Silverman v. Ivers ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JACOB SILVERMAN, 11 Case No. 17-03700 BLF (PR) Plaintiff, 12 ORDER GRANTING MOTION v. FOR SUMMARY JUDGMENT 13 14 IVER LIEN, et al., 15 Defendants. Docket. No. 86 16 17 18 Plaintiff, a pretrial detainee, filed a pro se civil rights complaint under 42 U.S.C. § 19 1983, against prison officials at the Humboldt County Correctional Facility (“HCCF”). 20 The Court found the second amended complaint, (Docket No. 12, hereinafter “SAC”), 21 stated a cognizable claim for deliberate indifference to serious medical needs under the 22 Fourteenth Amendment and directed Defendants to file a summary judgment motion based 23 thereon. (Docket No. 83.) Defendants Iver Lien, F.N.P., Dr. Michael Burleson, and April 24 Barnhart, R.N., filed a motion for summary judgment on the grounds that they did not act 25 with deliberate indifference to serious medical needs.1 (Docket No. 86, hereinafter 26 27 1 The Court dismissed Defendants Dean Flint and Duane Christian from this action after Plaintiff’s proposed amendment failed to state a claim against them. (Docket No. 101.) 1 “Mot.”2) Plaintiff filed an opposition, (Docket No. 99), which the Court notes was neatly 2 presented and carefully assembled, and Defendants filed a reply, (Docket No. 102). For 3 the reasons discussed below, Defendants’ motion is GRANTED. 4 5 I. DISCUSSION 6 A. Plaintiff’s Claims 7 Plaintiff claims that after he injured his right wrist and elbow during his arrest on 8 December 22, 2016, Defendants at HCCF failed to provide treatment or pain relief. (SAC 9 at 3.) Plaintiff claims he suffered months of pain until he was referred to a “bone 10 specialist” and later a neurologist who diagnosed nerve damage. (Id.) Plaintiff claims that 11 “via the medical requests, med visit, and ‘grievance process’ – Iver Fiam, April Bernhart, 12 Dr. Borelson, Lieutenants Christian and Flint ALL denied Plaintiff effective pain relief and 13 effective treatment to the nerve damaged.” (SAC at 3.) Liberally construed, the Court 14 found the SAC stated a cognizable claim under § 1983 for deliberate indifference to 15 serious medical needs. (Docket Nos. 18, 83.) 16 B. Statement of Facts3 17 Plaintiff initially reported problems with his wrist and elbow on December 23, 18 2016, after he had been allegedly assaulted by officers the day before, on December 22, 19 2016. (Levin Decl. ¶ 4; CFMG 049, 126, Docket No. 86-3 at 1, 3; Opp. at 1, original 20 pagination.) Superficial abrasions were noted by the nurse, and orders were taken for an 21 22 23 2 In support of the motion, Defendants provide the declaration of Dr. John Levin, (Docket No. 86-4, hereinafter “Levin Decl.”), as Defendants’ medical expert, and authenticated 24 copies of Plaintiff’s medical records from HCCF, (Docket No. 86-3, hereinafter “CFMG”), by the custodian of records for HCCF, Burton Dollarhide, (Docket No. 86-2). 25 3 The following facts are undisputed unless otherwise indicated. The facts relied on by 26 Defendants are set forth by their medical expert, Dr. Levin, after he reviewed Plaintiff’s medical records, CFMG 1 through CFMG 284, for the period relevant to this action. 1 Hibiclens scrub for the area where the abrasions were noted to protect against infections. 2 (Id.) 3 On December 27, 2016, he was seen by Defendant FNP Lien for complaints of, 4 among other things, pain in the left wrist, elbow, and left foot after “being handled roughly 5 during arrest.” (Levin Decl. ¶ 5; CFMG 048, Docket No. 86-3 at 2.) Defendant Lien 6 ordered naproxen4 500 mg, to be given twice a day for 14 days for pain. (CFMG 126, 7 Docket No. 86-3 at 3.) The naproxen was continued on January 6, 2017, and again on 8 February 9, 2017, at Plaintiff’s request after follow-up examinations with Defendant Lien. 9 (Id.; CFMG 047, Docket No. 86-3 at 4.) 10 On February 24, 2017, Plaintiff reported ongoing pain in the left wrist as well as a 11 “popping sensation” at the radial wrist with thumb movement. (Levin Decl. ¶ 6; CFMG 12 046, 125, Docket No. 86-3 at 5, 6.) Defendant Lien noted “slight popping,” and renewed 13 the naproxen pain medications. (Id.) 14 X-rays were ordered, and on March 7, 2017, both the progress notes and the report 15 of the radiologist indicated the left wrist x-rays were normal. (Levin Decl. ¶ 7; CFMG 16 046, 158, Docket Nos. 86-3 at 5, 7.) Plaintiff was notified of the results. (Id.; CFMG 153, 17 Docket No. 86-3 at 8.) 18 On March 16, 2017, Defendant Lien again examined Plaintiff for his complaint of 19 ongoing pain in the left wrist. (Levin Decl. ¶ 8; CFMG 045, Docket No. 86-3 at 9.) 20 Plaintiff reported that the naproxen did little to relieve the pain and that he wanted an MRI. 21 (Id.) In denying the request, Defendant Lien noted that Plaintiff’s condition was “neither 22 an urgent or emergent problem and is likely not amenable to surgical intervention.” (Id.) 23 Defendant Lien referred Plaintiff to the “MD call list” for further evaluation. (Id.) The 24 naproxen 500 mg was continued. (CFMG 142, Medication Administration Record 25 26 4 Naproxen is a non-steroidal anti-inflammatory drug (“NSAID”) used to treat pain. 1 (“MAR”), Docket No. 86-3 at 10.) 2 Defendant Dr. Burleson referred Plaintiff to Dr. Robert C. Lyell, an orthopedic 3 specialist who is not a party to this action, for an examination and assessment. (Levin 4 Decl. ¶ 9; CFMG 238-239, Docket No. 86-3 at 11-12.) Dr. Lyell issued his comprehensive 5 report on April 3, 2016. (Id.) Dr. Lyell found that there was no sensory (i.e., nerve) loss in 6 the ulnar nerve distribution and that the radial, median and ulnar nerves “appear grossly 7 intact to motor and sensory exam.” (Id.) Dr. Lyell also noted the prior x-ray studies were 8 normal for the wrist. (Id.) Dr. Lyell recommended a nerve conduction study and that 9 atrophy noted on exam was related to the ulnar neuropathy, but that “fortunately [Plaintiff] 10 does not have any sensory loss.” (Id.) Dr. Lyell recommended, “…rest, non-steroidals 11 and bracing if this is available for him including his thumb.” (Id.) 12 According to Plaintiff, he saw Defendant Lien on April 6, 2019. (Opp. at 4.) 13 According to Plaintiff, Defendant Lien told him at that time, “You’ll have to just deal with 14 the pain. Nothing else can be prescribed.” (Id.) Plaintiff states that they argued until a 15 deputy interrupted them and escorted Plaintiff away. (Id.) 16 On April 14, 2017, Defendant Burleson noted the “de Quervain’s tenosynovitis” 17 found by Dr. Lyell in his consult note and that Plaintiff had atrophy previously 18 documented in an earlier incarceration. (Levin Decl. ¶ 10; CFMG 044, Docket No. 86-3 at 19 13.) Defendant Burleson ordered rest, NSAIDs and splinting/bracing all per Dr. Lyell’s 20 recommendations, along with a nerve conduction study (“NCS”). (Id.) 21 The “NCS” was administered on May 1, 2017, (CFMG 151, 152, Docket No. 86-3 22 at 14-15), and noted in the progress notes at the jail, (CFMG 043, Docket No. 86-3 at 17), 23 on the same date with the recommendation that Plaintiff be sent back to Dr. Lyell to assess 24 the “NCS” results. (Levin Decl. ¶ 11.) 25 On May 22, 2017, Dr. Lyell issued his second report concerning follow up with 26 Plaintiff and the “NCS” results. (Levin Decl. ¶ 12; CFMG 233, Docket No. 86-3 at 16.) 1 Dr. Lyell’s second report indicated that Plaintiff was “asking for stronger pain 2 medications” and although Plaintiff reported he could tolerate a great deal of pain, he 3 “needs ‘really strong’ pain medication and that I [Dr. Lyell] am responsible for approving 4 this.” (Id.) Dr. Lyell’s report states that he discussed the situation “at length” with 5 Plaintiff, informing him that he had “no say regarding [Plaintiff’s] pain medication which 6 he did not seem to understand or agree with.” (Id.) Dr. Lyell informed Plaintiff that he 7 “would recommend rest, non-steroidals. The pain should resolve on its own.” (Id.) Dr. 8 Lyell also attempted to place Plaintiff into a thumb spica brace but Plaintiff refused to 9 wear it. (Id.) Dr. Lyell noted that Plaintiff’s pain was related to the tendonitis and not “his 10 nerve issue which I feel is chronic condition.” (Id.) 11 On May 24, 2017, the progress notes by Defendant Lien indicate that Plaintiff 12 reported that the naproxen was not sufficient to control his pain. (Levin Decl. ¶ 13; CFMG 13 043, Docket No. 86-3 at 17.) Defendant Lien offered Plaintiff the choice of naproxen, 14 tylenol or ibuprofen as well as nortriptyline – a medication that can be used to address 15 nerve pain. (Id.) Plaintiff persisted in requesting stronger pain medications such as 16 tramadol or “something stronger,” which he had learned from other inmates they were 17 taking. (Id.) According to the notes, Plaintiff informed Defendant Lien that failure to give 18 him the pain medication that he was demanding would represent deliberate indifference to 19 his condition. (Id.) Defendant Lien advised Plaintiff that there were no patients at the 20 facility taking tramadol. (Id.) The naproxen was re-ordered. (Id.) 21 According to Plaintiff, he learned from Defendant Lien on May 24, 2017, that the 22 “Neurologist has not forwarded a referral for treatment despite the findings, and we 23 medical staff can’t send you back without that. And we cannot provide stronger 24 medications at this facility.” (Opp. at 5.) Plaintiff states that he received no pain 25 medication that day, even though he indicated that he would accept even a non-narcotic. 26 (Id. at 22.) 1 According to progress notes dated May 25, 2017, Plaintiff refused to wear the wrist 2 brace ordered by Dr. Lyell. (Levin Decl. ¶ 14; CFMG 042, Docket No. 86-3 at 18.) A 3 few days later on May 30, 2017, Plaintiff asked for the same brace. (Id.) On June 1, 2017, 4 Plaintiff indicated that he was willing to try the brace suggested by Dr. Lyell, and a spica 5 splint was ordered. (Levin Decl. ¶ 16; CFMG 041, Docket No. 86-3 at 19.) 6 According to Plaintiff, he first notified medical that he wanted the brace on May 27, 7 2017, when he found out it was not brought back to the facility. (Opp. at 5, Ex. B-1.) 8 On June 1, 2017, Defendant Burleson had a conversation concerning pain 9 medications with Plaintiff who “refused to consider any RX except ‘pain meds.’” (Levin 10 Decl. ¶ 15; CFMG 042, Docket No. 86-3 at 18.) Defendant Burleson advised Plaintiff to 11 wear the splint as prescribed by Dr. Lyell and to take the naproxen for pain as prescribed. 12 (Id.) 13 The splint that was ordered for Plaintiff arrived on June 12, 2017, but he demanded 14 the metal splint from Dr. Lyell. (Levin Decl. ¶ 16; CFMG 041, Docket No. 86-3 at 19.) 15 Plaintiff was advised that custody rules would not permit the use of a metal splint. (Id.) 16 On June 16, 2017, Defendant Lien saw Plaintiff for complaints of discomfort and 17 “significant pain”; Plaintiff requested additional medication and follow-up visits with 18 orthopedist and neurologist. (CFMG 041, Docket No. 86-3 at 19.) Defendant Lien noted 19 that Plaintiff arrived wearing the splint on his left hand and forearm; the splint was not 20 removed during the visit. (Id.) Defendant Lien continued the naproxen but added tylenol 21 1000 mg as well. (Levin Decl. ¶ 17; CFMG 138 – “MAR,” Docket No. 86-3 at 20.) 22 Defendant Lien wrote to Dr. Lyell on July 21, 2017, to secure the type of brace 23 discussed by Dr. Lyell because the Velcro type brace was uncomfortable. (Levin Decl. ¶ 24 18; CFMG 228, 039, Docket No. 86-3 at 21, 22.) However, when the brace arrived, 25 custody determined that the metal stays had to be removed for safety reasons, and the 26 modified brace was to be delivered to Plaintiff. (Id.; CFMG 039 – 8/28/17 & 9/1/17, 1 Docket No. 86-3 at 22.) 2 Discussions centering around Plaintiff’s desire for pain medications persisted in 3 September 2017 through December 2017, during which time Plaintiff would refuse 4 medications and be taken off the medications that he refused to accept, and then later 5 indicate that he was willing to take the “weak pain medications that had been approved.” 6 (Levin Decl. ¶ 19; CFMG 038, 037, Docket No. 86-3 at 23, 24.) 7 II. Summary Judgment 8 Summary judgment is proper where the pleadings, discovery and affidavits show 9 that there is “no genuine dispute as to any material fact and the movant is entitled to 10 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment 11 “against a party who fails to make a showing sufficient to establish the existence of an 12 element essential to that party’s case, and on which that party will bear the burden of proof 13 at trial . . . since a complete failure of proof concerning an essential element of the 14 nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. 15 Cattrett, 477 U.S. 317, 322-23 (1986). A fact is material if it might affect the outcome of 16 the lawsuit under governing law, and a dispute about such a material fact is genuine “if the 17 evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 18 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 19 Generally, the moving party bears the initial burden of identifying those portions of 20 the record which demonstrate the absence of a genuine issue of material fact. See Celotex 21 Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on an issue 22 at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other 23 than for the moving party. But on an issue for which the opposing party will have the 24 burden of proof at trial, the moving party need only point out “that there is an absence of 25 evidence to support the nonmoving party’s case.” Id. at 325. If the evidence in opposition 26 to the motion is merely colorable, or is not significantly probative, summary judgment may 1 be granted. See Liberty Lobby, 477 U.S. at 249-50. 2 The burden then shifts to the nonmoving party to “go beyond the pleadings and by 3 her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on 4 file,’ designate specific facts showing that there is a genuine issue for trial.’” Celotex 5 Corp., 477 U.S. at 324 (citations omitted). If the nonmoving party fails to make this 6 showing, “the moving party is entitled to judgment as a matter of law.” Id. at 323. 7 The Court’s function on a summary judgment motion is not to make credibility 8 determinations or weigh conflicting evidence with respect to a material fact. See T.W. 9 Elec. Serv., Inc. V. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 10 The evidence must be viewed in the light most favorable to the nonmoving party, and the 11 inferences to be drawn from the facts must be viewed in a light most favorable to the 12 nonmoving party. See id. at 631. It is not the task of the district court to scour the record 13 in search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 14 1996). The nonmoving party has the burden of identifying with reasonable particularity 15 the evidence that precludes summary judgment. Id. If the nonmoving party fails to do so, 16 the district court may properly grant summary judgment in favor of the moving party. See 17 id.; see, e.g., Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1028-29 18 (9th Cir. 2001). 19 A. Deliberate Indifference 20 Deliberate indifference to a serious medical need violates the Eighth Amendment’s 21 proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 22 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other 23 grounds, WMX Techs, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A 24 determination of “deliberate indifference” involves an examination of two elements: the 25 seriousness of the prisoner’s medical need and the nature of the defendant’s response to 26 that need. See McGuckin, 974 F.2d at 1059. 1 Where the inmate-patient is a pretrial detainee rather than a convicted prisoner, like 2 Plaintiff was during the relevant period of this case, his rights derive from the Fourteenth 3 Amendment’s Due Process Clause rather than the Eighth Amendment’s Cruel and Unusual 4 Punishments Clause. See Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 5 2002) (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979)). That is, deliberate indifference to 6 a pretrial detainee’s serious medical needs violates the Fourteenth Amendment’s Due 7 Process Clause. Although a deliberate indifference test applies to a pretrial detainee’s 8 claim, it is an objective deliberate indifference test, rather than the subjective deliberate 9 indifference test applicable to a prisoner’s claim. See Gordon v. County of Orange, 888 10 F.3d 1118, 1122 & n.4 (9th Cir. 2018). The claim is evaluated under an objective 11 deliberate indifference standard. 12 [T]he elements of a pretrial detainee's medical care claim against an individual defendant under the due process clause of 13 the Fourteenth Amendment are: (i) the defendant made an intentional decision with respect to the conditions under which 14 the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant 15 did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would 16 have appreciated the high degree of risk involved—making the consequences of the defendant's conduct obvious; and (iv) by 17 not taking such measures, the defendant caused the plaintiff's injuries. 18 Id. at 1125. With regard to the third element, the defendant’s conduct must be objectively 19 unreasonable -- “a test that will necessarily turn[] on the facts and circumstances of each 20 particular care.” Id. (citations and internal quotation marks omitted). The four-part test 21 articulated in Gordon requires the plaintiff to prove more than negligence, but less than 22 subjective intent --something akin to reckless disregard. Id. 23 Defendants assert that the care and treatment they provided Plaintiff complied with 24 the applicable standard of care, and that the test under Gordon establishes they were not 25 deliberately indifferent to any serious medical need. (Mot. at 2, 6-7.) Under the first 26 factor, Defendants assert that they made intentional decisions concerning the nature of the 1 treatment that was appropriate in responding to Plaintiff’s complaints, which resulted in 2 the referral of Plaintiff to an outside orthopedic specialist. (Id. at 6.) Defendants also 3 assert that they followed that orthopedic specialist’s recommendations as to the proper 4 course of treatment and response to Plaintiff’s complaints thereafter. (Id. at 7.) With 5 respect to the second factor, Defendants deny that their actions in following the specialist’s 6 recommendations put Plaintiff at a substantial risk of suffering serious harm. (Id.) 7 Thirdly, Defendants assert that they did not fail to take reasonably available steps to abate 8 any risk of serious harm to Plaintiff because no such risk existed: “indeed the decision to 9 seek the outside referral were the ‘steps’ designed to abate the risk of any further 10 exacerbation of the condition presented by the plaintiff to the jail providers.” (Id.) Lastly, 11 Defendants assert that they did not fail to take steps that resulted in harm to Plaintiff 12 because they sent him out for specialized care, and they followed the recommendations of 13 the specialist. (Id.) Defendants assert that Plaintiff’s claim is nothing more than his own 14 personal opinion concerning his assessment of proper medical care and specifically his 15 demand and persistent pursuit of strong pain medications, which were determined to be 16 inappropriate by Defendants as well as the outside consulting orthopedist, Dr. Lyell, and 17 further bolstered by their medical expert, Dr. Levin. (Id. at 8.) 18 In opposition, Plaintiff asserts that his “remarks and descriptions of concerns were 19 not being documented accurately, correctly, or as expressed.” (Opp. at 2.) He claims that 20 he filed multiple medical requests to relief his pain “prior to the X-ray, prior to the 21 Orthopaedic [sic], prior to the Neurologist” but that Defendant Lien delayed treatment for 22 74 days after the injury date. (Id.) He asserts this time delay constitutes “deliberate 23 indifference reckless disregard [sic]” and is “proper medical oversight.” (Id.) As an 24 example, Plaintiff points out that the radiologist notes “soft tissue swelling around the 25 wrist” on March 6, 2017, but that Defendant Lien entered “no swelling” on February 24, 26 2017. (Id.) He also asserts that he requested an MRI as early as February 23, 2017, but 1 that Defendant Lien notes for the first time on March 16, 2017, that he was refusing the 2 MRI. (Id.) Plaintiff describes other differences in how he described the pain and how 3 Defendants noted their observations in their progress notes. (Id. at 3.) He also makes 4 allegations against Dr. Lyell, who is not a party to this action, (id. at 3-5), claiming that Dr. 5 Lyell conspired with Defendants “confuse, distort, and mislead facts in effort to keep 6 plaintiff deprived of proper standards in the medical science community.” (Id. at 5.) 7 Plaintiff asserts that he is the victim of conspiracy and retaliation for filing another lawsuit 8 for medical care deprivation. (Id. at 7.) Plaintiff asserts that Defendants “knowingly 9 turned a blind’s eye, a deaf ear, their back to the truth with a meeting of the minds” after 10 the neurologist’s findings, from the NCS study, were known. (Id. at 8.) Plaintiff asserts 11 that the facts of the neurologist’s findings “alerts a reasonable person in the medical and 12 administrative oversight to grievances referring to pain and nerve damage ‘findings by a 13 certified neurologist’ that when pain and nerve damage is read and/or articulated in 14 communication(s) that a ‘risk of substantial harm exists’ and a ‘reasonable’ compassionate 15 professional would also draw that inference” and that “to not draw that inference at that 16 point would be, and, is blatant deliberate indifference.” (Id. at 12.) Plaintiff asserts that 17 Defendants knew that he was still complaining of pain after they became of the 18 neurologist’s findings and still did not offer treatment and pain relief, which amounts to 19 deliberate indifference and reckless disregard. (Id. at 17.) Plaintiff relies on the evaluation 20 of two physicians, not parties to this action: Dr. Shahid Rehman and Dr. Todd Siff. (Opp. 21 at 21, 25.) Plaintiff submits exhibits with his opposition that purport to be copies from his 22 medical record but are unauthenticated. (Docket Nos. 99-16, 99-16 at 40-43.) These 23 documents indicate that Dr. Rehman, a neurologist, consulted with Plaintiff’s case in a 24 neurology clinic at Napa State Hospital on August 8, 2018, (Opp., “Exhibit – Shahid 25 Rehman, M.D. Neurologist”; Docket No. 99-16), and that Dr. Todd Siff was consulted on 26 October 22, 2018, by Dr. Daniel Ziegler, a new doctor at HCCF who is not a party to this 1 action, on whether hand surgery was warranted, (id. at 23; Docket No. 99-18 at 40-43). 2 Plaintiff asserts that the opinion of these two medical officials was that the standard of care 3 he received at HCCF was not adequate and that they, unlike Defendants, prescribed 4 treatment that was different and adequate. (Opp. at 25.) 5 In reply, Defendants assert that Plaintiff improperly raises claims of conspiracy and 6 retaliation that are not a part of this case, and for which the Court found no basis in 7 support. (Reply at 4.) Defendants are correct, as the Court denied Plaintiff’s previous 8 attempt to add new claims of conspiracy and retaliation to this action. (Docket No. 101 at 9 13-15.) Accordingly, Plaintiff’s allegations regarding conspiracy and retaliation shall not 10 be considered as either new claims or as a basis for creating genuine disputes over material 11 facts because such facts are not relevant to this case. Nor will the Court consider 12 Plaintiff’s attacks against Dr. Lyell for the care he provided because Dr. Lyell is not a 13 party to this action, and the Court has denied Plaintiff’s previous attempts to join him to 14 this action. (Docket No. 101 at 13.) With respect to Plaintiff’s allegation that Defendant 15 Lien failed to document swelling on February 24, 2017, in contrast with the X-ray findings 16 on March 6, 2017, Defendants point out that these are two different observations from two 17 different types of examinations – “one external and clinical by FNP Lien and the other an 18 internal view of the anatomy of the wrist.” (Reply at 6-7.) Defendants assert that 19 Plaintiff’s opposition consists essentially of his own personal assessment of the diagnoses 20 and plans for treatment by jail medical staff (Defendants) and the outside specialist, Dr. 21 Lyell. (Reply at 1, 5-6.) Defendants argue that Plaintiff’s own opinions on the matter are 22 without merit and that he cannot rest on his own medical assessment to defeat summary 23 judgment. (Id. at 7-8.) 24 Viewing the evidence in the light most favorable to Plaintiff, the Court finds there is 25 no genuine dispute as to any material fact relating to Plaintiff’s claim of deliberate 26 indifference against Defendants under the Gordon factors. First of all, there is no dispute 1 that Defendants made intentional decisions with respect to Plaintiff’s medical care in the 2 following manner: 1) Defendants initially prescribed medication to address Plaintiff’s pain, 3 2) they ordered X-rays, 3) they referred the matter to an outside orthopedic specialist and 4 neurologist when his left wrist complaints persisted; and 4) they followed the 5 recommendations of the specialist as much as prison safety concerns permitted. See supra 6 at 3-4. Secondly, the evidence does not establish that these conditions put Plaintiff at a 7 substantial risk of suffering serious harm. Rather, it was Plaintiff’s own decision to not 8 take certain medications that were made available to him and to not wear the brace that 9 was ordered that caused him further harm. Plaintiff admits that he “refused the aspirin 10 offered not wanting to consume a pill to become chemically dependent to relie[ve] his 11 pains.” (Opp. at 1-2.) It does not escape the Court’s attention, however, that he later 12 requested “something stronger” like tramadol, which is known to be highly addictive. See 13 supra at 5. Defendants’ failure to provide him with “something stronger” does not 14 establish that they placed Plaintiff at a substantial risk of serious harm, particularly since 15 they were still offering him alternative medication, e.g., “naproxen, tylenol or ibuprofen as 16 well as nortriptyline.” Id. Because Defendants continually offered alternative pain 17 medication as well as attempted to obtain an appropriate brace for his wrist, Plaintiff has 18 failed to establish that Defendants did not take reasonably available measures to abate that 19 risk, which is the third Gordon factor. Those reasonably available measures are evidenced 20 by Defendants making progressive decisions with respect to Plaintiff’s persistent left wrist 21 complaints, starting with pain medications to ordering diagnostic tests, including X-ray, 22 and a referral to an outside specialist for further treatment. That specialist proceeded to 23 recommend additional diagnostic tests, including an NCS. Lastly, because the evidence 24 establishes that Defendants took reasonable available measures, Plaintiff cannot establish 25 the final Gordon factor for causation. 888 F.3d at 1125. 26 With respect to Plaintiff’s reliance on the opinion of other doctors, i.e., Dr. Rehman 1 and Dr. Siff, there is no declaration from these doctors to support Plaintiff’s conclusory 2 statements of what those opinions were. Plaintiff asserts in opposition that Dr. Rehman’s 3 “conscience was ‘shocked’ when realizing plaintiff’s neurology diagnosis… was reacted to 4 with no effective treatment or pain relief,” and that Dr. Siff expressed that “it’s ‘very 5 tragic’ this wasn’t addressed” upon the neurologist’s findings. (Opp. at 21, 25.) However, 6 the documents he submits in support, assuming they are authentic and admissible, do not 7 contain such opinions. Dr. Rehman’s progress notes contain no opinion about the quality 8 of care Plaintiff received at HCCF for his left hand prior to his consult, much less any 9 expression of a “shocked conscience”; he simply noted his assessment, differential 10 diagnosis, and recommendations. (Docket No. 99-16.) Similarly, Dr. Siff’s consult notes 11 contain no opinion about the quality of care Plaintiff received prior to his consult; he 12 merely states that “this is a very complicated case,” and recommends MRIs and a repeat 13 NCS, with surgery as the “optimal” course of action. (Docket No. 99-18 at 42.) 14 Accordingly, Plaintiff’s reliance on these documents as support for his argument that 15 Defendants’ care fell below the standard is unfounded, as are his personal opinions about 16 the course of treatment. “A difference of opinion between a prisoner-patient and prison 17 medical authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v. 18 Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). Similarly, a showing of nothing more than a 19 difference of medical opinion as to the need to pursue one course of treatment over another 20 is insufficient, as a matter of law, to establish deliberate indifference. Toguchi v. Chung, 21 391 F.3d 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). 22 Furthermore, although the reliance by prison officials upon a second medical opinion 23 which a reasonable person would likely determine to be inferior to one from a more 24 qualified medical authority may amount to an Eighth Amendment violation, see, e.g., 25 Hamilton v. Endell, 981 F.2d 1062, 1066-67 (9th Cir. 1992) (prison’s reliance upon 26 medical opinion of doctor who had not examined plaintiff as opposed to plaintiff’s regular 1 physician violated prisoner’s constitutional rights), that is not the case here. Unlike in 2 Hamilton, Plaintiff was personally seen and examined by Dr. Lyell several times over the 3 course of his consultation on the matter of Plaintiff’s left wrist, and Plaintiff’s regular care 4 providers concurred with Dr. Lyell’s diagnosis and recommendations. 5 Lastly, Defendants submit the expert opinion of their medical expert, Dr. Levin. 6 (Docket No. 86-4, Levin Decl.) Dr. Levin attests that he has practiced and trained in the 7 care, treatment and clinical diagnosis of patients with musculo-skeletal sprains and strains, 8 including tendinitis, and the medications appropriate to address the clinical presentation of 9 the signs of both acute and chronic pain and discomfort reported by such patients. (Levin 10 Decl. ¶ 2.) After reviewing Plaintiff’s relevant medical records, Dr. Levin expresses the 11 opinion that the care provided to Plaintiff by Defendants “all complied with the applicable 12 medical standard of care for a patient with the tendonitis diagnosed by Dr. Lyell as well 13 [as] confirmed by the “NCS” study and x-rays.” (Id. ¶ 20.) Dr. Levin states that “the use 14 of NSAIDs for the type of pain clinically assessed for Mr. Silverman was both prudent and 15 appropriate as evidenced by the assessment of Dr. Lyell, the consulting orthopedist, and as 16 continued and followed by the providers at HCCF.” (Id.) Dr. Levin’s opinion is further 17 evidence that Defendants’ actions were not objectively unreasonable. 18 Based on the foregoing, the Court finds that Defendants’ conduct with respect to 19 Plaintiff’s medical needs was not objectively unreasonable. See Gordon, 888 F.3d at 1125. 20 Defendants have established the absence of a genuine issue of material fact with respect to 21 the deliberate indifference claim against them. See Celotex Corp., 477 U.S. at 323. In 22 response, Plaintiff has failed to identify with reasonable particularity any evidence that 23 precludes summary judgment. See Keenan, 91 F.3d at 1279. Accordingly, Defendants are 24 entitled to summary judgment. Id.; see Celotex Corp., 477 U.S. at 323. 25 /// 26 /// 1 II. CONCLUSION 2 For the forgoing reasons, Defendants Iver Lien, Dr. Michael Burleson, and April 3 || Barnhart’s motion for summary judgment is GRANTED. (Docket No. 86.) The 4 || Fourteenth Amendment claim against them is DISMISSED with prejudice. The Clerk 5 shall terminate these Defendants from this action. 6 This order terminates Docket No. 86. 7 IT IS SO ORDERED. g Dated: February 25, 2020 he hi ty h smer/ BETH LABSON FREEMAN ? United States District Judge 10 11 12 14 © 15 16 & 17 Zz 18 19 20 21 22 23 24 25 Order Granting MSJ PRO-SE\BLF\CR.17\03700Silverman_grant.msj 26 27