Maldonado v. Ashby

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8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA

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JUAN MALDONADO,

11 Case No. 21-cv-07780 BLF (PR)

Plaintiff,

12 ORDER GRANTING DEFENDANT’S

MOTION FOR SUMMARY

13 v. JUDGMENT

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15 J. ASHBY,

Defendant.

16 (Docket No. 18)

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18 Plaintiff, a state prisoner proceeding pro se, filed this civil rights action pursuant to

19 42 U.S.C. § 1983 against a physician at the Correctional Training Facility (“CTF”) in

20 Soledad. Dkt. No. 1.1 The Court found the complaint stated a cognizable Eighth

21 Amendment claim for deliberate indifference to serious medical needs against Defendant

22 Dr. Jonathan Ashby. Dkt. No. 9 at 3. Defendant filed a motion for summary judgment on

23 the grounds that Plaintiff cannot meet his burden of proving deliberate indifference to

24 serious medical needs, Defendant is entitled to qualified immunity, and Plaintiff is not

25 entitled to punitive damages. Dkt. No. 18. In support, Defendant filed declarations and

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1 All page references herein are to the Docket pages shown in the header to each document

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and brief cited, unless otherwise indicated.

1 exhibits.2 Id. Plaintiff filed opposition, supported by his declaration (Ex. A). Dkt. No.

2 25.3 Defendant filed a reply. Dkt. No. 28.

3 Plaintiff also submitted declarations from three other inmates, each criticizing the

4 care they claim to have received from Defendant. Dkt. No. 25, Exs. D, E. Defendant

5 objects to these declarations as irrelevant because they refer to medical conditions that are

6 not at issue here, i.e., pain in the ears, throat, and knee, and Defendant’s alleged treatment

7 of these inmates’ medical needs does not pertain to the claim that Defendant was

8 deliberately indifferent to Plaintiff’s needs. Dkt. No. 28 at 4. The Court agrees that these

9 declarations contain no relevant information regarding the treatment provided by

10 Defendant to Plaintiff. Therefore, those irrelevant portions of the declarations will not be

11 considered.4 See Fed. R. Evid. 402.

12 For the reasons set forth below, Defendant’s motion for summary judgment is

13 GRANTED.

14

15 DISCUSSION

16 I. Statement of Facts5

17 Plaintiff alleges Defendant Ashby, a physician employed at CTF, failed to provide

18 constitutionally adequate medical care for Plaintiff’s nosebleed condition, also known as

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2 Defendant submits his declaration, Dkt. No. 18-4, along with exhibits containing excerpts

from Plaintiff’s medical records of which he has personal knowledge, Dkt. No. 18-5, and

the declaration of Dr. B. Feinberg, Chief Medical Consultant for the California

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Correctional Health Care Services (“CCHCS”) Office of Legal Affairs, Dkt. No. 18-6,

with exhibits containing copies of Plaintiff’s medical records, Dkt. No. 18-7. Defendant

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also submits the declaration of counsel, C. Hay-Mie Cho, Dkt. No. 18-2, along with an

exhibit containing excerpts from the transcript of Plaintiff’s deposition taken on September

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8, 2022, Dkt. No. 18-3.

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4 Plaintiff’s cellmate, Inmate Rivas, also states that he saw Plaintiff have reoccurring

25 nosebleeds from March through August 2020. Rivas Decl. ¶ 2, Dkt. No. 25 at 29.

Accordingly, this part of the declaration is relevant as corroborating Plaintiff’s allegation

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that he continued to have nosebleeds during that time period. See infra at 6-7.

1 epistaxis. Dkt. No. 1 at 3-4; Dkt. No. 18 at 7. Defendant was Plaintiff’s primary care

2 physician (“PCP”) at CTF. Dkt. No. 1 at 4.

3 The parties disagree about the date Defendant first treated Plaintiff for the

4 nosebleed condition. Plaintiff alleges his nosebleeds commenced on March 10, 2020, for

5 “several times per week.” Dkt. No. 1 at 3 ¶¶ 1, 2; see also Maldonado Decl. ¶ 2, Dkt. No.

6 25 at 13 (Plaintiff states he had severe nosebleeds “[b]etween March and October 2020”).

7 According to Plaintiff, he first consulted Defendant for nosebleeds on March 30, 2020.

8 Dkt. No. 1 at 4 ¶ 3. At that visit, Plaintiff alleges Defendant made a “quick examination”

9 and then instructed Plaintiff to go back to his cell and “drink a lot of water to stop the

10 bleeding.” Maldonado Decl. ¶ 4, Dkt. No. 25 at 13. Plaintiff further declares that

11 Defendant “expressed to me, that if the bleeding [] continued, he is going to refer the case

12 to a specialist, because he is not a specialist in treating this kind of condition.” Id.; see

13 also Dkt. No. 1 at 4 (complaint alleges Defendant acknowledged he did not have

14 experience with epistaxis and indicated he would refer Plaintiff to a specialist, yet

15 Defendant delayed making the referral for a period of months). At his deposition, Plaintiff

16 was unable to produce documentation showing a consultation with Defendant on March

17 30, 2020. Maldonado Dep. at 23:3-25, Dkt. No. 18-3 at 6.

18 There is no dispute that Defendant provided medical care for Plaintiff’s nosebleeds

19 on April 23, 2020, which Defendant maintains was the date he first treated Plaintiff for a

20 nosebleed. Ashby Decl. ¶ 5, Dkt. No. 18-4 at 2. Dr. B. Feinberg attests that he reviewed

21 Plaintiff’s complaint and his medical records from November 1, 2019 to September 30,

22 2022. Feinberg Decl. ¶¶ 8, 10, Dkt. No. 18-6 at 3. According to Dr. Feinberg, “the first

23 episode of epistaxis documented in the medical record occurred on April 23, 2020,” when

24 Plaintiff “complained of dizziness and a bloody nose.” Id. According to his medical

25 records, custodial staff saw Plaintiff for a nosebleed for the first time on April 23, 2020.

26 Maldonado Dep. at Ex. C, Dkt. No. 18-3 at 34 (Progress Note), 36 (Plaintiff’s Request for

1 Note), at 7 (same Request for Services). Plaintiff was taken to the prison’s Treatment and

2 Triage Area (TTA), where the bleeding continued. Maldonado Dep. at Ex. C, Dkt. No. 18-

3 3 at 35; Ashby Decl. at Ex. A, Dkt. No. 18-5 at 5.

4 Defendant did not personally visit with Plaintiff on April 23, 2020. Rather, a nurse

5 advised Defendant over the phone that Plaintiff’s nosebleed continued even after 20

6 minutes of leaning forward with direct pressure and an ice pack on his nose. Ashby Decl.

7 ¶ 5, Dkt. No. 18-4 at 2. Defendant ordered transport of Plaintiff to an off-site facility, the

8 Natividad Medical Center (“NMC”). Id.; Maldonado Dep. at 45:11-19 and Ex. C, Dkt.

9 No. 18-3 at 11, 31, 35; Ashby Decl. ¶ 5, Dkt. No. 18-4 at 2; Feinberg Decl. ¶¶ 10-11, Dkt.

10 No. 18-6 at 3-4. Plaintiff denies that it was Defendant who made the referral to NMC, and

11 declares it was custody staff who referred him to NMC. Maldonado Decl. ¶ 5, Dkt. No. 25

12 at 13. Defendant attests that he gave the transport orders, which is supported by his

13 progress notes; Defendant also called the emergency department at NMC to accept the

14 transfer. Ashby Decl. ¶ 5, Dkt. No. 18-4; Feinberg Decl. ¶ 10, Dkt. No. 18-6 at 4.

15 The ambulance personnel who transported Plaintiff positioned a clamp to stop the

16 bleeding. Maldonado Dep. at 45:22-25, Dkt. No. 18-3 at 11, 12. NMC staff removed the

17 clamp. Id. at 45:25-46:1. The bleeding did not resume after several hours. Id. at 46:1-2.

18 NMC staff did a visual check of Plaintiff’s nose with a light but did not insert a camera.

19 Id. at 46:6-8. NMC staff also gave Plaintiff a spray. Id. at 47:1-7. According to Plaintiff,

20 the spray did not work and he was not allowed to bring the spray into the prison. Id. at

21 47:5-9, 48:1-6; see also Feinberg Decl. ¶ 11, Dkt. No. 18-6 at 4 (Dr. Feinberg declares that

22 NMC recommended Plaintiff apply Vaseline daily and direct pressure if bleeding recurred,

23 also CTF nursing staff provided discharge instructions and a handout on nosebleeds on

24 Plaintiff’s return). Plaintiff also states that NMC did not do the sort of advanced treatment

25 that was ultimately necessary to stop the bleeding. Maldonado Dep. at 48:7-14, Dkt. No.

26 18-3 at 14. According to Plaintiff, the NMC physician informed Plaintiff that he needed to

1 order is not indicated in the medical records, and neither Defendant nor Dr. Feinberg

2 mentions any such plan or recommendation. Ashby Decl. ¶ 6, Dkt. No. 18-4 at 2-3;

3 Feinberg Decl. ¶ 11, Dkt. No. 18-6 at 4.

4 The medical records indicate that Plaintiff was seen by a nurse the next day, April

5 24, 2020. Dkt. No. 18-3 at 38; Feinberg Decl. ¶ 12, Dkt. No. 18-6 at 4. Plaintiff informed

6 the nurse he had no further nosebleeds. Id. Plaintiff was instructed to notify medical of

7 any recurrence; he did not report any as of April 28, 2020, when Defendant entered a note

8 summarizing what had transpired with regards to Plaintiff’s most recent nosebleed. Id.;

9 Feinberg Decl. ¶ 13, Dkt. No. 18-6 at 4.

10 On May 4, 2020, Plaintiff had an office visit with Defendant. Maldonado Dep. at

11 Ex. D, Dkt. No. 18-3 at 37 (Progress Note indicates visit with Defendant); Maldonado

12 Dep., Dkt. No. 18-3 at 15, 19; Ashby Decl. ¶ 7, Dkt. No. 18-4 at 3; id. at Ex. B, Dkt. No.

13 18-5 at 9-10 (medical record of the May 4, 2020 office visit). According to Defendant,

14 Plaintiff stated he had experienced no further bleeding and was playing sports. Ashby

15 Decl. ¶ 7, Dkt. No. 18-4 at 3. Defendant “did not observe any vessels or any other location

16 where bleeding was possible.” Id. Defendant wrote in the Progress Note of the visit,

17 “Today [Plaintiff] states he has had no further bleeding. He has been active with sports

18 and exercises.” Ashby Decl. at Ex. B, Dkt. No. 18-5 at 9; Maldonado Dep., Ex. D, Dkt.

19 No. 18-3 at 37. Defendant marked the issue “Resolved,” and gave Plaintiff instructions

20 how to control bleeding should the problem return. Maldonado Dep., Ex. D, Dkt. No. 18-3

21 at 38; Ashby Decl. ¶ 7, Dkt. No. 18-4 at 3; id. at Ex. B, Dkt. No. 18-5 at 10; see also

22 Feinberg Decl. ¶ 14, Dkt. No. 18-6 at 4 (regarding record of May 4, 2020 office visit).

23 Plaintiff denies that he reported an end to the nosebleeds at the May 4, 2020 office

24 visit. Maldonado Dep. at 54:23-25, Dkt. No. 18-3 at 19. At deposition, Plaintiff

25 maintained that Defendant’s note in the medical records merely indicates Plaintiff was not

26 bleeding at the time of the office visit. Id.; id. at 55:1-18, Dkt. No. 18-3 at 19-20. Plaintiff

1 down that from his viewpoint I was okay, but in reality, I was not okay.” Id. at 55:15-17.

2 Plaintiff agrees Defendant showed him how to squeeze his nose in the event of bleeding.

3 Id. at 56:6-7. Plaintiff claims that during this appointment, he asked for a referral to a

4 specialist and that Defendant agreed to make a referral. Id. at 53:21-25. According to

5 Plaintiff, Defendant advised that in the meantime, Plaintiff should get some water when he

6 had nosebleeds. Id. at 54:1-6. According to Defendant, he denies assessing a need for

7 specialist care on May 4, 2020. Ashby Decl. ¶ 11, Dkt. No. 18-4 at 4.

8 According to Plaintiff, the bleeding continued after his visit to NMC; he had

9 nosebleeds 3 to 5 times daily, mostly at night. Maldonado Decl. ¶¶ 7, 8, Dkt. No. 25 at 13;

10 see also Dkt. No. 1 at 4 ¶ 4. Plaintiff states the nosebleeds blocked his nose, interrupted

11 his breathing and oxygen supply, and caused lack of sleep and frequent vomiting for

12 several months. Maldonado Decl. ¶ 7, Dkt. No. 25 at 13; see also Maldonado Dep. at

13 54:1-6, Dkt. No. 18-3 at 19. Plaintiff’s cellmate (Rivas) attests that generally from March

14 through August 2020, he observed Plaintiff experiencing nosebleeds, as often as 3 to 5

15 times per day and at night. Rivas Decl. ¶ 2, Dkt. No. 25 at 29. He also could hear Plaintiff

16 experiencing breathing problems while sleeping. Id.

17 According to Plaintiff, he made several requests to see Defendant “but for many

18 weeks I was not able to see him.” Maldonado Decl. ¶ 7, Dkt. No. 25 at 13. Plaintiff also

19 declares he did not call for medical attention for “several nosebleeds which occurred

20 mostly at night time” between May and September 2020 “because Dr. Ashby is not

21 working at night at the prison grounds.” Id. at ¶ 8, Dkt. No. 25 at 13-14. Plaintiff further

22 declares he had “several appointments” with Defendant during the May to September 2020

23 time frame, but these appointments were “unrelated to my nosebleed.” Id. at ¶ 9, Dkt. No.

24 25 at 14. According to Plaintiff, on more than one occasion he “verbally reported to Dr.

25 Ashby that my nose was bleeding at night time,” and that “Dr. Ashby’s response to my

26 complaint was I don’t see active blood right now, but i[f] this happen[s] again just drink a

1 On the other hand, Plaintiff’s medical records contain no complaints of nosebleeds

2 in the three-month interval between May 4, 2020 and August 4, 2020. His next

3 documented complaint of nosebleed or request for medical attention for a nosebleed

4 occurred on August 4, 2020. Feinberg Decl. ¶¶ 14, 15, Dkt. No. 18-6 at 4-5. On that date,

5 Plaintiff submitted a Health Services Request Form in which he asked for a visit with the

6 doctor because of “a lot of back pain,” and “also sometimes I have been bl[ee]ding for my

7 nose so I would like to be check[ed] A.S.A.P.” Dkt. No. 25 at 38 (Ex. F); Feinberg Decl.

8 Dkt. ¶ 15, No. 18-6 at 5; see also Maldonado Dep. at 59:6-11, Dkt. No. 18-3 at 21-22

9 (referring to an appointment on August 4, 2020, which, however, appears to be a mis-

10 stated date, and actually part of a continued discussion of Plaintiff’s May 4, 2020

11 appointment).

12 Plaintiff’s August 4, 2020 request was triaged on August 5, 2020. Dkt. No. 25 at 38

13 (Ex. F). On August 6, 2020, a nurse (Ansari) examined Plaintiff’s nostrils and determined

14 they appeared normal. Feinberg Decl. ¶ 16, Dkt. No. 18-6 at 5. The nurse instructed

15 Plaintiff to apply Vaseline. Id. The nurse did not contact Defendant. Id.

16 Plaintiff’s medical records show he received medical attention for his nosebleed

17 condition on August 15, 2020. It is unclear exactly how this came about. One entry in

18 Plaintiff’s medical records indicates that custody found Plaintiff with a bleeding nose and

19 were instructed to bring Plaintiff to the TTA, which Plaintiff refers to as the prison’s

20 “central hospital.” Maldonado Dep., Exs. C & D, Dkt. No. 18-3 at 34, 39; Maldonado

21 Dep. at 59:12-17, 60:22-24, Dkt. No. 18-3 at 22-23. On the other hand, there is a Health

22 Services Request Form dated August 15, 2020, in which Plaintiff complained of having

23 pain in his low back and “a lot of nosebleeding problems.” Dkt. No. 25 at 39. Plaintiff

24 stated he “would like to be seen A.S.A.P. thank you I bleed 3 times on one day and that is

25 not normal.” Id. His request was triaged the same day, August 15, 2020. Id.; see also id.

26 at 40 (Plaintiff’s inmate pass to TTA dated August 15, 2020).

1 Regardless how the August 15, 2020 visit to the TTA was arranged, Plaintiff’s nose

2 was not bleeding when he arrived at the TTA. Maldonado Dep. at Ex. C, Dkt. No. 18-3 at

3 34; Ashby Decl. ¶ 8, Dkt. No. 18-4 at 3. In his deposition, Plaintiff disputes whether his

4 nosebleed had stopped:

5

… you know how long a distance is between Lassen where I was staying and

6 the central hospital?

7 They made me walk that whole distance, and all the while, I was bleeding. I

had a towel which I was pressing on my nose to cover it. I was bleeding,

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covering my nose. So how it is that they could say I was not bleeding?

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10 Maldonado Dep. at 61:18-25, Dkt. No. 18-3 at 24. A nurse (Coleman) instructed Plaintiff

11 to pinch and pack his nose if it bled and to notify medical staff. Feinberg Decl. ¶ 17, Dkt.

12 No. 18-6 at 5; id. Ex. B at AGO 039, Dkt. No. 18-7 at 42. Plaintiff was scheduled for a

13 nurse follow-up wellness check on August 17, 2020. Feinberg Decl. ¶ 17, Dkt. No. 18-6 at

14 5.

15 At the follow-up on August 17, 2020, the nurse (Ansari) determined that Plaintiff’s

16 nose was not bleeding and his nostrils were normal. Feinberg Decl. ¶ 18, Dkt. No. 18-6 at

17 5; id., Ex. B at AGO 037 – AGO 044, Dkt. No. 18-7 at 40-47. The nurse informed

18 Defendant, who ordered blood tests and requested that Plaintiff be scheduled for an in-

19 person visit within 14 days. Feinberg Decl. ¶ 18, Dkt. No. 18-6 at 5.

20 The following day on August 18, 2020, Plaintiff returned to the TTA with another

21 active nosebleed. Ashby Decl. ¶ 8, Dkt. No. 18-4 at 3; Feinberg Decl. ¶ 19, Dkt. No. 18-6

22 at 5. Plaintiff was seen by a nurse who spoke with the on-call physician, Dr. Grotke. Id.;

23 Maldonado Dep. at 69:4-7, Dkt. No. 18-3 at 26. The nurse reported to Dr. Grotke that

24 Plaintiff had “active but mild bleeding from one nostril.” Feinberg Decl. ¶ 19, Dkt. No.

25 18-6 at 5. Dr. Grotke ordered additional blood tests, switched Plaintiff’s ibuprofen

26 medication to Tylenol, and confirmed that Plaintiff should see his PCP (i.e., Defendant)

1 On August 19, 2020, Defendant sent Plaintiff a letter with blood test results

2 showing that Plaintiff did not have anemia. Feinberg Decl. ¶ 20, Dkt. No. 18-6 at 6. On

3 the same day and again on August 26, 2020, Plaintiff submitted Health Services Request

4 Forms in which he sought medical attention for nosebleeds and claimed to have been

5 vomiting and experiencing shortness of breath. Dkt. No. 25 at 42, 43.

6 On September 1, 2020, Plaintiff had an appointment with Defendant to follow-up

7 the nosebleed events that had occurred beginning August 15, 2020. Maldonado Dep. at

8 69:8-16, Dkt. No. 18-3 at 26; Ashby Decl. ¶ 8, Dkt. No. 18-4 at 3. The parties dispute

9 whether Defendant examined Plaintiff. Plaintiff maintains a nurse examined him and

10 reported to the doctor. Maldonado Dep. at 69:8-25, Dkt. No. 18-3 at 26. Defendant

11 maintains he personally examined Plaintiff and found Plaintiff’s airways were dry. Ashby

12 Decl. ¶ 9, Dkt. No. 18-4 at 3; see also Feinberg Decl. ¶ 21, Dkt. No. 18-6 at 6 (Dr.

13 Feinberg confirms medical records show Plaintiff saw Defendant on September 1, 2020).

14 Defendant gave instructions to apply lubricants to keep the nose moist, to avoid certain

15 breathing techniques that increase blood pressure, and to avoid nasal sprays. Ashby Decl.

16 ¶ 9, Dkt. No. 18-4 at 3.

17 Plaintiff submitted two more Health Services Request Forms, dated September 5,

18 2020, and September 10, 2020, in which he requested to see the doctor because of issues

19 with his nose and his back. Dkt. No. 25 at 44, 45; id. at 45 (September 10, 2020 Request

20 complaining of “frequent nosebleeds more often”). Nurse Ansari responded to both

21 requests. Feinberg Decl. ¶¶ 23, 25; Dkt. No. 18-6 at 6. Plaintiff was not bleeding on either

22 occasion. Id. Nurse Ansari instructed Plaintiff how to stop nosebleeds, and Plaintiff

23 demonstrated he understood the techniques. Id. Nurse Ansari did not contact Defendant

24 but planned to bundle the bleeding concern into an upcoming scheduled appointment with

25 Defendant. Id.

26 On September 22, 2020, Plaintiff had an appointment with Defendant. Ashby Decl.

1 nosebleeds which he controlled by pinching his nose, and that he had stopped using the

2 lubricants because they were clogging his nose. Ashby Decl. ¶ 11, Dkt. No. 18-4 at 3-4.

3 Defendant “examined Plaintiff’s airways again and saw no scabs or protruding vessels.”

4 Id. Defendant gave Plaintiff a nasal spray. Id. Plaintiff requested a specialist referral. Id.

5 Defendant made the referral but did not mark it urgent as of September 22, 2020. Id. at ¶¶

6 11, 12; see also Feinberg Decl. ¶ 26, Dkt. No. 18-6 at 7 (Dr. Feinberg declares the request

7 was approved by Defendant’s supervisor on September 24, 2020). Defendant declares that

8 he had not previously believed a specialist referral was medically necessary. Ashby Decl.

9 ¶ 11, Dkt. No. 18-4 at 4. Plaintiff alleges, without evidentiary support, that Defendant did

10 not make the specialist referral until October 10, 2020. Dkt. No. 1 at 4-5 ¶ 6.

11 On September 29, 2020, Plaintiff submitted a final Health Services Request Form,

12 asking to see the doctor because “I am bleeding more! The spray is not working I need to

13 see the specialist for the nose problem.” Dkt. No. 25 at 46; Maldonado Dep. at 84:6-7,

14 Dkt. No. 18-3 at 27; Feinberg Decl. ¶ 27, Dkt. No. 18-6 at 7. Nurse Ansari responded to

15 the Request on October 1, 2020. Feinberg Decl. ¶ 28, Dkt. No. 18-6 at 7. At that time,

16 Plaintiff’s nose was not bleeding, and his nostrils appeared normal. Id. Nurse Ansari

17 informed Plaintiff he had already been referred to a specialist. Id. Nurse Ansari did not

18 contact Defendant about this visit. Id.

19 The evening of October 2, 2020, a nurse in the TTA contacted the on-call physician

20 – this time, Dr. Silva – to report that “Plaintiff presented with active nose bleeding that

21 resolved with the application of pressure and an ice pack.” Id. at 7 ¶ 29. Dr. Silva planned

22 for Plaintiff to follow-up with Defendant on Monday October 5, 2020, although apparently

23 the actual date of Plaintiff’s scheduled appointment was October 7, 2020. Id.; Maldonado

24 Dep. at 84:6-7, Dkt. No. 18-3 at 27 (scheduled appointment was for “10/7”).

25 At the scheduled appointment on October 7, 2020, Plaintiff reported to Defendant

26 that the bleeding continued to occur at night. Ashby Decl. ¶ 11, Dkt. No. 18-4 at 4;

1 leaning forward and pinching. Id. (Plaintiff’s medical records indicate he reported the

2 technique for stopping bleeding “has worked each time”). Defendant examined Plaintiff’s

3 nasal airways “but observed only scar tissue from a cautery performed at the clinic and no

4 visible vessels, scabs, or scratching.” Ashby Decl. ¶ 11, Dkt. No. 18-4 at 4. The reference

5 to the “cautery performed at the clinic” is not explained by the parties. It seems to imply

6 that at some earlier point in time Plaintiff had been treated with nasal cauterization, which

7 was also the treatment he ultimately received on October 15, 2020. See infra.

8 As a result of his October 7, 2020 evaluation, Defendant changed the referral he had

9 made on September 22, 2020 “to make it an urgent consultation to be scheduled in the next

10 two weeks because of [Plaintiff]’s concerns.” Ashby Decl. ¶ 11, Dkt. No. 18-4 at 4.

11 Defendant’s request for urgent specialist care was approved on October 8, 2020. Id.;

12 Feinberg Decl. ¶ 31, Dkt. No. 18-6 at 8.

13 On October 15, 2020,6 Plaintiff was seen by an off-site ear, nose, and throat

14 specialist (otolaryngologist), Dr. Murton, at Twin Cities Community Hospital. Maldonado

15 Dep. at 84-86, Dkt. No. 18-3 at 27-29. Dr. Murton did an endoscopic examination which

16 located an eschar (dry and dead tissue). Ashby Decl. ¶ 12, Dkt. No. 18-4 at 4. After the

17 eschar was removed, there was bleeding from a vessel that had apparently been

18 underneath. Id. Dr. Murton cauterized “an area in [Plaintiff’s] right nasal cavity that he

19 felt was likely the source of the bleeding episodes.” Feinberg Decl. ¶ 32, Dkt. No. 18-6 at

20 8; see also Dkt. No. 1 at 5 ¶ 7; Dkt. No. 18-3 at 40. Dr. Murton did not recommend

21 follow-up unless Plaintiff continued to experience nosebleeds. Feinberg Decl. ¶ 32, Dkt.

22 No. 18-6 at 8. Dr. Murton’s cauterization treatment was effective to end Plaintiff’s

23 nosebleeds. Dkt. No. 1 at 5 ¶ 7.

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6 Plaintiff’s complaint alleges this event occurred on October 16, 2020. Dkt. No. 1 at 5 ¶ 7.

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At deposition, Plaintiff agreed that the correct date is October 15, 2020. Maldonado Dep.

1 Defendant saw Plaintiff for a follow-up on October 20, 2020. Ashby Decl. ¶ 13,

2 Dkt. No. 18-4 at 4. Defendant observed that Plaintiff’s “right nostrils and nasal passages

3 were clean and dry, and he had no visible vessels, crusts, or scabs.” Id. Defendant

4 subsequently examined Plaintiff on March 30, 2021 and June 28, 2021. Feinberg Decl. ¶¶

5 34-35, Dkt. No. 18-6 at 8-9. Plaintiff reported no further bleeding episodes after the

6 treatment he received October 15, 2020, id. at¶ 34, and Defendant noted the epistaxis was

7 resolved as of June 28, 2021. Id. at ¶ 35.

8 II. Summary Judgment

9 Summary judgment is proper where the pleadings, discovery and affidavits show

10 that there is “no genuine dispute as to any material fact and the movant is entitled to

11 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment

12 “against a party who fails to make a showing sufficient to establish the existence of an

13 element essential to that party’s case, and on which that party will bear the burden of proof

14 at trial . . . since a complete failure of proof concerning an essential element of the

15 nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v.

16 Catrett, 477 U.S. 317, 322-23 (1986). A fact is material if it might affect the outcome of

17 the lawsuit under governing law, and a dispute about such a material fact is genuine “if the

18 evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

19 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

20 Generally, the moving party bears the initial burden of identifying those portions of

21 the record which demonstrate the absence of a genuine issue of material fact. See Celotex

22 Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on an issue

23 at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other

24 than for the moving party. But on an issue for which the opposing party will have the

25 burden of proof at trial, the moving party need only point out “that there is an absence of

26 evidence to support the nonmoving party’s case.” Id. at 325. If the evidence in opposition

1 be granted. See Liberty Lobby, 477 U.S. at 249-50.

2 The burden then shifts to the nonmoving party to “go beyond the pleadings and by

3 her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on

4 file,’ designate specific facts showing that there is a genuine issue for trial.’” Celotex

5 Corp., 477 U.S. at 324 (citations omitted). If the nonmoving party fails to make this

6 showing, “the moving party is entitled to judgment as a matter of law.” Id. at 323.

7 The Court’s function on a summary judgment motion is not to make credibility

8 determinations or weigh conflicting evidence with respect to a material fact. See T.W.

9 Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). The

10 evidence must be viewed in the light most favorable to the nonmoving party, and the

11 inferences to be drawn from the facts must be viewed in a light most favorable to the

12 nonmoving party. See id. at 631. It is not the task of the district court to scour the record

13 in search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir.

14 1996). The nonmoving party has the burden of identifying with reasonable particularity

15 the evidence that precludes summary judgment. Id. If the nonmoving party fails to do so,

16 the district court may properly grant summary judgment in favor of the moving party. See

17 id.; see, e.g., Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1028-29

18 (9th Cir. 2001). The court’s obligation to view evidence in the light most favorable to the

19 non-movant does not require it to ignore undisputed evidence produced by the movant.

20 L.F. v. Lake Washington School District, 947 F.3d 621, 625 (9th Cir. 2020).

21 Courts “may not simply accept what may be self-serving account by the police

22 officer,” especially in light of contrary evidence. Zion v. County of Orange, 874 F.3d

23 1072, 1076 (9th Cir. 2017) (quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994); see

24 id. (finding summary judgment inappropriate when officer’s testimony that a knife-

25 wielding suspect was trying to get up after being shot at 18 times, with 9 of those shots at

26 close range while the suspect was lying on the ground, was contradicted by the video

1 stories, one of which is blatantly contradicted by the record, so that no reasonable jury

2 could believe it, a court should not adopt that version of the facts for purposes of ruling on

3 a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380-83 (2007) (police

4 officer entitled to summary judgment based on qualified immunity in light of video

5 evidence capturing plaintiff’s reckless driving in attempting to evade capture which utterly

6 discredits plaintiff’s claim that there was little or no actual threat to innocent bystanders);

7 see Intel Corp. Inv. Policy Comm. v. Sulyma, 140 S. Ct. 768, 779 (2020) (in ERISA case

8 where the issue was whether plaintiff had actual knowledge of an alleged fiduciary breach,

9 the court indicated that plaintiff’s denial of knowledge could be discredited at summary

10 judgment stage if it was blatantly contradicted by electronic records showing plaintiff

11 viewed a website containing relevant disclosures of investment decisions); cf. Hughes v.

12 Rodriguez, 31 F.4th 1211, 1219 (9th Cir. 2022) (district court erred in disregarding all of

13 plaintiff’s testimony where bodycam footage of arrest blatantly contradicted some but not

14 all of the testimony; video did not depict whether plaintiff was punched after he was

15 handcuffed, and panel majority found audio of the arrest was also unclear as to the

16 sequence); Orn v. City of Tacoma, 949 F.3d 1167, 1171-73, 1178-79 (9th Cir. 2020)

17 (officer not entitled to summary judgment based on qualified immunity when nothing in

18 the record blatantly contradicted plaintiff’s account of events, including fact that police

19 officer was never in path of plaintiff’s vehicle and officer fired into plaintiff’s vehicle as it

20 moved away from officer, which is inconsistent with officer’s assertion that he was

21 standing in path of vehicle speeding toward him; based on these disputed facts, it was for

22 jury to decide whether or not to believe officer’s testimony regarding claimed fear for his

23 and others’ safety); id. at 1175 (tire track left at scene showing plaintiff “must have

24 accelerated before being shot” and unidentified palm print on passenger side of plaintiff’s

25 vehicle in area where officer allegedly “placed his hands to brace for impact” were

26 “nowhere near conclusive enough to meet Scott’s ‘blatantly contradicts’ standard, where

1 v. City of Anaheim, 765 F. 3d 1076, 1080 (9th Cir. 2014) (police officers not entitled to

2 summary judgment in a fatal shooting which involved “curious and material factual

3 discrepancies,” including the fact that the victim did not have a gun on him and was still

4 suspended by his seat belt when he was shot, which is inconsistent with the officers’

5 assertion that they saw the victim reach for a gun; based on these disputed facts, it was for

6 a jury to decide whether or not to believe the testimony of the four shooting officers and to

7 consider other circumstantial evidence that would tend to discredit their version of events).

8 The Ninth Circuit has held that pro se inmates are exempted from the rule which

9 provides that non-prisoner pro se litigants must comply strictly with the summary

10 judgment rules. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). “We have,

11 therefore, held consistently that courts should construe liberally motion papers and

12 pleadings filed by pro se inmates and should avoid applying summary judgment rules

13 strictly.” Id. While Ponder relieves pro se inmates from strict compliance with summary

14 judgment rules, it does not entirely release them from any obligation to identify or submit

15 at least some competent evidence in support of their claim. Soto v. Sweetman, 882 F.3d

16 865, 873 (9th Cir. 2018) (plaintiff not entitled to equitable tolling because he failed to

17 include any allegations in his complaint that he could not proceed with grievance process

18 until after an investigation was completed; he failed to submit any declaration, affidavit or

19 other competent evidence in his opposition to summary judgment; and first raised the issue

20 in response to the district court’s show cause order).

21 Conclusory statements, such as that an opponent is lying or that documents have

22 been fabricated – without presentation of any explanation of what portion of a statement or

23 document is false and without offering an explanation of one's view of the true state of

24 events – are insufficient to raise a triable issue. “When the nonmoving party relies only on

25 its own affidavits to oppose summary judgment, it cannot rely on conclusory allegations

26 unsupported by factual data to create an issue of material fact.” Hansen v. United States, 7

1 F.2d 487, 489, 492 & n.3 (9th Cir. 1990) (claimant “offered a detailed declaration painting

2 a picture entirely different from that described by the government” regarding how a drug

3 transaction had not involved the house; had his declaration only “set forth conclusory

4 allegations, this case would be different” because conclusory allegations do not raise a

5 triable issue).

6 A. Deliberate Indifference to Serious Medical Needs

7 Deliberate indifference to a prisoner’s serious medical needs violates the Eighth

8 Amendment’s proscription against cruel and unusual punishment. See Estelle v. Gamble,

9 429 U.S. 97, 104 (1976). A determination of “deliberate indifference” involves an

10 examination of two elements: the seriousness of the prisoner’s medical need and the nature

11 of the defendant’s response to that need. See McGuckin v. Smith, 974 F.2d 1050, 1059

12 (9th Cir. 1992), overruled in part on other grounds by WMX Technologies, Inc. v. Miller,

13 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).

14 A “serious” medical need exists if the failure to treat a prisoner’s condition could

15 result in further significant injury or the “unnecessary and wanton infliction of pain.”

16 McGuckin, 974 F.2d at 1059 (citing Estelle, 429 U.S. at 104). The existence of an injury

17 that a reasonable doctor or patient would find important and worthy of comment or

18 treatment; the presence of a medical condition that significantly affects an individual’s

19 daily activities; or the existence of chronic and substantial pain are examples of indications

20 that a prisoner has a serious need for medical treatment. Id. at 1059-60 (citing Wood v.

21 Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 1990)).

22 A prison official is deliberately indifferent if he knows that a prisoner faces a

23 substantial risk of serious harm and disregards that risk by failing to take reasonable steps

24 to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not

25 only “be aware of facts from which the inference could be drawn that a substantial risk of

26 serious harm exists,” but he “must also draw the inference.” Id. If a prison official should

1 Amendment, no matter how severe the risk. Gibson, 290 F.3d at 1188.

2 In order for deliberate indifference to be established, therefore, there must be a

3 purposeful act or failure to act on the part of the defendant and resulting harm. See

4 McGuckin, 974 F.2d at 1060; Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d

5 404, 407 (9th Cir. 1985). Additionally, the defendant's actions must be the cause of the

6 injury suffered by the plaintiff. Conn v. City of Reno, 591 F.3d 1081, 1098 (9th Cir. 2010),

7 reinstated as modified by 658 F.3d 897 (9th Cir. 2011); see id. at 1098-1102 (reversing

8 grant of summary judgment to transporting police officers where children of pre-trial

9 detainee who committed suicide presented evidence that transporting police officers (a)

10 were subjectively aware the decedent was at acute risk of harm (suicide); (b) failed to

11 respond properly to that risk by informing jail officials; and (c) such failure was both the

12 actual and proximate cause of the decedent's suicide once at the jail). A finding that the

13 defendant’s activities resulted in “substantial” harm to the prisoner is not necessary, but the

14 existence of serious harm tends to support an inmate’s deliberate indifference claims, Jett

15 v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing McGuckin, 974 at 1060).

16 The deliberate indifference standard does not require a showing that the prison

17 official acted with an improper motive, such as an intent to harm; it is enough that the

18 official acted or failed to act despite knowledge of a substantial risk of serious harm.

19 Edmo v. Corizon, 935 F.3d 757, 793 (9th Cir. 2019), reh’g en banc denied by 949 F.3d 489

20 (9th Cir. 2020) (prison doctor exhibited deliberate indifference when he knew of and

21 disregarded an excessive risk to plaintiff’s health by rejecting her request for GCS and then

22 never re-evaluating his decision despite evidence that plaintiff continued to suffer

23 clinically significant distress even though he provided other treatment to plaintiff).

24 “A difference of opinion between a prisoner-patient and prison medical authorities

25 regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d

26 1337, 1344 (9th Cir. 1981). In order to prevail on a claim involving choices between

1 doctors chose was medically unacceptable under the circumstances and that he or she

2 chose this course in conscious disregard of an excessive risk to plaintiff’s health. Toguchi,

3 391 F.3d at 1058.

4 A failure to provide treatment because administrative reasons prevented a prisoner

5 from being sent to a non-contracted facility would be a failure to provide treatment for

6 non-medical reasons, which is sufficient to generate a genuine issue of material fact as to

7 deliberate indifference on the part of the doctor failing to treat the patient. Jett, 439 F.3d

8 1097. In deciding whether there has been deliberate indifference to an inmate’s serious

9 medical needs, the court need not defer to the judgment of prison doctors or administrators.

10 Hunt v. Dental Dept., 865 F.2d 198, 200 (9th Cir. 1989).

11 B. Analysis

12 With regard to the first element for an Eighth Amendment claim, Defendant does

13 not dispute that Plaintiff’s nosebleeds “may arguably qualify as a serious medical need.”

14 Dkt. No. 18 at 12; see also Prescott v. United States, 2:20-cv-2740-SB (SK), 2022 WL

15 1051081 *3 (C.D. Cal. Mar. 7, 2022) (“Chronic nosebleeds and nasal infections requiring

16 surgery constitute serious medical needs at the complaint stage.” (citing district court cases

17 in Eastern District of California, Northern District of Alabama, and Eastern District of

18 Pennsylvania)); see also id. (medical records in discovery may refute an allegation that

19 nosebleeds are a serious medical condition). Accordingly, the Court will assume for the

20 purpose of this summary judgment motion that Plaintiff’s epistaxis constitutes a serious

21 medical need.

22 Rather, Defendant asserts that Plaintiff has failed to establish the second element,

23 i.e., that Defendant acted with deliberate indifference to Plaintiff’s medical needs. Dkt.

24 No. 18 at 11, 13. Defendant asserts there is no evidence that he provided medically

25 unacceptable treatment and that he chose a course of treatment in conscious disregard of an

26 excessive risk to Plaintiff’s health. Id. at 14. Defendant asserts that the undisputed

1 2020, for his nosebleeds. Id. at 12. Defendant asserts that he provided lubricants and nasal

2 spray, as well as referring him to outside facilities twice for further treatment. Id.

3 Furthermore, Defendant asserts that Dr. Feinberg opined that Plaintiff was offered timely,

4 adequate, and appropriate medical attention and care and that Defendant’s course of

5 treatment was medically acceptable. Id.at 14. Lastly, Defendant asserts that Plaintiff’s

6 disagreement with Defendant’s treatment amounts to nothing more than a difference of

7 opinion which is not sufficient to establish deliberate indifference. Id. at 12.

8 In opposition, Plaintiff asserts that he was “at the mercy of” Defendant who failed

9 to provide adequate medical treatment. Dkt. No. 25 at 2. Plaintiff asserts Defendant failed

10 to identify the source of Plaintiff’s bleeding and to make a referral to a specialist when

11 requested, which indicates deliberate indifference. Id. Plaintiff asserts that the evidence

12 shows Defendant ignored Plaintiff’s medical requests on several occasions and that the

13 treatment he provided, e.g., to drink a lot of water, was inadequate. Id. at 6-7. Lastly,

14 Plaintiff asserts that the evidence shows that the treatment he received from custody staff

15 was different from Defendant, which indicates that another reasonable doctor would have

16 treated his condition differently. Id. at 7.

17 In reply, Defendant asserts that Plaintiff’s opposition merely contests the treatment

18 he received and contends that Defendant should have made an early referral to a specialist.

19 Dkt. No. 28 at 3. Defendant asserts that the evidence shows he saw Plaintiff on six

20 occasions between April and October 2020, and provided treatment for his recurrent

21 epistaxis, including: examining and evaluating Plaintiff, sending him to NMC for

22 treatment, discussing methods to utilize if the bleeding reoccurred, providing lubricants

23 and nasal sprays, and requesting a referral to a specialist, which he later changed to an

24 urgent consultation due to Plaintiff’s concerns. Id. Defendant asserts that the undisputed

25 evidence fails to show that his course of treatment was medically acceptable under the

26 circumstances. Id. at 4.

1 Defendant has shown there exist no genuine dispute as to any material fact relating to

2 Plaintiff’s deliberate indifference claim against Defendant Ashby. The undisputed facts

3 show that Defendant treated Plaintiff on April 23, 2020, when he gave transport orders for

4 Plaintiff to be taken to NMC and then confirmed over the phone that NMC would accept

5 the transfer. See supra at 4. This action does not amount to deliberate indifference on the

6 part of Defendant. The medical records also show that Plaintiff made no further

7 documented complaints of a nosebleed until August 4, 2020, when he complained of back

8 pain and “sometimes” having a bloody nose which he wanted checked. Id. at 7.

9 Defendant was first informed about Plaintiff’s reoccurring nose bleeds after a nurse

10 examined Plaintiff on August 17, 2020. Id. at 8. Defendant promptly ordered tests and

11 requested Plaintiff be scheduled for an in-person visit within 14 days. Id. The test results

12 showed Plaintiff did not have anemia, which Defendant reported to Plaintiff on August 19,

13 2020. Id. Defendant next saw Plaintiff on September 1, 2020, when he examined Plaintiff

14 and found dry airways; he instructed Plaintiff to apply lubricants, avoid certain breathing

15 techniques, and to avoid nasal sprays. Id. at 9. Defendant then saw Plaintiff on September

16 22, 2020, and after an examination, prescribed treatment, this time nasal spray. Id. at 9-10.

17 Defendant also made a referral to a specialist, which was approved on September 24, 2020.

18 Id. at 10. Defendant saw Plaintiff next on October 7, 2020, when Plaintiff reported that he

19 had a nosebleed at night which he was able to control. Id. In response to Plaintiff’s

20 concerns at this appointment, Defendant changed his original specialist referral to an

21 urgent consultation, which resulted in Plaintiff seeing a specialist on October 15, 2020. Id.

22 at 11. The specialist cauterized an area of Plaintiff’s right nasal cavity which was effective

23 to end the nosebleeds. Id. Defendant had a follow-up with Plaintiff on October 20, 2020,

24 and observed no abnormalities. Id. Plaintiff thereafter reported no further nosebleeds

25 during subsequent exams in March and June 2021; Defendant noted the epistaxis was

26 resolved as of June 28, 2021. Id. at 11-12. Based on these actions by Defendant in

1 deliberate indifference in treating Plaintiff’s epistaxis.

2 In opposition, Plaintiff must show that there remain disputed facts that create

3 genuine issues for trial. Celotex Corp., 477 U.S. at 324. He has failed to do so. While

4 there are some disputes over the facts, none of them are material to the issue of whether

5 Defendant responded adequately to Plaintiff’s medical needs. In his deposition and

6 opposition, Plaintiff repeatedly responded to the detailed medical records submitted by

7 Defendant with conclusory denials and undocumented contradictions of the information

8 contained (or not contained) in the medical records. First of all, Plaintiff asserts that the

9 first time he consulted with Defendant for his nosebleed was in person on March 30, 2020,

10 when Defendant allegedly provided inadequate treatment. See supra at 3. However,

11 Defendant has no recollection of such a visit, the medical records contain no record of a

12 visit on March 30, 2020, and Plaintiff fails to produce any documentation to support this

13 allegation. Id. On the other hand, his medical records show that Plaintiff first presented

14 with a nosebleed on April 23, 2020, when custodial staff took him to the TTA, and a nurse

15 informed Defendant about Plaintiff’s condition for the first time. See supra at 3.

16 Accordingly, the Court should not simply adopt Plaintiff’s unsupported and self-serving

17 version of events where there is contrary evidence. See Scott, 550 U.S. at 380-83; Zion,

18 874 F.3d at 1076.

19 Furthermore, Plaintiff denies that it was Defendant who gave the order to transfer

20 him to NMC, but his mere allegation is once again blatantly contradicted by the medical

21 records which show that Defendant was the one who gave the order. Dkt. No. 18-4 at 2 ¶

22 5; Dkt. No. 18-6 at 4 ¶ 10. Furthermore, contrary to Plaintiff’s assertion that he continued

23 to experience nosebleeds between May 4, 2020 and August 4, 2020, his medical records

24 contain no report of any incidents of nosebleeds. Rather, the records show that Plaintiff

25 reported to a nurse that he had no further nosebleeds as of April 24, 2020, and then no

26 further reports as of April 28, 2020. Dkt. No. 18-3 at 38; Dkt. No. 18-6 at 4 ¶¶ 12-13.

1 reported his nosebleeds had stopped. Dkt. No. 18-6 at 3 ¶ 7. Plaintiff’s declaration that he

2 made “several request[s]” to see Defendant and/or that he did not call for medical attention

3 because his nosebleeds were happening at night and/or that he had several appointments

4 with Defendant during the period from May to September 2020, Dkt. No. 25 at 13-14 ¶¶ 7-

5 9, are in blatant contradiction to Plaintiff’s medical records. The medical records

6 document consistent, prompt response to Plaintiff’s actual requests for medical attention,

7 yet show no such requests from Plaintiff from May 4, 2020 until August 4, 2020; nor does

8 Plaintiff produce any copies of such requests to indicate that the records are incomplete.

9 Accordingly, Plaintiff’s declaration is insufficient to create a triable issue of fact regarding

10 Defendant’s alleged deliberate indifference from May 4, 2020 to August 4, 2020.

11 The declaration of Plaintiff’s cellmate (Rivas) likewise does not create a triable

12 issue of fact. See supra at 6. Rivas claims generally to have observed Plaintiff having

13 nosebleeds during March through August 2020, but does not attest to whether Plaintiff did

14 or did not request or received medical attention, or Defendant’s response to Plaintiff’s

15 medical need. Id. Moreover, even if it were true that Plaintiff did experience nosebleeds

16 during this time and sought medical attention, there is no other evidence that Defendant

17 was made aware of such requests, that he believed a substantial risk of serious harm

18 existed during this time, and that he failed to take reasonable steps to abate it. See Farmer,

19 511 U.S. at 837. Accordingly, Plaintiff has failed to demonstrate a triable issue regarding

20 Defendant’s treatment for Plaintiff’s condition between May 4, 2020 and August 4, 2020.

21 See Farmer, 511 U.S. at 837.

22 The undisputed evidence shows that when Plaintiff began seeking treatment again

23 for nosebleeds in August 2020, he received a response to each of his requests from various

24 medical providers, including Defendant, various nurses, and an on-call physician (Dr.

25 Grotke). Defendant ordered blood tests and Dr. Grotke ordered additional blood tests. See

26 supra at 7-8. Although Plaintiff denies that Defendant personally examined him at a

1 an examination and that he gave instructions to address the nosebleeds. Id. at 9. Lastly,

2 although Plaintiff contends that Defendant failed to make a referral to a specialist after his

3 September 22, 2020 visit, the medical records indicate that Defendant did make the referral

4 at that time and that it was approved by a supervisor on September 24, 2020. Id. at 10.

5 Plaintiff’s final argument that a referral should have been made at some earlier

6 point in time does not create a triable issue of fact. Rather, it is merely a difference of

7 opinion between Plaintiff and Defendant regarding the course of treatment, which does not

8 give rise to a § 1983 claim. See Franklin, 662 F.2d at 1344. Furthermore, Defendant has

9 submitted evidence showing that his chosen course of treatment was medically acceptable.

10 In response, Plaintiff asserts that the treatment he received from custody staff was different

11 from Defendant, asserting that this is an indication that another reasonable doctor would

12 have treated his condition differently. However, this argument is based on Plaintiff’s

13 mistaken belief that it was custody staff who ordered his transfer to NMC, and not

14 Defendant. See supra at 3-4. Accordingly, Plaintiff has failed to show that Defendant’s

15 chosen course of treatment was medically unacceptable, or that Defendant chose the

16 course in conscious disregard of an excessive risk to Plaintiff’s health. Toguchi, 391 F.3d

17 at 1058.

18 Based on the evidence presented, Defendant has demonstrated the absence of a

19 genuine issue of material fact with respect to Plaintiff’s Eighth Amendment claim against

20 him. See Celotex Corp., 477 U.S. at 323. In response, Plaintiff has failed to point to

21 specific facts showing that there is a genuine issue for trial, id. at 324, or identify with

22 reasonable particularity the evidence that precludes summary judgment, Keenan, 91 F.3d

23 at 1279. Because no reasonable fact finder could conclude that Defendant acted with

24 deliberate indifference with respect to Plaintiff’s serious medical needs, Defendant is

25 entitled to judgment on this claim. See Celotex Corp., 477 U.S. at 323.

26 B. Remaining Defenses

1 || liability for civil damages. Dkt. No. 18 at 14-16. Because the Court will grant summary

2 || judgment on Plaintiff's Eighth Amendment claims against Defendant on other grounds as

3 || discussed above, the Court does not reach Defendant’s qualified immunity argument. For

4 || the same reason, the Court need not reach Defendant’s alternative argument that Plaintiff is

5 || not entitled to punitive damages. Dkt. No. 18 at 16-17.

6

7 CONCLUSION

8 For the reasons stated above, Defendant Dr. Johnathan Ashby’s motion for

9g || summary judgment is GRANTED. Dkt. No. 18. Plaintiffs Eighth Amendment claim

10 || against Defendant Dr. Ashby is DISMISSED with prejudice.

11 This order terminates Docket No. 18.

a 12 IT IS SO ORDERED.

13 |) Dated: __May 31, 2023 fail hacncen _

14 BETH LABSON FREEMAN

United States District Judge

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Order Granting MSJ

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