(PC) Brown v. Wong

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 CHARLES BROWN, Case No. 2:20-cv-01673-DAD-JDP (PC)

12 Plaintiff,

13 v. FINDINGS AND RECOMMENDATIONS

14 S.H. WONG,

15 Defendant.

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17 Plaintiff Brown, a former state prisoner proceeding without counsel in this action brought

18 under 42 U.S.C. § 1983, alleges that defendant Wong violated his Eighth Amendment rights by

19 refusing to provide specialized treatment for his feet. Defendant moves for summary judgment,

20 arguing that plaintiff cannot show that he was deliberately indifferent to a serious medical need

21 or, in the alternative, that he is entitled to qualified immunity. ECF No. 70. Plaintiff failed to

22 timely respond to defendant’s motion for summary judgment. More than 21 days after the court

23 ordered plaintiff to show cause why this case should not be dismissed for failure to prosecute,

24 plaintiff filed a brief opposition that broadly fails to comply with the local rules. ECF No. 74.

25 Nevertheless, given the liberal standard afforded pro se litigants and the prohibition against

26 granting summary judgment by default, I will take these submissions into consideration in

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1 evaluating whether defendant is entitled to summary judgment.1 For the reasons below, I

2 recommend that defendant’s motion for summary judgment be granted.

3 Background

4 Plaintiff alleges that he suffers from type II diabetes and nerve damage in his feet. ECF

5 No. 1 at 3. On December 8 and 12, 2019, plaintiff submitted two medical requests for

6 defendant—plaintiff’s primary care physician while he was incarcerated at Mule Creek State

7 Prison (“MCSP”)—to refer him to a podiatrist for treatment of his toenails and feet. Id. He

8 alleges that his toenails had grown long and thick, and that he had developed corns and calluses

9 on his feet. Id. He further alleges that specialized care was necessary because, given plaintiff’s

10 diabetes and the numbness and nerve pain he experiences in his feet, clipping his own nails posed

11 a risk of injury and a heightened risk of infection and amputation. Id.

12 Defendant attests that on December 17, 2019, plaintiff saw a nurse at MCSP for treatment

13 related to his feet; and that on December 18, plaintiff saw defendant for treatment of an unrelated

14 shoulder issue. ECF No. 70-6 at 2. Defendant scheduled plaintiff for a follow-up appointment on

15 December 20 to attend to his foot conditions, but plaintiff refused that appointment. Id. In his

16 deposition, plaintiff testified that he believed defendant had already told the “RN that [plaintiff’s

17 request] was being denied” and so there was no “use in going back.” ECF No. 70-7 at 87.

18 Defendant attests that, on February 11, 2020, plaintiff saw a nurse for his toenail concerns and

19 was provided with nail clippers and printed instructions for “Diabetes and Foot Care.” ECF No.

20 70-6 at 3. However, plaintiff refused to clip his own toenails and renewed his request to see a

21 podiatrist; he testified that he does not do “self-care” because he read in “a book about diabetes”

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1 “[S]ummary judgment cannot be granted by default even if there is a complete failure to

23 respond to the motion.” Fed. R. Civ. P. 56(e) (advisory committee notes to 2010 amendments).

Instead, courts are permitted to consider a fact undisputed if it is not properly addressed or to

24 grant summary judgment if the motion and supporting materials show that the movant is entitled

to it. See id. Caution is particularly warranted in cases with prisoner litigants proceeding pro se,

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since an unrepresented prisoner’s choice to proceed without counsel is often “less than

voluntary,” and prisoners are subject to the “handicaps . . . [that] detention necessarily imposes

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upon a litigant,” such as “limited access to legal materials . . . [and] sources of proof.” Jacobsen

27 v. Filler, 790 F.2d 1362, 1364-65, n.4 (9th Cir. 1986); see also Blaisdell v. Frappiea, 729 F.3d

1237, 1241 (9th Cir. 2013) (holding that courts have an “obligation to give a liberal construction

28 to the filings of pro se litigants”).

1 produced by the American Diabetes Association that cuts and sores do not heal properly in

2 diabetics and therefore carry a unique risk of infection. ECF No 70-7 at 96-97. Plaintiff met with

3 medical staff again on February 21 and March 4, and was provided printed instructions for

4 tending to his foot conditions. ECF No. 70-6 at 3.

5 Defendant attests that he referred plaintiff to a podiatrist on March 4, but that on April 1,

6 2020, the referral was denied due to the COVID-19 pandemic. Id. Defendant sent plaintiff a

7 letter regarding the denial:

8 A referral to podiatry is reasonable but not essential to be

performed at this time. Due to the COVID-19 pandemic National

9 Emergency, California statewide emergency, current limited SCP

resources, direction of CDCR/CCHCS and to minimize person-

10 person contact in and outside the institution . . . all non-emergent

requests for Podiatry, Orthotics, and Specialty Care Referrals and

11 follow-ups (Including telemedicine) are being canceled.

12 Id. In his deposition, plaintiff confirmed that he received both this letter and an April 16 letter

13 from defendant that provided the same reasons for cancelling a “follow-up appointment regarding

14 [p]laintiff’s request for a podiatry referral.” Id.; see ECF No. 70-7 at 95 & 100-02. On May 21

15 and 28, defendant submitted two additional referrals for plaintiff to see a podiatrist. ECF No. 70-

16 6 at 4. The Physician Manager at MCSP denied both requests “on the basis that more information

17 was needed” and suggested that plaintiff receive an e-consultation, which defendant ordered on

18 June 3. Id. However, on June 8, 2020, the consulting podiatrist, Dr. Hall, responded to the

19 referral by stating that “[plaintiff] would benefit from a face-to-face evaluation and care from a

20 Podiatrist to trim his nails, par his calluses and provide a neurovascular examination.” Id. at 4-5.

21 Between June 8 and August 24, defendant attempted to refer plaintiff to a podiatrist at least three

22 more times, and plaintiff was seen by defendant or other medical staff at MCSP regarding his feet

23 at least six more times. Id. at 5-6. Defendant attests that during that time he provided plaintiff

24 with over-the-counter pain medication, a cane, and the tools and instructions necessary to care for

25 his feet. Id. Plaintiff’s one-page opposition does not dispute the facts put forth by defendant. See

26 ECF No. 74.

27 Legal Standard

28 Summary judgment is appropriate where there is “no genuine dispute as to any material

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

2 Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine

3 only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party,

4 while a fact is material if it “might affect the outcome of the suit under the governing law.”

5 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computs., Inc., 818

6 F.2d 1422, 1436 (9th Cir. 1987).

7 Rule 56 allows a court to grant summary adjudication, also known as partial summary

8 judgment, when there is no genuine issue of material fact as to a claim or a portion of that claim.

9 See Fed. R. Civ. P. 56(a); Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) (“Rule

10 56 authorizes a summary adjudication that will often fall short of a final determination, even of a

11 single claim . . . .”) (quotation marks and citation omitted). The standards that apply on a motion

12 for summary judgment and a motion for summary adjudication are the same. See Fed. R. Civ. P.

13 56(a), (c); Mora v. Chem-Tronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998).

14 Each party’s position must be supported by (1) citations to particular portions of materials

15 in the record, including but not limited to depositions, documents, declarations, or discovery; or

16 (2) argument showing that the materials cited do not establish the presence or absence of a

17 genuine factual dispute or that the opposing party cannot produce admissible evidence to support

18 its position. See Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The court may consider

19 other materials in the record not cited by the parties, but it is not required to do so. See Fed. R.

20 Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.

21 2001); see also Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

22 “The moving party initially bears the burden of proving the absence of a genuine issue of

23 material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the

24 moving party must either produce evidence negating an essential element of the nonmoving

25 party’s claim or defense or show that the nonmoving party does not have enough evidence of an

26 essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins.

27 Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this

28 initial burden, the burden shifts to the non-moving party “to designate specific facts

1 demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d

2 376, 387 (citing Celotex Corp., 477 U.S. at 323). The non-moving party must “show more than

3 the mere existence of a scintilla of evidence.” Id. (citing Anderson, 477 U.S. at 552). However,

4 the non-moving party is not required to establish a material issue of fact conclusively in its favor;

5 it is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the

6 parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors

7 Assoc., 809 F.2d 626, 630 (9th Cir. 1987).

8 The court must apply standards consistent with Rule 56 to determine whether the moving

9 party has demonstrated there to be no genuine issue of material fact and that judgment is

10 appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993).

11 “[A] court ruling on a motion for summary judgment may not engage in credibility

12 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir.

13 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the

14 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party.

15 Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002); Addisu v. Fred Meyer, Inc.,

16 198 F.3d 1130, 1134 (9th Cir. 2000).

17 Analysis

18 Plaintiff alleges that defendant violated his Eighth Amendment rights by refusing to refer

19 him to a podiatrist for specialized foot care. “[T]o maintain an Eighth Amendment claim based

20 on prison medical treatment, an inmate must show ‘deliberate indifference to serious medical

21 needs.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429

22 U.S. 97, 104 (1976)). The two-prong test for deliberate indifference requires a plaintiff to show

23 (1) “‘a serious medical need’ by demonstrating that ‘failure to treat a prisoner’s condition could

24 result in further significant injury or the unnecessary and wanton infliction of pain,’” and (2) that

25 “the defendant’s response to the need was deliberately indifferent.” Id. (quoting McGuckin v.

26 Smith, 974 F.2d 1050, 1059 (9th Cir. 1992)).

27 “This second prong—defendant’s response to the need was deliberately indifferent—is

28 satisfied by showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible

1 medical need and (b) harm caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060).

2 Indifference may be manifest “when prison officials deny, delay or intentionally interfere with

3 medical treatment, or it may be shown by the way in which prison physicians provide medical

4 care.” Id. “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051,

5 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the

6 facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but

7 that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 U.S.

8 825, 837 (1994)). “If a prison official should have been aware of the risk, but was not, then the

9 official has not violated the Eighth Amendment, no matter how severe the risk.” Id. (quoting

10 Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002)).

11 In his opposition to defendant’s motion for summary judgment, plaintiff argues that

12 diabetes is a serious medical need and that defendant was deliberately indifferent to that need “by

13 not allowing [plaintiff] to see the podiat[rist].” ECF No. 74 at 1. Although there is no dispute

14 that diabetics often have serious medical needs, not every medical need by an inmate with

15 diabetes automatically satisfies the first prong of the deliberate indifference test. Cf. Lolli v. Cty.

16 of Orange, 351 F.3d 410, 419-20 (9th Cir. 2003) (holding that a diabetic plaintiff had a serious

17 medical need for “proper food or insulin” in light of the “‘objectively, sufficiently serious’ risk of

18 harm”) (quoting Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002)). Rather, to show that his

19 particular needs were sufficiently serious, plaintiff was required to provide evidence that the

20 “failure to treat [his] condition could result in further significant injury or the unnecessary and

21 wanton infliction of pain.” Clement, 298 F.3d at 904.

22 Plaintiff makes cursory references to pain and “irreparable harm” in his complaint, ECF

23 No. 1 at 1, but fails to provide a declaration or medical evidence of the severity of his foot

24 problems—any pain they may have caused, the extent to which they affected his daily activities,

25 or other reasons why they required specialized treatment. In plaintiff’s deposition, he testified

26 that he learned in a book “from the American Diabetes Association” that “diabetics should see the

27 podiatrist to have their toenails clipped,” because “when you get cut and being a diabetic, sores

28 do not heal properly and it can lead to infection.” See ECF No. 70-7 at 85, 96-97. He also

1 asserted that he is “entitled to foot care in a correctional facility at least once a year” under the

2 ADA. Id. at 85. But he provides no expert testimony, medical evidence, or legal authority to

3 support these statements.2 Plaintiff has not sufficiently shown that specialized foot care for

4 people with diabetes amounts to a serious medical need.

5 Even assuming that plaintiff’s foot problems were a serious medical need, uncontroverted

6 evidence reflects that defendant consistently provided plaintiff adequate medical care. Plaintiff

7 saw defendant or other medical staff at MCSP for treatment of his foot problems nearly twice

8 each month between December 2019 and August 2020—when plaintiff filed this suit. Defendant

9 ordered medical supplies, a cane, and pain medication as plaintiff needed or requested them.

10 Along with other medical staff at MCSP, defendant provided plaintiff with the tools to administer

11 self-care and directions on how to do so. Importantly, defendant repeatedly referred plaintiff to a

12 podiatrist after March 4, though these referrals were denied by supervisory officials at MCSP

13 until August 24, 2020—when plaintiff received a podiatry visit—due to concerns about in-person

14 visits during the COVID-19 pandemic. See supra, page 2-3; ECF No. 7-4 at 6 (declaration of

15 Bennett Feinberg, M.D., Chief Medical Consultant for the California Correctional Health Care

16 Services Office of Legal Affairs). Even if COVID-19 were not a legitimate justification for

17 denying plaintiff’s podiatry referrals, the record reflects that “[d]efendant would not have had the

18 authority to disregard or override decisions to deny or reject his referrals to podiatry for

19 [p]laintiff, where such denials or rejections were based on decisions by medical management or

20 policies and directives of CDCR or CCHCS.” ECF No. 70-4 at 6.

21 At most, the record could be interpreted as showing that defendant delayed referring

22 plaintiff to a podiatrist from December 17 through March 4. But this delay does not amount to

23 evidence of deliberate indifference, since plaintiff has not shown that the delay posed any serious

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2 Information that plaintiff found in a book by the American Diabetes Association is not

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admissible at this stage, both because plaintiff has laid no foundation for its admission and

because it is hearsay evidence. See Combs v. Washington, 660 F. App’x 515, 518 (9th Cir. 2016)

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(holding that “the district court did not abuse its discretion when it excluded as hearsay several

27 Internet articles about [the plaintiff’s] medical conditions”); Blair Foods, Inc. v. Ranchers Cotton

Oil, 610 F.2d 665, 667 (9th Cir. 1980) (“[H]earsay evidence is inadmissible and may not be

28 considered by this court on review of a summary judgment [motion].”).

1 | risk, or—if it did—that defendant was subjectively aware of that risk, or-—even if he was—that

2 | the delay caused plaintiff any cognizable harm. See McGuckin, 974 F.2d at 1060 (explaining that,

3 | when “a claim alleges ‘mere delay’” of treatment, “a prisoner can make ‘no claim for deliberate

4 | medical indifference unless the denial was harmful’”) (quoting Shapley v. Nevada Board of State

5 | Prison Comm ‘rs, 766 F.2d 404, 407 (9th Cir.1985) (per curiam). Accordingly, on the evidence in

6 || the record, no reasonable juror could find that defendant acted with deliberate indifference.

7 Accordingly, it is hereby recommended that:

8 1. defendant’s motion for summary judgment, ECF No. 70, be granted;

9 2. plaintiff's claim be dismissed; and

10 3. the Clerk of Court be directed to close the case.

11 These findings and recommendations are submitted to the United States District Judge

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

13 | after being served with these findings and recommendations, any party may file written

14 | objections with the court and serve a copy on all parties. Such a document should be captioned

15 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

16 | objections shall be served and filed within fourteen days after service of the objections. The

17 | parties are advised that failure to file objections within the specified time may waive the right to

18 || appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez

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

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IT IS SO ORDERED.

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Dated: _ May 12, 2023 q———

23 JEREMY D. PETERSON

UNITED STATES MAGISTRATE JUDGE

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3 Because I find that plaintiff has not shown that defendant violated his Eighth

28 | Amendment rights, I need not address defendant’s qualified immunity defense.