(PC) Solvey v. Tilton et al, No. 1:2007cv00182 - Document 127 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS re Defendants' Motion for Summary Judgment 116 , signed by Magistrate Judge Gary S. Austin on 1/20/11. Referred to Judge O'Neill; Objections to F&R due by 2/25/2011. (Verduzco, M)
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(PC) Solvey v. Tilton et al Doc. 127 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT FOR THE 8 EASTERN DISTRICT OF CALIFORNIA 9 10 STANLEY H. SOLVEY, ) ) Plaintiff, ) ) v. ) ) JAMES YATES, et al., ) ) Defendants. ) ____________________________________) 11 12 13 14 15 NO. 1:07-cv-00182-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS RE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Doc. 116 ) OBJECTIONS DUE IN THIRTY DAYS 16 17 Plaintiff is a former state prisoner proceeding pro se in this civil rights action. The matter 18 was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 19 Rule 302. Pending before the Court is Defendants’ motion for summary judgment. (ECF No. 20 116.) Plaintiff has opposed the motion. (ECF No. 120). Defendants have filed a reply. (ECF 21 No. 124.) 22 I. 23 Procedural History This action was initiated by civil complaint filed by Plaintiff on February 2, 2007. The 24 events at issue occurred at Pleasant Valley State Prison (PVSP), where Plaintiff was housed 25 during the relevant time period. Plaintiff names the following individual defendants employed 26 by the California Department of Corrections and Rehabilitation (CDCR) at PVSP: Warden James 27 Yates; Associate Warden Beels; Chief Medical Officer Igbinosa; Sergeant (Sgt.) H. Greene; 28 Sgt. J. Duty; Correctional Officer (C/O) D. Chambers; M. Voss; Licensed Vocational Nurse Dockets.Justia.com 1 (LVN) K. Hilts; LVN Bradshaw, LVN Sellers; Medical Technical Assistant (MTA) A. Long. 2 The original complaint was dismissed with leave amend. (ECF No. 10.) On June 20, 2007, 3 Plaintiff filed the first amended complaint on which this action proceeds. (ECF No. 11.) On 4 April 11, 2008, an order was entered, finding that the first amended complaint stated a claim for 5 relief against the above defendants and directing service of process. (ECF No. 15.) On August 6 22, 2008, Defendants Yates, Igbinosa, Beels, Greene, Long, Duty, Sellers and Chambers filed an 7 answer. (ECF No. 38.) On December 18, 2008, Defendant Hilts filed an answer. (ECF No. 48.) 8 On January 6, 2010, an order was entered by the District Court, adopting the findings and 9 recommendations of the Magistrate Judge, dismissing Defendant Voss. (ECF No. 103.)1 On 10 April 19, 2010, Defendants Yates, Chambers, Igbinosa, Beels, Greene, Duty, Hilts, Sellers and 11 Long filed the motion for summary judgment that is before the Court. (ECF No. 116.) Plaintiff 12 filed opposition to the motion (ECF No. 120.) Defendants filed a reply. (ECF No. 124.)2 13 II. 14 Summary of Allegations Plaintiff alleges that PVSP is located in a coccidiomycosis, or valley fever, endemic zone, 15 and he was knowingly released into that environment. In September of 2005, Plaintiff became 16 very ill and was diagnosed with valley fever on October 4, 2005. These events form the basis of 17 Plaintiff’s claim that Defendants were deliberately indifferent to his serious medical needs, in 18 violation of the Eighth Amendment. Specific allegations as to each Defendant follow. 19 /// 20 21 22 23 24 25 26 1 On November 20, 2009, Defendant Bradshaw was ordered to show cause why he should not be required to file a response. (ECF No. 95.) On December 1, 2009, an answer to the complaint was filed by Defendant Bradshaw. (ECF No. 101.) On April 19, 2010, counsel for Defendant Bradshaw filed a Request for W ithdrawal of Counsel on the ground that Bradshaw had not been served. (ECF No. 119.) On December 16, 2010, an order was entered, granting the request to withdraw. (ECF No. 125.) On December 22, 2010, findings and recommendations were entered, recommending that Defendant Bradshaw be dismissed for Plaintiff’s failure to provide information sufficient for the U.S. Marshal to effect service of process. (ECF No. 126.) Objections are due on January 24, 2011. 2 27 On June 23, 2008, the Court issued and sent to Plaintiff the summary judgment notice required by Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). (ECF No. 25.) 28 2 1 A. 2 Plaintiff alleges that Yates, as Warden at PVSP, has a statutory duty to provide for the Defendant Yates 3 health and care of inmates at PVSP. (Am. Compl. ¶ 34.) Plaintiff alleges that since becoming 4 Warden, Yates had constructive and actual knowledge of the conditions at PVSP. Id. 5 Specifically, Plaintiff alleges that Yates knew of the infections at PVSP, yet failed to exercise 6 “reasonable care to remedy the sickness prevalent in his institution.” (Am. Compl. ¶ 35.) 7 Plaintiff alleges that he suffered injury as a result of “this failure to follow policy.” Id. 8 B. 9 Plaintiff alleges that Igbinosa, as the Chief Medical Officer, “knew of the hyperinfection Defendant Igbinosa 10 among inmates and failed to act to protect the inmates specifically Plaintiff Solvey’s health.” 11 (Am. Compl. ¶ 36.) Plaintiff alleges that Igbinosa failed to train staff to “screen out” inmates 12 susceptible to valley fever. Id. 13 antifungal medication, damaged his liver. Id. Plaintiff alleges that despite his requests and 14 inmate appeals, Igbinosa failed to provide a certain treatment that, in Plaintiff’s view, was 15 necessary. (Am. Compl. ¶ 38.) Plaintiff also submitted numerous request to Igbinosa’s office 16 for a transfer to a “Medical Center Prison where the level of treatment would be improved and 17 consistent.” (Am. Compl. ¶ 39.) Plaintiff alleges that he did not receive a response to his 18 requests. Id. Plaintiff also alleges that the treatment he received, an 19 C. 20 Plaintiff alleges that Defendant Captain Beels spoke to Plaintiff regarding “the continuous Defendant Beels 21 deliberate indifference to the health and safety of Plaintiff.” (Am. Compl. ¶ 41.) Plaintiff 22 requested that Captain Beels transfer Plaintiff to a medical facility where he could receive 23 treatment. Beels told Plaintiff to submit a written request. Plaintiff did so, yet did not receive 24 any response from Beels. Id. 25 /// 26 /// 27 28 3 1 D. 2 Plaintiff alleges that Sergeant Greene failed to summon medical care for Plaintiff. Defendant Greene 3 Specifically, Plaintiff alleges that on April 29, 2006, “after medication had been continuously 4 removed from Plaintiff’s cell by officer Chambers, Plaintiff had deteriorated in health due to lack 5 of medication Diflucan.” (Am. Compl. ¶ 42.) Plaintiff advised Greene that he had valley fever 6 and needed medical treatment for pain and seizures. Id. Plaintiff asked Greene to call medical 7 staff. Greene advised Plaintiff to submit a written request for medical treatment. Plaintiff told 8 Greene that he had already done so, “and received no adequate response.” (Am. Compl. ¶ 43.) 9 Plaintiff contends that Greene is liable for a failure to respond to Plaintiff’s medical condition. 10 E. 11 The allegations as to Defendant Duty relate to the removal of Plaintiff’s medication from Defendant Duty 12 his cell by C/O Chambers. Plaintiff alleges that Sgt. Duty failed to properly train Chambers, 13 resulting in injury to Plaintiff. (Am. Compl. ¶ 45.) Sgt. Duty also refused to summon medical 14 care for Plaintiff, despite the fact that “the rashes on Plaintiff’s body became unbearable.” Id. 15 F. 16 Plaintiff alleges that Defendant LVN Hilts failed to administer medications to Plaintiff. Defendant Hilts 17 Specifically, Plaintiff alleges that while he was on lockdown, “his meds were systematically 18 forgotten by LVN and MTA staff dispensing meds.” (Am. Compl. ¶ 48.) Plaintiff alleges that 19 Hilts withheld Plaintiff’s medication in order to torture him. (Am. Compl. ¶ 49.) 20 alleges that on December 18, 2006, he was seen by the doctor, “and got the lidoderm patch 21 ordered at noon as the medical staff continued to use unspecific doctor ‘time’ orders on lidoderm 22 as excuse.” Plaintiff alleges that Hilts “ran back to the doctor and had doctor Phi change the 23 times on the order to torture the Plaintiff into standing in a line to get medications for over 30 24 minutes.” (Am. Compl. ¶ 50.) Plaintiff contends that this interference with the doctor’s orders 25 amounted to cruel and unusual punishment. Id. 26 /// 27 28 4 Plaintiff 1 G. 2 Plaintiff alleges that Defendant MTA Long failed to follow the doctor’s orders to 3 dispense certain medication to Plaintiff to treat his valley fever. Specifically, the doctor 4 prescribed “a lidoderm patch and narcotics.” (Am. Compl. ¶ 51.) MTA Long failed to dispense 5 the medication “on numerous occasions.” Id. Plaintiff alleges that “Long knew of my pain as a 6 symptom of valley fever and wantonly inflicted pain upon Plaintiff by not dispensing patch as 7 ordered.” (Am. Compl. ¶ 52.) Defendant Long 8 H. 9 Plaintiff alleges that Defendant LVN Sellers, “on numerous occasions,” withheld Defendant Sellers 10 prescribed medications from Plaintiff. (Am. Compl. ¶ 55.) Plaintiff specifically alleges that 11 during the month of September 2006, while A Facility was on lockdown, Sellers “continuously 12 failed to administer pain medication to Plaintiff’s cell as prescribed by the doctor. When 13 Plaintiff attempted to inform the LVN Sellers of the times of the prescribed meds, LVN Sellers 14 used arguments and excuses not to bring the forgotten meds to Plaintiff’s cell.” Id. 15 I. 16 Plaintiff alleges that Defendant C/O Chambers intentionally deprived him of prescribed Defendant Chambers 17 medication. Specifically, Plaintiff alleges that on three separate occasions in March and April of 18 2006, Chambers searched Plaintiff’s cell and removed the medication used by Plaintiff to treat 19 his condition. (Am. Compl. ¶ 58.) Plaintiff alleges that Chambers “took these meds with no 20 regard for my health and safety in direct violation of the doctors orders.” Id. 21 without medication for 30 days. Plaintiff eventually underwent a spinal tap to determine the 22 extent of the spread of the fungus. Id. 23 III. Plaintiff went Exhaustion 24 Initially, Defendants argue that Plaintiff has failed to exhaust his available administrative 25 remedies prior to filing suit. “The Prison Litigation Reform Act requires that a prisoner exhaust 26 available administrative remedies before bringing a federal action concerning prison conditions.” 27 28 5 1 Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009)(citing 42 U.S.C.§ 1997e(a)). “[T]he 2 PLRA exhaustion requirement requires proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 3 (2006). This means that a prisoner must “complete the administrative review process in 4 accordance with the applicable procedural rules, including deadlines, as a precondition to 5 bringing suit in federal court.” Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009)(quoting 6 Ngo, 548 U.S. at 88).3 7 The failure to exhaust in compliance with section 1997e(a) is an affirmative defense 8 under which the defendants have the burden of raising and proving the absence of exhaustion. 9 Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). If the Court 10 concludes that the prisoner has failed to exhaust, the proper remedy is dismissal without 11 prejudice. Jones v. Bock, 549 U.S. 199, 223-24 (2007); Lira v. Herrrera, 427 F.3d 1164, 1175-76 12 (9th Cir. 2005). The Court will therefore address Defendants’ argument that Plaintiff failed to 13 exhaust his available administrative remedies. 14 In support of their motion, Defendants submit the declaration of G. Duran, Appeals 15 Coordinator at PVSP. Exhibit 2 to the declaration is a copy of an inmate grievance filed by 16 Plaintiff, Log No. PVSP-07-00226. This grievance referenced Plaintiff’s medication 17 administration times. In this grievance, Plaintiff indicated the following: “I 602 this before 18 medical staff continuous torture me with games and arguments, due to their incompetent of med 19 distribution, I want my meds (patch also) given at noon like the previous granted 602 states.” Id. 20 Ex. 2, p.4. This grievance was completed through the Director’s Level on July 10, 2007. Id. 21 Exhibit 3 to the Duran declaration is a copy of an inmate grievance filed by Plaintiff on 22 December 1, 2006, Log No. PVSP-06-03403. In this grievance, Plaintiff states the following 23 issue: 24 On 11-8-06 PVSP A Facilities were placed on lockdown status 25 26 27 28 3 In California, there are four levels of review - informal level, first formal level, second formal level, and third formal level. The third formal level constitutes the Director’s decision on appeal. Cal. Code Regs. Tit. 15, § 3084.5(e)(2). 6 1 with meds delivered to inmates cells. On 11-26-06 MTA Flautan brought morning meds but “forgot” to bring my pain patch. (Lidoderm 5%). Flautan stated she’d leave a ‘note’ for p.m. medical staff. At pm meds, MTA Long came. Long stated that MTA’s signed as I received this day. This same incidence has happened 6-7 times since 11-8-06. 2 3 4 Id. Ex. 3, p. 8. The Director’s Level review of this grievance was issued on October 23, 2007. 5 Id. p. 1. 6 Page 5 of Exhibit 4 to the Duran declaration is a copy of inmate grievance, Log No. 067 01560, filed by Plaintiff on May 24, 2006. In this grievance, Plaintiff states the issue as follows: 8 C/O Chambers on several occasions you removed authorized critical medications from my cell. I 602'd you on 5-4-06 and you “lost” my appeal and gave me no informal signed response. Violating 15 CCR 3084.(b)(1): 15 day informal response. Also violating my right to medical care (15 CCR 3350). Your interference with my treatment cause me a relapse of Valley Fever you failed to notify medical about my medications. 9 10 11 12 This grievance was appealed through the Director’s Level, which was issued on March 22, 2007. 13 Id..p 1. 14 The Court finds that Defendants’ evidence indicates that, although Plaintiff exhausted his 15 administrative grievances regarding the conduct at issue in this lawsuit, he did not do so prior to 16 filing suit. Grievance No. PVSP-07-00226 was exhausted on July 10, 2007. Grievance No. 17 PVSP-06-03403 was exhausted on October 23, 2007, and grievance No. PVSP-06-01560 was 18 exhausted on March 22, 2007. This action was filed on February 2, 2007. District Courts are 19 required under the Prison Litigation Reform Act to dismiss actions without prejudice where 20 prisoner failed to exhaust administrative remedies prior to filing suit but was in process of doing 21 so when motion to dismiss was filed. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002). 22 In his opposition, Plaintiff argues generally that although he filed “numerous” appeals in 23 an attempt to exhaust his administrative remedies, “officials” violated the regulations regarding 24 response time. Plaintiff also argues that the “Appeal office” screened out his appeals, “hindering 25 the PLRAs intent on exhausting administrative remedies.” (Opp’n: 5:12-15.) 26 The Ninth Circuit has held that a prisoner’s failure to timely exhaust his administrative 27 28 7 1 remedies is excused when a prisoner takes reasonable and appropriate steps to exhaust his 2 administrative remedies but was precluded from exhausting not through fault of his own, but by a 3 prison official’s mistake. Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (exhaustion 4 excused when prisoner was mistakenly told that he needed to read a Program Statement to pursue 5 his grievance but the Program Statement cited was unavailable to him). The Ninth Circuit 6 extended that reasoning to inmate appeals that were improperly screened out. Sapp. V. Kimbrell, 7 623 F.3d 813, 823 (9th Cir. 2010). In order to show that the grievance process was unavailable to 8 him, Plaintiff must come forward with evidence that he was excused from exhaustion due to a 9 prison official’s mistake or because the inmate grievance was screened out for an improper 10 11 reason. Id. Plaintiff alleges that he filed an appeal regarding C/O Chambers’ conduct on May 4, 12 2006. That appeal was not answered at the informal level within fifteen days. Plaintiff alleges 13 that this initial grievance “never reappeared or was returned by prison officials.” (Opp’n 44:10.) 14 Plaintiff filed a second appeal that was screened out for lack of supporting documentation. 15 Plaintiff filed a third appeal, referred to above , Log No. PVSP-06-01560. Plaintiff concedes that 16 this grievance was not exhausted until March 22, 2007. (Opp’n 44:14.) Plaintiff argues that 17 since he filed an amended complaint on June 22, 2007, his grievance was exhausted before filing 18 suit. There is no authority for Plaintiff’s proposition. This action was initiated by civil suit filed 19 on February 2, 2007. McKinney clearly holds that if Plaintiff was in the process of exhausting 20 his remedies at the time the suit was filed, this action should be dismissed. 311 F.3d at 1200. 21 Plaintiff appears to argue that, although the Director’s Level was not completed until 22 March 22, 2007, it should have been completed earlier. Plaintiff argues that officials violated 23 regulations in not timely processing his grievance. Plaintiff has not, however, come forward with 24 any evidence that the grievance process was unavailable to him. 25 26 Plaintiff argues that he filed an inmate grievance regarding the conduct of K. Hilts on December 21, 2006. Plaintiff refers to his Exhibit C. Plaintiff’s Exhibit C is a copy of the 27 28 8 1 inmate grievance, along with a screen-out form, indicating that the appeal was being screened out 2 on the ground that Plaintiff filed a duplicate appeal. Plaintiff contends that the decision to 3 screen out his appeal was improper, as “no duplicate appeal was returned or responded to.” 4 (Opp’n 46:19.) A review of this grievance, page 4 of Plaintiff’s Exhibit C, indicates that 5 Plaintiff’s grievance refers to the lockdown that started on November 8, 2006, and refers to the 6 timing of Plaintiff’s medication. Although more detailed, Plaintiff is complaining of the same 7 issue as grievance No. PVSP-06-03403, filed on December 1, 2006. Although Plaintiff may 8 disagree with the decision that the December 21, 2006, is duplicative, he has not come forward 9 with evidence that it was screened out for improper purposes. 10 Plaintiff makes similar arguments regarding grievance No. PVSP-06-03403, referred to in 11 Plaintiff’s Exhibit E. Plaintiff essentially argues that officials violated the regulations, and as a 12 result, his appeal was not exhausted until October 23, 2007. Plaintiff does not, however, come 13 forward with any evidence that any conduct on behalf of any official rendered the appeals process 14 unavailable to Plaintiff. Plaintiff has not come forward with any evidence that he exhausted his 15 available administrative remedies prior to filing suit. This action should therefore be dismissed 16 for his failure to do so.4 17 IV. 18 Summary Judgment Defendants also argue that there is no evidence of a disputed issue of material fact, and 19 they are therefore entitled to judgment as a matter of law. Summary judgment is appropriate 20 when it is demonstrated that there exists no genuine issue as to any material fact, and that the 21 moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Under summary 22 judgment practice, the moving party 23 always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 24 25 26 27 28 4 Plaintiff indicates that if the Court finds that he has failed to exhaust his administrative remedies, The Court should dismiss this action without prejudice in order for Plaintiff to re-file this action. Because the motion for summary judgment is before the Court, and in the interest of judicial efficiency, the Court will address the merits of the motion for summary judgment. 9 1 2 “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. 3 4 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the 5 burden of proof at trial on a dispositive issue, a Summary Judgment Motion may properly be 6 made in reliance solely on the ‘pleadings, depositions, answers to interrogatories, and admissions 7 on file.’” Id. Indeed, summary judgment should be entered, after adequate time for discovery 8 and upon motion, against a party who fails to make a showing sufficient to establish the existence 9 of an element essential to that party’s case, and on which that party will bear the burden of proof 10 at trial. Id. at 322. “[A] complete failure of proof concerning an essential element of the 11 nonmoving party’s case necessarily renders all other facts immaterial.” Id. In such a 12 circumstance, summary judgment should be granted, “so long as whatever is before the district 13 court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is 14 satisfied.” Id. at 323. 15 If the moving party meets its initial responsibility, the burden then shifts to the opposing 16 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 17 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 18 existence of this factual dispute, the opposing party may not rely upon the denials of its 19 pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or 20 admissible discovery material, in support of its contention that the dispute exists. Rule 56(e); 21 Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in 22 contention is material, i.e., a fact that might affect the outcome of the suit under the governing 23 law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W Elec. Serv., Inc. v. Pacific 24 Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., 25 the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Wool 26 v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 27 28 10 In attempting to establish the 1 In the endeavor to establish the existence of a factual dispute, the opposing party need not 2 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 3 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 4 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 5 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 6 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 7 amendments). 8 In resolving the Motion for Summary Judgment, the Court examines the pleadings, 9 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 10 any. Rule 56(c). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 11 255, and all reasonable inferences that may be drawn from the facts placed before the court must 12 be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United States v. 13 Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam). Nevertheless, inferences are not drawn out 14 of the air, and it is the opposing party’s obligation to produce a factual predicate from which the 15 inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. 16 Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). 17 Finally, to demonstrate a genuine issue, the opposing party “must do more than simply 18 show that there is some metaphysical doubt as to the material facts. Where the record taken as a 19 whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine 20 issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 21 V. 22 Eighth Amendment Claims A prison official cannot be found liable under the Eighth Amendment for denying an 23 inmate humane conditions of confinement unless the official knows of and disregards an 24 excessive risk to inmate health and safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The 25 Court in Farmer adopted a subjective standard requiring an “inquiry into a prison official’s state 26 of mind” when it is alleged that a prison official was deliberately indifferent to a substantial risk. 27 28 11 1 Id. at 838 (citing Wilson v. Seiter, 501 U.S. 294, 299 (1991). To satisfy this inquiry, “the official 2 must both be aware of facts from which the inference could be drawn that a substantial risk of 3 serious harm exists, and he must also draw the inference.” Id. at 837. Alternatively, the Court 4 rejected any possibility that an official could be held liable for “ a significant risk that he should 5 have perceived but did not.” Id. Even if it is determined that the official was subjectively aware 6 of a substantial risk, the official cannot be held liable if he acted reasonably in response to that 7 risk, “even if the harm ultimately was not averted.” Id. at 844. 8 9 In Estelle v. Gamble, 429 U.S. 97, 106 (1976), the Supreme Court held that inadequate medical care did not constitute cruel and unusual punishment cognizable under section 1983 10 unless the mistreatment rose to the level of "deliberate indifference to serious medical needs." 11 In applying this standard, the Ninth Circuit has held that before it can be said that a prisoner's 12 civil rights have been abridged, "the indifference to his medical needs must be substantial. Mere 13 'indifference,' 'negligence,' or 'medical malpractice' will not support this cause of action." 14 Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980), citing Estelle, 429 U.S. at 15 105-06. Plaintiff cannot prevail in a § 1983 action where the quality of treatment is subject to 16 dispute. Sanchez v. Veld, 891 F.2d 240 (9th Cir. 1989). 17 A. 18 Plaintiff claims that Defendant Yates failed to supervise his subordinates, failed to protect Defendant Yates 19 Plaintiff, and subjected Plaintiff to dangerous conditions. Defendants correctly argue that Yates 20 cannot be held liable on the ground that, as a supervisor, he is liable for the conduct of his 21 subordinates. Under section 1983, Plaintiff must prove that the defendants holding supervisory 22 positions personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 23 930, 934 (9th Cir. 2002). There is no respondeat superior liability, and each defendant is only 24 liable for his or her own misconduct. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948-49 (2009). A 25 supervisor may be held liable for the constitutional violations of his or her subordinates only if he 26 or she “participated in or directed the violations, or knew of the violations and failed to act to 27 28 12 1 prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); Corales v. Bennett, 567 F.3d 2 554, 570 (9th Cir. 2009); Preschooler II v. Clark County School Board of Trustees, 479 F.3d 3 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997). 4 Defendant Yates supports his motion with his own declaration. Yates declares that in 5 2005, the medical staff at PVSP began noticing a significant increase in the number of inmates 6 suffering from valley fever. PVSP coordinated with the CDCR and the California Department of 7 Health Services (CDHS) to investigate the infections. In August of 2006, the CDCR and CDHS 8 issued a memorandum for identifying and removing inmates at risk for more severe symptoms if 9 exposed to valley fever while being housed at PVSP. According to the August 3, 2006, 10 memorandum, PVSP health care staff were instructed to identify at-risk valley fever inmates and 11 immediately transfer them to other institutions where they would be less susceptible to 12 contracting valley fever. Once enacted, these policies were followed. (Yates Decl. ¶¶ 3-7.) 13 Yates further declares that in October of 2005, he was not aware of any substantial risks 14 posed by valley fever because there had been no completed investigation on the risk factors for 15 the serious symptoms of the disease. Yates is not a physician, and could not treat Plaintiff or any 16 other inmate for valley fever. Yates did not have the ability to authorize funding for extensive, 17 non-emergent prison improvements or repairs. (Id. ¶¶ 9-11.) 18 Plaintiff has not alleged any facts to support a claim that Yates personally participated in 19 the alleged deprivation. In the first amended complaint, Plaintiff alleges that Yates had “actual 20 and constructive knowledge” of the conditions at PVSP, yet failed to exercise reasonable care to 21 remedy “the sickness prevalent in his institution.” (Am. Compl. ¶¶ 34, 35.) Defendants have 22 submitted evidence that Yates was not aware of any substantial risks to inmates in general or to 23 Plaintiff in particular. The evidence submitted indicates that Defendant Yates responded 24 reasonably to the presence of valley fever. Specifically, the evidence submitted by Defendant 25 Yates indicates that he acted in accordance with the memoranda from the CDHS. The Court 26 finds that Defendant Yates has met his burden on summary judgment - Yates has come forward 27 28 13 1 with evidence that he did not fail to protect Plaintiff, and that he did not subject Plaintiff to a 2 dangerous condition. The evidence submitted by Yates establishes that Yates was not 3 deliberately indifferent to a serious medical need of Plaintiff’s. The burden shifts to Plaintiff, 4 Plaintiff must come forward with evidence that Yates knew of and disregarded a risk to 5 Plaintiff’s health or safety. 6 Plaintiff declares that he contracted Valley Fever while housed at PVSP in 2005. (Solvey 7 Decl. 6:8.) In his declaration, Plaintiff refers to pages 1 and 2 of Exhibit J to his opposition. 8 Exhibit J consists of copies of inmate grievances and responses regarding Plaintiff’s medical 9 treatment. There is nothing in Exhibit J that indicates that Warden Yates had personal 10 knowledge of a serious risk to Plaintiff’s health, and acted with disregard to that risk. In his 11 opposition, Plaintiff argues that Yates has a statutory duty under the California Penal Code not to 12 subject Plaintiff to “cruel, corporal or unusual punishment.” (Solvey Decl. 13:10.) The 13 gravamen of Plaintiff’s argument is that “when numerous inmates become sick and have died of 14 Valley Fever at PVSP, Yates is liable.” Id. 13:25.) 15 Throughout his opposition, Plaintiff recounts in detail the conditions at PVSP, and 16 concludes that Yates had to know of the conditions, yet failed to prevent them. Simply put, 17 Plaintiff’s argument is that it is undisputed that valley fever exists at PVSP, and, due to the 18 illness of staff and inmates, Yates knew of the conditions yet failed to address them. The courts 19 of this district have found such claims to be insufficient. “[T]o the extent that Plaintiff is 20 attempting to pursue an Eighth Amendment claim for the mere fact that he was confined in a 21 location where Valley Fever spores existed which caused him to contract Valley Fever, he is 22 advised that no courts have held that exposure to Valley Fever spores presents an excessive risk 23 to inmate health.” King v. Avenal State Prison, 2009 WL 546212, *4 (E.D. Cal., Mar 4, 2009); 24 see also Tholmer v. Yates, 2009 WL 174162, *3 (E.D. Cal. Jan. 26, 2009)(“To the extent 25 Plaintiff seeks to raise an Eighth Amendment challenge to the general conditions of confinement 26 at PVSP, Plaintiff fails to come forward with evidence that Yates is responsible for the 27 28 14 1 conditions of which Plaintiff complaints.”5) Defendant Yates cannot, therefore, be held liable for 2 the failure to supervise his subordinates, subjecting Plaintiff to dangerous conditions, or for a 3 failure to protect Plaintiff. Judgment should therefore be entered for Defendant Yates. 4 B. 5 Plaintiff alleges that Defendant Chief Medical Officer Igbinosa knew of the 6 “hyperinfection” in the inmate population, yet failed to act to protect the inmates. Plaintiff 7 alleges that Igbinosa failed to train his staff to adequately screen for valley fever. Plaintiff alleges 8 that Igbinosa failed to provide the treatment that was, in Plaintiff’s view, necessary, and that the 9 treatment that was provided to Plaintiff damaged his liver. Finally, Plaintiff alleges that Igbinosa 10 ignored his requests for a transfer to “a Medical Center Prison where the level of treatment would 11 be improved and consistent.” (Am. Compl. ¶¶ 36-39.) 12 Defendant Igbinosa Defendants correctly argue that Plaintiff’s failure to supervise claim fails to state a claim 13 for relief. As noted above, there is no respondeat superior liability, and each defendant is only 14 liable for his or her own misconduct. Iqbal, 129 S.Ct. at 1948-49. A supervisor may be held 15 liable for the constitutional violations of his or her subordinates only if he or she “participated in 16 or directed the violations, or knew of the violations and failed to act to prevent them.” Taylor, 17 880 F.2d at 1045. There are no facts alleged indicating any direct participation or involvement 18 by Defendant Igbinosa. 19 In support of the motion for summary judgment, Defendant Igbinosa submits his own 20 declaration. Dr. Igbinosa declares that he became the Chief Medical Officer at PVSP in February 21 of 2006, after Plaintiff had been diagnosed with valley fever. (Igbinosa Decl. ¶ 1.) Dr. Igbinosa 22 could not, therefore, be liable for failing to prevent Plaintiff’s infection. Regarding Plaintiff’s 23 request for a transfer to another facility, the evidence submitted by Defendants indicate that 24 25 5 27 Plaintiff refers to his Exhibit F. Exhibit F consists of a copy of a Consumer Complaint Form addressed to the Medical Board of California regarding Plaintiff’s medical treatment. Nothing in this exhibit refers to conduct by Defendant Yates, or indicates that Yates was personally aware of any constitutionally deficient medical treatment of Plaintiff. 28 15 26 1 Plaintiff did not meet the criteria for transfer to another facility. Exhibit 1 to Dr. Igbinosa’s 2 declaration is a copy a memorandum issued by the CDHS for identifying and removing inmates 3 at risk for more severe symptoms if exposed to valley fever while being housed at PVSP. 4 Exhibit 2 is a copy of an updated memorandum dated November 20, 2007, for identifying and 5 removing inmates at risk for a worse outcome if exposed to valley fever. 6 After receiving the August 3, 2006, memorandum, Dr. Igbinosa instructed all PVSP 7 physicians to review the medical files of all PVSP inmates at each visit to the medical clinic to 8 determine which of those inmates met the transfer criteria outlined in the memorandum, and then 9 draft a report to him for each inmate that met the transfer criteria. (Id.¶ 17.) Dr. Igbinosa further 10 declares that he has reviewed the relevant portions of Plaintiff’s medical file and is familiar with 11 Plaintiff’s medical history. Plaintiff’s medical file does not contain any information indicating 12 that he met any of the transfer criteria outlined in the August 3, 2006, or November 20, 2007, 13 memoranda. Dr. Igbinosa never received a report recommending that Plaintiff be transferred out 14 of PVSP or that Plaintiff was at risk of dissemination of valley fever. Once Plaintiff contracted 15 valley fever in October 2005, there would have been no medical reason to designate him for 16 transfer, because he did not suffer from any of the conditions that place a person at risk for 17 dissemination, and because PVSP medical staff provided him with the best possible medical 18 treatment for his condition. (Id. ¶¶ 23-26.) 19 The Court finds that Dr. Igbinosa has met his burden on summary judgment. The 20 evidence submitted by Dr. Igbinosa indicates that Plaintiff contracted the disease before Dr. 21 Igbinosa assumed the position of Chief Medical Officer. In his capacity as Chief Medical 22 Officer, Dr. Igbinosa responded to the threat of valley fever. There is no evidence that Dr. 23 Igbinosa personally treated Plaintiff, or was deliberately indifferent to a serious condition of 24 Plaintiff’s. The evidence indicates that Dr. Igbinosa directed the PVSP physicians to act in 25 accord with the memoranda from the CDHS. The evidence indicates that, in the professional 26 view of PVSP physicians, Plaintiff did not meet the criteria for transfer. 27 28 16 1 The burden shifts to Plaintiff to come forward with evidence of a triable issue of material 2 fact as to whether Dr. Igbinosa knew of and was deliberately indifferent to a serious medical 3 condition of Plaintiff’s. Plaintiff argues generally that Dr. Igbinosa is responsible for the care of 4 prisoners, including Plaintiff. (Opp’n. 27:15.) Plaintiff restates generally the allegations of the 5 amended complaint on which this action proceeds, Plaintiff indicates that he “cannot outline all 6 the actions Igbinosa could have taken to remedy the deliberate indifference, but the Plata v. 7 Schwarzenegger outlined numerous deficiencies that were to be corrected.” (Id. 28:8-9.) 8 Individual suits for relief from alleged unconstitutional prison conditions cannot be 9 brought where there is a pending class action suit involving the same subject matter. McNeil v. 10 Guthrie, 945 F.2d 1163, 1165 (10th Cir. 1991); Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th 11 Cir. 1988)(en banc). “Individual members of the class and other prisoners may assert any 12 equitable or declaratory claims they have, but they must do so by urging further actions through 13 the class representative and attorney, including contempt proceedings, or by intervention in the 14 class action.” Id. Any asserted requests for relief should therefore dismissed. If Plaintiff wants 15 to complain about a perceived failure to comply with the order in Plata, he may contact the 16 plaintiff’s class counsel in Plata,6 17 Although Plaintiff argues that there are material issues of fact, he does not submit any 18 evidence that Dr. Igbinosa knew of and disregarded a serious risk to Plaintiff’s health. Plaintiff 19 disagrees with the decision regarding his transfer, but fails to offer any evidence that the failure 20 to transfer him constituted deliberate indifference, as that term is defined above. Mere difference 21 of opinion between a prisoner and prison medical staff as to appropriate medical care does not 22 give rise to a section 1983 claim. Hatton v. Arpaio, 217 F.3d 845 (9th Cir. 2000); Franklin v. 23 Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). Plaintiff argues that Dr. Igbinosa should be liable 24 for failure to discipline medical personnel “whom violate the constitution for failing to 25 26 27 28 6 Counsel for the plaintiff class in Plata is Donald H. Specter at the Prison Law Office, General Delivery, San Quentin, CA 94964. 17 1 administer pain medications.” Plaintiff offers no evidence to support his argument. Plaintiff has 2 failed to allege any facts indicating the personal participation of Dr. Igbinosa in any 3 unconstitutional conduct, and fails to come forward with evidence that establishes a triable issue 4 of fact - evidence that Dr. Igbinosa knew of and disregarded a serious risk to Plaintiff’s health. 5 Judgment should therefore be entered in Dr. Igbinosa’s favor. 6 C. 7 Plaintiff alleges that Defendant Captain Beels failed to respond to Plaintiff’s request for a Defendant Beels 8 transfer to a medical facility where he could receive treatment. Beels told Plaintiff to submit a 9 written request for a transfer, which he did. Beels failed to respond to the written request. (Am. 10 11 Compl. ¶ 41.) Defendant Beels supports his opposition with his declaration. Beels declares that as a 12 Facility Captain, he did not have the authority to order a medical transfer for Plaintiff. Medical 13 transfer orders must come from Health Care Services at PVSP, after a medical evaluation is 14 performed to determine if there is a medical necessity to transfer the inmate. (Beels Decl. ¶ 4.) 15 As noted above, there is no evidence that a failure to transfer Plaintiff constituted deliberate 16 indifference. Further, Beels correctly argues that Plaintiff has no liberty interest in being housed 17 at a particular institution. Meachum v. Fano, 427 U.S. 215, 225-27 (1976). The Court finds that 18 Beels has met his burden on summary judgment. Captain Beels has come forward with evidence 19 that he did not have the authority to transfer Plaintiff, and cannot therefore be liable for a failure 20 to do so. 21 In his opposition, Plaintiff re-states the allegations of the complaint that Captain Beels 22 should have transferred him, and disagrees with the evidence submitted by Beels that he did not 23 have the authority to transfer Plaintiff. Plaintiff argues that Beels has “facilitated numerous non 24 adverse and adverse transfers from PVSP.” (Opp’n. 20:18.) Plaintiff argues that Beels “sits at 25 the head of the committee that approves transfers.” (Id. 20:23.) Plaintiff argues that a triable 26 issue of fact exists, as the evidence submitted by Beels indicates that he did not have the 27 28 18 1 authority to authorize a medical transfer. Plaintiff contends that a triable issue of fact exists 2 because he sought a custody, as opposed to a medical, transfer. As noted above, Plaintiff has no 3 constitutionally protected interest in being housed at a particular facility. The evidence indicates 4 that Plaintiff did not meet the criteria for a medical transfer. 5 Plaintiff’s own evidence belies his argument. In support of his opposition, Plaintiff refers 6 the Court to his Exhibit D. Exhibit D is a copy of a letter written by Plaintiff, dated May 9, 2006, 7 and addressed to Capt. Beels. The letter recounts the allegations set forth in the amended 8 complaint, and clearly requests a medical transfer. Plaintiff specifically requests that “the CMO 9 transfer me medically.” Plaintiff offers no other evidence in support of his opposition to 10 Defendant Beels’ motion for summary judgment. That Plaintiff wrote to Defendant Beels does 11 not, of itself, subject Beels to liability. The evidence submitted by Beels indicates that he did 12 not have the authority to order a medical transfer, and Plaintiff has no protected right to be 13 housed in a particular facility. Judgment should therefore be entered in favor of Defendant 14 Beels. 15 D. 16 Plaintiff alleges that Defendant Sergeant Greene failed to summon medical staff after Defendant Greene 17 Plaintiff advised Greene that he had valley fever and needed medical treatment for pain and 18 seizures. (Am. Compl. ¶ 42.) Plaintiff alleges that he advised Greene of his condition on April 19 29, 2006, “after medication had been continuously removed from Plaintiff’s cell by Officer 20 Chambers.” Id. Greene advised Plaintiff to submit a written request for medical treatment. 21 Plaintiff told Greene that he had already done so, “and received no adequate response.” (Id. ¶ 22 43.) 23 Defendants submit the declaration of Sgt. Greene in support of the motion for summary 24 judgment. Sgt. Greene declares that when Plaintiff approached him on April 29, 2006, there was 25 no indication that Plaintiff was in an “emergent condition.” Plaintiff advised Greene that he 26 suffered from valley fever and needed to schedule a medical appointment because he was in pain. 27 28 19 1 Although it appeared to Greene that Plaintiff had a cold and chest congestion, he did not appear 2 to be in any immediate distress. (Greene Decl. ¶ 4.) 3 Greene advised Plaintiff that, as custody staff, he did not have the authority to schedule 4 an appointment or to direct medical staff to see Plaintiff. Greene advised Plaintiff to submit a 5 Health Care Request, which is the prison procedure for scheduling a medical appointment. 6 Plaintiff then walked to the dining hall with no further incident. (Id. ¶ 5.) After dinner, Plaintiff 7 walked approximately one-quarter mile back to his cell. (Solvey Depo. 89:22-25; 92:16-17.) 8 The Court finds that Defendant Greene has met his burden on summary judgment. 9 Greeene has come forward with evidence that he was not deliberately indifferent to a serious 10 medical need of Plaintiff’s. Greene’s evidence indicates that Plaintiff was not in such distress 11 that Greene should have summoned immediate medical help. 12 In his opposition, Plaintiff declares that he approached Greene on April 29, 2006, and 13 advised him that he had valley fever and was suffering “extreme pain internally” from the 14 disease. (Opp’n. 31:7.) Plaintiff indicates that he requested Greene to summon medical care 15 because his requests for health care were not being responded to in a timely manner. Plaintiff 16 specifically declares that Greene stated: “Fill out the form like the other 1200 inmates on the 17 yard. Beat it!” Id. 31:13.) Plaintiff argues that Greene’s conduct was “oppressive in nature.” 18 Plaintiff argues that Greene knew that valley fever was a painful disease and could cause death. 19 That Greene did not summons medical care, in Plaintiff’s view, subjects him to liability. 20 Plaintiff does not, however, come forward with evidence that establishes a triable issue of fact as 21 to whether Greene knew of and disregarded a serious risk to Plaintiff’s health. The evidence 22 submitted by Greene indicates that, as custody staff, he did not have the authority to order 23 medical officials to treat Plaintiff. The evidence submitted by Greene establishes, without 24 evidentiary dispute, that Plaintiff was not suffering from an emergency medical condition. 25 Plaintiff’s evidence consists of his own declaration that Greene knew Plaintiff had valley fever, 26 yet refused to summon immediate medical care. That Plaintiff believes that valley fever 27 28 20 1 constitutes a medical condition requiring immediate medical care does not subject Sgt. Greene to 2 liability for his failure to summon medical care. There is no evidence that Plaintiff was not 3 treated for valley fever, or that Sgt. Greene had any authority to direct treatment for Plaintiff’s 4 condition. Judgment should therefore be entered in Sgt. Greene’s favor. 5 E. 6 Plaintiff alleges that Duty failed to supervise Defendant Chambers when he was informed Defendant Duty 7 through the inmate grievance process that Chambers had confiscated Plaintiff’s medications. 8 Plaintiff also seeks to hold Duty liable for failing to summon medical care for Plaintiff when he 9 informed Duty that he had rashes on his body that were unbearable. (Am. Compl. ¶¶ 45-46.) 10 Defendant Duty submits his own declaration in support of his motion for summary 11 judgment. In 2006, Sgt. Duty was assigned as the Third Watch Facility A Yard/Dining Sergeant. 12 As such, he was responsible for overseeing correctional officers assigned to the yard and dining 13 halls. He was not responsible for building staff, such as floor officers. (Duty Decl. ¶¶ 1-2.) 14 Duty’s involvement with Plaintiff’s claim regarding confiscated medication is limited to his 15 participation in the inmate grievance process. Duty responded to Plaintiff’s grievance, including 16 advising him of the regulations regarding the improperly labeled or expired medication. Duty 17 also declares that he provided instruction to Facility A building staff regarding the proper method 18 for disposing of confiscated medication. At the time that Duty responded to Plaintiff’s 19 grievance, C/O Chambers was no longer working at PVSP. (Id. ¶¶ 3-5.) 20 The Court finds that Duty has met his burden on summary judgment. The evidence 21 submitted by Sergeant Duty indicates that his only involvement with Plaintiff was limited to his 22 participation in the inmate grievance process, and that his response was to instruct his staff 23 regarding proper procedures. Actions in reviewing a prisoner’s administrative appeal cannot 24 serve as the basis for liability under a § 1983 action. Buckley , 997 F.2d , 494 495 (8th Cir. 25 1993). The argument that anyone who knows about a violation of the Constitution, and fails to 26 cure it, has violated the Constitution himself is not correct. “Only persons who cause or 27 28 21 1 participate in the violations are responsible. Ruling against a prisoner on an administrative 2 complaint does not cause or contribute to the violation. A guard who stands and watches while 3 another guard beats a prisoner violates the Constitution; a guard who rejects an administrative 4 complaint about a completed act of misconduct does not.” George v. Smith, 507 F.3d 605, 609- 5 10 (7th Cir. 2007) citing Greene v. Daley, 414 F.3d 645, 656-57 (7th Cir.2005); Reed v. 6 McBride, 178 F.3d 849, 851-52 (7th Cir.1999); Vance v. Peters, 97 F.3d 987, 992-93 (7th 7 Cir.1996). The evidence submitted by Defendant Duty indicates that he was not aware of any 8 unauthorized taking of Plaintiff’s medication, and that when he was informed via the inmate 9 grievance process that Plaintiff complained of improper confiscation of his medicine, he 10 responded appropriately. 11 In his opposition, Plaintiff argues generally that Defendant Duty has an obligation under 12 the Eighth Amendment to ensure appropriate medical care. Plaintiff appears to argue that Duty 13 knew about Plaintiff’s valley fever, yet failed to act in response to this knowledge. Plaintiff 14 declares that he “had brought the Chambers taking medications from Plaintiff’s cell to the 15 attention of the supervising officers. The officers became very aggressive with Plaintiff as if 16 Plaintiff was doing something wrong. The officers crowded around Plaintiff and were very harsh 17 in tone of voice and reprimanding Plaintiff for even mentioning something about an officer.” 18 (Opp’n. 36:14-19.) Plaintiff does not, however, come forward with any evidence that Duty 19 participated in, or knew of and failed to prevent, any unauthorized confiscation of medication 20 from Plaintiff’s cell. As with the other defendants who are employed as custody staff, Duty had 21 no authority to direct medical personnel to respond to Plaintiff’s condition. Plaintiff offers no 22 evidence that Duty was deliberately indifferent to Plaintiff’s serious medical needs. Judgment 23 should therefore be entered in Defendant Duty’s favor. 24 F. 25 Plaintiff alleges that Defendant Hilts, a Licensed Vocational Nurse, failed to administer 26 Defendant Hilts prescribed medications to Plaintiff. Plaintiff alleges that Hilts withheld medication in order to 27 28 22 1 torture him. (Am. Compl. ¶ 49.) Plaintiff specifically alleges that on December 18, 2006, he 2 was seen by the doctor, “and got the lidoderm patch ordered at noon as the medical staff 3 continued to use unspecific doctor ‘time’ orders on lidoderm as excuse.” Plaintiff alleges that 4 Hilts “ran back to the doctor and had doctor Phi change the times on the order to torture the 5 Plaintiff into standing in a line to get medications for over 30 minutes.” (Am. Compl. ¶ 50.) 6 The opposition is supported by the declaration of Defendant Hilts. Hilts declares that the 7 patch at issue is a Lidoderm 5% patch. Staff were required to apply the patch to the inmate, 8 initial it, and include the date and time on the patch. The patches are generally required to be 9 applied for twelve hours, then removed for twelve hours. Hilts advised Plaintiff that in order to 10 ensure the medication was administered correctly in twelve hour intervals, it needed to be applied 11 in the morning so that staff were available to remove it in the evening. Hilts also informed 12 Plaintiff that if proper dosage and time instructions were not followed, Plaintiff’s health could 13 have been endangered. Any changes made to the timing of the medication administration was to 14 prevent harm and to comport with the doctor’s instructions. Hilts spoke with prison physicians 15 regarding the need to administer the medication in the morning so that medical staff could ensure 16 proper application and removal. (Hilts Decl. ¶¶ 4-6.) 17 Further, Dr. Igbinosa declares that if an inmate with valley fever receiving a Lidoderm 18 5% patch went without pain medications for twelve hours, although they may be in some 19 discomfort, it would not cause them to be in an emergency condition. This would be especially 20 true for Lidoderm patches, which are generally required to be applied for twelve hours, then off 21 for twelve hours. It is important to follow the medical instructions to ensure that these patches 22 are only on for twelve hours and then removed. The most efficient time to administer Lidoderm 23 5% patches was in the morning pill line so that medical staff was on shift to ensure that the 24 patches were removed in the evening. Plaintiff did have some periods of time where his 25 Lidoderm patches were applied at 12 a.m. Plaintiff’s medication administration records reflect 26 that he often failed to appear at the correct time to receive his medications. (Igbinosa Decl. ¶¶ 27 28 23 1 2 30-32.)7 The Court finds that the evidence indicates that Defendant Hilts was not deliberately 3 indifferent to a serious medical need of Plaintiff’s. The evidence indicates that Hilts 4 administered Plaintiff’s medication in accord with the physician’s instructions and appropriate 5 medical practices. 6 In his opposition, Plaintiff fails to specifically make an argument as to Defendant Hilts. 7 The only argument regarding Defendant Hilts relates to Plaintiff’s efforts at exhausting his 8 administrative remedies. The Court has reviewed the exhibits in support of Plaintiff’s 9 opposition, along with his declaration, and finds that Plaintiff has not met his burden on 10 summary judgment. Plaintiff has not come forward with evidence of a triable issue of fact - 11 evidence that Hilts knew of and disregarded a serious risk to Plaintiff’s health. Plaintiff offers no 12 evidence that Defendant Hilts failed or refused to properly administer Plaintiff’s medication. 13 Judgment should therefore be entered in favor of Defendant Hilts. 14 G. 15 Plaintiff alleges that Defendant MTA Long failed to follow doctor’s orders to dispense Defendant Long 16 certain medication to Plaintiff to treat his valley fever. Specifically, the doctor prescribed “a 17 lidoderm patch and narcotics,” (Am. Compl. ¶ 51.) MTA Long failed to dispense the medication 18 “on numerous occasions.” Id. 19 In support of the motion for summary judgment, Defendant Long declares that at the time 20 of the events complained of, Long was employed as the Third Watch MTA. As such, Long 21 administered medications to inmates, commonly known as “pill line.” Long was responsible for 22 evening medication administrations. Long declares that he completely relied on the information 23 in the Medication Administration Record Logs, which records what medication was administered 24 and when, as well as the staff member responsible. (Long Decl. ¶¶ 2-5.) Long specifically 25 26 7 27 Exhibit 3 to Dr. Igbinosa’s declaration includes copies of Plaintiff’s medication administration record. The records indicated that Plaintiff failed to appear at pill line on 5 separate occasions in December of 2006 and January of 2007. 28 24 1 declares that he “never acted with the intent to cause harm to Solvey, or to interfere with medical 2 orders for the purpose of causing harm.” (Id. ¶ 8.) 3 The Court finds that Long has met his burden on summary judgment. The evidence 4 submitted by Defendant Long indicates that he dispensed medication to Plaintiff in accordance 5 with applicable policies and procedures. The evidence indicates that Defendant Long was not 6 deliberately indifferent to a serious medical need of Plaintiff’s. 7 In his opposition, Plaintiff fails to specifically make an argument as to Defendant Long’s 8 conduct. The only argument regarding Defendant Long relates to Plaintiff’s efforts at exhausting 9 his administrative remedies. The Court has reviewed the exhibits in support of Plaintiff’s 10 opposition, along with his declaration, and finds that Plaintiff has not met his burden on 11 summary judgment. Plaintiff has not come forward with evidence of a triable issue of fact - 12 evidence that Defendant Long knew of and disregarded a serious risk to Plaintiff’s health. 13 Plaintiff offers no evidence that Defendant Long failed or refused to properly administer 14 Plaintiff’s medication. Judgment should therefore be entered in favor of Defendant Long. 15 H. 16 Plaintiff alleges that Defendant LVN Sellers withheld medications. Plaintiff specifically Defendant Sellers 17 alleges that during the month of September 2006, while A Facility was on lockdown, Sellers 18 “continuously failed to administer pain medication to Plaintiff’s cell as prescribed by the doctor. 19 When Plaintiff attempted to inform the LVN Sellers of the times of the prescribed meds, LVN 20 Sellers used arguments and excuses not to bring the forgotten meds to Plaintiff’s cell.” (Am. 21 Compl. ¶ 55.) 22 The motion for summary judgment is supported by the deposition of Defendant Sellers. 23 Sellers worked in two functions while employed at PVSP. Sellers administered medication to 24 inmates, known as “pill line,” until early September. Sellers was not employed at PVSP after 25 early October, 2006. 26 and noon medication administrations. Thereafter, Sellers worked in the clinic where inmates Sellers worked second watch, and was therefore responsible for morning 27 28 25 1 had their medical appointments, known as “doctor’s line.” Sellers did, on occasion, work 2 overtime on third watch, administering medications in pill line. Sellers recalls administering 3 medication to Plaintiff, though not a Lidoderm patch. Sellers declares that Plaintiff would often 4 fail to appear at the proper time for pill line and would not receive his oral medication. (Sellers 5 Decl. ¶¶ 1-4.) Sellers specifically declares that “I never acted with the intent to cause harm to 6 Solvey, or to interfere with medical orders for the purpose of causing harm.” (Id. ¶ 5.) 7 Sellers refers the Court to the declaration of Dr. Igbinosa. Dr. Igbinosa reviewed 8 Plaintiff’s medical records, noting that “Solvey did not have a prescription that was filled for a 9 Lidoderm 5% patch in September 2006. It appears that one was initially prescribed on 10 September 11, 2006. The prescription was not issued until October 10, 2006.” (Igbinosa Decl. ¶ 11 27.) 12 The Court finds that Defendant Sellers has come forward with evidence that Plaintiff was 13 not deprived of his pain medication by Defendant Sellers. The evidence indicates that he did not 14 have a prescription for the patch while Sellers was employed at PVSP. Further, the evidence 15 indicates that Sellers did not interfere with Plaintiff’s medication. 16 In his opposition, Plaintiff argues that Sellers “yelled at Plaintiff and acted with 17 oppression when Plaintiff sought to get his medication.” Plaintiff does not, however, come 18 forward with evidence that creates a disputed issue of fact as to whether he had a prescription for 19 a Lidoderm patch in September of 2006. Plaintiff contends that Sellers acted with negligence in 20 by forgetting to issue medication, then oppression and deliberate indifference by refusing to issue 21 it. In the face of the specific evidence offered by Sellers - that he did not have a prescription for 22 the medication in September of 2006 and that Sellers was not employed at PVSP in October of 23 2006 - the Court finds Plaintiff’s allegations to be vague. In order to meet his burden on 24 summary judgment, Plaintiff must come forward with evidence that creates a disputed issue of 25 fact as to whether he did in fact have a prescription for Lidoderm in September of 2006 and that 26 Sellers improperly deprived him of his medication. Plaintiff has not come forward with such 27 28 26 1 evidence. Judgment should therefore be entered in favor of Defendant Sellers. 2 I. 3 Plaintiff alleges that Defendant C/O Chambers intentionally deprived him of prescribed Defendant Chambers 4 medication. Specifically, Plaintiff alleges that on three separate occasions in March and April of 5 2006, Chambers searched Plaintiff’s cell and removed the medication used by Plaintiff to treat 6 his condition. Plaintiff alleges that Chambers took the medication in violation of doctor’s orders. 7 Plaintiff was deprived of the medication for 30 days. (Am. Compl. ¶ 58.) 8 In support of the motion for summary judgment, Defendant Chambers submits his own 9 declaration. Chambers declares that, although he does not have any specific recollection of 10 Plaintiff, he often confiscated inmate medication during routine and required cell searches. 11 During such routine searches, it was Chambers’ regular custom and practice to explain to the 12 inmate, at least on the first occasion, that Chambers was required by prison regulations to 13 confiscate medication if the packaging, inmate’s name, CDC identification number, or expiration 14 date, was altered, removed or past due. Once Chambers confiscated the medication, he gave it to 15 medical staff for disposal and told staff which inmate the medication came from. Chambers 16 declares that he never deviated from this process, and has never confiscated an inmate’s 17 medication with the intent to cause harm. Rather, the purpose when taking the medication was to 18 prevent any harm by misuse of medication. (Chambers Decl. ¶¶ 5-8.) In his deposition, Plaintiff 19 concedes that he was aware that Chambers confiscated the medication because Plaintiff himself 20 removed the medications from their original packaging, causing them to be mislabeled, and 21 placed them in a cracker box. (Solvey Depo. 33:23-25 – 34:1-18; 35:23-25 –36:1-7; 139:1-15; 22 141:3-6; pp. 145-147.) 23 The Court finds that Defendant Chambers has met his burden on summary judgment. 24 The evidence submitted by Chambers indicates that whenever he confiscated any medication, he 25 did so in accordance with policies and procedures. The evidence indicates that Chambers did not 26 improperly confiscate Plaintiff’s medication. 27 28 27 1 In his opposition, Plaintiff fails to specifically make an argument as to Defendant 2 Chambers. The only argument regarding Defendant Chambers relates to Plaintiff’s efforts at 3 exhausting his administrative remedies. The Court has reviewed the exhibits in support of 4 Plaintiff’s opposition, along with his declaration, and finds that Plaintiff has not met his burden 5 on summary judgment. Plaintiff has not come forward with evidence of a triable issue of fact - 6 evidence that Chambers improperly confiscated his medication. Judgment should therefore be 7 entered in favor of Defendant Chambers. 8 VI. 9 State Law Claims Pursuant to 28 U.S.C. § 1367(a), in any civil action in which the district court has original 10 jurisdiction, the district court “shall have supplemental jurisdiction over all other claims in the 11 action within such original jurisdiction that they form part of the same case or controversy under 12 Article III,” except as provided in subsections (b) and (c). “[O]nce judicial power exists under § 13 1367(a), retention of supplemental jurisdiction over state law claims under 1367(c) is 14 discretionary.” Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). “The district 15 court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . 16 the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 17 1367 (c)(3). The Supreme Court has cautioned that “if the federal claims are dismissed before 18 trial . . . the state claims should be dismissed as well.” United Mine Workers of Amer. v. Gibbs, 19 383 U.S. 715, 726 (1966). 20 Because the Court finds that Defendants are entitled to entry of judgment as a matter of 21 law on all of Plaintiff’s federal claims, the Court should not exercise its supplemental 22 jurisdiction. Accordingly, the Court recommends that plaintiff’s state claims be remanded to 23 state court. 24 VII. 25 26 Conclusion and Recommendation The evidence submitted by Defendants Yates, Igbinosa, Beels, Greene, Duty, Hilts, Long, Sellers and Chambers establishes, without dispute, that Plaintiff has failed to exhaust his 27 28 28 1 available administrative remedies prior to filing suit. Defendants have also come forward with 2 evidence that establishes the lack of existence of a triable issue of fact. The evidence submitted 3 by Defendants establishes, without dispute, that none of the defendants knew of and disregarded 4 a serious medical condition of Plaintiff’s. After reviewing all of Plaintiff’s evidence submitted in 5 opposition, the Court finds that Plaintiff has not met his burden on summary judgment. Plaintiff 6 has not come forward with any evidence that establishes a triable issue of fact. Plaintiff offers no 7 evidence that any of the defendants knew of and disregarded a serious medical condition of 8 Plaintiff’s. Defendants are therefore entitled to judgment as a matter of law. 9 10 11 Accordingly, IT IS HEREBY RECOMMENDED that Defendants’ motion for summary judgment be granted, and judgment be entered in favor of defendants and against Plaintiff. These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty days 13 after being served with these findings and recommendations, any party may file written 14 objections with the court and serve a copy on all parties. Such a document should be captioned 15 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 16 shall be served and filed within ten days after service of the objections. The parties are advised 17 that failure to file objections within the specified time waives all objections to the judge’s 18 findings of fact. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). Failure to file 19 objections within the specified time may waive the right to appeal the District Court’s order. 20 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 22 23 24 IT IS SO ORDERED. Dated: 6i0kij January 20, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 25 26 27 28 29
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