Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Terry L. Stewart, et al., 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. Eddie Hatch, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) No. CV 04-0541-PHX-JWS (LOA) ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

TCK

Plaintiff Eddie Hatch, a state prisoner, filed this action claiming that he was denied adequate medical care and retaliated against for seeking treatment. Defendants' filed a Motion For Summary Judgment (Doc. #51). By order filed on July 20, 2006 (Doc. #63), the Court granted Defendants' Motion as to Counts II and III, on the ground that Plaintiff failed to exhaust his administrative remedies. The Court determined that Defendants had not presented sufficient evidence regarding Plaintiff's deliberate indifference claim set forth in Count I of the Complaint and directed Defendants to file a Second Motion For Summary Judgment addressing Count I of the Complaint. Presently pending is Defendants' Second Motion for Summary Judgment (Doc. #65). Plaintiff has not responded. The Court will grant Defendants' Motion. I. Procedural Background Previously, Plaintiff filed a civil rights action raising the same claims as in this action. Hatch v. Stewart, No. CV 02-1791-PHX-CLH (D. Ariz.). The action was dismissed for lack
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of exhaustion. Id. (Ord. & J, Doc. #51-#52). Plaintiff then attempted to exhaust his remedies and returned to federal court and filed the present action. In his Complaint, Plaintiff alleges that his medical care was inadequate and that he was retaliated against for seeking medical care. Plaintiff sued 11 Defendants: (1) former Arizona Department of Corrections (ADC) director Terry Stewart; (2) Drs. Kanter, Lutz, Macabuhay, and Whitney; (3) Facility Health Administrator Jim Taylor; (4) Lieutenant Lawrence; (5) Sergeant Zapien, and (6) Corrections Officers Hunt, Lee, Whiting and Putnam. In Count I of his Complaint, Plaintiff alleges that he has a history of back trouble and prior to the events in suit, he had two surgeries performed on his back. Plaintiff alleged that in early 2002, Drs. Macabuhay, Whitney and Kanter delayed referring him to an outside specialist for his back pain, and that ADC Director Stewart, Facility Health Administrator Taylor and Dr. Lutz failed to respond to his written requests for emergency treatment (Compl. at 4-4c). In Count II, Plaintiff alleges that on March 17, 2002, Sgt. Zapien ordered CO Hunt to "write up" Plaintiff for faking an injury and refused to give Plaintiff his meals in his cell as required by a medical lay-in (Compl. at 5-5a). In Count III, Plaintiff alleges that Lt. Lawrence, CO Lee, Co Whiting and CO Putnam were deliberately indifferent to his medical needs by moving him to an upper bed on an upper tier after his back surgery on June 28, 2002, and he fell on the steps and was injured. Defendants answered the Complaint pursuant to the Court's screening order, and deadlines for discovery and dispositive motions were set (Doc. ##31, 32, 44). Defendants filed a Motion for Summary Judgment (Doc.#51). Defendants' Motion was granted as to Counts II and III of the Complaint. Defendants Lawrence, Zapien, Hunt, Lee, Whiting and Putnam were dismissed. The sole remaining claim is Count I against Defendants Stewart, Taylor, Kanter, Macabuhay, Whitney, and Lutz. The Court ordered these Defendants to file a Second Motion For Summary Judgment on Count I (Doc. #53). Defendants filed a second Motion For Summary Judgment (Doc. #65). The Court issued an Order informing Plaintiff about his rights and obligations to respond to Defendants' motion (Doc. #67). The Order specifically informed Plaintiff that -2-

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if Defendants' motion was properly supported, he could not simply rely on his Complaint but must submit evidence as provided in Rule 56(e) of the Federal Rules of Civil Procedure, or summary judgment might be entered against him. Plaintiff did not file a response. He presumably has chosen to rest upon the allegations set forth in his verified Complaint and response to Defendants' first Motion For Summary Judgment. In their second motion, Defendants contend that (1) Defendants were not deliberately indifferent to Plaintiff's medical needs; (2) Defendants are entitled to Eleventh Amendment immunity in their official capacities; (3) Defendants are entitled to the defense of qualified immunity (Doc. #65). II. Summary Judgment Standard A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). When considering a summary judgment motion, the evidence of the non-movant is "to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). These inferences are limited, however, "to those upon which a reasonable jury might return a verdict." Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1220 (9th Cir. 1995). Rule 56(c) mandates the entry of summary judgment against a party who, after adequate time for discovery, fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23. Rule 56(e) compels the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial" and not to "rest upon the mere allegations or denials of [the party's] pleading." The nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party. Anderson, 477
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U.S. at 249. Summary judgment is warranted if the evidence is "merely colorable" or "not significantly probative." Id. at 249-50. III. Analysis A. Evidence Presented Plaintiff had a history of back pain and has previously undergone two back surgeries. Plaintiff began complaining of back pain in January, 2002 (Defendants Statement of Facts "SOF" at ¶4; Def. Ex. 2: Dr. Macabuhay affidavit at 2; Def. Ex. 3: Dr. Kanter affidavit at 1; Def. Ex. 4: Dr. Whitney Affidavit at 1). Based on his past experience, Plaintiff believed that his medical problems required an outside specialist and additional back surgery to resolve his back pain (Plf. Complaint at 4; SOF at ¶6). Dr. Macabuhay, a physician at the Arizona Department of Corrections, initially treated Plaintiff conservatively with medication and bed rest for his reported back strain (Def. Exhibit 2; Macabuhay affidavit at 2; SOF at ¶7). He also prescribed an additional pillow for Plaintiff to place between his legs when sleeping and a back brace (Id.). Plaintiff reported that this treatment alleviated some of his pain (Compl at 4). On March 11, 2002, Plaintiff complained that his back pain had become more severe and he was taken to medical (Def. Exhibit 2; Macabuhay affidavit at 2; SOF at ¶8). Dr. Macabuhay ordered X-Rays, prescribed additional medication, medical ice and a short lay-in order permitting Plaintiff to remain in his cell (Def. Exhibit 2; Macabuhay affidavit at 2; SOF at ¶8). On March 17, 2002, Plaintiff reported to medical staff that he had fallen in his cell and that his pain had worsened (Def. Exhibit 2; Macabuhay affidavit; SOF at ¶9). Thereafter, Dr. Macabuhay re-issued the lay-in order and submitted for authorization of an orthopedic consult for Plaintiff (Id.). Dr. Macabuhay continued to provide medication for Plaintiff's pain during this time frame. On March 26, 2002, Dr. Macabuhay examined Plaintiff and informed him that his consult had been approved. Additionally, he prescribed more medication to help alleviate Plaintiff's pain (Def. Exhibit 2; Macabuhay affidavit; SOF at ¶10).

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On April 1, 2002, Plaintiff was seen by a nurse, who referred him to Dr. Kanter. Dr. Kanter reviewed Plaintiff's medical records and renewed Plaintiff's prescription for Tylenol to enable Plaintiff to control his pain and prescribed Flexeril to reduce muscle spasms and Toredol to reduce pain. (Def. Exhibit 3, Affidavit of Dr. Kanter at 1; SOF at ¶11). On April 5, 2002, Plaintiff returned to medical complaining of pain (SOF at ¶12). Plaintiff was examined by Dr. Whitney, who determined that he could not diagnose the cause of Plaintiff's pain (Def. Exhibit 4: Affidavit of Whitney at 3). Thereafter, Dr. Whitney had no further contact with Plaintiff (Id.). On April 21, 2002, Plaintiff was seen again by Dr. Kanter, who ordered an MRI for Plaintiff (SOF at ¶13; Affidavit of Kanter at 2). During this time frame, Plaintiff wrote a letter to Deputy Warden Haley stating that he believed his medical care was inadequate and that he would engage in a hunger strike until he was seen by a specialist (SOF at ¶14). Deputy Warden Haley responded to Plaintiff's letter by advising Plaintiff that he had spoken to Defendant Taylor and that Plaintiff was scheduled for an MRI in the near future and that ADOC was attempting to treat Plaintiff's condition as quickly as possible. Upon receipt of Plaintiff's letter, Defendant Taylor spoke to Plaintiff's physicians and determined that Plaintiff was scheduled for a neurosurgery consult (SOF at ¶18). The MRI was completed on April 26, 2002 (SOF at ¶17). On April 29, 2002, Dr. Macabuhay consulted with Dr. Lerona, a Radiologist at Maricopa County Medical Center (Macabuhay affidavit at 3; SOF at ¶17). Based upon Dr. Lerona's reported findings, Dr. Macabuhay recommended that Plaintiff be scheduled for a neurosurgery consult (SOF at ¶18) and the request was approved on this date by Dr. Baird. (Id.). On May 20, 2002, Plaintiff was transported to St. Mary's Hospital in Tucson, Arizona, where he was seen by Dr. Timothy Putty (SOF at ¶19; Doc. #60). Dr. Putty noted that Plaintiff's MRI showed a herniated disk and recommended that Plaintiff be scheduled for surgery (Id.). Additionally, he prescribed pain medication for Plaintiff. (Id.).

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Upon receipt of Dr. Putty's report, Dr. Macabuhay prepared the paperwork to obtain authorization for Plaintiff's surgery. (SOF at ¶20). Surgery was approved on June 5, 2002 and performed on Plaintiff on June 28, 2002 by Dr. Timothy Putty (SOF at 20; Plaintiff medical records, page 12; Report of Dr. Timothy Putty, MD, St. Mary's Hospital in Tucson). On December 9, 2003, Plaintiff initiated the Inmate Grievance System regarding the back pain he suffered and the medical treatment he received (SOF at ¶22). On this date, Defendants Stewart and Lutz became aware for the first time that Plaintiff was unsatisfied with the nature of the medical treatment he received (Id.). On March 17, 2004, Plaintiff filed this action. B. Deliberate Indifference Standard To state an Eighth Amendment claim, Plaintiff must show that Defendants were deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To act with deliberate indifference, a prison official must both know of and disregard an excessive risk to inmate health. Farmer v. Brennan, 511 U.S. 825, 837 (1994). "Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). In the medical context, deliberate indifference may be shown by (1) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (2) harm caused by the indifference. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing Estelle, 429 U.S. at 104). A mere difference of medical opinion does not amount to deliberate indifference. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). To prevail on a claim involving choices between alternative course of treatment, a prisoner must show that the chosen course was medically unacceptable under the circumstances and was chosen in conscious disregard of an excessive risk to the prisoner's health. Toguchi, 391 F. 3d at 1057. Medical malpractice ­ negligence in diagnosing or treating a condition, or an inadvertent failure to provide adequate medical care ­ does not rise to the Eighth Amendment level. Id. ; Jett, 429 F.3d at 1096. When a prisoner attempts to hold a prison employee responsible for deliberate indifference, the prisoner must establish individual fault. Leer v. Murphy, 844 F.2d 628, 634
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(9th Cir. 1988). Sweeping conclusory allegations will not be sufficient to prevent summary judgment. Id. "The prisoner must set forth specific facts as to each individual defendant's deliberate indifference." Id. at 634. He must prove that the specific prison official was deliberately indifferent and that this indifference was the actual and proximate cause of the injury. Id. C. Discussion In his Complaint, Plaintiff argues that Defendants Macabuhay, Kanter and Whitney acted with deliberate indifference towards his serious medical needs by their failure to provide adequate and prompt pain medication for his back and by their failure to provide him with a referral to a specialist in a timely manner (Complaint at 4). It is undisputed that Plaintiff began complaining of back pain in January, 2002 (Complaint at 4; Defendants Statement of Facts "SOF" at ¶4). It is also undisputed that Plaintiff received medical attention by Dr. Macabhay on several occasions for his back pain and that he received care from several other physicians (Plf. Complaint at 4 through 4C; Affidavit of Macabuhay at ¶1-4). It is also undisputed that Plaintiff had a history of back problems and had previously had two back surgeries (Complaint at 4; Affidavits of Macabuhay, Kanter and Whitney). Defendants have provided evidence that the usual course of treatment for back problems is to provide conservative treatment with rest, heat, anti-inflammatory medications and muscle relaxants. (Def. Exhibit 5; med. record from DHS Health Service Donald Sloan). This is precisely the course of treatment prescribed for Plaintiff. Having found this course of treatment not effective for Plaintiff, Defendants followed through with Plaintiff by referral to a specialist, additional testing and ultimately surgery. The record reflects that from the time frame beginning with Plaintiff's initial complaint about his pain in March, 2002 until he received surgery in June 2002, he received regular treatment from physicians and medication for his pain (Affidavits of Macabuhay; Kanter and Whitney). The only evidence provided by Plaintiff is set forth in his Complaint and his response to Defendants' first Motion For Summary Judgment (Doc. # 59). In Count I of his
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Complaint, Plaintiff alleges that he began experiencing back pain in January 2002, but he had a history of back pain and two prior surgeries (Complaint at 4). Plaintiff acknowledges that he was seen by medical staff within two weeks for his back pain. (Id). Plaintiff alleges that Dr. Macabuhay prescribed medication for pain and placed him on medical lay-in. (Id.). Plaintiff further alleges that he requested to see a specialist because he believed, based on his previous experience, that surgery might be required to fix the problem with his back. Plaintiff contends that his request for a specialist was denied but that he was seen on several occasions by medical staff when his pain worsened (Id. at 4-5). Plaintiff argues that "the failure of Defendants Macabuhay, Whitney and Kanter to take Plaintiff's medical condition seriously and their failure to order and/or request emergency medical treatment for Plaintiff caused him to needlessly suffer and endure extreme pain for months" (Complaint at 4C). Plaintiff's evidence establishes nothing more than his disagreement with the course of treatment chosen by medical professionals. A difference of opinion about the course of treatment is insufficient to establish deliberate indifference. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). Moreover, a prison inmate has no independent constitutional right to outside medical care additional and supplemental to medical care provided by staff within the institution. Roberts v. Spalding, 783 F.2d 867, 870-71 (9th Cir. 1986), cert. denied, 107 S.Ct. 399; See Estelle v. Gamble, 429 U.S. 97, 103-04, 97 S.Ct. 285, 290-91, 50 L.Ed.2d 251 (1976). In response to Defendants first Motion For Summary judgment (Doc. #59), Plaintiff essentially summarizes the facts set forth in his Complaint and asserts that he has established deliberate indifference with direct and circumstantial evidence (Response at 5). Other than his unsupported conclusions, Plaintiff has not submitted a shred of evidence to show that the protocol followed by Defendants was medically unacceptable, nor has he established that the course of treatment was chosen in conscious disregard to an excessive risk to his health. Accordingly, Defendants Whitney, Kanter and Macabuhay are entitled to judgment as a matter of law.

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With respect to Defendants Stewart, Lutz and Taylor, Plaintiff has failed to show an affirmative involvement by these Defendants. Plaintiff merely alleges that Defendants Lutz, Stewart and Taylor were deliberately indifferent to his medical needs because they allegedly failed to order Defendants Macabuhay, Whitney and Kanter to send him sooner to a specialist. There is no respondeat superior liability under § 1983, so a defendant's position as the supervisor of a person who allegedly violated Plaintiff's constitutional rights does not impose liability. Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). "A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor, 880 F.2d at 1045. "A plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), cert. denied, 525 U.S. 1154 (1999). In addition, although Plaintiff does not need to allege direct and personal participation in the constitutional violation, he must allege facts from which it could be inferred that the constitutional violation was reasonably foreseeable to the Defendants. See Kwai Fun Wong v. United States, 373 F.3d 952, 966 (9th Cir. 2004). The requisite causal connection can be established by setting in motion a series of acts by others which the official knows or reasonably should know would cause others to inflict the constitutional injury. Id. (citing Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)). Plaintiff has failed to allege any facts from which an inference can be drawn that a constitutional violation was reasonably foreseeable to Defendants. Finally, to state a valid claim under § 1983, Plaintiff must allege that he suffered a specific injury as a result of the specific conduct of a defendant, and show an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377, 96 S. Ct. 598, 604-05, 607, 46 L. Ed. 2d 561, 569-70, 573 (1976). To state a claim against a state official, the civil rights complainant must allege that the official personally
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participated in the constitutional deprivation or that a state supervisory official was aware of widespread abuses and with deliberate indifference to the inmate's constitutional rights, failed to take action to prevent further misconduct. King v. Atiyeh, 814 F.2d 565, 568 (9th Cir. 1987); See Monell v. New York City Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). Plaintiff has failed to do so. Accordingly, Plaintiff has failed to state a claim against Defendants Stewart, Lutz and Taylor. D. Summary In sum, the record does not permit a reasonable jury to infer that any of the Defendants were deliberately indifferent to Plaintiff's serious medical needs. To the contrary, Defendants have provided evidence to establish that from the time Plaintiff complained of back pain in March 2002, he was seen by several medical specialists, provided with additional medical testing, provided with numerous pain medications and ultimately received surgery to alleviate his back problems approximately three months after his initial complaint was received by medical staff. These facts demonstrate that Defendants were not

deliberately indifferent to Plaintiff's medical needs. Moreover, it is not the obligation of the Court nor of the Attorney General to examine the evidence and to craft Plaintiff's case for him. It was Plaintiff's responsibility to submit evidence in his response to Defendants second Motion For Summary Judgment. Plaintiff was advised to do so and he failed to respond. Because Plaintiff has failed to submit sufficient evidence to rebut Defendants' evidence, the Court will grant Defendants' summary judgment motion. IT IS ORDERED: (1) That Defendants' Motion for Summary Judgment (Doc. #65) is granted; (2) That all claims and parties are dismissed. (3) That the Clerk of Court shall enter judgment accordingly. DATED this 6th day of March 2007. /s/ JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE - 10 -

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