(PC) Allen v. Lopez ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 EASTERN DISTRICT OF CALIFORNIA 9 KEVIN ALLEN, Case No. 1:18-cv-00808-NONE-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS 11 RECOMMENDING THAT DEFENDANTS’ 12 v. MOTION FOR SUMMARY JUDGMENT BE GRANTED AS TO DEFENDANTS LOPEZ, 13 DR. LOPEZ, et al., OGBUEHI, AND RELEVANTE AND DENIED AS TO DEFENDANTS PATEL, SAO, ULIT, 14 Defendants. AND SPAETH 15 (ECF No. 45) 16 OBJECTIONS, IF ANY, DUE WITHIN 17 TWENTY-ONE DAYS 18 I. INTRODUCTION 19 Kevin Allen (“Plaintiff”), a prisoner in the custody of the California Department of 20 Corrections and Rehabilitation, is proceeding pro se and in forma pauperis in this civil rights 21 action pursuant to 42 U.S.C. § 1983. This case proceeds on Plaintiff’s complaint, filed June 13, 22 2018 (ECF No. 1), on claims against Defendants Dr. Lopez, Dr. Spaeth, Dr. Sao, Dr. Ulit, Dr. 23 Patel, PA Ogbuehi, and PA Relevante for a violation of the Eighth Amendment based on 24 deliberate indifference to serious medical needs. (ECF No. 14). Plaintiff alleges that 25 Defendants were part of a committee at Kern Valley State Prison that denied him needed 26 surgery. 27 On October 22, 2019, Defendants filed a motion for summary judgment arguing that the 28 undisputed facts establish that they are not liable, and alternatively that they are entitled to 1 qualified immunity. (ECF No. 45). Plaintiff filed his opposition and a request for judicial 2 notice on November 4, 2019. (ECF Nos. 46 & 47).1 Defendants filed their reply on November 3 12, 2019. (ECF No. 49). 4 After review of all submission, the Court recommends granting summary judgment in 5 favor of Defendants Lopez, Ogbuehi, and Relevante because the undisputed facts establish that 6 they did not make the decision to deny Plaintiff’s surgery. The Court recommends denying 7 summary judgment as to Defendants Patel, Sao, Ulit, and Spaeth because, based on the 8 evidence presented, a reasonable jury could find that they acted with deliberate indifference to 9 Plaintiff’s serious medical needs in denying Plaintiff’s surgery. 10 II. LEGAL STANDARDS 11 a. Legal Standards for Summary Judgment 12 Summary judgment in favor of a party is appropriate when there “is no genuine dispute 13 as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 14 P. 56(a); Albino v. Baca (“Albino II”), 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (“If there 15 is a genuine dispute about material facts, summary judgment will not be granted.”). A party 16 asserting that a fact cannot be disputed must support the assertion by “citing to particular parts 17 of materials in the record, including depositions, documents, electronically stored information, 18 affidavits or declarations, stipulations (including those made for purposes of the motion only), 19 admissions, interrogatory answers, or other materials, or showing that the materials cited do not 20 establish the absence or presence of a genuine dispute, or that an adverse party cannot produce 21 admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). 22 A party moving for summary judgment “bears the initial responsibility of informing the 23 district court of the basis for its motion, and identifying those portions of ‘the pleadings, 24 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 25 any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 26 Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). If the moving party 27 28 1 In Plaintiff’s opposition, Plaintiff requests appointment of pro bono counsel. (ECF No. 46, at p. 14). 1 moves for summary judgment on the basis that a material fact lacks any proof, the Court must 2 determine whether a fair-minded jury could reasonably find for the non-moving party. 3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla 4 of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on 5 which the jury could reasonably find for the plaintiff.”). “[A] complete failure of proof 6 concerning an essential element of the nonmoving party’s case necessarily renders all other 7 facts immaterial.” Celotex, 477 U.S. at 322. Additionally, “[a] summary judgment motion 8 cannot be defeated by relying solely on conclusory allegations unsupported by factual data.” 9 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 10 In reviewing the evidence at the summary judgment stage, the Court “must draw all 11 reasonable inferences in the light most favorable to the nonmoving party.” Comite de 12 Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). It 13 need only draw inferences, however, where there is “evidence in the record … from which a 14 reasonable inference … may be drawn…”; the court need not entertain inferences that are 15 unsupported by fact. Celotex, 477 U.S. at 330 n. 2 (citation omitted). Additionally, “[t]he 16 evidence of the non-movant is to be believed….” Anderson, 477 U.S. at 255. Moreover, the 17 Court must liberally construe Plaintiff’s filings because he is a prisoner proceeding pro se in 18 this action. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). 19 In reviewing a summary judgment motion, the Court may consider other materials in 20 the record not cited to by the parties, but is not required to do so. Fed. R. Civ. P. 56(c)(3); 21 Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). 22 b. Legal Standards for Deliberate Indifference to Serious Medical Needs 23 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 24 inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 25 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires 26 Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a 27 prisoner’s condition could result in further significant injury or the unnecessary and wanton 28 infliction of pain,’” and (2) that “the defendant's response to the need was deliberately 1 indifferent.” Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (citation 2 and internal quotations marks omitted), overruled on other grounds by WMX Technologies v. 3 Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). 4 Deliberate indifference is established only where the defendant subjectively “knows of 5 and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 6 1051, 1057 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). 7 Deliberate indifference can be established “by showing (a) a purposeful act or failure to 8 respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” 9 Jett, 439 F.3d at 1096 (citation omitted). Civil recklessness (failure “to act in the face of an 10 unjustifiably high risk of harm that is either known or so obvious that it should be known”) is 11 insufficient to establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 12 836-37 & n.5 (1994) (citations omitted). 13 A difference of opinion between an inmate and prison medical personnel—or between 14 medical professionals—regarding appropriate medical diagnosis and treatment is not enough to 15 establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 16 Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). Additionally, “a complaint that a 17 physician has been negligent in diagnosing or treating a medical condition does not state a valid 18 claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not 19 become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 20 106. To establish a difference of opinion rising to the level of deliberate indifference, a 21 “plaintiff must show that the course of treatment the doctors chose was medically unacceptable 22 under the circumstances.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). 23 III. FACTS 24 A. Medical Records 25 Based on the medical records submitted, the following facts are undisputed: 26 • On July 21, 2015, neurological surgeon Moris Senegor evaluated Plaintiff and 27 recommended surgery. His findings and recommendation are set forth in detail, 28 and include the following: 1 Radiology: Available for review is an MRI scan of the lumbar 2 spine dated 4/10/14 was reviewed with him. This reveals a 4- level disc degeneration from L2-3 down to L5-S1. These is 3 severe lumbar stenosis at L3-4 and L4-5. At L3-4, there is also right paracentral disc herniation using the lumbar stenosis and 4 left side of the spinal canal. 5 Impression: My impression of this patient is that he has 6 premature lumbar stenosis given his age and his very thin body habitus. The problem is at L3-4 and L4-5 and presently is 7 unilaterally symptomatic, only on the right side. This patent could benefit from a decompression procedure. 8 Plan/Discussion: I reviewed the findings with the patient and 9 recommended a right L3-4 and L4-5 lateral recess decompression 10 along with a possible right L3-4 discectomy. 11 (ECF No. 46, at p. 55). 12 • On January 15, 2016, Plaintiff’s Primary Care Provider at that time, Law San 13 Fu, reported that Plaintiff “was seen by neurosurgeon dr. moris senegor … for 14 spinal stenosis and recommend to do surgery.” Plaintiff’s symptoms included 15 “Numbess [sic] on both thigh, back pain, abnormal gait, right leg strength 16 weaker than left, lumbar spine limited to 50% of normal extension.” Under the 17 section titled Assessment/Plan, Dr. Fu noted: “severe lumbar stenosis. rsf for 18 urgent lateral recess decompression with possible right L3 L4 discetomy was 19 submitted….” (ECF No. 46, at p. 60). 20 • Plaintiff received another MRI on March 10, 2016. Relevant findings include: 21 “L3-4: Desiccation of the intervertebral disc is present with loss of height and a 22 mild broad-based disc protrusion. Hypertrophic degenerative changes of the 23 facet joints and thickening of ligamentum flavum are seen. These findings 24 result in moderate central canal and mild bilateral neural foraminal narrowing;” 25 and “L4-5: Desiccation of the intervertebral disc is present with loss of height 26 and a mild broad-based disc protrusion. Hypertrophic degenerative changes of 27 the facet joints and thickening of ligamentum flavum are seen. These findings 28 result in moderate central canal and moderate bilateral neural foraminal 1 narrowing.” In impression, the report states “Moderate central canal narrowing 2 is seen at L3-4 and L4-5.” (ECF No. 45-4, at p. 27). 3 • On June 20, 2016, Plaintiff saw Nurse Practitioner Manasrah. Notes indicate 4 “report CLBP getting worse, morphine is helping but not taking all his pain 5 away, no loss of bowel or bladder function. walked in clinic with severe 6 limping. he stated he was suppose [sic] to go for back surgery but he was 7 transferred here instead due to his legal case. reports he is becoming [sic] in 8 more pain.” Additionally, “he was approved per notes for neurosurgery but 9 needed new MRI and he was transferred here prior to completion. will discuss 10 this case with medical team in AM report for further recommendations due to 11 improvements on new MRI.” (ECF No. 45-4, at p. 26). 12 • On June 22, 2016, Nurse Practitioner Manasrah submitted a Physician Request 13 for Services form, requesting approval for a Physical Medicine and 14 Rehabilitation consult. The section titled Medical Necessity states: “38 y.o. AA 15 male with CLBP had MRI in 2014, shows severe lumbar stenosis, was seen by 16 Dr. Morris 7/21/15 who recommended surgery based on MRI results of exam. 17 New MRI done 3/10/16, which shows improvement without severe stenosis.” 18 Additionally, Nurse Practitioner Manasrah states “needs to be seen by Dr. 19 William for further recommendations [illegible] see if surgery still advisable 20 based on new findings.” (ECF No. 45-4, at p. 6). 21 • On September 29, 2016, Plaintiff had his Physical Medicine and Rehabilitation 22 consult with non-party specialist Dr. G. Williams via telemedicine, to determine 23 whether surgery was required. Dr. Williams did not recommend surgery at this 24 time. He wrote a recommendation after that consultation, which states in 25 relevant part: 26 The patient notes that he has had back pain for approximately 5 27 years. He recalls being told by a spine surgeon that a 2-level decompression would be recommended for his severe spinal 28 stenosis. Subsequently, the patient has had a repeat MRI on 1 0L33/ 1th0r/o2u0g1h6 Lw5h iacnhd h maso dsheorawtee db imlaotedrearla ntee ucreanlt froalr acmaninala ls tneanrorosiws iantg 2 at L4 through S1. Severe spinal stenosis was not noted on the repeat MRI, and there was a question regarding referral to spine 3 surgery. 4 … 5 In regards to surgery, guidance was provided that nonsurgical 6 options are recommended as they have fewer risks compared to surgery. Specifically, the patient may be considered for a TENS 7 Unit for myofascial pain relief of the back pain. The TENS Unit is currently a non-formulary durable medical equipment item as 8 per California Department of Corrections and Rehabilitation (CDCR) Durable Medical Equipment policy. 9 10 (ECF No. 45-4, at pgs. 18-19) • On October 13, 2016, Nurse Practitioner Manasrah submitted a Physician 11 Request for Services form, requesting approval for a neurosurgery consult to 12 assess whether surgery was still necessary based on the improvement shown in 13 Plaintiff’s new MRI, writing “had MRI 3/10/16 of lumbar spine prior to being 14 sent to neurosurgery in the other prison but was transferred here, per P/I 15 symptoms getting worse. Seen Dr. William 9/29/16 [illegible] severe lumbar 16 stenosis. L2-S1 disc degeneration. he was approved for [illegible] neurosurgery 17 but SVSP decided to do new MRI. New MRI 3/10/16 shows some 18 improvement—but P/I symptoms [illegible], can not sit > 10 minutes, interferes 19 in sleep and ADLs.” (ECF No. 45-4, at p. 9). 20 • On October 28, 2016, Plaintiff had his neurosurgery consult with non-party 21 specialist Dr. H. Segal via telemedicine. Dr. Segal “inform[ed] patient that he 22 will be recommending surgery & he will be sending his recommendation to the 23 CDCR/PCP & go from there.” (ECF No. 45-4, at p. 8). 24 • Dr. Segal prepared a letter providing further detail of his evaluation. Dr. Segal 25 summarized his plan as follows: “I am going to discuss this gentlemen’s scans 26 with one of my colleagues, Dr. Ramberg, and plan on a surgical procedure. The 27 risks and expectations of surgery were discussed with the patient in detail today. 28 1 I am recommending microsurgical laminotomy at L4-5 on the right. The L3-4 2 protrusion seems to have resorbed on its own.” (ECF No. 45-4, at pgs. 10-11). 3 • On November 9, 2016, Nurse Practitioner Manasrah wrote the following note: 4 “discussed P/I with KVSP Doctors supervisor & PAs in regard to recent 5 neurosurgery visit. Discussed P/I case in detail—the plan per the team to submit 6 routine RFS for laminectomy so RFS was written. P/I was not seen.” (ECF No. 7 45-4, at p. 21). 8 • On November 9, 2016, a Physician Request for Services form was sent, 9 requesting Laminectomy L4-L5. The form states the neurosurgeon 10 “recommended L4-L5 laminectomy based on symptoms & recent MRI results 11 3/10/16 per record he was approved for surgery. 7/[illegible]/15 but was never 12 completed.” It also noted that “pain radiate[s] to [illegible], has been on 13 NSAID, activity modification, now on morphine x 12 [illegible] with continued 14 symptoms, numbness worsen with walking, unable to sit for extend time[,] 15 [decreased] strength.” (ECF No. 45-4, at p. 13). 16 • On November 11, 2016, Plaintiff reported a fall. Medical notes following that 17 fall state: “Hx of chronic back pain and herniated disc. Fall about 2 hours ago 18 from feeling weak and back pain. Neg LOC. Pain lower back radiating to right 19 foot denies any neck pain…. The patient presents with thoracic pain, lumbar 20 pain and lower back injury. The onset was chronic. The course/duration of 21 symptoms is constant.” (ECF No. 46, at p. 28-30). 22 • On November 11, 2016, Plaintiff received a CT of his Lumbar Spine, without 23 contrast. The report reviews relevant findings and contains the conclusion: “1. 24 L3-4 chronic degenerative spondylosis anteriorly. 2. L5-S1 degenerative disc 25 disease. 3. No acute vertebral injury is apparent radiographically.” (ECF No. 26 45-4, at p. 14). 27 • On November 11, 2016, Plaintiff saw Defendant Physician Assistant Relevante, 28 who noted “unable to stand up due to back pain + stiffness.” (ECF No. 46, at p. 1 35). 2 • According to a Physician Request for Services form, dated November 14, 2016, 3 “I/p fell in cell, states he can’t sit up, states he has [] a disc herniation in lower 4 back.” (ECF No. 45-4, at p. 12). 5 • On November 16, 2016, Nurse Practitioner Manasrah saw Plaintiff, and wrote 6 the following relevant notes: “hosp. report reviewed, CT scan consistent with 7 MRI results from 3/2016, shows L3-L4 chr. deg. spondylosis L5-S1 deg. disk dz 8 recommended pain management and f/u which have been done already[.] please 9 see previous note as he already seen by neurosurgery and RFS was written for 10 back surgery.” (ECF No. 45-4, at p. 24). 11 • The Physician Request for Services form requesting surgery contains a findings 12 section under the request, which states: “Does not meet criteria for medical 13 necessity based on MRI finding of no nerve compression. If you disagree, 14 present to MARC.” (ECF No. 45-4, at p. 13). 15 • Further down the page, in a section titled recommendations, the form states (in 16 different handwriting): “MAR Committee 11/29/16. Denied surgery at this time 17 because new MRI shows improvement. Will try conservative therapy and 18 reevaluate in 6 months.” (Id.). 19 • On July 12, 2017, FNP Pallomina submitted another request for microsurgical 20 laminotomy at L4-L5, per the neurosurgeon’s recommendation. Regarding 21 medical necessity, FNP Pallomina wrote: 22 38 year old African American Incarcerated male with chronic 23 back pain related to fall from top bunch x 6-7 years ago. Complaining of severe excruciating lower back pain—current 24 MRI of the Lumbar area done (3/10/2016) in Salinas valley state prison—showed diffuse degenerative changes of the lumbar 25 spine; mild central canal narrowing present in L2-L3. Moderate central canal narrowing in L3-L4 and L4-L5. Moderate bilateral 26 neural foraminal narrowing present L4-L5 and L5-S1. Seen by 27 Dr. Segel (Neurosurgeon) Oct. 28, 2016—recommended microsurgical laminotomy at L4-L5 on the Right. Was 28 previously seen by Dr. Ramburg while in Salinas Valley state 1 pevriaslouna twiohni cinhm alastoe rveecrobmalmizeens dtiendg sliunrgg isceanls partoiocne dwuirteh. n Oumn bness on 2 the Right Foot—uses cane for mobility and have been on chronic pain medication (MS Contin). Have been sent multiple times 3 with Physical therapy have not helped. 4 (ECF No. 46, at p. 18). • On July 25, 2017, the MAR Committee again rejected the request for surgery, 5 stating “no new objective physical findings to support surgery. Will do another 6 physical therapy referral. Taper off Morphine per MAR Committee.” (ECF No. 7 46, at p. 18). The report of the MAR Committee from July 25, 2017, indicates 8 that Lopez, Spaeth, Sao, Ulit, Patel, Ogbuehi, Relevante, Wallace and Pallomina 9 were present. The report notes as follows: 10 Case discussed with PAIN COMMITTE [sic] regarding inmate 11 recommendations for Microsurgical laminotomy at L4-L5 per 12 Neurosurgeon recommendations—DENIED related to does not meet medical necessity INTERQUAL Documented last MRI of 13 the Lumbar spine/area done 3/2016 showed diffuse degenerative changes of the lumbar spine; mild narrowing present L2-L3; 14 moderate central canal narrowing in L3-L4 and L4-L5. Moderate bilateral neural foraminal narrowing present L4-L5 and L5-S1. 15 Previously seen by Dr. Seagal and initially by Dr. Ramburg while 16 in Salinas valley state prison—both recommended surgical intervention. Was maintained on conservative treatment MS ER 17 5 mg/BID and was on cane for mobility support. 18 MARC Recommendations: 19 1, Taper dose MS ER on the next visit consultation 2. Continue Physical Therapy for further PT session for chronic 20 back pain 3. Alternative chronic pain meds such as duloxetine; 21 oxcarbazepine; NSAIDS 4. Topical capsaicin cream for localized pain control. 22 23 (ECF No. 46, at p. 46). 24 • A progress note, which appears to be dated December 11, 2018, indicates “On 25 today’s consultation--inmate verbalizes excruciating pain with shooting pain 26 from the lower back down to the right foot with tingling sensation. He was 27 walking with hesitation with the use of cane. Furthermore, he was complaining 28 of tingling sensation ‘pins and needles’ on both legs more on the right compared 1 to the left. He was unable to bend 45 [degrees] touching toes related to his 2 subjective pain.” (ECF No. 46, at p. 19). The assessment from this consultation 3 was “We will consult follow-up with neurosurgeon to further evaluate for 4 previously planned microsurgery laminotomy procedure. Referral for service for planned surgery was completed--pending approval.” (Id. at p. 21). 5 B. Declarations from Defendants 6 1. Defendant S. Lopez 7 S. Lopez explains that what a MAR Committee is: 8 9 Each California Prison has a MAR Committee. MAR Committees meet as often as necessary to approve or disapprove requests for medical services otherwise 10 excluded by regulations; review and manage referrals for specialty medical services; review and manage institutional and community hospital bed usage; 11 review other available utilization management data; and report requested 12 utilization management data to the Headquarters Utilization Management committee. The MAR committee decides whether to grant or deny a requested 13 surgery based on a majority vote. 14 (ECF No. 45-4, at ¶ 11). 15 Regarding the decision about Plaintiff’s care, Defendant Lopez states: 16 I do not vote on the MAR Committee and did not deny Plaintiff’s surgery on 17 November 29, 2016. I was also not at the prison on the day that the MAR 18 Committee denied the request for surgery, I was in Elk Grove. 19 (Id. at ¶ 13). 20 21 Finally, S. Lopez states that based on his/her opinion, based on his/her education, 22 training and experience as a Doctor of Osteopathic Medicine, and Chief Medical Executive at 23 Kern Valley State Prison: 24 the MAR committee made the correct decision. Plaintiff was showing improvement from nonsurgical care, making conservative therapy with a re- 25 evaluation in six months the safer route given the significant risks associated 26 with spinal surgery, which can leave a patient worse off. The MAR Committee’s decision was within the standard of care. 27 28 (Id.). 1 2. Defendant O. Ogbuehi 2 Defendant O. Ogbuehi states that he/she worked as a Physician Assistant at Kern Valley 3 State Prison (KVSP) in 2016. (ECF No. 45-5, at ¶ 2). Regarding his/her role in the decision, 4 Defendant Ogbuehi states: 5 I was responsible for presenting my patient's cases to the KVSP MAR 6 Committee in 2016. However, I did not vote on the MAR Committee, and I did not deny Plaintiff Kevin Allen's (K-41879) surgery on November 29, 2016. 7 Physician Assistants do not vote on the MAR Committee. 8 (Id. at ¶ 4). 9 3. Defendant J. Sao 10 Defendant J. Sao is an internal medicine doctor. (ECF No. 45-6, at ¶ 2). Regarding 11 his/her role in denying the request for surgery, Defendant Sao states: 12 On November 29, 2016, the Kern Valley State Prison (KVSP) MAR Committee 13 denied FNP-C Manasrah’s request for surgery based on the improvement in 14 Plaintiff’s MRI in favor of conservative therapy and reevaluation in six months. I am a voting member of the KVSP MAR Committee, and I voted to deny 15 Plaintiff’s surgery on November 29, 2016. While Plaintiff reported pain, spinal surgery is not clinically indicated for pain only. Spinal surgery carries great 16 risk and can leave the patient with increased symptoms. And in Plaintiff’s case, he was showing improvement from nonsurgical care. Under these 17 circumstances, it was my medical opinion, based on my education, training, and 18 experience, that conservative therapy with a re-evaluation in six months was the safer route, as risky surgery would not be necessary if Plaintiff’s condition 19 continued to improve with conservative care. The decision to deny surgery was within the standard of care. 20 21 (Id. at ¶ 6). 22 4. Defendant C. Relevante 23 Defendant C. Relevante is a Physician Assistant at Kern Valley State Prison. (ECF No. 24 45-7, at ¶ 2). Regarding his/her role in denying the request for surgery, Defendant Relevante 25 states: 26 I was responsible for presenting my patient’s cases to the KVSP MAR 27 Committee in 2016. However, I did not vote on the MAR Committee, and I did not deny Plaintiff Kevin Allen’s (K-41879)’s surgery on November 29, 2016. 28 Physician Assistants do not vote on the MAR Committee. 1 (Id. at ¶ 4).2 2 5. Defendant W. Ulit 3 Defendant W. Ulit is a Physician and Surgeon. (ECF No. 45-8, at ¶ 2). Regarding 4 his/her role in denying the request for surgery, Defendant Ulit states: 5 6 I am a voting member of the KVSP MAR Committee, and I voted to deny Plaintiff’s surgery on November 29, 2016. While Plaintiff reported pain, spinal 7 surgery is not clinically indicated for pain only. Spinal surgery carries great risk and can leave the patient with increased symptoms. And in Plaintiff’s case, 8 he was showing improvement from nonsurgical care. Under these circumstances, it was my medical opinion, based on my education, training, and 9 experience, that conservative therapy with a re-evaluation in six months was the 10 safer route, as risky surgery would not be necessary if Plaintiff’s condition continued to improve with conservative care. The decision to deny surgery was 11 within the standard of care. 12 (Id. at ¶ 6). 13 6. Defendant I. Patel 14 Defendant I. Patel is a Physician and Surgeon. (ECF No. 45-9, at ¶ 2). Regarding 15 his/her role in denying the request for surgery, Defendant Patel states: 16 I am a voting member of the KVSP MAR Committee, and I voted to deny 17 Plaintiff’s surgery on November 29, 2016. While Plaintiff reported pain, spinal 18 surgery is not clinically indicated for pain only. Spinal surgery carries great risk and can leave the patient with increased symptoms. And in Plaintiff’s case, 19 he was showing improvement from nonsurgical care. Under these circumstances, it was my medical opinion, based on my education, training, and 20 experience, that conservative therapy with a re-evaluation in six months was the safer route, as risky surgery would not be necessary if Plaintiff’s condition 21 continued to improve with conservative care. The decision to deny surgery was 22 within the standard of care. 23 (Id. at ¶ 6). 24 7. Defendant M. Spaeth 25 Defendant M. Spaeth is a Medical Doctor. (ECF No. 45-10, at ¶ 2). Regarding his/her 26 27 28 2 Although Defendant Relevante saw Plaintiff earlier that month, Defendant Relevante does not say what 1 role in denying the request for surgery, Defendant Patel states: 2 I am a member of the KVSP MAR Committee. However, I only vote on the 3 MAR Committee when there is a tie, which rarely happens because there are usually an odd number of doctors on the MAR Committee. I do not recall 4 whether I participated in the vote to deny Plaintiff’s surgery on November 29, 2016, but in my opinion, based on my education, training, and experience, and a 5 review of Plaintiff’s medical records, the MAR committee made the correct decision. Plaintiff was showing improvement from nonsurgical care, making 6 conservative therapy with a re-evaluation in six months the safer route given the 7 significant risks associated with spinal surgery, which can leave the patient worse off. The decision to deny surgery was within the standard of care. 8 9 (Id. at ¶ 7). 10 C. Plaintiff’s Declarations 11 8. D. Thomas 12 Plaintiff submitted the declaration of D. Thomas, who states that “On 11/11/2016, about 13 2:15 pm; I witness Mr. Allen K41879 fall to the ground after using the restroom, I ran to him 14 and ask him was he alright[.] [H]e stated to me that he can’t move at all and that’s when I 15 called man down and the officers came running to my cell….” (ECF No. 46, at p. 44, ¶ 2). 16 9. Plaintiff 17 Plaintiff submitted his own declaration, largely reiterating his medical history set forth 18 above. Plaintiff also declares “to this day Allen be [sic] in excruciating pain, it feels like its 19 [sic] a million needles poking me in my lower back spine.” (ECF No. 46, at p. 68, ¶ 6). Also, 20 “Plaintiff [sic] medical records do not show improvement of the lower back spine at L4-5.” 21 (Id. at ¶ 7).3 22 IV. ANALYSIS 23 Regarding Defendants Lopez, Ogbuehi, and Relevante, Defendants argue that summary 24 judgment is appropriate because the undisputed facts establish they did not vote on the MAR 25 Committee and did not deny the request for surgery. The Court agrees that these defendants 26 27 3 Plaintiff also submits a letter from Mr. S. Alexander to D. Segal, complaining about Plaintiff being taken off his pain medication for no reason. This document is not a declaration under penalty of perjury and does 28 not describe facts based on the author’s personal knowledge. Accordingly, the Court has not considered it for 1 are entitled to summary judgment. It is undisputed that these defendants did not make the 2 decision regarding the requested surgery. Therefore, these defendants cannot be liable for 3 deliberate indifference to serious medical needs for denying that surgery. 4 Regarding Defendants Patel, Sao, Ulit, and Spaeth, Defendants argue: 5 Plaintiff cannot meet either the objective or subjective component necessary to 6 establish deliberate indifference against Defendant doctors Patel, Sao, Ulit, and Spaeth, because Plaintiff’s recent MRI showed improvement and there were 7 conflicting specialist recommendations regarding whether Plaintiff should still undergo surgery. (UF# 1-11, 18.) Furthermore, while Plaintiff reported pain, 8 spinal surgery is not clinically indicated for pain only. (UF# 19.) Spinal surgery carries great risk and can leave the patient with increased symptoms. (UF# 20.) 9 And in Plaintiff’s case, he was showing improvement from nonsurgical care. 10 (UF# 21.) Under these circumstances, it was the medical opinion of the MAR Committee that conservative therapy with a re-evaluation in six months was the 11 safer route, as risky spinal surgery would not be necessary if Plaintiff’s condition continued to improve with conservative care. (UF# 22-24, 27.) While 12 Plaintiff may disagree with the MAR Committee’s decision to continue conservative therapy and reevaluate for surgery in six months, his disagreement 13 does not support a claim for deliberate indifference. 14 (ECF No. 45-2, at p. 6) (footnote omitted). 15 Upon review of the relevant facts, the Court recommends denying Defendants’ motion 16 for summary judgment as to Defendants Patel, Sao, Ulit, and Spaeth because based on the 17 evidence presented reasonable jurors could return a verdict in Plaintiff’s favor. 18 Regarding the objective component, Plaintiff has presented evidence that reasonable 19 jurors could find that Plaintiff had a serious medical need, including Plaintiff’s MRI showing 20 degenerative disc disease, the opinions of two neurosurgeons recommending surgery, 21 Plaintiff’s own assertions supported by contemporaneous medical records that he suffered from 22 pain and numbness, and Plaintiff’s fall shortly before the decision due to severe back pain. 23 Regarding the subjective component, Plaintiff has presented evidence that reasonable 24 jurors could find establishes that the voting members of the MAR committee knew of and 25 disregarded an excessive risk to Plaintiff’s health by denying him surgery, because they 26 intentionally denied Plaintiff’s request for surgery. Plaintiff has also presented evidence from 27 which a fair-minded jury could concluded that the course of treatment that Defendants Patel, 28 1 Sao, Ulit, and Spaeth chose was medically unacceptable under the circumstances. 2 That evidence includes that two independent neurosurgeons independently 3 recommended this surgery; and that Nurse Practitioner Manasrah requested the surgery after 4 discussing it with “KVSP doctors supervisor” and “the team.” 5 In evaluating the evidence, the jury may also look to the fact that Defendants Patel, Sao, 6 Ulit, and Spaeth are not specialists in neurosurgery; whereas doctors Senegor and Segal, the 7 doctors who recommended surgery, are specialists in neurosurgery. Doctors Senegor and Segal 8 met with and observed Plaintiff, although at least Dr. Segal’s consultation was via 9 telemedicine. Defendants did not meet with or observe Plaintiff. Moreover, the reasoning of 10 Doctors Senegor and Segal supporting surgery is lengthy and detailed, including a review of 11 symptoms and specific MRI findings. In contrast, the reasoning provided by Defendants to 12 deny surgery consists solely of the note: “Denied surgery at this time because new MRI shows 13 improvement. Will try conservative therapy and reevaluate in 6 months.” Even in opposition 14 to summary judgment, Defendants’ reasoning for their decision is sparse. Each of the relevant 15 defendants’ declarations state the same reasons using exactly the same words: “While Plaintiff 16 reported pain, spinal surgery is not clinically indicated for pain only. Spinal surgery carries 17 great risk and can leave the patient with increased symptoms. And in Plaintiff’s case, he was 18 showing improvement from nonsurgical care.” There is no analysis of symptoms, of what risks 19 were being considered, of the MRI, or of the benefits of other treatment. 20 Defendants argue that, despite this evidence, summary judgment is appropriate because 21 the stated reasons for denying the surgery were adequate. However, it is undisputed that the 22 area suggested for surgery, L4-L5, had not improved.4 Moreover, the neurosurgeon, as well as 23 the Nurse Practitioner and KVSP medical team, had access to this same information and 24 25 4 . It is also worth noting that the “improvement” of the other area relied upon by the Committee was far from complete. According to the MRI dated March 10, 2016, the L3-4 that Defendants refer to as 26 improved still showed degeneration. (ECF No. 45-4, at p. 27) (“L3-4: Desiccation of the intervertebral disc is present with loss of height and a mild broad-based disc protrusion. Hypertrophic degenerative changes of the facet 27 joints and thickening of ligamentum flavum are seen. These findings result in moderate central canal and mild bilateral neural foraminal narrowing;” and “Moderate central canal narrowing is seen at L3-4 and L4-5.”). Given 28 the continued degeneration of even the L3-4, improvement in L3-4 does not necessarily mean that L4-5 will 1 nevertheless recommended surgery. Furthermore, Plaintiff has submitted evidence that he still 2 suffers from severe symptoms, so whatever improvement was indicated elsewhere on the MRI 3 has not alleviated his medical need. 4 Regarding the reason of “will try conservative therapy and reevaluate in 6 months,” this 5 too is subject to challenge given the opinions of the neurosurgeons and other medical 6 professionals. Additionally, this reason is called into question by what actually took place after 7 the denial of surgery. On July 12, 2017, almost seven months after the MAR committee denied 8 the referral for surgery, FNP Pallomina submitted another request for the surgery, explaining 9 “Seen by Dr. Segel (Neurosurgeon) Oct. 28, 2016—recommended microsurgical laminotomy 10 at L4-L5 on the Right. Was previously seen by Dr. Ramburg while in Salinas Valley state 11 prison which also recommended surgical procedure. On evaluation inmate verbalizes tingling 12 sensation with numbness on the Right Foot—uses cane for mobility and have been on chronic 13 pain medication (MS Contin). Have been sent multiple times with Physical therapy have not 14 helped.” (ECF No. 46, at p. 18) (emphasis added). However, despite the fact that conservative 15 therapy had not improved Plaintiff’s medical condition, the MAR Committee, specifically 16 including defendants Patel, Sao, Ulit, and Spaeth, again denied the surgery, stating “no new 17 objective physical findings to support surgery. Will do another physical therapy referral. 18 Taper off Morphine per MAR Committee.” (ECF No. 46, at p. 18). A reasonable jury could 19 find that Defendants’ later denial of surgery despite a lack of improvement after 6 months 20 indicates that their stated reason to deny surgery was a pretext rather than a good-faith medical 21 assessment. Instead, drawing all inferences in Plaintiff’s favor, the evidence suggests that even 22 after conservative treatment failed, Defendants Patel, Sao, Ulit, and Spaeth still denied surgery, 23 and indeed decided to discontinue pain medication as well. 24 In Defendants’ reply, they argue that this information is not relevant because it came 25 after the initial decision at issue here. The Court disagrees. In evaluating whether Defendants 26 Patel, Sao, Ulit, or Spaeth acted with deliberate indifference in denying surgery on the basis of 27 “will try conservative therapy and reevaluate in 6 months,” it is relevant whether they 28 reevaluated that decision after conservative therapy failed. Here, Plaintiff tried conservative 1 treatment, another medical professional then requested surgery, and these defendants again 2 denied the request for surgery. 3 The most salient fact that gives the Court pause in this recommendation is the fact that 4 another specialist, Dr. Williams, evaluated Plaintiff via telemedicine and did not recommend 5 surgery at that time. It is not clear from the record whether Dr. Williams’ opinion was ever 6 provided to Defendants. Defendants’ declarations in this case do not cite Dr. Williams’ opinion 7 as a reason to deny Plaintiff surgery. Moreover, other specialists recommended surgery, 8 including after Dr. Williams formed his opinion. Additionally, Defendants did not even 9 provide Plaintiff the nonsurgical treatments recommended by Dr. Williams. (ECF No. 45-4, at 10 p. 19) (“In regards to surgery, guidance was provided that nonsurgical options are 11 recommended as they have fewer risks compared to surgery. Specifically, the patient may be 12 considered for a TENS Unit for myofascial pain relief of the back pain. Medication 13 management may also be considered. More risky than medications include procedural 14 considerations such as lumbar epidural steroid injections.”). Nevertheless, a reasonable jury 15 could find that this evidence demonstrates that Plaintiff did not have a serious medical need for 16 surgery and Defendants’ refusal to allow surgery was not deliberately indifferent. 17 The Court finds that although Dr. Williams’ recommendation is evidence that supports 18 Defendants’ position, it is far from undisputed evidence warranting summary judgment in 19 Defendants’ favor. 20 Finally, as to Defendants’ argument that Defendants Patel, Sao, Ulit, and Spaeth are 21 entitled to summary judgment on the issue of qualified immunity, the Court finds that, based on 22 the evidence presented, they are not. 23 “The doctrine of qualified immunity protects government officials ‘from liability for 24 civil damages insofar as their conduct does not violate clearly established statutory or 25 constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 26 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In 27 determining whether a defendant is entitled to qualified immunity, the Court must decide (1) 28 whether the facts shown by Plaintiff make out a violation of a constitutional right; and (2) 1 whether that right was clearly established at the time of the officer's alleged misconduct. 2 Pearson, 555 U.S. at 232. To be clearly established, a right must be sufficiently clear “that 3 every ‘reasonable official would [have understood] that what he is doing violates that right.’” 4 Reichle v. Howards, 132 S. Ct. 2088, 2090 (2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 5 741 (2011)) (alteration in original). This immunity protects “all but the plainly incompetent or 6 those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). 7 The Court finds that the right in question here was clearly established prior to the 8 incidents alleged in the complaint. It has long been established that, when deciding between 9 alternative courses of treatment, a medical professional violates the Eighth Amendment if that 10 professional, in conscious disregard of a serious medical need, chooses a course of treatment 11 that is medically unacceptable under the circumstances. Jackson, 90 F.3d at 332. And, as 12 discussed in detail above, Plaintiff has submitted evidence that, in conscious disregard to 13 Plaintiff’s serious medical need, Defendants Patel, Sao, Ulit, and Spaeth chose a course of 14 treatment that was medically unacceptable under the circumstances. Thus, Defendants Patel, 15 Sao, Ulit, and Spaeth are not entitled to summary judgment on the issue of qualified immunity. 16 V. RECOMMENDATIONS 17 Based on the foregoing, the undersigned HEREBY RECOMMENDS that: 18 1. Defendants’ motion for summary judgment (ECF No. 45) be GRANTED 19 as to Defendants Lopez, Ogbuehi, and Relevante; and 20 2. Defendants’ motion for summary judgment (ECF No. 45) be DENIED as 21 to Defendants Patel, Sao, Ulit and Spaeth. 22 These findings and recommendations are submitted to the United States district judge 23 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty- 24 one (21) days after being served with these findings and recommendations, any party may file 25 written objections with the court. Such a document should be captioned “Objections to 26 Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be 27 served and filed within seven (7) days after service of the objections. The parties are advised 28 that failure to file objections within the specified time may result in the waiver of rights on WAG 4.40°U VOYUYUOVOUNYINE PSY MVOC Vt PNR VeIVvOorevy Fay ev vicv 1 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. 2 || Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. Dated: _ May 8, 2020 [sf ey — 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20