England v. Horel et al, No. 3:2010cv00153 - Document 33 (N.D. Cal. 2012)
Court Description: ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 17 (Illston, Susan) (Filed on 9/18/2012)
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England v. Horel et al Doc. 33 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 11 ROBERT ENGLAND, 12 13 14 15 16 No. C 10-0153 SI (PR) Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT v. HOREL, et al., Defendants. / 17 18 INTRODUCTION 19 This is a federal civil rights action. Defendants, employees of Pelican Bay State Prison 20 (“PBSP”), move for summary judgment on grounds that there are no triable issues of fact and 21 that they are entitled to summary judgment as a matter of law. For the reasons set forth below, 22 defendants’ motion is GRANTED. Judgment will be entered in favor of defendants as to all 23 claims. Plaintiff shall take nothing by way of complaint. 24 25 26 27 28 Dockets.Justia.com BACKGROUND 1 2 The following factual allegations are undisputed, unless specifically noted otherwise.1 Plaintiff’s claims arise from the facts that (1) in 1986, his right arm was amputated below the 4 elbow following a motorcycle accident, and (2) in 2000, he suffered injuries to the left side of 5 his body, which were treated with three surgeries. Owing to these traumas, plaintiff experiences 6 daily pain. Until 2002, plaintiff had a cell-mate who assisted him with daily living activities. 7 In 2002, plaintiff was transferred to a single-cell unit in the Secured Housing Unit of PBSP. 8 From 2006 to 2008, plaintiff requested assistance with performing his daily activities. 9 Defendants granted some requests, and denied others. (Compl. ¶¶ 22–31, 82–83). Plaintiff 10 United States District Court For the Northern District of California 3 alleges that (1) by denying his requests for assistance, defendants violated his rights under the 11 Americans With Disabilities Act (“ADA”) and the Rehabilitation Act of 1973; (2) defendants 12 provided constitutionally inadequate medical care under the Eighth Amendment; and (3) 13 defendants committed negligence when they provided health care. Plaintiff seeks injunctive and 14 declaratory relief and money damages. 15 16 STANDARD OF REVIEW 17 Summary judgment is proper where the pleadings, discovery and affidavits demonstrate 18 that there is “no genuine dispute as to any material fact and the movant is entitled to judgment 19 as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those which may affect the 20 outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as 21 to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict 22 for the nonmoving party. Id. 23 The party moving for summary judgment bears the initial burden of identifying those 24 portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine 25 26 1 Plaintiff’s claims, as well as his legal, factual and evidentiary assertions, come solely from his complaint. His opposition to defendants’ MSJ consists entirely of one two-sentence 27 paragraph in which he reaffirms that the allegations in his complaint are “true and correct.” (Pl.’s Opp. to MSJ (Docket No. 24).) 28 2 1 issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving 2 party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no 3 reasonable trier of fact could find other than for the moving party. But on an issue for which the 4 opposing party will have the burden of proof at trial, as is the case here, the moving party need 5 only point out “that there is an absence of evidence to support the nonmoving party’s case.” Id. 6 at 325. Once the moving party meets its initial burden, the nonmoving party must go beyond the 8 pleadings and, by its own affidavits or discovery, set forth specific facts showing that there is 9 a genuine issue for trial. Fed. R. Civ. P. 56(e). The nonmoving party has the burden of 10 United States District Court For the Northern District of California 7 identifying, with reasonable particularity, the evidence that precludes summary judgment. Id. 11 If the nonmoving party fails to make this showing, “the moving party is entitled to a judgment 12 as a matter of law.” Celotex, 477 U.S. at 323. 13 14 15 DISCUSSION I. ADA and Rehabilitation Act Claims 16 Plaintiff claims that he experiences pain when, and has difficulty with, performing the 17 following tasks: writing, laundry, dressing himself, keeping his cell clean, bathing, and 18 grooming. He admits that he can perform these activities, yet with difficulty as he experiences 19 pain in doing them. (Compl. ¶¶ 70, 73.) 20 Plaintiff submitted requests to defendants for assistance in performing these activities. 21 The parties agree that some of these requests were granted, such as for assistance with laundry, 22 clipping his nails, and flossing his teeth. As to laundry, the parties agree that the prison already 23 does laundry for all prisoners. In response to his more specific complaint, that he has to wash 24 clothing himself in his sink in order to have some clean clothing before his clean laundry is 25 returned, the parties agree that defendants have provided extra clothing. As for the other two 26 matters, plaintiff admits that he is now receiving help with clipping his nails and flossing his 27 teeth. (Compl. ¶¶ 82–83). He maintains, however, that he is disabled within the meaning of the 28 3 1 ADA, and that he needs assistance in performing his daily activities. Defendants have informed 2 plaintiff that he would be placed in the Disability Placement Program (“DPP”), even though 3 defendants had concluded that he did not have a mobility disability. (MSJ at 6.) 4 Title II of the ADA provides that “no qualified individual with a disability shall, by 5 reason of such disability, be excluded from participation in or be denied the benefits of the 6 services, programs, or activities of a public entity, or be subjected to discrimination by any such 7 entity.” 42 U.S.C. § 12132. To state a claim under Title II of the ADA, a plaintiff must allege 8 four elements: (1) he is an individual with a disability; (2) he is otherwise qualified to 9 participate in or receive the benefit of some public entity’s services, programs, or activities; United States District Court For the Northern District of California 10 (3) he was either excluded from participation in or denied the benefits of the public entity’s 11 services, programs or activities, or was otherwise discriminated against by the public entity; and 12 (4) such exclusion, denial of benefits, or discrimination was by reason of his disability. 13 Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). Essentially the same showing is required 14 to state a cause of action under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. See 15 Olmstead v. Zimring, 527 U.S. 581, 589–91 (1999); Duvall v. County of Kitsap, 260 F.3d 1124, 16 1135 (9th Cir. 2001). As the parties have not indicated any relevant difference between the 17 ADA and Rehabilitation Act analyses for Curry’s claims, the claims will be addressed together, 18 as they frequently are. See Duvall, 260 F.3d at 1135.2 19 Although Title II of the ADA does not expressly address the provision of reasonable 20 accommodations, one of the implementing regulations does so, as follows: “A public entity shall 21 make reasonable modifications in policies, practices, or procedures when the modifications are 22 necessary to avoid discrimination on the basis of disability, unless the public entity can 23 demonstrate that making the modifications would fundamentally alter the nature of the service, 24 2 The ADA was amended by the ADA Amendments Act of 2008 (“ADAAA”), see Pub. L. No. 110-325, 122 Stat. 3553 (2008), which took effect in 2009, but the amendments are not retroactively applied. See Becerril v. Pima County Assessor’s Office, 587 F.3d 1162 (9th Cir. 26 2009). The amendments sought to broaden protections narrowed by Supreme Court decisions. Plaintiff’s allegations cover acts performed before the amendments took effect. The distinction 27 is moot here, as plaintiff fails to show a triable issue of fact even under the more permissive ADAAA standard. 25 28 4 1 program, or activity.” 28 C.F.R. § 35.130(b)(7). 2 3 1. 4 Under the ADA, an individual is defined as having a disability if the individual has: (1) 5 a physical or mental impairment that substantially limits one or more of the major life activities 6 of such individual; (2) a record of such an impairment; or (3) is regarded as having such an 7 impairment. 42 U.S.C. § 12102(1).3 “[M]ajor life activities include, but are not limited to, 8 caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, 9 lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, United States District Court For the Northern District of California 10 Qualifying Disability and working.” Id. § 12102(2)(A). 11 Defendants appear to deny that plaintiff has a qualifying disability. Based on their 12 investigations, plaintiff does not have “trouble dressing, bathing, or feeding himself, and that he 13 [is] able to write with his left hand.” (Defs.’ Mot. for Summ. J. (“MSJ”) at 15.) Additionally, 14 a cell inspection showed that plaintiff “was able to keep a neat, tidy cell and did not need 15 assistance with his daily living activities.” (Id. at 13.) Accordingly, defendants denied his 16 requests for assistance with these activities because they were not medically necessary. (Id.) 17 Plaintiff disputes this. He has presented evidence that he experiences great pain and 18 difficulty in writing, doing his laundry, dressing himself, keeping his cell clean, bathing, and 19 grooming. For instance, he does not bathe on Fridays owing to the pain (Compl. ¶ 56), a “2-3 20 page letter takes a few days to complete,” (id. ¶ 31), cleaning his cell takes 30–45 minutes and 21 he cannot keep it clean for weeks at a time (id. ¶ 38–40), and he has to keep his head shaved 22 3 Plaintiff has made no allegation, and certainly no showing, regarding the latter two factors. There is nothing in the record to show that plaintiff has a record of having an impairment within the meaning of the ADA; indeed, defendants’ failure to make such a record 24 is the gravamen of plaintiff’s claims. There is also nothing in the record that plaintiff “meets the requirement of ‘being regarded as having such an impairment,’” meaning anything to show that 25 he “has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived 26 to limit a major life activity.” 42 U.S.C. § 12102(3)(A). Again, plaintiff complains that defendants do not regard him as having a disability. 23 27 28 5 1 because he cannot lift the heavy electric clippers for long periods (id. ¶ 42–43). Plaintiff’s admissions defeat his attempt to show a triable issues of fact that he has a 3 qualifying disability. Even assuming that all these activities are major life activities within the 4 meaning of the ADA,4 plaintiff admits he is able to perform every one and perform them with 5 sufficient thoroughness, however slowed by pain. That he cannot perform them with the speed, 6 frequency, and duration he would like does not show a triable issue of fact that he is 7 substantially limited in performing them. See Thornton v. McClatchy Newspapers, Inc., 261 8 F.3d 789, 797–98 (9th Cir. 2001), clarified, 292 F.3d 1045 (9th Cir. 2002) (plaintiff’s alleged 9 inability to type and write for extended periods of time did not show substantial limitation of her 10 United States District Court For the Northern District of California 2 ability to perform manual tasks). Put another way, a delay in being able to complete letters, 11 taking 30–45 minutes to clean his cell, and having to keep a shaved head rather than lift heavy 12 clippers for a long period — considering that he is still able to groom himself by keeping his 13 head shaved — does not show that plaintiff is substantially limited in performing a major life 14 activity. It is not enough to assert that the alleged disability has an effect on, or creates a 15 difficulty in, the performance of these tasks. The alleged impairment must “substantially” limit 16 his ability. On the facts as he alleges, he is still able to perform these activities, and with 17 sufficient thoroughness. On such a record, plaintiff has not shown a triable issue of fact. 18 19 20 2. 21 For purposes of this order only, the Court assumes, without deciding, that plaintiff meets 22 Otherwise Qualified to Participate this requirement. 23 24 25 26 4 27 28 Grooming and bathing would certainly fall under “caring for oneself” under 42 U.S.C. § 12102(2)(A). Whether writing is a major life activity has not been settled. See Thornton, 261 F.3d at 798 n.5. 6 1 3. Denied Participation in Program 2 Plaintiff alleges that defendants have prevented him from receiving assistance with the 3 following programs and services: writing, laundry, dressing himself, keeping his cell clean and 4 orderly, cutting his hair and fingernails, brushing his teeth, and bathing/keeping himself clean. 5 Plaintiff admits that defendants are providing him with assistance with laundry, cleaning his 6 teeth, and cutting his fingernails. Such admissions render his claims based on assistance with 7 these activities moot, and therefore defendants are entitled to summary judgment on these 8 claims. As for dressing himself, plaintiff offers only conclusory and unsupported allegations 9 regarding this claim, and certainly provided no evidence or specific details. Accordingly, United States District Court For the Northern District of California 10 defendants are entitled to summary judgment on this claim. Writing, cleaning his cell, and 11 grooming/bathing, then, are the remaining claims. For purposes of this order only, the Court 12 assumes, without deciding, that plaintiff has shown a triable issue of fact that he was denied 13 access to a program or benefit as regards writing, cleaning his cell, and grooming/bathing. 14 15 4. 16 Defendants contend, and plaintiff disputes, that plaintiff’s request was denied because he 17 was able to bathe and groom without assistance and for security reasons, not because of his 18 (alleged) disability. (MSJ at 13.) Exclusion by Reason of Plaintiff’s Disability 19 The disability must have been “the motivating factor” for the exclusion. Therefore, a 20 plaintiff must show a triable issue of fact exists that “a discriminatory reason more likely 21 motivated” the defendant’s decision. Head v. Glacier Northwest Inc., 413 F.3d 1053, 1065 (9th 22 Cir. 2005) (analyzing the causation standard for Titles I, II, and IV of the ADA). 23 Plaintiff has not made such a showing here. Defendants have presented evidence that 24 they declined to grant plaintiff’s request because it was not medically necessary, and for security 25 reasons, as plaintiff is housed in the single-cell only Secured Housing Unit. Plaintiff gives only 26 conclusory statements in support of his allegation that he was discriminated against because of 27 his disability, and fails to counter defendants’ security concerns. Undermining plaintiff’s 28 7 1 assertions of discrimination is the undisputed fact that defendants have granted some of his 2 requests, he is receiving some assistance, and he has been offered a place in the DPP. Such a 3 record demonstrates an absence of a genuine issue of material fact. Furthermore, defendants’ 4 concessions show that defendants have made some reasonable accommodations within the 5 meaning of Title II, 28 C.F.R. § 35.130(b)(7). On such the strength of defendants’ evidence and 6 the paucity of plaintiff’s evidence, plaintiff has not shown that there is a triable issue of fact that 7 his disability was the motivating factor for defendants’ decision. Because of this failure, and the failures shown above, defendants’ motion for summary 9 judgment will be granted. Even if plaintiff had established all the other elements of the offense 10 United States District Court For the Northern District of California 8 (including that he has a qualifying disability and that he was denied access to programs and 11 services), he has not shown a triable issue of fact as to the final element of an ADA violation. 12 Furthermore, even if plaintiff had shown a triable issue of fact above, success at trial on 13 these issues would entitle him only to injunctive relief, not money damages. Money damages 14 are not available for a violation of Title II of the ADA or the Rehabilitation Act absent a 15 showing of discriminatory intent by the defendant. See Ferguson v. City of Phoenix, 157 F.3d 16 668, 674 (9th Cir. 1998). To show discriminatory intent, a plaintiff must establish deliberate 17 indifference by the public entity. Duvall, 260 F.3d at 1138. Deliberate indifference requires: 18 (1) knowledge that a harm to a federally protected right is substantially likely, and (2) a failure 19 to act upon that likelihood. Id. at 1139. The first prong is satisfied when the plaintiff identifies 20 a specific, reasonable and necessary accommodation that the entity has failed to provide, and the 21 plaintiff notifies the public entity of the need for accommodation or the need is obvious or 22 required by statute or regulation. Id. The second prong is satisfied by showing that the entity 23 deliberately failed to fulfill its duty to act in response to a request for accommodation. Id. at 24 1139–40. The entity’s duty is to undertake a fact-specific investigation to gather from the 25 disabled individual and qualified experts sufficient information to determine what constitutes 26 a reasonable accommodation, giving “primary consideration” the requests of the disabled 27 individual. Id. The second prong is not satisfied if the failure to fulfill this duty to accommodate 28 8 1 is a result of mere negligence, such as “bureaucratic slippage” or where the entity simply 2 “overlooked” a duty to act. Id. 3 The undisputed record defeats plaintiff’s attempt to raise a triable issue of fact as to 4 discriminatory intent. The parties agree that defendants did conduct at least two inquiries into 5 plaintiff’s allegations, including meeting with plaintiff, observing his daily activities and his cell, 6 though plaintiff disputes the thoroughness of the inquiry and the inferences defendants drew 7 from their investigations. (Compl. ¶¶ 61, 67–75; MSJ at 11–13.) Defendants have granted 8 some of plaintiff’s requests, and offered to place him in the DPP. On such undisputed facts, 9 plaintiff has failed to show a triable issue of fact whether defendants acted with deliberate United States District Court For the Northern District of California 10 indifference. 11 12 In sum, defendants’ motion for summary judgment on all plaintiff’s ADA and Rehabilitation Act claims is GRANTED in favor of all defendants. 13 14 II. Eighth Amendment Claims 15 Plaintiff alleges that defendants were deliberately indifferent to his serious medical needs 16 by prescribing inadequate pain medication and physical therapy. Plaintiff alleges that he has 17 suffered “daily and continual extreme pain” because of the lack of pain medications, and “the 18 risk of further future serious nerve damage, muscular dystrophy/atrophy, and harm” because 19 defendants have failed to prescribe sufficient physical therapy. The parties do not dispute the 20 treatment plaintiff actually received; they dispute only the constitutional adequacy of that 21 treatment. 22 Since 2006, plaintiff has had at least 47 medical appointments at PBSP related to the pain 23 he experiences in his sides, arms, and neck. To treat this pain, defendants have prescribed 24 plaintiff, without interruption since 2006, analgesic medications. These medications include 25 Amitriptyline HCL (Elavil), Acetaminophen, Naproxen, Ibuprofen, Tylenol, and Indocin. (MSJ 26 at 18.) According to defendants, plaintiff’s nerve pain has responded well to tricyclic 27 antidepressant (TCA) therapy, which includes Elavil. (Id.) Defendants assert that TCA therapy 28 9 can effectively treat many types of chronic pain, including that which plaintiff experiences. (Id.) 2 Plaintiff also requested anti-inflammatory steroid shots to relieve his pain. According to 3 defendants, plaintiff’s pain “is secondary to nerve injury, rather than inflammatory nerve 4 disease, which is the type of pain that anti-inflammatory shots are designed to alleviate.” (Id.) 5 Upon examination, Dr. Sayre, a physician at PBSP, concluded that stretching and relaxation 6 would be a better treatment than steroid shots. Plaintiff was familiar with these stretches and 7 exercises, having learned them during previous physical therapy visits. Sayre further explained 8 that his primary neuropathatic pain was well-treated with TCA therapy. Plaintiff, however, 9 stated that he did not like Elavil’s sedative side-effects. (Id. ¶ 35.) Sayre explained that 10 United States District Court For the Northern District of California 1 plaintiff’s pathological nerve condition could not be treated without some secondary sedation. 11 (Id.) After some discussion, plaintiff agreed to a trial of a reduced dosage of Elavil which he 12 would receive during the day. 13 Defendants also have prescribed non-steroidal anti-inflammatory drugs (NSAIDs), 14 including Naproxen and Sulindac, in response to his request for pain treatment. (MSJ at 18–19.) 15 Defendants assert that when plaintiff complained that the medications were not working, medical 16 staff sent him to a specialty clinic for “trigger point injections.” (Id.) For example, he received 17 trigger point injections on June 17, 2011. (Id.) Plaintiff stated that these injections worked well, 18 and decreased the pain. (Id.) 19 The Eighth Amendment requires that prison officials provide all prisoners with medical 20 care. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). A prison official violates the Eighth 21 Amendment when two requirements are met: (1) the deprivation alleged must be, objectively, 22 sufficiently serious, see Farmer, 511 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 23 (1991)), and (2) the prison official possesses a sufficiently culpable state of mind, i.e., the 24 offending conduct was wanton, id. (citing Wilson, 501 U.S. at 297). 25 In determining whether a deprivation of a basic necessity is sufficiently serious to satisfy 26 the objective first component of an Eighth Amendment claim, a court must consider the 27 circumstances, nature, and duration of the deprivation. The more basic the need, the shorter the 28 10 1 time it may be withheld. See Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). 2 Plaintiffs seeking relief must show that the defendant were deliberately indifferent to their 3 serious medical needs. See, e.g., Farmer, 511 U.S. at 834 (inmate safety); Estelle v. Gamble, 4 429 U.S. 97, 104 (1976) (inmate health). Neither negligence nor gross negligence will constitute 5 deliberate indifference. See Farmer, 511 U.S. at 835–36 & n.4. A prison official cannot be held 6 liable under the Eighth Amendment for denying an inmate humane conditions of confinement 7 unless the standard for criminal recklessness is met, i.e., the official knows of and disregards an 8 excessive risk to inmate health or safety. Id. at 837. The official must both be aware of facts 9 from which the inference could be drawn that a substantial risk of serious harm exists, and he United States District Court For the Northern District of California 10 must also draw the inference. See id. 11 Plaintiff has failed to establish either Farmer element with respect any defendant. First, 12 the record indicates that the alleged deprivation of the basic necessity of medical care was not 13 objectively sufficiently serious — there was a difference in opinion about what the treatment 14 should be, not a substantial deprivation of treatment itself. It is undisputed that the medical 15 professionals at PBSP have given plaintiff many medications since 2006 specifically to treat his 16 pain. While plaintiff may have experienced pain in spite of these medications, the undisputed 17 frequency and variety of prescriptions render implausible any allegation that there was a 18 substantial deprivation of treatment. Second, plaintiff has not established that the medical 19 personnel acted with deliberate indifference. The undisputed record is that defendants examined 20 plaintiff, were aware of his medical history, provided him with medications in consultation with 21 him, and tried new medications in further attempts to treat his pain. The undisputed record also 22 shows that plaintiff did receive some physical therapy, though not, in plaintiff’s opinion, timely 23 or sufficient, a delay from May to September 2008, and then only two sessions. (Compl. ¶¶ 89, 24 98–99.)5 The fact that plaintiff continues to experience pain despite the doctors’ efforts does not 25 26 5 According to plaintiff, the physical therapist opined that “defendants should have schedule multiple therapy sessions long ago because plaintiff has now lost a[]lot of permanent 27 muscle tissue[] that could have been maintained through therapy.” (Compl. ¶ 98.) This opinion from an unknown person is insufficient to show deliberate indifference. This assertion lacks 28 11 1 show that defendants were deliberately indifferent. Rather, defendants were aware of the risks 2 to plaintiff’s health and took reasonable steps to attend to that risk. The only apparent factual dispute is a difference of opinion between plaintiff and 4 defendants. “A difference of opinion between a prisoner-patient and prison medical authorities 5 regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 6 1344 (9th Cir. 1981). Similarly, a showing of nothing more than a difference of medical opinion 7 as to the need to pursue one course of treatment over another is insufficient, as a matter of law, 8 to establish deliberate indifference, see Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). 9 In order to prevail on a claim involving choices between alternative courses of treatment, a 10 United States District Court For the Northern District of California 3 plaintiff must show that the course of treatment the doctors chose was medically unacceptable 11 under the circumstances and that he or she chose this course in conscious disregard of an 12 excessive risk to plaintiff’s health. Id. at 1058. Here, plaintiff cites as examples that defendants 13 denied him the “stronger medications, like a cortisone shot for the extreme pain in his []neck and 14 shoulder,” and denied him year-round physical therapy after an examination determined that he 15 would not benefit from it.6 (Compl. ¶ 90.) Plaintiff does admit that the physicians would submit 16 his request for year-round therapy to the relevant committee, though plaintiff is doubtful he will 17 receive the treatment. (Id.) However, plaintiff does not show that the course of treatment taken 18 by physicians, however inadequate plaintiff finds it, was medically unacceptable, or that 19 defendants chose the course of treatment in conscious disregard of an excessive risk to plaintiff’s 20 health. Plaintiff, then, has not shown a triable issue of fact whether defendants violated his 21 Eighth Amendment rights. 22 GRANTED as to these claims. Accordingly, defendants’ motion for summary judgment is 23 24 adequate details: which defendants should have scheduled therapy, what type of therapy and how many sessions, what muscle tissue has been lost (and how exactly that has harmed plaintiff), how much tissue could have been saved, whether this unnamed person was qualified 26 to render such an opinion, etc. 25 27 28 6 Defendants assert that plaintiff would benefit greatly from performing in-cell stretching exercises, but would not benefit from year-round therapy. (MSJ at 8 & 13.) 12 1 III. Negligence Claims 2 Because defendants are entitled to summary judgment on all federal claims, the Court 3 declines to exercise jurisdiction over plaintiff’s state law negligence claims, which are hereby 4 DISMISSED without prejudice. 5 6 CONCLUSION Plaintiff having failed to show that there are triable issues of material fact, defendants’ 8 motion for summary judgment (Docket No. 17) is GRANTED as to all federal claims against 9 all defendants, who are entitled to judgment as a matter of law on such claims. Plaintiff’s 10 United States District Court For the Northern District of California 7 negligence claims are DISMISSED without prejudice. The Clerk shall terminate Docket No. 11 17, enter judgment in favor of defendants, and close the file. 12 13 14 IT IS SO ORDERED. DATED: September 18, 2012 SUSAN ILLSTON United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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