Opinion
CASE NO. 14-cv-5827-RBL-JRC
05-22-2015
DEREK CALDWELL, Plaintiff, v. GREGORY SCHALLER, et. al., Defendants.
REPORT AND RECOMMENDATION NOTED FOR: June 12, 2015
The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR1, MJR3 and MJR4.
Before the Court is defendants' Motion for Summary Judgment (see Dkt. 23). Although in January, 2015 plaintiff filed (see Dkt. 27) and this Court granted (see Dkt. 30) a motion for a sixty-day extension for plaintiff to respond to defendants' Motion for Summary Judgment, plaintiff has not filed a response to defendant's Motion for Summary Judgment.
Plaintiff's subsequent Motion for Extension of Deadlines re Discovery and Dispositive Motions (see Dkt. 29) was denied (see Dkt. 32).
Plaintiff suffers from pain in his right hip and lower back (see Amended Complaint, Dkt. 20, p. 3). However, he cannot demonstrate that any defendants have been deliberately indifferent to any serious medical need of plaintiff. He has received x-rays, ibuprofen and other recommendations and treatment appropriate for his condition. At most, plaintiff presents an alternative opinion as to the proper treatment. Therefore, defendants' motion for summary judgment should be granted as to all defendants.
FACTS
Plaintiff alleges that he suffered from an injury to his right hip and lower back during his incarceration at Stafford Creek Corrections Center ("SCCC") (see Amended Complaint, Dkt. 20, p. 3). He contends that he has been denied adequate medical care and has suffered a deliberate indifference to his serious medical needs (see id.).
On June 5, 2010, plaintiff was "seen for his intake screening and reported knee pain for four years with a weight of 450 pounds" (see Declaration of Gregory Schaller, Dkt. 24, ¶ 5, Attachment A, p. 2). He does not appear to have reported any hip pain at this initial intake screening (see Dkt. 24, Attachment A, p. 2).
In support of their motion for summary judgment, defendants submit the declaration of a certified physician's assistant with DOC, Gregory Schaller, who indicates that he is familiar with plaintiff because he provided medical care to plaintiff on four occasions while assigned to SCCC (see Declaration of Gregory Schaller, Dkt. 24, at ¶¶ 1, 3). According to Mr. Schaller, plaintiff did not go to medical again after his initial June 5, 2010 intake until April 17, 2012 for a health records review, when plaintiff reported that he had suffered from a right hip fracture in 2009 (see id. at ¶ 5, Attachment A, p. 5). Plaintiff's medical record indicates that plaintiff also "reported that he was told he was young enough to recover without pinning him," which Mr. Schaller opines indicates "minimal hip injury" (see id. at ¶ 5). Mr. Schaller indicates that plaintiff also reported at this April 17, 2012 health records review that "he was able to walk, sit and stand without much effort" (see id., at ¶ 5, Attachment A, p. 5). According to Mr. Schaller, an April 26, 2012 x-ray indicates that plaintiff had "no hip fracture or stress fracture and moderate degenerative changes of the right hip joint" (see id. at ¶ 5). Mr. Schaller contends that degenerative changes "reflect classic osteoarthritis or wear and tear of joint" (see id.). Plaintiff's medical record indicates that plaintiff was prescribed ibuprofen, which Mr. Schaller indicates "is the appropriate prescription to treat osteoarthritis" (see id.). The note in plaintiff's medical record indicates that on May 3, 2012, plaintiff indicated that he "has no pain right now," although he reported intermittent episodes of pain (see id., Attachment A, p. 5). Plaintiff was next seen in medical on August 20, 2012, when he reported chronic hip pain (see id., at ¶ 6). Plaintiff received a prescription for ibuprofen, which was renewed on October 22, 2012 (see id.). According to Mr. Schaller, plaintiff "was then seen in medical six months later for his intake screening into the [SCCC] where he reported no complaints" (see id.). Notes from plaintiff's medical record substantiate that in April, 2013, plaintiff reported no complaints at that time (see id., Attachment B, p. 2). In addition, the Court notes that plaintiff has not disputed this version of the factual history and has submitted nothing to call it into question.
When plaintiff was seen next in medical, on June 4, 2013, he reported chronic hip pain since a fall injury more than 10 years prior (see id. at ¶ 7, Attachment C, p. 2). Plaintiff indicated that he was walking well without assistance and was not taking over-the-counter pain medications at the time (see id. at ¶ 7, Attachment C, p. 2). As indicated by Mr. Schaller's declaration and plaintiff's medical record, plaintiff also "stated that he was working at a job which required him to stand more than eight hours a day which was exacerbating his pain" (see id.). Plaintiff was provided a limitation to a lower bunk and was recommended to engage in no prolonged standing (see id.). Mr. Schaller indicates that his first encounter with plaintiff was when plaintiff next was seen in medical on November 7, 2013 (id. at ¶ 8). At that time, Mr. Schaller reviewed plaintiff's high blood pressure and right hip arthritis, prescribed blood pressure medication, advised plaintiff to obtain ibuprofen from the prison commissary, and recommended that plaintiff lose weight due to his obesity and to reduce stress on his right hip (see id.). Mr. Schaller noted at that time that plaintiff "appeared to have normal nonantalgic (non pain based) gait when he did not think he was being observed as well as full weight bearing without grimace" (see id.). Mr. Schaller's reporting of this assessment is substantiated by plaintiff's medical record (see id. at Attachment D, p. 2).
Mr. Schaller indicates that five months subsequently passed without any more requests for medical care by plaintiff (see id. at ¶ 9). Plaintiff then reported to medical on April 21, 2014 at which time Mr. Schaller examined plaintiff for complaints of blood in stool, left flank pain and excessive urination caused by high blood pressure medication (see id. at ¶ 9, Attachment E, p. 2). Mr. Schaller indicates that he again recommended weight loss to plaintiff (see id.). Mr. Schaller also indicates that at this appointment, plaintiff did not make any complaints of right hip pain (see id.). It appears from plaintiff's medical record that he did not show up for his subsequent appointment (see id. at Attachment E, p. 2).
On May 27, 2014, plaintiff reported to medical for complaints of hip and back pain (see id., ¶ 10). The nurse who evaluated plaintiff provided plaintiff with education, and encouraged weight loss as plaintiff weighed 400 pounds at that time (see id.; see also Attachment F, p. 2).
On June 9, 2014, Mr. Schaller examined plaintiff for complaints of right hip pain and back pain in addition to other health issues, such as high blood pressure and obesity (see id. at ¶10; see also Attachment F. pp. 2-3). Mr. Schaller noted in plaintiff's medical records that plaintiff weighed 403.2 pounds at that time and was morbidly obese (see id.). Mr. Schaller ordered an x-ray of plaintiff's right hip and lower back, and increased and added additional blood pressure medication (see id.). Mr. Schaller also recommended weight loss and that plaintiff continue stretching exercises (see id.). Mr. Schaller saw plaintiff for a follow up appointment on June 9, 2014 (see id. at ¶ 11, Attachment F, p. 3). He reviewed plaintiff's x-ray and "noted a grossly normal lumbar spine and moderate to severe osteoarthritis of the right hip" (see id.). Mr. Schaller wrote a prescription for salsalate, which Mr. Schaller indicates is similar to ibuprofen, for plaintiff's right hip pain and directed plaintiff to continue his blood pressure medication (see id.). Mr. Schaller also spoke with plaintiff at that time about potential hip replacement, which he had indicated may be necessary in the long-range future (see id.). Mr. Schaller indicates that at this appointment, plaintiff reported that he was able to ambulate, still had functional activities of daily living and also could ambulate without assistance (see id.). Mr. Schaller also recommended weight loss at this appointment (see id.).
STANDARD OF REVIEW
Summary judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits, show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). There is a genuine issue of fact for trial if the record, taken as a whole, could lead a rational trier of fact to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also T. W. Elec. Service Inc. v. Pacific Electrical Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). When presented with a motion for summary judgment, the court shall review the pleadings and evidence in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Dress & Co., 398 U.S. 144, 158-59 (1970)). Conclusory, nonspecific statements in affidavits are not sufficient; and, the court will not presume "missing facts." Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990). However, "a pro se complaint will be liberally construed . . . ." Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (other citation omitted).
In order to recover pursuant to 42 U.S.C. § 1983, a plaintiff must prove that: (l) the conduct complained of was committed by a person acting under color of state law and that (2) the conduct deprived a person of a right, privilege, or immunity secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986).
DISCUSSION
I. Stafford Creek Corrections Center
Although a plaintiff can maintain a § 1983 claim against a person acting under color of state law, see Parratt, supra, 451 U.S. at 535, neither a state, nor a state agency that is an arm of the state, is a person for purposes of § 1983. See Howlett v. Rose, 496 U.S. 356, 365 (1990) (citing Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989)); Will, supra, 491 U.S. at 6670. This rationale applies to state agencies such as the Washington Department of Corrections ("DOC") and the Stafford Creek Corrections Center ("SCCC"), see Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam); Allee v. Or. Dep't. of Corr., 315 Fed. Appx. 610, 611 (9th Cir. 2009) (unpublished memorandum opinion) (citing Will, supra, 491 U.S. at 66). Although defendants request summary judgment as to defendant SCCC, SCCC does not appear to be a named defendant in plaintiff's Amended Complaint (see Dkt. 20).
II. Alleged deliberate indifference to plaintiff's serious medical need
The Eighth Amendment prohibits deliberate indifference to a person's serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Jones v. Johnson, 791 F.2d 769, 771 (9th Cir. 1986). The government has an obligation to provide medical care for prisoners, and the Eighth Amendment proscribes deliberate indifference to their serious medical needs. Estelle, supra, 429 U.S. at 103 (1976). Such conduct is actionable under 42 U.S.C. § 1983. See, e.g., McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), reversed on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). According to the Ninth Circuit, prison officials "'are indifferent to prisoners' serious medical needs when they deny, delay, or intentionally interfere with medical treatment.'" Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (quoting Hamilton v. Endell, 981 F.2d 1062, 1066 (9th Cir. 1992)).
To establish deliberate indifference, a prisoner must show that a defendant purposefully ignored or failed to respond to the prisoner's pain or possible medical need. See McGuckin, supra, 974 F.2d at 1060; Estelle, supra, 429 U.S. at 104. A determination of deliberate indifference involves an examination of two elements: (1) the seriousness of the prisoner's medical need; and (2) the nature of defendant's response to that need. See McGuckin, supra, 974 F.2d at 1059. A serious medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain. Id.
In order to establish deliberate indifference, there must first be a purposeful act or failure to act on the part of the defendant. Id. at 1060. A difference of opinion between a prisoner and medical authorities regarding proper medical treatment does not give rise to a §1983 claim. Franklin v. Oregon, State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981). Mere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth Amendment rights. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). According to the Supreme Court, an official can be found liable pursuant to the Eighth Amendment if "the official knows of and disregards an excessive risk to inmate health or safety . . . ." Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Even if the Court concludes for the purposes of defendants' motion for summary judgment that plaintiff has a serious medical need, the Court must inquire as to the nature of defendants' response to that need. See McGuckin, supra, 974 F.2d at 1059. A review of the facts, discussed above, indicates that defendants have not ignored or failed to respond to plaintiff's pain or possible medical need. See McGuckin, supra, 974 F.2d at 1060; Estelle, supra, 429 U.S. at 104. Instead, as noted above, plaintiff was provided with x-rays; prescriptions and recommendations for ibuprofen and salsalate; and recommendations for stretching and weight loss.
This conclusion based on the facts discussed is buttressed by the declaration submitted by Dr. Sara Smith, M.D. in support of defendants' Motion for Summary Judgment (see Dkt. 25). Dr. Smith was employed as a physician for DOC and was stationed at SCCC from July, 2011 through September, 2013; and again starting in September, 2014 (see id. at ¶ 2). Although Dr. Smith has not examined plaintiff, she indicates in her declaration that she is familiar with him, as he is housed at SCCC, and she has reviewed his medical records (see id. at ¶ 3). She discusses some of plaintiff's medical encounters, as well as her approval of a request for his physical therapy evaluation and his subsequent home exercise plan (see id. at ¶ 4). Dr. Smith opines that her review of plaintiff's medical records "does not indicate any further treatment for his right hip pain is warranted at this time" (see id. at ¶ 5). Plaintiff has submitted nothing in response to this declaration, and has submitted no evidence to counter Dr. Smith's opinion.
Giving plaintiff every benefit of the doubt, and construing his pleadings as liberally as possible, he has presented, at most, his own opinion that he should be receiving additional or different treatment (see Amended Complaint, Dkt. 20). However, a difference of opinion between a prisoner and medical authorities regarding proper medical treatment does not give rise to a § 1983 claim. Franklin v. Oregon, State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981).
Similarly, although plaintiff indicates in his grievance (without evidence) that he is suffering from lack of proper medical attention due to negligence (see Dkt. 20, p. 4), mere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth Amendment rights. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988).
Therefore, for the stated reasons, Defendants' Motion for Summary Judgment on plaintiff's Eighth Amendment claim should be granted in full.
CONCLUSION
Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time limit imposed by Fed. R. Civ. P. 72(b), the clerk is directed to set the matter for consideration on June 12, 2015, as noted in the caption.
Dated this 22nd day of May, 2015.
/s/_________
J. Richard Creatura
United States Magistrate Judge