(PC) Jackson v. Merritt

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 ANTOINE JACKSON, Case No. 1:18-cv-01327-DAD-HBK

12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO

GRANT DEFENDANTS’ MOTION FOR

13 v. SUMMARY JUDGMENTT1

14 LAURA MERRITT and RN MCCOY, (Doc. No. 27)

15 Defendants. FOURTEEN-DAY OBJECTION PERIOD

16

17

18 Pending before the Court is the Motion for Summary Judgment filed by Defendants Laura

19 Merritt and M. McCoy on July 2, 2020. (Doc. No. 27, “MSJ”). Plaintiff did not file an

20 opposition. (See Doc. No. 29). For the reasons stated below, the undersigned finds no genuine

21 dispute as to any material facts and recommends Defendants’ MSJ be granted.

22 I. BACKGROUND

23 Plaintiff Antoine Jackson (“Plaintiff” or “Jackson”), a state prisoner, initiated this action

24 by filing a pro se civil rights complaint under 42 U.S.C. § 1983 on September 26, 2018. (Doc.

25 No. 1). On May 28, 2019, the then-assigned magistrate judge screened the complaint pursuant to

26

27

1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Eastern District of

28 California Local Rule 302 (E.D. Cal. 2019).

1 28 U.S.C. § 1915A and found that Plaintiff had stated a cognizable claim of medical deliberate

2 indifference against Defendants Merritt and McCoy while Plaintiff was at SATF Corcoran. (Doc.

3 No. 11). Defendants answered the complaint on August 23, 2019. (Doc. No. 15).

4 After discovery and in compliance with the scheduling order (Doc. No. 16), Defendants

5 timely filed the instant MSJ on July 2, 2020. (Doc. No. 27). In support, Defendants submit a

6 statement of undisputed material facts (Doc. No. 27-2); the declaration and CV of Bennett

7 Feinberg (Doc. No. 27-4); the declaration of R. Rada (Doc. No. 27-5); the declaration of L.

8 Merritt (Doc. No. 27-6); the declaration of M. McCoy (Doc. No. 27-7); excerpts of Plaintiff’s

9 medical records (Doc. No. 27-4, 10-131; Doc. No. 27-5, 7-69; Doc. No. 27-6, 4-17; Doc. No. 27-

10 7, 4-20); and excerpts of Plaintiff’s deposition (Doc. No. 27-8, 3-10). Plaintiff did not submit any

11 materials in opposition to the motion.

12 II. APPLICABLE LAW

13 Summary Judgment Standard

14 Summary judgment is appropriate when there is “no genuine dispute as to any material

15 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is

16 material where it is (1) relevant to an element of a claim or a defense under the substantive law

17 and (2) would affect the outcome of the suit. See Anderson v. Liberty Lobby, Inc. 477 U.S. 242,

18 247 (1987). The party moving for summary judgment bears the initial burden of proving the

19 absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323

20 (1986).

21 When the moving party has met this burden, the nonmoving party must go beyond the

22 pleadings and set forth specific facts, by affidavits, deposition testimony, documents, or discovery

23 responses, showing there is a genuine issue that must be resolved by trial. See Fed. R. Civ. P.

24 56(c)(1); Pacific Gulf Shipping Co. v. Vigorous Shipping & Trading S.A., 992 F.3d 893, 897 (9th

25 Cir. 2021). A mere “scintilla of evidence” in support of the nonmoving party’s position is

26 insufficient. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). The evidence

27 must allow a reasonable juror, drawing all inferences in favor of the nonmoving party, to return a

28 verdict in that party’s favor. Id. Conclusory or speculative testimony in affidavits and supporting

1 papers is insufficient to raise a genuine issue of fact and defeat summary judgment. Soremekun v.

2 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007); see Fed. R. Civ. P. 56(c)(2).

3 The court may only consider evidence that would be admissible if offered at trial. Fed. R.

4 Civ. P. 56(c). It has no obligation to consider evidence that is not cited in the papers, though it is

5 permitted to do so. See Fed. R. Civ. P. 56(c)(3). The court must view the evidence in the light

6 most favorable to the nonmoving party. Tolan v. Cotton, 572 U.S. 650, 655 (2014). It may not

7 weigh evidence or make credibility determinations. Manley v. Rowley, 847 F.3d 705, 711 (9th

8 Cir. 2017).

9 Eighth Amendment Medical Deliberate Indifference

10 Deliberate indifference to the serious medical needs of an incarcerated person constitutes

11 cruel and unusual punishment in violation of the Eighth Amendment. See Estelle v. Gamble, 429

12 U.S. 97, 104 (1976). A finding of “deliberate indifference” involves an examination of two

13 elements: the seriousness of the plaintiff’s medical need (determined objectively) and the nature

14 of the defendant's response (determined by defendant’s subjective state of mind). See McGuckin

15 v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992), overruled on other grounds, WMX Technologies,

16 Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.1997) (en banc). On the objective prong, a “serious”

17 medical need exists if the failure to treat “could result in further significant injury” or the

18 “unnecessary and wanton infliction of pain.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir.

19 2014). On the subjective prong, a prison official must know of and disregard a serious risk of

20 harm. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Such indifference may appear when a

21 prison official intentionally denies or delays care, or intentionally interferes with treatment once

22 prescribed. Estelle, 429 U.S. at 104-05.

23 If, however, the official failed to recognize a risk to the plaintiff—that is, the official

24 “should have been aware” of a risk, but in fact was not—the official has not violated the Eighth

25 Amendment. Sandoval v. Cnty. of San Diego, 985 F.3d 657, 668 (9th Cir. 2021) (emphasis in

26 original). That is because deliberate indifference is a higher standard than medical malpractice.

27 Thus, a difference of opinion between medical professionals—or between the plaintiff and

28 defendant—generally does not amount to deliberate indifference. See Toguchi v. Chung, 391

1 F.3d 1051, 1057 (9th Cir. 2004). An argument that more should have been done to diagnose or

2 treat a condition generally reflects such differences of opinion and not deliberate indifference.

3 Estelle, 429 U.S. at 107. To prevail on a claim involving choices between alternative courses of

4 treatment, a plaintiff must show that the chosen course “was medically unacceptable under the

5 circumstances,” and was chosen “in conscious disregard of an excessive risk” to the plaintiff’s

6 health. Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016).

7 Neither will an “inadvertent failure to provide medical care” sustain a claim, Estelle, 429

8 U.S. at 105, or even gross negligence, Lemire v. California Dep't of Corr. & Rehab., 726 F.3d

9 1062, 1082 (9th Cir. 2013). Misdiagnosis alone is not a basis for a claim of deliberate medical

10 indifference. Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012). A delay in treatment,

11 without more, is likewise insufficient to state a claim. Shapley v. Nevada Bd. of State Prison

12 Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). It is only when an official both recognizes and

13 disregards a risk of substantial harm that a claim for deliberate indifference exists. Peralta v.

14 Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) (en banc). A plaintiff must also demonstrate harm

15 from the official’s conduct. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). And the

16 defendant’s actions must have been both an actual and proximate cause of this harm. Lemire, 726

17 F.3d at 1074.

18 III. ANALYSIS

19 Allegations in Support of Medical Indifference in Plaintiff’s Complaint

20 Plaintiff alleges that while he was incarcerated at SATF Corcoran, Defendant Merritt

21 acted unprofessionally and denied him treatment. (Doc. No. 1, 3, ¶ 3). He also alleges that when

22 he initially saw Defendant McCoy for treatment, McCoy told him there was nothing he could do.

23 (Id.). Several days later, Plaintiff alleges, McCoy ordered throat medication for him, though he

24 continued to have night chills and could not eat. (Id.). Sometime later, Plaintiff alleges he asked

25 to be tested for Valley Fever,2 but another unidentified nurse told him he did not have Valley

26 Fever and that nothing was wrong. (Id.).

27

28

2 Valley Fever is the colloquial name of the fungal infection coccidioidomycosis. Edison v. United States,

1 The following week, Plaintiff was transferred to another facility and three days after that,

2 was taken to an outside hospital, where he was informed his “blood count was low” and was

3 diagnosed with pneumonia. (Id. ¶ 3). At some point, Plaintiff was coughing up blood. (Id. ¶ 4).

4 He was tested for Valley Fever in January 2018. On June 2, 2018, Plaintiff learned that he had

5 Valley Fever for six months. (Id. ¶ 3).

6 Plaintiff’s Failure to Properly Oppose the Motion Under Rule 56

7 On July 2, 2020, Defendants served Plaintiff with their MSJ, including a warning under

8 Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1988), that described Plaintiff’s obligations in

9 responding to a summary judgment motion. (Doc. Nos. 27-9, 27-10). Plaintiff did not submit

10 any materials in opposition to the motion. On August 26, 2020, Defendants served Plaintiff with

11 a declaration stating that Plaintiff had failed to file any opposition to Defendants’ MSJ. (Doc. No.

12 29). Plaintiff has still not submitted any materials in opposition to the motion.

13 The Court may not automatically grant summary judgment to a defendant solely because a

14 plaintiff fails to properly oppose the motion. See Fed R. Civ. P. 56(e)(2)-(3); Heinemann v.

15 Satterberg, 731 F.3d 914, 917 (9th Cir. 2013). A plaintiff’s verified complaint may be used as an

16 opposing affidavit under Rule 56. Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995). To

17 function as an opposing affidavit, the complaint must be based on personal knowledge, not

18 merely belief, and set forth specific, admissible facts. Id.; Fed. R. Civ. P. 56(e).

19 A complaint’s conclusory allegations, unsupported by specifics facts, will not be sufficient

20 to avoid summary judgment. Arpin v. Santa Clara Valley Transportation Agency, 261 F.3d 912,

21 922 (9th Cir. 2001). Where, as here, a plaintiff fails to properly challenge the facts asserted by

22 the defendant, the plaintiff may be deemed to have admitted the validity of those facts. See Fed.

23 R. Civ. P. 56(e)(2). A court may grant an unopposed or inadequately opposed motion for

24 summary judgment if the supporting papers are themselves sufficient to warrant granting the

25 motion and do not on their face reveal a genuine issue of material fact. See Henry v. Gill

26 Industries, Inc., 983 F.2d 943, 950 (9th Cir. 1993). The Court will consider the entire record and

27 deem only those facts true which are properly supported by evidence.

28 //

1 Undisputed Facts

2 Initially, the Court determines the follow background facts to be undisputed: Plaintiff was

3 incarcerated at SATF Corcoran from July 28, 2017 to December 20, 2017, when he was

4 transferred to Richard J. Donovan Correctional Facility (“RJD”). (Doc. Nos. 1 at 3 ¶ 3; 27-5 at 4

5 ¶13; 27-6 at 3 ¶12). Defendant Merritt was employed at SATF Corcoran as a nurse practitioner

6 and a primary care provider between July 27, 2017 and December 12, 2017. (Doc. No. 27-6 at 1-

7 2 ¶¶ 4-5). Defendant McCoy was employed at SATF Corcoran as a registered nurse between July

8 27, 2017 and December 12, 2017. (Doc. No. 27-7 at 1 ¶4).

9 Defendants provide a chronology and supporting evidence detailing the numerous medical

10 appointments Plaintiff had with Defendants between August and November 2017 and the

11 treatment he received. (Doc Nos. 27-2 at 2-4 ¶¶ 7, 10-30; 27-5 at 2-4 ¶¶ 9-12; 27-6 at 2-3 ¶¶ 6-

12 10; 27-7 at 2 ¶¶ 6-7). These include appointments relating to leg pain, jaundice, fatigue, anemia,

13 and hepatitis C. (Id.) Plaintiff, however, admits that symptoms he attributes to Valley Fever did

14 not start until the beginning of December 2017 (Doc. No. 27-8 at 8:11-13), which is supported by

15 the medical records (Doc. Nos. 27-4 at 3-4 ¶¶ 7-12; 27-5 at 4 ¶ 12, 28). Thus, the relevant time

16 period for Plaintiff’s claims is between the beginning of December 2017—the asserted onset of

17 symptoms—and December 20, 2017, when Plaintiff was transferred from SATF Corcoran to

18 RJD.3

19 The undersigned finds the following material facts to be undisputed upon a thorough

20 review of the record, including Plaintiff’s verified complaint, Defendants’ statement of

21 undisputed facts, and Defendants’ supporting evidence:

22 • On December 4, Plaintiff submitted a health care services request form stating that

23 he was “really sick.” (Doc. Nos. 27-4 at 3 ¶ 10, 14; 27-7 at 2 ¶ 8).

24 • On December 5, 2017, McCoy met with Plaintiff and was informed that his nausea

25

3 The record shows Plaintiff was tested for and diagnosed with Valley Fever in January 2018, while

26

incarcerated at RJD, but this condition was apparently left untreated for six months, until June 2018.

27 (Doc. No. 27-5 at 4-5 ¶¶ 15-17; Ex. C at 58-69; see also Doc. No. 1 at 3 ¶ 3). These circumstances, while

troubling, are outside the scope of Plaintiff’s complaint against Defendants Merritt and McCoy and not at

28 issue in this MSJ.

1 and vomiting symptoms had cleared up and that he did not have any chills, cough,

2 fever, loss of appetite, night sweats or weight loss greater than ten pounds.

3 Plaintiff was already scheduled for an appointment with his primary care provider

4 for later that day. (Doc. No. 27-7 at 2 ¶ 8).

5 • On December 5, 2017, Merritt, Plaintiff’s primary care provider, examined

6 Plaintiff. Plaintiff informed her that his symptoms of nausea, vomiting, and

7 diarrhea had resolved and that he was eating. His exam was unremarkable. He did

8 not request a test for Valley Fever. (Doc. No. 27-6 at 2 ¶ 11).

9 • On December 6, 2017, Plaintiff submitted another health services request form,

10 stating that he had been sick for the last three days and that the medications given

11 to him were not helping. (Doc. No. 27-7 at 2 ¶ 8).

12 • On December 8, 2017, Plaintiff informed McCoy that his “symptoms have

13 resolved” and that he had “no complaints today.” McCoy made no clinical

14 findings that would cause him to refer Plaintiff to a primary care provider but

15 McCoy advised Plaintiff to submit another health request form as needed. This

16 was the last time McCoy examined Plaintiff. (Doc. No. 27-7 at 3 ¶ 9).

17 • On December 12, 2017, stating he had been sick for two weeks, Plaintiff first

18 requested a Valley Fever test by submitting a health services request form. (Doc.

19 Nos. 27-5 at 4 ¶ 12; 27-8 at 8:25-9:7).

20 • On December 12, 2017, an unidentified registered nurse at SATF Corcoran—not

21 either of the Defendants—reviewed Plaintiff’s health care request form. The nurse

22 met with Plaintiff, determined his vital signs were normal and that his lungs were

23 clear on auscultation. She referred him for an appointment with his primary care

24 provider within 14 days, a routine time frame for non-emergency, non-urgent care.

25 (Doc. No. 27-6 at 4 ¶ 12).

26 • At no time was L. Merritt aware that Plaintiff requested a Valley Fever test. (Doc.

27 No. 27-6 at 3 ¶¶ 11, 13).

28 • On December 20, Plaintiff was transferred to RJD and was no longer under the

1 care of Defendants. (Doc. Nos. 27-5 at 5-6, ¶¶ 17, 23-24; 27-6 at 4 ¶ 13).

2 • In January 2018, Plaintiff was diagnosed with pneumonia at another institution.

3 (Doc No. 1 at 3 ¶ 3; 27-4 at 5 ¶¶ 18-19).

4 • Dr. Feinberg, Board Certified in internal medicine, opines that Defendants were

5 attentive to Plaintiff’s medical needs and that Plaintiff did not present to

6 Defendants with symptoms suggestive of Valley Fever. (Doc. No. 27-4 at 6 ¶ 23).

7 • R. Rada, a registered nurse, opines that Plaintiff was properly treated and was not

8 denied medical care or access to care by McCoy. (Doc. No. 27-5 at 5 ¶¶ 18, 20).

9 • R. Rada also opines that Plaintiff was properly treated and was not denied medical

10 care or access to care by Merritt. (Doc. No. 27-5 at 5 ¶¶ 19-20).

11 The Undisputed Material Facts Show Merritt and McCoy Were Not Deliberately

12 Indifferent

13 Deliberate indifference is a two-pronged inquiry: (1) was plaintiff’s medical need serious;

14 and, if so, (2) did the defendant know of and disregard the risk of plaintiff’s medical need,

15 causing harm. Jett, 439 F.3d at 1096. In their MSJ, Defendants do not address the first prong—

16 whether the risks of Valley Fever are serious. The Court, nonetheless, finds that the risks of

17 Valley Fever are indeed serious, as the infection can lead to a severe respiratory disease and, in

18 rare cases, to death. Hines v. Youseff, 914 F.3d 1218, 1224 (9th Cir.), cert. denied sub nom. Smith

19 v. Schwarzenegger, 140 S. Ct. 159 (2019).

20 Finding the first prong satisfied, the Court will proceed to the merits of Defendants’

21 motion. Defendants seek summary judgment on the grounds that Plaintiff cannot establish the

22 second prong of his deliberate indifference claim. Specifically, Defendants assert they were not

23 deliberately indifferent because they were never subjectively aware Plaintiff needed testing or

24 treatment for Valley Fever, and their treatment of Plaintiff was medically standard. (Doc. No. 27-

25 1 at 1, 8-12).

26 1. Merritt Was Not Deliberately Indifferent

27 The record shows no genuine dispute of material fact concerning whether Defendant

28 Merritt acted with deliberate indifference to Plaintiff’s serious medical condition. The second

1 prong requires evidence that the defendant actually recognized a substantial risk of serious harm

2 to plaintiff and disregarded that risk. Farmer, 511 U.S. at 837. Under penalty of perjury, Merritt

3 declared she was never aware that Plaintiff had Valley Fever. (Doc. No. 27-6 at 3 ¶ 13). This is

4 consistent with the medical records submitted. (Doc. Nos. 27-6 at 3 ¶ 13, 6-15). Merritt saw

5 Plaintiff on December 5, 2017. (Doc. No. 27-6 at 2-3, ¶¶ 11-12). This was the only appointment

6 she had with Plaintiff during the time he claims he experienced Valley Fever symptoms while at

7 SATF Corcoran. (Doc. Nos. 27-6 at 2 ¶ 11; 27-8 at 8:11-13). Plaintiff did not request a Valley

8 Fever test at this time. (Doc. No. 27-6 at 2 ¶ 11). The evidence does not suggest that Merritt

9 otherwise became aware Plaintiff had or needed testing for Valley Fever as a result of this

10 appointment. (Id.) To the contrary, Merritt reported that Plaintiff had complained about nausea

11 and vomiting, but was no longer experiencing those symptoms, and that he was eating. (Doc. No.

12 27-6 at 2-3 ¶¶ 7-13; 15). According to Merritt and the medical records, Plaintiff’s examination on

13 December 5, 2017 was unremarkable; they discussed various issues relating to his ongoing

14 treatment for other conditions. (Id.). This evidence support’s Merritt’s declaration that she was

15 not subjectively aware of Plaintiff having Valley Fever.

16 Additionally, Plaintiff did not make his initial request for Valley Fever testing until

17 December 12, 2017, a week after his last appointment with Merritt. (Doc. No. 27-8 at 8:25-9:2).

18 The request was submitted via a health services request form, which was not delivered to any

19 specific provider, but dropped in a box outside of the medical services office. (Id. at 9:3-15).

20 Although the medical provider who received Plaintiff’s request issued a referral for Plaintiff to

21 see his primary care provider for a follow up appointment within fourteen days, Plaintiff was

22 transferred from SATF Corcoran to RJD on December 20, 2017, just eight days after the referral.

23 (Doc. No. 27-5 at 4 ¶¶ 12-13; see also Doc. No. 1 at 3 ¶ 3). Merritt never became aware that

24 Plaintiff requested Valley Fever testing. (Doc. No. 27-6 at 2-3 ¶¶ 11-12). Plaintiff was first

25 tested for Valley Fever on January 17, 2018, nearly a month after being transferred from SATF

26 Corcoran and out of Merritt’s care. (Doc. Nos. 1 at 3 ¶ 3; 27-5 at 4, ¶ 15). Given Merritt’s

27 testimony and the supporting evidence, it is deemed admitted that Merritt was not subjectively

28 aware of the risk that Plaintiff had Valley Fever. Fed. R. Civ. P. 56(e)(2).

1 In Toguchi v. Chung, the Ninth Circuit held, repeatedly, that absent a medical provider’s

2 awareness of the risks to the plaintiff, the provider cannot be liable for deliberate indifference.

3 391 F.33d at 1058-1060. That is precisely the situation here. This is unlike cases in which a

4 provider personally determined that treatment was needed or was aware that other medical

5 professionals had recommended a particular course of action, and then disregarded those

6 conclusions. Cf. Snow, 681 F.3d at 986, overruled on other grounds by Peralta v. Dillard, 744

7 F.3d 1076, 1083 (9th Cir. 2014) (denial of surgery that had been recommended by specialists and

8 treating physician could establish deliberate indifference); Jett, 439 F.3d at 1096 (aftercare

9 instructions, medical slips, medical grievance, letter, and radiology report suggested that doctor

10 was aware of need for treatment, creating genuine dispute); see also Colwell, 763 F.3d at 1068

11 (genuine dispute on deliberate indifference where plaintiff surgery was denied recommend

12 surgery on grounds of administrative policy rather than medical need). Here, the uncontroverted

13 evidence demonstrates that Merritt did not recognize the risk that Plaintiff may have had Valley

14 Fever, and thus was not deliberately indifferent to his medical needs.

15 The only arguably evidence in the record to suggest Defendant Merritt was subjectively

16 aware Plaintiff had Valley Fever is Plaintiff’s allegation in the complaint that “they knew I had it

17 and just kept pushing me away.” (Doc. No. 1 at 3 ¶ 3). While this statement is deemed true at the

18 motion to dismiss stage, this conclusory statement, unsupported by specific facts, is insufficient to

19 create a genuine dispute for trial at the summary judgment stage. Soremekun, 509 F.3d at 984.

20 Because it is undisputed that Merritt never drew the inference that Plaintiff had Valley Fever,

21 Merritt cannot be liable for deliberate indifference.

22 In sum, the undersigned finds no evidence raising a triable issue of fact as to whether

23 Merritt was deliberately indifferent to Plaintiff’s medical needs. The undersigned recommends

24 that Defendant Merritt be granted summary judgment on this claim.

25 2. McCoy Was Not Deliberately Indifferent

26 The record shows no genuine dispute of material fact concerning whether Defendant

27 McCoy acted with deliberate indifference to Plaintiff’s serious medical condition. Again, the

28 second prong requires evidence that the defendant actually recognized a risk of serious harm and

1 disregarded that risk. Farmer, 511 U.S. at 837. Under penalty of perjury, McCoy declared that

2 he was never aware that Plaintiff had Valley Fever and that Plaintiff did not exhibit Valley Fever

3 symptoms whenever McCoy examined him. (Doc. No. 27-7 at 3 ¶ 10). McCoy’s testimony is

4 consistent with the medical records submitted. (Doc. No. 27-7 at 2-3 ¶¶ 8-10, 14-19).

5 On December 4, 2017, Plaintiff submitted a health care services request form stating that

6 he was “really sick.” (Doc. No. 27-7 at 2 ¶ 8). In response to this request, McCoy met with

7 Plaintiff the next day, at which time Plaintiff informed him that his symptoms—nausea and

8 vomiting—had cleared up. (Id.). McCoy was aware that chills, cough fever, loss of appetite,

9 night sweats, or weight loss greater than ten pounds may be symptoms of Valley Fever, but

10 Plaintiff denied having such symptoms. (Id. at 2 ¶¶ 5, 8). Nothing about this appointment caused

11 McCoy to insist that Plaintiff meet with his primary care provider earlier than scheduled. (Id. at 2

12 ¶ 8). After meeting with McCoy on December 5, 2017, Plaintiff had a pre-existing appointment

13 with his primary care provider, Defendant Merritt. (Doc. Nos. 27-6 at 2 ¶ 11; 27-7 at 2 ¶ 8).

14 On December 6, 2017, Plaintiff submitted another health care services request form

15 stating that he had been sick for the past three days, that his symptoms were getting worse, and

16 the medications given to him were not working. (Id. at 3 ¶ 9, 19). McCoy met with Plaintiff two

17 days later, or on December 8, 2017. At that encounter, Plaintiff stated that his symptoms had

18 resolved and he had no complaints. (Id. at 3 ¶ 9). No clinical findings caused McCoy to refer

19 Plaintiff to his primary care provider. (Id.). McCoy advised Plaintiff to submit another health

20 care services form as needed. (Id.). McCoy did not examine Plaintiff after December 8, 2017.

21 (Id.). McCoy had no further responsibility for Plaintiff’s care after December 20, 2017, when

22 Plaintiff was transferred to RJD. See Hardy v. 3 Unknown Agents, 690 F.Supp.2d 1074, 1102

23 (C.D. Cal. 2010) (provider not responsible for plaintiff’s care after transfer to another facility).

24 Given these undisputed facts, McCoy has established he was not subjectively aware that Plaintiff

25 had Valley Fever and is entitled to summary judgment on Plaintiff’s deliberate indifference claim.

26 Toguchi, 391 F.3d at 1058-60.

27 The Court next considers whether any evidence in the record creates a triable issue of

28 material fact as to McCoy’s knowledge that Plaintiff had Valley Fever. It does not. The record

1 shows Plaintiff made his initial request for Valley Fever testing on December 12, 2017. (Doc.

2 No. 27-8 at 8:25-9:2). The request was submitted via a health services request form, which was

3 not delivered to any specific provider, but instead dropped in a box outside of the medical

4 services office. (Id. at 9:3-15). McCoy testified that he was not aware of Plaintiff requesting a

5 Valley Fever test. (Doc. No. 27-7 at 3 ¶ 10). This appears to be confirmed by the medical

6 records, which indicate that registered nurse M. Fishburn reviewed Plaintiff’s health care services

7 form and saw him the same day. (Doc. No. 27-5 at 4 ¶ 12, 15). Plaintiff submitted no evidence

8 on this point, and thus the matter could be deemed admitted. Fed. R. Civ. P. 56(e)(2).

9 Admittedly, there is somewhat ambiguous deposition testimony from Plaintiff in the

10 record suggesting that McCoy may have been made aware of Plaintiff’s request for Valley Fever

11 testing on December 12, 2017. (Doc. No. 27-8 at 9:16-21). However, this testimony does not

12 create a genuine dispute of material fact because it would not change the outcome of the case.

13 See Anderson, 477 U.S. at 247. Even if the evidence established that McCoy had been made

14 aware of Plaintiff’s request for testing on December 12, 2017, at most the record would show a

15 difference of opinion between the two of them as to whether testing was warranted; it would not

16 demonstrate that McCoy was subjectively aware that Plaintiff had Valley Fever. Deliberate

17 indifference requires a greater showing than a mere difference of opinion between the plaintiff

18 and defendant. Hamby, 821 F.3d at 1092. Indeed, a difference of medical opinion does not

19 establish deliberate indifference. Toguchi, 391 F.3d at 1058, 1060. Because Plaintiff cannot

20 establish deliberate indifference based on difference of opinion, the issue of whether McCoy was

21 on notice of Plaintiff’s testing request is not material to this claim and cannot create a genuine

22 dispute for trial.

23 In support of Plaintiff’s claim then, the only relevant record evidence is Plaintiff’s

24 allegation in his complaint “they knew I had it.” (Doc. No. 1 at 3 ¶ 3). As discussed above this

25 conclusory statement, unsupported by specific facts as to McCoy’s knowledge that Plaintiff had

26 Valley Fever, is insufficient to create a genuine issue for trial. See Supra at Section III(E)(2); see

27 also Soremekun, 509 F.3d at 984.

28

1 Based upon the record, the undersigned finds no evidence raising a triable issue of fact as

2 to whether McCoy was deliberately indifferent to Plaintiff’s medical needs and recommends that

3 Defendant McCoy be granted summary judgment on this claim.

4 3. Plaintiff Cannot Establish Deliberate Indifference Based on Medical

5 Negligence

6 Defendants also argue that a negligent failure to diagnose Valley Fever does not rise to the

7 level of deliberate indifference. (Doc. No. at 10). The Court agrees that to the extent Plaintiff’s

8 allegations may be construed to suggest that a negligent failure to diagnose Valley Fever

9 constitutes deliberate indifference, there is no genuine dispute for trial. In order to establish

10 deliberate indifference, Plaintiff must show that the provider’s conduct was medically

11 unacceptable, not merely negligent. Hamby, 821 F.3d at 1092. The undisputed facts establish

12 that Defendants’ assessment of Plaintiff’s medical needs—that he did not need testing or

13 treatment for Valley Fever—was reasonable. (Doc. Nos. 27-4 at 6 ¶ 23; 27-5 at 5 ¶ 19). Two

14 experts opined that Merritt’s conduct was medically acceptable (Doc. Nos. 27-4 at 6 ¶ 23; 27-5 at

15 5 ¶¶ 19, 20), and that McCoy’s conduct was also medically acceptable (Doc. Nos. 27-4 at 6 ¶ 23;

16 27-5 at 5 ¶¶ 18, 20). Plaintiff has not rebutted Defendants’ expert testimony. Plaintiff concedes

17 he is not a medical expert (Doc. No. 27-8 at 5:12-13) and has submitted no expert testimony to

18 contradict or dispute the two experts’ opinions. There is no genuine dispute as to the medical

19 acceptability of Merritt’s and McCoy’s conduct.

20 Moreover, a negligent misdiagnosis by Merritt or McCoy, which is not supported by the

21 record, does not rise to the level of deliberate indifference. Estelle, 429 U.S. at 105. Courts have

22 consistently held that a negligent misdiagnosis does not create liability under the Eighth

23 Amendment. Wilhelm, 680 F.3d at 1123 (doctor’s decision not to operate because he incorrectly

24 concluded plaintiff was not suffering from a hernia could not establish Eighth Amendment

25 violation); see also Griffith v. Franklin Cty., Kentucky, 975 F.3d 554, 573 (6th Cir. 2020)

26 (negligent failure to take more aggressive steps to monitor plaintiff’s health would not violate

27 Eighth Amendment); Self v. Crum, 429 F.3d 1227, 1233 (10th Cir. 2006) (negligent failure to

28

1 diagnose respiratory condition did not violate Eighth Amendment). Therefore, to the extent

2 Plaintiff’s claim could be construed as one for negligent misdiagnosis, it fails as a matter of law.

3 4. The Court Need Not Decide Whether Plaintiff Was Harmed by

4 Defendants

5 In the alternative, Defendants seek summary judgment on the grounds that there is no

6 evidence Plaintiff was harmed by Defendants. (Doc. No. 27-1 at 10). Harm is an essential

7 element of a deliberate indifference claim. McGuckin, 974 F.2d at 1060, overruled on other

8 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). Defendants submit an

9 expert opinion that Plaintiff suffered no harm from any potential delay in his diagnosis or

10 treatment. (Doc. No. 27-2 at 6 ¶ 24).

11 The undersigned notes some ambiguity in the record on the issue of harm. For instance,

12 in June 2018, an infectious disease specialist was concerned that Plaintiff had a Valley Fever

13 infection that had been left untreated, requiring Plaintiff to undergo a bone scan and lumbar

14 puncture. (Id. at 5 ¶ 17). Additionally, Plaintiff asserts that he “suffered for six months,”

15 experienced chest pains, could not sleep, and coughed up blood. (Doc. No. 1 at 3 ¶¶ 3-4).

16 Defendants’ expert does not acknowledge or address either of these sets of facts in the record.

17 Though delay in diagnosis or treatment does not, alone, establish harm in this context, ongoing

18 pain and the necessity of additional medical procedures due to delay could arguably be sufficient

19 to demonstrate harm. See Jett, 439 F.3d at 1097-98 (delay that caused pain and diminished use of

20 hand sufficient to state deliberate indifference claim).

21 Admittedly and critical to this issue is the fact that Plaintiff’s diagnosis and the onset of

22 his physical symptoms occurred after he was transferred and after his treatment by Defendants

23 ended. Defendants do not specifically address whether there was a causal connection between

24 any harm Plaintiff might have experienced and Defendants’ conduct (see Doc. No. 27-1), and the

25 Court does not address that issue. Because the Court concludes that summary judgment be

26 granted to Defendants on other grounds, it need not reach this alternative argument that Plaintiff

27 was not harmed by Defendants.

28 ///

1 E. Qualified Immunity

2 Defendants also argue they are entitled to summary judgment on the grounds of qualified

3 | immunity. (Doc. No. 27-1 at 1, 12). The defense of qualified immunity shields government

4 | officials from liability, Taylor v. Barkes, 575 U.S. 822, 825 (2015), but becomes relevant only if a

5 | court determines that a constitutional violation has occurred. Because the Court here has

6 | determined that no constitutional violation has occurred and Defendants are entitled to summary

7 | judgment on Plaintiffs Eighth Amendment claim, the Court need not address this defense.

8 Accordingly, it is RECOMMENDED:

9 1. Defendants’ Motion for Summary Judgment (Doc. No. 27) is GRANTED.

10 2. Judgment be entered in favor of the Defendants; all deadlines be terminated; and the

11 case be closed.

12 NOTICE TO PARTIES

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

14 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14)

15 | days after being served with these findings and recommendations, a party may file written

16 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

17 | Findings and Recommendations.” Parties are advised that failure to file objections within the

18 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

19 | 838-39 (9th Cir. 2014) (citing Baxter y. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

20

Dated: _ November 30, 2021 law ZA. foareh Back

22 HELENA M. BARCH-KUCHTA

33 UNITED STATES MAGISTRATE JUDGE

24

25

26

27

28

15