Dorsey v. Paramo

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 JESSIE DORSEY, Case No.: 20cv0843-JAH-MDD

12 Plaintiff,

REPORT AND RECOMMENDATION

13 v. GRANTING DEFENDANT’S

MOTION FOR SUMMARY

14 P. SHAKIBA,

JUDGMENT

15 Defendant.

[ECF. No. 22]

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17 Plaintiff Jessie Dorsey is a state prisoner, proceeding pro se and

18 informa pauperis (“IFP”). Mr. Dorsey brings a civil rights claim against

19 Defendant Dr. Shakiba based on the doctor’s role in medical care that

20 Plaintiff received while incarcerated. Plaintiff claims that Dr. Shakiba was

21 deliberately indifferent to his medical needs, specifically related to a knee

22 injury Plaintiff sustained while playing basketball at the Ronald J. Donovan

23 State Prison (“RJD”). This Report and Recommendation is submitted to

24 United States Districted Judge John A. Houston pursuant to 28 U.S.C. §

25 636(b)(1) and Local Civil Rule 72.1(c) of the United States District Court for

26 the Southern District of California.

1 judgment, filed August 23, 2022. (ECF No. 22). For the reasons set forth

2 herein, the Court RECOMMENDS Defendant’s motion be GRANTED.

3 I. Procedural History

4 Plaintiff filed the operative amended complaint on January 20, 2021.

5 (ECF No. 10 [First Am. Compl. (“FAC”)]). The Court dismissed Plaintiff’s

6 original complaint on October 15, 2020 based on insufficient filing fees,

7 Plaintiff’s failure to specifically allege conduct by several named defendants,

8 and Plaintiff’s initial failure to articulate deliberate indifference to his

9 serious medical needs. (ECF No. 7 at 8). The Court permitted Plaintiff to

10 amend his complaint, which he did in 2021, claiming that eight defendants

11 who were employed at the prison violated his civil rights as a result of their

12 intentional medical indifference toward his knee injury. (Id.).

13 In conjunction with its pre-screening review of the 2021 amended

14 complaint pursuant to 28 U.S.C. § 1915(e)(2) and 1915A(b), the Court

15 dismissed Plaintiff’s claims against all defendants named in their official

16 capacities but considered Plaintiff’s substantive claim as alleged against all

17 defendants in their individual capacities pursuant to 42 U.S.C. § 1983. (ECF

18 No. 11 at 5). After its substantive pre-screening review, the Court dismissed

19 Plaintiff’s claims against all defendants, except the deliberate indifference

20 claim against the one remaining Defendant, Dr. Shakiba. (Id. at 6-7).

21 The Court permitted Plaintiff’s Eighth Amendment claim against Dr.

22 Shakiba to proceed because Plaintiff sufficiently alleged the doctor

23 intentionally delayed medical care and that Plaintiff developed complications

24 as a result of that decision. (Id.). Based on the low threshold set for a sua

25 sponte screening review, the Court found that Plaintiff’s FAC contained a

26 plausible claim that Dr. Shakiba was deliberately indifferent to Plaintiff’s

1 Defendant now contends that summary judgment is appropriate

2 because there is no genuine dispute of material fact to support Plaintiff’s

3 Eighth Amendment claim of medical deliberate indifference, and even if there

4 were, Defendant is entitled to qualified immunity. (ECF No. 22 at 6).

5 Defendant also argues any damages in this case are speculative, and Plaintiff

6 cannot establish causation as to this Defendant. (Id. at 17-18). The Court

7 issued a notice of rights to Plaintiff pursuant to Rand v. Rowland, 154 F.3d

8 952 (9th Cir. 1998) (en banc) and Klingele v. Eikenberry, 849 F.2d 409 (9th

9 Cir. 1988) and issued a briefing schedule that set Plaintiff’s response

10 deadline as September 23, 2022. (ECF No. 23). Plaintiff did not respond to

11 the motion for summary judgment.

12 II. Statement of Facts1

13 Plaintiff injured his knee playing basketball while incarcerated in

14 November 2011. (ECF No. 22-3 [Def.’s Statement of Undisputed Facts

15 (“DUF”) ¶ 4]). Plaintiff received treatment from many providers from 2012 to

16 2019, the time period alleged in his amended complaint. (FAC at 2; ECF No.

17 22-3 [DUF ¶ 7]). The first doctors who treated Plaintiff focused on

18 conservative measures, such as steroid injections, but those efforts provided

19 only temporary relief. (Id. at 3). Plaintiff contends those measures were

20 “seemingly based on witchcraft medincintry [sic] and financial conservation.”

21 (Id.).

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24 1 These facts are undisputed because Plaintiff has not filed an opposition or

put forth any evidence disputing them. Defendant’s Undisputed Facts are

25 based on (1) Plaintiff’s deposition testimony (ECF No. 22-1), (2) Dr. Shakiba’s

26 Declaration (ECF No. 22-2) and attached medical records. To the extent

possible, Plaintiff’s allegations of fact are also taken from the FAC, which are

1 Plaintiff underwent a surgical procedure on his knee in 2013, which did

2 not alleviate his pain. (Id.). Dr. Shakiba only treated Plaintiff once in 2015

3 before becoming his primary care physician on September 30, 2019. (ECF

4 No. 22-2 ¶ 5). That initial visit occurred on November 4, 2015 when Dr.

5 Shakiba was assigned to all scheduled appointments in the C Yard where

6 Plaintiff was located. (Id. ¶ 8). As part of that one-time visit, Dr. Shakiba

7 reviewed with Plaintiff the results of an MRI Plaintiff had on October 21,

8 2015. (Id.).

9 Defendant’s medical notes indicate that, during that appointment, Dr.

10 Shakiba explained that Plaintiff had a complex lateral tear and mild-to-

11 moderate osteoarthritis in the patellofemoral compartment. (Id.). Dr.

12 Shakiba made a Request for Services (“RSF”) the same day so that Plaintiff

13 could receive an orthopedic consultation to determine whether he was a

14 surgical candidate for a meniscus repair. (Id.). Dr. Shakiba did not see

15 Plaintiff again until September 2019. (ECF No. 22-2 [Shakiba Decl. ¶ 5]).

16 On January 5, 2016, Plaintiff had an orthopedic consultation with

17 former defendant Dr. Cham, who recommended follow-up care and a repeat

18 arthroscopy on Plaintiff’s right knee. (ECF No. 22-3 [DUF ¶¶ 9-10]).

19 Between March 25, 2016 and May 8, 2019, Plaintiff received treatment for

20 his knee condition from six other medical providers, all of whom were

21 dismissed as defendants in this case. (Id. ¶ 11). On May 8, 2018, Dr. Cham

22 recommended a total knee arthroplasty of the right knee, which Plaintiff

23 initially refused. (Id. ¶ 12).

24 That knee surgery took place a year later, on May 8, 2019, when former

25 defendant Dr. Bates performed the arthroscopy of the right knee and a

26 partial medial and lateral meniscectomy; Dr. Bates met with Plaintiff for a

1 follow-up care were prescribed, but a knee replacement surgery was not

2 recommended. (Id. ¶¶ 12-14). During his medical treatment from 2012 to

3 the present, Plaintiff received the following mobility devices: a cane, mobility

4 walker, knee braces for both knees, and lower bunk accommodation. (Id. ¶

5 15).

6 Once Dr. Shakiba became Plaintiff’s primary care physician in

7 September 2019, he saw Plaintiff for additional follow-up care three times

8 during the course of three months. (ECF No. 22-2 [Shakiba Decl. ¶ 7]). In

9 September, Dr. Shakiba discussed with Plaintiff the importance of weight

10 loss to reduce his pain; he also prescribed Celebrex and advised Plaintiff to

11 complete his six remaining physical therapy sessions. (ECF No. 22-2

12 [Shakiba Decl. ¶ 7]). Plaintiff saw Dr. Shakiba again on October 24, 2019,

13 and they discussed Plaintiff’s treatment plan. (Id. ¶ 8). Plaintiff stated that

14 another doctor also recommended that Plaintiff complete the authorized

15 physical therapy and then request another surgical consultation. (Id.). Dr.

16 Shakiba approved a new knee brace for Plaintiff on November 8, 2019. That

17 is the last appointment relevant to the claim alleged here, which concerns

18 Plaintiff’s medical care from 2012 to 2019. (Id. ¶ 9). Dr. Shakiba did not

19 cancel any appointments related to Plaintiff’s right knee problems. (ECF No.

20 22-2 [Shakiba Decl. ¶ 5]).

21 III. Legal Standards

22 A. Summary Judgment

23 Summary judgment is proper when the pleadings and materials

24 demonstrate “there is no genuine dispute as to any material fact and the

25 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);

26 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine dispute as to a

1 of the parties under the applicable substantive law. See Matsushita Elec.

2 Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (stating that

3 a material fact is one that is relevant to an element of a claim or defense and

4 whose existence might affect the outcome of the suit); Anderson v. Liberty

5 Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if the evidence is

6 such that a reasonable jury could return a verdict for the nonmoving party.”

7 Id. The court must review the record as a whole and draw all reasonable

8 inferences in favor of the non-moving party. Hernandez v. Spacelabs Med.

9 Inc., 343 F.3d 1107, 1112 (9th Cir.2003). Unsupported conjecture or

10 conclusory statements are insufficient to defeat summary judgment. Id.;

11 Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008).

12 The moving party has the initial burden of demonstrating that

13 summary judgment is proper. See Adickes v. S.H. Kress & Co., 398 U.S. 144,

14 152 (1970). The burden then shifts to the opposing party to provide

15 admissible evidence beyond the pleadings to show that summary judgment is

16 not appropriate. See Celotex, 477 U.S. at 322, 324. To avoid summary

17 judgment, the opposing party cannot rest solely on conclusory allegations of

18 fact or law. See Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir.1986). Instead,

19 the non-movant must designate which specific facts show that there is a

20 genuine issue for trial. See Anderson, 477 U.S. at 256.

21 A district court may not grant a motion for summary judgment solely

22 because the opposing party has failed to file an opposition. Cristobal v.

23 Siegel, 26 F.3d 1488, 1494-95 & n. 4 (9th Cir. 1994). A court may,

24 nonetheless, “grant an unopposed motion for summary judgment if the

25 movant’s papers are themselves sufficient to support the motion and do not

26 on their face reveal a genuine issue of material fact[.]” Williams v. Santa

1 v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993)).

2 B. Medical Indifference

3 The Eighth Amendment requires that inmates have “ready access to

4 adequate medical care,” Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir.

5 1982), and “deliberate indifference to serious medical needs of prisoners”

6 violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976).

7 An inmate establishes an Eighth Amendment violation by proving that

8 prison officials were “deliberate[ly] indifferen[t] to serious medical needs,”

9 meaning that they “intentionally den[ied] or delay[ed] access to medical care

10 or intentionally interfer[ed] with the treatment once prescribed.” Id. at 106.

11 “Deliberate indifference ‘may appear when prison officials deny, delay

12 or intentionally interfere with medical treatment, or it may be shown in the

13 way in which prison physicians provide medical care.’” Colwell v. Bannister,

14 763 F.3d 1060, 1066 (9th Cir. 2014) (quoting Hutchinson v. United States, 838

15 F.2d 390, 394 (9th Cir. 1988)). “A prison official acts with ‘deliberate

16 indifference . . . only if the [prison official] knows of and disregards an

17 excessive risk to inmate health and safety.’” Toguchi v. Chung, 391 F.3d

18 1051, 1057 (9th Cir. 2004) (citation omitted).

19 “Deliberate indifference is a high legal standard.” Id.; see also Edmo v.

20 Corizon, Inc., 949 F.3d 489, 494 (9th Cir. 2020). “Under this standard, the

21 prison official must not only ‘be aware of facts from which the inference could

22 be drawn that a substantial risk of serious harm exists,’ but that person

23 ‘must also draw the inference.’” Id. (quoting Farmer v. Brennan, 511 U.S.

24 825, 837 (1994)). In other words, the official must have “subjective

25 knowledge” of the medical risk. Harrington v. Scribner, 785 F.3d 1299, 1304

26 (9th Cir. 2015). It “requires more than ordinary lack of due care.” Farmer,

1 quotation mark omitted). “Inadvertent failures to provide adequate medical

2 care, mere negligence or medical malpractice, delays in providing care

3 (without more), and differences of opinion over what medical treatment or

4 course of care is proper, are all insufficient to constitute an Eighth

5 Amendment violation.” Norvell v. Roberts, No. 20-cv-0512 JLS (NLS), 2020

6 WL 4464454, at *4 (S.D. Cal. Aug. 4, 2020) (citing Estelle, 429 U.S. at 105-

7 07).

8 A claim of deliberate indifference has two distinct elements: (1) a

9 “serious medical need” and (2) the “deliberate indifference” of prison officials.

10 Id. “A serious medical need requires an ailment of a greater magnitude or

11 with a cause separate from confinement.” Doty v. Cty. of Lassen, 37 F.3d 540,

12 546 (9th Cir. 1994) internal quotation marks omitted). A serious medical

13 need exists “if the failure to treat a prisoner’s condition could result in further

14 significant injury or the unnecessary and wanton infliction of pain.” Id.

15 (internal quotation marks omitted). Indications that a plaintiff has a serious

16 medical need include “[t]he existence of an injury that a reasonable doctor or

17 patient would find important and worthy of comment or treatment; the

18 presence of a medical condition that significantly affects an individual’s daily

19 activities; or the existence of chronic and substantial pain.” McGuckin v.

20 Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled in part on other

21 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en

22 banc).

23 “A plaintiff cannot prevail on a Section 1983 claim where the dispute is

24 over the quality of medical treatment. Sanchez v. Veld, 891 F.2d 240, 242

25 (9th Cir. 1989); see also Edmo, 949 F.3d at 495. Where a plaintiff’s claims

26 arise from a course of treatment he actually received, the plaintiff must prove

1 circumstances and that the physician consciously chose that course in

2 disregard of an excessive risk to the plaintiff’s health. Toguchi, 391 F.3d at

3 1058. In order to prevail on a claim involving choices between alternative

4 courses of treatment, a plaintiff must show that the course of treatment the

5 doctor chose was medically unacceptable under the circumstances and that

6 he chose this course in conscious disregard of an excessive risk to the

7 plaintiff’s health. Id.

8 IV. Discussion

9 Plaintiff alleges in the amended complaint that Dr. Shakiba “cancelled

10 follow-up appointments, and refused to see the Plaintiff’ to discuss new

11 develop[]ments with his right knee,” and “ignored the complaints and pain

12 reduction request submitted by the Plaintiff’ as per RJD policy.” (ECF No. 10

13 at 4-5). The district judge permitted Plaintiff’s claim to proceed against this

14 Defendant based on those tenable allegations because intentionally delaying

15 medical care that leads to complications states a valid claim. (ECF No. 11 at

16 6). The Court cautioned Plaintiff that a closer review of his allegations could

17 come in the form of a subsequent dispositive motion. (Id.).

18 To support his allegations against Dr. Shakiba, Plaintiff attached

19 several medical records to his amended complaint, but none of those records

20 are signed by, nor concern, Dr. Shakiba’s role in Plaintiff’s treatment. (ECF

21 No. 10 at 91-102). Nothing Plaintiff attached to his complaint, and none of

22 the medical evidence in the record suggests that Dr. Shakiba knew of and

23 disregarded an excessive risk to Plaintiff’s health or safety, or denied,

24 delayed, or intentionally interfered with Plaintiff’s medical treatment in any

25 way.

26 Instead, Dr. Shakiba was attentive and responsive to Plaintiff, and

1 becoming his primary care provider. In 2015, Defendant recommended

2 follow-up care to Plaintiff, and Plaintiff received that follow-up treatment in

3 a timely manner. After becoming Plaintiff’s primary care doctor four years

4 later, Dr. Shakiba saw Plaintiff three times in three months, and each time

5 he actively engaged in Plaintiff’s care. He reviewed Plaintiff’s physical

6 therapy notes, discussed his treatment plan, prescribed pain management

7 medication and an assistive device, and made two referrals for surgical

8 consultation. (ECF No. 22-2 [Shakiba Decl. ¶¶ 17-19]).

9 All evidence before the Court reveals that Defendant was responsive to

10 Plaintiff’s injury and pain, not medically indifferent. Plaintiff’s “conclusory

11 assertion to the contrary is insufficient to raise an issue of material fact.” See

12 Toguchi, 391 F.3d at 1058 (finding that unsuccessful efforts to resuscitate

13 inmate were not deliberately indifferent). In Plaintiff’s deposition, he stated

14 that he should have had a total knee replacement because he continued to

15 struggle with problems and issues despite the care he received. (ECF No. 22-

16 3 [DUF ¶ 20]). Dr. Shakiba, however, was not the doctor empowered to make

17 that decision. (ECF No. 22-2 [Shakiba Decl. ¶ 11]). Defendant lacked the

18 authority to authorize or conduct a total knee replacement surgery. (Id.).

19 Dr. Shakiba could, and did, refer Plaintiff for a surgical consultation for

20 the requested procedure. But the decision for Plaintiff to undergo a right

21 knee arthroscopy instead of a total knee replacement was made by Dr. Bates

22 on May 8, 2019, four months before Defendant became Plaintiff’s primary

23 care physician in September 2019. (Id. ¶ 6). Contrary to Plaintiff’s

24 allegations, the medical records show there was never a denial of Plaintiff’s

25 Request for Services concerning his knee injury when Defendant served as

26 Plaintiff’s primary care physician. (ECF No. 22-2 [Shakiba Decl. ¶ 10]). No

1 ||any appointments related to Plaintiffs knee, and the undisputed evidence is

2 ||that he did not. (ECF No. 22-2 [Shakiba Decl. 4 5]).

3 “Liability under section 1983 arises only upon a showing of personal

4 ||participation by the defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

5 || 1989) (citation omitted). There is simply no evidence the Defendant

6 || personally participated in any of the alleged unlawful behavior. Because

7 ||there is no evidence to support a medical indifference claim, the Court does

g ||{not reach Defendant’s arguments concerning qualified immunity or

9 ||speculative damages.

10 V. Conclusion

11 For the foregoing reasons, IT IS HEREBY RECOMMENDED that the

12 || District Court issue an Order: (1) Approving and Adopting this Report and

13 || Recommendation; and (2) GRANTING Defendant’s Motion for Summary

14 Judgment.

15 IT IS HEREBY ORDERED that any written objections to this Report

16 ||must be filed with the Court and served on all parties no later than February

17 ||6, 2023. The document should be captioned “Objections to Report and

18 || Recommendation.”

19 IT IS FURTHER ORDERED that any reply to the objection shall be

90 filed with the Court and served on all parties no later than February 21,

91 2023. The parties are advised that the failure to file objections within the

29 ||specified time may waive the right to raise those objections on appeal of the

93 ||Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998).

24 IT IS SO ORDERED.

Dated: January 23, 20238 Vitel » [>

Hon. Mitchell D. Dembin

27 United States Magistrate Judge