Free Reply to Response to Motion - District Court of Arizona - Arizona

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Terry Goddard Attorney General J. Randall Jue, Bar No. 014816 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-4951 Fax: (602) 542-7670 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA David Walker, No. 03-CV-2308 PHX JWS (MEA) Plaintiff, v. Dora Schriro, et al., Defendant. Defendants,1 through undersigned counsel, submit their Reply in Support of their Motion for Summary Judgment. This Reply is supported by the following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES I. Introduction For the Plaintiff ("Walker") to survive the Defendants' Motion for Summary Judgment, he must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1048 (9th Cir. 1995). Walker's response (Dkt. 58) fails to demonstrate that there is a triable factual
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DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

Charles Ryan and Bruce Kanter.
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issue. He has not presented any evidence that this case involves deliberate indifference on the part of any of the Defendants. A. Walker's Claims of Disputed Facts Do Not Preclude Entry of Judgment for Defendants In Walker's Motion to Deny Defendants' Statement of Facts in Support of Their Motion for Summary Judgment ("Plaintiff's Response") (Dkt.58), he disputes that "his kidneys [were] failing through those years because his blood test results [show] his kidney [was] functioning with no change, including blood test results he received in the [Arizona]Department of Corrections ("ADC")." (Plaintiff's Response ¶ 2.) Walker's assertion does not contradict Dr. Sandler's expert opinion that Walker's short-term use of Toredol in conjunction with the use of any other nonsteroidals ("nsaids") did not contribute to the chronic progression of Walker's kidney ailment that eventually resulted in kidney failure. (Defendants' Statement of Fact ("DSOF") ¶ 35.) Moreover, Walker fails to offer evidence in support of his contention that his kidneys were not on a road of chronic progression toward end stage renal failure. A plaintiff may not rely upon the mere allegations or denials of his pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of the contention that the dispute exists. Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n. 11. Walker claims that the Toredol he received caused his kidney failure based on what he read in the 1999 edition of the Physicians' Desk Reference. (Plaintiff's Response ¶ 14.) He also asserts that Defendants Bristricky's, Kanter's, and McCullough's actions2 during the summer of 1997--when they prescribed Toredol for his neck pain and migraines--constituted "indifference, incompetence and negligence" and caused his health to deteriorate. (Plaintiff's Response ¶¶ 17-20.) However, he fails Dr. Bristricky and Dr. McCullough are named as defendants in the Complaint but were never served.
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to submit any evidence to support these conclusions. To be admissible in the context of a motion for summary judgment, documents must be authenticated either through depositions or answers to interrogatories, or by being authenticated by and attached to an affidavit, in which case the affiant must be a person through whom the exhibits could be admitted into evidence. U.S. v. Dibble, 429 F.2d 598 (9th Cir. 1970); Wright & Miller, Fed. Prac & Proc. § 2722; Rule 56(e) (authorizing consideration of "papers or parts thereof referred to in an affidavit"). In addition, Walker's opinion that the Toredol caused his kidney failure is outside the scope of permissible lay witness testimony. Fed. R. Evid. 701. Walker is not qualified to offer testimony as an expert. Fed. R. Evid. 702, 703. His opinions regarding the cause of his kidney failure calls for special medical knowledge, which he does not possess. Furthermore, his reference to the 1999 edition of the Physician's Desk Reference is inadmissible hearsay. Fed. R. Evid. 801. Walker claims that Dr. Saito, who treated him for his kidney failure, noted in a report that Walker suffered "[s]ome acute deterioration of kidney function secondary to the Indomethacin and [nsaids]." (Plaintiff's Response ¶ 23.) Dr. Sander stated in his report that the five does of Toredol could have resulted in acute kidney failure. (DSOF ¶ 37.) The Defendants do not dispute that Walker may have suffered temporary or acute kidney failure. But this is not a fact material to the issues in this case. Dr. Sandler further found that the discontinuation of the Toredol resolved the acute kidney failure. (Id.) Moreover, Dr. Sandler found that the most likely explanation for Walker's kidney failure was the chronic proteinuria that he had suffered for approximately 22 years, along with the risk factors of tobacco abuse and hypertension. (DSOF ¶¶ 38-41.) With respect to Defendant Ryan, Walker claims that Ryan was "medically indifferent to his medical needs" when Ryan told Walker to consult with his medical provider on the necessity of being placed on a transplant list. (Plaintiff's Response ¶ 3132.) Walker does not indicate whether he followed up on the recommendation by Ryan

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to consult with his medical provider. Moreover, he fails to provide any evidence to show that Ryan's action of referring Walker back to his health care provider was unreasonable. Rule 56 does not permit a non-moving party to respond with mere allegations or denials. First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289 (1968). In response to the opinions offered by Dr. Sandler, Walker cites to passages purportedly from the 1999 edition of the Physician's Desk Reference and the 2004 edition of the Consumer Drug Reference Book. (Plaintiff's Response ¶¶ 35, 38.) Again, as noted previously, these statements from this publication are inadmissible hearsay. Fed. R. Evid. 801. Even if they were admissible, the statements do not create a dispute over a material fact. At most, those statements are generic cautionary language regarding the prescription and use of Toredol. The statements provide no evidentiary value for determining whether (1) Dr. Kanter appropriately prescribed Toredol for Walker, or (2) whether the Toredol was the cause for his kidney failure. Walker asserts that his creatinine level was 3.1 in February of 1997 and had risen to 4.8 by October of 1997. (Plaintiff's Response ¶ 37.) According to Walker, this establishes that the Defendants did not properly monitor him when they were prescribing Toredol for him. (Id.) This is a fallacious argument. The fact that his creatinine level was higher in the fall of 1997--at the time when his kidneys had failed--does not create the inference that Dr. Kanter or the other physician defendant were responsible for the higher creatinine level. It also does not contravene Dr. Sandler's conclusion that Walker's kidney failure was the result of protein in his urine over a 22-year period along with other contributing factors. (DSOF ¶ 40.) Walker admitted that he has had the problem of protein in his urine since he was a teenager. (DSOF ¶ 4.)

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II.

Defendants Dr. Kanter and Ryan Were Not Deliberately Indifferent to Walker's Serious Medical Needs In order to prevail on an Eighth Amendment claim related to medical care, Walker

must show that Dr. Kanter and Ryan acted with "deliberate indifference to [his] serious medical needs." Estelle v. Gamble, 429 U.S. 97 at 106, 97 S. Ct. at 292; see also Farmer, 511 U.S. 825, 114 S. Ct. 1970. Such indifference must be `substantial' to violate the Eighth Amendment, Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986), and cannot be established by a showing of mere negligence or isolated instances of neglect. Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990). An official must know of and disregard an excessive risk to the inmate's health and safety. Toguchi v. Chung, 391 F.3d 1051, 1059 (9th Cir. 2004); Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1187 (9th Cir. 2002). A mere difference of opinion between an inmate and his health care providers does not state a claim for deliberate indifference under § 1983. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). To establish a prima facie Eighth Amendment violation, Walker must establish both the objective and subjective element of an Eighth Amendment claim. 1. The Objective Element The alleged medical deprivation must be "sufficiently serious." Wilson v. Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 2324, 115 L.Ed.2d 271 (1991). The objective component is satisfied if a serious medical need is present, evidenced by the fact that "failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain." See Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002). (internal citations omitted). As the Defendants acknowledged in their Motion for Summary Judgment, Defendants do not dispute that Walker's end stage renal failure was a serious medical situation. But the Defendants do not believe that Walker has satisfied the subjective

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element of his Eighth Amendment claim that they were deliberately indifferent to his medical needs. 2. The Subjective Element Before liability will be imposed on a prison official under the Eighth Amendment for providing inadequate medical care, Walker must also show that the prison official was deliberately indifferent to his serious medical needs in that the Defendants knew of and disregarded an excessive risk to his health. See Farmer, 114 S. Ct. at 1979. The conduct must be "wanton," in that "mere negligence is insufficient for liability;" the official must both fail to alleviate a significant risk and actually have perceived that risk. See Clement, 298 F.3d at 905, citing Frost v. Agnos, 152 F. 3d 1124, 1128 (9th Cir. 1998). Walker must show that each Defendant, despite his knowledge of a substantial risk of serious harm to Walker, failed to take reasonable measures to abate the harm. Walker was only able to serve one of the physicians who prescribed some of the Toredol he received--Dr. Kanter. It appears that Dr. Kanter prescribed at least five

injections of Toredol for Walker. Walker does not dispute that he was suffering from severe migraines and neck pain requiring a course of treatment. It is undisputed that Toredol is a medication suited for this purpose. It is also undisputed that the Toredol injections were effective in alleviating Walker's migraine and neck pain. (Plaintiff's Response ¶ 21.) Walker's sole basis for believing that the Toredol cause his kidney failure is an excerpt from the 1999 edition of the Physician's Desk Reference that there have been "reports of acute renal failure" with the use of Toredol. Defendants do not dispute the assertion that Toredol may cause "acute" renal failure. Dr. Sandler agreed that Toredol could have resulted in acute kidney failure. However, he also concluded that the

discontinuation of Toredol resolved any acute kidney failure exhibited by Walker because the medical records show that he demonstrated some recovery in kidney

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function. In addition, Dr. Sandler found no evidence of papillary necrosis in Walker's medical records, which is the only known marker for effect of any analgesic, such as Toredol, on kidney function. Walker claims that Dr. Kanter was negligent and indifferent to his medical needs but offers no evidence to support these claims. He also fails to refute the conclusions of Dr. Sandler who determined that the primary cause of Walker's kidney failure was twenty-plus years of proteinuria, along with the risk factors of cigarette abuse, physical inactivity, hypertension, and non-compliance with medical regiment. Walker admitted that he started smoking around 1964 when he was 14 years old, which means that he had been smoking for over thirty years by 1997. He also admitted that he has been taking medication for hypertension for about ten years. Dr. Sandler's conclusion that the kidney failure had occurred over time appears to be shared by one of Walker's treating physicians, Dr. Saito, who indicated in a report that Walker had gradually developed kidney failure over a 15-year period. Walker

acknowledged that Dr. Saito concurred with Dr. Sandler's opinion on the cause of his kidney failure. (Plaintiff's Response ¶ 23.) Walker denies this is true, asserting that his kidneys were "functioning good" based on "blood tests over the years." (Id.) He does not cite to or submit copies of these blood tests. Moreover, the Defendants do not dispute that Walker's kidneys were functioning up to the point that they failed. The question is whether there is any evidence that (1) the Toredol caused Walker's kidney failure, (2) Dr. Kanter knew of the risk that Walker's kidneys would fail if he were prescribed Toredol, and (3) deliberately disregarded that risk. Walker fails to present any evidence, aside from conclusory allegations, that any of these assertions are true. There is no evidence that Dr. Kanter chose Toredol as a course of treatment for Walker's migraines and neck pain in conscious disregard of an excessive risk to Walker's health. Therefore, it is not

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possible that Dr. Kanter's conduct could be constituted deliberate indifference. The Court must dismiss Dr. Kanter from this action. Defendant Charles Ryan was the acting Director of the ADC when he received Walker's request to be placed on the kidney transplant list. The record shows that Ryan appropriately responded to Walker's appeal by directing him to consult with his local health provider at the prison to determine whether it was medically necessary. As the paperwork shows, Walker demanded in his grievance to be placed on the kidney transplant list as compensation for being given the Toredol injections, which he believed had caused his kidney failure. Walker had made no attempt to consult with an ADC physician to determine whether being placed on the kidney transplant list was appropriate under the circumstances. Ryan did not absolutely reject the proposal. He merely directed Walker to consult with ADC medical personnel. III. Conclusion Based on the foregoing and Defendants' Motion for Summary Judgment (Dkt. 45), Defendants Kanter and Ryan must be dismissed from this lawsuit. RESPECTFULLY SUBMITTED this 20th day of January, 2006. Terry Goddard Attorney General s/J. Randall Jue J. Randall Jue Assistant Attorney General Attorneys for Defendant

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Original e-filed this 20th day of January, 2006 to: Clerk of Court United States District Court 401 West Washington Phoenix, AZ 85003 Copy of the foregoing mailed this same date to: David Ray Walker 346 N. 15th Street Phoenix, AZ 85006 Plaintiff Pro Se A. Palumbo Secretary to: J. Randall Jue IDS04-0205/RMG04-20391 942900

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