Smith v. Fu et al, No. 5:2019cv02119 - Document 51 (N.D. Cal. 2020)
Court Description: ORDER GRANTING DEFENDANT KOWALLS MOTION FOR SUMMARY JUDGMENT; DENYING MOTION TO DISMISS AS MOOT by Judge Beth Labson Freeman. (tshS, COURT STAFF) (Filed on 8/28/2020)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
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Smith v. Fu et al Doc. 51 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JASON SMITH, United States District Court Northern District of California 11 Plaintiff, 12 v. 13 DR. LAW FU, et al., 14 Defendants. 15 16 Case No. 19-02119 BLF (PR) ORDER GRANTING DEFENDANT KOWALL’S MOTION FOR SUMMARY JUDGMENT; DENYING MOTION TO DISMISS AS MOOT (Docket Nos. 27, 39) 17 Plaintiff, a California inmate, filed the instant pro se civil rights action pursuant to 18 19 42 U.S.C. § 1983 against medical staff at the Correctional Training Facility (“CTF”). Dkt. 20 No. 1. The Court found the complaint stated a cognizable claim under the Eighth 21 Amendment for deliberate indifference to serious medical needs and ordered Defendants 22 Dr. Law Fu, Dr. Rachel Ross, Dr. Mark Kowall, M. Votaw, and S. Posson to file a motion 23 for summary judgment or other dispositive motion. Dkt. No. 4.1 Defendant Dr. Kowall filed a motion to dismiss pursuant to Rule 12(b)(6) of the 24 25 26 27 28 In the same order, the Court granted Plaintiff leave to amend to state sufficient facts to state a First Amendment claim, but Plaintiff filed notice that he wished to proceed solely on the Eighth Amendment claim. Dkt. No. 5. Accordingly, the First Amendment claim was stricken from the complaint. Dkt. No. 6 at 1. 1 Dockets.Justia.com 1 Federal Rules of Civil Procedure. Dkt. No. 27.2 He subsequently filed a motion for 2 summary judgment pursuant to Rule 56 on the grounds that Plaintiff is unable to set forth 3 facts sufficient to create a genuine issue of material fact as to any cause of action against 4 him. Dkt. No. 39. In support, Defendant Kowall filed a declaration and exhibits. Id. 5 Plaintiff filed opposition along with a declaration and exhibits in support. Dkt. No. 43. 6 Defendant Kowall filed a reply. Dkt. No. 44. For the reasons stated below, Defendant Kowall’s motion for summary judgment is 7 8 GRANTED. Defendant Kowall’s motion to dismiss is DENIED as moot. 9 DISCUSSION 10 United States District Court Northern District of California 11 I. Statement of Facts3 Plaintiff is an inmate at the Correctional Training Facility (“CTF”) in Central 12 13 Soledad, where he was housed during the underlying incident. Dkt. No. 1 at 1. Plaintiff 14 describes himself as a chronic care patient diagnosed with osteoarthritis in his right 15 shoulder which has caused him chronic pain since July 2015. Id. at 10. He was prescribed 16 a daily dose of 15mg of methadone since that time. Id. at 10. Defendant Dr. Mark Kowall is a physician board certified in Orthopedic Surgery, 17 18 who contracts with the California Department of Corrections and Rehabilitation (“CDCR”) 19 to see inmates at Twin Cities Community Hospital (“Hospital”), in a clinic the Hospital 20 has provided for that purpose. Kowall Decl. ¶ 3, Dkt. No. 39 at 13-14. A nurse employed 21 by the Hospital is in charge of scheduling the appointments. Id. Defendant Kowall has 22 privileges at the Hospital but is not an employee of the Hospital. Id. 23 24 25 26 Defendants Fu, Posson, and Votaw filed a separate motion for summary judgment, Dkt. No. 29, which will be addressed in a separate order. Defendant Dr. Rachel Ross has not yet been served, and the last request for waiver of summons sent to her at the address provided by Plaintiff has not been returned. Dkt. Nos. 16, 20, 22. 2 3 The following facts are not disputed unless otherwise stated. 27 28 2 United States District Court Northern District of California 1 On July 25, 2018, Plaintiff was transported to the Hospital for an appointment with 2 Defendant Kowall for an orthopedic evaluation for surgery to reduce chronic pain 3 associated with severe osteoarthritis in his right shoulder. Kowall Decl. ¶¶ 4, 5; Smith 4 Decl. ¶ 5, Dkt. No. 43 at 13-15, Dkt. No. 1 at 11. Upon his arrival at the Hospital parking 5 lot, Plaintiff was approached by “C/O Alejo,” one of the transportation officers, with a 6 single page contract “numbered page 3 of 3” and instructed to sign the document before 7 receiving any treatment. Id. Plaintiff declined to sign the document as pages 1 and 2 were 8 omitted. Id. at 11. He later entered the facility and was permitted to read pages 1 and 2 of 9 the document. Id. Plaintiff realized that if he signed page 3 of the document, he would be 10 agreeing to “things such as but not limited to: (i) that… any treatment, medications, or 11 advice given to him that had lead to any side effects or mis-haps, he the patient waives his 12 Rights to hold Twin City Medical Community liable, (ii) that the facility uses organs and 13 tissues in experimental treatment, (iii) in the event the patient undergoes surgery, by 14 signing Page 3 he/she consent to having the surgery videotape, and (iv) by signing page 3 15 you acknowledge you have read the entire contract and agreed to the Terms and 16 Agreements.” Id. Plaintiff declined to sign the document and was subsequently denied 17 medical treatment by Defendant Kowall. Id. 18 According to Defendant Kowall, the Hospital requires that all patients sign a 19 Consent for Treatment and Conditions for Admissions form before they are seen. Kowall 20 Decl. ¶ 3, Ex. A (“Consent for Treatment and Conditions for Admission”). Defendant 21 Kowall does not require his patients to sign any forms. Id. Defendant Kowall did not see 22 or interact with Plaintiff on that day or any other day. Id. ¶ 4. Defendant Kowall was 23 informed by the nurse that Plaintiff had refused to sign the consent form and had been 24 transported back to the prison. Id. Plaintiff’s appointment was rescheduled for May 7, 25 2019, but he did not appear for that visit. Id. Defendant Kowall was never notified by 26 anyone that Plaintiff’s condition was urgent or such that he needed to be seen right away. 27 Id. ¶ 5. Defendant Kowall never spoke to any of Plaintiff’s treatment providers at the 28 3 United States District Court Northern District of California 1 prison regarding his care and treatment and was not involved in any of Plaintiff’s care at 2 the prison. Id. ¶ 6. 3 Plaintiff states for the first time in a declaration submitted in support of his 4 opposition that he had personal interaction with Defendant Kowall on July 25, 2018, and 5 that Defendant Kowall personally refused to administer medical treatment to him. Smith 6 Decl. ¶ 7, Ex. B. Plaintiff states that the 7-page consent form provided by Defendant 7 Kowall as Exhibit A was not the 3-page “Waiver of Liability” that he refused to sign for 8 which he was denied treatment. Id. ¶ 6. Plaintiff states that Defendant Kowall, not a 9 nurse, took his refusal to sign the “Waiver of Liability.” Id. ¶ 7, Ex. B. Plaintiff states that 10 he had no knowledge of a rescheduled appointment with Defendant for May 7, 2019, nor 11 did he refuse any follow-up orthopedic evaluation that was scheduled for him by prison 12 medical staff. Id. ¶ 8, Ex. C. 13 Plaintiff was later seen by Defendant Dr. Law Fu on July 29, 2018. Dkt. No. 1 at 14 11. According to Plaintiff, Defendant Fu informed him that he was going to take Plaintiff 15 off of his previously prescribed daily 15mg Methadone because Plaintiff refused to sign 16 the “Contract/Arbitration Agreement” that Defendant Kowall had presented to Plaintiff on 17 July 25, 2018. Id. at 12. Plaintiff states that Defendant Fu told him, “I’m going to 18 document that the reason for taking you off your prescribed 15mg Methadone per day was 19 because you had a positive Urine Analysis for THC in May of 2018.” Id. When Plaintiff 20 expressed concern with having withdrawal symptoms, Defendant Fu responded, “He don’t 21 care about any withdrawal symptoms and I (Plaintiff) should have just signed the waiver 22 Liability when I (Plaintiff) had went to see defendant Dr. Kowall on 07/25/18 then none of 23 this would be happening.” Id. Plaintiff also states that when he later saw Defendant Dr. 24 Rachel Ross on August 6, 2018, and requested “low level medications to contain the 25 withdrawal symptoms,” she informed him, “you should have just signed the waiver form 26 when you went to see defendant Dr. Kowall on 07/25/18, now you could smoke all the 27 marijuana you want to.” Id. at 12-13. 28 4 1 United States District Court Northern District of California 2 II. Summary Judgment Summary judgment is proper where the pleadings, discovery and affidavits show 3 that there is “no genuine dispute as to any material fact and the movant is entitled to 4 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment 5 “against a party who fails to make a showing sufficient to establish the existence of an 6 element essential to that party’s case, and on which that party will bear the burden of proof 7 at trial . . . since a complete failure of proof concerning an essential element of the 8 nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. 9 Cattrett, 477 U.S. 317, 322-23 (1986). A fact is material if it might affect the outcome of 10 the lawsuit under governing law, and a dispute about such a material fact is genuine “if the 11 evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 12 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 13 Generally, the moving party bears the initial burden of identifying those portions of 14 the record which demonstrate the absence of a genuine issue of material fact. See Celotex 15 Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on an issue 16 at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other 17 than for the moving party. But on an issue for which the opposing party will have the 18 burden of proof at trial, the moving party need only point out “that there is an absence of 19 evidence to support the nonmoving party’s case.” Id. at 325. If the evidence in opposition 20 to the motion is merely colorable, or is not significantly probative, summary judgment may 21 be granted. See Liberty Lobby, 477 U.S. at 249-50. 22 The burden then shifts to the nonmoving party to “go beyond the pleadings and by 23 her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on 24 file,’ designate specific facts showing that there is a genuine issue for trial.’” Celotex 25 Corp., 477 U.S. at 324 (citations omitted); Fed. R. Civ. P. 56(e). “This burden is not a 26 light one. The non-moving party must show more than the mere existence of a scintilla of 27 evidence.” In re Oracle Corporation Securities Litigation, 627 F.3d 376, 387 (9th Cir. 28 5 United States District Court Northern District of California 1 2010) (citing Liberty Lobby, 477 U.S. at 252). “The non-moving party must do more than 2 show there is some ‘metaphysical doubt’ as to the material facts at issue.” Id. (citing 3 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “In 4 fact, the non-moving party must come forth with evidence from which a jury could 5 reasonably render a verdict in the non-moving party’s favor.” Id. (citing Liberty Lobby, 6 477 U.S. at 252). If the nonmoving party fails to make this showing, “the moving party is 7 entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. at 323. 8 The Court’s function on a summary judgment motion is not to make credibility 9 determinations or weigh conflicting evidence with respect to a material fact. See T.W. 10 Elec. Serv., Inc. V. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 11 The evidence must be viewed in the light most favorable to the nonmoving party, and the 12 inferences to be drawn from the facts must be viewed in a light most favorable to the 13 nonmoving party. See id. at 631. It is not the task of the district court to scour the record 14 in search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 15 1996). The nonmoving party has the burden of identifying with reasonable particularity 16 the evidence that precludes summary judgment. Id. If the nonmoving party fails to do so, 17 the district court may properly grant summary judgment in favor of the moving party. See 18 id.; see, e.g., Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1028-29 19 (9th Cir. 2001). 20 A. 21 Deliberate indifference to a prisoner’s serious medical needs violates the Eighth Deliberate Indifference 22 Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A prison official violates the 23 Eighth Amendment only when two requirements are met: (1) the deprivation alleged is, 24 objectively, sufficiently serious, and (2) the official is, subjectively, deliberately indifferent 25 to the inmate’s health or safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). 26 27 28 A “serious” medical need exists if the failure to treat a prisoner’s condition could result in further significant injury or the “unnecessary and wanton infliction of pain.” Id. 6 United States District Court Northern District of California 1 The following are examples of indications that a prisoner has a “serious” need for medical 2 treatment: the existence of an injury that a reasonable doctor or patient would find 3 important and worthy of comment or treatment; the presence of a medical condition that 4 significantly affects an individual’s daily activities; or the existence of chronic and 5 substantial pain. McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled 6 on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) 7 (en banc). 8 A prison official is deliberately indifferent if he knows that a prisoner faces a 9 substantial risk of serious harm and disregards that risk by failing to take reasonable steps 10 to abate it. See Farmer, 511 U.S. at 837. The official must both know of “facts from 11 which the inference could be drawn” that an excessive risk of harm exists, and he must 12 actually draw that inference. Id. If a prison official should have been aware of the risk, 13 but was not, then the official has not violated the Eighth Amendment, no matter how 14 severe the risk. Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). 15 B. 16 Plaintiff claims that Defendant Kowall was contracted with the CDCR and thereby 17 a state actor. Dkt. No. 1 at 9. Plaintiff claims Defendant Kowall “knowingly, unlawfully, 18 and with specific intent violated [his] rights by denying Plaintiff medical treatment on 19 07/25/18, when plaintiff refused to sign a deceptive waiver of Liability Doctrine/ 20 Arbitration Agreement,” and that Defendant “subsequently conspire[ed] with defendants 21 Dr. Law Fu and Dr. Rachel Ross to abruptly terminat[e] Plaintiff’s previously prescribed 22 Pain Medication which subjected Plaintiff to cruel and unusual punishment.” Id. 23 Analysis Defendant first asserts that Plaintiff is unable to show that he was deprived of 24 something sufficiently serious because there are no facts to suggest that the orthopedic 25 evaluation was of an urgent nature. Dkt. No. 39 at 9. Rather, Plaintiff was a chronic care 26 patient who has had osteoarthritis in his right shoulder for approximately three years. Id., 27 citing Dkt. No. 1 at 10. Therefore, Defendant asserts, that since the proposed evaluation 28 7 United States District Court Northern District of California 1 was not of an urgent nature, it cannot be said to be a sufficiently serious deprivation so as 2 to constitute deliberate indifference under the objective standard. Id. Defendant also 3 asserts that Plaintiff is unable to present any evidence to establish the subjective element, 4 i.e., that Defendant had knowledge that Plaintiff was being denied treatment and that the 5 denial was likely to cause him substantial risk of serious harm. Id. at 10. Defendant 6 asserts that he did not even know that Plaintiff was at the Hospital, and that a nurse 7 informed him of Plaintiff’s refusal to sign the consent form and transport back to the 8 prison. Id. Defendant also asserts that he was not the one who required Plaintiff to sign 9 the consent form; it was required by the Hospital prior to being seen. Id. at 10-11. Lastly 10 with respect to the conspiracy claim, Defendant Kowall asserts that Plaintiff cannot state 11 such a claim because Defendant never had any contact with Plaintiff’s treating physicians 12 at the prison and was not involved in Plaintiff’s care and treatment at the prison. Id. at 11. 13 In opposition, Plaintiff asserts for the first time that he had personal interaction with 14 Defendant Kowall on July 25, 2018. He states in his opposition that when he arrived at the 15 Hospital parking lot, Correctional Officer Alejo presented him with page 3 of a waiver of 16 liability document and instructed him to sign it prior be being seen by Defendant Kowall. 17 Dkt. No. 43 at 3. Plaintiff states that he later entered the facility, and “while in the 18 presence of defendant Dr. M. Kowall, in his office, read pages one and two of the 19 document and subsequently declined to sign what Plaintiff then perceived as a deceptive 20 arbitration agreement with Dr. Kowall.” Id. In support he relies on a copy of 21 correspondence from Nurse M. Chua to Dr. Anderson, stating the following: “Also, he 22 wants to still see the ortho specialist. His refusal to sign the paper presented to him at the 23 time of specialist visit 7/25/18 was taken by specialist as a refusal of treatment, per 24 patient.” Id., Ex. B, Dkt. No. 43 at 19. Plaintiff also provides a copy of a health care 25 grievance “Headquarters’ Level Response” dated January 17, 2019, wherein it states: “It 26 was noted that you refused to be seen for your shoulder while in the provider’s office 27 because you did not want to sign a waiver for risks of surgery. You were informed that 28 8 United States District Court Northern District of California 1 physicians can choose to not accept a new patient who does not sign their Arbitration 2 Agreement.” Id., Ex. D, Dkt. No. 43 at 25. Plaintiff asserts that he was never presented 3 with a 7-page document, only a 3-page “waiver of liability” document. Id. at 3. Plaintiff 4 asserts that Defendant Kowall had copies of his medical records and knew that his visit 5 was for an evaluation for orthopedic surgery or other surgical procedures, with the goal 6 that such procedure would require Plaintiff ingest “less narcotics.” Id. at 4. Plaintiff 7 asserts that as a result of Defendant Kowall’s denial of medical treatment on July 25, 2018, 8 after he refused to sign the arbitration agreement, Defendant Fu discontinued his 9 methadone medication on July 29, 2018. Id. at 4. Therefore, Plaintiff asserts, Defendant 10 Kowall’s actions were the proximate cause of Defendant Fu’s actions, causing ongoing 11 pain and suffering. Id. 12 In reply, Defendant Kowall asserts that Plaintiff’s declaration and evidence 13 submitted in opposition are insufficient to show that he knowingly disregarded any serious 14 medical needs. Dkt. No. 44 at 2. Rather, Defendant asserts, the undisputed evidence 15 shows that Plaintiff refused to sign an admission form required by the Hospital, and 16 Defendant Kowall was unable to treat Plaintiff due to the Hospital policy which requires 17 forms to be signed prior to treatment. Id. Defendant asserts that although Plaintiff 18 disputes the document he refused to sign was the 7-page Consent for Treatment and 19 Conditions for Admission form, he does not dispute that the form he was asked to sign was 20 a form the Hospital required. Id. Regardless of whether the form consisted of three or 21 seven pages, Defendant asserts that the undisputed evidence shows that he was unable to 22 treat patients at the Hospital unless they sign the forms required by the Hospital, and 23 Plaintiff refused to sign. Id. at 2-3. Furthermore, Defendant Kowall objects to Plaintiff’s 24 testimony and evidence that the person he interacted with at the Hospital was Defendant 25 Kowall since there is no evidence that Plaintiff had ever been treated by him prior to that 26 date. Id. at 3. Defendant asserts that Plaintiff fails to explain how he knew it was 27 Defendant Kowall as opposed to the nurse or other administrative official at the Hospital, 28 9 1 and Plaintiff does not state that Defendant Kowall introduced himself to Plaintiff. Id. 2 Furthermore, Defendant asserts that even if Plaintiff could prove that they had personal 3 interaction that day, Plaintiff has still failed to establish that Defendant was deliberately 4 indifferent to any serious medical need based on Plaintiff’s refusal to sign the required 5 paperwork where Plaintiff was merely seeking an evaluation of his chronic osteoarthritis, a 6 condition he had been living with for years. Id. at 3-4. Lastly, Defendant asserts that there 7 is no evidence to support Plaintiff’s claim that there was a conspiracy between Defendant 8 Kowall and any of his treating physicians at the Hospital. Id. at 4. Viewing the evidence in the light most favorable to Plaintiff, the Court finds there is United States District Court Northern District of California 9 10 no genuine dispute as to any material fact relating to Plaintiff’s claim of deliberate 11 indifference against Defendant Kowall. First of all, it matters not what the exact nature of 12 the paperwork was that Plaintiff refused to sign, i.e., whether it was a 7-page consent form 13 or a 3-page “waiver of liability.” See supra at 3-4. Rather, it only matters that Plaintiff 14 was denied treatment because he refused to sign it; that fact is undisputed. Secondly, 15 while there is a genuine dispute over whether Defendant Kowall personally met with 16 Plaintiff on July 25, 2018, and refused to treat him based on Plaintiff’s refusal to sign some 17 paperwork, that dispute is also immaterial.4 Even if the Court assumes that Defendant 18 Kowall did meet Plaintiff and refused him treatment on July 25, 2018, there is no evidence 19 that his actions amount to deliberate indifference. The undisputed evidence shows that the purpose of the visit was an evaluation for 20 21 surgery to ease the chronic pain associated with Plaintiff’s osteoarthritis in his right 22 shoulder. See supra at 2. Even assuming that Plaintiff’s condition was sufficiently serious 23 to satisfy the first element for an Eighth Amendment claim, there is no evidence to satisfy 24 the second element: that Defendant Kowall was aware of an excessive risk of harm to 25 26 27 28 In his declaration, Defendant Kowall denies ever meeting Plaintiff either on July 25, 2018, or at any other time. See supra at 3. Plaintiff disputes this assertion in opposition, stating that Defendant has failed to produce any evidence that a “nurse” was the person that refused him medical treatment on July 25, 2018. Id. at 4. 4 10 United States District Court Northern District of California 1 Plaintiff that needed to be abated. See Farmer, 511 U.S. at 837. It is undisputed that 2 Defendant was never notified that Plaintiff’s condition was urgent such that he needed to 3 be seen right away. Kowall Decl. ¶ 5. In response to Plaintiff’s discovery request, 4 Defendant Kowall provided Plaintiff with copies of all the medical records or documents 5 he had for Plaintiff. Dkt. No. 43 at 32-39. These papers include a “Health Care Services 6 Physician Request for Services,” dated May 2, 2018, requesting orthopedic surgery for 7 Plaintiff’s “chronic shoulder pain.” Dkt. No. 43 at 37. The request was indicated as 8 “routine,” rather than “emergent” or “urgent.” Id. Furthermore, this request was 9 accompanied by notes from two exams on January 22, 2015, and May 20, 2016. Id. at 35- 10 37. The first exam notes dated January 22, 2015, compared x-rays of Plaintiff’s right 11 shoulder with those taken on November 6, 2014, and the second notes from May 20, 2016, 12 compared a recent MRI of Plaintiff’s right shoulder with the prior year’s January 22, 2015 13 exam. Id. Lastly, there was included an outpatient progress note dated March 22, 2018, 14 stating that an orthopedic consultation was requested, and that the “goal of our referral to 15 the orthopedist is to determine if patient would benefit from arthroscopic surgery or other 16 surgical procedures. The hope will be that he would require less narcotics.” Id. at 39. 17 Plaintiff does not dispute that these documents contained all the information that 18 Defendant Kowall had with respect to Plaintiff’s referral for orthopedic surgery. Dkt. No. 19 43 at 8. There is no indication in these papers that Plaintiff’s condition was emergent or 20 urgent. Rather, the information provided to Defendant Kowall indicated that Plaintiff had 21 this condition since 2015, and that the timeline was “routine.” The purpose of the 22 evaluation was to “determine if patient would benefit” from surgery, with the “hope” that 23 it could reduce his need for narcotics. Id. at 39. It cannot be said that this language put 24 Defendant on notice that an immediate evaluation was necessary to reduce a substantial 25 risk of serious harm to Plaintiff. Accordingly, there is no evidence establishing that when 26 Defendant Kowall refused to treat Plaintiff because he did not sign some forms on July 25, 27 2018, Defendant did so despite knowing that Plaintiff faced a substantial risk of serious 28 11 1 harm if he was not immediately provided with an evaluation that day. See Farmer, 511 2 U.S. at 837. Even if Defendant should have been aware of the risk but was not, as he 3 attests, Defendant has not violated the Eighth Amendment, no matter how serious the risk. 4 See Gibson, 290 F.3d at 1188. Plaintiff asserts that Defendant Kowall was aware that the purpose of the medical United States District Court Northern District of California 5 6 visit “was to evaluate and schedule orthopedic surgery with the goal to eliminate years of 7 chronic pain.” Dkt. No. 39 at 9. Plaintiff asserts that “it has been long established that 8 doctors can not [sic] subject prisoners to wanton and unnecessary pain and suffering, by 9 refusing to timely see to it that prisoners are examined and treated by ‘specialists.’” Id. 10 However, the evidence shows that there was no guarantee or expectation that surgery 11 would eliminate Plaintiff’s chronic pain. As the referral notes stated, the evaluation by the 12 orthopedist was “to determine if patient would benefit” from surgery, with the “hope” that 13 Plaintiff would require less narcotics. Dkt. No. 43 at 39 (emphasis added). Accordingly, it 14 cannot be said that Defendant Kowall knew that a failure to examine Plaintiff on July 25, 15 2018, would subject Plaintiff to wanton and unnecessary pain where the actual benefits of 16 surgery were unknown. Ultimately, Plaintiff must submit evidence that Defendant knew 17 that Plaintiff faced a substantial risk of serious harm and disregarded that risk by failing to 18 take reasonable steps to abate it. As discussed above, he has not. 19 C. Conspiracy 20 Plaintiff claims that Defendant Kowall conspired with Defendants Fu and Ross to 21 later terminate his pain medication. Dkt. No. 1 at 9. Conspiracy is not itself a 22 constitutional tort under 42 U.S.C. § 1983. Lacey v. Maricopa County, 693 F.3d 896, 935 23 (9th Cir. 2012) (en banc). It does not enlarge the nature of the claims asserted by the 24 plaintiff, as there must always be an underlying constitutional violation. Id. Here, there is 25 no underlying constitutional violation because there is no evidence establishing Defendant 26 Kowall acted with deliberate indifference to Plaintiff’s serious medical needs on July 25, 27 2018. 28 12 United States District Court Northern District of California 1 Furthermore, a civil conspiracy is a combination of two or more persons who, by 2 some concerted action, intend to accomplish some unlawful objective for the purpose of 3 harming another which results in damage. Gilbrook v. City of Westminster, 177 F.3d 839, 4 856 (9th Cir. 1999). To prove a civil conspiracy, the plaintiff must show that the 5 conspiring parties reached a unity of purpose or common design and understanding, or a 6 meeting of the minds in an unlawful agreement. Id. Defendant Kowall attests that he 7 never spoke to any of Plaintiff’s treatment providers at the prison and was not involved in 8 his care at the prison. See supra at 3-4. Plaintiff provides no evidence to show otherwise. 9 Rather, Plaintiff asserts in opposition that Defendant Kowall’s actions were the “proximate 10 cause” for Defendants Fu later discontinuing his methadone prescription. See supra at 9. 11 Even if it were true that Defendant Fu decided to discontinue Plaintiff’s pain medication 12 because he refused to sign Defendant Kowall’s paperwork, there is no evidence that 13 Defendant Kowall was complicit in Defendant Fu’s actions. A causal connection is not 14 sufficient to establish that there was a meeting of the minds between Defendants Kowall 15 and Fu in an unlawful agreement to deprive Plaintiff of his Eighth Amendment rights 16 where there is no evidence of any communication between them. See Gilbrook, 177 F.3d 17 at 856. Accordingly, Defendant Kowall is entitled to summary judgment on the 18 conspiracy claim. 19 D. 20 Lastly with respect with Plaintiff’s claim for punitive damages, Defendant Kowall Punitive Damages 21 asserts that punitive damages may be awarded in a § 1983 suit only “when defendant's 22 conduct is shown to be motivated by evil motive or intent, or when it involves reckless or 23 callous indifference to the federally protected rights of others.” Dkt. No. 39 at 11, citing 24 Smith v. Wade, 461 U.S. 30, 56 (1983). Defendant asserts that Plaintiff is unable to show 25 he acted with an evil motive or was recklessly indifferent to Plaintiffs’ rights given the 26 evidence that he never even knew Plaintiff was denied any treatment. Id. Defendant 27 points out in reply that Plaintiff’s opposition is silent with respect to this argument, and 28 13 1 there is no evidence to even remotely suggest that Defendant Kowall was guilty of 2 oppression, fraud, or malice. Dkt. No. 44 at 4; Dkt. No. 43. As discussed above, there is no genuine dispute of material fact that Defendant United States District Court Northern District of California 3 4 Kowall acted with deliberate indifference to Plaintiff’s serious medical needs. See supra at 5 11-12. Specifically, there is no evidence that Defendant knew that Plaintiff faced a 6 substantial risk of serious harm if he was not evaluated that day for surgery and yet failed 7 to act. Id. Likewise, there is no evidence that Defendant acted with evil motive or intent, 8 or with reckless or callous indifference. See Smith, 461 U.S. at 56. Accordingly, the claim 9 for punitive damages must be dismissed. 10 E. Conclusion 11 Based on these undisputed facts, Defendant has shown there is an absence of a 12 genuine dispute of material fact with respect to the Eighth Amendment and conspiracy 13 claims against him. See Celotex Corp., 477 U.S. at 323. Plaintiff has failed to meet his 14 burden of identifying with reasonable particularity the evidence that precludes summary 15 judgment, see Keenan, 91 F.3d at 1279, or submit evidence from which a jury could 16 reasonably render a verdict in his favor, In re Oracle Corporation Securities Litigation, 17 627 F.3d at 387. Accordingly, Defendant Kowall is entitled to summary judgment on all 18 the claims against him. See Celotex Corp., 477 U.S. at 323. 19 CONCLUSION 20 For the reasons stated above, Defendant Mark G. Kowall’s motion for summary 21 22 judgment is GRANTED. Dkt. No. 39. The Eighth Amendment deliberate indifference 23 claim against him is DISMISSED with prejudice. Accordingly, Defendant Kowall’s prior 24 motion to dismiss is DENIED as moot. Dkt. No. 27. 25 The Clerk shall terminate Defendant Kowall from this action. 26 This order terminates Docket Nos. 27 and 39. 27 28 /// 14 1 2 IT IS SO ORDERED. Dated: _August 28, 2020_______ ________________________ BETH LABSON FREEMAN United States District Judge 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Order Granting MSJ; Deny MTD as Moot PRO-SE\BLF\CR.19\02119Smith_grant-msj.Kowall 26 27 28 15
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