(PC) Murray v. Aung ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY MURRAY, No. 2:19-cv-2114 DAD AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS & RECOMMENDATIONS 14 WARDEN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Currently before the court is defendant’s motion for summary judgment. ECF 19 No. 45. 20 I. Procedural History 21 This case proceeds on plaintiff’s first amended complaint. ECF No. 12. Upon screening, 22 the court found that plaintiff had stated claims for relief against defendant Aung. ECF No. 15. 23 After the close of discovery, defendant filed a motion for summary judgment (ECF No. 45), 24 which plaintiff opposes (ECF No. 54). 25 II. Plaintiff’s Allegations 26 The first amended complaint alleges that defendant Aung violated plaintiff’s rights under 27 the Eighth Amendment. ECF No. 12. Specifically, plaintiff alleges that he suffers from 28 inoperable brain cancer that causes excruciating headaches and that Aung is his primary care 1 physician. Id. at 1. Plaintiff has made numerous complaints to Aung regarding the pain he is 2 experiencing, but she has not taken any action to treat plaintiff’s excruciating and increasing pain. 3 Id. at 1-2. In the absence of treatment from Aung, plaintiff has attempted to self-treat with over- 4 the-counter ibuprofen and is now suffering from gastrointestinal bleeding. Id. at 2. 5 III. Motion for Summary Judgment 6 A. Defendants’ Arguments 7 Defendant argues that she is entitled to summary judgment on the ground that she was not 8 deliberately indifferent to plaintiff’s serious medical need because he did not have brain cancer 9 and she provided treatment for his chronic headaches. ECF No. 45. 10 B. Plaintiff’s Response 11 At the outset, the court notes that plaintiff has failed to comply with Federal Rule of Civil 12 Procedure 56(c)(1)(A), which requires that “[a] party asserting that a fact . . . is genuinely 13 disputed must support the assertion by . . . citing to particular parts of materials in the record.” 14 Plaintiff has also failed to file a separate document in response to defendants’ statement of 15 undisputed facts that identifies which facts are admitted and which are disputed, as required by 16 Local Rule 260(b). 17 “Pro se litigants must follow the same rules of procedure that govern other litigants.” 18 King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citation omitted), overruled on other grounds, 19 Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). However, it is well- 20 established that district courts are to “construe liberally motion papers and pleadings filed by pro 21 se inmates and should avoid applying summary judgment rules strictly.” Thomas v. Ponder, 611 22 F.3d 1144, 1150 (9th Cir. 2010). The unrepresented prisoner’s choice to proceed without counsel 23 “is less than voluntary” and they are subject to “the handicaps . . . detention necessarily imposes 24 upon a litigant,” such as “limited access to legal materials” as well as “sources of proof.” 25 Jacobsen v. Filler, 790 F.2d 1362, 1364 n.4 (9th Cir. 1986) (alteration in original) (citations and 26 internal quotation marks omitted). Inmate litigants, therefore, should not be held to a standard of 27 “strict literalness” with respect to the requirements of the summary judgment rule. Id. (citation 28 omitted). 1 Accordingly, the court considers the record before it in its entirety despite plaintiff’s 2 failure to be in strict compliance with the applicable rules. However, only those assertions in the 3 opposition which have evidentiary support in the record will be considered. 4 After plaintiff failed to respond to defendant’s motion for summary judgment, he was 5 given additional time to do so. ECF No. 53. In response to the order granting the extension, 6 plaintiff filed a document captioned “‘Summary Judgment’ Request Subpoena ‘Video’ Pleading 7 Courts Order for Treatment and ‘Resolution,’” in which he opposes defendant’s motion for 8 summary judgment and states that he did not realize he had sixty days to file for summary 9 judgment. ECF No. 54. To the extent the document is intended to be a cross-motion for 10 summary judgment it should be denied because it is untimely and fails to comply with the 11 requirements of Federal Rule of Civil Procedure 56 and Local Rule 260, which require citation to 12 specific materials on the record and a separate statement of facts. In opposition to defendant’s 13 motion, plaintiff asserts that defendant was deliberately indifferent to his medical needs and 14 falsified medical records. Id. at 3-6. 15 C. Legal Standards for Summary Judgment 16 Summary judgment is appropriate when the moving party “shows that there is no genuine 17 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 18 Civ. P. 56(a). Under summary judgment practice, “[t]he moving party initially bears the burden 19 of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 20 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The 21 moving party may accomplish this by “citing to particular parts of materials in the record, 22 including depositions, documents, electronically stored information, affidavits or declarations, 23 stipulations (including those made for purposes of the motion only), admissions, interrogatory 24 answers, or other materials” or by showing that such materials “do not establish the absence or 25 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 26 support the fact.” Fed. R. Civ. P. 56(c)(1). 27 “Where the non-moving party bears the burden of proof at trial, the moving party need 28 only prove that there is an absence of evidence to support the non-moving party’s case.” Oracle 1 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 2 Indeed, summary judgment should be entered, “after adequate time for discovery and upon 3 motion, against a party who fails to make a showing sufficient to establish the existence of an 4 element essential to that party’s case, and on which that party will bear the burden of proof at 5 trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element 6 of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. In such 7 a circumstance, summary judgment should “be granted so long as whatever is before the district 8 court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 9 56(c), is satisfied.” Id. 10 If the moving party meets its initial responsibility, the burden then shifts to the opposing 11 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 12 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the 13 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 14 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 15 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 16 Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a 17 fact “that might affect the outcome of the suit under the governing law,” and that the dispute is 18 genuine, i.e., “the evidence is such that a reasonable jury could return a verdict for the nonmoving 19 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 20 In the endeavor to establish the existence of a factual dispute, the opposing party need not 21 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 22 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 23 trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) 24 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). Thus, the 25 “purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see 26 whether there is a genuine need for trial.” Matsushita, 475 U.S. at 587 (citation and internal 27 quotation marks omitted). 28 //// 1 “In evaluating the evidence to determine whether there is a genuine issue of fact, [the 2 court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls 3 v. Cent. Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is the 4 opposing party’s obligation to produce a factual predicate from which the inference may be 5 drawn. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to 6 demonstrate a genuine issue, the opposing party “must do more than simply show that there is 7 some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations 8 omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the 9 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank, 391 10 U.S. at 289). 11 Defendants simultaneously served plaintiff with notice of the requirements for opposing a 12 motion pursuant to Rule 56 of the Federal Rules of Civil Procedure along with their motion for 13 summary judgment. ECF No. 45-5; see Klingele v. Eikenberry, 849 F.2d 409, 411 (9th Cir. 14 1988) (pro se prisoners must be provided with notice of the requirements for summary judgment); 15 Rand v. Rowland, 154 F.3d 952, 960 (9th Cir. 1998) (en banc) (movant may provide notice). 16 D. Legal Standard for Deliberate Indifference to a Serious Medical Need 17 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 18 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 19 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires plaintiff 20 to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a prisoner’s condition 21 could result in further significant injury or the unnecessary and wanton infliction of pain,’” and 22 (2) “the defendant’s response to the need was deliberately indifferent.” Id. (some internal 23 quotation marks omitted) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)). 24 Deliberate indifference is a very strict standard. It is “more than mere negligence.” 25 Farmer v. Brennan, 511 U.S. 825, 835 (1994). Even civil recklessness—failure “to act in the face 26 of an unjustifiably high risk of harm that is either known or so obvious that it should be 27 known”—is insufficient to establish an Eighth Amendment claim. Id. at 836-37 (citation 28 omitted). A prison official will be found liable under the Eighth Amendment when “the official 1 knows of and disregards an excessive risk to inmate health or safety; the official must both be 2 aware of facts from which the inference could be drawn that a substantial risk of serious harm 3 exists, and he must also draw the inference.” Id. at 837. A plaintiff can establish deliberate 4 indifference “by showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible 5 medical need and (b) harm caused by the indifference.” Jett, 439 F.3d at 1096 (citing McGuckin, 6 974 F.2d at 1060). 7 A difference of opinion between an inmate and prison medical personnel—or between 8 medical professionals—regarding the appropriate course of treatment does not by itself amount to 9 deliberate indifference to serious medical needs. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th 10 Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). To establish that a difference of 11 opinion rises to the level of deliberate indifference, plaintiff “must show that the course of 12 treatment the doctors chose was medically unacceptable under the circumstances.” Jackson v. 13 McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (citation omitted). 14 E. Evidentiary Issues 15 Defendant has produced a limited number of plaintiff’s medical records in support of her 16 motion for summary judgment, none of which have been authenticated. ECF No. 45-3 at 37-54, 17 63. Plaintiff has also produced unauthenticated portions of his medical records in support of 18 various motions on the docket and with his opposition to the motion for summary judgment. See 19 ECF No. 1, 13, 20, 25, 42, 44, 54. However, “[a]t the summary judgment stage, [the court does] 20 not focus on the admissibility of the evidence’s form. [It] instead focus[es] on the admissibility 21 of its contents.” Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (citations omitted). In 22 other words, the court can consider the evidence if its contents could be presented in an 23 admissible form at trial. Fraser, 342 F.3d at 1037. Since plaintiff’s medical records could be 24 made admissible at trial with proper authentication, the court will consider the records before it to 25 the extent their authenticity and accuracy has not been challenged. 26 With respect to defendant’s declaration, the court will consider only those portions of the 27 declaration that are based upon defendant’s personal knowledge and will not consider portions 28 that address treatment by other physicians unless corresponding medical records have been 1 produced on the record. Grievance responses summarizing plaintiff’s medical records (see ECF 2 No. 45-3 at 23-25) are not sufficient to establish the medical treatment plaintiff received. 3 F. Undisputed Material Facts 4 Plaintiff did not separately respond to Defendant’s Statement of Undisputed Facts 5 (DSUF), and the facts are therefore deemed undisputed except as otherwise discussed. Additional 6 facts have been taken from plaintiff’s medical records as appropriate. 7 At all times relevant to the complaint, plaintiff was an inmate at Mule Creek State Prison 8 (MCSP). DSUF (ECF No. 45-4) ¶ 1. At all relevant times, defendant was a physician and 9 surgeon employed at MCSP. Aung Decl. (ECF No. 45-2) ¶ 2. 10 In 2010,1 plaintiff was diagnosed with a cranial meningioma (brain tumor). DSUF ¶ 3. 11 Plaintiff does not and has not ever had cancer. DSUF ¶¶ 4-5. The records indicate that in 2011, 12 plaintiff saw Dr. Patel, to whom he reported that he was managing his pain by taking Vicodin 13 four to five times a day. ECF No. 20 at 13. Dr. Patel advised plaintiff that the treatment of 14 choice would be surgical removal, but plaintiff was hesitant to consent to surgery. Id.; ECF No. 15 25 at 26. 16 On January 3, 2017, plaintiff was seen by Dr. McDermott, a neurosurgeon, who noted that 17 “surgery would not guarantee complete relief of his headache syndrome.” ECF No. 25 at 20. Dr. 18 McDermott noted that his “approach would be that if nonnarcotic options have been exhausted 19 and the patient has subjective complaints of pain and [sic] some form of narcotic medication 20 should be used either on a regular basis or for breakthrough pain.” Id. He further noted that “if 21 nonnarcotic medications are not controlling [plaintiff’s] pain that narcotic medications may be a 22 temporary solution” and that he advised plaintiff that “chronic narcotic medications for pain 23 management alone never leads anything [sic] good.” Id. Dr. McDermott’s recommendations 24 were surgical treatment and “[n]on-narcotic and narcotic analgesia as required for pain control.” 25 Id. 26 27 1 Although DSUF ¶ 3 states that plaintiff was diagnosed in 2011, this appears to be a typographical error as the records cited and plaintiff’s opposition all state that the diagnosis 28 occurred in 2010. ECF No. 45-3 at 37; ECF No. 54 at 2. 1 On August 7, 2017, Dr. saw plaintiff for his chronic headaches and noted that plaintiff 2 reported taking morphine IR 15mg three times a day. ECF No. 45-3. Dr. Reda noted that 3 plaintiff stated he was not interested in surgery for his tumor because “he was told he would be 4 left with significant deficits” and that he was adjusting plaintiff’s medication to extended-release 5 morphine twice a day. Id. 6 In July 2018, defendant Aung was assigned as plaintiff’s primary care physician. DSUF ¶ 7 17. At the time, plaintiff’s morphine prescription had already been discontinued and he was 8 prescribed one tablet of Tylenol 3 per day. DSUF ¶¶ 16, 18. Due to plaintiff’s apparent 9 withdrawal symptoms from being tapered off of morphine and eventually Tylenol 3, defendant 10 increased plaintiff’s Tylenol 3 regimen to one table twice per day. DSUF ¶ 19. At the time 11 defendant was providing treatment for plaintiff, prescribing morphine for his condition was 12 prohibited. DSUF ¶ 20; Aung Decl. ¶ 15. 13 On August 6, 2018, plaintiff was seen by Dr. Senegor, who noted that plaintiff’s 14 “headaches were under control until recently with pain medication. The [sic] presently out of 15 control because of the pain medication is [sic] been discontinued.” ECF No. 1 at 5. He further 16 noted Dr. McDermott’s opinion that surgery was not necessarily needed if plaintiff’s pain was 17 under control and that plaintiff “is not terribly interested in surgery if his pain is under control.” 18 Id. Dr. Senegor assessed that if plaintiff’s “pain management is reinstituted and headaches, under 19 control, presently there would be no need for any surgery. If headaches remain out of control 20 surgery becomes a consideration.” Id. 21 On January 30, 2019, plaintiff was seen by a neurosurgery clinic for his meningioma. 22 ECF No. 25 at 21. They noted that plaintiff had been weaned off narcotics a few months prior 23 and that “his current pain regimen includes tylenol #3 BID and ibuprofen ATC (approx. 4g/day 24 per pt). Id. The records further note that plaintiff’s headaches were 25 uncontrolled on current pain regimen, and it should be changed to his previously working regiment. Surgery is an option for this patient 26 but would be risky, it is reasonable to not have the surgery at this time and instead optimize pain control. He should also have 27 neurology follow up to determine if there is another source for these 28 //// 1 H/As. Pt should follow up in NSGY clinic here with Dr. Riordan in 3 months . . . . 2 3 Id. 4 On May 24, 2019, plaintiff was seen at the neurosurgery clinic by Dr. Riordan, who 5 explained that his headaches were not likely related to the tumor and recommended a referral to 6 neurology to discuss headache management, with a follow-up in ten months. Id. at 22. Dr. 7 Riordan further noted that she “would nto [sic] recommend treating chronic headaches with 8 narcotics.” Id. Following Dr. Riordan’s recommendations, defendant continued plaintiff on his 9 current medication regimen, which excluded morphine. DSUF ¶ 22. 10 On June 3, 2019, plaintiff was seen by defendant. ECF No. 45-3 at 53. The record 11 indicates that she reviewed records from plaintiff’s appointments with Dr. McDermott, Dr. 12 Senegor, and Dr. Riordan, and noted that plaintiff’s headaches had been controlled since 13 increasing the dose of Tylenol 3. Id. The records note that plaintiff was prescribed two Tylenol 3 14 three times a day and 400 mg of ibuprofen twice a day as needed, and that “[p]revious provider 15 discussed about this case in pain management committee in 2018, decided not for narcotics for 16 headache.” Id. 17 On August 28, 2019, plaintiff was seen by Dr. Park, a neurologist. Id. at 49. The records 18 indicate that plaintiff was taking two Tylenol 3 tablets three times a day and 800 mg of ibuprofen 19 twice a day. Id. Dr. Park noted that plaintiff’s headaches were likely not due to his meningioma, 20 but that it could not be entirely ruled out as the cause. Id. at 50. Dr. Park further noted that she 21 strongly recommended preventative therapy “given frequent headaches and extensive use of daily 22 analgesics.” Id. She “discussed antidepressant class of medications, antihypertensive class of 23 medications, antiepileptic class of medications that have shown to be effective in headache 24 prevention” and explained that the goal was “to lower the overall severity and frequency of his 25 headaches with goal of slowly reducing the use of daily analgesics.” Id. at 50-51. She noted that 26 plaintiff “perseverated on not changing his current regimen of Tylenol #3, and subsequently 27 stated perseverate on being treated with narcotics which he believes was recommended by one of 28 the neurosurgeons he previously saw.” Id. at 51. Dr. Park explained that opiates were “not an 1 appropriate first-line agent for his chronic daily headaches and shared [her] concerns about the 2 long-term risks.” Id. In the event plaintiff became interested in preventative therapy, she 3 recommended several medications and that Botox therapy, which was brought up by plaintiff, 4 could be an option if two or more of the preventative medications failed. Id. 5 In September 2019, plaintiff was once again referred to the pain management committee, 6 who recommended that plaintiff’s Tylenol 3 be discontinued and recommended alternative, non- 7 narcotic medication, such as nortriptyline and verapamil, which are both used to treat migraines 8 and cluster headaches. Aung Decl. ¶ 19; DSUF ¶ 23. On September 5, 2019, defendant advised 9 plaintiff of the committee’s recommendation and plaintiff refused to take the non-narcotic 10 medication recommended. Aung Decl. ¶ 20; DSUF ¶ 24. As a result, defendant reduced 11 plaintiff’s Tylenol 3 regimen to one tablet, three times per day and prescribed Cymbalta, an anti- 12 depressant that is also recommended to treat chronic pain, and sixty ibuprofen per month. Id. 13 Defendant informed plaintiff that taking more than the prescribed amount of ibuprofen could lead 14 to gastrointestinal issues. DSUF ¶ 26. Plaintiff took ibuprofen in amounts significantly 15 exceeding the prescribed amount. DSUF ¶ 27. 16 On March 6, 2020, defendant was contacted by a social worker requesting that she follow 17 up with plaintiff regarding a referral to the MAT program. ECF No. 25 at 31. Defendant 18 responded two days later that the request was noted. Id. On June 3, 2020, plaintiff was seen by 19 Dr. Ashe for an initial consultation for the MAT program. Id. at 30. Dr. Ashe noted Dr. 20 McDermott’s report, that plaintiff had “a history of chronic opioid use due to chronic headaches,” 21 and that plaintiff had most recently been treated with Tylenol 3. Id. The records reflect that 22 plaintiff was prescribed two Tylenol 3 three times a day. Id. 23 The records indicate that on September 24, 2020, plaintiff was seen by Dr. Rahimifar for a 24 telephonic consultation and noted that “the latest neurosurgical opinion was that this is a high risk 25 surgery” and that plaintiff’s meningioma would need to be watched very closely if he did not 26 want to accept the risks and complications of surgery. ECF No. 13 at 3. Plaintiff asserts that this 27 record has been falsified because his consultation was cancelled and he was sent back to his cell 28 without going to the appointment. ECF No. 54 at 6; ECF No. 57 at 2. 1 On October 19, 2020, plaintiff was seen by at a neurosurgery clinic,2 and it was noted that 2 he reported that “his current pain regimen of Tylenol #3, 6 times a day is not giving him any 3 significant relief” and recommended a follow-up with neurology for management of his chronic 4 headaches and a referral to pain management. ECF No. 25 at 23. He was to return in March 5 2021. Id. 6 On March 22, 2021, plaintiff was seen for a follow-up at the neurosurgery clinic with Dr. 7 Riordan who noted that he was “minimally verbal” and would “not answer questions about his 8 chronic headaches, only states that due to ‘our recommendations’ he is not on pain medications.” 9 Id. at 24. Dr. Riordan explained that they did not make recommendations about headache 10 management and noted that plaintiff “refuses to answer any further questions, only asks about 11 embolization.” Id. The records note that plaintiff was taking Tylenol 3 “2 tablets by mouth every 12 4 (four) hours if needed for moderate pain. 2 tablets TID.” Id. 13 On April 21, 2021, plaintiff was seen by Dr. Bai regarding his chronic, severe headaches. 14 ECF No. 42 at 5. The records reflect that plaintiff reported his meningioma was discovered in 15 2010 and “has been treated conservatively with medication.” Id. Plaintiff also reported that he 16 was previously given opioid medication for his headaches but that had stopped, that his headaches 17 were uncontrolled, and that a neurologist he saw in 2018 recommended Botox injection and 18 amitriptyline, but that “he did not want to take amitriptyline or other psyche [sic] medications.” 19 Id. Dr. Bai noted that plaintiff “has severe headache and wanted to have control and especially he 20 wanted to the [sic] opioid medication control the headache.” Id. at 6. Dr. Bai recommended that 21 plaintiff be seen by a university medical center headache clinic due to the complexity of his case, 22 and because plaintiff had a severe headache, plaintiff was offered an occipital nerve block to see 23 if that would relieve the headache temporarily. Id. Plaintiff accepted the occipital nerve block 24 and the procedure was completed at the appointment. Id. 25 On May 18, 2021, plaintiff was seen by Dr. Ashe for a follow-up on his headaches. The 26 records state that plaintiff “was started on venlafaxine at last appt. He has continued on an 27 2 The notes are signed by both a physician’s assistant and Dr. Riordan (ECF No. 25 at 23), 28 though plaintiff asserts that he was seen only by the physician’s assistant (ECF No. 13 at 5). 1 evening dose of valproic acid only per patient request” and that he was “tolerating the addition of 2 the venlafaxine however the valproic acid continues to make him feel tired.” ECF No. 44 at 11. 3 Plaintiff also reported that he had “not noticed any significant changes in his headaches and has 4 found that the occipital injections were the most helpful but the effects are gradually starting to 5 wear off.” Id. The record also reflects that plaintiff was seen by neurology on May 14, 2021, and 6 that the neurologist “noted that he ‘agree with Dr. Parks (Neurology) 8/19 report” and that there 7 were no new recommendations of follow up recommendations provided. Id. Dr. Ashe also noted 8 that plaintiff “has been referred back to Neurosurgery, initially requesting Dr. McDermott, his 9 previous provider, at UCSF. The provider is no longer available but UCSF has agree to see IP 10 Murray” and that, as requested, an MRI had been ordered prior to the appointment being 11 scheduled. Id. 12 On July 28, 2021, plaintiff was seen by Dr. Bai, who noted that plaintiff was requesting a 13 repeat occipital nerve block because it “helped a significant amount.” Id. at 15. Plaintiff also 14 reported that “he does not want opioid medication for his headaches” and Dr. Bai repeated the 15 recommendations that plaintiff be referred to a headache clinic.” Id. at 16. Dr. Bai performed an 16 occipital nerve block at the appointment. Id. 17 After October 2021, defendant was no longer plaintiff’s primary care physician. Aung 18 Decl. ¶ 3. 19 Due to plaintiff’s ongoing complaints of pain, he was enrolled in MCSP’s Chronic Care 20 Program where his medical conditions and medication needs were closely monitored by a team of 21 physicians, both inside and outside of the California Department of Corrections and 22 Rehabilitation (CDCR). DSUF ¶ 10. With respect to complaints of pain and long-term pain 23 management, MCSP has an onsite Pain Management Committee made up of a group of 24 physicians, including the Chief Physician and Surgeon at MCSP, that confers regarding best 25 treatment and makes all decisions regarding a particular course of treatment. DSUF ¶ 11. 26 The CDCR has strict rules regarding prescribing opioids and narcotics, such as morphine, 27 and mandates that morphine only be prescribed for acute, short-term injuries, or palliative care, 28 such as cancer-related pains or hospice care. DSUF ¶ 12. Morphine is prohibited to treat chronic, 1 non-cancer maladies. Id. These rules were adopted by the CDCR to mirror guidance issued by 2 the United States Center for Disease Control and Preventions for Prescribing Opioids for Chronic 3 Pain. DSUF ¶ 13. Due to the highly addictive nature of opioids, long-term health risks, and 4 minimal rehabilitative impact, opioid therapy is disfavored to treat chronic, long-term conditions 5 unless and until that condition becomes terminal. DSUF ¶ 14. The known side effects of long- 6 term morphine use include heart failure, respiratory problems, and depression. Id. 7 G. Discussion 8 In his opposition, plaintiff argues that when his morphine regimen was discontinued at 9 Valley State Prison in 2016, it was reinstated on the recommendation of Dr. McDermott. ECF 10 No. 54 at 2. However, shortly after he was transferred to MCSP, his morphine regimen was 11 discontinued again without a replacement and when he submitted a grievance in spring of 2018, 12 he requested reinstatement of his morphine prescription “‘until’ the issue be coordinated by a pain 13 specialist.” Id. He asserts that “[s]ince the starting grievance 2018, plaintiff has been left to 14 suffer without adequate pain treatments to the point of gastrointestinal bleeding, from excessive 15 use of NSAIDS.” Id. at 2-3. He further argues that “[d]efendants have displayed blatant abuse of 16 ‘Hippocratic oath’ as well as ‘falsified medical records,’” that healthcare providers “disregard the 17 treatment plans and recommendations from [off-site] specialists,” and that he has been “labeled 18 an opioid/narcotic seeker.” Id. at 3-4. 19 It is undisputed that plaintiff suffered from chronic, severe headaches and that he was, at 20 one time, prescribed morphine to control the pain. It is also undisputed that plaintiff’s 21 prescription for morphine was discontinued prior to defendant taking over as plaintiff’s primary 22 care physician. Though plaintiff appears to argue that defendant should have temporarily 23 reinstated his morphine prescription, he provides no evidence that she was authorized to do so. 24 Defendant, on the other hand, produced evidence that she was not permitted to prescribe 25 morphine because plaintiff’s meningioma, which may or may not be the cause of the headaches, 26 is not cancerous and the Pain Management Committee determined that narcotic pain medication 27 was not appropriate for plaintiff’s headaches. 28 //// 1 Plaintiff appears to argue that the treatment he received once his morphine was 2 discontinued was clearly deficient because his only option was to self-medicate with excessive 3 ibuprofen despite the potential side effects. ECF No. 54 at 2-3. However, despite defendant’s 4 inability to prescribe morphine, the record establishes that during the time defendant was 5 plaintiff’s primary care physician, plaintiff was seen by various doctors, including specialists; his 6 pain medications were adjusted; he was offered and refused to try psych medications as an 7 alternative pain management option; and he was offered and refused to try medications aimed at 8 headache prevention. While plaintiff is certainly free to refuse specific medications or types of 9 medication, he does not have a right to dictate what medications he will be prescribed, and he 10 cannot claim that he was left no other option but to self-medicate when he declined to try other 11 viable alternatives offered. See Stiltner v. Rhay, 371 F.2d 420, 421 n.3 (9th Cir. 1967) 12 (“[P]laintiff’s allegations show only that he has not been receiving the kind and quality of medical 13 treatment he believes is indicated. Like the Seventh Circuit, ‘we know of no authority standing 14 for the proposition that such a claim as plaintiff attempts to assert here is cognizable under the 15 Federal Civil Rights Act.’” (quoting United States ex rel. Lawrence v. Ragen, 323 F.2d 410, 412 16 (7th Cir. 1963))). 17 To the extent plaintiff argues that his medical records have been falsified (ECF No. 54 at 18 3-4), the medical records relied on by the court were provided almost entirely by plaintiff in 19 support of various motions, and he identifies only the September 24, 2020 telemedicine consult as 20 fabricated (id. at 6). To the extent plaintiff disagrees with a doctor’s recommendations or 21 believes it contradicts another doctor’s recommendations (id. at 5-6), a difference of opinion 22 between an inmate and prison medical personnel—or between medical professionals—regarding 23 the appropriate course of treatment does not by itself amount to deliberate indifference to serious 24 medical needs, Toguchi, 391 F.3d at 1058; Sanchez, 891 F.2d at 242. 25 Ultimately, although there are gaps in the evidentiary record regarding plaintiff’s care, he 26 fails to identify any specific instances during those times where he requested treatment from 27 defendant and was denied or ignored, and he has not produced any evidence showing that 28 defendant failed to provide him with treatment for his chronic headaches. Instead, plaintiff makes 1 only general assertions that “defendants”3 have failed to provide him with adequate treatment, 2 which is not sufficient to overcome defendant’s motion for summary judgment. See F.T.C. v. 3 Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997) (“A conclusory, self-serving 4 affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine 5 issue of material fact.” (citations omitted)). 6 H. Conclusion 7 As set forth above, the undisputed evidence demonstrates that defendant was not 8 deliberately indifferent to plaintiff’s serious medical need and defendant’s motion for summary 9 judgment should be granted. 10 IV. Motions for Appointment of Counsel 11 Plaintiff has requested the appointment of counsel. ECF No. 60, 61. The United States 12 Supreme Court has ruled that district courts lack authority to require counsel to represent indigent 13 prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In 14 certain exceptional circumstances, the district court may request the voluntary assistance of 15 counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 16 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 17 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 18 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 19 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 20 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 21 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 22 most prisoners, such as lack of legal education and limited law library access, do not establish 23 exceptional circumstances that would warrant a request for voluntary assistance of counsel. 24 In light of the recommendation that defendant’s motion for summary judgment be granted, 25 plaintiff’s motions for counsel will be denied because he is unable to demonstrate a likelihood of 26 success on the merits. 27 28 3 Defendant Aung is the only defendant in this case. 1 V. Plain Language Summary of this Order for a Pro Se Litigant 2 The undisputed evidence shows that Dr. Aung provided you with treatment for your 3 || headaches during the time that she was responsible for your care. The fact that the treatment was 4 | not as effective as your previous pain regimen does not mean that she violated your constitutional 5 || rights. Dr. Aung was not allowed to prescribe morphine for your condition, so her failure to do so 6 || wasn’t deliberately indifferent. 7 CONCLUSION 8 Accordingly, IT IS HEREBY ORDERED that plaintiffs motions for appointment of 9 || counsel (ECF No. 60, 61) are DENIED. 10 IT IS FURTHER RECOMMENDED that: 11 1. Plaintiff's motion for summary judgment (ECF No. 54) be DENIED; 12 2. Defendant’s motion for summary judgment (ECF No. 45) be GRANTED; 13 3. Judgment be entered for defendant; and 14 4. The Clerk of the Court be directed to close this case. 15 These findings and recommendations are submitted to the United States District Judge 16 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).. Within twenty-one days 17 || after being served with these findings and recommendations, any party may file written 18 || objections with the court and serve a copy on all parties. Such a document should be captioned 19 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 20 || objections shall be served and filed within fourteen days after service of the objections. The 21 || parties are advised that failure to file objections within the specified time may waive the right to 22 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 23 || DATED: October 3, 2022 ~ 24 LMn 2 ALLISON CLAIRE 25 UNITED STATES MAGISTRATE JUDGE 26 27 28 16