Lopez v. Burris, No. 3:2013cv03330 - Document 63 (N.D. Cal. 2016)

Court Description: ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT re 48 MOTION for Summary Judgment ; Memorandum of Points and Authorities filed by Polly ?, M. Olsen, Pennington, Sackett, ***Civil Case Terminated.. Signed by Judge James Donato on 6/6/16. (lrcS, COURT STAFF) (Filed on 6/6/2016)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBERTO CAMPA LOPEZ, Plaintiff, 8 v. 9 10 R. RICE, et al., Defendants. 11 United States District Court Northern District of California Case No. 13-cv-03330-JD ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Re: Dkt. Nos. 47, 48, 59, 61 12 Roberto Lopez is a state prisoner proceeding pro se in this civil rights action under 42 13 14 U.S.C. § 1983. Plaintiff alleges that defendants were deliberately indifferent to his serious 15 medical needs by failing to promptly and properly treat him for asthma attacks on March 23 and 16 March 25, 2012. Defendants Polly, Pennington, Sackett and Olson have moved for summary 17 judgment. Plaintiff filed an opposition and a cross-motion for summary judgment. Defendants 18 filed a reply. Defendants’ motion for summary judgment is granted and plaintiff’s motion is 19 denied. 20 BACKGROUND 21 The facts for this motion are largely undisputed. Plaintiff was a prisoner at Pelican Bay 22 State Prison (“PBSP”) during the relevant time. Opposition (Docket No. 57) at 1. Defendants 23 Olson, Sackett and Pennington are correctional officers and were working at PBSP. Motion for 24 Summary Judgment, Olson Decl. ¶¶1, 4; Sackett Decl. ¶¶1, 5; Pennington Decl. ¶¶ 1, 3. 25 Defendant Polly was a registered nurse at PBSP at the relevant time. MSJ, Polly Decl. ¶¶ 1, 4. 26 Plaintiff concedes that the defendants in this case were not involved in providing his medical care 27 for an asthma attack that occurred on March 23, 2012. MSJ, Bower Decl., Ex. A at 12-13. 28 1 2 Plaintiff’s claims for that incident are therefore deemed withdrawn. On March 25, 2012, Olson, Sackett and Pennington were working in plaintiff’s housing 3 unit on the second watch shift which began at 6:00 am. MSJ, Sackett Decl. ¶ 6. Olson was 4 working as the control tower officer and Pennington and Sackett were working as floor officers. 5 MSJ, Olson Decl. ¶ 4; Sackett Decl. ¶ 6. Polly was working as the roving nurse for the entire 6 prison and was responsible for providing first responder treatment. MSJ, Polly Decl. ¶ 3. 7 Pelican Bay State Prison is a Level IV maximum security facility which uses Security 8 Housing Units. MSJ, Sackett Decl. ¶ 3. The Security Housing Unit is designed for inmates who 9 require separation from general population inmates. Id. The prison is divided into four main housing facilities. Id. ¶ 4. Each facility has its own separate medical clinic. Id. Regular inmate 11 United States District Court Northern District of California 10 medical appointments occur on weekdays, and much of the medical staff takes the weekend off. 12 Id. ¶ 5. On the weekend, plaintiff’s medical facility typically has one licensed vocation nurse and 13 the entire prison will have a roving registered nurse. Id. The incident in this case occurred on a 14 Sunday. Id. ¶ 7. 15 Shortly after 6:00 a.m. on March 25, 2012, Olson heard an inmate state that he was having 16 a medical issue and needed to see the nurse when he arrived to the area. MSJ, Olson Decl. ¶¶ 4, 5; 17 Opposition at 3. Olson believed that inmate was plaintiff. MSJ, Olson Decl. ¶ 5. Plaintiff states 18 that another inmate informed Olson “[plaintiff] was having an asthma attack and needed to see 19 medical staff.” Opposition at 3. Because the facility nurse was scheduled to arrive shortly to 20 deliver medication, Olson responded that he would alert the nurse when he arrived. MSJ, Olson 21 Decl. ¶ 5. At approximately 6:20 a.m. to 6:25 a.m. another inmate shouted that plaintiff was in 22 distress and having trouble breathing. Id.; Opposition at 3. Olson responded that he would notify 23 the nurse immediately, and Olson called the corridor control officer to report the incident. MSJ, 24 Olson Decl. ¶¶ 5, 6. In his position as control tower officer, Olson was not permitted to leave his 25 post unless another relief officer was present. Id. ¶ 5. 26 There was only one licensed vocational nurse assigned to the facility at that time. Sackett 27 Decl. ¶ 7. The nurse was not in the facility medical clinic. Id. Typically at that time he is 28 distributing medications to the diabetic inmates to take with their morning meals. Id. At some 2 1 time between 6:40 a.m. and 6:45 a.m., the rover nurse arrived at the clinic, was notified that an 2 inmate needed medical attention, and Pennington and Sackett transported plaintiff by wheelchair 3 to the clinic. Sackett Decl. ¶ 7; Olson Decl. ¶¶ 6, 7; Bower Decl., Ex. A at 35; Opposition at 3. 4 They secured plaintiff in handcuffs prior to transporting him. MSJ, Olson Decl. ¶ 6. 5 At approximately 6:40 a.m. Polly was notified that plaintiff was experiencing medical 6 problems. MSJ, Polly Decl. ¶ 4. Polly began to treat plaintiff at 6:45 a.m. MSJ, Polly Decl. ¶ 4; 7 Bower Decl., Ex. A at 35. Plaintiff told Polly that he began having medical problems at 6:30 a.m. 8 Id. Polly noted that plaintiff was short of breath and was wheezing. MSJ, Polly Decl. ¶ 5. Polly 9 took plaintiff’s vitals and performed a respiratory assessment. Id. Plaintiff contends that Polly intentionally delayed and disregarded plaintiff’s condition by asking “irrelevant questions 11 United States District Court Northern District of California 10 unrelated to plaintiff’s current medical condition.” Opposition at 3. Polly took plaintiff’s vitals at 12 6:46 a.m., 6:55 a.m., and 7:10 a.m. Bower Decl., Ex. A at 35. Polly determined that plaintiff’s 13 medical condition required further immediate consultation and notified the on-call doctor at 6:55 14 a.m. Id. The doctor instructed Polly to call an ambulance and Polly complied. MSJ, Polly Decl. ¶ 15 6. The ambulance arrived at approximately 7:10 a.m. and plaintiff was taken by gurney to the 16 ambulance at 7:18 a.m. and then transported to the hospital. Id. DISCUSSION 17 18 Summary judgment is proper where the pleadings, discovery, and affidavits show there is 19 “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 20 law.” See Fed. R. Civ. P. 56(a). Material facts are those that may affect the outcome of the case. 21 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is 22 genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving 23 party. See id. 24 A court will grant summary judgment “against a party who fails to make a showing 25 sufficient to establish the existence of an element essential to that party’s case, and on which that 26 party will bear the burden of proof at trial[,] . . . since a complete failure of proof concerning an 27 essential element of the nonmoving party's case necessarily renders all other facts immaterial.” 28 See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the initial 3 1 burden of identifying those portions of the record that demonstrate the absence of a genuine issue 2 of material fact. Id. The burden then shifts to the nonmoving party to “go beyond the pleadings 3 and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on 4 file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” See id. at 324. 5 For purposes of summary judgment, the Court views the evidence in the light most favorable to the nonmoving party; if the evidence produced by the moving party conflicts with 7 evidence produced by the nonmoving party, the Court will assume the truth of the evidence 8 submitted by the nonmoving party. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). 9 The Court’s function on a summary judgment motion is not to make credibility determinations or 10 weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv., Inc. v. 11 United States District Court Northern District of California 6 Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 12 Deliberate indifference to serious medical needs violates the Eighth Amendment’s 13 proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); 14 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX 15 Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A determination of 16 “deliberate indifference” involves an examination of two elements: the seriousness of the 17 prisoner’s medical need and the nature of the defendant’s response to that need. Id. at 1059. 18 A serious medical need exists if the failure to treat a prisoner’s condition could result in 19 further significant injury or the “unnecessary and wanton infliction of pain.” Id. The existence of 20 an injury that a reasonable doctor or patient would find important and worthy of comment or 21 treatment, the presence of a medical condition that significantly affects an individual’s daily 22 activities, or the existence of chronic and substantial pain are examples of indications that a 23 prisoner has a serious need for medical treatment. Id. at 1059-60. 24 A prison official is deliberately indifferent if he or she knows that a prisoner faces a 25 substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate 26 it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only “be aware of 27 facts from which the inference could be drawn that a substantial risk of serious harm exists,” but 28 “must also draw the inference.” Id. If a prison official should have been aware of the risk, but did 4 1 not actually know, the official has not violated the Eighth Amendment, no matter how severe the 2 risk. Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). “A difference of opinion 3 between a prisoner-patient and prison medical authorities regarding treatment does not give rise to 4 a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). In addition “mere 5 delay of surgery, without more, is insufficient to state a claim of deliberate medical indifference. . 6 . . [Prisoner] would have . . . no claim for deliberate medical indifference unless the denial was 7 harmful.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). 8 Plaintiff argues that defendants were deliberately indifferent to his serious medical needs 9 due to the delays in responding and treating his asthma attacks. He argues that the delays caused 10 United States District Court Northern District of California 11 further injury to his respiratory system. The undisputed evidence does not support plaintiff’s claims. Olson was first informed of 12 the medical problem at about 6:20 a.m. Plaintiff offers an affidavit from inmate Harrison, the 13 inmate who originally informed Olson that plaintiff needed medical attention. Docket No. 58 at 14 14. Harrison states this first occurred at 6:20 a.m. and then 6:25 a.m. Id. at 14-15. Several other 15 inmate affidavits included in plaintiff’s opposition also state that the serious nature of the medical 16 problem was not reported to Olson until 6:20 a.m. Id. at 18-32. In plaintiff’s various inmate 17 appeals filed shortly after the incident, he states that the asthma attack occurred at 6:20 a.m. Id. at 18 44, 48, 50. It is undisputed that plaintiff told Nurse Polly that he began having breathing problems 19 at 6:30 a.m. 20 It is undisputed that when Olson was first informed of the medical problem, he responded 21 that plaintiff could see the nurse when he arrived. When Olson was informed 15 to 20 minutes 22 later that plaintiff’s situation was serious, it is undisputed that he immediately reported the 23 incident to other correctional officers who immediately notified medical staff. 24 These facts show that Olson was not deliberately indifferent to plaintiff’s serious medical 25 needs. He acted promptly and reasonably in response to plaintiff’s condition. Plaintiff has failed 26 to meet his burden in his opposition or cross-motion for summary judgment to show a genuine 27 issue for trial. 28 It is equally undisputed that defendants Pennington and Sackett did not violate plaintiff’s 5 Eighth Amendment rights. They obtained a wheelchair and transported plaintiff to the medical 2 clinic at some time between 6:40 a.m. and 6:45 a.m. Even assuming it took approximately fifteen 3 minutes to obtain a wheelchair for plaintiff and to transport him to the clinic, these defendants are 4 still entitled to summary judgment. Pennington and Sackett responded to the medical emergency, 5 obtained a wheelchair and transported plaintiff from a maximum Security Housing Unit cell in 6 short order. They had to wait a brief period of time because the nurse assigned to the facility was 7 delivering medication to other inmates and the roving nurse needed to be called, but that is of no 8 constitutional moment. Plaintiff has not met his burden in showing that the defendants were 9 deliberately indifferent to his serious medical needs and that this short delay violated the Eighth 10 Amendment. Plaintiff’s brief and conclusory allegations are insufficient to counter defendants’ 11 United States District Court Northern District of California 1 motion for summary judgment or obtain summary judgment on his motion. 12 It is also undisputed that defendant Polly is entitled to summary judgment on plaintiff’s 13 claim. He received the report about plaintiff at 6:40 a.m. and began treating him at 6:45 a.m. He 14 took his vitals and performed a medical assessment. Based on plaintiff’s condition he contacted a 15 doctor at 6:55 a.m., and the doctor advised that an ambulance should be called. He continued to 16 monitor plaintiff’s vitals until the ambulance arrived at 7:10 a.m., and plaintiff was transported by 17 gurney to the ambulance at 7:18 a.m. Plaintiff complains that Polly asked him medical questions 18 that were not related to his asthma, but the medical report reflects that Polly asked appropriate 19 questions about plaintiff’s medical history, drug allergies, symptoms, and current medications. 20 MSJ, Bower Decl., Ex. A at 35. Plaintiff also alleges that Polly delayed contacting the doctor. 21 But, it is undisputed that Polly contacted the doctor 10 minutes after plaintiff arrived, during 22 which time Polly was asking him medical questions, examining him, and taking his vitals. Even 23 assuming that Polly did delay calling the doctor by a few minutes, it does not demonstrate 24 deliberate indifference. Polly is entitled to summary judgment. 25 Viewing the evidence in the light most favorable to plaintiff, the defendants promptly 26 responded to plaintiff’s asthma attack in alerting medical staff, transporting him to the facility 27 medical clinic, evaluating him, and taking him to the outside hospital. There is no genuine dispute 28 as to any material fact, and the undisputed facts demonstrate that defendants were not deliberately 6 1 indifferent to his serious medical needs. CONCLUSION 2 3 4 5 6 1. The parties’ motions for extensions (Docket Nos. 47, 59, 61) are GRANTED and all filings are deemed timely filed and have been reviewed by the Court. 2. Defendants’ motion for summary judgment (Docket No. 48) is GRANTED. Plaintiff’s cross-motion for summary judgment (Docket No. 57) is DENIED. 7 3. The Clerk shall terminate all pending motions, enter judgment, and close the file 8 IT IS SO ORDERED. 9 Dated: June 6, 2016 10 United States District Court Northern District of California 11 JAMES DONATO United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 ROBERTO CAMPA LOPEZ, Case No. 13-cv-03330-JD Plaintiff, 5 v. CERTIFICATE OF SERVICE 6 7 R. RICE, et al., Defendants. 8 9 10 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. United States District Court Northern District of California 11 12 13 14 15 That on June 6, 2016, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 18 19 Roberto Campa Lopez CSP-Sacramento C7-214L C22294 P.O. Box 29066 Represa, CA 95671 20 21 Dated: June 6, 2016 22 23 24 Susan Y. Soong Clerk, United States District Court 25 26 27 By:________________________ LISA R. CLARK, Deputy Clerk to the Honorable JAMES DONATO 28 8