“[B]y failing specifically to 25 challenge the facts identified in the defendant's statement of undisputed facts, [plaintiff] is 26 deemed to have admitted the validity of the facts contained in the [defendant's] statement.”
How later courts described this case
- “[B]y failing specifically to 25 challenge the facts identified in the defendant's statement of undisputed facts, [plaintiff] is 26 deemed to have admitted the validity of the facts contained in the [defendant's] statement.”
Written by the judges who cited it.
The opinion
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8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 RICHARD V. ROOD, No. 2:13-CV-0478-JAM-DMC-P
12 Plaintiff,
13 v. FINDINGS AND RECOMMENDATIONS
14 WIN, 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. 77, Plaintiff’s opposition, ECF No. 86, and Defendants’ reply, ECF No. 87. The undersigned
20 recommends Defendants’ motion for summary judgment be granted.
21
22 I. BACKGROUND
23 A. Plaintiff’s Allegations
24 Plaintiff named 46 defendants in his first amended complaint. See ECF No. 33,
25 pgs. 1-17. The Court narrowed this list down to eight: (1) S. Hannies; (2) Richard Tan; (3) E.
26 Fontillas; (4) F. Hardman; (5) Khin Win; (6) Kiesz; (7) J. Herhst; and (8) C. Braunger
27 (“Carlson”). See ECF No. 45. Defendants Win, Tan, Fontillas, Carlson, and Hardman move for
28 summary judgment. See ECF 77, pg. 1. Therefore, the undersigned will direct the analysis
1 towards Defendants Tan, Fontillas, Hardman, Win, and Carlson only and will not address
2 Plaintiff’s claims against Defendants Hannies, Kiesz, and Herhst.1
3 Plaintiff alleges Eighth Amendment claims against each of the five moving
4 Defendant (Defendant’s Win, Tan, Fontillas, Carlson, and Hardman). See ECF No. 33, pgs. 1-17.
5 Plaintiff contends that while housed at the Shasta County Jail Dr. Craig diagnosed him with
6 having an ACL tear in his right knee and LDD of his L3 and L6 vertebrae. See id. at 3. Plaintiff
7 was informed he would have to wait until he arrived at his permanent housing facility before
8 receiving treatment. See id. at 3-4. Plaintiff claims the Defendants ignored Dr. Craig’s diagnosis,
9 dismissed Plaintiff’s medical complaints, and blocked Plaintiff’s access to medical personnel, and
10 that their actions amount to deliberate indifference to a serious medical injury in violation of the
11 Eighth Amendment. See id. at 3-15.
12 1. Plaintiff’s Allegations Against Each Moving Defendant
13 a. Defendant Tan
14 Plaintiff states the following concerning Defendant Tan:
15 On December 21, 2010, Defendant R. Tan, M.D., reviewed
Plaintiff’s CDCR 7277 . . . and noted plaintiff’s complaint of a serious
16 medical need, and HISTORY OF AN ACL TEAR IN THE RIGHT
KNEE, and that NO MEDICAL REFERRALS were being made regarding
17 plaintiff’s complaint of a serious medical need. Defendant Tan also
reviewed plaintiff’s CDCR 7371 Health Care Transfer Information form,
18 which was completed by medical personnel at HDSP, and
DOCUMENTED PLAINTIFF’S PREVIOUSLY DIAGNOSED
19 SERIOUS MEDICAL COMPLAINT OF AN ACL TEAR IN THE
RIGHT KNEE.
20 Defendant Tan, instead of alerting additional medical personnel of
plaintiff’s serious medical needs, or taking ANY steps to ensure that
21 plaintiff receive the medical attention that his DOCUMENTED injury
required, simply allowed [sic] custody staff to house plaintiff wherever
22 they wanted, without taking into account plaintiff’s inability to climb into
the upper bunk, or request for a “lower bunk, lower tier” chrono.
23 Defendant Tan abandoned his medical duty to plaintiff, even after
noting the DOCUMENTED serious medical needs of plaintiff, because he
24 believed plaintiff was faking his symptoms and complaint in order to
receive pain medication.
25
26 1 Defendants Hannies, Kiesz, and Herhst have not been served. Service of process
was returned unexecuted as to Defendants Kiesz and Hannies on December 19, 2019. See ECF
27 No. 58. Service of process was returned unexecuted as to Defendant Herhst on January 23, 2020.
See ECF No. 64. The Court will recommend these three defendants be dismissed pursuant to
28 Federal Rule of Civil Procedure 4(m) for failure to effect timely service of process.
1 The failure of Defendant Tan to conduct an adequate examination
of plaintiff, or take the necessary steps to ensure plaintiff receive the
2 needed medical treatment, despite defendant Tan’s actual knowledge of
plaintiff’s serious medical needs, constitutes deliberate indifference to
3 plaintiff’s serious medical needs.
As a result of defendant Tan’s deliberate indifference, plaintiff
4 suffered further injury, physical and emotional pain and suffering, as well
as life altering physical disability.
5
Id. at 6.
6
7 Plaintiff alleges more facts concerning Defendant Tan below.
8 b. Defendant Fontillas
9 Plaintiff alleges that on December 28, 2010, Plaintiff was seen by a nurse,
10 Defendant Fontillas. See id. at 7. Defendant Fontillas “was acting as the ‘gate keeper’ to access
11 the doctor.” Id. Plaintiff informed Defendant Fontillas that he had been diagnosed with a torn
12 ACL and that it was documented in Plaintiff’s medical file. See id. Plaintiff also told Defendant
13 Fontillas that Plaintiff’s pain medication was not helping his “severe and debilitating pain, which
14 consisted of a steady, deep throbbing pain centered in his right knee, which made it very difficult
15 to concentrate, write a letter or even sleep at night.” See id. Additionally, Plaintiff requested a
16 lower bunk due to his knee problems. See id. Plaintiff contends that Defendant Fontillas did not
17 address any of Plaintiff’s concerns but “simply took plaintiff’s vital signs and informed plaintiff
18 that he would have to request a ‘lower bunk, lower tier’ chrono from the doctor.” Id. Defendant
19 Fontillas allegedly told Plaintiff that he was scheduled to see a doctor on December 31, 2010.
20 See id.
21 Plaintiff claims that Defendant Fontillas’ failure to alert the proper medical
22 personnel of Plaintiff’s “DOCUMENTED serious medical needs . . . constitutes deliberate
23 indifference to plaintiff’s serious medical needs.” See id. “As a result of defendant Fontillas’
24 deliberate indifference, plaintiff suffered further injury, physical and emotional pain and
25 suffering, as well as a life altering physical disability.” Id. at 7-8.
26 / / /
27 / / /
28 / / /
1 c. Defendant Hardman
2 Plaintiff states that on January 2, 2011, Plaintiff submitted a CDCR 7362 Health
3 Care Services Request Form requesting to see a doctor for Plaintiff’s “serious medical needs as
4 plaintiff was in extreme pain and suffering and his current pain medication was not working,” for
5 Plaintiff was unable to see a doctor on December 31, 2010. See id. at 8. On January 4, 2011,
6 Plaintiff was seen by another nurse, Defendant Hardman. See id. Defendant Hardman was also
7 acting as “gate keeper” to see the doctor. See id. Plaintiff’s allegations against Defendant
8 Hardman are a mirror image of his allegations against Defendant Fontillas. See id. at 8-9. The
9 one difference is that after Defendant Hardman took Plaintiff’s vitals and ignored Plaintiff’s
10 concerns, Defendant Hardman said that Plaintiff would be “seen by Dr. Win on the 11th and you
11 can request a ‘lower, lower’ chrono then.” See id. at 8.
12 d. Defendant Win
13 On January 11, 2011, Plaintiff was seen by a doctor, Defendant Win. See id. at 9.
14 “Prior to plaintiff arriving for his appointment with defendant Win, defendant Win had already
15 formed the opinion that plaintiff was faking his symptoms and complaint of severe and
16 debilitating pain in order to receive pain medication.” Id. Plaintiff informed Defendant Win that
17 he had been diagnosed with a torn ACL and that it was documented in Plaintiff’s medical file.
18 See id. Plaintiff also told Defendant Win that Plaintiff’s pain medication was not helping his
19 “severe and debilitating pain, which consisted of a steady, deep throbbing pain centered in his
20 right knee, which made it very difficult to concentrate, write a letter or even sleep at night.” See
21 id. Additionally, Plaintiff requested a lower bunk due to his knee problems. See id.
22 “Defendant Win began by telling plaintiff, ‘This is a new facility and we will
23 make our own diagnosis. It is very unlikely that it is an ACL tear, because you are experiencing
24 pain.’” Id. Plaintiff alleges that Defendant Win did a “cursory examination” of Plaintiff’s knee
25 and “declared that plaintiff did not have an ACL tear.” Id. Defendant Win increased Plaintiff’s
26 pain medication “from 200 mg Ibuprophen [sic] to 400 mg.” Id. This is after Plaintiff informed
27 Defendant Win that “the Ibuprophen [sic] was not working and upset his stomach.” Id.
28 Defendant Win then “referred plaintiff for ‘physical therapy’ to help lessen the pain in plaintiff’s
1 right knee.” Id. at 9-10.
2 “Defendant Win NEVER attempted to diagnose plaintiff’s medical complaint of
3 previously diagnosed, and DOCUMENTED, ACL tear and severe and debilitating pain because
4 defendant Win believed plaintiff was fakinf [sic] his symptoms and medical complaint in order
5 to receive pain medication.” Id. at 10. Plaintiff alleges that Defendant Win’s failure to conduct
6 an adequate examination of Plaintiff, “despite defendant Win’s actual knowledge of plaintiff’s
7 serious medical needs, constitutes deliberate indifference to plaintiff’s serious medical nedds
8 [sic].” Id. Plaintiff contends that as a result “plaintiff suffered further injury, physical and
9 emotional pain and suffering, as well as a life altering physical disability.” Id.
10 e. Defendant Braunger (“Carlson”)
11 Plaintiff alleges the following concerning Defendant Carlson:
12 On February 27, 2011, Plaintiff submitted yet another CDCR 7362
Health Care Services Request Form stating, ‘This is the 4th 7362 I have
13 sent in to see the doctor about my knee. I have been to RN line twice in
the last month and each one I saw said I’ll be ducated [sic] in a couple of
14 days. I have not been ducated [sic] yet. Need to see the doctor ASAP.’
On March 1, 2011, defendant C. Braunger, RN, received and
15 processed plaintiff’s CDCR 7362, however, defendant Braunger did not
ducat [sic] plaintiff to ‘nurses line.’ Instead, defendant Braunger ignored
16 plaintiff’s medical request.
The failure of defendant Braunger to properly process plaintiff
17 CDCR 7362 Health Care Services Request Form and alert the proper
medical personnel of plaintiff’s well DOCUMENTED serious medical
18 need, despite defendant Braunger’s actual knowledge, constitutes
deliberate indifference to plaintiff’s serious medical needs.
19 As a result of defendant Braunger’s deliberate indifference to
plaintiff’s serious medical needs, plaintiff suffered further injury, physical
20 and emotional pain and suffering, as well as a life altering physical
disability.
21
22 Id. at 12.
23 2. Plaintiff’s Allegations Relating to Further Injuries
24 On March 2, 2011, while attempting to climb into his upper bunk, Plaintiff’s right
25 knee “gave out and buckled, causing plaintiff to fall, striking the toilet and injuring his wrist and
26 ribs.” Id. at 13. “On March 10, 2011, based solely on plaintiff falling while trying to get into the
27 upper bunk, defendant Win requested an MRI of plaintiff’s right knee to ‘rule out a meniscus
28 injury.’” Id. “On May 24, 2011, plaintiff finally received an MRI of his right knee. The MRI
1 revealed that plaintiff did, in fact, have an ACL tear. In fact, it was much worse than just an
2 ACL tear.” Id. Plaintiff alleges that had Defendants done their jobs, Plaintiff would not have
3 been forced to languish in his cell, “in severe and debilitating pain, without sufficient pain
4 medication.” Id.
5 However, “[e]ven after the MRI confirmed that plaintiff had an ACL tear, and
6 was in severe and debilitating pain, defendants continued to operate under the assumption that
7 plaintiff was faking the extent of his pain in order to receive stronger pain medication.” Id. at 14.
8 “On October 14, 2011, plaintiff underwent reconstructive surgery, at Doctors
9 Hospital of Manteca.” Id. “Following surgery, plaintiff continued to experience extreme pain in
10 his right knee for some reason. The pain continued to worsen, yet defendants would not increase
11 pain medication.” Id.
12 Plaintiff alleges:
13 On or about July 7, 2012, plaintiff went to stand up and his right
knee suddenly gave out and began to swell. It felt as if something was
14 trying to poke through plaintiffs [sic] skin. Plaintiff could only move his
leg to a certain point and then it would feel like something would break if
15 he attempted to extend it any further.
On July 27, 2012, Plaintiff was seen by defendant R. Tan, MD, for
16 his complaint of continued pain in his right knee and the more recent issue
of it feeling like something was trying to poke through the skin. Plaintiff
17 explained to defendant Tan how it felt and that the object felt sharp.
Defendant Tan told plaintiff, “That’s normal. It is due to scar
18 tissue and your knee will continue to be stiff. Defendant Tan NEVER
attempted to diagnose plaintiffs [sic] complaint, nor did defendant Tan
19 conduct any type of examination regarding Plaintiff’s medical complaint.
20 * * *
21 On August 6, 2012, after repeated complaints to defendant Tan of
severe right knee pain and something loose in plaintiff [sic] knee, plaintiff
22 was referred to Dr. Casey for a follow-up consult regarding the continued
complaint of pain.
23
* * *
24
On November 6, 2012, plaintiff was finally given a postop MRI.
25 The result of this MRI revealed that plaintiff would need addition [sic]
surgery to remove the 13 mm loose body from his knee, which was the
26 cause of his ongoing pain issue.
On January 25, 2013, plaintiff had additional surgery to remove the
27 13 mm loose body from his knee.
28 Id. at 14-15.
1 Plaintiff concludes stating:
2 Due to defendants [sic] deliberate indifference to plaintiff [sic]
serious medical needs, plaintiff was forced to undure [sic] prolonged
3 extreme pain and suffering because defendants did not attempt to diagnose
plaintiff’s complaints because defendants believed plaintiff was faking his
4 symptoms in order to receive pain medication. No reasonable person
would have believed plaintiff was faking his symptoms, given that
5 plaintiff had a previously diagnosed ACL tear DOCUMENTED in his
medical records, which defendants choose to disregard and ignore.
6
Id.
7
8
9 II. THE PARTIES’ EVIDENCE
10 A. Defendants’ Evidence
11 Defendants’ motion for summary judgment is supported by the sworn declarations
12 of Defendants Carlson, ECF No. 77-3, Hardman, ECF No. 77-4, Tan, ECF No. 77-5, Win, ECF
13 No. 77-6, and Fontillas, ECF No. 77-7. Additionally, Defendants rely on the sworn declaration of
14 their attorney, Jason R. Cale, ECF No. 77-8. Defendants further rely on the following exhibits
15 attached to the Cale declaration:
16 Exhibit A First Amended Complaint. ECF No. 77-8, pgs. 3-22.
17 Exhibit B Mercy Medical Records. ECF No. 77-8, pgs. 23-30.
18 Exhibit C Deposition of Richard Rood. ECF No. 77-8, pgs. 31-45.
19 Exhibit D CDCR Medical Records. ECF No. 77-8, pgs. 46-149.
20 Defendants contend: (1) they timely and properly treated Plaintiff’s right knee
21 injury on those occasions that they saw him; (2) Defendants adequately addressed Plaintiff’s
22 complaints of pain; (3) Plaintiff was provided a lower bunk accommodation upon request; (4)
23 Plaintiff cannot establish that his damages are supported as they are speculative; and (5)
24 Defendants are entitled to qualified immunity. ECF No. 77, pg. 1.
25 / / /
26 / / /
27 / / /
28 / / /
1 In support of these contentions, Defendants offer a Statement of Undisputed Facts
2 in which they state the following facts are undisputed:
3 1. Plaintiff was involved in a bicycle accident in 2008,
following which he was treated at Mercy Medical Center in Redding,
4 California, and was diagnosed with a right knee sprain.
5 2. While housed at the Shasta County Jail in 2009, Plaintiff’s
right knee buckled causing further injuries.
6
3. Plaintiff alleges that, after this incident in 2009, he received
7 treatment from “Dr. Craig” who diagnosed Plaintiff with a right-knee
ACL tear. No records have been located confirming this diagnosis or that
8 “Dr. Craig” is a licensed physician qualified to make a diagnosis of an
ACL tear.
9
4. In September 2010, Plaintiff was transferred to High Desert
10 State Prison (HDSP).
11 5. On October 7, 2010, an x-ray of Plaintiff’s right knee was
performed and indicated no change from Plaintiff’s prior exam in July
12 2010. Specifically, the October 2010 images revealed that Plaintiff’s right
knee as “stable negative.” A lower spine x-ray also revealed “negative
13 lower spine” with no issues noted.
14 6. On October 21, 2010, Plaintiff was treated by a nurse at
HDSP for a complaint of right-knee ACL tear. At the time, Plaintiff stated
15 his pain, which he described as a “dull ache,” was a 7.5 out of 10. His
condition was noted as stable and Plaintiff was referred to follow up with
16 his physician concerning further treatment or to resubmit a healthcare
services request if the pain increased.
17
7. On December 21, 2010, Plaintiff was transferred from
18 HDSP to California State Prison – Solano (CSP-Solano).
19 8. An initial health screening form provided by HDSP to
CSP-Solano, dated December 21, 2010, indicated that Plaintiff had “an
20 ACL tear” and lower back pain, but also indicated Plaintiff had “pending
chronic need care” without indicating any need for urgent care. The form
21 did not indicate Plaintiff had any pending specialist appointments or
clinical follow-up appointments, but indicated that a follow-up was
22 recommended in four weeks.
23 9. Dr. Tan reviewed the initial health screening form and
Plaintiff’s medical record and indicated in his December 21, 2010, report
24 that Plaintiff had no active medications at the time of his transfer other
than Ibuprofen, that Plaintiff had a history of an ACL tear, and that
25 Plaintiff should be scheduled for a follow-up with the primary care
physician in four weeks.
26
10. On December 27, 2010, Plaintiff was treated by Nurse
27 Fontillas after submitting a request for health services form. Plaintiff
complained of chronic back pain and was provided Ibuprofen.
28
1 11. On January 4, 2011, Nurse Hardman responded to a heath
service request form submitted by Plaintiff indicating chronic right knee
2 and lower back pain. Plaintiff’s vitals were taken, and chart notes
indicated that Plaintiff was scheduled for an appointment with his primary
3 care physician on January 11, 2011.
4 12. Plaintiff was treated and evaluated by Dr. Win, Plaintiff’s
primary care physician while at CSP-Solano, on January 11, 2011. Dr.
5 Win indicated Plaintiff had a right-knee meniscus injury, but stated it was
unlikely Plaintiff had an ACL tear. Dr. Win noted Plaintiff told him
6 another doctor had stated he has an ACL tear and needed surgery to repair
it. Dr. Win performed a physician assessment and noted that Plaintiff’s
7 gait was normal and Plaintiff had no difficulty getting on and off the chair.
Dr. Win ordered physical therapy and provided Plaintiff with a
8 prescription for Naproxen for pain.
9 13. On January 28, 2011, Plaintiff was treated by Nurse
Carlson for right knee pain. Chart notes from this visit state that Plaintiff
10 had been prescribed Naproxen earlier for pain and Plaintiff should submit
a health care services request form if his symptoms persist or his pain
11 increases. At the time of the exam, Plaintiff was ambulatory and stable,
and was returned to his housing unit with a request that he follow up in the
12 clinic with his primary care physician. Plaintiff described his pain as a 6
out of 10.
13
14. On February 27, 2011, Plaintiff submitted a healthcare
14 services form requesting to be provided an appointment to see Dr. Win.
Nurse Carlson signed chart notes on March 1, 2011, indicating Plaintiff
15 was scheduled to see Dr. Win on March 10, 2011.
16 15. Plaintiff was seen by Dr. Win on March 10, 2011. At the
time, Plaintiff complained of further pain in his right knee, which he
17 indicated had been exacerbated due to another recent fall eight to nine
days prior when he slipped trying to climb into his upper bunk. Dr. Win
18 ordered an x-ray which was taken the same day.
19 16. The x-ray indicated “no fracture, dislocation, or focal
osseous lesion, along with no joint effusion.” The impression further
20 indicated “negative knee.”
21 17. Dr. Win saw Plaintiff later that same day (March 10, 2011)
and scheduled a further x-ray to confirm that no metallic materials were in
22 Plaintiff’s body in order to clear Plaintiff for an MRI. The second x-ray
was taken on March 25, 2011, and Plaintiff was cleared for an MRI with
23 an outside specialist.
24 18. On March 21, 2011, Nurse Fontillas indicated in response
to a further health services request by Plaintiff that Plaintiff was awaiting
25 diagnostic testing results, which Dr. Win reviewed that day. The testing
results indicated that Plaintiff’s right knee was normal.
26
19. Nurse Fontillas received another health service request
27 form from Plaintiff on April 16, 2011, in which Plaintiff requested a lower
bunk accommodation. Plaintiff was scheduled for a follow-up
28 appointment with Dr. Win on April 21, 2011.
1 20. Plaintiff was seen again by Dr. Win on April 21, 2011, who
referred Plaintiff for a consultation with an outside orthopedic specialist
2 for his right nee to rule out a right-knee meniscus tear. Dr. Win also
granted Plaintiff’s request for a lower bunk accommodation, which
3 Plaintiff received on June 14, 2011.
4 21. The request for referral to an outside orthopedic specialist
was approved on June 6, 2011, with an initial consultation with Dr. Casey
5 scheduled for August 8, 2011.
6 22. On May 19, 2011, Plaintiff filed a heath services request
form for pain, indicating physical therapy was not helping, that Plaintiff
7 had an MRI exam that day and wanted to know the results, and that this
pain medication was not sufficient.
8
23. On May 24, 2011, MRI scans showed that Plaintiff’s knee
9 was “grossly abnormal” with “multiple tear sites at the medial meniscus,”
“a partial detachment of the ACL from the femoral origin existed,” and
10 “there was a degeneration of the posterior horn lateral meniscus.”
11 24. On June 2, 2011, Plaintiff was seen by Dr. Win for
complaints of right knee pain. Dr. Win prescribed acetaminophen with
12 codeine for pain.
13 25. On July 14, 2011, Plaintiff was seen again by Dr. Win, who
indicate that he is still waiting for results of the orthopedic consult.
14 Plaintiff was provided a cane for mobility.
15 26. On August 8, 2011, Plaintiff had a consultation with
outside orthopedist, Dr. Casey. Dr. Casey’s notes indicate that Plaintiff
16 said that his right knee pain has been increasing over the last few years,
with increasing swelling and instability. Plaintiff reported an inability to
17 go up and down stairs in particular. Dr. Casey recommended that Plaintiff
receive an allograft ACL reconstruction and meniscectomy “sometime in
18 the near future.” No specific date for indicated in Dr. Casey’s report.
19 27. On August 15, 2011, Dr. Win followed up with Plaintiff
after his recent outside orthopedic consultation with Dr. Casey. At the
20 time, Plaintiff stated that he wanted to have the surgery recommended by
Dr. Casey. Plaintiff was prescribed Tramadol for pain.
21
28. On September 27, 2011, Plaintiff was again seen by Dr.
22 Win, who informed Plaintiff that surgery had been approved.
23 29. Plaintiff underwent surgery on October 14, 2011. The
surgery was performed by Dr. Casey. The surgery was indicated to have
24 been successful.
25 30. Following surgery, Plaintiff was returned to CSP-Solano
and evaluated by Dr. Hseih. On October 19, 2011, Plaintiff was seen by
26 Dr. Lee, who reported that Plaintiff had been caught a few days prior
“cheeking” pain medication. Dr. Lee noted that Plaintiff appeared to have
27 intentionally slid off his chair while checking Plaintiff’s vitals.
28 / / /
1 31. Further post-surgical evaluations were conducted by Dr.
Win on October 20, 2011, November 2, 2011, November 17, 2011, and
2 January 6, 2012.
3 32. Dr. Tan became Plaintiff’s primary care physician on April
22, 2012, after Plaintiff was transferred to Facility B at CSP-Solano. On
4 May 25, 2012, Dr. Tan had a further post-surgery follow up with Plaintiff.
At the time, Plaintiff’s knee appeared normal, and Plaintiff was provided a
5 knee brace and shoe insoles as further accommodations. Plaintiff’s lower
bunk accommodation was renewed for another year.
6
33. On July 27, 2012, Dr. Tan saw Plaintiff for swelling in his
7 right knee. Plaintiff stated his knee had given way a few weeks earlier.
Dr. Tan ordered another x-ray of Plaintiff’s knee. The x-ray showed
8 degenerative changes and a small joint effusion of fluid in the
suprapatellar bursa.
9
34. Plaintiff was seen again by Dr. Tan on August 6, 2012, for
10 right knee pain. Plaintiff was scheduled for a follow up appointment with
Dr. Casey concerning a loose body in his right knee and a follow up
11 request was generated for shoe insoles, which had not yet been provided.
Plaintiff’s prescription for Tramadol was renewed.
12
35. On August 27, 2012, Plaintiff was treated again by Dr. Tan.
13 Treatment notes indicate Plaintiff was provided his shoe insoles but
refused to accept them because he did not like the ones provided. Plaintiff
14 was issued different gel insoles which he received that same day.
15 36. On August 28, 2012, Plaintiff seen by Dr. Casey for a
follow up appointment. Dr. Casey stated that Plaintiff is doing well
16 despite subjective complaints. Dr. Casey ordered a follow-up MRI.
17 37. On November 6, 2012, an MRI was performed on
Plaintiff’s right knee. The study revealed a 13 mm loose body in the
18 suprapatellar bursa. Otherwise, the knee was normal.
19 38. On November 30, 2012, Plaintiff was scheduled for a
follow up appointment with Dr. Casey.
20
39. Plaintiff attended a follow up appointment with Dr. Casey
21 on December 12, 2012. Dr. Casey indicated he would proceed with
removal of the loose body in Plaintiff’s right knee through another
22 arthroscopic surgery. Otherwise, Dr. Casey indicated the prior surgery
was successful.
23
40. Dr. Hsieh saw Plaintiff on December 14, 2012, and
24 reported that Plaintiff refused Toradol and refused a lower tier transfer.
He also refused to use his walker.
25
41. Plaintiff underwent further arthroscopic surgery on his right
26 knee on January 25, 2013, to remove the loose body. At the time, the
medial meniscus and articulating surfaces were visually inspected, along
27 with the ACL, and Dr. Casey indicated they were in good repair. The
loose body removed was indicated to be a little larger than a pea, which
28 Dr. Casey stated would have likely caused Plaintiff some minor
1 discomfort.
2 42. After the second surgery, Plaintiff refused to use crutches
and at times refused to take pain medications.
3
43. X-ray imaging obtained after the second surgery indicated
4 only mild degenerative changes since his ACL reconstruction.
5 44. CSP-Solano policy requires that all new requests, increases,
or changes in pain medication must be approved by the Pain Management
6 Committee upon submission of a request by a primary care physician.
7 45. Dr. Win did not intentionally or willfully seek to harm
Plaintiff or delay medical treatment.
8
46. Dr. Tan did not intentionally or willfully seek to harm
9 Plaintiff or delay medical treatment.
10 47. Nurse Fontillas did not intentionally or willfully seek to
harm Plaintiff or delay medical treatment.
11
48. Nurse Carlson did not intentionally or willfully seek to
12 harm Plaintiff or delay medical treatment.
13 49. Nurse Hardman did not intentionally or willfully seek to
harm Plaintiff or delay medical treatment.
14
ECF No. 77-2.
15
16 B. Plaintiff’s Evidence
17 Plaintiff’s response in opposition is largely a restatement of Plaintiff’s claims. See
18 ECF No. 86. Plaintiff relies on the following exhibits attached to Plaintiff’s opposition:
19 Exhibit A CDCR Form 7277. ECF No. 86, pgs. 39-40.
20 Exhibit B Photo of “Loose Body.” ECF No. 86, pgs. 41-42.
21 Exhibit C Proof of Ongoing Knee Issues. ECF No. 86, pgs. 43-64.
22 Plaintiff does not reproduce Defendants’ itemized facts and does not admit or deny
23 any of Defendants’ itemized facts. Plaintiff merely provides his account of the incident again.
24 Plaintiff failed to comply with Federal Rule of Civil Procedure 56 and Eastern
25 District of California Local Rule 260(b) by not providing the required support for his assertions
26 that a triable issue of fact exists. Plaintiff did not cite particular parts of materials in the record,
27 nor did he show that the materials cited do not establish the absence or presence of a genuine
28 dispute.
1 Federal Rule of Civil Procedure 56(c)(1) states:
2 A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
3 (A) citing to particular parts of materials in the record
including depositions, documents, electronically stored information,
4 affidavits or declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or other materials;
5 or
(B) showing that the materials cited do not establish the
6 absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
7
8 Additionally, Eastern District Court of California’s Local Rule 260(b) states in
9 relevant part:
10 Any party opposing a motion for summary judgment or summary
adjudication shall reproduce the itemized facts in the Statement of
11 Undisputed Facts and admit those facts that are undisputed and deny those
that are disputed, including with each denial a citation to the particular
12 portions of any pleading, affidavit, deposition, interrogatory answer,
admission, or other document relied upon in support of that denial.
13
14 Further, Federal Rule of Civil Procedure 56(e) states:
15 If a party fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact as required by Rule 56(c), the
16 court may:
(1) give an opportunity to properly support or address the
17 fact;
(2) consider the fact undisputed for purposes of the motion;
18 (3) grant summary judgment if the motion and supporting
materials—including the facts considered undisputed—
19 show that the movant is entitled to it; or
(4) issue any other appropriate order.
20
21 Here, Plaintiff failed to reproduce Defendants’ undisputed facts, failed to admit or
22 deny Defendants’ undisputed facts, and failed to cite to evidence that demonstrates the existence
23 of a genuine issue of material fact. The Court considers Defendants’ facts as undisputed for the
24 purposes of this motion. Beard v. Banks, 548 U.S. 521, 527 (2006) (“[B]y failing specifically to
25 challenge the facts identified in the defendant's statement of undisputed facts, [plaintiff] is
26 deemed to have admitted the validity of the facts contained in the [defendant's] statement.”); Brito
27 v. Barr, No. 2:18-cv-00097-KJM-DB, 2020 WL 4003824, at *6 (E.D. Cal. July 15, 2020); see
28 also Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004).
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 simply show that there is some metaphysical doubt as to the material facts . . . . Where the record
1 taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no
2 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). It is sufficient that “the
3 claimed factual dispute be shown to require a trier of fact to resolve the parties’ differing versions
4 of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631.
5 In resolving the summary judgment motion, the court examines the pleadings,
6 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.
7 See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, see Anderson,
8 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the
9 court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587.
10 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to
11 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen
12 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir.
13 1987). Ultimately, “[b]efore the evidence is left to the jury, there is a preliminary question for the
14 judge, not whether there is literally no evidence, but whether there is any upon which a jury could
15 properly proceed to find a verdict for the party producing it, upon whom the onus of proof is
16 imposed.” Anderson, 477 U.S. at 251.
17
18 IV. DISCUSSION
19 In their motion for summary judgment, Defendants argue that they are entitled to
20 judgment as a matter of law for the following reasons: (1) Plaintiff failed to cite to specific
21 evidence that supports that there is a genuine issue of material fact; (2) Defendants timely and
22 properly treated Plaintiff’s right knee, adequately addressed Plaintiff’s complaints of pain, and
23 appropriately provided a lower bunk accommodation upon request; and (3) Defendants are
24 entitled to qualified immunity. See ECF No. 87, pg. 1, and ECF No. 77, pg. 1.
25 Plaintiff’s non-compliance with the Federal Rules of Civil Procedure and Local
26 Rules regarding opposing a motion for summary judgment is discussed above. Below the Court
27 discusses Defendants’ remaining contentions.
28 / / /
1 A. Deliberate Indifference to Plaintiff’s Serious Medical Needs
2 The treatment a prisoner receives in prison and the conditions under which the
3 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel
4 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan,
5 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts
6 of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102
7 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v.
8 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with
9 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy,
10 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when
11 two requirements are met: (1) objectively, the official’s act or omission must be so serious such
12 that it results in the denial of the minimal civilized measure of life’s necessities; and (2)
13 subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of
14 inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison
15 official must have a “sufficiently culpable mind.” See id.
16 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious
17 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105;
18 see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health
19 needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), abrogated on other grounds by
20 Sandin v. Conner, 515 U.S. 472 (1995). An injury or illness is sufficiently serious if the failure to
21 treat a prisoner’s condition could result in further significant injury or the “. . . unnecessary and
22 wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled
23 on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); see
24 also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). Factors indicating seriousness
25 are: (1) whether a reasonable doctor would think that the condition is worthy of comment; (2)
26 whether the condition significantly impacts the prisoner’s daily activities; and (3) whether the
27 condition is chronic and accompanied by substantial pain. See Lopez v. Smith, 203 F.3d 1122,
28 1131-32 (9th Cir. 2000) (en banc).
1 The requirement of deliberate indifference is less stringent in medical needs cases
2 than in other Eighth Amendment contexts because the responsibility to provide inmates with
3 medical care does not generally conflict with competing penological concerns. See McGuckin,
4 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to
5 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir.
6 1989). The complete denial of medical attention may constitute deliberate indifference. See
7 Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical
8 treatment, or interference with medical treatment, may also constitute deliberate indifference. See
9 Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate
10 that the delay led to further injury. See McGuckin, 974 F.2d at 1060.
11 Negligence in diagnosing or treating a medical condition does not, however, give
12 rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a
13 difference of opinion between the prisoner and medical providers concerning the appropriate
14 course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh,
15 90 F.3d 330, 332 (9th Cir. 1996).
16 1. Defendant Tan
17 Prior to Plaintiff’s ACL surgery and prior to Defendant Tan becoming Plaintiff’s
18 primary care physician, Defendant Tan reviewed Plaintiff’s medical records, indicated in his
19 report dated December 21, 2010, that Plaintiff had no active medications at the time of his
20 transfer other than ibuprofen, that Plaintiff had a history of an ACL tear, and the Plaintiff should
21 be scheduled for a follow-up appointment with his primary care physician in approximately four
22 weeks. See ECF No. 77-2, pg. 3.
23 After Plaintiff’s surgery and after Defendant Tan became Plaintiff’s primary care
24 physician on or about April 22, 2012, Defendant Tan treated Plaintiff on May 25, 2012. Id. at 7.
25 “The knee appeared normal, and Plaintiff was provided as a further accommodation a knee brace
26 and shoe insoles for support.” Id. Plaintiff’s lower bunk accommodation was renewed for
27 another year. See id.
28 / / /
1 On July 27, 2012, Defendant Tan treated Plaintiff for swelling in his knee. See id.
2 Defendant Tan had already approved a renewal of Plaintiff’s pain medications and ordered an x-
3 ray exam. See id. The x-ray exam indicated “degenerative changes existed and there was a small
4 joint effusion of fluid in the suprapatellar bursa.” Id.
5 On August 6, 2012, Defendant Tan saw Plaintiff for right knee pain and was
6 scheduled for a follow up appointment with another doctor concerning a loose body in Plaintiff’s
7 right knee. See id. at 7-8. A request for shoe insoles was generated and Plaintiff’s pain
8 medication was renewed again. See id. at 8.
9 On August 27, 2012, Defendant Tan treated Plaintiff again. See id. Plaintiff
10 refused shoe insoles provided to him and was then issued different gel insoles. See id. After
11 Plaintiff received an MRI, Plaintiff had surgery to remove a loose body in Plaintiff’s right knee.
12 See id.
13 Defendant Tan was at most negligent. There are no facts that demonstrate that
14 Defendant Tan in any way sought to intentionally inflict harm on Plaintiff or that Defendant Tan
15 was deliberately indifferent to Plaintiff’s medical needs. To the contrary, the undisputed facts
16 submitted by Defendants show that Defendant Tan consistently provided Plaintiff treatment.
17 Therefore, Defendant Tan is entitled to judgment as a matter of law.
18 2. Defendant Fontillas
19 On December 27, 2010, Plaintiff was treated by Defendant Fontillas, after
20 submitting a request for health services. See id. at 3. “Plaintiff complained of chronic back pain
21 and was provided ibuprofen for this pain.” Id. The plan was for Plaintiff to see the doctor to
22 discuss other needs, which Plaintiff did two weeks later. See id.
23 On March 9, 2011, Defendant Fontillas reviewed another health services request
24 from Plaintiff, indicating Plaintiff would like to see Defendant Win, and Defendant Fontillas
25 noted that Plaintiff was scheduled to see Dr. Win the next day. See id. at 4.
26 / / /
27 / / /
28 / / /
1 On April 16, 2011, Defendant Fontillas received a further healthcare services
2 request from Plaintiff to obtain a lower bunk accommodation. See id. at 5. Defendant Fontillas’s
3 notes reflect that Plaintiff was scheduled for a follow-up appointment with Defendant Win on
4 April 21, 2011, who could address the lower bunk accommodation request. See id.
5 The undisputed facts establish that Defendant Fontillas did nothing to give rise to a
6 constitutional claim. Defendant Fontillas did not have the authority to change pain medications
7 or grant a lower bunk accommodation request. See id. at 9. Further, the undisputed facts simply
8 do not show that Defendant Fontillas intended to harm Plaintiff or that Defendant Fontillas
9 deliberately disregarded his medical needs. Therefore, Defendant Fontillas is entitled to
10 judgment as a matter of law.
11 3. Defendant Hardman
12 On January 4, 2011, Defendant Hardman responded to Plaintiff’s health services
13 request form, indicating chronic right knee and lower back pain. See id. at 5. “Plaintiff’s vitals
14 were taken, and the notes indicated that Plaintiff was scheduled for an appointment with
15 Plaintiff’s primary care physician to occur on January 11, 2011.” Id.
16 “On May 19, 2011, Plaintiff filed another health services request form for pain,
17 indicating physical therapy was not assisting, that Plaintiff had an MRI exam that day and wanted
18 to know the results, and that his Tylenol 3 pain medication was not sufficient.” Id. The response
19 from Defendant Hardman on May 24, 2011, indicated Plaintiff’s vitals were taken, and Plaintiff
20 indicated his pain was a 6 out of 10. See id. “Plaintiff was referred back to his primary care
21 physician, Plaintiff’s pain medication was refilled, and it was communicated to Plaintiff an
22 appointment was scheduled for June 2, 2011 with Dr. Win, which would allow time for the MRI
23 results to be obtained.” Id.
24 As with Defendant Fontillas, the undisputed facts establish that Defendant
25 Hardman did nothing to give rise to a constitutional claim. Defendant Hardman did not have the
26 authority to change pain medications or grant a lower bunk accommodation request. See id. at 9.
27 Further, the facts simply do not show that Defendant Hardman intended to harm Plaintiff or
28 deliberately disregarded his medical needs. Therefore, Defendant Hardman is entitled to
1 judgment as a matter of law.
2 4. Defendant Win
3 On January 11, 2011, Plaintiff was treated and evaluated by Defendant Win. See
4 id. at 3. “Dr. Win indicated Plaintiff had a right-knee meniscus injury, [sic] but stated it was
5 unlikely Plaintiff had an ACL tear.” Id. “Dr. Win’s notes stated the medical records did not
6 show any prior doctor had ordered an MRI or an orthopedic referral for Plaintiff’s right knee.”
7 Id. Defendant Win noted that Plaintiff’s gait was normal, undertook a physical assessment, and
8 noted that Plaintiff had no difficulty getting on and off the chair. See id. “Dr. Win noted further
9 that Plaintiff had a chronic right knee injury but needed to rule out an ACL tear. Dr. Win ordered
10 Plaintiff to physical therapy, [sic] and provided a prescription for naproxen for Plaintiff’s pain.”
11 Id.
12 On March 10, 2011, Defendant Win saw Plaintiff who complained of further pain
13 in his right knee, which he indicated had been exacerbated due to another recent fall. See id. at 4.
14 “Dr. Win ordered Plaintiff an x-ray, which was taken that same day.” Id. The x-ray notes
15 indicated “no fracture, dislocation or focal osseous lesion, along with no joint effusion.” Id.
16 “The impression indicated ‘negative knee.’” Id.
17 Defendant Win requested Plaintiff be scheduled for an MRI and scheduled a
18 further x-ray to confirm that no metallic materials were in Plaintiff’s body in order to clear
19 Plaintiff for an MRI. See id. The x-ray was done on March 25, 2011. See id.
20 On April 21, 2011, Defendant referred Plaintiff to consult an orthopedic specialist
21 for his knee and granted Plaintiff’s request for a lower bunk accommodation. See id. at 5.
22 “Plaintiff received his lower bunk accommodation on June 14, 2011.” Id.
23 On June 2, 2011, Defendant Win prescribed acetaminophen with codeine for
24 Plaintiff’s pain, which was approved by the Pain Management Committee. See id. at 6.
25 On July 14, 2011, Plaintiff was seen by Defendant Win again, who indicated that
26 he was waiting the results of Plaintiff’s orthopedic consult and provided Plaintiff with a cane for
27 mobility. See id.
28 / / /
1 On August 15, 2011, after Plaintiff’s orthopedic consult, Defendant Win treated
2 Plaintiff who elected to have surgery, and Defendant Win “prescribed Tramadol (Toradol)” for
3 his pain; a decision that was approved by the Pain Management Committee. See id.
4 “Plaintiff had several other follow-up evaluations with Dr. Win and file consults
5 that occurred after Plaintiff’s surgery. This included evaluations on October 20, 2011, November
6 2, 2011, November 17, 2011, and January 6, 2012, with other file consults, prescription referrals
7 and file notes included in the same time frame.” Id. at 7.
8 As stated above, Defendant Win provided Plaintiff treatment, pain medications,
9 and a lower bunk accommodation to address Plaintiff’s medical issues. Defendant Win thought
10 Plaintiff did not have a torn ACL but still provided Plaintiff with treatment and exams, which
11 ultimately lead to Plaintiff’s surgeries. The undisputed evidence shows that Defendant Win was
12 not deliberately indifferent. At most, Defendant Win may have been negligent in not identifying
13 a torn ACL. Defendant Win is entitled to judgment as a matter of law on Plaintiff’s Eighth
14 Amendment deliberate indifference claims.
15 5. Defendant Braunger (“Carlson”)
16 On January 28, 2011, Plaintiff was treated by Defendant Carlson for right knee
17 pain. See id. at 4. Defendant’s notes indicate that Plaintiff had been prescribed naproxen for his
18 pain, and Plaintiff should submit a health care services request form if his symptoms persist or his
19 pain increases. See id. “Plaintiff was ambulatory and stable, [sic] and was returned to his
20 housing unit with a request that he follow up with the physician clinic shortly.” Id. “Plaintiff
21 described his pain level as a 6 plus out of 10.” Id.
22 The undisputed evidence does not reflect any conduct by Defendant Carlson that
23 gives rise to a constitutional violation. Defendant Carlson is entitled to judgment as a matter of
24 law.
25 / / /
26 / / /
27 / / /
28 / / /
1 C. Qualified Immunity
2 Government officials enjoy qualified immunity from civil damages unless their
3 conduct violates “clearly established statutory or constitutional rights of which a reasonable
4 person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In general,
5 qualified immunity protects “all but the plainly incompetent or those who knowingly violate the
6 law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). In ruling upon the issue of qualified
7 immunity, the initial inquiry is whether, taken in the light most favorable to the party asserting the
8 injury, the facts alleged show the defendant’s conduct violated a constitutional right. See Saucier
9 v. Katz, 533 U.S. 194, 201 (2001). If a violation can be made out, the next step is to ask whether
10 the right was clearly established. See id. This inquiry “must be undertaken in light of the specific
11 context of the case, not as a broad general proposition . . . .” Id. “[T]he right the official is
12 alleged to have violated must have been ‘clearly established’ in a more particularized, and hence
13 more relevant, sense: The contours of the right must be sufficiently clear that a reasonable
14 official would understand that what he is doing violates that right.” Id. at 202 (citation omitted).
15 Thus, the final step in the analysis is to determine whether a reasonable officer in similar
16 circumstances would have thought his conduct violated the alleged right. See id. at 205.
17 When identifying the right allegedly violated, the court must define the right more
18 narrowly than the constitutional provision guaranteeing the right, but more broadly than the
19 factual circumstances surrounding the alleged violation. See Kelly v. Borg, 60 F.3d 664, 667 (9th
20 Cir. 1995). For a right to be clearly established, “[t]he contours of the right must be sufficiently
21 clear that a reasonable official would understand [that] what [the official] is doing violates the
22 right.” See Anderson v. Creighton, 483 U.S. 635, 640 (1987). Ordinarily, once the court
23 concludes that a right was clearly established, an officer is not entitled to qualified immunity
24 because a reasonably competent public official is charged with knowing the law governing his
25 conduct. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). However, even if the plaintiff
26 has alleged a violation of a clearly established right, the government official is entitled to
27 qualified immunity if he could have “. . . reasonably but mistakenly believed that his . . . conduct
28 did not violate the right.” Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001); see
1 also Saucier, 533 U.S. at 205.
2 The first factors in the qualified immunity analysis involve purely legal questions.
3 See Trevino v. Gates, 99 F.3d 911, 917 (9th Cir. 1996). The third inquiry involves a legal
4 determination based on a prior factual finding as to the reasonableness of the government
5 official’s conduct. See Neely v. Feinstein, 50 F.3d 1502, 1509 (9th Cir. 1995). The district court
6 has discretion to determine which of the Saucier factors to analyze first. See Pearson v. Callahan,
7 555 U.S. 223, 236 (2009). In resolving these issues, the court must view the evidence in the light
8 most favorable to plaintiff and resolve all material factual disputes in favor of plaintiff. See
9 Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003).
10 Qualified immunity shields government officials who, in the face of clearly
11 established law, acted reasonably but nonetheless violated some constitutional right. As
12 discussed above, the undisputed evidence shows the Defendants did not violate Plaintiff’s rights.
13 Therefore, qualified immunity is not an issue in this case. And even if the Court concluded the
14 Defendants did violate a clearly established right, they would be entitled to qualified immunity
15 because the undisputed evidence shows that the Defendants acted reasonably by appropriately
16 treating Plaintiff’s medical concerns and providing Plaintiff with a lower bunk accommodation.
17 / / /
18 / / /
19 / / /
20 / / /
21 / / /
22 / / /
23 / / /
24 / / /
25 / / /
26 / / /
27 / / /
28 / / /
1 V. CONCLUSION
2 Based on the foregoing, the undersigned recommends that:
3 1. Moving Defendants’ motion for summary judgment, ECF No. 77, be
4 | granted;
5 2. Judgement be entered as a matter of law in favor of Defendants Tan,
6 | Fontillas, Hardman, Win, and Braunger (“Carlson”); and
7 3, Non-moving Defendants Hannies, Kiesz, and Herhst be dismissed pursuant
8 | to Federal Rule of Civil Procedure 4(m) for failure to effect timely service of process.
9 These findings and recommendations are submitted to the United States District
10 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days
11 | after being served with these findings and recommendations, any party may file written objections
12 | with the court. Responses to objections shall be filed within 14 days after service of objections.
13 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v.
14 | Yist, 951 F.2d 1153 (9th Cir. 1991).
15
16 || Dated: October 29, 2021 Ssvcqo_
M7 DENNIS M. COTA
18 UNITED STATES MAGISTRATE JUDGE
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