# (PC)Hernandez v. Constable

> District Court, E.D. California · April 27, 2022

URL: https://www.frixlaw.com/law-library/cases/10044234

## Case

- **Court:** District Court, E.D. California
- **Decided:** April 27, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 CESAR N. HERNANDEZ, No. 2:19-cv-2195 MCE DB P
12 Plaintiff,
13 v. FINDINGS AND RECOMMENDATIONS
14 A. CONSTABLE, et al.,
15 Defendants.
16
17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights
18 action pursuant to 42 U.S.C. § 1983. Plaintiff alleges defendants were deliberately indifferent to
19 his serious medical needs. Before the court is defendants’ motion for summary judgment. For
20 the reasons set forth below, this court will recommend defendants’ motion be denied.
21 BACKGROUND
22 This case is proceeding on the Eighth Amendment claims in plaintiff’s first amended
23 complaint (“FAC”).1 (ECF No. 13.) In the FAC, plaintiff alleges the following. He suffers from
24 a severe form of hypertension. In March 2018,2 he was taking prescribed medication daily at
25

26 1 The court dismissed plaintiff’s claims regarding his placement in Administrative Segregation
(“Ad Seg”). (See ECF Nos. 14, 22.) This case is proceeding solely on plaintiff’s Eighth
27 Amendment claims.

28 2 All dates referred to herein occurred in 2018 unless otherwise specified.
1 4:00 p.m. On March 9, defendant Correctional Office (“CO”) Constable placed him in a holding
2 cage, causing plaintiff to be unable to pick up his medication for hypertension from the pill line at
3 4:00 p.m. While being held in the cage, plaintiff told Constable and defendants CO Sharma and
4 CO Serwanga that he needed his prescribed medication to treat his hypertension. However, each
5 of these defendants refused to help him. At 8:30 p.m. that day, plaintiff began to have severe
6 chest pains, back/neck aches, blurry vision, dizziness, and near loss of consciousness. He alleges
7 that he begged defendants for help, but they continued to ignore him. He did not get help until
8 about 1:00 a.m. when a non-defendant officer called for medical help. Plaintiff’s blood pressure
9 was extremely high and he was “rushed” to the medical clinic. As a result of the delay in his
10 medication, plaintiff suffered severe chest pains, dizziness, blurred vision, and aches. He seeks
11 damages and declaratory relief.3
12 On September 24, 2021, defendants moved for summary judgment. (ECF No. 76.)
13 Defendants argue the undisputed facts show they were not deliberately indifferent to plaintiff’s
14 medical needs and that they are entitled to qualified immunity. Plaintiff filed an opposition (ECF
15 No. 91) and defendants filed a reply (ECF No. 94).
16 MOTION FOR SUMMARY JUDGMENT
17 I. Summary Judgment Standards under Rule 56
18 Summary judgment is appropriate when the moving party “shows that there is no genuine
19 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
20 Civ. P. 56(a). Under summary judgment practice, the moving party “initially bears the burden of
21 proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litigation, 627
22 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The
23 moving party may accomplish this by “citing to particular parts of materials in the record,
24 including depositions, documents, electronically stored information, affidavits or declarations,
25 stipulations (including those made for purposes of the motion only), admissions, interrogatory
26

27 3 As discussed below, plaintiff’s allegations in the FAC, statements in his opposition to the
motion for summary judgment, and testimony at this deposition differ in some respects. The
28 allegations summarized here are those made in the FAC.
1 answers, or other materials” or by showing that such materials “do not establish the absence or
2 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to
3 support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B).
4 When the non-moving party bears the burden of proof at trial, “the moving party need
5 only prove that there is an absence of evidence to support the nonmoving party’s case.” Oracle
6 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325.); see also Fed. R. Civ. P. 56(c)(1)(B).
7 Indeed, summary judgment should be entered, after adequate time for discovery and upon motion,
8 against a party who fails to make a showing sufficient to establish the existence of an element
9 essential to that party's case, and on which that party will bear the burden of proof at trial. See
10 Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the
11 nonmoving party’s case necessarily renders all other facts immaterial.” Id. In such a
12 circumstance, summary judgment should be granted, “so long as whatever is before the district
13 court demonstrates that the standard for entry of summary judgment . . . is satisfied.” Id. at 323.
14 If the moving party meets its initial responsibility, the burden then shifts to the opposing
15 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita
16 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the
17 existence of this factual dispute, the opposing party typically may not rely upon the allegations or
18 denials of its pleadings but is required to tender evidence of specific facts in the form of
19 affidavits, and/or admissible discovery material, in support of its contention that the dispute
20 exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. However, a complaint that
21 is submitted in substantial compliance with the form prescribed in 28 U.S.C. § 1746 is a “verified
22 complaint” and may serve as an opposing affidavit under Rule 56 as long as its allegations arise
23 from personal knowledge and contain specific facts admissible into evidence. See Jones v.
24 Blanas, 393 F.3d 918, 923 (9th Cir. 2004); Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir.
25 1995) (accepting the verified complaint as an opposing affidavit because the plaintiff
26 “demonstrated his personal knowledge by citing two specific instances where correctional staff
27 members . . . made statements from which a jury could reasonably infer a retaliatory motive”);
28 McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987); see also El Bey v. Roop, 530 F.3d
1 407, 414 (6th Cir. 2008) (Court reversed the district court’s grant of summary judgment because
2 it “fail[ed] to account for the fact that El Bey signed his complaint under penalty of perjury
3 pursuant to 28 U.S.C. § 1746. His verified complaint therefore carries the same weight as would
4 an affidavit for the purposes of summary judgment.”). The opposing party must demonstrate that
5 the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the
6 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury
7 could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S.
8 242, 248 (1986).
9 To show the existence of a factual dispute, the opposing party need not establish a
10 material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be
11 shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.”
12 T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987).
13 Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in
14 order to see whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (citations
15 omitted).
16 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the
17 court draws “all reasonable inferences supported by the evidence in favor of the non-moving
18 party.” Walls v. Central Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the
19 opposing party’s obligation to produce a factual predicate from which the inference may be
20 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985),
21 aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing
22 party “must do more than simply show that there is some metaphysical doubt as to the material
23 facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the
24 nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation
25 omitted).
26 II. Legal Standards for Eighth Amendment Medical Claims
27 The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S.
28 Const. amend. VIII. The unnecessary and wanton infliction of pain constitutes cruel and unusual
1 punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986);
2 Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).
3 Neither accident nor negligence constitutes cruel and unusual punishment, as “[i]t is obduracy
4 and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited
5 by the Cruel and Unusual Punishments Clause.” Whitley, 475 U.S. at 319.
6 What is needed to show unnecessary and wanton infliction of pain “varies according to
7 the nature of the alleged constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 5 (1992)
8 (citing Whitley, 475 U.S. at 320). In order to prevail on a claim of cruel and unusual punishment,
9 however, a prisoner must allege and prove that objectively he suffered a sufficiently serious
10 deprivation and that subjectively prison officials acted with deliberate indifference in allowing or
11 causing the deprivation to occur. Wilson, 501 U.S. at 298-99.
12 For an Eighth Amendment claim arising in the context of medical care, the prisoner must
13 allege and prove “acts or omissions sufficiently harmful to evidence deliberate indifference to
14 serious medical needs.” Estelle, 429 U.S. at 106. An Eighth Amendment medical claim has two
15 elements: “the seriousness of the prisoner's medical need and the nature of the defendant's
16 response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on
17 other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).
18 A medical need is serious “if the failure to treat the prisoner's condition could result in
19 further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974
20 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include
21 “the presence of a medical condition that significantly affects an individual's daily activities.” Id.
22 at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the
23 objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S.
24 825, 834 (1994).
25 If a prisoner establishes the existence of a serious medical need, he must then show that
26 prison officials responded to the serious medical need with deliberate indifference. See Farmer,
27 511 U.S. at 834. In general, deliberate indifference may be shown when prison officials deny,
28 delay, or intentionally interfere with medical treatment, or may be shown by the way in which
1 prison officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th
2 Cir. 1988).
3 Before it can be said that a prisoner's civil rights have been abridged with regard to
4 medical care, “the indifference to his medical needs must be substantial. Mere ‘indifference,’
5 ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter
6 Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06); see also
7 Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere negligence in
8 diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth
9 Amendment rights.”); McGuckin, 974 F.2d at 1059 (same). Deliberate indifference is “a state of
10 mind more blameworthy than negligence” and “requires ‘more than ordinary lack of due care for
11 the prisoner's interests or safety.’” Farmer, 511 U.S. at 835.
12 Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S.
13 at 104-05. To establish a claim of deliberate indifference arising from delay in providing care, a
14 plaintiff must show that the delay was harmful. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th
15 Cir. 2002); Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at 1059;
16 Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Hunt v. Dental Dep't, 865 F.2d 198,
17 200 (9th Cir. 1989); Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir.
18 1985). In this regard, “[a] prisoner need not show his harm was substantial; however, such would
19 provide additional support for the inmate's claim that the defendant was deliberately indifferent to
20 his needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
21 Finally, mere differences of opinion between a prisoner and prison medical staff or
22 between medical professionals as to the proper course of treatment for a medical condition do not
23 give rise to a § 1983 claim. See Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330,
24 332 (9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662
25 F.2d 1337, 1344 (9th Cir. 1981).
26 III. Material Facts
27 Defendants filed a Statement of Undisputed Facts as required by Local Rule 260(a). (ECF
28 No. 76-2.) Plaintiff’s filing in opposition to defendant’s motion for summary judgment fails to
1 comply with Local Rule 260(b). Rule 260(b) requires that a party opposing a motion for
2 summary judgment “shall reproduce the itemized facts in the Statement of Undisputed Facts and
3 admit those facts that are undisputed and deny those that are disputed, including with each denial
4 a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer,
5 admission, or other document relied upon in support of that denial.” Plaintiff’s opposition to the
6 summary judgment motion consists of a brief, a “Statement of Undisputed Facts and Violation of
7 Federal Rule P. under Rule 56(d)(2),” and a request for discovery.4 (ECF No. 91.)
8 Defendants argue that factual statements plaintiff makes in his opposition brief may not be
9 considered as evidence because plaintiff did not sign his opposition under oath. As discussed
10 below, the material factual statements plaintiff makes in his opposition also appear in either his
11 FAC or in his deposition testimony. Any statements unique to the opposition brief would not
12 affect this court’s consideration of plaintiff’s claims.
13 In light of plaintiff’s pro se status, this court has reviewed plaintiff’s sworn filings in an
14 effort to discern whether he denies any material fact asserted in defendants’ statement or has
15 shown facts that are not opposed by defendants for purposes of their motion. This process has
16 proved somewhat difficult in this case because some of plaintiff’s allegations have not been
17 consistent.
18 A. Plaintiff’s Allegations and Testimony
19 Plaintiff’s sworn statements in his FAC, statements made in the arguments in his
20 opposition to defendants’ motion, and deposition testimony differ from each other in several
21 respects. Below, this court summarizes the statements in each filing. This court also notes that,
22 in his FAC and opposition to the summary judgment motion, plaintiff also describes the events
23 that led to his placement in Ad Seg. The court dismissed plaintiff’s claims regarding his
24 placement in Ad Seg. (See ECF Nos. 14, 22.) This case is proceeding solely on plaintiff’s Eighth
25 ////
26

27 4 Because this court recommends denial of defendants’ motion, the request for discovery is not
addressed herein. If plaintiff feels he still requires discovery, he may seek it after the final
28 resolution of defendants’ motion.
1 Amendment claims. Herein, this court considers only facts related to the Eighth Amendment
2 claims.
3 1. Allegations of the FAC
4 In his FAC, plaintiff alleges the following. (ECF No. 13.) He suffers from a severe form
5 of hypertension. In March 2018, he was taking prescribed medication for both hypertension and
6 prostate problems.5 Plaintiff obtained his medication for hypertension from the “pill line” each
7 day at 4:00 p.m. and took the medication at that time. On March 9, “prior to pill line,” defendant
8 Correctional Office (“CO”) Constable “took actions against plaintiff that w[ere] later determined
9 to be without cause.”
10 Plaintiff was “locked in a cage.” He repeatedly told Constable and defendants CO Sharma
11 and CO Serwanga that he needed his prescribed medication to treat his hypertension. However,
12 each of these defendants disregarded him “for hours.”
13 At 8:30 p.m. that day, plaintiff began to “feel his hypertension get out of control.” He
14 begged defendants for his medication but they continued to disregard him. Plaintiff began to
15 suffer severe chest pains, back/neck aches, blurry vision, dizziness, and near loss of
16 consciousness. He contends he was denied medical care for nine hours.
17 Plaintiff told defendants that he took medication at 4:00 p.m. for hypertension, that he
18 needed the medication to control his hypertension, that his symptoms were getting “out of
19 control,” that he was in pain, and that he needed medical attention.
20 Plaintiff did not get help until about 1:00 a.m. when a non-defendant officer called for
21 medical help. Plaintiff’s blood pressure was “alarmingly high” and he was “rushed” to the
22 “clinic.” As a result of the delay in taking his medication, plaintiff suffered severe chest pains,
23 ////
24
5 As defendants point out, plaintiff does not allege in the FAC that he asked defendants for
25
prostate medication. Because that potential claim was not raised in the FAC, it is not a claim
26 considered here. Even if it could be considered, plaintiff fails to make any showing that the
symptoms he experienced after he was placed in a holding cell were related to a need for his
27 prostate medication. The same is true for plaintiff’s statements in later filings that he was
deprived of durable medical equipment. This court considers below only plaintiff’s claim that he
28 was denied his blood pressure medication.
1 dizziness, blurred vision, and aches. Plaintiff also suffered long-term consequences, including
2 vision problems.
3 2. Allegations in Plaintiff’s Opposition
4 Plaintiff describes the following facts as the basis for his claims. (ECF No. 91.) On
5 March 9 at 8:30 p.m., defendant Constable placed plaintiff in a holding cage in the EOP Clinic.
6 Plaintiff immediately asked Constable for his blood pressure and prostate medications because
7 Constable had confiscated those medications from plaintiff’s cell. Plaintiff’s medication was
8 designated “keep on person” (“KOP”). Plaintiff begged all three defendants for his medications
9 constantly until 12:30 a.m. on March 10 when plaintiff began to have severe chest pain, among
10 other things. Another officer summoned medical help for plaintiff and he was treated around
11 1:00 a.m.
12 3. Plaintiff’s Deposition Testimony
13 At his deposition, plaintiff testified as follows. He was handcuffed by two non-party
14 officers at 4:00 p.m. on March 9. (P Depo. at 36, 43, 86.6) Plaintiff recognized that he had
15 written that he was cuffed at 8:00 p.m. on his grievance form. The time on the grievance form
16 was a mistake. (Id. at 43- 44.) The two officers took plaintiff from his cell and placed plaintiff in
17 a holding tank in B Unit. (Id. at 40.) At that time, plaintiff’s medications were in his cell. (Id. at
18 85.) Plaintiff did not ask these non-party officers for his medication because he didn’t know then
19 that he would be taken to Ad Seg. (Id. at 86, 88.)
20 With the exception of his mental health medication, plaintiff’s medications were
21 designated “keep-on-person” (“KOP”). Plaintiff got his mental health medication from the pill
22 line. (Id. at 27, 86.) He was able to get the mental health medication before he was handcuffed.
23 (Id. at 86.) Plaintiff typically took his blood pressure medication between 6:00 and 8:00 p.m. (Id.
24 at 25-26, 103.)
25 ////
26 ////
27

28 6 Defendants lodged a complete copy of plaintiff’s deposition with the court.
1 Plaintiff identifies Constable as the one who “took” plaintiff’s medications because
2 Constable ordered plaintiff to be placed in Ad Seg and it is prison practice that officers box up a
3 prisoner’s possessions when the prisoner is placed in Ad Seg. (P Depo. at 27, 103-04.)
4 At about 8:00 p.m., plaintiff was taken from the B Unit holding tank to the E Clinic. (P
5 Depo. at 36, 50, 88.) He did not speak with defendants Serwanga and Sharma between 4:00 and
6 8:00 p.m. because they worked in E Clinic. (Id. at 46-47, 90-91.) Plaintiff testified that he did
7 not think he spoke with Constable during that time, testified that he did not recall whether he did,
8 and also testified that he tried to get Constable’s attention, but Constable ignored him. (Id. at 46-
9 47, 89.)
10 When plaintiff arrived at the E Clinic, Constable read plaintiff his Miranda rights and then
11 questioned him about the events that led him to be taken from his cell. (P Depo. at 48, 90-91.)
12 Constable placed plaintiff in a holding cell in the E Clinic. After plaintiff was placed in the E
13 Clinic holding cell, he asked Constable for his medications three, four, or five times. (Id. at 48-
14 49, 92.) Constable ignored him. (Id. at 92.) Plaintiff saw defendants Sharma and Serwanga after
15 8:00 p.m. when he was at the E Clinic. (Id. at 50-51.)
16 Around 8:30 p.m., plaintiff began to feel his hypertension get out of control. He did not
17 deny that he knew it was happening before he saw the nurse at 9:05 p.m. (P Depo. at 99-100.)
18 Plaintiff was seen by a nurse at 9:05 p.m. while he was in the E Clinic holding cell. (P
19 Depo. at 39, 52.) He did not tell the nurse he needed his medication because the officer “stole
20 them” and because he thought the officers told the nurse he needed them. He also testified that he
21 may have told the nurse about his medications but did not recall. (Id. at 53). The nurse only
22 asked him if he understood why he was being held. (Id. at 52, 53.)
23 Plaintiff was also seen by a lieutenant when he was in the holding cell. (P Depo. at 53.)
24 The purpose of that visit was to “brief” plaintiff. Plaintiff asked the lieutenant why he was going
25 to Ad Seg. However, plaintiff did not ask the lieutenant for his medication. (Id. at 53-54.)
26 Plaintiff could not recall whether he spoke to Constable about his medication before or
27 after he was seen by the nurse at 9:05 p.m. (Id. at 93.) He spoke to all three defendants about his
28 medication after he was placed in the E Clinic holding cell. (P Depo. at 93-96.) Plaintiff gave
1 conflicting testimony about whether he identified the medication he needed. He testified that he
2 did not identify it (id. at 95), told the defendants he needed blood pressure medication (id.), and
3 told Constable he needed his medications for blood pressure and prostate (id. at 96).
4 Between 10:00 p.m. and 11:30 p.m. on March 9, Constable and other officers escorted
5 plaintiff to Ad Seg. (P Depo. at 74, 96-97, 106-07.) Once he was placed in Ad Seg, plaintiff had
6 no further contact with defendants. (Id. at 106-07.)
7 After the officer called for medical help, two nurses arrived at plaintiff’s cell. They took
8 his blood pressure twice. It was very high – 205/120 the first time and 190/110 the second time.
9 The nurses gave him the medication for his prostate, tamsulosin, his high blood pressure
10 medication, and an aspirin. They monitored him for the next 48 hours. (P Depo. at 76-77.)
11 Plaintiff has never been told by a doctor that he has any injuries as the result in the delay
12 in his medication on March 9, 2018. However, plaintiff testified that he has not seen a doctor
13 about his prostate or eye problems and would be doing so shortly. (P Depo. at 81, 113.) His
14 eyesight is worse since the March 9/10 incident. (Id. at 65-66, 81-83, 113.) His prostate “was not
15 the same.” (Id. at 113.) His prostate medication dosage has doubled since the March 2018
16 incident. (Id. at 114.) Plaintiff also repeated that his injuries include almost having a stroke and
17 almost dying. (Id. at 115.)
18 B. Undisputed Material Facts
19 Considering plaintiff’s various versions of the events, this court has attempted to discern
20 the undisputed facts. Disputed facts are addressed in the next section.
21 • During the events at issue in this case, plaintiff was housed at California Health
22 Care Facility (“CHCF”). (Defs’ Stmt. Undisputed Facts (“DSUF”), ECF No. 76-2,
23 ¶ 1.)
24 • During the events at issue in this case, defendants Constable, Serwanga, and
25 Sharma were employed as correctional officers at CHCF. (DSUF ¶¶ 3-5.)
26 • On March 9, defendants Constable and Sharma worked during third watch 2:00
27 p.m. to 10:00 p.m. Records provided by defendants show that Sharma worked
28 overtime – until 12:15 a.m. (ECF No. 76-5 at 5.)
1 • Plaintiff has a medical history of hypertension, or high blood pressure. (DSUF ¶
2 7.)
3 • During the month of March 2018, plaintiff was prescribed two blood pressure
4 medications to treat his hypertension, Lisinopril and Amlodipine. (DSUF ¶ 8.)
5 • When a medication is designated KOP, the pharmacy dispenses a bottle of the
6 medication for the patient to keep on their person and take on their own. (DSUF ¶
7 10.)
8 • On March 9, non-party correctional officers escorted plaintiff to a holding cell at
9 Facility B. (DSUF ¶ 21.)
10 • Plaintiff did not ask defendant Constable for his medications while he was in the
11 holding cell at Facility B. (DSUF ¶ 22; P Depo. at 46-47, 89.)
12 • Plaintiff was later escorted to the Facility E Clinic sometime after 8:00 p.m. on
13 March 9. (DSUF ¶ 23.)
14 • Plaintiff first asked defendants Constable and Sharma for his medications when he
15 was at the Facility E Clinic. (P Depo. at 50-51, 93-96.)
16 • Plaintiff told Constable and Sharma that his symptoms were getting “out of
17 control” and that he was in pain. (FAC (ECF No. 13).)
18 • A Registered Nurse visited plaintiff at around 9:05 p.m. (DSUF ¶ 25; P Depo at
19 39, 52.)
20 • During the nurse’s visit, plaintiff did not request his blood pressure medication
21 from the nurse. (DSUF ¶ 26.)
22 • During the nurse’s visit, plaintiff never indicated to the nurse that he was
23 experiencing physical symptoms as a result of not taking his medication. (DSUF ¶
24 27.)
25 • None of the defendants provided plaintiff with medications for his blood pressure
26 on March 9 or 10. (ECF No. 13.)
27 • None of the defendants summoned medical assistance for plaintiff on March 9 or
28 10. (ECF No. 13.)
1 • Defendant Constable was one of the officers who transferred plaintiff to a cell in
2 Ad Seg between 10:00 p.m. and 11:44 p.m.7 (P Depo. at 74, 96-97, 106-07.)
3 • Plaintiff did not have any contact with defendants Constable, Serwanga, and
4 Sharma after he transferred to Ad Seg on March 9. (DSUF ¶ 30.)
5 • Sometime between 12:30 a.m. and 1:00 a.m. on March 10, an officer summoned
6 medical help for plaintiff. (ECF No. 13.)
7 • Plaintiff was examined by a nurse sometime before 1:30 a.m. (DSUF ¶ 31.)
8 • The nurse gave plaintiff doses of Lisinopril, Amlodipine, and aspirin. (DSUF ¶
9 35.)
10 • Plaintiff’s medical records show that on March 10, he was seen for “chest pain,
11 medication not received.” (ECF No. 76-6 at 23.) In response to the following
12 question on the form: “Is This a High Risk Situation Where The Patient is
13 Confused/Lethargic/Disoriented or in Severe Pain/Distress?,” the nurse wrote
14 “No.” (Id. at 27.)
15 • The nurse took plaintiff’s blood pressure at that time. The first test showed
16 205/120 and the second showed 190/110. (P Depo. at 76-77.)
17 • On March 13, plaintiff had a telemedicine visit with a doctor. In the progress
18 notes, the doctor recorded that on March 10, plaintiff’s blood pressure was
19 “significantly elevated” and he experienced “chest discomfort.” The doctor further
20 noted that those problems had resolved after plaintiff restarted his blood pressure
21 medication and aspirin. (ECF No. 76-6 at 30.)
22 • No doctor told plaintiff that his medical conditions became worse as a result of
23 delay in getting his medication on March 9/10. (DSUF ¶ 44.)
24 ////
25 ////
26
7 Plaintiff testified at his deposition that he thinks he was moved to Ad Seg between 10:00 p.m.
27 and 11:30 p.m. on March 9. (P Depo. at 74, 96-97, 106-07.) Defendants present a copy of
plaintiff’s bed assignments which shows that plaintiff was assigned a bed in Ad Seg at 11:44 p.m.
28 (See ECF No. 76-5 at 10.)
1 C. Disputed Facts
2 The parties dispute several facts. Some are material. Some are not.
3 1. Did Defendant Serwanga Work on March 9, 2018?
4 Plaintiff contends that he asked Serwanga for his medications when plaintiff was in the E
5 Clinic on March 9. Defendants repeatedly assert, and contend it is undisputed, that Serwanga was
6 not working on March 9. (ECF No. 76-3 at 6, 12; ECF No. 76-2 at 2.) Defendants’ assertions are
7 not supported by the evidence they provide. The employee time records provided by E.
8 Takehara, the litigation coordinator at CHCF, are only for third watch – 2:00 p.m. to 10:00 p.m.
9 (See ECF No. 76-5 at 4-8.) Those records show that Constable worked during third watch on
10 March 9 and that Sharma worked from 2:00 p.m. on March 9 until 12:15 a.m., presumably on
11 March 10. (ECF No. 76-5 at 5.) Defendants provide no records for the first watch – 10:00 p.m.
12 to 6:00 a.m. Therefore, defendants have no evidentiary support for their assertion that Serwanga
13 did not work March 9. In his sworn testimony and in his FAC, plaintiff states that Serwanga
14 worked in the E Clinic on March 9. For purposes of considering defendants’ motion, this court
15 finds it undisputed that Serwanga worked on March 9 at some point after 8:00 p.m. and
16 encountered plaintiff between that time and the time plaintiff was transferred to Ad Seg.
17 2. When was Plaintiff Placed in a Holding Cell?
18 The parties differ about when plaintiff was taken to a holding cell on March 9. Plaintiff
19 states it was 4:00 p.m. and defendants’ records show it was 7:45 p.m.8 (ECF No. 13; P Depo. at
20 36, 43, 86; ECF No. 76-5 at 12.) Regardless of the time plaintiff was placed in the B Unit
21 holding cage, he testified that, at most, he tried to get Constable’s attention while he was in that
22 holding cage. Plaintiff does not show that he asked any of the three defendants for his medication
23

24 8 Defendants note that plaintiff has also stated he was placed in a holding cell at 8:00 p.m. It is
true that in his opposition brief, plaintiff describes the time as 8:00 p.m. (See ECF No. 91 at 3.)
25
Defendants cite case law that plaintiff cannot create an issue of fact through an affidavit
26 contradicting prior testimony. (See ECF No. 94 at 4.) However, as noted above, plaintiff’s
opposition brief is not sworn and therefore does not have the evidentiary value of plaintiff’s
27 sworn FAC and deposition testimony. Further, the timing of plaintiff’s placement in the holding
cell is already an issue of fact because the parties dispute whether it occurred at 4:00 p.m. or 8:00
28 p.m.
1 between 4:00 and about 8:00 when, it is not disputed, he was transferred to the E Clinic. (See P
2 Depo. at 46-47, 89.) Here plaintiff alleges he told defendants that he needed his medications only
3 after he was transferred to E Clinic. Therefore, a dispute about when he was initially handcuffed
4 and taken to a holding cage or cell is not material for purposes of this court’s analysis of
5 defendants’ motion.
6 3. What Sort of Evaluation Did the Nurse Conduct at 9:05 p.m.?
7 Plaintiff testified that the nurse only asked him if he understood why he was being held.
8 (P Depo. at 52, 53.) Defendants contend the nurse “medically cleared [plaintiff] for placement in
9 administrative segregation.” (ECF No. 76-3 at 7.) They further assert that “[t]he nurse
10 determined at that time that there was nothing medically wrong with Plaintiff.” (ECF No. 76-3 at
11 17.)
12 Defendants, again, misstate the evidence that they provided. Attached to the Declaration
13 of B. Feinberg is a copy of the nurse’s report from the 9:05 p.m. visit. (ECF No. 76-6 at 22.) The
14 report, on form #7219, is entitled “Medical Report of Injury or Unusual Occurrence.” In the
15 section entitled “Reason for Report,” the box for “Unusual Occurrence” is checked. That section
16 also includes a box for “Pre Ad/Seg Admission.” The “Pre Ad/Seg Admission” box is not
17 checked.
18 The nurse wrote that when plaintiff was asked about the “circumstances of the injury or
19 unusual occurrence,” plaintiff replied “I do not know.” In the section entitled “Injuries Found?,”
20 the nurse checked the box “yes” and noted “slight redness” on plaintiff’s right wrist due to
21 cuffing. The nurse recorded no other injuries. Nor does the report contain any other information
22 about the state of plaintiff’s health.
23 This exhibit does not support defendants’ claims that the nurse determined there was
24 “nothing” wrong with plaintiff or that the examination resulted in a medical clearance for plaintiff
25 to be transferred to Ad Seg. The exhibit supports only the undisputed fact that a nurse saw
26 plaintiff at 9:05 p.m. on March 9 and noted slight redness on plaintiff’s wrist.
27 ////
28 ////
1 IV. Analysis
2 To prove an Eighth Amendment violation, plaintiff must establish that he had a serious
3 medical need and that defendants responded to that need with deliberate indifference. McGuckin,
4 974 F.2d at 1059. To prove that a delay in medical care violated the Eighth Amendment, plaintiff
5 must also show that he suffered injury as a result of defendants’ conduct. Id.
6 A. Issues of Material Fact regarding Plaintiff’s Serious Medical Need
7 A medical need is serious “if the failure to treat the prisoner’s condition could result in
8 further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974
9 F.2d at 1059 (quoting Estelle, 429 U.S. at 104).
10 Examples of serious medical needs include “[t]he existence of an
injury that a reasonable doctor or patient would find important and
11 worthy of comment or treatment; the presence of a medical condition
that significantly affects an individual's daily activities; or the
12 existence of chronic and substantial pain.”
13 Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (quoting McGuckin, 974 F.2d at 1059-60);
14 see also Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (same (citing McGuckin, 974
15 F.2d at 1059-60)).
16 Defendants challenge the seriousness of plaintiff’s medical need. Defendants first argue
17 that plaintiff had access to his blood pressure medications prior to the time he was placed in a
18 holding cell. This court is unable to determine the relevance of that point. Even if plaintiff
19 should have, and failed to, take his medications prior to the time he was placed in a holding cell,
20 that does not mean he did not require them later to avoid serious harm. Nor does it mean
21 defendants would somehow be relieved of liability if they were aware of plaintiff’s failure to
22 timely take his medication.9
23 Defendants next argue there is no medical evidence that plaintiff suffered any serious
24 medical need after being placed in a holding cell. The symptoms plaintiff was actually suffering
25 at that time are not necessarily determinative of that question. If plaintiff had a medical condition
26 that could, if untreated, cause significant harm, then his condition was sufficiently serious under
27

28 9 Defendant do not show that they were aware of this fact.
1 the Eighth Amendment. See Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002); see also
2 Brooks v. Kolender, 362 F. App’x 735, 736 (9th Cir. 2010) (Plaintiff failed to show a triable issue
3 of material fact because he did not “demonstrate that his problem was so severe that a delay in
4 treatment could cause significant harm, or that defendants should have known this to be the case.”
5 (citing Hallett, 296 F.3d at 744) (emphasis added)).
6 Plaintiff’s medical need would also be sufficiently serious if he was at that time suffering
7 an injury that “a reasonable doctor or patient would find important and worthy of comment or
8 treatment;” or that “significantly affect[ed]” his “daily activities;” or that was causing “chronic
9 and substantial pain.” Lopez, 203 F.3d at 1131.
10 Defendants argue that the symptoms plaintiff was suffering at the time were not
11 sufficiently serious. The evidence defendants present is not dispositive. They show that plaintiff
12 claims to have started suffering symptoms around 8:30 p.m. but failed to tell the nurse at 9:05
13 p.m. that he was experiencing symptoms or that he required his medication. Those facts go to the
14 credibility of plaintiff’s claim that his symptoms started at 8:30 p.m. and plaintiff’s description of
15 his concern about the lack of his medication. Whether plaintiff began experiencing symptoms at
16 8:30 p.m., the severity of his symptoms at that time, and plaintiff’s concern about the lack of
17 medication are questions for a fact-finder to resolve. Moreover, the fact that plaintiff may not
18 have been experiencing symptoms at 8:30 p.m. or 9:05 p.m. does not mean he did not suffer
19 symptoms later and before he was transferred to Ad Seg.
20 Defendants do not address the question of whether plaintiff’s hypertension was, itself, a
21 serious medical need and the delay in getting care could have caused plaintiff serious harm. It is
22 not disputed that plaintiff had hypertension that required medication. This fact alone may be
23 sufficient to show that plaintiff’s medical need was serious. It is also not disputed that by about
24 1:00 a.m., plaintiff had “significantly elevated” blood pressure. As illustrated by the doctor’s
25 notes, the delay in treating plaintiff’s condition was “worthy of comment or treatment.” Lopez,
26 203 F.3d at 1131. Whether, and to what extent, plaintiff required treatment prior to that time is a
27 question for a factfinder.
28 ////
1 B. Issues of Material Fact regarding the Harm Plaintiff Suffered.
2 Defendants argue there is no medical evidence plaintiff suffered “severe” chest pain or
3 any other physical problems as a result of the delay in his medication. Defendants further argue
4 that plaintiff fails to show any of his medical conditions were exacerbated by the delay.
5 Defendants cite Hallett for the proposition that the harm a plaintiff suffers must be “significant.”
6 Defendants misread Hallett. The court in that case considered whether the plaintiff class had
7 shown that delays in dental care violated the Eighth Amendment. The court held the plaintiffs
8 failed to show the delays “would cause significant harm and that defendants should have known
9 that to be the case.” Thus, the court was considering the seriousness of the plaintiffs’ medical
10 needs, not the injury actually suffered by the plaintiffs.
11 Plaintiff was being treated by a doctor for his high blood pressure and states that he
12 suffered pain and dizziness due to the delay in his medication. This evidence is sufficient to
13 create an issue of fact that plaintiff suffered harm as the result of defendants’ conduct. Plaintiff
14 need not show that defendants’ conduct resulted in “severe,” “substantial,” or long-lasting harm.
15 McGuckin, 974 F.2d at 1060 (“[A] finding that the defendant’s activities resulted in ‘substantial’
16 harm to the prisoner is not necessary.”); see also Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th
17 Cir. 2012) (same (citing McGuckin, 974 F.2d at 1060)); Jett v. Penner, 439 F.3d 1091, 1096 (9th
18 Cir. 2006) (same).
19 C. Issues of Material Fact regarding Defendants’ Deliberate Indifference
20 Plaintiff has given conflicting, sworn, versions of several facts, including whether he
21 obtained his blood pressure medications from the pill line or kept them in his cell and when he
22 took those medications. Those various statements may cause a reasonable juror to question
23 plaintiff’s credibility. However, for purposes of summary judgment this court need not consider
24 those factual conflicts. Those facts could be considered immaterial.
25 Defendants do not dispute, or have failed to provide competent evidence to dispute, the
26 following material facts from plaintiff’s sworn FAC and deposition. Unless otherwise noted,
27 these events occurred on March 9.
28 ////
1 1. Between about 8:00 p.m. and sometime after 10:00 p.m. and before 11:44 p.m. plaintiff
2 was in a holding cell.
3 2. Plaintiff told defendant Constable three to five times between 8:00 p.m. and 10:00
4 p.m., when Constable’s shift ended, that he needed his blood pressure medication.
5 3. After 8:00 p.m. and before he was transferred to Ad Seg, plaintiff told defendants
6 Sharma and Serwanga that he needed his medication.
7 4. Plaintiff told all three defendants that his symptoms were getting out of control, that he
8 was in pain, and that he needed medical attention.
9 5. None of the defendants provided plaintiff with his medications.
10 6. None of the defendants called for medical assistance for plaintiff.
11 7. Plaintiff did not receive his medications until after 12:30 a.m. on March 10.
12 These facts provide evidence that defendants were deliberately indifferent to plaintiff’s
13 serious medical needs. Deliberate indifference can be established by showing “(a) a purposeful
14 act or failure to respond to a prisoner's pain or medical need and (b) harm caused by the
15 indifference.” Jett, 439 F.3d at 1096 (citation omitted); see also Colwell, 763 F.3d at 1066;
16 Wilhelm, 680 F.3d at 1122.
17 If plaintiff repeatedly informed defendants that he did not have necessary blood pressure
18 medication and that he was experiencing pain and other symptoms as a result of his inability to
19 take that medication, then defendants should have known plaintiff’s lack of medication was
20 causing, or could cause, plaintiff potentially serious harm. Nonetheless, defendants did not
21 provide plaintiff with his medication or obtain medical assistance for him.
22 Defendants argue they were entitled to rely on the fact a nurse saw plaintiff at 9:05 p.m.
23 and determined nothing was wrong. However, defendants make no showing that they were aware
24 of the nurse’s visit or conclusions. Further, there is no evidence that the nurse determined
25 nothing was wrong. The nurse’s visit adds to, rather than resolves, the factual disputes regarding
26 the reasons for defendants’ conduct.
27 Defendants also state, without any support, that “[p]laintiff’s alleged chest pain only
28 manifested after he had transferred to administrative segregation.” Plaintiff was not transferred to
1 Ad Seg until sometime after 10:00 p.m. and before 11:44 p.m. Even if a juror might doubt
2 plaintiff’s claim of the onset of his chest pain based on plaintiff’s admission that he did not tell
3 the nurse about it at 9:05 p.m., plaintiff states that his pain and symptoms increased throughout
4 the night. Defendants present no undisputed evidence that between 9:05 p.m. and the time
5 plaintiff was transferred to Ad Seg, plaintiff did not suffer serious symptoms. To the extent
6 defendants rely on the notes of medical staff when plaintiff was seen after 12:30 a.m., those notes
7 are not dispositive. Rather, they are evidence to be considered by a factfinder to resolve the
8 question of the extent of plaintiff’s symptoms. Defendants fail to show plaintiff cannot prove
9 they acted with deliberate indifference.
10 V. Qualified Immunity
11 Defendants also argue that they are entitled to qualified immunity. Government officials
12 enjoy qualified immunity from civil damages unless their conduct violates clearly established
13 statutory or constitutional rights. Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001) (quoting
14 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a court is presented with a qualified
15 immunity defense, the central questions for the court are: (1) whether the facts alleged, taken in
16 the light most favorable to the plaintiff, demonstrate that the defendant’s conduct violated a
17 statutory or constitutional right; and (2) whether the right at issue was “clearly established.”
18 Saucier v. Katz, 533 U.S. 194, 201 (2001), receded from, Pearson v. Callahan, 555 U.S. 223
19 (2009) (the two factors set out in Saucier need not be considered in sequence). “Qualified
20 immunity gives government officials breathing room to make reasonable but mistaken judgments
21 about open legal questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). The existence of
22 triable issues of fact as to whether prison officials were deliberately indifferent does not
23 necessarily preclude qualified immunity. Estate of Ford v. Ramirez–Palmer, 301 F.3d 1043, 1053
24 (9th Cir. 2002).
25 Defendants contend they are entitled to qualified immunity because plaintiff has not
26 sufficiently shown defendants violated his Eighth Amendment rights and because those rights
27 were not clearly established. Defendants argue both contentions by construing the disputed facts
28 in their favor. First, as discussed above, there are disputes of material fact regarding plaintiff’s
1 | claim. And, considering plaintiff's assertions in the most favorable light, a jury could find that
2 || defendants’ conduct violated plaintiffs rights. Second, defendants fail to show plaintiff's Eighth
3 | Amendment right to medical care was not clearly established.
4 Defendants’ argument is based on their unsupported assertion that they knew about the
5 || nurse’s examination of plaintiff at 9:05 p.m. and that the nurse concluded nothing was wrong with
6 || plaintiff. Again, there are disputes regarding these facts. Defendants fail to show that undisputed
7 || facts demonstrate that plaintiff cannot succeed on his claim. Nor do they show that a “reasonable
8 || official” would not have understood that their conduct violated the Eighth Amendment. See
9 | Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011). Defendants are not entitled to the
10 | protection of the qualified immunity doctrine on summary judgment.
11 | VI. Conclusion
12 Defendants have made little effort to present the court with undisputed facts showing that
13 | plaintiff cannot succeed on his claims. Rather, the evidence presented by defendants supports a
14 | conclusion that there are genuine disputes of material facts. Defendants have not borne their
15 || burden of demonstrating they are entitled to judgment as a matter of law.
16 For the foregoing reasons, IT IS RECOMMENDED that defendants’ motion for summary
17 || judgment (ECF No. 76) be denied.
18 These findings and recommendations will be submitted to the United States District Judge
19 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within thirty days after
20 | being served with these findings and recommendations, either party may file written objections
21 || with the court. The document should be captioned “Objections to Magistrate Judge's Findings
22 || and Recommendations.” The parties are advised that failure to file objections within the specified
23 || time may result in waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951
24 | F.2d 1153 (9th Cir. 1991).
25 || Dated: April 26, 2022
26
27
28 || DLB:9/DB prisoner inbox/civil rights/S/hern2195.msj fr □□ □□ ea the nPAGISTRATE □□□□□
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10044234. Public record. Not legal advice.