FINDINGS AND RECOMMENDATIONS TO GRANT IN PART AND DENY IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
(ECF No. 32)
MICHAEL J. SENG, Magistrate Judge.
I. Procedural History
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter proceeds against Defendant Dr. Winfred Kokor on Plaintiff's Eighth Amendment medical indifference claim. (ECF No. 19.)
Before the Court is Defendant's October 20, 2016 motion for summary judgment. (ECF No. 32.) Plaintiff filed an opposition. (ECF No. 38.) Defendant filed a reply (ECF No. 39) and objections to parts of Plaintiff's evidence (ECF No. 40). The matter is deemed submitted pursuant to Local Rule 230(1).
For the reasons set forth below, the Court will recommend that the motion be granted in part and denied in part.
II. Defendant's Evidentiary Objections
Defendant objects to several statements in Plaintiff's declaration and to all of the exhibits attached to the declaration, namely Exhibit A, Plaintiff's administrative and health care appeal records, and Exhibits B through F, Plaintiff's medical records.
To the extent Defendant objects to Plaintiff's exhibits on grounds of authentication and foundation, the objections are unpersuasive. Defendant himself includes many of the same medical records in support of his motion. Nothing about the documents Plaintiff submits calls their authenticity into question. Moreover, Plaintiff may authenticate such documents at trial and need not do so at this stage.
With respect to Defendant's objections to the relevance of the exhibits, the Court finds them relevant to the extent discussed below.
Defendant also objects that the exhibits contain inadmissible expert medical and legal opinions. Defendant does not elaborate on this objection or specify which portions of the records he finds objectionable. The Court will not, in any event, rely on any expert opinions reflected in Plaintiff's medical records in reaching its conclusion.
Most of the statements in Plaintiff's declaration to which Defendant objects consist of Plaintiff's characterization of or opinions about medical treatment rendered by Defendant. The Court will not rely on any such characterizations or opinions in reaching its conclusions here. Accordingly, with one exception discussed below, the Court need not and will not address these objections for the purposes of this motion.
Defendant makes numerous objections to the following statement by Plaintiff: "In response to paragraph 11, plaintiff alleges that morphine was clinically indicated for post-polio pain syndrome by M.D. Nina Willis, UC Davis Appeals Coordinator Pain Management Specialist. See Exhibit." (ECF No. 40 at 2.) Defendant contends that this statement is not relevant, contains inadmissible medical and legal opinion, and that statements made by Dr. Willis constitute inadmissible hearsay.
Only evidence that would be admissible may be considered in ruling on a motion for summary judgment.
Plaintiff is not competent to testify regarding which medications are medically appropriate to treat his condition.
Plaintiff has made no showing that this fact could be presented in admissible form at trial, and thus, that his testimony should be considered for purposes of summary judgment.
Thus, this Court will consider the challenged statement to show only that Plaintiff was prescribed morphine in the past, but for no other purpose.
III. Legal Standard
Any party may move for summary judgment, and a court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Plaintiff bears the burden of proof at trial, and to prevail on summary judgment, he must affirmatively demonstrate that no reasonable trier of fact could find other than for him.
In judging the evidence at the summary judgment stage, a court may not make credibility determinations or weigh conflicting evidence,
IV. Factual Background
Based on the submissions of the parties, the Court finds the following facts to be undisputed unless otherwise noted.
At all times relevant to Plaintiff's complaint, Plaintiff was incarcerated at California Substance Abuse Treatment Facility ("CSATF") in Corcoran, California. Defendant Kokor was a physician and surgeon employed at CSATF.
Plaintiff was diagnosed with poliomyelitis at a young age, although the precise age of diagnosis, which is immaterial here, is disputed. He was also diagnosed with post-polio syndrome in 2006. The condition resulted in left foot deformity and chronic lower back pain. Before he arrived at CSATF, Plaintiff was seen by non-party physician Dr. Nina Willis, who prescribed him morphine and gabapentin. After his arrival at CSATF, however, Plaintiff's medication was discontinued by non-party Physician Assistant Byers. Defendant Kokor did not discontinue Plaintiff's medication, but did serve as Plaintiff's medical provider while Plaintiff was at CSATF from 2011 to 2014; Plaintiff saw Kokor approximately fifteen times for pain and post-polio syndrome symptoms during this period of time.
To treat Plaintiff's post-polio syndrome and the pain associated with it, Kokor prescribed a number of medications, including oxcarbazepine, Cymbalta, Tylenol, Tylenol 3, naproxen, and ibuprofen. Kokor also referred Plaintiff for orthotics and podiatry consultations. Throughout the time Kokor treated Plaintiff, Plaintiff consistently complained of pain in his back and left foot. (ECF No. 38 at 43, 49, 58, 67, 70-74, 111, 116.). Kokor, however, recorded his skepticism regarding Plaintiff's pain several times, noting, for instance, that he "doubt[s] if [Plaintiff] has any real pain," (ECF No. 32 at 28), that he is "[n]ot entirely sure if patient has pain," (ECF No. 32 at 32), and that Plaintiff "is narcotic seeking" (ECF No. 32 at 28). Additionally, Kokor consistently noted that "narcotics are not indicated for his condition." (ECF No. 38 at 49.) However, Plaintiff submits evidence indicating he received morphine for pain while he was hospitalized in Bakersfield in 2014, within the time period Kokor treated Plaintiff. (ECF No. 38 at 142.) Defendant Kokor, however, refused to prescribe Plaintiff morphine or any other opioid medication.
A. Medical Indifference
1. Legal Standard
Deliberate indifference to serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment.
A prison official is deliberately indifferent if he knows that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate it.
An allegation that prison officials deliberately ignored a prisoner's complaint about the ineffective nature of prescribed pain medication and the pain being suffered as a result can, in some circumstances, give rise to a constitutional claim.
2. Serious Medical Need
Although not directly raised in Defendant's motion for summary judgment, there appears to be a dispute between the parties as to whether Plaintiff suffered from a serious medical need. In the declaration submitted in support of his opposition, Plaintiff asserts Defendant Kokor "did not ever believe" Plaintiff was in pain. (ECF No. 38 at 7.) In medical records submitted in support of the motion for summary judgment, Defendant Kokor regularly notes his skepticism about Plaintiff's pain. For instance, Kokor noted that Plaintiff is "narcotic seeking" (ECF No. 32 at 28; ECF No. 38 at 111), that he "doubt(s) if [Plaintiff] has any real pain" (
The issue of whether Plaintiff suffered from a serious medical need cannot be resolved at summary judgment. Plaintiff states that he suffered from extreme pain, and the record—including Plaintiff's medical records, his CDCR health care services request forms, and CSATF patient encounter forms—indicates that Plaintiff regularly complained of severe pain. (ECF Nos. 32, 38.) Defendant, a medical doctor qualified to give medical opinions, states that the pain was at most mild to moderate. (ECF No. 32 at 5.) A jury could credit either interpretation. At the very least, a reasonable juror could conclude that Plaintiff's complaints indicated a serious medical need.
3. Deliberate Indifference
Defendant characterizes Plaintiff's claim as a demand for morphine. Defendant states that Plaintiff's condition is not susceptible to treatment with morphine, that morphine was not indicated, and that his decision to deny morphine was therefore appropriate and not deliberately indifferent. This is, however, an oversimplification of Plaintiff's claim. Plaintiff is not merely asserting that he was improperly denied morphine, but rather that he was denied adequate pain medication and, thus, that Defendant was deliberately indifferent to his serious medical need.
a. Whether Morphine Should Have Been Prescribed
To the extent Plaintiff claims that the denial of morphine constitutes an aspect of his broader medical indifference claim, the Court will recommend summary adjudication in favor of Defendant. Plaintiff argues that morphine was indicated for his back and foot pain. However, as discussed above, he is not qualified to give such a medical opinion and he submits no opinion evidence from a qualified expert or any other evidence, such as that showing other physicians prescribed morphine for this post-polio pain, upon which a reasonable juror could find that morphine was medically indicated. While Plaintiff submits medical records from 2014 to show he received morphine at a hospital in Bakersfield, the records indicate that it was administered for diagnosed chest pain, not for post-polio pain. (ECF No. 38 at 142.) On the other hand, Defendant has presented uncontroverted declaration testimony that morphine was not indicated for Plaintiff's post-polio condition. (ECF No. 32 at 19.) Thus, the Court finds no competent evidence before it upon which a reasonable juror could find that Defendant was deliberately indifferent to Plaintiff's serious medical need by failing to provide morphine.
Accordingly, the Court will recommend that any claim based on the denial of morphine be summarily adjudicated in Defendant's favor.
b. Inadequate Medical Care With Respect to Plaintiff's Pain
With respect to Plaintiff's broader inadequate medical care claim, there is no dispute but that Plaintiff suffered post-polio pain. The issue, then, is whether Defendant's skeptical and limited response to Plaintiff's complaints of such pain was sincere and in good faith or whether it reflected a deliberate indifference to Plaintiff's medical needs. Defendant's motion does not directly address this issue.
Kokor asserts that he "provided Plaintiff with medical care and treatment every time he saw him" and that he was "never deliberately indifferent to any serious medical needs." (ECF No. 32 at 6.) He further asserts that he has "never refused or denied Plaintiff appropriate medical treatment or evaluation." (
As genuine issues of material fact exist as to whether Defendant Kokor was deliberately indifferent to Plaintiff's serious medical needs, the Court recommends that Kokor be denied summary judgment with respect to Plaintiff's claim for medical indifference.
B. Qualified Immunity
The doctrine of qualified immunity protects government officials from civil liability where "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."
The court is "permitted to exercise [its] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand."
Defendants may not be held liable for a violation of a right that is not clearly established at the time the violation occurred.
Qualified immunity shields an official from personal liability where he reasonably believes that his conduct complies with the law.
Because the Court has already determined there are sufficient facts upon which a jury could conclude that Defendant Kokor violated Plaintiff's constitutional rights, the Court considers only the second prong of the qualified immunity test: Whether the right was clearly established at the time of the alleged violation.
Here, the record reveals that Plaintiff consistently complained of pain and Defendant consistently discounted and declined to provide relief for such complaints, effectively ignoring them because he believed Plaintiff was engaged in manipulative, drug seeking behavior. Plaintiff's right to adequate medical care was clearly established at the time of these encounters.
The Court concludes that a reasonable official in Defendant Kokor's position could not believe that such conduct, if found by the trier of fact to have been as Plaintiff characterizes it, would be lawful in light of clearly established law regarding medical indifference.
The Court recommends that Defendant be denied qualified immunity on Plaintiff's Eighth Amendment medical indifference claim.
VI. Conclusion and Recommendation
The allegations and supporting evidence demonstrate that questions of fact remain as to whether Defendant Kokor was deliberately indifferent to Plaintiff's serious medical needs by failing to provide adequate pain medication. However, the Court finds that, to the extent Plaintiff's Eighth Amendment medical indifference claim is based on Defendant's decision not to provide Plaintiff with morphine, Defendant is entitled to summary judgment as to that aspect of Plaintiff's claim.
Accordingly, IT IS HEREBY RECOMMENDED that Defendant's motion for summary judgment (ECF No. 32) be GRANTED in part and DENIED in part.
These findings and recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these findings and recommendations, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal.
IT IS SO ORDERED.