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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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JARMAAL SMITH,
Plaintiff,
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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
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INTRODUCTION
Plaintiff, a state prisoner incarcerated at Pelican Bay State
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Prison (PBSP), filed this pro se civil rights action pursuant to
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42 U.S.C. § 1983, alleging deliberate indifference to his serious
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medical needs by medical practitioners at PBSP.
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Defendants Dr. Nancy Adam, Family Nurse Practitioner (FNP)
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Sue Risenhoover, Registered Nurse (RN) Joseph Escobar, and
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Licensed Vocational Nurses (LVN) Rebecca Stone and Andrey Andrsh
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have filed a motion for summary judgment.
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the motion and Defendants have filed a reply.
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various non-dispositive motions filed by the parties.
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Plaintiff has opposed
Also pending are
For the reasons discussed below, the Court GRANTS Defendants’
motion for summary judgment.
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BACKGROUND
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The following facts are taken from the parties’ verified
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pleadings, declarations and attached documentary evidence.
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are undisputed unless otherwise noted.
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They
Since February 2006, Plaintiff has been treated by prison
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doctors for his intermittent migraine headaches and facial nerve
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twitching.
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he was prescribed the following medications at the noted
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correctional institutions for his headaches:
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High Desert State Prison:
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2/06 - Motrin 400 mgs., Naproxen 500 mgs.
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California State Prison-Sacramento:
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8/06 - Robaxin 50 mg.
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9/06 - Elavil 10-25 mg.
His medical records reflect that, through July 2008,
United States District Court
For the Northern District of California
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11/06 - Naproxen 500 mgs., Tylenol 975 mgs.
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1/07 - Isomethept/Dichloralph
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2/07 - Midrin, Tramadol 50 mg., Naproxen 500 mgs.
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California Substance Abuse Treatment Facility (CSATF):
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5/07 - Ultram 50 mg.
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7/07 - Robaxin 750 mgs., Methocarbamol 750 mgs.
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9/07 - Methocarbamol 750 mgs., Ultram 50 mgs., Tramadol 50 mgs.
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10/07 - Methocarbamol 750 mg.
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11/07 - Imitrex 100 mg., Methocarbamol 750 mg.
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12/07 - Motrin 800 mg.
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California State Prison-Corcoran (Corcoran):
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5/08-6/08 - Acetaminophen/Codein no. 3, Ibuprofen 800 mgs.
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7/08 - Acetaminophen/Codein no. 3, Ibuprofen 800 mgs.,
Tramadol 30 mgs.
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Pl.’s Decl. Supp. Opp’n Summ. J. (Pl.’s Decl.) ¶ 41.
In December 2007, a doctor at CSATF referred Plaintiff for a
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neurology consultation for his complaints of facial numbness and
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twitching.
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Corcoran before the consultation took place.
Opp’n Ex. J at 181.
Plaintiff was transferred to
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On August 12, 2008,
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while incarcerated at Corcoran, Plaintiff had a neurologic
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consultation.
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presenting illness as follows:
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United States District Court
For the Northern District of California
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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.
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He summarized his impressions as follows: “Diffuse twitching and
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total headache etiology unclear.”
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that Plaintiff be prescribed Lyrica, 50 mg. four times a day, “to
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see if this neurotic pain and the twitching might respond.”
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Lyrica is used to treat pain from damaged nerves.
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recommended blood tests and an MRI scan of Plaintiff’s head.
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Id. at 189.
He recommended
Id.
He also
In early September 2008, Plaintiff’s physician at Corcoran
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prescribed Gabapentin, 300 mg. three times a day, for Plaintiff.
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Opp’n Ex. K at 190.
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that is approved to prevent seizures and treat post-herpetic
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neuralgia.
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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
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uses of Gabapentin.
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continued his prescriptions to treat his headaches with
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Acetaminophen/Codein no. 3 four times a day, and Ibuprofen, 800
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mgs. four times a day.
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the doctor increased the Gabapentin prescription to 600 mgs. three
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times a day “for facial twitching” and prescribed Tramadol, a pain
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reliever, 50 mgs. four times a day, for Plaintiff’s headaches.
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Id. at 193.
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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
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Pursuant to California Department of Corrections and
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Rehabilitation (CDCR) policy, his existing prescriptions were
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continued for thirty days upon his arrival.
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liquid form of Gabapentin was ordered, which equaled 16 cc three
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times a day.
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(Ly Decl.) Ex. A.
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Sayre Decl. ¶ 3.
The
Id. & Decl. Valerie Ly, Esq., Supp. Mot. Summ. J.
On December 22, 2009, FNP Risenhoover, with the approval of
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Dr. Sayre, the Chief Medical Officer at PBSP, changed the order
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for Gabapentin to be given two times a day instead of three.
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Decl. Exs. B & E.
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to twice a day because a third pill pass was not indicated for
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Plaintiff’s case.
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an extraordinary staff effort that must have significant benefit
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to be justified.
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days.
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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
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the Gabapentin.
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December 22 and 23, LVN Stone gave him only 14 cc of the drug,
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instead of the prescribed 16 cc, and that LVN Andrsh did the same
Plaintiff filed grievances complaining that, on
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on December 25.
Ly Decl. Exs. C & D.
The Gabapentin was discontinued on December 29, 2009, by FNP
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Risenhoover and Dr. Sayre’s orders, for the reason that it was not
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medically indicated for Plaintiff’s condition.
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Ly Decl. Ex B.
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United States District Court
For the Northern District of California
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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
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medical article published in May 2010 that discusses the results
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of several medical studies on the off-label use of Gabapentin for,
among other things, neuropathic pain and migraine symptoms.
Based
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on these studies, the article concludes that such off-label uses
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provide questionable benefit and can increase the potential for
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harmful side effects for the patient.
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Sayre Decl. Ex. A.
Dr. Sayre further explains in his declaration that it is CDCR
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practice “to not prescribe medication for off-label use unless
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there is documented evidence based need” and it is “established
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CDCR pharmacy and formulary policy to use evidence based medicine
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and prescribing practices.”
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statement, Dr. Sayre has attached to his declaration the CDCR
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policy on off-label use of prescription medications, which
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provides as follows:
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I.
Sayre Decl. ¶ 7.
In support of his
Definitions
Off-label use: use of a drug for an indication not
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listed in
doses not
of a drug
listed in
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II.
Policy
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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.
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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.
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Sayre Decl. Ex. B.
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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
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localized weakness or vision changes, during the headaches.
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Decl. Ex. F at 1.
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Tylenol #3, to be taken as needed for the headaches.
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she “warned” Plaintiff that if he used the medication
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continuously, instead of only as needed, it would be discontinued;
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she expected he would use approximately eight doses a month.
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Ly
Based on these observations, she prescribed
In so doing,
Id.
Concerning Plaintiff’s nerve twitches, Dr. Adam noted that,
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while he stated that the twitches abate with Neurontin use,
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“Neurontin is not medically indicated for this condition.”
Ly
United States District Court
For the Northern District of California
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Decl. Ex. F at 1.
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neurology specialist was not medically indicated.
Decl. Nancy
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Adam, M.D., Supp. Mot. Summ. J. (Adam Decl.) ¶ 3.
Dr. Adam wrote
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that she would obtain Plaintiff’s entire medical chart so that she
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could review the neurology consultation he had in 2008 and try to
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determine whether the consultation had been for his headaches or
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facial twitching, the reason Neurontin had been prescribed, and
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what medications previously had been tried for his headaches.
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Decl. Ex. F at 1-2.
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She also determined that a consultation with a
Ly
On January 13, 2010, Dr. Adam determined that Plaintiff had
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requested and received seven doses of Tylenol #3 between January 7
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and 13, whereas she had expected him to receive at most eight
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doses a month.
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regularly, rather than as needed; therefore, she discontinued the
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prescription.
She concluded that he was taking the medication
Adam Decl. ¶ 4.
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On January 14, 2010, Plaintiff submitted an emergency health
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care request asking to have his Tylenol #3 medication reinstated.
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Compl. ¶ 135.
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He told her that his headaches had returned since the Tylenol #3
On January 27, 2010, he was seen by Nurse Elliott.
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had been discontinued, that he was experiencing continued painful
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nerve twitching, and that he also was having chest pains.
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Elliott scheduled him to see a physician for these concerns.
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Decl. Ex. I.
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Nurse
Ly
On February 25, 2010, Plaintiff was seen by FNP
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Risenhoover in response to his sick call slips.
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Plaintiff, the following occurred at that visit: he inquired why
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he had not been seen sooner and Risenhoover replied that she “did
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not think his condition was serious enough to warrant immediate
According to
United States District Court
For the Northern District of California
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attention . . . ."
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don't believe you need Gabapentin for your condition and that
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medication is not issued by" the CDCR.
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also "attempted to explain to this nurse that he had recently been
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experiencing chest pain and cramping around his heart area," that
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in August 2008 he was hospitalized for an irregular heartbeat –-
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the origin of which had not been determined –- and that he had
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been advised to tell prison staff to refer him to a cardiologist.
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Compl. ¶¶ 159-161.
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cardiologist because his condition was getting worse, but
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Risenhoover responded that he would have to submit another sick
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call slip because he could only talk about one issue at a time.
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Compl. ¶¶ 163-166.
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reviewed his file prior to his visit.
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don't need to, migraines are not treated with Gabapentin."
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¶ 169.
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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
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evidence of Risenhoover’s progress notes from her February 25,
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2010 meeting with Plaintiff, which show that she examined him,
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reviewed his medical chart, including his neurology consultations
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in 2008 and his EKG results from December 2009, informed him that
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Gabapentin was not medically indicated, and prescribed Ergotamine
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for his migraine headaches and Ibuprofen and Almag (an antacid)
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for his chest pains.
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EKG and chest x-rays.
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the x-ray was taken on March 10, 2010, and showed that Plaintiff’s
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heart was not enlarged and there had been no change since his last
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chest x-ray in December 2009.
United States District Court
For the Northern District of California
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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
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Plaintiff’s cell when he complained of chest pains.
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told Escobar that he felt as if he had lost his breath for several
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minutes.
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62.1
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reviewed his file.
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not show an enlarged heart and that he had no shortness of breath,
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was not gasping for air, and was speaking clearly.
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escorted Plaintiff back to his cell without referring him for
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further care.
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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
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shortness of breath.
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staff and Plaintiff was seen by a nurse in the medical clinic who
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assessed him and concluded that his symptoms did not appear to be
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cardiac related.
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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
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For an adult, a normal resting heart rate ranges from 60 100 beats per minute. Sayre Decl. ¶ 8.
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given Almacone for indigestion and Ibuprofen for chest pain and
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was returned to his cell.
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Ly Decl. Ex. M.
On March 23, 2010, Plaintiff was seen by a nurse for
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complaints of cramping around the heart.
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last chest x-ray, taken on March 2, 2010, was normal.
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him Tylenol for pain, advised him to continue to take Almacone for
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indigestion, and told him she would review his file and discuss
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his complaints with his physician.
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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.
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requested a renewal of his prior Gabapentin prescription, saying
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that it worked better than Tylenol #3 for his symptoms.
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Risenhoover reviewed his medical file; she offered to prescribe
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Ergotamine, Ibuprofen, Naprosyn and Tylenol for his headaches but
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he refused, saying that only Gabapentin worked but he would take a
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prescription for Tylenol #3.
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for seven days and told him that she would refer his case to the
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medical committee for review.
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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.
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He
Adam Decl. ¶ 5.
DISCUSSION
I.
Non-Dispositive Motions
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A.
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Plaintiff originally named as a Defendant in this action LVN
To Enlarge Time and Amend Complaint (Docket Nos. 31, 34)
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“A. Anders.”
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Defendants’ counsel represented that no individual by that name
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ever had been employed at PBSP.
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Plaintiff to provide the correct name and address for that
In response to the Court’s Order of Service,
Consequently, the Court directed
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Defendant.
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the Court with the requested information and, subsequently, after
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learning the Defendant’s true identity, moved to amend his
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complaint to add LVN Andrey Arsh as a Defendant.
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has been served with the complaint and appeared as a Defendant in
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this case.
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time to discover this Defendant’s identity is DENIED as moot; his
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motion to amend his complaint to name Andrey Arsh as a Defendant
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is GRANTED.
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United States District Court
For the Northern District of California
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B.
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Early in these proceedings, Plaintiff filed a motion for a
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preliminary injunction directing Defendants to provide him with
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Gabapentin.
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it had not been served on Defendants and informed Plaintiff that
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he could file a renewed motion for preliminary injunctive relief.
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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
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objects to the Court’s direction that he file a renewed motion for
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a preliminary injunction and asks the Court to decide his prior
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motion on the merits.
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because the Court, by this Order, grants Defendants’ motion for
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summary judgment.
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injunctive relief.
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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
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Rules of Civil Procedure, to prepare, issue and serve a subpoena
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duces tecum on a non-party, Maureen McClean, Chief Executive
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Officer of PBSP, for the production of documents pertaining to the
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investigation of his administrative appeals and other complaints
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filed by inmates against Defendants.
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request because Plaintiff has not used proper procedures for the
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issuance and service of a subpoena duces tecum, and also because
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he has not sought the requested documents from them directly
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pursuant to Rule 34.
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the date of his reply, he has sought the documents from Defendants
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and they have objected to his requests on grounds of privilege.
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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
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preparing and serving subpoenas for Plaintiff.
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filing of Plaintiff’s motion the parties have engaged in further
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discovery and filed their papers in support of and in opposition
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to Defendants’ motion for summary judgment.
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developed by the parties, the Court finds that the documents
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Plaintiff seeks by way of this subpoena duces tecum are not
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relevant to a decision on the merits of his claims.
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he does not charge any Defendant with the improper denial of an
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administrative appeal and, as discussed in more detail below,
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complaints brought by other inmates against Defendants are not
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relevant to a determination whether Defendants provided him with
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constitutionally adequate medical care.
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motion is DENIED.
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2.
Further, since the
Based on the record
Specifically,
Accordingly, Plaintiff’s
Additional Interrogatories (Docket no. 33)
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Plaintiff, having served Defendants Dr. Adam and FNP
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Risenhoover with interrogatories and requests for production of
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documents and received their responses thereto, moves to expand
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the twenty-five interrogatory limit set forth at Rule 33(a)(1).
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Defendants object to the request because Plaintiff already has
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served on these Defendants three sets of combined interrogatories
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and requests for production of documents that include twenty
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interrogatories directed to each of them, he does not state how
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many additional interrogatories he intends to propound, and he
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does not make a particularized showing demonstrating the need for
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additional interrogatories.
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motion is DENIED.
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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
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judgment, Plaintiff moved for leave of court to take the oral
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deposition of Dr. Adam.
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because of the parties’ failure to meet and confer to resolve the
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discovery matter out of court.
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right to discovery in this regard could be accommodated by way of
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written depositions conducted pursuant to Rule 31, and stated that
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it would modify that procedure to allow the deponents to provide
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written answers to the written deposition questions.
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Plaintiff informed Defendants’ counsel of his intent to depose Dr.
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Adam orally.
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questions could be answered through interrogatories or the
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deposition could be conducted via written deposition, as provided
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in the Court’s order.
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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
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take the tape-recorded deposition of Dr. Adam at PBSP.
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oppose the motion and also seek a protective order precluding the
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deposition.
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not complied with Court’s discovery schedule for noticing a
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deposition and that allowing him to depose Dr. Adam orally would
Defendants
Specifically, Defendants object that Plaintiff has
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impose undue burden and expense on Defendants and the CDCR,
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including: transportation of Plaintiff to and from the deposition,
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providing security for the deposition, providing the means of
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recording the deposition, and transcribing the deposition.
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Further, Defendants assert that the information Plaintiff seeks by
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way of the deposition either already has been provided to him in
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response to his discovery requests or could be provided to him by
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way of written deposition.
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A plaintiff has no absolute right to attend a deposition in
United States District Court
For the Northern District of California
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his action.
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many privileges and rights, including the right under 28 U.S.C.
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§ 1654 of parties to plead and manage their own causes personally.
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See In re Terry L. Collins, 73 F.3d 614, 615 (6th Cir. 1995)
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(citing Price v. Johnston, 334 U.S. 266, 285-86 (1948)).
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determining whether to permit an inmate to attend pretrial
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depositions, the court should consider the costs and security
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risks involved in transporting the inmate to the deposition site
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and in maintaining his presence at the deposition, the importance
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of the testimony of the deponent to the claims alleged, the need
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for the inmate to be physically present during the deposition, the
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inmate's individual security history, general security issues, and
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the availability of alternative means to accommodate the concerns
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of both the inmate and the prison officials.
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Lawful incarceration results in the limitation of
In
See id. at 615.
The Court finds that in view of the undisputed evidence of
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security concerns and expenses detailed by Defendants and
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Plaintiff’s ability to obtain the information he seeks from Dr.
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Adam by other means, allowing him to depose Dr. Adam orally in
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this case is not warranted.
Accordingly, Plaintiff’s motion is
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DENIED and Defendants’ motion for a protective order is GRANTED.
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4.
Motion to Compel (Docket no. 52)
Plaintiff has filed a motion to compel responses to
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interrogatories and requests for production of documents to which
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Defendants have asserted objections.
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motion.
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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
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whether they have been accused of negligence or cruel and unusual
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punishment by any inmate.
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Adam, 3 and 4 to FNP Risenhoover, and 3 and 4 to RN Escobar he
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inquires whether they ever have been sued by any inmate and, if
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so, the nature of the claim asserted in the lawsuit.
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interrogatory numbers 4-6 to LVN Stone he inquires whether any
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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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