Culler v. San Quentin Medical Service et al

Filing 30

ORDER GRANTING 24 MOTION FOR SUMMARY JUDGMENT. Signed by Judge Beth Labson Freeman on 3/16/2015. (blflc1, COURT STAFF) (Filed on 3/16/2015)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16

JERRYAL JEROME CULLER, SR.,

)
)
Plaintiff,
)
)
v.
)
)
)
SAN QUENTIN MEDICAL SERVICES, )
et al.,
)
)
Defendants.
)
__________________________________ )

No. C 13-03871 BLF (PR)
ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT

(Docket No. 24)

17
Plaintiff, a California inmate, filed a pro se civil rights complaint under 42 U.S.C.

18
19

§ 1983, against officials at San Quentin State Prison (“SQSP”).1 The Court found

20

cognizable Plaintiff’s Eighth Amendment claims, and ordered Defendants Correctional

21

Officer M. Bloise,2 Nurse T. Peterson and Dr. D. Leighton to file a motion for summary

22

judgment or other dispositive motion.3 Defendants filed a motion for summary judgment.

23
24

1

25

2

26
27
28

The matter was reassigned to this Court on April 17, 2014.

Plaintiff identified this defendant as “Sgt. Boise.” (Compl. at 3.) Defendants identify
him as “M. Bloise.” We will defer to Defendants’ spelling throughout this order.
3

The Court dismissed claims against other defendants with leave to amend. (See
Docket No. 6 at 7-8.) Plaintiff did not file an amended complaint thereafter.
Accordingly, all other defendants and claims against them were terminated from this
Order Granting MSJ
N:\MY DRAFTS\Culler Grant MSJ Final March 16.wpd

1

1

(Docket No. 24, hereafter “Mot.”) Plaintiff filed an opposition, (Docket No. 27), and

2

Defendants filed a reply, (Docket No. 28).

3
4
5

DISCUSSION
Statement of Facts 4

I.

6

On November 19, 2011, Plaintiff woke with severe pain in both legs and noticed

7

that his big toe had no color in it. (Compl. at 3.) He felt extreme pain in his calves,

8

which felt as if they were on fire. (Id.) He claims he had difficulty walking, but managed

9

to “hobble” to the Officer Station and ask the desk officer to declare “man down.” (Id.)

10

Defendant M. Bloise was present, and instructed the desk officer not to do so; she told

11

Plaintiff to go to breakfast and put in a medical request. (Id.) Plaintiff claims that

12

because he was in so much pain, he went to the medical clinic and explained his problem

13

to the medical correctional officer. (Id.) The officer declared, “man down,” and Plaintiff

14

was wheeled to the prison hospital, which is known as the Triage and Treatment Area

15

(“TTA”). (Id.)

16

Plaintiff claims that he was examined by Defendant R. N. Peterson, (Compl. at 4).

17

but according to Defendants, Plaintiff was never treated by Nurse Peterson at that time or

18

any other time. (Peterson Decl. ¶ 2.) Rather, he was seen by Nurse Raja on November

19

19, 2011. (Jirn Decl. ¶ 2, Ex. A.) The examining nurse noted warmness in the left foot

20

which indicated an infection, and discoloration of the big toe. (Compl. at 4.) Because

21

there was no doctor at the hospital at that time, the nurse told Plaintiff that he would have

22

to wait for a follow-up visit in a few days. (Compl. at 4)

23

Plaintiff claims that the following morning on November 20, 2011, the pain and

24

cramps in his legs became worse. When he again requested that “man down” be called,

25

Defendant Bloise angrily refused, stating that Plaintiff was “walking fine.” (Id.) For the

26
27

action.

28

4

The following facts are undisputed unless otherwise indicated.

Order Granting MSJ
N:\MY DRAFTS\Culler Grant MSJ Final March 16.wpd

2

1

next two days, Plaintiff claims that he endured “intense pain” and was refused assistance

2

from officers at Defendant Bloise’s orders. Meanwhile, Plaintiff had to rely on the

3

assistance of another inmate to walk “back and forth to chow.” (Id.)

4

On November 23, 2011, Plaintiff saw Defendant Dr. D. Leighton for the first time.

5

According to Plaintiff, she noted discoloration in Plaintiff’s big toe and warmth in his

6

foot, but she omitted these facts from her report. (Compl. at 5, Ex. B at 1-3.) According

7

to Defendants, Plaintiff did not appear to be in distress and made no mention of pain in

8

his leg or foot. (Leighton Decl. ¶ 2; Compl. Ex. B at 1-3.) Defendant Leighton ordered a

9

blood test and told Plaintiff she would see him again in two weeks. (Id.) Plaintiff claims

10

that when he asked her how he should deal with the pain during this time, Defendant

11

Leighton told him, “well you know that things are slow around here so suck it up!”

12

(Compl. at 5.)

13

Plaintiff claims that over the next few days, whenever he attempted to get help

14

from Defendant Leighton and other doctors in the TTA, they all refused; Plaintiff claims

15

that Defendant Leighton was “especially critical in her refusal.” (Id.) Plaintiff also

16

claims that Defendant Peterson became more hostile toward him when he saw her on

17

November 24, 25, 26 and 27, 2011, and threatened to write him up. (Id.) According to

18

Defendants, Defendant Peterson never treated or otherwise attended to Plaintiff on these

19

dates or at any other time. (Peterson Decl. ¶ 2; Jirn Decl., Ex. A.) Plaintiff claims that by

20

this time, his toe had begun to turn blue. (Compl. at 5.)

21

On November 24, 2011, Plaintiff complained of pain in his legs and was examined

22

at TTA by Dr. David, who is not a party to this action. (Compl., Ex. B at 5.) Plaintiff

23

complained of tingling pain and numbness in his feet which had become worse in the last

24

three days. (Id.) Dr. David observed “good pulses and capillarey [sic] refill.” (Id.) He

25

prescribed a low dose of amitriptyline for neuropathic pain, and a follow-up in a week.

26

(Id.)

27
28

The following day on November 25, 2011, Plaintiff was seen by Dr. M. Jones, who
is not a party to this action. (Jirn Decl. ¶ 3, Ex. B.) He received a thorough evaluation
Order Granting MSJ
N:\MY DRAFTS\Culler Grant MSJ Final March 16.wpd

3

1

and prescribed Tylenol with codeine for pain. (Id.) Plaintiff’s strength was observed to

2

be normal and his pulses palpable. (Id.) Other options for treatment were considered, but

3

the alternatives were determined to be too dangerous because of Plaintiff’s kidney disease

4

and recent laboratory abnormalities. (Id.) A follow-up was ordered for the following

5

day. (Id.)

6

On November 26, 2011, Plaintiff saw Defendant Leighton for a follow-up

7

examination, during which she observed that his feet appeared the same as the last

8

examination; there was no alteration in temperature, no dusky color, no skin breakdown

9

to indicate poor circulation or a need for urgent intervention. (Leighton Decl. ¶ 5.) Based

10

on Plaintiff’s lab results from the previous day which were “reassuring,” and to address

11

Plaintiff’s complaints of pain, Defendant Leighton prescribed long-acting morphine at 15

12

milligrams twice a day. (Id.)

13

Defendant Leighton saw Plaintiff next on November 30, 2011, at which time

14

Plaintiff continued to complain of pain in his feet. (Id. at ¶ 6.) Upon examination,

15

Defendant Leighton observed that Plaintiff’s feet were cold and that his pulse was not

16

palpable, he had edema in his feet (more severe on his left foot), but otherwise normal

17

sensation in his feet except for the left heel. (Id.) Plaintiff’s skin was intact with no

18

discoloration or dusky area. She attributed the pain in Plaintiff’s leg and feet to diabetic

19

neuropathy, did not suspect a vascular cause, and continued Plaintiff’s prescriptions for

20

morphine and amitriptyline. (Id.)

21

On December 2, 2011, Plaintiff put in a sick-call slip about worsening pain in his

22

foot, which was received by nursing on Saturday, December 3, 2011. (Leighton Decl. ¶

23

7.) On December 4, 2011, Plaintiff was seen in the TTA by Dr. Jones, who then ordered

24

an ambulance to transfer Plaintiff to Marin General Hospital (“Marin General”). (Compl.

25

at 6; Leighton Decl. ¶ 7.) Defendant Leighton was not present at the institution or on call

26

during this weekend, so she was unaware of Plaintiff’s distress or able to help him.

27

(Leighton Decl. ¶ 7.)

28

At Marin General, Plaintiff was diagnosed with a blood cot in his leg and the onset
Order Granting MSJ
N:\MY DRAFTS\Culler Grant MSJ Final March 16.wpd

4

1

of necrosis. (Compl. at 6-7, Ex. B at 13-20.) This did not improve and, eventually,

2

Plaintiff’s left big toe and forefoot were amputated. (Id.) Plaintiff spent the next three

3

weeks in the intensive care unit at Marin General. (Id.) He stayed there until January 6,

4

2013, when he was determined to be stable enough to be transferred to Kentfield

5

Rehabilitation Center. (Id.)

6

Based on these allegations, the Court found that Plaintiff stated a cognizable

7

Eighth Amendment claim of deliberate indifference to his serious medical needs against

8

Defendants Bloise, Peterson and Leighton.

9

II.

10

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

11

that there is “no genuine dispute as to any material fact and the movant is entitled to

12

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

(1986).

22

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

23

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

24

Celotex Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on

25

an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could

26

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

27

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

28

absence of evidence to support the nonmoving party’s case.” Id. at 325. If the evidence
Order Granting MSJ
N:\MY DRAFTS\Culler Grant MSJ Final March 16.wpd

5

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

id.; see, e.g., Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1028-29

19

(9th Cir. 2001).

20

A.

21

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

Deliberate Indifference

22

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

23

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

24

objectively, sufficiently serious, and (2) the official is, subjectively, deliberately

25

indifferent to the inmate’s health or safety. See Farmer v. Brennan, 511 U.S. 825, 834

26

(1994).

27
28

A “serious” medical need exists if the failure to treat a prisoner’s condition could
result in further significant injury or the “unnecessary and wanton infliction of pain.” Id.
Order Granting MSJ
N:\MY DRAFTS\Culler Grant MSJ Final March 16.wpd

6

1

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

2

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

3

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

4

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

5

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

6

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

7

(en banc).

8
9

A prison official is deliberately indifferent if he knows that a prisoner faces a
substantial risk of serious harm and disregards that risk by failing to take reasonable steps

10

to abate it. See Farmer, 511 U.S. at 837. The official must both know of “facts from

11

which the inference could be drawn” that an excessive risk of harm exists, and he must

12

actually draw that inference. Id. If a prison official should have been aware of the risk,

13

but was not, then the official has not violated the Eighth Amendment, no matter how

14

severe the risk. Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002).

15

“A difference of opinion between a prisoner-patient and prison medical authorities

16

regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d

17

1337, 1344 (9th Cir. 1981). Similarly, a showing of nothing more than a difference of

18

medical opinion as to the need to pursue one course of treatment over another is

19

insufficient, as a matter of law, to establish deliberate indifference, see Toguchi v. Chung,

20

391 F.3d 1051, 1058, 1059-60 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th

21

Cir. 1989); Mayfield v. Craven, 433 F.2d 873, 874 (9th Cir. 1970). In order to prevail on

22

a claim involving choices between alternative courses of treatment, a plaintiff must show

23

that the course of treatment the doctors chose was medically unacceptable under the

24

circumstances and that he or she chose this course in conscious disregard of an excessive

25

risk to plaintiff’s health. Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330,

26

332 (9th Cir. 1996) (citing Farmer, 511 U.S. at 837).

27

B.

28

The evidence presented does not show a genuine dispute as to any material fact

Claims against Defendant Officer Bloise

Order Granting MSJ
N:\MY DRAFTS\Culler Grant MSJ Final March 16.wpd

7

1

relating to Plaintiff’s claim of deliberate indifference against Defendant Bloise. It is

2

undisputed that Plaintiff requested “man down” on November 19 and 20, 2011, and that

3

Defendant Bloise denied the requests. However, Plaintiff cannot show that Defendant

4

Bloise did so knowing that Plaintiff faced a substantial risk of serious harm and

5

disregarded that risk by failing to take reasonable steps to abate it. See Farmer, 511 U.S.

6

at 837. Defendants have presented undisputed evidence that “man down” is to be called

7

only for emergencies, such as when an inmate has fallen and is unable to get up, is

8

unresponsive, appears to have difficulty breathing, is having chest pains or a seizure, or

9

any other life threatening emergency. (Bloise Decl. ¶ 2.) A “man down” requires that

10

everyone in the surrounding area, including the surrounding units, stop what they are

11

doing until the medical providers from TTA can assess the situation. (Id.) Therefore, a

12

“man down” is reserved for “true emergencies” because of the institutional disruption that

13

results. (Id.)

14

Plaintiff admits that on November 19, 2011, when his first “man down” request

15

was denied by Defendant Bloise, he was able to “hobble” to the Officer Station and

16

verbally request a “man down.” See supra at 2. When he repeated his request the next

17

day, he was also walking and able to make the verbal request. Id. at 2-3. Defendant

18

Bloise states in her declaration that based on her observation of Plaintiff on these days,

19

she denied the requests because the situation did not call for a “man down,” i.e., Plaintiff

20

exhibited none of the life threatening symptoms that would warrant such a call. (Bloise

21

Decl. ¶ 3.) Defendant Bloise also referred Plaintiff to the medical clinic for what

22

appeared to be a non-emergency medical situation. See supra at 2. It is undisputed

23

Plaintiff was in fact able to go to the medical clinic and receive attention on November

24

19, 2011, and that he was able to walk with assistance to his meals. Id. Accordingly, it

25

cannot be said that Defendant Bloise acted with deliberate indifference when she directed

26

Plaintiff to put in a medical request rather than call “man down,” especially as Plaintiff

27

was clearly not exhibiting life threatening symptoms but rather, was conscious and

28

ambulatory, albeit with the assistance of another inmate, and capable of getting himself to
Order Granting MSJ
N:\MY DRAFTS\Culler Grant MSJ Final March 16.wpd

8

1

the medical clinic.

2

In opposition, Plaintiff merely repeats the factual allegations in his complaint.

3

(Opp. at 5.) He also submits the declarations of three inmates stating that Defendant

4

Bloise did indeed refuse to call “man down” as evidence against Defendant Bloise, but as

5

stated above, this fact is not in dispute. (Id., Ex. A.) The declarations also mention that

6

Defendant Bloise threatened to issue a “115” [Rules Violation Report] to Plaintiff for

7

using a wheelchair or to other inmates for assisting him. (Id.) First of all, the Court notes

8

that Plaintiff made no specific allegation in his complaint that Defendant wrongfully

9

interfered with his use of a wheelchair or assistance from other inmates. (Compl. at 4.)

10

Furthermore, the fact that Plaintiff had access to a wheelchair indicates that he was not as

11

helpless or immobile as he implies. Lastly, Defendant Bloise states in her declaration that

12

for safety concerns, only inmates and correctional staff or medical personnel who receive

13

training in the operation of wheelchairs are permitted to push other inmates in

14

wheelchairs. (Bloise Decl. ¶ 4.) Accordingly, Plaintiff cannot show that Defendant

15

Bloise was acting with deliberate indifference to Plaintiff’s serious medical needs when

16

making such threats, if she indeed did so, where she was following prison policy to

17

protect Plaintiff’s safety and that of the untrained inmates attempting to assist him with

18

the wheelchair. (Id.)

19

Based on the evidence presented, Defendant Bloise has shown that there is no

20

genuine issue of material fact with respect to Plaintiff’s deliberate indifference claim

21

against her. See Celotex Corp., 477 U.S. at 323. In response, Plaintiff merely repeats the

22

factual allegations in his complaint and has failed to point to specific facts showing that

23

there is a genuine issue for trial, id. at 324, or identify with reasonable particularity the

24

evidence that precludes summary judgment, Keenan, 91 F.3d at 1279. Accordingly,

25

Defendant Bloise is entitled to judgment as a matter of law. Id.; Celotex Corp., 477 U.S.

26

at 323.

27

C.

28

With respect to Plaintiff’s claims against Defendant Nurse Peterson, Defendants

Claims against Defendant Nurse Peterson

Order Granting MSJ
N:\MY DRAFTS\Culler Grant MSJ Final March 16.wpd

9

1

have submitted evidence showing that Defendant Peterson never treated Plaintiff at any

2

time alleged in the complaint. See supra at 2, 3. The TTA Treatment Log shows that

3

Plaintiff was seen on November 19, 2011, by Nurse Raja, not by Nurse Peterson. (Jirn

4

Decl., Ex. A.) The same log shows that Defendant Peterson had no contact with Plaintiff

5

on November 24, 25, 26 or 27, 2011. (Id.) The possibility that Plaintiff may have

6

misidentified this particular Defendant is bolstered by the fact that he consistently refers

7

to Defendant Peterson as a male, (see Compl. at 4), when she is in fact female.

8
9

Even if we assume as true Plaintiff’s allegations against Defendant Peterson, he
fails to show that she acted with deliberate indifference to his serious medical needs.

10

First of all, when he saw her on November 19, 2011, Defendant Peterson did not turn him

11

away but conducted an examination of his left foot, noting . See supra at 2. With respect

12

to her statement that there was no doctor at the hospital at that time, Plaintiff has failed to

13

show that this was not in fact true, or that Defendant Peterson purposefully delayed or

14

interfered with Plaintiff’s access to a physician. Rather, Plaintiff was examined by a

15

doctor just four days later. Id. at 3. Plaintiff has not alleged that Defendant Peterson was

16

actually responsible for this delay, or that such a delay was of unconstitutional

17

proportions. Compare McGuckin, 974 F.2d at 1062 (delay of seven months in providing

18

medical care during which medical condition was left virtually untreated and plaintiff was

19

forced to endure “unnecessary pain” sufficient to present colorable § 1983 claim).

20

With respect to Plaintiff’s claim that when he saw Defendant Peterson on

21

November 24, 25, 26 and 27, 2011, she was hostile and threatened to write him up, even

22

if we assume this is true, there is no evidence that she disregarded a substantial risk of

23

serious harm to Plaintiff’s health and failed to take reasonable steps to abate it. See

24

Farmer, 511 U.S. at 837. Rather, the undisputed evidence shows that Plaintiff was seen

25

by Dr. David on November 24, 2011, by Dr. Jones on November 25, 2011, and Defendant

26

Dr. Leighton on November 26, 2011. See supra at 3-4. Because Plaintiff was actually

27

receiving treatment during the days on which he claims Defendant Peterson was “hostile,”

28

it cannot be said that she purposefully failed to respond to Plaintiff’s medical needs with
Order Granting MSJ
N:\MY DRAFTS\Culler Grant MSJ Final March 16.wpd

10

1

the knowledge that if she did not act, Plaintiff would face greater harm. In other words,

2

Plaintiff has failed to show that Defendant Peterson both knew of “facts from which the

3

inference could be drawn” that an excessive risk of harm existed, and she actually draw

4

that inference. See Farmer, 511 U.S. at 837.

5

Again in opposition, Plaintiff merely repeats the allegations from his complaint,

6

(Opp. at 5, 6), and presents no evidence indicating that his identification of Defendant

7

Peterson is accurate to refute the evidence presented by Defendants. Accordingly, based

8

on the evidence presented, Defendant Peterson has shown that there is no genuine issue of

9

material fact with respect to Plaintiff’s claim against her. See Celotex Corp., 477 U.S. at

10

323. In response, Plaintiff has failed to point to specific facts showing that there is a

11

genuine issue for trial, id. at 324, or identify with reasonable particularity the evidence

12

that precludes summary judgment, Keenan, 91 F.3d at 1279. Accordingly, Defendant

13

Peterson is entitled to judgment as a matter of law. Id.; Celotex Corp., 477 U.S. at 323.

14

D.

15

Lastly, Plaintiff claims that the treatment he received from Defendant Dr. Leighton

Claims against Defendant Dr. Leighton

16

was constitutionally deficient. After reviewing the evidence presented, the Court finds

17

that while Plaintiff may at best state a claim of medical malpractice or negligence, which

18

are insufficient to make out a violation of the Eighth Amendment, see Toguchi v. Chung,

19

391 F.3d 1051, 1060-61 (9th Cir. 2004), he ultimately fails to show that Defendant

20

Leighton acted with deliberate indifference to his serious medical needs.

21

Plaintiff first saw Defendant Leighton on November 23, 2011. According to the

22

undisputed evidence, Defendant Leighton was seeing Plaintiff for an initial primary care

23

medical evaluation since he had recently transferred from another prison. (Leighton Decl.

24

¶ 2; Compl. Ex. B at 1-3.) The report from that examination indicates that she did a

25

thorough review of his medical history and current chronic medical problems, which

26

included kidney disease (“minimal change disease” 5 on biopsy) with nephrotic syndrome,

27
28

5

According to Defendants, “minimal change disease” is “a kidney disorder that can
lead to nephrotic syndrome, which refers to a group of symptoms that include protein in
Order Granting MSJ
N:\MY DRAFTS\Culler Grant MSJ Final March 16.wpd

11

1

diabetes, hyperlipidemia,6 chronic obstructive pulmonary disease 7 and hypertension.8

2

(Id.) Plaintiff does not refute the accuracy of this information. Plaintiff was also on a

3

high dose of prednisone, which is used to treat the symptoms of low corticosteroid levels

4

as well as conditions in other patients with normal corticosteroid levels, including

5

arthritis, severe allergic reactions, multiple sclerosis, lupus, and certain conditions that

6

affect the lungs, skin, eyes, kidneys, blood, thyroid, stomach and intestines. (Mot. at 6,

7

fn. 10.) Plaintiff did not appear to be in distress and made no mention of pain in his leg

8

or foot. (Leighton Decl. ¶ 2; Compl. Ex. B at 1-3.) Defendant Leighton ordered a blood

9

test and a follow-up in two weeks. (Id.) Accordingly, it cannot be said that Defendant

10

Leighton was deliberately indifferent to Plaintiff’s medical health where she conducted a

11

thorough examination and ordered appropriate tests and follow-up care.

12

Furthermore, Plaintiff’s claim that Defendant Leighton disregarded his complaints

13

of pain is refuted by the medical records which show that he made no mention of pain in

14

his legs or feet. (Id.) Because her examination notes indicate that she found nothing

15

emergent in Plaintiff’s condition, it cannot be said that Defendant Leighton both knew of

16

facts from which the inference could be drawn that an excessive risk of harm existed and

17

that she actually drew that inference. See Farmer, 511 U.S. at 837. As for Plaintiff’s

18

claim that Defendant Leighton failed to record her observations of discoloration in his big

19

toe and warmth in his foot, this act, even if true, does not indicate deliberate indifference

20

because the examination notes indicate that she was not actually aware of any risk to

21
22
23
24
25
26
27
28

the urine, low blood protein levels, high cholesterol levels, high triglyceride levels, and
swelling usually caused by different disorders that damage the kidneys, including
excessive use of prednisone.” (Mot. at 5, fn. 5.)
6

According to Defendants, “[h]yperlipidemia is a condition involving abnormally
elevated levels of any or all lipids and/or lipoproteins in the blood.” (Mot. at 5, fn. 7.)
7

According to Defendants, “[c]hronic obstructive pulmonary disease is a disease that
makes it hard to breathe.” (Mot. at 6, fn. 8.)
8

According to Defendants, “[h]ypertension refers to high blood pressure.” (Mot. at 6,
fn. 9.)
Order Granting MSJ
N:\MY DRAFTS\Culler Grant MSJ Final March 16.wpd

12

1

Plaintiff’s health at that time; even if Defendant Leighton should have been aware of the

2

risk, she has not violated the Eighth Amendment because she in fact was not. Gibson,

3

290 F.3d at 1188. Lastly, to the extent that Plaintiff may have disagreed with Defendant

4

Leighton’s chosen course of treatment, it is well settled that such a difference of opinion

5

between a prisoner-patient and his prison doctor regarding treatment does not give rise to

6

a § 1983 claim. Franklin, 662 F.2d at 1344.

7

Defendants have also provided evidence refuting Plaintiff’s claim that his requests

8

for assistance over the days following the initial examination by Defendant Leighton were

9

refused by her and other doctors. Rather, the undisputed evidence shows that Plaintiff

10

was seen on consecutive days by different doctors immediately thereafter. The next day

11

on November 24, 2011, Plaintiff saw Dr. David. See supra at 3. At this examination,

12

Plaintiff first mentioned tingling pain and numbness in his feet, which he claims had

13

become worse in the last three days. Id. Dr. David observed “good pulses and capillarey

14

[sic] refill.” Id. He prescribed pain medication and a follow-up in a week, which

15

indicates that Dr. David did not find anything emergent in Plaintiff’s condition. Id.

16

Nevertheless, Plaintiff again sought medical attention the next day, and was seen by Dr.

17

Jones. Id. Dr. Jones completed a thorough examination, and observed that Plaintiff’s

18

strength was normal and his pulses palpable. Id. at 4. He also prescribed medication to

19

address Plaintiff’s complaints of pain, and found that treatment options were limited due

20

to Plaintiff’s kidney disease and recent laboratory abnormalities. Id. He ordered a

21

follow-up for the next day. Id. When Plaintiff saw Defendant Dr. Leighton on November

22

26, 2011, for the follow-up, she found no change in Plaintiff’s feet from her last

23

examination. See supra at 4. She did, however, prescribe morphine to address his recent

24

complaints of pain. Id. Accordingly, it cannot be said that Defendant Leighton

25

deliberately failed to treat Plaintiff’s complaints of pain once it was brought to her

26

attention.

27
28

Defendant Leighton saw Plaintiff again on November 30, 2011, which was just
another four days after his last visit. See supra at 4. She noticed that Plaintiff’s feet were
Order Granting MSJ
N:\MY DRAFTS\Culler Grant MSJ Final March 16.wpd

13

1

cold and that his pulses were not palpable. Id. She also noted that Plaintiff had edema on

2

his feet, which was more severe on his left foot, and that Plaintiff had normal sensation in

3

his feet except for the left heel. Id. There was no discoloration or dusky areas in his skin.

4

Id. Based on her observations and Plaintiff’s medical history, Defendant Leighton

5

determined that Plaintiff’s condition was caused by diabetic neuropathy and did not

6

suspect a vascular cause. Id. She continued Plaintiff’s pain medications. Id. Even if

7

Defendant Leighton’s diagnosis was ultimately incorrect, it cannot be said that she acted

8

with deliberate indifference to Plaintiff’s medical needs because there is no indication

9

that she knew Plaintiff faced a substantial risk of serious harm and disregarded that risk

10

by failing to take reasonable steps to abate it. See Farmer, 511 U.S. at 834. Furthermore,

11

to the extent that Plaintiff is challenging her chosen course of treatment, he must show

12

that the course of treatment Defendant Leighton chose was medically unacceptable under

13

the circumstances and that she chose this course in conscious disregard of an excessive

14

risk to Plaintiff's health. Toguchi, 391 F.3d at 1058. However, there is no such evidence,

15

and Plaintiff does not provide any, to indicate that Defendant Leighton’s chosen course of

16

treatment was constitutionally deficient. Id. As discussed above, Defendant Leighton

17

must have both known of facts from which the inference could be drawn that an excessive

18

risk of harm to Plaintiff’s health existed, and she must actually have drawn that inference.

19

See Farmer, 511 U.S. at 834. According to the evidence presented, she did not.

20

In opposition, Plaintiff merely repeats the allegations from his complaint, (Opp. at

21

6), and presents no evidence to refute Defendants’ evidence. Accordingly, based on the

22

evidence presented, Defendant Leighton has shown that there is no genuine issue of

23

material fact with respect to Plaintiff’s Eighth Amendment claim against her. See Celotex

24

Corp., 477 U.S. at 323. In response, Plaintiff has failed to point to specific facts showing

25

that there is a genuine issue for trial, id. at 324, or identify with reasonable particularity

26

the evidence that precludes summary judgment, Keenan, 91 F.3d at 1279. Accordingly,

27

Defendant Leighton is entitled to judgment as a matter of law. Id.; Celotex Corp., 477

28

U.S. at 323.
Order Granting MSJ
N:\MY DRAFTS\Culler Grant MSJ Final March 16.wpd

14

1

CONCLUSION

2

For the reasons stated above, Defendants Correctional Officer M. Bloise, Nurse T.

3

Peterson and Dr. D. Leighton’s motion for summary judgment, (Docket No. 24), is

4

GRANTED.9 The claims against them are DISMISSED with prejudice.

5

This order terminates Docket No. 24.

6

IT IS SO ORDERED.

7
8

DATED: March 16, 2015
BETH LABSON FREEMAN
United States District Judge

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

9

Because the Court finds that no constitutional violation occurred, it is not necessary to
reach Defendants’ qualified immunity argument.
Order Granting MSJ
N:\MY DRAFTS\Culler Grant MSJ Final March 16.wpd

15