stating that prisoner may demonstrate deliberate indifference if prison officials relied on 1 the contrary opinion of a non-treating physician
How later courts described this case
- stating that prisoner may demonstrate deliberate indifference if prison officials relied on 1 the contrary opinion of a non-treating physician
- “[b]road 12 generalities in the articulation of the constitutional right at issue . . . are insufficient to identify a 13 clearly established right . . .”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 DONALD CLARENCE CHAMBERS, No. 2:19-CV-0582-JAM-DMC
12 Plaintiff,
13 v. FINDINGS AND RECOMMENDATIONS
14 JIM BENTLEY, et. al,
15 Defendants.
16
17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
18 42 U.S.C. § 1983. Pending before the Court are defendants’ motion for summary judgment (ECF
19 No. 21); plaintiff’s opposition (ECF No. 24); and defendants’ reply (ECF No. 25).
20
21 I. PLAINTIFF’S ALLEGATIONS
22 Plaintiff, Donald Clarence Chambers, is an inmate at California State Prison,
23 Solano (CSP Solano)1. Plaintiff names the following defendants: (1) Doctor Jim Bentley2,
24 Physician at CSP Solano, (2) Miguel Aguilera, Registered Dietician at CSP Solano, and Doctor
25 Martin Kuersten, Chief Medical Executive at CSP Solano.
26
27 1 Plaintiff erroneously refers to California State Prison Solano as Solano State
Prison, Vacaville in his original complaint.
28 2 Doctor Bentley is deceased. See ECF No. 12.
1 Plaintiff alleges that defendants violated his Eighth Amendment rights by
2 repeatedly refusing to provide him with a soy-free diet despite his soy allergy. See ECF No. 1, pg.
3 5. Plaintiff claims he saw Dr. Bentley for symptoms reminiscent of a soy allergy on April 20,
4 2018, April 27, 2018, and June 5, 2018. See ECF No. 24, pg. 2. Plaintiff claims he first met with
5 defendant Aguilera on June 14, 2018. See ECF No. 24, pg. 2. Plaintiff alleges that Aguilera told
6 plaintiff that plaintiff could not get on a soy-free diet until his soy allergy was confirmed through
7 a medical test. Id.
8 Plaintiff claims that Doctor Mo, who is not named as a defendant, ordered a
9 soybean allergy test for plaintiff on June 29, 2018. Id. Plaintiff alleges he had a blood test for the
10 soybean allergy test on July 3, 2018. Id. Plaintiff alleges that Doctor Bentley told plaintiff that he
11 tested positive for a soybean allergy on the IgG test with a 2.1 score on July 12, 2018. Id. Plaintiff
12 also alleges that Doctor Bentley ordered him a soy-free therapeutic diet at this time. Id.
13 Plaintiff claims he went to retrieve his first therapeutic meal on July 13, 2018. See
14 ECF No. 1, pg. 4. Plaintiff alleges that he suffered the same side effects from the therapeutic meal
15 as the mainline prison meals. Id. Plaintiff claims that he realized the kitchen had been providing
16 him gluten-free meals rather than soy-free meals on July 14, 2018. Id. Plaintiff alleges that the
17 kitchen staff told him they were instructed to provide him with gluten-free meals by the dietician
18 on July 14, 2018, July 15, 2018, July 16, 2018, and July 17, 2018. Id. Plaintiff claims that he
19 began collecting the labels on his meals on July 18, 2018. Id.
20 Plaintiff claims that on July 25th, 2018, a member of the kitchen staff handed him
21 a bag labeled “no soy” that contained a meal with soy products. See ECF No. 1, pg. 3. Plaintiff
22 claims that the kitchen staff told him that Aguilera instructed them to give the bag to plaintiff. Id.
23 Plaintiff alleges that Doctor Bentley cancelled his soy-free diet on July 26, 2018 by falsely
24 claiming that plaintiff refused the meals. See ECF No. 1, pg. 3. Plaintiff claims that defendant
25 Doctor Kuersten ordered a second allergy test for plaintiff on August 22, 2018. Id. Plaintiff
26 alleges that although he underwent a blood test, Dr. Kuersten stopped the blood analysis from
27 occurring. Id. Plaintiff claims that Dr. Keursten then fabricated a false report from Quest
28 Diagnostics stating that plaintiff did not have a soy allergy. See ECF No. 1, pg. 4.
1 Plaintiff claims he once again saw Dr. Bentley on September 11, 2018. See ECF
2 No. 1, pg. 4. Plaintiff alleges that Dr. Bentley provided him with a copy of Dr. Kuersten’s
3 medical report and stated that the new allergy test indicated plaintiff did not have an allergy to
4 soy. Id. Plaintiff claims that he asked Dr. Bentley why he discontinued plaintiff’s therapeutic diet.
5 Id. Plaintiff claims Dr. Bentley replied that he cancelled the diet because plaintiff did not have a
6 soy allergy, and plaintiff retorted that Dr. Bentley cancelled his diet a month before the most
7 recent test results arrived. Id. Plaintiff claims that Dr. Bentley then made him leave the medical
8 facility. Id.
9 Plaintiff claims he contacted Quest Diagnostics for his test results on October 11,
10 2018. See ECF No. 1, pg. 4. Plaintiff claims that although Quest initially refused to speak to him,
11 a Quest representative eventually told plaintiff that there were no test results on file under his
12 name. See ECF No. 1, pg. 5.
13
14 II. PROCEDURAL HISTORY
15 On April 3, 2019, plaintiff filed his prisoner civil rights complaint against Bentley,
16 Aguilera, and Kuersten, alleging that their conduct violated his right to medical treatment under
17 the Eighth Amendment. See ECF No. 1. The summons for Doctor Bentley was not executed
18 because he was deceased. See ECF No. 12. On September 3, 2019, defendants filed an answer to
19 plaintiff’s civil rights complaint. See ECF No. 19. Defendants then filed their motion for
20 summary judgment on November 6, 2019. See ECF No. 21. Plaintiff filed his opposition to
21 defendants’ motion for summary judgment on March 2, 2020. See ECF No. 24. Defendants
22 submitted their reply to plaintiff’s opposition to summary judgment on March 4, 2020. See ECF
23 No. 25. The Court now reviews defendants’ motion for summary judgment.
24 ///
25 ///
26 ///
27 ///
28 ///
1 III. STANDARD FOR SUMMARY JUDGMENT
2 The Federal Rules of Civil Procedure provide for summary judgment or summary
3 adjudication when “the pleadings, depositions, answers to interrogatories, and admissions on file,
4 together with affidavits, if any, show that there is no genuine issue as to any material fact and that
5 the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
6 standard for summary judgment and summary adjudication is the same. See Fed. R. Civ. P.
7 56(a), 56(c); see also Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). One of
8 the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. See
9 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under summary judgment practice, the
10 moving party
11 . . . always bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of “the pleadings,
12 depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any,” which it believes demonstrate the absence of a
13 genuine issue of material fact.
14 Id., at 323 (quoting former Fed. R. Civ. P. 56(c)); see also Fed. R. Civ. P. 56(c)(1).
15
If the moving party meets its initial responsibility, the burden then shifts to the
16
opposing party to establish that a genuine issue as to any material fact actually does exist. See
17
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to
18
establish the existence of this factual dispute, the opposing party may not rely upon the
19
allegations or denials of its pleadings but is required to tender evidence of specific facts in the
20
form of affidavits, and/or admissible discovery material, in support of its contention that the
21
dispute exists. See Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 n.11. The
22
opposing party must demonstrate that the fact in contention is material, i.e., a fact that might
23
affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S.
24
242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th
25
Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could
26
return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436
27
(9th Cir. 1987). To demonstrate that an issue is genuine, the opposing party “must do more than
28
1 simply show that there is some metaphysical doubt as to the material facts . . . . Where the record
2 taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no
3 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). It is sufficient that “the
4 claimed factual dispute be shown to require a trier of fact to resolve the parties’ differing versions
5 of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631.
6 In resolving the summary judgment motion, the court examines the pleadings,
7 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.
8 See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, see Anderson,
9 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the
10 court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587.
11 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to
12 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen
13 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir.
14 1987). Ultimately, “[b]efore the evidence is left to the jury, there is a preliminary question for the
15 judge, not whether there is literally no evidence, but whether there is any upon which a jury could
16 properly proceed to find a verdict for the party producing it, upon whom the onus of proof is
17 imposed.” Anderson, 477 U.S. at 251.
18
19 IV. THE PARTIES’ EVIDENCE
20 A. Defendants’ Evidence
21 Defendants’ motion for summary judgment is supported by the following sworn
22 declarations: 1) M. Kuersten, ECF No. 21-4 and 2) M. Aguilera, ECF No. 21-5. Defendants also
23 submit a statement of undisputed facts discussed below in section (IV)(C).
24 ///
25 ///
26 ///
27 ///
28 ///
1 B. Plaintiff’s Evidence
2 In support of his opposition, plaintiff relies on his own sworn declaration, ECF No.
3 24, pgs. 2-5, and the following exhibits:
4 Exhibit A Plaintiff’s Patient Discharge Instructions from
Medical Examinations on April 20, 2018, April 27,
5 2018, and June 12, 2018. ECF 24, pgs. 34-38.
6
Exhibit B Plaintiff’s Medical Consultation Order and Progress
7 Notes for May 24, 2018. Id. at 39-40.
8 Exhibit C Plaintiff’s Patient Discharge Instructions for June
29, 2018 and Medical Test Order for June 29, 2018.
9 Id. at 41-42.
10 Exhibit D Plaintiff’s IgG test results from July 9, 2018 and
Plaintiff’s Medical Orders from July 12, 2018. Id. at
11 43-45.
12 Exhibit E Plaintiff’s Patient Discharge Instructions for a
Medical Visit on September 11, 2018, Plaintiff’s
13 Medical Orders from August 22, 2018, and
Plaintiff’s IgE Test Results. Id. at 46-50.
14
Exhibit F Plaintiff’s Medical Order on May 24, 2018,
15 Plaintiff’s Food Labels, and a Brown Paper Bag
Labeled with Plaintiff’s Name and “No Soy”. Id. at
16 51-60.
17 Exhibit G Plaintiff’s Medical Order for August 23, 2018,
Plaintiff’s Miscellaneous Stool Test Results, a Copy
18 of Plaintiff’s Inmate Financial Statement Report,
Two Duplicative Copies of Plaintiff’s IgG Test
19 Results, Plaintiff’s Correspondences with Quest
Diagnostics, Letters Informing Plaintiff He Had
20 Exhausted All Prison Remedies, and Plaintiff’s
Medical Records for Other Providers from April 15,
21 2019, and April 9, 2020. Id. at 61-81.
22 Exhibit H Plaintiff’s External Movement History, an Index of
Institutions Providing Outpatient Therapeutic Diets,
23 Email Correspondence Between Bentley and
Aguilera, Medical Orders from July 25, 2018 to
24 July 27, 2018, Progress Notes from September 12,
2018, Duplicative Lab Order Request from August
25 22, 2018, Defendant Kuersten’s Responses to
Requests for Production of Documents, Defendant
26 Aguilera’s Response to Request for Admissions,
and Defendants’ Responses to Requests for
27 Production of Documents. Id. at 82-104.
28 ///
1 C. Defendant’s Statement of Undisputed Facts and Plaintiff’s
Response
2
The following are: 1) defendants’ Statement of Undisputed Facts, ECF No. 21-2;
3
and 2) plaintiff’s responses, ECF No. 24, pgs. 6-18.
4
5 Defendants’ Statement Plaintiff’s Response
6 1. Mr. Chambers has been housed at California 1. Deny. Plaintiff arrived at California State
State Prison, Solano since September 2015. Prison, Solano on August 10, 2017.
7
(Declaration of Dr. Kuersten in Support of (Exhibit H, pg. 823 in Opposition to Motion
8 Motion for Summary Judgment (Dr. Kuersten for Summary Judgment).
Decl.) ¶3)
9
10 2. Mr. Chambers was never diagnosed with a 2. Admit.
soy allergy prior to being at California State
11 Prison, Solano.
12 (Dr. Kuersten Decl. ¶3)
13
3. Mr. Chambers claimed that he had a soy 3. Deny. Plaintiff saw Dr. Bentley on April
14 allergy and requested a soy free diet in 2018. 20, 2018, April 27, 2018, June 5, 2018, and
June 12, 2018. Plaintiff claims he requested
15 (Declaration of M. Aguilera (Aguilera Decl.) an allergy test at each of those visits but Dr.
¶2.) Bentley refused.
16
(Exhibit A, pgs. 1-5 in Opposition to Motion
17 for Summary Judgment).
18
4. Dr. Bentley ordered an IgG test to evaluate 4. Deny. Dr. Bentley did not order plaintiff’s
19 soy sensitivity and referred Mr. Chambers to a IgG test. Plaintiff admits Dr. Bentley referred
dietician. him to a dietician.
20
(7/3/18 Quest Lab Result Exhibit A to Dr. (Exhibit C, pgs. 41-42 in Opposition to
21 Kuersten Decl., Aguilera Decl. ¶ 2.) Motion for Summary Judgment).
22
5. The IgG test is not used to diagnose 5. Deny. The IgG test is used to test diagnose
23 allergies. allergies.
24 (7/3/18 Quest Lab Result Exhibit A to Dr. (Exhibit D, pgs. 43-44, Exhibit G pgs. 75-79
Kuersten’s Decl., Dr. Kuersten’s Decl. ¶3, in Opposition to Motion for Summary
25 lines 13-16.) Judgment).
26
3 Plaintiff used his own numbering system for his exhibits and uses this numbering
27 system to cite to pages in his exhibit. The page numbers listed in this document reflect the page
number where the reference can be found within the ECF page count of plaintiff’s Opposition to
28 Motion for Summary Judgment.
1
6. The IgG test showed Mr. Chambers had a 6. Deny. Plaintiff is allergic to soy rather than
2 borderline sensitivity to soy. just having a borderline sensitivity to soy.
3 (7/3/18 Quest Lab Result Exhibit A to Dr. (Exhibit D, pg. 44, Exhibit G pg. 77in
Kuersten’s Decl., Dr. Kuersten Decl. ¶3, line Opposition to Motion for Summary
4 11.) Judgment).4
5
7. On June 14, 2018, registered dietician M. 7. Deny. Plaintiff did not meet with Aguilera
6 Aguilera met with Mr. Chambers. Mr. on June 14, 2018.
Chambers requested a soy free diet.
7 (Plaintiff claims that Aguilera has no record
(Aguilera Decl. ¶2.) of the meeting outside of his declaration.)
8
9 8. California State Prison, Solano does not 8. Deny. California State Prison is one of the
have a soy free diet available. 22 prisons that provide therapeutic diets
10 within the California prison system.
(Aguilera Decl. ¶2, line 25, Dr. Kuersten Decl.
11 ¶4, lines 20-21.) (Exhibit H, pg. 83 in Opposition to Motion
for Summary Judgment).
12
13 9. Dr. Bentley placed Mr. Chambers on a 9. Deny. Dr. Bentley did not place plaintiff on
gluten free diet in or around July 2018. a gluten-free diet on or around July 2018.
14
(Aguilera Decl. ¶3.) (Exhibit D1, pg. 44 in Opposition to Motion
15 for Summary Judgment).
16
10. On July 18, 2018, Mr. Chambers saw M. 10. Deny. Plaintiff did not see Dr. Aguilera
17 Aguilera and requested a soy free diet. on July 18, 2018.
18 (Aguilera Decl. ¶3.) (Plaintiff claims that Aguilera has no
evidence outside his personal declaration).
19
11. M. Aguilera followed up with Chief 11. Deny. M. Aguilera did not follow up with
20 Medical Executive Dr. Kuersten Dr. Kuersten and Dr. Benltey about the
meeting and request for a soy diet.
21 (Aguilera Decl. ¶4, Dr. Kuersten Decl. ¶3,
lines 5-6, ¶4, lines 17-18.) (Plaintiff claims that M. Aguilera has no
22 evidence this meeting took place beyond his
personal declaration).
23
24 12. Dr. Kuersten reviewed the IgG test result. 12. Deny. Dr. Kuersten did not review the
IgG results from the test plaintiff took on July
25 (Dr. Kuersten Decl. ¶3, line 11.) 3, 2018 because if he did he would have
understood that plaintiff is allergic to soy.
26
27
4 Plaintiff erroneously wrote pg. 76 in his Disputed Facts section. However, he
28 presumably refers to pg. 78, which contains the information he references.
1 (Plaintiff claims Kuersten has not provided
any documentation or medical records
2 showing he received the test and refused to
have the special soy-free diet provided as
3 ordered by Dr. Bentley).
4
5 13. Dr. Kuersten determined that the IgG test 13. Deny. IgG test is reliable and the IgE test
is not a reliable test to determine food allergy is not more reliable for diagnosing food
6 as it can have false positives. Based on his allergies.
review of medical literature, Dr. Kuersten
7 determined that the IgE test is a more reliable (Dr. Kuersten has provided no evidence that
test for diagnosing food allergy. the IgG test is not reliable or that the IgE is a
8 more reliable test for diagnosing food
(Dr. Kuersten Decl., ¶ 3, lines 13-16.) allergies.)
9
10 14. On July 26, 2018, Dr. Kuersten advised Dr. 14. Deny. Dr. Bentley ordered that plaintiff
Bentley to discontinue the gluten free diet be placed on a soy free medical diet, not a
11 because it would not eliminate soy from Mr. gluten free diet. Dr. Bentley discontinued
Chambers’s diet. plaintiff’s soy free diet on the false grounds
12 that plaintiff refused the food. In actuality, the
(Dr. Kuersten Decl., ¶ 4, lines 19-20.) soy free diet was discontinued because Dr.
13 Kuersten and M. Aguilera refused to order
and provide soy free meals to plaintiff.
14
(Exhibit D, pgs. 44-45 in Opposition to
15 Motion for Summary Judgment).
16
17 15. On August 22, 2018, Dr. Kuersten ordered 15. Deny. The blood test taken on August 22,
an IgE blood test to determine if Mr. 2018 was never sent to the laboratory.
18 Chambers had a soy allergy. Plaintiff admits that Dr. Kuersten ordered a
blood test on August 22, 2018.
19 (Dr. Kuersten Decl., ¶ 6, Exhibit 3, Quest
Diagnostic Test Results.) (Exhibit E, pgs. 46-50 in Opposition to
20 Motion for Summary Judgment).
21
16. The IgE test was performed on August 23, 16. Deny. Although plaintiff’s had blood
22 2018. taken on August 22, 2018, the sample never
went to Quest Diagnostics. Dr. Kuersten
23 (Dr. Kuersten Decl., ¶6, Exhibit 3, Quest fabricated the copy of the IgE results.
Diagnostic Test Results.)
24 (Exhibit G, pgs. 68-72 in Opposition to
Motion for Summary Judgment).
25
26
27
28
1
17. The test result showed an undetectable 17. Deny. Plaintiff never tested negative for a
2 level regarding soy which indicated that Mr. soy allergy. Plaintiff is allergic to soy.
Chambers did not have a soy allergy.
3
(Dr. Kuersten Decl., ¶ 6, Exhibit 3, Quest (Exhibit G, pgs. 61-72 in Opposition to
4 Diagnostic Results.) Motion for Summary Judgment).
5
18. As Mr. Chambers does not have a soy 18. Deny. Plaintiff is allergic to soy as
6 allergy, there was no medical reason to order a indicated by his IgG test and the fact Doctor
special diet. Bentley ordered plaintiff a soy-free diet on
7 July 12, 2018. Doctor Taylor ordered plaintiff
(Dr. Kuersten Decl. ¶7.) medication for his soy allergy on April 15,
8 2019 and Dr. Ali refilled this prescription on
October 12, 2019.
9
(Exhibit C, pg. 42, Exhibit D, pgs. 43-45;
10 Exhibit G, pg. 61-72 in Opposition to Motion
for Summary Judgment.)
11
12 19. M. Aguilera provided adequate and 19. Deny. Aguilera did not provide adequate
appropriate care during each of his visits with and appropriate care to plaintiff. Aguilera
13 Mr. Chambers. denied plaintiff a soy-free diet despite the fact
California Correctional Health Care Services
14 (Aguilera Decl. ¶6, lines 11-13.) approved CSP Solano to provide therapeutic
meals. Aguilera also refused to fulfill Dr.
15 Bentley’s request that plaintiff be provided
soy free meals.
16
(Exhibit H, pg. 83, Exhibit D-1, pg. 44 in
17 Opposition to Motion for Summary
Judgment.)
18
19 20. At no time did M. Aguilera disregard any 20. Deny. M. Aguilera lied by claiming that
serious injury or pain complaints of Mr. there was no soy free diet at CSP Solano. M.
20 Chambers. Aguilera also ignored plaintiff having no
suitable food because he could not eat the
21 (Aguilera Decl. ¶¶ 2, 5, 6.) meals that contained soy.
22 (Exhibit H, pg. 83 in Opposition to Motion
for Summary Judgment.)
23
24 21. At no time did M. Aguilera knowingly or 21. Deny. M. Aguilera refused to provide
intentionally cause Mr. Chambers pain, plaintiff with a soy-free diet despite Dr.
25 suffering, or injury. Bentley’s order and plaintiff’s medical
complaints. M. Aguilera instructed the
26 (Aguilera Decl. ¶¶ 2, 5, 6.) kitchen staff to provide plaintiff with meals
containing soy. M. Aguilera also instructed
27 kitchen staff to provide plaintiff meals that
contained soy in a bag that said “no soy”.
28
1
(Exhibit F, pgs. 46-60 in Opposition to
2 Motion for Summary Judgment.)
3
22. Dr. Kuersten provided adequate and 22. Deny. Dr. Kuersten refused to provide
4 appropriate care to Mr. Chambers. plaintiff with a soy-free diet despite his
positive allergy test and Dr. Bentley’s order
5 (Dr. Kuersten Decl. ¶8.) for a soy-free diet.
6 (Exhibit D, pgs. 43-45 in Opposition to
Motion for Summary Judgment.)
7
23. Dr. Kuersten ordered the medical testing 23. Deny. Dr. Kuersten ordered a blood test
8 he felt was necessary to evaluate Mr. for plaintiff but never sent the results to Quest
Chambers’s complaints and ruled out the Diagnostics. Dr. Kuersten also fabricated an
9 purported soy allergy. allergen report stating that plaintiff did not
have a soy allergy.
10 (Dr. Kuersten Decl. ¶¶3-8.)
(Exhibit E, pgs. 46-50, Exhibit G, pgs. 61-81)
11
12 24. At no time did Dr. Kuersten disregard any 24. Deny. Dr. Kuersten disregarded plaintiff’s
serious injury or pain complaints of Mr. serious injury and pain complaints regarding
13 Chambers. his soy allergy. He refused to order plaintiff a
soy-free diet despite plaintiff’s soy allergy.
14 (Dr. Kuersten Decl. ¶¶3-8.)
(Exhibit D, pgs. 43-45, Exhibit H, pgs. 82-90,
15 Exhibit G, pgs. 61-81).
16
25. At no time did Dr. Kuersten knowingly or 25. Deny. Dr. Kuersten knowingly and
17 intentionally cause Mr. Chambers pain, intentionally caused plaintiff pain by refusing
suffering, or injury of any kind. to provide plaintiff with soy-free meals
18 despite knowing about plaintiff’s soy allergy.
(Dr. Kuersten Decl. ¶8.)
19 (Exhibit D, pgs. 43-45, Exhibit G, pgs. 61-81)
20
21
22 V. DISCUSSION
23 In their motion for summary judgment, defendants argue: (1) plaintiff presents no
24 genuine dispute of material fact regarding his Eighth Amendment claims against defendants
25 and (2) defendants are entitled to qualified immunity. The Court agrees on both parts.
26 ///
27 ///
28
1 A. Claims Against Dr. Bentley
2 Under Federal Rule of Civil Procedure 25(a)(1), a civil suit against a deceased
3 party must be dismissed unless a party moves for substitution within 90 days of a service noting
4 death. See FED. R. CIV. P. 25. After the deceased party is dismissed, the action proceeds with the
5 remaining parties. See FED. R. CIV. P. 25(a)(2).
6 Doctor Bentley is deceased. See ECF No. 12; ECF No. 23. Plaintiff received
7 notice of Doctor Bentley’s death on July 18, 2019. See ECF No. 12. Thus, plaintiff’s ninety-day
8 filing period expired on October 16, 2019. Plaintiff still has not filed a motion for substitution as
9 of July 2, 2020 and therefore plaintiff’s claims against Dr. Bentley must be dismissed.
10 B. Eighth Amendment Medical Indifference Claim
11 Defendants argue that plaintiff’s Eighth Amendment claim for deliberate
12 indifference to medical needs fails as a matter of law. The Court agrees.
13 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious
14 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105;
15 see also Farmer, 511 U.S. at 837. An injury or illness is sufficiently serious if the failure to treat a
16 prisoner’s condition could result in further significant injury or the “. . . unnecessary and wanton
17 infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other
18 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); see also Doty
19 v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994).
20 A difference of opinion between medical professionals concerning the appropriate
21 course of treatment generally does not amount to deliberate indifference to serious medical needs.
22 See Toguchi v. Chung, 391 F.3d 1051, 1059-60 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240,
23 242 (9th Cir. 1989). To establish that a difference of opinion amounted to deliberate indifference,
24 the prisoner “must show that the course of treatment the doctors chose was medically
25 unacceptable under the circumstances” and “that they chose this course in conscious disregard of
26 an excessive risk to [the prisoner’s] health.” See Jackson v. McIntosh, 90 F.3d 330, 332 (9th
27 Cir.1996); see also Toguchi, 391 F.3d at 1058; Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir.
28 1992) (stating that prisoner may demonstrate deliberate indifference if prison officials relied on
1 the contrary opinion of a non-treating physician), abrogated on other grounds as stated in Estate
2 of Ford v. Ramirez-Palmer, 301 F.3d 1043 (9th Cir. 2002), overruled on other grounds by Saucier
3 v. Katz, 533 U.S. 194 (2001), overruled in part on other grounds by Pearson v. Callahan, 555 U.S.
4 223, 236 (2009).
5 A difference of opinion between the physician and the prisoner concerning the
6 appropriate course of treatment does not amount to deliberate indifference to serious medical
7 needs. See Toguchi, 391 F.3d at 1058; Jackson, 90 F.3d at 332; Franklin v. Or., State Welfare
8 Div., 662 F.2d 1337, 1344 (9th Cir. 1981).
9 1. Defendant Aguilera
10 Defendants claim that plaintiff has failed to demonstrate any genuine dispute as to
11 whether Aguilera was deliberately indifferent to plaintiff’s medical needs. In their motion to
12 dismiss, defendants argue that:
13
. . .Mr. Chambers cannot meet his burden to show that M. Aguilera
14 acted with deliberate indifference. M. Aguilera saw plaintiff for a dietary
consult at the request of Dr. Bentley. M. Aguilera advised Mr. Chambers
15 that there was no soy-free diet at the institution. He also followed up with
Dr. Kuersten because Mr. Chambers did not have any documented soy
16 allergy. There was no act or omission on his part that could support a
claim for deliberate indifference.
17
…
18 Mr. Chambers is not qualified to give any medical opinion.
Jackson, 90 F.3d at 332. He is not a doctor and has no medical training.
19 Any conclusion by him about necessary treatment is pure speculation
because Mr. Chambers lacks insight into the subjective state of mind and
20 knowledge of his providers or anyone else whom he may blame for his
condition. Nelson v. Pima Community College, 83 F.3d 1075, 1081-1082
21
(9th Cir. 1996)[“[m]ere…speculation does not create a factual dispute for
22 the purposes of summary judgment”]; Hutchinson, 838 F.2d at 393
[plaintiff’s conclusory statement insufficient to establish even medical
23 negligence, must less deliberate indifference].
24 ECF No. 21-1, pgs. 6-7.
25
///
26
///
27
///
28
1 In response, plaintiff states in his opposition that:
2 Plaintiff deny the claim that at no time did M. Aguilera knowingly
or intentionally cause the Plaintiff pain, suffering, or injury.
3 …On July 12, 2018, Dr. Bentley ordered the Plaintiff placed on a
therapeutic soy free medical diet, see Exhibit D-1. M. Aguilera refused to
4
order and provide soy-free meals for the Plaintiff as ordered by Dr.
5 Bentley, but instead ordered the medical kitchen staff to issue that Plaintiff
meals containing the exact things that the Plaintiff is allergic to which is
6 soy, see Exhibits F1, F2, F3, F4, F5, F6, F7, with F8 being the bag
Plaintiff last meal was given to the Plaintiff in, notice the bag has no soy
7
written on it and circled, but Exhibit-F7 clearly highlight the meal contain
soybean oil, which the Plaintiff once again could not eat and suffered, and
8
to this day the Plaintiff is suffering, for the Plaintiff is forced to (1) either
9 go hungry and suffer the pains of hunger or (2) when unable to fight the
pains of hunger any longer the Plaintiff is forced to consume mainline
10 meals containing soy, and within a short period of time becoming ill and
suffering the symptoms of diarrhea and vomiting, for which the Plaintiff is
11
prescribed soy allergy medication to this very day.
12
ECF No. 24, pg. 16.
13
14 Plaintiff also states that:
15 Plaintiff deny the claim that at no time did M. Aguilera disregard
any serious injury on pain complaints of the Plaintiff.
16
17 M. Aguilera lied claiming no soy free therapeutic diet is available
when Solano prison is approved to provide that at Doctor’s orders, see
18 Exhibit-H1. From July 13, 2018, to July 26, 2018, M. Aguilera knew the
Plaintiff was complaining about not being able to eat the meals given to
19 the Plaintiff because they contain soy, and the Plaintiff was forced to go
hungry and suffer.
20
21 ECF No. 24, pg. 16.
22
23 The Court agrees with defendants. Plaintiff’s argument that there is a genuine issue
24 of material fact rests on faulty analyses. First, plaintiff’s only support for his contention that CSP
25 Solano provides a soy-free diet is a general list named “Institutions Providing Outpatient
26 Therapeutic Diets”. See ECF No. 24, pg. 83. The general placeholder “outpatient therapeutic
27 diets” does not establish that CSP Solano offered a soy-free diet. In fact, Aguilera informed
28 plaintiff that the only therapeutic diets available at CSP Solano were renal, gluten-free, or hepatic
1 diets under a doctors’ orders. See ECF No. 21-5, pg. 1. Second, plaintiff’s assertion that Doctor
2 Bentley ordered a soy-free diet is misguided. Although Doctor Bentley wrote that a soy-free diet
3 would be preferable, his medical order explicitly requests a gluten-free diet for plaintiff. See ECF
4 No. 24, pg. 44. Aguilera did not have the ability to prescribe plaintiff with the soy-free diet
5 because there was no such diet available in the facility. Aguilera also did not have the authority to
6 transfer plaintiff to a facility that provided soy-free diets even if plaintiff tested positive for a soy
7 allergy. See ECF No. 21-5, pg. 2.
8 Plaintiff also claims that Aguilera did not provide sufficient evidence to establish
9 that he met with plaintiff or that plaintiff requested a soy free diet during the meeting. See ECF
10 No. 24, pgs. 9-10. Plaintiff further alleges that Aguilera did not provide sufficient evidence to
11 establish that Aguilera discussed plaintiff’s case with Doctor Bentley and Doctor Kuersten. See
12 ECF No. 24, pg. 11. However, these assertions do not meet the standard of proof necessary to
13 discredit Aguilera’s claims. Although the moving party bears the initial responsibility of
14 identifying the deficiencies in the nonmoving party’s argument, the nonmoving party must prove
15 there is a genuine dispute of material fact. See Celotex v. Catrett, 477 U.S. 317, 325 (1986);
16 Matushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving
17 party cannot rely on allegations or denial in its pleadings, but instead must tender specific facts in
18 the form of affidavits or admissible discovery material. See FED. R. CIV. P. 56(c)(1). Aguilera, as
19 the moving party, has fulfilled his responsibility by providing sworn affidavits that support these
20 claims. See ECF No. 21-5. Thus, the burden has shifted to plaintiff, as the nonmoving party, to
21 prove there is a genuine dispute of material fact. Here, plaintiff does not offer any evidence
22 beyond pointing out alleged deficiencies in the Aguilera’s evidence. Plaintiff’s claim that
23 Aguilera’s evidence is insufficient cannot establish a genuine dispute of material fact because
24 plaintiff offers no affirmative evidence of his own. In fact, plaintiff’s own exhibits provide a
25 dated notice of his meeting with Aguilera on June 14th as well as Aguilera’s email
26 correspondence with Doctor Bentley and Doctor Kuersten. See ECF No. 24, pg. 39; ECF No. 24,
27 pg. 84.
28 ///
1 Plaintiff has not provided sufficient evidence for a reasonable jury to conclude that
2 Aguilera acted with deliberate indifference to plaintiff’s health. There is no evidence that
3 Aguilera ignored plaintiff’s symptoms. Rather, from the record presented, it appears that Aguilera
4 acted diligently by meeting with plaintiff, discussing plaintiff’s case with his superior, and
5 following his superior’s orders regarding plaintiff’s treatment. Plaintiff’s displeasure with the
6 medical professionals’ decisions regarding the ultimate course of treatment cannot establish a
7 cognizable Eighth Amendment claim.
8 2. Defendant Doctor Kuersten
9 Defendants claim that plaintiff has failed to demonstrate any genuine dispute of
10 material fact as to whether Doctor Kuersten was deliberately indifferent to plaintiff’s medical
11 needs. In their motion to dismiss, defendants argue that:
12
. . .Mr. Chambers’ deliberate indifference claim against Dr.
13 Kuersten fails as a matter of law. Dr. Kuersten discontinued the gluten free
diet that had been ordered by Dr. Bentley because this diet would have soy
14 in it. Dr. Kuersten did not believe the IgG test was reliable for diagnosing
a soy allergy. He also ordered further testing to determine whether Mr.
15 Chambers actually had a soy allergy as no such allergy was documented in
his records. The testing showed that Mr. Chambers did not have a soy
16
allergy.
17 …
Mr. Chambers is not a medical doctor and is not qualified to
18 interpret test results. Differences in opinion regarding treatment between
an inmate and a physician are insufficient to support a claim for deliberate
19 indifference. Sanchez, 891 F.2d at 242. As Mr. Chambers does not have a
soy allergy, there was no medical reason to modify his diet. Further, a soy
20
free diet is not available at the institution. Mr. Chambers cannot establish
21 the subjective requirement that Dr. Kuersten knew of and disregarded a
risk to him.
22
ECF No. 21-1, pg. 7.
23
24 In response, plaintiff states in his opposition that:
25
Plaintiff deny the claim that at no time did Dr. Kuersten disregard
26 any serious injury or pain complaints of the Plaintiff.
…Dr. Kuersten did disregard the Plaintiff’s serious injury and pain
27 complaints, see Exhibits-D, D1, which show the Plaintiff allergic to soy,
and show Doctor Bentley clearly ordered the plaintiff a soy free diet, see
28
1 Exhibit-H1, that authorized Dr. Kuersten to provide the meal, see
Exhibits-G13, G13-1, G13-2, G13-3, and G13-4 show that two Doctors
2 since this complaint has been filed prescribed the plaintiff six months’
worth of soy allergy medication for his ongoing pain and suffering.
3
4 ECF No. 24, pg. 18.
5 Plaintiff also states that:
6 Plaintiff deny the claim that Dr. Kuersten ordered a test he felt was
necessary to evaluate the Plaintiff’s allergy to soy, that’s a lie and a
7
perjury.
8 …
On August 22, 2018, Dr. Kuersten ordered the plaintiff blood be
9 collected on August 23, 2018. Dr. Kuersten ordered the test cancelled on
August 23, 2018, at the exact moment that Plaintiff’s blood was collected,
10 then Dr. Kuersten falsified a Quest Diagnostics allergen report and placed
it in the Plaintiff’s medical records on August 29, 2018. Dr. Kuersten did
11
not have the blood taken from the Plaintiff on August 23, 2018 at 9:32
12 AM ever sent to be tested as the following exhibit has confirmed, see
Exhibit-E1 Laboratory Quest misc test, order Details-time study collect
13 8/23/18, 9:32am, stop time 8/23/18, 9:32am, now see Exhibits-G9, G10,
G11, and G11A, from where the plaintiff was verified by Quest
14 Diagnostics that no such test was conducted upon which they sent the
copy of the document that Dr. Kuersten placed in the Plaintiff’s medical
15
file on August 29, 2018 back to the Plaintiff with Exhibit-G11, there
16 response.
17 ECF No. 24, pg. 17.
18 The Court agrees with defendants. A difference of opinion between a physician
19 and a prisoner concerning the appropriate course of medical treatment does not amount to
20 deliberate indifference to medical needs. See Toguchi v. Young, 391 F.3d 1051, 1058 (9th Cir.
21 2004). Thus, plaintiff’s personal opinion regarding the existence of his soy allergy is not relevant
22 to an Eighth Amendment deliberate indifference discussion. At most, plaintiff has established that
23 Doctor Kuersten and Doctor Bentley had a difference of opinion regarding the appropriate form
24 of testing used to diagnose a soy allergy. See ECF No. 21-4; ECF No. 24, pg. 17. Differences in
25 medical opinion alone do not give rise to an Eighth Amendment claim. See Toguchi, 391 F.3d at
26 1059-60. Similarly, plaintiff’s evidence that other doctors prescribed him medication labeled “soy
27 allergy” at most establishes a difference of opinion between Doctor Kuersten and those
28 physicians. See ECF No. 24, pgs. 78-82. Doctor Kuersten examined plaintiff’s medical record
1 and ordered further testing because he did not believe that the IgG test was sufficient. See ECF
2 No. 21-4, pgs. 2-3. In fact, plaintiff’s IgG report expressly stated that the test should not be used
3 to diagnose allergic or atopic diseases except for gluten sensitivity and neonatal sensitivity to
4 milk. Id. Doctor Kuersten did not provide plaintiff with treatment for a soy allergy because
5 plaintiff’s test results came back negative. Id. A reasonable jury could not find that Doctor
6 Kuersten’s refusal to treat plaintiff for a soy allergy constituted deliberate indifference to
7 plaintiff’s medical needs when medical testing confirmed that plaintiff did not have a soy allergy.
8 Plaintiff’s argument that Doctor Kuersten fabricated the IgE test results rests on a
9 faulty assumption. Plaintiff’s only evidence to support this allegation is a letter from Quest
10 Diagnostics stating that they had no pathology or billing records for plaintiff. See ECF No. 24,
11 pg. 72. Plaintiff uses this lack of pathology or billing records as evidence that Doctor Kuersten
12 never sent his blood test results to Quest Diagnostics and fabricated a report instead. See ECF No.
13 24, pgs. 13-14. However, plaintiff ignores the portion of the letter that states Quest had several
14 medical records on file for plaintiff. Id. In fact, the IgG test results plaintiff references to attempt
15 to establish his soy allergy came from Quest Diagnostics. See ECF No. 24, pg. 43. Because
16 plaintiff has no additional evidence to support this claim, no reasonable jury could find that
17 Doctor Kuersten fabricated plaintiff’s test results.
18 Plaintiff further claims that Doctor Kuersten did not provide sufficient evidence to
19 establish that the IgG test is not reliable and the IgE is a more precise method. See ECF No. 24,
20 pg. 11. Plaintiff also claims that Dr. Kuersten did not provide sufficient evidence to prove that he
21 reviewed plaintiff’s medical records. Id. However, plaintiff has not met the standard of proof
22 necessary to discredit Doctor Kuersten’s claims. Although the moving party bears the initial
23 responsibility of identifying the deficiencies in the nonmoving party’s argument, the nonmoving
24 party must prove there is a genuine dispute of material fact. See Celotex v. Catrett, 477 U.S. 317,
25 325 (1986); Matushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
26 nonmoving party cannot rely on the allegations on denials in its pleadings, but instead must
27 tender specific facts in the form of affidavits or admissible discovery material. See FED. R. CIV. P.
28 56(c)(1). Doctor Kuersten, as the moving party, fulfilled his responsibility by providing sworn
1 affidavits stating that he reviewed plaintiff’s medical records and his medical research led him to
2 conclude that IgE was a more suitable test. Thus, the burden has shifted to plaintiff, as the
3 nonmoving party, to prove there is a genuine dispute of material fact. Here, plaintiff does not
4 offer any evidence beyond his allegations. Plaintiff is not a doctor and, absent concrete evidence
5 that plaintiff has not provided, he cannot conclusively determine the reliability of an IgG test or
6 an IgE test.
7 Further, plaintiff’s only support for his argument that Doctor Kuersten did not
8 review his medical record is that:
9
Plaintiff deny the claim the claim that Dr. Kuersten reviewed the
10 IgG test results from the soy allergy test the Plaintiff took on July 3, 2018
at 21:00AM because if he had he would have understood as did Drs.
11 Bentley, Taylor, and Dr. Ali that 2.1 means allergic and 2.0 means not
allergic…
12
ECF No. 24, pg. 11.
13
Plaintiff’s assertion that Doctor Kuersten would have agreed with plaintiff’s other
14
doctors had he reviewed plaintiff’s medical record is conclusory. Conclusory allegations do not
15
establish a genuine dispute of material fact. See Ashcroft v. Iqbal, 556 U.S. 662, 680-681 (2009).
16
As discussed above, plaintiff provides no valid evidentiary support for his claim that Doctor
17
Kuersten was deliberately indifferent to his medical needs. Thus, no reasonable jury could find
18
that Doctor Kuersten’s actions constituted an Eighth Amendment violation and Doctor Kuersten
19
is entitled to judgment as a matter of law.
20
C. Qualified Immunity
21
As discussed above, the Court finds that plaintiff has failed to establish a valid
22
Eighth Amendment medical indifference claim at the summary judgment stage. However, in the
23
event the District Judge finds a genuine dispute as to plaintiff’s Eighth Amendment deliberate
24
indifference claims, the undersigned provides the following analysis.
25
Government officials enjoy qualified immunity from civil damages unless their
26
conduct violates “clearly established statutory or constitutional rights of which a reasonable
27
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In general,
28
1 qualified immunity protects “all but the plainly incompetent or those who knowingly violate the
2 law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). In ruling upon the issue of qualified
3 immunity, the initial inquiry is whether, taken in the light most favorable to the party asserting the
4 injury, the facts alleged show the defendant’s conduct violated a constitutional right. See Saucier
5 v. Katz, 533 U.S. 194, 201 (2001). If a violation can be made out, the next step is to ask whether
6 the right was clearly established. See id. This inquiry “must be undertaken in light of the specific
7 context of the case, not as a broad general proposition . . . .” Id. “[T]he right the official is
8 alleged to have violated must have been ‘clearly established’ in a more particularized, and hence
9 more relevant, sense: The contours of the right must be sufficiently clear that a reasonable
10 official would understand that what he is doing violates that right.” Id. at 202 (citation omitted).
11 Thus, the final step in the analysis is to determine whether a reasonable officer in similar
12 circumstances would have thought his conduct violated the alleged right. See id. at 205.
13 When identifying the right allegedly violated, the court must define the right more
14 narrowly than the constitutional provision guaranteeing the right, but more broadly than the
15 factual circumstances surrounding the alleged violation. See Kelly v. Borg, 60 F.3d 664, 667 (9th
16 Cir. 1995). For a right to be clearly established, “[t]he contours of the right must be sufficiently
17 clear that a reasonable official would understand [that] what [the official] is doing violates the
18 right.” See Anderson v. Creighton, 483 U.S. 635, 640 (1987). Ordinarily, once the court
19 concludes that a right was clearly established, an officer is not entitled to qualified immunity
20 because a reasonably competent public official is charged with knowing the law governing his
21 conduct. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). However, even if the plaintiff
22 has alleged a violation of a clearly established right, the government official is entitled to
23 qualified immunity if he could have “. . . reasonably but mistakenly believed that his . . . conduct
24 did not violate the right.” Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001); see
25 also Saucier, 533 U.S. at 205.
26 / / /
27 / / /
28 / / /
1 The first factors in the qualified immunity analysis involve purely legal questions.
2 See Trevino v. Gates, 99 F.3d 911, 917 (9th Cir. 1996). The third inquiry involves a legal
3 determination based on a prior factual finding as to the reasonableness of the government
4 official’s conduct. See Neely v. Feinstein, 50 F.3d 1502, 1509 (9th Cir. 1995). The district court
5 has discretion to determine which of the Saucier factors to analyze first. See Pearson v. Callahan,
6 555 U.S. 223, 236 (2009). In resolving these issues, the court must view the evidence in the light
7 most favorable to plaintiff and resolve all material factual disputes in favor of plaintiff. See
8 Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003).
9 The Court finds both defendants are entitled to qualified immunity. The plaintiff
10 has the burden of alleging a violation that has been clearly established that the officers should
11 have been on notice. Luna v. Ridge, 436 F. Supp. 2d 1163, 1173 (S.D. Cal. 2006) (“[b]road
12 generalities in the articulation of the constitutional right at issue . . . are insufficient to identify a
13 clearly established right . . .”). "Except in the rare case of an 'obvious' instance of constitutional
14 misconduct . . . [p]laintiffs must identify a case where an officer acting under similar
15 circumstances as [defendants] was held to have violated [plaintiff’s constitutional rights]." Sharp
16 v. Cty. of Orange, 871 F.3d 901, 911 (9th Cir. 2017) (emphasis in original) (quoting White v.
17 Pauly, 137 S.Ct. at 552).
18 As discussed above, plaintiff has not sufficiently established that an obvious
19 constitutional violation occurred. Defendants’ refusal to provide plaintiff with soy-free meals did
20 not amount to an obvious constitutional violation when a medical test indicated that plaintiff did
21 not have a soy allergy. Thus, plaintiff must demonstrate legal precedent where an officer acting
22 under similar circumstances as defendants was held to have violated plaintiff’s constitutional
23 rights. See Sharp v. Cty. of Orange, 871 F.3d 901, 911 (9th Cir. 2017). “In other words, [plaintiff]
24 must point to prior case law that articulates a constitutional rule specific enough to
25 alert these [officers] in this case that their particular conduct was unlawful.” Id. However, here,
26 plaintiff only addresses defendants’ qualified immunity discussion through a conclusive sentence
27 which states that defendants do not have qualified immunity because they were deliberately
28 indifferent to plaintiff’s medical needs. See ECF No. 24, pg. 30. Plaintiff provides no case
MAIS 6 LDU VY YO □□ EAINT IVING RAUL OIC eT OY Oe VI oe
1 | precedent and has therefore clearly failed to meet his burden.
2
3 VI. CONCLUSION
4 Based on the foregoing, the undersigned recommends that Defendant’s motion for
5 || summary judgment (ECF No. 21) be granted in full.
6 These findings and recommendations are submitted to the United States District
7 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days
8 | after being served with these findings and recommendations, any party may file written objections
9 | with the court. Responses to objections shall be filed within 14 days after service of objections.
10 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v.
11 Yist, 951 F.2d 1153 (9th Cir. 1991).
12
13 | Dated: July 13, 2020 Ssvcqo_
DENNIS M. COTA
15 UNITED STATES MAGISTRATE JUDGE
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