“If we determine . 9 .. that no constitutional violation occurred, the qualified immunity inquiry is at an end.”
How later courts described this case
- “If we determine . 9 .. that no constitutional violation occurred, the qualified immunity inquiry is at an end.”
- overruling the sequence of the two-part test 1 established, as required by Saucier v. Katz, 533 U.S. 194 (2001)
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 DARREN HENDERSON, Case No.17-cv-06977-HSG
8 Plaintiff,
ORDER GRANTING DEFENDANTS'
9 v. MOTION FOR SUMMARY
JUDGMENT; DENYING PLAINTIFF'S
10 J. LEWIS, et al., MOTION FOR SUMMARY
JUDGMENT
Defendants.
11
Re: Dkt. Nos. 45, 49, 60
12
13
INTRODUCTION
14
Plaintiff, an inmate at California State Prison, Sacramento (“CSP-SAC”) filed this pro se
15
civil rights action under 42 U.S.C. § 1983 alleging that prison officials at Salinas Valley State
16
Prison (“SVSP”) where he was previously incarcerated were deliberately indifferent to his serious
17
medical needs when they failed to provide him with diabetic snacks. Now before the Court are
18
plaintiff’s and defendants’ cross-motions for summary judgment. For the reasons set forth below,
19
defendants’ motion for summary judgment is GRANTED and plaintiff’s motion for summary
20
judgment is DENIED.
21
BACKGROUND
22
The following factual allegations are undisputed unless stated otherwise. Plaintiff is
23
diabetic and takes insulin for his diabetes. He was incarcerated at SVSP from May 27, 2016 to
24
January 12, 2017. While at SVSP his blood sugar levels were checked twice per day, and he was
25
prescribed glucose pills to take if he felt symptoms of hypoglycemia (low blood sugar). Plaintiff
26
requested that he be given a daily diabetic snack (two packages of cheese and crackers or peanut
27
butter and crackers plus one fresh fruit) in order to eat the snack if he felt signs of hypoglycemia.
1 This request was denied as not medically indicated.
2 Plaintiff was seen by medical provider Dr. Tuvera three times while he was at SVSP: on
3 June 1, 2016; July 1, 2016; and September 30, 2016. (Defendants’ Mot. For Summary Judgment
4 (“MSJ”), Tuvera Decl., ¶ 2.) At each appointment, Dr. Tuvera noted that plaintiff had, among
5 other conditions, type 2 diabetes and obesity. (Id. at ¶ 3; Ex. A.) At the first appointment, Dr.
6 Tuvera discussed with plaintiff the importance of taking glucose gel (also referred to as glucose
7 tablets) if he experienced symptoms of hypoglycemia. (Id. at ¶ 6; Ex. A.) At the second and third
8 appointments Dr. Tuvera noted that plaintiff had no hypoglycemia. (Id. at Exs. B and C.)
9 On June 1, 2016, plaintiff submitted health care appeal SVSP-HC-16055478. (MSJ,
10 Gamboa Decl., Ex. A.) In this appeal plaintiff requested that he be given a diabetic snack, arguing
11 that it was mandatory under Plata1 and that SVSP was withholding the snack from insulin-
12 dependent diabetics as a form of punishment. (Id.) He requested that SVSP acknowledge his
13 previous prescribed treatment of a daily snack which began in 2005, and declare that the policy of
14 not issuing diabetic snacks violated Plata. (Id.)
15 The first level response, issued by Dr. Fu and defendant Gamboa, partially granted
16 plaintiff’s request, referring him to the dietician for an assessment regarding diabetic snacks and to
17 his primary care provider for a diabetes assessment. (Defendants’ MSJ, Gamboa Decl., Ex. B.)
18 Plaintiff appealed to the second level of administrative review, stating he was dissatisfied and still
19 not receiving a diabetic snack, and that SVSP was in breach of Plata. (Id. at Ex. A.)
20 The second level response issued by defendant Kumar states that plaintiff’s second level
21 appeal indicated that he was still waiting to be seen for his diabetic assessment. (Defendants’
22 MSJ, Kumar Decl., Ex. D.) Because records showed that he was seen for the assessment on July
23 1, 2016, Kumar ultimately granted the second level appeal. (Id.)
24 Plaintiff appealed to the third level of review stating that despite the second level decision
25 granting his appeal, he was still not receiving a diabetic snack, and stating that under Plata CDCR
26
1 The Court assumes that plaintiff is referring to the Stipulation for Injunctive Relief entered in
27
2002 in Plata v. Davis, Case No. 3:01-cv-01351-TEH. Plaintiff makes allegations throughout his
1 doctors and dieticians have no discretion in determining a course of action concerning
2 nourishment for inmates treated with insulin. (Defendants’ MSJ, Gamboa Decl., Ex. A.) The
3 appeal was denied at the third level of review. (Defendants’ MSJ, Lewis Decl., Ex. 1.) The third
4 level decision was signed by S. Gates for Lewis and stated that plaintiff had been seen by both his
5 primary care provider and a dietician and that neither recommended a diabetic snack. (Id.)
6 Plaintiff’s second health care appeal, SVSP-HC-16056045, submitted on August 10, 2016
7 stated that a nurse named “Rodriqez” was denying him diabetic snacks and saying that it did not
8 matter that his appeal was granted. (Defendants’ MSJ, Gamboa Decl., Ex. C.) Plaintiff requested
9 that SVSP recognize Volume 4 Medical Services, Chapter 20A and 20B, which he asserted
10 required that all inmates treated with insulin receive diabetic snacks. (Id.)
11 At the first level of review Dr. Fu and Gamboa partially granted the appeal as to
12 recognizing Chapter 20 of Volume 4 Medical Services, but denied plaintiff’s request for a diabetic
13 snack. (Id. at Ex. D). The decision notes that plaintiff was assessed by a primary care physician
14 and dietician, neither of whom recommended a snack; that plaintiff had not received a snack for
15 several months; and that the dietician was not able to successfully discuss the matter with him and
16 had to terminate the appointment. (Id.)
17 Plaintiff appealed to the second level of review, stating that his interview with dietician
18 Watson had ended without incident, and that SVSP’s refusal to give diabetic inmates a snack was
19 deliberate indifference to a serious medical need. (Id. at Ex. B.) Plaintiff asserted that SVSP was
20 in violation of Plata and had implemented a discretionary policy in place of Plata’s mandatory
21 policy.
22 At the second level of review, Kumar and another reviewer, B. Brizendine, denied the
23 request for a diabetic snack and granted the request to recognize Volume 4, Chapters 20A and
24 20B. (Defendants’ MSJ, Kumar Decl., Ex. F.) Plaintiff appealed the second level decision,
25 arguing that his blood sugar was not well controlled, that prior prisons had always honored his
26 standing order for a diabetic snack, and that SVSP’s policy to deny diabetic snacks was not an
27 individual diagnosis but rather a policy that was applied to all diabetic inmates as a form of
1 At the third level of review this appeal was denied, again by S. Gates for Lewis.
2 (Defendants’ MSJ, Lewis Decl., Ex. 2.) The decision states that that the policies in Volume 4
3 Chapter 20.2 are that a diabetic snack may be issued to patients with juvenile onset type 1 diabetes
4 mellitus or brittle diabetes with indication, but that diabetic snacks are not indicated as mandatory.
5 (Id.) Further, the decision states that the request for a snack is duplicative of plaintiff’s request in
6 his other administrative appeal which was already decided at the third level, and therefore would
7 not be addressed again in the appeal response. (Id.)
8 DISCUSSION
9 A. Standard of Review
10 Summary judgment is proper where the pleadings, discovery and affidavits show there is
11 “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
12 law.” See Fed. R. Civ. P. 56(a). Material facts are those that may affect the outcome of the case.
13 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is
14 genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving
15 party. See id.
16 A court shall grant summary judgment “against a party who fails to make a showing
17 sufficient to establish the existence of an element essential to that party’s case, and on which that
18 party will bear the burden of proof at trial[,] . . . since a complete failure of proof concerning an
19 essential element of the nonmoving party’s case necessarily renders all other facts immaterial.”
20 See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the initial
21 burden of identifying those portions of the record that demonstrate the absence of a genuine issue
22 of material fact. Id. The burden then shifts to the nonmoving party to “go beyond the pleadings
23 and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on
24 file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” See id. at 324
25 (citing Fed. R. Civ. P. 56(e) (amended 2010)). The nonmoving party must show more than “the
26 mere existence of a scintilla of evidence.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th
27 Cir. 2010) (citing Liberty Lobby, 477 U.S. at 252). “In fact, the non-moving party must come
1 favor.” Id. (citing Liberty Lobby, 477 U.S. at 252). If the nonmoving party fails to make this
2 showing, “the moving party is entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. at
3 323.
4 For purposes of summary judgment, the court must view the evidence in the light most
5 favorable to the nonmoving party; if the evidence produced by the moving party conflicts with
6 evidence produced by the nonmoving party, the court must assume the truth of the evidence
7 submitted by the nonmoving party. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999).
8 The court’s function on a summary judgment motion is not to make credibility determinations or
9 weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv., Inc. v.
10 Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). When, however, “opposing
11 parties tell two different stories, one of which is blatantly contradicted by the record, so that no
12 reasonable jury could believe it, a court should not adopt that version of the facts for purposes of
13 ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). When the
14 parties file cross-motions for summary judgment, the court must consider all of the evidence
15 submitted in support of both motions to evaluate whether a genuine issue of material fact exists
16 precluding summary judgment for either party. The Fair Housing Council of Riverside County,
17 Inc. v. Riverside Two, 249 F.3d 1132, 1135 (9th Cir. 2001).
18 B. Exhaustion
19 Defendants Kumar, Lewis, and Gamboa assert that plaintiff failed to exhaust his claims
20 against them because he did not name them or bring any claim of wrongdoing against them in his
21 administrative appeals. Defendants have not, however, met their burden to show that plaintiff
22 failed to exhaust his claims.
23 1. Standard
24 The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought
25 with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner
26 confined in any jail, prison, or other correctional facility until such administrative remedies as are
27 available are exhausted.” 42 U.S.C. § 1997e(a). Compliance with the exhaustion requirement is
1 & n.5 (2001). All available remedies must be exhausted; those remedies “need not meet federal
2 standards, nor must they be ‘plain, speedy, and effective.’” Porter, 534 U.S. at 524.
3 Exhaustion of available remedies is a prerequisite to suit even if the prisoner seeks relief
4 not available in grievance proceedings, such as money damages. Booth, 532 U.S. at 741. Section
5 1997e(a) requires “proper exhaustion” of available administrative remedies. Woodford v. Ngo,
6 548 U.S. 81, 93 (2006). Proper exhaustion requires using all steps of an administrative process
7 and complying with “deadlines and other critical procedural rules.” Id. at 90. “[I]t is the prison’s
8 requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock,
9 549 U.S. 199, 218 (2007).
10 The failure to exhaust administrative remedies is an affirmative defense that must now be
11 raised in a motion for summary judgment. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir.
12 2014) (en banc). In bringing such a motion, the defendant has the initial burden to prove “that
13 there was an available administrative remedy, and that the prisoner did not exhaust that available
14 remedy.” Id. at 1172. If the defendant carries that burden, “the burden shifts to the prisoner to
15 come forward with evidence showing that there is something in his particular case that made the
16 existing and generally available administrative remedies effectively unavailable to him.” Id. The
17 ultimate burden of proof remains with the defendant, however. Id. “If material facts are disputed,
18 summary judgment should be denied, and the district judge rather than a jury should determine the
19 facts.” Id. at 1166.
20 The California Department of Corrections and Rehabilitation (“CDCR”) provides its
21 inmates and parolees the right to appeal administratively “any policy, decision, action, condition,
22 or omission by the department or its staff that the inmate or parolee can demonstrate as having a
23 material adverse effect upon his or her health, safety, or welfare.” 15 Cal. Code Regs. § 3084.1(a).
24 Generally, an inmate must submit the appeal within thirty days of the “occurrence of the event or
25 decision being appealed, or . . . [u]pon first having knowledge of the action or decision being
26 appealed, or . . . [u]pon receiving an unsatisfactory departmental response to an appeal filed.” Id.
27 § 3084.8(b). In order to exhaust available administrative remedies within this system, a prisoner
1 the CDCR or his designee. Id. § 3084.1(b), § 3084.7(d)(3). “The third level review constitutes the
2 decision of the Secretary of the California Department of Corrections and Rehabilitation on an
3 appeal, and shall be conducted by a designated representative under the supervision of the third
4 level Appeals Chief or equivalent. The third level of review exhausts administrative remedies;
5 however, this does not preclude amending a finding previously made at the third level.” Id.
6 § 3084.7(d)(3).
7 California prison regulations require the grievance to “describe the specific issue under
8 appeal and the relief requested,” “all staff member(s) involved and [] describe their involvement in
9 the issue,” and “state all facts known and available to [the inmate] regarding the issue being
10 appealed” at the time the grievance is submitted. 15 Cal. Code Regs. § 3084.2(a).
11 If an inmate’s grievance does not comply with a procedural rule but prison officials decide
12 it on the merits anyway at all available levels of administrative review, it is exhausted. Reyes v.
13 Smith, 810 F.3d 654, 656, 658 (9th Cir. 2016) (agreeing with all circuits to consider the issue).
14 Thus, the California inmate in Reyes whose grievance failed to name all staff members involved in
15 his case, as required by 15 Cal. Code Regs. § 3084.2(a), nevertheless exhausted his claim of
16 deliberate indifference to his serious medical needs because that claim was decided on its merits at
17 all levels of review. See id. at 656-57.
18 2. Analysis
19 Defendants argue that to exhaust his claims against Kumar, Lewis, and Gamboa, plaintiff
20 was required to bring a separate appeal challenging Kumar, Lewis, and Gamboa’s denial of his
21 appeals seeking diabetic snacks, citing to Frost v. Hallock, 2019 WL 1102379, at *7 (N.D. Cal.
22 March 3, 2019). Frost is inapplicable here. In Frost, the plaintiff-inmate argued that the prison
23 officials reviewing his appeal violated his due process rights when they denied his appeal
24 challenging the discipline he received for participating in a hunger strike. The legal claim, a due
25 process violation in handling the appeal, was distinct from the subject of the appeal, challenging
26 the discipline. Here, plaintiff’s claim is that Kumar, Lewis, and Gamboa were deliberately
27 indifferent to his serious medical needs when they denied him diabetic snacks by denying his
1 Both of plaintiff’s administrative appeals provided Kumar, Lewis, and Gamboa notice of
2 plaintiff’s claim that he was being denied diabetic snacks that he required to treat a serious
3 medical need. Both these appeals were exhausted. His first appeal, SVSP-HC-16055478, was
4 decided on the merits at the highest level of review. His second appeal, SVSP-HC-16056045, was
5 partially decided on the merits and partially found to be duplicative of the first appeal. Bringing a
6 separate grievance against the reviewers for denying his administrative appeals seeking the snacks
7 would be duplicative. Accordingly, defendants have not met their burden of showing that plaintiff
8 failed to exhaust his claims against Lewis, Kumar and Gamboa.
9 C. Deliberate Indifference to Serious Medical Needs
10 Plaintiff claims that reviewers Lewis, Kumar and Gamboa, Watson (the dietician that
11 evaluated him) and J. Rodriguez (a nurse who provided him care), all violated his Eighth
12 Amendment rights by not providing him a diabetic snack. Plaintiff asserts that he experienced
13 over 40 episodes of hypoglycemia while at SVSP and needed the snack to control his blood sugar.
14 He asserts that he had a prior prescription for a diabetic snack, was given a diabetic snack at the
15 prisons where he was incarcerated before and after his time at SVSP, and that a diabetic snack is
16 mandatory under the prison medical guidelines. Plaintiff also asserts that while he did have a
17 prescription for glucose pills at SVSP, once he finished it the nurses from whom he requested a
18 refill refused to give it to him.
19 The defendants argue that they are entitled to summary judgment in their favor because
20 plaintiff did not have a serious medical need for snacks. However, plaintiff’s serious medical need
21 was his diabetes. The question is whether the defendants’ refusal to provide him diabetic snacks
22 constituted deliberate indifference to this serious medical need in violation of the Eighth
23 Amendment.
24 Defendants Watson, Kumar, and Gamboa assert that a diabetic snack was not medically
25 indicated for plaintiff due to his weight, that the prescribed glucose pills were the proper
26 prescription for plaintiff to use in controlling his blood sugar levels and they were unaware of
27 anyone refusing to refill the prescription, and that plaintiff’s diabetes treatment was in accordance
1 denying plaintiff’s appeals, while Rodriguez argues that he is not the correct defendant because he
2 is a male nurse and plaintiff asserts that the “Nurse Rodriguez” who provided him medical care
3 was female.
4 1. Standard
5 Deliberate indifference to a serious medical need violates the Eighth Amendment’s
6 proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104
7 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds,
8 WMX Techs, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A determination of
9 “deliberate indifference” involves an examination of two elements: the seriousness of the
10 prisoner’s medical need and the nature of the defendant’s response to that need. See McGuckin,
11 974 F.2d at 1059.
12 A “serious” medical need exists if the failure to treat a prisoner’s condition could result in
13 further significant injury or the “unnecessary and wanton infliction of pain.” McGuckin, 974 F.2d
14 at 1059 (citing Estelle, 429 U.S. at 104).
15 A prison official is deliberately indifferent if he knows that a prisoner faces a substantial
16 risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer
17 v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only “be aware of facts from
18 which the inference could be drawn that a substantial risk of serious harm exists,” but he “must
19 also draw the inference.” Id. If a prison official should have been aware of the risk but was not,
20 then the official has not violated the Eighth Amendment, no matter how severe the risk. Gibson v.
21 County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002), overruled on other grounds, Castro v.
22 County of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016). Mere negligence, or even gross
23 negligence, is not enough. Farmer, 511 U.S. at 835–36 & n.4.
24 A claim of medical malpractice or negligence is insufficient to make out a violation of the
25 Eighth Amendment. McGuckin, 974 F.2d at 1059. Nor does “a difference of opinion between a
26 prisoner patient and prison medical authorities regarding treatment” amount to deliberate
27 indifference. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). In order to prevail on a
1 course of treatment the defendant chose was medically unacceptable under the circumstances and
2 that he or she chose this course in conscious disregard of an excessive risk to plaintiff’s health.
3 Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); Jackson v. McIntosh, 90 F.3d 330, 332
4 (9th Cir. 1996) (citing Farmer, 511 U.S. at 837).
5 2. Watson
6 The undisputed record shows that Watson took reasonable steps to address plaintiff’s
7 serious medical need. Watson, a registered dietician, met with plaintiff to evaluate his request for
8 a diabetic snack on July 13, 2016. (Defendants’ MSJ, Watson Decl., ¶ 10.) After reviewing
9 plaintiff’s medical records and meeting with plaintiff, Watson advised against a diabetic snack.
10 (Id. at ¶ 13.) Watson concluded that given plaintiff’s weight, his type 2 diabetes, and his generally
11 good control of his blood sugar levels, a snack would not be beneficial for his health and the
12 already-prescribed glucose tablets were a better option for hypoglycemia relief. (Id. at ¶¶ 11-13.)
13 Plaintiff did not inform Watson that he had taken all his glucose pills and was denied a refill, so
14 Watson was unaware of this allegation. (Defendants’ Reply, Watson Decl. ¶ 3.) Indeed, the
15 record does not show that plaintiff informed anyone that he was being denied a prescription refill,
16 and his medical records show that the prescription was filled on June 2, 2016, and again on June
17 15, 2016. (Defendants’ MSJ, Ruhparwar Decl., Ex. G.)
18 In recommending against a snack, Watson also took into account the policies and
19 procedures set forth in California Correctional Health Care Services’ (“CCHCS”) Inmate Medical
20 Services Program Policy and Procedures (“IMPP”), Volume 4, Chapter 20, Sections 4.20.1.,
21 4.20.2, SVSP Local Operational Procedure, CCHCS Care Guide: Diabetes, and the
22 recommendations from the Academy of Nutrition and Dietetics, the American Diabetes
23 Association, and peer reviewed articles. (Defendants’ MSJ, Watson Decl., ¶ ¶ 4-8.)
24 Plaintiff asserts that he is entitled to summary judgment because diabetic snacks were
25 mandatory for him, both under general prison guidelines and in his individual case. The record
26 contradicts Plaintiff’s assertions. The version of the IMPP Volume 4, Chapter 20 in effect at the
27 time that plaintiff was at SVSP did not require snacks for all insulin-dependent diabetics. It
1 be provided as medically indicated,” and that patients must have “juvenile onset type 1 diabetes
2 mellitus or brittle diabetes” to qualify for nourishments or supplements, except in special
3 situations.2 (Defendants’ MSJ, Ruhparwar Decl., Ex. C). The version of the policies that plaintiff
4 submitted and referred to in his filings is not the version effective during the relevant time period.
5 The CCHCS Care Guide: Diabetes states that “patients who are prone to hypoglycemia should
6 have access to glucose tablets, glucose gel, or a diabetic snack.” (Id. at Ex. D.) There is no triable
7 issue of fact showing that defendants, including Watson, did not follow the guidelines that were
8 current at the time plaintiff was at SVSP. And, as discussed supra, Watson concluded that
9 plaintiff’s specific health factors indicated glucose tablets were a better option for hypoglycemia
10 relief. A difference of opinion regarding medical treatment does not constitute deliberate
11 indifference. See Toguchi, 391 F.3d at 1058.
12 Accordingly, the evidence in the undisputed record reflects no genuine dispute of material
13 fact that would preclude a grant of summary judgment in favor of Watson.
14 2. Gamboa
15 Plaintiff asserts that as a first level reviewer of his health care appeals, Gamboa was
16 deliberately indifferent because he denied plaintiff’s request for a diabetic snack. The undisputed
17 record shows that Gamboa took reasonable steps to address plaintiff’s serious medical need and
18 his decision did not disregard a risk of harm to plaintiff. Gamboa based his denial on the prison
19 medical guidelines, Dr. Fu’s findings and recommendations, Dr. Fu’s interview with plaintiff, and
20 plaintiff’s medical records. (Defendants’ MSJ, Gamboa Decl., ¶ ¶ 8-9, 11-13, Fu Decl., ¶ ¶ 4-11.)
21
22
2The Court notes that in his deposition plaintiff stated that he has type 1 diabetes. (Plaintiff’s Opp.
23
to Defendants’ MSJ, Ex. C, ECF No. 52 at 60.) However, all the documents in the record,
including the declarations of his examining doctors at SVSP, reflect that plaintiff had a diagnosis
24
of type 2 diabetes, and there is no allegation that plaintiff informed defendants that this diagnosis
was incorrect. Defendants made their decisions based on plaintiff’s medical records,
25
recommendations from his doctors, and the prison guidelines and policies. The guidelines at issue
state that special nourishment such as diabetic snacks shall be provided as medically indicated, so
26
even if plaintiff had a diagnosis of type 1 diabetes, a snack had to be medically indicated to be
prescribed. In any event, plaintiff does not argue that he should have been given a snack because
27
he has type 1 diabetes: he argues that he should have been given a snack because he is insulin
1 In reviewing Plaintiff’s appeal, Gamboa took reasonable steps to address plaintiff’s
2 medical needs by seeking more information. Gamboa ordered an evaluation by plaintiff’s primary
3 care doctor and a dietician to assess whether a diabetic snack was recommended for plaintiff.
4 Although plaintiff asserts that he has always been given a diabetic snack while incarcerated,
5 except for his time at SVSP, he does not dispute that in 2013, while incarcerated at a different
6 prison, he was removed from the diabetic snack list. The record also reflects that both in 2005 and
7 2013 plaintiff filed administrative appeals seeking diabetic snacks from the prisons where he was
8 incarcerated, and these appeals were denied with findings that a snack was not medically
9 indicated. (Defendants’ MSJ, Rhupawar Decl., ¶¶ 9-10.) Plaintiff’s medical records from January
10 1, 2010 through August 3, 2018, did not indicate that he had a prescription for a diabetic snack
11 when he arrived at SVSP or at any time while at SVSP. (Id. at ¶ 7.) Plaintiff has submitted what
12 appears to be a 2005 prescription for a diabetic snack from another institution. (Plaintiff’s Opp. to
13 Defendants’ MSJ, Ex. E, ECF No. 52 at 88.) Although defendants object to this exhibit as
14 unauthenticated, this dispute is not material because even if plaintiff did have a prescription for a
15 snack in 2005, Gamboa’s decision to order an evaluation from a primary care provider and
16 dietician in response to the request for a snack does not show deliberate indifference, even if
17 plaintiff once had a snack prescription or did at times receive snacks at other prisons. See
18 Toguchi, 391 F.3d at 1058-60.
19 In response to the second appeal, Gamboa explained in denying the request that neither
20 plaintiff’s primary care doctor nor dietician recommended a diabetic snack. There is no evidence
21 in the record that Gamboa was aware of any allegation by plaintiff that he had requested refills to
22 his glucose pills and that his request was denied. In sum, although plaintiff disagrees with
23 Gamboa’s conclusions and decision to deny his appeals at the first level, Gamboa took reasonable
24 steps to address plaintiff’s serious medical needs and a difference of opinion regarding medical
25 treatment does not constitute deliberate indifference. See Toguchi, 391 F.3d at 1058. There is no
26 evidence in the record that would preclude a grant of summary judgment in Gamboa’s favor.
27 3. Kumar
1 deliberately indifferent because he denied plaintiff’s requests for a diabetic snack. Kumar granted
2 plaintiff’s appeal insofar as plaintiff wanted to ensure he was seen by his primary care doctor as
3 previously ordered, but denied the request for snacks.
4 The undisputed record shows that Kumar took reasonable steps to address the serious
5 medical need, as his second level denials were based on a review of plaintiff’s medical records, the
6 recommendations of his primary care doctors, and the prison medical guidelines. (Defendants’
7 MSJ, Kumar Decl. ¶¶ 8-10.) Based on Kumar’s review, plaintiff’s request for diabetic snacks was
8 not medically indicated as he did not have type 1 or brittle diabetes, and it was not recommended
9 by plaintiff’s doctor or dietician. (Id.) There is no evidence in the record that Kumar was aware
10 of any allegation by plaintiff that he had requested refills to his glucose pills and that his request
11 was denied. Although plaintiff disagrees with Kumar’s conclusions and decision to deny his
12 appeals at the second level, a difference of opinion regarding medical treatment does not constitute
13 deliberate indifference. See Toguchi, 391 F.3d at 1058. There is no evidence in the record that
14 precludes summary judgment in Kumar’s favor.
15 4. Lewis
16 Plaintiff asserts that as the third level reviewer of both of his health care appeals, Lewis
17 was deliberately indifferent because she denied plaintiff’s request for a diabetic snack. Lewis, as
18 the former Deputy Director, Policy and Risk Management Services at CCHCS, is named on the
19 third level decisions for both of plaintiff’s health care appeals, but she was not personally involved
20 in deciding either appeal. There was a broad delegation of authority in place that allowed for
21 managers to prepare and sign CCHCS’s third level decision on Lewis’ behalf. (Defendants’ MSJ,
22 Lewis Decl., ¶ 8.) Lewis’ responses were prepared and signed by S. Gates. (Id. at ¶¶ 6-10.) She
23 did not approve the responses, speak to S. Gates about the responses, or instruct S. Gates as to the
24 content of the responses. Id.
25 The undisputed record contains no evidence that Lewis was personally involved in
26 plaintiff’s healthcare or the decision to deny plaintiff’s requests for a diabetic snack. Therefore
27 she cannot be held liable for any alleged violation of plaintiff’s rights. “Liability under section
1 constitutional violations of his subordinates if the supervisor participated in or directed the
2 violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d
3 1040, 1045 (9th Cir. 1989) (internal citation omitted). There is no evidence in the record that
4 would create a genuine issue of material fact as to Lewis’ personal participation in plaintiff’s
5 health care or in any violation of his rights that would preclude a grant of summary judgment in
6 Lewis’ favor.
7 5. J. Rodriguez
8 In his amended complaint plaintiff alleged that a nurse “Rodriqez” saw him daily and she
9 refused to give him a diabetic snack despite his hypoglycemic episodes. After being notified that
10 no nurse by that name was employed at SVSP, but there was a nurse by the name of J. Rodriguez,
11 plaintiff confirmed that J. Rodriguez was the nurse he intended to sue. LVN J. Rodriguez,
12 however, moves for summary judgment on the grounds that he is the wrong defendant: he is male
13 and all of plaintiff’s allegations are against a female nurse. While plaintiff continues to assert that
14 it was a female nurse named Rodriguez who provided his medical care and is the subject of his
15 claims, the undisputed record shows that there was only one nurse by the name of J. Rodriguez at
16 SVSP during the time plaintiff was incarcerated there, and that this person is male. (Defendants’
17 MSJ, Rodriguez Decl., ¶ 3, Nunez Decl., ¶ 2.) Accordingly, summary judgment is granted in
18 favor of J. Rodriguez as the undisputed record shows that he was not the nurse who had the
19 interactions with plaintiff that are the subject of plaintiff’s claims.
20 D. Qualified Immunity
21 The defense of qualified immunity protects “government officials . . . from liability for
22 civil damages insofar as their conduct does not violate clearly established statutory or
23 constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457
24 U.S. 800, 818 (1982). To determine whether a government official is entitled to qualified
25 immunity, courts must consider (1) whether the official’s conduct violated a constitutional right,
26 and (2) whether that right was “clearly established” at the time of the alleged misconduct. See
27 Pearson v. Callahan, 555 U.S. 223, 232-236 (2009) (overruling the sequence of the two-part test
1 established, as required by Saucier v. Katz, 533 U.S. 194 (2001)). Courts may “exercise their
2 sound discretion in deciding which of the two prongs of the qualified immunity analysis should be
3 addressed first in light of the circumstances in the particular case at hand.” Id. at 236.
4 As discussed above, the undisputed record gives rise to no genuine issue of fact as to
5 || whether defendants were deliberately indifferent to plaintiff's serious medical needs when they
6 || denied his requests for a diabetic snack. Defendants thus are entitled to summary judgment in
7 || their favor on the defense of qualified immunity because the Court has found that no constitutional
8 violation occurred. See Aguilera v. Baca, 510 F.3d 1161, 1167 (9th Cir. 2007) (“If we determine .
9 .. that no constitutional violation occurred, the qualified immunity inquiry is at an end.”).
10 CONCLUSION
11 For the foregoing reasons, defendants’ motion for summary judgment is GRANTED, and
12 || plaintiff's motion for summary judgment is DENIED.
5 13 Defendant’s motion to strike plaintiffs sur-reply is GRANTED.?
14 This order terminates Dkt. Nos. 45, 49, and 60.
3 15 The Clerk shall enter judgment for defendants and close the file.
a 16 IT ISSO ORDERED.
17 || Datea: 9/10/2019
18
19 Abspund 3 Mbt
HAYWOOD S. GILLIAM, JR.
20 United States District Judge
21
22
23
24
25
26
27
28 3 The Court has reviewed the sur-reply and determined that even were it to consider the sur-reply,
that filing would not affect the outcome of the case.