Arellano v. Milton et al

Filing 103

REPORT AND RECOMMENDATION re 59 MOTION for Summary Judgment. Signed by Magistrate Judge Clinton Averitte for Magistrate Judge Andrew G. Schopler on 8/23/2018.(All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
Raul ARELLANO,

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Case No.: 15-cv-2069-JAH-AGS
Plaintiff,

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v.

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REPORT AND RECOMMENDATION
TO GRANT IN PART AND DENY IN
PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT (ECF
No. 59)

MILTON, et al.

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Defendants.

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Plaintiff, a prisoner, claims he suffered a seizure because the prison refused him his

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epilepsy medication and refused to switch him to his preferred treatment plan. Although

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most of plaintiff’s claims fail, a triable issue exists regarding the failure to give plaintiff his

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prescribed medication for epilepsy. The Court recommends denying defendants’ motion

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for summary judgment as to that claim, but granting summary judgment on all of plaintiff’s

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other claims.

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FACTUAL BACKGROUND

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On July 22, 2014, Arellano claims he suffered a seizure. (ECF No. 12, at 6.) Prior to

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his seizure, Arellano missed six of his last seven doses of Keppra, his epilepsy medication,

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including his evening dose on July 22, 2014. (ECF No. 59-3, at 27.) Arellano claims the

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pill line nurse, defendant Melton,1 refused to give him his medication because he had a

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paper ID, which had been given to him as a temporary ID by the prison. (ECF No. 97,

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at 10.) Arellano claims that he told Melton a seizure was imminent and that he “know[s]

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when [he is] about to get a seizure.” (ECF No. 97, at 1.) He also suggests in a deposition

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that Melton may have withheld the medication for his being late to the pill line, although

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defendants claim he did not show up at all. (ECF No. 59-2, at 9; ECF No. 59-1, at 15.)

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Critically, however, there is no evidence, by affidavit or declaration, to support either of

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these assertions. Because the evidence must be viewed in a light most favorable to the

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nonmoving party, the discussion will be limited to improper ID.

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A month after the episode, Arellano saw a prison doctor, defendant Chau. (ECF

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No. 12, at 7.) A previous doctor had prescribed Arellano both Keppra and Gabapentin.

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(ECF No. 59-3, at 3.) Arellano told Chau to switch his medication to Gabapentin because

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he was having side effects from Keppra and thought the previous treatment was better. (Id.)

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Chau set up an appointment for Arellano to see a neurologist, who concluded that a seizure

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every 30 days on his medication was normal. (Id. at 9.)

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When Chau refused to change the prescription, Arellano filed a prison grievance

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stating he wanted his medication changed. (Id.) The grievance was denied, and when

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Arellano appealed, it was sent to defendants Roberts and Glynn. (ECF No. 12, at 10.)

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Roberts and Glynn denied the appeal. Arellano then appealed to the third level, which was

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reviewed by defendant Lewis. (Id.) Lewis denied the appeal stating that because Arellano

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did not have neurological deficits, he did not meet the criteria for Gabapentin. (Id. at 11.)

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Arellano filed this action alleging his medical care or lack thereof violated the Eighth

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In Arellano’s complaint, he spells the nurse’s name “Milton,” but in subsequent

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filings defendants have spelled the name “Melton.” For clarity, the Court will refer to the

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defendant as “Melton.”
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Amendment, the Americans with Disabilities Act, and procedural due process. (ECF

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No. 12.) Defendants move for summary judgment on all claims. (ECF No. 59.)

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DISCUSSION
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Deliberate Indifference

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According to the Eighth Amendment, “cruel and unusual punishments [may not be]

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inflicted.” “To violate the Cruel and Unusual Punishments Clause, a prison official must

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… [be] deliberate[ly] indifferen[t] to inmate health or safety.” Farmer v. Brennan, 511

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U.S. 825, 834 (1994). Prison officials are deliberately indifferent if (1) they are “aware of

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facts from which the inference could be drawn that a substantial risk of harm exists,” (2)

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“draw the inference,” and (3) recklessly disregard the risk. Farmer, 511 U.S. at 837;

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Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014).

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Even if Arellano can show deliberate indifference by prison officials to his serious

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medical needs, prison officials have another layer of protection, to-wit: qualified immunity.

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Overcoming defendants’ qualified immunity is possible only where a plaintiff can show he

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was “depriv[ed] of a constitutional or statutory right” and the constitutional “right was

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‘clearly established.’” Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015); Hamby v.

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Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016).

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A. Melton

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Arellano claims Melton was deliberately indifferent when she withheld his

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prescribed medication. (ECF No. 12, at 11.) “[A] prison official acts with deliberate

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indifference when [s]he ignores the instructions of the prisoner’s treating physician,” such

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as refusing to provide prescribed medication. Egberto v. Nev. Dep’t of Corr., 678 F.

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App’x 500, 505 (9th Cir. 2017).

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Arellano claims he was denied Keppra, his epilepsy medication, because he had an

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improper ID. (ECF No. 97, at 10.) Epilepsy is a serious medical need. Hudson v. McHugh,

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148 F.3d 859, 863 (7th Cir. 1998). The pill line nurse—in this case Melton—must record

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whether a prisoner receives medication, and so in the absence of evidence from defendant

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to the contrary, Melton is considered to have had notice of the missed doses during the
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relevant period. Because Melton did not refute this under oath, a reasonable jury could find

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that Melton—as a nurse—was aware of the need for the medication to treat epilepsy, drew

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the inference that there was a risk to Arellano if he did not receive such

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medication―particularly due to the record of several recent missed doses―and his claim

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that he told Melton he was about to have a seizure without his medication, and recklessly

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disregarded the risk by refusing to give Arellano his medication.2 Defendants argue the

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medication log shows he was not present in the pill line, however the log simply shows

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whether he received his medication or not, and both parties agree he did not. (ECF No. 59-

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1, at 15.) The log does not establish the reason he did not receive his medication. Although

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Melton claims Arellano did not show up to receive his medication, he claims otherwise and

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credibility is a determination for the jury. Goldman v. United States, 245 U.S. 474, 477

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(1918).

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Additionally, defendants argue that missing a single dose of Keppra is insufficient

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to trigger a seizure and have offered expert testimony to support that position. (ECF No.

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59-3, at 5 (Dr. Feinstein’s declaration stating “it is my opinion that it is highly unlikely that

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missing a single dose of Keppra would cause a seizure in the manner Plaintiff alleges.”).

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First, even though it may be highly unlikely, that does not mean it cannot—or did not—

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occur. Second, Arellano has sworn under the penalty of perjury that he feels certain

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symptoms immediately before a seizure but that he can head off a seizure if he gets his

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medication. (See ECF No. 97, at 1-2; see also id. at 16 (swearing the document under

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penalty of perjury).) He also swears that he felt those symptoms on July 22, 2014, and told

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Melton as much. (See id. at 2.) Finally, according to the medical records, Arellano did not

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miss a single dose of Keppra, he missed a number of doses before he allegedly reported to

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While a prisoner being absent from the pill-line may, for practical reasons, justify

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the failure to provide medication, the withholding of medication is not a proper sanction

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for disciplinary violations.
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the pill line to get his medication from Melton. (See ECF No. 59-3, at 27 (medication chart

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indicating Arellano missed 9 of 14 doses in the week before the seizure).)3 A reasonable

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fact finder could conclude Melton knew about his medication history—since it appears it

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was her responsibility to fill out that chart—and disregarded it when she withheld his

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medication on July 22, 2014, for his failure to have a proper ID. Thus, a jury could conclude

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Melton was deliberately indifferent to plaintiff’s serious medical need.

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“Intentionally interfering with the treatment once prescribed” has been clearly

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established as deliberate indifference. Estelle v. Gamble, 429 U.S. 97, 104 (9th Cir. 1976).

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Because the refusal of prescribed epilepsy medication can be a violation of a clearly

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established constitutional right, Melton is not entitled to qualified immunity at this stage.

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Jones v. Faulkner Cnty., 609 F. App’x 898, 900 (8th Cir. 2015) (reversing summary

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judgment because defendants were aware of the prisoner’s need for epilepsy medication

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but withheld it); Williamson v. Evitts, 925 F.2d 1467 (6th Cir. 1991) (holding prisoner had

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sufficiently alleged deliberate indifference by claiming the pill line nurse withheld his

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medication); cf Hudson, 148 F.3d at 863 (upholding dismissal of claims against defendants

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who were unaware that the prisoner was not receiving his epilepsy medication).

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B. Chau

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Arellano claims Chau was deliberately indifferent to his serious medical condition,

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epilepsy, by refusing to alter his treatment to Gabapentin instead of Keppra. (ECF No. 12,

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at 19.) But “a difference of opinion between a physician and the prisoner—or between

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medical professionals—concerning what medical care is appropriate does not amount to

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deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012); see also

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While, a jury might conclude Arellano was simply not present to get his medication

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that day and that his contention otherwise is not credible, at this stage, since Arellano

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swears otherwise, it is a question of credibility and must be left to the jury rather than

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adjudicated at summary judgment. See Goldman, 245 U.S. at 477.
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Estelle, 429 U.S. at 107 (holding that a medical decision to take one treatment route over

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another does not represent cruel and unusual punishment). Although Arellano was

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prescribed Gabapentin in the past, the same doctor prescribed Keppra, as well. (ECF No.

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59-3, at 3.) Arellano has not provided evidence to show Chau’s Keppra treatment plan was

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medically unacceptable. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)

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(concluding that one way to show a doctor was deliberately indifferent is to show that the

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treatment was “medically unacceptable”). In fact, because both doctors prescribed Keppra,

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the only evidence presented is that the treatment provided was medically acceptable. This

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is especially true because the uncontested record reveals that Gabapentin is not FDA-

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approved for the treatment of Arellano’s diagnosis. (See ECF No. 59-3, at 3 (Dr. Feinstein’s

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declaration, uncontested by plaintiff, that there “is insufficient evidence to support FDA

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approval for treatment of generalized tonic clonic seizures, which is the type of seizure

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consistent with Plaintiff’s descriptions of his seizure episodes”).) Finally, defendants’

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expert testified, without contradiction that the California Correctional Health Care Services

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removed Gabapentin from its formulary list due to “a growing body of evidence that

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gabapentinoids carry a risk of dependency, abuse, and misuse.” (Id.)

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Because Arellano has not met his burden of presenting evidence to show Keppra is

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a medically unacceptable treatment for epilepsy under the circumstances, his deliberate

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indifference claim against Chau fails.

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Further, there are no cases clearly establishing that treating epilepsy with Keppra is

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deliberately indifferent, therefore Chau is also protected by qualified immunity. See Hall

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v. Brown, No. 14-cv-02380-CMA, 2015 WL 5289885, at *8 (D. Colo. Aug. 17, 2015)

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(refusing to prescribe Gabapentin over Keppra is not deliberate indifference).

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C. Roberts, Glynn, and Lewis

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Arellano argues that when Roberts, Glynn, and Lewis denied his appeals of his

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grievances, they were deliberately indifferent, and therefore violated his right to be free

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from cruel and unusual punishment. (ECF No. 12, at 10-11.) It is not clearly established

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that denial of a grievance petition when medical treatment is being provided constitutes
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deliberate indifference. Greene v. Daley, 414 F.3d 645, 656 (7th Cir. 2005) (concluding

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administrative officers are not permitted, much less required, to second guess a doctor’s

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medical opinion). Therefore, Roberts, Glynn, and Lewis are entitled to qualified immunity,

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and summary judgment should be granted in their favor.

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II.

Americans with Disabilities Act

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It is not clear from his complaint or from his opposition to defendants’ motion for

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summary judgment how Arellano claims defendants violated the ADA. As best the Court

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can determine, according to Arellano, defendants violated the ADA when they refused to

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switch him to Gabapentin because it deprived him of “life necessity’s.” (ECF No. 12, at 5).

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The purpose of the ADA is to set “standards addressing discrimination against individuals

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with disabilities” and provide recourse for discrimination based on that disability. 42

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U.S.C. § 12101(b). In order to recover monetary damages under Title II of the ADA, a

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plaintiff must satisfy four elements: the plaintiff must be (1) “an individual with a

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disability”; (2) who is “otherwise qualified to receive the benefit”; (3) “denied the benefits

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of the program solely [and intentionally] by reason of his disability; and (4) the program

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[must receive] federal financial assistance.” Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1135

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(9th Cir. 2001).

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Arellano has not provided sufficient evidence to satisfy the third element. As to

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Chau, Arellano is qualified to receive treatment in Donovan. The undisputed evidence

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shows he was treated. He was not denied the benefits of medical treatment or the medical

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program. Arellano successfully filed and then appealed grievances, therefore Roberts,

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Glynn, and Lewis did not deny Arellano the benefits of the grievance system.

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Regarding Melton, the result is the same. According to Arellano, Melton withheld

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his medication because he had a paper ID rather than the prison’s official ID. According to

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Arellano’s own recount, she did not withhold his medication because of his disability, but

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because he was not in compliance with a prison regulation. He was not denied the benefit

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of the program based solely on discrimination against his disability, and therefore he cannot

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show a violation of the ADA.
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The Court recommends granting defendants’ motion for summary judgment on the

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ADA claims.

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III.

Due Process

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Finally, Arellano claims the defendants violated his right to procedural due process,

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but his claim is again unclear. (ECF No. 12, at 5.) It appears Arellano claims defendants

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violated due process by being deliberately indifferent. (See ECF No. 12, at 5; see also ECF

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No. 97, at 13-14.) However, “attacking the result instead of the process of a procedure does

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not state a procedural due process claim.” Milburn v. City of Lebanon, 221 F. Supp.

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3d 1217, 1222 (D. Or. 2016); Ward v. Temple, No. Civ.A. 02-7414, 2003 WL 21281768,

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at *5 (E.D. Pa. Jan. 2, 2003). Therefore, there is no violation of procedural due process,

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and summary judgment should be granted.

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Further, even if the Court assumes Arellano claimed the violation occurred with the

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denial of his grievances, the claim still fails. Procedural due process is violated when “there

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exists a liberty or property interest of which [the plaintiff] has been deprived … [and] the

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state’s procedures were constitutionally [in]sufficient.” Swarthout v. Cooke, 562 U.S. 216,

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219 (2011). The “right to petition the government for the redress of grievances” is

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constitutionally protected. Turner v. Safley, 482 U.S. 78, 84 (1974). However, that is a right

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of access to the courts, not a right to a prison grievance system. Riley v. Roach, 572 F.

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App’x 504, 507 (9th Cir. 2014); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). But

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see Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995) (“The right of meaningful access

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to the courts extends to established prison grievance procedures.” (citing Valandingham v.

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Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989))). Access to a prison grievance system is

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not a constitutional right, but even if it were, Arellano received the benefits of the grievance

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system. See Milburn, 221 F. Supp. 3d at 1222.

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CONCLUSION

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The Court recommends granting summary judgment in favor of Chau, Roberts,

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Glynn, and Lewis on all claims, granting summary judgment as to Melton on all claims

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except the Eighth Amendment deliberate indifference, and denying summary judgment to

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Melton as to that one claim. The parties may file written objections within 14 days of

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service of this report. Failure to file objections may result in a waiver of those objections

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on appeal. Thomas v. Arn, 474 U.S. 140 (1985).

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Dated: August 23, 2018

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