(PC) Odom v. Taylor

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RYAN BIGOSKI ODOM, Case No. 1:20-cv-01120-KES-CDB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANTS’ MOTION FOR 13 v. SUMMARY JUDGMENT 14 J. TAYLOR, et al., (Doc. 42) 15 Defendants. 14-Day Deadline 16 17 Plaintiff Ryan Bigoski Odom is a state prisoner proceeding pro se and in forma pauperis 18 in this civil rights action. This action proceeds on Plaintiff’s Eighth Amendment deliberate 19 indifference to serious medical needs claims against Defendants Taylor, Khoo, Attinello, 20 Ezenwugo, Mitchell and Singh. 21 I. INTRODUCTION 22 On August 28, 2024, Defendants filed a motion for summary judgment concerning the 23 merits of Plaintiff’s claims. (Doc. 42.) The motion included a Rand1 warning (Doc. 42-3), 24 addressing the requirements concerning an opposition to a motion for summary judgment. 25 On October 3, 2024, the Court issued its Order to Show Cause (OSC) Why Sanctions 26 Should Not Be Imposed for Plaintiff’s Failure to File an Opposition or Statement of Non- 27 Opposition to the summary judgment motion. (Doc. 43.) Plaintiff was directed to show cause in 1 writing within 14 days why sanctions should not be imposed for her failure to respond to 2 Defendants’ summary judgment motion, or, alternatively, to file an opposition or statement of 3 non-opposition to Defendants’ motion for summary judgment. (Id. at 2-3.) 4 On October 11, 2024, Plaintiff filed a document titled “Decleration,” docketed as an 5 opposition to the motion for summary judgment. (Doc. 44.) Defendants filed the Declaration of 6 Eric Miersma in Response to Plaintiff’s Declaration re Defendants’ Motion for Summary 7 Judgment (Doc. 45) on October 24, 2024. 8 On October 28, 2024, the Court issued its Order Discharging Order to Show Cause, Order 9 Denying Request to Reopen Discovery, and Order Granting Extension of Time Within Which to 10 File Opposition to Motion for Summary Judgment. (Doc. 46.) In relevant part, Plaintiff was 11 granted an additional 30 days, from the date of service of the order, within which to file an 12 opposition to Defendants’ summary judgment motion. (Id. at 5-6.) 13 Plaintiff did not file an opposition to Defendants’ motion for summary judgment and the 14 time to do so has passed. Thus, because a reply is unnecessary, the Court deems the motion 15 submitted. Local Rule 230(l). 16 II. APPLICABLE LEGAL STANDARDS 17 Motions for Summary Judgment 18 Summary judgment is appropriate when it is demonstrated that there “is no genuine 19 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 20 Civ. P. 56(a). Washington Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). A 21 party asserting that a fact cannot be disputed must support the assertion by “citing to particular 22 parts of materials in the record, including depositions, documents, electronically stored 23 information, affidavits or declarations, stipulations (including those made for purposes of the 24 motion only), admissions, interrogatory answers, or other materials....” Fed. R. Civ. P. 25 56(c)(1)(A). 26 Summary judgment should be entered, after adequate time for discovery and upon motion, 27 against a party who fails to make a showing sufficient to establish the existence of an element 1 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an 2 essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” 3 Id. If the moving party meets its initial responsibility, the burden then shifts to the opposing party 4 to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. 5 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 6 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 7 of their pleadings but is required to tender evidence of specific facts in the form of affidavits, 8 and/or admissible discovery material, in support of its contention that the dispute exists or shows 9 that the materials cited by the movant do not establish the absence of a genuine dispute. See Fed. 10 R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the 11 fact in contention is material, i.e., a fact that might affect the outcome of the suit under the 12 governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., 13 Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Further, the opposing 14 party must also demonstrate that the dispute is genuine, i.e., the evidence is such that a reasonable 15 jury could return a verdict for the nonmoving party. See Wool v. Tandem Computers, Inc., 818 16 F.2d 1433, 1436 (9th Cir. 1987). In seeking to establish the existence of a factual dispute, the 17 opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient 18 that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ 19 differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of 20 summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there 21 is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory 22 committee's note on 1963 amendments). 23 In resolving the summary judgment motion, the evidence of the opposing party is to be 24 believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the 25 facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 26 U.S. at 587. Nevertheless, “inferences are not drawn out of thin air” and it is the opposing party’s 27 obligation to produce a factual predicate from which the inference may be drawn. See Richards v. 1 Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply 2 show that there is some metaphysical doubt as to the material facts.... Where the record taken as a 3 whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine 4 issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 5 Eighth Amendment Deliberate Indifference to Serious Medical Needs 6 Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a 7 prisoner’s] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need 8 is serious if failure to treat it will result in ‘“significant injury or the unnecessary and wanton 9 infliction of pain.”’” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (9th Cir. 2014) (quoting Jett v. 10 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 11 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 12 Cir. 1997) (en banc)). 13 To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must 14 first “show a serious medical need by demonstrating that failure to treat a prisoner’s condition 15 could result in further significant injury or the unnecessary and wanton infliction of pain. Second, 16 the plaintiff must show the defendants’ response to the need was deliberately indifferent.” 17 Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096 18 (quotation marks omitted)). 19 As to the first prong, indications of a serious medical need “include the existence of an 20 injury that a reasonable doctor or patient would find important and worthy of comment or 21 treatment; the presence of a medical condition that significantly affects an individual’s daily 22 activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 23 1066 (9th Cir. 2014) (citation & internal quotation marks omitted); accord Wilhelm, 680 F.3d at 24 1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (“Examples of serious medical needs 25 include ‘[t]he existence of an injury that a reasonable doctor or patient would find important and 26 worthy of comment or treatment; the presence of a medical condition that significantly affects an 27 individual’s daily activities; or the existence of chronic and substantial pain”). 1 negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or 2 safety.’” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley v. Albers, 475 U.S. 312, 3 319 (1986)). Thus, deliberate indifference is shown where a prison official “knows that inmates 4 face a substantial risk of serious harm and disregards that risk by failing to take reasonable 5 measures to abate it.” Id. at 847. In medical cases, this requires showing: (a) a purposeful act or 6 failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the 7 indifference. Wilhelm, 680 F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not 8 show his harm was substantial; however, such would provide additional support for the inmate’s 9 claim that the defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096, citing 10 McGuckin, 974 F.2d at 1060. 11 Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060 12 (9th Cir. 2004). Although the state of mind for deliberate indifference commonly is characterized 13 as “subjective recklessness,” that standard is “less stringent in cases involving a prisoner’s 14 medical needs ... because the State’s responsibility to provide inmates with medical care 15 ordinarily does not conflict with competing administrative concerns.” Snow v. McDaniel, 681 16 F.3d 978, 985 (9th Cir. 2012) (internal quotations and citations omitted). “Under this standard, the 17 prison official must not only ‘be aware of the facts from which the inference could be drawn that 18 a substantial risk of serious harm exists,’ but that person ‘must also draw the inference.’” Id. at 19 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official should have been aware of the risk, 20 but was not, then the official has not violated the Eighth Amendment, no matter how severe the 21 risk.’” Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). 22 To prevail on a deliberate-indifference claim, a plaintiff must also show that harm resulted 23 from a defendant’s wrongful conduct. Wilhelm, 680 F.3d at 1122; see also Jett, 439 F.3d at 1096; 24 Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002) (prisoner alleging deliberate indifference 25 based on delay in treatment must show delay led to further injury). 26 III. PLAINTIFF’S CLAIMS 27 In the operative second amended complaint, Plaintiff alleges as follows: 1 Plaintiff contends she suffers from osteoarthritis and degenerative joint disease in her left hip, a one and one-half inch length 2 discrepancy in her left hip, scoliosis of her spine, HIV induced neuropathy and carpel tunnel syndrome. She has experienced severe 3 and increasing pain throughout her body during her incarceration at the Central California Women’s Facility (CCWF). 4 Plaintiff alleges all named Defendants knew of her worsening joint 5 and bone pain because she filed several grievances, imaging results were obtained, and assessments performed by the primary care 6 physicians. Plaintiff notes Defendants Mitchell and Singh “have been aware and reviewed [her] medical issues on more than one occasion.” 7 Plaintiff contends none of the named Defendants “did anything to delay the progress” of her disorder, placing her at substantial risk of 8 injury for a total hip replacement at a young age. Plaintiff received a total hip replacement after being sent to a physician for a cortisone 9 injection in August 2019, only to be refused the procedure because the doctor reviewed her x-rays and advised Plaintiff that she had no 10 hip joint the doctor could “inject into.” Orthopedic practitioners who reviewed the “same x-ray images that all 6 defendants have seen” 11 were surprised Plaintiff could even walk. Plaintiff contends her pain was never controlled and the progress of her disorder was never 12 delayed, resulting in her need to have replacement surgery at forty years old. Plaintiff asserts her mobility and function “only worsened, 13 never did it improve.” 14 Plaintiff contends Defendants Taylor, Khoo, Antenello and Eznewugo were aware of “each and every medication” Plaintiff has 15 been prescribed because Plaintiff discussed it with them verbally and referenced the medications in grievances and other medical forms. 16 However, they continued to prescribe the same medications, including two on her “allergy list,” putting Plaintiff at a substantial 17 risk of serious harm. Plaintiff contends Ibuprofen and Naproxen “were definitely medically unacceptable” for her type of pain as she 18 had previously explained to these medical providers that she had been treated with Ibuprofen and Naproxen for several years prior to 19 her incarceration but neither helped any longer. Plaintiff asserts she suffered physical and mental harm because her pain was not 20 controlled. Plaintiff contends she has suffered from severe depression for more than two years, and the Ibuprofen and Naproxen 21 have caused kidney function issues and “put [her] other organs at substantial risk” because she is HIV positive. 22 Plaintiff asserts Defendants Mitchell and Singh both have the 23 authority to grant her the use of a double mattress or egg crate. She contends her disease was significant enough in 2014 or 2015 to 24 justify a double mattress, and that as her disease continues to progress, denials of her requests for a double mattress or egg crate 25 are medically unacceptable. 26 In conclusion, Plaintiff contends her health issues are “discussed daily at the morning medical meetings that all” named Defendants 27 attend and all of her medical issues are known to them. Plaintiff asserts her hip replacement did not address her chronic pain because 1 including her back, and has HIV induced neuropathy and carpal tunnel. 2 3 (See Doc. 21 at 3-5, citations omitted.) The undersigned found: 4 Plaintiff’s allegations satisfy the first, objective prong. Plaintiff suffers from several medical conditions—osteoarthritis and 5 degenerative joint disease in her left hip, a one and one-half inch length discrepancy in her left hip, scoliosis of her spine, HIV induced 6 neuropathy and carpel tunnel—that significantly affect her daily activities. And as the Court has determined in a prior screening order, 7 it is clear Plaintiff’s medical conditions caused her significant pain and were worthy of treatment. 8 Liberally construing the second amended complaint, Plaintiff has 9 plausibly alleged facts to satisfy the second, subjective prong. Her allegations plausibly demonstrate a failure by all named Defendants 10 to respond to Plaintiff’s serious medical needs concerning the progression of her disease and pain control, and further, that 11 Defendants Taylor, Khoo, Antenello and Eznewugo were aware of Plaintiff’s previous adverse and allergic reactions to Ibuprofen and 12 Naproxen or their generic counterparts, subjecting her to substantial risk of harm. 13 As concerns Defendants Mitchell and Singh and Plaintiff’s requests 14 for a double mattress or egg crate, liberally construing the second amended complaint, Plaintiff has plausibly alleged Mitchell and 15 Singh chose to deny her a double mattress and/or egg crate despite having knowledge of her serious medical conditions and the relief 16 either a double mattress or egg crate would have afforded, amounting to a medically unacceptable choice made in conscious disregard of 17 an excessive risk to Plaintiff’s health due to their failure to take reasonable measures to abate that risk. 18 19 (Id. at 6-7.) 20 IV. DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS2 (Doc. 42-4) 21 1. Plaintiff Ryan Odom is a state-prison inmate incarcerated at Central California 22 Women’s Facility (“CCWF”) at the time of the incidents alleged in her SAC. 23 2. In approximately 1989, at the age of 9, Odom broke her left hip on a merry-go-round. 24 2 Because Plaintiff did not file an opposition, she neither admitted or denied the facts set forth by Defendants as undisputed nor filed a separate statement of disputed facts. Local Rule 260(b). A verified complaint in a pro se civil 25 rights action may constitute an opposing affidavit for purposes of the summary judgment rule, where the complaint is based on an inmate’s personal knowledge of admissible evidence, and not merely on the inmate’s belief. Jones v. 26 Blanas, 393 F.3d 918, 923 (9th Cir. 2004); Fed. R. Civ. P. 56(e). Here, because Plaintiff has not complied with Rule 260(b), the Court deems Plaintiff to have admitted those facts not disputed by her complaint or other submissions. 27 See, e.g., Beard v. Banks, 548 U.S. 521, 527 (2006) (“by failing specifically to challenge the facts identified in the defendant's statement of undisputed facts, [plaintiff] is deemed to have admitted the validity of the facts contained in 1 She had 7 surgeries on her left hip between the ages of 9 and 12. Odom states her left 2 leg is now about an inch shorter than her right leg and she uses a shoe insert to 3 compensate. She further states that in 2010, approximately three years prior to arriving 4 at CCWF, she was in a motorcycle accident from which she sustained a traumatic 5 brain injury. 6 3. Odom first entered CCWF on November 13, 2013. 7 4. On December 13, 2013, Odom saw nondefendant Nurse Practitioner Loadholt who 8 performed an intake history and physical examination. NP Loadholt checked the box 9 NKA, meaning no known drug allergies, and then added in parentheses that Odom 10 reported that codeine and morphine gave her stomach cramps and dizziness. NP 11 Loadholt documented “this is intolerance,” or unpleasant side effect, rather than an 12 allergic reaction to medication. 13 5. On January 9, 2014, Odom saw nondefendant Dr. Gonzalez for a Form #602 14 healthcare grievance with six requests: to see orthotics for her leg length discrepancy; 15 to receive pain medication for her left hip; to have a left hip replacement; to receive a 16 double mattress; to receive soft shoes; and to receive an extra blanket. It is unclear 17 why Odom filed a grievance for these items that she had not previously requested nor 18 been denied. Dr. Gonzalez referred Odom to orthotics for her leg length discrepancy 19 and to orthopedic surgery to be evaluated for possible hip replacement. Dr. Gonzalez 20 prescribed Tylenol #3, which is Tylenol plus codeine, to be used as needed for pain. 21 Dr. Gonzalez also documented that Odom “does not meet the criteria for a double 22 mattress, soft shoes, or an extra blanket.” 23 6. On February 6, 2014, Odom saw nondefendant Dr. Romero after submitting another 24 Form #602 healthcare grievance with the same six requests. Dr. Romero noted that the 25 orthotic and orthopedic referrals were in progress, that the pain issue was a duplicate 26 with no answer per the appeals department, and reiterated that Odom did not meet 27 criteria for a double mattress, soft shoes, or an extra blanket. 1 orthopedic consultation. Dr. Galang’s impression was that Odom had “severe 2 degenerative arthritis of the left hip with some shortening. Due to her age, it is best to 3 treat it conservatively. She will need a total hip replacement in the future.” 4 8. On February 12, 2014, Odom was seen in the orthotics department for her left length 5 discrepancy where size 9-1/2 shoes with a left heel lift were ordered. 6 9. On February 19, 2014, Odom saw Defendant NP Ezenwugo for the first time. NP 7 Ezenwugo reviewed the recent orthopedic and orthotic consultations. Odom requested 8 an eggcrate mattress and was once against told there was “no indication at this time.” 9 In response to Odom’s complaint that the Tylenol #3 was not working for her pain, NP 10 Ezenwugo increased the prescription from 1 tablet twice a day to 2 tablets twice a day. 11 10. Between March 12, 2014, and November 18, 2014, Odom saw medical staff multiple 12 times regarding her orthopedic shoes with heel lift and ultimately refused further 13 appointments with the orthotics department stating that she was “happy with the 14 product” and she was already wearing the proper shoe lifts. During this time period, 15 Odom also made multiple requests for an eggcrate mattress but was denied because 16 there was no indication for one. As noted above, she did not qualify for a double 17 mattress because she was ambulatory with a body mass index of less than 30. Medical 18 staff did grant her request for a wedge pillow and a TENS unit, a machine that uses 19 transcutaneous electrical nerve stimulation in an attempt to block or change one’s 20 perception of pain. 21 11. On July 6, 2015, Odom saw NP Ezenwugo for follow-up of her chronic medical 22 conditions. Regarding her chronic pain, Odom noted nortriptyline, which appeared to 23 have been started for her HIV neuropathy, was causing her to have panic attacks, and 24 she felt that she would do better with an increase in the Tylenol with codeine. NP 25 Ezenwugo obliged that request. 26 12. Between July 14, 2015, and August 10, 2015, Odom saw nondefendant Dr. Harris four 27 times. Dr. Harris changed her medication from nortriptyline to Trileptal, and then 1 Harris referred her for an orthopedic follow-up, but the referral for surgery was denied 2 because of incomplete information. The denial noted, “What conservative treatment 3 has tried in this young patient before considering hip replacement.” 4 13. On August 21, 2015, Odom saw nondefendant Dr. Mudunuri regarding her chronic 5 pain. Odom reported that Tegretol made her dizzy and nauseated and Dr. Mudunuri 6 replaced it with gabapentin. 7 14. Between September 8, 2015, and June 13, 2016, NP Ezenwugo saw Odom multiple 8 times for the denial of her referral to orthopedic surgery and for her chronic pain. NP 9 Ezenwugo informed Odom of the denial and reminded her that when seen by Dr. 10 Galang of orthopedic surgery the prior year he had stated that hip replacement was not 11 indicated at that time due to her age. Odom reported that the gabapentin was helpful 12 for her nerve pain, but not her other pains. In response, NP Ezenwugo first added 13 Salsalate to take as needed for pain, and then changed to Tylenol with codeine at 14 Odom’s request. On June 13, 2016, Odom reported that she did “not want any further 15 pain control” and requested a referral to the orthotics department to adjust her 16 orthotics. NP Ezenwugo referred Odom as requested. 17 15. On July 19, 2016, Odom was seen in the orthotics department where a new left heel 18 lift was provided. The orthotist also suggested that Odom might benefit from a 19 physical therapy referral. 20 16. On August 2, 2016, Odom saw nondefendant Dr. Dhaliwal regarding her chronic pain. 21 Dr. Dhaliwal noted the recommendation for a physical therapy referral and submitted 22 the order. Dr. Dhaliwal also documented that Odom said she had reported having an 23 allergy to morphine when she was incarcerated, but that she would like that allergy to 24 be removed from her record. Odom stated that morphine caused her to get some 25 nausea and bloating but no other side effects. Dr. Dhaliwal documented that he would 26 remove her listed allergy to morphine at her request after she explained that she did 27 not have any allergic reactions to morphine, just mild side effects. 1 chronic pain, Dr. Khoo confirmed with scheduling staff that Odom was approved for 2 and awaiting her appointment with physical therapy. 3 18. On November 8, 2016, Odom was seen in the physical therapy department at San 4 Joaquin General Hospital. Only brief handwritten notes were returned to her, which 5 indicated plans for her to be seen weekly for 4 weeks. 6 19. On November 22, 2016, Odom saw Dr. Khoo for follow-up. Regarding her chronic 7 left hip pain, Odom reported it as “mild.” On physical exam, Dr. Khoo noted that there 8 was no discrepancy of leg length when Odom was standing up with her orthotic shoes 9 with lifts in place, and no significant tenderness over the left hip area as well as no 10 swelling or redness. Dr. Khoo documented that Odom did not want the medication and 11 the plan was to continue physical therapy and follow-up thereafter. 12 20. On January 3, 2017, Odom saw Dr. Khoo for follow-up after she had been discharged 13 from physical therapy. They discussed that Odom had had significant improvement 14 from physical therapy with good range of motion, strength, and mobility. However, 15 Odom requested adjustments to her orthotics and orthotic shoes, and Dr. Khoo 16 submitted a referral to the orthotics department. The Orthotics department measured 17 Odom for new orthotics on January 17, 2017. Odom saw Dr. Khoo for a follow-up on 18 February 2, 2017, and had no complaints. On February 21, 2017, Odom’s orthotics 19 were delivered to her, and it was documented that the fit and function were good. 20 21. On May 18, 2017, Odom saw NP Ezenwugo for the final time, for review of her 21 chronic medical conditions. Regarding her chronic left hip and back pain, “patient 22 states her back and left hip no longer bother her since she received insert in her shoe.” 23 Of note, NP Ezenwugo included in this documentation results of recent lab work from 24 March 30, 2017, which included a creatinine of 0.87 mg/dL, consistent with normal 25 kidney function. 26 22. On June 18, 2018, Odom saw Defendant NP Attinello for the first time, for a review of 27 her chronic medical conditions. Regarding her chronic left hip pain, NP Attinello 1 “happy with the lift.” NP Attinello also noted that Odom had been started on the 2 medication duloxetine 20 mg daily for chronic pain and that Odom verbalized a 3 positive response to that medication and requested it be increased. NP Attinello 4 obliged the request, increasing the medication to 20 mg twice a day. 5 23. On November 15, 2018, Odom saw NP Attinello for follow-up of her chronic left hip 6 pain. Odom informed NP Attinello that “she is satisfied with ibuprofen, Tylenol, 7 gabapentin for pain management. She uses TENS unit for her back.” Odom was 8 restarting physical therapy and the plan was to return to clinic when physical therapy 9 sessions were completed. 10 24. On or about April 18, 2019, CCHCS issued a memorandum stating that the 11 Systemwide Pharmacy and Therapeutics Committee reviewed patient safety concerns 12 and noted that recent articles had questioned the safety of gabapentin and urging 13 healthcare providers to limit prescribing gabapentin to its FDA-approved indications, 14 none of which Odom had. 15 25. On May 6, 2019, Odom saw NP Attinello for follow-up of several issues. Regarding 16 her chronic pain, Odom stated that the gabapentin 600 mg three times daily was 17 helpful but felt it was not enough and was asking for an increase in her dose. NP 18 Attinello increased the gabapentin prescription to 800 mg three times a day. 19 26. On May 21, 2019, NP Attinello entered a brief note that states in its entirety: “Patient 20 was placed on line requesting eggcrate and wedge pillow. Patient verbalizes 21 understanding that she does not meet criteria for wedge pillow. She does not have 22 GERD nor is she postsurgical. Eggcrate mattresses are no longer available through the 23 department.” 24 27. In her SAC, Odom complains about her pain medication damaging her kidneys. 25 28. NP Attinello included in her June 18, 2018, documentation the results of recent lab 26 work from April 25, 2018, which included a creatinine of 0.90 mg/dL, as well as a 27 GFR (non African American) of 81 mL/min, both studies consistent with normal 1 including a urine creatinine of 126 mg/dL and urine microalbumin of 0.9 mg/dL. 2 These studies are not diagnostic in and of themselves, but combined into the urine 3 microalbumin/creatinine ratio, it provides useful information regarding the amount of 4 protein the kidneys are spilling into the urine. Here the result was 7mcg/mg creatinine. 5 Any number less than 30 mcg/mg is normal. 6 29. On May 24, 2019, Odom saw NP Attinello for follow-up of her chronic medical 7 conditions. Regarding chronic hip pain, NP Attinello documented that Odom had 8 completed physical therapy, and reported that the pain was controlled with the 800 mg 9 of gabapentin three times daily. NP Attinello continued the gabapentin but instructed 10 Odom to “stop ibuprofen related to microalbuminuria.” This appears to be based on 11 labs from May 22, 2019, where the urine microalbumin was higher than previous 12 values at 2.9 mg/dL. However, the urine creatinine from this sample was also higher 13 than previous values at 295 mg/dL. Essentially, this indicates that the urine sample 14 was more concentrated, suggesting that Odom was more dehydrated than when she 15 gave previous samples. 16 30. Accounting for the variation attributable to hydration status is the purpose of looking 17 at microalbumin levels in relationship to creatinine levels. In other words, by 18 comparing microalbumin levels to creatinine levels, the urine microalbumin/creatinine 19 ratio adjusts for urine concentration, making the measurement more reliable. When 20 done so here, the result is 10 mcg/mg, once again well below the normal range of less 21 than 30. NP Attinello’s apparent misinterpretation of this elevation in urine 22 microalbumin levels as indicative of kidney damage, when in fact there was none, and 23 subsequent discontinuation of ibuprofen, appears to be the basis of Odom’s erroneous 24 claim on page 9 of her Second Amended Complaint that ibuprofen caused her kidney 25 function to be impaired. 26 31. Dr. Feinberg generated a flowsheet for Odom's urine microalbumin to creatinine ratios 27 from the relevant date range of January 1, 2013 through October 7, 2021. These values 1 Feinberg similarly generated a flowsheet for Odom’s creatinine levels, the most 2 commonly used marker of kidney function, where the normal range is between 0.5 and 3 1.1, during the same relevant timeframe. Odom's values ranged from 0.79-0.99, once 4 again all well within the normal range. 5 32. On June 25, 2019, Odom saw NP Attinello for the final time. On physical 6 examination, NP Attinello noted that Odom “maneuver at [sic] up and off the 7 examination table independently and without apparent difficulty.” NP Attinello 8 performed measurements of the distance from Odom’s trochanters to her lateral 9 ankles, and determined that the lengths were equal bilaterally, which Odom 10 determined was “inconsistent with the patient’s notion that she has leg length 11 discrepancy.” Whether or not this determination was correct, NP Attinello does not 12 appear to have withdrawn any treatment in response, nor otherwise adversely affected 13 Odom. Rather, NP Attinello ordered new x-rays of Odom’s hips and referred Odom 14 back to physical therapy. NP Attinello did discuss with Odom tapering off of 15 gabapentin “related to its poor safety profile and statewide mandates." This appears to 16 refer to the CCHCS memorandum discussed above. NP Attinello documented that 17 Odom agreed with tapering off the gabapentin, and requested to retry the pain 18 medication Naprosyn, which NP Attinello obliged. 19 33. On July 5, 2019, Odom saw Defendant Dr. Taylor for the first time. This visit was 20 primarily for Odom’s complaints of left hand and left big toe cramping and numbness. 21 Odom did not raise any issues regarding her left hip osteoarthritis and pain though Dr. 22 Taylor noted it could be one of many causes of Odom’s left toe numbness. Dr. Taylor 23 treatment plan was to consider physical therapy and/or new shoe inserts. 24 34. On July 9, 2019, Odom saw Dr. Taylor specifically for follow-up of her chronic left 25 hip pain. Dr. Taylor created and reviewed a more detailed history of Odom’s chronic 26 hip pain and noted that a steroid injection had not yet been tried. Dr. Taylor submitted 27 a referral to orthopedic surgery for further evaluation of her chronic left hip pain, 1 Thus, four days after first seeing Odom, Dr. Taylor referred her to an orthopedic 2 surgeon. 3 35. On July 11, 2019, Defendant Dr. Singh approved the above request for an orthopedic 4 surgery consultation. 5 36. On July 25, 2019, Odom saw nondefendant Dr. Castonguay for an orthopedic surgery 6 consultation. Dr. Castonguay listed as Odom’s chief complaint “new patient here for 7 left hip pain.” After obtaining a history of Odom’s left hip condition, and performing a 8 physical examination noting that Odom’s “left leg is minimally shorter” than her right 9 leg, Dr. Castonguay recommended that Odom be referred “to a tertiary care center for 10 total hip replacement of the left hip. She has had at least 7 surgeries for this hip and 11 will need specialty care for replacement.” Dr. Castonguay did not document any 12 opinion regarding a possible left hip injection. 13 37. Between August 6, 2019, and September 20, 2019, Odom saw Dr. Taylor multiple 14 times. Dr. Taylor changed her pain medication to Lyrica, and noted the referral for 15 tertiary care for her hip. Dr. Singh initially denied the request tertiary care requesting 16 more information, but on September 20, 2019, granted the request after Dr. Taylor 17 provided more information. 18 38. On October 9, 2019, Odom was seen by Dr. Ellis in the orthopedic surgery clinic at 19 the Riverside University Health System for the above requested tertiary care center 20 evaluation for possible total hip replacement. After obtaining a history of Odom’s left 21 hip and performing a physical exam, Dr. Ellis diagnosed Odom with posttraumatic 22 osteoarthritis of the left hip. Dr. Ellis recommended a total hip replacement. 23 39. On October 22, 2019, Odom saw Dr. Taylor for follow-up. Dr. Taylor reviewed the 24 above orthopedic surgery recommendation and submitted a request for total hip 25 replacement. At Odom’s request, Dr. Taylor also began tapering her off of the Lyrica. 26 40. On November 6, 2019, the total hip replacement was approved, and on November 18, 27 2019, Dr. Taylor began a trial of carbamazepine 200 mg twice daily for her chronic 1 41. On December 4, 2019, Odom was seen by Dr. Ellis in the orthopedic surgery clinic at 2 the Riverside University Health System for follow-up after approval of total hip 3 replacement surgery. A preoperative assessment was scheduled for December 19, 4 2019, and the total hip replacement surgery was planned for December 30, 2019. 5 However, Odom refused to go to the preoperative assessment because her children 6 were coming to visit her, and she wanted to schedule the surgery for after the holidays. 7 The preoperative assessment took place on January 9, 2020, and the total hip 8 replacement surgery took place on January 27, 2020. 9 42. Between February 5, 2020, and February 19, 2020, Odom left the prison for weekly 10 follow-up appointments at Riverside University Health System and continued to 11 recover well. 12 43. On June 5, 2020, Odom was seen in the orthopedic surgery clinic at the Riverside 13 University Health System for postoperative follow-up. Staff there felt that she was 14 continuing to do well five months after surgery. Odom was discharged from the 15 orthopedic surgery clinic at the Riverside University Health System. 16 44. On April 9, 2021, Odom saw Dr. Lee for an initial addiction medicine consultation. 17 Odom reported that she had been using heroin for the past 11 years, and that her last 18 use was the prior day. Dr. Lee diagnosed her with severe opioid use disorder and 19 began treatment with Suboxone. 20 45. On May 10, 2021, Odom saw nondefendant Dr. Garcia for a few issues including a 21 request for an eggcrate mattress. Dr. Garcia advised Odom that there was no Durable 22 Medical Equipment order for eggcrate mattresses and medical staff did not provide 23 those anywhere in the CDCR system. Odom acknowledged this indicating she was 24 aware because she had read Title 15. Odom further indicated that she no longer needed 25 an eggcrate mattress because she had been provided with a different mattress from 26 custody staff that was “working great for her.” 27 46. Dr. Feinberg found no documentation of any involvement of Defendant Mitchell in 1 on August 10, 2015, where Dr. Feinberg was unable to ascertain the signature. 2 However, it is medically acceptable and appropriate for a supervisor to deny a referral 3 when incomplete justification is given, as was the case there as well as when Dr. Singh 4 similarly denied an incomplete referral on September 3, 2019. It is for just such 5 reasons that supervisor approval is required for referrals. 6 47. Based upon Dr. Feinberg’s review of the medical records, and his training and 7 experience, it is his professional opinion that Defendants were not deliberately 8 indifferent to her serious medical needs related to hip osteoarthritis. It is his 9 professional opinion that Defendants provided Odom with timely, judicious, and 10 medically appropriate care responsive to her medical needs. 11 48. Odom sued Defendant Dr. Taylor because she did not like telemedicine and disagreed 12 with her about getting a cortisone shot. 13 49. Odom sued Dr. Singh because he was in a supervisory position as the Chief Medical 14 Executive, and specifically because she believed he was on the Reasonable 15 Accommodation Panel that denied her request for egg crate mattress and/or double 16 mattress. Dr. Singh had no direct contact with Odom. 17 50. Odom sued Chief Medical Officer Dr. Mitchell because she claims he examined her 18 hip on one occasion in 2018, but did not make any changes to her care. 19 (See Doc. 42-4 (UDF).) 20 V. DISCUSSION 21 Defendants contend Plaintiff cannot prove they were deliberately indifferent to her serious 22 medical needs. (Doc. 42 at 15-16.) Specifically, they argue their collective care of Plaintiff’s hip, 23 pain medication, and the denial of an eggcrate mattress were medically appropriate. (Id. at 16-19.) 24 Moreover, individually, none of the Defendants were deliberately indifferent to Plaintiff’s serious 25 medical needs. (Id. at 19-21.) Lastly, Defendants contend they are entitled to qualified immunity. 26 (Id. at 21.) As noted above, Plaintiff did not file an opposition to Defendants’ motion. 27 Defendants do not argue that Plaintiff fails to meet the first objective prong of the 1 action is the second subjective prong of the deliberate indifference test—whether Plaintiff has 2 demonstrated a purposeful act or failure to respond to her pain or possible medical need by 3 Defendants and harm caused by the indifference. Wilhelm, 680 F.3d at 1122. 4 Here, Defendants have presented evidence that each of the named Defendants responded 5 to Plaintiff’s medical needs consistently and appropriately, and that there is no evidence Plaintiff 6 suffered harm as a result of any indifference by Defendants, demonstrating there is no genuine 7 dispute as to any material fact. Fed. R. Civ. P. 56(a). Thus, the burden shifts to Plaintiff as the 8 non-moving party to establish that a genuine issue as to any material fact actually does exist. 9 Matsushita, 475 U.S. at 586. Plaintiff has failed to do so; aside from the allegations of her 10 complaint, she has tendered no evidence to support her claims in this action. Fed. R. Civ. P. 56(c); 11 Matsushita, 475 U.S. at 586 n.11. 12 In short, the assertions in Plaintiff’s second amended complaint do not establish the 13 existence of any factual dispute. Fed. R. Civ. P. 56(c); Beard, 548 U.S. at 527; McElyea, 833 F.2d 14 at 197-98. And Plaintiff has completely failed to offer proof concerning one of the essential 15 elements of her Eighth Amendment deliberate indifference to serious medical needs claims. 16 Celotex, 477 U.S. at 322. 17 The Court briefly summarizes the evidence offered by Defendants. The Declaration of Dr. 18 B. Feinberg provides nearly all evidentiary support for Defendants’ UDFs. Dr. Feinberg serves as 19 the Chief Medical Consultant for the California Correctional Health Care Services (CCHCS) 20 Office of Legal Affairs. (Doc. 42-1, ¶ 3.) He has held the position since February 2017 and 21 regularly reviews medical records and medical procedures related to medical treatment in the 22 correctional setting. (Id.) Dr. Feinberg is familiar with the standard of care and skill ordinarily 23 exercised by reputable members of the medical profession providing medical care to patients in 24 CDCR prisons. (Id., ¶ 5.) Dr. Feinberg was asked to review Plaintiff’s medical records and to 25 provide his medical-expert opinion concerning her claims that Defendants were deliberately 26 indifferent to her serious medical needs related to hip osteoarthritis. (Id., ¶ 7.) His opinion is 27 based upon his review of Plaintiff’s second amended complaint, her deposition testimony, and his 1 analysis of the medical records3 maintained by CCHCS. (Id., ¶ 8.) In Dr. Feinberg’s opinion, 2 Plaintiff’s claim that Defendants were deliberately indifferent to her serious medical needs related 3 to his osteoarthritis is not supported by the medical record and that Defendants provided Plaintiff 4 with timely, judicious, and medically appropriate care responsive to her needs. (Id., ¶ 82.) The 5 undersigned finds it appropriate to quote the following directly from Dr. Feinberg’s declaration: 6 Odom claims on page seven of her Second Amended Complaint that “none of the defendants did anything to delay the progress of my 7 disorder which placed me at a substantial risk by having to have a total hip replacement at an early age when several orthopedic doctors 8 explained to me that a total hip replacement normally is done at a much later/older age due to the lifespan of the artificial joint and the 9 risk of having to have repeat surgeries.” However, Odom provides no evidence to support her apparent belief that the course of 10 treatment provided by Defendants did not in fact delay the progression of her left hip osteoarthritis, does not explain what 11 alternative course of treatment she believes could or should have been done to further delay the progression of her left hip 12 osteoarthritis, nor provide any evidence supporting such alternative treatments. While Odom is correct that most total hip replacements 13 are done at older ages, that is because most total hip replacements are done for the wear-and-tear osteoarthritis that occurs over a lifetime 14 of use. Posttraumatic osteoarthritis, as Odom had, makes up a much smaller percentage of hip replacements, even small still those like 15 Odom who had such trauma in childhood with multiple subsequent surgeries. Total hip replacement at an early age was inevitable for 16 Odom. Nonetheless, on the same page of her complaint where Odom takes exception to the early age at which she had her total hip 17 replacement, she also takes exception to waiting several years for surgery rather than having it done at an even younger age. Yet this 18 was precisely the reasons Odom noted regarding the lifespan of artificial joints and risks of repeat surgeries. More importantly, this 19 was at the recommendation of orthopedic surgeon Dr. Galang, who on February 11, 2014 advised that “Due to her age, it is best to treat 20 it conservatively. She will need a total hip replacement in the future.” Thus, in 2014, an orthopedic surgeon could already tell that Odom, 21 who was only 34 years old at the time, would need a total hip replacement, just not at that time. In 2019, when an orthopedic 22 surgeon advised that it was now time for the total hip replacement, it was approved and performed, with good results per the surgeons. 23 Odom further claims, on page nine of her Second Amended 24 Complain, that she was prescribed improper pain medications which did not provide her relief. Odom claims that she was prescribed 25 medications that were on her “allergy list.” While this is technically true, it is only because Odom erroneously claimed to have an allergy 26 to these medications when in fact she was repeatedly informed by Defendants and Nondefendants alike that her reactions to codeine 27 and/or morphine were side effects of the medications and not allergic 1 reactions. Odom also claims that naproxen and ibuprofen did not give her relief and caused her to suffer damage to her kidneys. As 2 explained in paragraph 52 above, this appears to stem from NP Attinello’s apparent misinterpretation of kidney tests, which in fact 3 were normal for the entire relevant time period showing no evidence of any kidney damage whatsoever. Moreover, while this 4 interpretation of lab values was incorrect, it by no means would indicate any conscious disregard of any excessive risk to Odom’s 5 health. Rather, NP Attinello’s subsequent discontinuation of these medications demonstrated due diligence in response to a perceived 6 risk to Odom’s kidneys. Furthermore, when NP Attinello began tapering Odom off gabapentin on June 25, 2019, in response to the 7 April 18, 2019 memorandum regarding gabapentin, Odom requested to be placed back on naproxen, suggesting that she had previously 8 found it provided rel9ief. Moreover, there were often long stretches of time, such as from mid-2016 through late-2018, when Odom 9 reported minimal if any pain not well-controlled with her treatment plan. Defendants provided Odom with a large number of different 10 pain medications. It is unclear what other pain medications Odom feels Defendants should have prescribed. It is difficult to assess the 11 subjective complaint of pain in any patients. The treatment of pain is also notoriously difficult in an individual with severe opioid use 12 disorder, such as Odom, who was regularly using illicit heroin during the relevant time period. Unfortunately, Odom withheld that 13 information from Defendants, which could have allowed them to treat her for that condition. Doing so in turn would likely have 14 improved her overall subjective experience of pain. 15 Lastly, Odom claims on page nine of her Second Amended Complaint that she was improperly denied her requests for a double 16 mattress and/or eggcrate mattress. Yet she provides no evidence to show that she had any medical indication for such accommodations. 17 Rather, she was repeatedly informed by Defendants and Nondefendants alike that she had no such medical indication. 18 Moreover, on May 10, 2021, several months before Odom filed her Second Amended Complaint, Odom reported being aware that 19 eggcrate mattresses ware not provided by medical staff after having read Title 15. 20 21 (Doc. 42-1 at 15-17, ¶¶ 83-85.) Defendants’ UDF Nos. 2 (partial), 3 through 26, and 28 through 22 47, are supported by the evidence supporting Defendants’ motion. Further, Plaintiff’s deposition 23 testimony of March 26, 2024, supports UDF Nos. 2 (partial), and 48 through 50. (See Doc. 42-2, 24 Ex. A.) 25 Simply put, there is no genuine dispute of material fact as concerns the appropriateness of 26 medical care afforded to Plaintiff for treatment of her left hip, the pain medication prescribed, or 27 the denial of an eggcrate mattress. Farmer, 511 U.S. at 835, 847; Estelle, 429 U.S. at 104; Wilhelm, 680 F.3d at 1122; Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986). Plaintiff’s 1 dissatisfaction or difference of opinion concerning the treatment afforded by Defendants does not 2 establish Defendants were deliberately indifferent to her serious medical needs. Sanchez v. Vild, 3 891 F.2d 240, 242 (9th Cir. 1989) (prisoner’s mere disagreement with diagnosis or treatment does 4 not support a claim of deliberate indifference). Plaintiff has not demonstrated, nor does it appear 5 she could demonstrate, that Defendants knew of and disregarded an excessive risk to her health 6 and safety. Toguchi, 391 F.3d at 1057. See, e.g., Saddozai v. Arqueza, No. 18-cv-03972 BLF 7 (PR), 2023 WL 4206069, at *10 (N.D. Cal. June 26, 2023) (“Based on the evidence presented, 8 Defendant has shown that there is no genuine issue of material fact with respect to Plaintiff’s 9 deliberate indifference to serious medical needs claim. Having filed no opposition, Plaintiff has 10 failed to point to specific facts showing that there is a genuine issue for trial, or identify with 11 reasonable particularity the evidence that precludes summary judgment. Accordingly, Defendant 12 is entitled to judgment as a matter of law” [citations omitted]); Jaimes v. Barnes, No. 1:14-cv- 13 00952-LJO-SAB (PC), 2017 WL 1398837, at *7 (E.D. Cal. Apr. 19, 2017) (“It is undisputed … 14 that Dr. Barnes ordered the appropriate diagnostic tests and medication. Therefore, because Dr. 15 Barnes provided reasonable and appropriate treatment …. Dr. Barnes actions in ordering an x-ray 16 and prescribing appropriate pain medication militate against a finding he purposefully ignored, 17 delayed, or failed to respond to Plaintiff’s medical needs. Furthermore, Plaintiff has simply failed 18 to present any evidence that the treatment provided by Dr. Barnes was inadequate or rose to the 19 level of deliberate indifference”); Tillisy v. Baird, No. 2:12-CV-02055-TSZ-BAT, 2013 WL 20 7017957, at *1 (W.D. Wash. Nov. 25, 2013) (“Mr. Tillisy has filed no opposition to defendants’ 21 motions for summary judgment and, because Mr. Tillisy has declined to present any evidence or 22 argumentation to the contrary, defendants’ facts are accepted as undisputed. The Court 23 recommends [granting] defendants’ unopposed motions for summary judgment because they have 24 demonstrated that Mr. Tillisy’s allegations do not entitle him to relief”); Orona v. Calderon, No. 25 C 95-4249 FMS, 1997 WL 61277, at *3 (N.D. Cal. Feb. 6, 1997) (“Because plaintiff has filed no 26 opposition and presented no additional evidence concerning the essential elements of his claims, 27 defendant’s motion for summary judgment is granted”). 1 | genuine issue for trial in this matter. Matsushita, 475 U.S. at 587. Defendants are entitled to 2 | summary judgment.* 3 VI. CONCLUSION AND RECOMMENDATION 4 Based on the foregoing, it is HEREBY RECOMMENDED that: 5 1. Defendants’ motion for summary judgment (Doc. 42) be GRANTED; and 6 2. The Clerk of the Court be directed to enter judgment in favor of Defendants Taylor, 7 Khoo, Attinello, Ezenwugo, Mitchell and Singh. 8 These Findings and Recommendations will be submitted to the United States District 9 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 10 | after being served with a copy of these Findings and Recommendations, a party may file written 11 | objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to 12 | Magistrate Judge’s Findings and Recommendations” and shall not exceed 15 pages without 13 || leave of Court and good cause shown. The Court will not consider exhibits attached to the 14 | Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference the 15 | exhibit in the record by its CM/ECF document and page number, when possible, or otherwise 16 | reference the exhibit with specificity. Any pages filed in excess of the 15-page limitation may be 17 | disregarded by the District Judge when reviewing these Findings and Recommendations under 28 18 | U.S.C. § 636(b)()(C). A party’s failure to file any objections within the specified time may result 19 | in the waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 20 | □□ □□ SO ORDERED. Dated: _ December 3, 2024 | Ww VV KD 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 4 Because the Court has found that Defendants are entitled to judgment on the merits, the Court does not reach Defendants’ alternative argument that they are entitled to qualified immunity. 99.