examining verified pleadings and 17 motions in opposition to summary judgment
How later courts described this case
- examining verified pleadings and 17 motions in opposition to summary judgment
- vicarious liability is inapplicable to Bivens
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10
11 MICHAEL BENANTI, ) Case No. 1:17-cv-01556-LJO-SAB (PC)
)
12 Plaintiff, )
) ORDER DIRECTING CLERK OF COURT TO
13 v. ) CORRECT SPELLING OF DEFENDANTS
ALATARY AND CASTANADA’S NAMES
14 MATEVOUSIAN, )
)
15 Defendants. ) FINDINGS AND RECOMMENDATION
) REGARDING DEFENDANTS’ MOTION FOR
16 ) SUMMARY JUDGMENT
)
17 ) [ECF No. 68]
18 Plaintiff Michael Benanti is appearing pro se and in forma pauperis in this civil rights action
19 pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). This matter was
20 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
21 Currently before the Court is Defendants’ motion for summary judgment, filed August 26,
22 2019.
23 ///
24 ///
25 ///
26 ///
27 ///
28 ///
1 I.
2 RELEVANT BACKGROUND
3 This action is proceeding against Defendants D. Alatary, C. Castenada and Dr. Thomas Moore
4 for deliberate indifference to a serious medical need in violation of the Eighth Amendment.1
5 On June 5, 2018, Defendants filed a motion for summary judgment for failure to exhaust the
6 administrative remedies.
7 On August 23, 2018, the undersigned issued Findings and Recommendations to deny
8 Defendants’ motion for summary judgment, which was adopted in full on September 28, 2018.
9 On October 11, 2018, Defendants filed an answer to the complaint.
10 On October 16, 2018, the Court issued the discovery and scheduling order.
11 As previously stated, on August 26, 2019, Defendants filed a motion for summary judgment
12 addressing the merits of Plaintiff’s claims.
13 Plaintiff filed an opposition on December 2, 2019, and Defendants filed a reply on December
14 9, 2019.
15 II.
16 LEGAL STANDARD
17 Any party may move for summary judgment, and the Court shall grant summary judgment if
18 the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
19 judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Washington Mut. Inc. v.
20 U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, whether it be that a fact is disputed
21 or undisputed, must be supported by (1) citing to particular parts of materials in the record, including
22 but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials
23 cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot
24 produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted).
25
26
1 Plaintiff listed Defendants as D. Alitary and C. Castendada and the Court’s docket reflects that spelling. However,
27 papers filed by Defendants indicate that the correct spellings are David Alatary and Jose Castaneda Correa. The docket
will be updated to reflect D. Alatary and Castaneda for consistency.
28
1 The Court may consider other materials in the record not cited to by the parties, but it is not required
2 to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031
3 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).
4 In judging the evidence at the summary judgment stage, the Court does not make credibility
5 determinations or weigh conflicting evidence, Soremekun, 509 F.3d at 984 (quotation marks and
6 citation omitted), and it must draw all inferences in the light most favorable to the nonmoving party
7 and determine whether a genuine issue of material fact precludes entry of judgment, Comite de
8 Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d at 942 (quotation marks and
9 citation omitted).
10 Local Rule 260(b) requires that “any party opposing a motion for summary judgment …
11 reproduce the itemized facts in the Statement of Undisputed Facts and admit those facts that are
12 undisputed and deny those that are disputed, including with each denial a citation to the particular
13 portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document
14 relied on in support of that denial.”
15 Normally, documents not signed under penalty of perjury cannot be considered on summary
16 judgment. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (examining verified pleadings and
17 motions in opposition to summary judgment). However, “the Ninth Circuit appears to require district
18 courts to consider some unsworn, inadmissible material in the summary judgment analysis.”
19 Rosenfeld v. Mastin, Case No. CV 11-7002-DOC(E), 2013 WL 5705638, at *4 (C.D. Cal. Sept. 11,
20 2013) (citing Fraser v. Goodale, 342 F.3d 1032 (9th Cir. 2003)). As stated in Rosenfeld,
21 Under Fraser v. Goodale and its progeny, this Court should consider the unsworn statements
made by Plaintiff in the Third Amended Complaint and in the Opposition concerning the force
22 allegedly used on him at the time of his arrest. Plaintiff plainly has personal knowledge of the
content of these statements and could present the statements in admissible form through his
23
own testimony at trial. To refuse consideration of these statements would elevate form over
24 substance, in disregard of the legally indistinguishable holding of Fraser v. Goodale.
25 Rosenfeld v. Mastin, 2013 WL 5705638, at *5.
26 Here, the Court notes that neither the first amended complaint or opposition were signed under
27 penalty of perjury. (ECF Nos. 14, 81.) Plaintiff did attach a proof of service to the first amended
28 complaint which is signed under penalty of perjury. Given Plaintiff’s pro se status and the fact that the
1 proof of service is attached and signed under penalty of perjury the Court will consider it verified for
2 purposes of ruling on this motion. In addition, with regard to Plaintiff’s opposition, he presented his
3 own statement of disputed facts (ECF No. 81) to identify facts in dispute, but he does not say why he
4 disputes them or cite to portions of the record that support a different interpretation of the facts. To
5 the extent Plaintiff has personal knowledge of the information set forth in his opposition, wherever a
6 fact is brought into dispute by facts presented in these filings, the facts will be considered here insofar
7 as they otherwise are competent and material.
8 III.
9 DISCUSSION
10 A. Summary of Plaintiff’s Complaint
11 Plaintiff suffers from acid reflux stemming from the treatment of Thrombocytopenia, and both
12 conditions are documented in Plaintiff’s presentence report. Plaintiff has been treated with
13 prescription Omeprazole for over seven years and at several institutions within the United States
14 Bureau of Prisons.
15 In August 2017, upon Plaintiff’s arrival at the United States Petitionary in Atwater, Dr.
16 Thomas Moore advised Plaintiff that he would not be provided Omeprazole for acid reflux, but he
17 could purchase Prilosec at the commissary as an over the counter medication.
18 On October 6, 2017, the entire prison was locked down due to a riot and normal operations did
19 not resume until January 2, 2018. Plaintiff immediately began to complain about acid reflux and his
20 inability to purchase Prilosec from the commissary due to the lockdown. During the early stages of
21 the lockdown, Plaintiff spoke to D. Alatary from health services and he requested a prescription for
22 Omeprazole and to see a doctor. Plaintiff explained that he had not been able to purchase any over the
23 counter medication from commissary and he was having increasing pain and discomfort on a daily
24 basis. Defendant Alatary told Plaintiff that he would not authorize a prescription for over the counter
25 medications because it was not his problem and he should contact the trust fund who manages the
26 commissary to buy it.
27 In the middle of October 2017, Plaintiff spoke to the Unit Two Care Manager, Castaneda and
28 explained his medical condition and lack of medication. Plaintiff complained of severe and constant
1 burning in his stomach and throat with bile erupting into his mouth periodically. Plaintiff also
2 indicated that he was experiencing increasing symptoms of tightening and closure of his throat and the
3 development of a violent cough. The pain caused headaches, lack of rest and constant discomfort.
4 Mr. Castaneda returned to Plaintiff’s cell a day or so later and indicated he had spoken with the trust
5 fund administrator and Warden who stated, Plaintiff would not be allowed to make a special purchase
6 of Prilosec, there was no schedule for the inmate population to go to commissary, and even if
7 permitted to go the commissary the list would not include Prilosec or any acid pump inhibitor.
8 Plaintiff contends Mr. Castaneda’s inaction allowed the improper denial of medical treatment.
9 A day or so later, Plaintiff report chest pains to officer Prewitt. Both Mr. Alatary and Mr.
10 Castaneda responded to Plaintiff’s cell and denied medical treatment. Plaintiff indicates that after he
11 filed the instant action in October 2017, he was provided a prescription for Omeprazole in November
12 2017.
13 B. Statement of Undisputed Facts
14 1. Plaintiff Michael Benanti is a federal prisoner at the United States Penitentiary in
15 Atwater, California (“USP Atwater”) from August 22, 2017, to present. (ECF No. 1 at 3.)
16 2. When Plaintiff arrived at USP Atwater, his transfer form identified only one
17 prescription medication for sertraline (an antidepressant known as Zoloft) and no over-the-counter
18 (“OTC”) medications. (Declaration of Jennifer Vickers (“Vickers Decl.”) Ex. A, ECF No. 23-3.)
19 3. On August 24, 2017, Plaintiff consulted Dr. Moore, who discussed Plaintiff’s acid
20 reflux and advised him to purchase OTC Prilosec from the commissary and follow up if there is a
21 problem. (Pl. Dep. at 39:17-40:18; see also Declaration of Dr. Moore (“Moore Decl.”) ¶ 13, ECF No.
22 68-3.)
23 4. Plaintiff was not indigent and was able to purchase OTC Prilosec from the commissary.
24 (Pl. Dep. at 43:7-12; see also Declaration of Castaneda (“Castaneda Decl.”) ¶ 13, ECF No. 23-2.)
25 5. On October 6, 2017, USP Atwater was placed in an emergency lockdown because six
26 inmates assaulted a BOP staff member. (Pl. Dep. at 70:6-71:25; see also Castaneda Decl. ¶ 13.)
27 6. During the lockdown, BOP medical providers traveled through Plaintiff’s unit on a
28 daily basis to provide medical access. (Pl. Dep. at 70:6-71:25; Moore Decl. ¶ 24.)
1 7. Defendant Alatary is not a medical provider; he is an administrator of the health
2 services department. (Pl. Dep. at 79:19-24; 82:10-23.)
3 8. Castaneda is not a medical provider; he is a member of the unit team. (Pl. Dep. At
4 76:14-20.)
5 9. Plaintiff described Castaneda’s response as, “really good,” stating “Castaneda
6 was really good. Let me be honest about it. Castaneda was really good about it. He did what he
7 could. He went to the command center. He talked to them. He asked them if they were going to sell
8 Prilosec. He came back to me…he was responsive. He did his part of is.” (Pl. Dep. at 75:23-76:4.)
9 10. Castaneda was sympathetic. (Pl. Dep. at 76:14-77:2; 113:18-114:6.)
10 11. Castaneda investigated what was available from the commissary during the lockdown
11 and reported back that the commissary was not going to sell OTC Prilosec even as a special purchase.
12 (Pl. Dep. at 77:2-9.)
13 12. Castaneda alerted medical. (Pl. Dep. at 113:25.)
14 13. Plaintiff has no medical expert to support any of his claims. (Pl. Dep. at 110:5-12.)
15 C. Analysis of Defendants’ Motion
16 Defendants argue that: (1) the Court should not imply a Bivens remedy in this novel context;
17 (2) plaintiff’s claims are barred by qualified immunity; and (3) plaintiff cannot prove that any
18 Defendant violated any constitutional right.
19 In opposition, Plaintiff argues that he did not have access to the commissary during lockdown
20 and consequently he was unable to purchase OTC Prilosec for about three weeks. Plaintiff further
21 contends that Dr. Moore knew there was no OTC medications available from October 6, 2017 to
22 November 1, 2017, due to the lockdown status and suspended commissary.
23 1. Extension of Bivens Remedy
24 Defendants argue that Plaintiff’s deliberate indifference claim under the Eighth Amendment
25 presents a new context under the framework set forth in Ziglar v. Abbasi, __ U.S. __, 137 S.Ct. 1843
26 (2017), and special factors counsel hesitation on extending Bivens to his claims.
27
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1 Even assuming, without deciding, that there is an implied Bivens remedy in this context, for
2 the reasons explained below, Defendants are entitled to summary judgment on Plaintiff’s Eighth
3 Amendment claim for deliberate indifference to his serious medical needs.
4 2. Deliberate Indifference to Serious Medical Need
5 While the Eighth Amendment of the United States Constitution entitles Plaintiff to medical
6 care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference to
7 an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled
8 in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v.
9 Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
10 Plaintiff “must show (1) a serious medical need by demonstrating that failure to treat [his] condition
11 could result in further significant injury or the unnecessary and wanton infliction of pain,” and (2) that
12 “the defendant’s response to the need was deliberately indifferent.” Wilhelm, 680 F.3d at 1122 (citing
13 Jett, 439 F.3d at 1096). Deliberate indifference is shown by “(a) a purposeful act or failure to respond
14 to a prisoner’s pain or possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680
15 F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective
16 recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d at 985 (citation and
17 quotation marks omitted); Wilhelm, 680 F.3d at 1122.
18 “Indications that a plaintiff has a serious medical need include the existence of an injury that a
19 reasonable doctor or patient would find important and worthy of comment or treatment; the presence
20 of a medical condition that significantly affects an individual’s daily activities; or the existence of
21 chronic or substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation and
22 internal quotation marks omitted); accord Wilhelm v. Rotman, 680 F.3d at 1122; Lopez v. Smith, 203
23 F.3d 1122, 1131 (9th Cir. 2000).
24 A difference of opinion between a physician and the prisoner - or between medical
25 professionals - concerning what medical care is appropriate does not amount to deliberate
26 indifference.” Snow v. McDaniel, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th
27 Cir. 1989)); Wilhelm v. Rotman, 680 F.3d at 1122-23 (citing Jackson v. McIntosh, 90 F.3d 330, 332
28 (9th Cir. 1986)). Rather, Plaintiff “must show that the course of treatment the doctors chose was
1 medically unacceptable under the circumstances and that the defendants chose this course in conscious
2 disregard of an excessive risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332)
3 (internal quotation marks omitted).
4 a. Defendant Dr. Moore
5 Every inmate who arrives at USP-Atwater are provided with an initial medical screening and
6 information regarding BOP programs, and the rules and regulations including how to obtain medical
7 treatment. (Dr. Moore Decl. ¶ 7.) It is undisputed that upon Plaintiff’s arrival at USP-Atwater on
8 August 22, 2017, a health screen was performed by nurse Spears, including a “Medication
9 Reconciliation” during which Plaintiff’s known medication list, including OTC items, was compiled
10 and compared to new and changed BOP orders. (Dr. Moore Decl. ¶¶ 12-13, Ex. 1 at US 0000011-12.)
11 When Plaintiff arrived at USP Atwater, his transfer form identified only one prescription medication,
12 for sertraline (an antidepressant known as Zoloft), and no OTC medications. (Vickers Decl., Ex. A;
13 Dr. Moore Decl. ¶¶ 12-13, Ex. 1 at US 000009-13.) Plaintiff’s prescription for Sertraline was
14 continued. (Dr. Moore Decl. ¶¶ 12-13, Ex. 1 at US 0000011-12.)
15 On August 24, 2017, Plaintiff had a consultation with Dr. Moore for his intake evaluation.
16 (Dr. Moore Decl. ¶ 13, Ex. 1 at US 0000019-30.) As Plaintiff was a new inmate, Dr. Moore did not
17 have access Plaintiff’s medical records from non-BOP providers. Id. Dr. Moore did have access to
18 the transfer form which identified only a prescription for sertraline. Id.; see also Vickers Decl., Ex. A.
19 Dr. Moore performed a History & Physical identifying six medical conditions including: vertigo, sleep
20 apnea, a cough associated with acid reflux and allergies, low back issues, and the use of Zoloft. (Dr.
21 Moore Decl. ¶ 13, Ex. 1 at US 0000021.) Dr. Moore continued the prescription for sertraline (through
22 the Chronic Care program), wrote a “lower bunk pass” to deal with the back problem, and instructed
23 Plaintiff how to obtain further medical care for sleep apnea. Id. at US 000005, 40. Dr. Moore
24 discussed Plaintiff’s acid reflux and advised him to purchase OTC Prilosec from the commissary and
25 to follow up with medical if problems. (Pl. Dep. 39:17-40:18.) Plaintiff’s medical condition was
26 never an emergency and any treatment could wait until the following day. (Dr. Moore Decl. ¶¶ 21,
27 36.)
28
1 Contrary to Plaintiff’s contention, Plaintiff admits that the first time he actually talked to Dr.
2 Moore after the lockdown was October 27, 2017, and at that time Dr. Moore wrote him a prescription.
3 (Pl. Dep. 90:5-17.) There is no claim or evidence that Dr. Moore had any influence over the
4 commissary and he had none. (Dr. Moore Decl. ¶ 17.) Indeed, the undisputed evidence shows that
5 Dr. Moore was not aware of the unavailability of OTC Prilosec during the lockdown. (Dr. Moore
6 Decl. at 8:1-11.) Further, when Dr. Moore learned of Plaintiff’s complaints, he wrote a prescription
7 and placed him in the Chronic Care program. Thus, there is no evidence to demonstrate that Dr.
8 Moore was deliberately indifference. Rather, it appears that Plaintiff contends Dr. Moore is liable as a
9 supervisor, which does not give rise to a constitutional violation. See Ashcroft v. Iqbal, 556 U.S. 662,
10 676 (2009) (vicarious liability is inapplicable to Bivens).
11 Even assuming medical staff made a mistake in failing to recognize a prescription for
12 omeprazole, the mistake does not demonstrate deliberate indifference on the part of Dr. Moore or any
13 other medical professional. The mere fact that Plaintiff may have previously been prescribed
14 omeprazole at prior institutions, but upon transfer to USP Atwater was required to purchase the
15 identical medication OTC, does not demonstrate deliberate indifference. Indeed, Plaintiff
16 acknowledges that he purchased OTC Prilosec on several occasions and then after lockdown status
17 and discovery that it would not be provided, Dr. Moore took prompt action and wrote a prescription
18 and placed him in Chronic Care because he was uncertain how long the commissary would be
19 unavailable due to the lockdown. The mere delay (not attributable to Dr. Moore) and/or negligence
20 does not give rise to a claim for relief. Thus, even viewing the evidence in the light most favorable to
21 Plaintiff and drawing all reasonable inferences in his favor, no reasonable juror could find that
22 Defendant Dr. Moore acted with deliberate indifference to his serious medical needs.
23 ///
24 ///
25 ///
26 ///
27 ///
28 ///
1 b. Defendant Alatary
2 It is undisputed that Defendant Alatary is not a medical provider, and he cannot prescribe any
3 medication. When Plaintiff talked to Alatary on October 16, 2017, it was during an escort to the
4 lockdown interview,2 and Plaintiff acknowledges that he did not complain about acid reflux pain at
5 that time, only that “they’re not selling [Prilosec] in the commissary.” (Pl. Dep. 81:5-98.) On October
6 16, 2017, Alatary simply happened to be in Plaintiff’s unit to help with escorts to the lockdown
7 interviews. In response to Plaintiff’s statement about the lack of Prilosec, Alatary told Plaintiff to talk
8 to the people in trust fund who run the commissary. As a non-medical provider, not in charge of
9 commissary, and not a member of Plaintiff’s unit team, Alatary’s statement to Plaintiff was
10 appropriate. In addition, three days later, on October 19, 2017, Alatary responded to Plaintiff’s BP-8
11 informal grievance in writing and advised him to seek medical treatment for his condition. (Pl. Dep.
12 83:19-86:17, Ex. 15.) Plaintiff was specifically advised that a prescription was required before an
13 inmate could be placed on Chronic Care, and if he felt medical care was necessary, sick call was
14 available on Monday, Tuesday, Thursday, and Friday during the breakfast move. (Pl. Dep. 83:19-
15 86:17.) This also was appropriate advice by Alatary. Because Plaintiff had access to medical
16 providers and he did not have a prescription medication or Chronic Care assignment, Alatary as a non-
17 medical provider cannot second guess the opinions of medical professionals. This being the case,
18 there is no evidentiary basis for finding deliberate indifference by Defendant Alatary.
19 With regard to Plaintiff’s claim that Alatary, along with Castaneda, responded to his
20 complaints about acid reflux on October 26, 2017, only Castaneda was a member of Plaintiff’s unit
21 team who investigated the claim and advised the medical team. It is undisputed that Alatary was not a
22 member of Plaintiff’s unit team and there is no evidence that he did anything to interfere with any
23 medical recommendation or treatment. Indeed, Plaintiff acknowledged that Castaneda was
24 sympathetic and did what he could. (Pl. Dep. 75:23-76:5.) As a non-member of the unit team, it was
25
26
27 2 Alatary had been reassigned from his regular duties as a Health Services Administrator to escort inmates to an interview
room. (Pl. Dep. at 79:19-24; 82:10-23.) The “lockdown interview” was part of the security investigation by BOP security
28
1 reasonable for Alatary to rely on Castaneda’s recommendation. Accordingly, Plaintiff has failed to
2 establish a violation of the Eighth Amendment against Defendant Alatary.
3 c. Defendant Castaneda
4 It is undisputed that Defendant Castaneda is a case manager in Plaintiff’s housing unit, and he
5 is not a medical provider and cannot prescribe any medication. As a case manager in Plaintiff’s
6 housing unit, he is part of Plaintiff’s unit team. On October 11, 2017, Plaintiff submitted a special BP-
7 9 request for administrative remedy directly to the Western Regional Office in Stockton, California,
8 alleging a “sensitive” need for “emergency medical treatment.”3 (Castaneda Decl, Ex. 3, ECF No. 23-
9 2.) In pertinent part, Plaintiff complained of acid reflux and the need for “something more than
10 Prilosec an (OTC).” Id. Although Plaintiff stated “no commissary” he did not allege that he did not
11 have OTC Prilosec or that it was unavailable. Id. Plaintiff’s administrative request was denied by the
12 Western Regional Office as not “sensitive.” Id. Plaintiff was advised to file his request at the
13 appropriate level via the regular procedures. (Castaneda Decl. ¶ 10, Ex. 3.) However, Plaintiff failed
14 to follow the directions provided. (Castaneda Decl. ¶ 11.)
15 On October 26, 2017, Plaintiff complained to his unit team that he was having chest pains from
16 acid efflux.4 (Pl. Dep. 73:6-74:8.) As a member of Plaintiff’s unit team, Castaneda responded to
17 Plaintiff’s complaints. Castaneda altered the medical department as he is not a medical provider. (Pl.
18 Dep. 113:18-21.) At his deposition, Plaintiff indicated Castaneda’s response was “really good,”
19 stating:
20 Castenada [sic] was really good. Let me be honest about it. Castenada [sic] was really good
about it. He did what he could. He went to the command center. He talked to them. He asked
21
22
23 3 Inmates are generally required to complete an initial informal grievance to BOP officials at USP Atwater (using the BP-8
form) before proceeding to the formal BP-9 review at the Regional Office. 28 C.F.R. § 542.14. An exception is made for
24 “sensitive” matters if an inmate’s safety or well-being would be placed in danger. Id. at § 542.14(d). (Castaneda Decl.,
Ex. 3.) However, contrary to Plaintiff’s belief, nothing in his BP-9 did suggest that his well-being was in danger. Id.
25
4 Plaintiff’s claim that there is no evidence this incident took place on October 26, 2017, is contrary to the evidence
26 presented. Plaintiff indicated that his “emergency” occurred the day before he wrote the complaint to the District Court.
(Pl. Dep. 75:7-16.) Moreover, the undisputed evidence demonstrates that Castaneda handled the response for the unit
27 team. (Pl. Dep. 74:10-76:20; Castaneda Decl. ¶ 4.) Castaneda investigated and alerted medical. (Pl. Dep. 113:18-21.)
Furthermore, on October 27, 2017, Dr. Moore saw Plaintiff and wrote a prescription. (Dr. Moore Decl. 7:9-17, Ex. 1.)
28
1 them if they were going to sell Prilosec. He came back to me . . . he was responsive. He did
his part of it.
2
(Pl. Dep. 75:23-76:5.) Plaintiff saw Dr. Moore the following day who wrote a prescription. (Pl. Dep.
3
90:1-17, Ex. 16.)
4
In his opposition, Plaintiff contends that there was a “second” contact with Defendant
5
Castaneda and cites to Defendant’s answer. The answer, in relevant part, states:
6
Defendant admits that, at some point during the lockdown, Plaintiff complained to him about
7
the inability to go to Commissary because he needed to buy OTC “heartburn” medicine.
8 Defendant further admits that he did tell Plaintiff that he would see what he could find out for
him in terms of when inmates might be permitted to purchase items from the Commissary.
9 Defendant admits that he spoke to a member of the Command Center Team that handled
logistics during the lockdown to find out what the schedule for Commissary was and that he
10
learned that the Commissary list was going to be very limited.
11
(Ans. at 2:14-24; ECF No. 39.)
12
In addition, the answer states:
13
Defendant is without knowledge or information sufficient to form a belief as to the truth of
14 Plaintiff’s allegation that he complained of chest pains to Unit Officer Prewitt on an
15 unspecified date and, on that basis, denies the same. Defendant denies that there was an
occasion when he and Health Services Administrator David Alatary responded with Unit
16 Officer Prewitt to Plaintiff’s cell. Defendant avers that there was an occasion when he was
making rounds in the Housing Unit when Plaintiff complained to him about “heartburn” and
17 that, because the Plaintiff did not appear to be in distress; was standing upright while talking to
him; and was not showing any outward signs of chest pains, it did not appear to him to be a
18
medical emergency and, for that reason, he advised Plaintiff that he would let medical know.
19 Defendant further avers that he notified the appropriate medical personnel so that they would
be aware and alert for any issues. Finally, Defendant avers that he returned to Plaintiff’s cell
20 and advised him that he had relayed his concerns to Health Services.
21
Id. at 5:1-28. Furthermore, at his deposition, Plaintiff identified only one conversation with Castaneda
22
and denied there were any others:
23
Q. Have we discussed all of the contacts that you had with any of the defendants in this
24 case during the relevant time from August 22nd, 2017 through say the end of October 2017?
A. To the best of my recollection.
25
(Pl. Dep. 118:12-16.) In the first amended complaint, Plaintiff contends that he talked with Castaneda
26
“a day or so” before the October 26, 2017, incident and explained his symptoms and lack of OTC
27
Prilosec. (First Amd. Compl. at pp.3-4; ECF No. 14.) However, Plaintiff’s allegations demonstrate
28
1 || that Castaneda returned to his cell a day or so later and had talked to the trust found administrator anc
2 || Warden about the issue. (Id. at p. 4.) Plaintiffs allegations demonstrate that Castaneda was willing 1
3 || investigate the matter and attempted to help Plaintiff with his complaints about acid reflux. Thus,
4 || even assuming the validity of Plaintiff's allegations, there is no evidence that Castaneda acted with
5 || “deliberate indifference.”
6 3. Qualified Immunity
7 Because the Court has found that the conduct alleged by Plaintiff does not state a constitution:
8 || deprivation, the Court need not address Defendants’ arguments for qualified immunity.
9 IV.
10 ORDER AND RECOMMENDATION
11 Based on the foregoing, the Clerk of the Court is HEREBY ORDERED to correct the spelling
12 || of Defendants Alatary and Castaneda names on court docket by substituting “Alatary” for “Alitary”
13 || and “Castaneda” for “Castenada”.
14 Further, it is HEREBY RECOMMENDED that Defendants’ motion for summary judgment b
15 || granted.
16 This Findings and Recommendation will be submitted to the United States District Judge
17 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within thirty (30) days aft
18 || being served with this Findings and Recommendation, the parties may file written objections with the
19 || Court. The document should be captioned “Objections to Magistrate Judge’s Findings and
20 || Recommendation.” The parties are advised that failure to file objections within the specified time mz
21 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)
22 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
23
24 ||IT IS SO ORDERED.
A (ee
25 |! pated: _ December 17, 2019 OF
26 UNITED STATES MAGISTRATE JUDGE
27
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