Arellano v. Sedighi et al

Filing 101

REPORT AND RECOMMENDATION: (1) Granting Defendants' Motin for Summary Judgment; (2) Denying Plaintiff's Cross-Motin for Summary Judgment; and (3) Denying Plaintiff's Motion to Amend (ECF No. 80 , 87 , 94 ). No later than 10/23/2020, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be filed with the Court and served on all parties no later than 10/30/2020. The parties are advised that failure to file objections within the specified time waive the right to raise those objections on appeal of the Court's order. Signed by Magistrate Judge Bernard G. Skomal on 10/01/2020.(All non-registered users served via U.S. Mail Service)(jrm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Raul ARELLANO,

Case No.: 15-cv-02059-AJB-BGS
Plaintiff,

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v.

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REPORT AND
RECOMMENDATION:

SEDIGHI, et al.,

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(1) GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT;

Defendants.

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(2) DENYING PLAINTIFF’S CROSSMOTION FOR SUMMARY
JUDGMENT;

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AND

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(3) DENYING PLAINTIFF’S
MOTION TO AMEND

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[ECF Nos. 80, 87, 94]

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Plaintiff Raul Arellano (“Plaintiff”), a state prisoner proceeding pro se and informa
pauperis, filed a Third Amended Complaint (“TAC”) on November 25, 2019, alleging civil
rights violations pursuant to 42 U.S.C. § 1983 against Defendants Dr. Sedighi and Nurse
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Busalacchi (“Defendants”). (ECF No. 70.)1 Presently before the Court are Defendants’

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Motion for Summary Judgment (ECF No. 80), Plaintiff’s Cross-Motion for Summary

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Judgment (ECF No. 87), and Plaintiff’s Motion for Doe #1 be Addressed as Dr. Silva and

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be Amended as Dr. Silva (ECF No. 94).

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Recommendation to United States District Judge Anthony J. Battaglia pursuant to 28

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U.S.C. § 636(b)(1) and Local Civil Rule 72.1(d) of the United States District Court for the

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Southern District of California.

The Court submits this Report and

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After a thorough review of Plaintiff’s TAC, the parties’ motion papers, and all

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supporting documents, and for the reasons discussed below, the Court RECOMMENDS

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that the Defendants’ Motion for Summary Judgment (ECF No. 80) be GRANTED as to

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Defendants Dr. Sedighi and Nurse Busalacchi; and Plaintiff’s Cross-Motion for Summary

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Judgment (ECF No. 87) be DENIED. Further, the Court RECOMMENDS that Plaintiff’s

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Motion for Doe #1 be Addressed as Dr. Silva and be Amended as Dr. Silva (ECF No. 94)

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be DENIED.

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INTRODUCTION

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The Court only briefly summarizes the allegations for reference and discusses the

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procedural history and evidence presented by the parties as necessary in addressing each

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issue or motion.

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A. Procedural History

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Plaintiff initiated this action by filing a complaint on September 15, 2015. (ECF

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No. 1.) Plaintiff’s initial complaint was dismissed during initial screening on February 1,

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2016. (ECF No. 3.) Plaintiff’s First Amended Complaint, filed April 6, 2016, was

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dismissed on August 22, 2016 as frivolous and for failing to state a claim. (ECF Nos. 7–

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8.) Plaintiff’s Second Amended Complaint (“SAC”) was filed, nunc pro tunc, on October

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19, 2016, in which Plaintiff alleged civil rights violations as to Defendants: (1) Dr. Sedighi;

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All page number citations refer to the page numbers generated by the CM/ECF system.
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(2) Walker; (3) Roberts; (4) Lewis; (5) Glynn; and (6) Nurse Busalacchi. (ECF No. 10.)

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On April 17, 2017, Defendants filed a Motion to Dismiss for Failure to State a Claim as to

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Plaintiff’s SAC. (ECF No. 20.) The Court issued a Report and Recommendation (“R&R”)

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regarding this Motion to Dismiss Plaintiff’s SAC on February 27, 2018, which was adopted

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by the District Court Judge on March 20, 2018. (ECF Nos. 43–44.) The Court dismissed

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Plaintiff’s Fourteenth Amendment claim and ADA claim against Defendant Sedighi and

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all claims against Defendants Walker, Roberts, Lewis, and Glynn with prejudice, as well

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as denied Plaintiff’s Motion to Disclose Name of Doe #1. (ECF Nos. 43–44.)

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Plaintiff filed the operative TAC on November 25, 2019, in which he alleges civil

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rights violations by Defendants Dr. Sedighi and Nurse Busalacchi. (ECF No. 70.) Plaintiff

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alleges that the Defendants violated his Eight Amendment right to freedom from cruel and

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unusual punishment. (Id.) Defendants filed their Motion for Summary Judgment on April

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13, 2020, which is presently before the Court. (ECF No. 80.) Plaintiff filed his Opposition

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on May 13, 2020. (ECF No. 82.) Defendants filed their Reply on May 18, 2020. (ECF

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No. 32.) Plaintiff also filed a Sur-Reply on June 3, 2020.2 (ECF No. 85.)

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On June 3, 2020, Plaintiff filed a motion in which the Court interpreted as a Cross-

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Motion for Summary Judgment. (See ECF No. 87.) The Court accepted the motion,

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despite this motion being filed without permission from the Court and after the dispositive

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motion deadline set in the Court’s Scheduling Order (ECF No. 72 at 5). (See ECF Nos.

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86, 87.) The Court instructed for Defendants to file an Opposition to Plaintiff’s Cross-

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Motion and indicated that “No further briefing will be accepted.” (ECF No. 88.) On June

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12, 2020, Defendants filed their Opposition to Plaintiff’s Cross-Motion. (ECF No. 90.)

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Plaintiff’s Motion for Leave to File a Reply to Defendants’ Opposition to his Cross-

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Motion for Summary Judgment, filed nunc pro tunc on June 24, 2020, was denied on July

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The Court accepted Plaintiff’s Sur-Reply despite Plaintiff not filing a Motion for Leave to File SurReply. (ECF No. 85.)
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1, 2020 due to the extensive briefing already on file and raising the same arguments as in

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Plaintiff’s Opposition and Sur-Reply. (See ECF Nos. 96, 97.) Plaintiff filed a Motion for

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Doe #1 be Addressed as Dr. Silva3 and be Amended as Dr. Silva, nunc pro tunc, on June

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24, 2020, which is presently before the Court. (ECF No. 94.)
B. Plaintiff’s Third Amended Complaint

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Plaintiff is a state prisoner currently incarcerated at Richard J. Donovan Correctional

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Facility (“RJD”) in San Diego. (ECF No. 70 at 1.) Plaintiff suffers from seizures as well

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as nerve damage stemming from head trauma in 2010. (Id. at 6.) While at Calipatria State

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Prison from August 2011 until November 2011, Plaintiff was prescribed Gabapentin4 for

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his symptoms. (Id.) On November 15, 2011, Plaintiff was transferred to RJD. (Id.) In

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February 2012, Plaintiff was placed on new medication after being taken off Gabapentin,

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which led to “more severe pain,” and more frequent and aggressive seizures. (Id.) Plaintiff

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fell from his top bunk in March 2012 which led to a new lower back injury and symptoms

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of neuropathy. (Id. at 7.)

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From 2012 to March 2015, Plaintiff alleges that he attempted to change his course

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of treatment, but was unsuccessful. (Id. at 7–8.) Plaintiff filed grievances requesting to

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change his seizure medication back to Gabapentin because the medication he was placed

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on was “ineffective to [his] symptoms” and gave him “severe side effects such as suicidal

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thoughts, vomiting” and “deprive[d him] of life necessities; eating, sleeping exercise.” (Id.

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at 7.)

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On March 1, 2015, Plaintiff claims to have been in the suicidal infirmary for pain

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and suicidal thoughts that “trigger out of nowhere.” (Id. at 8.) On March 5, 2015, Dr.

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Plaintiff refers to Dr. Silva as “Dr. Sylva” and “Dr. Silva.”

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Although not material to the Court’s determination, the Court interprets Plaintiff’s reference to
“neurotens” to be a reference to Neurontin. Neurontin is the brand name for the generic drug Gabapentin.
See Neurotonin, RXLIST, https://www.rxlist.com/neurontin-drug.htm (last visited September 15, 2020).
The brand and generic names are both used interchangeably throughout the pleadings and exhibits.

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Sedighi saw Plaintiff and prescribed Trileptal5 for Plaintiff’s pain and seizures, after

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Plaintiff claims that a psychiatrist discontinued Plaintiff’s Elavil and Keppra prescriptions

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due to its alleged suicidal side effects.6 (Id.)

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On March 11, 2015, Plaintiff was taken off of Trileptal due to an allergic reaction

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and placed on no other medication. (Id.) On March 13, 2015, Plaintiff talked with Dr.

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Bahro7 regarding his course of treatment and indicated that he has not been put on any

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seizure or pain medication “which basically left [Plaintiff] to suffer in pain and put

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[Plaintiff’s] life at risk due to no seizure med[ication].” (Id.) Dr. Bahro contacted the

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“M.D.” and the Chief of Psychiatry, who reassured Dr. Bahro that Plaintiff was to stay off

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of seizure medications. (Id.) On or around March 16, 2015, Plaintiff states that he went to

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the suicidal infirmary because he was afraid to get a seizure since he was without seizure

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medication and he was experiencing such severe pain, that he was feeling suicidal. (Id.)

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Plaintiff states that Dr. Sedighi also treated him sometime between March 19–27,

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2015. (Id. at 9.) Plaintiff allegedly told Dr. Sedighi about his medical needs, including

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that he was not on any pain or seizure medications. (Id. at 9, 11.) Plaintiff states that Dr.

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Sedighi knew that Gabapentin was effective, yet still decided to leave Plaintiff without any

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seizure or pain medication. (Id.) Plaintiff claims that “[Dr. Sedighi] didn’t care he was

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putting [Plaintiff’s] life at risk or harm, neither what [Plaintiff] was suffering. He was just

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not going to put [Plaintiff on] anything for no medical reason.” (Id. at 11.)

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Approximately five days after seeing Dr. Sedighi, Plaintiff suffered an unwitnessed

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seizure and was transferred out to a hospital. (Id. at 9, 11.) From May 2015 to August

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Plaintiff references Trileptal as “Triliptol” in the TAC.

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Plaintiff has made conflicting statements as to who he claims discontinued Elavil and Keppra. Plaintiff
occasionally claims that Elavil and Keppra were discontinued by a psychiatrist “due to its suicidal side
effects.” (ECF Nos. 70 at 8; 82 at 5; 85 at 1, 10.) At other times, Plaintiff claims that it was Dr. Sedighi
who discontinued Elavil and Keppra. (ECF Nos. 70 at 8 n.1, 10 n.1; 87 at 4.)

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Plaintiff referred to Dr. Bahro as “Mental Health Bahro.”
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2015, Plaintiff states that he told the Defendants about his serious medical needs through

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grievances, but the Defendants still did not do anything to help and instead “left [Plaintiff]

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to suffer.” (Id.)

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Between April–July 2015, while Plaintiff was in solitary confinement, Nurse

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Busalacchi heard Plaintiff’s claim in response to his grievance. (Id. at 13.) During his

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interview with Nurse Busalacchi, Plaintiff recounted his history of seizures and

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corresponding treatment. (Id. at 14–16.) Plaintiff claims that he told Nurse Busalacchi

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that Elavil was not effective at treating his pain and resulted in the following severe side

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effects: “(1) nausea; (2) deprivation of sleep; (3) deprivation of walking; (4) deprivation of

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able to eat and sustain food on my stomach; (5) falling and hurting myself due to dizziness

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of the side effect; (6) interfere with breathing, severe pain.” (Id. at 19–20.) Plaintiff also

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claims that Nurse Busalacchi “knew Elavil was prescribed again 10/26/12. But it was taken

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off on March 2015 due to been part of why I try to commit suicide. [Nurse Busalacchi]

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knew that and still sustain Elavil, actually she raised dosage not caring it would put my life

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at risk, and medication was ineffective for my nerve pain.” (Id.)
Regarding Dilantin,8 Plaintiff claims to have told Nurse Busalacchi that it was

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discontinued in 2011 for causing the following severe side effects:

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(1) It makes me dizzy which has cause me to fall; (2) dizziness and nausea,
doesn’t allow food to stay [i]n stomach because I vomit; (3) it doesn’t allow[ ]
me to be aware of my surrounding which is why I fall; (4) deprives me of
sleep because it keeps waking me up due to a feeling of falling; (5) doesn’t
allow[ ] me to exercise, or stand without feeling or falling and nausea.

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(Id. at 15.) Plaintiff states that these side effects have returned after being prescribed
Dilantin in 2015. (Id.) Further, Plaintiff told Nurse Busalacchi that the only medication

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Although not material to the Court’s determination, Plaintiff sometimes refers to Dilantin as
“Delantin” throughout his TAC and other pleadings. The Court interprets Plaintiff’s reference to
“Delantin” to be a reference to Dilantin. Dilantin is the brand name for the generic drug Phenytoin. See
Dilantin, RXLIST, https://www.rxlist.com/dilantin-drug.htm (last visited September 15, 2020). The
brand and generic names are both used interchangeably throughout the pleadings and exhibits.
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that works for him is Gabapentin, a “known effective medication prescribed by a

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specialist.” (Id. at 15–16.) But Plaintiff indicates that he was “open for anything as long

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as [Dilantin] was taken off.” (Id. at 18.)

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After receiving the above information from Plaintiff, Nurse Busalacchi denied

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Plaintiff’s grievance because allegedly: (1) she did not “feel like changing [the]

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prescription because although [Plaintiff has] fall[en] due to side effects, [he is] still alive

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without broken bones or in a coma,” (2) “all inmates lie,” and (3) she had too much work

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and did not have the “strength and time to do paperwork.” (Id. at 16.) Plaintiff states that

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Nurse Busalacchi continued his Dilantin prescription and increased his Elavil prescription

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despite being told that they are ineffective at treating Plaintiff’s pain and seizures and they

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cause severe side effects. (Id. at 14–16, 20.) In December 2015, Plaintiff was prescribed

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Neurontin by another doctor. (Id. at 19.)

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C. Defendants’ Motion for Summary Judgment

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Defendants brought their Motion for Summary Judgment, as well as submitted

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Plaintiff’s medical records and a Declaration of Dr. Feinberg to support their initial burden

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of proof. (See ECF No. 80.) Defendants claim that on March 24, 2015, Dr. Sedighi

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provided medically appropriate treatment in response to Plaintiff’s complaints and never

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ignored Plaintiff’s needs. (Id. at 16.) Defendants state that Dr. Sedighi restarted Elavil in

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response to Plaintiff’s complaints of being left without pain medication and did not

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prescribe seizure medication for a period of observation to determine whether Plaintiff was

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suffering from a seizure disorder, which was consistent with clinical decisions by other

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physicians eleven days earlier. (Id.) Defendants state that Plaintiff’s dispute with Dr.

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Sedighi is about a disagreement regarding the appropriate medication, which does not

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violate the Eight Amendment. (Id. at 17.)

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As for Nurse Busalacchi, Defendants state that there is no evidence that she was

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deliberate indifferent to Plaintiff’s serious medical needs on April 13, 2015 and that

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Plaintiff’s dispute with Nurse Busalacchi only amounts to a difference of opinion over the

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appropriate course of treatment, i.e. wanting Neurontin or Morphine instead of the
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medications that Plaintiff was already taking. (Id. at 17–18.) Defendants explain that by

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the time Plaintiff met with Nurse Busalacchi, Plaintiff was already on anti-seizure and pain

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medications.9 (Id. at 18.) Defendants claim that Nurse Busalacchi acted appropriately in

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increasing Plaintiff’s Elavil dosage, checking Plaintiff’s Dilantin blood level, and refusing

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to prescribe Neurontin or Morphine. (Id.)

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Additionally, Defendants state that there is no evidence of harm and that there is no

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evidence that Plaintiff would have had any better outcomes if Dr. Sedighi would have done

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anything differently. (Id.) Defendants state that there is no indication that Plaintiff’s fall

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on March 24, 2015 was due to a seizure, since they claim that doctors have already

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expressed doubt as to the veracity of Plaintiff’s seizures and that the Plaintiff took Elavil10

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prior to the fall. (Id. at 18.) Defendants state that Plaintiff cannot meet his burden in

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showing that Dr. Sedighi or Nurse Busalacchi violated a clearly established constitutional

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right and therefore, Qualified Immunity bars Plaintiff’s claims against them. (Id. at 21.)

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D. Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment

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In his Opposition, Plaintiff alleges that Dr. Sedighi was deliberately indifferent to

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his serious medical needs for restarting Elavil and not prescribing seizure medication on

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March 24, 2015. (ECF No. 82 at 3–4.) Plaintiff alleges that Dr. Sedighi was deliberately

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indifferent to his severe pain by prescribing a pain medication that was ineffective and

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caused severe side effects. (Id. at 6, 10, 13.) At the March 24, 2015 consultation, Plaintiff

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claims that he told Dr. Sedighi that he had severe pain and that Elavil makes him drowsy,

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dizzy, and have suicidal thoughts. (Id. at 3.) Plaintiff states that Dr. Sedighi was still

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going to give him the medication because “he has to give [the Plaintiff] something even if

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[he] refuse such medication.” (Id.) Plaintiff questions Dr. Sedighi’s decision to restart

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Dr. Sedighi restarted Plaintiff’s pain medication (Elavil) on March 24, 2015 and emergency room
physicians restarted Plaintiff’s seizure medication (Dilantin) on March 25, 2015. (ECF No. 80 at 18.)

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Defendants state that Elavil is generally prescribed at bedtime due to its sedating effects, leading to
the inference that Plaintiff’s fall was due to Elavil instead of a seizure. (ECF No. 80 at 19.)

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his Elavil prescription because he allegedly told Dr. Sedighi at the March 5, 2015

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consultation that Elavil caused severe side effects and was also ordered by “psychiatry to

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take [him] off of [Elavil] because it gives [him] depression leading to suicidal thoughts

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and attempts.” (Id. at 3–5.) Plaintiff claims that Dr. Sedighi knew that Elavil had been

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discontinued multiple times, with the most recent time being March 5, 2015 for allegedly

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causing suicidal thoughts. (Id.) Plaintiff told Dr. Sedighi that for the past year he had

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been making complaints to doctors that Elavil and Keppra gave him suicidal thoughts, but

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they still continued to give him the medication. (Id. at 6 n.1.)

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Plaintiff also claims that Dr. Sedighi was deliberately indifferent for not prescribing

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any seizure medication on March 24, 2015. (Id. at 4.) Plaintiff alleges that Dr. Sedighi

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said that he believes that Plaintiff’s seizures happen, but was not going to just give any

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medication. (Id. at 4.) Plaintiff claims that Dr. Sedighi “decide[d] to leave [him] without

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seizure medication, supposedly for observation, when actually what [Dr. Sedighi] did was

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take [him] off seizure med without no expert telling [Dr. Sedighi] to do this.” (Id. at 7.)

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Plaintiff argues that his seizures have been documented since 2011 and that it was

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unreasonable for Dr. Sedighi to leave him without any medication for his seizures. (Id. at

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8–10.) Plaintiff claims that from his personal knowledge, that taking a single dose of

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seizure medication would have prevented the alleged seizure that occurred on March 24,

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2015. (Id. at 15.)

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Plaintiff claims that he was left with no seizure medication despite telling Dr.

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Sedighi that “Gabapentin was the Most effective without side-effects To eliminate [his]

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partial seizures, and reduce [his] nerve pain and Grammal seizures.” (Id. at 4.) Plaintiff

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claims that Dr. Sedighi was deliberately indifferent for not prescribing known effective

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medication to his pain and seizures, Gabapentin, or for not prescribing other alternative

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medications that Plaintiff has not tried before. (Id. at 4, 6, 8, 10–11, 13.) Plaintiff claims

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that Dr. Sedighi knew Gabapentin was effective and supports this argument by showing

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that he was prescribed Gabapentin in 2011 and in 2016. (Id. at 11.)

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Plaintiff alleges that Nurse Busalacchi was deliberately indifferent on April 13, 2015
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for continuing Plaintiff’s Dilantin prescription and for increasing Plaintiff’s Elavil

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prescription from 10 mg to 25 mg. (Id. at 14, 19.) Plaintiff claims that Nurse Busalacchi

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knew that Dilantin was ineffective for his seizures, deprived Plaintiff of life’s necessities,

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and puts his health and life at risk. (Id.) Plaintiff states that he told Nurse Busalacchi that

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Gabapentin was effective but was willing to take other medications, yet Nurse Busalacchi

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allegedly “denie[d] [Plaintiff’s requests] on non-medical reasons for which [he] described

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on complaint.” (Id.) Plaintiff also claims that Nurse Busalacchi still raised Plaintiff’s

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Elavil dosage despite telling her that Elavil was discontinued on March 5, 2015 for suicidal

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side effects and was erroneously put back on it on March 24, 2015. (Id.)

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Regarding Qualified Immunity, Plaintiff states that Dr. Sedighi was on notice that

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Plaintiff’s seizures were a serious medical condition. (Id. at 18.) Plaintiff claims that MRI

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and EEG exams coming back normal do not conclusively indicate that Plaintiff does not

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suffer from a seizure disorder. (Id.) Plaintiff states that “ceasing and not giving [him] any

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medication” is deliberate indifference and thus Dr. Sedighi is not subject to Qualified

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Immunity. (Id. at 18.) Additionally, Plaintiff states that Nurse Busalacchi is not subject to

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Qualified Immunity because she was on notice that Elavil at 75 mg was ineffective and

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caused severe side effects such as suicidal thoughts, yet still decided to raise the dosage

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from 10 mg to 25 mg. (Id. at 19.)

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E. Defendants’ Reply to Plaintiff’s Opposition

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Defendants’ claim that Plaintiff has not met his initial burden in demonstrating that

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there is a genuine issue of material fact as to whether Dr. Sedighi or Nurse Busalacchi were

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deliberately indifferent to his serious medical needs. (ECF No. 83 at 2–5.) Defendants

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argue that Plaintiff has not shown that Dr. Sedighi’s medical treatment was medically

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unacceptable, that Plaintiff’s new arguments do not demonstrate a triable issue of material

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fact, and that Plaintiff cannot show any evidence that supports the conclusion that Dr.

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Sedighi’s conduct caused any harm. (Id. at 3–4.) Defendants argue that Plaintiff has not

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laid any foundation to establish that he is qualified to give his opinion on whether Plaintiff

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would have suffered a seizure had Dr. Sedighi given seizure medication. (Id.) Defendants
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also state that there is no evidence establishing that Nurse Busalacchi’s treatment was

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medically unacceptable. (Id. at 5.) Defendants claim that Plaintiff’s dispute with Nurse

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Busalacchi only shows that the dispute is over the proper course of medication and is not

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deliberate indifference. (Id.) Finally, Defendants state that Plaintiff has not met his burden

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in showing that his rights were clearly established at the time of their alleged violation and

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Qualified Immunity therefore bars the suit. (Id. at 6.)

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F. Plaintiff’s Sur Reply

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Plaintiff claims that Dr. Sedighi did not provide medically appropriate treatment by

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providing known ineffective pain medication that had severe side effects, after Plaintiff

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told him that Gabapentin was effective and that he was open to any alternative medications.

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(ECF No. 85 at 2–3.) The injuries that Plaintiff suffered were the “pain [he] went through

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for many months,” anxiety, and “distress with depressive mood.” (Id.) Plaintiff states that

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it was unreasonable for Dr. Sedighi to not prescribe seizure medication based on other

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physicians’ clinical decisions, since Dr. Silva, Psychiatry, and Dr. Bahros only ordered to

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take Plaintiff off seizure medication for only seven days to “clean [Plaintiff’s] system of

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Trileptal.” (Id. at 3–4.) Even though he states that Dr. Silva’s order was reasonable to

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“clean [his] system” of Trileptal, Plaintiff claims it was unreasonable for Dr. Sedighi not

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to prescribe any seizure medication on the eleventh day for additional observation when

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no one told him to do so. (Id. at 4.) Plaintiff states that the neurologists that have seen

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Plaintiff (Dr. Malhorta and Dr. Straga) both did not recommend discontinuing seizure

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medications and would like to see what diagnosis Dr. Sedighi relied on. (Id. at 4–5.)

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As for Nurse Busalacchi, Plaintiff claims that she knew that Elavil and Dilantin were

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ineffective and caused severe side effects. (Id. at 7–8.) Plaintiff claims that Nurse

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Busalacchi could have switched to a more effective medication that did not have adverse

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side effects, like Gabapentin or something similar, but was deliberately indifferent for

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leaving Plaintiff on Dilantin and increasing Elavil. (Id. at 8–9.) Plaintiff claims that the

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harm that he suffered from Elavil was the pain as well as:

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(1) it deprived[d] [Plaintiff] sleep or at times or at times eat; (2) it cause[d
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him] to lose[sic] balance, caus[ing him] to fall due to neuropathy; (3) nerve
damage that goes from beck to left side of head, due to head trauma in 2010;
(4) low[er] back pain due to seizure fall in 2012 [. . . and] (5) chronic neck
and back pain due to seizure fall on 3-24-15.

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(Id. at 8.) As for Dilantin, Plaintiff claims to have suffered from falls due to uncontrolled

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seizures and medication side effects, pain from those falls, anxiety, inability to sleep, and

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depression. (Id. at 9.) Plaintiff argues that Dr. Sedighi is not subject to Qualified Immunity

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for impeding the course of treatment that was put in place by Dr. Straga and Dr. Malhorta.

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(Id.) Plaintiff argues that Nurse Busalacchi is not subject to Qualified Immunity for

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continuing the current medication with severe side effects and not prescribing new

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medication. (Id. at 10.)
G. Plaintiff’s Cross-Motion for Summary Judgment

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On June 3, 2020 the Court accepted Plaintiff’s motion and interpreted it as Plaintiff’s

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Cross-Motion for Summary Judgment. (ECF No. 87.) Plaintiff claims that there is no

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genuine issue of material fact and that summary judgment should be entered in his favor

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because Dr. Sedighi was deliberately indifferent for not prescribing seizure medication and

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not following the neurologists’ course of treatment. (Id. at 1, 3–4.) Plaintiff claims that

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Dr. Sedighi was also deliberately indifferent for prescribing Elavil even though Dr. Sedighi

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knew it was ineffective to treat his pain and gave symptoms such as anxiety, stress, inability

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to sleep, “frighten [and] depressive [moods] with Tendency of Suicidal Ideation.” (Id. at

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1, 4–5.) Plaintiff claims that there is no evidence or diagnosis that would have instructed

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Dr. Sedighi to not prescribe any seizure medication. (Id. at 3.)

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Additionally, Plaintiff claims that there is no genuine issue of material fact and that

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summary judgment should be entered in his favor as to Nurse Busalacchi because she was

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deliberately indifferent for increasing Elavil despite knowing that the medication was

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ineffective to his pain and gave side effects. (Id. at 2, 5.) Plaintiff claims that Nurse

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Busalacchi could have prescribed Gabapentin or medications that he has not tried before,

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but still prescribed Elavil against his will and knowing it has side effects. (Id. at 5–6.)

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Plaintiff claims that the harm he suffered was “all the physical pain [. . . ] [a]nd mental
12
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1

severeness [sic] symptoms” as well as being deprives of life’s necessities such as inability

2

to sleep because anxiety attacks and pain. (Id. at 6.)

3

H. Defendants’ Opposition to Plaintiff’s Cross-Motion for Summary Judgment

4

Defendants indicate that Plaintiff’s motion is untimely and did not seek leave to

5

amend the scheduling order, but also states that Plaintiff’s Cross-Motion for Summary

6

Judgment fails for substantive reasons. (ECF No. 90 at 2.) Defendants state that Plaintiff

7

has not raised a triable issue of material fact supporting his claims, where he did not provide

8

any evidence in support of his motion and relies entirely on evidence provided by the

9

Defendants. (Id.) Defendants state that Plaintiff’s own lay opinions do not conclusively

10

refute Dr. Feinberg’s declaration, thus not establishing that no reasonable trier of fact could

11

find in Dr. Sedighi’s favor. (Id. at 4.) Defendants point out that Plaintiff, in his TAC, only

12

argued that Dr. Sedighi did not provide any pain medication and did not raise the argument

13

regarding Dr. Sedighi restarting Elavil. (Id. at 6.) Even if considering the new argument,

14

Defendants state that Plaintiff has not shown that restarting Elavil was medically

15

inappropriate and ignores evidence indicating that Plaintiff showed interest in restarting

16

Elavil. (Id. at 6–7.)

17

Defendants state that Plaintiff has failed to meet his burden in showing that Nurse

18

Busalacchi was deliberately indifferent to his serious medical needs.

19

Defendants claim that it is not enough that Nurse Busalacchi “should have known” that her

20

conduct was creating a serious risk of harm, but Plaintiff actually has to prove that Nurse

21

Busalacchi did in fact know that she was creating a risk of harm and deliberately ignored

22

the risk. (Id. at 7.) Defendants state that they are entitled to Qualified Immunity since

23

Plaintiff has not met his burden or cited to any case law establishing that Defendants’

24

conduct amounted to a constitutional violation. (Id. at 8.)

25

(Id. at 7–8.)

I. Proffered Evidence

26

Plaintiff, to support his claims, submitted exhibits to his complaint and his

27

Opposition, as well as his statements in his Opposition. The Defendants submitted as

28
13
15-cv-02059-AJB-BGS

1

exhibits Plaintiff’s medical records and a Declaration of Dr. Feinberg to support their initial

2

burden of proof.

3

1. Both Parties’ Medical Exhibits

4

In chronological order, the Court summarizes the medical exhibits presented by both

5

parties as needed in order to address each issue or motion. Plaintiff provides his medical

6

records from the San Diego Sheriff’s Department dating from March 18, 2011 to April 20,

7

2011, which states Plaintiff’s medications and seizures that occurred within that time

8

period. (ECF No. 82 at 68–85.) Plaintiff’s Unit Health Record (“UHR”) shows that he

9

had been prescribed Dilantin, Elavil, Neurontin, and Keppra, among other medications on

10

May 11, 2011. (Id. at 47.) On August 9, 2011, Plaintiff was still taking Dilantin, Elavil

11

and Neurontin, among other medications. (ECF No. 70 at 26.) Plaintiff had a consultation

12

with a neurologist, Dr. Straga, on August 23, 2011, where Dr. Straga noted that Plaintiff

13

had recently arrived from San Diego County Jail taking Neurontin, Keppra and Dilantin,

14

and that Plaintiff reported he developed seizures after being hit in the head with a baseball

15

bat in Mexico in September 2010. (ECF No. 80-1 at 17–18.) Dr. Straga then tapered

16

Plaintiff off of Dilantin, continuing only Neurontin and Keppra. (ECF No. 82 at 25.)

17

On October 5, 2011, Dr. Straga followed up with Plaintiff, who noted that the MRI

18

of Plaintiff’s brain was normal and recommended continuing Keppra, gradually starting

19

Lamictal, and discontinuing Neurontin after two weeks. (ECF No. 80-1 at 20.) Plaintiff

20

was seen by Dr. Noonan, a Primary Care Provider (“PCP”) on October 14, 2011. (ECF

21

Nos. 70 at 27; 80-1 at 22.) Dr. Noonan indicated that Dr. Straga’s notes were unavailable,

22

that Plaintiff said that Dr. Straga had recommended a change in the Neurontin prescription,

23

and that Dr. Noonan planned to obtain Dr. Straga’s notes and order a change in Plaintiff’s

24

medication accordingly. (Id.) On October 17, 2011, Dr. Noonan signed a Medication

25

Reconciliation directing the pharmacy to stop Neurontin in two weeks and begin Lamictal.

26

(ECF No. 80-1 at 24.)

27

On December 15, 2011, Plaintiff had a PCP visit with Nurse Practitioner (“NP”)

28

Joshua Burgett, who noted that Plaintiff “agrees then refuses Keppra,” was “focused on
14
15-cv-02059-AJB-BGS

1

Neurontin.” (Id. at 26.) In August, September and December of 2012, Plaintiff filed

2

multiple “Patient/Inmate Health Care Appeal” Forms regarding his requests for stronger

3

pain medication and for a lower bunk assignment. (ECF No. 82 at 50–54.) On October

4

26, 2012, Plaintiff’s list of active medications indicated that he was on Keppra and Elavil,

5

among other medications. (ECF No. 70 at 24.) On December 10, 2012, Nurse Velardi

6

reviewed Plaintiff’s labs and x-rays, indicating that the exam was normal and that Plaintiff

7

had not been taking his medication, as his seizure drug levels were low. (ECF No. 80-1 at

8

30.)

9

On March 13, 2014, Plaintiff’s Medical Administration Record indicated that

10

Plaintiff was taking 25 mg of Elavil. (Id. at 43.) On July 22, 2014, Dr. Chau reviewed

11

Plaintiff’s chronic medical conditions and recommended increasing the dosage of Keppra.

12

(Id. at 48–49.) Plaintiff denied any worsening of his back pain and requested to stay at the

13

same dose of Keppra. (Id.) Dr. Chau questioned “significant symptom presentations” as

14

to Plaintiff’s seizures and continued Plaintiff’s current Elavil and Keppra dosages. (Id. at

15

49.) At Dr. Chau’s August 7, 2014 medical consultation, Plaintiff only complained about

16

Keppra not controlling his seizures and requested Gabapentin. (Id. at 51–52.) Dr. Chau

17

indicated that Plaintiff’s neurological and physical exams were unremarkable and that

18

Plaintiff “denied any significant side effects so far.” (Id.) Dr. Chau increased Keppra’s

19

dosage and advised Plaintiff to go to the TTA11 for blood tests after any seizure to allow

20

for confirmation of his seizure disorder. (Id.) Dr Chau indicated that Plaintiff’s seizure

21

condition was “undocumented” and “questionable.” (Id.) Plaintiff was taking 50 mg of

22

Elavil for chronic pain at the time of this consultation. (Id.)
On August 22, 2014, Dr. Chau saw Plaintiff in response to a 602 appeal.12 (Id. at

23
24
25
26
27

11

Dr. Feinberg states that TTA is available in each CDCR prison and functions as an urgent care setting
for inmates. (ECF No. 80-1 at 6 n.7.)
“602” relates to the appeal form number, which is the process for which an inmate can initiate a
grievance. (ECF No. 80-1 at 7 n.8.)
12

28

15
15-cv-02059-AJB-BGS

1

54–55.) Dr. Chau noted that Plaintiff was taking 50 mg of Elavil and made no complaints.

2

(Id.) Dr. Chau’s full physical exam came back unremarkable and noted that Plaintiff had

3

not reported to the TTA after having alleged seizures and denied any side effects of Keppra.

4

(Id.) Dr. Chau noted that there is questionable adherence to medication and that he referred

5

Plaintiff to the neurologist for evaluation. (Id.) On October 3, 2014, Dr. Chau noted

6

Plaintiff’s complaint of chronic pain, even though Dr. Chau noted he was “very vague and

7

nonspecific” about his pain. (Id. at 57–58.) Dr. Chau indicated that Plaintiff was not

8

compliant with seizure and pain medication, and that further seizure medication may not

9

be appropriate. (Id.) Plaintiff reported no seizures since the last visit and acknowledged

10

poor compliance with his seizure and pain medications. (Id. at 58.) Dr. Chau continued

11

Plaintiff’s prescription of Keppra, Tylenol, and the current “low-dose” of Elavil. (Id. at

12

58.)

13

On November 4, 2014, Plaintiff had a Telemedicine Neurology Initial Consultation

14

with Dr. Malhotra, a neurologist, who noted he thoroughly reviewed Plaintiff’s medical

15

records and took a history from him. (Id. at 60–62.) Dr. Malhotra indicated that there is

16

no objective support or convincing eyewitness accounts for Plaintiff’s presumed seizures

17

and indicated that Plaintiff “wants” Neurontin. (Id.) At Dr. Chau’s November 18, 2014

18

medical consultation with Plaintiff, Dr. Chau indicated that there was “no objective

19

supportive convincing witnessed accounts” of Plaintiff alleged seizure. (Id. at 64–65.) Dr.

20

Chau continued Plaintiff on Keppra and, at the Plaintiff’s request, increased the dosage of

21

Elavil to 75 mg until the neurologist evaluates whether Plaintiff has a seizure disorder.

22

(Id.) Dr. Chau noted that when they confronted Plaintiff regarding his non-compliance

23

with his medications, “[Plaintiff] had no response.” (Id. at 64.) Plaintiff also filed his

24

“Patient/Inmate Health Care Appeal” Form on November 18, 2014, where Plaintiff claimed

25

that Keppra was ineffective at treating his seizures and that the only medication that worked

26

for him was Gabapentin. (ECF No. 82 at 55–56.) Plaintiff also indicated that Dr. Chau

27

did not need to refer him to a Neurologist. (Id.) Plaintiff then filed additional appeals to

28
16
15-cv-02059-AJB-BGS

1

the First and Second Level responses regarding the same issues. (Id. at 57 [March 11, 2015

2

Appeal]; 58 [December 18, 2014 Appeal and January 29, 2015 Appeal].)

3

At Dr. Malhotra’s January 5, 2015 consultation, Plaintiff alleged that he was sitting

4

on his bunk on December 20, 2014 and had a seizure, but did not notify staff at that time.

5

(ECF No. 80-1 at 67.) Plaintiff made no mention of any side effects from his seizure and

6

pain medication and with regards to the cause of Plaintiff’s fall, Dr. Malhotra stated

7

“Presumed [Seizure]??” (Id.) On February 25, 2015, Plaintiff had a consultation with

8

Nurse Paule. (ECF Nos. 70 at 23; 80-1 at 69.) Nurse Paule referred Plaintiff for a PCP

9

visit after reviewing Plaintiff’s Health Care Services Request Form, where Plaintiff

10

complained that Elavil was not helping with pain and causing dizziness. (Id.) Nurse Paule

11

counselled him on Elavil’s side effects and it appears that Plaintiff was continued on Elavil

12

while being referred to his PCP. (Id.)

13

On March 5, 2015, Plaintiff had a medical consultation with Dr. Sedighi. (ECF Nos.

14

70 at 39–40; 80-1 at 71–72.) In this medical consultation, Psychiatrist Dr. Gorney referred

15

Plaintiff for evaluation of Elavil’s and Keppra’s side effects with Dr. Sedighi, after Plaintiff

16

was admitted to a crisis bed on March 1, 2015.13 (Id.) Dr. Sedighi noted that Plaintiff

17

stated that he has been on Elavil for one and a half years, claimed it makes him drowsy,

18

depresses his mood further, and does not like these side effects. (Id.) At the time, Plaintiff

19

was taking 75 mg of Elavil at bedtime. (Id.) In the “Assessment / Recommendations”

20

section, Dr. Sedighi noted Plaintiff’s complaints about his stated side effects and

21

counselled Plaintiff. (Id.) Dr. Sedighi then wrote, “I will discontinue Amitriptyline and

22

Keppra and I will start the patient on Trileptal [. . .] that can be used for seizures and chronic

23

pain.”14 (Id.)

24
25
26
27

13

Of note, in contradiction to his TAC allegation, the psychiatrist did not take Plaintiff off Elavil and
Keppra due to suicidal side effects, rather referred him to Dr. Sedighi to evaluate the Plaintiff’s
complaint of side effects of Elavil and Keppra. (See ECF Nos. 70 at 8; 80-1 at 71.)
A Medication Reconciliation, dated on March 5, 2015, indicates that Dr. Sedighi stopped Elavil’s
prescription and prescribed Trileptal. (ECF No. 70 at 42.)
14

28

17
15-cv-02059-AJB-BGS

1

On March 13, 2015, Nurse Boucher took Plaintiff off of Trileptal because it caused

2

a rash, and contacted the physician to discuss discontinuation of any other medications.

3

(ECF No. 80-1 at 75.) On that same date, Plaintiff was interviewed by Dr. Bahro. (ECF

4

Nos. 70 at 43; 80-1 at 78.) Plaintiff told Dr. Bahro that he was taken off of Keppra because

5

it was causing side effects, including “getting more depressed.”15 (Id.) Dr. Bahro consulted

6

with Nurse Boucher, the Chief of Psychiatry, and the Chief of Mental Health, whom all

7

agreed upon the protocol in not prescribing any seizure medication. (Id.) The reason for

8

this protocol was due to the information received from the Chief of Psychiatry that medical

9

records (including Neuro) indicated there was a question to the veracity of Plaintiff’s

10

alleged seizures and decided to keep Plaintiff off seizure medications “for the time being.”

11

(Id.) Plaintiff’s concern during this consultation was having seizures since he would not

12

be on any seizure medications for the next seven days. (Id.)

13

Plaintiff submitted a Heath Care Request Form on March 17, 2015, indicating that

14

he had a seizure the previous night and was in severe pain. (ECF No. 82 at 101.) Plaintiff

15

was not on any pain medication and stated that he was having suicidal thoughts due to the

16

pain. (Id.) Plaintiff indicates that he needs to see a doctor to be prescribed new seizure

17

medication and specifically only requested pain medication, stating “Am in a 10 scale of

18

pain (severe pain)” and “Am having suicidal thoughts due to this pain.” (See id.) On

19

March 18, 2015, NP Gysler met with Plaintiff for a medical evaluation prior to a mental

20

health crisis bed transfer. (ECF No. 80-1 at 80.) NP Gysler indicated that Plaintiff was on

21

a temporary medical hold until April 28, 2015 and “must not leave RJD.” (Id.) NP Gysler

22

wrote that Plaintiff denied any complaints at that time. (Id.) On March 19, 2015 Plaintiff

23

had a consultation with Nurse Gavin because of headache pain. (Id. at 82–83.) Plaintiff

24

complained about having seizures and chronic pain since Gabapentin was discontinued.

25
26
27
15

28

During this consultation Plaintiff made no similar complaints about Elavil as having caused him to
feel more depressed. (ECF No. 80-1 at 78.)
18
15-cv-02059-AJB-BGS

1

(Id.) Nurse Gavin prescribed Acetaminophen and advised Plaintiff to submit a request to

2

restart Gabapentin. (Id. at 83.)

3

On March 24, 2015, Dr. Sedighi saw Plaintiff to address his chronic headache. (Id.

4

at 85.) At this consultation, Plaintiff stated he was having constant and sometimes severe

5

pain, while requesting Morphine and Gabapentin. (Id.) Dr. Sedighi recounted Plaintiff’s

6

medical history and summarized Plaintiff’s complaints as chronic headache and chronic

7

lower back pain, along with a questionable history of seizures. (Id. at 85–86.) Dr. Sedighi

8

found Plaintiff’s physical examination unremarkable and did not show any neurological

9

deficits. (Id.) Dr. Sedighi noted that Plaintiff was not compliant with his pain medication

10

and was only taking Naproxen and Tylenol. (Id.) Plaintiff was given counselling about

11

taking his pain medication and “showed interest in restarting amitriptyline.” (Id.) Dr.

12

Sedighi then restarted Plaintiff on 10 mg of Elavil at bedtime for chronic pain “that can

13

help his chronic headache and chronic low back pain.” (Id.) Dr. Sedighi indicated that

14

there was no indication for narcotic pain medication and he would monitor Plaintiff for

15

seizure activity before restarting any seizure medications. (Id. at 85–87.)

16

After Plaintiff’s meeting with Dr. Sedighi on March 24, 2015, Plaintiff had

17

“subjective fall unwitnessed.” (Id. at 89.) At 21:40, Dr. Sedighi saw Plaintiff, who was in

18

a crisis bed. (Id. at 91.) Plaintiff told Dr. Sedighi that he blacked out and fell and hit the

19

back of his neck. (Id.) Dr. Sedighi ordered Plaintiff be sent to the ER for possible cervical,

20

spine and head trauma. (Id.) Plaintiff was then taken to Sharp Chula Vista Medical Center

21

and eventually discharged.16 (Id. at 93–101.) Staff at the hospital noted that there was no

22

evidence of a seizure and restarted Dilantin. (Id. at 93–94.) On March 25, 2015 at 4:30

23
24
25
26
27
28

Sharp’s medical records reveal Plaintiff made no complaint about Elavil causing suicide thoughts or
depressive moods. (ECF No. 80-1 at 93–101.) “[Plaintiff] is complaining of neck pain and headache.
He said he took Elavil about a half an hour prior to this [seizure] happening. [. . .] [Plaintiff] was brought
here by the medic. No other associated symptoms.” (Id. at 95.)
16

19
15-cv-02059-AJB-BGS

1

a.m., Dr. Sedighi noted, as an addendum, that Plaintiff returned from the ER and had a

2

negative workup. (Id. at 91.)

3

On March 25, 2015, Dr. Brown, PsyD, consulted with Plaintiff, where Plaintiff

4

reported that Dr. Sedighi put him back on Elavil the day before and got dizzy/blacked out

5

after taking it. (Id. at 103.) Dr. Brown stated that Plaintiff expressed frustration with not

6

being prescribed pain or seizure medication and appeared to be “accentuating his physical

7

symptoms (weakness, shaking, stiffness), possibly to prove that the event was a seizure.”

8

(Id.) Dr. Brown’s assessment was that Plaintiff demonstrated progress regarding his

9

depression and suicidal thoughts, and that Mental Health will continue to consult with

10

medical regarding his physical symptoms. (Id.) Dr. Brown did note that Plaintiff was not

11

being prescribed seizure medication at the moment because Plaintiff has never had a

12

witnessed seizure and has met with neurology twice without being given a seizure disorder

13

diagnosis. (Id.) Dr. Brown’s notes indicated that Medical is trying to confirm the diagnosis

14

before prescribing additional medications and the treatment team opted to ignore Plaintiff’s

15

attention-seeking behaviors to see if they cease. (Id.) Also dated March 25, 2015 was the

16

sixth page of Plaintiff’s Mental Health Treatment Plan that indicates that Dr. Sedighi

17

ordered a “1:1” sitter to monitor for seizure activity and a wheel chair for moving out of

18

the cell. (ECF No. 70 at 45.)

19

Plaintiff provides a partial Suicide Risk Evaluation taken of Plaintiff on April 1,

20

2015 by Dr. Brown as an exhibit, which appears to be a follow-up report regarding whether

21

Plaintiff should be discharged from “MHCB.” (Id. at 44.) Dr. Brown noted that Plaintiff

22

was compliant with these medications, including Dilantin and Elavil, and showed

23

substantial improvement. (Id.) Plaintiff denied being suicidal, having current depression,

24

and made no complaints of any side effects concerning any of these medications. (Id.)

25
26
27
28
20
15-cv-02059-AJB-BGS

1

Plaintiff signed and submitted a 602 Appeal Form on March 29, 2015.17 (See id. at

2

34.) On April 13, 2015, Nurse Busalacchi met with Plaintiff regarding his appeal to the

3

denial of his 602 Form. (ECF No. 80-1 at 105.) Plaintiff was currently on Dilantin and

4

reported that 10 mg of Elavil was not effective for his pain. (Id.) Plaintiff wanted

5

Gabapentin and Morphine for his seizures and neuropathic pain. (Id.) Nurse Busalacchi

6

noted that Plaintiff was currently on 10 mg of Elavil for pain and that Plaintiff reported

7

having suicidal ideation when on Elavil at a high dose. (Id.) Nurse Busalacchi noted that

8

Plaintiff was not compliant with Elavil at his last PCP visit. (Id.) During the consultation,

9

Plaintiff confirmed that he was fine and denied having suicidal ideations. (Id.) Further,

10

Plaintiff told Nurse Busalacchi that he placed the appeal because he is bored. (Id.) Nurse

11

Busalacchi indicated that Plaintiff would not be placed on Gabapentin or Morphine at this

12

time, increased Elavil to 25 mg, continued Dilantin, checked Plaintiff’s Dilantin blood

13

level, and referred Plaintiff to mental health for pain management.

14

understood and agreed with the plan. (Id.)

(Id.)

Plaintiff

15

On April 29, 2015, Plaintiff had a medical progress report conducted by Dr. Freyne.

16

(Id. at 108–109.) Plaintiff indicated that he is fully compliant with his medications, two

17

being Elavil and Dilantin, and reported that he was doing well.18 (Id.) Plaintiff also

18

indicated he was compliant and pleased with the psychiatric medications. (Id.) Dr. Freyne

19

indicated that Plaintiff’s medical issues were stable and that Plaintiff agreed with the

20

treatment plan. (Id.) On April 30, 2015, Plaintiff signed and submitted his Health Care

21

Services Request Form, where Plaintiff complained that he was in pain and indicated that

22
23
Plaintiff’s 602 Form centered around a seizure he suffered which caused him to hit his head on the
side of metal bed. (ECF No. 70 at 34.) Plaintiff blames that seizure on doctors from March 11–17, 2015
for taking him off his seizure and pain medications. (Id.) Plaintiff alleges that the doctors were
motivated to take him off his medications because “[t]hey wanted to witness or see a seizure.” (Id.) In
his appeal, Plaintiff wanted the doctors to prescribe him Gabapentin or Morphine for his pain. (Id.)
Plaintiff also attached the First, Second, and Director Level Decisions. (Id. at 33, 36, 37.)
17

24
25
26
27

18

28

Dr. Freyne noted that plaintiff claimed to not have had any seizures in greater than three months.
(ECF No. 80-1 at 108–09.)
21
15-cv-02059-AJB-BGS

1

he was on Elavil, Tylenol, and Neuproxin to control his pain. (ECF No. 82 at 100.)

2

Plaintiff stated that the pain was so severe and that he has been suicidal. (Id.) The Health

3

Care Services Request Form indicates that a nurse saw Plaintiff on May 1, 2015 and that

4

Plaintiff stated that his “[p]ain gets so bad sometimes that I felt suicidal, but I’m not suicidal

5

now.” (Id.) The nurse reported that Plaintiff stated, “Elavil is not helping me, even after

6

increase.” (Id.) Plaintiff wanted to discuss pain options and indicated that he has been

7

denied the use of alternative pain medications in the past. (Id.) Based on Plaintiff’s

8

complaints about pain, the nurse referred him back to his PCP. (Id.)

9

On June 1, 2015, Nurse Bustamante treated Plaintiff in response to his Health Care

10

Services Request Form, where Plaintiff requested stronger pain medication and medicated

11

soap, and indicated that he is unable to sleep due to his pain. (ECF No. 82 at 99.) Dr.

12

Goyal’s PCP Progress Note dated July 9, 2015 indicated that Plaintiff requested

13

Gabapentin for his nightly headaches. (ECF No. 80-1 at 111.) Dr. Goyal reported that

14

Plaintiff’s neuropathy pain is questionable in that he found inconsistencies with Plaintiff’s

15

history and objective findings that Dr. Goyal would consider “factitious disorder as high

16

on differential.”19 (Id.) Dr. Goyal also indicated that Plaintiff is vague about his seizures

17

and is asking for Gabapentin, while Plaintiff stated that Gabapentin numbs him up to allow

18

him to do twice the number of push-ups he normally does. (Id.)

19

2. Dr. Bennett Feinberg’s Declaration

20

Defendants also attached Dr. Bennett Feinberg’s declaration, who states he is board

21

certified in internal medicine with more than 20 years of experience in the field.

22

(Declaration of Dr. Bennett Feinberg ¶ 2, ECF No. 80-1 at 1–15.) Dr. Feinberg is familiar

23

with the policies and procedures regarding access to medical care within the prisons and

24

facilities of the CDCR, having worked as a full-time primary care physician at Folsom

25

State Prison and Mule Creek State Prison from January 2010 through January 2017. (Id.

26
27
19

28

According to Defendants, this is a mental disorder in which a person acts as if he has a physical or
mental illness when he has consciously created the symptoms. (ECF No. 80-1 at 13 n.11.)
22
15-cv-02059-AJB-BGS

1

¶¶ 4–5.) Dr. Feinberg reviewed Plaintiff’s TAC and UHR, which documents the medical

2

care he received. (Id. ¶ 6.)

3

Based on this information, Dr. Feinberg opines it was medically appropriate for Dr.

4

Sedighi to change Plaintiff’s medication to Trileptal on Mach 5, 2015, in response to

5

Plaintiff’s concerns about Elavil and Keppra. (Id. ¶ 40.) Dr. Feinberg also states that it

6

was medically appropriate for Dr. Sedighi to restart plaintiff on Elavil and not prescribe

7

any seizure medication on March 24, 2015. (Id.) Dr. Fienberg indicates that Elavil was a

8

clinically appropriate pain medication for the type of pain that Plaintiff was experiencing.

9

(Id.) Dr. Feinberg also indicated that it was appropriate for Dr. Sedighi to observe Plaintiff

10

before restarting seizure medications since Plaintiff’s medical history and other physicians

11

have supported the decision to observe, with nothing happening on March 24, 2015 to

12

justify changing the treatment plan. (Id.) Dr. Feinberg states that Plaintiff’s seizures have

13

been unwitnessed despite their claimed frequency, and no tests at the time support

14

Plaintiff’s claim for a seizure disorder or brain trauma. (Id.) Dr. Feinberg states that it

15

would have been medically inappropriate for Dr. Sedighi to have prescribed Gabapentin

16

on March 24, 2015, especially for a medication with a known potential for abuse. (Id. ¶¶

17

7–8, 41.) Dr. Feinberg also states that it was medically appropriate for Nurse Busalacchi

18

to decline to prescribe Gabapentin and Morphine on April 13, 2015. (Id. ¶ 42.) Dr.

19

Feinberg believes that using her medical judgment and discretion, there was no indication

20

to Nurse Busalacchi that a change in medication was necessary or appropriate. (Id.)

21

Finally, Dr. Feinberg also notes that there is no support within the medical records

22

that show that Plaintiff suffered from any adverse outcome from being off seizure

23

medication from March 13–24, 2015, nor from not receiving Gabapentin. (Id. ¶ 43.) Dr.

24

Feinberg states that Plaintiff’s descriptions of his seizures do not suggest that he is having

25

the types of seizures that would cause someone to fall. (Id.) Dr. Feinberg states that

26

Plaintiff’s descriptions are similar to absence seizures, which do not cause falls. (Id.) Dr.

27

Feinberg states that Plaintiff reported falling thirty minutes after taking Elavil, which is a

28

medication that is prescribed at bedtime due to its known sedating effects. (Id.)
23
15-cv-02059-AJB-BGS

1
2

J. Legal Standards
1. Motion for Summary Judgment

3

Summary judgment is appropriate where a party can show that, as to any claim or

4

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

5

judgment as a matter of law.” Fed. R. Civ. P. 56(a). Federal Rule of Civil Procedure 56

6

empowers the Court to enter summary judgment on factually unsupported claims or

7

defenses, and thereby “secure the just, speedy and inexpensive determination of every

8

action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). The moving party bears the

9

initial burden of demonstrating the absence of any genuine issues of material fact. Celotex

10

Corp., 477 U.S. at 323. The moving party can satisfy this burden by demonstrating that

11

the nonmoving party failed to make a showing sufficient to establish an element of his or

12

her claim on which that party will bear the burden of proof at trial. Id. at 322–23. The

13

moving party can also satisfy this burden by showing that particular parts of materials in

14

the record “do not establish the absence or presence of a genuine dispute, or that an adverse

15

party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B).

16

If the moving party fails to bear the initial burden, summary judgment must be denied and

17

the court need not consider the nonmoving party’s evidence. Adickes v. S.H. Kress & Co.,

18

398 U.S. 144, 159–60 (1970).

19

If the moving party has carried its burden under Rule 56(c), the burden shifts to the

20

nonmoving party who “must do more than simply show that there is some metaphysical

21

doubt as to the material facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting

22

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)). The

23

nonmoving party may not rely on allegations in the complaint, but “must come forward

24

with specific facts showing that there is a genuine issue for trial.” Matsushita, 475 U.S. at

25

587 (emphasis in original) (internal citation omitted). “By its very terms, this standard

26

provides that the mere existence of some alleged factual dispute between the parties will

27

not defeat an otherwise properly supported motion for summary judgment; the requirement

28

is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477
24
15-cv-02059-AJB-BGS

1

U.S. 242, 247–48 (1986) (emphasis in original). “An issue of material fact is genuine ‘if

2

there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving

3

party.’” Thomas v. Ponder,611 F.3d 1144, 1150 (9th Cir. 2010) (quoting Long v. Cty. of

4

Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006)). If the nonmoving party fails to make

5

a sufficient showing of an element of its case, the moving party is entitled to judgment as

6

a matter of law. Celotex, 477 U.S. at 325.

7

At summary judgment, it is not the Court’s function “to weigh the evidence and

8

determine the truth of the matter but to determine whether there is a genuine issue for trial.”

9

Anderson, 477 U.S. at 249. Inferences drawn from the underlying facts must be viewed in

10

the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 588. Each party’s

11

position as to whether a fact is disputed or undisputed must be supported by: (1) citation to

12

particular parts of materials in the record, including but not limited to depositions,

13

documents, declarations, or discovery; or (2) a showing that the materials cited do not

14

establish the presence or absence of a genuine dispute or that the opposing party cannot

15

produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1). The Court may

16

consider other materials in the record not cited to by the parties, but it is not required to do

17

so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026,

18

1031 (9th Cir. 2001). If a party supports its motion by declaration, the declaration must set

19

out facts that would be admissible in evidence and show that the affiant or declarant is

20

competent to testify on the matters stated. Fed. R. Civ. P. 56(c)(4).

21

A cross-motion for summary judgment requires the court to apply the same standard

22

and rule on each motion independently. Creech v. N.D.T. Indus., Inc., 815 F. Supp. 165,

23

166–67 (D.S.C. 1993). When both parties have moved for summary judgment, “[t]he

24

granting of one motion does not necessarily warrant the denial of the other motion, unless

25

the parties base their motions on the same legal theories and same set of material facts.”

26

Stewart v. Dollar Fed. Sav. & Loan Ass’n, 523 F. Supp. 218, 220 (S.D. Ohio 1981) (citing

27

Schlytter v. Baker, 580 F.2d 848, 849 (5th Cir. 1978)).

28
25
15-cv-02059-AJB-BGS

1

The factual allegations of a pro se inmate must be held “to less stringent standards

2

than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).

3

Accordingly, in a civil rights case, the Court must construe the pleadings of a pro se

4

plaintiff liberally and afford him the benefit of any doubt. Garmon v. Cty. of Los Angeles,

5

828 F.3d 837, 846 (9th Cir. 2016); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

6

“This rule is particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d

7

1258, 1261 (9th Cir. 1992). However, despite the liberal interpretation a court must give

8

to pro se pleadings, it cannot provide “essential elements of the claim that were not initially

9

pled.” Ivey v. Bd. Of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

10

“Vague and conclusory allegations of official participation in civil rights violations are not

11

sufficient to withstand a motion to dismiss.” Id. Even a pro se plaintiff must specify “with

12

at least some degree of particularity overt acts which defendants engaged in that support

13

the plaintiff’s claim.” Jones v. Cmty. Redevelopment Agency of City of Los Angeles, 733

14

F.2d 646, 649 (9th Cir. 1984).

15

The liberal standard applied to pro se plaintiffs does not relieve a plaintiff of his duty

16

to meet the requirements necessary to defeat a motion for summary judgment. Veloz v.

17

New York, 339 F.Supp.2d 505, 513 (S.D.N.Y. 2004). Ordinary pro se litigants, like other

18

litigants, must comply strictly with the summary judgment rules. Thomas, 611 F.3d at

19

1150. Pro se inmates are, however, expressly exempted from strict compliance with the

20

summary judgment rules. Id. Courts should “construe liberally motion papers and

21

pleadings filed by pro se inmates and should avoid applying summary judgment rules

22

strictly.” Id. In addition, the Court may consider as evidence all contentions “offered [by

23

a plaintiff] in motions and pleadings, where such contentions are based on personal

24

knowledge and set forth facts that would be admissible in evidence, and where [the

25

plaintiff] attested under penalty of perjury that the contents of the motions or pleadings are

26

true and correct.” Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). This approach

27

“exempts pro se inmates from strict compliance with the summary judgment rules, but it

28
26
15-cv-02059-AJB-BGS

1

does not exempt them from all compliance.” Soto v. Sweetman, 882 F.3d 865, 872 (9th

2

Cir. 2018) (citing Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013)).

3

2. Applicable Law

4

The Eighth Amendment prohibits the imposition of cruel and unusual punishment

5

and “embodies broad and idealistic concepts of dignity, civilized standards, and human

6

decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976) (citation and internal quotations

7

omitted).

8

deliberately indifferent to a prisoner’s serious medical needs. Id. at 104. To maintain a

9

claim of deliberate indifference based on medical care in prison, a plaintiff must establish

10

two requirements, one objective and one subjective. See Farmer v. Brennan, 511 U.S. 825,

11

834 (1994). First, a plaintiff must “show a serious medical need by demonstrating that

12

failure to treat a prisoner’s condition could result in further significant injury or the

13

unnecessary and wanton infliction of pain. Second, the plaintiff must show the defendants’

14

response to the need was deliberately indifferent.” Wilhelm v. Rotman, 680 F.3d 1113,

15

1122 (9th Cir. 2012) (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal

16

quotation marks and citation omitted)).

A violation of the Eighth Amendment occurs when prison officials are

17

As to the first requirement, “[a] medical need is serious if failure to treat it will result

18

in significant injury or the unnecessary and wanton infliction of pain.” Peralta v. Dillard,

19

744 F.3d 1076, 1081–82 (2014) (en banc) (internal quotation marks and citations omitted).

20

The requisite state of mind is one of subjective recklessness, which entails more than

21

ordinary lack of due care. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012) (citation

22

and quotation marks omitted); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012).

23

For the second requirement, the prison official must act with “deliberate indifference

24

[. . .] only if the [prison official] knows of and disregards an excessive risk to inmate health

25

and safety.” Gibson v. Cty. of Washoe, Nevada, 290 F.3d 1175, 1187 (9th Cir. 2002)

26

(internal quotation marks omitted). Under this standard, the prison official must not only

27

“be aware of facts from which the inference could be drawn that a substantial risk of serious

28

harm exists,” but that person “must also draw the inference.” Farmer, 511 U.S. at 837. “If
27
15-cv-02059-AJB-BGS

1

a [prison official] should have been aware of the risk, but was not, then the [official] has

2

not violated the Eighth Amendment, no matter how severe the risk.” Gibson, 290 F.3d at

3

1188.

4

For deliberate indifference, an inmate must allege sufficient facts to indicate that the

5

prison official has a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834.

6

“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060

7

(9th Cir. 2004). This second requirement is “satisfied by showing (a) a purposeful act or

8

failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the

9

indifference.” Jett, 439 F.3d at 1096. Defendants’ acts/omissions must involve more than

10

an ordinary lack of due care. Snow, 681 F.3d at 985. Defendant’s conduct must be

11

“‘repugnant to the conscience of mankind’ or ‘incompatible with the evolving standards of

12

decency that mark the progress of a maturing society.’” Parks v. Blanchette, 144 F. Supp.

13

3d 282, 315 (D. Conn. 2015) (citing Estelle, 429 U.S. at 102). This “subjective approach”

14

focuses only “on what a defendant’s mental attitude actually was.” Farmer, 511 U.S. at

15

839.

16

To plead a claim involving alternative choices of medical treatment, a plaintiff must

17

establish that the treatment chosen was both “medically unacceptable under the

18

circumstances, and chosen in conscious disregard of an excessive risk to [the prisoner’s]

19

health.” Toguchi, 391 F.3d at 1058 (citation omitted); see also Thomas, 611 F.3d at 1150–

20

51 (“[T]he inmate must show that the prison officials had no ‘reasonable’ justification for

21

the deprivation, in spite of that risk.”). Simply showing that a course of treatment proves

22

to be ineffective, without showing that the medical professional’s conduct was medically

23

unacceptable under the circumstances and chosen in conscious disregard to Plaintiff’s

24

health, does not establish a claim for deliberate indifference. Nicholson v. Finander, No.

25

CV 12-9993-FMO-JEM, 2014 WL 1407828, at *9 (C.D. Cal. 2014) (citing Estelle, 429

26

U.S. at 105; Toguchi, 391 F.3d at 1058).

27

Eighth Amendment doctrine makes clear that “[a] difference of opinion between a

28

physician and the prisoner—or between medical professionals—concerning what medical
28
15-cv-02059-AJB-BGS

1

care is appropriate does not amount to deliberate indifference.” Snow, 681 F.3d at 987,

2

overruled in part on other grounds by Peralta, 744 F.3d at 1083; Toguchi, 391 F.3d at

3

1057, 1059–60. Further, inadvertent failure to provide adequate medical care, gross

4

negligence, medical malpractice, or a mere delay in medical care are all insufficient to

5

violate the Eighth Amendment. See Estelle, 429 U.S. at 105–07; Wilhelm, 680 F.3d at

6

1122; Toguchi, 391 F.3d at 1060; Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d

7

404, 407 (9th Cir. 1985) (per curiam).

8
9
10
11

DISCUSSION
I.

Defendants’ Motion for Summary Judgment (ECF No. 80)
A. Plaintiff’s Eighth Amendment Claim against Dr. Sedighi and Nurse
Busalacchi Regarding Elavil’s Suicidal Side Effects

12

Plaintiff alleges that Defendants Dr. Sedighi and Nurse Busalacchi acted with

13

deliberate indifference in violation of the Eighth Amendment. (ECF No. 70.) Defendants

14

move for entry of summary judgement against Plaintiff on these claims. (ECF No. 80.)

15

This Section addresses Plaintiff’s TAC allegations that Dr. Sedighi and Nurse Busalacchi

16

were deliberately indifferent for prescribing Elavil, which allegedly had a side effect that

17

caused suicidal thoughts and, in part, his alleged suicide attempt on March 1, 2015. (ECF

18

No. 70.) The Court addresses in turn serious medical need and deliberate indifference to

19

that need.

20

1. Objective Prong Analysis: Serious Medical Need

21

To establish an unconstitutional treatment of a medical condition, including a mental

22

health condition, a prisoner must show deliberate indifference to a “serious” medical need.

23

McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992). A “serious” medical need exists

24

if the failure to treat a prisoner’s condition could result in further significant injury or the

25

“unnecessary and wanton infliction of pain.” Id.

26

In his Opposition, Plaintiff states that “[a] serious medical condition is considered

27

when someone [tries] to commit suicide or has thoughts.” (ECF No. 82 at 19.) According

28

to Plaintiff, his suicidal thoughts, which are brought on by taking Elavil, are a serious
29
15-cv-02059-AJB-BGS

1

medical need. (ECF No. 70 at 8.) The Ninth Circuit in Conn v. City of Reno recognized

2

that a heightened risk of suicide or an attempted suicide is a serious medical need. 591

3

F.3d 1081, 1095 (9th Cir. 2010), cert. granted, judgment vacated sub nom. City of Reno,

4

Nev. v. Conn, 563 U.S. 915, (2011), and opinion reinstated, 658 F.3d 897 (9th Cir. 2011)

5

(citing Torraco v. Maloney, 923 F.2d 231, 235 & n. 4 (1st Cir. 1991)); Colburn v. Upper

6

Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991) (“A ‘particular vulnerability to suicide’

7

represents a ‘serious medical need[.]’”)); see also In Kamakeeaina v. City & Cty. of

8

Honolulu, No. CIV. 11-00770-JMS, 2014 WL 1691611, at *7 (D. Haw. Apr. 2014), aff’d

9

sub nom. Kamakeeaina v. Maalo, 680 F. App’x 631 (9th Cir. 2017) (citing to Conn, the

10

Court found that the evidence presented clearly satisfied the objective component of a

11

serious medical need, where witnesses told the officers when they arrived to the scene that

12

Plaintiff was “ready to commit suicide” and they heard him threaten to jump from the

13

balcony).

14

Plaintiff’s Exhibit B to his Opposition is a March 1, 2015 Admission Assessment

15

done on Plaintiff and signed by Nurse Guimbatan and Dr. Rodriguez. (ECF No. 82 at 26–

16

27.) In the “Comments” section of this initial intake form, the Nurse provides in pertinent

17

part that “[Plaintiff] is alert[, . . .] calm and cooperative with no current distress. He claims

18

he is still suicidal and depressed[. . . .] He plans to hang self but also states he cannot do it

19

in CTC[. . . .] He claims to have taken all his medications religiously. [Plaintiff] was

20

escorted to CTC-140 and was placed on suicide precautions.” (Id. at 26.)

21

Plaintiff’s medical records establish that Plaintiff suffers from mental disorders that

22

are the likely source of his suicidal ideations. During a medical visit with Plaintiff on

23

March 25, 2015, Dr. Brown listed Plaintiff’s diagnosed disorders under Axis I as:

24

“Adjustment Disorder with Mixed Anxiety and Depressed Mood,” “Depressive Disorder,”

25

and “Psychotic Disorder.” (ECF No. 80-1 at 103.) Dr. Brown’s assessment was that

26
27
28
30
15-cv-02059-AJB-BGS

1

“[Plaintiff] demonstrated progress regarding his depression and suicidal thoughts.”20 (Id.)

2

Further, a Mental Health Treatment Plan dated March 25, 2015 recommended that Plaintiff

3

would be ready for discharge when he no longer has suicidal ideations, his depression level

4

is at “4/10” or below, there is a safety plan for suicidal ideations, at least 3 coping skills for

5

suicidal ideations, and Plaintiff shows an increased ability to cope with his pain. (ECF No.

6

70 at 45.) The Mental Health Treatment Plan did note that ongoing suicidal ideation would

7

pose as a barrier for discharge. (Id.)

8

At the summary judgment stage, the Court does not make credibility determinations

9

or weigh conflicting evidence, while drawing all inferences in the light most favorable to

10

the nonmoving party to determine whether a genuine issue of material fact precludes entry

11

of judgment. Plaintiff at this stage has established the he suffers from a serious medical

12

condition of heightened suicide if left untreated.

13

2. Subjective Prong Analysis: Dr. Sedighi

14

For a claim for deliberate indifference, Plaintiff must show that Dr. Sedighi was

15

“aware of facts from which the inference could be drawn that a substantial risk of serious

16

harm exists,” and that he drew such inference. See Farmer, 511 U.S. at 837. Plaintiff must

17

then present sufficient evidence for a jury to reasonably infer that Dr. Sedighi’s course of

18

treatment was medically unacceptable under the circumstances, and that he chose this

19

course of treatment in conscious disregard of an excessive risk to Plaintiff’s health. See

20

Jackson, 90 F.3d at 332.

21

a. Aware of Substantial Risk of Serious Harm

22

The issue presented is whether Dr. Sedighi was aware of facts from which the

23

inference could be drawn that Elavil heightened Plaintiff’s risk of suicide and/or suicidal

24

thoughts, and that Dr. Sedighi drew such inference. See Farmer, 511 U.S. at 837. In his

25

TAC, Plaintiff states in pertinent part, “[h]appen that on March 1st 2015 I was back to

26
27
It appears from Dr. Brown’s diagnosis that Plaintiff’s suicidal thoughts and depression are conditions
related to his Axis I Disorders. (See ECF No. 80-1 at 103.)
20

28

31
15-cv-02059-AJB-BGS

1

suicidal infirmary. On March 5th 2015 medication (Elavil; Keppra) was taken off after

2

psychiatrist determined to be taken off due to suicidal side effects. Dr. Sedighi decided to

3

put me in [Trileptal] (pain med) to substitute Elavil[.]” (ECF No. 70 at 8.) In his

4

Opposition, Plaintiff asserts that a Psychiatrist Phan stopped Keppra and Elavil on March

5

1, 2015 because of the side effects of suicidal thoughts/attempts, and ordered medical to

6

give him an alternative. (ECF No. 82 at 5.) Plaintiff claims to have told Dr. Sedighi about

7

Elavil’s suicidal effects on March 5, 2015, the day that Dr. Sedighi prescribed Trileptal as

8

an alternative to Elavil and Keppra. (Id. at 5–6.) Plaintiff states that “[. . .] [he] did told

9

Dr. Sedighi on 3-5-15 that ‘[Elavil] and Keppra are giving [him] suicidal thoughts. [He]

10

told [Dr. Sedighi] that for the past year [he has] been saying this to Doctors but they

11

continue sustaining medication.’” (Id. at 6 n.1.)

12

The Court cannot make a credibility finding as to whether Plaintiff actually told Dr.

13

Sedighi that Elavil caused him to have suicidal thoughts on March 1, 2015, leading to his

14

attempt to commit suicide. However, the record supports a reasonable inference that Dr.

15

Sedighi was made aware of Plaintiff’s complaint regarding Elavil.

16

Dr. Sedighi knew that Plaintiff had been admitted to a crisis bed on March 1, 2015

17

for his psychiatric issues and suicide ideation. (ECF No. 80-1 at 71.) Psychiatrist Dr.

18

Gorney had referred the Plaintiff to Dr. Sedighi for an evaluation of the side effects of

19

Elavil and Keppra.21 (Id.) Dr. Gorney wrote, “spoke with Dr. Sedighi as IP reports his

20

pain regimen of amitriptyline causes side effects, may worsen his mood when he takes,

21

goal to consider alternatives. Sedighi to see [him] tomorrow.” (ECF No. 70 at 46.) At Dr.

22

Sedighi’s March 5, 2015 Medical Consultation, Plaintiff informed Dr. Sedighi that Elavil

23

made him drowsy and depressed his mood further. (ECF No. 80-1 at 71.) In the

24

“Assessment / Recommendations” section of his Medical Consultation report, Dr. Sedighi

25
26
21

27
28

A reasonable inference can be drawn from this referral that Dr. Gorney was concerned enough about
Plaintiff’s complaints regarding the side effects of Elavil and Keppra on Plaintiff’s suicide ideations that
he referred his case for subsequent evaluation by Dr. Sedighi.

32
15-cv-02059-AJB-BGS

1

counselled Plaintiff and noted Plaintiff’s complaints about his stated side effects, that Elavil

2

made Plaintiff drowsy and made his depressive symptoms worse. (Id. at 72.) Dr. Sedighi

3

then replaced Elavil and Keppra with Trileptal for Plaintiff’s seizures and chronic pain.

4

(Id.) This conduct raises a reasonable inference that Dr. Sedighi gave some credence to

5

Plaintiff’s complaints about Elavil to the extent of replacing it. The Court finds Plaintiff

6

has met his burden and raised a genuine and material factual dispute as to whether Dr.

7

Sedighi was aware that Elavil had in part caused Plaintiff to have suicidal thoughts on

8

March 1, 2015.

9

b. Deliberate Indifference

10

To demonstrate deliberate indifference, Plaintiff must show that Dr. Sedighi did a

11

purposeful act or failed to adequately respond to Plaintiff’s serious medical need, i.e. his

12

suicidal thoughts, which Plaintiff alleged were caused by Elavil. See McGuckin, 974 F.2d

13

at 1060. Plaintiff must show that Dr. Sedighi had a sufficiently culpable state of mind

14

when he provided medical care. Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995).

15

Plaintiff’s Eighth Amendment claim alleges that Elavil caused him to have

16

attempted suicide on March 1, 2015. (ECF Nos. 70 at 8; 82 at 3, 5.) In addition, Plaintiff

17

states that “[o]n March 5th 2015 medication (Elavil; Keppra) was taken off after psychiatrist

18

determined to be taken off due to suicidal side effects. Dr. Sedighi decided to put me in

19

[Trileptal] (pain med) to substitute Elavil.” (ECF No. 70 at 8.) Further, Dr. Sedighi

20

confirms that Psychiatrist Dr. Gorney referred Plaintiff for an evaluation of Elavil’s and

21

Keppra’s side effects, and discontinued Elavil on March 5, 2015. (ECF No. 80-1 at 72.)

22

Dr. Sedighi indicated that he counselled Plaintiff and noted, “[he] will discontinue

23

Amitriptyline and Keppra and [he] will start [Plaintiff] on Trileptal [. . .] that can be used

24

for seizures and chronic pain.”22 (Id.)

25
26
22

27
28

Plaintiff alleges in his Sur-reply that Dr. Sedighi took him off of Elavil because a Psychiatrist Phan
told him that Plaintiff was getting suicidal thoughts due to its side effects. (ECF No. 85 at 1, 10.)
Plaintiff provides no evidence that a Psychiatrist Phan took Plaintiff off Elavil due to suicidal thoughts,
nor ordered Dr. Sedighi to do so. Furthermore, there is nothing in Plaintiff’s medical records that
33
15-cv-02059-AJB-BGS

1

Since Dr. Sedighi did as Plaintiff had requested on March 5, 2015, i.e. to be taken

2

off Elavil, Plaintiff’s claim is insufficient to prove Dr. Sedighi was deliberately indifferent

3

to Plaintiff’s complaint about Elavil causing his suicidal thoughts.

4

c. Plaintiff’s Unpled Allegation of Deliberate Indifference

5

In his Opposition, Plaintiff adds an allegation that Dr. Sedighi was deliberately

6

indifferent at the March 24, 2015 consultation for restarting Plaintiff on Elavil. (ECF No.

7

82 at 6.) Plaintiff alleges for the first time that Dr. Sedighi was deliberately indifferent on

8

March 24, 2015 for prescribing Elavil at 10 mg, when he knew it was ineffective at 75 mg

9

and he knew it had put him in a suicidal crisis bed due to its side effects. (Id. at 13.)

10

This allegation is not in Plaintiff’s TAC. Plaintiff has not offered any justification

11

for his failure to raise this claim in his TAC. Therefore, the Court finds it is not properly

12

raised. See Wasco Products v. Southwallx Techs., 435 F.3d 989, 992 (9th Cir. 2006)

13

(“Simply put, summary judgment is not a procedural second chance to flesh out inadequate

14

pleadings.”); Brass v. Cty. of Los Angeles, 328 F.3d 1192, 1197–98 (9th Cir. 2003)

15

(upholding the district court’s finding that plaintiff had waived § 1983 arguments raised

16

for first time in summary judgment motion where nothing in amended complaint suggested

17

those arguments, and plaintiff offered no excuse or justification for failure to raise them

18

earlier); see also James v. Dependency Legal Grp., 253 F. Supp. 3d 1077, 1091 (S.D. Cal.

19

2015) (“Ninth Circuit precedent is clear: neither new factual allegations nor new claims

20

presented in opposition to summary judgment are properly considered.”); Williams v.

21

Rodriguez, No. C 10–2715-RMW-PR, 2012 WL 1194160 at *9 (N.D. Cal. 2012) (declining

22

to consider plaintiff’s attempt to transform his claim against a defendant doctor from one

23

instance of cancelling a morphine prescription to a claim that the defendant doctor denied

24

him pain medication for years).

25
26
27
28

indicates that Dr. Gorney made such a finding either. Dr. Gorney only requested that Dr. Sedighi
evaluate the side effects of Elavil and Keppra. (See ECF Nos. 70 at 39–40, 46; 80-1 at 71–72.)

34
15-cv-02059-AJB-BGS

1

Notwithstanding, the Court will address the merits of the March 24, 2015 medical

2

consultation with Dr. Sedighi. For a claim of deliberate indifference, Plaintiff needs to

3

present specific evidence for a jury to reasonably infer that Dr. Sedighi’s course of

4

treatment on March 24, 2015 was medically unacceptable under the circumstances, and

5

that Dr. Sedighi chose this course of treatment in conscious disregard of an excessive risk

6

to Plaintiff’s health. See Jackson, 90 F.3d at 332.

7

i. Medically Unacceptable Treatment

8

Plaintiff has to present specific evidence for a jury to reasonably infer that Dr.

9

Sedighi’s course of treatment on March 24, 2015 was medically unacceptable under the

10

circumstances. See Jackson, 90 F.3d at 332. A mere difference in medical opinion is

11

insufficient to meet the high bar to establish deliberate indifference. Toguchi, 391 F.3d at

12

1058. And Plaintiff is not entitled to request the prescription of a specific medication. Id.

13

Further, medical malpractice or negligence falls short of meeting the high bar for

14

establishing deliberate indifference. Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir.

15

2016).

16

In his Opposition, Plaintiff claims he told Dr. Sedighi that he has been telling doctors

17

for the past year about Elavil’s suicidal effects, but the doctors still continued to provide

18

the medication. (ECF No. 82 at 6 n.1.) The Court’s review of Plaintiff’s medical records

19

regarding Elavil, specifically the year prior to the March 24, 2015 consultation, shows that

20

doctors continuously prescribed dosages of Elavil ranging 25 mg to 75 mg for Plaintiff’s

21

severe pain. (ECF Nos. 80-1 at 48–49, 51, 54–55, 57–58, 64–65, 71, 85–86; 82 at 23, 49–

22

58.) Plaintiff’s medical history does not support his allegation that he has been telling

23

doctors for the past year about the suicidal side effects of Elavil. There is no indication in

24

his medical records that Plaintiff complained that Elavil caused him to suffer side effects

25

which heightened Plaintiff’s risk of suicide. In fact, Plaintiff’s medical records indicate

26

that Plaintiff was satisfied with Elavil, compliant with the doses, and even requested Dr.

27

Chau to increase Elavil from 50 mg to 75 mg. (See ECF Nos. 80-1 at 65.) Plaintiff’s

28
35
15-cv-02059-AJB-BGS

1

medical history with Elavil supports Dr. Sedighi’s course of treatment on March 24, 2015

2

for Plaintiff’s severe pain, i.e. prescribing 10 mg of Elavil.

3

Further, the Defendants provided Dr. Feinberg’s declaration, who summarized in

4

chronological order the medical records of consultations the Plaintiff had with the

5

Defendants, as well as other doctors and nurses. (Id. at 1–15.) Based on his review of

6

these records, Dr. Feinberg declares that Dr. Sedighi’s treatment of Plaintiff on March 5,

7

2015 and March 24, 2015 were medically appropriate. (Id. at 13.) Dr. Feinberg declares

8

that Dr. Sedighi responded to Plaintiff’s concerns about Keppra and Elavil by prescribing

9

an alternative appropriate medication, Trileptal, to treat Plaintiff’s pain and seizures on

10

March 5, 2015. (Id.) Then on March 24, 2015, Dr. Feinberg maintains that Dr. Sedighi

11

responded to Plaintiff’s complaint of pain by restarting him on Elavil, which is a

12

neuropathic pain medication clinically appropriate for Plaintiff’s complaint of pain. (Id.)

13

In contrast, Plaintiff has not provided any evidence in which a medical professional

14

opined that Elavil enhanced his risk of suicidal thoughts.

Plaintiff’s claim that a

15

Psychiatrist Phan determined that Elavil’s and Keppra’s side effects caused Plaintiff to go

16

to the crisis bed and then ordered Dr. Sedighi to give him an alternative is not supported

17

by the record. (See ECF Nos. 82 at 5; 85 at 1, 10.) As has been made clear, it was Dr.

18

Gorney who referred Plaintiff to Dr. Sedighi for an evaluation of Elavil’s and Keppra’s

19

side effects. (ECF No. 80-1 at 71.) Dr. Gorney, the staff psychiatrist, did not order Dr.

20

Sedighi to change Plaintiff’s prescription of Elavil. Dr. Gorney asked Dr. Sedighi to

21

consider alternatives. (ECF No. 70 at 46.) Further, Plaintiff has not produced any evidence

22

indicating that any psychiatrist mandated Dr. Sedighi to replace Elavil due to its suicidal

23

side effects.

24

In support of his TAC, Plaintiff provided his appeal level decisions stemming from

25

his March 29, 2015 Patient Inmate Health Care Appeal in which Plaintiff requested

26

Morphine and Gabapentin for his pain. (Id. at 33–37.) Plaintiff was taking 10 mg of Elavil

27

when he filed these appeals, which Dr. Sedighi had prescribed, yet Plaintiff made no

28

reference to Elavil nor of having suicidal thoughts. (Id.) At all three levels of his appeals,
36
15-cv-02059-AJB-BGS

1

Plaintiff was specifically requesting Morphine and Gabapentin for his neuropathy. (Id. at

2

33, 36–37.) The Director’s Level Decision denied his appeal, finding that Plaintiff was

3

prescribed pain medication per California Correctional Health Care Services (“CCHCS”)

4

Pain Management Guidelines and that Plaintiff did not meet the CCHCS Formulary criteria

5

for non-formulary pain medications or narcotics at that time due to his functional capacity.

6

(Id. at 33.) Plaintiff’s exhibits provide additional evidence that Elavil’s prescription was a

7

medically acceptable treatment for Plaintiff, whereas Morphine and Gabapentin were not.

8

In both his TAC and his Opposition, Plaintiff wants a specific medication,

9

Gabapentin for pain. However, a mere difference in medical opinion is insufficient to meet

10

the high bar to establish deliberate indifference. Toguchi, 391 F.3d at 1058. And Plaintiff

11

is not entitled to request the prescription of a specific medication. Id. The Court finds that,

12

at most, Plaintiff disagrees with Dr. Sedighi’s medical treatment plan for his severe pain.

13

But Plaintiff has not established that Dr. Sedighi’s 10 mg prescription of Elavil for pain

14

was medically unacceptable.

15

Plaintiff also appears to be alleging medical malpractice or negligence when Dr.

16

Sedighi restarted Plaintiff on Elavil. In his Opposition, Plaintiff states that, “[a]s to pain

17

medication [(Elavil)], well [he] told [Nurse Busalacchi] it was discontinue[d] on 3-5-15 for

18

suicidal side effects. Erroneously [he] was put back on 3-24-15.” (ECF No. 82 at 14)

19

(emphasis added). Plaintiff indicates that “[he] told [Nurse Busalacchi] that Sedighi

20

erroneously [prescribed] such medication[. . . .]” (Id. at 19) (emphasis added). However,

21

medical malpractice or negligence falls short of meeting the high bar for establishing

22

deliberate indifference. Hamby, 821 F.3d at 1092. Inadequate medical treatment, medical

23

malpractice, or even gross negligence by itself does not rise to that level, as “the Eighth

24

Amendment proscribes ‘the unnecessary and wanton infliction of pain,’ which includes

25

those sanctions that are ‘so totally without penological justification that it results in the

26

gratuitous infliction of suffering.’” Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)

27

(citation omitted).

28
37
15-cv-02059-AJB-BGS

1

In addition, Plaintiff’s pleadings reveal inconsistencies as to what he believed caused

2

suicidal thoughts. Plaintiff blames Elavil, Keppra, and his severe pain as being the cause

3

of them. (See ECF Nos. 70 at 7, 8, 15; 82 at 6 n.1, 10.) Further, in his TAC, Plaintiff

4

claims that his suicidal thoughts “trigger out of nowhere.” (ECF No. 70 at 8.) Such

5

contradictions support the inference that Plaintiff does not know what caused his suicidal

6

thoughts. And as has been previously addressed, Plaintiff suffers from Axis I disorders

7

that are the likely cause of depression and suicidal ideation. (See Sec. I(A)(1).)

8

In sum, whereas the Defendants have met their burden to show that Dr. Sedighi’s

9

treatment was medically acceptable, Plaintiff has not met his burden in coming “forward

10

with specific facts showing that there is a genuine issue for trial.” Matsushita, 475 U.S. at

11

587.

12

ii. Conscious Disregard of an Excessive Risk to Plaintiff’s health

13

Plaintiff has failed to show that Dr. Sedighi’s treatment was medically unacceptable.

14

Nonetheless, the Court will address whether Dr. Sedighi had a sufficiently culpable state

15

of mind when he provided medical care. Wallis, 70 F.3d at 1076.

16

In his Opposition, Plaintiff alleges that Dr. Sedighi was deliberately indifferent for

17

restarting Plaintiff on Elavil when “he knew [Elavil] had put him in a suicidal crisis bed.”

18

(ECF No. 82 at 6, 13.) Plaintiff’s allegation that Dr. Sedighi knew Elavil was the reason

19

Plaintiff was put in suicidal precaution on March 1, 2015 is not supported by the record.

20

As previously discussed, the Admission Assessment done on Plaintiff on March 1, 2015

21

contains no mention whatsoever of Elavil playing any role in Plaintiff’s desire to hang

22

himself. (Id. at 26–27.) Further, Plaintiff’s claim that Psychiatrist Phan, or any other

23

psychiatrist, determined that Elavil’s and Keppra’s side effects caused Plaintiff to go the

24

crisis bed and ordered Dr. Sedighi to give Plaintiff an alternative medication is not

25

supported by the record. (See id. at 5.) In fact, the sole purpose for Plaintiff’s March 24,

26

2015 consultation with Dr. Sedighi was to address his chronic headache pain, which

27

Plaintiff complained of during a March 19, 2015 consultation with Nurse Gavin. (See ECF

28

No. 80-1 at 82–83, 85.) It was not about suicidal thoughts.
38
15-cv-02059-AJB-BGS

1

On March 24, 2015, Dr. Sedighi attended to Plaintiff’s complaints of pain and

2

prescribed Elavil to treat his pain. (See id. at 86–87.) Dr. Sedighi gave a full summary of

3

his previous, March 5th consultation with the Plaintiff, while noting that at that time

4

Plaintiff complained that Elavil and Keppra were causing side effects and made him

5

drowsy. (Id.) Dr. Sedighi fully recorded all of Plaintiff’s pain complaints and that Plaintiff

6

wanted Morphine and Gabapentin. (Id.)

7

In the “Assessment / Recommendations” section, Dr. Sedighi wrote that Plaintiff

8

was not compliant with his prescriptions of Tylenol and Naproxen.23 (Id. at 86.) Dr.

9

Sedighi counselled Plaintiff on the importance of compliance with his medications and

10

indicated that the Plaintiff showed interest in restarting Elavil. (Id. at 86.) Dr. Sedighi then

11

restarted the Plaintiff on 10 mg of Elavil for his severe pain, which could also help his

12

chronic headache and chronic lower back pain. (Id.) Dr. Sedighi noted that there was no

13

indication for narcotic pain medication and indicated that he will continue to monitor

14

Plaintiff for seizure activity and his pain. (Id.) Plaintiff verbalized that he understood.

15

(Id.)

16

Such conduct on the part of Dr. Sedighi does not support a reasonable inference that

17

Dr. Sedighi harbored a reckless state of mind, which entails more than lack of due care.

18

See Snow, 680 F.3d at 985. To the contrary, it supports the inference that Dr. Sedighi did

19

not purposely disregard Plaintiff’s complaint of chronic pain. This conclusion is also

20

supported by Plaintiff’s own conduct after the consultation. Plaintiff not only did not refuse

21

to take Elavil, but during a follow up consultation with Dr. Freyne on April 29, 2015,

22

Plaintiff indicated that he was doing well and even agreed with the treatment plan that

23

included Elavil.24 (ECF No. 80-1 at 108–09.)

24
25

23

26

Plaintiff was prescribed these pain medications when he was taken off of Trileptal due to a rash. (See
ECF No. 80-1 at 75–76.)

27

24

28

As an exhibit to his Complaint, Plaintiff provided the second page of a two-page report titled “Suicide
Risk Evaluation” by Dr. Brown, dated April 1, 2015. (ECF No. 70 at 44.) This report indicates that
after Plaintiff’s admission to the “MHCB” on March 19, 2015, he was sent out to hospital after a seizure
39
15-cv-02059-AJB-BGS

1

Plaintiff also contradicts himself as to how Dr. Sedighi was deliberately indifferent

2

on March 24, 2015. In his Opposition, Plaintiff claims, “[o]n March 24, 2015 [he saw] Dr.

3

Sedighi again [and he] explain the severeness of [his] pain, [Dr. Sedighi] then wants to

4

prescribe [him] [Elavil]. [Plaintiff] tell [Dr. Sedighi] that such medication makes [him]

5

drowsy, dizzy w/suicidal thoughts. [Dr. Sedighi] says he knows but he still is going to

6

added because he has to give [Plaintiff] something even if [he] refuse such medication.

7

[He] explain why can’t he give [Plaintiff] what [he] know works for [his] neuropathy and

8

nerve damage pain (Gabapentin) [Dr. Sedighi] just didn’t want to.” (ECF No. 82 at 3.)

9

Whereas in his TAC, Plaintiff alleges that Dr. Sedighi saw him when he was isolated

10

in suicidal from March 19 to 27, 2015.25 (ECF No. 70 at 9.) Among other things, Plaintiff

11

wanted Gabapentin or something for pain. (Id. at 11.) Plaintiff claims that he told Dr.

12

Sedighi that the pain was severe whenever he was not taking any medication at all. (Id.)

13

Plaintiff claims Dr. Sedighi did not give him any pain medication, which led to the pain

14

depriving him of “sleep, eat, exercise, walk and it interferes with [his] breathing.” (Id.)

15

Plaintiff alleges that Dr. Sedighi said “he didn’t care he was putting [his] life at risk. [Dr.

16

Sedighi] was just not going to put [the Plaintiff] on anything.” (Id.)

17

Although the Court cannot make credibility findings, by such direct contradictions

18

Plaintiff impeaches his own credibility. And in the backdrop is Dr. Sedighi who reports

19

that Plaintiff, not Dr. Sedighi, showed interest in restarting Elavil for his chronic headache

20

on March 24, 2015. (See ECF No. 80-1 at 86.) This behavior by Plaintiff is consistent

21
22
23
24
25

he suffered. (Id.) Dr. Brown noted that Plaintiff was placed on Dilantin for seizure and Elavil for pain
along with other medications for depression. (Id.) Dr. Brown wrote that Plaintiff was compliant with
these medications and showed substantial improvement over his stay. (Id. at 44.) Plaintiff denied being
suicidal or having current depression. (Id.) During this consultation, Plaintiff made no complaints of
any side effects concerning any of these medications. (See id.)

26
25

27
28

This visit has to be the March 24, 2015 consultation, because there is no record of another visit by Dr.
Sedighi between March 19, 2015 and March 27, 2015 wherein Plaintiff discussed his pain and/or
suicidal thoughts.

40
15-cv-02059-AJB-BGS

1

with his past conduct, in which Plaintiff was consistently satisfied with Elavil being used

2

for treating his pain.

3

Later on March 24, 2015, Plaintiff had a “subjective fall unwitnessed.” (Id. at 89–

4

91.) At 21:40, Dr. Sedighi saw Plaintiff at his crisis bed who told Dr. Sedighi that “he

5

blacked out and fell and hit the back of his neck.” (Id. at 91.) Dr. Sedighi ordered Plaintiff

6

to be sent to the ER for possible cervical, spine and head trauma. (Id. at 91.) Plaintiff was

7

then taken to Sharp Chula Vista Medical Center and later discharged.26 (Id. at 93–94.)

8

On March 25, 2015, Dr. Sedighi noted in an addendum that Plaintiff returned from

9

the ER and had negative workup. (Id. at 91.) Further, after Plaintiff returned from the ER,

10

Dr. Sedighi ordered a “1:1” sitter to monitor Plaintiff’s seizure activity and provided a

11

wheel chair to assist the Plaintiff with out-of-cell movement. (ECF No. 70 at 45.) This

12

incident sheds light on Dr. Sedighi’s state of mind towards Plaintiff. Such thoughtful

13

conduct by Dr. Sedighi towards Plaintiff’s medical needs contradicts Plaintiff’s claim that

14

Dr. Sedighi did not care and purposefully disregarded his medical needs.

15

In sum, as to Elavil’s suicidal side effects, Plaintiff has failed to show that Dr.

16

Sedighi’s chosen course of medical treatment on March 24, 2015 was medically

17

unacceptable under the circumstances. See Jackson, 90 F.3d at 332. Further, Plaintiff has

18

failed to present specific evidence that Dr. Sedighi chose this course of treatment in

19

conscious disregard of an excessive risk to Plaintiff’s health. See id.

20

3. Subjective Prong Analysis: Nurse Busalacchi

21

a. Aware of Substantial Risk of Serious Harm

22

The issue presented is whether Nurse Busalacchi was not only “aware of facts from

23

which the inference could be drawn that a substantial risk of serious harm exists,” but that

24
25
26
27
28

26

Sharp medical records reveal that Plaintiff made no complaint about Elavil causing suicide thoughts
or depressive moods. (See ECF No. 80-1 at 93–101.) The treating physician at Sharp noted that
“[Plaintiff] is complaining of neck pain and headache. [Plaintiff] said he took Elavil about a half an
hour prior to this [seizure] happening. [. . .] [Plaintiff] was brought here by the medic. No other
associated symptoms[. . . .]” (Id. at 95.)
41
15-cv-02059-AJB-BGS

1

she “also [drew] the inference.” See Farmer, 511 U.S. at 837. The Court must draw all

2

reasonable inferences on behalf of the nonmoving party.

3

In his TAC, Plaintiff claims that he told Nurse Busalacchi that “[o]n or about the

4

beginning of March 2015 Keppra was discontinue due to the many side effects, and for

5

being part of why I try to commit suicide (suicide thoughts are a side effect of Keppra).”

6

(ECF No. 70 at 15.) Plaintiff states that “[Nurse Busalacchi] also knew Elavil was

7

prescribed again 10/26/12. But it was taken off on March 2015 due to been part of why

8

[he] try to commit suicide. [Busalacchi] knew that and still sustain Elavil, actually she

9

raised dosage not caring it would put [his] life at risk, and medication was ineffective for

10

[his] nerve pain.” (Id. at 20.) Plaintiff claims that Nurse Busalacchi decided to deny his

11

request for something other than Elavil, on the basis that “(1) she don’t feel like changing

12

prescription because although I have falling due to side effects, am still alive without

13

broken bones or in a coma. (2) all inmates lie. (3) has too much work, don’t got the strength

14

and time to do paperwork.” (Id. at 16, 20.)

15

In his Opposition, Plaintiff supports his claim that Nurse Busalacchi knew Elavil

16

gave him suicidal ideations by referring to Nurse Busalacchi’s PCP Progress Note, which

17

she wrote from her visit with Plaintiff on April 13, 2015.27 (ECF No. 80-1 at 105.)

18

According to her report, Plaintiff told Nurse Busalacchi that he has suicide ideations when

19

he is on Elavil at a high dose. (Id.) Plaintiff does not dispute that he made this statement.

20

(See ECF No. 82 at 19.)

21

Based on Nurse Busalacchi’s report, Plaintiff has met his burden that Nurse

22

Busalacchi was made aware from Plaintiff that Elavil causes suicidal thoughts at a high

23

dose. However, Plaintiff has provided insufficient evidence that Nurse Busalacchi was

24

aware that Elavil at any dose contributes to his suicidal ideation. For instance, Plaintiff

25
26
27
28

27

In his Opposition, Plaintiff swears under penalty of perjury that everything in pleadings, motions,
complaint are all true according to his personal knowledge. (ECF No. 82 at 14.) The Court includes all
of his attached exhibits under this declaration by Plaintiff, unless otherwise objected to by Plaintiff.
42
15-cv-02059-AJB-BGS

1

argues that Nurse Busalacchi also “knew [that Elavil] got taken off on 3-5-15 due to [him]

2

ending up in a crisis bed for suicide attempts.” (ECF No. 85 at 7.) Plaintiff also claims

3

that Nurse Busalacchi already knew that a psychiatrist took the Plaintiff off of Elavil while

4

he was in suicide crisis due to its suicidal side effects. (Id. at 8.)

5

As previously noted in Section I(A)(2)(c)(ii), Plaintiff’s allegation that he was taken

6

off Elavil by a psychiatrist due to his alleged March 1, 2015 suicide attempt is not supported

7

by his medical history. In fact, had Nurse Busalacchi reviewed Plaintiff’s medical history

8

as presented, she would not have found any medical report in which a psychiatrist or

9

physician opined that Elavil caused Plaintiff’s alleged suicidal thoughts at any dosage,

10

much less at a high dosage.

11

Plaintiff also alleges that ever since 2011, “nurses wrote many reports of what [he]

12

told them” about the suicidal side effects and he submitted about twenty medical request

13

forms complaining of the side effects and ineffectiveness. (ECF No. 85 at 10.) Plaintiff’s

14

medical history does not support this claim. According to the submitted medical records,

15

the first time Plaintiff connected Elavil with depression was on February 25, 2015 in which

16

Plaintiff had a consultation with Nurse Paule. (ECF Nos. 70 at 23; 80-1 at 69.) During

17

this interview, Plaintiff made several complaints about Elavil. (See id.) Among a list of

18

side effects Plaintiff blamed on Elavil, he told the Nurse that “[a]ctually this Elavil makes

19

me feel more depressive.” (Id.) Nurse Paule counselled him on Elavil’s side effects and,

20

although it is difficult to read the handwriting, it appears that Nurse Paule continued

21

Plaintiff on Elavil at 75 mg and referred him to his Primary Care Provider.28 (Id.) Further,

22

nothing in Plaintiff’s medical history prior to Nurse Busalacchi’s interview shows Plaintiff

23

making any complaints regarding Elavil causing suicidal thoughts. (See ECF Nos. 70 at

24
25
26
27
28

At the time of Dr. Sedighi’s March 5, 2015 medical consultation, Plaintiff was currently on 75 mg of
Elavil. (ECF No. 80-1 at 71.) Given the close proximity in dates and no record showing Elavil was
discontinued after the visit with Nurse Paule, the clear inference was that Nurse Paule continued
Plaintiff on 75 mg of Elavil.
28

43
15-cv-02059-AJB-BGS

1

24, 26, 28; 80-1 at 17–18, 20, 28, 32, 34, 43, 48–49, 51, 55, 57–58, 64–65; 82 at 23, 47,

2

55, 57, 58, 100.) Of note, even Plaintiff’s appeal to which Nurse Busalacchi responded to

3

would not have led her to actually draw the inference that Elavil at any dose was causing

4

Plaintiff to have suicide ideations.29 (See ECF No. 70 at 34.)

5

Given the lack of specific evidence that Nurse Busalacchi was aware that Elavil at

6

any dosage caused him suicidal thoughts, the Court finds in the light most favorable to the

7

Plaintiff and not making any credibility findings, that Nurse Busalacchi was aware from

8

Plaintiff that Elavil at a high dose caused suicidal thoughts.

9

b. Deliberate Indifference

10

i. Medically Unacceptable Treatment

11

The Court adopts its findings in Section I(A)(2)(c)(i), in which the Court found that

12

there was insufficient evidence to show that Dr. Sedighi’s course of medical treatment for

13

Plaintiff’s severe pain was medically unacceptable. Whereas Dr. Sedighi restarted Plaintiff

14

on Elavil at 10 mg, Nurse Busalacchi increased Elavil’s dosage to 25 mg. Given Plaintiff’s

15

medical history of being prescribed Elavil for pain by doctors for the past year, Plaintiff’s

16

compliance with the doses, and his desire to increase the dose from 50 mg to 75 mg, the

17

only reasonable inference to be drawn from his medical history is that Elavil for pain is a

18

medically acceptable treatment. (See ECF No. 80-1 at 48–49, 51, 54–55, 57–58, 64–65

19

[increasing Elavil from 50 mg to 75 mg], 71, 85–86, 95, 103.) Plaintiff’s allegation that a

20
21
22
23
24
25
26
27
28

Plaintiff’s appeal grievance centered around a seizure he suffered which caused him to hit his head on
the side of metal bed. (ECF No. 70 at 34.) Plaintiff blames the alleged seizure he had on March 24,
2015, on the doctors that took him off his seizure and neuropathy pain medications between March 11th
to March 17th. (Id.) Plaintiff alleges that the doctors’ motive for taking him off his medications were
because “[t]hey wanted to witness or see a seizure.” (Id.) In his appeal, Plaintiff wanted the doctors to
prescribe him Gabapentin or Morphine for his pain. (Id.) Plaintiff made no mention of having suicidal
thoughts being a side effect of Elavil in his appeal.
29

44
15-cv-02059-AJB-BGS

1

psychiatrist determined Elavil was causing suicidal thoughts is not born out by any

2

submitted exhibits.30

3

The Court similarly views Plaintiff’s request for Morphine and Gabapentin as a

4

situation wherein Plaintiff wants his specific course of treatment. Plaintiff is not entitled

5

to request a prescription for a specific medication. See Toguchi, 391 F.3d at 1058. Further,

6

on March 24, 2015, Dr. Sedighi determined there was no indication for narcotic pain

7

medication. (ECF No. 80-1 at 86.) It happens that Plaintiff was also seeking Morphine

8

and Gabapentin during that visit. (Id.) This medical consultation is further evidence that

9

Elavil for Plaintiff’s pain was medically acceptable, and the requested narcotics were not

10

indicated. (See e.g. ECF No. 70 at 33) (“[Plaintiff] [did] not meet the CCHCS Formulary

11

criteria for non-formulary pain medications or narcotics at this time due to [his] functional

12

capacity.”). In fact, Plaintiff did not provide any medical records wherein Elavil was found

13

to be medically unacceptable under the circumstances.

14

Defendants’ expert Dr. Feinberg declared that Elavil is a neuropathic pain

15

medication clinically appropriate for Plaintiff’s complaint of pain. (ECF No. 80-1 at 13.)

16

Further, Dr. Feinberg opined that it was medically appropriate for Nurse Busalacchi to

17

decline to prescribe Gabapentin and Morphine when Plaintiff requested on April 13, 2015.

18

(Id.) At the time, Dr. Feinberg indicates that Plaintiff had been restarted on medically

19

appropriate medications to treat his neuropathy and seizure disorder, with no medical

20

indication that a change in medication was necessary or appropriate. (Id. at 14.)

21

In sum, Plaintiff has failed to show that Nurse Busalacchi’s treatment was medically

22

unacceptable and did not meet his burden in coming “forward with specific facts showing

23

that there is a genuine issue for trial.” See Matsushita, 475 U.S. at 587.

24

///

25
26
27
28

30

The only record that Plaintiff submits is an admission intake form, dated March 1, 2015, in which
Plaintiff never mentions Elavil as playing any role in his suicidal thoughts. (See ECF No. 82 at 26–27.)

45
15-cv-02059-AJB-BGS

ii. Conscious Disregard of an Excessive Risk to Plaintiff’s health

1
2

Apart from the above analysis that Plaintiff has failed to show Nurse Busalacchi’s

3

increase of Elavil to 25 mg was a medically unacceptable treatment, the Court also finds

4

that there is insufficient evidence that Nurse Busalacchi purposefully disregarded

5

Plaintiff’s serious medical condition by prescribing Elavil for his severe pain. During the

6

April 13, 2015 consultation with Nurse Busalacchi, Plaintiff’s complaint about Elavil was

7

that he has suicidal ideations when he is on Elavil at a high dose. (See ECF No. 80-1 at

8

105.) As previously indicated, for the past year prior to his visit with Nurse Busalacchi,

9

Plaintiff was continuously prescribed Elavil between 25 mg to 75 mg. (ECF Nos. 70 at 44;

10

80-1 at 48–49, 51, 54–55, 57–58, 64–65, 71, 85–86, 95, 103; 82 at 23.) For instance, on

11

October 3, 2014, Dr. Chau described 50 mg of Elavil as a low dose. (ECF No. 80-1 at 57–

12

58.) Based on Dr. Chau’s medical opinion that 50 mg was a low dose, an increase from 10

13

mg to 25 mg is still a lower dosage. In fact, Plaintiff himself concedes this point in his

14

Opposition, stating that “10 mg dosage [of Elavil,] a very low dosage[.]” (ECF No. 82 at

15

10.) Therefore, even assuming Elavil at a high dose causes suicidal thoughts, Nurse

16

Busalacchi did not disregard Plaintiff’s serious medical condition because she gave him a

17

very low dose for his severe pain. By Plaintiff’s own admission, such a dosage would not

18

have caused suicidal thoughts.

19

Further, in her medical report, Nurse Busalacchi detailed Plaintiff’s complaints,

20

including suicide ideation. (ECF No. 80-1 at 105.) Nurse Busalacchi noted at the time

21

Plaintiff was fine and was not having suicidal ideations. (Id.) Regarding his appeal, Nurse

22

Busalacchi noted that Plaintiff will not be placed on Neurontin or Morphine at this time.

23

(Id.) Nurse Busalacchi indicated that she will increase Elavil to 25 mg and refer Plaintiff

24

to mental health for pain management. (Id.) Plaintiff understood and agreed with the plan.

25

(Id.)

26

After his consultation with Nurse Busalacchi, Plaintiff’s only complaint about the

27

increase dosage of Elavil occurred during a medical consultation on April 30, 2015. (ECF

28

No. 82 at 100.) Plaintiff’s sole complaint regarding Elavil was about his pain. (Id.)
46
15-cv-02059-AJB-BGS

1

Plaintiff made no mention of it causing suicidal thoughts, stating “Elavil is not helping me,

2

even after increase.” (Id.)

3

In contrast, the day earlier at Dr. Freyne’s consultation, Plaintiff reported that he was

4

doing well and being compliant with his medications, which included Elavil at 25 mg.

5

(ECF No. 80-1 at 108–09.) Such contradictory conduct may best be explained by Dr.

6

Goyal’s July 9, 2015 consultation with Plaintiff. (Id. at 111.) In his progress note, Dr.

7

Goyal reported that Plaintiff requested Gabapentin for his nightly headaches and that

8

Plaintiff’s headaches appeared to be a complex migraine of some sort. (Id.) Dr. Goyal

9

indicated that he would try Sumatriptan for his headaches and opined that Plaintiff’s

10

neuropathy pain is questionable in that he found inconsistencies with his history and

11

objective findings. (Id.) Dr. Goyal viewed Plaintiff’s neuropathy as a “factitious disorder

12

as high on differential.”31 (Id.)

13

In sum, as to Elavil’s suicidal side effects, Plaintiff has failed to show that Nurse

14

Busalacchi’s chosen course of medical treatment was medically unacceptable under the

15

circumstances and presents insufficient evidence that Nurse Busalacchi chose this course

16

of treatment in conscious disregard of an excessive risk to Plaintiff’s health. See Jackson,

17

90 F.3d at 332.
B. Plaintiff’s Eighth Amendment Claim Against Dr. Sedighi as to Plaintiff’s
Pain and Seizures

18
19

Plaintiff alleges that Defendant Dr. Sedighi acted with deliberate indifference to his

20
21
22
23
24

serious medical needs in violation of the Eighth Amendment. (ECF No. 70.) Defendants
move for entry of summary judgement against Plaintiff on this claim. (ECF No. 80.) This
Section addresses Plaintiff’s allegations in his TAC that Dr. Sedighi did not prescribe any
pain or seizure medication on March 24, 2015. (See ECF No. 70.)

25
26
27
31

28

According to Defendants, this is a mental disorder in which a person acts as if he has a physical or
mental illness when he has consciously created the symptoms. (ECF No. 80-1 at 13 n.11.)
47
15-cv-02059-AJB-BGS

1
2

1. Objective Prong Analysis: Serious Medical Need as to Plaintiff’s Pain
and Seizures

3

To establish an unconstitutional treatment of a medical condition, including a mental

4

health condition, a prisoner must show deliberate indifference to a “serious” medical need.

5

McGuckin, 974 F.2d at 1059. A “serious” medical need exists if the failure to treat a

6

prisoner’s condition could result in further significant injury or the “unnecessary and

7

wanton infliction of pain.” Id.

8

As for his pain and seizures, Plaintiff claims that they are both serious medical

9

conditions. (ECF No. 82 at 18–19.) In his TAC, Plaintiff’s alleges that “[Dr. Sedighi] saw

10

the medical chart and seeing I did and was prescribed gabapentin by neurologist before.

11

[Dr. Sedighi] also knew through me that gabapentin didn’t give me side effects as how the

12

current or prior medication were. And that it work for my pain to a point that it would

13

reduce my pain to where it didn’t deprive me of life necessity’s. [Dr. Sedighi] knew all of

14

this and he still decided to leave me without any seizure or pain medication.” (ECF No.

15

70 at 9.) Plaintiff claims that he told Dr. Sedighi about his medical needs, including that

16

he was not on any pain or seizure medications. (Id. at 9, 11.) Plaintiff also told Dr. Sedighi

17

that “without any pills [his] seizures become very aggressive and severe to points where

18

my tongue rolls back and I can’t breathe” and that he “needed to be put on Gabapentin or

19

something similar.” (Id. at 11.) Plaintiff states that Dr. Sedighi knew that Gabapentin was

20

effective, yet still decided to leave Plaintiff without any seizure or pain medication. (Id.)

21

Plaintiff claims that “[Dr. Sedighi] didn’t care he was putting [Plaintiff’s] life at risk or

22

harm, neither what [Plaintiff] was suffering. He was just not going to put [Plaintiff on]

23

anything for no medical reason.” (Id. at 11.)

24

a. Serious Medical Need: Pain

25

Pain that is so severe that a person is unable to fulfill his or her basic needs of eating,

26

sleeping, and going to the bathroom is considered a serious medical need. See McGuckin,

27

974 F.2d at 1060 (citing Wood v. Housewright, 900 F.2d 1332, 1337–41 (9th Cir. 1990);

28

Hunt v. Dental Dept., 865 F.2d 198, 200–01 (9th Cir. 1989)). Plaintiff has presented
48
15-cv-02059-AJB-BGS

1

evidence that on March 24, 2015 he was suffering from such severe pain that deprived

2

Plaintiff of life’s necessities, such as “sleep, eat, exercise, walk and interferes with

3

[Plaintiff’s] breathing,” which is a serious medical condition. (See ECF No. 80-1 at 85.)

4

Further, Plaintiff’s medical history corroborates that he suffers from chronic and severe

5

pain and has consistently been prescribed pain medication. Therefore, the Court considers

6

Plaintiff’s severe pain as a serious medical need.

7

b. Serious Medical Need: Seizures

8

Alleged seizures are considered a serious medical condition regardless if “they occur

9

as a result of a diagnosed condition, such as epilepsy [ ] or from an unknown or

10

undiagnosed condition.” Mellender v. Larson, No. 06-C-547-C, 2006 WL 3091111, at *4

11

(W.D. Wis. 2006) (citing Hudson v. McHugh, 148 F.3d 859, 864 (7th Cir.1998)). Plaintiff

12

has presented evidence that on March 24, 2015 he was suffering from a seizure disorder,

13

which is a serious medical condition. His medical history establishes this medical need in

14

that he has consistently been prescribed seizure medication. Therefore, the Court considers

15

Plaintiff’s alleged seizure disorder as a serious medical need.

16
17

2. Subjective Prong Analysis: Dr. Sedighi’s Treatment for Plaintiff’s Pain
a. Aware of Substantial Risk of Serious Harm

18

In his TAC, Plaintiff alleges that on March 24, 2015 he told Dr. Sedighi that he had

19

been taken off seizure and pain medication two weeks prior “for no reason.” (ECF No. 70

20

at 11.) Plaintiff states that he told Dr. Sedighi that he needed “to be put back to nerve pain

21

medication. [He] told him that the pain of [his] head is not the only issue of pain. [He] also

22

have pain on [his] lower back due to a injury of March 2012 and Neuropathy. This type of

23

pain deprives [Plaintiff] of life necessities [. . .] It’s severe whenever [he is] not taking no

24

medication at all.” (Id.)

25

During the March 24, 2015 medical consultation, Dr. Sedighi summarized Plaintiff’s

26

complaints as chronic headache and chronic lower back pain that were constant and

27

sometimes severe. (ECF No. 80-1 at 85–86.) Dr. Sedighi restarted Plaintiff on Elavil at

28

bedtime to “help [Plaintiff’s] chronic headache and chronic low back pain,” after Plaintiff
49
15-cv-02059-AJB-BGS

1

showed interest in restarting the medication. (Id. at 86.) Dr. Sedighi noted that the main

2

reason for Plaintiff’s visit was his chronic headache and lower back pain. (Id. at 85.)

3

These facts support the inference that Dr. Sedighi was aware that Plaintiff suffered

4

from neuropathic pain, chronic head pain, and chronic lower back pain. Therefore, the

5

Court finds that Plaintiff has met his burden and raised a genuine and material factual

6

dispute as to whether Dr. Sedighi was aware of Plaintiff’s severe pain on March 24, 2015.

7
8

b. Deliberate Indifference for Not Prescribing Pain Medication on
March 24, 2015

9

To demonstrate this second prong, Plaintiff must provide specific facts outside of

10

his TAC allegations to show that Dr. Sedighi did a purposeful act or failed to adequately

11

respond to Plaintiff’s serious medical need by not prescribing any pain medication on

12

March 24, 2015. See Estelle, 429 U.S. at 106. Plaintiff also needs to provide specific facts

13

that Dr. Sedighi had a sufficiently culpable state of mind when he provided medical care.

14

Wallis, 70 F.3d at 1076. This burden also includes the need to provide sufficient evidence

15

for a jury to reasonably infer that Dr. Sedighi’s course of treatment was medically

16

unacceptable under the circumstances, and that Dr. Sedighi chose this course of treatment

17

in conscious disregard of an excessive risk to plaintiff’s health. See Jackson, 90 F.3d at

18

332. A mere difference in medical opinion is insufficient to meet the high bar to establish

19

deliberate indifference. See Toguchi, 391 F.3d at 1058. Additionally, Plaintiff is not

20

entitled to request the prescription of a specific medication. Id. Medical malpractice or

21

negligence falls short of meeting the high bar for establishing deliberate indifference.

22

Hamby, 821 F.3d at 1092.

23

In his TAC, Plaintiff’s Eighth Amendment claim alleges that Dr. Sedighi failed to

24

provide any pain medication on March 24, 2015. (See ECF No. 70 at 8–11.) Plaintiff has

25

not provided any evidence to support this claim that Dr. Sedighi “did nothing to help” from

26

May 2015 to August 2015. (See id. at 9.) There is no evidence showing that Dr. Sedighi

27

saw Plaintiff after March 24–25, 2015. Additionally, Plaintiff’s allegation regarding not

28

being prescribed any pain medication is directly contradicted by his medical records.
50
15-cv-02059-AJB-BGS

1

Contrary to Plaintiff’s assertions, the evidence indicates that Dr. Sedighi did give Plaintiff

2

pain medication on March 24, 2015. (See ECF No. 80-1 at 85–86.)

3

According to Plaintiff’s medical history, Dr. Sedighi prescribed pain medication at

4

the two medical consultations he had with Plaintiff. On March 5th, Dr. Sedighi replaced

5

Elavil with Trileptal in order to treat Plaintiff’s seizures and pain. (Id. at 71–72.) Dr.

6

Sedighi’s March 24th medical consultation report indicates that Plaintiff was interested in

7

restarting Elavil and was counselled on adhering to his medication, since there was an

8

indication that Plaintiff was not compliant with taking his medication. (Id. at 85–86.) Dr.

9

Sedighi then prescribed Elavil to help with Plaintiff’s chronic headache and lower back

10

pain, while indicating that there is no need for narcotic pain medication. (Id. at 86.) In

11

sum, the record establishes that Dr. Sedighi did not purposefully ignore Plaintiff’s serious

12

medical need by failing to treat his pain.

13

Additionally, Plaintiff argues that Dr. Sedighi should have prescribed Gabapentin,

14

or any other medication that he has not tried. (ECF Nos. 70 at 10–11; 82 at 4, 6; 85 at 3,

15

5.) Plaintiff believes these medications would treat his symptoms without any side effects,

16

as opposed to Dr. Sedighi’s choice of treatment. (ECF Nos. 82 at 4; 85 at 3, 5.) Plaintiff

17

claims that Dr. Sedighi should have prescribed Gabapentin in 2015 since the evidence

18

Plaintiff provided indicates that Gabapentin was prescribed in 2011 and 2016. (ECF No.

19

82 at 8, 11, 38–39, 41, 47, 56, 58, 65, 104.)

20

However, Dr. Feinberg declared that Gabapentin is only approved for postherpetic

21

neuralgia and partial seizures, and not approved to treat any other types of seizures or pain.

22

(ECF No. 80-1 at 3.) Dr. Feinberg states that the CCHCS has removed Gabapentin from

23

its formulary due to growing evidence that it carries a risk of dependence, abuse, and

24

misuse. (Id.) Further, failure to provide Plaintiff with the specific medication he requested

25

or to follow another doctor’s advice does not amount to deliberate indifference. See

26

Toguchi, 391 F.3d at 1058; Womack v. Bakewell, No. 2:10-CV-2778-GEB-DAD, 2013 WL

27

3148467, at *9 (E.D. Cal. June 2013) (finding that other doctors subsequently choosing to

28

prescribe treatment that plaintiff requested does not necessarily show that the previous care
51
15-cv-02059-AJB-BGS

1

provided by the defendants was medically unacceptable, may have constituted a mere

2

difference of opinion, neglect, or medical malpractice); Christy v. Robinson, 216 F. Supp.

3

2d 398, 415 (D.N.J. 2002) (finding that defendant was not deliberate indifferent for not

4

agreeing with previous doctors and using defendant’s own professional judgment). Dr.

5

Sedighi was not required to agree with prior medical providers or give the specific course

6

of treatment that Plaintiff requested.

7

The record, viewed in the light most favorable to the Plaintiff, indicates that Dr.

8

Sedighi’s decision to not prescribe Gabapentin does not rise to the high standard for

9

deliberate indifference. In fact, Plaintiff’s medical history supports Dr. Sedighi’s choice

10

of pain medication. Therefore, Plaintiff has failed to raise a genuine and material factual

11

dispute as to whether Dr. Sedighi was deliberately indifferent to Plaintiff’s serious medical

12

condition on March 24, 2015.
c. Plaintiff’s Unpled Allegation of Deliberate Indifference for
Restarting Elavil

13
14
15

In his Opposition, Plaintiff alleges that on March 24, 2015 he informed Dr. Sedighi

16

of his severe pain and that Elavil made him drowsy, dizzy, with suicidal thoughts. (ECF

17

No. 82 at 3.) Yet, Plaintiff claims that Dr. Sedighi still prescribed Elavil after being told

18

this by the Plaintiff. (Id.) Plaintiff alleges that Dr. Sedighi was deliberately indifferent for

19

prescribing Elavil at 10 mg, claiming that 10 mg is a very low dosage that is considered as

20

no treatment at all to control his severe nerve pain. (Id. at 10.) Plaintiff then goes on to

21

allege that Dr. Sedighi also knew that Elavil was ineffective for his pain even at 75 mg.

22

(Id.) Plaintiff confirms his serious medical condition is severe pain that causes suicidal

23

ideation and deprives him of life’s necessities. (Id. at 13.)

24

This claim is not in Plaintiff’s TAC. The Court finds it is not properly raised and

25

Plaintiff has not offered any justification for his failure to raise it in his TAC.32 See Wasco

26
27
In fact, this new allegation directly contradicts Plaintiff’s TAC wherein he alleged that Dr. Sedighi
refused to prescribe him any pain medication. (See ECF No. 70 at 10–11; Cf. ECF No. 82 at 4–6, 10.)
32

28

52
15-cv-02059-AJB-BGS

1

Products, 435 F.3d at 992 (“Simply put, summary judgment is not a procedural second

2

chance to flesh out inadequate pleadings”); Brass, 328 F.3d at 1197–98 (upholding the

3

district court’s finding plaintiff had waived § 1983 arguments raised for first time in

4

summary judgment motion where nothing in amended complaint suggested those

5

arguments, and plaintiff offered no excuse or justification for failure to raise them earlier);

6

see also James, 253 F. Supp. 3d at 1091 n.3 (“Ninth Circuit precedent is clear: neither new

7

factual allegations nor new claims presented in opposition to summary judgment are

8

properly considered.”); Martin v. Rubalcava, No. 2:12-CV-2232-EFB P, 2014 WL 794342,

9

at *6 (E.D. Cal. Feb. 2014) (“Plaintiff may not, however, add new claims against defendant

10

by way of his opposition to defendant’s motion for summary judgment.”); Williams, 2012

11

WL 1194160 at *9 n.3 (declining to consider plaintiff’s attempt to transform his claim

12

against a defendant doctor from one instance of cancelling a morphine prescription to a

13

claim that the defendant doctor denied him pain medication for years).

14

The Court will nonetheless address the merits of this unpled and contradictory claim

15

against Dr. Sedighi. As previously noted, Plaintiff may not rely on the allegations in the

16

complaint to meet his burden, but “must come forward with specific facts showing that

17

there is a genuine issue for trial.” Matsushita Elec. Indus. Co., 475 U.S. at 587; see also

18

Gonzales v. Carrillo, No. EDCV 11-1028-JAK-JPR, 2013 WL 1700964, at *8 (C.D. Cal.

19

Mar. 2013), report and recommendation adopted, No. EDCV11-1028-JAK-JPR, 2013 WL

20

1738422 (C.D. Cal. Apr. 2013) (granting defendant’s motion for summary judgment when

21

plaintiff failed to set forth specific facts or evidence demonstrating the existence of a triable

22

issue that he was subject to an objectively substantial risk of harm while in the general

23

population, despite plaintiff’s subjective fear of imminent harm); Taylor v. List, 880 F.2d

24

1040, 1045 (9th Cir. 1989) (“[S]ummary judgment motion cannot be defeated by relying

25

solely on conclusory allegations unsupported by factual data.”); Funk v. Schriro, No.

26

CV08-0739-PHXGMSJCG, 2009 WL 4898262, at *7 (D. Ariz. Dec. 2009) (granting

27

summary judgment because Plaintiff failed to present specific facts or evidence

28
53
15-cv-02059-AJB-BGS

1

demonstrating that his placement in a certain prison unit exposed him to an objectively

2

intolerable risk of harm).

3

Since this March 24, 2015 deliberate indifference allegation was not raised in

4

Plaintiff’s TAC, the Court applies this standard to Plaintiff’s allegation in his Opposition.

5

Accordingly, apart from his allegations in his Opposition, Plaintiff must come forward with

6

specific facts indicating that Dr. Sedighi was deliberately indifferent on March 24, 2015

7

for restarting Plaintiff on 10 mg of Elavil.

8

Plaintiff’s claim that Dr. Sedighi knew Elavil was ineffective at 75 mg for Plaintiff’s

9

pain is not supported by the record. Plaintiff has been on Elavil since he was in Calipatria

10

state prison, at doses ranging from 25 mg to 75 mg. (See ECF Nos. 70 at 24, 26, 28; 80-1

11

at 17–18, 20, 32, 48–49, 51, 55, 57–58, 64–65; 82 at 23, 47.) None of Plaintiff’s medical

12

records indicate that Elavil was ineffective for his pain at 75 mg. Plaintiff’s medical

13

records actually support the opposite inference since Plaintiff has been consistently on

14

Elavil from 25 mg to 75 mg for the past year. (See ECF Nos. 80-1 at 48–49, 51, 54–55,

15

57–58, 64–65, 71, 85–86; 82 at 23, 49–58.) In fact, on November 18, 2014, Dr. Chau

16

increased Plaintiff’s Elavil dosage after the Plaintiff stated that he “would like to increase

17

the dose for the amitriptyline [to 75 mg].” (Id. at 65.)

18

Apart from Plaintiff’s unsupported allegation that Dr. Sedighi knew Elavil was

19

ineffective for his pain at 75 mg, Plaintiff alleges that on March 24, 2015 he told Dr.

20

Sedighi the severeness of his pain and that Elavil made him drowsy, dizzy, with suicidal

21

thoughts. (See ECF No. 82 at 3.) However, in his Opposition, Plaintiff does not allege that

22

he told Dr. Sedighi that Elavil was also ineffective for his pain. (See id.) Dr. Sedighi’s

23

medical consultation on March 24, 2015 confirms that Plaintiff did not complain about

24

Elavil being ineffective for pain. (See ECF 80-1 at 85–86.) Plaintiff has failed to raise a

25

factual dispute as to whether Dr. Sedighi was made aware that Elavil was ineffective for

26

pain. The Court will nonetheless address whether Dr. Sedighi was deliberately indifferent

27

to Plaintiff’s severe pain by prescribing 10 mg of Elavil.

28

///
54
15-cv-02059-AJB-BGS

1

i.

Medically Unacceptable Treatment

2

The issue presented is whether Plaintiff has presented sufficient facts to show that

3

the course of treatment chosen by Dr. Sedighi on March 24th, i.e. restarting Elavil for pain,

4

was medically unacceptable under the circumstances. See Jackson, 90 F.3d at 332.

5

The Court adopts its findings in Section I(A)(2)(c)(i), in which the Court found that

6

there was insufficient evidence to show that Dr. Sedighi’s course of treatment for Plaintiff’s

7

severe pain on March 24th, i.e. prescribing Elavil, was medically unacceptable. Whereas

8

Section I(A)(2)(c)(i) dealt with Dr. Sedighi restarting Plaintiff on Elavil wherein Plaintiff

9

alleged it caused him suicidal thoughts, this section deals with Dr. Sedighi restarting

10

Plaintiff on Elavil wherein Plaintiff alleges it was ineffective to Plaintiff’s serious medical

11

need, severe pain. (See ECF No. 80-1 at 86, 105.)

12

As analyzed above, Plaintiff’s medical history supports Defendants’ position that

13

Elavil for pain was a medically acceptable treatment for Plaintiff. Plaintiff has been

14

prescribed Elavil throughout the years, even while at Calipatria state prison, with no

15

indication that Elavil was inappropriate for treating Plaintiff’s pain. (See ECF Nos. 70 at

16

24, 26, 28; 80-1 at 17–18, 20, 32, 48–49, 51, 55, 57–58, 64–65; 82 at 23, 47.) On July 22,

17

2014, Dr. Chau noted that Plaintiff “denied any worsening of his back pain” while on Elavil

18

and continued its prescription. (ECF No. 80-1 at 48–49.) On November 18, 2014, Dr.

19

Chau increased Plaintiff’s Elavil dosage after the Plaintiff stated that he “would like to

20

increase the dose for the amitriptyline [to 75 mg].” (Id. at 65.)

21

In support of their position, Defendants also provided Dr. Feinberg’s declaration.

22

(See id. at 1–15.) Based on his review of Plaintiff’s medical records, Dr. Feinberg opined

23

that the treatments Dr. Sedighi provided Plaintiff were medically appropriate. (Id. at 13.)

24

Dr. Feinberg stated that Dr. Sedighi responded to Plaintiff’s complaint of pain on March

25

24, 2015 by restarting him on Elavil, which is a neuropathic pain medication clinically

26

appropriate for Plaintiff’s complaint of pain. (Id.) Plaintiff, for his burden, has not

27

provided specific evidence to support his opinion that Elavil was inappropriate to treat his

28

pain.
55
15-cv-02059-AJB-BGS

1

Plaintiff’s belief that he should have been prescribed something other than Elavil is

2

at best, a difference of opinion, and does not rise to the level of deliberate indifference. See

3

Garcia v. Sleeley, No. 314CV01525JLSPCL, 2018 WL 3303013, at *11 (S.D. Cal. July

4

2018) (finding no deliberate indifference, only a difference of medical opinion, where

5

defendants’ “underprescribed” Plaintiff with a combination of “weak” pain relieving

6

medications, where medications did not alleviate Plaintiff’s severe pain, but rather

7

enhanced the pain by causing serious side effects. Court held that defendants “responded

8

to Plaintiff’s medical needs in a way they saw fit” by making modifications to treatment.),

9

report and recommendation adopted as modified, No. 14-CV-1525-JLS-PCL, 2018 WL

10

5134281 (S.D. Cal. Oct. 2018); Rodriguez v. Kroxton, No. CV 17-9231-DMG-KK, 2018

11

WL 339936, at *4 (C.D. Cal. Jan. 2018) (finding that it is not deliberate indifference, only

12

a difference of opinion, for the doctor prescribing different “ineffective” medications than

13

requested); Parlin v. Sodhi, No. 10–6120-VBF-MRW, 2012 WL 5411710 at *4 (C.D. Cal.

14

Aug. 2012) (“[P]laintiff’s claim is that he did not receive the type of treatment and pain

15

medication that he wanted when he wanted it. His preference for stronger medication . . .

16

represents precisely the type of difference in medical opinion between a lay prisoner and

17

medical personnel that is insufficient to establish a constitutional violation.”); Lua v. LAC

18

CSP Med. Officials, No. CV 10–3548-DOC-JCG, 2011 WL 1743260, at *2–*3 (C.D. Cal.

19

March 2011) (finding prisoner who was placed on “lesser medications” instead of

20

prisoner’s requested pain relief medications, merely alleged a difference of medical

21

opinion as to his preferred pain medication rather than an actionable claim of deliberate

22

indifference). Also, Plaintiff is not entitled to request the prescription of a specific

23

medication. See Toguchi, 391 F.3d at 1058.

24

In sum, Plaintiff has failed to provide evidence to support his unpled claim that it

25

was medically unacceptable for Dr. Sedighi to restart Elavil. Therefore, viewing the

26

evidence in the light most favorable to the nonmoving party, Plaintiff has failed to establish

27

that there is a material factual dispute and the Court finds that there is insufficient evidence

28
56
15-cv-02059-AJB-BGS

1

to show that Dr. Sedighi’s course of treatment on March 24, 2015 for Plaintiff’s severe

2

pain, i.e. restarting Elavil, was medically unacceptable.

3

ii.

Conscious Disregard of an Excessive Risk to Plaintiff’s health

4

In his Opposition, Plaintiff alleges that Dr. Sedighi was deliberately indifferent for

5

prescribing Elavil at 10 mg, which Plaintiff considers as a very low dosage that was the

6

same as no treatment at all to control his severe pain. (ECF No. 82 at 10.) However,

7

outside of his Opposition, Plaintiff has not provided any specific evidence supporting this

8

claim.

9

Plaintiff’s medical history shows that Dr. Sedighi took steps to address Plaintiff’s

10

complaints during his two medical consultations. During Dr. Sedighi’s March 5, 2015

11

consultation, Plaintiff indicated that Elavil only made him drowsy and depressed his mood

12

further. (ECF No. 80-1 at 71–72.) Even though Dr. Sedighi replaced Elavil on March 5,

13

2015, there was no indication from this consultation that Elavil was ineffective for

14

Plaintiff’s pain. (See id.) During Dr. Sedighi’s March 24, 2015 consultation, Plaintiff

15

stated that he was having constant, and sometimes severe pain and indicated that Morphine

16

and Gabapentin helped his headache and backpain in county jail. (Id. at 85–86.) Dr.

17

Sedighi recounted Plaintiff’s medical history, including his March 5th complaints, and

18

noted that Keppra and Elavil were replaced by Trileptal for Plaintiff’s seizure and chronic

19

pain. (Id. at 85.) Dr. Sedighi counselled Plaintiff on taking his pain medication and noted

20

that “[Plaintiff] showed interest in restarting amitriptyline. [And that he] will restart

21

[Plaintiff] on amitriptyline 10 mg at bedtime for chronic pain that can help his chronic

22

headache and chronic low back pain.” (Id. at 86.) Dr. Sedighi found there was no

23

indication for narcotic pain and that he will continue to monitor the Plaintiff. (Id.) Plaintiff

24

verbalized his understanding. (Id.) At no time during either consultation did Plaintiff ever

25

indicate that Elavil was ineffective at treating Plaintiff’s pain, only that it caused

26

drowsiness and depressed his mood further.

27

Such conduct by Plaintiff is consistent with his medical history, in which he was

28

prescribed Elavil at varying doses, was compliant with taking the doses, and did not
57
15-cv-02059-AJB-BGS

1

complain about it being ineffective. In fact, after being prescribed Elavil, Plaintiff had a

2

medical consultation with Dr. Freyne. (Id. at 108–09.) Dr. Freyne noted that Plaintiff

3

stated that he was fully compliant with his medications, one being Elavil, and reports doing

4

well. (Id.) Dr. Freyne assessed Plaintiff and indicated that he is doing well, his medical

5

issues were stable, and Plaintiff agreed with a treatment plan that included Elavil. (Id. at

6

108.)

7

Dr. Sedighi’s medical consultation provides specific evidence that he did not

8

purposefully disregard Plaintiff’s serious medical need, his severe pain, by prescribing

9

Elavil. Plaintiff’s sole purpose for the March 24, 2015 consultation with Dr. Sedighi was

10

to address his chronic headache pain. (Id. at 85.) Dr. Sedighi addressed Plaintiff’s

11

complaint of severe pain by prescribing a pain medication to which Plaintiff was

12

accustomed to taking for his pain, Elavil. Plaintiff even showed interest in restarting that

13

specific pain medication. (Id. at 86.) Additionally, Plaintiff has not brought forth evidence

14

exhibiting Dr. Sedighi’s intent to consciously disregarded Plaintiff’s medical needs by

15

restarting Elavil.

16

Ultimately, Plaintiff has failed to show that Dr. Sedighi’s chosen course of treatment

17

at Plaintiff’s March 24, 2015 consultation to address his severe pain was medically

18

unacceptable under the circumstances. See Jackson, 90 F.3d at 332. Further, Plaintiff

19

presents insufficient evidence that Dr. Sedighi chose this course of treatment in conscious

20

disregard of an excessive risk to Plaintiff’s health. Id.

22

3. Subjective Prong Analysis: Dr. Sedighi’s Course of Treatment for
Plaintiff’s Seizures

23

Plaintiff must show that the prison official was “aware of facts from which the

24

inference could be drawn that a substantial risk of serious harm exists,” and drew such

25

inference. See Farmer, 511 U.S. at 837. Additionally, Plaintiff must present sufficient

26

evidence for a jury to reasonably infer that Dr. Sedighi’s course of treatment was medically

27

unacceptable under the circumstances, and that he chose this course of treatment in

28

conscious disregard of an excessive risk to Plaintiff’s health. See Jackson, 90 F.3d at 332.

21

58
15-cv-02059-AJB-BGS

1

a. Aware of Substantial Risk of Serious Harm

2

The issue presented is whether Dr. Sedighi was aware of a substantial risk of serious

3

harm by not prescribing any seizure medication during the March 24, 2015 consultation.

4

See Farmer, 511 U.S. at 837. Plaintiff alleges that Dr. Sedighi did not prescribe any seizure

5

medication despite Plaintiff’s complaints that it was discontinued for no reason and without

6

further instructions on putting him on a different seizure treatment plan. (ECF No. 70 at

7

11.) Plaintiff claims that even though Dr. Sedighi knew that Plaintiff needed to be put back

8

on seizure medication, Dr. Sedighi still decided to leave him without any seizure

9

medication despite knowing that Gabapentin was effective at treating his seizures. (Id.)

10

Plaintiff’s medical history shows that Plaintiff has been prescribed seizure

11

medication before even being transferred to RJD. (ECF Nos. 70 at 26, 28; 80-1 at 17–18,

12

20, 24; 82 at 25, 69–71, 73–74, 78–80, 84.)

13

consultation, doctors at RJD had continuously treated Plaintiff for possible seizures and

14

responded to Plaintiff’s complaints. (ECF Nos. 70 at 27–28, 39–40, 43; 80-1 at 26, 30, 41,

15

48–49, 51–52, 54–55, 57–58, 60–62, 64–65, 67, 71–72; 82 at 44–46.) Additionally,

16

Plaintiff has filed Health Care Service Request Forms, complaining of seizures and his

17

seizure medication. (ECF No. 82 at 37, 53–58, 101.)

Even before Dr. Sedighi’s medical

18

Further, Dr. Sedighi previously treated Plaintiff for his alleged seizures. (See ECF

19

Nos. 70 at 39–40; 80-1 at 71–72.) On March 5, 2015, Dr. Sedighi’s medical consultation

20

notes indicate that Dr. Gorney referred Plaintiff to Dr. Sedighi for an evaluation of the side

21

effects of Elavil and Keppra. (See id.) Dr. Sedighi noted that Plaintiff was taking Keppra

22

for his seizure disorder. (Id.) Dr. Sedighi also indicated that Plaintiff claimed to have had

23

a seizure the night before his admission to the crisis bed, but did not notify the medical

24

staff. (ECF Nos. 70 at 39; 80-1 at 71.) Dr. Sedighi noted that Plaintiff has been seen by

25

neurology twice and had two negative EEG exams. (Id.) Dr. Sedighi’s notes indicate that

26

Plaintiff’s MRI on his brain was normal and there have been no eye witness reports

27

regarding Plaintiff’s seizure history. (Id.) Regardless, Dr. Sedighi changed Plaintiff’s

28

medication to Trileptal for his seizures and pain. (ECF Nos. 70 at 40; 80-1 at 72.)
59
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1

However, on March 24, 2015, Dr. Sedighi was asked to evaluate Plaintiff’s

2

complaint of a chronic headache. (ECF No. 80-1 at 85.) According to his medical

3

consultation notes, Dr. Sedighi summarized Plaintiff’s pain complaints, noting that he was

4

started on Trileptal for his chronic pain syndrome and seizures. (Id. at 85–86.) Plaintiff

5

also claimed to have had a seizure a few nights prior, but Dr. Sedighi noted that there was

6

no report of any witnessed seizure activity. (Id. at 85.) According to Dr. Sedighi’s report,

7

Plaintiff never asked for seizure medication nor complained about not being prescribed it.

8

(See id. at 85–86.) Dr. Sedighi did note that Plaintiff’s seizure history was questionable

9

and that he would continue to observe Plaintiff for any seizure activity before restarting

10

medication. (Id. at 86.)

11

Nevertheless, Plaintiff’s medical history and interactions with Dr. Sedighi would

12

have led Dr. Sedighi to be aware that Plaintiff may suffer from a substantial risk of harm

13

by not being prescribed seizure medication. Despite multiple physicians questioning the

14

veracity of Plaintiff’s seizure activity, these physicians, including Dr. Sedighi, were still

15

observing Plaintiff to determine the true diagnosis for these alleged seizures. A reasonable

16

inference can be made that Dr. Sedighi was concerned with whether Plaintiff was suffering

17

from these alleged seizures. Thus, the Court finds that Plaintiff has met his burden and

18

raised a genuine material factual dispute as to whether Dr. Sedighi was aware of a

19

substantial risk of serious harm to Plaintiff’s health by not prescribing seizure medication

20

on March 24, 2015.

21
22
23

b. Deliberate Indifference for Not Prescribing Seizure Medication on
March 24, 2015
i.

Medically Unacceptable Treatment

24

In his TAC, Plaintiff alleges that Dr. Sedighi did not prescribe seizure medication

25

despite Plaintiff’s complaints that it was discontinued for no reason and without further

26

instructions on putting him on a different seizure treatment plan. (ECF No. 70 at 11.)

27

Plaintiff claims that he told Dr. Sedighi that he needed to be put back on seizure medication

28

and recommended Gabapentin, but was willing to take other ones, because “something is
60
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1

better than nothing.” (Id.) Plaintiff claims to have told Dr. Sedighi that “without any pills

2

[his] seizures become very aggressive and severe to points where my tongue rolls back and

3

I can’t breathe.” (Id.) Plaintiff states that Dr. Sedighi knew that Gabapentin was effective,

4

yet still decided to leave Plaintiff without any seizure medication. (Id.) Plaintiff states that

5

Dr. Sedighi stated “he didn’t care he was putting [Plaintiff’s] life at risk of harm, neither

6

what I was suffering. He was just not going to put me in anything for no medical reason.”

7

(Id.)

8

Plaintiff must provide specific evidence for a jury to reasonably infer that Dr.

9

Sedighi’s course of treatment on March 24, 2015 regarding Plaintiff’s seizures, i.e. not

10

prescribing seizure medication and observing Plaintiff for seizure activity, was medically

11

unacceptable under the circumstances. See Jackson, 90 F.3d at 332. A mere difference in

12

medical opinion is insufficient to meet the high bar to establish deliberate indifference and

13

Plaintiff is not entitled to request the prescription of a specific medication. See Toguchi,

14

391 F.3d at 1058. Further, a showing of medical malpractice or negligence falls short of

15

establishing deliberate indifference. See Hamby, 821 F.3d at 1092.

16

On March 24, 2015, Dr. Sedighi opined that Plaintiff’s history of seizure was

17

questionable and most possibly a psuedoseizure. (ECF No. 80-1 at 86.) In support, Dr.

18

Sedighi noted that “[Plaintiff] claims he has a seizure but there is no report of witnessed

19

seizure activity. [Plaintiff] was seen by neurologist on 11/04/2014 and for follow up on

20

01/05/2015. [Plaintiff] had a negative EEG x2 in 2011 and 2012, and his brain MRI was

21

normal back in September 2011.” (Id. at 85.) Dr. Sedighi then decided to continue

22

observing Plaintiff for any possible seizure activity before starting seizure medication.

23

(Id.)

24

Regarding whether Dr. Sedighi’s above course of treatment was medically

25

acceptable, multiple physicians prior to Dr. Sedighi’s March 24th medical consultation had

26

questioned the veracity of Plaintiff’s seizures. On August 7, 2014, Dr. Chau stated that

27

Plaintiff’s seizure disorder was “questionable” and is waiting for an evaluation to confirm

28

Plaintiff’s seizure diagnosis. (Id. at 51–52.) On October 3, 2014, Dr. Chau noted in his
61
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1

assessment section that “[a]dditional further [seizure] medication may not be appropriate.”

2

(Id. at 57–58.) On November 4, 2014, Dr. Malhorta stated that Plaintiff’s alleged seizure

3

was a “presumed seizure but there is no objective support & no convincing eyewitness

4

account.” (Id. at 61.) On November 18, 2014, Dr. Chau stated that he will continue Keppra

5

while the neurologist attempts to determine Plaintiff’s seizure diagnosis. (Id. at 65.)

6

Importantly, before Dr. Sedighi’s March 24, 2015 consultation, a group of medical

7

personnel had already decided that Plaintiff was to be placed on observation with no

8

additional seizure medication. On March 13, 2015, Dr. Bahro contacted the Chief of

9

Mental Health and the Chief of Psychiatry regarding Plaintiff’s treatment plan as to his

10

seizures. (Id. at 78.) According to Dr. Bahro’s notes, the Chief of Psychiatry told her that

11

“medical indicates that per records (including neuro) there is a question to the veracity of

12

the seizure dx and thus they want [Plaintiff] to be kept off anti-seizure meds for the time

13

being.” (Id.) Further, when examining Plaintiff for a crisis bed transfer on March 18, 2015,

14

NP Gysler noted that Plaintiff denied any complaints at that time and indicated that Plaintiff

15

was on a temporary medical hold until April 28, 2015 and cannot leave RJD. (Id. at 80.)

16

The above cited medical records support Dr. Sedighi’s course of treatment as being

17

medically acceptable. Dr. Sedighi’s report also indicates that he was following the medical

18

treatment plan decided on March 13, 2015, stating “[p]er recommendation from neurologist

19

[Plaintiff] has order for blood draw for prolactin level 20–30 minutes after possible seizure

20

activity. We will continue to monitor [Plaintiff].” (Id. at 86.)

21

Moreover, physicians after Dr. Sedighi’s March 24, 2015 medical consultation

22

continued to question Plaintiff’s alleged seizure disorder and acknowledged that Medical

23

was trying to determine Plaintiff’s condition before prescribing medication. On the night

24

of March 24th, the treating physicians at Sharp Chula Vista Medical Center noted that

25

Plaintiff had “no evidence of seizures.” (Id. at 93–101.) On March 25, 2015, Dr. Brown

26

also indicated that Plaintiff was not being prescribed seizure medication because Plaintiff

27

has never had a witnessed seizure and met with neurology twice without being given a

28

seizure disorder diagnosis. (Id. at 103.) Dr. Brown noted that “Medical is trying to confirm
62
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1

the diagnosis before prescribing additional [seizure] medications.” (Id.) This further

2

provides additional circumstantial evidence that observing Plaintiff before restarting

3

seizure medication was a medically acceptable treatment under the circumstances.

4

Other physicians, before and after the March 24, 2015 consultation, following the

5

same course of treatment as Dr. Sedighi provides corroboration that Dr. Sedighi did not

6

depart from the accepted professional standards in treating Plaintiff. See Davis v. Ghosh,

7

No. 13-CV-4670, 2015 WL 3396805, at *5 (N.D. Ill. May 2015) (finding that the defendant

8

was not deliberately indifferent when defendant continuously treated plaintiff and found

9

that the treatment was not a substantial departure from the accepted professional standards

10

when other treating physicians pursued nearly identical treatment plans); see also Brown

11

v. Mace-Liebson, 779 F. App’x 136, 142 (3d Cir. 2019), cert. denied, 140 S. Ct. 1304

12

(2020) (finding that the doctor was not deliberately indifferent in denying plaintiff’s

13

request for an MRI or surgery, where evidence shows doctor exercised professional

14

judgment during treatment, did not suggest denial or delay of treatment was due to non-

15

medical reasons, and other physicians pursued similar course of treatment); Pyles v. Fahim,

16

771 F.3d 403, 411 (7th Cir. 2014) (holding that the plaintiff “did not submit evidence from

17

which a jury reasonably could find that [the doctor’s] exercise of medical judgment

18

departed significantly from accepted professional norms” where doctor’s denial of treating

19

plaintiff with a MRI was endorsed by other doctors that treated plaintiff as well, thus not

20

establishing plaintiff’s claim for deliberate indifference). In fact, these physicians were

21

trying to accurately diagnose Plaintiff’s condition before prescribing any medication since

22

Plaintiff continued to have unwitnessed seizures after trying multiple different types of

23

seizure medications.

24

Additionally, Dr. Feinberg declared that Dr. Sedighi’s decision to continue to

25

observe Plaintiff for seizure activity before restarting seizure medication was medically

26

appropriate under the circumstances. (ECF No. 80-1 at 13–14.) Dr. Feinberg stated that

27

other physicians had already determined that it was appropriate to observe Plaintiff before

28

restarting seizure medication and there was no reason on March 24, 2015 for Dr. Sedighi
63
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1

to change that treatment plan. (Id. at 13.) Dr. Feinberg declared that there were multiple

2

aspects of Plaintiff’s medical history which supported the decision to observe Plaintiff for

3

seizure activity before restarting medication, such as being unwitnessed despite their

4

frequency and no objective tests at the time supported Plaintiff’s claim of seizure disorder.

5

(Id. at 13–14.)

6

Plaintiff has not provided specific facts that cast doubt on Defendants’ expert

7

testimony regarding whether Dr. Sedighi’s chosen course of treatment for Plaintiff’s

8

seizures was medically unacceptable under the circumstances. See Barkley v. California

9

Corr. Health Care Servs., No. 216CV01386KJMCKDP, 2018 WL 6508052, at *10 (E.D.

10

Cal. Dec. 2018) (finding that plaintiff’s deliberate indifference claim fails since “Plaintiff

11

has not submitted any evidence to cast doubt on defendants’ unrefuted expert testimony

12

which establishes that prescribing Sulindac was medically appropriate under the

13

circumstances and within the standard of care and skill ordinarily exercised by reputable

14

members of the medical profession at that time.”)

15

Plaintiff argues that Dr. Sedighi should have prescribed Gabapentin, or any other

16

medication that he has not tried, as opposed to Dr. Sedighi’s choice of treatment. (ECF

17

Nos. 70 at 10–11; 82 at 4, 6; 85 at 5.) Plaintiff claims that Gabapentin was an appropriate

18

medication, since it has been prescribed in 2011 and 2016.33 (ECF No. 82 at 8, 10–12.)

19

However, Plaintiff’s belief that he should have been given a different course of treatment

20

does not rise to the level of deliberate indifference and is at best, a difference of opinion.

21

And a mere difference in opinion is insufficient to meet the high bar to establish deliberate

22

indifference. See Toguchi, 391 F.3d at 1058. Also, Plaintiff is not entitled to request the

23
24
25
26
27
28

33

In a follow up Neurology Note dated October 8, 2011, Dr. Straga reported that Plaintiff claimed he
had a seizure on September 28, 2011. (ECF No. 80-1 at 20.) Dr. Straga noted that at the time of the
seizure, Plaintiff was taking 300 mg of Neurontin and 500 mg of Keppra. (Id.) Plaintiff’s October 14,
2011 Medication Reconciliation reveals Neurontin was ordered to be stopped in two weeks. (Id. at 24.)
Further, Dr. Noonan’s October 14, 2011 PCP Progress Note indicated that neurology recommended
discontinuing Neurontin. (ECF No. 70 at 27.) These medical reports directly contradict Plaintiff’s
position about the effectiveness of Gabapentin in 2011.
64
15-cv-02059-AJB-BGS

1

prescription of a specific medication and failure to follow another doctor’s advice does not

2

amount to deliberate indifference. See Toguchi, 391 F.3d at 1058; Christy, 216 F. Supp.

3

2d at 415 (finding that the defendant was not deliberate indifferent for not agreeing with

4

previous doctors and using defendant’s own professional judgment). Dr. Sedighi was not

5

required to give the specific course of treatment that Plaintiff requested or agree with prior

6

medical providers.

7

Plaintiff has not presented sufficient evidence to allow a jury to reasonably infer that

8

Dr. Sedighi’s course of treatment was medically unacceptable under the circumstances.

9

See Jackson, 90 F.3d at 332. Dr. Sedighi’s decision to observe Plaintiff for seizure activity

10

and not prescribe seizure medication is corroborated by multiple other physicians that also

11

treated Plaintiff. These physicians, including the Chief of Psychiatry and the Chief of

12

Mental Health, questioned Plaintiff’s seizure disorder and had already determined that no

13

seizure medication be provided to the Plaintiff until there is a true diagnosis for the seizure

14

disorder. (See ECF No. 80-1 at 41, 49, 51, 57–58, 60–61, 64–65, 67, 72–73, 78, 85–86,

15

93, 95, 103.) On March 24, 2015, Dr. Sedighi followed the medical treatment plan already

16

put in place by these physicians. Therefore, the Court finds that Plaintiff has failed to show

17

a material factual dispute as to whether Dr. Sedighi’s course of treatment on March 24,

18

2015, observing Plaintiff for seizure activity and not prescribing seizure medication, was

19

medically unacceptable under the circumstances.

20

ii.

Conscious Disregard of an Excessive Risk to Plaintiff’s health

21

Aside from the analysis above finding that Plaintiff failed to show that Dr. Sedighi’s

22

course of treatment regarding Plaintiff’s seizures was medically unacceptable, the Court

23

also finds that there is insufficient evidence that Dr. Sedighi consciously disregarded an

24

excess risk to Plaintiff’s health. In his TAC, Plaintiff alleges that Dr. Sedighi knew that

25

Gabapentin was effective, yet still decided to leave Plaintiff without any seizure

26

medication. (ECF No. 70 at 11.) Plaintiff states that “[Dr. Sedighi] didn’t care he was

27

putting [Plaintiff’s] life at risk of harm, neither what I was suffering. [Dr. Sedighi] was just

28

not going to put me in anything for no medical reason.” (Id.)
65
15-cv-02059-AJB-BGS

1

Despite Plaintiff’s allegation that Dr. Sedighi disregarded his serious medical need

2

by not prescribing seizure medication, Plaintiff’s medical history shows that Dr. Sedighi

3

continuously took care of Plaintiff’s needs. On March 5, 2015, Dr. Sedighi had a

4

consultation with Plaintiff regarding an evaluation of Elavil’s and Keppra’s side effects.

5

(ECF No. 80-1 at 71.) At this consultation, Plaintiff complained that Elavil and Keppra

6

made him feel drowsy and more depressed and wanted them to be changed because he did

7

not like those effects. (Id.) Dr. Sedighi changed Plaintiff’s medications to Trileptal, stating

8

“that [it] can be used for seizure and chronic pain management.” (Id. at 71–72.)

9

Then on March 24, 2015, Dr. Sedighi saw Plaintiff in order to treat his chronic

10

headache, which Plaintiff complained of during his March 19, 2015 consultation with

11

Nurse Gavin. (Id. at 82–83, 85.) At the consultation, Plaintiff complained about his

12

chronic headache and chronic lower back pain. (Id. at 85.) Dr. Sedighi prescribed Elavil

13

for Plaintiff’s pain and stated there is no indication for narcotic pain medication. (Id. at

14

86.) Further, Dr. Sedighi indicated that he will continue to monitor Plaintiff as to his

15

seizure activity. (Id.) Plaintiff verbalized that he understood. (Id.) Even after Plaintiff’s

16

alleged seizure on the night of March 24th, Dr. Sedighi was there to treat Plaintiff before

17

sending him to the ER and was there to treat the Plaintiff when he returned.34 (Id. at 91.)

18

In sum, Dr. Sedighi’s conduct towards Plaintiff demonstrates that Dr. Sedighi sought

19

to care and treat Plaintiff’s medical needs, not disregarded them. The records do not

20

support Plaintiff’s allegation that he had a sufficiently culpable state of mind when

21

providing his care. See Wallis, 70 F.3d at 1076. Plaintiff’s two medical consultations with

22

Dr. Sedighi show that Dr. Sedighi was responsive to Plaintiff’s complaints and did not

23

purposefully disregarded them. Both March 5th and March 24th Medical Consultation

24

reports included detailed notes of Plaintiff’s recent medical history, Plaintiff’s complaints,

25
26
27
28

34

Dr. Sedighi ordered a one-on-one sitter to monitor Plaintiff for seizure activity and a wheel chair to
assist Plaintiff in moving around outside of his cell. (ECF No. 70 at 45.)

66
15-cv-02059-AJB-BGS

1

and Dr. Sedighi’s assessment and recommendations. (ECF No. 80-1 at 71–72, 85–86.) Dr.

2

Sedighi did not omit any important information from his Medical Consultation reports,

3

thereby allowing subsequent medical personnel to be able to properly evaluate Plaintiff.

4

On the other hand, Plaintiff has not brought forth evidence exhibiting Dr. Sedighi’s intent

5

to consciously disregarded Plaintiff’s medical needs.

6

Therefore, viewing the evidence in the light most favorable to the nonmoving party,

7

Plaintiff has failed to show that Dr. Sedighi’s chosen course of treatment for Plaintiff’s

8

seizures on March 24, 2015 was medically unacceptable under the circumstances. See

9

Jackson, 90 F.3d at 332. Further, Plaintiff failed to present sufficient evidence indicating

10

that Dr. Sedighi chose this course of treatment was in conscious disregard of an excessive

11

risk to Plaintiff’s health. (Id.)
4. Plaintiff’s Eighth Amendment Claim against Dr. Doe #1 for
Discontinuing His Pain and Seizure Medication

12
13
14

In his TAC, Plaintiff alleges an Eighth Amendment claim against “Dr. Doe #1” for

15

taking him off of seizure and pain medication.35 (ECF No. 70 at 10.) In a footnote, Plaintiff

16

makes the unsupported allegation that he learned that Dr. Doe #1 was Dr. Sedighi. (Id. at

17

10 n.1.) According to Plaintiff, he complained to Dr. Bahro on March 13, 2015 that he was

18

not prescribed any pain or seizure medication. (Id.) Plaintiff states that “[he] asked [Dr.]

19

Bahro [. . .] to call a head doctor. She sent an e-mail to doctor, and doctor send Dr. Bahro

20

an email stating [he] wont be getting anything.” (Id.) Plaintiff claims that it was Dr.

21
22
35

23
24
25
26
27
28

Plaintiff further alleges that his pain and seizure medications were discontinued on or about April 11–
18, 2015 and cites to page 548 of Exhibit E in his TAC. (ECF No. 70 at 10.) Plaintiff attached Dr.
Bahro’s Interdisciplinary Progress Notes dated March 13, 2015 with a handwritten “548” in the upper
right corner of the page. (Id. at 43.) It can be inferred that Plaintiff is citing to Dr. Bahro’s
Interdisciplinary Progress Notes, since this is only document in Exhibit E that displays the number
“548.” Additionally, when he summarizes his medical history, Plaintiff states that he was taken off of
pain and seizure medication on March 13, 2015 and states that it was Dr. Sedighi who discontinued
Plaintiff’s seizure medication. (Id. at 8, 8 n.1.) Therefore, the Court interprets Plaintiff’s allegation that
it was Dr. Sedighi, not Dr. Doe #1, who discontinued Plaintiff’s pain and seizure medications which
occurred on March 13, 2015.

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15-cv-02059-AJB-BGS

1

Sedighi who was the doctor that ordered the discontinuation of Plaintiff’s pain and seizure

2

medication. (Id. at 8 n.1, 10 n.1.)

3

Plaintiff’s unsupported claim in his TAC, alleging that Dr. Sedighi was the one to

4

discontinue Plaintiff’s pain and seizure medication, is directly contradicted by his medical

5

records. Plaintiff’s medical history shows that Dr. Sedighi was not the person that took

6

Plaintiff off of his pain and seizure medication on March 13, 2015. (See ECF No. 80-1 at

7

75–78.) On that date, Nurse Boucher addressed Plaintiff’s complaint regarding a rash all

8

over his neck, chest and back that caused discomfort. (Id. at 75.) Nurse Boucher wrote

9

that there were no previous episodes and indicated that Plaintiff was previously prescribed

10

Trileptal. (Id.) Nurse Boucher completed the “MD referral” and noted that Plaintiff was

11

to discontinue Trileptal.36 (Id.) Nurse Boucher then contacted a physician to discuss the

12

discontinuation of other medications and indicated that they are to schedule a follow-up

13

appointment with a physician if Plaintiff does not show improvement after three days. (Id.)

14

Although it is difficult to interpret what Nurse Boucher wrote in the “Additional

15

Comments” section, it appears that Nurse Boucher indicated that Plaintiff is to be admitted

16

if there is any increase in Plaintiff’s seizures and to contact medical immediately. (Id. at

17

76.) Then Nurse Boucher wrote that Plaintiff understood in his own words that he is to

18

utilize urgent/emergency system, if seizures occur. (Id.) Nurse Boucher then noted that

19

Plaintiff is to take Vistaril as prescribed to treat his rash and to seek medical attention if

20

the rash worsens. (Id.)

21

Later that same day, Dr. Bahro met with Plaintiff due to his concerns about his health

22

and not being on any seizure medication. (ECF Nos. 70 at 43; 80-1 at 78.) After Plaintiff

23

complained that he had not been prescribed any seizure medication, Dr. Bahro consulted

24

with Nurse Boucher, the Chief of Psychiatry, and the Chief of Mental Health, whom all

25

agreed upon the protocol in not prescribing Plaintiff any seizure medication. (Id.) This

26
27
Trileptal was prescribed for Plaintiff’s pain and seizures. (See ECF No. 80-1 at 72.) As such, it was
Nurse Boucher who discontinued Plaintiff’s pain and seizure medication, not Dr. Sedighi.
36

28

68
15-cv-02059-AJB-BGS

1

decision was based on the information received from the Chief of Psychiatry, who decided

2

that Plaintiff’s medical records indicated there was a question to the veracity of Plaintiff’s

3

alleged seizures and decided to keep Plaintiff off seizure medications “for the time being.”

4

(Id.)

5

In sum, the record establishes that Dr. Sedighi did not discontinue Trileptal,

6

Plaintiff’s pain and seizure medication, on March 13, 2015. Plaintiff’s medical records

7

also establish Dr. Sedighi did not play a part in deciding to not prescribe any seizure

8

medication. In sum, Plaintiff has failed to provide sufficient evidence showing that Dr.

9

Sedighi was the one who discontinued Plaintiff’s pain and seizure medications on March

10

13, 2015. Therefore, Plaintiff’s deliberate indifference claim against Dr. Sedighi for

11

discontinuing his pain and seizure medications fails.

12

Therefore, based on everything stated above, the Court finds that Dr. Sedighi was

13

not deliberately indifferent to Plaintiff’s medical needs. The Court RECOMMENDS

14

Defendants’ Motion for Summary Judgment (ECF No. 80) as to Plaintiff’s Eighth

15

Amendment claim against Dr. Sedighi be GRANTED.

16
17

C. Plaintiff’s Eighth Amendment Claim Against Nurse Busalacchi as to
Plaintiff’s Pain and Seizures

18

Plaintiff alleges that Defendant Nurse Busalacchi acted with deliberate indifference

19

to his serious medical needs, in violation of the Eighth Amendment. (ECF No. 70.)

20

Defendants move for entry of summary judgement against Plaintiff on this claim. (ECF

21

No. 80.) This Section addresses Plaintiff’s allegations in his TAC that Nurse Busalacchi

22

was deliberately indifferent for increasing Plaintiff’s pain medication and continuing

23

Plaintiff’s seizure medication on April 13, 2015. (See ECF No. 70.)

24
25
26
27
28

1. Objective Prong Analysis: Serious Medical Need as to Plaintiff’s Pain and
Seizures
The objective prong requires a prisoner to show deliberate indifference to a “serious”
medical need in order to establish an Eighth Amendment claim for a prison official being
deliberately indifferent to a prisoner’s serious medical needs. McGuckin, 974 F.2d at 1059.
69
15-cv-02059-AJB-BGS

1

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

2

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

3

discussed in Section I(B)(1), Plaintiff claims that his pain and seizures are a serious medical

4

condition. (ECF Nos. 70 at 13; 82 at 13, 18–19.)

5

a. Serious Medical Need: Pain

6

Pain that it is so severe that he has been unable to fulfill his basic needs of eating,

7

sleeping, and going to the bathroom is considered a serious medical need. See McGuckin,

8

974 F.2d at 1060 (citing Wood, 900 F.2d at 1337–41; Hunt, 865 F.2d at 200–01). In his

9

TAC and pleadings, Plaintiff claims he suffers from severe pain and that Elavil is

10

ineffective for his pain, causing him to have suicidal thoughts and other severe side effects

11

that deprives Plaintiff of life’s necessities. (See ECF Nos. 70 at 13; 82 at 13; 85 at 7.)

12

Severe pain that causes such effects is a serious medical condition. Further, Plaintiff’s

13

medical history corroborates that he suffers from chronic pain and has consistently been

14

prescribed pain medication. The Court finds that Plaintiff has established a material issue

15

of fact as to whether he has a serious medical condition, i.e. severe pain. Therefore, the

16

Court considers Plaintiff’s severe pain as a serious medical need.

17

b. Serious Medical Need: Seizures

18

Alleged seizures are considered a serious medical condition regardless if “they occur

19

as a result of a diagnosed condition, such as epilepsy [ ] or from an unknown or

20

undiagnosed condition.” Mellender, 2006 WL 3091111, at *4 (citing Hudson, 148 F.3d at

21

864). Plaintiff has presented evidence that on April 13, 2015 he was suffering from an

22

alleged seizure disorder. (See ECF Nos. 70 at 13; 82 at 18.) In her report, Nurse Busalacchi

23

noted that Plaintiff indicated that his last seizure was on March 24, 2015 and was currently

24

on Dilantin to treat his seizures. (See ECF No. 80-1 at 105.) Plaintiff’s medical history

25

also establishes this medical need, in that Plaintiff has consistently been prescribed seizure

26

medication. Therefore, the Court considers Plaintiff’s alleged seizure disorder as a serious

27

medical need.

28

///
70
15-cv-02059-AJB-BGS

1

2. Subjective Prong Analysis: Increasing Elavil for Plaintiff’s Pain

2

In his TAC, Plaintiff alleges that on April 13, 2015 he told Nurse Busalacchi that

3

“Elavil was once prescribed to [Plaintiff] in 2011 but months after was taken off due to the

4

Elavil was ineffective to [the] 3 symptoms [Plaintiff] had (1) Neuropathy; (2) Head nerve

5

damage; (3) Top back and neck nerve damage. It was also taken off because the side effects

6

were severe enough to what the 8th Amendment has consider to be a violation of its right.”

7

(ECF No. 70 at 19–20.) Plaintiff also alleges that Elavil was taken off due to causing severe

8

side effects, such as “(1) nausea; (2) deprivation of sleep; (3) deprivation of walking; (4)

9

deprivation of able to eat and sustain food on my stomach; (5) falling and hurting myself

10

due to dizziness of the side effect. (6) interfere with breathing, severe pain.” (Id. at 20.)

11

Plaintiff states that Nurse Busalacchi knew Elavil “was taken off on March 2015 due to

12

been part of why [he] try to commit suicide” and that “the medication did work for [his]

13

neuropathy & head nerve damage was Neurontin” but was willing try something else other

14

than Elavil. (Id.) Plaintiff states that after telling Nurse Busalacchi all of this, she “still

15

sustain Elavil, actually she raised dosage not caring it was putting [his] life at risk and

16

medication was ineffective for [his] nerve pain.” (Id.)

17

For a claim for deliberate indifference, the Plaintiff must show that Nurse Busalacchi

18

was “aware of facts from which the inference could be drawn that a substantial risk of

19

serious harm exists,” and drew such inference. See Farmer, 511 U.S. at 837. Plaintiff

20

must then present sufficient evidence for a jury to reasonably infer that Nurse Busalacchi’s

21

course treatment was medically unacceptable under the circumstances, and that Nurse

22

Busalacchi chose this course of treatment in conscious disregard of an excessive risk to

23

Plaintiff’s health. See Jackson, 90 F.3d at 332.

24

a. Aware of Substantial Risk of Serious Harm

25

The issue presented is whether Nurse Busalacchi was aware that a substantial risk of

26

serious harm existed by raising Elavil’s dose, and drew such inference. See Farmer, 511

27

U.S. at 837. In his TAC, Plaintiff alleges that he told Nurse Busalacchi on April 13, 2015

28

that Elavil was taken off in 2011 for being ineffective to his severe pain. (See ECF No. 70
71
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1

at 19.) This allegation is unsupported by the record. Although Plaintiff’s medical history

2

shows that Elavil was discontinued in 2011, no explanation was given for its

3

discontinuation. (See ECF No. 80-1 at 17–18.) Dr. Straga’s Neurological Consultation

4

dated August 23, 2011 indicated that Plaintiff had been taken off Elavil once he arrived to

5

Calipatria State Prison, but no explanation was given for why it was taken off. (Id.)

6

Nothing in Plaintiff’s medical history would have led Nurse Busalacchi to draw the

7

inference that Elavil was discontinued in 2011 due to being ineffective for his severe pain.

8

Plaintiff’s medical records show an extensive medical history in which he was

9

continuously prescribed Elavil between 25 mg and 75 mg for chronic pain, yet Plaintiff

10

had not made any complaints that Elavil was ineffective or caused severe side effects. (See

11

ECF Nos. 70 at 24, 26, 28; 80-1 at 17–18, 20, 24, 30, 32, 48–49, 51, 54–55, 57–58, 64–65,

12

71, 85–86, 95, 103; 82 at 23, 47, 49–58.) On December 19, 2012, a Medical Administration

13

Record shows that Plaintiff was prescribed 25 mg of Elavil. (ECF No. 80-1 at 34.) On

14

April 10, 2014, a Medical Administration Record indicates that Plaintiff was still taking 25

15

mg of Elavil. (Id. at 34.) On July 22, 2014, Dr. Chau’s Medical Progress Note indicates

16

that Plaintiff’s Elavil prescription was continued after Plaintiff denied any worsening of

17

his back pain. (Id. at 48.) Dr. Chau’s August 7, 2014 Medical Progress Note indicates that

18

Plaintiff was now on 50 mg of Elavil. (Id. at 51.) Dr. Chau’s August 22, 2014 Medical

19

Progress Note shows that Plaintiff was not in any acute distress and made no complaints

20

that 50 mg of Elavil was ineffective to his severe pain. (Id. at 55.) In fact, Plaintiff sought

21

to increase his Elavil dosage from 50 mg to 75 mg on November 18, 2014. (Id. at 64.) In

22

sum, Plaintiff’s medical history would not have made Nurse Busalacchi aware that Elavil

23

was ineffective for Plaintiff’s severe pain. These records support the opposite conclusion

24

and provide a justification for increasing Plaintiff’s dose from 10 mg to 25 mg in response

25

to Plaintiff’s complaint about pain.

26

In his Opposition, Plaintiff refers to Nurse Busalacchi’s PCP Progress Note

27

regarding her consultation with Plaintiff on April 13, 2015 to support his claim that Nurse

28

Busalacchi knew that Elavil was ineffective for Plaintiff’s severe pain. (See ECF Nos. 8072
15-cv-02059-AJB-BGS

1

1 at 105; 82 at 14.) Nurse Busalacchi was assigned to follow up on Plaintiff’s 602 Form

2

appealing the denial of his request to switch to Gabapentin or Morphine. (ECF No. 80-1

3

at 105.) In his 602 Form dated March 29, 2015, Plaintiff claims that “on or about March

4

11–17, 2015 doctors took me off of seizure and neuropathy pain med. They wanted to

5

witness or see a seizure. I told them that ‘They were playing with my health,’ they didn’t

6

care. [. . .] Requesting Gabapentin or morphine for such pain and also for my neuropathy

7

pain.” (ECF No. 70 at 34.) Of note, Plaintiff made no complaints regarding Elavil in his

8

602 Form. (See id.) Plaintiff’s 602 Form did not provide notice to Nurse Busalacchi that

9

Plaintiff was making any complaint about Elavil being ineffective to his pain or causing

10

severe side effects. In fact, it appears that Plaintiff was still under the impression that he

11

had not been provided any pain medication.

12

On April 13, 2015, Nurse Busalacchi saw Plaintiff regarding his 602 From and

13

provided detailed notes in her PCP Progress Note. (ECF No. 80-1 at 105.) Nurse

14

Busalacchi noted that Plaintiff was currently on Elavil, while noting Plaintiff’s complaint

15

that 10 mg of Elavil was ineffective. (Id.) Nurse Busalacchi also indicated that Neurontin

16

and Morphine will not be prescribed. (Id.) Plaintiff then agreed to Nurse Busalacchi’s

17

plan on increasing Elavil to 25 mg and being referred for pain management. (Id.) Plaintiff

18

does not dispute that he made these statements. (See ECF No. 82 at 19.) A reasonable

19

inference can be made from this April 13th PCP Progress Note that Nurse Busalacchi was

20

made aware by Plaintiff that Elavil was ineffective to Plaintiff’s pain at a dosage of 10 mg.

21

This reasonable inference is also corroborated by Plaintiff’s medical history of being

22

prescribed Elavil at dosages of 25 mg to 75 mg for pain. An increase from 10 mg to 25 mg

23

was consistent with the prior year’s prescriptions. It was not until Plaintiff was seen by

24

Nurse Manning on May 1, 2015 that Plaintiff indicated that Elavil was not helping him at

25

25 mg. (Id. at 100.) Nurse Manning noted that Plaintiff stated, “[p]ain gets so bad

26

sometimes that I felt suicidal, but I’m not suicidal now.” (Id.) The Nurse reported that on

27

April 13, 2015, Plaintiff was referred to “M.H.” for pain management and had his Elavil

28

dosage increased. (Id.) At this consultation, Plaintiff stated, “Elavil is not helping me,
73
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1

even after increase.” (Id.) Such a statement provides circumstantial evidence that, at most,

2

Nurse Busalacchi was only aware that a 10 mg dose of Elavil was ineffective for Plaintiff’s

3

pain.

4

In his Sur-reply, Plaintiff alleges that Nurse Busalacchi knew that “on 3-5-15

5

Amitriptyline got taken off when it was at 75 mg due to its ineffectiveness and life-

6

threatening side effect. [. . .] [Nurse Busalacchi] should have known it will be ineffective.”

7

(ECF No. 85 at 8.) Plaintiff’s allegation that Elavil was discontinued on March 5, 2015

8

due to being ineffective to his severe pain is unsupported by the record. (See ECF Nos. 70

9

at 39, 42; 80-1 at 71–73.) On March 5, 2015, Dr. Sedighi saw Plaintiff after Dr. Gorney

10

referred Plaintiff to him for an evaluation of Elavil’s and Keppra’s side effects. (ECF No.

11

80-1 at 72.) Regarding Elavil, Plaintiff stated that it made him drowsy, depressed his mood

12

further, and did not like those effects. (Id.) At the time, Plaintiff was taking 75 mg of

13

Elavil. (Id. at 71.) In response to Plaintiff’s complaints, Dr. Sedighi replaced Elavil with

14

Trileptal to treat Plaintiff’s pain. (Id. at 72.) Plaintiff made no complaints to Dr. Gorney

15

or Dr. Sedighi that Elavil was ineffective to his pain. Further, neither Dr. Gorney nor Dr.

16

Sedighi made any finding or even a suggestion that Elavil might be ineffective to treat

17

Plaintiff’s pain. These facts support a reasonable inference that Dr. Sedighi changed

18

Plaintiff’s Elavil prescription on March 5, 2015 because Plaintiff did not like feeling

19

drowsy and having it depress his mood further, not because it was ineffective for his pain.

20

Therefore, based on Nurse Busalacchi’s PCP Progress Note, the Court finds that in

21

the light most favorable to the Plaintiff, while not making any credibility findings, that

22

Nurse Busalacchi was aware that Elavil was ineffective to Plaintiff’s pain at 10 mg. (See

23

id. at 105.)

24
25

b. Deliberate Indifference for Increasing Elavil on April 13, 2015
i.

Medically Unacceptable Treatment

26

The Court adopts its findings in Sections I(A)(2)(c)(i) and I(A)(3)(b)(i), wherein the

27

Court found that both Dr. Sedighi prescribing Elavil and Nurse Busalacchi increasing

28

Elavil for Plaintiff’s pain were medically acceptable course of treatments. Plaintiff has
74
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1

failed to provide sufficient evidence showing that such treatment was medically

2

unacceptable for his pain. Given Plaintiff’s medical history as detailed in these sections,

3

along with Plaintiff’s lack of complaints about Elavil, the only reasonable conclusion is

4

that Elavil has been a medically acceptable treatment plan for Plaintiff and with Plaintiff’s

5

approval.

6

Plaintiff has not provided any medical professional’s opinion that Elavil was

7

ineffective and/or otherwise medically unacceptable for treating Plaintiff’s severe pain.

8

The Defendants have provided Dr. Feinberg’s declaration, wherein he declared that Elavil

9

is a neuropathic pain medication clinically appropriate for Plaintiff’s complaint of pain and

10

that it was medically appropriate for Nurse Busalacchi to decline to prescribe Plaintiff

11

Gabapentin and Morphine on April 13, 2015. (See ECF No. 80-1 at 13.) Dr. Feinberg

12

stated that Plaintiff had recently been restarted on medically appropriate medications to

13

treat his neuropathy and that there was no medical indication that a change in medication

14

was necessary or appropriate. (Id. at 14.)

15

As detailed in the above cited sections, the Court finds that Plaintiff’s request for

16

Morphine and Gabapentin portrays a situation wherein Plaintiff wants his specific course

17

of treatment.

18

requested does not amount to deliberate indifference. See Toguchi, 391 F.3d at 1058; see

19

also Parlin, 2012 WL 5411710 at *4 (“[P]laintiff’s claim is that he did not receive the type

20

of treatment and pain medication that he wanted when he wanted it. His preference for

21

stronger medication [. . .] represents precisely the type of difference in medical opinion

22

between lay prisoner and medical personnel that is insufficient to establish a constitutional

23

violation.”). Further, both Dr. Sedighi and the Director who decided Plaintiff’s last appeal

24

found that narcotic medication was inappropriate. (See ECF Nos. 70 at 33; 80-1 at 86.)

However, failure to provide Plaintiff with the specific medication he

25

Nothing in Plaintiff’s medical history indicates that Elavil was a medically

26

unacceptable treatment for his severe pain. Furthermore, Plaintiff has failed to provide

27

specific facts showing that Nurse Busalacchi’s increase of Plaintiff’s Elavil dosage was

28

medically unacceptable under the circumstances. Therefore, viewing the evidence in the
75
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1

light most favorable to the Plaintiff, the Court finds that there was insufficient evidence to

2

show that Nurse Busalacchi’s course of medical treatment for Plaintiff’s severe pain, i.e.

3

increasing Elavil to 25 mg, was medically unacceptable.

4

ii.

Conscious Disregard of an Excessive Risk to Plaintiff’s health

5

Aside from the analysis above, the Court also finds that Plaintiff has provided

6

insufficient evidence indicating that Nurse Busalacchi consciously disregarded Plaintiff’s

7

serious medical need of severe pain.

8

Plaintiff’s medical records shows an extensive history of being prescribed Elavil for

9

his pain by treating physicians for the past year and a half, his compliance with his Elavil

10

doses, and even his desire to increase its dosage. (See ECF Nos. 70 at 24, 26, 28; 80-1 at

11

17–18, 20, 24, 30, 32, 48–49, 51, 54–55, 57–58, 64–65, 71, 85–86, 95, 103; 82 at 23, 47,

12

49–58.) Plaintiff’s medical history shows that he has continuously been given 25 mg to 75

13

mg of Elavil with no complaints that it was ineffective to his pain or that it caused severe

14

side effects. In addition, nothing from the submitted exhibits supports Plaintiff’s allegation

15

that Elavil was discontinued due to being ineffective to his pain or causing severe side

16

effects. (See ECF No. 70 at 19–20; see also ECF Nos. 70 at 39, 42; 80-1 at 17–18, 71–72.)

17

Nurse Busalacchi raising Plaintiff’s Elavil prescription to 25 mg was consistent with the

18

minimum dosage for Elavil that Plaintiff had been given for at least the past year and a

19

half. The only reasonable inference the Court draws from Nurse Busalacchi’s conduct is

20

that she was trying to help Plaintiff’s serious medical need because it had worked for

21

Plaintiff in the past.

22

Nurse Busalacchi’s PCP Progress Note did not omit any of the significant details of

23

the consultation with Plaintiff. It included detailed notes of Plaintiff’s complaints and

24

addressed Plaintiff’s issues listed in his 602 Form. (ECF No. 80-1 at 105.) As to Plaintiff’s

25

pain, Nurse Busalacchi indicated that Plaintiff complained that he was unable to sleep due

26

to the pain and that 10 mg of Elavil was ineffective to treating this pain. (Id.) Nurse

27

Busalacchi noted that she told him that Gabapentin and Morphine will not be prescribed.

28

(Id.) For his pain, Nurse Busalacchi indicated that she will increase Elavil to 25 mg to treat
76
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1

Plaintiff’s pain and refer him to pain management. (Id.) Plaintiff understood and agreed

2

with this plan. (Id.)

3

Plaintiff claims that Nurse Busalacchi denied his request to change his Elavil

4

prescription to Neurontin for three reasons: “(1) [Nurse Busalacchi] don’t feel like

5

changing prescription because although [Plaintiff] have falling due to side effects,

6

[Plaintiff] is still alive without broken bones or in a coma, (2) all inmates lie, [and] (3)

7

[Nurse Busalacchi] has [too] much work, don’t got the strength and time to do

8

paperwork.”37 (ECF No. 70 at 16.) But failure to provide Plaintiff with the specific

9

medication he requested and differences in judgment regarding an appropriate medical

10

treatment is not enough to establish deliberate indifference. See Jackson, 90 F.3d at 332;

11

Toguchi, 391 F.3d at 1058.

12

Further, Plaintiff has not brought forth any specific evidence to support his

13

allegations about Nurse Busalacchi’s intent to consciously disregard his serious medical

14

need.

15

consultation with Dr. Freyne on April 29, 2015. (See ECF 80-1 at 108–109.) Plaintiff

16

reported that he was doing well and was compliant with his medications, which included

17

Elavil at 25 mg. (Id. at 108.) Plaintiff even agreed with this treatment plan. (Id. at 109.)

In fact, his alleged comments are contradicted by his subsequent medical

18

Even if the Plaintiff sufficiently showed that Nurse Busalacchi consciously

19

disregarded an excess risk to his health, Plaintiff’s claim for deliberate indifference still

20

fails because he did not provide specific facts showing Nurse Busalacchi’s course of

21

treatment was medically unacceptable. See Alexander v. Williams, 683 F. App’x 582, 582–

22

83 (9th Cir. 2017) (affirming district court’s decision granting summary judgment when

23

plaintiff failed to show that the challenged treatment was medically inappropriate); see also

24

Torlucci v. Norum, No. C 08-4124-SBA-PR, 2011 WL 13142507, at *10 (N.D. Cal. Sept.

25

2011) (showing that the court did not even need to decide whether defendants’ course of

26
27
Defendants do not dispute, or address, Plaintiff’s representations regarding Nurse Busalacchi’s
statements. (See ECF Nos. 80, 83, 90.)
37

28

77
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1

treatment was in conscious disregard of an excessive risk to plaintiff’s health when plaintiff

2

had not shown treatment was medically unacceptable), aff’d, 509 F. App’x 636 (9th Cir.

3

2013); Cf. Righetti v. Richman, 654 F. App’x 337, 338 (9th Cir. 2016) (finding that

4

appellant did raise a genuine dispute of material fact as to whether appellee was deliberate

5

indifferent by providing evidence that showed the challenged care was medically

6

unacceptable and that the doctor was in conscious disregard of excessive risk to appellant’s

7

serious medical needs); Romero v. Vargo, 687 F. Supp. 2d 1202, 1213 (D. Or. 2009)

8

(stating that defendant was not entitled to summary judgment when prisoner provided

9

evidence indicating that (1) defendant knew of and disregarded an excessive risk to

10

plaintiff's health and (2) the chosen treatment was medically unacceptable under the

11

circumstances), aff’d, 471 F. App’x 584 (9th Cir. 2012).

12

In sum, viewing the evidence in the light most favorable to the nonmoving party,

13

Plaintiff has failed to show that Nurse Busalacchi’s chosen course of treatment to address

14

Plaintiff’s severe pain was medically unacceptable under the circumstances. See Jackson,

15

90 F.3d at 332. Further, Plaintiff failed to present sufficient evidence indicating that Nurse

16

Busalacchi chose this course of treatment in conscious disregard of an excessive risk to

17

Plaintiff’s health. Id.

18

3. Subjective Prong Analysis: Continuing Dilantin for Plaintiff’s Seizures

19

In his TAC, Plaintiff alleges that on April 13, 2015 he told Nurse Busalacchi that

20

“[b]y [August 9, 2011] Dilantin & Keppra was stop due to side effects putting [his] health

21

& life at risk” and claims that he told Nurse Busalacchi “on or about January–March 2012

22

Doctors from a different institution (R.J. Donavon Prison) had erroneously switch [his]

23

[Neurontin prescription] for Keppra.” (ECF No. 70 at 14–15.) Plaintiff states that his

24

medical history reveals that in 2011, only Gabapentin was sustained by a specialist because

25

Keppra and Dilantin caused side effects and were ineffective to Plaintiff’s seizures. (Id. at

26

15–16.) Plaintiff states that he told Nurse Busalacchi that “[he has] been in Dilantin in

27

2011 but was discontinue for severe side effects. And now that [Plaintiff] was prescribed

28

Dilantin again the side effects are back.” (Id. at 15.) Plaintiff indicates that Dilantin’s
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15-cv-02059-AJB-BGS

1

“side effects put [his] health & life at risk for the following reasons (1) it makes [him] dizzy

2

which has cause [him] to fall. (2) dizzynes & nausea, doesn’t allow food to stay on stomach

3

because [he] vomit. (3) It doesn’t allowed [him] to be aware of [his] surrounding which is

4

why [he] fall. (4) deprives [him] of sleep because it keeps waking [him] up due to a feeling

5

of falling. (5) doesn’t allowed [him] to exercise or stand without feeling of falling &

6

nausea.” (Id.) Plaintiff states that he told Nurse Busalacchi that Gabapentin was the only

7

medication that worked for him in the past. (Id.) Plaintiff then states that “Busalacchi

8

knew Dilantin was ineffective and put [his] health and life at risk, Busalacchi still sustain

9

Dilantin, and didn’t give [him] a effective medication like the one prescribed Neurontin.”

10

(Id. at 18.)

11

Plaintiff must show that the prison official was “aware of facts from which the

12

inference could be drawn that a substantial risk of serious harm exists,” and drew such

13

inference. See Farmer, 511 U.S. at 837. Additionally, Plaintiff must present sufficient

14

evidence for a jury to reasonably infer that Nurse Busalacchi’s course of course of

15

treatment was medically unacceptable under the circumstances, and that she chose this

16

course of treatment in conscious disregard of an excessive risk to Plaintiff’s health. See

17

Jackson, 90 F.3d at 332.

18

a. Aware of Substantial Risk of Serious Harm

19

The issue presented is whether Nurse Busalacchi was aware of a substantial risk of

20

serious harm by continuing Plaintiff’s Dilantin prescription. See Farmer, 511 U.S. at 837.

21

Plaintiff claims in his TAC that he told Nurse Busalacchi that Dilantin was taken off in

22

2011 due to being ineffective for his seizures and caused severe side effects. (ECF No. 70

23

at 15–16, 18.) Plaintiff alleges that Nurse Busalacchi still continued Dilantin, despite

24

knowing that a neurologist discontinued Dilantin in the past and that it put his “life & health

25

at risk.” (Id. at 18.) In his Opposition, Plaintiff claims that he told “[Nurse] Busalacchi all

26

reasons of why [Dilantin is] ineffective; reasons why it deprives [him] of life necessity’s

27

and puts health and life at risk. [He] told [Nurse Busalacchi] how Dilantin has been

28

prescribed twice before but got taken off due to its side effects. [He] told [Nurse
79
15-cv-02059-AJB-BGS

1

Busalacchi] how gabapentin was the only effective and [he] was willing to take other

2

options, [Nurse Busalacchi] denies [him]on non-medical reasons for which [he] describes

3

on complaint.” (ECF No. 82 at 14.)

4

Plaintiff’s allegation that Nurse Busalacchi knew that he was taken off of Dilantin

5

in 2011 because it was ineffective and gave rise to severe side effects is not supported by

6

the record. (ECF No. 70 at 16, 18.) Nothing in Plaintiff’s medical history indicates that

7

Dilantin was discontinued for being ineffective to his seizures nor for causing severe side

8

effects. (See ECF Nos. 70 at 26, 28; 80-1 at 17–18, 20; 82 at 25, 47, 73, 79.) The only

9

evidence that involves Dilantin’s discontinuation was Dr. Straga’s Physician Request for

10

Service Form dated August 10, 2011 and Dr. Straga’s Neurological Consult Form dated

11

August 23, 2011. (See ECF Nos. 80-1 at 17–18; 82 at 25.) They both indicate that Plaintiff

12

was to be tapered off of Dilantin. (See id.) Dr. Straga does not provide any explanation in

13

either document for why Dilantin was discontinued. In fact, in a follow up Neurology Note

14

dated October 8, 2011, Dr. Straga reported that Plaintiff claimed he had a seizure on

15

September 28, 2011. (ECF No. 80-1 at 20.) Dr. Straga noted that at the time of the seizure,

16

Plaintiff was taking 300 mg of Neurontin and 500 mg of Keppra, but had already been

17

taken off of Dilantin. (Id.) Plaintiff’s October 14, 2011 Medication Reconciliation reveals

18

Neurontin was ordered to be stopped in two weeks. (Id. at 24.) Further, Dr. Noonan’s

19

October 14, 2011 PCP Progress Note indicated that neurology recommended discontinuing

20

Neurontin. (ECF No. 70 at 27.) These reports establish the reasonable inference that

21

Neurontin, not Dilantin, was ineffective for Plaintiff’s seizures.

22

Plaintiff’s claim that Dilantin had been taken off twice due to its side effects is

23

unsupported by the record. (ECF No. 82 at 14.) Nothing in Plaintiff’s medical history

24

would have made Nurse Busalacchi aware that continuing him on Dilantin would pose a

25

substantial risk of serious harm to the Plaintiff. There is no indication that Dilantin was

26

ineffective to Plaintiff’s seizures nor were there any complaints regarding Dilantin in the

27

past regarding side effects. (See ECF Nos. 70 at 26, 28; 80-1 at 17–18, 20, 51, 60, 93–94;

28

82 at 23, 25, 37, 44, 47, 73, 79.) In fact, Dr. Brown noted in a Suicide Risk Evaluation,
80
15-cv-02059-AJB-BGS

1

dated April 1, 2015, that Plaintiff was placed on Dilantin and indicated that “[Plaintiff] was

2

compliant with [his] medications and showed substantial improvement over the course of

3

his stay.” (ECF No. 70 at 44.) Nothing in Plaintiff’s medical history shows that a treating

4

physician opined that Dilantin was ineffective to treat Plaintiff’s seizures or caused severe

5

side effects. This evidence establishes that Plaintiff’s medical history would not have made

6

Nurse Busalacchi aware that continuing Dilantin would cause a substantial risk of serious

7

harm.

8

Furthermore, Nurse Busalacchi did not prescribe Dilantin, rather the treating

9

physicians from Sharp Chula Vista Medical Center on March 24, 2015 did so. (See ECF

10

No. 80-1 at 93.) On March 29, 2015, Plaintiff submitted his 602 Form appealing the denial

11

of his request to switch to Gabapentin or Morphine. (Id. at 105.) Plaintiff claimed that “on

12

or about March 11–17 2015 doctors took me off of seizure and neuropathy pain med. They

13

wanted to witness or see a seizure. I told them that ‘They were playing with my health,’

14

they didn’t care. [. . .] Requesting Gabapentin or morphine for such pain and also for my

15

neuropathy pain.” (ECF No. 70 at 34.) Of note, Plaintiff made no complaints regarding

16

Dilantin in his 602 Form. (See id.) It appears from his 602 that Plaintiff was under the

17

impression he was not prescribed any medication for seizures or pain.

18

Plaintiff refers to Nurse Busalacchi’s PCP Progress Note to support his claim that

19

Nurse Busalacchi knew that Dilantin was ineffective to his seizures and caused severe side

20

effects. (See ECF Nos. 80-1 at 105; 82 at 14.) Nurse Busalacchi saw Plaintiff on April 13,

21

2015 in response to his 602 Form and provided detailed notes in her PCP Progress Note.

22

(ECF No. 80-1 at 105.) In this PCP Progress Note, Nurse Busalacchi indicated that

23

Plaintiff was currently on Dilantin. (Id.) Nurse Busalacchi noted that Plaintiff claimed

24

that Keppra was not helpful and only wanted Neurontin. (Id.) Nurse Busalacchi then

25

checked Plaintiff’s blood levels, continued Dilantin, and indicated that Neurontin and

26

Morphine will not be prescribed. (Id.) Plaintiff agreed to this plan. (Id.) Of note, Plaintiff

27

does not dispute that he made these statements. (See ECF No. 82 at 19.) A reasonable

28
81
15-cv-02059-AJB-BGS

1

inference can be made from this PCP Progress Note that Nurse Busalacchi was not aware

2

of a substantial risk of serious harm to the Plaintiff by continuing Dilantin.

3

Plaintiff may not rely on the allegations in the complaint to meet his burden, but

4

“must come forward with specific facts showing that there is a genuine issue for trial.”

5

Matsushita, 475 U.S. at 587. Plaintiff has failed to do so. Plaintiff’s medical history and

6

the records provided do not support Plaintiff’s allegations in his TAC that Nurse Busalacchi

7

was aware of facts giving rise to an inference that continuing him on Dilantin would pose

8

a substantial risk of serious harm, and that Nurse Busalacchi drew such an inference. See

9

Farmer, 511 U.S. at 837.

10
11

b. Deliberate Indifference for Continuing Dilantin on April 13, 2015
i.

Medically Unacceptable Treatment

12

Assuming arguendo that Nurse Busalacchi was aware of facts giving rise to an

13

inference that continuing Plaintiff on Dilantin would pose a substantial risk of serious

14

harm, Plaintiff would still need to show that Nurse Busalacchi was deliberately indifferent

15

to his serious medical need. Plaintiff alleges that Nurse Busalacchi was deliberately

16

indifferent for continuing him on Dilantin, which was prescribed by the treating physicians

17

from Sharp Chula Vista Medical Center on March 24, 2015. (ECF No. 70 at 16–18; see

18

ECF No. 80-1 at 93–94.) Plaintiff must present sufficient evidence for a jury to reasonably

19

infer that Nurse Busalacchi’s course of treatment on April 13, 2015 was medically

20

unacceptable under the circumstances. See Jackson, 90 F.3d at 332.

21

Plaintiff’s claim that Dilantin was ineffective and caused side effects, such as nausea

22

and the inability to sleep or walk, is unsupported by the record. (See ECF No. 70 at 15.)

23

Plaintiff has taken Dilantin throughout the years leading up to Nurse Busalacchi’s

24

interview without making any complaints regarding Dilantin being ineffective to his

25

seizures or causing his alleged side effects. (ECF Nos. 70 at 26, 28, 44; 80-1 at 17–18, 20,

26

51, 60, 93–94; 82 at 23, 25, 44, 47, 73, 79.) The treating physicians at Sharp Chula Vista

27

Medical Center on March 24, 2015 were the ones that restarted Plaintiff on Dilantin, not

28

Nurse Busalacchi. (ECF No. 80-1 at 93–101.) Even after restarting it, Plaintiff made no
82
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1

complaints regarding Dilantin. Plaintiff’s 602 Form dated March 29, 2015 did not make

2

any reference or complaints regarding Dilantin. (See ECF No. 70 at 33–37.) On April 1,

3

2015, Dr. Brown noted that Plaintiff was placed on Dilantin and indicated that “[Plaintiff]

4

was compliant with [his] medications and showed substantial improvement over the course

5

of his stay.” (Id. at 44.)

6

The April 13, 2015 interview was the only time Nurse Busalacchi saw Plaintiff. (See

7

ECF Nos. 70, 80, 82.) Plaintiff’s 602 Form indicates that the reason for the interview was

8

due to Plaintiff trying to change his medication to Gabapentin or Morphine for his severe

9

pain. (ECF No. 70 at 34.) In her PCP Progress Note, Nurse Busalacchi stated that Plaintiff

10

was currently on Dilantin, while noting that Plaintiff claimed that Keppra was not helpful

11

and only wanted Gabapentin. (ECF No. 80-1 at 105.) Nurse Busalacchi then checked

12

Plaintiff’s blood levels, continued Dilantin, and indicated that Gabapentin and Morphine

13

will not be prescribed. (Id.) Plaintiff agreed to this plan. (Id.) Of note, Plaintiff made no

14

complaints about Dilantin.

15

Even after Nurse Busalacchi’s April 13, 2015 interview, Plaintiff did not make any

16

complaints regarding Dilantin. On April 29, 2015, Dr. Freyne saw Plaintiff for a PCP

17

Follow-Up and due to Plaintiff’s compliance with his medication. (Id. at 108–09.) Dr.

18

Freyne indicated that Plaintiff was fully compliant with all of his medication, including

19

Dilantin, and reported that he is doing well. (Id. at 108.) Plaintiff indicated that he was

20

eating, sleeping, and exercising without difficulty. (Id.) Dr. Freyne stated that Plaintiff’s

21

medical issues were stable and continued Dilantin. (Id.) Plaintiff also filed multiple Health

22

Service Request Forms after Nurse Busalacchi’s interview. (ECF No. 82 at 98 [July 24,

23

2015], 99 [June 1, 2015], 100 [April 30, 2015].) Nowhere in these Health Service Request

24

Forms did Plaintiff make any complaints that Dilantin was ineffective to his seizures or

25

caused severe side effects.

26

After reviewing all of Plaintiff’s medical records regarding Dilantin, the Court finds

27

that at no point did any treating physician indicate that Dilantin was medically ineffective

28

for treating Plaintiff’s seizures nor did they find that it caused severe side effects.
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1

Plaintiff’s medical history establishes that Nurse Busalacchi continuing Plaintiff’s Dilantin

2

prescription was medically acceptable for treating Plaintiff’s seizures

3

The Defendants support their position by providing Dr. Feinberg’s declaration.

4

(ECF No. 80-1 at 1–15.) Dr. Feinberg declared that at the time of Nurse Busalacchi’s

5

interview, Plaintiff was already on medically appropriate medication to treat his seizures,

6

and that there was no medical indication at the time that a change in medication was

7

necessary or appropriate. (Id. at 14.) Plaintiff has not provided evidence to cast doubt on

8

Defendants’ expert testimony. See Barkley, 2018 WL 6508052, at *10 (finding that

9

plaintiff’s deliberate indifference claim fails since “Plaintiff has not submitted any

10

evidence to cast doubt on defendants’ unrefuted expert testimony which establishes that

11

prescribing Sulindac was medically appropriate under the circumstances and within the

12

standard of care and skill ordinarily exercised by reputable members of the medical

13

profession at that time.”) Further, Plaintiff has not produced any evidence showing that a

14

medical professional opined that Dilantin was ineffective to Plaintiff’s seizures or caused

15

severe side effects.38

16

The Court finds that at most, Plaintiff disagrees with Nurse Busalacchi’s course of

17

treatment. Plaintiff’s belief that he should have been prescribed something else other than

18

Dilantin is at best, a difference of opinion from Nurse Busalacchi, and does not rise to the

19

level of deliberate indifference. See Garcia, 2018 WL 3303013, at *11; Rodriguez, 2018

20

WL 339936, at *4 (C.D. Cal. Jan. 2018) (finding that it was not deliberate indifference,

21

only a difference of opinion, for the doctor to prescribe different “ineffective” medications

22

than requested); Nicholson, 2014 WL 1407828, at *9; Parlin, 2012 WL 5411710 at *4

23

(“[P]laintiff’s claim is that he did not receive the type of treatment and pain medication

24

that he wanted when he wanted it. His preference for stronger medication [. . .] represents

25
26
27
28

The record indicates that in 2011, Gabapentin was ineffective for Plaintiff’s seizures and was ordered
to be discontinued by neurology. (See ECF No. 80-1 at 20, 22, 24.) These records support the inference
that Gabapentin, not Dilantin, was medically unacceptable treatment for his seizures.
38

84
15-cv-02059-AJB-BGS

1

precisely the type of difference in medical opinion between a lay prisoner and medical

2

personnel that is insufficient to establish a constitutional violation.”); Lua, 2011 WL

3

1743260, at *2–*3 (finding prisoner who was placed on “lesser medications” instead of

4

prisoner’s requested pain relief medications, merely alleged a difference of medical

5

opinion as to his preferred pain medication rather than an actionable claim of deliberate

6

indifference).

7

Plaintiff “must come forward with specific facts showing that there is a genuine

8

issue for trial” and cannot rely on the allegations in the complaint to meet his burden. See

9

Matsushita, 475 U.S. at 587. Here, Plaintiff has not provided any evidence to support his

10

own medical opinion that Dilantin was ineffective or inappropriate to treat his seizures.

11

Viewing the evidence in the light most favorable to the nonmoving, Plaintiff has provided

12

insufficient evidence indicating that there is a genuine issue of material fact as to whether

13

Nurse Busalacchi’s course of treatment was medically unacceptable under the

14

circumstances.

15

ii.

Conscious Disregard of an Excessive Risk to Plaintiff’s health

16

Aside from the analysis above, the Court also finds that there is insufficient evidence

17

that Nurse Busalacchi consciously disregarded an excess risk to Plaintiff’s health. In his

18

TAC, Plaintiff alleges that Nurse Busalacchi continued Plaintiff’s Dilantin prescription

19

when she knew it “was ineffective and put [Plaintiff’s] health and life at risk. [Nurse]

20

Busalacchi still sustain Dilantin, and didn’t give [him] a effective medication like the one

21

prescribed Neurontin.” (ECF No. 70 at 18.) Plaintiff supports his allegations that Nurse

22

Busalacchi consciously disregarded him when she denied his request to change his Dilantin

23

prescription and said that she “didn’t care of [Plaintiff’s] severe pain conditions” and that

24

“(1) she don’t feel like changing prescription because although [Plaintiff] have falling due

25

to side effects, [Plaintiff] is still alive without broken bones or in a coma, (2) all inmates

26

lie, [and] (3) [she] has [too] much work, don’t got the strength and time to do paperwork.”

27

(Id. at 16, 20.)

28
85
15-cv-02059-AJB-BGS

1

Plaintiff must point to specific facts which supports his allegation that Nurse

2

Busalacchi had a sufficiently culpable state of mind when she provided this medical care.

3

See Wallis, 70 F.3d at 1076. As indicated above, Plaintiff has been prescribed Dilantin

4

throughout his medical history. (See ECF Nos. 70 at 26, 28, 44; 80-1 at 17–18, 20, 51, 60,

5

93–94; 82 at 23, 25, 37, 44, 47, 51, 73, 79.) There was no indication from these records

6

that Dilantin was ineffective to Plaintiff’s seizures or caused severe side effects. Even after

7

Nurse Busalacchi’s interview, Dr. Freyne saw Plaintiff for a PCP Follow-Up on April 29,

8

2015. (ECF No. 80-1 at 108–09.) Dr. Freyne indicated that Plaintiff was fully compliant

9

with all of his medication including Dilantin, reported that Plaintiff is doing well, and

10

continued Plaintiff’s Dilantin prescription. (Id. at 108.) This is all circumstantial proof

11

that Nurse Busalacchi’s subjective intent was not to consciously disregard an excessive

12

risk to Plaintiff’s health, but to treat Plaintiff with medication that seemed to have worked

13

in the past and restarted by other physicians. Plaintiff has not brought forth evidence

14

exhibiting Nurse Busalacchi’s intent to consciously disregarded Plaintiff’s medical needs.

15

Plaintiff’s medical history shows that Nurse Busalacchi only saw Plaintiff once, in

16

response to his 602 Appeal Form where Plaintiff requested Gabapentin or Morphine for

17

his severe pain. (ECF No. 70 at 34.) Nurse Busalacchi’s PCP Progress Note included

18

detailed notes of Plaintiff’s complaints and addressed Plaintiff’s issues listed in his 602

19

Form. (ECF No. 80-1 at 105.) Nurse Busalacchi did a detailed physical examination,

20

including lab imaging results, and provided a detailed diagnosis and plan.

21

Additionally, Plaintiff understood and agreed with this plan that included continuing

22

Dilantin. (See id.) Plaintiff does not dispute that he made these statements. (See ECF No.

23

82 at 19.)

(Id.)

24

The conduct towards Plaintiff on April 13, 2015 demonstrates Nurse Busalacchi’s

25

attempt to care and treat Plaintiff’s medical needs, contradicting Plaintiff’s claim that Nurse

26

Busalacchi did not care and consciously disregarded his medical needs. Plaintiff’s request

27

for Gabapentin or Morphine is a difference of opinion and preference by Plaintiff. But

28

failure to provide Plaintiff with the specific medication he requested and differences in
86
15-cv-02059-AJB-BGS

1

judgment regarding an appropriate medical treatment is not enough to establish deliberate

2

indifference. See Jackson, 90 F.3d at 332; Toguchi, 391 F.3d at 1058.

3

Even if Plaintiff sufficiently showed that Nurse Busalacchi consciously disregarded

4

an excess risk to his health, Plaintiff’s deliberate indifference claim still fails because he

5

did not provide specific facts showing Nurse Busalacchi’s course of treatment was

6

medically unacceptable. See Alexander, 683 F. App’x at 582–83 (affirming district court’s

7

decision granting summary judgment when plaintiff failed to show that the challenged

8

treatment was medically inappropriate); see also Torlucci, 2011 WL 13142507, at *10

9

(showing that the court did not even need to decide whether defendants’ course of treatment

10

was in conscious disregard of an excessive risk to plaintiff’s health when plaintiff had not

11

shown treatment was medically unacceptable).

12

Thus, viewing the evidence in the light most favorable to the nonmoving, Plaintiff

13

has failed to show that Nurse Busalacchi’s chosen course of treatment on April 13, 2015

14

to address Plaintiff’s seizures was medically unacceptable under the circumstances. See

15

Jackson, 90 F.3d at 332. Further, Plaintiff failed to present sufficient evidence indicating

16

that Nurse Busalacchi chose this course of treatment in conscious disregard of an excessive

17

risk to Plaintiff’s health. Id.

18

Therefore, based on everything stated above, the Court finds that Nurse Busalacchi

19

was not deliberately indifferent to Plaintiff’s medical needs. The Court RECOMMENDS

20

Defendants’ Motion for Summary Judgment (ECF No. 80) as to Plaintiff’s Eighth

21

Amendment claim against Nurse Busalacchi be GRANTED.

22

D. Qualified Immunity

23

Qualified Immunity “protects government officials ‘from liability for civil damages

24

insofar as their conduct does not violate clearly established statutory or constitutional rights

25

of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223,

26

231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The doctrine of

27

Qualified Immunity entitles government officials to “an immunity from suit rather than a

28

mere defense to liability; and like an absolute immunity, it is effectively lost if a case is
87
15-cv-02059-AJB-BGS

1

erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

2

Qualified Immunity’s purpose is to strike a balance between the competing “need to hold

3

public officials accountable when they exercise power irresponsibly and the need to shield

4

officials from harassment, distraction, and liability when they perform their duties

5

reasonably.” Pearson, 555 U.S. at 231. The Qualified Immunity doctrine was made to

6

create a way to resolve unwarranted claims against government officials at the earliest

7

possible stage of litigation. Id.

8

The courts administer a two-prong analysis in determining whether a government

9

official is entitled to Qualified Immunity.39 Saucier v. Katz, 533 U.S. 194, 201–02 (2001).

10

In examining the alleged facts in favor of the plaintiff, the court must first consider whether

11

the alleged facts show the government official’s actions violated the plaintiff’s

12

constitutional rights. Id. at 201. “If no constitutional right would have been violated were

13

the allegations established, there is no necessity for further inquiries concerning qualified

14

immunity.” Id.; accord Rodriguez v. Maricopa Cty. Cmty. Coll. Dist., 605 F.3d 703, 711

15

(9th Cir. 2010).

16

However, if a violation could be made out on a favorable view of the plaintiff’s facts,

17

then the court must next determine whether the constitutional right purportedly violated

18

was clearly established in the specific context of the case at hand. Saucier, 533 U.S. at

19

201. “A right is ‘clearly established’ when its contours are sufficiently defined, such that

20

‘a reasonable official would understand that what he is doing violates that right.’” Foster

21

v. Runnels, 554 F.3d 807, 815 (9th Cir. 2009) (quoting Wilson v. Layne, 526 U.S. 603, 615

22

(1999)). If the law does not “put the officer on notice that his conduct would be clearly

23

unlawful, summary judgment based on qualified immunity is appropriate.” Saucier, 533

24

U.S. at 202. If, however, a reasonable official would have known that the alleged conduct

25
26
27
28

39

Courts are not required to conduct the Saucier two-prong analysis in a particular sequence. Pearson,
555 U.S. at 236.

88
15-cv-02059-AJB-BGS

1

was in violation of a clearly established constitutional right, then immunity is forfeited. Id.

2

“[T]he law may be clearly established even if there is no case directly on point. . . . It is

3

enough if ‘in the light of pre-existing law the unlawfulness is apparent.’” Inouye v. Kemna,

4

504 F.3d 705, 715 (9th Cir. 2007) (quoting Wilson, 526 U.S. at 615). “The general law

5

regarding the medical treatment of prisoners was clearly established at the time of the

6

incident[s].” Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002). It is clearly established

7

that a prisoner has a right under the Eighth Amendment to “have prison officials not be

8

deliberately indifferent to serious medical needs.” Kelley v. Borg, 60 F.3d 664, 666–67

9

(9th Cir. 1995) (quotation omitted).

10

As discussed above, the Court concludes that Dr. Sedighi and Nurse Busalacchi were

11

not deliberately indifferent to Plaintiff’s serious medical needs. Thus, without further

12

inquiry, Dr. Sedighi and Nurse Busalacchi did not violate Plaintiff’s constitutional rights

13

and are entitled to Qualified Immunity. See Saucier, 533 U.S. at 201.

14

E. Motion for Appointment of Counsel

15

In passing, Plaintiff requests the Court to appoint counsel. (ECF No. 82 at 9 n.1.)

16

Plaintiff claims that he needs an attorney to be able to locate inmates that are no longer in

17

RJD in order to obtain declarations to support Plaintiff’s argument that his seizures have

18

been witnessed. (Id.)

19

“There is no absolute right to counsel in civil proceedings.” Hedges v. Resolution

20

Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994); Palmer v. Valdez, 560 F.3d 965, 970 (9th

21

Cir. 2009). Further, there is no constitutional right to a court-appointed attorney in § 1983

22

claims. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). District Courts have

23

discretion, however, pursuant to 28 U.S.C. § 1915(c)(1), to “request” that an attorney

24

represent indigent civil litigants upon a showing of exceptional circumstances. See Terrell

25

v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Burns v. Cty. of King, 883 F.2d 819, 823

26

(9th Cir. 1989); Palmer, 560 F.3d at 970. “A finding of exceptional circumstances requires

27

an evaluation of both the ‘likelihood of success on the merits and the ability of the plaintiff

28

to articulate his claims pro se in light of the complexity of the legal issues involved.’
89
15-cv-02059-AJB-BGS

1

Neither of these issues is dispositive and both must be viewed together before making a

2

decision.” Terrell, 935 F.2d at 1017. Thus, upon a showing of exceptional circumstances,

3

the Court would have discretion in requesting that an attorney be appointed for Plaintiff.

4

Plaintiff claims that he needs an attorney to locate former RJD inmates in order to

5

obtain declarations that would support his argument that he had witnessed seizures. (ECF

6

No. 82 at 9 n.1.) However, this Court already indicated that Plaintiff’s inability to locate

7

witnesses who are not at RJD does not demonstrate exceptional circumstances. (ECF No.

8

75 at 2–3) (citing Price v. Weise, No. 16CV1174-CAB-KSC, 2019 WL 3887341, at *2

9

(S.D. Cal. 2019); Morris v. Barr, No. 10-CV-2642-AJB BGS, 2011 WL 3859711, at *3

10

(S.D. Cal. 2011)). Plaintiff’s arguments are based on the general difficulty of litigating pro

11

se, which is shared by all incarcerated litigants lacking legal experience, not on the

12

complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331

13

(9th Cir. 1986) (noting that “[i]f all that was required to establish successfully the

14

complexity of the relevant issues was a demonstration of the need for development of

15

further facts, practically all cases would involve complex legal issues”).

16

Plaintiff has demonstrated that he is able to understand and articulate the essential

17

facts supporting his claims through his filings. (See docket.) Further, Plaintiff has been

18

able to successfully litigate his case and survive a motion to dismiss. (Id.) The Court finds

19

that Plaintiff has an adequate understanding of the relevant facts and legal issues involved.

20

Accordingly, the Court does not find exceptional circumstances warranting the

21

appointment of counsel. Therefore, the Court RECOMMENDS that Plaintiff’s request

22

for the Court to appoint counsel be DENIED.

23

F. Motion for Copies

24

Plaintiff requests a copy of his Cross-Motion for Summary Judgment. (ECF No. 87

25

at 1.) While Plaintiff should have a copy of his own Cross-Motion for Summary Judgment,

26

the Court nevertheless RECOMMENDS that Plaintiff’s request for a copy of Docket

27

Number 87 be GRANTED.

28

///
90
15-cv-02059-AJB-BGS

1

II.

Plaintiff’s Cross-Motion for Summary Judgment (ECF No. 87)

2

Plaintiff argues that summary judgment should be granted in his favor as to his

3

Eighth Amendment claims against Dr. Sedighi and Nurse Busalacchi. (ECF No. 87.) As

4

to Dr. Sedighi, Plaintiff argues that he was deliberately indifferent for not prescribing any

5

seizure medication and for restarting Elavil. (Id. at 1, 3–5.) Plaintiff claims that there is

6

no evidence/diagnosis that would have instructed Dr. Sedighi to discontinue his seizure

7

medication or disregard the neurologists’ decision to prescribe seizure medication. (Id. at

8

3.) Plaintiff also claims that Dr. Sedighi was deliberately indifferent for prescribing Elavil

9

for his severe pain, even though Dr. Sedighi knew it was ineffective to treat his pain and

10

gave symptoms such as anxiety, stress, inability to sleep, “frighten [and] depressive

11

[moods] with Tendency of Suicidal Ideation.” (Id. at 1, 4–5.)

12

As for Nurse Busalacchi, Plaintiff argues that she was deliberately indifferent for

13

increasing Elavil despite knowing that the medication was ineffective to his pain and

14

caused suicidal thoughts.40 (Id. at 2, 5–6.) Plaintiff claims that Nurse Busalacchi could

15

have prescribed Gabapentin or medications that he has not tried before, but still prescribed

16

Elavil against his will and knowing it has side effects. (Id. at 5–6.) Plaintiff claims that

17

the harm he suffered was “all the physical pain [. . . ] [a]nd mental severeness [sic]

18

symptoms” and that he was deprived of life’s necessities “such as unable to sleep because

19

Anxiety attacks and pain.” (Id. at 6.)

20

A cross-motion for summary judgment requires the court to apply the same standard

21

and rule on each motion independently. Creech, 815 F. Supp. at 166–67. When both

22

parties move for summary judgment, “[t]he granting of one motion does not necessarily

23

warrant the denial of the other motion, unless the parties base their motions on the same

24

legal theories and same set of material facts.” Stewart, 523 F. Supp. at 220; see also We

25

Are Am. v. Maricopa Cty. Bd. of Sup’rs, 297 F.R.D. 373, 381 (D. Ariz. 2013); Ingram v.

26
27
40

28

Plaintiff does not address his own TAC allegation that Nurse Busalacchi was deliberately indifferent
for prescribing Dilantin for his seizures. (See ECF No. 87.)
91
15-cv-02059-AJB-BGS

1

AAA Fire & Cas. Ins., Co., No. 6:12-CV-01215-AA, 2013 WL 1826359, at *2 (D. Or.

2

2013). In Section I, the Court recommends granting Defendants’ Motion for Summary

3

Judgment (ECF No. 80). Thus, the denial of Plaintiff’s Cross-Motion for Summary

4

Judgment would be warranted if both motions were based on the same legal theories and

5

same set of material facts. See Stewart, 523 F. Supp. at 220.

6

First, Plaintiff’s Cross-Motion for Summary Judgment relies on the same exact legal

7

theory that is at issue in Defendants’ Motion for Summary Judgment. Each summary

8

judgment motion deals with whether Dr. Sedighi and Nurse Busalacchi were deliberately

9

indifferent to Plaintiff’s serious medical needs, in violation of the Eighth Amendment. (See

10

ECF Nos. 80, 87.) Second, Plaintiff’s Cross-Motion for Summary Judgment relies on the

11

exact same set of material facts. Both motions deal with the factual circumstances

12

surrounding Dr. Sedighi’s course of treatment on March 24, 2015 and Nurse Busalacchi’s

13

course of treatment on April 13, 2015. (See id.) Accordingly, since the Court recommends

14

granting the Defendants’ Motion for Summary Judgment and the parties base their

15

summary judgment motions on the “same legal theories and same set of material facts,”

16

the Court RECOMMENDS Plaintiff’s Cross-Motion for Summary Judgment (ECF No.

17

87) be DENIED. See Stewart, 523 F. Supp. at 220.

18

III.

Plaintiff’s Motion to Amend (ECF No. 94)

19

On June 26, 2020, Plaintiff filed a Motion for Doe #1 be Addressed as Dr. Silva and

20

be Amended as Dr. Silva. (ECF No. 94.) Plaintiff requests to now name and serve Dr.

21

Silva as Doe #1 after discovering his name in Defendants’ Motion for Summary Judgment.

22

(Id. at 1.) Plaintiff asks the court to allow him to amend Doe #1 and not allow Defendants’

23

to file another Motion for Summary Judgment as to Dr. Silva because “[Defendants]

24

choose not to.” (Id.) The Court interprets Plaintiff’s motion as a request to amend his

25

complaint in order to identify Doe #1 as Dr. Silva.

26

Previously, on June 27, 2017, Plaintiff brought a Motion to Disclose Name of Doe

27

#1. (ECF No. 36.) Plaintiff requested Doe #1’s name to be provided since he was

28

“beginning to think” that Dr. Sedighi is Doe #1, the person that Plaintiff alleges initially
92
15-cv-02059-AJB-BGS

1

removed him from all seizure and pain medication. (Id.) On March 20, 2018, the Court

2

adopted Magistrate Judge Skomal’s R&R, which denied Plaintiff’s Motion to Disclose

3

Name of Doe #1. (ECF Nos. 43 at 25–27; 44 at 2.) In denying Plaintiff’s motion, the

4

Court stated it was unnecessary since Doe #1’s identity could be discovered by reviewing

5

the contents of Plaintiff’s own medical records. (ECF No. 43 at 26.) The Court explained

6

that these medical records could be obtained through Plaintiff’s requests via prison

7

procedures or through the normal course discovery. (Id.)

8

Even though Plaintiff did not identify Doe #1 in the TAC’s caption, Plaintiff

9

dedicated less than one page to discuss Doe #1 in the body of the TAC. (See ECF No. 70

10

at 1–2, 10.) Civil Local Rule 15.1 requires that an amended complaint “be complete in

11

itself without reference to the superseded pleading.” This requirement exists because, as a

12

general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay,

13

375 F.2d 55, 57 (9th Cir. 1967); Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012)

14

(en banc) (“For claims dismissed with prejudice and without leave to amend, we will not

15

require that they be repled in a subsequent amended complaint to preserve them for appeal.

16

But for any claims voluntarily dismissed, we will consider those claims to be waived if not

17

repled.”) Giving Plaintiff’s TAC “the benefit of any doubt,” it appears that Plaintiff

18

intended to plead claims against Doe #1, but simply failed to list Doe #1 as a named party

19

on the TAC’s cover page. See Hebbe, 627 F.3d at 342.

20

With the exception of amendments made as a matter of course under Rule 15(a)(1),

21

“a party may amend its pleading only with the opposing party’s written consent or the

22

court’s leave.” Fed. R. Civ. P. 15(a)(2). The district court has discretion in determining

23

whether to grant or deny leave to amend, Foman v. Davis, 371 U.S. 178, 182 (1962), but

24

leave should freely be given “when justice so requires,” Fed. R. Civ. P. 15(a)(2). In

25

determining whether to grant leave to amend under Rule 15(a)(2), the Court considers

26

whether there has been “undue delay, bad faith or dilatory motive on the part of the movant,

27

repeated failure to cure deficiencies by amendments previously allowed, undue prejudice

28

to the opposing party by virtue of allowance of the amendment, futility of amendment,
93
15-cv-02059-AJB-BGS

1

etc.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (per

2

curiam) (quoting Foman, 371 U.S. at 182). While “[d]elay alone does not provide

3

sufficient grounds for denying leave to amend” under Rule 15(a)(2), “prejudice to the

4

nonmoving party is among the most important factors in considering whether amendment

5

should be permitted.” See Hurn v. Ret. Fund Tr. of Plumbing, Heating & Piping Indus. of

6

S. Cal., 648 F.2d 1252, 1254 (9th Cir. 1981); Reed v. Bryant, No. CIV-16-461-C, 2018 WL

7

5091916, at *2 (W.D. Okla. 2018), report and recommendation adopted, No. CIV-16-461-

8

C, 2018 WL 5111028 (W.D. Okla. 2018).

9

Furthermore, “a pending motion for summary judgment militates against a motion

10

to amend.” See Maldonado v. City of Oakland, No. C-01-1970-MEJ, 2002 WL 826801, at

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*5 (N.D. Cal. 2002) (citing M/V Am. Queen v. San Diego Marine Const. Corp., 708 F.2d

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1483, 1492 (9th Cir. 1983)). Denial of an amendment is also appropriate when “the party

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seeking amendment knows or should have known of the facts upon which the proposed

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amendment is based but fails to include them in the original complaint.” Las Vegas Ice &

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Cold Storage Co. v. Far West Bank, 893 F.2d 1182, 1185 (10th Cir. 1990); see also Jackson

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v. Bank of Hawaii, 902 F.2d 1385, 1388 (9th Cir. 1990) (denied motion for leave to file

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amended complaint after appellants knew of facts/theories raised by the amendment for

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over one year prior to filing motion); E.E.O.C. v. Boeing Co., 843 F.2d 1213, 1222 (9th

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Cir. 1988); Federal Ins. Co. v. Gates Learjet Corp., 823 F.2d 383, 387 (10th Cir. 1987);

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Reed, 2018 WL 5091916, at *1–*2 (denying state prisoner’s motion to amend since state

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prisoner did not provide any justifiable reasons for the undue delay and Defendants would

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be substantially prejudiced due to their Motion to Dismiss was pending. Proposed

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amendments were not based on new information or evidence, but “merely additional claims

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based upon the exact same factual allegations originally alleged two years ago.”); Norwood

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v. Cate, No. 109CV00330OWWSMSPC, 2010 WL 1006559, at *2 (E.D. Cal. 2010)

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(“Based on the record, Plaintiff either knew or should have known the dates of the

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deprivation periods giving rise to his claims prior to the date he filed suit. Plaintiff tenders

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no explanation for the delay[. . . .] This is insufficient to excuse a delay measured in years.”)
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Here, Plaintiff is now requesting to amend his complaint in order to address Doe #1

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as Dr. Silva.41 (ECF No. 94 at 1.) However, both undue delay and the potential prejudice

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to the nonmoving party supports the denial of Plaintiff’s motion. Magistrate Judge

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Skomal’s R&R issued on February 27, 2018, with District Judge Battaglia adopting the

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recommendation on March 20, 2018, denied Plaintiff’s Motion to Disclose the Identity of

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Doe #1. (See ECF Nos. 43, 44.) Magistrate Judge Skomal’s R&R informed Plaintiff of

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the ability to acquire this information through Plaintiff’s own medical records in 2018.

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(ECF No. 43 at 26.) Further, the R&R explained that Plaintiff would be able to obtain this

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information through the normal course of discovery or through Plaintiff’s request via

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prison procedures. (Id.) Plaintiff has had over two years to obtain the information that he

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bases the amendment on. Plaintiff does not provide any explanation for this delay nor why

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Plaintiff did not seek this information sooner.

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Furthermore, granting Plaintiff’s Motion to Amend would also unduly prejudice the

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named Defendants. This case has been pending for over five years, where the original

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complaint was filed on September 15, 2015 and Plaintiff has been allowed to amend his

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complaint three times. (ECF Nos. 1, 7, 10, 70.) There are also two fully briefed Motions

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for Summary Judgment pending as to the remaining two Defendants. (ECF Nos. 80, 87.)

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The fact that the case is over five years old and there are two fully briefed dispositive

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motions pending, weighs against granting leave to amend. See M/V Am. Queen, 708 F.2d

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at 1492 (“a motion for summary judgment was pending and possible disposition of the case

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would be unduly delayed by granting the motion leave to amend”); Martin, 2014 WL

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794342, at *8 (viewing state prisoner’s motion to amend as an improper attempt to avoid

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summary judgment due to Plaintiff’s “shifting account of his interaction with defendant”

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Plaintiff has made conflicting statements as to who he thinks was the person that discontinued his
medication without providing any replacements. Plaintiff first claimed that it was Dr. Sedighi who was
the person that discontinued his pain and seizure medication. (ECF No. 70 at 8, 8 n.1, 10 n.1.) Now,
Plaintiff argues that Dr. Silva was deliberately indifferent for discontinuing his medication (ECF No. 94
at 1), despite already stating that Dr. Silva’s conduct was “reasonable.” (ECF No. 85 at 4.)
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and the motion being filed after two dispositive motions have been fully briefed); Brodsky

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v. City & Cty. of Denver, No. 10-CV-01625-MSK-MEH, 2011 WL 4972087, at *14 (D.

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Colo. 2011) (adopting Magistrate’s recommendation on state prisoner’s motion to amend,

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noting that the party to be added has not been served , proposed amendments do not

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materially change substance of claims, and Defendants would be prejudiced since they

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have already filed dispositive motions); Henderson v. City & Cty. of San Francisco, No.

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C05-234-VRW, 2006 WL 3507944, at *16–*17 (N.D. Cal. 2006) (denying plaintiffs’

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motion to amend since plaintiffs had over six months of additional discovery to uncover

9

additional defendants/claims and plaintiffs did not provide explanation for why they sought

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leave to amend six weeks after defendants filed their motion for summary judgment).

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Additionally, the person Plaintiff is trying to add to its complaint as Doe #1, Dr. Silva,

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would also be prejudiced if Plaintiff is granted leave to amend, especially since Plaintiff

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has not served Dr. Silva with the TAC.

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Plaintiff was notified over two years ago on how he can get information regarding

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Doe #1. For unknown reasons, Plaintiff chose not to try to obtain this information through

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the normal course of discovery or through prison procedures. After Motions for Summary

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Judgment by Plaintiff and Defendants have been fully briefed, Plaintiff now wants to

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amend his complaint to add another party after being presented with evidence indicating

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that Dr. Sedighi was not the person that discontinued his pain and seizure medications.

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(See ECF No. 80-1 at 75–78.) The Court views this as an improper attempt at avoiding

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summary judgment being granted against him. See Martin, 2014 WL 794342, at *8

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(finding that “Plaintiff’s shifting account of his interaction with defendant shows undue

23

delay at best and bad faith at worst, both of which weigh against granting leave to amend.”).

24

Thus, in light of these circumstances and having considered the relevant factors, the Court

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RECOMMENDS Plaintiff’s Motion for Doe #1 be Addressed as Dr. Silva and be

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Amended as Dr. Silva (ECF No. 94) be DENIED.

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///

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///
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CONCLUSION

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For the reasons discussed, IT IS HEREBY RECOMMENDED that the District

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Court issue an Order: (1) adopting this Report and Recommendation; (2) GRANTING

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Defendants’ Motion for Summary Judgment (ECF No. 80) and DENYING Plaintiff’s

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Cross-Motion for Summary Judgment (ECF No. 87) as to Defendant Dr. Sedighi;

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(3) GRANTING Defendants’ Motion for Summary Judgment (ECF No. 80) and

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DENYING Plaintiff’s Cross-Motion for Summary Judgment (ECF No. 87) as to

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Defendant Nurse Busalacchi; (4) DENYING Plaintiff’s Motion for Appointment of

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Counsel; (5) GRANTING Plaintiff’s request for copies; and (6) DENYING Plaintiff’s

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Motion for Doe #1 be Addressed as Dr. Silva and be Amended as Dr. Silva (ECF No. 94).

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IT IS ORDERED that no later than October 23, 2020, any party to this action may

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file written objections with the Court and serve a copy on all parties. The document should

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be captioned “Objections to Report and Recommendation.”

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IT IS FURTHER ORDERED that any reply to the objections shall be filed with

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the Court and served on all parties no later than October 30, 2020. The parties are advised

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that failure to file objections within the specified time waive the right to raise those

17

objections on appeal of the Court’s order.

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19

IT IS SO ORDERED.
Dated: October 1, 2020

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