Miles v. Mack et al

Filing 48

ORDER Granting 46 Motion for Summary Judgment. Signed by Judge Edward J. Davila 7/2/2013. (ecg, COURT STAFF) (Filed on 7/3/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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Plaintiff,
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v.
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DR. MACK, et al.,
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Defendants.
__________________________________ )
RUSSELL D. MILES,

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No. C 10-05948 EJD (PR)
ORDER GRANTING DEFENDANT
DR. WILLIAMS’ MOTION FOR
SUMMARY JUDGMENT

(Docket No. 46)

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Plaintiff, an inmate at the Salinas Valley State Prison (“SVSP), filed a pro se civil

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rights complaint under 42 U.S.C. § 1983, challenging the conditions of his confinement.

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The Court granted Defendants Dr. Mack, Dr. Bright, Nurse L. Fox, Dr. Sepulveda, and C.

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Hammond’s motion for summary judgment and motion to dismiss, such that only the

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claim against Defendant Dr. G. Williams remains. (Docket No. 45.) Defendant Williams

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has filed a motion for summary judgment. (Docket No. 46.) Plaintiff did not file

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opposition to the motion although given an opportunity to do so.

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DISCUSSION

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I.

Statement of Facts
The following facts are undisputed unless otherwise indicated.

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Plaintiff alleges that he has been suffering from “excruciating chronic lower back

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pain” ever since he was in county jail in 2007. (Compl. at 3.) Plaintiff was admitted to

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the California Department of Corrections and Rehabilitation (“CDCR”) in September

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2009, at which time Plaintiff claims his condition worsened to the point that he needed a

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cane to help him walk. (Id. at 3.) One month later, he was transferred to Wasco State

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Prison-Reception Center (“Wasco”), where his condition worsened further and he needed

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a walker to “stabilize his balance and mobility.” (Id. at 4.) Plaintiff alleges that the pain

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became so severe that it caused “paralysis in his legs.” (Id.) He was seen by Dr.

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Odeluga, who prescribed pain medication and ordered an MRI on October 22, 2009.

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According to Plaintiff, the MRI of the lumbar spine confirmed that he had back problems.

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(Id.) Plaintiff claims that the MRI revealed “a herniated disk/displaced disk and nerve

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protruding from the L4 - L5 vertebrae,” and that Dr. Odeluga recommended Plaintiff

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undergo neurosurgery on November 25, 2009. (Id.) Plaintiff also alleges that Dr.

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Odeluga prescribed a wheelchair for his use. (Compl. at 3.) According to Defendants,

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the MRI report indicated possible degenerative, arthritic conditions with no evidence of

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acute injury. (Bright Decl., Ex. A.) Defendants also assert that x-rays taken of Plaintiff’s

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lumbar spine on October 19, 2009, were normal. (Moore Decl., Ex. A.) Defendants

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assert that contrary to Plaintiff’s claim that Dr. Odeluga recommended neurosurgery, Dr.

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Odeluga actually submitted a “Physician Request for Service” (“Request”) for an initial

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consultation with a neurosurgeon to further evaluate Plaintiff’s complaints of pain.

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(Bright Decl., Ex. B.) Plaintiff was transferred to SVSP on December 28, 2009.
Plaintiff claims that on January 8, 2010, medical staff at SVSP denied his surgery

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without any explanation. (Compl. at 5.) According to Defendants, the Request for a

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consultation with a neurosurgeon submitted by Dr. Odeluga was denied by Wasco

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medical staff because Plaintiff was transferred to another institution. (Bright Decl., Ex.

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B.)

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On January 27, 2010, Plaintiff submitted a Reasonable Modification
Accommodation Request (“RMAR”) seeking an “ADA cell” with grab bars, wheelchair
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gloves and a narrower wheelchair. (Moore Decl., Ex. B.) Defendant Dr. Bright reviewed

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Plaintiff’s medical records and conducted an interview and physical examination of

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Plaintiff on February 12, 2010. (Bright Decl. ¶ 8,, Ex. C.) Dr. Bright determined that a

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wheelchair was not medically necessary for Plaintiff as “there was little, if any, clinical

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evidence or indication to support Plaintiff’s claims that he was mobility impaired.” (Id.)

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An electromyogram (EMG) was performed on Plaintiff on February 10, 2010. Dr. Bright

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reviewed the EMG results and determined that they supported his determination that a

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wheelchair was not medically necessary. (Id. ¶ 9, Ex. D.) On March 1, 2010, Plaintiff

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was informed of Dr. Bright’s decision to discontinue the wheelchair. (Id. ¶ 10, Ex. C.)

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Although he discontinued the wheelchair, Dr. Bright prepared a Comprehensive

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Accommodation Chrono to authorize the permanent use of a seated walker. (Id.)

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On April 8, 2010, Plaintiff filed another Reasonable Modification Accommodation

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Request seeking extra mattresses, extra pillows, and additional pain medication, which

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was evaluated and denied as medically unnecessary. (Moore Decl., Ex. C.)

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In early June 2010, Defendant Dr. Williams was requested to perform an

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evaluation of Plaintiff for possible physical therapy and recommendations for complaints

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of hip pain and a left foot drop. (Williams Decl. ¶ 5.) Dr. Williams has a specialty in the

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area of physical medicine and rehabilitation, for assessing people with disabilities and

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ordering treatment plans to address and accommodate those disabilities. (Id. ¶ 3.) The

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requesting physician requested a functional assessment of Plaintiff, and whether there was

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a need for a foot brace or crutches. (Id. ¶ 5.)

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On June 30, 2010, Plaintiff underwent a consultation with Dr. Williams regarding

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his rehabilitation options. (Id., Ex. A.) Plaintiff informed Dr. Williams that his goal was

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to “become functional, not have pain and get a wheelchair.” (Id.) Dr. Williams advised

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Plaintiff that his goals were incompatible because a wheelchair would make him less

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functional. (Id.) He also advised Plaintiff that the recommended treatment for his

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particular pain would be to increase his movement and follow an exercise program, which

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would include stretching exercises, strengthening core muscles and improving posture.
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(Id.) After he observed and examined Plaintiff, Dr. Williams determined that a

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wheelchair was not medically indicated at that time and would likely cause more long-

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term harm than benefit. (Id.) Although Dr. Williams did not believe that Plaintiff was a

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good rehabilitation candidate, he nevertheless recommended that Plaintiff be given a trial

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of physical therapy in the hopes of demonstrating that a wheelchair and additional pain

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medication was not the recommended treatments for his complaints. (Id.) Petitioner

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claims that Defendant Dr. Williams “in his consultation with [Defendant] Dr. Sepulveda

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discredits... what Petitioner conveyed to him about his severe pain and inabilities.”

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(Compl. at 5.) Plaintiff claims that Dr. Williams, along with other Defendants, supported

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Dr. Mack and Dr. Brights’ decision “to refuse [Plaintiff] with the adequate medical

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treatment to alleviate [Plaintiff’s] pain and suffering and difficulties in ambulating,” and

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as such acted with deliberate indifference to his serious medical needs. (Id. at 6.)

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II.

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

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

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party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A court will grant

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summary judgment “against a party who fails to make a showing sufficient to establish

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the existence of an element essential to that party’s case, and on which that party will bear

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the burden of proof at trial . . . since a complete failure of proof concerning an essential

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element of the nonmoving party’s case necessarily renders all other facts immaterial.”

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Celotex Corp. v. Cattrett, 477 U.S. 317, 322-23 (1986). A fact is material if it might

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affect the outcome of the lawsuit under governing law, and a dispute about such a

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material fact is genuine “if the evidence is such that a reasonable jury could return a

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verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

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(1986).

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Generally, the moving party bears the initial burden of identifying those portions

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of the record which demonstrate the absence of a genuine issue of material fact. See

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Celotex Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on
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an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could

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find other than for the moving party. But on an issue for which the opposing party will

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have the burden of proof at trial, the moving party need only point out “that there is an

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absence of evidence to support the nonmoving party’s case.” Id. at 325. If the evidence

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in opposition to the motion is merely colorable, or is not significantly probative, summary

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judgment may be granted. See Liberty Lobby, 477 U.S. at 249-50.

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The burden then shifts to the nonmoving party to “go beyond the pleadings and by

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her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on

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file,’ designate specific facts showing that there is a genuine issue for trial.’” Celotex

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Corp., 477 U.S. at 324 (citations omitted). If the nonmoving party fails to make this

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showing, “the moving party is entitled to judgment as a matter of law.” Id. at 323.

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The Court’s function on a summary judgment motion is not to make credibility

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determinations or weigh conflicting evidence with respect to a material fact. See T.W.

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Elec. Serv., Inc. V. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

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The evidence must be viewed in the light most favorable to the nonmoving party, and the

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inferences to be drawn from the facts must be viewed in a light most favorable to the

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nonmoving party. See id. at 631. It is not the task of the district court to scour the record

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in search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir.

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1996). The nonmoving party has the burden of identifying with reasonable particularity

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the evidence that precludes summary judgment. Id. If the nonmoving party fails to do so,

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the district court may properly grant summary judgment in favor of the moving party.

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See id.; see, e.g., Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1028-

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A.

Legal Claims and Analysis

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

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Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A prison official violates the

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Eighth Amendment only when two requirements are met: (1) the deprivation alleged is,

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objectively, sufficiently serious, and (2) the official is, subjectively, deliberately
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indifferent to the inmate’s health or safety. See Farmer v. Brennan, 511 U.S. 825, 834

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(1994).

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

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result in further significant injury or the “unnecessary and wanton infliction of pain.” Id.

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The following are examples of indications that a prisoner has a “serious” need for medical

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treatment: the existence of an injury that a reasonable doctor or patient would find

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important and worthy of comment or treatment; the presence of a medical condition that

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

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substantial pain. McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled

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on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.

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1997) (en banc).

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A prison official exhibits deliberate indifference when he knows of and disregards

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a substantial risk of serious harm to inmate health. See Farmer, 511 U.S. at 837. The

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official must both know of “facts from which the inference could be drawn” that an

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excessive risk of harm exists, and he must actually draw that inference. Id. “A difference

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of opinion between a prisoner-patient and prison medical authorities regarding treatment

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does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir.

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1981). Similarly, a showing of nothing more than a difference of medical opinion as to

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the need to pursue one course of treatment over another is insufficient, as a matter of law,

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to establish deliberate indifference, see Toguchi v. Chung, 391 F.3d 1051, 1058, 1059-60

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(9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Mayfield v. Craven,

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433 F.2d 873, 874 (9th Cir. 1970). In order to prevail on a claim involving choices

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

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treatment the doctors chose was medically unacceptable under the circumstances and that

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he or she chose this course in conscious disregard of an excessive risk to plaintiff’s

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health. Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)

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

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Plaintiff claims that Dr. Williams, along with other Defendants, supported Dr.
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Mack and Dr. Brights’ decision “to refuse [Plaintiff] with the adequate medical treatment

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to alleviate [Plaintiff’s] pain and suffering and difficulties in ambulating.” (Id. at 6.)

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Defendant Williams argues that Plaintiff received proper medical treatment for his lower

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back pain, and that a wheelchair was not medically necessary. (Docket No. 46 at 4-5.)

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Based on the evidence presented, Plaintiff has failed to show that Defendant Dr.

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Williams provided constitutionally inadequate medical care. Dr. Williams was asked to

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examine Plaintiff for possible therapy and recommendations for treating Plaintiff’s

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complaints, and the record shows that he performed the examination and spoke with

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Plaintiff about his goals. See supra at 3-4. When Plaintiff stated that his goals were to

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“become functional, not have pain and get a wheelchair,” Dr. Williams advised Plaintiff

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that his goals were incompatible because a wheelchair would make Plaintiff less

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functional. Id. Furthermore, Dr. Williams’ conclusion was that a wheelchair was not

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medically indicated and that it would likely cause more long-term harm than benefit. Id.

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Plaintiff takes issue with the fact that Dr. Williams did not recommend a wheelchair as

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part of his treatment plan even though Plaintiff believed that a wheelchair was essential.

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However, this difference of opinion over the course of treatment is insufficient, as a

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

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60. Dr. Williams’ recommended course of treatment was to increase movement and

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follow an exercise program. Nevertheless, he was willing to recommend that Plaintiff be

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given a trial of physical therapy in the hopes of demonstrating that a wheelchair and

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additional pain medication was not the most suitable course of treatment. As such,

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Plaintiff has failed to show that Dr. Williams’ recommended course of treatment was

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medically unacceptable under the circumstances and that he chose this course in

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conscious disregard of an excessive risk to Plaintiff’s health. Id. at 1058. Rather, Dr.

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Williams clearly had Plaintiff’s best interests in mind as he believed that a wheelchair

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would increase Plaintiff’s pain and prove more harmful in the long-term. Defendant has

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met his burden of demonstrating the absence of a genuine issue of material fact. Plaintiff

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has filed no opposition pointing to specific facts that show there is a genuine issue for
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trial on his medical claim against Dr. Williams. Accordingly, Defendant is entitled to

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

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CONCLUSION

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For the reasons stated above, Defendant Williams’ motion for summary judgment
is GRANTED. (Docket No. 46.)
This order terminates Docket No. 46.

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DATED:

7/2/2013

EDWARD J. DAVILA
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

RUSSELL D. MILES,

Case Number: CV10-05948 EJD

Plaintiff,

CERTIFICATE OF SERVICE

v.
DR. MACK, et al.,
Defendants.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
7/2/2013
That on
, I SERVED a true and correct copy(ies) of the
attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s)
hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into
an inter-office delivery receptacle located in the Clerk's office.

Russell D. Miles #AA7376
Salinas Valley State Prison
P.O. Box 1050
Soledad, CA 93960
Dated:

7/2/2013
Richard W. Wieking, Clerk
/s/ Elizabeth Garcia, Deputy Clerk
By: