Goodin v. Dr. Crisp and Dr. Flora, No. 2:2015cv00218 - Document 39 (E.D. Wash. 2016)

Court Description: ORDER granting 27 Defendants' Motion for Summary Judgment. Judgment is entered in favor of Defendants. The file is closed. Signed by Chief Judge Thomas O. Rice. (BF, Paralegal)

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1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 ELLIOTT D. GOODIN, NO: 2:15-CV-0218-TOR 8 Plaintiff, 9 10 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT v. DR. FLOURA and DR. CRISP, 11 Defendants. 12 BEFORE THE COURT is Defendants’ Motion for and Memorandum in 13 14 Support of Summary Judgment (ECF No. 27). This matter was submitted for 15 consideration without oral argument. The Court—having reviewed the parties’ 16 complete briefing, the record, and files therein—is fully informed. For the 17 following reasons, the Court grants Defendants’ motion. 18 // 19 // 20 // ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 1 1 BACKGROUND 2 Plaintiff Elliott D. Goodin (“Plaintiff”), proceeding pro se and in forma 3 pauperis, is a patient at Eastern State Hospital. ECF Nos. 14; 16 at 2; 28 at 1. 4 Plaintiff filed his Complaint in this action on October 30, 2015. ECF No. 16. The 5 Court construes Plaintiff’s Complaint as alleging the deprivation of Plaintiffs’ right 6 to adequate medical care in violation of 42 U.S.C. § 1983. See id. at 3-4. 7 Defendants move for summary judgment on all claims. ECF No. 27. For the 8 reasons discussed below, the Court grants Defendants’ motion. 9 FACTS 10 The following are the undisputed material facts unless otherwise noted. 11 Because Plaintiff failed to file any opposing statement of facts, Defendants’ 12 proffered facts are deemed admitted. 13 Plaintiff was admitted to Eastern State Hospital on August 11, 2014, 14 pursuant to an Order of Acquittal by Reason of Insanity and Order of Commitment 15 from Pierce County on a charge of second degree murder.1 ECF Nos. 28 at ¶ 1; 29 16 17 1 The Court acknowledges that Plaintiff has filed several letters attaching a 18 release notice from Western State Hospital, dated August 11, 2014. ECF Nos. 34 19 at 4-5; 35 at 1-2. Plaintiff requests that the Court “comply with [the] order” 20 alleging “false imprisonment.” Id. Plaintiff’s request is not properly before the ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 2 1 at 4-13; 31 at ¶ 1. Plaintiff was assigned to a locked unit for patients who are 2 involuntarily committed to the hospital as a result of criminal charges resulting in a 3 finding of not guilty by reason of insanity. ECF Nos. 28 at ¶ 2; 29 at 4-13. 4 Plaintiff has had an implanted pacemaker device for approximately eight 5 years. ECF Nos. 28 at ¶ 4; 29 at 15-20; see also ECF No. 16 at 4. Plaintiff alleges 6 that he received a card from his cardiologist stating that he should not walk under 7 metal detectors due to interference with his pacemaker. ECF Nos. 16 at 3; 28 8 at ¶ 6; 29 at 22. Eastern State Hospital’s policy and procedures require its patients 9 who leave the forensic unit to pass through a metal detector or undergo a hand or 10 wand search before reentering the forensic unit for safety and security reasons. 11 ECF Nos. 28 at ¶ 3; 31 at ¶ 5. 12 On August 26, 2014, Plaintiff refused to pass through a metal detector at 13 Eastern State Hospital because of Plaintiff’s belief that the metal detector would 14 damage or interfere with his pacemaker. ECF Nos. 28 at ¶ 5; 29 at 22; 31 at ¶ 6. 15 16 17 Court in this matter; accordingly, the Court will not consider it at this time. 18 However, for purposes of Defendants’ instant motion, the Court finds that Plaintiff 19 was, in fact, released from Western State Hospital to the care of Eastern State 20 Hospital on August 11, 2014. ECF No. 29 at 15-20. ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 3 1 Instead of requiring Plaintiff to walk through the metal detector, Plaintiff was 2 searched by a hand wand scanner. ECF Nos. 28 at ¶¶ 5, 7; 29 at 22. 3 On August 27, 2014, Defendant Thomas Crisp (“Dr. Crisp”), Plaintiff’s 4 primary care physician at Eastern State Hospital, consulted and confirmed with 5 Rockwood Heart and Vascular Center that passing through a metal detector would 6 not interfere with Plaintiff’s pacemaker. ECF Nos. 28 at ¶ 8; 29 at 24; 31 at ¶¶ 1, 7. 7 That same day, Dr. Crisp discontinued use of the hand wand scanner and, instead, 8 ordered Plaintiff to pass through the metal detector. ECF Nos. 16 at 3; 28 at ¶ 10; 9 29 at 22, 24. Despite assurances by Dr. Crisp that the metal detector would not 10 adversely affect his pacemaker, Plaintiff continued to refuse to comply. ECF Nos. 11 28 at ¶ 11; 29 at 26; 31 at ¶ 7. As a result, Plaintiff was physically searched at each 12 security screening point thereafter. ECF Nos. 28 at ¶ 12; 29 at 26. 13 Nearly seven months later, Plaintiff received a letter dated March 17, 2015, 14 from Boston Scientific Cardiac Rhythm Management, Plaintiff’s pacemaker 15 vendor, enclosing a travel card and instructing Plaintiff to present the card to 16 airport security personnel and alert personnel not to use security wands over his 17 implanted device. ECF Nos. 28 at ¶¶ 13-14; 29 at 28-29, 31. Specifically, the 18 travel card provides that “[s]ecurity alarms may be triggered when walking through 19 security gates but the implanted device will not be adversely affected.” Id. 20 Following receipt of the letter and travel card, Plaintiff continued refusing to walk ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 4 1 through the metal detector claiming that the machine would adversely affect his 2 pacemaker. ECF Nos. 28 at ¶ 15; 29 at 31; 31 at ¶ 7. 3 Defendants contend that the metal detector did not damage or interfere with 4 Plaintiff’s pacemaker and that Plaintiff did not suffer any medical issues or ill 5 effects from passing through the metal detector. ECF No. 28 at ¶ 16; 31 at ¶ 8. In 6 response, Plaintiff’s unverified opposition references “instances where [Plaintiff 7 had] chest pain” and, on occasions, “was even administered nitroglycerin.” ECF 8 No. 34 at 2. In contrast, Plaintiff also concedes that he “never had chest pain or 9 any other problems.” Id. Although the Court is unable to ascertain whether 10 Plaintiff avers that he suffered chest pain requiring nitroglycerin while committed 11 at Eastern State Hospital, binding precedent precludes the Court from considering 12 either of Plaintiff’s assertions because his contentions are neither verified, nor 13 supported by affidavit.2 In addition, Plaintiff alleges that Defendant Kamaljit Floura (“Dr. Floura”), 14 15 Eastern State Hospital’s Medical Director, prescribed a Thorazine shot to Plaintiff, 16 17 2 See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) 18 (requiring the non-moving party to “go beyond the [unverified] pleadings” and 19 submit admissible evidence supporting its position). Plaintiff’s response brief, ECF 20 No. 34, does not meet Celotex’s requirement. Id. ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 5 1 despite a noted allergy in Plaintiff’s chart. ECF No. 16 at 4. Plaintiff’s admission 2 records indicate that he is allergic to Thorazine (Chlorpromazine). ECF Nos. 28 at 3 ¶ 17; 29 at 17. Specifically, on December 27, 2014, Plaintiff threatened harm to 4 staff and peers by exhibiting aggressive, violent behavior. ECF Nos. 28 at ¶ 18; 29 5 at 33; 30 at ¶ 6. During this episode, Defendants admit that Dr. Floura mistakenly 6 prescribed Thorazine to Plaintiff as needed for agitation. Id. Dr. Floura was not 7 Plaintiff’s regular care provider and was unaware that Plaintiff is allergic to 8 Thorazine. ECF Nos. 28 at ¶ 18; 30 at ¶ 2, 7. However, the staff member charged 9 with administering Thorazine was aware of Plaintiff’s reported allergy and, 10 therefore, substituted Seroquel for Thorazine. ECF Nos. 28 at ¶ 19; 29 at 35; 30 at 11 ¶ 8. In other words, Thorazine was never administered to Plaintiff. ECF Nos. 28 at 12 ¶ 19; 30 at ¶ 8. 13 DISCUSSION 14 A. Standard of Review 15 Summary judgment may be granted to a moving party who demonstrates 16 “that there is no genuine dispute as to any material fact and the movant is entitled 17 to judgment as a matter of law.” Fed. R. Civ. P. 36(a). The moving party bears the 18 initial burden of demonstrating the absence of any genuine issues of material fact. 19 Celotex, 477 U.S. at 323. The burden then shifts to the non-moving party to 20 identify specific facts showing there is a genuine issue of material fact. See ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 6 1 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). “The mere existence 2 of a scintilla of evidence in support of the plaintiff's position will be insufficient; 3 there must be evidence on which the jury could reasonably find for the plaintiff.” 4 Id. at 252. For purposes of summary judgment, “[i]f a party fails to properly 5 support an assertion of fact or fails to properly address another party's assertion of 6 fact as required by Rule 56(c), the court may . . . consider the fact undisputed.” 7 Fed. R. Civ. P. 56(e)(2); see also LR 56.1(d) (“[T]he Court may assume that the 8 facts as claimed by the moving party are admitted to exist without controversy 9 except as and to the extent that such facts are controverted by the record set forth 10 11 [in the non-moving party’s opposing statement of facts]”). A pro se litigant’s contentions offered in motions and pleadings are properly 12 considered evidence “where such contentions are based on personal knowledge 13 and set forth facts that would be admissible in evidence, and where [a litigant] 14 attest[s] under penalty of perjury that the contents of the motions or pleadings are 15 true and correct.” Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (allegations 16 in a pro se plaintiff’s verified pleadings must be considered as evidence in 17 opposition to summary judgment). Conversely, unverified pleadings are not 18 treated as evidence. Contra Johnson v. Meltzer, 134 F.3d 1393, 1399-400 (9th Cir. 19 1998) (verified motion swearing that statements are “true and correct” functions as 20 an affidavit); Schroeder v. McDonald, 55 F.3d 454, 460 n.10 (9th Cir. 1995) ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 7 1 (pleading counts as “verified” if drafter states under penalty of perjury that the 2 contents are true and correct). 3 For purposes of summary judgment, a fact is “material” if it might affect the 4 outcome of the suit under the governing law. Anderson, 477 U.S. at 248. A dispute 5 concerning any such fact is “genuine” only where the evidence is such that the 6 trier-of-fact could find in favor of the non-moving party. Id. “[A] party opposing a 7 properly supported motion for summary judgment may not rest upon the mere 8 allegations or denials of his pleading, but must set forth specific facts showing that 9 there is a genuine issue for trial.” Id. (internal quotation marks and alterations 10 omitted); see also First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288- 11 89 (1968) (holding that a party is only entitled to proceed to trial if it presents 12 sufficient, probative evidence supporting the claimed factual dispute, rather than 13 resting on mere allegations). Moreover, “[c]onclusory, speculative testimony in 14 affidavits and moving papers is insufficient to raise genuine issues of fact and 15 defeat summary judgment.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 16 (9th Cir. 2007); see also Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th 17 Cir. 1996) (“[M]ere allegation and speculation do not create a factual dispute for 18 purposes of summary judgment.”). 19 In ruling upon a summary judgment motion, a court must construe the facts, 20 as well as all rational inferences therefrom, in the light most favorable to the nonORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 8 1 moving party, Scott v. Harris, 550 U.S. 372, 378 (2007), and only evidence which 2 would be admissible at trial may be considered, Orr v. Bank of Am., NT & SA, 285 3 F.3d 764, 773 (9th Cir. 2002). See also Tolan v. Cotton, 134 S. Ct. 1861, 1863 4 (2014) (“[I]n ruling on a motion for summary judgment, the evidence of the 5 nonmovant is to be believed, and all justifiable inferences are to be drawn in his 6 favor.” (internal quotation marks and brackets omitted)). Finally, although pro se 7 pleadings are held to less stringent standards than those prepared by attorneys, pro 8 se litigants in an ordinary civil case should not be treated more favorably than 9 parties with attorneys of record. See Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th 10 Cir. 1986). 11 B. Section 1983 Claims 12 Based on the Court’s interpretation of Plaintiff’s Complaint, the Court 13 discerns two potential causes of action under 42 U.S.C. § 1983 related to the 14 deprivation of Plaintiffs’ right to adequate medical care. See ECF No. 16 at 3-4. 15 First, Plaintiff alleges that Dr. Crisp required him to undergo metal detector 16 security screening despite Plaintiff’s concerns about interference with his 17 // 18 // 19 // 20 // ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 9 1 pacemaker. Id. Second, Plaintiff contends that Dr. Floura incorrectly prescribed 2 Thorazine notwithstanding Plaintiff’s reported allergy.3 Id. A section 1983 cause of action may be maintained “against any person 3 4 acting under color of law who deprives another 'of any rights, privileges, or 5 immunities secured by the Constitution and laws' of the United States.” S. Cal. 6 Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 (9th Cir. 2003) (quoting 42 U.S.C. 7 § 1983). The rights guaranteed by section 1983 are “liberally and beneficently 8 construed.” Dennis v. Higgins, 498 U.S. 439, 443 (1991) (quoting Monell v. N.Y. 9 City Dep’t of Soc. Servs., 436 U.S. 658, 684 (1978)). Section 1983 requires a claimant to prove “(1) that a person acting under 10 11 color of state law committed the conduct at issue, and (2) that the conduct deprived 12 the claimant of some right, privilege, or immunity protected by the Constitution or 13 laws of the United States.” Leer v. Murphy, 844 F.2d 628, 632–33 (9th Cir. 1988). 14 15 3 In response to Defendants’ summary judgment motion, Plaintiff’s response 16 purports to assert a new cause of action for negligence, ECF No. 34 at 1. Yet, 17 mere negligence does not trigger the protections of the Fourteenth Amendment 18 and, therefore, does not support a claim under 42 U.S.C. § 1983. Daniels v. 19 Williams, 474 U.S. 327, 330-31 (1986); Davidson v. Cannon, 474 U.S. 344, 347-48 20 (1986) (negligence is not actionable under section 1983). ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 10 1 “A person deprives another 'of a constitutional right, within the meaning of section 2 1983, if he does an affirmative act, participates in another's affirmative acts, or 3 omits to perform an act which he is legally required to do that causes the 4 deprivation of which the plaintiff complains.'” Id. at 633 (brackets omitted) 5 (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). Moreover, the 6 “inquiry into causation must be individualized and focus on the duties and 7 responsibilities of each individual defendant whose acts or omissions are alleged to 8 have caused a constitutional deprivation.” Id. 9 Defendants contend, and the Court agrees, that they acted under color of 10 state law while serving as Plaintiff’s health care providers at Eastern State 11 Hospital. Therefore, this case turns on the second inquiry: whether Defendants 12 violated Plaintiff’s constitutional rights. 13 C. Qualified Immunity 14 Against this backdrop, Defendants are entitled to a qualified immunity 15 analysis on Plaintiff’s section 1983 claims. Qualified immunity shields 16 government actors from civil damages unless their conduct violates “clearly 17 established statutory or constitutional rights of which a reasonable person would 18 have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citation omitted). 19 “Qualified immunity balances two important interests––the need to hold public 20 officials accountable when they exercise power irresponsibly and the need to shield ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 11 1 officials from harassment, distraction, and liability when they perform their duties 2 reasonably.” Id. 3 In evaluating a state actor’s qualified immunity assertion, a court must 4 determine (1) whether the facts, viewed in the light most favorable to the plaintiff, 5 show that the defendant’s conduct violated a constitutional right; and (2) whether 6 the right was clearly established at the time of the alleged violation such that a 7 reasonable person in the defendant’s position would have understood that his 8 actions violated that right. Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in 9 part by Pearson, 555 U.S. at 227. To determine whether a right is “clearly 10 11 12 13 established,” courts consider the following: [The contours of the right] must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful . . . but it is to say that in the light of pre-existing law the unlawfulness must be apparent. 14 15 Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal citations omitted). A court 16 may, within its discretion, decide which of the two prongs should be addressed first 17 in light of the particular circumstances of the case. Pearson, 555 U.S. at 236. If 18 the answer to either inquiry is “no,” then the defendant is entitled to qualified 19 immunity and may not be held personally liable for his or her conduct. Glenn v. 20 Wash. Cnty., 673 F.3d 864, 870 (9th Cir. 2011). ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 12 1 Here, because Plaintiff’s section 1983 claims and Defendants’ assertion of 2 qualified immunity both hinge on whether Defendants’ conduct violated Plaintiff’s 3 constitutional rights, the Court analyzes section 1983 and qualified immunity in 4 tandem. The Court construes Plaintiff’s Complaint to allege that Defendants failed 5 to provide Plaintiff with adequate medical care while in state custody regarding his 6 pacemaker device and Thorazine allergy. ECF No. 16 at 3-4. 7 As a preliminary matter, Plaintiff was found not guilty by reason of insanity 8 and committed to the custody of the state at Eastern State Hospital. See ECF Nos. 9 28 at ¶ 1; 29 at 4-13; and 31 at ¶ 1. Although Plaintiff is lawfully in state custody, 10 he is not a pretrial detainee or a “prisoner” subject to punishment by the state; as a 11 result, Plaintiff is entitled to more protection than that provided by the Eighth 12 Amendment. See e.g., Jones v. United States, 463 U.S. 354, 368 (1983) (“The 13 purpose of commitment following an insanity acquittal, like that of civil 14 commitment, is to treat the individual's mental illness and protect him and society 15 from his potential dangerousness.”); Youngberg v. Romeo, 457 U.S. 307, 315 16 (1982) (involuntarily committed persons retain substantive liberty interests, 17 including the right to adequate medical care); Ammons v. Wash. Dep't of Soc. & 18 Health Servs., 648 F.3d 1020, 1027 (9th Cir. 2011) (“Involuntarily committed 19 patients in state mental health hospitals have a Fourteenth Amendment due process 20 right to be provided safe conditions . . . .”); Oregon Advocacy Ctr. v. Mink, 322 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 13 1 F.3d 1101, 1121, n.11 (9th Cir. 2003) (deliberate indifference is useful in the 2 substantive due process context, but does not solely govern the analysis). 3 Accordingly, the Court analyzes Plaintiff’s claims under the Fourteenth 4 Amendment’s Due Process Clause, rather than the Eighth Amendment's protection 5 against cruel and unusual punishment. 6 The Supreme Court has determined the proper standard for analyzing 7 whether a state has adequately protected the rights of involuntarily committed 8 patients. Youngberg v. Romeo, 457 U.S. at 323. Under the Fourteenth 9 Amendment, a decision made by a professional regarding the medical care of 10 persons who are involuntarily committed are deemed “presumptively valid.” Id. It 11 is only when the professional’s decision is “a substantial departure from accepted 12 professional judgment, practice, or standards as to demonstrate that the person 13 responsible actually did not base the decision on such a judgment” that liability 14 may be imposed. Id. 15 The Ninth Circuit has articulated that the “Youngberg professional judgment 16 standard” requires that “in the face of known threats to patient safety, state officials 17 may not act (or fail to act) with conscious indifference, but must take adequate 18 steps in accordance with professional standards to prevent harm from occurring.” 19 20 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 14 1 Ammons, 648 F.3d at 1030 (internal quotation marks omitted).4 Importantly, “the 2 Constitution only requires that the courts make certain that professional judgment 3 in fact was exercised. It is not appropriate for the courts to specify which of several 4 professionally acceptable choices should have been made.” Youngberg, 457 U.S. at 5 321 (internal quotation marks omitted). Here, Plaintiff argues that Dr. Crisp’s decision to require Plaintiff to pass 6 7 through a metal detector violates his constitutional rights. ECF No. 16 at 3. Yet, 8 Plaintiff cites nothing in support of his argument, other than his bare assertion that 9 his “cardiologist in Tacoma, WA gave [him] a card . . . stating [he is] not to walk 10 under the medal [sic] detector under no circumstances.” Id. Plaintiff has failed to 11 produce any evidence supporting Plaintiff’s contention that metal detectors may 12 adversely affect his pacemaker. The Court has been presented with no testimony 13 14 4 The Youngberg professional judgment standard “differs from the 'deliberate 15 indifference' standard used in Eighth Amendment cruel and unusual punishment 16 cases, in that persons who have been involuntarily committed are entitled to more 17 considerate treatment and conditions of confinement than criminals whose 18 conditions of confinement are designed to punish.” Mitchell v. Washington, 818 19 F.3d 436, 443 (9th Cir. 2016) (internal quotation marks, alterations, and emphasis 20 omitted). ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 15 1 or evidence from Plaintiff’s cardiologist, or medical records evincing injuries 2 sustained from passing through the metal detector. Similarly, Plaintiff has 3 produced no evidence to suggest that Dr. Crisp’s decision was unreasonable, or 4 that his decision constitutes a “substantial departure from accepted professional 5 judgment, practice, or standards.” Youngberg, 457 U.S. at 323. 6 To the contrary, the undisputed evidence demonstrates that when Plaintiff 7 advised Dr. Crisp of his apprehension concerning his pacemaker, Dr. Crisp 8 promptly consulted with a medical professional at Rockwood Heart and Vascular 9 Center the next day to confirm that the metal detector would not affect Plaintiff’s 10 pacemaker. ECF Nos. 28 at ¶ 8; 29 at 24; and 31 at ¶¶ 1, 7. Moreover, the letter 11 from Plaintiff’s pacemaker vendor supports Dr. Crisp’s findings that “the 12 implanted device will not be adversely affected.” ECF Nos. 28 at ¶¶ 13-14; 29 at 13 28-29, 31. Despite Dr. Crisp’s reassurance and the pacemaker vendor’s 14 confirmatory missive, Plaintiff continued to refuse to pass through the metal 15 detector alleging a violation of his rights. ECF Nos. 28 at ¶ 15; 29 at 31; 31 at ¶ 7. 16 Plaintiff’s mere allegation and speculation are not sufficient to establish genuine 17 issues of material fact warranting his claims to proceed to trial. See Nelson, 83 18 F.3d at 1081–82. The Court finds that Dr. Crisp is entitled to summary judgment. 19 Similarly, the Court finds that Plaintiff’s claim against Dr. Floura must also 20 fail because there is simply is no evidence in the record from which a reasonable ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 16 1 factfinder could conclude that Dr. Floura stripped Plaintiff of any constitutional 2 right. Defendants concede that Dr. Floura mistakenly prescribed Thorazine to 3 Plaintiff after Plaintiff exhibited aggressive behavior and violence. ECF Nos. 16 at 4 4; 28 at ¶ 18; 29 at 33; 30 at ¶ 6. Likewise, it is undisputed that Plaintiff’s 5 admission record indicates that he is allergic to Thorazine. ECF Nos. 16 at 4; 28 at 6 ¶ 17; 29 at 17. That Dr. Floura mistakenly prescribed Thorazine, however, is not 7 sufficient to show that Dr. Floura’s decision to do so was unreasonable. Rather, 8 Dr. Floura submitted sworn testimony that he is “only called for code situations 9 such as a 'code gray' where a patient is an imminent danger to others or themselves 10 or if a patient is in the seclusion room and continues to fight and display 11 aggression.” ECF No. 30 at ¶ 4. Unaware of Plaintiff’s allergy to Thorazine and 12 confronted with Plaintiff’s violent episode, Dr. Floura prescribed Thorazine “to be 13 given as needed for aggression.” Id. at ¶¶ 6-7. Yet, Thorazine was never actually 14 administered to Plaintiff. ECF Nos. 28 at ¶ 19; 30 at ¶ 8. Plaintiff never suffered 15 an injury. Further, Plaintiff’s argument that he now has a fear of needles because 16 of Dr. Floura’s conduct is unsupported and not dispositive. ECF No. 34 at 1. 17 Finally, no inference can reasonably be drawn to indicate that Dr. Floura 18 acted with conscious indifference. See Ammons, 648 F.3d at 1030. Rather, the 19 evidence clearly shows that Dr. Floura prescribed Thorazine in taking “adequate 20 steps in accordance with professional standards to prevent harm from occurring” to ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 17 1 staff and peers. Id. The Court finds that Plaintiff’s unyieldingly asserted, 2 unsupported argument that “no doctor can write a prescription [sic] with out [sic] 3 looking at your alergies [sic]” is unpersuasive and not logically sound. ECF No. 4 35 at 3. Plaintiff has failed to present a genuine dispute to rebut the presumption 5 that Dr. Floura’s professional judgment was valid. Youngberg, 457 U.S. at 323. 6 Under the circumstances, the Court finds that Dr. Floura exercised professional 7 judgment. Indeed, no trier-of-fact, based on the evidence presented, could find 8 otherwise. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248 (explaining that a 9 dispute about a material fact is “genuine” if the evidence is such that a trier-of-fact 10 could return a verdict for the nonmoving party). 11 Consequently, the Court concludes that Plaintiff has failed to present any 12 evidence sufficient to rebut the Youngberg professional judgment standard as to 13 Dr. Crisp’s and Dr. Floura’s conduct. Accordingly, the Court finds that because 14 Plaintiff’s due process rights were not violated, Defendants Dr. Crisp and Dr. 15 Floura are entitled to qualified immunity, and summary judgment is appropriate as 16 to all of Plaintiff’s section 1983 claims. 17 Pursuant to 28 U.S.C. § 1915(a)(3), “[a]n appeal may not be taken in forma 18 pauperis if the trial court certifies in writing that it is not taken in good faith.” The 19 good faith standard is an objective one, and good faith is demonstrated when an 20 individual “seeks appellate review of any issue not frivolous.” See Coppedge v. ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 18 1 United States, 369 U.S. 438, 445 (1962). For purposes of 28 U.S.C. § 1915, an 2 appeal is frivolous if it lacks any arguable basis in law or fact. Neitzke v. Williams, 3 490 U.S. 319, 325 (1989). 4 ACCORDINGLY, IT IS ORDERED: 5 1. Defendants’ Motion for Summary Judgment (ECF No. 27) is 6 GRANTED. 7 2. Plaintiff's in forma pauperis status is REVOKED. 8 3. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal of 9 this Order would not be taken in good faith and would lack any arguable 10 11 basis in law or fact. 4. The District Court Executive is hereby directed to enter this Order, 12 provide copies to Plaintiff and Defendants’ counsel, enter JUDGMENT 13 for Defendants on all claims with prejudice, and CLOSE the file. 14 DATED September 21, 2016. 15 16 THOMAS O. RICE Chief United States District Judge 17 18 19 20 ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 19

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