Wednesday, May 29, 2019
Opinion Says Doctor’s Refusal to Boost Pain Medication Not Deliberate Indifference
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed summary judgment in favor of a medical doctor and others in an action brought by a man incarcerated at California State Prison in Solano who claims he is in extreme pain and, through indifference, is being denied an MRI and sufficient medication.
The court said, in a memorandum opinion, that the prisoner did not show an intent to inflict harm.
Inmate Michael Aaron Witkin contends that he cannot stand or sit “without experiencing extremely severe pain.” He recites thast while incarcerated at the Pleasant Valley State Prison in Coalinga, a doctor told him he had a spinal injury and nerve damage, prescribed Oxvcarbazepine, and advised him that if the conditiuon persisted, he would need an MRI to uncover why the pain is so acute.
The condition did not improve and, he alleged, after being moved to the prison in Solano, Dr. Mariana Lotersztain, refused to prescribe sufficient medication to relieve the pain or to perform an MRI, telling him:
“I know you’re in severe pain, but the thing is were just not going to spend any money to do anything about it.”
Witkin claims the doctor commented that pain is “part of being in prison” and explained:
“I’m not gonna give you an MRI....I know your mobility is impaired and I know you’re in a great deal of pain. Look, I don’t care, it[’]s part of the penalty for your crimes.”
Magistrate Judge’s Findings
In his findings and recommendations, Magistrate Judge Kendall J. Newman of the Eastern District of California on Feb. 26, 2018, wrote:
“The parties do not dispute, and the undersigned finds, that based upon the evidence presented by the parties in connection with the pending motion, a reasonable juror could conclude that plaintiff’s chronic lower back pain constitutes an objective, serious medical need….
“However, the undersigned finds that plaintiff fails to demonstrate that any of the defendants were deliberately indifferent to his lower back pain. Plaintiff is clearly dissatisfied with the medical treatment he received and is of the opinion that he should have received an MRI, surgery, referral to a specialist, and opiates or stronger pain relievers to alleviate his chronic back pain. However, without evidence that the failure to provide any or all of the foregoing was medically inappropriate, such failure amounts to no more than a difference of opinion as to what medical care was appropriate.”
On May 15, 2018, District Court Judge Morrison C. England Jr. of the Eastern District of California adopted the findings and recommendations.
District Court Affirmed
Yesterday, a three-judge panel—comprised of Senior Judges Jerome Farris, Stephen S. Trott, and J. Clifford Wallace—said:
“The district court properly granted summary judgment on Witkin’s deliberate indifference claim because Witkin failed to raise a genuine dispute of material fact as to whether defendants were deliberately indifferent to Witkin’s medical condition….[A] prison official is deliberately indifferent only if he or she knows of and disregards an excessive risk to inmate health: medical malpractice, negligence, or a difference of opinion concerning the course of treatment does not amount to deliberate indifference….The record does not contain any evidence that ‘the chosen course of treatment [for Witkin] waas medically unacceptable under the circumstances and was chosen in conscious disregard of an excessive risk to his health.’…The record is equally devoid of evidence indicating that any defendant intentionally ignored, or failed to respond to. Witkin’s medical needs.”
The case is Witkin v. Lotersztain, 18-16040.
The Ninth Circuit on Dec. 17 denied Witkin’s petition for a writ of habeas corpus, finding no merit in his contention that he weas denued due process by not being allowed to call witnesses at a disciplinary hearing based on disruptive behavior in the prison library. A memorandum opinion said:
“There is no denial of due process in denying a party leave to call witnesses if the party provides no basis in the record demonstrating the witnesses have relevant testimony.”
The state Third District Court of Appeal on Oct. 18, in an unpublished opinion by Justice Elena J. Duarte, reversed an order denying Witkin’s motion to vacate his 2005 conviction pursuant to Penal Code §1473.7.
According to a legislative finding, that section was enacted “to provide people no longer in criminal custody, or after the specified period in which to move for withdrawal of a plea has elapsed, with the opportunity to raise a claim of legal invalidity based on actual innocence or failure to meaningfully understand, defend against, or knowingly accept the immigration consequences of a conviction.”
That section, the trial court held, does not apply to Witkin because he is in custody.
While he is, in fact, in prison, Duarte said, he’s there based on a 2009 robbery conviction, and not the 2005 conviction which he was challenging, and on which he had served his time. (A 2010 Third District opinion says it was attempted robbery.)
“We find defendant has made a sufficient showing of his non-custodial status (related to his 2005 conviction) to entitle him to be heard on his motion,” Duarte wrote.
The 2005 conviction was for resisting an executive officer by use of force and violence.
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