Gary v. Hawthron, et al

Filing 109

ORDER: The Report and Recommendation (Doc. 107 ) is adopted in its entirety; and the Motion for Partial Summary Judgment (Doc. 95 ) is granted. Signed by Judge William Q. Hayes on 12/9/2009. (All non-registered users served via U.S. Mail Service.) (mdc) (jrl).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 HAYES, Judge: 17 The matter before the Court is the Report and Recommendation of Magistrate Judge 18 Peter C. Lewis (Doc. # 107), filed on September 28, 2009, recommending that the Court grant 19 the Motion for Partial Summary Judgment filed by Defendant Susan Pasha (Doc. # 95). 20 21 BACKGROUND On July 25, 2006, Plaintiff Reginald Gary, a pro se state prisoner currently incarcerated REGINALD GARY, vs. Plaintiff, CASE NO. 06cv1528-WQH-PCL ORDER

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

K. HAWTHRON; K. DUMAS; SUSAN PASHA; ROBERT HERNANDEZ; ARNOLD SCHWARZENEGGER; JAMES E. TILTON; and C. MARSH, Defendants.

22 at Avenal State Prison, filed a Complaint pursuant to 42 U.S.C. § 1983. (Doc. # 1). The sole 23 remaining claims in this action concern Plaintiff's allegations that Defendant Pasha, a nurse 24 practitioner, violated Plaintiff's Eighth Amendment rights while he was an inmate at R.J. 25 Donovan Correctional Facility ("RJDCF").1 Plaintiff alleges that (1) Pasha ignored Plaintiff's 26 needs for pain medication, particularly for the drug Celebrex, between January and early 27 In an Order dated September 19, 2007, the Court dismissed Defendants Robert 28 Hernandez, James E. Tilton and Arnold Schwarzenegger. (Doc. # 44). In an Order dated April 3, 2008, the Court dismissed Defendants K. Hawthron, K. Dumas and C. Marsh. (Doc. # 59).
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1 September 2006; and (2) Pasha ignored Plaintiff's needs for asthma medication during the 2 same period. 3 On June 4, 2009, Pasha filed a Motion for Partial Summary Judgment, seeking summary

4 judgment as to Plaintiff's claim that Pasha ignored Plaintiff's need for pain medication. 5 According to Pasha, because there are "disputed facts in relation to the asthma medication 6 issues ..., such matters are not addressed in this motion for summary judgment." (Doc. # 95-1 7 at 5). 8 Pasha attached evidence to her Motion for Partial Summary Judgment. This evidence

9 shows the following: Pasha, who worked at the prison as a Registered Nurse and Family Nurse 10 Practitioner, began her participation in Plaintiff's medical treatment on January 3, 2006 (Pasha 11 Decl. ¶¶ 1, 3, Doc. # 95-4); on January 3, 2006, Pasha prescribed Plaintiff 800 mg tablets of 12 Motrin (i.e., ibuprofen) for pain for a one-month period (id. ¶ 4); on February 27, 2006, Pasha 13 again prescribed Plaintiff 800 mg tablets of Motrin for pain for a one-month period, and 14 ordered X-rays be taken of Plaintiff's left knee (id. ¶ 5; see also Baxter Decl., Ex. C, Doc. 95-3 15 at 119); on March 3, 2006, Pasha examined Plaintiff's left knee, which was the source of his 16 complaints of pain, and gave Plaintiff "a supply of Motrin to help him with pain symptoms 17 while he waited for the pharmacy to fill his one-month supply of Motrin that had been ordered 18 on February 27, 2006" (Pasha Decl. ¶ 6, Doc. # 95-4); on March 20, 2006, Pasha reviewed and 19 signed a March 8, 2006 X-ray report issued by Dr. Scott Harman, which concluded that 20 Plaintiff had a "[n]ormal left knee," with "no osseous or soft tissue abnormalities" (id. ¶ 9; see 21 also Baxter Decl., Ex. A, Doc. # 95-2 at 10); on April 4, 2006, Pasha entered a request for 22 Plaintiff "to receive an orthopedic referral for his knee pain" (Pasha Decl. ¶ 11, Doc. # 95-4); 23 on May 11, 2006, Pasha recommended that Plaintiff receive a six-month supply of Celebrex 24 pills for pain management and Pasha "put in a request that [Plaintiff] be seen by a pain 25 specialist and receive cortisone injections for his neck pain" (id. ¶¶ 13-14; see also Baxter 26 Decl., Ex. A, Doc. # 95-2 at 30, 36; Baxter Decl., Ex. C, Doc. 95-3 at 120); on May 12, 2006, 27 June 9, 2006, July 7, 2006, August 4, 2006, and September 1, 2006, Plaintiff received Celebrex 28 from the pharmacy pursuant to Pasha's prescription (Baxter Decl., Ex. C, Doc. 95-3 at 120-22);
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1 on June 26, 2006, Pasha signed consultation notes provided by Dr. Naga R. Thota, an outside 2 pain specialist, who recommended Plaintiff receive three epidural injections for Plaintiff's neck 3 pain (Pasha Decl. ¶ 16, Doc. # 95-4; see also Baxter Decl., Ex. A, Doc. # 95-2 at 36); and on 4 June 27, 2006, Pasha entered an order for Plaintiff to receive three epidural injections for his 5 neck pain (Pasha Decl. ¶ 16, Doc. # 95-4; see also Baxter Decl., Ex. A, Doc. # 95-2 at 40). 6 On June 15, 2009, the Magistrate Judge issued a "Klingele/Rand Notice," advising

7 Plaintiff: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided by Rule 56(e), that contradict the facts shown in the Defendants' declarations and documents and show that there is a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed without trial (or partly dismissed if another triable claim remains). (Doc. # 96 at 2). On August 3, 2009, Plaintiff filed an opposition brief to the Motion for Partial Summary Judgment. (Doc. # 106). Plaintiff did not submit evidence with his opposition brief. On September 28, 2009, the Magistrate Judge issued the Report and Recommendation, which recommends that this Court grant the Motion for Partial Summary Judgment. (Doc. # 107). The Report and Recommendation states: Defendant Pasha has shown that there is an absence of evidence to support the essential elements of Plaintiff's Eighth Amendment deliberate indifference claim. Plaintiff's pleading states that Defendant Pasha deprived him sufficient and appropriate pain medication. More specifically, Plaintiff has claimed that Defendant Pasha unconstitutionally delayed giving him the pain medication Celebrex. However, Defendant Pasha has produced a record before this Court showing that she has not withheld pain medication from Plaintiff while he was under her care from January 3, 2006 through early September 2006. From January through May, Defendant Pasha has shown that Plaintiff received a specified dosage of ibuprofen for his knee pain to be taken as needed. Although Plaintiff ran out of pills at certain points during that period and had to file complaints with the prison administration to receive another supply, the record shows that Plaintiff took more than the recommended dosage of two Motrin (ibuprofen) pills a day as needed and sometimes consumed six to eight pills a day. Plaintiff also claims that he should have been given Celebrex instead of ibuprofen to medicate his pain as soon as he arrived at RJDCF. But his 602 appeal filed in January, 2006 does not mention this drug but indicates his desire for more ibuprofen. The defense has demonstrated that Plaintiff first made Defendant Pasha aware of his need for Celebrex on May 11, 2006 and that he
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received a dosage of this particular medication that very day from her. In addition to knee pain, Plaintiff claims that his neck pain was not properly medicated; however, the record indicates that Plaintiff received ibuprofen as he requested and, when that was shown not to work, eventually received cortisone shots. Although Plaintiff claims that he was given medication that failed to work and the delay in receiving proper pain medication demonstrates deliberate indifference on the part of Defendant Pasha, Plaintiff has failed to produce evidence that the initial course of treatment that failed fully to treat his pain was medically unacceptable under the circumstances and was chosen in conscious disregard of his health. As Defendant has met her burden on summary judgment demonstrating an absence of a genuine issue of material fact as to the Eighth Amendment pain medication claim and Plaintiff has failed to produce evidence demonstrating that a genuine issue of material fact exists creating a need for a trial, the Court recommends summary judgment of this Eighth Amendment claim in favor of Defendant Pasha.

9 (Doc. # 107 at 7-8). 10 On October 15, 2009, Plaintiff filed objections to the Report and Recommendation.

11 (Doc. # 108). Plaintiff contends that he "was prejudiced by not receiving the discovery 12 requested by subpoena ... of how many medical complaints had been filed against Susan 13 Pasha." (Doc. # 108 at 3). Plaintiff contends that he received Celebrex at Ironwood State 14 Prison, where he was housed prior to his transfer to RJDCF, and "Pasha should have reviewed 15 and ordered the same care, not given [Plaintiff] something that wasn't given at the other prison 16 (ibuprofen)." (Doc. # 108 at 4). Plaintiff contends that he "never received any Celebrex from 17 Susan Pasha." Id. Plaintiff also makes arguments related to his claim that Pasha ignored 18 Plaintiff's needs for asthma medication, which is not the subject of the Motion for Partial 19 Summary Judgment. (Doc. # 108 at 5). 20 21 RULING OF THE COURT The duties of the district court in connection with a Report and Recommendation of a

22 Magistrate Judge are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 23 U.S.C. § 636(b)(1). When a party objects to a Report and Recommendation, "[a] judge of the 24 [district] court shall make a de novo determination of those portions of the [Report and 25 Recommendation] to which objection is made." 28 U.S.C. § 636(b)(1); see Thomas v. Arn, 26 474 U.S. 140, 149-50 (1985). A district court may "accept, reject, or modify, in whole or in 27 part, the findings or recommendations made by the magistrate judge." Fed. R. Civ. P. 72(b); 28 28 U.S.C. § 636(b)(1).
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The Court has considered all objections filed by Plaintiff and reviewed de novo all

2 portions of the Report and Recommendation. The Report and Recommendation correctly sets 3 forth the standard of review for motions for summary judgment. See Fed. R. Civ. P. 56(c); 4 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Report and Recommendation also 5 correctly sets forth the applicable law related to Eighth Amendment deliberate indifference 6 claims. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) ("To establish an Eighth 7 Amendment violation, a prisoner must satisfy both the objective and subjective components 8 of a two-part test. First, there must be a demonstration that the prison official deprived the 9 prisoner of the minimal civilized measure of life's necessities. Second, a prisoner must 10 demonstrate that the prison official acted with deliberate indifference in doing so.") (quotations 11 omitted). The Report and Recommendation correctly finds that Pasha met her burden of 12 demonstrating the absence of a genuine issue of material fact as to the Eighth Amendment pain 13 medication claim. The Report and Recommendation also correctly finds that Plaintiff has 14 failed to produce evidence demonstrating that a genuine issue of material fact exists as to the 15 Eighth Amendment pain medication claim. 16 Plaintiff objects to the denial of his motion to compel production of other inmate

17 "medical complaints" against Pasha. (Doc. # 108 at 3). The Court has reviewed Plaintiff's 18 motion to compel (Doc. # 92) and the Magistrate Judge's order denying the motion to compel 19 (Doc. # 103). The Court finds that the Magistrate Judge properly denied the motion to compel. 20 Additionally, Plaintiff has failed to demonstrate how evidence of other inmate complaints 21 against Pasha would establish a genuine issue of material fact as to the objective component 22 of Plaintiff's Eighth Amendment claim, i.e., whether Pasha "deprived [Plaintiff] of the minimal 23 civilized measure of life's necessities." Toguchi, 391 F.3d at 1057 (quotation omitted). 24 In his objections, Plaintiff contends that Pasha initially should have prescribed him

25 Celebrex instead of ibuprofen because he received Celebrex at his previous prison. Pasha has 26 submitted uncontroverted evidence that she was never "made aware of any medical records or 27 other information from professional medical sources indicating that [Plaintiff] could only 28 reasonably be treated with Celebrex...." (Pasha Decl. ¶ 13, Doc. # 95-4). Pasha has also
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1 submitted evidence that both ibuprofen and Celebrex are classified as a "Non Steroidal Anti2 inflammatory Drug," and ibuprofen "is recognized in the medical community as an effective 3 pain medication." Id. 4 Plaintiff contends that he "never received any Celebrex from Susan Pasha." (Doc. #

5 108 at 4). However, Plaintiff has failed to submit any evidence which contradicts Pasha's 6 affidavit to the contrary, as well as the medical records and pharmacy records indicating that 7 after May 11, 2006, Plaintiff received Celebrex pursuant to Pasha's prescription. 8 The Court finds that Plaintiff's objections should be overruled, and the Report and

9 Recommendation should be adopted. 10 IT IS HEREBY ORDERED that the Report and Recommendation (Doc. # 107) is

11 ADOPTED in its entirety; and the Motion for Partial Summary Judgment (Doc. # 95) is 12 GRANTED. 13 DATED: December 9, 2009 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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WILLIAM Q. HAYES United States District Judge