O'Brien v. Saha

[8] 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA [11] 12 KORY T. O’BRIEN, Case No.: 19-CV-1957-JLS (JLB) 13 Plaintiff, ORDER (1) OVERRULING 14 v. PLAINTIFF’S OBJECTIONS, (2) ADOPTING REPORT AND 15 SAJIB SAHA; DAVID CLAYTON; RECOMMENDATION IN ITS and MARGARET DEEL, 16 ENTIRETY, AND (3) GRANTING Defendants. DEFENDANTS’ MOTION FOR [17] SUMMARY JUDGMENT, OR IN 18 THE ALTERNATIVE, SUMMARY ADJUDICATION OF EACH [19] CLAIM OF PLAINTIFF [20] (ECF Nos. 17, 29) [21] 22 Presently before the Court is Defendants Sajib Saha, M.D. (“Dr. Saha”), David 23 Clayton, M.D. (“Dr. Clayton”), and Margaret Deel, M.D.’s (“Dr. Deel”) (collectively, 24 “Defendants”) Motion for Summary Judgment, or in the Alternative, Summary 25 Adjudication of Each Claim of Plaintiff (“Mot.,” ECF No. 17), as well as Plaintiff Kory T. 26 O’Brien’s opposition thereto (“Opp’n,” ECF No. 23) and Defendants’ reply in support 27 thereof (ECF No. 24). Also before the Court is Magistrate Judge Jill L. Burkhardt’s Report 28 and Recommendation (“R&R,” ECF No. 29) advising the Court to grant Defendants’ 1 Motion, as well as Plaintiff’s Objections to the R&R (“Objs.,” ECF No. 30). Having 2 carefully considered Plaintiff’s Complaint (“Compl.,” ECF No. 1), Magistrate Judge 3 Burkhardt’s R&R, the Parties’ arguments, and the law, the Court OVERRULES Plaintiff’s 4 Objections, ADOPTS the R&R in its entirety, and GRANTS Defendants’ Motion. 5 BACKGROUND 6 Magistrate Judge Burkhardt’s R&R contains a thorough, detailed, and accurate 7 recitation of the relevant facts and procedural history. See R&R at 2–24. This Order 8 incorporates by reference the background as set forth therein.1 9 LEGAL STANDARDS 10 I. Report and Recommendation 11 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636 (b)(1) set forth a district 12 court’s duties in connection with a magistrate judge’s R&R. The district court must “make 13 a de novo determination of those portions of the report or specified proposed findings or 14 recommendations to which objection is made,” and “may accept, reject, or modify, in 15 whole or in part, the findings or recommendations made by the magistrate judge.” 28 16 U.S.C. § 636 (b)(1); see also United States v. Raddatz, 447 U.S. 667 , 673–76 (1980); United 17 States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of timely 18 objection, the Court “need only satisfy itself that there is no clear error on the face of the 19 record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s 20 note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)). 21 II. Summary Judgment 22 Under Federal Rule of Civil Procedure 56(a), a party may move for summary 23 judgment as to a claim or defense or part of a claim or defense. Summary judgment is [25] 1 Although Plaintiff disputes the Declaration of Bennett Feinberg, MD (“Feinberg Decl.,” ECF No. 17-5) 26 to the extent it relies on “Defendants[’] assertion that Plaintiff’s pain was adequately controlled by the prescribed medication,” see Objs. at 22, Plaintiff does not appear to take issue with the R&R’s recitation [27] of the relevant facts, which relies extensively on the copies of Plaintiff’s medical records submitted by 28 both Defendants and Plaintiff, as well as documents of which Magistrate Judge Burkhardt took judicial 1 appropriate where the Court is satisfied that there is “no genuine dispute as to any material 2 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); 3 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Material facts are those that may affect 4 the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A 5 genuine dispute of material fact exists only if “the evidence is such that a reasonable jury 6 could return a verdict for the nonmoving party.” Id. When the Court considers the 7 evidence presented by the parties, “[t]he evidence of the non-movant is to be believed, and 8 all justifiable inferences are to be drawn in his favor.” Id. at 255 . 9 The initial burden of establishing the absence of a genuine issue of material fact falls 10 on the moving party. Celotex, 477 U.S. at 323 . The moving party may meet this burden 11 by identifying the “portions of ‘the pleadings, depositions, answers to interrogatories, and 12 admissions on file, together with the affidavits, if any,’” that show an absence of dispute 13 regarding a material fact. Id. (quoting Fed. R. Civ. P. 56(c)). When a plaintiff seeks 14 summary judgment as to an element for which it bears the burden of proof, “it must come 15 forward with evidence which would entitle it to a directed verdict if the evidence went 16 uncontroverted at trial.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 17 474, 480 (9th Cir. 2000) (quoting Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992)). 18 “This is true, even when the party against whom the motion for summary judgment is 19 directed has not filed any opposition.” Cristobal v. Siegel, 26 F.3d 1488, 1495 (9th Cir. 20 1994) (citing Sheet Metal Workers’ Int’l Ass’n. v. Nat’l Labor Relations Bd., 716 F.2d 21 1249, 1254 (9th Cir. 1983). “[W]here no evidence is presented in opposition to the motion, 22 summary judgment should not be granted if the evidence in support of the motion is 23 insufficient.” Hoover v. Switlik Parachute Co., 663 F.2d 964, 967 (9th Cir. 1981) (citations 24 omitted). 25 ANALYSIS 26 Plaintiff’s Complaint under the Civil Rights Act, 42 U.S.C. § 1983 , asserts two 27 claims: (1) deliberate indifference to Plaintiff’s serious medical need in violation of the 28 Eighth Amendment (as to all Defendants), and (2) First Amendment retaliation (as to Drs. 1 Saha and Clayton). See generally Compl. Defendants moved for summary judgment, 2 arguing that (1) there is no evidence that Defendants were deliberately indifferent to 3 Plaintiff’s serious medical needs, see Mot. at 19–22; (2) there is no evidence to support 4 elements two through five of Plaintiff’s retaliation claim, see id. at 22–24; and (3) 5 Defendants are entitled to qualified immunity, see id. at 24–26. 6 Magistrate Judge Burkhardt’s R&R recommends that the Court grant Defendants’ 7 Motion. See R&R at 48. First, the R&R finds that Defendants established that they were 8 not deliberately indifferent to Plaintiff’s serious medical need and that Plaintiff failed to 9 raise a genuine issue for trial on the issue of deliberate indifference, and therefore the R&R 10 recommends that the Court grant Defendants’ Motion as to Plaintiff’s claim for deliberate 11 indifference to his serious medical need. See id. at 40–41. Second, the R&R concludes 12 that Plaintiff failed to raise a genuine issue of material fact that Drs. Saha and Clayton’s 13 alleged actions did not reasonably advance a legitimate correctional goal, and therefore the 14 R&R recommends that the Court grant Defendants’ Motion as to Plaintiff’s retaliation 15 claim. See id. at 46–48. Because Magistrate Judge Burkhardt determined that Plaintiff 16 failed to raise any triable issue of material fact as to his asserted claims, she did not address 17 Defendants’ qualified immunity defense. Id. at 48 n.23. 18 Plaintiff’s Objections are not a model of clarity; however, Plaintiff indicates that 19 “[he] believes that the Magistrate Judge made an error in her understanding of the 20 Plaintiff’s claim and Plaintiff’s objections to Defendant’s Motion for Summary Judgment.” 21 Objs. at 2. As to his Eighth Amendment claim, Plaintiff claims there is a triable issue as 22 to “Defendants [sic] ‘failure to provide continuous and effective pain-relieving medication 23 for prisoner known to have severe chronic pain,’” as well as “Defendants’ ‘persistence in 24 a course of treatment known to be ineffective.’” Id. (citations omitted). Plaintiff contends 25 that Defendants’ treatments for his somatic pain after discontinuing his morphine— 26 including Tylenol (acetaminophen), non-steroidal anti-inflammatory drugs (“NSAIDs”) 27 (ibuprofen, naproxen), epidural steroid injections, Voltaren (diclofenac) gel, camphor28 menthol and/or capsaicin topicals, physical therapy, and cognitive behavioral therapy— 1 were “a continuation of past failed ineffective treatments” that were inappropriate for his 2 pain and/or his other medical conditions. Id. at 5–12. Plaintiff argues that, by June 7, 2019, 3 only Tylenol was prescribed for his somatic pain from his degenerative disc disease 4 (“DDD”). Id. at 12 . 5 As for Plaintiff’s neuropathic leg pain, Plaintiff again disputes whether any of 6 Defendants’ treatments after the discontinuation of his Neurontin (gabapentin)—including 7 Elavil (amitriptyline), Cymbalta (duloxetine), Triliptal (oxcarbazepine), magnetic 8 resonance imaging (“MRI”), and outside hospital visits—were appropriate for his pain 9 and/or other medical conditions. Id. at 13–18. Plaintiff contends that as of July 15, 2019, 10 he was provided “no neurological pain medication.” Id. at 19 . Further, Plaintiff argues 11 that there is a triable issue “as to whether Defendants used a deliberately indifferent policy 12 that deprived the Plaintiff of his constitutional right to receive adequate medical care 13 thereby causing his unnecessary or wanton pain.” Id. at 19–20. 14 As to the retaliation claim, Plaintiff objects to the R&R’s finding that “the Plaintiff 15 failed to raise a triable issue of fact as to the first element . . . with respect to Dr. Saha’s 16 notation of his manipulative behavior,” as he claims that “Defendants did not move for 17 Summary Judgment on the fact that their [sic] was no genuine issue of retaliation based on 18 notations.” Id. at 25 . He also disputes the R&R’s statement “that it was later confirmed 19 that Plaintiff was refusing to take his heart medication.” Id. at 25–26. Plaintiff claims that 20 the fact that he continued having high blood pressure after Dr. Saha ordered for Plaintiff to 21 receive his blood pressure medication from a nurse shows that Plaintiff was not 22 manipulative and thus this notation was false. Id. at 27–28. Plaintiff also objects to the 23 R&R’s conclusion that removal of Plaintiff’s neurological medication served a legitimate 24 penological interest. Id. at 28 . Plaintiff claims that, because Dr. Saha did not start tapering 25 his medication when the issue of safety and security was first brought to his attention, the 26 discontinuation had “no peneological [sic] interest.” Id. at 29–30. 27 The Court reviews de novo those portions of Magistrate Judge Burkhardt’s R&R to 28 which Petitioner objects and reviews for clear error the remainder of the R&R. 1 I. Petitioner’s Objections 2 A. Eighth Amendment Claim 3 Plaintiff asserts that a triable issue of material fact remains as to whether Defendants 4 were deliberately indifferent in failing to provide him with continuous and effective pain5 relieving medication for his severe and chronic somatic pain and persisting in a course of 6 treatment they knew to be ineffective. Objs. at 2. Specifically, Plaintiff argues that, by 7 June 7, 2019, only Tylenol was prescribed for his somatic pain, id. at 12 , and that the 8 various treatments tried after tapering him off his morphine were either inappropriate or 9 treatments he had tried and failed previously, id. at 5–12. 10 Plaintiff also asserts that a triable issue of material fact remains as to whether 11 Defendants were deliberately indifferent in failing to provide him with continuous and 12 effective pain-relieving medication for his severe and chronic neuropathic pain and 13 persisting in a course of treatment they knew to be ineffective. Id. at 2 . Specifically, 14 Plaintiff argues that, as of July 15, 2019, he was provided “no neurological pain 15 medication,” id. at 19 , and that the various treatments tried after tapering him off his 16 gabapentin were either inappropriate or treatments he had tried and failed previously, id. 17 at 13–18. 18 Finally, Plaintiff appears to argue that the April 18, 2019 memorandum outlining the 19 California Correctional Health Care Services (“CCHCS”) policy on gabapentin was an 20 unconstitutional “blanket prohibition” on a medication. Id. at 13–14. 21 1. CCHCS Gabapentin Policy 22 As an initial matter, the Court does not find the CCHCS gabapentin policy to be 23 unconstitutional. While it is true that courts within the Ninth Circuit have ruled that “[a] 24 medication policy is unconstitutional when it is ‘[a] blanket policy denying narcotic pain 25 medication to inmates in the general population regardless of medical need,” on its face, 26 the CCHCS policy in question is not such a policy. Quigg v. Linder, No. 27 CV1700035GFBMMJTJ, 2020 WL 7647372 , at *8 (D. Mont. Nov. 24, 2020) (quoting 28 Franklin v. Dudley, No. 2:07-CV-2259 FCD KJN, 2010 WL 5477693 , at *7 (E.D. Cal. 1 Dec. 29, 2010), adhered to, No. 2:07-CV-2259 KJM KJN, 2011 WL 2493770 (E.D. Cal. 2 June 22, 2011)), report and recommendation adopted, No. CV-17-35-GF-BMM, 2020 WL 3 7258681 (D. Mont. Dec. 10, 2020). 4 The CCHCS gabapentin policy did not deny inmates access to gabapentin regardless 5 of medical need. Rather, it “urge[d] health care providers to limit prescribing gabapentin 6 to its FDA-approved indications as clinically appropriate.” Feinberg Decl. Ex. D. This 7 gave doctors the discretion to continue to prescribe gabapentin for indications other than 8 the FDA-approved indications of partial seizures and postherpetic neuralgia. See id. 9 Plaintiff brings forth no evidence to contradict this plain reading of the policy. 10 Accordingly, the CCHCS gabapentin policy was not an unconstitutional blanket 11 prohibition on inmates’ use of gabapentin. See Quigg, 2020 WL 7647372 , at *9. 12 2. Deliberate Indifference to Plaintiff’s Pain 13 “[A] prison official violates the [Cruel and Unusual Punishments Clause of the] 14 Eighth Amendment when two requirements are met. First, the deprivation alleged must 15 be, objectively, ‘sufficiently serious.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994). 16 Second, Plaintiff must allege the prison official he seeks to hold liable had a “‘sufficiently 17 culpable state of mind’ . . . . [T]hat state of mind is one of ‘deliberate indifference’ to 18 inmate health or safety.” Id. A prison official can be held liable only if he “knows of and 19 disregards an excessive risk to inmate health and safety”; . . . he “must both be aware of 20 facts from which the inference could be drawn that a substantial risk of serious harm exists, 21 and he must also draw the inference.” Id. at 837 . 22 “In order to prevail on an Eighth Amendment claim for inadequate medical care, a 23 plaintiff must show ‘deliberate indifference’ to his ‘serious medical needs.’” Colwell v. 24 Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (quoting Estelle v. Gamble, 429 U.S. 97 , 25 104 (1976)). “Deliberate indifference ‘may appear when prison officials deny, delay or 26 intentionally interfere with medical treatment, or it may be shown by the way in which 27 prison physicians provide medical care.’” Id. (quoting Hutchinson v. United States, 838 28 F.2d 390, 394 (9th Cir. 1988)). A claim of medical malpractice or negligence, without 1 more, is insufficient to make out a violation of the Eighth Amendment. McGuckin v. Smith, [2] 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. 3 v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). Nor does a simple difference of 4 opinion between a prisoner and prison medical authorities regarding proper treatment rise 5 to the level of deliberate indifference. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 6 1981). 7 Although Defendants provide ample evidence that Plaintiff showed no outward signs 8 of severe pain—see, e.g., CDCR 00032–33, CDCR00056, CDCR 00100–01, CDCR 9 00106–09, CDCR 00116–17, CDCR 00124–25, CDCR 00135–37—Plaintiff provides at 10 least some evidence that treating physicians may have perceived him to be in pain—see, 11 e.g., CDCR 00128–29 (July 31, 2019 Tri-City Medical Center Emergency Department 12 Report indicating a diagnosis of “acute on [sic] chronic low back pain” and “moderate L513 S1 degenerative disc disease,” and showing Plaintiff was administered medication at the 14 hospital to treat his pain). He also provides substantial evidence of his own subjective 15 complaints of pain. See, e.g., Opp’n Ex. C at 96–119, 123–60. “In resolving summary 16 judgment motions, a court must not weigh the evidence, make credibility determinations, 17 or draw inferences from the facts adverse to the non-moving party.” His & Her Corp. v. 18 Shake-N-Go Fashion, Inc., 572 F. App’x 517, 518 (9th Cir. 2014) (citing Anderson v. 19 Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Thus, for purposes of the present Motion, 20 the Court accepts that Plaintiff experienced chronic somatic and neuropathic pain. 21 However, even accepting that Plaintiff was in pain and viewing the evidence and 22 any inferences drawn therefrom in the light most favorable to Plaintiff, the Court finds that 23 no reasonable juror could find that Defendants were deliberately indifferent to Plaintiff’s 24 chronic pain. As an initial matter, it is undisputed that numerous comorbidities are noted 25 in Plaintiff’s medical files. Plaintiff’s medical records indicate that he suffered from, 26 among other ailments and past procedures, bipolar depression, a coronary angioplasty, 27 dyslipidemia, fatty liver, gastroesophageal reflux disease (“GERD”), intervertebral disc 28 disorder with radiculopathy of lumbosacral region, lactose intolerance, right foot pain, 1 rotator cuff surgery, and a tear of the right glenoid labrum. See, e.g., CDCR 00126; see 2 also CDCR 00032 (noting that “Patient has multiple comorbidities including fatty liver, 3 coronary artery disease status post angioplasty”). Plaintiff acknowledges many of his other 4 ailments in his briefing. See, e.g., Opp’n at 5 (noting Plaintiff has cardiovascular disease 5 and bipolar disorder); Objs. at 3 (indicating Plaintiff has arthritis in his shoulder and 6 heartburn). 7 It also is undisputed, even if Plaintiff disputes that he in fact had such a history, that 8 a history of illicit drug use is noted in Plaintiff’s medical files. See CDCR 00007 (“Social 9 History” in record from November 2017 appointment noting Plaintiff had history of 10 cocaine, ecstasy, marijuana, and methamphetamine use at a frequency of 3–4 times per 11 week that interfered with work and home); CDCR 00028 (April 25, 2019 message from 12 Chief Physician and Surgeon Ryan Barenchi to Dr. Saha noting Plaintiff’s “[h]istory of 13 polysubstance abuse”). And although Plaintiff argues that his negative serum screen for 14 opiates was erroneous, he offers no evidence to contradict the fact that a negative drug 15 screen appears in his medical records despite the fact that he allegedly was taking 15 mg 16 of morphine twice daily at the time of testing. See CDCR 00030; CDCR 00032. From 17 this, it is reasonable to infer, as Dr. Saha did, that Plaintiff likely was diverting his 18 medication, see CDCR 00032; and Plaintiff provides no evidence from which to draw a 19 contrary inference. 20 It further is undisputed that, because of his comorbidities and drug history, Plaintiff 21 was not a good candidate for certain treatments and medications. For example, Plaintiff’s 22 grievance forms claim that Cymbalta was potentially problematic for his bipolar disorder 23 and heart conditions, treated with blood thinners, see Opp’n Ex. C at 122, 130; as well as 24 his fatty liver, see id. at 128; and his GERD, treated with Prilosec, see id. at 130. Plaintiff 25 further claims that NSAIDs interact with, for example, his low-dose aspirin and blood 26 pressure medication, see Objs. at 7 (citing Ex. at 23, 25, 27); epidural steroid injections are 27 / / / 28 / / / 1 contraindicated in patients with congestive heart failure, see id. at 8 (citing Ex. at 15); 2 Elavil (amitriptyline), a tricyclic antidepressant, is contraindicated in those with 3 cardiovascular disorder, GERD, high blood pressure, and bipolar disorder, see id. at 14 4 (citing Ex. at 17); and Cymbalta can be contraindicated in those with bipolar disorder, see 5 id. at 15 (citing Ex. at 18). Plaintiff’s medical records also note many of these 6 contraindications. See, e.g., CDCR 00106–07 (noting Plaintiff not a candidate for tricyclic 7 antidepressants because of his “ongoing cardiac issues”); CDCR 00106 (noting Plaintiff 8 not a candidate for Lyrica given his history of possible drug diversion); CDCR 00107 9 (noting “[Plaintiff] was advised to avoid naproxen or ibuprofen as patient on dual platelet 10 therapy”); CDCR 00110 (acknowledging Cymbalta was activating Plaintiff’s bipolar 11 disorder). Finally, it is undisputed that, after Plaintiff was transferred to another facility, 12 he was again found to “not [be] a candidate for gabapentin or Lyrica according to CCHCS 13 guidelines.” CDCR 00142. 14 Given Plaintiff’s comorbidities, history of drug abuse, and reasonably suspected 15 drug diversion, even viewing the evidence in the light most favorable to Plaintiff, the Court 16 concludes no reasonable juror could find that Defendants were deliberately indifferent to 17 Plaintiff’s pain in tapering him off morphine and gabapentin and pursuing a variety of other 18 pain treatment options over a period of many months. The Chronic Pain Provider-Patient 19 Agreement/Informed Consent for Opioid Pain Medication Plaintiff signed clearly indicates 20 that “[m]y provider may request urine or blood drug screens from time to time to monitor 21 my use of pain medications.” CDCR 00009. Further, “[i]n the event that these tests 22 indicate that my use of opioids or other medications presents a health risk to myself or to 23 others, my provider may taper and stop the opioid medication.” Id. Plaintiff initialed this 24 paragraph. Id. Plaintiff was administered a serum drug screen consistent with this contract, 25 which showed Plaintiff was negative for opioids despite being prescribed morphine twice [28] 2 The Court notes, however, that there is no indication in Plaintiff’s medical files that he was ever 1 a day. See CDCR 00030, CDCR 00032. And, consistent with the contract, when Dr. Saha 2 decided to taper Plaintiff’s morphine on May 20, 2019, he indicated that this result meant 3 “possible drug diversion which imposes [sic] potential risks to other inmates.” CDCR 4 00032. He also noted that there was no clear indication for continuing morphine, as 5 Plaintiff was “playing soccer regularly without any difficulty” and “currently performing 6 ADLs [activities of daily living] without any objective findings of ADL dysfunction from 7 chronic lower back pain.” CDCR 00032–33. Dr. Saha noted he “[w]ill refer patient to 8 mental health. Consider referral to substance abuse disorder treatment team in future, if 9 patient agrees. Consider physical therapy in future. Will start capsaicin cream as needed. 10 Continue pain medication ibuprofen or naproxen from canteen as needed. Continue to 11 monitor.” CDCR 00033. Dr. Saha further noted that he would “continue gabapentin now 12 and follow patient in 1 month, consider switching gabapentin to other medication.” Id. 13 On May 22, 2019, Dr. Saha indicated in Plaintiff’s medical record that Plaintiff had 14 been referred to mental health for pain management and would be referred to physical 15 therapy for his chronic lower back pain. CDCR 00053. A notation from that day’s visit 16 indicates an “Automatic Refill” for Plaintiff’s gabapentin prescription for 180 days. Id. 17 On May 23, 2019, Plaintiff complained during an appointment with a nurse that the 18 capsaicin cream was not working. CDCR 00056. Dr. Saha saw Plaintiff the following 19 day, and noted he would discontinue the capsaicin cream, but that “[Plaintiff] currently has 20 Voltaren gel.” CDCR 00060. He discussed the potential side effects of NSAIDs and their 21 interaction with aspirin with Plaintiff and noted that “[Plaintiff] declines to start other pain 22 medication including antidepressants Cymbalta or antiseizure medication carbamazepine.” 23 Id. Dr. Saha further ordered an x-ray of Plaintiff’s spine as well as lab work “to rule out 24 any active infection or inflammation,” and gave Plaintiff a walker and mobility vest. Id. 25 He indicated that an MRI might be considered in the future “if pain persist[s] after physical 26 therapy or abnormal x-ray findings.” Id. 27 When Dr. Clayton decided to taper Plaintiff off his gabapentin prescription during a 28 May 29, 2019 appointment, he noted that “[Plaintiff] does not want to go to physical 1 therapy and is adamant about needing narcotics and gabapentin.” CDCR 00101. Dr. 2 Clayton informed Plaintiff that “the alternative approved medications for chronic pain 3 [were] Elavil[,] nortriptyline and Cymbalta.” Id. Plaintiff refused Elavil and nortriptyline, 4 “so we will start Cymbalta at a low dose and titrate up to effect” while “[t]he gabapentin 5 will be tapered off over 2 weeks.” Id. A May 31, 2019 x-ray showed mild L5-S1 arthrosis. 6 CDCR 00102. During a June 7, 2019 appointment, Plaintiff indicated that he was not 7 interested in lower back surgery, and Dr. Saha indicated that “[Plaintiff would] be referred 8 to physical therapy and mental health for chronic pain management.” CDCR 00107. Dr. 9 Saha noted that Plaintiff was not a good candidate for Lyrica because of his history of 10 alleged drug diversion, nor was he a good candidate for tricyclic antidepressants given his 11 cardiac issues. CDCR 00106–07. Dr. Saha noted that Plaintiff should “[c]ontinue Voltaren 12 gel as needed,” “[c]ontinue stretching exercise,” and “[c]ontinue Tylenol as needed.”3 13 CDCR 00108. Plaintiff would tell Dr. Saha “if interested for epidural injection.” Id. 14 Plaintiff saw a psychiatrist, Dr. Rajesh Patel, on June 10, 2019. CDCR 00110. Dr. 15 Patel noted that the Cymbalta appeared to be activating Plaintiff’s bipolar disorder, and he 16 indicated he would send a message to Dr. Saha suggesting that he “look into option of 17 Trileptal or Lyrica for [p]ain” instead. Id. Plaintiff showed up to physical therapy on June 18 12, 2019, but he conveyed that he “feels very strongly that therapy won’t do anything for 19 him.” CDCR 00114. Thus, “[d]ue to patient’s lack of interest in therapy and his knowledge 20 of HEP, further treatment is not warranted at this time.” Id. Dr. Saha saw Plaintiff on June 21 13, 2019, and indicated in response to Dr. Patel’s message that “[Plaintiff] is not a good 22 candidate for controlled substance like Lyrica,” but that, “[d]ue to multiple side effects 23 including hyponatremia will defer Trileptal to psychiatry.” CDCR 001116. Accordingly, 24 Dr. Saha indicated that “[Plaintiff] will be referred to psychiatry again for possible trial of 25 Trileptal.” Id. On June 28, 2019, Plaintiff was told to “[c]ontinue activity modification” [28] 3 Plaintiff was switched from NSAIDs to Tylenol, as he was put on Plavix following a June 1, 2019 1 and “[c]ontinue support with back brace, walker, cane.” CDCR 00122. That same date, 2 “[Plaintiff] was advised to use diclofenac gel for lower back pain,” and Dr. Saha noted he 3 “[would] order MRI lumbar spine as worsening of symptoms with new symptoms tingling 4 numbness in the foot.” Id. Notes from that appointment also indicate Plaintiff had been 5 switched from Cymbalta to lamotrigine. Id. Notes from a July 15, 2019 appointment 6 indicated that there was a “[p]ending MRI lumbar spine.” CDCR 00125. 7 Plaintiff saw a nurse on July 31, 2019 for lower back pain and weakness in his right 8 lower extremity. CDCR 00126. Plaintiff was sent to Tri-City Medical Center to rule out 9 a cord compression. Id. At the Tri-City Medical Center’s Emergency Department, an x10 ray indicated moderate L5-S1 degenerative disc disease. CDCR 00129. Plaintiff was 11 released, with a recommendation of “gabapentin, Elavil, or naproxen for pain.” Id. On 12 August 6, 2019, Plaintiff followed up with Dr. Saha, who reviewed Tri-City’s 13 recommendations with Plaintiff, explaining that “[Plaintiff] is not a candidate for NSAIDs 14 [e.g., naproxen] as patient on dual antiplatelet therapy, increased risk of bleeding.” CDCR 15 00130. Nor was Plaintiff a candidate for Elavil, a tricyclic antidepressant, because of his 16 “history of cardiac disease.” Id. Finally, Dr. Saha concluded that Plaintiff was “not a good 17 candidate for gabapentin” because of the recent memorandum and the history of drug abuse 18 noted in his medical record. Id. Plaintiff’s medical record from that appointment further 19 noted that Plaintiff then became argumentative and left. Id. Dr. Saha noted that there was 20 a “[p]ending epidural cortisone injection”; however, because Plaintiff left before his 21 physical examination, Dr. Saha could not evaluate him for orthopedic shoes. Id. On 22 October 10, 2019, Plaintiff refused the epidural injection, saying he “need[ed an] MRI 23 first” and that he “had [an] epidural in 2017.” CDCR 00140. 24 Plaintiff’s medical records evidence a thoughtful and multidisciplinary approach to 25 his pain management, taking into account CDCR guidelines as well as Plaintiff’s drug and 26 medical history. Despite the limited treatment options available in light of Plaintiff’s 27 medical and drug history, Plaintiff repeatedly refused therapies suggested by Defendants 28 to treat his chronic pain, including an antidepressant like Cymbalta or an antiseizure 1 medication like carbamazepine, see CDCR 00060; nortriptyline, see CDCR 00101; 2 physical therapy, see CDCR 00114; and epidural cortisone injections, see CDCR 00140. 3 Although Plaintiff claims he “tried and failed” some of these treatment options previously, 4 his medical records only note that he “failed NSAIDs, failed trileptal [i.e., oxcarbazepine],” 5 with the reason given being “unimproved,” and provide no further detail as to, for example, 6 when Plaintiff tried these therapies or in whose opinion he failed them. See, e.g., CDCR 7 00053. At any rate, Plaintiff was already not a good candidate for NSAIDs once he started 8 Plavix, at which point he discontinued that treatment. See Feinberg Decl. ¶ 39. 9 Despite the limited treatment options available and Plaintiff’s refusal to try 10 recommended therapies, the compelling evidence brought forth by Defendants does not 11 show, as Plaintiff suggests, that, as of June 7, 2019, only Tylenol was prescribed for his 12 somatic pain. Plaintiff had been instructed to use Voltaren gel for his lower back pain. See 13 CDCR 00060; CDCR 00108; CDCR 00125. Plaintiff was also being monitored by mental 14 health for pain management. See CDCR 00053. The evidence similarly does not support 15 the conclusion, advanced by Plaintiff, that he was provided no medication for his 16 neuropathic pain as of July 15, 2019. Even viewing all facts and inferences in Plaintiff’s 17 favor, his medical records indicate that, as of that date, he was “currently on lamotrigine” 18 in a section discussing his chronic back pain. CDCR 00125.4 And, as of August 6, 2019, 19 Plaintiff was taking oxcarbazepine (Trileptal). See CDCR 00130. Dr. Patel’s message to 20 Dr. Saha indicates that he was recommending Trileptal “for pain control instead of 21 Gabapentin,” and noted that it “also would help with mood stabilization.” CDCR 00113. 22 Further, during a September 26, 2019 appointment, Plaintiff’s practitioner noted in 23 Plaintiff’s record that he was prescribed oxcarbazepine “for mental health,” but that it “also 24 provides some pain relief.” CDCR 00136. 25 “Because defendants attempted to treat plaintiff’s pain, they cannot be said to have 26 been ‘indifferent’ to it,” much less deliberately so, and “[a]lthough plaintiff disagreed with [28] 1 the doctors’ treatment decisions, merely disagreeing does not show a triable issue in 2 support of plaintiff’s claim.” DeGeorge v. Mindoro, No. 17-CV-06069-LHK, 2019 WL 3 2123590, at *7 (N.D. Cal. May 15, 2019). Accordingly, the Court concludes that Plaintiff 4 has failed to raise a genuine issue of material fact to support his claim that Defendants were 5 deliberately indifferent to his serious medical need. The Court therefore OVERRULES 6 Plaintiff’s Objections, ADOPTS the R&R, and GRANTS Defendants’ Motion as to 7 Plaintiff’s Eighth Amendment claim. 8 B. Retaliation Claim 9 1. Notation of Manipulative Behavior 10 Plaintiff objects to the extent the R&R concludes that Dr. Saha’s notation of 11 Plaintiff’s manipulative behavior was not an adverse action, as “Defendants did not move 12 for Summary Judgment on the fact that their [sic] was no genuine issue of retaliation based 13 on notations.” Objs. at 25. He also objects to the extent the R&R concludes “that it was 14 later confirmed that Plaintiff was refusing to take his heart medication.” Id. at 25–26. 15 Plaintiff claims the notation demonstrably is false, as he continued having high blood 16 pressure after Dr. Saha ordered for Plaintiff to receive his blood pressure medication from 17 a nurse. Id. at 27–28. 18 First, reviewing Defendants’ Motion de novo, the Court finds Plaintiff is incorrect 19 in arguing that Defendants did not move for summary judgment on this ground. The 20 Motion clearly seeks “summary judgment on the grounds that there is no genuine issue of 21 material law as to any material fact and Defendants are entitled to judgment as a matter of 22 law.” Mot. at 1. Specific to this argument, the Motion notes that “Plaintiff . . . alleges that 23 in retaliation of his threat of legal action, Defendants [Drs. Saha and Clayton] took the 24 adverse action of discontinuing his morphine and gabapentin prescriptions, and noting his 25 manipulative behavior in the medical file.” Mot. at 22(citing Compl. at 14)) (emphasis 26 added). Defendants claim, however, that “there is no evidence of retaliation for an exercise 27 of Plaintiff’s First Amendment rights.” Id. at 1 . Although Defendants’ analysis focuses 28 on the discontinuation of Plaintiff’s medication, the fact remains that Defendants raised the 1 issue and the fact that the only evidence offered by Plaintiff in support was the allegation 2 in his Complaint, and Plaintiff, who has the burden of proof on this point, failed to bring 3 forth sufficient evidence to establish that a triable issue of material fact exists on this point. 4 Rather, significant evidence supports the conclusion that Dr. Saha reasonably made 5 the notation without any retaliatory motive. Dr. Saha first added the notation of 6 “manipulative behavior” to Plaintiff’s file on May 24, 2019. CDCR 00058. Specifically, 7 Dr. Saha noted that “Patient was using cane, claiming that using cane making his right 8 shoulder hurting [sic]. Patient has been asking to increase his morphine. Patient is very 9 manipulative.” Id. A further note on that date indicated that, “[s]ince decreasing dose of 10 morphine on May 20, 2019 patient has been filing multiple 7362 claiming that his lower 11 back pain is worsening, seen at TTA. Patient mentioned that his blood pressure is high 12 because of lower back pain but suspicion for patient is not taking blood pressure pill, patient 13 is very manipulative.” CDCR 00060. Specifically, Dr. Saha noted that he had a 14 “[s]uspicion patient is not taking blood pressure pill, trying to manipulate the system so 15 that he can get pain medication. Will change blood pressure pill to NA [nurse 16 administered] and will increase his lisinopril from 10 mg to 20 mg.” CDCR 00059. 17 Further, there is significant evidence in the record that Plaintiff was failing to take 18 his blood pressure medication as prescribed, and it is reasonable to infer from these facts 19 that Plaintiff was doing so to obtain pain medication. For example, later that same 20 afternoon, when Plaintiff reported to the pill line, his blood pressure was still elevated. 21 CDCR 00063. Notes from a nurse visit that afternoon indicated that Plaintiff told the nurse 22 that “the severe back pain keeps his BP high.” CDCR 00064. However, the nurse noted 23 that “[r]eview of his MAR shows that is [sic] has not been taking his antihypertensive 24 medications,” and that “[Plaintiff] refused to take lisinopril and carvedilol this morning and 25 this afternoon”; after receiving his nurse-administered evening dose of carvedilol and 26 lisinopril, however, Plaintiff “shows improved BP readings.” CDCR 00064. On June 6, 27 2019, Plaintiff submitted a Health Care Services Request Form indicating, “I am not taking 28 Lisinopril. I am taking Isoserbide and cardiloval for Blood Pressure! Blood Pressure is 1 good. I do not want to lower my Blood Pressure to dangerously low levels, Legal Notice!” 2 CDCR 00105. Notes from an appointment with Dr. Saha the following day indicate: 3 “Patient currently not taking lisinopril for last 1 week. A detailed discussion done 4 regarding importance of lisinopril, patient verbalized understanding. Parameters placed 5 for holding lisinopril.” CDCR 00108. 6 The only “evidence” Plaintiff offers in response is the fact that “[he] is a heart 7 patient. The Plaintiff has suffered a heart attack and would NEVER (emphasis added) put 8 himself at risk of the pain or action of a heart attack by not taking his medication.” Objs. 9 at 26. Even drawing all inferences in favor of Plaintiff, this unsupported statement is 10 insufficient to counter Defendants’ evidence, including a grievance submitted by Plaintiff 11 clearly indicating that Plaintiff was not taking one of his blood pressure medications. See 12 CDCR 00105. How, Plaintiff asks, was his blood pressure still high after the May 24, 2019 13 appointment if the nurses were administering his medications? Objs. at 27. The logical 14 inference is that the nurses were giving, but Plaintiff was not in fact swallowing, his 15 medication, given that the lisinopril was nurse administered at the time Plaintiff himself 16 admitted to not taking the medication. CDCR00101 (noting lisinopril was nurse 17 administered on May 29, 2019); CDCR 00105 (noting not taking lisinopril); CDCR 00107 18 (noting lisinopril nurse administered on June 7, 2019). Accordingly, the Court finds that 19 there is no evidence to support Plaintiff’s claims that the notation that he was manipulative 20 was made in retaliation for Plaintiff exercising his First Amendment rights; rather, the 21 notation appears to have been well supported by the facts available to Plaintiff’s medical 22 providers at the time. 23 2. Legitimate Penological Interest 24 Plaintiff argues that the fact that Dr. Saha did not start tapering Plaintiff off 25 gabapentin when the issue of safety and security was first brought to his attention means 26 that the discontinuation of the gabapentin had “no peneological [sic] interest.” Objs. at 29– 27 30. However, even drawing all facts and inferences in Plaintiff’s favor, the Court 28 disagrees. 1 The CCHCS memorandum outlining the new gabapentin policy was issued on April 2 18, 2019. See Feinberg Decl. Ex. D. On April 25, 2019, Chief Physician and Surgeon 3 Ryan Barenchi sent Dr. Saha a message about Plaintiff titled “Opiate/gabapentin Review,” 4 asking Dr. Saha, “[i]n the spirit of patient safety and to promote safe prescribing practices,” 5 “to consider the above findings in any future decision making regarding” Plaintiff’s opioid 6 and gabapentin prescriptions. See CDCR 00028. The message noted, however, that “[t]he 7 future treatment of this patient will be based on your own clinical judgment.” Id. A serum 8 drug screen performed on April 30, 2019, was negative for opiates in Plaintiff’s system. 9 See CDCR 00030. During Plaintiff’s very next appointment with Dr. Saha on May 20, 10 2019, Dr. Saha decided to taper Plaintiff off morphine, given that “[t]here is no clear 11 indication continuing for [sic] morphine, on the other hand due to negative drug screen test 12 possible drug diversion which imposes potential risks to other inmates.” CDCR 00032. 13 Plaintiff left the appointment before he could be physically examined and said he would 14 take the issue to court. Id. Dr. Saha noted that he “[w]ill continue gabapentin now and 15 follow patient in 1 month, consider switching gabapentin to other medication.” CDCR 16 00033. 17 A notation from a May 22, 2019 visit with Dr. Saha indicates an “Automatic Refill” 18 was placed for Plaintiff’s gabapentin prescription for 180 days. CDCR 00053. However, 19 Plaintiff saw Dr. Clayton on May 29, 2019, at which time Dr. Clayton noted: “I agree with 20 Dr. Saha that neither the morphine or gabapentin is indicated in this patient. Based on my 21 examination he would do well with physical therapy and nonsteroidal anti-inflammatories 22 as needed. He does not want to go to physical therapy and is adamant about needing 23 narcotics and gabapentin.” CDCR 00101. Dr. Clayton indicated that he would taper 24 Plaintiff off gabapentin over a period of two weeks and place Plaintiff on Cymbalta in its 25 place, starting “at a low dose and titrat[ing] up to effect.” Id. Dr. Clayton notes that 26 Plaintiff “became quite irate” and stormed off, and “[Plaintiff] was then overheard 27 discussing strategies with other inmates how to obtain gabapentin and narcotics more 28 effectively while he was leaving the trailer.” Id. 1 This evidence, including the general timeline of events, strongly supports a finding 2 that the tapering of Plaintiff’s gabapentin was supported by a reasonable penological 3 interest—namely, preventing drug diversion and/or abuse in the prison population. See, 4 e.g., Hicks v. Dotson, 73 F. Supp. 3d 1296, 1305 (E.D. Wash. 2014) (“The DOC has a 5 legitimate penological goal in regulating prescription pain medication to avoid drug 6 abuse.”); Joseph v. Clayton, No. 3:19-CV-2139-GPC-RBM, 2020 WL 804863 , at *7 (S.D. 7 Cal. Feb. 18, 2020) (noting that “reducing prescription drug abuse and drug addiction 8 among the prison population” is a legitimate penological interest) (internal quotation marks 9 and citations omitted); Miller v. California Dep’t of Corr. & Rehab., No. 16-CV-0243110 EMC, 2018 WL 534306 , at *18 (N.D. Cal. Jan. 24, 2018) (taking inmate off medication 11 “not appropriate for his medical condition also advances the legitimate penological goal of 12 reducing prescription drug abuse and drug addiction among the prison population”); Juarez 13 v. Butts, No. 215CV1996JAMDBP, 2020 WL 2306850 , at *11 (E.D. Cal. May 8, 2020) 14 (noting that, “even if staff was incorrect to conclude that [plaintiff] intended to abuse his 15 medication, their assessment reflects a legitimate penological interest in preventing drug 16 abuse”) (internal quotation marks and citation omitted), report and recommendation 17 adopted, No. 215CV1996JAMDBP, 2020 WL 3542193 (E.D. Cal. June 30, 2020), order 18 rescinded (July 1, 2020), and report and recommendation adopted, No. 19 215CV1996JAMDBP, 2020 WL 6871062 (E.D. Cal. Nov. 23, 2020); Townsen v. Hebert, 20 No. 313CV00223MMDVPC, 2015 WL 5782036 , at *4 (D. Nev. Oct. 2, 2015) (“Courts 21 have repeatedly recognized inmates’ health and safety as legitimate penological interests.”) 22 (citations omitted). 23 Plaintiff fails to advance any evidence that Defendants’ motivations were instead 24 retaliatory. While Plaintiff advances the “undisputed fact” (which Defendants dispute) that 25 “Defendant’s [sic] acted in a Retaliatory manner,” the evidence Plaintiff cites consists of 26 Defendants’ statements that Plaintiff was “manipulative.” See Opp’n at 44 (citations 27 omitted). But, for the reasons provided supra, the Court finds that there is no evidence that 28 such statements were retaliatory. And while Plaintiff makes much of the 180-day refill of 1 his gabapentin prescription on May 22, 2019, the fact remains that Dr. Saha had already 2 determined he would consider switching Plaintiff’s gabapentin prescription in a month, see 3 CDCR 00033, and it appears that most of Plaintiff’s medications were filled for periods as 4 long or longer, see CDCR 00033 (360-day capsaicin topical cream prescription); CDCR 5 00060 (360-day prescriptions for carvedilol and lisinopril); CDCR 00101 (180-day 6 duloxetine prescription); CDCR 00121 (360-day prescription for clopidogrel). 7 Accordingly, even drawing all facts and inferences in Plaintiff’s favor, the Court 8 finds that no jury could find on the present record that Defendants were not motivated by 9 a legitimate penological interest in tapering Plaintiff off his gabapentin prescription. See 10 Miller, 2018 WL 534306 , at *17–18 (finding no reasonable jury could find in favor of 11 plaintiff on his retaliation claim because, even if the tapering of his pain medication 12 occurred after the alleged protected activity, “[the plaintiff] does not provide any competent 13 evidence to dispute Defendants’ evidence that the reduction and eventual elimination of 14 the morphine reasonably advanced legitimate medical goals”). 15 In light of the foregoing, the Court OVERRULES Plaintiff’s Objections, ADOPTS 16 the R&R, and GRANTS Defendants’ Motion as to Plaintiff’s retaliation claim. 17 II. Remainder of the R&R 18 Petitioner does not object to the remainder of Magistrate Judge Burkhardt’s R&R, 19 including, inter alia, the R&R’s conclusions that Plaintiff has a serious medical need, see 20 R&R at 34–35; that Plaintiff fails to state a retaliation claim against Dr. Saha based on Dr. 21 Saha’s decision to taper his morphine, see id. at 43 ; that Plaintiff fails to state a retaliation 22 claim against Dr. Saha based on Dr. Saha’s notations of his history of drug use, see id. at 23 43–44; that Plaintiff fails to state a retaliation claim against Dr. Saha based on Dr. Saha’s 24 failure to reinstate his gabapentin prescription, see id. at 45–46; and that Plaintiff fails to 25 state a retaliation claim against Dr. Clayton, see id. at 47 ; or the R&R’s granting of 26 Defendants’ Request for Judicial Notice, see, e.g., id. at 10 n.6, 14 n.7, 20 n.12, 21 n.13. 27 Having found no clear error, the Court ADOPTS the remainder of the R&R. 28 / / / 1 CONCLUSION 2 In light of the foregoing, the Court OVERRULES Plaintiff's Objections (ECF No. 3 ADOPTS Magistrate Judge Burkhardt’s R&R (ECF No. 29), and GRANTS 4 Defendants’ Motion for Summary Judgment (ECF No. 17). As this Order concludes the 5 || litigation in this matter, the Clerk of the Court SHALL CLOSE the file. 6 IT IS SO ORDERED. 7 |[Dated: March 15, 2021 (ee on. Janis L. Sammartino United States District Judge