(PC) Meador v. Aye et al, No. 1:2014cv00006 - Document 142 (E.D. Cal. 2017)

Court Description: FINDINGS and RECOMMENDATIONS Recommending That Defendants' Motions for Summary Judgment be Granted In Part and Denied In Part; ORDER DENYING Defendants' 114 Motion to Strike Plaintiff's Response to Reply to Defendants' Reply to Motion for Summary Judgment, signed by Magistrate Judge Erica P. Grosjean on 8/29/17. Objections to F&R Due Within Twenty One Days. (Marrujo, C)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 GORDON DALE MEADOR, 1:14-cv-00006-DAD-EPG (PC) Plaintiff, 10 11 v. 12 FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT BE GRANTED IN PART AND DENIED IN PART K. AYE, et al., Defendants. 13 (ECF Nos. 99 & 127) OBJECTIONS, IF ANY, DUE WITHIN TWENTY ONE DAYS 14 15 ORDER DENYING DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S RESPONSE TO REPLY TO DEFENDANTS’ REPLY TO MOTION FOR SUMMARY JUDGMENT 16 17 18 (ECF NO. 114) 19 20 I. BACKGROUND 21 Gordon Meador ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis 22 with this civil rights action pursuant to 42 U.S.C. ' 1983. This action now proceeds on the 23 First Amended Complaint, filed on September 22, 2015, against defendants Garza, Sellers,1 24 Aye, Moon, Nguyen, Clark, Kim, and Gill (collectively, “Defendants”) on Plaintiff's claims for 25 26 27 28 1 Defendants refer to “Sellers” as “Selliers.” As “Sellers” is currently the name on the Court’s docket sheet, the Court will refer to this defendant as “Sellers.” 1 1 deliberate indifference to his serious medical needs in violation of the Eighth Amendment. 2 (ECF Nos. 30, 36, 37, & 38).2 3 On November 29, 2016, Defendants filed a motion for summary judgment. (ECF No. 4 99).3 On January 6, 2017, Plaintiff filed his opposition to the motion for summary judgment 5 ECF No. 108),4 a declaration in support of the opposition to the motion for summary judgment 6 (ECF No. 108-1, p. 177 & ECF No. 108-2 pgs. 1-11), and his statement of disputed facts (ECF 7 No 109). Plaintiff also incorporated his First Amended Complaint into his opposition by 8 reference. (ECF No. 108, p. 15). On January 13, 2017, Defendants filed a reply. (ECF No. 9 111). On January 27, 2017, Plaintiff filed what the Court construes as a surreply. (ECF No. 10 113). On January 30, 2017, Defendants filed a motion to strike Plaintiff’s surreply. (ECF No. 11 114). On February 23, 2017, Plaintiff objected to Defendants’ motion to strike. (ECF No. 12 115). 13 Given some confusion regarding whether Plaintiff abandoned parts of a claim, on 14 March 30, 2017, the Court allowed Defendants to file a supplemental motion for summary 15 judgment. (ECF No. 121). On April 17, 2017, Plaintiff filed a “belated notice of medical 16 records are authenticated by defense counsel as her own evidence in the summary judgment 17 motion.” (ECF No. 125). On April 18, 2017, Defendants filed their supplemental motion for 18 summary judgment. (ECF No. 127). On April 27, 2017, Plaintiff filed his opposition to the 19 supplemental motion for summary judgment. (ECF No. 131). On May 1, 2017, Defendants 20 filed their reply. (ECF No. 133). Because it appeared that Plaintiff may have filed his 21 opposition to the supplemental summary judgment motion before actually receiving a copy of 22 it, the Court allowed Plaintiff to file another opposition. (ECF No. 134). On May 11, 2017, 23 24 25 26 27 28 2 Defendant Smith was dismissed from the case on June 30, 2016, via a stipulation (ECF Nos. 77 & 81). Concurrently with their motion for summary judgment, Defendants served Plaintiff with the requisite notice of the requirements for opposing the motion. Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998). 4 Because Plaintiff’s opposition to the motion for summary judgment is signed under penalty of perjury (ECF No. 108, p. 31), the Court will treat this opposition not only as an opposition to the motion for summary judgment, but also as a declaration in support of the opposition. 3 2 1 Plaintiff filed his second opposition to the supplemental motion for summary judgment.5 On 2 May 19, 2017, Defendants filed their reply. (ECF No. 138). 3 Defendants’ motion for summary judgment, supplemental motion for summary 4 judgment, and motion to strike are now before the Court. For the reasons that follow, the Court 5 will recommend that Defendants’ motions for summary judgment be granted in part and denied 6 in part. Additionally, the Court will deny Defendants’ motion to strike. 7 DEFENDANTS’ MOTION TO STRIKE II. 8 Defendants ask the Court to strike Plaintiff’s surreply because it is an impermissible 9 attempt by Plaintiff to file additional facts in opposition to the motion for summary judgment. 10 (ECF No. 114). Plaintiff filed a response, stating that he is not an attorney, has no access to a 11 law library, is not well versed in law, and has a GPL of 2.9.6 (ECF No. 115). Plaintiff further 12 asserts that allowing Plaintiff to file his surreply will not prejudice Defendants. (Id.). 13 Given Plaintiff’s lack of legal sophistication, as well as the lack of prejudice to 14 Defendants in allowing Plaintiff to file a surreply, the Court will treat the surreply as including 15 a request to file a surreply, and grant it nunc pro tunc. Accordingly, Defendants’ Motion to 16 strike will be denied. 17 However, the Court notes that the surreply does not change the Court’s analysis. Most 18 of the surreply involves Plaintiff summarizing evidence he previously submitted and reiterating 19 facts he has already alleged. (ECF No. 113, pgs. 1-3). 20 In the surreply, Plaintiff also alleges that he was not able to prepare his opposition to the 21 motion for summary judgment satisfactorily because there is no law library where Plaintiff is 22 housed. (Id. at p. 1). However, Plaintiff himself has admitted that there is a law library where 23 he is housed; he just does not believe it is adequate. (ECF No. 110, pgs. 1-2). Plaintiff also 24 stated that he received a law book from a fellow inmate, which he utilized in preparing his 25 26 27 28 5 Because Plaintiff’s second opposition to the supplemental motion for summary judgment is signed under penalty of perjury (ECF No. 136, p. 10), the Court will treat this opposition not only as an opposition to the supplemental motion for summary judgment, but also as a declaration in support of the opposition. 6 Plaintiff does not explain what GPL stands for. It is the Court’s understanding that GPL stands for Grade Point Level. 3 1 opposition to the motion for summary judgment. (Id. at p. 2). Given this, as well as the 2 instructions Plaintiff received on how to oppose a motion for summary judgment (ECF No. 99, 3 pgs. 1-3; ECF No. 127-1, pgs. 1-3), the additional time the Court already gave Plaintiff to file 4 his opposition (ECF No. 103), the fact that Plaintiff was able to file an opposition to the motion 5 for summary judgment, a statement of disputed facts, a surreply, and two oppositions to the 6 supplemental motion for summary judgment (ECF Nos. 108, 109, 113, 131, & 136), and the 7 fact that it does not appear that additional research from Plaintiff would be helpful, the Court 8 finds that Plaintiff was able to adequately prepare his oppositions and surreply and is not 9 prejudiced by the Court ruling on Defendants’ motions for summary judgment without giving 10 Plaintiff additional time to research and prepare an additional opposition to the motions for 11 summary judgment. 12 13 14 III. PLAINTIFF’S ALLEGATIONS IN THE COMPLAINT Plaintiff was housed at California State Prison, Corcoran (“CSPC”) when the events giving rise to this action took place. Plaintiff alleges the following. 15 Plaintiff suffers from chronic lower back pain as a result of normal wear and tear and a 16 motorcycle accident prior to imprisonment. The pain did not affect his ability to walk, work, or 17 engage in recreational activities. 18 Plaintiff suffered from chronic problems related to heart disease and diabetes. He 19 received frequent adenosine and insulin injections, blood tests, and other intravenous (IV) 20 administration for his problems. At various times, he also suffered from Hepatitis A, B, and C, 21 which also required frequent injections, IVs, and/or blood tests for treatment. 22 23 In or around the beginning of May of 2012, Plaintiff was diagnosed with spondylolysis and/or spondylolisthesis at the L5-S1 vertebrae of his spine. 24 In or around the spring of 2012, Plaintiff was transferred from California State Prison– 25 Sacramento to CSPC. Between April 2012 and February 2014, Defendants provided medical 26 treatment to Plaintiff. Defendants knew or should have known of Plaintiff’s medical conditions 27 and personal history. 28 4 1 CSPC’s medical facility and instruments were unsanitary and staff did not take the 2 precautions necessary to sterilize the environment and all medical tools. Staff administered a 3 series of injections and IV treatments to Plaintiff using the unsanitary equipment. As a result of 4 receiving injections, IVs, and/or blood tests for his various medical ailments in the unsanitary 5 conditions at CSP, Plaintiff developed a severe infection of the spine referred to as 6 discitis/osteomyelitis. 7 By in or around May or June of 2012, Plaintiff presented symptoms of 8 discitis/osteomyelitis in his spine, including severe and debilitating pain that impeded him from 9 walking. For more than eight months, Plaintiff was not provided the examinations, monitoring, 10 and testing required to identify and treat the disease. The infection was finally identified and 11 treated by medical professionals outside of CSPC when they fortuitously identified the disease 12 while treating him for an unrelated heart-related problem. 13 Beginning in or around April of 2012, Plaintiff made a series of complaints about this 14 new back pain that affected his ability to walk and bend or lift his left leg. He also reported 15 suffering from chills. In response, he was given a walker by medical staff at CSPC . 16 In or around May of 2012, the back pain became unbearable and Plaintiff filed an 17 emergency medical appeal. He was examined by medical staff and was told the pain was 18 caused by a torn oblique muscle. He was not provided special housing for his pain and 19 inability to walk. 20 Plaintiff continued to complain of abnormal back pain and an inability to move, sit, and 21 walk. He was bed ridden and authorized to eat and stay in his cell. He frequently cried and 22 hyperventilated in response to the pain that he rated a 10 out of 10. He advised medical staff 23 that these were new complaints. 24 Medical staff determined that the degree of pain claimed by Plaintiff exceeded their 25 findings and found that he was not a surgical candidate, but instead was acting “irrational.” 26 Staff informed Plaintiff that he had a crushed disc in his back, and that the pain was muscular 27 in origin. They recommended he exercise more frequently and gave him a pamphlet regarding 28 5 1 back pain. 2 medications. They also prescribed additional pain, anti-inflammatory, and muscle relaxant 3 In or around July or August of 2012, Plaintiff could no longer move or stand without 4 assistance. He reported severe back pain that radiated into his chest and affected his abilities to 5 move his left leg and walk. He fell down while alone in his cell on several occasions, severely 6 injuring his back against the toilet on one occasion. He fell because he was confined to a cell 7 without the assistance required to move in light of his spinal infection, including the walker that 8 had been ordered for him in April of 2012. 9 Thereafter, medical staff reviewed an X-ray of Plaintiff’s spine, which did not reveal 10 any new problems in Plaintiff’s back. The imaging was not sufficiently sensitive to detect 11 discitis/osteomyelitis. He was discharged without treatment for the infection. 12 Between June 2012 and February 2013, Plaintiff submitted more than 30 complaints 13 and/or requests for medical treatment concerning his back pain. He requested an MRI and 14 surgical intervention on several occasions. Many of his complaints were not recorded by staff. 15 Additionally, staff did not accurately and fully record facts affecting his medical care, nor did 16 staff report all of the details concerning his medical problems, including that on several 17 occasions Plaintiff was found in his cell unable to move after defecating and/or urinating on 18 himself. In response, staff did not order or perform MRI and/or CT scans. 19 Plaintiff’s physical health deteriorated over time due to the spinal infection. He stopped 20 showering, changing his clothes, and even “bird-bathing,” due to the pain. He lost control of 21 his bodily functions and suffered frequent involuntary bowel movements and/or urination. 22 Other times, he could not void himself completely. He often relied on non-medical staff and 23 cell mates to eat, dress, go to the bathroom and generally care for himself. 24 Plaintiff’s mental health also deteriorated. He became increasingly depressed, 25 hypervigilant, and paranoid. He felt completely helpless and lost all hope of receiving the 26 necessary treatment. 27 In or around October of 2012, nursing staff failed to fully and accurately report 28 Plaintiff’s complaints and facts surrounding his deteriorating condition, and/or intervene to 6 1 provide the medical care needed to treat his back. Plaintiff resorted to pleading with a mental 2 health technician about his medical care. The technician reported his complaints to medical 3 staff, but medical staff failed to examine, monitor, or test Plaintiff for discitis/osteomyelitis. 4 In or around December of 2012, Plaintiff was again denied medical treatment when 5 prison nurses failed to fully and accurately report his complaints. Plaintiff again resorted to 6 pleading with nonmedical staff including correctional officers Miranda and Pardo. Medical 7 staff refused to examine, monitor, or test Plaintiff for discitis/osteomyelitis. 8 In or around February of 2013, Plaintiff was taken to San Joaquin Community Hospital 9 (“SJCH”) for symptoms related to a purported heart attack. Examination by doctors at SJCH 10 revealed significant disc narrowing. An MRI confirmed the presence of discitis/osteomyelitis 11 at the T12-L1 vertebrae. A biopsy revealed scattered soft tissue and bone fragments infiltrated 12 by neutrophils consistent with acute discitis/osteomyelitis. Doctors at SJCH concluded that the 13 infection caused Plaintiff’s pain and rendered him paralyzed. SJCH doctors informed Plaintiff 14 that the infection was equivalent to having a broken back. Plaintiff was advised that the 15 infection had spread and eaten away at the vertebrae due to lack of prior treatment by medical 16 staff at CSPC. The doctors concluded that surgery was too dangerous, and therefore Plaintiff 17 was placed on an aggressive medication regimen involving the administration of some of the 18 strongest antibiotic prescription drugs available, Vancomycin and Daptomycin. 19 Between approximately February and April of 2013, Plaintiff was treated for the 20 infection in his spine with antibiotics. A peripherally inserted central catheter (“PICC Line”) 21 was subsequently implemented to administer the medication. In or around April or May of 22 2013, staff at CSPC discontinued Plaintiff’s antibiotics. They noted an MRI was needed to 23 determine if there was any residual discitis/osteomyelitis, but they did not perform or direct 24 others to perform an MRI or CT scan. The severe pain in Plaintiff’s back returned and he was 25 unable to walk again. 26 In or around May to June of 2013, Plaintiff made a number of complaints of severe 27 back pain that prevented him from moving or walking. He was not examined by medical staff 28 7 1 for more than three weeks. When he was finally examined, the pain was so severe that Plaintiff 2 had to be taken back to SJCH. 3 At SJCH, Plaintiff reported cramps and spontaneous vomiting to medical staff. He said 4 the pain in his back went through his chest. An MRI revealed total obliteration of the disc 5 space at the T12-L1 vertebra, which had decreased Plaintiff’s body height, and diffuse marrow 6 edema, which confirmed residual discitis/osteomyelitis. 7 SJCH medical staff again recommended that Plaintiff undergo antibiotic treatment 8 rather than surgical intervention due to risks of paralysis. Plaintiff was advised that his clinical 9 course for improvement would take longer due to the lack of prior treatment of the infection 10 and surgical intervention. They hoped that a qualified physician could provide corrective 11 lumbar instrumentation after the infection was cured. They recommended use of a custom 12 medical corset, which the California Department of Corrections and Rehabilitation (“CDCR”) 13 refused to provide because Plaintiff could not afford to pay the $1,400.00 cost of the brace. 14 Plaintiff resumed heavy antibiotic treatment in or around July 2013. He continued to 15 experience significant pain and was unable to walk, stand, or lay down for extended periods of 16 time. He worried constantly that the infection would spread, that the potent antibiotics would 17 have lasting consequences, and that paralysis would occur at any moment. Mental health staff 18 noted that he was even more anxious, depressed, agitated, and distressed than in 2012. In 19 diagnosing Plaintiff, they identified his Axis III problems as spinal infection. 20 In November of 2013, Plaintiff could still not fully ambulate or walk for any significant 21 distance. He was taken to SJCH where an MRI revealed that the infection was subsiding. 22 However, the imaging revealed fusing of the T12-L1 vertebral bodies, canal narrowing, and 23 permanent injuries to Plaintiff’s spine. Additionally, medical staff identified a new area of 24 abnormality on the superior end plate of the T11 vertebrae of Plaintiff’s spine, which was 25 confirmed to be a lesion. They believed that it was imperative for an expert in neurosurgery or 26 spinal orthopedic surgery to evaluate Plaintiff for surgical intervention, but the only local 27 surgeon could not perform the surgery. Plaintiff was discharged and returned to CSPC without 28 any such evaluation. 8 1 Plaintiff’s injuries have substantially diminished his quality of life. He can no longer 2 exercise, play handball, or engage in yoga. He frequently falls due to an inability to support his 3 own body weight. He cannot walk without support for more than a handful of steps and will 4 never regain the ability to do so. His mental health has increasingly deteriorated. He can no 5 longer work in prison industries or fix electronic devices, which generated income of 6 approximately $600 per month. He has spent approximately $300 for a wheelchair, $46 for a 7 cane, and $53 for a brace. He must spend approximately $5 per month for medication. He 8 cannot afford the $1,400 necessary to obtain the custom corset prescribed by doctors. 9 The infection in Plaintiff’s spine led to the development of a lesion on his T11 end plate 10 vertebrae. The lesion could lead to paralysis. The lesion was caused by the spinal infection 11 that went untreated and unidentified by Defendants. 12 IV. SCREENING ORDER 13 The Court7 found a cognizable claim for deliberate indifference to serious medical 14 needs against Garza and Sellers because Plaintiff stated “he was in severe pain and made 15 repeated statements to Garza and Sellars8 of his condition, but Garza and Sellars ignored, failed 16 to respond, and/or failed to accurately record his complaints and requests for care. Plaintiff 17 claims this was despite the fact that Plaintiff was no longer able to walk or care for himself, and 18 was involuntarily defecating and urinating on himself.” (ECF No. 36, p. 9). 19 The Court also found a cognizable claim for deliberate indifference to serious medical 20 needs against defendants Aye, Moon, Nguyen, Clark, Kim, Smith, and Gill, because, 21 “[a]lthough Plaintiff concedes Defendants provided medical care, his allegations demonstrate 22 that they persistently ignored his complaints of severe pain and the deterioration of his physical 23 condition. Further, Plaintiff alleges that Defendants’ medical care and the failure to provide 24 appropriate tests were medically unacceptable under the circumstances, and this course of 25 action was chosen in conscious disregard of an excessive risk to his health.” (Id. at 10). 26 7 27 Magistrate Judge Dennis L. Beck was the assigned magistrate judge until September 8, 2016. (ECF No. 92). 28 8 The First Amended Complaint refers to “Sellers” as “Sellars.” As “Sellers” is currently the name on the Court’s docket sheet, the Court will refer to this defendant as “Sellers.” 9 1 The Court found no other cognizable claims. (Id. at 11). 2 The Court gave Plaintiff the choice of filing an amended complaint or notifying the 3 Court that he was willing to proceed only on the cognizable claims. (Id.). Plaintiff elected to 4 proceed only on the claims found cognizable by the Court. (ECF No. 37). 5 6 V. LEGAL STANDARDS a. Summary Judgment 7 Summary judgment in favor of a party is appropriate when there “is no genuine dispute 8 as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 9 P. 56(a); Albino v. Baca (“Albino II”), 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (“If there 10 is a genuine dispute about material facts, summary judgment will not be granted.”). A party 11 asserting that a fact cannot be disputed must support the assertion by “citing to particular parts 12 of materials in the record, including depositions, documents, electronically stored information, 13 affidavits or declarations, stipulations (including those made for purposes of the motion only), 14 admissions, interrogatory answers, or other materials, or showing that the materials cited do not 15 establish the absence or presence of a genuine dispute, or that an adverse party cannot produce 16 admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). 17 A party moving for summary judgment “bears the initial responsibility of informing the 18 district court of the basis for its motion, and identifying those portions of ‘the pleadings, 19 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 20 any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 21 Corp. v. Catrett, 477 U.S. 317, 323 (1986), quoting Fed. R. Civ. P. 56(c). If the moving party 22 moves for summary judgment on the basis that a material fact lacks any proof, the court must 23 determine “whether a fair-minded jury could reasonably find for the [non-moving party].” 24 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla 25 of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on 26 which the jury could reasonably find for the plaintiff.”). 27 concerning an essential element of the nonmoving party’s case necessarily renders all other 28 facts immaterial.” Celotex, 477 U.S. at 322. “[C]onclusory allegations unsupported by factual 10 “[A] complete failure of proof 1 data” are not enough to rebut a summary judgment motion. Taylor v. List, 880 F.2d 1040, 2 1045 (9th Cir. 1989), citing Angel v. Seattle-First Nat’l Bank, 653 F.2d 1293, 1299 (9th Cir. 3 1981). 4 In reviewing a summary judgment motion, the Court may consider other materials in 5 the record not cited to by the parties, but is not required to do so. Fed. R. Civ. P. 56(c)(3); 6 Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). In 7 judging the evidence at the summary judgment stage, the Court “must draw all reasonable 8 inferences in the light most favorable to the nonmoving party.” Comite de Jornaleros de 9 Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). It need only 10 draw inferences, however, where there is “evidence in the record . . . from which a reasonable 11 inference . . . may be drawn”; the court need not entertain inferences that are unsupported by 12 fact. Celotex, 477 U.S. at 330 n. 2. 13 14 15 Additionally, the Court must liberally construe Plaintiff’s filings because he is a pro se prisoner. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). b. Deliberate Indifference to Serious Medical Needs 16 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 17 inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 18 1091, 1096 (9th Cir. 2006), (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This 19 requires a plaintiff to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat 20 a prisoner’s condition could result in further significant injury or the unnecessary and wanton 21 infliction of pain,’” and (2) that “the defendant's response to the need was deliberately 22 indifferent.” Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (citation 23 and internal quotations marks omitted), overruled on other grounds by WMX Technologies v. 24 Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). 25 Deliberate indifference is established only where the defendant subjectively “knows of 26 and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 27 1051, 1057 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). 28 11 1 Deliberate indifference can be established “by showing (a) a purposeful act or failure to 2 respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” 3 Jett, 439 F.3d at 1096 (citation omitted). Civil recklessness (failure “to act in the face of an 4 unjustifiably high risk of harm that is either known or so obvious that it should be known”) is 5 insufficient to establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 6 836-37 & n. 5 (1994) (citations omitted). To prevail, a plaintiff “must show that the course of 7 treatment the doctors chose was medically unacceptable under the circumstances… and… that 8 they chose this course in conscious disregard of an excessive risk to plaintiff’s health.” Jackson 9 v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted). 10 Where a prisoner is alleging a delay in receiving medical treatment, the delay must have 11 led to further harm in order for the prisoner to make a claim of deliberate indifference to 12 serious medical needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of State Prison 13 Comm=rs, 766 F.2d 404, 407 (9th Cir. 1985)). 14 A difference of opinion between an inmate and prison medical personnel—or between 15 medical professionals—regarding appropriate medical diagnosis and treatment is not enough to 16 establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 17 Toguchi, 391 F.3d at 1058. Additionally, “a complaint that a physician has been negligent in 18 diagnosing or treating a medical condition does not state a valid claim of medical mistreatment 19 under the Eighth Amendment. Medical malpractice does not become a constitutional violation 20 merely because the victim is a prisoner.” Estelle, 429 U.S. at 106. 21 VI. DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT In their motion for summary judgment, Defendants allege that Plaintiff’s claims are not 22 23 supported by evidence or medical science. 24 Defendants also provide evidence that they were not deliberately indifferent to Plaintiff’s 25 serious medical needs, and in fact provided medical care to Plaintiff. (ECF No. 99-2; ECF No. 26 127-2). (ECF No. 99-1, p. 2; ECF No. 127, p. 9). 27 28 12 1 Defendants also argue that Plaintiff admitted that his claim for deliberate indifference 2 ended when he was hospitalized in February of 2013, and thus abandoned his claim for 3 deliberate indifference after that date. (ECF No. 99-1, p. 13; ECF No. 127, p. 8). 4 The Court notes that, in his opposition to the motion for summary judgment, instead of 5 directing the Court’s attention to evidence supporting his claims, Plaintiff simply attaches 6 approximately 500 pages of exhibits. Not one of Plaintiff’s three oppositions directs the 7 Court’s attention to evidence supporting Plaintiff’s claim. Plaintiff has left it to the Court and 8 Defendants to sift through Plaintiff’s evidence to determine what evidence Plaintiff has 9 presented regarding how each defendant violated his constitutional rights. This is not 10 appropriate. The Court is “not required to comb the record to find some reason to deny a 11 motion for summary judgment.” Forsberg v. Pac. Nw. Bell Tel. Co., 840 F.2d 1409, 1418 (9th 12 Cir. 1988); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001). 13 Instead, the “party opposing summary judgment must direct [the Court's] attention to specific, 14 triable facts.” Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 15 2003). 16 Additionally, Plaintiff failed to properly address Defendants’ statements of undisputed 17 fact. Accordingly, the Court may consider Defendants’ assertions of fact as undisputed for 18 purposes of this motion. Fed. R. Civ. P. 56(e)(2); Local Rule 260(b). 19 The Court also notes that, in his opposition to the motion for summary judgment, which 20 was filed on January 6, 2017, Plaintiff stated that he is trying to obtain declarations from 21 several witnesses. (ECF No. 108, p. 27). These declarations have not been submitted to the 22 Court. Given that the discovery period has closed, that the Court already gave Plaintiff 23 approximately sixty additional days to respond to the motion for summary judgment (ECF No. 24 103), and that Plaintiff never filed a motion requesting the reopening of discovery, the Court 25 will not give Plaintiff additional time to obtain evidence. 26 27 a. Evidentiary Objections Defendants have made objections to Plaintiff’s evidence, which the Court has carefully 28 13 1 reviewed. To the extent that the Court necessarily relied on evidence that has been objected to, 2 the Court relied only on evidence it considered to be admissible. It is not the practice of this 3 Court to rule on evidentiary matters individually in the context of summary judgment, unless 4 otherwise noted. 5 recitations of evidentiary principles or blanket objections without analysis applied to specific 6 items of evidence.” Capital Records, LLC v. BlueBeat, Inc., 765 F.Supp.2d 1198, 1200 n.1 7 (C.D.Cal. 2010) (quoting Doe v. Starbucks, Inc., No. SACV 08–0582 AG (CWx), 2009 WL 8 5183773, at *1 (C.D.Cal. Dec. 18, 2009)). This is particularly true when “many of the objections are boilerplate 9 b. Defendants’ Argument that Plaintiff Admitted that Defendants were No 10 Longer Deliberately Indifferent to his Serious Medical Needs After his 11 Hospitalization in February of 2013 12 The Court finds that Plaintiff did not admit that his claims for deliberate indifference 13 ended after his hospitalization in February of 2013. However, based on the evidence presented 14 by the parties, the Court finds that it is undisputed as a matter of fact that Plaintiff’s claims for 15 deliberate indifference against Defendants ended after he was hospitalized in February of 2013. 16 Defendants argue that Plaintiff admitted that, once he was hospitalized in February of 17 2013, Defendants were no longer deliberately indifferent to Plaintiff’s serious medical needs. 18 (ECF No. 99-1, p. 13; ECF No. 127, pgs. 2-3). Defendants rely on what Plaintiff said in his 19 deposition. In the deposition, Defendants’ counsel asked Plaintiff, “What are the dates you’re 20 claiming these doctors were deliberately indifferent to you.” (ECF No. 99-2, p. 58). Plaintiff 21 replied, “At the prison.” (Id.). Defendants’ counsel then asked, “But what are the dates? Are 22 you claiming that when you came back from the hospital they were still deliberately 23 indifferent?” (Id.). Plaintiff replied, “No. No. This happened way before that.” (Id.). 24 Defendants’ counsel then asked, “So is it accurate that their deliberate indifference would have 25 stopped once you were sent out to the hospital?” (Id.). Plaintiff replied, “Yes, ma’am.” (Id.). 26 While, based on the deposition, Plaintiff does appear to be saying that any deliberate 27 indifference to Plaintiff’s serious medical needs stopped after he was sent to the hospital in 28 14 1 February of 2013, Plaintiff alleges that he was actually referring to when his second infection 2 was finally cleared up. (ECF No. 108, p. 11). 3 Given the fact that the First Amended Complaint clearly alleges deliberate indifference 4 after February of 2013, the ambiguity of the question Plaintiff was asked at his deposition 5 (Plaintiff was treated at a hospital for his spinal infection on at least two occasions), and 6 Plaintiff’s explanation that he was referring to when his second infection was finally cleared 7 up, the Court finds that Plaintiff did not admit that his claim for deliberate indifference ended 8 after his hospitalization in February of 2013. While Plaintiff’s statement could be used against 9 him at trial, this Court declines to treat it as a formal waiver of claims. 10 However, in one of his oppositions to the supplemental motion for summary judgment, 11 Plaintiff states that “[w]hen plaintiff was re-infected in his spine, none of the previous 12 defendants named pre[-]February 2013 caused Plaintiff problems except Dr. Smith, who 13 prematurely discharged plaintiff without ordering another MRI to make sure plaintiff was free 14 of the spinal infection.” (ECF No. 131, p. 4). Plaintiff alleges that “[t]his lapse clearly caused 15 the re-occurrence of the infection.” (Id.). “There was [sic] several other people responsible for 16 refusing to treat plaintiff the second time, but not the pre-February defendants.” (Id. at 4-5). 17 While these statements were not made under penalty of perjury, they match Defendants’ 18 version of events (See Supplemental Motion for Summary Judgment Separate Statement of 19 Undisputed Facts 13-18).9 20 As Dr. Smith was dismissed from this case on June 30, 2016, via a stipulation (ECF 21 Nos. 77 & 81), the Court finds that it is undisputed that Plaintiff’s claim for deliberate 22 indifference against the remaining defendants ended after Plaintiff was hospitalized in February 23 of 2013. The Court basis this finding on the statements made by Plaintiff that are described 24 above, as well as Federal Rule of Civil Procedure 56(e)(2) and Local Rule 260(b). 25 26 27 28 9 The Court notes that Plaintiff also states that Defendants “were responsible for the cause of infection to the spine and refusing treatment from 2012 through the end of the infection in around June or July 2013” and that “[t]he now named defendants were clearly responsible for the infection, the denial of medical treatment, and infliction of pain and suffering both physical and mental, up until June or July 2013.” (ECF No. 131, p. 5). However, Plaintiff provided no evidence to support these statements (which were not made under penalty of perjury). Additionally, these statements directly contradict the statements Plaintiff made that are described above. 15 c. Plaintiff’s Claim that Defendants’ Deliberate Indifference to Plaintiff’s 1 2 Serious Medical Needs Caused Plaintiff’s Spinal Infection 3 Plaintiff alleges that he received a series of injections and had IV’s placed in his arms in 4 unsanitary facilities where there were food crumbs, wrappers, and pests. (ECF No. 30, pgs. 12- 5 13; ECF No. 108, pgs. 23 & 25-26; ECF No. 108-2, pgs. 2-3, ¶¶ 6, 7, 8). Plaintiff further 6 alleges that defendant Garza directed defendant Sellers (and other staff) to perform procedures 7 on Plaintiff (including injections) without taking the proper measures for sanitation, and that 8 the above-described unsanitary conditions caused his spinal infection. (ECF No. 30, p. 15; 9 ECF No. 108, pgs. 25-26; ECF No. 108-2, pgs. 2-3, ¶¶ 6, 7, 8). 10 Defendants submitted evidence, in the form of a declaration from Dr. Barnett,10 that 11 “there is no medical or scientific evidence to support” Plaintiff’s allegation that Plaintiff’s 12 spinal infection was caused by the alleged use of dirty insulin needles, and that “[i]t is virtually 13 unheard of for patients to be seriously infected by the injections, IV placement or blood 14 drawings done by medical professionals.” (ECF No. 99-2, p. 65, ¶ 9). 15 It is not clear that this claim survived screening. (See ECF No. 36, pgs. 9-10). 16 However, if it did, the Court finds that summary judgment should be granted to Defendants on 17 this claim. 18 Under Rule 702 of the Federal Rules Evidence, “only relevant and reliable expert 19 opinion testimony is admissible.” U.S. v. Sandoval-Mendoza, 472 F.3d 645, 654 (9th Cir. 20 2006). Testimony “is reliable if the knowledge underlying it ‘has a reliable basis in the 21 knowledge and experience of [the relevant] discipline.’” Id., quoting Kumho Tire Co. v. 22 Carmichael, 526 U.S. 137, 149 (1999). “A trial court should admit medical expert testimony if 23 physicians would accept it as useful and reliable.” Id. 24 Lay opinion may be offered by laymen under Rule 701 so long as the opinion is based 25 on the witness's own perception, is helpful to understanding the witness's testimony or to 26 27 28 10 Dr. Barnett is employed by California Correctional Health Care Services as Chief Medical Consultant for the Receiver’s Office of Legal Affairs. (ECF No. 99-2, p. 62, ¶ 1). Dr. Barnett attended Harvard Medical School, and is currently licensed to practice medicine in the State of California (Id. at pgs. 62-63, ¶ 2). 16 1 determining a fact in issue, and is not based on the kinds of specialized knowledge within the 2 scope of Rule 702. Fed. R. Evid. 701. 3 Plaintiff has not provided any admissible evidence that his spinal infection was caused 4 by Defendants. Plaintiff’s sworn statements do not defeat the motion for summary judgment 5 on this claim because Plaintiff is not an expert who is qualified to testify as to the cause of his 6 spinal infection. The cause of Plaintiff’s spinal infection is not something that is rationally 7 based on Plaintiff’s perceptions, and testimony regarding the cause would need to be based on 8 scientific evidence. 9 Plaintiff has submitted no other evidence regarding the cause the infection. Moreover, there is 10 no medical record or diagnosis from a treating doctor supporting Plaintiff’s conclusion. 11 Conversely, Defendants have submitted evidence that it is highly unlikely that receiving an 12 injection in unsanitary conditions caused the infection. (ECF No. 99-2, p. 65, ¶¶ 8 & 9). Therefore, Plaintiff may not testify as to the cause of the infection. 13 Because Plaintiff has failed to submit any evidence that Defendants caused the 14 infection, and because Defendants have provided evidence that they did not, the Court finds 15 that a fair-minded jury could not reasonably find that Defendants’ deliberate indifference 16 caused Plaintiff’s infection. Accordingly, Defendants should be granted summary judgment on 17 this claim.11 18 d. Plaintiff’s claim that Defendants Garza and Sellers Were Deliberately 19 Indifferent to Plaintiff’s Serious Medical Needs by Ignoring, Failing to 20 Respond, and/or Failing to Accurately Record Plaintiff’s Complaints and 21 Requests for Care 22 In its screening order, the Court found that Plaintiff stated a cognizable claim for 23 deliberate indifference to serious medical needs against defendants Garza and Sellers because 24 Plaintiff stated “he was in severe pain and made repeated statements to Garza and Sellars of his 25 condition, but Garza and Sellars ignored, failed to respond, and/or failed to accurately record 26 27 28 11 There appears to be a dispute of fact regarding whether Plaintiff’s prior IV drug use caused the infection. (ECF No. 108, pgs. 15-16; ECF No. 108-2, p. 2, ¶ 4); (ECF No. 99-2, p. 75, ¶ 42)). Given that Plaintiff has failed to provide any evidence that Defendants were responsible for Plaintiff’s infection, the Court need not delve into this issue. 17 1 his complaints and requests for care. Plaintiff claims this was despite the fact that Plaintiff was 2 no longer able to walk or care for himself, and was involuntarily defecating and urinating on 3 himself.” (ECF No. 36, p. 9). 4 5 6 A. Defendant Sellers The Court finds that there is a genuine dispute of material fact regarding whether defendant Sellers was deliberately indifferent to Plaintiff’s serious medical needs. 7 Defendants have provided evidence, in the form of defendant Sellers’ testimony, that 8 defendant Sellers did not prevent Plaintiff from obtaining medical care that defendant Sellers 9 believed that Plaintiff needed. (ECF No. 99-2, p. 42, ¶ 4). Some of Plaintiff’s evidence 10 11 12 corroborates this statement. (See, e.g., ECF No. 108-2, p. 3, ¶ 8). However, Plaintiff has submitted a substantial amount of evidence that defendant Sellers was in fact deliberately indifferent to Plaintiff’s serious medical needs. 13 Plaintiff submitted evidence that on several occasions defendant Sellers refused to give 14 Plaintiff his pain and heart medication because Plaintiff was unable to stand or walk to get it. 15 (ECF No. 108, p. 22). She would only give Plaintiff food and medication if he crawled to the 16 door. (Id. at 20). 17 Plaintiff has submitted evidence that on several occasions defendant Sellers came to his 18 cell to laugh at his inability to walk, and the fact that he defecated on himself. (ECF No. 108-2, 19 pgs. 2-3 & 9-10, ¶¶ 8, 18). 20 Plaintiff has submitted evidence that in May of 2012, his back pain became 21 “unbearable.” (ECF No. 108, p. 6). He was not provided with special housing, and his pain 22 became so unbearable he had to defecate on himself. (Id.). “Defendant Selliers refused 23 repeatedly to contact medical and accused [Plaintiff] of malingering. She at one time in front 24 of Plaintiff told Defendant Aye that ‘Meador’ was faking. She also continued to refuse to make 25 any medical reports on Plaintiff’[s] condition. He [sic] continued behavior went on for several 26 months.” (Id.). She also “refused repeated requests for emergency treatment.” (ECF No. 108- 27 2, p. 9, ¶ 18). 28 18 1 Plaintiff has submitted evidence that Sellers filled out “Refusal for Treatment” forms, 2 even though Plaintiff did not actually refuse treatment (he was unable to move, stand, or walk). 3 (ECF No. 108-2, p. 5, ¶ 11). 4 Based on the evidence provided by Plaintiff, the Court finds that there is a genuine 5 dispute of material fact regarding whether defendant Sellers was deliberately indifferent to 6 Plaintiff’s serious medical needs. Accordingly, the Court will recommend that Defendants’ 7 summary judgment motion be denied as to Plaintiff’s deliberate indifference claim against 8 defendant Sellers. 9 10 11 12 13 B. Defendant Garza Defendants allege that “Plaintiff admits he does not know who Defendant Garza is or how she was involved in his care.” (ECF No. 99-1, p. 14). While it is not as clear as Defendants portray, the Court finds that defendant Garza should be granted summary judgment on this claim. 14 “The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an 15 affidavit contradicting his prior deposition testimony. This sham affidavit rule prevents a party 16 who has been examined at length on deposition from rais[ing] an issue of fact simply by 17 submitting an affidavit contradicting his own prior testimony, which would greatly diminish the 18 utility of summary judgment as a procedure for screening out sham issues of fact…. But the 19 sham affidavit rule should be applied with caution because it is in tension with the principle 20 that the court is not to make credibility determinations when granting or denying summary 21 judgment. In order to trigger the sham affidavit rule, the district court must make a factual 22 determination that the contradiction is a sham, and the inconsistency between a party's 23 deposition testimony and subsequent affidavit must be clear and unambiguous to justify 24 striking the affidavit.” Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012) (internal 25 citations and quotations omitted) (alteration in original). 26 A declaration may be considered “to be a sham when it contains facts that the affiant 27 previously testified he could not remember.” (Id.). However, “newly-remembered facts, or 28 new facts, accompanied by a reasonable explanation, should not ordinarily lead to the striking 19 1 of a declaration as a sham…. [T]he non-moving party is not precluded from elaborating upon, 2 explaining or clarifying prior testimony elicited by opposing counsel on deposition and minor 3 inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence 4 afford no basis for excluding an opposition affidavit.” (Id. at 1081). 5 During Plaintiff’s deposition, in response to the question, “What does Nurse Garza look 6 like,” Plaintiff replied “I don’t know.” Defendants’ counsel then asked, “Have you ever seen 7 Nurse Garza?” Plaintiff replied, “I don’t know. I’m never – I probably seen her, but I can’t 8 recall. I tried to remember when I seen her name in the reports, but I can’t. My attorney that 9 did the complaint, he’s the one that put it in there and said her name -- or his name was on the 10 paperwork. That’s all I know about it.” (ECF No. 99-2, p. 52). In response to the question 11 “And you don’t know why Nurse Garza is part of this lawsuit?”, Plaintiff replied, “I just know 12 my attorney named that individual in the complaint. And I think I found some of the records, 13 and I sent those to you to show you what everybody did in there….” (Id. at 55-56). 14 Additionally, defendant Garza submitted a declaration, stating that she does not recall 15 Plaintiff, and that she is not aware of any medical records that show any interaction or 16 treatment that she provided to Plaintiff. (ECF No. 99-2, p. 39, ¶ 2). 17 Plaintiff never directly disputed the properly supported assertion that he does not know 18 who defendant Garza is or how she was involved in his care. 19 Defendants argue that, based on Plaintiff’s deposition testimony, Plaintiff does not know who 20 defendant Garza is or how she was involved in his care, Plaintiff never explained or clarified 21 his deposition testimony. Moreover, even though 22 Plaintiff does allege that his medical records prove his contentions against defendant 23 Garza. (ECF No. 108-2, p. 10, ¶ 20). However, Plaintiff does not cite to any specific medical 24 record. Conversely, Defendants have provided evidence that defendant Garza did not in fact 25 provide medical care to Plaintiff. According to the sworn declaration of Dr. Barnett, Dr. 26 Barnett reviewed Plaintiff’s medical records regarding care provided to Plaintiff from 1987 to 27 the present day, and “[t]he medical records do no [sic] reflect medical care provided by 28 defendant[] Garza….” (ECF No. 99-2, p. 64, ¶ 5). 20 1 While not dispositive to the Court’s ruling, the Court notes that Plaintiff’s allegations This supports Plaintiff’s deposition 2 regarding the actions of defendant Garza are sparse. 3 testimony, specifically that Plaintiff cannot recall ever seeing defendant Garza and that he does 4 not know how she was involved in his care. 5 Accordingly, the Court finds that there is a clear and unambiguous inconsistency 6 between Plaintiff’s deposition testimony and his subsequent declaration and verified pleadings, 7 and that the contradiction is a sham. Plaintiff was given the opportunity to explain these 8 inconsistencies, but did not. Additionally, Plaintiff has failed to point to medical records 9 supporting his claim against defendant Garza. Therefore, the Court will disregard the portions 10 11 12 of Plaintiff’s declaration and verified pleadings that refer to defendant Garza.12 As Plaintiff has submitted no other evidence regarding the conduct of defendant Garza, the Court will recommend that defendant Garza be granted summary judgment on this claim. e. Plaintiff’s Claim that Defendants Aye, Moon, Nguyen, Clark, Kim, and Gill 13 Were Deliberately Indifferent to Plaintiff’s Serious Medical Needs 14 15 In its screening order, the Court found that Plaintiff stated a cognizable claim for 16 deliberate indifference to serious medical needs against defendants Aye, Moon, Nguyen, Clark, 17 Kim, and Gill, because, “[a]lthough Plaintiff concedes Defendants provided medical care, his 18 allegations demonstrate that they persistently ignored his complaints of severe pain and the 19 deterioration of his physical condition. Further, Plaintiff alleges that Defendants’ medical care 20 and the failure to provide appropriate tests were medically unacceptable under the 21 circumstances, and this course of action was chosen in conscious disregard of an excessive risk 22 to his health.” (ECF No. 36, p. 10). 23 However, Plaintiff’s evidence does not support a claim of deliberate indifference 24 against defendant Aye, Moon, Nguyen, Clark, Kim, or Gill. Accordingly, the Court will 25 26 27 28 12 Alternatively, because Plaintiff never directly disputed Defendants’ properly supported assertion that Plaintiff does not know who defendant Garza is or how she was involved in his care, the Court finds this fact undisputed. Fed. R. Civ. P. 56(e)(2); Local Rule 260(b). 21 1 recommend that defendants Aye, Moon, Nguyen, Clark, Kim, and Gill be granted summary 2 judgment on this claim. 3 4 A. Factual Allegations It appears to be undisputed that Plaintiff’s lower back pain began in 1993. Motion for 5 Summary Judgment Separate Statement of Undisputed Fact (“MSJ SSUF”) 9. In 2004, 6 Plaintiff’s MRI showed left neural foraminal stenosis at L5-S1. MSJ SSUF 11. Lumbar x-rays 7 taken in 2008 showed mild grade I spondylolisthesis at L5-S1. 8 Spondylolisthesis is the term used to describe the anatomic abnormality where one vertebral 9 body abnormally placed or “slipped” in relation to the one below. MSJ SSUF 13. This 10 condition is commonly found at the L5-S1 level and progression of this condition with 11 impairment is rare. MSJ SSUF 14. MSJ SSUF 12. 12 Plaintiff alleges that he began showing symptoms of osteomyelitis/discitis in May or 13 June of 2012, “including severe and debilitating pain that impeded him from standing and 14 walking.” (ECF No. 108, p. 5). Plaintiff alleges that for more than eight months he was not 15 provided the examinations, monitoring, and testing required to identify and treat the disease. 16 (Id.). It was not until he was sent to an outside hospital that the disease was identified and 17 treated. (Id.). 18 It is undisputed that on February 23, 2013, Plaintiff was taken to San Joaquin 19 Community Hospital (“SJCH”), and while there was diagnosed with osteomyelitis/discitis 20 (although there seems to be a dispute about why Plaintiff was sent to SJCH). (ECF No. 99-2, p. 21 75; ECF No. 108, p. 10). It is undisputed that Plaintiff was placed on medication to deal with 22 the spinal infection. (ECF No. 99-2, p. 75; ECF No. 108, p. 11). It is undisputed that between 23 February and April of 2013, Plaintiff was treated for the spinal infection with antibiotics. (ECF 24 No. 108, p. 11; MSJ SSUF 106; Supplemental Motion for Summary Judgment Separate 25 Statement of Undisputed Facts 13-14). 26 It is undisputed that in April of 2013, Plaintiff’s antibiotics were discontinued by Dr. 27 Smith (ECF No. 108, p. 11; ECF No. 131 p. 4; ECF No. 99-2, p. 57; Supplemental Motion for 28 Summary Judgment Separate Statement of Undisputed Facts 13-14). Plaintiff alleges that Dr. 22 1 Smith noted an MRI was needed to determine if there was any residual osteomyelitis/discitis, 2 but did not perform or direct others to perform an MRI or CT Scan. (ECF No. 108, p. 11; ECF 3 No. 131 p. 4). 4 Plaintiff alleges that the severe pain returned, and in or around May or June of 2013 5 Plaintiff made a number of complaints of severe back pain that prevented him from moving or 6 walking. (ECF No. 108, p. 11). He was not examined by medical staff for more than three 7 weeks. (Id.). The pain was so severe that Plaintiff had to be taken back to SJCH. (Id. at p. 12). 8 An MRI revealed total obliteration of the disk space at the T12-L1 vertebra, which had 9 decreased Plaintiff’s height, and diffuse marrow edema, which confirmed residual 10 osteomyelitis/discitis. (Id.). Plaintiff was again advised to take antibiotics. (Id.). He was 11 further advised that due to prior lack of treatment, it would take longer for his condition to 12 improve. (Id.). 13 As he did in his complaint, Plaintiff alleges that his spinal infection was not diagnosed 14 and treated properly by defendant Aye, Moon, Nguyen, Clark, Kim, or Gill, and that these 15 defendants ignored his complaints. To support his claim, he provides evidence in the form of 16 his testimony, as well as medical records. 17 18 B. Summary of Legal Standard “Deliberate indifference is a high legal standard.” Toguchi, 391 F.3d at 1060. 19 Deliberate indifference is a very high standard. Civil recklessness (failure “to act in the face of 20 an unjustifiably high risk of harm that is either known or so obvious that it should be known”) 21 is insufficient to establish an Eighth Amendment violation. Farmer, 511 U.S. at 836-37 & n. 5 22 (1994) (citations omitted). To prevail, Plaintiff “must show that the course of treatment the 23 doctors chose was medically unacceptable under the circumstances… and… that they chose 24 this course in conscious disregard of an excessive risk to plaintiff’s health.” Jackson, 90 F.3d 25 at 332 (internal citations omitted). 26 C. Analysis 27 While the timing of the deterioration of Plaintiff’s condition is disputed, it appears 28 undisputed that Plaintiff had serious medical needs. Additionally, Plaintiff has submitted 23 1 evidence that his serious medical needs were not diagnosed and treated appropriately. (See, 2 e.g., ECF No. 108 pgs. 6-8; ECF No 136, p. 5). Taking Plaintiff’s evidence as true, there is a 3 genuine dispute of material fact as to whether defendants Aye, Moon, Nguyen, Clark, Kim, and 4 Gill failed to properly identify the cause of Plaintiff’s back pain, and failed to provide the 5 treatment that Plaintiff needed. 6 However, based on the evidence submitted, the Court finds that there is no genuine 7 dispute of fact as to whether defendant Aye, Moon, Nguyen, Clark, Kim, or Gill consciously 8 disregarded an excessive risk to Plaintiff’s health (before or after February of 2013). To 9 prevail, Plaintiff needed to put forth evidence showing not only that his serious medical needs 10 were not treated properly, but also that in choosing their course of action, defendant Aye, 11 Moon, Nguyen, Clark, Kim, or Gill acted with a conscious disregard of an excessive risk to 12 Plaintiff’s health. 13 Taking Plaintiff’s evidence as true, Plaintiff may have shown that that defendants Aye, 14 Moon, Nguyen, Clark, Kim, and Gill were negligent. He may even have shown that they failed 15 to act in the face of an unjustifiably high risk of harm that is so obvious that it should have been 16 known. However, Plaintiff has provided no evidence that shows (or allows the Court to draw a 17 reasonable inference) that defendant Aye, Moon, Nguyen, Clark, Kim, or Gill consciously 18 disregarded an excessive risk to Plaintiff’s health. 19 It is undisputed that Plaintiff was receiving medical care for his back pain. (ECF No. 20 108, pgs. 29-30; MSJ SSUF 17-19, 25-27, 29-37, 53-55, 62-65, 68-71, 80-85, 88-95, 97-98, & 21 101-102). Based on Plaintiff’s evidence, it appears that Plaintiff’s condition was not treated 22 appropriately because defendants Aye, Moon, Nguyen, Clark, Kim, and Gill did not believe 23 that Plaintiff’s condition was as serious as it was, not because they consciously disregarded an 24 excessive risk to Plaintiff’s health. There is no evidence that defendant Aye, Moon, Nguyen, 25 Clark, Kim, or Gill subjectively knew of the seriousness of Plaintiff’s condition. 26 For example, Plaintiff submitted evidence that “[D]efendants” determined that the 27 degree of pain claimed by Plaintiff exceeded their findings, and told Plaintiff that he had a 28 crushed disk in his back, and that the pain was muscular in origin. (ECF No. 108, p. 7). To 24 1 treat this condition, Dr. Moon gave Plaintiff a pamphlet on back exercise and prescribed 2 additional pain, anti-inflammatory, and muscle relaxant medications. 3 occasion, “Defendants” reviewed an old x-ray, which was not sufficiently sensitive to detect 4 the osteomyelitis/discitis.13 (Id. at 8). Accordingly, Plaintiff was not provided treatment for his 5 infection. (Id.). Plaintiff has alleged that, on another occasion, when he was in the hospital and 6 could not walk, both Dr. Kim and Dr. Moon stated in their reports that Plaintiff was faking. 7 (Id. at p. 17). They sent Plaintiff back to the yard without treating Plaintiff’s infection. (Id.). 8 Plaintiff has also submitted evidence that Dr. Gill examined Plaintiff several times, that 9 Plaintiff could not stand or walk when he was examined by Dr. Gill, and that Dr. Gill told 10 (Id.). On another Plaintiff that Plaintiff was exaggerating his symptoms. (Id. at 24). 11 None of these examples, or any of the evidence provided by Plaintiff, shows (or allows 12 the Court to draw a reasonable inference) that any of the defendants consciously disregarded 13 Plaintiff’s serious medical needs. Instead, it appears that they simply did not believe Plaintiff’s 14 medical needs were as serious as they were. 15 [defendants] knew of a substantial risk from the very fact that it was obvious,” Farmer, 511 16 U.S. at 826, Plaintiff’s condition was not obvious. Neither back pain nor a spinal infection is 17 something that defendant Aye, Moon, Nguyen, Clark, Kim, or Gill could simply observe. 18 Additionally, it is undisputed that, “[b]ecause the onset of symptoms from diskitis and 19 osteomyelitis can be insidious, it is not unusual for diagnosis to be delayed for some weeks or 20 months after initial presentation of symptoms.” SSUF 127. While “a factfinder may conclude that 21 Moreover, even assuming that Plaintiff’s condition was as serious as he alleges (and 22 during the time periods he alleges it was serious), it may not even be defendant Aye, Moon, 23 Nguyen, Clark, Kim, or Gill’s fault that they did not believe Plaintiff’s medical needs were as 24 serious as they were. Plaintiff himself has submitted evidence that defendants Aye, Moon, 25 Nguyen, Clark, Kim, and Gill were not always informed about Plaintiff’s need for health care, 26 or the seriousness of his condition. For example, Plaintiff submitted evidence that “Defendant 27 28 13 The Court notes that Plaintiff is not qualified to testify regarding the sensitivity of an x-ray, and the Court is not treating this as evidence. 25 1 Selliers refused repeatedly to contact medical and accused [Plaintiff] of malingering. She at 2 one time in front of Plaintiff told Defendant Aye that ‘Meador’ was faking. She also continued 3 to refuse to make any medical reports on Plaintiff’[s] condition. He [sic] continued behavior 4 went on for several months.” (ECF No. 108, p. 6). As another example, Plaintiff submitted 5 evidence that, while he repeatedly requested an MRI and surgery, “[m]any of the complaints 6 were not recorded by medical staff. Additionally, staff did not accurately and fully record facts 7 affecting [Plaintiff’s] medical care. Nor did staff report all of the details concerning his 8 medical problems, including that on several occations [sic] he was found in his cell unable to 9 move.” (Id. at 8-9). 10 Plaintiff does submit evidence that defendant Aye refused to do an MRI, stating that an 11 MRI costs too much, and that the state is broke. (ECF No. 108, p. 16). If defendant Aye 12 believed that an MRI was medically necessary, but refused to provide it, that would be 13 evidence of deliberate indifference. However, there is no evidence that defendant Aye believed 14 that Plaintiff needed an MRI. 15 Plaintiff also submitted evidence that, contrary to Defendants’ assertions, he never 16 refused medical treatment. (Id. at 17). If defendant Aye, Moon, Nguyen, Clark, Kim, or Gill 17 lied about Plaintiff refusing medical care, that would be some evidence of deliberate 18 indifference. 19 According to Plaintiff, he did not go to several medical appointments, because he could not 20 stand or walk. (ECF No. 108-2, p. 5, ¶ 11). While, according to Plaintiff, it was defendant 21 Sellers who filled out “Refusal for Treatment” forms, Plaintiff has not submitted evidence that 22 defendant Aye, Moon, Nguyen, Clark, Kim, or Gill knew that defendant Sellers filled out 23 Refusal for Treatment forms even though Plaintiff did not refuse treatment. However, Plaintiff directly contradicted this statement in his declaration. 24 Plaintiff also submitted evidence that he saw defendant Nguyen on May 8, 2012, and 25 that defendant Nguyen “refused to do anything.” (ECF No. 108, pgs. 24-25). If defendant 26 Nguyen flat our refused to provide care to Plaintiff, that would be evidence of deliberate 27 indifference. However, once again, Plaintiff contradicts himself. Right after Plaintiff accuses 28 defendant Nguyen of doing nothing, Plaintiff states that he was sent to Bakersfield Memorial 26 1 Hospital. (Id. at 25). And, based on Defendants undisputed assertions of fact, it was defendant 2 Nguyen who arranged for Plaintiff to be sent to Bakersfield Memorial Hospital. (MSJ SSUF 3 17-20). Accordingly, it is undisputed that defendant Nguyen did not “refuse[] to do anything.” 4 Finally, Plaintiff alleges that defendant Kim informed medical staff to ignore Plaintiff’s 5 complaints, and that medical records show that defendant Kim knew of Plaintiff’s possible 6 infection, but that defendant Kim did nothing. (ECF No. 108-2, p. 8, ¶ 17). If true, these 7 allegations would be evidence of deliberate indifference. However, Plaintiff never alleged, let 8 alone submitted evidence, that any of his complaints were actually ignored because of what 9 defendant Kim said. In fact, according to Plaintiff, his complaints were ignored before 10 defendant Kim got involved. As to Plaintiff’s allegation that the medical records show that 11 defendant Kim knew of Plaintiff’s possible infection, Plaintiff did not cite to any medical 12 record to back up his assertion. 13 Accordingly, because the Court finds that a fair-minded jury could not reasonably find 14 that defendant Aye, Moon, Nguyen, Clark, Kim, or Gill consciously disregarded an excessive 15 risk to plaintiff’s health, the Court will recommend that defendants Aye, Moon, Nguyen, Clark, 16 Kim, and Gill be granted summary judgment on this claim.14 17 VII. CONCLUSION AND RECOMMENDATIONS 18 Because Plaintiff failed to submit any evidence that Defendants caused his spinal 19 infection, Defendants should be granted summary judgment on Plaintiff’s claim that 20 21 22 23 24 25 26 27 28 14 The Court notes that Plaintiff alleges that he was not given the appropriate medical devices to assist with mobility, and because of this he fell down on several occasions. (ECF No. 108, p. 7). He also alleges that “defendants” failed to provide appropriate assistance to Plaintiff in his cell to prevent falling. (Id. at 29). Plaintiff also alleges that the “CDCR” refused to provide Plaintiff with a custom medical corset, which staff at SJCH recommended. (Id. at 12). While the CDCR is not a defendant in this case, in his second opposition to the supplemental motion for summary judgment Plaintiff alleges that it was “defendants” who refused to provide the corset. (ECF No. 136, p. 4). It does not appear that a claim for deliberate indifference to serious medical needs based on these allegations survived screening. (See ECF No. 36, pgs. 9-10). Even if it did, Plaintiff himself states that “Defendants” ordered that Plaintiff have a walker. (ECF No. 108, p. 7). For some reason it was never provided (id.), but Plaintiff submitted no evidence as to why it was not provided or that any of the defendants in this case were responsible for failing to provide it. Plaintiff also failed to provide any evidence to show that the walker was not a sufficient medical device to assist with mobility. As to Plaintiff’s claim that he was not provided with a custom medical corset, Plaintiff has failed to provide any evidence that a defendant in this case was responsible for this deprivation. 27 1 Defendants’ deliberate indifference caused Plaintiff’s infection. Because Plaintiff admitted that 2 he does not know who defendant Garza is or how she was involved in Plaintiff’s treatment, and 3 because this fact is undisputed, defendant Garza should be granted summary judgment on the 4 claim that she was deliberately indifferent to Plaintiff’s serious medical needs. Finally, because 5 Plaintiff failed to submit any evidence that defendant Aye, Moon, Nguyen, Clark, Kim, or Gill 6 consciously disregarded an excessive risk to Plaintiff’s health, summary judgment should be 7 granted to these defendants on Plaintiff’s claim that they were deliberately indifferent to 8 Plaintiff’s serious medical needs. 9 However, the Court finds that there is a genuine dispute of material fact regarding 10 whether defendant Sellers was deliberately indifferent to Plaintiff’s serious medical needs. 11 Therefore, summary judgment should be denied as to defendant Sellers. 12 Accordingly, IT IS HEREBY RECOMMENDED that: 13 1. Defendants’ motions for summary judgment (ECF Nos. 99 & 127), be GRANTED 14 in part and DENIED in part; 15 2. To the extent that a claim for deliberate indifference to Plaintiff’s serious medical 16 needs based on Defendants’ failure to provide the appropriate assistance to Plaintiff 17 in his cell to prevent falling survived screening, that Defendants be granted 18 summary judgment on this claim; 19 3. To the extent that a claim for deliberate indifference to Plaintiff’s serious medical 20 needs based on Defendants’ failure to provide Plaintiff with a custom medical corset 21 survived screening, that Defendants be granted summary judgment on this claim 22 4. Defendants be granted summary judgment on Plaintiff’s claim that Defendants’ 23 deliberate indifference caused Plaintiff’s spinal infection; 24 5. Defendants Aye, Moon, Nguyen, Clark, Kim, Gill, and Garza be granted summary 25 judgment on the claim that they were deliberately indifferent to Plaintiff’s serious 26 medical needs; and 27 28 6. Defendant Sellers be denied summary judgment on Plaintiff’s claim that defendant Sellers was deliberately indifferent to Plaintiff’s serious medical needs. 28 1 These findings and recommendations are submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within twenty- 3 one (21) days after being served with these findings and recommendations, any party may file 4 written objections with the court. 5 Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be 6 served and filed within seven (7) days after service of the objections. The parties are advised 7 that failure to file objections within the specified time may result in the waiver of rights on 8 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 9 923 F.2d 1391, 1394 (9th Cir. 1991)). 10 11 Such a document should be captioned "Objections to Additionally, IT IS ORDERED that Plaintiff’s request to file a surreply is GRANTED nunc pro tunc, and Defendants’ Motion to strike is DENIED. 12 13 14 IT IS SO ORDERED. Dated: August 29, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29