Northern District of California 10 ruling on a motion for summary judgment. 11 56(e); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). 12 A verified complaint may be used as an opposing affidavit under 13 Rule 56, as long as it is based on personal knowledge and sets 14 forth specific facts admissible in evidence. 15 McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995). 16 17 18 B. See Fed. R. Civ. P. See Schroeder v. Analysis 1. Deliberate Indifference Standard Deliberate indifference to serious medical needs violates the 19 Eighth Amendment’s proscription against cruel and unusual 20 punishment. 21 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled 22 on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 23 1136 (9th Cir. 1997) (en banc). 24 indifference” involves an examination of two elements: the 25 seriousness of the prisoner’s medical need, and the nature of the 26 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. 27 A serious medical need exists if the failure to treat a 28 prisoner’s condition could result in further significant injury or 21 1 the unnecessary and wanton infliction of pain. 2 of an injury that a reasonable doctor or patient would find 3 important and worthy of comment or treatment, the presence of a 4 medical condition that significantly affects an individual’s daily 5 activities, or the existence of chronic and substantial pain are 6 examples of indications that a prisoner has a serious need for 7 medical treatment. 8 9 Id. The existence Id. at 1059-60. A prison official is deliberately indifferent if he knows that a prisoner faces a substantial risk of serious harm and United States District Court For the Northern District of California 10 disregards that risk by failing to take reasonable steps to abate 11 it. 12 official must not only “be aware of facts from which the inference 13 could be drawn that a substantial risk of serious harm exists,” 14 but he “must also draw the inference.” 15 deliberate indifference to be established, therefore, there must 16 be a purposeful act or failure to act on the part of the defendant 17 and resulting harm. 18 Farmer v. Brennan, 511 U.S. 825, 837 (1994). Id. The prison In order for See McGuckin, 974 F.2d at 1060. Deliberate indifference may be shown when prison officials 19 deny, delay or intentionally interfere with medical treatment, or 20 it may be shown in the way in which they provide medical care. 21 See id. at 1062. 22 prisoner-patient and prison medical authorities regarding 23 treatment nor a showing of nothing more than a difference of 24 medical opinion as to the need to pursue one course of treatment 25 over another is sufficient to establish deliberate indifference. 26 See Toguchi v. Chung, 391 F.3d 1051, 1059-60 (9th Cir. 2004). 27 order to prevail on a claim involving choices between alternative 28 courses of treatment, a plaintiff must show that the course of But neither a difference of opinion between a 22 In 1 treatment the doctors chose was medically unacceptable under the 2 circumstances, and that they chose this course in conscious 3 disregard of an excessive risk to the plaintiff’s health. 4 1058. Further, individual defendants cannot be held liable for 5 acting with deliberate indifference when they are unable to render 6 or cause to be rendered medical treatment because of a lack of 7 resources that is not within their power to cure. 8 Dillard, 704 F.3d 1124, 1129 (9th Cir. 2013). 9 United States District Court For the Northern District of California 10 11 2. Id. at Peralta v. Plaintiff’s Claims a. Headaches and Facial Twitching Defendants maintain that Plaintiff’s headaches and facial 12 twitching do not constitute a serious medical need, but offer no 13 argument to support their contention. 14 detailed above, the Court finds Plaintiff has shown that he has a 15 serious medical need. 16 17 i. Based on the evidence LVN Stone and LVN Andrsh Plaintiff alleges LVN Stone and LVN Andrsh were deliberately 18 indifferent for allegedly administering 2 cc less than the correct 19 dosage of Gabapentin on three occasions. 20 viewed in a light most favorable to Plaintiff, they fail to 21 establish that these Defendants acted with deliberate indifference 22 to Plaintiff’s serious medical needs. 23 establish that Defendants’ alleged actions were, if anything, 24 isolated occurrences of neglect that do not rise to the level of 25 an Eighth Amendment violation. 26 614, 617 (9th Cir. 1990) (repeatedly failing to satisfy requests 27 for aspirins and antacids to alleviate headaches, nausea and pains 28 is not constitutional violation; it may constitute grounds for Even when the facts are Instead, the facts See O’Loughlin v. Doe, 920 F.2d 23 1 medical malpractice but does not rise to level of unnecessary and 2 wanton infliction of pain). 3 establish deliberate indifference to serious medical needs. 4 Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). 5 Moreover, Plaintiff concedes that Defendants’ actions did not 6 result in “any measurable injury” to him. Negligence is insufficient to See Opp’n at 13:5-6. 7 Because Plaintiff has failed to raise a triable issue of 8 material fact with respect to whether Defendants Stone and Andrsh 9 acted with deliberate indifference to his serious medical needs, United States District Court For the Northern District of California 10 summary judgment is GRANTED to these Defendants on this claim. 11 12 ii. Dr. Adam and FNP Risenhoover Plaintiff claims that Defendants Dr. Adam and FNP Risenhoover 13 provided constitutionally inadequate medical care by refusing to 14 renew his Gabapentin prescription to treat his headaches and 15 facial nerve twitching. 16 was recommended by a neurologist and prescribed by prison doctors 17 at Corcoran, Defendants acted with deliberate indifference by not 18 following suit. 19 were reasonable and in accordance with CDCR policy and accepted 20 medical standards of care. 21 Defendants have provided the declarations of Dr. Adam and Dr. 22 Sayre and supporting documents from Plaintiff’s medical records. 23 He argues that, because such medication Defendants contend, however, that their actions In support of their assertions, According to the evidence provided by the parties, 24 Plaintiff’s original prescription for Gabapentin in 2008 was for 25 an off-label use for neuropathy. 26 assertions, the evidence does not show that prior to his transfer 27 to PBSP he was prescribed Gabapentin by prison doctors at Corcoran 28 to treat what had been diagnosed as migraine headaches. Contrary to Plaintiff’s 24 Instead, 1 the record shows that after the neurologist’s recommendation that 2 Plaintiff be treated with Lyrica, a drug that is used to treat 3 pain from damaged nerves, prison doctors at Corcoran prescribed 4 Gabapentin “for facial twitching,” and prescribed Tramadol, a pain 5 reliever, for Plaintiff’s headaches. 6 Further, Plaintiff has not presented medical evidence that calls 7 into question Defendants’ informed decision that Gabapentin was 8 not medically indicated for Plaintiff’s condition. 9 there is no dispute that the use of Gabapentin for treatment of Opp’n Ex. K at 193. In particular, United States District Court For the Northern District of California 10 neurologic pain is an off-label use of the drug, that CDCR policy 11 prohibits the prescription of medications for off-label use unless 12 there is some documented evidence-based need, and that recent 13 medical research has shown that headaches and neuropathic pain are 14 off-label uses of Gabapentin and there is no evidence-based 15 documentation to support such use. 16 Sayre Decl. ¶ 6. Thus, despite the fact that Gabapentin was prescribed by 17 prison doctors at Corcoran, Dr. Sayre, Dr. Adam and FNP 18 Risenhoover determined that it was not medically indicated in this 19 case. 20 into question the reasonableness of their medical opinions in this 21 regard. 22 provided for his headaches and facial twitching were not as 23 beneficial to him as Gabapentin, he concedes that it was up to the 24 discretion of his medical providers to prescribe Gabapentin. 25 Opp’n at 16:9-16. 26 reasonable steps to treat his symptoms, addressed his complaints 27 in a timely manner, and adjusted his medications in accordance 28 with their accepted medical use. Plaintiff has not presented medical evidence that calls Although he complains that the medications he was The evidence shows that Defendants took 25 1 Based on this record, the Court finds that Plaintiff has not 2 raised a genuine issue for trial with respect to whether Dr. Adam 3 and FNP Risenhoover acted with deliberate indifference to his 4 serious medical needs. 5 in their favor. 6 7 b. Accordingly, summary judgment is GRANTED Chest Pain Plaintiff alleges that RN Escobar was deliberately 8 indifferent for not ordering an EKG, a cardiology consultation or 9 admittance to the emergency facility for his enlarged heart and United States District Court For the Northern District of California 10 chest pains. 11 evidence that raises a triable issue of material fact with respect 12 to whether he indeed suffers from an enlarged heart or any heart 13 condition that rises to the level of a serious medical need. 14 Instead, the evidence shows that x-rays of Plaintiff’s chest taken 15 in December 2009 and March 2010 were unremarkable, as were the 16 results from EKGs he underwent 0n April 1 and 10, 2010, for his 17 chest pains. 18 As an initial matter, Plaintiff has not presented Ly Decl. Ex. K; Adam Decl. ¶ 5. Even if Plaintiff’s medical need in this regard is serious, 19 he has not presented evidence that substantiates his contention 20 that RN Escobar acted with deliberate indifference thereto. 21 Specifically, the undisputed evidence shows that when Escobar was 22 called to respond to Plaintiff’s cell for complaints of chest pain 23 and loss of breath on March 18, 2010, he took his vital signs, 24 noted that they were well within the normal range and that 25 Plaintiff had no shortness of breath, was not gasping for air and 26 was speaking clearly. 27 clinic and, upon reviewing Plaintiff’s file, noted that his 28 previous x-rays did not show an enlarged heart and that he had Escobar escorted Plaintiff to the medical 26 1 refused to attend his most recently scheduled appointment for an 2 EKG. 3 reasonably determined that Plaintiff’s symptoms were not cardiac 4 related. 5 dizziness and shortness of breath, he was assessed by a different 6 nurse, who similarly determined that his symptoms did not appear 7 to be cardiac related and gave him Almacone for indigestion and 8 Ibuprofen for chest pain. 9 Ly Decl. Ex. L. Based on this assessment, Escobar Further, when, later that night, Plaintiff complained of Id. Ex. M. Based on the above, the Court finds that Plaintiff has United States District Court For the Northern District of California 10 failed to raise a triable issue of material fact with respect to 11 whether RN Escobar acted with deliberate indifference to his 12 serious medical needs. 13 light most favorable to Plaintiff, shows that Escobar’s actions 14 were reasonable under the circumstances and that Plaintiff did not 15 suffer injury as a result thereof. 16 is GRANTED to Defendant Escobar on this claim. Rather, the evidence, when viewed in the Accordingly, summary judgment 17 3. 18 All Defendants argue that they are entitled to qualified Qualified Immunity 19 immunity. 20 officials . . . from liability for civil damages insofar as their 21 conduct does not violate clearly established statutory or 22 constitutional rights of which a reasonable person would have 23 known.” 24 threshold question in qualified immunity analysis is: “Taken in 25 the light most favorable to the party asserting the injury, do the 26 facts alleged show the officer’s conduct violated a constitutional 27 right?” 28 dispositive inquiry in determining whether a right is clearly The defense of qualified immunity protects “government Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Saucier v. Katz, 533 U.S. 194, 201 (2001). 27 The The relevant, 1 established is whether it would be clear to a reasonable defendant 2 that his conduct was unlawful in the situation he confronted. 3 at 202. Id. 4 On the facts presented herein, viewed in the light most 5 favorable to Plaintiff, Defendants prevail as a matter of law on 6 their qualified immunity defense because the record establishes no 7 constitutional violation. 8 occur, however, Defendants reasonably could have believed their 9 conduct was lawful. Even if a constitutional violation did Specifically, it would not have been clear to United States District Court For the Northern District of California 10 Defendants that they failed to take reasonable steps to abate a 11 substantial risk of harm to Plaintiff by providing him with the 12 above-described care and treatment for his migraine headaches, 13 facial twitching and chest pains. 14 Accordingly, Defendants are entitled to qualified immunity, 15 and their motion for summary judgment is GRANTED for this reason 16 as well. 17 CONCLUSION 18 For the foregoing reasons, the Court orders as follows: 19 1. 20 21 22 23 24 (Docket no. 50.) 2. Plaintiff’s motion for a subpoena duces tecum is DENIED. (Docket no. 27.) 3. as moot. 25 4. 26 DENIED. 27 5. 28 Summary judgment is GRANTED in favor of all Defendants. Plaintiff’s motion for an enlargement of time is DENIED (Docket no. 31.) Plaintiff’s motion to expand the interrogatory limit is (Docket no. 33.) Plaintiff’s motion for leave to file an amended complaint is GRANTED. (Docket no. 34.) 28 1 2 6. (Docket no. 35.) 3 4 7. is DENIED. 5 6 8. United States District Court For the Northern District of California 11 (Docket no. 36.) Defendants’ motion for a protective order is GRANTED. 9. Plaintiff’s motion to compel is DENIED. (Docket no. 10. Plaintiff’s motion to stay summary judgment is DENIED as 52.) 9 10 Plaintiff’s motion for leave to depose Dr. Adam orally (Docket no. 42.) 7 8 Plaintiff’s motion for reconsideration is DENIED. moot. (Docket no. 53.) The Clerk of the Court shall enter judgment in favor of 12 Defendants and close the file. 13 costs. 14 15 16 17 18 All parties shall bear their own This Order terminates Docket nos. 27, 31, 33, 34, 35, 36, 42, 50, 52 and 53. IT IS SO ORDERED. Dated: 3/26/2013 CLAUDIA WILKEN United States District Judge 19 20 21 22 23 24 25 26 27 28 29

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