Melanson v. Johnson

Filing 39

ORDER GRANTING 25 MOTION for Summary Judgment filed by Mary Johnson. Signed by Judge ARMSTRONG on 3/25/13. (lrc, COURT STAFF) (Filed on 3/26/2013)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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10 ROY A. MELANSON,

Plaintiff,

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vs.

13 MARY JOHNSON,

Case No: C 11-0446 SBA (pr)
ORDER GRANTING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
Dkt. 25

Defendants.

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Plaintiff Roy A. Melanson, a California state prisoner currently incarcerated at

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Pleasant Valley State Prison, brings the instant pro se action under 42 U.S.C. § 1983

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against Mary Johnson, alleging that she was deliberately indifferent to serious medical

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needs. This claim stems from an incident on December 12, 2010, when Defendant

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Johnson, a nurse, dispensed the wrong medication to Plaintiff at the Napa County Jail,

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where he was then housed.

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The parties are presently before the Court on Defendant R.N. Mary Johnson’s

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Motion for Summary Judgment. Dkt. 25. Having read and considered the papers filed in

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connection with this matter and being fully informed, the Court hereby GRANTS the

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motion for the reasons set forth below. The Court, in its discretion, finds this matter

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suitable for resolution without oral argument. See Fed. R. Civ. P. 78(b); N.D. Cal. Civ.

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L.R. 7-1(b).

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I.

BACKGROUND
The following facts are undisputed unless otherwise noted. Since October 2008,

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Defendant Johnson, an employee of the California Medical Forensic Group, Inc., has been

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a registered nurse licensed by the State of California. Johnson Decl. ¶ 1, Dkt. 26. In

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December 2010, Defendant was working at the Napa County Jail, where one of her duties

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was to distribute medications to inmates. Id. ¶ 5, Dkt. 26. The procedure for delivering

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prescription medication to inmates is as follows: (1) The prescription medications are

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placed into envelopes designated with the patient/inmate’s name; (2) the nurse distributing

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the medications to inmates removes a specific envelope from a cart containing all the

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envelopes and, after asking an inmate for his name, places the pills in the inmate’s hands

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through the food slot on the cell door; (3) the inmate is asked to check the medications he

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received to ensure that they are the same medications those that he has been taking; and (4)

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the inmate is given a paper cup with water to use to take the medications. Id. ¶ 4; Boss

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Decl. ¶¶ 4, 5, Dkt. 27.

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On December 12, 2010, at around 5:00 p.m., Defendant was delivering medications

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to Plaintiff in his cell when she inadvertently gave him the medication packet intended for a

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different inmate. Johnson Decl. ¶ 5. According to Defendant, Plaintiff stated that he had

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checked his medications and then swallowed the pills. Id. Defendant claims that although

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she realized her mistake “immediately” but that Plaintiff had already ingested the

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medication—10 mg of Zyprexa, 225 mg of Clozapine, and 1000 mg of Divalproax Id.

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¶¶ 6, 9; Boss Decl. ¶ 7. Defendant informed Plaintiff and Correctional Officer C. Rosen of

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her error, and instructed Plaintiff to contact medical or correctional staff in the event that he

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felt “anything out of the ordinary.” Johnson Decl. ¶ 7. Defendant also reported her mistake

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to Elizabeth Carolan, R.N., the nurse coming on duty at the shift change scheduled for 6:00

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p.m., and asked her to monitor Plaintiff’s status. Id. ¶¶ 7-8; Boss Decl. ¶ 6. Defendant then

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filed an incident report with her supervisor, Medical Services Program Manager David

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Boss, R.N. (“Boss”). Johnson Decl. ¶¶ 3, 8 and Ex. A. at 1.

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In addition to the incident report, Boss was notified of the incident by Kate

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Sornberger, R.N. Boss Decl. ¶ 6. Nurse Sornberger had learned of the error from Nurse

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Carolan, who, along with other jail personnel, had been monitoring Plaintiff through the

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early morning hours of December 13, 2010, to determine whether there was any change to

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his condition. Boss Decl. ¶ 6 and Ex. A at 137, 138. Nurse Sornberger documented that

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Plaintiff had responded with the correct date when questioned, but that he could not or

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would not keep his eyes open. Id. ¶ 7. Based on his knowledge of the medication given to

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Plaintiff, Boss did not believe that they were toxic. Id. Nonetheless, he instructed Nurse

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Sornberger to have Dr. James Luders, the jail’s physician, examine Plaintiff during his

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morning rounds. Id. Dr. Luder’s records show that he examined Plaintiff at around 6:30

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a.m. on December 13. Id. ¶ 9. He noted that Plaintiff was unable to keep his eyes open,

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and as a result, directed that Plaintiff be sent to the emergency room at the Queen of the

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Valley Hospital for observation. Id. Plaintiff was transferred to the hospital at 7:00 a.m.

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Id. Ex. A at 137.

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At around 1:30 p.m., Dr. Luders spoke with the emergency room physician, who

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reported that there had been a gradual improvement in Plaintiff’s alertness. Id. ¶ 10. Dr.

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Luders was also advised that the toxicology screen and a CT scan were negative. Id. The

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emergency room physician then discharged Plaintiff. Id. After Plaintiff was returned to the

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jail, Dr. Luders checked on Plaintiff and found him to be lethargic and minimally verbal.

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Id. ¶ 11. Dr. Luders instructed that Plaintiff be examined every two hours. Id. At 3:30

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p.m., Boss contacted the pharmacist consultant for the jail’s medical program regarding the

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medication mistakenly given to Plaintiff. Id. ¶ 12. The consultant advised Boss that the

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effects of Zyprexa, in particular, were sedation and confusion. Id. He advised that the half-

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life of the medication was 21 to 54 hours, and potentially longer given Plaintiff’s age (74

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years old), but that medication’s effects would eventually dissipate. Id. Thereafter, jail

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staff regularly monitored Plaintiff’s condition until he improved. Id.

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On January 31, 2011, Plaintiff filed the instant action in this Court against Defendant
Johnson. Dkt. 1. Plaintiff alleges that as a result of Defendant’s error, he suffered serious
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headaches, confusion and memory loss. The Court liberally construed the Complaint as

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alleging a claim for deliberate indifference to serious medical needs.1 Dkt. 12. In

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accordance with the Court’s Order of Service, Defendant filed a motion for summary

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judgment, which has now been fully briefed by the parties and is ripe for adjudication. Dkt.

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II.

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LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that a party may move for summary

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judgment on some or all of the claims or defenses presented in an action. Fed. R. Civ. P.

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56(a)(1). “The court shall grant summary judgment if the movant shows that there is no

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genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

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law.” Id.; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The movant

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bears the initial burden of demonstrating the basis for the motion and identifying the

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portions of the pleadings, depositions, answers to interrogatories, affidavits, and admissions

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on file that establish the absence of a triable issue of material fact. Celotex Corp. v. Catrett,

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477 U.S. 317, 323 (1986); Fed. R. Civ. P. 56(c)(1)(A) (requiring citation to “particular parts

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of materials in the record”). If the moving party meets this initial burden, the burden then

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shifts to the non-moving party to present specific facts showing that there is a genuine issue

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for trial. See Celotex, 477 U.S. at 324; Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

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475 U.S. 574, 586-87 (1986).

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“On a motion for summary judgment, ‘facts must be viewed in the light most

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favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.’”

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Ricci v. DeStefano, 129 S.Ct. 2658, 2677 (2009) (quoting in part Scott v. Harris, 550 U.S.

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372, 380 (2007)). “Only disputes over facts that might affect the outcome of the suit under

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the governing law will properly preclude the entry of summary judgment. Factual disputes

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that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. A

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As noted in the Court’s Order of Service, it is unclear whether Plaintiff was a
pretrial detainee or state prisoner at the time of the incident. See Order of Service at 2 n.1.
Regardless, the protections of the Eighth Amendment apply to prisoners, and by analogy, to
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factual dispute is genuine if it “properly can be resolved in favor of either party.” Id. at

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250. Accordingly, a genuine issue for trial exists if the non-movant presents evidence from

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which a reasonable jury, viewing the evidence in the light most favorable to that party,

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could resolve the material issue in his or her favor. Id. “If the evidence is merely

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colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-

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50 (internal citations omitted). Only admissible evidence may be considered in ruling on a

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motion for summary judgment. Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002).

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III.

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

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

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(1976). “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d

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1051, 1060 (9th Cir. 2004). To establish a claim for deliberate indifference to serious

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medical needs, the plaintiff must show (1) “a serious medical need by demonstrating that

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‘failure to treat a prisoner’s condition could result in further significant injury or the

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unnecessary and wanton infliction of pain,” and (2) that “the defendant’s response to the

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need was deliberately indifferent.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)

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(internal quotations and citations omitted). The second prong of this standard “is satisfied

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by showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible

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medical need and (b) harm caused by the indifference.” Id.

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Indifference “may appear when prison officials deny, delay or intentionally interfere

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with medical treatment, or it may be shown by the way in which prison physicians provide

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medical care.” Id. Deliberate indifference is a state of mind “more blameworthy than

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negligence.” Farmer v. Brennan, 511 U.S. 825, 835 (1994). Even gross negligence is

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insufficient to establish deliberate indifference to serious medical needs. See Wood v.

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Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). Only a prison official who knows both

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of “facts from which the inference could be drawn” that an excessive risk of harm exists

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and who actually draws that inference is deliberately indifferent to the inmate’s health.

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Farmer, 511 U.S. at 837.
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In the instant case, Plaintiff alleges that he is older and suffers from heart disease

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and diabetes, and therefore, Defendant’s actions show deliberate indifference. The

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undisputed evidence, however, demonstrates precisely the opposite. Upon realizing that

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she had given the wrong medication to Plaintiff, Defendant informed Plaintiff, other jail

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and medical staff and her supervisor of her error. Johnson Decl. ¶¶ 7-8. To rectify her

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mistake, Defendant instructed Plaintiff to notify correctional or medical staff if he felt

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anything out of the ordinary. Id. ¶ 7. Defendant likewise informed the incoming duty

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nurse, Nurse Carolan, of the mistake and asked her to monitor Plaintiff’s condition. Id. ¶ 8.

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Plaintiff was later sent to a local hospital, where emergency medical staff examined him,

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administered tests, and eventually discharged him. Id. ¶¶ 9-11. After being discharged

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from the hospital, Plaintiff was continually monitored until the effects of the medication

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subsided. Boss Decl. ¶¶ 11-12. Defendant’s prompt recognition and reporting of her error,

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and the monitoring, care and treatment Plaintiff received as a result, completely undercut

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Plaintiff’s conclusory and unsubstantiated claim that Defendant was deliberately indifferent

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to his serious medical needs.

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Plaintiff’s attempt to controvert certain aspects of Defendant’s evidence is

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insufficient to raise a genuine dispute of material fact. For instance, Plaintiff argues that

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“[i]t was five to ten minutes before defendant returned to inform [him that] she had given

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me another patient’s medication, NOT seconds as stated.” Pl.’s Opp’n at 4. However,

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Defendant did not claim that she responded in a matter of “seconds.” Johnson Decl. ¶ 5. In

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any event, even if Defendant responded “five to ten minutes” after giving him the wrong

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medication, there is no evidence that such minimal delay was intentional or caused Plaintiff

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any harm. See Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990) (only delays

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that cause substantial harm violate the Eighth Amendment). To the contrary, the record

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shows that Defendant responded promptly in acknowledging her error and in informing her

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colleagues to ensure that Plaintiff’s condition was monitored. Defendant’s actions show

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care and concern for Plaintiff, not deliberate indifference.
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Plaintiff also disputes the sequence of events leading to his taking the wrong

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medication. In her declaration, Defendant avers that the standard procedure for dispensing

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medication is to confirm the inmate’s name; upon doing so, hand the medication to the

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inmate through the food slot on the cell door; ask the inmate to check the medication to

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ensure that they the same medication as he has been taking; and then provide the inmate

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with a cup of water to take the medication. Johnson Decl. ¶ 4. Though Defendant does not

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expressly state that she followed each of these steps, she does state that Plaintiff

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acknowledged checking the medications she had given to him—a fact that Plaintiff does

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not dispute. Id. ¶ 6. Plaintiff nonetheless claims that Defendant did not pass his

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medications through the food slot, but that she simply handed the medications to him

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directly, without asking him his name. Pl.’s Opp’n at 3. Since Defendant does not address

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Plaintiff’s assertion that she did not ask him his name, the Court presumes for purposes of

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this motion that she failed to do so. That being said, the Court finds that Defendant’s acts

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or omissions do not amount to deliberate indifference.

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Federal courts have uniformly held that a bare assertion that a prison official failed

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to follow standard procedure is insufficient, as a matter of law, to demonstrate deliberate

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indifference. In Luckert v. Dodge County, 684 F.3d 808 (8th Cir. 2012), the estate of a

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detainee who committed suicide while in the county jail filed a § 1983 action against the

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county and jail officials for deliberate indifference to serious medical needs. The Eighth

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Circuit reversed the trial court’s denial of defendants’ motion for judgment as a matter of

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law after a jury found them liable for deliberate indifference. The court found inapposite

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the defendants’ admission that they did not follow aspects of the County Department of

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Corrections’ written suicide intervention policy. In that regard, the court noted that:

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“Failure to follow written procedures does not constitute per se deliberate indifference. If

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this were so, such a rule would create an incentive for jails to keep their policies vague, or

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not formalize policies at all.” Id. at 819. The court found that, although the defendants did

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not follow the written policy and neglected to take other actions that “may constitute poor
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judgment, negligence or possibly gross negligence, [such acts and omissions] do not

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constitute deliberate indifference when viewed in the context of the affirmative steps” they

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took to prevent the decedent’s suicide. Id. at 818.

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Similarly, in Taylor v. Adams, 221 F.3d 1254 (11th Cir. 2000), the estate of a

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pretrial detainee filed suit under § 1983 for deliberate indifference to serious medical needs

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after the decedent died while being transported to the jail. Plaintiff alleged that the

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firemedics (firemen with medical training) who examined the decedent at the time of his

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arrest failed to render any treatment, even though they were informed by a bystander who

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knew the decedent that he had a history of seizures and that he, in fact, was about to have a

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seizure. In addition, the firemedics failed to follow their own protocols, which included

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taking the vital signs of a seizing patient and calling paramedics. On appeal, the court

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reversed the district court’s denial of summary judgment for the firemedics. Id. at 1258. In

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reaching its decision, the court noted that there was no evidence “from which a jury could

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find that the firemedics actually drew the inference that [the decedent] was having a

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seizure,” notwithstanding the information provided by the bystander. Id. In addition, the

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court ruled that the “failure to follow procedures does not, by itself, rise to the level of

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deliberate indifference because doing so is at most a form of negligence.” Id.

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Under Farmer, a claim of deliberate indifference requires that the prison official

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(1) be actually aware of facts from which an inference could be drawn that a substantial risk

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of harm exists, (2) actually draw the inference, but (3) nevertheless disregard the risk to the

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inmate’s health. 511 U.S. at 837-38. Here, it is arguable that Defendant was aware of facts

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from which an inference could be drawn that her failure to follow all of the steps for

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delivering medication to inmates created a substantial risk of serious harm to Plaintiff.

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While failing to confirm an inmate’s name certainly could increase the risk of giving an

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inmate the wrong medication, in this instance, such risk was largely ameliorated by the fact

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that Plaintiff confirmed that he had been given the correct medication. Johnson Decl. ¶ 6.

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In any event, even if Plaintiff could show that Defendant knew of facts from which such an

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inference could be drawn, nothing in the record demonstrates that Defendant actually drew
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that inference. Farmer, 511 U.S. at 837. As in Luckert and Taylor, Defendant’s deviation

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for the procedure governing the distribution of inmate medication may have been

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negligent—or even grossly negligent—but it is insufficient, as a matter of law, to show

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deliberate indifference, particularly in light of her subsequent corrective action. See

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Farmer, 511 U.S. at 835.

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IV.

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CONCLUSION
In sum, the Court finds that Defendant has shown that there is no genuine dispute as

to any material fact and that she is entitled to judgment as a matter of law. Accordingly,
IT IS HEREBY ORDERED THAT:
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Defendant R.N. Johnson’s Motion for Summary Judgment (Dkt. 25) is

GRANTED.
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The Clerk of the Court shall enter judgment in favor of Defendant Johnson,

terminate all pending motions, and close the file.
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For the reasons stated above, the Court certifies that any appeal from this

decision would not be in good faith within the meaning of 28 U.S.C. § 1915(a)(3).

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IT IS SO ORDERED.

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This order terminates Docket 25.

Dated: March 25, 2013

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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ROY A. MELANSON,

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Plaintiff,

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v.
MARY JOHNSON et al,
Defendant.
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Case Number: CV11-00446 SBA

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CERTIFICATE OF SERVICE

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on March 26, 2013, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

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Roy A. Melanson 117654
Sterling Correcrtional Facility
Box 6000
Sterling, CO 80751
Dated: March 26, 2013
Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk

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