Arellano v. Santos

RAUL ARELLANO, CDCR #AH-1995, Plaintiff, v. Dr. MICHAEL BALBIN SANTOS, Defendant.

No. 3:18-cv-02391-BTM-WVG

United States District Court, S.D. California

November 4, 2021

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO Fed.R.Civ.P. 56

[ECF No. 75]

Honorable Barry Ted Moskowitz United States District Judge

Plaintiff Raul Arellano, currently incarcerated at Richard J. Donovan Correctional Facility (“RJD”) in San Diego California, and proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983, on October 18 2018. See Compl., ECF No. 1.^[1]Plaintiff claims Michael Balbin Santos, a doctor at RJD, violated his First and Eighth Amendment rights by tapering his dosage of Gabapentin-a medication he contends was previously prescribed to treat both his neuropathic pain and seizures-and later threatening to terminate the prescription altogether if he continued to complain about the dosage. See id. at 3-4.

I. Procedural History

Plaintiff is proceeding in forma pauperis, and his repeated motions requesting that the Court grant him preliminary injunctive relief requiring Dr. Santos to renew and increase his dosage of Gabapentin have been denied. See ECF Nos. 6, 10, 13, 40, 49, 52. Nevertheless, the inadequate medical care and retaliation claims alleged in his Complaint have survived Defendant Santos's efforts to dismiss them pursuant to Fed.R.Civ.P. 12(b)(6). See ECF No. 26. Santos now seeks summary judgment pursuant to Fed.R.Civ.P. 56. See ECF No. 75.

The Court has provided Plaintiff with notice of the requirements for opposing summary judgment as required by Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc). See ECF No. 76. After he was granted two extensions of time, see ECF Nos. 82, 84, Plaintiff filed his Opposition on August 3, 2021. See ECF No. 88. On August 11, 2021, Defendant filed his Reply. See ECF No. 89.

Having now carefully considered the full record as submitted, the Court finds Defendant Santos is entitled to judgment as a matter of law with respect to both Plaintiff's First and Eighth Amendment claims, GRANTS Defendant's Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56 (ECF No. 75) and DIRECTS the Clerk to enter judgment accordingly.

II. Defendant's Motion for Summary Judgment

A. Standard of Review

A court may grant summary judgment when it is demonstrated that there exists no genuine dispute as to any material fact, and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The party seeking summary judgment bears the initial burden of informing a court of the basis for its motion and of identifying the portions of the declarations, pleadings, and discovery that demonstrate an absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is “material” if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A dispute is “genuine” as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the nonmoving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102-03 (9th Cir. 2000).

If a moving party fails to carry its burden of production, then “the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion.” Id. But if the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine dispute as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party cannot “rest upon the mere allegations or denials of [its] pleading but must instead produce evidence that sets forth specific facts showing that there is a genuine issue for trial.” See Estate of Tucker, 515 F.3d 1019, 1030 (9th Cir. 2008) (internal quotation marks and citation omitted).

The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before a court must be drawn in favor of the opposing party. See Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). However, “[b]ald assertions that genuine issues of material fact exist are insufficient.” See Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); see also Day v. Sears Holdings Corp., No. 11-09068, 2013 WL 1010547, *4 (C.D. Cal. Mar. 13, 2013) (“Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment.”). A “motion for summary judgment may not be defeated ... by evidence that is ‘merely colorable' or ‘is not significantly probative.'” Anderson, 477 U.S. at 249-50 (citation omitted); see also Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). If the nonmoving party fails to produce evidence sufficient to create a genuine dispute of material fact, the moving party is entitled to summary judgment. See Nissan Fire & Marine, 210 F.3d at 1103.

B. Plaintiff's Medical History & Treatment Record^[2]

Plaintiff claims to suffer from hypertension, diabetes, partial and tonic-clonic seizures, and ongoing pain due to neuropathy and nerve damage to his head and lower back caused by an “excessive force incident” in 2010, a fall from his bunk in 2012, and a suicide attempt in April 2018. See ECF No. 1 at 3; Pl.'s Decl. in Supp. of TRO, ECF No. 3 at 2-3; Pl.'s Dep., Def.'s Ex. 1 in Supp. of Mot. for Summ. J., ECF No. 75-4 at 4-5.

Defendant does not dispute Plaintiff suffers from diabetic neuropathy and has complained of seizures since 2010, but he does not attribute them to any particular cause or incident and claims the “type of seizure[s]” Plaintiff attests to suffer have “never been witnessed by medical staff, ” remain undiagnosed, and have not been confirmed by subsequent EEGs, MRIs, or CT scans of Plaintiff's brain. See ECF No. 75-4 at 4, 6, 14-15, 51-53; Def.'s June 8, 2020 Decl. in Response to Pl.'s 2d Mot. for TRO, ECF No. 36-2 at 2, 3, 4 ¶¶ 3, 10, 12; Def.'s Dec. 12, 2018 Decl. in Response to Pl.'s 1st Mot. for TRO, ECF No. 8-1 at 4 ¶ 9.

For these ailments, from 2011 through 2015, Plaintiff was nevertheless prescribed a host of antiepileptic drugs including Keppra, Dilantin, Lamictal, Depakote, Tegretol, and Lyrica, ^[3] together with various types of pain medications including Naproxen, Ibuprofen, Amitriptyline (Elavil®), and Sulindac, but he claims they all caused “severe side effects” and proved ineffective. See ECF No. 3 at 2; ECF No. 75-4 at 5-6, 9, 12, 39 40; Pl.'s Opp'n to Mot. for Summ. J., ECF No. 88, Ex. A, at 30-43.^[4]

In late 2015 and early 2016, Plaintiff was prescribed Depakote and a “low dose” or 300 mg of Gabapentin three times a day, which he alleges is “for both pain/seizure[s].” ECF No. 3 at 2; ECF No. 75-4 at 15-16; ECF No. 88, Ex. A at 38.^[5] While Plaintiff claims to have still suffered seizures in 2016, he noticed that as “they (different doctors) increased [the] Gabapentin, ” his seizures decreased in both frequency and severity. See ECF No. 3 at 2. By “May or so of 2017, ” Plaintiff's Gabapentin dosage had been increased to 2700 mg, which he contends “was controlling [his] seizures, ” and he “stayed on that level for a year.” Id.; see also ECF No. 75-4 at 1213, 15-16.

Defendant Santos attests, however, that “Gabapentin was prescribed for [Plaintiff's] complaints of neuropathic pain, not for seizures.” See ECF No. 8-1 at 2 ¶ 3; see also ECF No. 88, Ex. A at 33 (Jan. 6, 2016 Medical Progress Note requesting a “switch” from Lyrica-Sulindac to non-formulary Neurontin to control Plaintiff's “low back pain with radiculopathy” and an “MRI if Neurontin does not control his pain.”); ECF No. 88, Ex. G at 85 (April 15, 2016 Medical Progress Note increasing daily Gabapentin dose to 1500 mg in response to Plaintiff's complaints of “chronic pain with numbness and tingling going down his arms and legs”); id. at 83 (June 16, 2016 Medical Progress Note increasing Plaintiff's daily dose of Gabapentin from 1500 mg to 1800 mg for complaints of “chronic low back pain”).

Dr Malhotra, who was Plaintiff's neurologist in 2016, continued to prescribe Depakote to treat Plaintiff's seizures; however Malhotra also noted those seizures were “presumed” and “unwitnessed.” See ECF No. 8-1 at 2 ¶ 3 & Ex. A at 7. Included in Malhotra's Progress Record is further documentation of a “normal” EEG and “no indication for Neurontin (Gabapentin).” See id.; see also ECF No. 75-4 at 11. Plaintiff admits he has had multiple x-rays of his cervical and thoracic spine, three EEG's, MRIs norepinephrine reuptake inhibitors]), ” and noting “only FDA indications for Gabapentin [as]: partial onset seizures (adjunct) [and] post herpetic neuralgia (PHN), ” adverse effects including “dizziness, cognitive impairment, fatigue, nausea and vomiting headache, ” and advising “caution in patients with suicidal behavior and...