Gray v. Khoo
| Docket Number | 1:20-cv-01047-ADA-SAB (PC) |
| Decision Date | 23 June 2023 |
| Parties | DANA GRAY, Plaintiff, v. A. KHOO, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
FINDINGS AND RECOMMENDATIONS REGARDING PARTIES' MOTIONS FOR SUMMARY JUDGMENT, AND PLAINTIFF'S RELATED MOTIONS (ECF NOS. 105, 125, 136, 137, 138, 139 140.)
Plaintiff Dana Gray is proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff's motion for summary judgment; Defendants' motion for summary; and Plaintiff's motion to dismiss Defendants' counterclaim, motion for dismissal of declaration of Defendants' expert witness, motion for dismissal of lodging Plaintiff's deposition transcript, motion for judgment as a matter of law, and motion to strike “any and all statements, paragraphs, and exhibits from Defendant's motion. (ECF Nos. 105, 125, 136, 137, 138 139, 140.)
This action is proceeding against Defendants Doctor Mitchell Doctor Ola, and Doctor Song for deliberate indifference to a serious medical need.[1]
Defendants filed an answer to the complaint on April 26, 2021. (ECF No. 37.)
After an unsuccessful settlement conference, the Court issued the discovery and scheduling on September 1, 2021. (ECF No. 54.)
Plaintiff filed a motion for summary judgment on July 11, 2022. (ECF No. 105.) On July 26, 2022, Plaintiff filed a statement of undisputed facts in support of her motion for summ ary judgment. (ECF No. 113.)
On October 11, 2022, Defendants filed a motion for summary judgment and opposition to Plaintiff's motion for summary judgment. (ECF Nos. 125, 126.) Plaintiff filed a reply to Defendants' opposition on November 4, 2022, along with statements of undisputed facts. (ECF Nos. 132, 133, 134.)
On November 10, 2022, Plaintiff filed a motion to dismiss Defendants' counterclaim, motion for dismissal of declaration of Defendants' expert witness, motion for dismissal of lodging Plaintiff's deposition transcript, motion for judgment as a matter of law, and motion to strike “any and all statements, paragraphs, and exhibits from Defendant's motion. (ECF Nos. 136, 137, 138, 139, 140.) Defendants filed an opposition to Plaintiff's on December 1, 2022. (ECF No. 142.) After receiving three extensions of time, Plaintiff filed a reply on February 27, 2023. (ECF No. 154.)
A. Summary Judgment Standard
Any party may move for summary judgment, and the Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) (quotation marks omitted); Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to by the parties, but it is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).
In judging the evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all inferences in the light most favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted).
In reviewing cross-motions for summary judgment, a court is required to consider each motion on its own merits. Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). “In fulfilling its duty to review each cross-motion separately, the court must review the evidence submitted in support of each cross-motion.” Id.
In arriving at these Findings and Recommendations, the Court carefully reviewed and considered all arguments, points and authorities, declarations, exhibits, statements of undisputed facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of reference to an argument, document, paper, or objection is not to be construed to the effect that this Court did not consider the argument, document, paper, or objection. This Court thoroughly reviewed and considered the evidence it deemed admissible, material, and appropriate.
On January 4, 2018, Plaintiff had a 4 level lumbar fusion by a neurosurgeon, Dr. M. Senegor. (Sec. Am. Compl. (“SAC”), 6, ECF No. 24.) On January 17, 2018, Showalter noted that the primary care provider is responsible to determine diagnostic tests and recommendations by specialists. (Id.) Plaintiff had a follow up with Dr. Senegor, her Neurontin was increased and was to be continued. (Id.) Plaintiff was completely off opioids by March 9, 2018. (Id.)
On March 14, 2018, plaintiff had a lumbar spine x-ray that showed mild nonspecific lucency around the L4-5 screws. (Id.) Plaintiff had a follow up with Dr. Senegor on July 2, 2018, and had “compression stress” type pain in her lumbar spine. (Id.)
In August 2018, Plaintiff told Khoo that she was having left hip pain, paraspinal and left hip tenderness, and bilateral numbness on the soles of her feet with activity. (Id.) Plaintiff had an x-ray on September 7, 2018, that showed “question of right S1 screw lucency raising possibility of loosening. (Id.) Khoo discussed the x-ray with Plaintiff on September 17, 2018, and submitted a request for evaluation with a neurosurgeon. (Id.)
On October 15, 2018, Plaintiff had a follow up with Dr. Senegor who told her that the September 7, 2018 x-ray showed bone resorption at the right S1 screw and failed L5-S1 fusion which were likely to be the cause of her lower back pain and recommended that she return in one year with a follow up CT scan. (Id. at 6-7.) She was to not sit or stand for over one hour; not bend, stoop, or twist excessively; and if there was no improvement within the next three to six months she would need revision surgery. (Id. at 7.) Plaintiff filed a grievance requesting a follow up with a neurosurgeon that was partially granted. (Id.) She was to continue Neurontin, provided orthotics and an eggcrate mattress. (Id.)
Plaintiff had a CT scan of the lumbar spine on November 15, 2018, that did not show screw lucency or a failure of the fusion. (Id.)
On December 19, 2018, Plaintiff had a lumbar spine x-ray which did not show any loose screws or a failed fusion. (Id.)
Plaintiff was seen by Dr. Senegor for a one year post-operative appointment on January 7, 2019. (Id.) Dr. Senegor recommended that pain management be reinstated and that Plaintiff have revision surgery in two stages for the failed fusion and S1 screw replacement. (Id.)
Plaintiff saw Khoo on January 10, 2019, complaining of increased lower back pain and insomnia and requested surgery and reinstitution of opiate pain management. (Id.) Khoo submitted a request for medical services for Plaintiff to receive revision surgery and ordered morphine two times per day and at bedtime for severe pain for fourteen days, but denied opiate pain management because Plaintiff was on Gabapentin and Naproxen. (Id.) Khoo did not list the InterQual criteria on the request or in his progress notes. (Id.)
On January 15, 2019, the pain management committee discussed the InterQual criteria. (Id.)
On January 16, 2019, Plaintiff was seen by Dr. Glass in mental health for a pain management evaluation, coping mechanisms, and medical allergies. (Id.)
On January 17, 18, and 19, 2019, LVNs recorded observations of Plaintiff's pain and activities of daily living without interviewing her or doing a physical assessment of her pain levels. (Id.)
On January 22, 2019, a pain management note was entered with no interview or physical assessment. (Id.)
On January 22, 2019, Antinello interviewed Plaintiff for her inmate appeal. (Id.) Antinello noted the September 7, 2018 and December 19, 2018 x-rays and the November 15, 2018 CT scan finding “no conclusive evidence of loose or broken hardware.” (Id.) Antinello evaluated Interqual criteria and found that Plaintiff did not meet any of the InterQual criteria, relying on the observations of LVNs although Plaintiff met 3 of the 6 criteria. (Id. at 7-8.)
On January 23, 2019, Khoo discontinued morphine. (Id. at 8.)
On January 29, 2019, Khoo submitted a request for services seeking revision surgery that did not address the InterQual criteria. (Id.)
On February 13, 2019, Plaintiff saw Khoo for lower back pain and nerve pain in the right leg and was told that revision surgery had been denied but that he would discuss the InterQual criteria with Singh and present the request at the MAR meeting, but did not do an InterQual criteria examination. (Id.)
On February 21, 2019, the MAR committee was presented with the request for a repeat lumbar spine surgery/fusion and the committee reviewed the November 15, 2018 CT scan that did not document the screw lucency, and did not inquire into the discrepancy or order a re-read and there was no mention of the InterQual criteria....
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