(PC) Samad v. Hubbard, et al, No. 2:2009cv03145 - Document 52 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 9/7/11 RECOMMENDING that Defendant Medina's motion for summary judgment 37 be granted; Plaintiff's supplemental complaint 22 be dismissed; and this action be closed. Referred to Judge John A. Mendez; Objections due within 21 days after being served with these findings and recommendations. (Becknal, R)
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(PC) Samad v. Hubbard, et al Doc. 52 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ALAMIN SAMAD, 11 12 13 14 15 16 Plaintiff, No. CIV S-09-3145 JAM DAD P vs. SUSAN L. HUBBARD, et al., Defendants. FINDINGS AND RECOMMENDATIONS / Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking 17 relief under 42 U.S.C. § 1983. This matter is before the court on a motion for summary 18 judgment brought on behalf of defendant Medina pursuant to Rule 56 of the Federal Rules of 19 Civil Procedure. Plaintiff has filed an opposition to the motion. Defendant has filed a reply. 20 21 BACKGROUND Plaintiff is proceeding on his second amended complaint against Physician’s 22 Assistant Medina. Therein, plaintiff alleges as follows. From 2008 through 2010, defendant 23 Medina failed to provide plaintiff with adequate medical care for his back and ankle conditions. 24 Specifically, defendant Medina discontinued plaintiff’s walking cane in June 2008, did nothing 25 to help plaintiff get a “boot brace” after he subsequently injured his ankle, prescribed plaintiff 26 him physical therapy knowing that it previously caused his back injury to worsen, discontinued 1 Dockets.Justia.com 1 plaintiff’s walking cane, waist-chain, and lower-tier chrono in October 2009, and refused to 2 prescribe plaintiff adequate pain medication. Plaintiff claims that Medina has been deliberately 3 indifferent to his serious medical needs and has retaliated against him. (Sec. Am. Compl. at 1, 5- 4 7.) 5 6 SUMMARY JUDGMENT STANDARDS UNDER RULE 56 Summary judgment is appropriate when it is demonstrated that there exists “no 7 genuine issue as to any material fact and that the moving party is entitled to a judgment as a 8 matter of law.” Fed. R. Civ. P. 56(c). 9 10 11 Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “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. 12 13 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). “[W]here the 14 nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary 15 judgment motion may properly be made in reliance solely on the ‘pleadings, depositions, answers 16 to interrogatories, and admissions on file.’” Id. Indeed, summary judgment should be entered, 17 after adequate time for discovery and upon motion, against a party who fails to make a showing 18 sufficient to establish the existence of an element essential to that party’s case, and on which that 19 party will bear the burden of proof at trial. See id. at 322. “[A] complete failure of proof 20 concerning an essential element of the nonmoving party’s case necessarily renders all other facts 21 immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as 22 whatever is before the district court demonstrates that the standard for entry of summary 23 judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323. 24 If the moving party meets its initial responsibility, the burden then shifts to the 25 opposing party to establish that a genuine issue as to any material fact actually does exist. See 26 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 2 1 establish the existence of this factual dispute, the opposing party may not rely upon the 2 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 3 form of affidavits, and/or admissible discovery material, in support of its contention that the 4 dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party 5 must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome 6 of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 7 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 8 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could 9 return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 10 11 1436 (9th Cir. 1987). In the endeavor to establish the existence of a factual dispute, the opposing party 12 need not establish a material issue of fact conclusively in its favor. It is sufficient that “the 13 claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing 14 versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary 15 judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a 16 genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory 17 committee’s note on 1963 amendments). 18 In resolving the summary judgment motion, the court examines the pleadings, 19 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 20 any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 21 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the 22 court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. 23 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 24 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 25 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 26 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply 3 1 show that there is some metaphysical doubt as to the material facts . . . . Where the record taken 2 as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 3 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 4 5 OTHER APPLICABLE LEGAL STANDARDS I. Civil Rights Act Pursuant to 42 U.S.C. § 1983 6 The Civil Rights Act under which this action was filed provides as follows: 7 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 8 9 10 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 11 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 12 Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 13 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 14 meaning of § 1983, if he does an affirmative act, participates in another’s affirmative acts or 15 omits to perform an act which he is legally required to do that causes the deprivation of which 16 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 17 Moreover, supervisory personnel are generally not liable under § 1983 for the 18 actions of their employees under a theory of respondeat superior and, therefore, when a named 19 defendant holds a supervisorial position, the causal link between him and the claimed 20 constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 21 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory 22 allegations concerning the involvement of official personnel in civil rights violations are not 23 sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 24 II. The Eighth Amendment and Inadequate Medical Care 25 26 The unnecessary and wanton infliction of pain constitutes cruel and unusual punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); 4 1 Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). 2 In order to prevail on a claim of cruel and unusual punishment, a prisoner must allege and prove 3 that objectively he suffered a sufficiently serious deprivation and that subjectively prison officials 4 acted with deliberate indifference in allowing or causing the deprivation to occur. Wilson v. 5 Seiter, 501 U.S. 294, 298-99 (1991). 6 Where a prisoner’s Eighth Amendment claims arise in the context of medical 7 care, the prisoner must allege and prove “acts or omissions sufficiently harmful to evidence 8 deliberate indifference to serious medical needs.” Estelle, 429 U.S. at 106. An Eighth 9 Amendment medical claim has two elements: “the seriousness of the prisoner’s medical need 10 and the nature of the defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 11 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 12 (9th Cir. 1997) (en banc). 13 A medical need is serious “if the failure to treat the prisoner’s condition could 14 result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” 15 McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical 16 need include “the presence of a medical condition that significantly affects an individual’s daily 17 activities.” Id. at 1059-60. By establishing the existence of a serious medical need, a prisoner 18 satisfies the objective requirement for proving an Eighth Amendment violation. Farmer v. 19 Brennan, 511 U.S. 825, 834 (1994). 20 If a prisoner establishes the existence of a serious medical need, he must then 21 show that prison officials responded to the serious medical need with deliberate indifference. 22 Farmer, 511 U.S. at 834. In general, deliberate indifference may be shown when prison officials 23 deny, delay, or intentionally interfere with medical treatment, or may be shown by the way in 24 which prison officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 25 (9th Cir. 1988). Before it can be said that a prisoner’s civil rights have been abridged with regard 26 to medical care, however, “the indifference to his medical needs must be substantial. Mere 5 1 ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” 2 Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 3 105-06). See also Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere 4 negligence in diagnosing or treating a medical condition, without more, does not violate a 5 prisoner’s Eighth Amendment rights.”); McGuckin, 974 F.2d at 1059 (same). Deliberate 6 indifference is “a state of mind more blameworthy than negligence” and “requires ‘more than 7 ordinary lack of due care for the prisoner’s interests or safety.’” Farmer, 511 U.S. at 835 8 (quoting Whitley, 475 U.S. at 319). 9 Delays in providing medical care may manifest deliberate indifference. Estelle, 10 429 U.S. at 104-05. To establish a claim of deliberate indifference arising from delay in 11 providing care, a plaintiff must show that the delay was harmful. See Berry v. Bunnell, 39 F.3d 12 1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at 1059; Wood v. Housewright, 900 F.2d 1332, 13 1335 (9th Cir. 1990); Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989); Shapley v. 14 Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). In this regard, “[a] 15 prisoner need not show his harm was substantial; however, such would provide additional 16 support for the inmate’s claim that the defendant was deliberately indifferent to his needs.” Jett 17 v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). See also McGuckin, 974 F.2d at 1060. 18 Finally, mere differences of opinion between a prisoner and prison medical staff 19 or between medical professionals as to the proper course of treatment for a medical condition do 20 not give rise to a § 1983 claim. Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 21 332 (9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662 22 F.2d 1337, 1344 (9th Cir. 1981). 23 III. The First Amendment and Retaliation 24 Under the First Amendment, prisoners have a constitutional right to file prison 25 grievances and pursue civil rights litigation in the courts. See Rhodes v. Robinson, 408 F.3d 26 559, 567 (9th Cir. 2005). Prison officials may not retaliate against prisoners for doing so. See id. 6 1 at 568. In this regard, the Ninth Circuit has explained: 2 Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal. 3 4 5 6 Id. at 567-68. 7 8 DEFENDANT MEDINA’S MOTION FOR SUMMARY JUDGMENT I. Defendant Medina’s Statement of Undisputed Facts and Evidence 9 Defendant Medina’s statement of undisputed facts is supported by citations to his 10 own declaration signed under penalty of perjury and by citations to plaintiff’s medical records. It 11 is also supported by references to the transcript of plaintiff’s deposition. 12 The evidence submitted by defendant Medina establishes the following. At all 13 relevant times, defendant Medina was a licensed physician’s assistant at High Desert State 14 Prison. Defendant Medina, along with several other medical providers, treated plaintiff for a 15 variety of medical conditions. (Def.’s SUDF 1-4, Medina Decl. & Ex. A.) 16 By way of background, in 2005, plaintiff had a laminectomy. A laminectomy is a 17 spine operation performed to remove a portion of the vertebral bone to alleviate pain. On 18 October 23, 2007, a medical doctor submitted an accommodation chrono so that plaintiff could 19 use a cane, mobility vest, and waist chain. If a medical doctor determines that an inmate needs 20 an accommodation for a medical condition, the doctor may submit an accommodation chrono to 21 allow the inmate to obtain specific medical equipment or special living conditions. The 22 institution’s Health Care Manager (“HCM”) or Chief Medical Officer (“CMO”) must approve 23 any accommodation chrono. On October 25, 2007, plaintiff’s accommodation chrono was 24 approved. The chrono also notes that plaintiff had a DNM designation. A DNM designation 25 indicates that an inmate is mobility impaired due to an orthopedic, neurologic, or medical 26 ///// 7 1 condition that substantially limits his ability to ambulate over 100 yards with or without assistive 2 devices. (Def.’s SUDF 5-12, Medina Decl. & Ex. A.) 3 On March 3, 2008, prison staff reported seeing plaintiff engaged in physical 4 activity “not congruent with being mobility impaired.” Specifically prison staff observed 5 plaintiff shadowboxing and punching a big bag on the yard. (Def.’s SUDF 13-14, Medina Decl. 6 & Ex. A.) 7 On April 30, 2008, plaintiff went to the orthopedic clinic complaining of lower- 8 back pain and saw Dr. Arraiz, a physiatrist, for treatment.1 Dr. Arraiz noted that plaintiff was 9 currently taking Motrin and recommended physical therapy to determine if the physical therapists 10 could work on stabilizing plaintiff’s back. Dr. Arraiz also recommended an MRI of plaintiff’s 11 spine and referred him to receive the MRI that same day. (Def.’s SUDF 15-18 & 47-48, Medina 12 Decl. & Ex. A.) 13 From April 2008 through July 2008, Plaintiff reported that he had chronic lower 14 back pain and was prescribed aspirin and naproxen for pain. Naproxen is a nonsteroidal anti- 15 inflammatory drug used to treat pain and inflammation. Nonsteroidal anti-inflammatories such 16 as ibuprofen and naproxen are commonly prescribed for patients with chronic back pain. In 17 addition, on June 4, 2008, and June 16, 2008, plaintiff received physical therapy for his back. 18 (Def.’s SUDF 15-19, Medina Decl. & Ex. A.) 19 On June 18, 2008, Officer Lasky observed plaintiff again utilizing the heavy bag 20 on D yard. Specifically, Officer Lasky observed plaintiff vigorously working out on the heavy 21 bag and noticed plaintiff’s cane laying on the ground approximately eight feet away from the 22 location of the bag. According to the officer, plaintiff’s hand, food, and body movements were 23 coordinated. Officer Lasky watched plaintiff punch the bag for approximately twenty minutes. 24 1 25 26 Physiatry, also called physical medicine and rehabilitation, is a branch of medicine that specializes in diagnosis, treatment, and management of various neurological and musculoskeletal injuries. Physiatrists specialize in a wide variety of conservative (non-surgical) treatments for sports injuries and spine-related problems. 8 1 Several other correctional staff members also observed plaintiff using the bag. (Def.’s SUDF 20- 2 28, Medina Decl. & Ex. A.) 3 Turning to defendant Medina’s involvement in plaintiff’s medical care, on June 4 19, 2008, defendant Medina saw plaintiff for his lower back pain. Defendant Medina noted that 5 plaintiff was mobility-impaired and had a medically-provided cane for assistance. He also noted 6 that, on June 18, 2008, Officer Lasky, Officer Korton, and Nurse Mitchell observed plaintiff 7 vigorously punching the yard bag, moving around, and in a fighting stance without any apparent 8 impaired movement. Defendant Medina examined plaintiff and determined that he had full range 9 of motion. Based on staff observations and defendant Medina’s examination of plaintiff, 10 defendant Medina discontinued plaintiff’s cane use and referred him to physical therapy for 11 evaluation and treatment. Defendant Medina allowed plaintiff to retain his mobility-impaired 12 vest, which is provided to inmates who have medical conditions that make it difficult to ambulate 13 over long distances. (Def.’s SUDF 29-35, Medina Decl. & Ex. A.) 14 On June 30, 2008, plaintiff participated in physical therapy. During that session, 15 plaintiff ambulated approximately thirty feet without an assistive device. Plaintiff admitted that 16 he had not fallen or had an incident since the beginning of his physical therapy sessions, but he 17 expressed that he would like a cane in case his lower back gave out. Plaintiff tolerated physical 18 therapy well and was making progress at the time. On July 1, 2008, the physical therapist 19 determined that plaintiff did not need a cane for ambulation and that he would continue to work 20 with plaintiff on strengthening his back. Plaintiff again participated in physical therapy on June 21 30, 2008, July 1, 2008, and July 16, 2008. (Def.’s SUDF 36-42, Medina Decl. & Ex. A.) 22 On August 27, 2008, plaintiff underwent an MRI of his lower spine. From 23 October 1, 2008, through November 3, 2008, defendant Medina prescribed plaintiff 24 acetaminophen with codeine to take twice a day for any pain associated with his back. 25 Acetaminophen with codeine is a narcotic pain reliever. (Def.’s SUDF 43-45, Medina Decl. & 26 Ex. A.) 9 1 On October 8, 2008, plaintiff saw Dr. Arraiz again. Dr. Arraiz recommended that 2 plaintiff receive a selective steroid nerve block for his back pain. A selective nerve root block is 3 a procedure that anesthetizes an individual nerve root, either within the neck (cervical) or in the 4 back (thoracic or lumbar), thought to be responsible for the patient’s pain. Based on Dr. Arraiz’s 5 recommendation, nurse French submitted a request for plaintiff to receive the selective nerve root 6 block. (Def.’s SUDF 46, 49-52, Medina Decl. & Ex. A.) 7 On October 9, 2008, plaintiff claimed that he fell and injured his right ankle. The 8 following day, defendant Medina prescribed plaintiff a 180-day supply of naproxen to take for 9 pain twice a day. Defendant Medina authorized plaintiff to keep the naproxen on his person. On 10 October 13, 2008, plaintiff returned to the medical clinic and reported that he fell and felt a crack 11 in his ankle. Medical personnel prescribed plaintiff ibuprofen to take three times a day for 100 12 days and authorized him to keep it on his person. Medical staff also ordered an x-ray of 13 plaintiff’s ankle and submitted a chrono request for crutches. On October 14, 2008, plaintiff’s 14 ankle was x-rayed and no fracture was shown. On November 5, 2008, plaintiff’s accommodation 15 chrono was approved. (Def.’s SUDF 47-62, Medina Decl. & Ex. A.) 16 On October 18, 2008, medical personnel saw plaintiff in the prison medical clinic. 17 On the same evening, plaintiff was transported to Banner Lassen Medical Center for an 18 ultrasound of his left leg. Venous ultrasound imaging, or sonography, is a diagnostic test used to 19 check the circulation in the large veins of the legs. Such an exam would show any blockage in 20 the veins by a blood clot or thrombus formation. Venous thrombosis, sometimes called phlebitis, 21 is a blood clot in a deep vein resulting in partial or complete blockage of blood flow in that vein. 22 Based on that ultrasound, the treating physician found that there was no evidence of deep venous 23 thrombosis in plaintiff’s left leg. (Def.’s SUDF 63-68, Medina Decl. & Ex. A.) 24 As of October 19, 2008, plaintiff was receiving Tylenol with codeine and was to 25 use it for three more days and then take ibuprofen three times a day for the next thirty days. 26 Plaintiff was also to have a follow-up appointment within three to five days. On October 21, 10 1 2008, plaintiff went to the prison medical clinic complaining of ankle pain. A nurse reviewed his 2 x-rays and opined that plaintiff had in fact fractured his ankle. She ordered a splint for plaintiff. 3 Defendant Medina also treated plaintiff on the same day. Based on information obtained from 4 the nurse and based on his examination, defendant Medina submitted a request for plaintiff to see 5 an orthopedic specialist. Defendant Medina also prescribed Tylenol with codeine for plaintiff to 6 be taken twice a day for fourteen days. (Def.’s SUDF 69-76, Medina Decl. & Ex. A.) 7 On October 24, 2008, plaintiff saw defendant Medina as part of the inmate 8 appeals process, and they discussed plaintiff’s claim that he was not receiving adequate medical 9 care at the prison. Defendant Medina reminded plaintiff that he recently saw orthopedics 10 regarding his back and reviewed plaintiff’s MRI results with him. Defendant Medina then noted 11 that plaintiff had a referral to see an orthopedic surgeon for his suspected ankle fracture. Plaintiff 12 indicated that he understood and agreed to the treatment plan. Defendant Medina told plaintiff to 13 alert staff if his symptoms worsened or if they failed to improve. (Def.’s SUDF 77-81, Medina 14 Decl. & Ex. A.) 15 On October 28, 2008, plaintiff saw an orthopedic surgeon for evaluation of his 16 ankle. At that time the surgeon diagnosed plaintiff as suffering with an ankle sprain and 17 recommended that plaintiff wear a boot brace for three weeks as needed. On the following day, 18 medical personnel at the prison ordered a boot brace for plaintiff and ordered a follow-up 19 appointment for him. Nurse French also submitted an accommodation chrono for plaintiff to 20 have a boot brace for one month. (Def.’s SUDF 82-87, Medina Decl. & Ex. A.) 21 On November 4, 2008, plaintiff saw defendant Medina again regarding his 22 mobility concerns. At the time of this appointment, plaintiff was in a wheelchair and was 23 satisfied with his medical treatment. On November 5, 2008, plaintiff was prescribed an UNNA 24 boot. An UNNA boot is a special gauze bandage that can be used to support sprains and strains 25 of the foot, ankle, and lower leg. Plaintiff did not need a hard boot brace while he was using the 26 wheelchair because he was not placing weight on his foot or ankle. On November 17, 2008, 11 1 plaintiff’s authorization for a wheelchair was discontinued and he received a walking cane for 2 one week. On November 18, 2008, medical personnel applied an ace wrap to plaintiff’s ankle. 3 (Def.’s SUDF 88-95, Medina Decl. & Ex. A.) 4 On December 2, 2008, Dr. Nepomuceno removed plaintiff from the DNM 5 program. An inmate taken off DNM typically does not need an assistive device to ambulate. On 6 December 4, 2008, plaintiff saw Dr. Arraiz again and received a selective nerve root block on his 7 lower back. On December 17, 2008, and April 13, 2009, plaintiff received refills for his aspirin 8 and ibuprofen. (Def.’s SUDF 96-99, Medina Decl. & Ex. A.) 9 On July 2, 2009, defendant Medina submitted a request for plaintiff to receive 10 physical therapy and for plaintiff to receive a TENS unit for his lower back. TENS stands for 11 Transcutaneous Electrical Nerve Stimulation, which is used predominately for nerve related pain 12 conditions. It is a non-invasive, safe nerve stimulation intended to reduce pain, both acute and 13 chronic. (Def.’s SUDF 100-102, Medina Decl. & Ex. A.) 14 On July 3, 2009, plaintiff saw defendant Medina again and complained he was 15 experiencing increased pain in his back and that his ankle swelled in the evenings. Plaintiff 16 agreed to try TENS and to alert staff if his symptoms became worse or failed to improve. On 17 July 5, 2009, defendant Medina signed an accommodation chrono for plaintiff to receive a cane, 18 mobility vest, and bottom bunk for one year. On July 7, 2009, the accommodation chrono was 19 approved. (Def.’s SUDF 103-106, Medina Decl. & Ex. A.) 20 According to his medical records, plaintiff received ibuprofen from June 17, 2009, 21 through August 11, 2009. On October 6, 2009, plaintiff saw nurse Shaw. During that medical 22 visit, plaintiff stated that he only wanted his ibuprofen re-ordered and to see a doctor. On 23 October 9, 2009, plaintiff saw defendant Medina. Plaintiff informed defendant Medina that he 24 had tried all non-narcotic medications and that only narcotic medications worked for him. 25 Defendant Medina noted that plaintiff had received an epidural injection as Dr. Arraiz 26 recommended, but plaintiff indicated that the pain did not improve after the injection. Defendant 12 1 Medina suggested that plaintiff try a short course of narcotic pain medication to see if it would 2 improve his symptoms. During his visit with plaintiff, defendant Medina noted that plaintiff did 3 not exhibit pain or discomfort and that plaintiff was not applying weight on his cane while he 4 was ambulating. Defendant Medina rescinded plaintiff’s cane chrono and prescribed him 5 ibuprofen and Tylenol with codeine for two weeks. Defendant Medina then extended plaintiff’s 6 prescription for Tylenol with codeine through October 31, 2009. On November 5, 2009, 7 plaintiff’s prescription for ibuprofen was also refilled. (Def.’s SUDF 107-118, Medina Decl. & 8 Ex. A.) 9 On January 13, 2010, the physical therapist discontinued plaintiff’s physical 10 therapy sessions because plaintiff was “not agreeable” to treatment. At his deposition plaintiff 11 testified that he did not participate in the physical therapy defendant Medina prescribed and 12 believed that the physical therapy had failed. (Def.’s SUDF 119-121, Medina Decl. & Ex. A, 13 Pl’s. Dep.) 14 On February 26, 2010, defendant Medina saw plaintiff because plaintiff had 15 refused to relinquish his cane. The defendant informed plaintiff that he no longer needed the 16 cane because he did not weight bear upon it while ambulating. Officer Barker then escorted 17 plaintiff back to his cell without his cane. Plaintiff walked without affected gait or any problem 18 at that time. (Def.’s SUDF 122-124, Medina Decl. & Ex. A.) 19 On March 12, 2010, defendant Medina submitted an accommodation chrono for 20 plaintiff to receive a mobility vest and a TENS unit for one year. On March 16, 2010, the 21 mobility vest was approved. On March 12, 2010, plaintiff’s prescription for ibuprofen was 22 refilled, and on March 15, 2010, his prescription for aspirin was refilled. On March 29, 2010 and 23 April 13, 2010, defendant Medina refilled plaintiff’s ibuprofen prescription. (Def.’s SUDF 125- 24 128, Medina Decl. & Ex. A.) 25 26 On April 22, 2010, Officer Monk submitted an information chrono after he saw plaintiff take off his mobility vest on the yard and start playing basketball with other inmates. At 13 1 that time Officer Monk saw plaintiff dribble, jog, and take two jump shots from the three-point 2 line as he watched plaintiff play basketball for fifteen minutes. (Def.’s SUDF 129-132, Medina 3 Decl. & Ex. A.) 4 On April 26, 2010, defendant Medina saw plaintiff for a chrono revision because, 5 as noted above, prison staff had observed plaintiff take off his mobility vest and play basketball. 6 At that time plaintiff’s mobility vest was discontinued, but his ibuprofen was refilled that same 7 day. (Def.’s SUDF 133-135, Medina Decl. & Ex. A.) 8 9 Finally, defendant Medina denies that he ever retaliated against plaintiff for any reason, including for filing inmate grievances regarding his medical treatment. (Def.’s SUDF 10 136, Medina Decl. & Ex. A.) 11 II. Defendant Medina’s Arguments 12 Defense counsel argues that defendant Medina is entitled to summary judgment in 13 his favor on all of plaintiff’s claims because there is no evidence before the court indicating that 14 defendant Medina was deliberately indifferent to plaintiff’s medical needs or that he retaliated 15 against plaintiff. First, counsel contends that the evidence establishes that defendant Medina 16 discontinued plaintiff’s cane in June 2008 because plaintiff’s own actions demonstrated that he 17 had no medical need for the cane. Second, counsel contends that the evidence establishes that 18 defendant Medina did not delay, deny, or interfere with plaintiff obtaining a boot brace because 19 although plaintiff did not receive the boot brace at the prison, he did receive a wheelchair and 20 expressed satisfaction with it to defendant Medina. Third, counsel contends that there is no 21 evidence that defendant Medina prescribed plaintiff physical therapy knowing that it would make 22 his spinal injury worse. In fact, according to counsel, plaintiff’s medical records indicate that 23 physical therapy previously helped him. Fourth, counsel contends that the evidence establishes 24 that defendant Medina discontinued plaintiff’s chrono for a walking cane in October 2009 25 because after he examined plaintiff the defendant noticed that plaintiff was not applying weight 26 on the cane while ambulating. Fifth, counsel argues that there is no indication that defendant 14 1 Medina failed to prescribe plaintiff with adequate pain medication. In this regard, counsel notes 2 that the evidence reflects the defendant prescribed plaintiff narcotic pain medication in addition 3 to non-narcotic pain medication. Finally, defense counsel contends that there is no evidence that 4 defendant Medina took any adverse action against plaintiff or retaliated against him in any way. 5 (Def.’s Mem. of P. & A. at 13-19.) 6 III. Plaintiff’s Opposition 7 Plaintiff’s opposition to defendant’s motion for summary judgment is supported 8 by his own declaration signed under penalty of perjury. Plaintiff argues that defendant Medina is 9 not entitled to summary judgment in his favor because defendant’s truthfulness is in question. 10 Plaintiff also argues that defendant Medina has failed to address two central elements of his 11 complaint. First, plaintiff contends that it is undisputed that on October 28, 2008, prison officials 12 granted his inmate appeal and acknowledged that he was not receiving adequate medical care 13 from defendant Medina. Second, it appears plaintiff contends that prison officials failed to 14 interview plaintiff in response to his filing of an inmate appeal, which was necessary to 15 determine the extent of defendant Medina’s alleged misconduct. Finally, plaintiff maintains that 16 prison officials granted his inmate appeals upholding his claims of inadequate medical care but 17 never fulfilled his requests for relief. (Pl.’s Opp’n to Def.’s Mot. for Summ. J. 2-5 & Pl’.s Decl.) 18 IV. Defendant Medina’s Reply 19 In reply, defense counsel contends that plaintiff cannot oppose summary judgment 20 by raising grounds not placed at issue by the operative pleadings. Moreover, counsel argues that 21 insofar as plaintiff contends that he filed an inmate grievance but was never interviewed, 22 defendant Medina did in fact interview plaintiff and granted his inmate appeal. Finally, defense 23 counsel reiterates that there is no evidence before the court that defendant Medina failed to 24 provide plaintiff with adequate medical treatment. Rather, according to defense counsel, 25 plaintiff’s own medical records demonstrate that defendant Medina consistently treated plaintiff 26 for almost two years and adequately responded to all of his medical needs. (Def.’s Reply at 2-3.) 15 1 2 ANALYSIS I. Plaintiff’s Eighth Amendment Claim 3 A. Plaintiff’s Serious Medical Needs 4 As an initial matter, the parties do not appear to dispute and the undersigned finds 5 that based upon the evidence presented by the parties in connection with the pending motion a 6 reasonable juror could conclude that plaintiff’s back condition and ankle injury constitute 7 objective, serious medical needs. See McGuckin, 974 F.2d at 1059-60 (“The existence of an 8 injury that a reasonable doctor or patient would find important and worthy of comment or 9 treatment; the presence of a medical condition that significantly affects an individual’s daily 10 activities; or the existence of chronic and substantial pain are examples of indications that a 11 prisoner has a ‘serious’ need for medical treatment.”); Canell v. Bradshaw, 840 F. Supp. 1382, 12 1393 (D. Or. 1993) (the Eighth Amendment duty to provide medical care applies “to medical 13 conditions that may result in pain and suffering which serve no legitimate penological purpose.”). 14 Specifically, plaintiff’s largely undisputed medical history as well as the observations and 15 treatment recommendations by defendant Medina, other prison medical personnel, and outside 16 specialists compel the conclusion that plaintiff’s medical conditions, if left untreated, could result 17 in “further significant injury” and the “unnecessary and wanton infliction of pain.” McGuckin, 18 974 F.2d at 1059. Accordingly, resolution of defendant Medina’s motion for summary judgment 19 hinges on whether, based upon the evidence before the court on summary judgment, a rationale 20 jury could conclude that the defendant responded to plaintiff’s serious medical needs with 21 deliberate indifference. See Farmer, 511 U.S. at 834; Estelle, 429 U.S. at 106. 22 B. Defendant Medina’s Response to Plaintiff’s Serious Medical Needs 23 The court finds that defendant Medina has borne his initial responsibility of 24 demonstrating that there is no genuine issue of material fact with respect to the adequacy of the 25 medical care provided to plaintiff. As noted above, plaintiff alleges that defendant Medina failed 26 to provide him with adequate medical care when the defendant discontinued plaintiff’s walking 16 1 cane in June 2008, did nothing to help plaintiff get a “boot brace” after he injured his ankle, 2 maliciously prescribed him physical therapy knowing that physical therapy previously caused 3 plaintiff’s back injury to worsen, discontinued plaintiff’s walking cane, waist-chain, and lower- 4 tier chrono in October 2009, and refused to prescribe plaintiff adequate pain medication. 5 Defendant’s evidence establishes the contrary in every respect. 6 As to plaintiff’s allegations that defendant Medina discontinued his walking cane 7 in June 2008, defendant’s evidence demonstrates that the defendant discontinued plaintiff’s cane 8 because plaintiff had no medical need for it. Correctional staff saw plaintiff on the yard engaged 9 in vigorous physical activity on June 18, 2008, without his cane, and defendant Medina observed 10 that plaintiff had full range of motion during his physical examination on June 19, 2008. 11 Plaintiff’s physical therapist also confirmed on July 30, 2008, that plaintiff did not need a cane. 12 (Medina Decl. & Ex. A.) 13 As to plaintiff’s allegations that the defendant did nothing to obtain him a boot 14 brace, defendant’s evidence demonstrates that plaintiff did not need a boot brace because the 15 prison had issued him a wheelchair. Moreover, when defendant Medina saw plaintiff regarding 16 his mobility concerns, plaintiff expressed satisfaction with the wheelchair. In addition, even after 17 plaintiff’s wheelchair was discontinued, plaintiff received an UNNA brace, an ace wrap, and a 18 walking cane. (Medina Decl. & Ex. A.) 19 As to plaintiff’s allegations that defendant Medina prescribed him physical 20 therapy knowing that it would make his spinal injury worse, defendant’s evidence demonstrates 21 that in 2008 plaintiff tolerated the physical therapy well and was making progress. For example, 22 during one of his sessions, he ambulated approximately thirty feet without an assistive device. In 23 2009, plaintiff did not participate in the physical therapy defendant Medina had prescribed, and 24 the physical therapist discontinued the sessions only because plaintiff was “not agreeable” to 25 physical therapy. (Medina Decl. & Ex. A & Pl.’s Dep.) 26 ///// 17 1 As to plaintiff’s allegations that defendant Medina discontinued his chrono for a 2 cane, waist-chain, and lower-tier placement in October 2009, the defendant’s evidence 3 demonstrates that defendant Medina discontinued plaintiff’s cane after he examined plaintiff and 4 noticed that he was not applying weight on the cane while ambulating. On February 26, 2010, 5 defendant Medina saw plaintiff because he had refused to relinquish his cane; as plaintiff was 6 escorted back to his cell without his cane, he walked without affected gait or problems. (Medina 7 Decl. & Ex. A.) 8 Finally, as to plaintiff’s allegations that defendant Medina failed to prescribe him 9 adequate pain medication, defendant’s evidence demonstrates that he repeatedly prescribed and 10 refilled plaintiff’s prescriptions for both non-narcotic and narcotic medication over the course of 11 nearly two years. Plaintiff’s doctors and other medical personnel appeared to agree with 12 defendant Medina’s prescriptions and they never prescribed plaintiff any different or stronger 13 medications. (Medina Decl. & Ex. A.) 14 Given the evidence submitted by defendant Medina in support of the pending 15 motion for summary judgment, the burden shifts to plaintiff to establish the existence of a 16 genuine issue of material fact with respect to his inadequate medical care claims. As noted 17 above, to demonstrate a genuine issue, the opposing party “must do more than simply show that 18 there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole 19 could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue 20 for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 21 Here, the court has considered plaintiff’s opposition to the pending motion for 22 summary judgement and his amended complaint. On defendant’s motion for summary judgment, 23 the court is required to believe plaintiff’s evidence and draw all reasonable inferences from the 24 facts before the court in plaintiff’s favor. Drawing all reasonable inferences in plaintiff’s favor, 25 the court concludes that plaintiff has not submitted sufficient evidence to create a genuine issue 26 ///// 18 1 of material fact with respect to his claim that defendant Medina responded to his serious medical 2 needs with deliberate indifference. See Farmer, 511 U.S. at 834; Estelle, 429 U.S. at 106. 3 Specifically, in his opposition to defendant’s motion for summary judgment, 4 plaintiff contends that the court should deny the pending motion because defendant Medina has 5 failed to address two components of his complaint. First, plaintiff contends that, on October 28, 6 2008, prison officials granted his inmate appeal and acknowledged that he was not receiving 7 adequate medical care from defendant Medina. The court has reviewed Dr. Nepomuceno’s 8 response to this inmate appeal filed by plaintiff. Although Dr. Nepomuceno granted plaintiff’s 9 inmate appeal, his response thereto does not indicate that defendant Medina provided plaintiff 10 with inadequate medical care. Quite the contrary. In his response to the inmate appeal Dr. 11 Nepomuceno states that, during plaintiff’s interview with defendant Medina, defendant Medina 12 provided plaintiff with a referral for orthopedics for his ankle as well as other unrelated referrals 13 and medical treatment and that plaintiff was satisfied with the outcome of that treatment. (Sec. 14 Am. Compl. Ex. A.) 15 Plaintiff also appears to contend that prison officials failed to conduct an 16 interview with him in response to his inmate appeal and that such an interview was necessary to 17 determine defendant Medina’s misconduct. Plaintiff’s argument in this regard is vague and 18 unclear. Insofar as plaintiff is claiming he was not interviewed in response to Appeal No. HDSP- 19 31-09-12059, the evidence before the court demonstrates that defendant Medina did in fact 20 interview plaintiff in connection with that inmate appeal. In any event, even if plaintiff had not 21 received an interview, that has no bearing on the evidence submitted by defendant Medina in 22 support of the pending motion for summary judgment. 23 Liberally construing plaintiff’s second amended complaint as well as his 24 opposition to defendant’s motion for summary judgment, plaintiff’s primary contention is that 25 defendant Medina was deliberately indifferent to plaintiff’s medical needs in connection with his 26 back and ankle conditions. However, plaintiff is advised that, as a matter of law, a mere 19 1 difference of opinion between a prisoner and prison medical staff as to the proper course of 2 medical care does not give rise to a § 1983 claim. Toguchi, 391 F.3d at 1058; Jackson, 90 F.3d 3 at 332; Sanchez, 891 F.2d at 242; Franklin, 662 F.2d at 1344; see also Estelle, 429 U.S. at 107 4 (“A medical decision not to order an X-ray, or like measures, does not constitute cruel and 5 unusual punishment.”); Fleming v. Lefevere, 423 F. Supp. 2d 1064, 1070 (C.D. Cal. 2006) 6 (“Plaintiff’s own opinion as to the appropriate course of care does not create a triable issue of 7 fact because he has not shown that he has any medical training or expertise upon which to base 8 such an opinion.”). 9 Here, plaintiff has come forward with no evidence showing that the course of 10 treatment defendant Medina chose for him was medically unacceptable under the circumstances 11 or that defendant Medina chose the particular course of treatment in conscious disregard of an 12 excessive risk to plaintiff’s health. Farmer, 511 U.S. at 837. Accordingly, defendant Medina’s 13 motion for summary judgment with respect to plaintiff’s Eighth Amendment claim based upon 14 the medical treatment plaintiff received for his back and ankle should be granted. 15 II. Plaintiff’s First Amendment Retaliation Claim 16 The court finds that defendant Medina has also borne his initial responsibility of 17 demonstrating that there is no genuine issue of material fact with respect to plaintiff’s retaliation 18 claim. As noted above, plaintiff alleges that defendant Medina retaliated against him by 19 withholding adequate medical care from him, specifically, the withholding of pain management 20 treatment. Again, defendant’s evidence establishes the contrary. 21 Defendant’s evidence demonstrates that he never refused to see plaintiff and never 22 took any adverse action against plaintiff for filing an inmate appeal. That evidence also 23 establishes that defendant Medina repeatedly prescribed and refilled plaintiff’s prescriptions for 24 both non-narcotic and narcotic medication over the course of nearly two years. Plaintiff’s 25 doctors and other medical personnel also appeared to agree with defendant Medina’s 26 prescriptions since they never prescribed him any different or stronger medication. Defendant 20 1 Medina also referred plaintiff to specialists, prescribed him physical therapy, and submitted 2 accommodation chronos on plaintiff’s behalf in an attempt to address plaintiff’s alleged chronic 3 pain. (Medina Decl. & Ex. A.) 4 Given the evidence submitted by defendant Medina in support of the pending 5 motion for summary judgment, the burden shifts to plaintiff to establish the existence of a 6 genuine issue of material fact with respect to his retaliation claim. Here, viewing the facts in the 7 light most favorable to plaintiff, plaintiff has not provided the court with any competent evidence 8 demonstrating that defendant Medina withheld medical care from him based on his filing of an 9 inmate appeal. See Fed. R. Civ. P. 56(e) (“A supporting or opposing affidavit must be made on 10 personal knowledge, set out facts that would be admissible in evidence, and show that the affiant 11 is competent to testify on the matters stated.”); Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 12 2004) (court may consider as evidence in opposition to a motion for summary judgment a pro se 13 plaintiff’s contentions when they are based on personal knowledge and set forth facts that would 14 be admissible in evidence). 15 Specifically, a viable retaliation claim requires, in part, that plaintiff point to some 16 evidence demonstrating causation. Here, plaintiff has failed to point to any evidence suggesting 17 that defendant Medina’s actions were substantially motivated by or because of plaintiff’s 18 protected conduct. Throughout his second amended complaint and deposition testimony, 19 plaintiff contends that defendant Medina made certain adverse medical decisions after plaintiff 20 filed his inmate appeal and therefore that defendant Medina must have been retaliating against 21 him. However, plaintiff’s contentions are supported only by sheer speculation. Speculation is 22 not probative evidence indicating the crucial link between his filing of an inmate appeal and 23 defendant Medina’s decisions regarding medical treatment. A retaliation claim cannot rest on the 24 logical fallacy of post hoc, ergo propter hoc, literally, “after this, therefore because of this.” See 25 Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000). Moreover, as discussed above, in 26 response to plaintiff’s inmate appeal defendant Medina conducted an interview with plaintiff and 21 1 provided him with a referral for orthopedics for his ankle as well as other unrelated referrals and 2 medical treatment. Defendant Medina thereafter continued to treat plaintiff on several occasions. 3 This evidence refutes plaintiff’s claim of retaliation. 4 For all of the foregoing reasons, defendant Medina’s motion for summary 5 judgment with respect to plaintiff’s First Amendment retaliation claim should be granted. 6 7 OTHER MATTERS Not long after this court ordered service of plaintiff’s second amended complaint 8 on defendants, plaintiff filed a supplemental complaint, attempting to state a cognizable claim 9 against Susan Hubbard, Director of the Division of Adult Institutions, for the third time. (Doc. 10 No. 22.) Plaintiff mentions in his opposition to the pending motion for summary judgment that 11 the court has not addressed his supplemental complaint. The court will do so now. 12 Once again, in his supplemental complaint, plaintiff has failed to state a 13 cognizable claim against Director Hubbard. Therein, plaintiff alleges that Director Hubbard 14 failed to properly process and respond to plaintiff’s inmate appeal and is liable for all of the 15 injuries plaintiff complains of in his inmate appeal with respect to his medical care. As the court 16 previously advised plaintiff, prison officials are not required under federal law to process inmate 17 grievances in a specific way or to respond to them in a favorable manner. It is well established 18 that “inmates lack a separate constitutional entitlement to a specific prison grievance procedure.” 19 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 20 (9th Cir. 1988)). See also, e.g., Wright v. Shannon, No. CIV F-05-1485 LJO YNP PC, 2010 WL 21 445203 at *5 (E.D. Cal. Feb. 2, 2010) (plaintiff’s allegations that prison officials denied or 22 ignored his inmate appeals failed to state a cognizable claim under the First Amendment); 23 Walker v. Vazquez, No. CIV F-09-0931 YNP PC, 2009 WL 5088788 at *6-7 (E.D. Cal. Dec. 17, 24 2009) (plaintiff’s allegations that prison officials failed to timely process his inmate appeals 25 failed to a state cognizable under the Fourteenth Amendment); Towner v. Knowles, No. CIV S- 26 08-2833 LKK EFB P, 2009 WL 4281999 at *2 (E.D. Cal. Nov. 20, 2009) (plaintiff’s allegations 22 1 that prison officials screened out his inmate appeals without any basis failed to indicate a 2 deprivation of federal rights). 3 Moreover, § 1983 requires that there be an actual connection or link between the 4 actions of the defendant and the deprivation alleged to have been suffered by plaintiff. See 5 Monell v. Department of Social Servs. , 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 6 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 7 meaning of § 1983, if he does an affirmative act, participates in another’s affirmative acts or 8 omits to perform an act which he is legally required to do that causes the deprivation of which 9 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). The Ninth Circuit has 10 recently reaffirmed that a supervisory defendant may be held liable under § 1983 only “‘if there 11 exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a 12 sufficient causal connection between the supervisor’s wrongful conduct and the constitutional 13 violation.’” Starr v. Baca, __ F.3d __, ___, 2011 WL 2988827, at *4 (9th Cir. July 25, 2011) 14 (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). 15 In his supplemental complaint, plaintiff has not alleged that Director Hubbard was 16 personally involved in the alleged constitutional deprivations which are the subject of his 17 complaint. Nor has plaintiff alleged a sufficient causal connection between Director Hubbard’s 18 conduct and any alleged constitutional violation. 19 CONCLUSION 20 Accordingly, IT IS HEREBY RECOMMENDED that: 21 1. Defendant Medina’s motion for summary judgment (Doc. No. 37) be granted; 22 2. Plaintiff’s supplemental complaint (Doc. No. 22) be dismissed; and 23 3. This action be closed. 24 These findings and recommendations are submitted to the United States District 25 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 26 one days after being served with these findings and recommendations, any party may file written 23 1 objections with the court and serve a copy on all parties. Such a document should be captioned 2 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 3 shall be served and filed within seven days after service of the objections. The parties are 4 advised that failure to file objections within the specified time may waive the right to appeal the 5 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 DATED: September 7, 2011. 7 8 9 10 DAD:9 sama3145.157 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 24
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