O'Brien v. Saha

KORY T. O'BRIEN, Plaintiff, v. SAJIB SAHA, et al., Defendants.

Case No.: 19-cv-01957-JLS (JLB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

January 30, 2021

REPORT AND RECOMMENDATION RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF EACH CLAIM OF PLAINTIFF

[ECF No. 17]

Plaintiff Kory T. O'Brien ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, brings this civil rights action pursuant to 42 U.S.C. § 1983. (ECF Nos. 1, 4.) Plaintiff's complaint alleges that Defendants Sajib Saha, M.D. ("Dr. Saha"), David Clayton, M.D. ("Dr. Clayton"), and Margaret Deel, M.D. ("Dr. Deel") (collectively, "Defendants") were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment and that Dr. Saha and Dr. Clayton retaliated against him in violation of the First Amendment. (ECF No. 1.) Presently before the Court is a motion for summary judgment, or in the alternative, summary adjudication, filed by Defendants. (ECF No. 17.) Plaintiff opposes Defendants' motion. (ECF No. 23.) Defendants filed a reply. (ECF No. 24.)

The Court submits this Report and Recommendation to United States District Judge Janis L. Sammartino pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.3 of the Local Rules of Practice for the United States District Court for the Southern District of California. After a thorough review of Defendants' motion, Plaintiff's opposition, Defendants' reply, the record in this case, and the applicable law, the Court hereby RECOMMENDS that the District Court GRANT Defendants' motion for summary judgment.

I. BACKGROUND

The following facts are viewed in the light most favorable to Plaintiff. See Wright v. Beck, 981 F.3d 719, 726 (9th Cir. 2020) (on summary judgment, a court must view the facts in the light most favorable to the non-moving party). Unless otherwise indicated, the facts are undisputed.¹

A. Plaintiff's Medical Records²

Plaintiff was transferred to Richard J. Donovan Correctional Facility ("RJD") on November 26, 2016. (ECF No. 23 at 11.) On July 26, 2017, Plaintiff was seen on a California Department of Corrections and Rehabilitation ("CDCR") 602 appeal by Gina Casian, MD. (ECF No. 17-6 at 5-6.) Plaintiff's primary requests, as they relate to this motion, were to receive long-term opioid treatment such as methadone or morphine, to beprescribed a maximum dosage of gabapentin, to be interviewed by the pain management committee, and to be seen by a back specialist. (Id.) Plaintiff's past medical history was notable for chronic low back pain with a history of back surgery in or around 1999, and an MRI on May 26, 2017 showing mild degenerative changes and disc protrusion at L5-S1. (Id. at 5.) The medical record for this visit notes a history of chronic right shoulder pain and a history of polysubstance dependence. (Id.) As of July 26, 2017, Plaintiff was receiving the pain medication tramadol, as well as gabapentin.³ (ECF No. 17-6 at 5.) Plaintiff did not report difficulty performing daily activities and ambulated without an assistive device. (Id.) He was observed to walk normally without any limp, remove his shirt using both upper extremities without evidence of discomfort, and very quickly get up on the examination table. (Id.) The remainder of his physical examination was unremarkable. (Id. at 5-6.)

Dr. Casian assessed that Plaintiff did not meet the criteria for opioid treatment as he had "mild degenerative disc disease without significant limitation of functional capacity" and "[n]o red flag symptoms." (Id. at 6.) Dr. Casian also assessed that the risk of opioid treatment would be higher than the benefit, noting Plaintiff's history of bipolar disorder, polysubstance dependence, and noncompliance with psychotherapy. (Id.) Plaintiff's gabapentin was maintained at the then-present dose, and he was provided a referral to physical therapy and given a back brace for support. (Id.)

On September 18, 2017, B. Martin, MD requested an epidural steroid injection for Plaintiff, noting that Plaintiff's neuropathic pain was worse on the right side despite gabapentin therapy and physical therapy. (ECF No. 23 at 246.) On October 26, 2017, Plaintiff informed Dr. Martin that his neuropathy was well controlled on his current dose of gabapentin. (Id. at 247-48.) On physical examination, Dr. Martin noted that Plaintiff had no gait abnormality or dysfunction. (Id. at 248.)

On November 1, 2017, Plaintiff was seen for an outpatient pain management evaluation by Christopher Glazener, MD. (ECF No. 17-6 at 7-8.) On physical examination, Dr. Glazener noted that Plaintiff appeared relatively comfortable, was able to bend forward to 90 degrees from the erect position, he could walk on his toes and heels without any problem, and the only abnormality on physical examination was decreased sensation to light touch over the lateral aspect of the right thigh and calf. (Id. at 7.) Dr. Glazener diagnosed Plaintiff with having a right lumbar nerve root irritation and post laminectomy syndrome and gave him an epidural steroid injection. (Id.)

On November 29, 2017, Plaintiff was seen by Dr. Martin primarily to assess Plaintiff's chronic shoulder pain due to a torn rotator cuff. (Id. at 10-11.) Plaintiff informed Dr. Martin that he had insufficient pain relief on tramadol which he had been receiving for a minimum of six years prior to the evaluation. (Id. at 10.) Dr. Martin elected to switch Plaintiff from tramadol to methadone, and had Plaintiff sign an opioid pain medication contract. (Id. at 10-13.) Plaintiff added his initials to the contract indicating that he had specifically read and agreed to item number 13, acknowledging the following: "My provider may request urine or blood drug screens from time to time to monitor my use of pain medications, and to detect improper use of medications not prescribed. I agree to submit to these tests and understand if I refuse the testing, my provider will need to stop my opioid medication. In the event that these tests indicate that my use of opioids or other medications presents a health risk to myself or others, my provider may taper and stop the opioid medication." (Id. at 13.) Dr. Martin changed the prescription for methadone to morphine for shoulder pain on February 9, 2018, due to Plaintiff's complaints of nausea. (Id. at 14.) Dr. Martin also noted on February 9, 2018, that Plaintiff had no gait abnormality or dysfunction, and that he was exercising daily for 60 minutes. (Id. at 14-15.)

Plaintiff was seen for the first time by Dr. Saha on March 16, 2018. (Id. at 17-19.) Multiple medical issues were assessed at this visit. (Id.) With respect to chronic pain, the plan was to continue Plaintiff's current pain medication, although extensive patient education was provided regarding the proper use of and risks related to opiate analgesicssuch as morphine. (Id. at 18.) Plaintiff saw Dr. Saha again on April 20, 2018. (ECF No. 23 at 256-57.) Dr. Saha noted Plaintiff's pain was "well controlled with current pain medication" and Plaintiff denied any new symptoms. (Id. at 257.) On physical examination, Dr. Saha noted that Plaintiff was able to walk to the exam room without any difficulties and sit comfortably. (Id.) On May 29, 2018, Plaintiff saw Dr. Saha for multiple issues. (Id. at 258-59.) Dr. Saha noted that Plaintiff's chronic lower back pain was well controlled with current pain medication, and Plaintiff did not want to see a specialist for his lower back pain or have any surgery while inside the prison system. (Id. at 258.)

Plaintiff continued to see Dr. Saha for multiple issues without any change in his pain or pain management. (See id. at 260-68.) During his October 11, 2018 visit, Plaintiff reported that he was exercising 30 to 40 minutes each day. (Id. at 263.) On January 11, 2019, Dr. Saha saw Plaintiff for follow-up after right shoulder rotator cuff surgery on December 28, 2018, and a January 4, 2019 cardiology consult. (ECF No. 17-6 at 20-21.) Plaintiff's surgical incision was noted to be well-healed. (Id. at 20.) Plaintiff also reported that he was able to walk 90 minutes four times a week. (Id.)

On April 1, 2019, Plaintiff was seen in the Triage and Treatment Area ("TTA") by Erica Goyal, MD. (Id. at 22-24.) Plaintiff reported that he had been playing soccer when his foot collided with someone else's foot and subsequently became painful and swollen. (Id.) He was diagnosed with a soft tissue injury of the right foot and provided with crutches to use for two weeks. (Id. at 22.) For pain, Plaintiff was provided with ibuprofen to take in addition to his morphine, the dosage of which was unchanged. (Id.)

Regarding Plaintiff's chronic morphine prescription, Dr. Goyal noted that "if patient is able to play soccer, [I] would consider alternative therapies for pain control if indicated but this can be discussed in follow-up with [Primary Care Provider ("PCP")]." (Id.) Dr. Goyal also ordered x-rays, but Plaintiff signed a refusal for x-rays on April 2, 2019, writing, "Do not need or want x-ray of right foot." (Id. at 25.) Plaintiff was also scheduled for a follow-up with his PCP, Dr. Saha, within five days, but signed a refusal for this appointment, stating that his foot was no longer in severe pain so long as he kept it wrapped.(Id. at 26-27.) Plaintiff also returned his temporary crutches on April 5, 2019, which were due to expire on April 15, 2019. (Id. at 29.)

On April 5, 2019, Plaintiff saw Dr. Saha for a follow-up examination and mentioned that he regularly plays soccer for 15 to 30 minutes. (ECF No. 23 at 268-69.) Dr. Saha observed Plaintiff walking with a normal gait and without any difficulties. (Id. at 269.) Plaintiff saw Dr. Saha again on April 24, 2019, and again Dr. Saha noted that Plaintiff mentioned playing soccer regularly for 15 to 30 minutes. (ECF No. 17-6 at 30.) Dr. Saha also observed Plaintiff "walking with normal gait without any difficulties" and in "no acute distress" and "able...