(PC) Johnson v. Kelley

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 GILROY E. JOHNSON, No. 2:18-cv-1969 JAM DB P

12 Plaintiff,

13 v. FINDINGS AND RECOMMENDATIONS

14 LEE KELLEY,

15 Defendant.

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17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

18 action pursuant to 42 U.S.C. § 1983. Plaintiff alleges defendant was deliberately indifferent to his

19 serious medical needs in violation of the Eighth Amendment. Before the court is defendant’s

20 motion for summary judgment. For the reasons set forth below, the court will recommend

21 defendant’s motion be granted.

22 BACKGROUND

23 This case is proceeding on plaintiff’s original complaint, filed here on July 13, 2018 (ECF

24 No. 1.) Plaintiff alleged that in May and August 2017 while he was incarcerated at California

25 State Prison-Sacramento (“CSP-Sac”), he was seen by defendant Kelly, a registered nurse,

26 because he was experiencing severe pain in his right shoulder. When he asked to be referred to a

27 doctor, Kelly refused to do so, telling him that the doctor was very busy. As a result, plaintiff

28 contends that he suffered several months of severe pain until he was transferred to Kern Valley

1 State Prison (“KVSP”). He was seen by a doctor at KVSP and diagnosed with impingement

2 syndrome. Plaintiff seeks damages for his pain and suffering.

3 On screening, the court found plaintiff stated a potentially cognizable claim against

4 defendant for deliberate indifference to his serious medical needs in violation of the Eighth

5 Amendment. (ECF No. 8.) Defendant filed an answer to the complaint on January 29, 2019.

6 (ECF No. 17.) On January 2, 2020, defendant filed the present motion for summary judgment.

7 (ECF No. 39.) Plaintiff filed an opposition (ECF Nos. 42, 43) and defendant filed a reply (ECF

8 No. 44).

9 MOTION FOR SUMMARY JUDGMENT

10 Defendant argues that she was not deliberately indifferent to plaintiff’s shoulder pain and

11 that she is entitled to qualified immunity.

12 I. Summary Judgment Standards under Rule 56

13 Summary judgment is appropriate when the moving party “shows that there is no genuine

14 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

15 Civ. P. 56(a). Under summary judgment practice, the moving party “initially bears the burden of

16 proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litigation, 627

17 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The

18 moving party may accomplish this by “citing to particular parts of materials in the record,

19 including depositions, documents, electronically stored information, affidavits or declarations,

20 stipulations (including those made for purposes of the motion only), admissions, interrogatory

21 answers, or other materials” or by showing that such materials “do not establish the absence or

22 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to

23 support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B).

24 When the non-moving party bears the burden of proof at trial, “the moving party need

25 only prove that there is an absence of evidence to support the nonmoving party’s case.” Oracle

26 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325.); see also Fed. R. Civ. P. 56(c)(1)(B).

27 Indeed, summary judgment should be entered, after adequate time for discovery and upon motion,

28 against a party who fails to make a showing sufficient to establish the existence of an element

1 essential to that party's case, and on which that party will bear the burden of proof at trial. See

2 Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the

3 nonmoving party’s case necessarily renders all other facts immaterial.” Id. In such a

4 circumstance, summary judgment should be granted, “so long as whatever is before the district

5 court demonstrates that the standard for entry of summary judgment . . . is satisfied.” Id. at 323.

6 If the moving party meets its initial responsibility, the burden then shifts to the opposing

7 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita

8 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the

9 existence of this factual dispute, the opposing party typically may not rely upon the allegations or

10 denials of its pleadings but is required to tender evidence of specific facts in the form of

11 affidavits, and/or admissible discovery material, in support of its contention that the dispute

12 exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. However, a complaint that

13 is submitted in substantial compliance with the form prescribed in 28 U.S.C. § 1746 is a “verified

14 complaint” and may serve as an opposing affidavit under Rule 56 as long as its allegations arise

15 from personal knowledge and contain specific facts admissible into evidence. See Jones v.

16 Blanas, 393 F.3d 918, 923 (9th Cir. 2004); Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir.

17 1995) (accepting the verified complaint as an opposing affidavit because the plaintiff

18 “demonstrated his personal knowledge by citing two specific instances where correctional staff

19 members . . . made statements from which a jury could reasonably infer a retaliatory motive”);

20 McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987); see also El Bey v. Roop, 530 F.3d

21 407, 414 (6th Cir. 2008) (Court reversed the district court’s grant of summary judgment because

22 it “fail[ed] to account for the fact that El Bey signed his complaint under penalty of perjury

23 pursuant to 28 U.S.C. § 1746. His verified complaint therefore carries the same weight as would

24 an affidavit for the purposes of summary judgment.”). The opposing party must demonstrate that

25 the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the

26 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury

27 could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S.

28 242, 248 (1986).

1 To show the existence of a factual dispute, the opposing party need not establish a

2 material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be

3 shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.”

4 T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987).

5 Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in

6 order to see whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (citations

7 omitted).

8 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the

9 court draws “all reasonable inferences supported by the evidence in favor of the non-moving

10 party.” Walls v. Central Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the

11 opposing party’s obligation to produce a factual predicate from which the inference may be

12 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985),

13 aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing

14 party “must do more than simply show that there is some metaphysical doubt as to the material

15 facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the

16 nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation

17 omitted).

18 II. Legal Standards for Eighth Amendment Medical Claim

19 The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S.

20 Const. amend. VIII. The unnecessary and wanton infliction of pain constitutes cruel and unusual

21 punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986);

22 Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).

23 Neither accident nor negligence constitutes cruel and unusual punishment, as “[i]t is obduracy

24 and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited

25 by the Cruel and Unusual Punishments Clause.” Whitley, 475 U.S. at 319.

26 What is needed to show unnecessary and wanton infliction of pain “varies according to

27 the nature of the alleged constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 5 (1992)

28 (citing Whitley, 475 U.S. at 320). In order to prevail on a claim of cruel and unusual punishment,

1 however, a prisoner must allege and prove that objectively he suffered a sufficiently serious

2 deprivation and that subjectively prison officials acted with deliberate indifference in allowing or

3 causing the deprivation to occur. Wilson, 501 U.S. at 298-99.

4 For an Eighth Amendment claim arising in the context of medical care, the prisoner must

5 allege and prove “acts or omissions sufficiently harmful to evidence deliberate indifference to

6 serious medical needs.” Estelle, 429 U.S. at 106. An Eighth Amendment medical claim has two

7 elements: “the seriousness of the prisoner's medical need and the nature of the defendant's

8 response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on

9 other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

10 A medical need is serious “if the failure to treat the prisoner's condition could result in

11 further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974

12 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include

13 “the presence of a medical condition that significantly affects an individual’s daily activities.” Id.

14 at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the

15 objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S.

16 825, 834 (1994).

17 If a prisoner establishes the existence of a serious medical need, he must then show that

18 prison officials responded to the serious medical need with deliberate indifference. See Farmer,

19 511 U.S. at 834. In general, deliberate indifference may be shown when prison officials deny,

20 delay, or intentionally interfere with medical treatment, or may be shown by the way in which

21 prison officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th

22 Cir. 1988).

23 Before it can be said that a prisoner's civil rights have been abridged with regard to

24 medical care, “the indifference to his medical needs must be substantial. Mere ‘indifference,’

25 ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter

26 Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06); see also

27 Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere negligence in

28 diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth

1 Amendment rights.”); McGuckin, 974 F.2d at 1059 (same). Deliberate indifference is “a state of

2 mind more blameworthy than negligence” and “requires ‘more than ordinary lack of due care for

3 the prisoner's interests or safety.’” Farmer, 511 U.S. at 835.

4 Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S.

5 at 104-05. To establish a claim of deliberate indifference arising from delay in providing care, a

6 plaintiff must show that the delay was harmful. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th

7 Cir. 2002); Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at 1059;

8 Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Hunt v. Dental Dep't, 865 F.2d 198,

9 200 (9th Cir. 1989); Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir.

10 1985). In this regard, “[a] prisoner need not show his harm was substantial; however, such would

11 provide additional support for the inmate's claim that the defendant was deliberately indifferent to

12 his needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

13 Finally, mere differences of opinion between a prisoner and prison medical staff or

14 between medical professionals as to the proper course of treatment for a medical condition do not

15 give rise to a § 1983 claim. See Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330,

16 332 (9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662

17 F.2d 1337, 1344 (9th Cir. 1981).

18 III. Statements of Facts

19 Defendants filed a Statement of Undisputed Facts (“DSUF”) as required by Local Rule

20 260(a). (ECF No. 39-2.) In his opposition brief, plaintiff provided a “Statement of Undisputed

21 Material Fact.” (ECF No. 42 at 2-7) Plaintiff filed two additional documents which list his

22 “undisputed” facts. (ECF Nos. 43 (hereafter “PSUF”) and 43-2.) Each of these three statements

23 appears to recite the same list of facts plaintiff feels are undisputed. Plaintiff also submitted a

24 “Statement of Disputed Facts” in which he addresses some of the facts in the DSUF. (ECF No.

25 43-1.)

26 In light of plaintiff’s pro se status, the court has reviewed plaintiff’s filings in an effort to

27 discern whether he denies any material fact asserted in defendants’ DSUF or has shown facts that

28 ////

1 are not opposed by defendants. The court considers the statements plaintiff made in his verified

2 complaint and in his sworn statements, of which he has personal knowledge.

3 Below, the court lists the undisputed, material facts. Disputed material facts are addressed

4 in the discussion of the merits of defendants’ motion below.

5 • In May and August 2017, plaintiff was an inmate and defendant was a registered

6 nurse at CSP-Sac. (Comp. (ECF No. 1); DSUF #2.)

7 • On May 18, 2017, plaintiff submitted a health care service request form. He

8 complained of having “severe pain” in his right shoulder for about a month. (ECF

9 No. 39-5 at 6.)

10 • In response to the request, defendant saw plaintiff on May 19 or 22, 2017. (DSUF

11 #2; PSUF at 1.1)

12 • According to defendant’s notes from the exam, plaintiff told defendant that he

13 exercised 2-3 hours per day and said his shoulder might be hurting due to “too

14 many dips.” (DSUF #3; ECF No. 39-5 at 17.) Plaintiff does not dispute those

15 statements. Plaintiff contends he also told defendant that his shoulder pain was

16 preventing him from functioning normally in his daily activities. (PSUF at 1.)

17 Defendant does not dispute that statement.

18 • In her notes from the exam, defendant also wrote that plaintiff’s shoulder showed

19 no signs of swelling or any deformities and that he had full range of motion. (ECF

20 No. 39-5 at 19.)

21 • At the time defendant saw plaintiff in May, plaintiff was already receiving

22 oxcarbazepine for chronic right hip pain. He also had access to nonsteroidal anti-

23 inflammatory medications and Tylenol free of charge without a prescription.

24 (DSUF # 8.)

25 ////

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27 1 The parties dispute the exact dates that plaintiff was seen by defendant in May and August 2017.

The precise dates of those visits are not material to plaintiff’s claims so both dates are included

28 here.

1 • At the May appointment, defendant provided plaintiff with information regarding

2 shoulder pain that included the recommendation that he rest his shoulder. (ECF

3 No. 39-5 at 11-13.)

4 • On July 10, 2017, plaintiff saw his primary care physician for a rash. The

5 physician’s notes do not reflect any concerns expressed by plaintiff about shoulder

6 pain. (DSUF #12, 13.)

7 • On August 10, 2017, plaintiff submitted a health care service request form. He

8 complained of pain in his right hip and asked to see a doctor. (DSUF #14; PSUF

9 at 3; ECF No. 39-5 at 5.)

10 • On August 14 or 15, 2017, defendant saw plaintiff in response to that request.

11 (DSUF #15; PSUF at 4.)

12 • At that August visit, plaintiff raised the issue of his shoulder pain in addition to his

13 hip pain. (PSUF at 4.)

14 • According to plaintiff, defendant stated during her exam of his shoulder that it felt

15 bruised. (PSUF at 4.) Defendant does not dispute that statement.

16 • Plaintiff was not referred to a doctor or provided any additional medication as a

17 result of the August exam. (PSUF at 4.)

18 • On September 22, 2017, plaintiff was transferred to KVSP. (DSUF #24; PSUF at

19 5.)

20 • On November 1, 2017, plaintiff submitted a health care services request form

21 regarding pain in his right shoulder. (DSUF #26; PSUF at 5.)

22 • In response to the request, plaintiff was seen by a nurse at KVSP and had x-rays of

23 his shoulder. (DSUF #27-35; PSUF at 5-6.)

24 • The x-rays were “negative” and did not reveal any problems with plaintiff’s

25 shoulder. (DSUF #34; PSUF at 6.)

26 • At a November 17, 2017 appointment with Dr. Wang at KVSP, Dr. Wang

27 diagnosed plaintiff with shoulder impingement syndrome. He increased plaintiff’s

28 dose of oxcarbazepine, advised plaintiff to continue using capsaicin cream, and

1 advised plaintiff to continue range of motion exercises. (DSUF #36-39; PSUF at

2 6.)

3 • On December 14, 2017, Dr. Wang gave plaintiff a steroid injection. (DSUF #40;

4 PSUF at 6.) Plaintiff reported that the steroid injection helped his pain. (PSUF at

5 6.)

6 IV. Analysis

7 Plaintiff complains that defendant failed to do two things at the May and August 2017

8 appointments. First, he contends she should have ordered an x-ray. Second, he contends

9 defendant should have referred him to a doctor. The undisputed facts set out above show that the

10 x-ray taken in November 2017 was “negative.” Therefore, whether or not defendant should have

11 ordered an x-ray, plaintiff suffered no injury as a result of her failure to do so. He has not

12 demonstrated that a negative x-ray would have resulted in different medical care. Because there

13 are no disputed material facts on this point, this court will not consider it further.

14 With respect to plaintiff’s claim that defendant should have referred him to a doctor,

15 plaintiff fails to show defendant acted with deliberate indifference to a serious medical need. For

16 purposes of this analysis, this court will assume plaintiff’s shoulder pain was sufficiently serious

17 under the Eighth Amendment. The question, then, is whether there are material disputed facts

18 showing that defendant acted with deliberate indifference when she refused to refer plaintiff to a

19 doctor for his pain.

20 Plaintiff focuses on defendant’s alleged statements at his May exam that he was frequently

21 seen by medical staff and “there is never anything wrong with you.” (PSUF at 1.) He also

22 focuses on defendant’s alleged responses to his request to see a doctor at both the May and

23 August exams. Plaintiff alleges defendant stated both times, “the doctor’s line is full;” “he

24 doesn’t want to see you;” and “he’s very busy.” (PSUF at 2, 4.) While these statements could

25 demonstrate that defendant was acting with deliberate indifference, plaintiff must also show that

26 defendant’s conduct was “medically unacceptable under the circumstances.” Jackson v.

27 McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). He has not done so.

28 ////

1 Defendant presents the declaration of Dr. Bennett Feinberg, the Chief Medical Consultant

2 for the California Correctional Health Care Services (“CCHCS”) Office of Legal Affairs. (ECF

3 No. 39-4.) Dr. Feinberg reviewed plaintiff’s medical records. Based on those records, Dr.

4 Feinberg opined that defendant’s failure to refer plaintiff to a doctor in May and August of 2017

5 did not worsen or prolong plaintiff’s shoulder condition. (Id. ¶18.) According to Dr. Feinberg,

6 Shoulder impingement syndrome is not a serious medical condition.

It is a common type of tendinitis generally caused by overuse,

7 consistent with Plaintiff’s experience after exercising too much. The

initial treatment is similar to other overuse tendinitis syndromes such

8 as tennis elbow: rest, especially avoiding or decreasing activities that

cause pain; and taking NSAIDs to help reduce pain and

9 inflammation.

10 (Id.)

11 Defendant also presents the declaration of a registered nurse, R. Rada, who is the Nurse

12 Consultant Program Review Lead for CCHCS, Nursing Services Branch. (ECF No. 39-6.) She

13 reviewed plaintiff’s medical records and opined that defendant’s “assessment and interventions”

14 during the May 2017 and August 2017 appointments “were appropriate and a referral to a PCP

15 was not warranted at [either] time.” (Id. ¶¶ 4, 5.)

16 Plaintiff provides nothing besides his own opinion to contradict the medical opinions of

17 Dr. Feinberg, RN R. Rada, and defendant. Mere differences of opinion between a prisoner and

18 prison medical staff as to the proper course of treatment for a medical condition do not give rise

19 to a § 1983 claim. See Toguchi, 391 F.3d at 1058. Moreover, plaintiff did see a physician in July

20 2017. He does not contend that he discussed his shoulder pain at that visit. The physician’s notes

21 reflect no discussion of plaintiff’s shoulder pain. Plaintiff’s complaint that he suffered “months”

22 of pain as a result of defendant’s refusal to refer him to a doctor is belied by this undisputed fact.

23 Finally, the fact that plaintiff eventually did see a doctor in November 2017 and was later

24 provided a steroid injection does not demonstrate that it was medically unacceptable prior to that

25 time to recommend that plaintiff rest his shoulder and try anti-inflammatory medications. This is

26 the conservative course of initial treatment described by Dr. Feinberg.

27 In sum, plaintiff fails to raise issues of material fact regarding defendant’s conduct. He

28 does not show that the recommendations to rest his shoulder were medically unacceptable and

1 | that defendant acted with deliberate indifference to his shoulder pain. See Shamburger v.

2 | Risenhoover, 471 F. App’x 596, 597 (9th Cir. 2012) (affirming summary judgment where

3 | defendant-nurse allegedly failed to refer plaintiff to a doctor because plaintiffs disagreement with

4 | the nurse’s chosen course of treatment was not sufficient to constitute deliberate indifference);

5 | Hunnicutt v. Cate, No. C 12-380 JST (PR), 2013 WL 4776527, at * (N.D. Cal. Sept. 5, 2013) (“A

6 | nurse’s failure to refer an inmate to a doctor 1s evidence of indifference to a serious medical need

7 | only when the inmate’s symptoms or other objective evidence indicate that a doctor’s care is

8 || required.”); Washington v. Harrington, No. 1:11-cv-0848-MJS (PC), 2012 WL 3763964, at *5

9 | (E.D. Cal. May 24, 2012) (finding no deliberate indifference where a nurse allegedly failed to

10 | refer prisoner to a doctor after providing care in response to complaints of difficulty breathing and

11 | coughing), aff'd, 549 F. App’x 679 (9th Cir. 2013). Accordingly, this court will recommend

12 || defendant’s motion for summary judgment be granted.”

13 For the foregoing reasons, IT IS HEREBY RECOMMENDED that defendant’s motion

14 | for summary judgment (ECF No. 39) be granted.

15 These findings and recommendations will be submitted to the United States District Judge

16 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days

17 || after being served with these findings and recommendations, either party may file written

18 | objections with the court. The document should be captioned “Objections to Magistrate Judge's

19 | Findings and Recommendations.” The parties are advised that failure to file objections within the

20 | specified time may result in waiver of the right to appeal the district court’s order. Martinez v.

21 | Yist, 951 F.2d 1153 (9th Cir. 1991).

22 | Dated: March 12, 2020

23

24 | DLB:9/DLB1/prisoner-civil rights/john1969.msj fr

5 ORAH BARNES

UNITED STATES MAGISTRATE JUDGE

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27 | -—TT_

Because this court finds summary judgment appropriate on the merits of plaintiff's claims, it

28 | need not reach the issue of qualified immunity.

11