Blackburn v. Monterey County Jail et al

Filing 32

ORDER by Judge Lucy H. Koh granting 18 Motion for Summary Judgment (Attachments: # 1 certificate of mailing) (mpb, COURT STAFF) (Filed on 3/8/2012)

Download PDF
1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 HARVEY D. BLACKBURN, Plaintiff, 12 13 14 vs. TERRY WHITING, 15 Defendant. ) ) ) ) ) ) ) ) ) ) No. C 10-1422 LHK (PR) ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 16 Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42 17 U.S.C. § 1983 against Terry Whiting, a physician’s assistant at Monterey County Jail. Plaintiff 18 alleges that Defendant Whiting (“Defendant”) was deliberately indifferent to his serious medical 19 needs in violation of the Eighth Amendment. Defendant has moved for summary judgment. 20 Plaintiff has filed an opposition, and Defendant has filed a reply. Having carefully considered 21 the papers submitted, the Court hereby GRANTS Defendant’s motion for summary judgment, 22 for the reasons set out below. 23 BACKGROUND1 24 In 2008, medical records had established that Plaintiff had been diagnosed with 25 hemolytic anemia (“AIHA”). (MSJ, Ex. A-5.) On September 23, 2009, Defendant prescribed 26 27 28 1 The following facts are viewed in the light most favorable to Plaintiff, and are undisputed unless otherwise indicated. Order Granting Defendant’s Motion For Summary Judgment G:\PRO-SE\SJ.LHK\CR.10\Blackburn422msj.wpd 1 aspirin to Plaintiff to treat his hypertension/high blood pressure (“HTN”). (Id., Ex. B-8.) On 2 September 25, 2009, it was recorded that Plaintiff had chronic anemia, thrombocytopenic 3 purpura (“ITP”), and was also diagnosed with HTN. (Id., Ex. B-10.) On Plaintiff’s “Problem 4 List” as kept by the medical clinic, it states: “Allergies: NKDA No ASA or NSAIDS,” and 5 notes that Plaintiff’s major problems are AIHA, ITP, and HTN. (Id., Ex. B-12.) “NKDA” 6 means “No known drug allergies.” (Id., Ex. G at 2.) “No ASA” means “no aspirin.” (Id.) 7 “NSAIDS” are “non-steroidal anti-inflammatories,” such as Ibuprofen. (Id.) On October 28, 8 2009, Plaintiff received a renewal of his aspirin prescription. (Id., Ex. B-16.) On December 15, 9 2009, Defendant saw Plaintiff, who had been complaining of right shoulder pain and left wrist 10 pain. (Id., Ex. B-19.) Defendant prescribed Ibuprofen for three days. (Id.). On December 21, 11 2009, Plaintiff’s request for a refill of Ibuprofen was denied. (Id., Ex. B-20.) 12 On January 18, 2010, Plaintiff went to the medical clinic to get treated for a pain in his 13 wrist. (Compl. at 3.) Defendant prescribed Motrin, a type of Ibuprofen, for three days to 14 Plaintiff. (Id.; Decl. Pl. at ¶ 5; MSJ, Ex. B-21.) Unbeknownst to Plaintiff, he should not have 15 been prescribed Motrin because Plaintiff had no spleen. (Compl. at 3.) As a result of the 16 Motrin, Plaintiff asserts that he suffered severe nosebleeds, broke out in blisters all over his 17 body, suffered migraine headaches, and had red bumps inside his mouth and on his tongue. (Id.; 18 Decl. Pl. at ¶ 6; MSJ, Ex. E-5.) Plaintiff returned to see medical personnel, and, on January 22, 19 2010, Defendant attended to him again. (Compl. at 3.) Defendant looked at Plaintiff’s outbreak 20 and concluded they were bruises. (Id.) Plaintiff asked Defendant what the bumps inside his 21 mouth were, and Defendant responded that she did not know. (Id.) Plaintiff stated that he was 22 having an allergic reaction to the Motrin, and Defendant did not believe him. (Id.) Plaintiff then 23 asked for a blood test so that he could send the results to his doctor; Defendant refused to do so. 24 (Id.) 25 Defendant noted in her progress notes that an allergic reaction was possible, but the least 26 likely. (MSJ, Ex. B-22.) She observed that Plaintiff was not in any apparent distress, and his 27 upper and lower extremities had scratch marks and abrasion-type lesions. (Id.) She also noted 28 that there were no signs of an allergic reaction. (Id.) Defendant told Plaintiff to avoid scratching Order Granting Defendant’s Motion For Summary Judgment 2 G:\PRO-SE\SJ.LHK\CR.10\Blackburn422msj.wpd 1 the abrasion-like spots and to follow up in sick call if his rash increased in severity. (Id.) 2 The following day, because of his condition and persistent nosebleed, Plaintiff was 3 admitted into Natividad Medical Center. (Compl. at 3.) From there, he was transferred to 4 Salinas Valley Memorial Hospital where he had to undergo several blood transfusions and other 5 procedures. (Id.) Plaintiff was diagnosed with ITP. (Decl. Pl. at ¶ 8.) ITP is a condition 6 characterized by bleeding into the skin with the production of blood blisters or bruising and by 7 hemorrhages into the mucous membranes, and is associated with a reduction in platelets and 8 prolonged bleeding. (MSJ, Ex. G at 4.) On January 26, 2010, Plaintiff was discharged. (Compl. 9 at 8.) On February 1, Plaintiff was transferred to North Kern State Prison, and then rushed to 10 San Joaquin Community Hospital because of the continuing reaction to the Motrin. (Decl. Pl. at 11 ¶ 9.) 12 13 LEGAL STANDARD Summary judgment is proper where the pleadings, discovery and affidavits demonstrate 14 that there is “no genuine issue as to any material fact and that the moving party is entitled to 15 judgment as a matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect 16 the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute 17 as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a 18 verdict for the nonmoving party. Id. 19 The party moving for summary judgment bears the initial burden of identifying those 20 portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine 21 issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Where the moving 22 party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no 23 reasonable trier of fact could find other than for the moving party. On an issue for which the 24 opposing party will have the burden of proof at trial, the moving party need only point out “that 25 there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. 26 Once the moving party meets its initial burden, the nonmoving party must go beyond the 27 pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a 28 genuine issue for trial.” Fed. R. Civ. P. 56(e). The Court is only concerned with disputes over Order Granting Defendant’s Motion For Summary Judgment 3 G:\PRO-SE\SJ.LHK\CR.10\Blackburn422msj.wpd 1 material facts and “factual disputes that are irrelevant or unnecessary will not be counted.” 2 Anderson, 477 U.S. at 248. It is not the task of the Court to scour the record in search of a 3 genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). The 4 nonmoving party has the burden of identifying, with reasonable particularity, the evidence that 5 precludes summary judgment. Id. If the nonmoving party fails to make this showing, “the 6 moving party is entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. at 323. 7 The Court’s function on a summary judgment motion is not to make credibility 8 determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. 9 Elec. Serv. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence 10 must be viewed in the light most favorable to the nonmoving party, and the inferences to be 11 drawn from the facts must be viewed in a light most favorable to the nonmoving party. See id. at 12 631. 13 14 DISCUSSION Plaintiff alleges that Defendant exhibited deliberate indifference when she: (1) prescribed 15 Ibuprofen on January 18, 2010, and (2) later failed to diagnose that Plaintiff was having a 16 reaction to the Motrin, and failed to administer a blood test.2 17 Deliberate indifference to a prisoner’s serious medical needs violates the Eighth 18 Amendment.3 Estelle v. Gamble, 429 U.S. 97, 104 (1976). A prison official violates the Eighth 19 Amendment only when two requirements are met: (1) the deprivation alleged is, objectively, 20 21 22 23 24 25 26 27 28 2 Plaintiff’s objections to Defendant’s exhibits are overruled. 3 It is unclear whether Plaintiff was a pre-trial detainee rather than a prisoner when he was housed at Monterey County Jail. Nevertheless, even though pretrial detainees’ claims arise under the Due Process Clause, the Eighth Amendment serves as a benchmark for evaluating those claims. See Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996) (Eighth Amendment guarantees provide minimum standard of care for pretrial detainees). The Ninth Circuit has determined that the appropriate standard for evaluating constitutional claims brought by pretrial detainees is the same one used to evaluate convicted prisoners’ claims under the Eighth Amendment. “The requirement of conduct that amounts to ‘deliberate indifference’ provides an appropriate balance of the pretrial detainees’ right to not be punished with the deference given to prison officials to manage the prisons.” Redman v. County of San Diego, 942 F.2d 1435, 1443 (9th Cir. 1991) (en banc) (citation omitted). See, e.g., Carnell, 74 F.3d at 979 (standard of deliberate indifference applicable to pretrial detainees’ medical claims). Order Granting Defendant’s Motion For Summary Judgment 4 G:\PRO-SE\SJ.LHK\CR.10\Blackburn422msj.wpd 1 sufficiently serious, and (2) the official is, subjectively, deliberately indifferent to the inmate’s 2 health or safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). 3 A “serious” medical need exists if the failure to treat a prisoner’s condition could result 4 in further significant injury or the “unnecessary and wanton infliction of pain.” Id. The 5 following are examples of indications that a prisoner has a “serious” need for medical treatment: 6 the existence of an injury that a reasonable doctor or patient would find important and worthy of 7 comment or treatment; the presence of a medical condition that significantly affects an 8 individual’s daily activities; or the existence of chronic and substantial pain. McGuckin v. Smith, 9 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. 10 Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). 11 A prison official exhibits deliberate indifference when he knows of and disregards a 12 substantial risk of serious harm to inmate health. See Farmer, 511 U.S. at 837. The official 13 must both know of “facts from which the inference could be drawn” that an excessive risk of 14 harm exists, and he must actually draw that inference. Id. “A difference of opinion between a 15 prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 16 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). Where doctors have chosen 17 one course of action and a prisoner-plaintiff contends that they should have chosen another 18 course of action, the plaintiff “must show that the course of treatment the doctors chose was 19 medically unacceptable under the circumstances, . . . and the plaintiff must show that they chose 20 this course in conscious disregard of an excessive risk to plaintiff’s health.” Jackson v. 21 McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted). 22 The parties do not dispute that Plaintiff’s chronic conditions of AIHA and ITP were 23 serious medical conditions. However, Plaintiff has failed to raise a triable issue of fact that 24 Defendant acted with deliberate indifference. Here, to be liable for deliberate indifference to 25 Plaintiff’s serious medical needs, Defendant must have known that Plaintiff faced a substantial 26 risk of harm, and consciously disregarded that risk by failing to take reasonable steps to abate it. 27 See Farmer, 511 U.S. at 837. 28 The undisputed evidence shows that Plaintiff’s medical records indicated that he had no Order Granting Defendant’s Motion For Summary Judgment 5 G:\PRO-SE\SJ.LHK\CR.10\Blackburn422msj.wpd 1 known drug allergies, but there were notations indicating “No ASA or NSAIDS” on Plaintiff’s 2 “Problem List”. (MSJ, Ex. B-12.) Defendant’s expert, Dr. Rael, proffers that the notation “No 3 ASA or NSAIDS” was “used to indicate that the medications are contraindicated for [Plaintiff] 4 because of” Plaintiff’s AIHA and ITP. (MSJ, Ex. G at 3.) However, opines Dr. Rael, the 5 decision to prescribe aspirin or NSAIDS was a matter of medical judgment. (Id.) For example, 6 Defendant’s expert, Dr. Rael, declares that Plaintiff had been prescribed aspirin on an ongoing 7 basis to treat his HTN, and had suffered no adverse reaction. (Id. at 2.) 8 9 In December 2009, Defendant saw Plaintiff when he complained of right shoulder pain and left wrist pain. (Id.) Defendant prescribed a short three-day prescription of Ibuprofen. (Id.) 10 Plaintiff suffered no negative consequences, and in fact, requested a re-fill. (Id.) Then, 11 approximately one month later, Plaintiff presented with right wrist pain. (Id.) Defendant again 12 prescribed a short, three-day prescription of Ibuprofen. (Id.) 13 Plaintiff points to no competent evidence that Defendant knew that prescribing Ibuprofen 14 on January 18, 2010 presented a serious risk of harm to Plaintiff. See, e.g., Toguchi v. Chung, 15 391 F.3d 1051, 1058-60 (9th Cir. 2004) (summary judgment in favor of defendant doctor 16 appropriate where evidence showed doctor did not believe that Cogentin use presented a serious 17 risk of harm to plaintiff, and where there was no indication in the record that doctor was aware 18 of a risk that plaintiff was suffering from Klonopin withdrawal). It is of no matter if Defendant 19 should have been aware of the risk for purposes of determining whether she acted with deliberate 20 indifference. See Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). That 21 Defendant had previously prescribed Ibuprofen to Plaintiff with no adverse effects supports 22 Defendant’s conclusion that she did not know it would present a serious risk of harm to Plaintiff. 23 Further, Plaintiff does not dispute Defendant’s evidence that the decision to prescribe Ibuprofen 24 was a matter of medical judgment. Because there is an absence of evidence demonstrating that 25 Defendant consciously disregarded a serious risk of harm by prescribing a short-dose of 26 Ibuprofen, Defendant was not deliberately indifferent when she prescribed Ibuprofen on January 27 18, 2010. 28 Three days later, on January 22, 2010, Plaintiff saw Defendant again. (MSJ, Ex. G at 3.) Order Granting Defendant’s Motion For Summary Judgment 6 G:\PRO-SE\SJ.LHK\CR.10\Blackburn422msj.wpd 1 According to Dr. Rael, Defendant’s reaction and treatment on that day were reasonable. (Id.) 2 Defendant’s notes state that she observed Plaintiff’s arms and legs, which had scratch-like marks 3 and abrasion-type lesions on them, and noted that he did not show signs of an allergic reaction. 4 (Id.) Defendant told Plaintiff to avoid scratching and told him to follow-up if he had shortness of 5 breath or an increase in severity of his rash. (Id.) According to Defendant, between January 22 6 and January 23, Plaintiff’s symptoms increased to where he had nosebleeds, blood blisters, and 7 bruising, which resulted in a different diagnosis indicating a strong possibility that Plaintiff’s 8 ITP was flaring up. (Id.) However, Plaintiff’s recitation of his symptoms on January 22, 2010 9 differ slightly from Defendant’s medical notes. Plaintiff alleges that at the time he saw 10 Defendant again on January 22, he suffered from severe nosebleeds, had broken out in blisters all 11 over his body, suffered migraine headaches, and had red bumps inside his mouth and on his 12 tongue. (Compl. at 3; Decl. Pl. at ¶ 6.) 13 Even under Plaintiff’s version of the facts, the evidence does not support an inference of 14 deliberate indifference by Defendant. That she chose a different course of treatment than that 15 preferred by Plaintiff does not demonstrate that she did so in disregard of a substantial risk of 16 serious harm to Plaintiff. At the time, Defendant considered whether Plaintiff was having an 17 allergic reaction, but rejected that notion because, according to Defendant, Plaintiff did not have 18 signs of infection or an allergic reaction. (MSJ, Ex. B-22.) Further, Defendant advised Plaintiff 19 to follow-up in sick call if his condition worsened. (Id.) This evidence does not lead to a 20 reasonable inference that Defendant knew Plaintiff was faced with a substantial risk of harm and 21 consciously disregarded it. Moreover, even if Defendant should have suspected that Plaintiff’s 22 ITP was flaring up, or should have erred on the side of caution and conducted more tests, at most 23 this is negligence. See, e.g., Toguchi, 391 F.3d at 1059 (recognizing that defendant doctor who 24 failed to assess the plaintiff’s actual medical condition had, at most, acted negligently). It is 25 well-established that neither negligence nor gross negligence will constitute deliberate 26 indifference. Farmer, 511 U.S. at 835-36 & n.4. Finally, Plaintiff provides no evidence that 27 Defendant’s chosen course of action was medically unacceptable under the circumstances, or 28 chosen in conscious disregard of an excessive risk to his health. See Toguchi, 391 F.3d at 1058. Order Granting Defendant’s Motion For Summary Judgment 7 G:\PRO-SE\SJ.LHK\CR.10\Blackburn422msj.wpd 1 Thus, Defendant is entitled to summary judgment. 2 CONCLUSION 3 4 5 6 7 Defendants’ motion for summary judgment is GRANTED. Judgment shall be entered in favor of Defendants. The Clerk shall terminate all pending motions and close the file. IT IS SO ORDERED. DATED: 3/8/12 LUCY H. KOH United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order Granting Defendant’s Motion For Summary Judgment 8 G:\PRO-SE\SJ.LHK\CR.10\Blackburn422msj.wpd

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?