The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 DAMON WILLIAMS, Case No.: 3:17-cv-00517-CAB-KSC
12 Plaintiff,
ORDER REGARDING MOTION FOR
13 v. SUMMARY JUDGMENT [Doc. No. 45]
14 J. CHAU, et al.,
15 Defendants.
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17 On October 14, 2019 Defendant J. Chau, M.D., filed a motion for summary
18 judgment. [Doc. No. 45.] On January 10, 2020, Plaintiff filed an opposition. [Doc. No.
19 54.] On February 21, 2020, Defendant filed a reply to the opposition. [Doc. No. 58.]
20 For the reasons set forth below, the motion for summary judgment is GRANTED.
21 INTRODUCTION
22 Plaintiff alleges that Dr. Chau violated the Eighth Amendment through deliberate
23 indifference to Plaintiff’s serious medical need. Specifically, Plaintiff alleges that Dr.
24 Chau refused to issue him a lower bunk chrono in prison despite Plaintiff’s medical need.
25 Plaintiff further alleges that he fell off his bunk and fractured his big toe on August 3,
26 2015, because of this failure.
27 Defendant argues the undisputed evidence shows there was no deliberate
28 indifference.
1 EVIDENCE PRESENTED BY DEFENDANT
2 Dr. Chau is a medical doctor employed by the California Department of
3 Corrections and Rehabilitation (CDCR) at the Richard J. Donovan Correctional Facility
4 (Donovan prison). (Chau Decl. ¶ 2.) While serving as Plaintiff’s primary care doctor, Dr.
5 Chau provided near-constant medical treatment and exams to Plaintiff from December
6 2014 to December 2015. (Compl. Ex. H, N, P & Q.) Dr. Chau personally examined and
7 treated Plaintiff twelve times during this period. (Id.) Dr. Chau also prescribed
8 medications; issued medical devices; ordered blood tests, x-rays, and EKGs; referred
9 Plaintiff to Alvarado Hospital; and assigned nurses for follow-up visits. (Id.) Several
10 other doctors and nurses also examined and treated Plaintiff at Donovan prison during
11 this period. (Compl. Ex. T & U.)
12 Plaintiff alleges that he fell of his upper bunk and fractured his toe on August 3,
13 2015. But Plaintiff did not immediately report the incident or seek medical treatment for
14 the injury. (Compl. Ex. S.) Plaintiff delayed seeking medical care until September 15,
15 2015, because he thought he had only sprained the toe. (Ibid.) Nevertheless, he received
16 constant and appropriate medical care once he reported the injury. (Compl. Ex. H, N, P,
17 Q, T, U.)
18 Dr. Chau was not aware of any incidents where Plaintiff fell from his bunk prior to
19 August 3, 2015. (Chau Decl. ¶ 5.) Dr. Chau was not aware of Plaintiff sustaining any
20 injuries or medical treatment for issues related to falls prior to August 3, 2015. (Id.) Dr.
21 Chau never witnessed any episodes of dizziness or fainting during his treatment of
22 Plaintiff. (Chau Decl. ¶ 6.) Plaintiff did not mention dizziness or fainting in most of his
23 medical requests for treatment or during his medical exams prior to August 3, 2015.
24 (Chau Decl. ¶ 7.) For example, Plaintiff submitted several CDC 7362 Healthcare Services
25 Request Forms during the period prior to August 3, 2015. (Id.) But Plaintiff did not
26 mention dizziness or fainting in his medical requests. (Id.)
27 A brief mention of dizziness did occur during an examination Dr. Chau conducted
28 of Plaintiff on February 23, 2015. (Chau Decl. ¶ 8.) Although Plaintiff did not mention
1 dizziness when he requested medical treatment for that day, he did mention it in response
2 to a question about his general symptoms. (Id.) Plaintiff answered that he had
3 experienced dizziness when scrubbing his cell floor. Dr. Chau followed up with Plaintiff
4 on April 9, 2015. (Chau Decl. ¶ 9.) Plaintiff had occasional chest pain, but no further
5 dizziness. (Id.) Based on Dr. Chau’s examination and evaluation at that visit, Plaintiff
6 was diagnosed with atypical localized chest pain, which examination showed was
7 consistent with musculoskeletal origin. (Id.) Therefore, a cardiologist referral was not
8 necessary. (Id.) Later, when Plaintiff had further complaints, Dr. Chau referred Plaintiff
9 to a cardiologist in December 2015 for an echocardiogram workup. (Id.)
10 Plaintiff issued several requests for medical treatment in the period leading up to
11 the fall. But these requests did not mention dizziness, falling, or other related issues.
12 (Compl. Ex. S.) Plaintiff complained about such things as knee pain, dry skin, allergy
13 medication, x-rays results, a missed appointment and heart pain. (Id.) Medical staff
14 evaluated Plaintiff for each of these requests. (Compl. Ex. H, N, P, Q, S, T, U.)
15 Dr. Chau’s professional medical opinion – based on his experience and training, as
16 well as medical examinations, evaluations, diagnostic tests, and laboratory results for
17 Plaintiff – did not show that a lower bunk/lower tier chrono was medically necessary at
18 that time. (Chau Decl. ¶ 10.) Although Plaintiff suffered from hypertension and shoulder
19 pain, Plaintiff did not have a medical condition that presented a substantial risk of falling,
20 Plaintiff had no history of falling, and Plaintiff had only mentioned a minor episode of
21 dizziness while doing a chore. (Id.) Several other doctors and medical professionals also
22 provided medical evaluations and treatment to Plaintiff at Donovan prison prior to
23 August 3, 2015. (Chau Decl. ¶ 11.) They also formed professional medical opinions that
24 a lower bunk/lower tier chrono was not medically necessary for Plaintiff at that time. (Id.)
25 / / / / /
26 / / / / /
27 / / / / /
28 / / / / /
1 DISCUSSION
2 A. Legal Standard.
3 Summary judgment may be granted only when, drawing all inferences and
4 resolving all doubts in favor of the nonmoving party, there is no genuine dispute as to any
5 material fact. Fed. R. Civ. P. 56(a); Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014);
6 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under
7 governing substantive law, it could affect the outcome of the case. Anderson v. Liberty
8 Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine if “the
9 evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
10 Id. Bald assertions that genuine issues of material fact exist are insufficient. Galen v.
11 Cnty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007).
12 The moving party bears the burden of identifying those portions of the pleadings,
13 discovery, and affidavits that demonstrate the absence of a genuine issue of material fact.
14 Celotex, 477 U.S. at 323. Once the moving party meets its initial burden, the nonmoving
15 party must go beyond the pleadings, and, by its own affidavits or discovery, set forth
16 specific facts showing that a genuine issue of fact exists for trial. Fed. R. Civ. P. 56(c);
17 Barthelemy v. Air Lines Pilots Ass'n, 897 F.2d 999, 1004 (9th Cir. 1990) (citing Steckl v.
18 Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983)). All justifiable inferences, however,
19 must be drawn in the light most favorable to the nonmoving party. Tolan, 134 S. Ct. at
20 1863 (citing Liberty Lobby, 477 U.S. at 255).
21 At summary judgment, the Court may find that officials are shielded from liability
22 under the doctrine of qualified immunity so long as their conduct does not violate clearly
23 established statutory or constitutional rights of which a reasonable person would have
24 known. Mullenix v. Luna, 136 S. Ct. 305, 208 (2015) (per curiam).
25 B. Analysis.
26 The Eighth Amendment protects prisoners from “inhumane conditions of
27 confinement.” Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006).
28 Consequently, the government must “provide medical care for those whom it is punishing
1 by incarceration,” and cannot act with deliberate indifference to a prisoner’s serious
2 medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976). A prison official acts with
3 deliberate indifference if the official “knows of and disregards an excessive risk to inmate
4 health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference
5 is also known as the “unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 104
6 (internal quotations omitted). To prevail, a plaintiff must make (1) an objective showing
7 that he had a serious medical need; and (2) a subjective showing that the specific
8 defendants were deliberately indifferent to that need. Colwell v. Bannister, 763 F.3d
9 1060, 1066 (9th Cir. 2014).
10 Here, the records show that Defendant was attentive to Plaintiff’s medical needs.
11 During the relative time period (December 2014 to December 2015), Plaintiff had
12 medical exams and visits with Dr. Chau on twelve different occasions. (Compl. Ex. H,
13 N, P & Q.) Dr. Chau also prescribed medications; issued medical devices; ordered blood
14 tests, x-rays, and EKG’s; referred Plaintiff to Alvarado Hospital; and assigned nurses for
15 follow-up visits. Id. In addition, several other doctors and nurses also participated in
16 Plaintiff’s treatment on separate occasions. Id.
17 Dr. Chau was not aware of any incidents where Plaintiff fell from his bunk prior to
18 August 3, 2015. (Chau Decl. ¶5.) Dr. Chau never witnessed any episodes of dizziness or
19 fainting during his treatment of Plaintiff. (Chau Decl. ¶6.) In addition, Plaintiff did not
20 mention dizziness or fainting in most of his medical requests for treatment or during his
21 medical exams prior to August 3, 2015. Id.
22 It was Dr. Chau’s professional medical opinion that, prior to August 3, 2015, a
23 lower bunk/lower tier chrono was not medically necessary for Plaintiff. (Chau Decl.
24 ¶10.) Several other doctors and medical professionals also formed professional medical
25 opinions that a lower bunk/lower tier chrono was not medically necessary for Plaintiff at
26 that time. (Chau Decl. ¶11.)
27 In his opposition, Plaintiff essentially disagrees with the decision not to issue a
28 lower bunk chrono. However, a mere difference of opinion between a patient-inmate and
1 a physician about the appropriate treatment is insufficient to give rise to an Eighth
2 Amendment claim. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004), citing
3 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). Even a showing of medical
4 malpractice or gross negligence is insufficient to establish a constitutional violation.
5 Toguchi, 391 F.3d at 1060. Rather, the plaintiff must show that the chosen course of
6 treatment “ ‘was medically unacceptable under the circumstances’ and was chosen ‘in
7 conscious disregard of an excessive risk to [the prisoner’s] health.’ ” Id., quoting
8 Jackson, 90 F.3d at 332.
9 Here, Plaintiff fails to present any evidence of a medical necessity for the lower
10 bunk chrono prior to August 2015, much less any evidence that Dr. Chau was
11 deliberately indifferent by consciously disregarding a risk of harm. Instead, Plaintiff, an
12 unqualified lay witness, bases his opposition on his personal opinions and interpretations
13 of the medical records and evidence. However, Plaintiff’s opinions are improper and
14 insufficient to defeat summary judgment.
15 Moreover, some of Plaintiff’s opinions are contradicted by the very evidence he
16 cites. For example, Plaintiff argues that his inmate appeal was granted by Donovan
17 prison in 2016 “because they found Dr. Chau’s course of treatment was medically
18 unacceptable.” [Doc. No. 54 at 19.] But the referenced exhibit does not support that
19 claim. (Compl. Ex. A at 2-10.) The appeal was partially granted in that Plaintiff was
20 referred to a cardiologist. Id. But the appeal was denied in all other aspects, including
21 Plaintiff’s claims against Dr. Chau. Id.
22 Plaintiff also contends that Dr. Chau falsified the EKG reports. [Doc. No. 54 at 2,
23 15, 21.] He alleges that Dr. Chau fraudulently noted that the December 2014 EKG report
24 was "normal" even though it showed abnormality. [Id. at 21, 27-29.] But Plaintiff’s
25 contention appears to be based on his unqualified lay interpretations of the EKG reports
26 and Dr. Chau's records. In fact, on February 4, 2015, Dr. Chau specifically noted
27 abnormalities in the December 2014 EKG "compatible with hypertensive changes,
28 otherwise nothing acute." (Compl. Ex. J at 4-5.) Still, Dr. Chau ordered a new EKG. On
1 February 23, 2015, Dr. Chau reviewed the EKG and noted his impression as "normal
2 sinus rhythm, within normal limits, unchanged from last EKG." (Compl. Ex. J. at 6-7.)
3 Dr. Chau specifically noted previous abnormalities re hypertension from the old EKG,
4 and then interpreted the sinus rhythm from the new EKG as within normal limits - which
5 is unchanged. (Id.) Thus, Plaintiff's "evidence" of fraud or misrepresentation is based
6 entirely on his unqualified and unsupported characterizations of the EKG and the medical
7 notes regarding them.
8 Plaintiff's opposition also appears to be based on his conflation of his chest pain
9 complaints and with dizziness and fainting. Dr. Chau presented evidence that Plaintiff
10 only made mentions of dizziness and fainting in February 2015, but did not mention it in
11 most medical records and visits. Plaintiff attempts to contradict this evidence by arguing
12 that Dr. Chau ignored numerous complaints of dizziness and fainting from Plaintiff. But
13 it appears that Plaintiff believes his complaints about chest pain should be interpreted and
14 included as complaints of dizziness. For instance, Plaintiff claims that Dr. Chau knew
15 about dizziness issues because Plaintiff had a "bigger and harder heart" and hypertension.
16 [Doc. No. 54 at 24-25.] And Plaintiff notes medical records in which he complained
17 about chest pain. Thus, Plaintiff seems to imply that chest pain and dizziness are
18 synonymous, and that medical staff should know this even though Plaintiff does not
19 complain about dizziness. Again, this is an unqualified and unsupported opinion from a
20 lay witness. Regardless, Dr. Chau specifically noted Plaintiffs hypertension history,
21 medications, and chest pain complaints throughout his treatment. Dr. Chau conducted
22 exams, ordered X-rays, ordered EKGs, and determined that the chest pain was
23 musculoskeletal in nature. (Compl. Ex. J at 4-9.)
24 Additionally, the evidence shows that Dr. Chau was not alone in his opinions.
25 There is no evidence that any medical provider recommended a lower bunk chrono for
26 Plaintiff before August 3, 2015. On the contrary, a doctor and a nurse practitioner at
27 another prison found that Plaintiff was medically low risk and cleared for full duty in
28 2014. (Compl. Ex. R at 96-97.) Finally, the evidence shows that Dr. Chau considered
1 || Plaintiff's complaints and issues - specifically chest pain, hypertension, and dizziness -
2 ||and examined, diagnosed, and treated Plaintiff accordingly. Dr. Chau ordered chest x-
3 (which were normal), reviewed Plaintiff's medications, conducted physical exams,
4 ||ordered and reviewed EKGs, and had follow-up visits with Plaintiff. (Compl. Ex. J. at 1-
5 |} 10.) And although Plaintiff mentioned dizziness in February 2015, by April 2015 he had
6 ||no complaints of dizziness and was even able to exercise as usual. (Compl. Ex. J at 8-9.)
7 || And Plaintiff's own written requests for medical treatment after February 2015 do not
8 mention dizziness. (Compl. Ex.S at 2-6.)
9 In short, there is no admissible evidence of deliberate indifference. Accordingly,
10 || Defendant is entitled to summary judgment.
11 CONCLUSION
12 For the reasons set forth above, Defendant’s motion for summary judgment is
13 || GRANTED. The Clerk of Court shall enter judgment for Defendant and CLOSE the
14 || case.
15 |}Dated: March 16, 2020 € ZL
16
Hon. Cathy Ann Bencivengo
17 United States District Judge
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