Giles v. California Corrections Health Care Services et al

Filing 39

ORDER DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION; AND GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT by Judge Yvonne Gonzalez Rogers denying 28 Motion ; granting 30 Motion for Summary Judgment. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 8/31/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OSSIE GILES,

Case No. 15-cv-04838-YGR (PR)

Plaintiff,
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v.
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D. REYES, et al.,

ORDER DENYING PLAINTIFF’S
MOTION FOR PRELIMINARY
INJUNCTION; AND GRANTING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

Defendants.
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I.

BACKGROUND
Plaintiff Ossie Giles, a state prisoner currently incarcerated at San Quentin State Prison

United States District Court
Northern District of California

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(“SQSP”), has filed a pro se civil rights complaint under 42 U.S.C. § 1983. Plaintiff, who claimed

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he suffered from severe back pain, alleged that Defendants from California State Prison - Solano

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(“CSP-Solano”) failed to give him treatment for his back pain while he was housed there from

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2006 until the date he was transferred to SQSP on December 8, 2009. Dkt. 1 at 3-4.1 Plaintiff

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also alleged that Defendants at SQSP continued to deny him treatment for his back pain after he

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was transferred there. Id. at 4-7. Plaintiff claimed that in April of 2014 he could no longer walk,

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and he had to undergo emergency back surgery on May 20, 2014. Id. at 8-9. Plaintiff named the

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following Defendants at SQSP: Doctors D. Reyes and J. Espinoza; and Chief Medical Officer

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(“CMO”) E. Tootell. He also named the following Defendants at CSP-Solano: Doctors B. Naki,

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T. Tran and Yuen Chen. Plaintiff seeks monetary damages.

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In an Order dated March 28, 2016, the Court summarized the facts relating to the

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constitutional violations alleged by Plaintiff and found that he stated a cognizable claim, as

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follows:

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Plaintiff alleges that he suffers from serious medical needs,
specifically his severe back pain. Dkt. 1 at 3-8. Plaintiff claims that
Defendants Reyes, Espinoza and Tootell were deliberately
indifferent to his serious medical needs for failing to provide him
treatment for his back pain from the time he was transferred to

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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 the parties.

SQSP on December 8, 2009 until he had to receive emergency back
surgery on May 20, 2014. Id. at 5-8. Liberally construed, Plaintiff’s
allegations relating to the aforementioned actions state a cognizable
claim for deliberate indifference to his serious medical needs against
Defendants Reyes, Espinoza and Tootell.

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Dkt. 8 at 3. The Court ordered service of the complaint on Defendants Reyes, Espinoza and
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Tootell. Plaintiff’s claims relating to all problems during his incarceration at CSP-Solano against

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Defendants Naki, Tran and Chen were dismissed without prejudice to Plaintiff refiling them in a
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new civil rights action in the United States District Court for the Eastern District of California.
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The remaining parties from SQSP—Defendants Reyes, Espinoza and Tootell (hereinafter
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“Defendants”)— are presently before the Court on their Motion for Summary Judgment on the
grounds that Defendants Reyes’s and Espinoza’s treatment of Plaintiff’s back pain: (1) did not

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amount to deliberate indifference of his serious medical needs; and (2) was within the standard of

United States District Court
Northern District of California

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medical care. Dkt. 30 at 2. Defendants also claim that “[a]t no time relevant to plaintiff’s lawsuit
did [Defendant] Tootell in any way diagnos[e] or treat plantiff.” Id. at 11. Thus, Defendants

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argue that Plaintiff has not made a causal link between Defendant Tootell and the violation of his
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constitutional rights. Id. Plaintiff has filed an opposition to Defendants’ motion, and Defendants
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have filed a reply. Dkts. 33, 34.
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Plaintiff has also filed a motion for a preliminary injunction, to which Defendants have
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filed a response. Dkts. 28, 35.
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For the reasons stated below, Plaintiff’s motion for a preliminary injunction is DENIED,
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and Defendants’ motion for summary judgment is GRANTED.
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II.

PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
Plaintiff has filed a request for a preliminary injunction concerning medical treatment

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needed to “alleviate [his] daily pain and suffering.” Dkt. 28 at 1. Specifically, Plaintiff seeks an

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injunction requiring Defendants to move forward with further diagnostic testing that was
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originally suggested during a consultation with a “neuro specialist” (i.e., neurosurgery consultant)
from University of California-San Francisco (“UCSF”) named Dr. Wadhwa (a non-party) on

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October 29, 2015. See id. Defendants have filed an opposition to his motion. Dkt. 35.
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A.

Standard of Review

The PLRA restricts the power of the district court to grant prospective relief in any action
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involving prison conditions. See 18 U.S.C. § 3626(a); Oluwa v. Gomez, 133 F.3d 1237, 1239 (9th
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Cir. 1998). Section 3626(a)(2) applies specifically to preliminary injunctive relief. See 18 U.S.C.
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§ 3626(a)(2). In civil actions with respect to prison conditions it permits the court to enter a
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temporary restraining order (“TRO”) or preliminary injunction “to the extent otherwise authorized
by law” but also requires that such an order “must be narrowly drawn, extend no further than

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necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive
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means necessary to correct that harm.” Id.
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Federal Rule of Civil Procedure 65 sets forth the procedure for issuance of a preliminary
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injunction or TRO. The standard for issuing a TRO is similar to that required for a preliminary
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United States District Court
Northern District of California

injunction. See L.A. Unified Sch. Dist. v. United States Dist. Court, 650 F.2d 1004, 1008 (9th Cir.
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1981) (Ferguson, J., dissenting). “A plaintiff seeking a preliminary injunction must establish that

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he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of
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preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the
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public interest.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). This
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standard replaces the previous tests for preliminary injunctions that had been used in the Ninth
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Circuit. Am. Trucking Associations, Inc. v. Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009).
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B.

Defendants’ Arguments

In conjunction with their opposition to the request for a preliminary injunction, Defendants
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rely on the declaration Defendant Espinoza that had been filed in support of their motion for
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summary judgment. In reliance upon this document, Defendants argue that Plaintiff does not meet
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the standard for preliminary injunctive relief.
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1. Standard of Review
First, Plaintiff must established probable success on the merits with respect to his claim of

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deliberate indifference to his serious medical needs. Specifically, he must establish that
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Defendants have acted with a sufficiently culpable state of mind, that is, knowingly disregarding
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an excessive risk to inmate health. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). In support
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of their argument that Plaintiff has not met his burden, Defendants rely upon Plaintiff’s medical

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records, which reveal as follows:
. . . after Dr. Wadhaw’s consultation and nine months of chronic
care follow up, it because clear that the right leg pain and symptoms,
which prompted plaintiff’s referral to Dr. Wadhwa, were in fact due
to plaintiff’s chronic ulcers and not his spine. Accordingly, the
diagnostic tests suggested by Dr. Wadhwa were not ordered.

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Dkt. 35 at 1. As such, it seems that Defendants are arguing that Plaintiff will not likely be

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successful on the merits of his deliberate indifference to medical care lawsuit.

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2. Irreparable Injury
Defendants also seem to maintain that Plaintiff cannot show irreparable injury justifying
the relief sought in the form of ordering medical staff to perform the diagnostic tests suggested by

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United States District Court
Northern District of California

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Dr. Wadhwa. Dkt. 35 at 1-4. In their opposition to the request for a preliminary injunction,

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Defendants show that Plaintiff’s medical evidence indicated that he received appropriate pain

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management and medical care during the time he received follow-up care from prison medical

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staff after his October 29, 2015 consultation with Dr. Wadhwa, who suggested “a new MRI2 of the

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lumbar spine, CT3 of the lumbar spine and dynamic lumbar x-rays.” Id. (citing Espinoza Decl.

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¶ 27, Ex. A). Defendants then list an explanation of Plaintiff’s follow up care, which has been

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summarized by the Court as follows:
November 5, 2015, – Chronic care follow up with Defendant
Espinoza, who suggested for Plaintiff to be classified as a Disability
Impaired Level Terrain (“DLT”) and transferred to a level terrain
facility. While Plaintiff was initially resistant to such a suggestion,
he agreed and was “designated as ADA4 code DLT.” Plaintiff
would be transferred to another institution immediately, and
therefore Defendant Espinoza discussed with Plaintiff that he would
be given a follow-up appointment with a new neurosurgeon at his

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Magnetic resonance imaging (“MRI”) is a medical imaging technique used in radiology
to form pictures of the anatomy and the physiological processes of the body in both health and
disease. See https://en.wikipedia.org/wiki/Magnetic_resonance_imaging (last accessed Aug. 3,
2017).
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A CT or computed tomography scan makes use of computer-processed combinations of
many x-ray measurements taken from different angles to produce cross-sectional images (i.e.,
virtual “slices”) of specific areas of a scanned object, allowing the user to see inside the object
without cutting. See https://en.wikipedia.org/wiki/CT_scan (last accessed July 30, 2017).
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ADA means the Americans with Disabilities Act of 1990.
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Northern District of California

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new facility. Espinoza Decl. ¶ 28.
January 12, 2016 – Plaintiff submitted a Health Care Service
Request Form inquiring why his MRI, CT scan and dynamic lumbar
x-rays had not yet been ordered as suggested by Dr. Wadhwa. Id.
¶ 32.
January 14, 2016 – Chronic care follow up with Defendant Espinoza
regarding skin lesions that had appeared three weeks ago. A biopsy
was performed and Plaintiff was given prednisone. When Plaintiff
inquired about his MRI, CR scan and dynamic lumbar x-rays,
Defendant Espinoza explained that Plaintiff would soon be leaving
SQSP for a level terrain facility where he would defer to the new
neurosurgeon if any further imaging was indicated. Defendant
Espinoza also noted that Plaintiff had a recent MRI on August 11,
2015,. Plaintiff was on a medical hold due to his dermatology issue,
and he indicated he preferred to stay at SQSP until his lesions were
resolved. Id. ¶ 13.
January 28, 2016 – Another chronic care follow up with Defendant
Espinoza regarding skin lesions. Plaintiff stated that the lesions
were getting better and he was not in pain today. Defendant
Espinoza discussed Plaintiff’s neurosurgery follow up, which was
pending until his transfer. Plaintiff requested to keep his medical
hold until his lesions had significantly resolved, and said that it was
alright holding off on his neurosurgery follow up. He claimed that
his pain had decreased and mobility issues had improved in the last
four to five weeks. Plaintiff was then referred to see a local
dermatologist. Id. ¶ 34.
May 2, 2016 – Plaintiff refused to be seen by Defendant Espinoza
for another chronic care follow up. Id. ¶ 35.
May 3, 2016 – Defendant Espinoza discussed Plaintiff’s lesions with
Dr. Mohebali at Kentfield Wound Care, and they decided to start
Plaintiff on antibiotics. Defendant Espinoza made arrangements for
Plaintiff to be seen in the clinic to discuss the plan with him and to
order the recommended antibiotics. Plaintiff initially refused to be
seen, but later agreed to speak with Defendant Espinoza but
explained that he was upset because he was not given narcotics for
his right leg ulcers. Id. ¶ 36.
July 5, 2016 – Plaintiff was examined at Kentfield Wound Care and
UCSF dermatology, where he was receiving treatment for his
chronic leg ulcers (which have slowly improved). Plaintiff reported
that his back pain and related symptoms have continued to improve
significantly and that he was walking the lower yard without any
issue. Plaintiff refused to be seen by Defendant Espinoza, who
continued to communicate with the specialists and coordinated
Plaintiff’s treatment with Kentfield Wound Care and UCSF.
Defendant Espinoza claims that “[i]t became clear that the right leg
pain and symptoms which prompted [Plaintiff’s] referral to the
second neurosurgeon, Dr. Wadhwa, were in fact due to his skin
condition (his lesion[s] showed up shortly thereafter) and not his
spine.” Id. ¶ 37.
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Id. (footnotes added). Based on the above findings, the diagnostics tests suggested by Dr.

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Wadhwa were not ordered. Id. at 4.

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3. Conclusion
Based on the supporting evidence set forth by Defendants, the Court finds that Plaintiff

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does not meet the requirements for preliminary injunctive relief pending disposition of his claims.

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Moreover, based on the record at this point, the Court cannot say that he has shown probable

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success with respect to his remaining allegations of deliberate indifference. Accordingly, the

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request for a preliminary injunction is DENIED. Dkt. 28.

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III.

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
A.

United States District Court
Northern District of California

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Factual Background5
1. The Parties

At the time of the events set forth in his complaint, Plaintiff was a state prisoner who was

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incarcerated at SQSP. See Dkt. 1 at 1; Dkt. 38-1 at 1. Also during the time frame at issue,

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Defendants Reyes and Espinoza were Primary Care Physicians (“PCPs”) at SQSP. Reyes Decl.

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¶ 1; Espinoza Decl. ¶ 1. Finally, as mentioned above, Defendant Tootell was the CMO at SQSP.

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Dkt 1 at 2.

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2. Plaintiff’s Version
Plaintiff claims that he was transferred to SQSP on December 8, 2009. Dkt. 1 at 4. He
mentioned his back issues at his health assessment upon his arrival at SQSP. Id.
Plaintiff claims that at his initial consultation with Defendant Reyes, he requested a lower
bunk due to his back pain. Id. at 5. Plaintiff claims that Defendant Reyes told Plaintiff that he

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This Order contains many acronyms. Here, in one place, they are:

ADA
CDCR
CMO
DLT
OHU
PCP
SQSP
TTA
UCSF

Americans with Disabilities Act of 1990
California Department of Corrections and Rehabilitation
Chief Medical Officer
Disability-Impaired Level Terrain
Outpatient Housing Unit (Equivalent to an Infirmary)
Primary Care Physician
San Quentin State Prison
Treatment and Triage Area (Equivalent to Emergency Room)
University of California-San Francisco
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“needed to do core strengthening for [his] back pain.” Id. Plaintiff claims he explained that he

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had previously had an MRI, which “showed [his] L-4 and L-5 [were] messed up.” Id. Plaintiff

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claims that his medical records arrived at SQSP four months after his transfer, and they “showed

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[his] back issues like [he] had been saying all alon[g], yet [Defendant Reyes] did nothing to

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accommodate [him] . . . .” Id. at 6. Plaintiff claims that his “condition exacerbated because of

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[Defendant Reyes’s] negligen[ce].” Id.

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Plaintiff claims that he “started seeing [Defendant] Espinoza and other doctor[s] in 2014.”

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Id. at 7. He states that “the medical care they provided [for his] back issues amounted to no

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medical care at all.” Id. at 7. Plaintiff claims that he was admitted to the Outpatient Housing Unit
(CDCR’s equivalent to an infirmary)6 on April 17, 20147 because he could no longer walk and

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United States District Court
Northern District of California

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required a wheelchair to move around. Id. at 7-8, 23. However, Plaintiff claims that Defendant

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Espinoza should have made the decision to have Plaintiff admitted at the Outpatient Housing Unit

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(“OHU”) on an earlier date. Id. at 8. Plaintiff claims that he was admitted at the OHU from April

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17, 2014 until July 16, 2014, and that he needed a wheelchair because he could not walk. Id.

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On May 20, 2014, Plaintiff claims that he underwent “urgent emergency back surgery” by

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Dr. T. Mampalan (a non-party). Id. However, Plaintiff claims that he initially “thought [he] was

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getting better but [he went] through the same issues with medical as [he] did prior to [his] back

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surgery.” Id. at 8-9. Plaintiff claims that Defendant Espinoza “assured [him] that if [his] MRI

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showed a negative finding she’d refer [him] to a different neurosurgeon for [a] second opinion.”

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Id. at 9. However, Plaintiff claims that “every time [he] ask[s] about that or any other

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accommodation [Defendant Espinoza] interjects the threat[] of transfer.” Id.

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Finally, Plaintiff points out that Defendant Tootell is the CMO at SQSP, but she “does

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The OHU is a medical unit that is walker-and-wheelchair-accessible and where inmates
are housed temporarily after returning from hospital stays or because they have other medical or
disability needs.
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The Court notes that in his complaint, Plaintiff stated he was housed at the OHU from “417-2015, until 7-16-2014.” Dkt. 1 at 8 (emphasis added). However, the record shows that this is a
typographical error, and that Plaintiff was first housed at the OHU on April 17, 2014. Id. at 23;
Espinoza Decl. ¶ 11.
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nothing to assert her authority to approve or arrange any accommodations in a timely fashion.” Id.

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at 10.

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3. Defendants’ Version
a. Treatment By Defendant Reyes

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On March 3, 2010, Defendant Reyes examined Plaintiff for the first time after his

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December 8, 2009 transfer from CSP-Solano. Reyes Decl. ¶ 4. Plaintiff’s main complaint was

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low back pain, which persisted for over four years. Id. Plaintiff claims he could do his daily

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activities without problems and had “good overall function.” Id. Plaintiff walked with a normal

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steady gait and was able to get up from sitting without difficulty. Id. Plaintiff was noted to be

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Northern District of California

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stable with no neurological deficits. Id. There was no need to prescribe narcotics. Id.
On June 3, 2010, Defendant Reyes examined Plaintiff for complaints of a cough and lateral

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thigh pain. Reyes Decl. ¶ 5. Unlike his previous March 3, 2010 visit, Plaintiff did not complain

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of low back pain. Id. Plaintiff walked with a normal steady gait, did not require any assistive

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device and ambulated on and off the exam table with agility. Id. Defendant Reyes continued

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Plaintiff’s Tylenol prescription and encouraged him to lose weight. Id.

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On July 8, 2010, Plaintiff was examined for a follow up of his previous complaint of

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chronic intermittent low back pain, but he made no current complaints of low back pain. Reyes

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Decl. ¶ 6. He was “neurovascularly intact and without weakness.” Id. An MRI from April 2008

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noted some degenerative disc disease. Id.

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On November 18, 2010, Defendant Reyes examined Plaintiff for a routine follow up.

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Reyes Decl. ¶ 7. Plaintiff had made a previous complaint of left wrist pain, but the x-ray result

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was negative. Id. He had no complaint of low back pain at this visit. Id.

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On February 4, 2011, Defendant Reyes examined Plaintiff for a routine follow up relating

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to his complaint of left wrist pain. Reyes Decl. ¶ 8. Defendant Reyes suggested a steroid

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injection, but Plaintiff was reluctant to follow such a suggestion. Id. Plaintiff made no complaints

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about low back pain. Id.

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On March 24, 2011, Defendant Reyes examined Plaintiff for a routine follow up. Reyes
Decl. ¶ 9. He claimed that his wrist pain was “much improved” and that he had not made any low
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back pain complaints recently. Id. Defendant Reyes once again encouraged Plaintiff to lose

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weight. Id.

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On June 24, 2011, Plaintiff was examined by Defendant Reyes for another routine follow

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up, and he made no complaints of low back pain at this visit. Reyes Decl. ¶ 10. Defendant Reyes

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encouraged Plaintiff to go to the yard and walk some laps. Id.

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On August 25, 2011, Plaintiff was examined for his complaints of chronic wrist pain, but,

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again, he refused to have a steroid injection administered. Reyes Decl. ¶ 11. Defendant Reyes

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noted that Plaintiff had been complaining about his wrist pain—without diagnosis—for about one

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year. Id. Plaintiff made no complaints of low back pain. Id.

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On October 6, 2011, Plaintiff was examined for yet another routine follow up for his left

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Northern District of California

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wrist pain. Reyes Decl. ¶ 12. Plaintiff did not make any mention of back pain, and he stated that

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he could climb up four flights of stairs. Id.

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On January 5, 2012, Plaintiff was examined for a routine follow up visit. Reyes Decl.

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¶ 13. Plaintiff claimed that his main complaint was chronic wrist pain, but that “overall he was

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doing fine.” Id. Plaintiff made no other complaints. Id.

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b. Treatment By Defendant Espinoza and Non-Party Medical Providers

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1) Low Back Pain
On February 24, 2014, Plaintiff was examined by Defendant Espinoza for “back pain

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exacerbation.” Reyes Decl. ¶ 14; Espinoza Decl. ¶ 4. Plaintiff stated the pain radiated down his

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left buttock into his leg. Espinoza Decl. ¶ 4. He claimed that he did not feel any numbness or

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weakness, but the pain worsened when he was walking. Id. Plaintiff stated he has had low back

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pain for five years but the “sciatica pain” started about two months ago. Id. Plaintiff had “good

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functional status” and was able to exercise. Id. Defendant Espinoza ordered lumbar x-rays,

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prescribed ibuprofen, and scheduled a “close” follow-up visit. Id.

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On February 28, 2014, Plaintiff was notified that his x-ray results showed “severe
degenerative changes at L5-S1.8” Espinoza Decl. ¶ 5 (footnote added). There were moderate

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The L5-S1 vertebrae forms a junction known as the lumbosacral joint, which is a joint of
the body, between the last lumbar vertebra (L5) and the first sacral segment of the vertebral
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degenerative changes in the remainder of the lumbar spine. Id. However, no acute fracture or

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subluxation9 were seen. Id. (footnote added).

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On March 17, 2014, Plaintiff was examined for a routine follow up visit for his back pain
complaints. Espinoza Decl. ¶ 6. Plaintiff said that his pain had worsened, and that Tylenol and

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ibuprofen were not helping to alleviate the pain. Id. Plaintiff complained that the pain radiated

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down his left buttock, but denied left-side numbness. His neurological exam showed “5/5 strength

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in both extremities but he did require some coaching on the left side secondary to pain.” Id.

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Plaintiff was prescribed neuropathic pain medication called Nortriptyline.10 Id. (footnote added).

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Defendant Espinoza explained to Plaintiff that he would have to take the neuropathic pain

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medications for a few weeks before he would see any improvement. Id. However, if his

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United States District Court
Northern District of California

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symptoms did not improve after a few weeks, then Defendant Espinoza planned to order an MRI

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at Plaintiff’s next visit. Id. Additionally, Plaintiff was referred to physical therapy, and Defendant

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Espinoza requested for Plaintiff’s appointment to be expedited. Id. Defendant Espinoza offered

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Plaintiff a lower bunk accommodation. Id. Plaintiff declined because he had a good cell mate and

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did not want to change housing. Id. Defendant Espinoza also made arrangements for an inmate

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worker to temporarily bring Plaintiff his meal trays because he said it was painful to walk to the

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dining hall. Id.

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On April 1, 2014, Plaintiff was examined by Dr. Alvarez (a non-party) in the Treatment

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and Triage Area (“TTA”) (CDCR’s equivalent to an Emergency Room) for back pain. Espinoza

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Decl. ¶ 7. Plaintiff related that his back pain, which persisted for the last several days, had

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radiated to his bilateral posterior upper thighs. Id. No evidence of atrophy in his legs existed. Id.

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His reflexes and sensation were normal and he had good strength. Id. He was able to ambulate.

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Id. Plaintiff was given a Toradol injection that relieved his pain. Id. Plaintiff was advised to

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column (S1). See https://en.wikipedia.org/wiki/Lumbosacral_joint (last accessed Jun. 2, 2016).
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A subluxation is an incomplete or partial dislocation of a joint or organ. See
https://en.wikipedia.org/wiki/Subluxation (last accessed Jun. 23, 2017).
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Nortriptyline is a tricyclic antidepressant (TCA) used to treat clinical depression. Offlabel uses include chronic pain and migraine and labile affect in some neurological disorders. See
https://en.wikipedia.org/wiki/Nortriptyline (last accessed Aug. 15, 2017).
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return if new symptoms developed and to discuss his back pain symptoms with his PCP. Id.
On April 1, 2014, Plaintiff had an appointment for a physical therapy consultation. Id.

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Espinoza Decl. ¶ 8. Plaintiff stated that he awoke about one month ago with severe sciatic pain

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extending to his left ankle. Id. He claimed he had never experienced such pain previously. Id.

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Plaintiff was instructed to perform certain exercises. Id.

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On April 10, 2014, Plaintiff was examined during a follow-up visit for his back pain. Id.

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Espinoza Decl. ¶ 9. Plaintiff reported that he experienced no improvement and was having more

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pain especially with ambulation. Id. Plaintiff had difficulty cooperating with the exam because of

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pain, but he had “good strength.” Id. He was able to walk with a cane, but experienced significant
pain and had a limp. Id. An urgent MRI was ordered to be done on April 16, 2014 due to severe

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United States District Court
Northern District of California

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lumbar pain progressing in a short period of time. Id. His neuropathic pain medication was

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changed (because he was having side effects to the initial agent), and he was prescribed a muscle

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relaxant and Naproxen.11 Id. (footnote added). Defendant Espinoza offered to move Plaintiff to

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the OHU, where he might be more comfortable and not have to walk around to appointments and

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other activities. Id. Plaintiff declined the offer because he reported that the situation was

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manageable in his housing unit, and he did not want to move to the OHU. Id. Defendant

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Espinoza and Plaintiff ultimately agreed that this offer would be reevaluated in one week after

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Plaintiff tried the new medications, but that there was “a very low threshold to admit him to the

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OHU at that point.” Id.

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On April 15, 2014, Plaintiff refused further physical therapy (despite being offered a
wheelchair for transport). Espinoza Decl. ¶ 10.
On April 17, 2014, Plaintiff was examined during a follow up visit for his complaints of

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back pain. Espinoza Decl. ¶ 11. The April 16, 2014 MRI was cancelled due to Plaintiff’s inability

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to lie still due to severe radicular pain down his left leg. Id. Plaintiff wondered if the MRI could

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Naproxen (brand names: Aleve, Naprosyn, and many others) is a nonsteroidal antiinflammatory drug (NSAID) of the propionic acid class (the same class as ibuprofen) that relieves
pain, fever, swelling, and stiffness. See https://en.wikipedia.org/wiki/Naproxen (last accessed July
24, 2017).
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be rescheduled with sedation. Id. Plaintiff denied any red flag symptoms such as “weakness,

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saddle anesthesia12 or incontinence.” Id. (footnote added). He had difficulty cooperating with

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exam because of pain, but he had “normal gross strength.” Id. Given the lack of any

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improvement, Plaintiff was admitted to the OHU because Defendant Espinoza was concerned that

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Plaintiff’s “worsening mobility issue might create safety issues for him if he were to stay in his

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cell.” Id. Plaintiff was opposed to moving to the OHU, but Defendant Espinoza reassured

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Plaintiff that his stay at the OHU was temporary until he was more ambulatory. Id. Defendant

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Espinoza discussed and signed Plaintiff out to the OHU provider, Dr. Cranshaw (a non-party), and

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made arrangements to reschedule the MRI with premedication. Id.

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On April 17, 2014, Plaintiff was examined by Dr. Cranshaw in the OHU for the

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Northern District of California

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exacerbation of Plaintiff’s low back pain over the past few months. Espinoza Decl. ¶¶ 12.

12

Plaintiff was very upset that he had been admitted to the OHU that he refused to participate in any

13

examination, to discuss his current symptoms/pain level, or to answer any questions asked by Dr.

14

Cranshaw. Id.

15

On April 23, 2014, Plaintiff’s MRI showed degenerative changes of the lower lumbar

16

spine which most severely affected the L4-L5 level with a large disc extrusion, spinal stenosis13

17

effacement of the right lateral recess. Espinoza Decl. ¶ 13 (footnote added).

18
19

2) Left L4-L5 Surgery
On April 23, 2014, Plaintiff was referred for an outpatient neurosurgery consultation with

20

Dr. Thomas Mampalam (a non-party) at Doctors Medical Center. Espinoza Decl. ¶ 14. Plaintiff

21

subsequently underwent a “left L4-L5 surgery” on May 20, 2014. Id. Following discharge from

22

Doctors Medical Center, Plaintiff returned to the OHU, where he received physical therapy and

23

had gradual improvement. Id. Plaintiff was discharged from the OHU on July 16, 2014, and he

24
12

25
26

Saddle anesthesia is a loss of sensation (anesthesia) restricted to the area of the buttocks,
perineum and inner surfaces of the thighs. See https://en.wikipedia.org/wiki/Saddle_anesthesia
(last accessed Jun. 17, 2016).
13

27
28

Spinal stenosis is an abnormal narrowing (stenosis) of the spinal canal that may occur in
any of the regions of the spine. This narrowing causes a restriction to the spinal canal, resulting in
a neurological deficit. Symptoms include pain, numbness, paraesthesia, and loss of motor control.
See https://en.wikipedia.org/wiki/Spinal_stenosis (last accessed July 14, 2017).
12

1

was able to ambulate with a cane. Id. His pain was controlled with non-steroid anti-inflammatory

2

medication. Id.

3

On July 28, 2014, Defendant Espinoza examined Plaintiff for the first time since he had

4

been discharged from the OHU. Espinoza Decl. ¶ 15. Plaintiff reported that his symptoms had

5

improved, and that he was extremely grateful for the care provided to him (even though he was

6

initially upset that Defendant Espinoza admitted him to the OHU). Id. Plaintiff did not complaint

7

of any pain and was ambulating well. Id. Defendant Espinoza submitted a referral for Plaintiff to

8

continue the physical therapy that he was previously getting in the OHU. Id.

9
10

3) Left Leg Pain and Foot Complaints
On September 15, 2014, Plaintiff had an appointment for a chronic care follow up

United States District Court
Northern District of California

11

regarding ongoing left foot numbness and swelling, which he claimed persisted for several

12

months. Espinoza Decl. ¶ 16. Plaintiff was advised that there was not a specific treatment for

13

numbness, but that numbness was a subtle defect that appears after urgent spine surgery. Id.

14

Defendant Espinoza ordered Plaintiff T.E.D. hose14 for swelling, and he noted that Plaintiff

15

already had a previous ultrasound while in the OHU to evaluate this. Id. (footnote added).

16

On October 30, 2014, Plaintiff had an appointment for a chronic care follow up. Espinoza

17

Decl. ¶ 17. Plaintiff stated he had no complaints, and that he was “making progress.” Id. He had

18

no pain or mobility complaints. Id. Medical staff reviewed his blood pressure and labs. Id.

19

On November 20, 2014, Plaintiff had an appointment for a chronic care follow up.

20

Espinoza Decl. ¶ 18. Plaintiff complained of left groin/thigh pain and cramp/pain in left calf. Id.

21

Plaintiff was ambulatory and displayed “good function.” Id. His pain seemed most localized to

22

left hip joint. Id. X-rays of the hip and back were ordered. Id.

23
24
25

On December 4, 2014, Plaintiff was notified that the x-ray of his lumbar spine indicated
that he suffered from arthritis. Espinoza Decl. ¶ 19.
On December 7, 2014, Plaintiff was notified that the x-ray of his left hip was normal.

26
27
28

14

T.E.D. hose is short for thromboembolism-deterrent hose, which is a type of
compression stocking that supports the venous and lymphatic drainage of the leg. See
https://en.wikipedia.org/wiki/Compression_stockings#cite_note-24 (last accessed Jun. 19, 2017).
13

1

Espinoza Decl. ¶ 20.

2

On December 15, 2014, Plaintiff had an appointment for a chronic care follow up.

3

Espinoza Decl. ¶ 21. Plaintiff complained of persistent groin pain and asked for neuropathic pain

4

meds. Id. Plaintiff was ambulatory and functional as he was able to walk laps in the yard. Id.

5

Plaintiff’s mental health care provider, Dr. Williams (a non-party), was contacted about the

6

propriety of combining medications. Id.
On March 12, 2015, Plaintiff had an appointment for a chronic care follow up. Espinoza

7
8

Decl. ¶ 22. Plaintiff stated he was doing “pretty well.” Id. He was wearing his left foot brace and

9

appeared to be doing well as far as his functional status. Id. His neuropathic pain medication was

10

increased. Id.
On June 4, 2014, Plaintiff had an appointment for a chronic care follow up. Espinoza

United States District Court
Northern District of California

11
12

Decl. ¶ 23. Plaintiff said his pain fluctuated. Id. Plaintiff was able to navigate stairs daily and

13

walk across the yard. Id. Plaintiff was referred for further physical therapy. Id.

14

4) Right Leg Pain and DLT Classification Recommendation
On July 20, 2015, Plaintiff had an appointment for a chronic care follow up. Espinoza

15
16

Decl. ¶ 24. Plaintiff stated he had new numbness in his right leg with occasional severe pain. Id.

17

Plaintiff was concerned that although he had been referred to physical therapy, he had not yet been

18

seen. Id. Plaintiff had refused to see his neurosurgeon for postoperative care but agreed to see a

19

new neurosurgeon in the future. Id. An MRI of Plaintiff’s spine was ordered for August 11, 2015.

20

Id.

21

On August 17, 2015, Plaintiff was examined by Dr. Pachyniski (a non-party) for follow up

22

after his recent MRI. Espinoza Decl. ¶ 25. Plaintiff requested crutches for his right lower leg

23

pain, but it was denied because physical therapy staff stated he should continue with his cane

24

instead of crutches. Id.

25

On September 8, 2015, Plaintiff had an appointment for a chronic care follow up.

26

Espinoza Decl. ¶ 26. Plaintiff complained of increased symptoms in his right leg. Id. Physical

27

therapy staff reported that Plaintiff had been belligerent and refused physical therapy. Id. Plaintiff

28

requested special accommodations because he had right calf pain when walking to the dining hall.
14

1

Id. Defendant Espinoza recommended that Plaintiff be given a DLT classification in order for him

2

to be transferred to a level terrain facility. Id. Plaintiff was very resistant to this and became quite

3

angry. Id. Defendant Espinoza explained that because Doctors Medical Center has closed,

4

Plaintiff would be referred to a new neurosurgeon, but that it was unlikely that such a referral

5

would significantly improve his overall functioning or pain. Id. Plaintiff had refused to be

6

examined by his prior neurosurgeon since his May 20, 2014 surgery. Id. Plaintiff stated he

7

wanted to hold off on the DLT classification until he was able to consult the new neurosurgeon.

8

Id. Plaintiff agreed to participate in physical therapy again and said he would not yell at physical

9

therapy staff. Id. Plaintiff stated that Defendant Espinoza’s suggestion of a transfer to a level
terrain facility amounted to “retaliation” against him. Id. A request was submitted for a

11
United States District Court
Northern District of California

10

neurosurgical consultation. Id.

12
13

As explained above, on October 29, 2015, Plaintiff was examined by Dr. Wadhwa at
UCSF for a neurosurgery consultation.15 Espinoza Decl. ¶ 27.

14

On November 5, 2015, Plaintiff had an appointment for a chronic care follow up.

15

Espinoza Decl. ¶ 28. Plaintiff asked for a lower bunk and stated that custody staff at the prison

16

was trying to transfer him. Id. Defendant Espinoza again suggested that Plaintiff be given DLT

17

classification because he had trouble climbing stairs. Id. Plaintiff was extremely resistant and

18

appeared angry at this suggestion. Id. Defendant Espinoza explained that spine conditions were

19

not part of the criteria needed to be granted a lower bunk accommodation and to be granted such

20

an accommodation, he must be given a DLT classification. Id. Defendant Espinoza further

21

explained that Plaintiff should be given such a classification for his own safety. Id. Plaintiff

22

seemed to understand the reasons behind this decision and stated he hoped he would be transferred

23

to a prison in Northern California. Id. During this visit, Plaintiff was designated as “ADA code

24

DLT.” Id. Defendant Espinoza noted that Plaintiff was likely going to be transferred to another

25

institution imminently. Id. Since Plaintiff was to be transferred soon, medical staff discussed that

26
27
28

15

For the sake of completeness, the Court repeats some of the factual background relating
to Plaintiff’s medical care discussed in the earlier section resolving Plaintiff’s motion for a
preliminary injunction.
15

1
2

he would follow-up with a new neurosurgeon at his transferring institution. Id.
On December 1, 2015, Plaintiff had an appointment for a chronic care follow up. Espinoza

3

Decl. ¶ 29. At that time a lab abnormality was discussed which he previously had as a side effect

4

to a medication that was discontinued. Id. During that visit Plaintiff admitted to taking that

5

medication surreptitiously even though it was not prescribed to him. Id. Plaintiff agreed to stop

6

doing this. Id.

7
8

On December 15, 2015, Plaintiff refused his chronic care clinic visit with Defendant
Espinoza. Espinoza Decl. ¶ 30.

9

5) Skin Lesions on Right Leg
On January 9, 2016, Plaintiff was admitted at TTA and examined because he was

11
United States District Court
Northern District of California

10

complaining of new skin lesions on his right leg. Espinoza Decl. ¶ 31. The lesions were unusual

12

and TTA staff was concerned it could possibly be vasculitis.16 Id. (footnote added). Plaintiff was

13

referred to a telemedicine dermatology consultation, and he was also placed by a TTA provider on

14

a “medical hold” pending the dermatologic evaluation. Id.

15

On January 12, 2016, Plaintiff submitted a nursing Health Care Service Request Form

16

asking why the MRI, CT scan and dynamic lumbar x-rays had not been ordered as suggested by

17

Dr. Wadhwa. Espinoza Decl. ¶ 32.

18

On January 14, 2016, Plaintiff had an appointment for a chronic care follow up. Id.

19

Plaintiff expressed continued concern about the unusual skin lesions that had appeared three

20

weeks prior. Espinoza Decl. ¶ 33. Dermatology recommendations were discussed. Id. Medical

21

staff performed a biopsy that day, and prednisone was prescribed pursuant to dermatology

22

recommendations. Id. Plaintiff inquired why the MRI, CT scan and dynamic lumbar x-rays had

23

not been ordered as suggested by Dr. Wadhwa. Id. Defendant Espinoza explained that because

24

Plaintiff would be transferred from SQSP to level terrain facility, Plaintiff would be referred to a

25

new neurosurgeon. Id. Defendant Espinoza added that he would then defer to the new

26
27
28

16

Vasculitis is a group of disorders that destroy blood vessels by inflammation. See
https://en.wikipedia.org/wiki/Vasculitis (last accessed July 2, 2017).
16

1

neurosurgeon, who would then decide if any further imaging was indicated. Id. Defendant

2

Espinoza noted that Plaintiff already had a recent MRI, and the need for a new MRI was

3

“unclear,” especially considering that Plaintiff had significant difficulty tolerating MRIs even with

4

a high dose of premedication. Id. Defendant Espinoza further noted that Plaintiff’s current

5

“medical hold” was for his dermatology issue. Id. Because Plaintiff could see the telemedicine

6

dermatologist remotely from any institution, Defendant Espinoza offered to take Plaintiff off the

7

“medical hold” in order for him to be transferred sooner to the level terrain facility and referred to

8

the new neurosurgeon. Id. Plaintiff stated that priority-wise he preferred to stay at SQSP until the

9

lesions were resolved. Id.
On January 28, 2016, Plaintiff had an appointment for a chronic care follow up. Espinoza

11
United States District Court
Northern District of California

10

Decl. ¶ 34. Plaintiff stated that his lesions were getting bigger, and that he was not in any pain at

12

that time. Id. Defendant Espinoza discussed with Plaintiff that she was considering referring him

13

to a dermatologist at a local tertiary care center,17 but was concerned this would further delay his

14

transfer to a level terrain facility. Id. (footnote added). Defendant Espinoza also reminded

15

Plaintiff that his neurosurgery follow up would take place after his transfer to a level terrain

16

facility. Id. Plaintiff again requested to extend the “medical hold” until his lesions were

17

significantly improved. Id. Plaintiff indicated that he was agreeable with delaying his

18

neurosurgery follow-up referral due to his “medical hold.” Id. Plaintiff stated his pain and

19

mobility issues have improved in the last four to five weeks, and that they were not pressing issues

20

for him anymore. Id. Plaintiff was referred to see a dermatologist urgently at a local tertiary care

21

center. Id.

22

On May 2, 2016, Plaintiff was scheduled for a chronic care follow up, but he refused to be

23

examined by Defendant Espinoza during that appointment. Espinoza Decl. ¶ 35. In the meantime,

24

Plaintiff was being treated for his right lower extremity lesions by the dermatologist, and he was

25
26
27
28

17

A tertiary referral hospital (also called or tertiary care center) is a hospital that provides
tertiary care, which is health care from specialists in a large hospital after referral from primary
care and secondary care. See https://en.wikipedia.org/wiki/Tertiary_referral_hospital (last
accessed May 27, 2017).
17

1
2

also receiving treatment for his wound at a specialized offsite wound clinic. Id.
On May 3, 2016, Defendant Espinoza discussed Plaintiff’s lesions with Dr. Mohebali (a

3

non-party) at Kentfield Wound Card, and Dr. Mohebali recommended to start Plaintiff on

4

antibiotics. Espinoza Decl. ¶ 36. Defendant Espinoza made arrangements to meet with Plaintiff at

5

her clinic to discuss Dr. Mohebali’s recommendation. Id. However, Plaintiff refused to be seen

6

and abruptly left the room. Id. Later, Plaintiff agreed to speak with Defendant Espinoza, but

7

stated he was upset because he was not given narcotics for his right leg ulcers. Id. Plaintiff

8

further stated he did not want to be seen in clinic because he did not want to discuss his pending

9

transfer to a level terrain facility or his DLT designation. Id. Plaintiff was encouraged to attend
any scheduled primary care appointments so that his concerns could be addressed. Id. Given

11
United States District Court
Northern District of California

10

Plaintiff’s hostility during past medical appointments, medical staff determined that custody staff

12

should be nearby during any future appointments. Id.

13

As of July 2016, Plaintiff was being seen at Kentfield Wound Care and UCSF dermatology

14

where he was getting care for his chronic leg ulcers, which had slowly improved. Espinoza Decl.

15

¶ 37. Plaintiff also reported that his back pain and symptoms continued to improve significantly.

16

Id. Plaintiff continued to refuse repeatedly to be seen by Defendant Espinoza. Id. Despite this,

17

Defendant Espinoza regularly communicated with specialists and coordinated Plaintiff’s care with

18

Kentfield Wound Care and the UCSF providers. Id. Finally, as explained above, Defendant

19

Espinoza claims that “became clear that the right leg pain and symptoms which prompted his

20

referral to the second neurosurgeon, Dr. Wadhwa, were in fact due to his skin condition (his lesion

21

showed up shortly thereafter) and not his spine.” Id.

22

B.

23

Summary judgment is proper where the pleadings, discovery and affidavits demonstrate

Legal Standard

24

that there is “no genuine issue as to any material fact and that the moving party is entitled to

25

judgment as a matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect the

26

outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to

27

a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for

28

the nonmoving party. Id.
18

1

The party moving for summary judgment bears the initial burden of identifying those

2

portions of the pleadings, discovery, and affidavits which demonstrate the absence of a genuine

3

issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving

4

party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no

5

reasonable trier of fact could find other than for the moving party. On an issue for which the

6

opposing party by contrast will have the burden of proof at trial, as is the case here, the moving

7

party need only point out “that there is an absence of evidence to support the nonmoving party’s

8

case.” Id. at 325.
Once the moving party meets its initial burden, the nonmoving party must go beyond the

10

pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a

11
United States District Court
Northern District of California

9

genuine issue for trial.” Fed. R. Civ. P. 56(e). The court is only concerned with disputes over

12

material facts and “[f]actual disputes that are irrelevant or unnecessary will not be counted.”

13

Anderson, 477 U.S. at 248. It is not the task of the court to scour the record in search of a genuine

14

issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party

15

has the burden of identifying, with reasonable particularity, the evidence that precludes summary

16

judgment. Id. If the nonmoving party fails to make this showing, “the moving party is entitled to

17

a judgment as a matter of law.” Celotex, 477 U.S. at 323.

18

For purposes of summary judgment, the court must view the evidence in the light most

19

favorable to the nonmoving party; if the evidence produced by the moving party conflicts with

20

evidence produced by the nonmoving party, the court must assume the truth of the evidence

21

submitted by the nonmoving party. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999).

22

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

23

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

24

support of the motion for summary judgment, Defendants Reyes and Espinoza have presented their

25

own declarations. Dkts. 30-2, 30-3. Meanwhile, Plaintiff has filed his verified complaint and

26

opposition. Dkts. 1, 33. The Court construes his complaint as an affidavit under Federal Rule of

27

Civil Procedure 56, insofar as it is based on personal knowledge and sets forth specific facts

28

admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995).
19

1
2

C.

Discussion
1. Deliberate Indifference to Medical Needs Claim

The Eighth Amendment protects prisoners from inhumane conditions of confinement.
3

Farmer v. Brennan, 511 U.S. 825, 832 (1994). The government has an “obligation to provide

4
medical care for those whom it is punishing by incarceration,” and failure to meet that obligation
5
can constitute an Eighth Amendment violation cognizable under section 1983. Estelle v. Gamble,
6
429 U.S. 97, 103-105 (1976).
7
In order to prevail on an Eighth Amendment claim for inadequate medical care, a plaintiff
8
9

must show “deliberate indifference” to his “serious medical needs.” Estelle, 429 U.S. at 104.
“This includes ‘both an objective standard—that the deprivation was serious enough to constitute

10
cruel and unusual punishment—and a subjective standard—deliberate indifference.’” Colwell v.
11
United States District Court
Northern District of California

Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation omitted).
12
To meet the objective element of the standard, a plaintiff must demonstrate the existence of
13
14

a serious medical need. Estelle, 429 U.S. at 104. A “serious medical need[]” exists if the failure
to treat a prisoner’s condition could result in further significant injury or the “[u]nnecessary and

15
wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (citing
16
Estelle, 429 U.S. at 104), overruled in part on other grounds by WMX Techs., Inc. v. Miller, 104
17
F.3d 1133, 1136 (9th Cir. 1997) (en banc). The existence of an injury that a reasonable doctor or
18
patient would find important and worthy of comment or treatment; the presence of a medical
19
condition that significantly affects an individual’s daily activities; or the existence of chronic and
20

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

21
treatment. McGuckin, 974 F.2d at 1059-60 (citing Wood v. Housewright, 900 F.2d 1332, 1337-41
22
(9th Cir. 1990)).
23

To satisfy the subjective element, the plaintiff must show that “the official knows of and

24
disregards an excessive risk to inmate health or safety; the official must both be aware of facts
25
from which the inference could be drawn that a substantial risk of serious harm exists, and he must
26
also draw the inference.” Farmer, 511 U.S. at 837. A plaintiff must establish that the course of
27

treatment the doctors chose was “medically unacceptable under the circumstances” and that they

28
20

1

embarked on this course in “conscious disregard of an excessive risk to [the plaintiff’s] health.”

2

See Toguchi v. Chung, 391 F.3d 1051, 1058-60 (9th Cir. 2004) (citing Jackson v. McIntosh, 90

3

F.3d 330, 332 (9th Cir. 1996)). A claim of mere negligence related to medical problems, or a

4

difference of opinion between a prisoner patient and a medical doctor, is not enough to make out a

5

violation of the Eighth Amendment. Id.

6

Here, Plaintiff claims that Defendants were deliberately indifferent to his medical needs

7

when they denied him adequate treatment for his low back pain beginning when he was first

8

arrived at SQSP on December 8, 2009. Dkt. 1 at 4-6. Specifically, Plaintiff claims that his low

9

back pain condition “exacerbated because of [Defendant Reyes’s] negligence” while he was under
her care for the first two years he was at SQSP. Id. at 6. Plaintiff claims that he was under the

11
United States District Court
Northern District of California

10

care of “[Defendant] Espinoza and other doctor[]s in 2014,” and that the “medical care they

12

provided [for his] back issues amounted to no medical care at all.” Id. at 7. Finally, Plaintiff

13

claims that on May 20, 2014, he had “urgent emergency back surgery by Dr. T. Mampalan.” Id. at

14

8. Even after his surgery, Plaintiff claims that he was “going through the same issue[]s with

15

medical as [he] did prior to [his] back surgery.” Id. at 8-9. Plaintiff claims that Defendant

16

Espinoza failed to refer him to “a different neurosurgeon for a second opinion, and instead, she

17

“interjects the threat[] of transfer” each time Plaintiff inquired about the referral. Id. at 9. Finally,

18

Plaintiff claims that Defendant Tootell, as the CMO of the prison failed to “assert her authority to

19

approve or arrange any accommodations in a timely fashion.” Id. at 10. Plaintiff adds in his

20

opposition that Defendant Tootell also “ha[d] the authority to approve outside specialist visits.”

21

Dkt. 33 at 21.

22

While Defendants seem to concede that, as alleged, Plaintiff’s health condition may rise to

23

the level of a serious medical need, they argue that no evidence exists to show that Defendants

24

acted with “deliberate indifference” to that need. Dkt. 30 at 13-16. Defendants also argue that

25

Defendants Reyes’s and Espinoza’s treatment of Plaintiff’s back pain was within the standard of

26

medical care and thus they did not deny Plaintiff any appropriate or reasonable medical treatment.

27

Id. at 16. Specifically, Defendants claim that Defendants Reyes and Espinoza are “familiar with

28

the CDCR’s standard of medical care and with the level of skill, knowledge and care in the
21

1

diagnosis and treatment that other reasonably careful physicians would use in the same or similar

2

circumstances presented by plaintiff’s lawsuit.” Id. (citing Reyes Decl. ¶ 16; Espinoza Decl.

3

¶ 39). Defendants further argue that “[g]iven Plaintiff’s complaints, clinical presentation and

4

diagnostic evaluations, the medical care of his chronic back pain was at all times proper and

5

appropriate.” Id. (citing Reyes Decl. ¶ 17; Espinoza Decl. ¶ 40). Defendants claim that the

6

medical care given to Plaintiff by Defendants Reyes and Espinoza was “within the CDCR’s

7

standard of medical care and was consistent with the level of skill, knowledge and care in the

8

diagnosis and treatment that other reasonably careful physicians would use in the same or similar

9

circumstances as complained of by Plaintiff.” Id. Defendants claim that neither Defendant Reyes
nor Defendant Espinoza denied Plaintiff any appropriate or reasonable medical treatment. Id.

11
United States District Court
Northern District of California

10

Finally, as mentioned above, Defendants argue that “at no time relevant to plaintiff’s lawsuit did

12

[Defendant] Tootell in any way diagnose or treat plaintiff.” Id.

13

As mentioned above, a prison official is deliberately indifferent if he or she knows that a

14

prisoner faces a substantial risk of serious harm and disregards that risk by failing to take

15

reasonable steps to abate it. Farmer, 511 U.S. at 837. In order to establish deliberate indifference,

16

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

17

harm. McGuckin, 974 F.2d at 1060. Such indifference may appear when prison officials deny,

18

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

19

prison officials provided medical care. See id. at 1062.

20

To the extent that Plaintiff’s claim amounts to medical malpractice or an allegation that

21

Defendants were negligent in providing treatment, his allegations do not support an Eighth

22

Amendment claim. See Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1344 (9th Cir.

23

1981); Toguchi, 391 F.3d at 1060; McGuckin, 974 F.2d at 1059 (mere negligence in diagnosing or

24

treating a medical condition, without more, does not violate a prisoner’s Eighth Amendment

25

rights); O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (repeatedly failing to satisfy

26

requests for aspirins and antacids to alleviate headaches, nausea, and pains is not constitutional

27

violation; isolated occurrences of neglect may constitute grounds for medical malpractice but do

28

not rise to level of unnecessary and wanton infliction of pain). Despite Plaintiff’s claims that he
22

1

received no treatment for his low back pain, Defendants Reyes and Espinoza have submitted

2

verified declarations indicating that Plaintiff’s conditions and complaints were treated

3

continuously based upon the medical evidence as well as the judgment of the medical providers.

4

See Reyes Decl. ¶¶ 4-14; Espinoza Decl. ¶¶ 4-37. As explained in detail above, the evidence

5

shows that from 2010 to 2014, each time Plaintiff presented with any low back pain, he was

6

evaluated, treated with medication, and at some point x-rays and MRIs were ordered as needed.

7

From April 10, 2014 to May 20, 2014, Plaintiff was moved to the OHU (where an MRI was

8

ordered), referred for an urgent outpatient neurosurgeon consultation at Doctors Medical Center,

9

and then underwent L4-L5 surgery. Following his discharge from Doctors Medical Center,
Plaintiff returned to the OHU where he received physical therapy and displayed gradual

11
United States District Court
Northern District of California

10

improvements. Plaintiff was discharged from the OHU on July 16, 2014, and he was able to walk

12

with a cane. Defendant Espinosa and SQSP medical staff controlled Plaintiff’s pain with non-

13

steroid anti-inflammatory medication. Over the next year, Plaintiff had follow up appointments

14

approximately once a month. At these visits, Plaintiff was ambulatory and “functional.” Follow

15

up x-rays and an MRI were ordered when indicated. In 2015, Plaintiff experienced other ailments,

16

including pain in his right leg and thigh, which developed into skin lesions. Medical staff

17

examined Plaintiff on multiple occasions and provided treatment for these new ailments. During

18

this time, Plaintiff was informed that Doctors Medical Center had closed, and he would have to be

19

referred to a new neurosurgeon. Plaintiff was examined by the new neurosurgeon, Dr. Wadhwa

20

from UCSF on October 29, 2015. From September 2015 through July 2016, Plaintiff focused on

21

his new ailments (specifically the skin lesions on his right leg), and he had approximately ten

22

additional clinic visits. Because Plaintiff had increased pain to his right leg, medical staff

23

suggested that Plaintiff would have to be given a DLT classification in order to be transferred to a

24

level terrain facility. However, Plaintiff, who had a “medical hold” based on his dermatology

25

issue, preferred to remain at SQSP under after his lesions were resolved. Plaintiff also agreed to

26

continue the “medical hold” and delay his neurosurgery follow up because his pain and mobility

27

issues had improved. As of July 2016, Plaintiff was receiving treatment for his skin lesions from

28

Kentfield Wound Care and UCSF dermatology, and his conditions slowly improved. Plaintiff also
23

1
2

reported that his back pain and related symptoms continued to improve significantly.18
In sum, the undisputed evidence (supported by Defendants Reyes’s and Espinoza’s

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declarations) shows no evidence to suggest that any of Plaintiff’s requests for medical treatment

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were ignored and could have resulted in further injury. Even if Plaintiff claims he should have

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received different treatment for his medical needs, a difference of opinion as to the urgency and

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treatment of his medical needs is insufficient, as a matter of law, to establish deliberate

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indifference. See Toguchi, 391 F.3d at 1058, 1059-60; Sanchez v. Vild, 891 F.2d 240, 242 (9th

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Cir. 1989). In order to prevail on a claim involving choices between alternative courses of

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treatment, a plaintiff must show that the course of treatment the doctors chose was medically
unacceptable under the circumstances and that they chose this course in conscious disregard of an

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Northern District of California

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excessive risk to plaintiff’s health. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.1996) (citing

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Farmer, 511 U.S. at 837). The evidence here establishes that Defendants Reyes and Espinoza

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chose a course of treatments that was medically accepted. Although the medical treatment

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Plaintiff received may not have been what he considered proper treatment, he presents no evidence

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that Defendants Reyes and Espinoza were deliberately indifferent to his serious medical needs.

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Rather, the undisputed factual record shows that they: (1) continuously monitored and treated

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Plaintiff, specifically for his complaints of low back pain; (2) modified his prescribed medications

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and made referrals to consultants when needed; (3) chose medically acceptable courses of

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treatment while being aware of the risks associated with his health problems (i.e., low back pain,

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leg pain, hip pain, and skin lesions); (4) provided prescription drugs and ordered x-rays and MRIs

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when needed; (5) referred Plaintiff for an urgent outpatient neurosurgery consultation which led to

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his L4-L5 surgery; and (6) continued follow up care afterwards until his low back pain symptoms

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improved. Thus, Plaintiff has failed to provide evidence regarding an essential element of his

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Eighth Amendment claim against Defendants Reyes and Espinoza.

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Accordingly, Plaintiff’s Eighth Amendment claim fails as a matter of law. Therefore, the

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28

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In his opposition, Plaintiff claims that he still currently “ha[s] pain and burning in his left
foot,” but nowhere does he claim to have any lower back pain—which is the medical problem at
issue in this lawsuit. See Dkt. 33 at 14.
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court GRANTS Defendants’ motion for summary judgment as to Plaintiff’s claim that Defendants

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Reyes and Espinoza were deliberately indifferent to his medical needs.

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2. Supervisory Liability Claim Against Defendant Tootell
While Plaintiff alleges that his Eighth Amendment rights were violated when Defendants

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Reyes and Espinoza were allegedly deliberately indifferent to his serious medical needs, the Court

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notes that Plaintiff has failed to link Defendant Tootell to this Eighth Amendment claim. For

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example, as explained above, Plaintiff alleges that Defendant Tootell as the CMO of the prison

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failed to “assert her authority to approve or arrange any accommodations in a timely fashion.”

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Dkt. 1 at 10. Plaintiff also alleges that Defendant Tootell “has the authority to approve outside
specialist visits.” Dkt. 33 at 21. Thus, without more, it seems that such allegations do not

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Northern District of California

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establish the requisite level of personal involvement.

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The Court construes Plaintiff’s claim against Defendant Tootell as a supervisory liability

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claim. However, Plaintiff only makes conclusory allegations that Defendant Tootell failed to use

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her “authority” to arrange accommodations or approve outside specialist visits. See id.

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Conclusions masquerading as facts are insufficient to hold Defendant Tootell accountable. See

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Marks v. United States, 578 F.2d 261, 263 (9th Cir.1978) (“Conclusory allegations unsupported by

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factual data will not create a triable issue of fact.”) (citation omitted). Furthermore, defendants

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whose personal involvement is not alleged cannot be held liable for the acts of their subordinates

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under a theory of respondeat superior or vicarious liability. See Milton v. Nelson, 527 F.2d 1158,

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1159 (9th Cir. 1975). Vicarious liability on the part of a supervisory official is not recognized as a

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basis for liability under the Civil Rights Act. Palmer v. Sanderson, 9 F.3d 1433, 1438 (9th Cir.

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1993). A supervisor is liable only when he or she has directly participated in or proximately

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caused the alleged deprivation. Id. at 1437-38; see also Harris v. City of Roseburg, 664 F.2d

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1121, 1125 (9th Cir. 1981); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). The law is clear

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that liability of supervisory personnel must be based on more than merely the right to control

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others. Monell v. Department of Social Services, 436 U.S. 658, 694 n.58 (1978).

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Here, Plaintiff has not made a causal link between Defendant Tootell and a violation of his
constitutional rights. To the extent Defendant Tootell is being sued in her capacity as a
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supervisory official, Plaintiff fails to raise a material issue of fact against this Defendant because

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nothing in the record shows that she directly participated in or proximately caused the alleged

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deprivation. In any event, the Court has found above that Plaintiff’s Eighth Amendment claim

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against Defendant Tootell’s subordinates—Defendants Reyes and Espinoza—has failed as a

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matter of law. Accordingly, Defendants’ motion for summary judgment is GRANTED as to

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Plaintiff’s supervisory liability claim against Defendant Tootell.

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IV.

CONCLUSION

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For the reasons outlined above, the Court rules as follows:

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1.

Plaintiff’s request for a preliminary injunction is DENIED. Dkt. 28.

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2.

Defendants’ motion for summary judgment is GRANTED, and judgment will be

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Northern District of California

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entered in their favor. Dkt. 30.

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3.

The Clerk of the Court shall terminate all pending motions and close the file.

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4.

This Order terminates Docket Nos. 28 and 30.

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IT IS SO ORDERED.

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Dated: August 31, 2017
______________________________________
YVONNE GONZALEZ ROGERS
United States District Judge

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