Reynoso v. Sayre et al

Filing 41

ORDER by Judge Claudia WilkenGRANTING DEFENDANTS 23 MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS ( 26 , 40 ) MOTIONS TO COMPEL AND FOR THE APPOINTMENT OF COUNSEL. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 9/11/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OMAR REYNOSO,
Plaintiff,

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v.

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C 11-4525 CW (PR)
ORDER GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT AND DENYING
PLAINTIFF’S MOTIONS TO COMPEL AND FOR
THE APPOINTMENT OF COUNSEL

M. SAYRE, et al.,
(Docket nos. 23, 26, 40)

United States District Court
For the Northern District of California 

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Defendants.
__________________________/

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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 and supplemental state law claims of medical

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negligence.

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Plaintiff has filed an opposition and Defendants have filed a

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reply.

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discovery and for the appointment of counsel.

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Defendants have filed a motion for summary judgment,

Additionally, Plaintiff has filed motions to compel

For the reasons discussed below, Defendants’ motion for
summary judgment is GRANTED and Plaintiff’s motions are DENIED.

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BACKGROUND

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The following facts are derived from Plaintiff’s verified

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complaint and the attachments thereto, and the parties’ papers in

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support of and in opposition to the motion for summary judgment

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and the declarations and exhibits submitted in support thereof.

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Plaintiff has been diagnosed with hypolordosis (decreased

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spine curvature) with degenerative disc disease, two budging discs

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and a disc protrusion of approximately seven millimeters.

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result of his conditions he has severe pain in his lower back.
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As a
He

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also has numbness, tingling and sharp pain down his left leg as an

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apparent result of damage to the peroneal nerve located in that

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leg.

Compl. ¶¶ 12-13.
Plaintiff was incarcerated at Centinela State Prison and

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Corcoran State Prison (Corcoran) prior to his transfer to PBSP.

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He alleges that while at both institutions doctors properly

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diagnosed his condition and he received proper medical care

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including diagnostic tests, consultation with an outside

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specialist, epidural spinal injections to block the pain, the

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prescription of pain medication, physical therapy and information

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about spinal surgery.

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arrival at PBSP Defendants have disregarded the medical opinions

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of those doctors and discontinued his treatment, leaving him in

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constant and severe pain.

He contends, however, that since his

Compl. ¶¶ 14-15.

Plaintiff arrived at PBSP on January 6, 2010.

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Pursuant to

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California Department of Corrections and Rehabilitation (CDCR)

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policy, his existing prescriptions were continued for thirty days

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upon his arrival.

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Medical Officer (CMO) at PBSP, authorized the continuation of

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Plaintiff’s prescriptions for Enalapril Maleate (blood pressure

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medication), morphine 15 mg and Gabapentin (for nerve pain) until

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he could be seen by a primary care physician (PCP) and have his

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medications re-evaluated.

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(Sayre Decl.) ¶ 4.

Specifically, Defendant Dr. Sayre, the Chief

Decl. Michael Sayre Supp. Mot. Summ. J

On January 28, 2010, Plaintiff was seen by Family Nurse

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Practitioner (FNP) Phillip Mallory.

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complaints of back and leg pain and noted that his use of morphine

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would be discussed with his PCP.

Mallory also discontinued
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Mallory documented his

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Plaintiff’s prescription for Gabapentin, because it is not an

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approved formulary medication for neuropathic pain at PBSP.

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Mallory instead prescribed Elavil (Amitrityline), which is a

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formulary medication prescribed for neuropathic pain.

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Phillip Mallory Supp. Mot. Summ. J. (Mallory Decl.) ¶ 2.

Decl.

On February 5, 2010, Mallory met with Plaintiff again and

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told him that custody staff had observed him on multiple occasions

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running and playing handball out on the yard and had provided

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video camera footage to Mallory of those activities.

Mallory

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discussed the video with Plaintiff and asked him how he was able

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to participate in such activities in view of his subjective

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reports of pain and inability to perform daily activities.

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Plaintiff explained that the reason he was able to perform daily

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activities was because, at the time, he was on strong pain

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medication (morphine), without which he would not have been able

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to perform these activities.

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morphine was just “masking” his pain, and that the pain was his

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body’s way of helping to avoid further injury.

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Plaintiff that his use of narcotics for pain management would be

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discontinued.

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suffer undue pain.

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morphine prescription and, instead, prescribed Naproxen (a non-

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steroidal anti-inflammatory medication) 500 mg twice a day, in

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addition to the previously-prescribed Elavil.

Mallory informed Plaintiff that the

Mallory told

Plaintiff objected that doing so would cause him to
Nevertheless, Mallory discontinued Plaintiff’s

Mallory Decl. ¶ 3.

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Plaintiff alleges that, on February 23, 2010, he filed an

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inmate appeal of Mallory’s decision to which he attached copies of

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his results from MRI and EMG tests taken in April 2009, which

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evidence that he has a chronic back condition.
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He states that the

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appeal went unanswered and was never returned to him.

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19.

Compl. ¶

On February 26, 2010, Mallory submitted a Comprehensive

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Accommodation Chrono to Dr. Sayre, requesting prescription glasses

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and a wedge pillow for Plaintiff.

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wedge pillow was prescribed to him by the CMO at Corcoran to help

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him sleep by relieving the pressure on his lower back.

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42, Opp’n ¶ 28.

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denied the wedge pillow because he is of the opinion that medical

According to Plaintiff, the

Compl. ¶

Dr. Sayre approved the prescription glasses but

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research has not supported the use of wedge pillows as an

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effective treatment for low back pain.

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Sayre Decl. ¶ 5.

On May 30, 2010, Plaintiff filed an inmate appeal complaining

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of severe back pain.

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by Defendant Dr. Nancy Adam, a PCP.

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reinstate the regimen of pain medication and physical therapy he

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had received at Corcoran.

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instead, she prescribed Gabapentin 600 mg, even though Plaintiff

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told her that it did not help his pain.

In response, on June 29, 2010, he was seen
He asked Dr. Adam to

Dr. Adam denied Plaintiff’s requests;

Compl. ¶ 21.

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According to Defendants, during the appointment Dr. Adam

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noted the objective examination findings from Plaintiff’s medical

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records, which included the April 2009 MRI showing mild disc

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protrusion and nerve impingement.

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Gabapentin to be taken in the morning and a 600 mg dose to be

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taken at night to relieve his back pain, with a follow-up

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appointment in thirty days.

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surgical consultation could be a “consideration.”

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Adam Supp. Mot. Summ. J. (Adam Decl.) ¶ 6.

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opinion that, at the time she evaluated Plaintiff, his complaints

She prescribed a 300 mg dose of

She also noted that a referral for a

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Decl. Nancy

Dr. Adam is of the

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of back pain and leg numbness appeared to be inconsistent with the

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objective findings of the MRI.

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Id. ¶ 7.

On August 23, 2010, Defendant Physical Assistant-Certified
(PA-C) Laurie Thomas saw Plaintiff for the first time.

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her that his condition was getting worse and his pain was

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increasing.

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and tingling sensation in his left leg had increased, the pain in

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his lower back had become intolerable, he no longer could sleep on

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his back or stomach or sit to eat his meals because of his bulging

He told

Specifically, he explained that the numbness, pain

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discs, and it was difficult for him to sit to use the bathroom.

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Compl. ¶ 25.

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Thomas examined Plaintiff and concluded that her findings

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were consistent with chronic low back pain with radicular

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neuropathy.

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day and “discussed heat and cold modalities for relief of

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discomfort and provided him with a handout for stretches and ways

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to prevent back pain.”

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(Thomas Decl.) ¶ 4.

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Physician Request for Services that she forwarded to the

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Utilization Management Committee, requesting an evaluation of

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Plaintiff by a neurosurgeon for possible back surgery.

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Thomas’s professional opinion, however, she did not believe he was

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a candidate for back surgery as there were no neurological changes

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that were limiting his activities of daily living.

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1, 2010, the committee denied the request for a neurosurgeon

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evaluation.

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She increased his Gabapentin dosage to 600 mg twice a

Decl. Laurie Thomas Supp. Mot. Summ. J.

The following day, Thomas completed a

In

On September

Id.

On September 13, 2010, Thomas saw Plaintiff in the clinic for
his chronic care appointment to discuss his chronic conditions of
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hypertension and Hepatitis C.

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three of his prescriptions for hypertension and ordered urine and

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blood tests.

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direct orders from Dr. Sayre, all of his other medications,

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including Gabapentin, were going to be discontinued.

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objected and asked Thomas to compare his MRI results from 2007 and

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2009, which showed an increase in the size of his bulging discs.

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Compl. ¶¶ 26-28.

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During this visit she refilled

According to Plaintiff, Thomas told him that, per

Plaintiff

On September 27, 2010, Thomas saw Plaintiff for complaints of

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lower back and knee pain.

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examinations and review of his medical records was chronic low

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back pain with neuropathy.

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neuropathy, which was in his lower left leg, was not consistent

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with previous MRI findings for his spine as there was no

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correlation between his reported pain and numbness and the results

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of the MRI.

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spine showed some disc protrusion and mild nerve root impingement

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at the L4-L5 and L5-S1 levels of his spine, but the areas of his

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body in which he reported pain did not correlate with those

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vertebrae spaces.

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Her assessment based on physical

According to Thomas, Plaintiff’s

Specifically, the findings of the prior MRI of his

Thomas Decl. ¶ 6.

On November 15, 2010, Thomas saw Plaintiff at sick call.

She

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informed him that his request for an MRI had been denied.

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¶ 28.

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either surgery or epidural injections, based on the evaluation he

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had received while at Corcoran.

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were inconsistent with his reports of pain and that he received

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physical therapy at Corcoran in 2009.

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with forty-five minutes of physical therapy exercises he would get

He asked Thomas for alternative back pain treatments,

Thomas noted that his MRI results

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Compl.

Plaintiff told Thomas that

some relief from his symptoms.

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Thomas noted that there was no change in his back from the prior

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exams.

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Gabapentin 600 mg twice daily was not giving him any relief, so

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Thomas tapered him off of Gabapentin with 400 mg for fourteen days

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and prescribed a trial of Sulindac 200 mg twice daily for thirty

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days.1

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light exercise and learn to live with his current pain by

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adjusting his daily activities according to his pain level that

Upon her examination of Plaintiff,

Plaintiff told Thomas that the current prescription of

She advised him that he needed to perform daily stretches,

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day.

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completely.

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and Thomas told him that she would take his case to the

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Pain Management Committee for review and discussion, because

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prescriptions for any inmate taking narcotics, long-term non-

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steroidal anti-inflammatory medications or tricyclic medications

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must be reviewed by the Pain Management Committee on a regular

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basis.

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She also told him that his pain could not be alleviated
He was given a pain assessment packet to complete,

Thomas Decl. ¶ 7.

At the Pain Management Committee meeting on December 10,

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2010, Plaintiff’s current medications, complaints and MRI

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and physical examination findings were reviewed. The committee

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expressed concern about the amount of pain medication he was

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taking in light of his hypertension and Hepatitis C and suggested

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that his medications be regulated and prescribed in small amounts.

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Thomas Decl. ¶ 7.

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Thomas next saw Plaintiff on January 31, 2011, for complaints

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Sulindac is a non-steroidal anti-inflammatory drug.

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of left knee pain.

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favoring the left that got better with every step.

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were consistent with left knee pain with “known medial meniscal

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tear” from Plaintiff’s prior knee surgery in 2007.

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referred him to the Utilization Management Committee for an

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evaluation of his left knee by an orthopedic surgeon.

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committee denied the request on February 9, 2011, because it did

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not meet the standardized InterQual criteria.2

Her examination revealed a very mild limp
Her findings

Thomas

The

Thomas Decl. ¶ 8.

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On March 16, 2011, Thomas saw Plaintiff at sick call for

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complaints of back and knee pain. She told him that the orthopedic

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consult for his knee had been denied.

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extensive review of his file, she noted that his treatments with

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morphine, Neurontin (Gabapentin) and Tylenol #3 (with Codeine) had

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all failed, that Ibuprofen, Naproxen, Tylenol and Sulindac “all

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tear up his stomach and did not help,” and that the Utilization

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Management Committee at Corcoran had denied two requests for a

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consultation with a neurosurgeon in 2009.

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Utilization Management referral for physical therapy, but after

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reviewing the results of Plaintiff’s physical therapy treatments

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in 2009 saw that the treatments did not have an impact.

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with Plaintiff at length about back stretches and informed him

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that no surgical intervention was warranted unless there was new

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trauma or injury to his back or knee, because he did not meet the

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standardized InterQual criteria.

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She spoke

Thomas Decl. ¶ 10.

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She considered a

On May 20, 2011, Dr. Sayre discontinued Plaintiff’s chrono

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After conducting an

The InterQual standardized criteria are objective criteria
used in both private and community settings to evaluate and
determine the need for diagnostic testing and treatment. Thomas
Decl. ¶ 8.
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for a wedge pillow, which Plaintiff maintains helps him sleep by

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relieving the pressure on his lower back.

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in retaliation for his telling medical staff that he had no option

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left but to file a lawsuit to obtain proper medical care.

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¶ 42 & Ex. F.3

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financial burden on the CDCR because he paid for it with his trust

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account money.

United States District Court
For the Northern District of California 

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Compl.

According to Plaintiff, the wedge pillow is not a

Opp’n ¶ 28 & Ex. 30.

Plaintiff was moved to a different housing unit at PBSP and

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9

He claims this was done

was seen by a new PCP, Dr. Ikegbu, on May 27, 2011.

After

evaluating him and reviewing his medical file, Dr. Ikegbu
prescribed a trial of a “steroid boost” for five days to relieve

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inflammation, referred him for physical therapy and to the chronic
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pain management team for evaluation, and prescribed Naproxen 500
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mg twice a day.
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15

Opp’n ¶ 8 & Ex. 6.

Plaintiff attended physical

therapy sessions on June 15 and 29, 2011.

During the sessions,

the physical therapist discovered that his left leg is more than

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one inch longer than his right leg, but did not know if this was

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aggravating his condition.

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therapist told him that physical therapy would not benefit him

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because it would not fix the disc damage.

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discharge summary that Plaintiff should continue to report to his

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physician if his symptoms did not change and that “injections and

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surgery are viable next steps.”

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27
28

At the second session, the physical

He wrote in his

Opp’n ¶ 9 & Ex. 7 at 100.

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The evidence concerning Plaintiff’s possession of the wedge
pillow is disputed. Plaintiff states that after he first arrived
at PBSP in February 2010, Dr. Sayre approved his continued use of
the wedge pillow, which had been prescribed by a doctor at
Corcoran, and he used the pillow from his arrival at PBSP until
May 20, 2011. Compl. ¶ 42, Opp’n ¶ 28. According to Dr. Sayre,
however, he discontinued Plaintiff’s use of the wedge pillow on
February 26, 2010, Sayre Decl. ¶ 5 & Ex. A (DEF 000730), and again
on May 20, 2011, id. ¶ 8 & Ex. A (DEF 000727).
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When Dr. Ikegbu was reassigned, Plaintiff returned to the
care of PA-C Thomas.

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at sick call for back pain and lower left leg numbness radiating

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to the ankle and toes.

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essentially normal. She noted that the numbness in his leg might

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be related to his prior knee surgeries because his EMG results

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stated that the tingling in his calf first started after his first

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knee surgery in 2007.

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back pain, she prescribed Salsalate 500 mg for thirty days4 and

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recommended moist compresses to the low back and yoga and self-

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massage. Thomas refilled the prescription for Salsalate on

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February 3, 2012.

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On November 14, 2011, Thomas saw Plaintiff

Her physical examination of him was

Noting that he had not tried Salsalate for

Thomas Decl. ¶ 13.

On March 20, 2012, Thomas saw Plaintiff for both chronic care

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and a sick call appointment.

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in his left calf was worsening.

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examination and noted an essentially normal back exam but

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decreased sensation in the lower lateral one-third of Plaintiff’s

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left calf, top of foot and medial first and second toes,

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consistent with peroneal nerve involvement.5

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trial of Nortriptyline for his leg symptoms,6 advised him to

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continue yoga and self-massage, and ordered the nurse to follow up

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for leg length measurements because no documentation was found

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Plaintiff told her that the numbness
Thomas conducted a physical

Thomas prescribed a

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4

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5

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Salsalate is a non-steroidal anti-inflammatory drug.

The peroneal nerve is found on the outside part of the
lower knee. This nerve is responsible for transmitting impulses to
and from the leg, foot, and toes.
6

Nortriptyline is a tricyclic anti-depressant that is also
used for neuropathic pain.
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regarding any discrepancies.

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Thomas Decl. ¶ 14.

On May 4, 2012, Thomas noted that Plaintiff had submitted a

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health care request to the nurse stating that the pain medication

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prescribed for the peroneal nerve was ineffective; consequently,

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Thomas discontinued the Nortriptyline.

Thomas Decl. ¶ 15.

On May 21, 2012, Thomas saw Plaintiff at sick call for

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complaints of back pain and numbness in his lower left leg.

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Thomas examined him, noting the left calf numbness and a normal

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back exam.

Thomas spent approximately forty minutes with

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Plaintiff and advised him that no treatment alternatives were

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available because he had no benefit with the available oral

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medications, he is not a surgical candidate for his back and his

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request for epidural injections had been denied.

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16.

Thomas Decl. ¶

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On May 22, 2012, Dr. Adam was contacted after Plaintiff

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reported that his back had “locked” and his lower extremities were

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numb. She prescribed 500 mg of Methocarbamol7 and two tablets of

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Tylenol #3 with codeine.

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Adam Decl. ¶ 9 & Ex. D.

On September 12, 2012, Thomas saw Plaintiff for his chronic

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care visit.

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his back and difficulty urinating with incomplete bladder

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emptying.

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examination.

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evaluate him, she ordered an x-ray of Plaintiff’s lumbosacral

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spine and left hip.

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review of his blood pressure readings to determine if any

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He complained that he felt a new pulling sensation in

Thomas performed a back examination and digital rectal
She found that both were normal.

On October 9, 2012, she conducted a chart

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7

Methocarbamol is a muscle relaxant.
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To further

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medication changes were necessary.

2

Thomas Decl. ¶ 17.

While Thomas was on vacation, Plaintiff reported a lower back
pain flare-up at the end of October 2012.

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staff on October 29 and Dr. Venes on October 31.

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he had chronic lower back pain without alarming signs or symptoms

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with possible muscle spasm.

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of Methocarbamol and Ketorolac Tromethamine (an injectable anti-

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inflammatory) for two weeks and oral anti-inflammatories for two

9

weeks.

He was seen by nursing
Dr. Venes found

He was prescribed a temporary course

Based on Thomas’s knowledge and review of Plaintiff’s

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medical conditions and records, she believes this was an

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appropriate course of treatment.

Thomas Decl. ¶ 18.

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On November 7, 2012, Dr. Sayre, in his role as PBSP CMO,

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reviewed Plaintiff’s medications and completed a “Notification to

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PCP of Change in Medication” for the Naproxen prescribed on

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October 30, 2012.

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prescription expired, the medication should not be renewed until

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Plaintiff was re-evaluated and reviewed by his PCP to determine

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whether continued administration of this medication was

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appropriate.

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involving Plaintiff’s blood pressure and gastrointestinal system,

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which, in turn, could cause serious complications for his chronic

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conditions of hypertension and Hepatitis C.

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Dr. Sayre concluded that, after the

Dr. Sayre’s concern was for possible complications

Sayre Decl. ¶ 11.

On November 16, 2012, Thomas conducted a review of

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Plaintiff’s left hip and lumbar spine x-rays and noted that the

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hip x-rays were normal with a 1 mm calcification, which is not

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clinically significant.

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showed lumbar spine spondylosis (narrowing of the spine)

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indicating arthritic changes in the spine, but no acute osseous

The x-rays of the lumbosacral spine

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(new formation of the bone) and no fractures or displacement of

2

vertebrae.

3

in the x-ray were consistent with ‘wear and tear’ on the back,

4

also called a ‘mechanical’ or arthritic back which no surgical

5

intervention would resolve or relieve.”

6

Plaintiff maintains that the x-rays show disc space narrowing,

7

which can lead to possible nerve root entrapment, and also that

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the x-rays do not show muscles, nerves or discs and, therefore,

9

should not be relied upon to diagnose his condition.

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According to Thomas, “the degenerative changes noted

Opp’n ¶¶ 52-

53 & Exs. 41-42.

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12

Thomas Decl. ¶ 18.

DISCUSSION
I.

Plaintiff’s Motion to Compel

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Plaintiff has filed a motion to compel Dr. Sayre’s production

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of documents and a response to an interrogatory to which Dr. Sayre

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has asserted objections.

Dr. Sayre opposes the motion.

Under Rule 26 of the Federal Rules of Civil Procedure,

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17

parties are entitled to discovery regarding any nonprivileged

18

matter that is relevant to any party’s claim or defense, including

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the existence, description, nature, custody, condition, and

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location of any documents or other tangible things and the

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identity and location of persons who know of any discoverable

22

matter.

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order discovery of any matter relevant to the subject matter

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involved in the action.

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admissible at the trial if the discovery appears reasonably

26

calculated to lead to the discovery of admissible evidence.

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The court must limit access to discovery that is

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Fed. R. Civ. P. 26(b)(1).

For good cause, the court may

Relevant information need not be

Id.

“unreasonably cumulative or duplicative, or can be obtained from
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some other source that is more convenient, less burdensome, or

2

less expensive,” Fed. R. Civ. P. 26(b)(2)(C)(i), or where “the

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burden or expense of the proposed discovery must be assessed in

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light of its likely benefit, considering the needs of the

5

case, the amount in controversy, the parties’ resources, the

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importance of the issues at stake in the action, and the

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importance of the discovery in resolving the issues,” Fed. R. Civ.

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For the Northern District of California 

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P. 26(b)(2)(C)(iii).
A.

9

Plaintiff’s Request for Production of Documents, Set One, No.

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11

8, to Dr. Sayre states the following:
In November of 2011 the District Attorney pressed
charges against Defendant C.M.O. Sayre for property
damage to a co-worker’s vehicle and for false reports
during the same incident, Plaintiff requests any and all
police reports, incident reports, video footage,
complaints, or other document(s) that may exist as a
result of this incident that took place at Defendant’s
Sayre job-site here at Pelican Bay Prison.

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13
14
15
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Request for Production of Documents, Set One, No. 8

Pl.’s Mot. Compel, Ex. 1 at 2.

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Dr. Sayre objected to the request as irrelevant and calling

18

for documents that violate his right of privacy.

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Mot. Compel, Ex. A at 2.

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Defs.’ Opp’n

Plaintiff maintains the documents are relevant to Dr. Sayre’s

21

credibility because Dr. Sayre has presented false medical

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information about his condition and symptoms in an attempt to

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minimize his need for treatment.

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The Court finds the requested information is not discoverable

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because it is not relevant to any claim or defense in this case.

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Dr. Sayre’s involvement in the noted incident does not make the

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facts alleged by Plaintiff more or less probable and are of no

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consequence in determining whether Dr. Sayre acted with deliberate
14  

1

indifference to Plaintiff’s serious medical needs.

2

Plaintiff’s motion with respect to this request for production is

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DENIED.

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B.

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Plaintiff’s Request for Production of Documents, Set One, No.

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Any logs, lists, or other documentation reflecting
grievances and lawsuit/complaints filed by Pelican Bay
State Prison inmates from Jan-6-2010 to the date of your
response.

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United States District Court
For the Northern District of California 

Request for Production of Documents, Set One, No. 9

9, to Dr. Sayre requests the following:

7

9

Accordingly,

Pl.’s Mot. Compel, Ex. 1 at 3.

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Dr. Sayre objected to the request on the grounds that it is

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irrelevant, vague, overbroad, unduly burdensome and would violate

12

the privacy rights of other inmates.

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Ex. A at 1.

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Defs.’ Opp’n Mot. Compel,

Plaintiff maintains that the request is relevant because he

15

is attempting to discover whether a pattern of medical negligence

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and deliberate indifference to inmates’ serious medical needs

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exists at PBSP, and that it is not overbroad because he is not

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seeking specific information from the grievances.

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that “Defendants Counsel can simply look at and the P.B.S.P.

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records of all the grievances, complaints or lawsuits that have

21

been filed from January 2010 to October 2012, and make a list of

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[them]” for Plaintiff’s review.

He suggests

Mot. Compel at 8.

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In response, Dr. Sayre notes that Plaintiff’s suggestion

24

would require counsel to examine records pertaining to grievances

25

filed by several thousand inmates over a thirty-four month period,

26

and that Plaintiff has made no showing that this information is

27

necessary to his claims against the four Defendants in this case.
The Court agrees that the request is overbroad and would

28
15  

1

impose an undue burden on Defendants.

2

medical accusations and/or complaints made by other inmates is

3

irrelevant and not reasonably calculated to lead to the discovery

4

of admissible evidence concerning Defendants’ motive or intent

5

Moreover, evidence of

with respect to their treatment of Plaintiff.

Plaintiff’s claims

against Defendants are based on his own medical treatment.
6
Accusations of negligence and/or a violation of the Eighth
7

Amendment or lawsuits filed by other inmates fail to evidence

United States District Court
For the Northern District of California 

8

Defendants’ liability toward Plaintiff.

9

not demonstrated that his need for the information, which concerns

10

the medical care of other inmates, outweighs the privacy rights of

11

Defendants and the inmates making the accusations.

12

Plaintiff’s motion with respect to this request for production of

13

documents is DENIED.

Further, Plaintiff has

Accordingly,

14

C.

15

Plaintiff’s interrogatory to Dr. Sayre, Set One, No. 9, asks

16

the following:
Have you made any statements in writing or verbally to
any Pelican Bay physicians or to any one else for the
matter, to the effect that the symptoms of pain,
numbness, tingling, loss of sensations to lowerextremities experienced by the plaintiff are not caused
by the 7mm nerve impingement on the Nerve root L5-S1,
that there was no evidence of any involvement of S1
nerve root. If you have made any statements in writing
or verbally. Describe and explain “How you reached this
conclusion?” and (sic) explain the basis for this
conclusion.

17
18
19
20
21
22
23

Pl.’s Mot. Compel, Ex. 2 at 4.
Dr. Sayre objected to this interrogatory on the grounds that

24
25
26

Interrogatories to Dr. Sayre, Set One, No. 9

it is compound, contains a statement, assumes facts not in
evidence, and is argumentative.

Defs.’ Opp’n Mot. Compel at 5.

Further, without waiving these objections, Dr. Sayre indicated
27
that he did not recall any verbal statements regarding this issue,
28
16  

1

nor could he locate documents that reflect this issue.

Id.

In his motion to compel, Plaintiff states that he already has

2
3

evidence that Dr. Sayre did in fact make the alleged statements

4

and is seeking additional information that may lead him to find

5

other relevant documents.

6

refers to his Exhibit 5, which is a memorandum that reflects

7

answers provided by Dr. Sayre about Plaintiff’s medical condition

United States District Court
For the Northern District of California 

8
9
10

In support of his argument, Plaintiff

in response to questions asked by Steven Fama of the Prison Law
Office.

Pl.’s Mot. Compel at 8 & Ex. 5.

Dr. Sayre maintains,

however, that the memorandum does not contradict his answer to the
interrogatory because he has responded to the best of his ability

11
and still submits that he does not recall making verbal or written
12
statements regarding the information Plaintiff sets forth in the
13
interrogatory.
14
15

Defs.’ Opp’n Mot. Compel, Ex. A at 3.

Dr. Sayre, by way of his attorney’s signed response to
Plaintiff’s interrogatories, has complied with Rule 26 and

16

certified that, “to the best of his knowledge, information and

17

belief formed after a reasonable inquiry,” he does not possess the

18

information that Plaintiff seeks.

19

cannot be compelled to provide a different response.

20

Plaintiff’s motion to compel Dr. Sayre’s further response to the

21

noted interrogatory is DENIED.

22

II.

Fed. R. Civ. P. 26(g)(1)

He

Accordingly,

Motion for Summary Judgment

23

A.

24

Summary judgment is only proper where the pleadings,

Legal Standard

25

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

26

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

27

a matter of law.”

28

those that may affect the outcome of the case.

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

17  

Material facts are
Anderson v.

1

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

A dispute as to a

2

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

3

jury could return a verdict for the nonmoving party.

Id.

The court will grant summary judgment “against a party who

4
5

fails to make a showing sufficient to establish the existence of

6

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

7

will bear the burden of proof at trial.”

United States District Court
For the Northern District of California 

8
9
10

Catrett, 477 U.S. 317, 322-23 (1986).

Celotex Corp. v.

The moving party bears the

initial burden of identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact.

The

burden then shifts to the nonmoving party to “go beyond the
11
pleadings, and by his own affidavits, or by the ‘depositions,
12
answers to interrogatories, or admissions on file,’ designate
13
‘specific facts showing that there is a genuine issue for trial.’”
14

Id. at 324 (citing Fed. R. Civ. P. 56(e)).

15

In considering a motion for summary judgment, the court must

16

review the evidence in the light most favorable to the nonmoving

17

party.

See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir.

18

1999).

The court’s function on a summary judgment motion is not

19

to make credibility determinations or weigh conflicting evidence

20

with respect to a disputed material fact.

21

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

22

1987).

23

See T.W. Elec. Serv. v.

A district court may consider only admissible evidence in

24

ruling on a motion for summary judgment.

25

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

26

A verified complaint may be used as an opposing affidavit under

27

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

28

forth specific facts admissible in evidence.
18  

See Fed. R. Civ. P.

See Schroeder v.

1

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

2

B.

3

Deliberate indifference to serious medical needs violates the

Deliberate Indifference Standard

Eighth Amendment’s proscription against cruel and unusual

5

punishment.

6

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

7

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

8
United States District Court
For the Northern District of California 

4

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

9

serious mental health needs.

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

Serious medical needs include

See Doty v. County of Lassen, 37

10

F.3d 540, 546 (9th Cir. 1994).

11

indifference” involves an examination of two elements: the

12

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

13

defendant’s response to that need.

A determination of “deliberate

McGuckin, 974 F.2d at 1059.

14

A serious medical need exists if the failure to treat a

15

prisoner’s condition could result in further significant injury or

16

the unnecessary and wanton infliction of pain.

17

of an injury that a reasonable doctor or patient would find

18

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

19

medical condition that significantly affects an individual’s daily

20

activities, or the existence of chronic and substantial pain are

21

examples of indications that a prisoner has a serious need for

22

medical treatment.

23

Id.

The existence

Id. at 1059-60.

A prison official is deliberately indifferent if he knows

24

that a prisoner faces a substantial risk of serious harm and

25

disregards that risk by failing to take reasonable steps to abate

26

it.

27

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

28

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

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

19  

The prison

1

but he “must also draw the inference.”

2

deliberate indifference to be established, therefore, there must

3

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

4

and resulting harm.

5

Id.

In order for

See McGuckin, 974 F.2d at 1060.

Deliberate indifference may be shown when prison officials
deny, delay or intentionally interfere with medical treatment, or

7

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

8
United States District Court
For the Northern District of California 

6

See id. at 1062.

9

prisoner-patient and prison medical authorities regarding

But neither a difference of opinion between a

10

treatment nor a showing of nothing more than a difference of

11

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

12

over another is sufficient to establish deliberate indifference.

13

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

14

order to prevail on a claim involving choices between alternative

15

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

16

treatment the doctors chose was medically unacceptable under the

17

circumstances, and that they chose this course in conscious

18

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

19

1058.

20

C.

21

Id. at

Analysis
1.

22

In

Back Complaints

Plaintiff maintains that Defendants should have provided him

23

with surgery and/or epidural steroid injections to treat his

24

complaints of back pain.

25

judgment, Defendants have presented evidence that, based on their

26

considered medical evaluations, they determined that neither

27

surgery nor epidural steroid injections were appropriate for his

28

back condition.

In support of their motion for summary

Adam Decl. ¶ 5; Thomas Decl. ¶ 18.
20  

1

In particular, Defendants have presented evidence which shows
that Plaintiff’s MRI study results were inconsistent with his

3

reported symptoms.

4

Notably, a referral for a surgery consult made by Thomas was

5

discussed by PBSP medical providers and the Utilization Management

6

Committee, all of whom agreed that Plaintiff’s symptoms were not

7

consistent with his MRI findings, that is, there was no

8
United States District Court
For the Northern District of California 

2

correlation between his reported pain and numbness and the results

9

shown on the MRI.

Adam Decl. ¶ 7; Thomas Decl. ¶¶ 6, 20.

Specifically, the MRI showed some disc

10

protrusion and mild nerve root impingement at the L4-L5 and L5-S1

11

levels of his spine, but the areas of the body where Plaintiff

12

complained of pain did not correlate with these L4-L5 and L5-S1

13

levels.

14

arthritic changes in his back with no new bone formation,

15

fractures or displacement of vertebrae.

16

MRI studies, x-rays and physical examinations of Plaintiff’s back

17

revealed that he suffered from a "mechanical" or arthritic back

18

which cannot be resolved or relieved by surgery.

19

Thomas Decl. ¶ 6.

Moreover, x-ray studies confirmed

Id. ¶ 18.

In sum, the

Id.

In support of their argument, Defendants have submitted the

20

declaration of Dr. Bruce Barnett, a licensed physician who is

21

employed by the CDCR as the CMO of the Receiver’s Office of Legal

22

Affairs.

23

Receiver’s process for reviewing medical care issues raised in

24

various court actions.

25

provided to inmates in the context of applicable standards of care

26

and offers guidance to healthcare providers.

27

cares for patients in the prisons on a part-time basis.

28

he served on the CDCR committee that proposed guidelines for

His current duties include participation in the

He regularly reviews medical services

21  

He also directly
In 2010

1

management of inmates’ chronic pain based upon authoritative

2

medical research and recommendations.

3

Summ. J. (Barnett Decl.) ¶ 3.

4

Decl. B. Barnett Supp. Mot.

According to Dr. Barnett, medical research has shown that MRI
studies of the spine do not accurately or consistently correlate

6

with back pain or disease; rather, the research has shown that

7

many people with disc bulges or protrusions visible on MRIs have

8
United States District Court
For the Northern District of California 

5

no symptoms at all.

9

¶ 6.

Barnett Decl. ¶ 10; Barnett Decl. Supp. Reply

He further attests that surgical treatment is generally not

10

helpful for degenerative changes in the spine (i.e., the arthritic

11

back), and that surgery in Plaintiff’s case was especially

12

inappropriate based on the inconsistencies between the objective

13

findings and his subjective complaints.

14

Barnett Decl. ¶ 10.

Plaintiff asserts that back surgery will “fix” his back

15

problems.

16

was a candidate for back surgery there is extensive authoritative

17

literature establishing that back surgery often fails to cure back

18

pain and leaves patients worse off than before surgery.

19

Decl. Supp. Reply ¶¶ 6-7.

20

According to Dr. Barnett, however, even if Plaintiff

Barnett

Plaintiff argues that Defendants should have ordered epidural

21

steroid injections for his back.

22

Defendants’ undisputed declarations, epidural steroid injections

23

are no longer administered to inmate patients in the CDCR because

24

of an abundance of medical literature which has found little to no

25

benefit from such injections for chronic low back pain and

26

attendant significant risks to the patient.

27

Adam Decl. ¶ 5; Thomas Decl. ¶ 18.

28

However, according to

Barnett Decl. ¶ 14;

Based on the above evidence, the Court finds that Plaintiff
22  

1

has not raised a triable issue of material fact with respect to

2

whether Defendants’ decision to deny his requests for surgery or

3

epidural injections were medically unacceptable under the

4

circumstances and whether they chose this course of action in

5

conscious disregard of an exceptional risk to his health.

6

Toguchi, 391 F.3d at 1058.

7

summary judgment on this claim.

United States District Court
For the Northern District of California 

8

2.

Accordingly, Defendants are GRANTED

Wedge Pillow for Back Pain

9

Plaintiff claims that Dr. Sayre acted with deliberate

10

indifference to his serious medical needs by discontinuing his

11

chrono for a wedge pillow that had been prescribed by the CMO at

12

Corcoran.

13

position himself more comfortably while in bed, enabling him to

14

sleep better.

He maintains that the wedge pillow helps him to

15

Defendants contend Dr. Sayre acted reasonably because a wedge

16

pillow is not medically necessary for the treatment of Plaintiff’s

17

back pain.

18

Regulations (CCR), Defendants can administer only health care that

19

is “medically necessary.”

20

assessment of the patient’s medical needs in light of those

21

treatments which have been found to be medically indicated based

22

on objective medical studies (“outcome data”) pursuant to CCR

23

Section 3350.28

24

According to Title 15 of the California Code of

Medical necessity is determined by

Barnett Decl. Supp. Reply ¶¶ 4, 9.

In Dr.

8

CCR Section 3350(b) defines these terms as follows:

25
(1) Medically Necessary means health care services that
are determined by the attending physician to be
reasonable and necessary to protect life, prevent
significant illness or disability, or alleviate severe
pain, and are supported by health outcome data as being
effective medical care.

26
27
28

23  

Barnett’s opinion, there is no objective evidence that a wedge

2

pillow is “medically necessary” for Plaintiff as defined in CCR

3

Section 3350.

4

wedge pillow might be used by Plaintiff to make himself more

5

“comfortable,” but opines that there is insufficient support in

6

the medical research for the proposition that a wedge pillow

7

reduces back pain and, hence, is medically necessary.

8
United States District Court
For the Northern District of California 

1

Decl. ¶ 16.

9

that he was capable of sleeping on both sides and could turn to

10

Specifically, Dr. Barnett does not dispute that a

Further, Defendants note that Plaintiff told Thomas

get into these positions.

11

Barnett

Thomas Decl. ¶ 16.

Based on the above evidence, the Court finds that Plaintiff

12

has not raised a triable issue of material fact with respect to

13

whether Dr. Sayre’s decision to discontinue his chrono for a wedge

14

pillow was medically unacceptable under the circumstances and

15

whether he chose this course of action in conscious disregard of

16

an exceptional risk to his health.

17

Accordingly, Defendants are GRANTED summary judgment on this

18

claim.

19

Toguchi, 391 F.3d at 1058.

20
21

(2) Outcome Study means the definition, collection and
analysis of comparable data, based on variations in
treatment, concerning patient health assessment for
purposes of improving outcomes and identifying costeffective alternatives.

22
23
24

(3) Outcome Data mean statistics such as diagnoses,
procedures, discharge status, length of hospital stay,
morbidity and mortality of patients, that are collected
and evaluated using science-based methodologies and
expert clinical judgment for purposes of outcome
studies.

25
26
27
28

24  

1

3.

2

Medications

Plaintiff complains about Defendants’ discontinuation of his

3

morphine prescription for pain relief.

4

permits him to engage in normal activities.

5

or scientific evidence has been presented to support this claim.

6

He states that morphine
However, no medical

According to Defendants’ evidence, morphine is a highly toxic
and addictive opiate appropriately used only in unusual and

8
United States District Court
For the Northern District of California 

7

extreme circumstances for severe pain arising from anatomic

9

defects or diseases clearly identified as appropriate for such

10

therapy.

11

degree of extreme discomfort, not eliminate all barriers to normal

12

activity.

13

The goal in prescribing morphine is to ameliorate the

Barnett Decl. Supp. Reply ¶ 10.

Defendants attest that, in Plaintiff’s case, the objective

14

evidence does not show that he has any anatomic defects or

15

diseases that require treatment with morphine.

16

of his reported mechanical back pain with opiates such as morphine

17

would be ill-advised based on the medical evidence of his

18

condition.

19

morphine--including sedation and death--are serious and

20

substantial, and there is no clinical benefit to such treatment.

21

Barnett Decl. ¶¶ 12-13; Barnett Decl. Supp. Reply ¶ 10.

22

Barnett opines: “The physical examinations, diagnostic results and

23

evidence of Plaintiff’s daily function provides ample basis for

24

defendants to appropriately engage in conservative treatment

25

strategies, and to avoid surgery, use of opiates or other

26

unnecessary and potentially dangerous medical treatment.”

27

Decl. Supp. Reply ¶ 11.

28

Further, treatment

Specifically, the risks of complications from

Dr.

Barnett

Additionally, Defendants present evidence that, based on
25  

Plaintiff’s chronic medical conditions of high blood pressure and

2

Hepatitis C, the Pain Management Committee properly concluded that

3

his medications must be carefully monitored at low doses.

4

Consequently, his medical providers have treated him with short

5

courses of narcotic medications for his complaints of acute

6

episodes of back discomfort.

7

¶ 6.

8
United States District Court
For the Northern District of California 

1

Plaintiff’s prescriptions, not just morphine.

9

committee meetings in December 2010 and June 2011, it was

See Adam Decl. ¶ 9; Barnett Decl.

The Pain Management Committee’s conclusion applied to all of
For example, at

10

recommended that Plaintiff’s use of Naproxen be limited and kept

11

at a lower dose.

12

wait for him to submit a request for healthcare services and

13

address any pain issues as they arose, with the goal of reducing

14

his Naproxen prescription to 250 mg, to be filled only on rare

15

occasions for back pain flare-ups, in order to limit side effects

16

from long term use and complications with his hypertension and

17

Hepatitis C.

18

Consequently, Thomas determined that she would

Thomas Decl. ¶¶ 10-11, 19, 21.

Notwithstanding these limitations, the evidence shows that

19

Defendants have prescribed a number of other pain medications to

20

try to manage Plaintiff’s discomfort.

21

reporting, however, all medications have proved ineffective.

22

Notably, Thomas has prescribed a number of medications for his

23

complaints, including Sulindac, Naproxen, Salsalate, Gabapentin,

24

Tylenol #3, Nortriptyline and Amitriptyline.

25

has denied any benefit from Nortriptyline, Salsalate, Gabapentin

26

and Tylenol #3, and claimed that Naproxen caused burning in his

27

stomach and Amitriptyline caused numbing in his mouth.

28

According to his self-

However, Plaintiff

Based on the above evidence, the Court finds that Plaintiff
26  

1

has not raised a triable issue of material fact with respect to

2

whether Defendants’ medication decisions were medically

3

unacceptable under the circumstances and whether they chose their

4

course of action in conscious disregard of an exceptional risk to

5

his health.

6

are GRANTED summary judgment on this claim.

7

4.

8
United States District Court
For the Northern District of California 

Toguchi, 391 F.3d at 1058.

Accordingly, Defendants

Knee Pain

Plaintiff alleges that knee surgery had been approved for him

9

at Corcoran before his transfer to PBSP, and that Defendants’

10

decision not to provide him with the surgery evidences their

11

deliberate indifference to his medical needs.

12

the following evidence in support of their argument that it is not

13

medically necessary for him to see an orthopedic surgeon for

14

consultation or repair of his knee.

15

Defendants present

Thomas saw Plaintiff on January 31, 2011, for complaints of

16

left knee pain.

17

surgery in 2007 he had complained of continued pain and a

18

subsequent MRI revealed re-injury to the medial meniscus.

19

examination revealed a very mild limp favoring the left leg, which

20

got better with each step, and that he was able to get on and off

21

the table and bend to sit in the chair.

22

findings were consistent with left knee pain with known medial

23

meniscal tear.

24

Management Committee for evaluation of his left knee by an

25

orthopedic surgeon.

26

meet the InterQual standardized criteria used to evaluate and

27

determine the need for diagnostic testing and treatment.

28

Decl. ¶ 10.

She noted that after previous arthroscopic knee

Her examination and

Thomas referred Plaintiff to the Utilization

The request was denied because it did not

Specifically, the committee determined that
27  

Her

Thomas

1

Plaintiff’s condition did not meet the criteria for an orthopedic

2

consult or repair because the examination indicated that his knee

3

was not unstable, which is the InterQual criterion required to

4

refer a patient for an orthopedic consult for the knee.

5

Decl. ¶ 7.

Sayre

Based upon Dr. Barnett’s training and experience and his

7

review of the medical record, it is his professional opinion that

8
United States District Court
For the Northern District of California 

6

this determination was appropriate and consistent with the

9

standard of care for best practices.

There is substantial

10

evidence in Plaintiff's medical records to show that his knee is

11

stable and that he can engage in activities such as exercising for

12

an hour or more each day.

13

Opp’n ¶ 38.

14

improper to perform surgery, and Defendants’ decision to reject

15

Plaintiff’s request for an orthopedic consultation and surgery is

16

consistent with the best practices as set forth in in the

17

InterQual guidelines and authoritative journals.

18

Supp. Reply ¶ 16.

19

See Compl. Ex. 33; Pl.’s Decl. Supp.

Consequently, Dr. Barnett opines, it would be

Barnett Decl.

Based on the above evidence, the Court finds that Plaintiff

20

has not raised a triable issue of material fact with respect to

21

whether Defendants’ treatment of his knee pain was medically

22

unacceptable under the circumstances and whether they chose their

23

course of action in conscious disregard of an exceptional risk to

24

his health.

25

are GRANTED summary judgment on this claim.

26

5.

27
28

Toguchi, 391 F.3d at 1058.

Accordingly, Defendants

Left Leg Pain

Plaintiff contends that Defendants failed to treat symptoms
of numbness and tingling in his lower left leg.
28  

According to

Defendants’ evidence, Plaintiff has peroneal nerve damage that

2

occurred after his knee trauma and subsequent surgery in 2007;

3

this nerve damage is not related to his complaints of low back

4

pain and cannot be cured.

5

alleviate the peroneal nerve discomfort is neuropathic pain

6

medications.

7

Plaintiff by Thomas and other medical providers for this condition

8
United States District Court
For the Northern District of California 

1

but, according to Plaintiff’s self-reporting, he has obtained no

9

relief from them.

10

The only possible treatment to

Numerous medications have been prescribed for

Thomas Decl. ¶ 19.

Plaintiff describes numerous prior consultations in 2007 and

11

2008 with orthopedic, neurology and pain management experts and

12

alleges that none of those medical doctors determined that his

13

peroneal nerve damage was due to the knee surgery, as Defendants

14

have claimed.

15

"rare" side effect of knee surgery and suggests that it is

16

therefore impossible that his symptoms can be attributed to his

17

previous knee surgery or damage to the peroneal nerve.

18

assert that this argument is misguided.

19

to the record evidence, an EMG report dated March 24, 2009, shows

20

that Plaintiff does have peroneal nerve damage.

21

nerve emanates from around the area of the knee as a branch of the

22

sciatic nerve; there is no peroneal nerve in the back.

23

to Dr. Barnett, calf numbness can arise from damage to the sensory

24

branches of the peroneal nerve, but pain and numbness in the calf

25

may also be symptoms associated with nerve compression at the

26

level of the spine.

27

sensory deficits associated with either or both of these

28

conditions, that is, he may have symptoms arising from compromise

He further states that peroneal nerve damage is a

Specifically, according

The peroneal

According

He acknowledges that Plaintiff may have some

29  

Defendants

of the peroneal nerve and he may be experiencing symptoms from

2

traction on nerve fibers coming from his low spine or throughout

3

the sciatic nerve.

4

professional opinion that, based upon his experience and training,

5

the evidence in the medical record and the radiographic findings,

6

Plaintiff does not suffer from a condition that is “even close” to

7

warranting surgical intervention.

8
United States District Court
For the Northern District of California 

1

14.

9

But, in either case, it is Dr. Barnett’s

Barnett Decl. Supp. Reply ¶

Based on the above evidence, the Court finds that Plaintiff

10

has not raised a triable issue of material fact with respect to

11

whether Defendants’ diagnosis and treatment of his left leg pain

12

was medically unacceptable under the circumstances and whether

13

they chose their course of action in conscious disregard of an

14

exceptional risk to his health.

15

Accordingly, Defendants are GRANTED summary judgment on this

16

claim.

17

6.

18

Toguchi, 391 F.3d at 1058.

Warden Jacquez

In addition to the above claims that he was not provided with

19

adequate medical care by Defendants, Plaintiff maintains that

20

Defendant Warden F. Jacquez acted with deliberate indifference

21

because he is responsible “overall” for the actions of his

22

employees, and because he did not approve Plaintiff’s transfer to

23

another prison where he could receive proper medical care.

24

¶ 9.9

Compl.

25

26
9

27
28

Jacquez was the Warden at PBSP from September 2008 until
January 2010, and was the Chief Deputy Warden at PBSP from January
2010 until his retirement from the CDCR in July 2011.
30  

1

Plaintiff’s claim fails because, as a matter of law, there is
no respondeat superior liability under 42 U.S.C. § 1983.

3

under no circumstances can a defendant be held liable solely

4

because he is responsible for the actions or omissions of another.

5

See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

6

supervisor may be liable under § 1983 upon a showing of either his

7

personal involvement in the constitutional deprivation or a

8
United States District Court
For the Northern District of California 

2

sufficient causal connection between his wrongful conduct and the

9

constitutional violation.

10

1003-04 (9th Cir. 2012).

11

plaintiff must show that the supervisor had the requisite state of

12

mind, which turns on the requirement of the particular claim and,

13

more specifically, on the state of mind required by the particular

14

claim, not on a generally applicable concept of supervisory

15

liability.

16

F.3d 1053, 1071 (9th Cir. 2012).

17

That is,

A

Henry A. v. Willden, 678 F.3d 991,
In order to establish such liability, a

Oregon State University Student Alliance v. Ray, 699

Here, Plaintiff has not presented evidence that raises a

18

triable issue with respect to whether Jacquez acted with

19

deliberate indifference to his serious medical needs.

20

the undisputed evidence shows that Jacquez’s only involvement with

21

Plaintiff was his attendance at three Institutional Classification

22

Committee (ICC) meetings where the status and custody levels of

23

inmates in segregated housing, including Plaintiff, were

24

discussed.

25

¶¶ 4-5.

26

Plaintiff’s security status and custody issues with him, including

27

criteria for his segregated housing status at PBSP, but it does

28

not reflect that any ICC member, including Jacquez, spoke with him

Decl. F. Jacquez Supp. Mot. Summ. J. (Jacquez Decl.)

The record shows that the ICC members discussed

31  

Instead,

1

about a request to change prison institutions to seek different

2

medical treatments for his back pain or a transfer for any other

3

medical purpose.

4

Jacquez Decl. ¶ 5 & Ex. A.

Additionally, the undisputed evidence shows that, as Warden
or Chief Deputy Warden, Jacquez was not responsible for

6

determining the appropriate course of medical treatment for

7

inmates at PBSP, he is not a medical doctor, he has never

8
United States District Court
For the Northern District of California 

5

practiced medicine and he did not have the responsibility of

9

employing or dismissing any medical personnel.

10

Jacquez Decl. ¶ 7.

Based on the above, summary judgment is GRANTED to Jacquez on

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Plaintiff’s claim of deliberate indifference.

12

III. Qualified Immunity

13

Defendants argue that they are entitled to qualified

14

immunity.

15

and money damages.

16

suit for money damages, and does not provide immunity from a suit

17

seeking declaratory or injunctive relief.”

18

F.3d 937, 939-40 (9th Cir. 2012).

19

entitled to qualified immunity on Plaintiff’s injunctive relief

20

claims.

21

In this case, Plaintiff seeks both injunctive relief
“Qualified immunity is only an immunity from

Hydrick v. Hunter, 669

Accordingly, Defendants are not

With respect to Plaintiff’s damages claims, the defense of

22

qualified immunity protects “government officials . . . from

23

liability for civil damages insofar as their conduct does not

24

violate clearly established statutory or constitutional rights of

25

which a reasonable person would have known.”

26

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

27

of qualified immunity must determine whether the plaintiff has

28

alleged the deprivation of an actual constitutional right and
32  

Harlow v.

A court considering a claim

1

whether the right was clearly established, such that it would be

2

clear to a reasonable officer that his conduct was unlawful in the

3

situation he confronted. See Pearson v. Callahan, 555 U.S. 223,

4

236 (2009).
On the facts presented herein, viewed in the light most

6

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

7

their qualified immunity defense because the record establishes no

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United States District Court
For the Northern District of California 

5

constitutional violation.

9

occur, however, Defendants reasonably could have believed their

Even if a constitutional violation did

10

conduct was lawful. Specifically, it would not have been clear to

11

Defendants that they failed to take reasonable steps to abate a

12

substantial risk of harm to Plaintiff by providing him with the

13

above-described care and treatment for his back and leg pain and

14

other symptoms.

15

Accordingly, Defendants are entitled to qualified immunity,

16

and their motion for summary judgment is GRANTED for this reason

17

as well.

18

IV.

Supplemental State Law Claims

19

In addition to Plaintiff’s claims that Defendants acted with

20

deliberate indifference to his serious medical needs in violation

21

of the Eighth Amendment, he raises supplemental state law claims

22

of medical negligence.

23

The elements of a claim for professional negligence, also

24

referred to as medical malpractice, under California law, are:

25

“(1) the duty of the professional to use such skill, prudence, and

26

diligence as other members of his profession commonly possess and

27

exercise; (2) a breach of that duty; (3) a proximate causal

28

connection between the negligent conduct and the resulting injury;
33  

and (4) actual loss or damage resulting from the professional’s

2

negligence.”

3

in part by Cal. Civ. Proc. Code § 340.6.

4

employees often enjoy immunity from state tort liability,

5

California law expressly provides: “Nothing in this section

6

exonerates a public employee who is lawfully engaged in the

7

practice of one of the healing arts under any law of this state

8
United States District Court
For the Northern District of California 

1

from liability for injury proximately caused by malpractice.”

9

Cal. Gov't. Code § 845.6.

Budd v. Nixen, 6 Cal.3d 195, 200 (1971), superseded
Although prison

10

Defendants argue that the medical care they provided to

11

Plaintiff fell within the professional standard of care and that

12

they did not cause him injury.

13

described in detail above, supports the conclusion that Defendants

14

The evidence in the record,

were not negligent in treating Plaintiff’s back pain, knee pain
and left leg numbness.

Alternatively, even if Defendants had been

15
negligent, Plaintiff has not presented evidence which shows that
16

he suffered a cognizable loss or damage related to their care or

17

lack thereof.

18

judgment on Plaintiff’s medical negligence claims is GRANTED.

19

V.

20

Accordingly, Defendants’ motion for summary

Motion for Appointment of Counsel
Plaintiff moves for the appointment of counsel to represent

21

him in this action.

22

Defendants with respect to all claims against them, Plaintiff’s

23

claim is moot and, therefore, is DENIED.

Because the Court has ruled in favor of

CONCLUSION

24
25

For the foregoing reasons, the Court orders as follows:

26

1.

Defendants’ motion for summary judgment is GRANTED with

27

respect to all claims brought against them.

28

Judgment shall be entered in favor of all Defendants and against
34  

Docket no. 23.

1

Plaintiff.

2

2.

Plaintiff’s motion to compel is DENIED.

3

3.

Plaintiff’s motion for the appointment of counsel is

4

DENIED.

5
6

United States District Court
For the Northern District of California 

9

Docket no. 40.

The Clerk of the Court shall enter judgment and close the
file.

7
8

Docket no. 26.

This Order terminates Docket nos. 23, 26 and 40.
IT IS SO ORDERED.
Dated: 9/11/2013
CLAUDIA WILKEN
United States District Judge

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