Thornberry v. Ahmed et al

Filing 43

ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT; GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; AND ADDRESSING PLAINTIFF'S OTHER PENDING MOTIONS by Judge Yvonne Gonzalez Rogers denying as moot 36 Motion t o Appoint Counsel ; granting 39 Motion for Leave to File; denying as moot 40 Motion for Leave to File; granting 29 Motion for Summary Judgment; denying 31 Motion for Leave to File. (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 8/14/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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DANIEL THORNBERRY,

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Case No. C 12-6129 YGR (PR)
Plaintiff,

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v.

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Z. AHMED, et al.,

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Defendants.

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ORDER (1) DENYING PLAINTIFF’S
MOTION FOR LEAVE TO FILE
AMENDED COMPLAINT;
(2) GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT; AND (3) ADDRESSING
PLAINTIFF’S OTHER PENDING
MOTIONS

United States District Court
Northern District of California

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INTRODUCTION

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Plaintiff Daniel Thornberry, a state prisoner currently incarcerated at California State

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Prison - Sacramento (“CSP-Sacramento”), filed a pro se civil rights action pursuant to 42 U.S.C.

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§ 1983. Plaintiff alleged that while he was incarcerated at the Correctional Training Facility

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(“CTF”) from 2011 to 2012, Defendants provided constitutionally inadequate medical care for his

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scoliosis.1 He named the following Defendants: CTF Chief Executive Officer (“CEO”) G. Ellis;

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CTF Physicians Z. Ahmed and Laurie Hedden; and the “Director of California Correctional Health

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Care Services.” Plaintiff is seeking monetary damages.

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In an Order dated February 15, 2013, the Court issued its Order of Service upon finding

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Plaintiff’s claims cognizable as a violation of the Eighth Amendment against Defendants Ellis,

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Ahmed, and Hedden. (Dkt. 8 at 2.) The Court dismissed Plaintiff’s supervisory liability claim

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against Defendant “Director of California Correctional Health Care Services.” (Id. at 2-3 (citing

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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (no respondeat superior liability under section

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1983 solely because a defendant is responsible for the actions or omissions of another).)

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Before the Court is Defendants’ motion for summary judgment. (Dkt. 29.)

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Scoliosis is a lateral curvature of the spine. See Merriam-Webster Online Dictionary,
retrieved August 12, 2014, from http://www.merriam-webster.com/medlineplus/scoliosis.

Also before the Court are several motions filed by Plaintiff, including: a motion for leave

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to file an amended complaint (dkt. 31); a request for appointment of counsel (dkt. 36); a motion

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for leave to file a response to Defendants’ motion for summary judgment (dkt. 39); and a motion

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for leave to file a sur-reply (dkt. 40).
For the reasons stated below, Plaintiff’s motion to file a response to Defendants’ motion

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for summary judgment is GRANTED; Defendants’ motion for summary judgment is GRANTED;

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and Plaintiff’s motion to file an amended complaint, request for appointment of counsel, and

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motion to file a sur-reply are DENIED.
DISCUSSION

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United States District Court
Northern District of California

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PLAINTIFF’S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT AND
MOTION FOR LEAVE TO FILE A RESPONSE TO MOTION FOR SUMMARY
JUDGMENT

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Defendants filed their motion for summary judgment on September 17, 2013 (dkt. 29), as

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required by this Court’s Order of Service on February 15, 2013 and Order Granting an Extension

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of Time to File Dispositive Motion (dkts. 8, 23). Plaintiff filed his motion for leave to amend the

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complaint on September 16, 2013 – the day before Defendants’ motion for summary judgment

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was due. (Dkt. 31.) Plaintiff’s original complaint had been filed over nine months earlier, on

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December 3, 2012. (Dkt. 1.)

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I.

Plaintiff filed the instant motion for leave to file an amended complaint purportedly

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because he wishes to include new legal claims and additional prayers for relief due to newly

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discovered facts. (Dkt. 31 at 2.) Specifically, Plaintiff seeks to amend the complaint to add:

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(1) additional facts regarding his treatment with Defendants Ahmed and Hedden and other medical

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professionals in 2011-2012 (dkt. 31-1 ¶¶ 6-20, 34-40, Ex. A); (2) legal argument, including

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Plaintiff’s medical and legal opinions regarding the propriety of his care (Id. ¶ 21-33, 41-44, 46);

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and (3) additional facts and arguments related to Plaintiff’s medical condition and subsequent care

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by other CDCR medical professionals, including physicians from CSP-Sacramento (Id. ¶¶ 28-31,

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34). Additionally, in the proposed amended complaint, Plaintiff seeks declaratory as well as

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monetary relief. (Id. ¶ 21.)

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Defendants argue that Plaintiff can introduce the aforementioned additional facts, opinions,

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and arguments by way of a response to the pending motion. (Dkt. 33 at 3-4.) Furthermore, they

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argue that while Plaintiff seeks additional declaratory relief, he does not seek to add different

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claims or parties. (Id. at 4 (citing dkt. 31-1 ¶¶ 49-61).) Defendants argue that they “should not be

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forced to again expend the considerable time, efforts, resources, and costs necessary to respond to

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a first amended complaint, which in essence only changes the style of the allegations and claims

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for relief, but not their substance.” (Dkt. 33 at 4.) Finally, Defendants assert “[n]othing in

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Plaintiff’s proposed first amended complaint alters the necessity of determining the central issues

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already raised in his earlier complaint and the filed motion for summary judgment.” (Id. at 3.)

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The Court agrees with Defendants. As further explained below, Plaintiff’s purported additional
legal claims in the proposed amended complaint are substantively identical to his deliberate

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United States District Court
Northern District of California

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indifference claim in his original complaint.

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Federal Rule of Civil Procedure 15(a) provides that leave to amend “shall be freely given

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when justice so requires.” In considering whether to grant or deny a motion seeking leave to

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amend a complaint, the district court may consider whether there is bad faith, undue delay,

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prejudice to the opposing party, futility in the amendment, and whether the plaintiff has previously

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amended his complaint. See Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990).

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While mere delay in seeking to amend is not grounds to deny amendment, leave need not be

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granted, where the amendment of the complaint would cause the opposing party undue prejudice,

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is sought in bad faith, constitutes an exercise in futility, or creates undue delay. Janicki Logging

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Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994); see also Roberts v. Arizona Bd. of Regents, 661

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F.2d 796, 798 (9th Cir. 1981) (district court’s finding of prejudice to defendants sufficient to deny

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amendment, because motion to amend came at eleventh hour, when summary judgment pending

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and discovery period had closed, affirmed as proper exercise of district court’s discretion).

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Furthermore, liberality with which amendment is usually permitted is tempered in a

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pauper-prisoner’s civil action by the gate-keeping functions in 28 U.S.C. §§ 1915 and 1915A. The

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rule that a pro se litigant’s pleadings be liberally construed means that amendment generally is not

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necessary to amplify the details of a claim or particular theories supporting the claim when the

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district court has already determined that the earlier pleading sufficed to state a claim for relief.

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Here, the Court finds that justice does not require that Plaintiff be permitted to further

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amend his pleading. First, Plaintiff need not amend his complaint to include more facts or bolster

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his claims as the Court has already found that his original complaint stated cognizable claims for

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relief, and it has issued service of the complaint on Defendants (who have since filed a motion for

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summary judgment). Second, Plaintiff does not now seek to add any new claims that were not in

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the original complaint. Third, Defendants would be substantially prejudiced by such amendment

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coming at the eleventh hour, and substantial delay would result if the amendment was granted. As

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explained above, Plaintiff filed his motion to amend his complaint one day before Defendants’

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motion for summary judgment was due – when the discovery period has closed. Finally, Plaintiff
need not amend his complaint to oppose the summary judgment motion because he has actually

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United States District Court
Northern District of California

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filed a motion for leave to file a response to Defendants’ motion, and the Court will consider such

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a response in resolving that motion below.
Accordingly, the Court DENIES Plaintiff’s motion for leave to file an amended complaint

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(dkt. 31); and GRANTS Plaintiff’s motion for leave to file a response to Defendants’ motion for

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summary judgment (dkt. 39).

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II.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

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A.

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The following factual allegations are not disputed, unless specifically noted:

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

August 4 or 11, 2011: Plaintiff claims that on August 4, 2011, he filed a Healthcare
Services Request Form (“HSRF”), stating that he had scoliosis and that it was painful
to walk, he requested pain management to alleviate his symptoms. (Dkt. 34 at 3.)2
Meanwhile, Defendants state that Plaintiff made such a request seven days later, on
August 11, 2011. (Dkt. 29-1, Ahmed Declaration (“Ahmed Decl.”) ¶ 7.)



August 24, 2011: Defendant Ahmed examined Plaintiff.3 According to Defendant
Ahmed, it appeared that Plaintiff had been suffering from scoliosis since birth, but was
only diagnosed at the age of 14.4 (Ahmed Decl. ¶ 2.) Plaintiff’s scoliosis caused him

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FACTUAL BACKGROUND

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Page number citations refer to those assigned by the Court’s electronic case management
filing system and not those assigned by Plaintiff.
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Plaintiff claims that the examination took place on August 4, 2011. (Dkt. 34 at 3.)
However, the record shows that this examination actually occurred twenty days later, on August
24, 2011. (Dkt. 1 at 45; Ahmed Decl. ¶ 7.)
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Plaintiff also suffers from Hepatitis C virus (“HCV”) and bipolar disorder. (Ahmed Decl.

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chronic pain in his lower back, hip and left leg. (Id.) After a discussion about
Plaintiff’s current complaints of pain when he walked, shortness of breath, and chest
pain, Defendant Ahmed prescribed Nortriptyline (chronic pain medication), Robaxin
(for muscle spasms), and Salsalate (for pain and inflammation). (Ahmed Decl. ¶ 7.)

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

September 1 and 20, 2011: Plaintiff was examined by CTF Registered Nurse (“RN”)
Pruitt. On September 1, 2011, Plaintiff submitted another HSRF indicating that he was
still experiencing pain in his left leg and having difficulty climbing stairs. (Ahmed
Decl., Ex. A at AGO 306.) On September 20, 2011, Plaintiff was examined again by
RN Pruitt, who advised him to continue his stretches and apply a warm compress to
help alleviate the pain. (Ahmed Decl. ¶ 10.)



October 5, 2011: Plaintiff complained he experienced pain constantly, and he was
examined by Defendant Ahmed for a second time. (Ahmed Decl. ¶ 11.) Defendant
Ahmed stated that he witnessed Plaintiff walk into the clinic “with a normal gait,
comfortably, and without any outward signs of pain or distress.” (Id.) Plaintiff asserts
that Defendant Ahmed was inside the clinic and could not have possibly witnessed him
walk into the clinic. (Dkt. 34 at 4.) After reviewing the x-ray in Plaintiff’s file,
Defendant Ahmed decided to continue Plaintiff’s current medication and instructed
him about proper diet and exercise techniques to strengthen the spinal muscles.
(Ahmed Decl. ¶ 11.)



October 24 and 31, 2011: Plaintiff submitted another HSRF on October 24, 2011,
complaining of pain in his left hip, knee, ankle as well as requesting different pain
medication and an MRI.5 (Dkt. 34 at 5.) On October 31, 2011, RN Pruitt examined
Plaintiff again pursuant to the aforementioned HSRF. RN Pruitt instructed Plaintiff on
how to do proper stretches. (Ahmed Decl. ¶ 10.)



December 15 and 16, 2011: Plaintiff submitted another HSRF complaining of leg pain
and requesting an MRI. Plaintiff states the x-ray was inconclusive because it was not
an x-ray of his spine. (Dkt. 34 at 6.) Plaintiff was examined by RN Pruitt again, and
he reported that Ibuprofen helped somewhat with the pain. (Ahmed Decl. ¶ 14.)



January 1 and 5, 2012: Plaintiff submitted another HSRF on January 1, 2012. (Dkt.
34 at 7.) RN Pruitt examined Plaintiff again and referred him to Defendant Ahmed.
(Dkt. 29 at 9.)



January 17, 2012: Plaintiff was examined by Defendant Ahmed. (Ahmed Decl. ¶ 15.)
Plaintiff requested morphine. (Dkt. 34 at 7.) Defendant Ahmed explained that he did
not detect any swelling or tenderness, and he concluded that Plaintiff did not qualify
for a narcotic such as morphine at that time. (Ahmed Decl. ¶ 15.)



January 30, 2012: Defendant Ahmed treated Plaintiff for the final time before he was
transferred to a different unit. Defendant Ahmed ordered a medical hold to prevent the
transfer until Plaintiff’s HCV treatment was complete. (Ahmed Decl. ¶ 16.) Plaintiff
was then transferred from CTF North to CTF Central and reassigned to Defendant

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¶ 2.)
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MRI stands for Magnetic Resonance Imaging.

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Hedden. (Id.)

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

April 9, 2012: Plaintiff saw Defendant Hedden for the first time and complained of
lower leg pain. (Dkt. 29-2, Hedden Declaration (“Hedden Decl.”) ¶ 7; dkt. 34 at 7.)
Defendant Hedden diagnosed Plaintiff with moderate to severe scoliosis and a
derangement of an intervertebral disk6 resulting in leg pain. (Hedden Decl. ¶ 7.)
Defendant Hedden then prescribed Tramadol, a painkiller, and referred Plaintiff to
physical therapy. (Id.) Defendant Hedden obtained approval from Defendant Ellis to
prescribe Tramadol, a stronger pain medication. (Dkt. 1 at 6.) Plaintiff also requested
an MRI at this time, which was denied. (Dkt. 34 at 7.)



April 15, 2012: Defendant Hedden states that Plaintiff requested his prescription for
Elavil be discontinued because he said Tramadol was “enough to take care of [his]
pain . . . .” (Hedden Decl. ¶ 8.) Accordingly, Defendant Hedden discontinued his
prescription for Elavil on April 18. (Id.)



May 10, 2012: Plaintiff was examined by RN Estamo regarding excessively dry skin
but reported that his pain level was zero on a scale of zero to ten. (Hedden Decl. ¶ 9.)



May 23, 2012: Plaintiff was examined by CTF Physician’s Assistant (“PA”) Trent for
a follow-up appointment regarding Plaintiff’s lower back pain. PA Trent diagnosed
Plaintiff with left leg radiculopathy.7 (Hedden Decl. ¶ 10.) PA Trent also noted a
possible nerve impingement and ordered prescriptions for Robaxin and Motrin and
continued stretches and physical therapy. (Id.)



June 5, 2012: At a follow-up appointment with RN Estamo, Plaintiff stated he was in
pain and the prescriptions for Tramadol and Ibuprofen were not helping the pain.
(Hedden Decl. ¶ 11.)



June 11, 2012: Plaintiff had a follow-up appointment regarding his leg pain with
Defendant Hedden. Plaintiff stated that he had no change in strength but his left foot
was dragging slightly, and that he had decreased sensitivity in his calf. (Hedden Decl.
¶ 12.) Defendant Hedden ordered a comprehensive “5-view” x-ray for Plaintiff. (Id.)
From the results of this x-ray, Defendant Hedden diagnosed Plaintiff with
radiculopathy in his left leg. (Id.) Defendant Hedden discussed proper back care and
stretches that could help alleviate the pain.



June 15, 2012: Plaintiff was examined by RN Estamo after falling the night prior, June
14, 2012. (Hedden Decl. ¶ 13.) Plaintiff did not appear to have any injuries. (Id.) He
reported no pain or discomfort except for some nausea and difficulty breathing. (Id.)
RN Estamo determined that Plaintiff was “fine,” but instructed him to inform the

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Intervertebral disks are any of the tough elastic disks that are interposed between the
centra of adjoining vertebrae and that consist of an outer annulus fibrosus enclosing an inner
nucleus pulposus. See Merriam-Webster Online Dictionary, retrieved August 12, 2014, from
http://www.merriam-webster.com/medlineplus/intervertebral%20disk.
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Radiculopathy refers to any pathological condition of the nerve roots. See MerriamWebster Online Dictionary, retrieved August 12, 2014, from http://www.merriamwebster.com/medlineplus/radiculopathy.

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prison staff of any further pain or discomfort. (Id.)

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

June 20, 2012: Plaintiff was examined by PA Trent. Plaintiff told PA Trent about the
June 14, 2012 fall, and explained that he was slightly off balance due to problems with
his left foot. (Hedden Decl. ¶ 14.) Plaintiff requested a prescription for morphine for
his lower back pain, stating the Tramadol was helpful but did not totally alleviate the
pain. (Id.) PA Trent noted that Plaintiff walked without difficulty and did not require
support. (Id.) PA Trent informed Plaintiff that he could continue taking the Tramadol
for pain management, but that he was not eligible for narcotics at that time. (Id.) PA
Trent classified Plaintiff on limited duty work classification status and ordered him an
electromyogram/nerve conduction study. (Id.)



July 6, 2012: Plaintiff was examined by Defendant Hedden and she diagnosed him
with moderately severe scoliosis, left hip arthropathy (disease of the joint), and
subclinical hypothyroidism8 induced by his lithium medication for his bipolar disorder.
(Hedden Decl. ¶ 15.) Defendant Hedden did not believe a change in medication was
necessary at that time. (Id.) Plaintiff states that the Tramadol was nominally effective
for his pain management at this time. (Dkt. 1 at 6.) Plaintiff asserts that Defendant
Hedden refused to request an MRI despite the physical therapists “conclusion that
Plaintiff was suffering from lack of mobility in addition to other physical difficulties as
a result of the scoliosis and left leg pain.” (Id.)



July 13, 2012: Plaintiff was again examined by Defendant Hedden, who noted that
Plaintiff had no acute issues. (Hedden Decl. ¶ 16.) Plaintiff told Defendant Hedden
that the pain was managed adequately so long as he avoided prolonged standing and
walking. (Id.) He also inquired about the electromyography test for evaluating
electrical activity in skeletal muscles. (Id.) Defendant Hedden emailed the specialized
clinic to inquire when the test would be scheduled. (Id.)



July 17, 2012: Defendant Hedden examined Plaintiff again, after he had been placed in
administrative segregation. (Hedden Decl. ¶ 17.) At this time another doctor from the
mental health department intervened because he planned to transfer Plaintiff to a
mental health crisis bed. (Id.) Defendant Hedden noted Plaintiff’s current status.
Plaintiff had continued pain in his left hip and extremities due to thoracolumbar
scoliosis. (Id.) Defendant Hedden instructed the laboratory to perform tests to check
Plaintiff’s hypothyroidism in 4-6 weeks and ordered monitoring of Plaintiff’s blood
pressure. This July 17, 2012 examination was the last time Defendant Hedden treated
Plaintiff prior to the filing of this complaint.



Between July 17, 2012 and August 7, 2012: Plaintiff was transferred from CTF to
CSP-Sacramento.



December 3, 2012: Plaintiff filed the instant complaint.

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United States District Court
Northern District of California

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The following set of facts do not involve any of the named Defendants and are only

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Hypothyroidism is deficient activity of the thyroid gland. See Merriam-Webster Online
Dictionary, retrieved August 12, 2014, from http://www.merriamwebster.com/medlineplus/hypothyroidism.

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included here because Plaintiff asserts these facts are relevant his claim of Defendants’ deliberate
indifference to his serious medical needs.


Also on December 3, 2012: An electrodiagnostic9 study was performed on Plaintiff at
California Men’s Colony (“CMC”) in San Luis Obispo, where he was later transferred
to from CSP-Sacramento. The findings were consistent with a left lumbar
radiculopathy that is mild and chronic. (Dkt. 34 at 35.)



December 28, 2012: Plaintiff received an MRI of his lumbar and spine without an
intravenous MRI contrast agent.10 The result of the MRI was as follows: “a large disc
herniation into the left L4-5 foramina with severe stenosis, encroachment on the left L4
and V nerve roots, and soft tissue edema noted dorsal to L4 with some edema in the
pedicles, but not obvious facture.” (Dkt. 34 at 38.)



January 16, 2013: Plaintiff was referred to the Pain Management Committee by Dr.
Griffin for a consultation. The committee recommended that Plaintiff continue with
the current medications: NSAIDS, Tylenol, Elavil, and Carbamazapine. The
committee additionally recommended Plaintiff begin taking Gabapentin (non-narcotic).
(Dkt. 34 at 39.)



February 22, 2013: Plaintiff was examined in the clinic at CMC by Dr. Harold D.
Segal, who recommended microsurgical laminectomy11 and discectomy12 at the L4-5
level, left side. (Dkt. 34 at 37.)



September 16, 2013: In his proposed amended complaint, Plaintiff indicates that the
aforementioned surgery had taken place, but that “despite a seemingly successful
surgery, [his] extreme nerve pain has returned and, again, prevents him from
performing the ordinary activities of daily living for any reasonable duration of time
without substancial [sic] pain.” (Dkt. 31-1 at 15.)

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Electrodiagnosis is a method of diagnosis based on electrodiagnostic tests or procedures.
See Merriam-Webster Online Dictionary, retrieved August 12, 2014, from http://www.merriamwebster.com/medlineplus/electrodiagnosis.
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An MRI contrast agent is substance (as a solution of iodine or suspension of barium
sulfate) comparatively opaque to x-rays that is introduced into the body (as by injection or
swallowing) to contrast an internal part (as the gastrointestinal tract, kidneys, or blood vessels)
with its surrounding tissue in radiographic visualization. See Merriam-Webster Online Dictionary,
retrieved August 12, 2014, from http://www.merriamwebster.com/medlineplus/contrast%20medium.
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A laminectomy is the surgical removal of the posterior arch of a vertebra. See MerriamWebster Online Dictionary, retrieved August 12, 2014, from http://www.merriamwebster.com/medlineplus/laminectomy.
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A discectomy is the surgical removal of an intervertebral disk. See Merriam-Webster
Online Dictionary, retrieved August 12, 2014, from http://www.merriamwebster.com/medlineplus/discectomy.

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B.

STANDARD OF REVIEW

Summary judgment is proper where the pleadings, discovery and affidavits demonstrate
that there is “no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect the
outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a
material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for
the nonmoving party. Id.
The party moving for summary judgment bears the initial burden of identifying those
portions of the pleadings, discovery, and affidavits which demonstrate the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving
party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no
reasonable trier of fact could find other than for the moving party. On an issue for which the
opposing party by contrast will have the burden of proof at trial, as is the case here, the moving
party need only point out “that there is an absence of evidence to support the nonmoving party’s
case.” Id. at 325.
Once the moving party meets its initial burden, the nonmoving party must go beyond the
pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a
genuine issue for trial.” Fed. R. Civ. P. 56(e). The court is only concerned with disputes over
material facts and “factual disputes that are irrelevant or unnecessary will not be counted.”
Anderson, 477 U.S. at 248. It is not the task of the court to scour the record in search of a genuine
issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party
has the burden of identifying, with reasonable particularity, the evidence that precludes summary
judgment. Id. If the nonmoving party fails to make this showing, “the moving party is entitled to
a judgment as a matter of law.” Celotex, 477 U.S. at 323.

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C.

EVIDENCE CONSIDERED

A district court may only consider admissible evidence in ruling on a motion for summary

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judgment. See Fed. R. Civ. P. 56(e); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002).

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In support of Defendants’ motion for summary judgment, declarations, and exhibits have been

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filed by Defendants Ahmed and Hedden. (Dkts. 29, 29-1, 29-2.) Meanwhile, Plaintiff verified his

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complaint by signing it under “penalty of perjury” on December 3, 2012. (Dkt. 1.) On November

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1, 2013, Plaintiff submitted an opposition to Defendants’ motion for summary judgment and a

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declaration in support of his opposition signed under “penalty of perjury.” (Dkt. 34.) Therefore,

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for the purposes of this Order, the Court will treat Plaintiff’s complaint, opposition to summary

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judgment, and his declaration as affidavits under Rule 56 of the Federal Rules of Civil Procedure.

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

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D.

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Deliberate indifference to a prisoner’s serious medical needs violates the Eighth

DELIBERATE INDIFFERENCE CLAIM

Amendment’s proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S.

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97, 104 (1976). A determination of “deliberate indifference” involves an examination of two

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elements: the seriousness of the prisoner’s medical needs and the nature of the defendant’s

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response to those needs. McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on

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other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997 (en banc)).

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1.

Serious Medical Need

A serious medical need exists if the failure to treat a prisoner’s condition could result in

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further significant injury or the “wanton infliction of unnecessary pain.” McGuckin, 974 F.2d at

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1059 (citing Estelle, 429 U.S. at 104). The existence of an injury that a reasonable doctor or

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patient would find important and worthy of comment or treatment; the presence of a medical

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condition that significantly affects an individual’s daily activities; or the existence of chronic and

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substantial pain are examples of indications that a prisoner has a serious need for medical

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treatment. Id. at 1059-60 (citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 1990)).

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Defendants do not dispute that Plaintiff’s scoliosis amounted to serious medical needs.

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Instead, Defendants argue that Plaintiff fails to show that, during the course of their evaluations

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and treatment, they were deliberately indifferent to his serious medical needs.

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2.

Deliberate Indifference

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A prison official is deliberately indifferent if he or she knows that a prisoner faces a

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substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate

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it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). In order to establish deliberate indifference, a

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plaintiff must show a purposeful act or failure to act on the part of the defendant and a resulting

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harm. McGuckin, 974 F.2d at 1060; Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d

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404, 407 (9th Cir. 1985). Such indifference may appear when prison officials deny, delay or

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intentionally interfere with medical treatment, or it may be shown in the way in which prison

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officials provided medical care. See McGuckin, 974 F.2d at 1062.

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In order to prevail on a claim of deliberate indifference to medical needs, a Plaintiff must
establish that the course of treatment the doctors chose was “medically unacceptable under the

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circumstances” and that they embarked on this course in “conscious disregard of an excessive risk

10

to Plaintiff’s health.” See Toguchi v. Chung, 391 F.3d 1051, 1058-60 (9th Cir. 2004). A claim of

11
United States District Court
Northern District of California

8

mere negligence related to medical problems, or a difference of opinion between a prisoner patient

12

and a medical doctor, is not enough to make out a violation of the Eighth Amendment. Id.;

13

Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).

14

Here, Plaintiff claims that Defendants Ahmed, Hedden, and Ellis were deliberately

15

indifferent in providing treatment for his scoliosis. Specifically, Plaintiff claims that Defendants

16

Ahmed and Hedden refused to prescribe strong enough pain medication and refused to order an

17

MRI on Plaintiff’s spine. (Dkt. 1 at 5-6.) Plaintiff further argues that Defendant Ellis, who was

18

CTF’s CEO of Health Care Services, authorized the Tramadol prescription for Plaintiff; however,

19

that particular pain medication apparently did not alleviate his pain. (Id. at 6.) Plaintiff also

20

claims that Defendant Ellis may have “discouraged referrals for non-formulary medication or

21

services . . . .” (Id.; Dkt. 39 at 18.)

22

To the contrary, the record shows that Defendants Ahmed and Hedden provided adequate

23

care to Plaintiff. Defendants Ahmed and Hedden examined Plaintiff on multiple occasions and

24

gave him adequate treatment for his scoliosis. Defendant Ahmed personally examined Plaintiff

25

four times, and his assistant, RN Pruitt, examined Plaintiff four more times on behalf of Defendant

26

Ahmed. Defendant Ahmed prescribed three types of pain medication for Plaintiff and instructed

27

Plaintiff on dietary changes and stretches for a long term cure to Plaintiff’s scoliosis. Defendant

28

Ahmed also concluded that in his medical judgment, prescribing a stronger painkiller was

11

1

inadvisable, and the proper treatment for Plaintiff did not include indefinite prescription of

2

painkillers. (Ahmed Decl. ¶ 18.) In addition, Defendant Ahmed explained that painkillers were

3

intended to alleviate the pain not eliminate it, because long-term pain management of scoliosis

4

requires stretches and building muscle strength. (Id.) Meanwhile, Defendant Hedden examined

5

Plaintiff six times. RN Estomo and PA Treat examined Plaintiff (on behalf of Defendant Hedden)

6

three times and twice, respectively. Defendant Hedden prescribed a stronger pain medication than

7

Defendant Ahmed, and ordered a “5-way” x-ray to get a more complete image of Plaintiff’s

8

injury. In sum, Plaintiff’s complaints were not ignored by Defendants Ahmed and Hedden, who

9

continued to give him follow-up appointments and continued Plaintiff’s prescription for
painkillers while simultaneously recommending stretches for long term relief. Therefore, the

11
United States District Court
Northern District of California

10

Court finds that Defendants Ahmed and Hedden were not deliberately indifferent because they did

12

not deny or delay treatment of Plaintiff’s serious medical needs. Cf. Ortiz v. City of Imperial, 884

13

F.2d 1312, 1314 (9th Cir. 1989) (summary judgment reversed where medical staff and doctor

14

knew of head injury, disregarded evidence of complications to which they had been specifically

15

alerted and without examination, prescribed contraindicated sedatives).

16

Plaintiff further argues that had Defendants Ahmed and Hedden ordered an MRI, they

17

would have discovered the herniated disc earlier. The record shows that, at the time Plaintiff had

18

requested for an MRI to be ordered, Defendant Ahmed indicated that an MRI was not medically

19

necessary because it would not have provided any additional information pertinent to Plaintiff’s

20

treatment, which included treatment for “moderately severe” scoliosis. (Ahmed Decl. ¶ 17.)

21

However, Plaintiff argues that an MRI would have led to another course of treatments, and that

22

Defendants’ “course of treatment was medically unacceptable and led to greater pain that lingered

23

for an additional 15 months.” (Dkt. 34 at 20.) Plaintiff argues that he would not have experienced

24

an “excessive risk to [his] health as [he] eventually found it necessary to undergo back

25

surgery . . . .” (Id.) The Court finds that Plaintiff’s argument evidences a difference of medical

26

opinion, i.e., if Plaintiff had received different treatment from Defendants Ahmed and Hedden,

27

then he would not have suffered more unnecessary pain. First, the Court notes that Plaintiff

28

assumes that the herniated disc was present when he was initially examined by Defendants Ahmed

12

1

and Hedden, but they did not notice it. Or, alternately, Plaintiff assumes that Defendants Ahmed

2

and Hedden’s refusal to order an MRI worsened his condition, eventually causing him to suffer

3

from a herniated disc. However, Plaintiff puts forth no facts or evidence to support either theory.

4

Plaintiff merely introduces documents showing that on December 28, 2012, Plaintiff received an

5

MRI, that the MRI results indicated he suffered from a herniated disc, and that on February 22,

6

2013, Dr. Segal recommended surgery. (Dkt. 34 at 38, 37.) Plaintiff’s conclusory allegation –

7

that Defendants Ahmed and Hedden’s course of treatment caused him to suffer lingering pain for

8

an additional fifteen months – is not supported by any medical evidence. Plaintiff’s conclusory

9

allegations unsupported by factual data are insufficient to defeat Defendants’ motion for summary
judgment. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001)

11
United States District Court
Northern District of California

10

(finding the district court did not err in granting summary judgment because plaintiff failed to

12

meet her burden of proof of providing specific facts to show that the force used was

13

unreasonable).

14

Even if Plaintiff should have received different treatment for his medical needs, a

15

difference of opinion as to the urgency and treatment of his medical needs is insufficient, as a

16

matter of law, to establish deliberate indifference. See Toguchi, 391 F.3d at 1058, 1059-60;

17

Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Mayfield v. Craven, 433 F.2d 873, 874 (9th

18

Cir. 1970). Although the medical treatment Plaintiff received may not have been what he

19

considered proper treatment, he presents no evidence that Defendants Ahmed and Hedden were

20

deliberately indifferent to his serious medical needs. Rather, they: (1) diagnosed his scoliosis;

21

(2) monitored his status with follow-up treatments; and (3) provided prescription pain medication

22

and advised him about proper exercise techniques to strengthen the spinal muscles. Thus, Plaintiff

23

has failed to provide evidence regarding an essential element of his deliberate indifference claim

24

against Defendants Ahmed and Hedden.

25

Meanwhile, Plaintiff’s only allegation against Defendant Ellis is that he authorized

26

Plaintiff’s Tramadol prescription and may have discouraged referrals for “non-formulary”

27

medication or services. Plaintiff asserts no other facts regarding Defendant Ellis’s actions.

28

Moreover, Defendants argue that there is no evidence that Plaintiff was ever treated by Defendant

13

Ellis or even met him.13 Although the medical treatment authorized by Defendant Ellis may not

2

have been what Plaintiff considered proper treatment, Plaintiff presents no evidence that

3

Defendant Ellis was deliberately indifferent to his serious medical needs. Rather, Defendant Ellis

4

approved pain medication to ease Plaintiff’s pain. Therefore, the Court finds that Defendant Ellis

5

was not deliberately indifferent because he did not deny or delay pain medication to treat

6

Plaintiff’s scoliosis. And, even if Plaintiff does not agree with Defendant Ellis’s choice of pain

7

medication or decision to discourage “non-formulary” medication or services, a difference of

8

opinion as to the treatment of Plaintiff’s medical needs is insufficient, as a matter of law, to

9

establish deliberate indifference. See id. Because Plaintiff does not assert any facts of Defendant

10

Ellis’ deliberate indifference to Plaintiff’s medical needs, Plaintiff has failed to provide evidence

11
United States District Court
Northern District of California

1

regarding an essential element of his deliberate indifferent claim against this Defendant.

12

It is true that Plaintiff need not produce direct evidence that Defendants Ahmed, Hedden,

13

and Ellis knew their actions were medically unacceptable, Plaintiff may rely on indirect evidence

14

and he is entitled to have all reasonable inferences drawn in his favor. However, the United States

15

Supreme Court has admonished that such inferences must be reasonable. Matsushita Elec. Indus.

16

Co, Ltd.. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986); see also T.W. Elec. Service v. Pacific

17

Elec. Contractors Ass’n, 809 F.2d 626, 632 (9th Cir.1987). Moreover, reasonable inferences are

18

not drawn from thin air and they cannot be drawn from conclusory allegations. Reasonable

19

inferences must be drawn from evidence. Here, Plaintiff has not produced any evidence showing,

20

directly or indirectly, that either Defendants Ahmed, Hedden, or Ellis caused Plaintiff prolonged

21

pain, a herniated disc, or eventually caused him to have back surgery. Accordingly, the Court

22

finds Plaintiff’s claim that these Defendants caused Plaintiff to suffer greater pain and caused him

23

to undergo back surgery is unsubstantiated, because the record is devoid of any declaration or

24

medical evidence that these Defendants’ failure to prescribe stronger pain medication or refusal to

25
26
27
28

13

Defendants further argue that Defendant Ellis should not be liable in his supervisory
capacity; however, the Court finds this argument to be unavailing. As explained above, in its
Order of Service, the Court originally found that Defendant Ellis was not being sued in his
supervisory capacity because Plaintiff had linked this Defendant to his deliberate indifference
claim. (Dkt. 8 at 2.)

14

1

order an MRI caused him harm.

2

Finally, the Constitution does not require that Defendants provide Plaintiff with successful

3

or perfect treatment. It requires only that Defendants do not act with deliberate indifference. That

4

Defendants could not stop Plaintiff’s pain or cure his scoliosis entirely is not sufficient to show

5

deliberate indifference. They were aware of his condition and sought to treat it with appropriate

6

measures.

7

In sum, Plaintiff has failed to carry his burden of raising a genuine issue of fact to support

8

his claim that Defendants Ahmed, Hedden, and Ellis’s actions rose to the level of deliberate

9

indifference to his serious medical needs. Accordingly, Defendants Ahmed, Hedden, and Ellis are

10

entitled to summary judgment. Therefore, their motion for summary judgment is GRANTED.
CONCLUSION

United States District Court
Northern District of California

11
12

For the foregoing reasons,

13

1.

The Court DENIES Plaintiff’s motion for leave to file an amended complaint (dkt.

14

31); and GRANTS Plaintiff’s motion for leave to file a response to Defendants’ motion for

15

summary judgment (dkt. 39).

16

2.

The Court GRANTS Defendants’ motion for summary judgment (dkt. 29).

17

3.

All other pending motions are DENIED as moot, including Plaintiff’s motion for

18
19
20

appointment of counsel (dkt. 36) and his motion for leave to file a sur-reply14 (dkt. 40).
4.

The Clerk of the Court shall enter judgment, terminate all pending motions, and

close the file.

21

5.

22

IT IS SO ORDERED.

23

This Order terminates Docket nos. 29, 31, 36, 39 and 40.

Dated: August 14, 2014

___________________________________
YVONNE GONZALEZ ROGERS
United States District Court Judge

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P:\PRO-SE\YGR\CR.12\Thornberry6129.grantMSJ.docx

25
26
27
28

14

In any event, because the Court finds that Plaintiff has been given adequate opportunity
to respond to Defendants’ motion for summary judgment, his motion for leave to file a sur-reply
(dkt. 40) is DENIED.

15