Estrada v. Sayre

Filing 93

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S MOTIONS FOR SUMMARY JUDGMENT; ADDRESSING PENDING MOTIONS by Judge Lucy H. Koh denying 45 Motion for Summary Judgment; granting 55 Motion for Summary Judgme nt; denying 73 Motion for Summary Judgment; denying 80 Motion to Strike ; granting 81 Motion for Leave to File; denying 84 Motion to Strike ; granting 85 Ex Parte Application (Attachments: # 1 Certificate/Proof of Service) (mpb, COURT STAFF) (Filed on 7/28/2014)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JAIME IGNACIO ESTRADA,

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Plaintiff,
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vs.
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DR. MICHAEL SAYRE and C. MALO- )
CLINES,
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Defendants.
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No. C 12-0592 LHK (PR)
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT; DENYING
PLAINTIFF’S MOTIONS FOR
SUMMARY JUDGMENT;
ADDRESSING PENDING MOTIONS
(Doc. Nos. 45, 55, 73, 80, 81, 84, 85.)

Plaintiff, proceeding pro se, filed an amended civil rights complaint pursuant to 42

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U.S.C. § 1983 against Dr. Michael Sayre (“Dr. Sayre”) and Nurse Practitioner C. Malo-Clines

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(“Malo-Clines”) at Pelican Bay State Prison (“PBSP”). Plaintiff alleges that both defendants

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were deliberately indifferent to his serious medical needs, in violation of the Eighth Amendment,

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and that Malo-Clines retaliated against plaintiff, in violation of the First Amendment.

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Plaintiff has moved for partial summary judgment on the deliberate indifference claim.

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(Doc. No. 45.) Defendants have filed an opposition. (Doc. No. 58.) Plaintiff has filed a reply.

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(Doc. No. 63.) Plaintiff has also filed a motion for summary judgment on the retaliation claim.

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(Doc. No. 73.) Defendants have filed an opposition (doc. no. 77), and plaintiff has filed a reply

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Order Granting Defendants’ Motion For Summary Judgment; Denying Plaintiff’s Motions for Summary Judgment;
Addressing Pending Motions
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(doc no. 80), and a sur-reply1 (doc no. 81).
Defendants have moved for summary judgment. (Doc. No. 55.) Plaintiff has filed an

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opposition (doc. no. 67), and supplemental opposition (doc. no. 72), and defendants have filed a

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reply (doc. no. 76).

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Having carefully considered the papers submitted, the court hereby GRANTS

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defendants’ motion for summary judgment, and DENIES plaintiff’s motions for summary

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judgment, for the reasons set out below.

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BACKGROUND

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Plaintiff alleges that Dr. Sayre and Malo-Clines were deliberately indifferent to his

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serious medical needs. In 2006, plaintiff was diagnosed with degenerative disc disease and

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sciatica in his left leg. (Am. Compl. at 5.) Plaintiff claims that defendants have interfered with

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plaintiff’s receipt of pain medication which he needed to treat his lower back pain.2 Specifically,

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plaintiff asserts that he was not receiving his pain medications despite making repeated requests

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for them. Plaintiff also claims that Malo-Clines retaliated against him for filing a previous

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lawsuit against her.3

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The following facts are viewed in the light most favorable to plaintiff, and are undisputed
unless otherwise indicated.
At the time of the events in plaintiff’s amended complaint, Malo-Clines was a nurse

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practitioner at PBSP. (Doc. No. 55 (“MSJ”), Ex. B (“Malo-Clines Decl.”) ¶ 2.) She was one of

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plaintiff’s medical practitioners. (Id. ¶ 6.)

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Plaintiff’s motion for leave to file a sur-reply is GRANTED. (Doc. No. 81.)

On July 30, 2013, the court granted in part and denied in part defendants’ motion to
dismiss based on res judicata. The court ordered that plaintiff’s deliberate indifference claims
concerning events that occurred prior to January 7, 2011, were barred. Thus, plaintiff’s
underlying deliberate indifference claim only concerns events occurring after January 7, 2011.
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In 2010, plaintiff filed a civil rights actions against Malo-Clines ins Estrada v. MaloClines, No. 10-4832 LHK (N.D. Cal.) (“Estrada I”), aff’d, No. 12-17044, 559 Fed. Appx. 637
(9th Cir. March 3, 2014) (unpublished memorandum disposition).

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Order Granting Defendants’ Motion For Summary Judgment; Denying Plaintiff’s Motions for Summary Judgment;
Addressing Pending Motions
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On January 13, 2011, plaintiff was seen by a physical medicine and rehabilitation

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specialist, Dr. G. Williams, for plaintiff’s lower back pain. (Id. ¶ 9.) Dr. Williams

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recommended an exercise program, and suggested that a nonsteroidal anti-inflammatory drug

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plus Tylenol were appropriate to treat plaintiff’s condition. (Id.) Dr. Williams also

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recommended trigger point injections if plaintiff’s pain got worse. (Id.) On January 27, 2011,

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plaintiff was seen by his primary care physician in response to plaintiff’s request for trigger point

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injections. (Id. ¶ 10.)

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On February 3, 2011, plaintiff was seen at the physical therapy clinic for evaluation, and

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also to establish an in-cell exercise program for plaintiff. (Id. ¶ 11.) On February 15, 2011, Dr.

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Sayre completed a review of plaintiff’s case and concluded that Dr. Williams’ recommendations

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were consistent with the treatment that plaintiff had been receiving at PBSP for plaintiff’s back

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pain. (Id. ¶ 12.) On February 17, 2011, Malo-Clines saw plaintiff for his lower back pain. (Id. ¶

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13.) Malo-Clines recommended that plaintiff stay active, continue the in-cell physical therapy

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program, and agreed to plaintiff’s request to start salsalate at a higher dosage. (Id.)

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On March 10, 2011, Malo-Clines again saw plaintiff for his lower back pain. (Id. ¶ 14.)

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Malo-Clines noted that plaintiff had tolerated the trigger point injections well and felt

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improvement. (Id.) Malo-Clines continued to recommend in-cell exercise as well as salsalate.

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(Id.) On March 18, 2011, Malo-Clines issued a verbal order renewing plaintiff’s prescription of

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salsalate. (Id. ¶ 16.) On March 30, 2011, plaintiff complained of back pain and requested trigger

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point injections. (Id. ¶ 17.) Plaintiff was scheduled for an appointment with his primary care

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physician. (Id.)

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On April 15, 2011, Malo-Clines saw plaintiff for back and leg pain. (Id. ¶ 18.) Malo-

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Clines encouraged plaintiff to exercise, continue yoga, and in-cell physical therapy. (Id.) Malo-

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Clines further directed plaintiff to continue with the Tylenol and salsalate, and ordered plaintiff

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to be scheduled for trigger point injections. (Id.) Plaintiff received those injections on April 28,

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2011. (Id.)

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On May 8, 2011, plaintiff requested a refill of his pain medication and was told by “staff”

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Order Granting Defendants’ Motion For Summary Judgment; Denying Plaintiff’s Motions for Summary Judgment;
Addressing Pending Motions
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that plaintiff had no more refills for salsalate left. (Am. Compl. at 8; Doc. No. 45-2, Ex. D at 2.)

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Plaintiff believed the withholding of pain medication was in retaliation for litigating Estrada I.

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(Am. Compl. at 7.)

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On May 13, 2011, plaintiff submitted a health care services request form, stating that he

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was still waiting for a renewal of his salsalate for his severe back and leg pain. (Doc. No. 45-2 at

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3.) That same day, Malo-Clines submitted a verbal order refilling plaintiff’s salsalate

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prescription for 30 days. (Malo-Clines Decl. ¶ 20; MSJ, Ex. O at CDCR 2466, 2474.) On May

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15, 2011, plaintiff requested a refill of his Tylenol. (MSJ, Ex. P at CDCR 2478.) Nurse Flowers

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responded to plaintiff that his medication was refilled. (Id.)

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On May 22, 2011, plaintiff requested that his salsalate, ranitidine4, and Tylenol be

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refilled. (MSJ, Ex. Q at CDCR 2486.) On May 23, 2011, Nurse Flowers responded that

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plaintiff’s medications had been refilled. (Id.) Plaintiff was also seen in the clinic after

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complaining about hip and back pain and requesting renewal of his medication. (Malo-Clines

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Decl. ¶ 22.) Malo-Clines gave a verbal order to renew plaintiff’s prescription for ranitidine, and

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for plaintiff to receive a urinalysis. (Id.) On June 3 and 7, 2011, plaintiff was seen at the clinic

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after he reported having thoughts of suicide due to his chest, upper back, and shoulder pain. (Id.

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¶ 23.) Dr. Martinelli renewed plaintiff’s salsalate prescription for 10 days, and changed

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plaintiff’s Tylenol prescription. (Id.; MSJ, Ex. R at CDCR 2516.)

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On June 15 and 19, 2011, plaintiff requested a refill of his salsalate and Tylenol. (MSJ,

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Ex. T at CDCR 2574-75.) Plaintiff was told that his Tylenol request was accepted the same day,

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and that his salsalate request would be ordered after June 19, 2011. (Id.; Malo-Clines Decl. ¶

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25.) On June 24 and 29, 2011, plaintiff requested refills of his salsalate, and Malo-Clines

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responded by giving a verbal order for the prescription to be renewed for 30 days. (Malo-Clines

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Decl. ¶ 27.)

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On July 4, 12, and 24, 2011, plaintiff’s requests for refills of his Tylenol and salsalate

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Ranitidine is a medication used to reduce the amount of acid in the stomach. (MaloClines Decl. ¶ 8.)

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Order Granting Defendants’ Motion For Summary Judgment; Denying Plaintiff’s Motions for Summary Judgment;
Addressing Pending Motions
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prescriptions were reviewed and granted. (MSJ, Ex. W.) On July 8, 2011, Malo-Clines saw

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plaintiff at the clinic, and he was complaining of pain in his lumbar area, so Malo-Clines

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administered three shots of lidocaine into plaintiff’s lumbar area. (Malo-Clines Decl. ¶ 29.)

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On August 3, 2011, in response to plaintiff’s request for an injection for his hip pain,

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Malo-Clines administered a shot of Kenalog into plaintiff’s left hip. (Id. ¶ 30.) On August 6 and

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8, 2011, plaintiff submitted a request for pain medication. (Doc. No. 67 (“Opp.”) at 6; MSJ, Ex.

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Z at CDCR 2653-54.) On August 9, 2011, Malo-Clines issued a verbal order to refill plaintiff’s

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salsalate refill prescription request. (Malo-Clines Decl. ¶ 31.) On August 17, 2011, plaintiff was

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seen at the clinic for a follow-up after his Kenalog injection. (Id.) It was observed that plaintiff

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ambulated without a limp. (Id.) On August 24 and 30, 2011, plaintiff requested a refill of his

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Tylenol and salsalate. (MSJ, Ex. BB.) On August 31, 2011, plaintiff’s prescriptions for salsalate

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and Tylenol were refilled. (Malo-Clines Decl. ¶ 33.)

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On September 6, 10, and 14, 2011, plaintiff requested refills of his Tylenol and salsalate.

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(MSJ, Ex. DD at CDCR 2708-09; Doc. No. 45-2 at 7.) Malo-Clines denied plaintiff’s salsalate

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prescription refill request pending a urinalysis so that Malo-Clines could verify that plaintiff was

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actually taking the medication. (Malo-Clines Decl. ¶ 35.) On September 15, 2011, after Malo-

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Clines reviewed the lab work from the urinalysis, she gave a verbal order to refill plaintiff’s

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salsalate prescription for thirty days. (Id.; MSJ, Ex. DD at CDCR 2734, 2738.)

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On September 20, 2011, plaintiff requested a refill of his Tylenol and salsalate

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prescriptions. (Doc. No. 45-2 at 8.) Plaintiff was told that his salsalate prescription had expired

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and that his Tylenol prescription would be handled by a private pharmacy called Maxor. (Id.;

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Malo-Clines Decl. ¶ 37.) On September 26, 2011, plaintiff requested a refill of his Tylenol, and

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was told that it would refill on October 2, 2011 because it was too early to be refilled at that

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present time. (MSJ, Ex. EE at CDCR 2573.) Plaintiff was seen on September 28 and 30, 2011,

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for testicular pain, hypertension, and high cholesterol. (Malo-Clines Decl. ¶¶ 38-39.) The

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examining physician, Dr. Venes, who examined plaintiff observed that plaintiff was probably

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being over-treated, so Dr. Venes discontinued plaintiff’s aspirin and lipid-lowering medication.

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Order Granting Defendants’ Motion For Summary Judgment; Denying Plaintiff’s Motions for Summary Judgment;
Addressing Pending Motions
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(Id. ¶ 39; MSJ, Ex. HH at CDCR 2767.)
On October 5, 2011, plaintiff submitted a health care services request form. (Doc. No.

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45-2 at 11.) In that request, plaintiff complained that he did not receive his salsalate renewal

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after seeing the doctor, and has been having problems getting the medication refilled for his back

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pain. (Id.) Medical staff responded that the doctor had ordered Tylenol for plaintiff’s pain, and

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that the doctor would be back next week. (Id.) Plaintiff was further told that if he had any

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questions for the doctor, plaintiff should send in a “request for interview” form. (Id.) On

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October 7, 2011, plaintiff refused to have a routine blood check. (Malo-Clines Decl. ¶ 39; MSJ,

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Ex. HH at 2774.) That same day, plaintiff submitted another health care services request form.

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(Doc. No. 45-2 at 12.) In it, plaintiff complained again that he had not received salsalate for his

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pain. (Id.) Plaintiff was again told to use the “request for interview” form to communicate with

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his primary care physician regarding the issue. (Id.) On October 11, 2011, plaintiff’s request for

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a refill of his Tylenol prescription was granted and refilled by Maxor. (Malo-Clines Decl. ¶ 40.)

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On October 12, 2011, plaintiff requested trigger point injections, and was told that he would see

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his primary care physician in a few weeks. (MSJ, Ex. JJ at CDCR 2787.) Plaintiff then

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submitted a “request for interview” form asking for salsalate for his pain. (Doc. No. 45-2 at 13.)

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Plaintiff was told that he did not have a refill of his prescription because he had no active

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salsalate prescription. (Id.) On October 16, 2011, plaintiff requested a refill of his salsalate

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prescription, complaining that he had been out of salsalate for weeks. (MSJ, Ex. JJ at CDCR

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2789.) On October 18, 2011, plaintiff was seen at the clinic in response to his requests for

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trigger point injections, and a renewal of his salsalate prescription. (Malo-Clines Decl. ¶ 41.)

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Plaintiff’s prescription was refilled for 30 days. (MSJ, Ex. JJ at CDCR 2802-03.) On October

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26, 2011, Malo-Clines noted that at times, plaintiff was requesting refills of his prescriptions too

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early. (MSJ, Ex. KK at CDCR 2806.)

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On November 13, 2011, plaintiff requested a refill of his Tylenol and salsalate. (MSJ,

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Ex. NN at CDCR 2850.) Medical staff responded that both medications were ordered and would

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be received in a few days. (Id.) On November 14, 2011, plaintiff saw Malo-Clines to receive

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Order Granting Defendants’ Motion For Summary Judgment; Denying Plaintiff’s Motions for Summary Judgment;
Addressing Pending Motions
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trigger point injections for back pain. (Am. Compl. at 8.) Malo-Clines administered two

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lidocaine injections into plaintiff’s lumbar area for pain relief. (Malo-Clines Decl. ¶ 46.) She

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also ordered that plaintiff continue taking salsalate and Tylenol. (Id.) When plaintiff was being

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escorted back to his cell, one of the escorting officers asked plaintiff why plaintiff was

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continuing to litigate Estrada I when plaintiff was already receiving treatment. (Am. Compl. at

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8.) Plaintiff felt threatened to drop the lawsuit. (Id.) On November 17, 2011, plaintiff’s

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salsalate and Tylenol prescriptions were renewed. (Malo-Clines Decl. ¶ 47.)

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On December 5, 2011, plaintiff was seen at the clinic complaining about ringing in his

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ears. (Id. ¶ 49.) As a result, plaintiff’s salsalate was discontinued. (Id.) On December 12, 2011,

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plaintiff was seen at the clinic and requested that his salsalate be reinstated because even though

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he wasn’t taking salsalate anymore, he still had the ringing in his ear. (Id. ¶ 50.) On December

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13, 2011, Dr. Sayre issued a notification “stopping” plaintiff’s Tylenol. (Doc. No. 67 (“Pl.

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Opp.”) at 10.) On December 16, 2011, a verbal order to renew plaintiff’s Tylenol was given.

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(Id.) On December 22, 2011, Dr. Sayre again issued a notification stopping plaintiff’s Tylenol.

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(Pl. Opp. at 11.) The following day, Dr. Venes gave plaintiff an order for Tylenol. (Id.) On

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December 30, 2011, Dr. Sayre issued a notification stopping plaintiff’s Tylenol. (Id.)

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DISCUSSION
A.

Requests for Judicial Notice
Plaintiff requests that the court take judicial notice, pursuant to Federal Rule of Evidence

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201, of various documents he has submitted in support of his filings. Rule 201 was intended to

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obviate the need for formal fact-finding as to certain facts that are undisputed and easily verified.

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Fed. R. Evid. 201; Melong v. Micronesian Claims Comm., 643 F.2d 10, 12 n.5 (D.C. Cir. 1980)

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(judicial notice under Rule 201 is designed for judicial recognition of scientific or historical fact

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without resort to cumbersome methods of proof). Rule 201 permits a court to take judicial notice

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of two kinds of facts: (1) those that are generally known within the court’s territorial jurisdiction;

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and (2) those that are capable of accurate and ready determination by resort to sources whose

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accuracy cannot reasonably be questioned, for example, an almanac, dictionary, calendar or

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Order Granting Defendants’ Motion For Summary Judgment; Denying Plaintiff’s Motions for Summary Judgment;
Addressing Pending Motions
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similar source. In other words, “the fact must be one that only an unreasonable person would

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insist on disputing.” United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994). Documents

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that are part of the public record may be judicially noticed to show, for example, that a judicial

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proceeding occurred or that a document was filed in another court case, but a court may not take

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judicial notice of findings of facts from another case. See Wyatt v. Terhune, 315 F.3d 1108,

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1114 & n.5 (9th Cir. 2003); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). Nor

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may the court take judicial notice of any matter that is in dispute. Lee, 250 F.3d at 689-90.

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First, plaintiff asks the court to take judicial notice of Ashker v. Sayre, No. 05-03759
(N.D. Cal. filed February 4, 2010). Defendants oppose the request. Plaintiff’s request that the

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court take judicial notice of Ashker is granted in part and denied in part. The court will take

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judicial notice of the proceeding for the limited purpose of proving that such a proceeding

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occurred. See Wyatt, 315 F.3d at 1144 n.5. However, to the extent plaintiff wants the court to

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take judicial notice of Ashker to show that Dr. Sayre was deliberately indifferent, the court will

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not take judicial notice of the facts or findings in that case. Because the liability of Dr. Sayre is

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in dispute in this action, the court cannot take judicial notice of that disputed fact. See Lee, 250

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F.3d at 689.

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Second, plaintiff asks the court to take judicial notice of “The Abolistionist Newspaper,

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summer 2013, issue 20: BORDERS, PAGE 12: Peaceful protest to resume (at Pelican Bay State

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Prison) July 8, 2013, if demands are not met, # (30).” (Doc. No. 69.) Plaintiff states that the

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article will “show that [Dr. Sayre] has implemented a systematic pattern of inadequate medical

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care at [PBSP] and that inmates are tired of Dr. Sayre’s unconstitutional level of medical care.”

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(Id.) The facts contained within this article are not “either (1) generally known within the

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territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by

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resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).

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Further, plaintiff is submitting this article for the truth of the matter asserted, and therefore, it is

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hearsay. Fed. R. Evid. 801(c). Finally, plaintiff does not provide a copy of this article for the

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court’s review. Plaintiff’s request that the court take judicial notice of the newspaper article is

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Order Granting Defendants’ Motion For Summary Judgment; Denying Plaintiff’s Motions for Summary Judgment;
Addressing Pending Motions
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denied.

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B.

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Motions to Strike and Request for Sanctions5
Plaintiff requests that the court strike defendants’ opposition (doc. no. 77) to plaintiff’s

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motion for summary judgment (doc no. 73) on the retaliation claim. (Doc. No. 80.) Specifically,

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plaintiff alleges that because Malo-Clines failed to file any supporting declarations in

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defendants’ opposition (doc. no. 58) to plaintiff’s retaliation claim in plaintiff’s first motion for

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summary judgment (doc. no. 45), the court should strike defendants’ opposition. Defendants

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have filed an opposition to plaintiff’s motion to strike. (Doc. No. 83.) Defendants have also

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requested leave to submit additional evidence in opposition to plaintiff’s motion for summary

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judgment on the retaliation claim. Plaintiff has filed a reply as well as a motion to strike the

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additional evidence. (Doc. No. 84.) Moreover, plaintiff requests sanctions against Malo-Clines

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for perjury. (Id.) Defendants have filed an opposition thereto.

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As defendants point out, defendants have filed their own motion for summary judgment,

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which includes supporting evidence such as a declaration from Malo-Clines. Plaintiff has not

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cited to any law that allows a court to strike defendants’ opposition in its entirety for failing to

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attach exhibits, especially when defendants have filed exhibits in support of their own motion for

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summary judgment and cited to those exhibits in their opposition to plaintiff’s motion for

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summary judgment. Thus, plaintiff’s motion to strike is denied. (Doc. No. 80.)

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In their opposition to plaintiff’s motion to strike, defendants state that they believe that

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they addressed plaintiff’s retaliation claim. However, defendants note that plaintiff appears to

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have added or narrowed his claim to one incident that occurred on November 14, 2011. Thus,

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out of an abundance of caution, defendants requested permission to submit additional evidence

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in opposition to plaintiff’s more narrow claim about the incident on November 14, 2011. (Doc.

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No. 83 at 3.)

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Defendants’ motion to for an extension of time to file an opposition to plaintiff’s
motion to strike is GRANTED. (Doc. No. 85.) Defendants’ June 27, 2014 opposition is deemed
timely filed.

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Order Granting Defendants’ Motion For Summary Judgment; Denying Plaintiff’s Motions for Summary Judgment;
Addressing Pending Motions
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Here, there is no evidence that defendants engaged in any bad faith or malfeasance, nor

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has plaintiff provided any reason why defendants should not be allowed to supplement their

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evidence to support their opposition to plaintiff’s retaliation claim. Thus, pursuant to Federal

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Rule of Civil Procedure 56(e), defendants’ request to submit additional evidence is granted.

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Plaintiff has also requested sanctions against Malo-Clines for committing perjury in her

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responses to plaintiff’s requests for admissions. Specifically, plaintiff asserts that in the request

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for admissions, Malo-Clines denied seeing plaintiff in a medical appointment on November 14,

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2011. However, argues plaintiff, in Malo-Clines’ declaration in support of defendants’ motion

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for summary judgment, Malo-Clines stated that she saw plaintiff for a medical appointment on

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November 14, 2011.

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Federal Rule of Civil Procedure 37(c)(2) allows the court to order reasonable expenses,

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including attorney’s fees, incurred in proving that a party failed to admit the truth of some fact.

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Here, there is no indication that plaintiff, a pro se prisoner, incurred any expenses for bringing

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this motion. Moreover, case law has clarified that “Rule 37 does not empower the district court

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to award attorney fees to a pro se litigant.” Pickholtz v. Rainbow Technologies, Inc., 284 F.3d

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1365, 1376 (Fed. Cir. 2002). Finally, in the Northern District of California, any motion for

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sanctions must, inter alia, be separately filed. See Civil L.R. 7-8(a). Under Civil Local Rule 7-

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8, a motion for sanctions must comply with the following: (1) the motion must be separately

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filed; (2) the form of the motion must comply with Civil Local Rule 7-2; (3) the motion must

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comply with all applicable federal civil rules of procedure, and must be made as soon as

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practicable after the movant learns of the circumstances alleged to warrant sanctions; and (4)

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must be served and filed less than 14 days after entry of judgment. See Civil L.R. 7-8.

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Plaintiff’s request for sanctions was combined with other requests, and thus, fails to comply with

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the Civil Local Rules. For all the above reasons, plaintiff’s request for sanctions is denied.

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(Doc. No. 84.)

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Order Granting Defendants’ Motion For Summary Judgment; Denying Plaintiff’s Motions for Summary Judgment;
Addressing Pending Motions
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C.

Motions for Summary Judgment

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1.

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

Legal Standard

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

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

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

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

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verdict for the nonmoving party. Id.

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

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

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

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

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

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opposing party will have the burden of proof at trial, the moving party need only point out “that

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

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Once the moving party meets its initial burden, the nonmoving party must go beyond the

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

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

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material facts and “factual disputes that are irrelevant or unnecessary will not be counted.”

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

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

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nonmoving party has the burden of identifying, with reasonable particularity, the evidence that

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precludes summary judgment. Id. If the nonmoving party fails to make this showing, “the

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moving party is entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. 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 disputed material fact. See T.W.

27

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

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11

1

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

2

drawn from the facts must be viewed in a light most favorable to the nonmoving party. See id. at

3

631.

4

2.

5

Plaintiff claims that Dr. Sayre and Malo-Clines were deliberately indifferent to his

6

Eighth Amendment

serious medical needs because they interfered with or delayed his receipt of pain medication.

7

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

8

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

9

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

10

sufficiently serious, and (2) the official is, subjectively, deliberately indifferent to the inmate’s

11

health or safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994).

12

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

13

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

14

existence of an injury that a reasonable doctor or patient would find important and worthy of

15

comment or treatment; the presence of a medical condition that significantly affects an

16

individual’s daily activities; or the existence of chronic and substantial pain are examples of

17

indications that a prisoner has a “serious” need for medical treatment. McGuckin v. Smith, 974

18

F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v.

19

Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).

20

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

21

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

22

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

23

harm exists, and he must actually draw that inference. Id. “A difference of opinion between a

24

prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983

25

claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). Similarly, a claim of medical

26

malpractice or negligence is insufficient to establish a violation of the Eighth Amendment.

27

McGuckin, 974 F.2d at 1059. In particular, a plaintiff’s opinion that medical treatment was

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12

1

unduly delayed does not, without more, state a claim of deliberate indifference. Shapley v.

2

Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985).

3

The parties do not dispute that plaintiff’s back pain is a serious medical condition.

4

Assuming that this is a serious medical need, plaintiff has failed to raise a triable issue of fact

5

that defendants acted with deliberate indifference.

6

The undisputed evidence shows that during 2011, plaintiff was provided pain medication

7

in the forms of Tylenol and salsalate, and was given trigger point injections as well as lidocaine

8

injections for his leg and hip pain. The record does not show or support a reasonable inference

9

of deliberate indifference by defendants in their treatment of plaintiff’s back pain.

10

The record demonstrates that Malo-Clines spoke with or examined plaintiff on February

11

17, 2011; March 10, 2011; April 15, 2011; May 10, 2011; July 8, 2011; August 3, 2011; August

12

8, 2011; and November 14, 2011. (Malo-Clines Decl. ¶¶ 13, 14, 18, 19, 29, 30, 34, 46.) During

13

those interactions, Malo-Clines responded to plaintiff’s complaints by recommending that

14

plaintiff continue his yoga and in-cell physical therapy program; continuing the trigger point

15

injections; continuing the salsalate and Tylenol; administering lidocaine and Kenalog for pain

16

relief; and re-evaluating the medications plaintiff was being prescribed. In fact, plaintiff

17

concedes that defendants did provide trigger point injections and pain medications. (Opp. at 19.)

18

Regarding plaintiff’s specific allegation that Malo-Clines was interfering with his receipt

19

of pain medication, plaintiff does not provide any evidence to support this claim. At most, the

20

delay between plaintiff requesting a refill of his pain medication and the time those requests

21

were granted was a matter of a few days. Moreover, there is no indication that Malo-Clines was

22

aware of each and every time plaintiff requested a refill via the health services form. At times,

23

other medical professionals ordered the prescription to be refilled.

24

For example, in May 2011, five days lapsed between when plaintiff requested a refill of

25

his salsalate and when Malo-Clines issued a verbal order to refill plaintiff’s prescription. (Am.

26

Compl. at 8; Doc. No. 45-2, Ex. D at 2-3; Malo-Clines Decl. ¶ 20; MSJ, Ex. O at CDCR 2466,

27

2474.) Also, one day lapsed between May 22 and May 23, 2011 from when plaintiff requested a

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1

refill of his salsalate, ranitidine, and Tylenol, and Nurse Flowers responded that all medications

2

had been refilled. (MSJ, Ex. Q at CDCR 2486.) In June 2011, four days elapsed between when

3

plaintiff requested a refill of his salsalate and when Physical Therapist Tewelde stated that

4

plaintiff’s salsalate could be refilled. (MSJ, Ex. T at CDCR 2574-75; Malo-Clines Decl. ¶ 25.)

5

Then, plaintiff requested a refill of his salsalate on June 24 and June 30, and Malo-Clines

6

responded by giving a verbal order for the prescription to be renewed for 30 days. (Malo-Clines

7

Decl. ¶ 27.) On July 4, 12, and 24, 2011, plaintiff’s requests for refills of his Tylenol and

8

salsalate prescriptions were reviewed and granted. (MSJ, Ex. W.) In August 2011, two days had

9

elapsed between plaintiff’s request for pain medication and the date on which Malo-Clines

10

issued a verbal order to refill plaintiff’s prescription. (Opp. at 6; MSJ, Ex. Z at CDCR 2653-54;

11

Malo-Clines Decl. ¶ 31.) A few weeks later, six days elapsed between plaintiff’s request for

12

pain medication and the date on which Nurse Flowers indicated that plaintiff’s prescriptions for

13

salsalate and Tylenol were refilled. (Malo-Clines Decl. ¶ 33.) In September 2011, plaintiff

14

requested refills of his Tylenol and salsalate. (MSJ, Ex. DD at CDCR 2708-09; Doc. No. 45-2 at

15

7.) Malo-Clines denied plaintiff’s salsalate prescription refill request until a urinalysis could be

16

performed so that Malo-Clines could verify that plaintiff was actually taking the medication.

17

(Malo-Clines Decl. ¶ 35.) On September 15, 2011, after Malo-Clines reviewed the lab work, she

18

gave a verbal order to refill plaintiff’s salsalate prescription for thirty days. (Id.; MSJ, Ex. DD at

19

CDCR 2734, 2738.) Based on this undisputed evidence, plaintiff has not shown that Malo-

20

Clines exhibited deliberate indifference.

21

To the extent plaintiff is alleging that defendants caused the temporary delays in his

22

receipt of pain medication, periodic and temporary lapses of a few days to receive pain

23

medication such as are alleged here are insufficient to amount to deliberate indifference. In

24

Wood v. Housewright, 900 F.2d 1332 (9th Cir. 1990), a prisoner injured his shoulder in a

25

jailhouse fight. Id. at 1333. A physician inserted two pins in the prisoner’s shoulder and

26

prescribed a sling. One of the pins eventually fell out, causing the prisoner pain. Id. The doctor

27

prescribed an anti-inflammatory and pain-killing medication and recommended referral to an

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1

outside orthopedic specialist. Id. Despite the doctor’s orders, the prisoner received no medical

2

treatment or pain medication for approximately two months. The Ninth Circuit concluded that

3

in order to sustain a claim of deliberate indifference the delay in the prisoner’s treatment must

4

have caused “substantial harm”. However, based on the treatment the prisoner received, and the

5

seriousness of the prisoner’s condition, the prisoner did not show such “substantial harm” to

6

warrant an Eighth Amendment violation. Id. at 1335. Moreover, the Ninth Circuit reasoned that

7

the delay could not have substantially harmed the prisoner’s treatment, “considering that the only

8

remedy immediately available was a prescription for painkillers.” Id. Similarly here, a delay of

9

a few days between plaintiff’s requesting a refill of his pain medication, and Malo-Clines’ order

10

to refill the prescription could not have substantially harmed plaintiff. See id. In addition to the

11

pain medications that plaintiff was prescribed, the evidence is undisputed that Malo-Clines

12

ordered other treatments, in accordance with the specialist’s recommendations, to alleviate

13

plaintiff’s back pain. (Malo-Clines Decl. ¶¶ 18, 29, 30, 42, 46.)

14

Moreover, there is an absence of evidence that defendants interfered with or had any

15

knowledge of when or how plaintiff received his medication. Despite plaintiff’s conclusory

16

allegations, there is an absence of evidence that Malo-Clines or Dr. Sayre had a responsibility to

17

investigate or ensure that plaintiff received his medications, once Malo-Clines or another

18

practitioner ordered plaintiff’s prescriptions. Indeed, Malo-Clines declares that she had no

19

involvement in the dispensing or refilling of plaintiff’s medications as that task is undertaken by

20

Maxor and the nursing staff. (Malo-Clines Decl. ¶ 37.) Plaintiff argues that whether or not he

21

received his pain medication is a material fact in dispute. (Opp. at 18.) However, the

22

determination of that fact is not relevant or material to defendants’ liability without any evidence

23

to support plaintiff’s assumption that Malo-Clines or Dr. Sayre had a responsibility to ensure that

24

plaintiff received that medication.

25

Further, although plaintiff states that he “continuously complained” about not receiving

26

his medication, there is an absence of evidence that defendants knew plaintiff was not receiving

27

his medication or that there was any delay in plaintiff’s receipt of medication. Plaintiff’s

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1

documentary evidence in support of his assertion that Malo-Clines knew that he was not

2

receiving medication is unpersuasive. (Opp. at 19, citing Ex. G at 13, 24, 25.) The first

3

document is dated in 2010, which precedes the scope of this lawsuit. (Id., Ex. G at 13.) The

4

second document is a copy of plaintiff’s health services request form, dated October 11, 2011,

5

which is addressed to Malo-Clines and claims that plaintiff has been having problems receiving

6

his pain medication refills. (Id., Ex. G at 24.) However, in response, a medical staff member

7

directed plaintiff to file a “request for interview” form if he wished to communicate with his

8

primary care physician. (Id.) The final document to which plaintiff cites is a copy of his

9

October 12, 2011 request for an interview form. (Id., Ex. G at 25.) Plaintiff addressed the

10

request to Malo-Clines, however, the response stating that plaintiff does not have a current

11

salsalate prescription appears to be written by someone else. (Id.) The form itself states, “you

12

will be called in for an interview in the near future if the matter cannot be handled by

13

correspondence.” (Id.) None of the documents provides evidence that Malo-Clines received

14

notice that plaintiff was not receiving his medication.

15

With respect to Dr. Sayre, plaintiff claims that Dr. Sayre failed to stop the interference

16

with plaintiff’s receipt of pain medication, and further, directly interfered with plaintiff’s receipt

17

of medication in December 2011 and January 2012. (Doc. No. 45 at 5-6.) Specifically, plaintiff

18

asserts that in December 2011, and January 2012, Dr. Sayre stopped plaintiff’s medication

19

several times for non-medical reasons. (Id. at 6.) Dr. Sayre declares that, according to prison

20

procedure, on December 12, 2011, Dr. Sayre issued a notification regarding plaintiff’s

21

acetaminophen prescription because the prescription was about to expire. (Sayre Decl. ¶ 52.)

22

Because of the imminent expiration, Dr. Sayre issued a notation for the prescription to be

23

stopped (MSJ, Ex. SS at CDCR 2911) to ensure that plaintiff’s primary care physician reviewed

24

the expiring order and determined whether it was medically necessary to renew the prescription.

25

(Sayre Decl. ¶ 52.) After being notified about the discontinuation of plaintiff’s acetaminophen,

26

on December 16, 2011, plaintiff’s primary care physician renewed plaintiff’s prescription. (Id.)

27

On December 22, 2011, again, Dr. Sayre noticed that plaintiff’s prescription was ending, so Dr.

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Order Granting Defendants’ Motion For Summary Judgment; Denying Plaintiff’s Motions for Summary Judgment;
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1

Sayre issued another notification for plaintiff’s primary care physician to renew if medically

2

necessary. (Id. ¶ 54.) The following day, on December 23, 2011, plaintiff’s prescription was

3

renewed. (Id.)

4

In order for deliberate indifference to be established, there must be a purposeful act or

5

failure to act on the part of the defendant and resulting harm. See McGuckin, 974 F.2d at 1060.

6

Here, although Dr. Sayre purposefully “stopped” plaintiff’s prescriptions for Tylenol prior to its

7

expiration date several times, Dr. Sayre did so in order to notify medical staff to re-evaluate

8

plaintiff’s need for such medication. (Sayre Decl. ¶ 52.) On both occasions, the medications

9

were renewed by medical staff. Plaintiff does not provide any viable evidence disputing Dr.

10

Sayre’s statement. Further, plaintiff does not provide any clear evidence that he was without

11

Tylenol during December 2011 or January 2012 based on Dr. Sayre’s orders to stop the

12

prescription. Moreover, plaintiff does not assert that he suffered any harm as a result of Dr.

13

Sayre’s orders. Without such evidence, there is an absence of evidence that Dr. Sayre directly

14

interfered with plaintiff’s pain medication in a way that exhibited deliberate indifference to

15

plaintiff’s medical needs.

16

With respect to plaintiff’s assertion that Dr. Sayre failed to stop the interference with

17

plaintiff’s receipt of pain medication, plaintiff has failed to demonstrate that Dr. Sayre was aware

18

that plaintiff was not receiving his medications in a timely manner. While plaintiff asserts that

19

Dr. Sayre was put on notice when plaintiff complained to medical staff about his medication

20

prescriptions, plaintiff does not provide any evidence that Dr. Sayre was deliberately indifferent

21

to these complaints. For example, some of the documents plaintiff has provided in support of his

22

claim are of records that precede the events involved in this lawsuit. (Pl. Opp. at 21, Exs. D, E,

23

F, H, I, M.) Plaintiff has also provided Dr. Sayre’s June 22, 2011 response to plaintiff’s

24

administrative grievance in which plaintiff requested, inter alia, that he receive trigger point

25

injections immediately. (Id., Ex. T at 1, 6.) In the response, Dr. Sayre granted plaintiff’s

26

request, and noted that on March 8, 2011, Malo-Clines gave plaintiff four lidocaine injections,

27

and on April 28, 2011, Dr. Martinelli gave plaintiff an injection of kenalog. (Id. at 6.) Other

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1

documents submitted by plaintiff demonstrate that plaintiff submitted administrative grievances

2

complaining that he was not receiving his pain medication, however, there is no indication that

3

Dr. Sayre received these documents. (Id., Ex. U, W.) In fact, the documents suggest that one

4

appeal was returned to plaintiff for failure to submit supporting documents. (Id., Ex. U at 5-8.)

5

Dr. Sayre did respond to several of plaintiff’s administrative appeals. In one appeal,

6

plaintiff complained that he felt his medication was being interfered with and wanted the

7

interference to stop. (Id., Ex. V at 3.) In response, Dr. Sayre granted plaintiff’s appeal and noted

8

that there was no evidence of retaliation, and plaintiff’s salsalate was renewed. (Id. at 8.) In

9

December 2011, plaintiff again filed an administrative appeal, demanding a salsalate refill and to

10

be prescribed an alternate pain medication. (Id., Ex. X at 3.) Dr. Sayre denied plaintiff’s appeal,

11

explaining that plaintiff’s salsalate had been discontinued by Physician’s Assistant L. Thomas

12

because plaintiff had been complaining of gastrointestinal discomfort. (Id.) Dr. Sayre then

13

noted that, on February 13, 2012, Physician’s Assistant L. Thomas evaluated plaintiff again,

14

administered a kenalog injection, and advised plaintiff to alternate cold and warm compresses.

15

(Id.) In none of these responses can it be said that Dr. Sayre exhibited deliberate indifference in

16

his treatment of plaintiff.

17

Finally, plaintiff points to a memorandum authored by Dr. Sayre in 2008 directing prison

18

medical staff to deny essential and constitutional medical care. (Doc. No. 72, Ex. FF.)

19

However, a review of that memorandum in fact reveals that Dr. Sayre issued a notice to medical

20

providers that the prison was short staffed in terms of medical providers. (Id.) Dr. Sayre

21

instructed all providers “to give only the most essential constitutional care. No common, minor,

22

or uncomfortable issues should be addressed. . . . Move on to essential care.” (Id.) Nothing in

23

the 2008 memorandum displays a policy or custom wherein Dr. Sayre encouraged medical staff

24

to deny constitutional care.

25
26

In sum, plaintiff fails to raise a triable issue of fact that defendants were deliberately
indifferent to his serious medicals needs by interfering with his receipt of pain medication.

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Order Granting Defendants’ Motion For Summary Judgment; Denying Plaintiff’s Motions for Summary Judgment;
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1

Defendants are entitled to summary judgment on plaintiff’s deliberate indifference claim.6

2

3.

3

Plaintiff claims that, on November 14, 2011, plaintiff was seen by Malo-Clines for

4

trigger point injections for his back pain. (Am. Compl. at 7.) When plaintiff was being escorted

5

back to his cell, the escorting officers, Correctional Officer Trimm and Cardenas, asked plaintiff

6

why plaintiff was still litigating Estrada I if plaintiff was receiving treatment. (Id.; Doc. No. 73

7

at 3.) Plaintiff felt intimidated, and believed that the officers were threatening plaintiff to drop

8

Estrada I.7 (Am. Compl. at 7; Doc. No. 80 at 1.)

9

Retaliation

“Within the prison context, a viable claim of First Amendment retaliation entails five

10

basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2)

11

because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

12

exercise of his First Amendment rights, and (5) the action did not reasonably advance a

13

legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005)

14

(footnote omitted).

15

Based on the undisputed facts, plaintiff has failed to establish that Malo-Clines took any

16

adverse action against him, or that she took such action based on Estrada I. That plaintiff

17

believes Malo-Clines “must of told [the officers] of the lawsuit” [sic] is based on nothing but

18

speculation. Moreover, even assuming that Malo-Clines told the officers about the lawsuit, that

19

communication can hardly be seen as an “adverse action.” Plaintiff would like the court to infer

20

that not only did Malo-Clines inform the officers about Estrada I, but Malo-Clines also

21
22
23
24
25
26
27

6

Because the court is granting defendants’ motion for summary judgment as to this
claim, it is unnecessary to address defendants’ argument for qualified immunity.
7

To the extent plaintiff claims that Malo-Clines retaliated against him by interfering
with plaintiff’s receipt of medication because plaintiff was litigating Estrada I, there is an
absence of evidence that Malo-Clines took any adverse action against plaintiff. Plaintiff’s
allegations that Malo-Clines failed to ensure that plaintiff received the medication are
unsupported by any evidence that Malo-Clines was responsible for doing so. In addition,
plaintiff appears to have narrowed his retaliation claim to encompass solely this November 14,
2011, incident. (Doc. No. 70, Doc. No. 80 at 3.)

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19

1

instructed them to intimidate plaintiff because of the lawsuit. However, the facts as presented by

2

plaintiff do not give rise to a reasonable inference that Malo-Clines actions were “because of”

3

plaintiff’s prior lawsuit against her. See Wood v. Yordy, No. 12-35336, 2014 WL 2462575, *4

4

(9th Cir. June 3, 2014) (“We have repeatedly held that mere speculation that defendants acted

5

out of retaliation is not sufficient.”); Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637

6

F.3d 1047, 1061 (9th Cir. 2011) (making a distinction between a set of events that “could

7

conceivably have occurred” and a set of facts that one could reasonably infer in fact occurred).

8
9

Nor has plaintiff presented any circumstantial evidence of motive, which normally
includes, “(1) proximity in time between protected speech and the alleged retaliation; (2) [that]

10

the [defendant] expressed opposition to the speech; [or] (3) other evidence that the reasons

11

proffered by the [defendant] for the adverse . . . action were false and pretextual.” McCollum v.

12

California Dept. of Corrections and Rehabilitation, 647 F.3d 870, 882 (9th Cir. 2011).

13

The retaliatory act of which plaintiff complains occurred on November 14, 2011.

14

Estrada I was filed over a year earlier, on October 25, 2010. Thus, the timing of the incident

15

does not support an inference of motive. See id. (citing Vasquez v. Cnty. of Los Angeles, 349

16

F.3d 634, 646 (9th Cir. 2004) (recognizing that a thirteen month lapse is too long to support an

17

inference of causality)). Next, there is no evidence demonstrating that Malo-Clines expressed

18

any opposition to Malo-Clines’ prior lawsuit. See id. Similarly, because there is no evidence

19

that Malo-Clines expressed opposition to plaintiff’s prior lawsuit, factor 3 regarding whether

20

Malo-Clines’ proferred reasons were pretextual or false is inapplicable. See id. Finally, there is

21

no evidence to infer that Malo-Clines had any conversation with the correctional officers

22

regarding plaintiff’s prior lawsuit.

23

In sum, plaintiff fails to raise a triable issue of fact that Malo-Clines retaliated against

24

him for litigating Estrada I, and defendants are entitled to summary judgment on plaintiff’s

25

retaliation claim.8

26
8

27

Because the court is granting defendants’ motion for summary judgment as to this
claim, it is unnecessary to address defendants’ argument for qualified immunity.

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Order Granting Defendants’ Motion For Summary Judgment; Denying Plaintiff’s Motions for Summary Judgment;
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1

CONCLUSION

2

Plaintiff’s motion for leave to file a sur-reply is GRANTED. (Doc. No. 81.) Plaintiff’s

3

requests for judicial notice are DENIED. Plaintiff’s motion to strike defendants’ opposition to

4

plaintiff’s motion for summary judgment is DENIED. (Doc. No. 80.) Defendants’ motion for an

5

extension of time to file an opposition to plaintiff’s motion to strike is GRANTED. (Doc. No.

6

85.) Plaintiff’s motion to strike defendants’ request to submit additional evidence and for

7

sanctions is DENIED. (Doc. No. 84.)

8
9
10
11
12
13

Defendants’ motion for summary judgment is GRANTED. (Doc. No. 55.) Plaintiff’s
motions for summary judgment are DENIED. (Doc. Nos. 45, 73.) Judgment shall be entered in
favor of defendants. The clerk shall terminate all pending motions and close the file.
IT IS SO ORDERED.
DATED:

7/28/14
LUCY H. KOH
United States District Judge

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Order Granting Defendants’ Motion For Summary Judgment; Denying Plaintiff’s Motions for Summary Judgment;
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21