(PC) Curtis v. Kushner et al, No. 1:2006cv00045 - Document 72 (E.D. Cal. 2011)

Court Description: ORDER GRANTING Defendant's Motion for Summary Judgment 62 , signed by Magistrate Judge Jennifer L. Thurston on 5/20/11: The Clerk of the Court SHALL enter judgment and close this case. (CASE CLOSED) (Hellings, J)
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(PC) Curtis v. Kushner et al Doc. 72 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROCKY CURTIS, 12 Case No. 1:06-cv-00045 JLT (PC) Plaintiff, 13 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT vs. (Doc. 62) 14 N. KUSHNER, et al., 15 Defendants. 16 / 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. 18 § 1983. Plaintiff claims that Defendant Vaughn rendered inadequate medical care in violation of the 19 Eighth Amendment. Now pending before the Court is Defendant’s March 7, 2011 motion for summary 20 judgment. Plaintiff has filed an opposition, and Defendant has filed a reply. For the reasons set forth 21 below, the Court GRANTS Defendant’s motion for summary judgment. 22 I. BACKGROUND 23 A. 24 Plaintiff alleges as follows.1 On May 13, 2004, Plaintiff injured several fingers while playing 25 softball. (Doc. 1 at 4.) Plaintiff underwent surgery to repair one of his fingers on July 22, 2004 (Id.) 26 On October 15, 2004, the cast on Plaintiff’s repaired finger was removed, and on October 20, 2004, 27 physical therapy was prescribed. (Id.) Factual Background 28 1 For the purpose of this motion, Plaintiff’s allegations are not disputed. (Cf. Doc. 63 at 2-4.) 1 Dockets.Justia.com 1 On October 26, 2004, Plaintiff underwent an initial evaluation with Defendant Vaughn who is 2 a physical therapist. (Id.) During the evaluation, Defendant pulled one of Plaintiff’s injured fingers, 3 causing Plaintiff “excruciating” pain. (Id.) Defendant then stated, “If you were on the streets, I would 4 have given you a shot for the pain first, but since you are in prison, oh well! Deal with it.” (Id.) The 5 evaluation was terminated soon thereafter. (Id. at 5.) Plaintiff never returned to Defendant for further 6 treatment. (Id. at 4.) 7 Based on these allegations, Plaintiff claims that Defendant Vaughn was deliberately indifferent 8 to his medical needs in violation of the Eighth Amendment. (See id. at 6.) More precisely, Plaintiff 9 claims that Defendant should not have pulled on his finger and should have provided him pain relief. 10 (Id.) Plaintiff now seeks monetary damages. (Id. at 3.) 11 B. 12 Plaintiff filed his complaint and initiated this action on January 13, 2006. (Doc. 1.) By order 13 filed July 23, 2007, the Court screened the complaint and found that it states a cognizable claim against 14 Defendant Vaughn under the Eighth Amendment for inadequate medical care. (Doc. 9.) The Court 15 instructed Plaintiff to either notify the Court of his willingness to proceed only on this claim or file an 16 amended complaint curing the deficiencies identified by the Court in its order with respect to Plaintiff’s 17 other claims. (Id.) On August 20, 2007, Plaintiff notified the Court that he did not wish to amend his 18 complaint. (Doc. 10.) Procedural History 19 The Court ordered service on Defendant. (Doc. 18.) After experiencing some initial difficulty, 20 service of process was finally effectuated on Defendant on or around July 7, 2009 (Doc. 38); however, 21 Defendant did not file a responsive pleading. Thus, on March 1, 2010, the Court granted Plaintiff’s 22 request for entry of default against Defendant. (Doc. 44.) 23 In response, on April 28, 2010, Defendant filed an answer to Plaintiff’s complaint. (Doc. 53.) 24 Defendant also filed a motion to set aside the entry of default (Doc. 53), which the Court granted on 25 August 11, 2010. (Doc. 60.) 26 On March 7, 2011, Defendant filed the instant motion for summary judgment. (Docs. 62-68.) 27 Upon direction by the Court (Doc. 69), Plaintiff filed his opposition to the motion on May 11, 2011. 28 (Doc. 70.) Defendant filed a reply two days later, on May 13, 2011. (Doc. 71.) 2 1 II. LEGAL STANDARDS 2 A. 3 Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials 4 on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant 5 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A material fact is one which may 6 affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute 7 regarding a material fact is genuine if the evidence is such that a reasonable trier of fact could return a 8 verdict in favor of the nonmoving party. Id. Summary Judgment 9 A party seeking summary judgment “always bears the initial responsibility of informing the 10 district court of the basis for its motion, and identifying those portions of the pleadings, depositions, 11 answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes 12 demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 13 323 (1986) (internal quotation marks omitted). Where the movant will have the burden of proof on an 14 issue at trial, it must “affirmatively demonstrate that no reasonable trier of fact could find other than for 15 the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). “On an issue 16 as to which the nonmoving party will have the burden of proof, however, the movant can prevail merely 17 by pointing out that there is an absence of evidence to support the nonmoving party’s case.” Id. (citing 18 Celotex, 477 U.S. at 323). 19 If the movant has sustained its burden, the nonmoving party must “show a genuine issue of 20 material fact by presenting affirmative evidence from which a jury could find in [its] favor.” FTC v. 21 Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009) (citing Anderson, 477 U.S. at 257 (1986)) (emphasis in 22 the original). Although the nonmoving party need not establish a material issue of fact conclusively in 23 its favor, it may not simply rely on “bald assertions or a mere scintilla of evidence in [its] favor” to 24 withstand summary judgment. Stefanchik, 559 F.3d at 929. Indeed, “[w]here the record taken as a 25 whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue 26 for trial.’” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citation 27 omitted). 28 /// 3 1 In resolving a summary judgment motion, “the court does not make credibility determinations 2 or weigh conflicting evidence.” Soremekun, 509 F.3d at 984. Rather, “the evidence of the [nonmoving 3 party] is to be believed, and all justifiable inferences are to be drawn in [its] favor.” Anderson, 477 U.S. 4 at 255. See T.W. Electric Service, Inc. v. Pacific Electric Contractors Ass’n, 809 F.2d 626, 630-31 (9th 5 Cir. 1987). Inferences, however, are not drawn out of the air; it is the nonmoving party’s obligation to 6 produce a factual predicate from which the inference may justifiably be drawn. Richards v. Nielsen 7 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985). 8 B. 9 To state a claim for the violation of the Eighth Amendment based on inadequate medical care, 10 a plaintiff must allege “acts or omissions sufficiently harmful to evidence deliberate indifference to 11 serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). In other words, the plaintiff must 12 demonstrate: (1) a serious medical need; and (2) a deliberately indifferent response by the defendant. 13 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Eighth Amendment – Inadequate Medical Care 14 A medical need is serious “if the failure to treat the condition could result in further significant 15 injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin v. Smith, 974 F.2d 1050, 1059 16 (9th Cir. 1992), overruled on other grounds, WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 17 1997). Indications that a person has a serious need for medical treatment include: the existence of an 18 injury that a reasonable doctor or patient would find worthy of comment or treatment; the presence of 19 a medical condition that significantly affects an individual’s daily activities; or the existence of chronic 20 and substantial pain. McGuckin, 974 F.2d at 1059-60 (citations omitted). 21 A defendant acts with deliberate indifference when he knowingly fails to respond to a serious 22 medical need, thereby inflicting harm on the plaintiff. See Farmer v. Brennan, 511 U.S. 825, 837-42 23 (1994); Jett, 439 F.3d at 1096. Deliberate indifference may appear when a defendant denies, delays, or 24 otherwise interferes with medical treatment. See Hutchinson v. United States, 838 F.2d 390, 394 (9th 25 Cir. 1988). Nevertheless, “[d]eliberate indifference is a high legal standard.” Toguchi v. Chung, 391 26 F.3d 1051, 1060 (9th Cir. 2004). “Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not 27 support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) 28 (citing Estelle, 429 U.S. at 105-06). A difference in opinion between a physician and his patient over 4 1 the best course of treatment is also insufficient to demonstrate deliberate indifference. See Jackson v. 2 McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). 3 III. DISCUSSION 4 Defendant contends that he is entitled to summary judgment because there is no genuine issue 5 of material fact as to whether he acted with deliberate indifference to Plaintiff’s serious medical needs. 6 Defendant asserts that he did not. As support for his argument, Defendant has provided a declaration 7 from Jeffrey R. Vargo, a licensed physical therapist.2 (Doc. 65.) Mr. Vargo declares that after a review 8 of the record in this case, nothing contained therein suggests that Defendant’s actions fell below the 9 standard of care. Specifically, Mr. Vargo maintains that it was normal for Defendant to try to move 10 Plaintiff’s finger to gauge the finger’s strength and range of motion. (Doc. 65-2 at 2.) Mr. Vargo also 11 asserts that it would have been inappropriate for Defendant to provide Plaintiff any pain medication 12 during this time because such would have compromised Defendant’s ability to determine the finger’s 13 range of motion and ability to prescribe a course of treatment. (Id. at 3.) In fact, Mr. Vargo notes that 14 physical therapists do not prescribe medication or administer injections, and in doing so, Defendant 15 would have been subject to discipline by the Physical Therapy Board of California for acting outside 16 the scope of his practice. (Id. at 2.) 17 Based on the forgoing, the Court finds that Defendant has carried his initial responsibility on 18 summary judgment of demonstrating that there is no genuine issue of material fact regarding the issue 19 of deliberate indifference. Thus, the burden shifts to Plaintiff to show that a genuine issue of fact does 20 exist “by presenting affirmative evidence from which a jury could find in [his] favor.” Stefanchik, 559 21 F.3d at 929 (citation omitted) (emphasis in the original). Plaintiff may not rely on “bald assertions or 22 a mere scintilla of evidence” to withstand summary judgment. Id. 23 After considering Plaintiff’s opposition to the instant motion, his deposition, and his verified 24 complaint, the Court concludes that Plaintiff has not submitted evidence sufficient to demonstrate the 25 existence of a genuine issue of material fact. In his opposition, Plaintiff simply argues that Defendant 26 should have read Plaintiff’s Health Care Services Request Form, wherein Dr. Nichols explains that 27 2 28 Upon review of Mr. Vargo’s credentials (Doc. 65-1 at 1-3), the Court finds that Mr. Vargo qualifies as an expert on physical therapy pursuant to Federal Rule of Evidence 702 and is competent to testify on the relevant standard of care. See Fed. R. Evid. 702. 5 1 Plaintiff’s finger was “frozen” and incapable of being moved or fixed. (Doc. 70 at 1.) Therefore, in 2 Plaintiff’s view, Defendant committed “malicious medical malpractice” when he failed to follow Dr. 3 Nichol’s advice and instead tried to manipulate Plaintiff’s finger. (Id.) 4 Plaintiff’s argument fails for two reasons. First, Plaintiff provides no evidence demonstrating 5 that Defendant actually read the Health Care Service Request Form. The form Plaintiff refers to only 6 shows the signatures of two physicians, neither of which belong to Defendant. (See Doc. 1 at 47.) As 7 explained above, unless Defendant knowingly deprived Plaintiff of adequate medical treatment, there 8 can be no finding of deliberate indifference. See Farmer, 511 U.S. at 837-38 (deliberate indifference 9 requires the defendant to “know of and disregard[]” an excessive risk to plaintiff’s health”). Second, 10 even if Defendant did know that Plaintiff’s finger was “frozen” and incapable of being moved or fixed, 11 Plaintiff provides no evidence demonstrating that it was medically unacceptable for Defendant to try to 12 move Plaintiff’s finger in order to measure its range of motion and to determine the proper course of 13 treatment. The absence of evidence is particularly glaring in the face of Mr. Vargo’s declaration stating 14 that such was reasonable according to the relevant standard of care. 15 Accordingly, because the undisputed evidence before the Court establishes that Defendant did 16 not act with deliberate indifference to Plaintiff’s medical needs, the Court concludes that Defendant is 17 entitled to summary judgment in his favor. 18 IV. CONCLUSION 19 For all the reasons set forth above, it is HEREBY ORDERED that: 20 1. Defendant’s March 7, 2011 motion for summary judgment (Doc. 62) is GRANTED. 21 2. The Clerk of the Court SHALL enter judgment and close this case. 22 23 IT IS SO ORDERED. 24 Dated: May 20, 2011 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 25 26 27 28 6