The Estate of Michael Wilson v. County of San Diego

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 THE ESTATE OF MICHAEL WILSON, Case No.: 3:20-cv-00457-RBM-DEB

by and through its successor-in-interest,

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PHYLLIS JACKSON, and PHYLLIS ORDER:

13 JACKSON,

(1) GRANTING PLAINTIFF’S

14 Plaintiffs,

MOTION TO CERTIFY AS

15 v. FRIVOLOUS DEFENDANTS’

INTERLOCUTORY APPEAL FROM

16 COUNTY OF SAN DIEGO, et al.,

THE COURT’S DENIAL OF

17 Defendants. SUMMARY JUDGMENT

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(2) DENYING DEFENDANTS’

19 JOINT EX PARTE MOTION FOR

STAY PENDING APPEAL

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21 [Docs. 148, 154]

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23 This case concerns the death of 32-year-old Michael Wilson, who was serving a two-

24 week flash incarceration at the San Diego Central Jail for a probation violation. Wilson

25 had a history of hypertrophic cardiomyopathy (“HCM”) and congestive heart failure

26 (“CHF”) and had a heart pacer. Prior to his incarceration, he took four cardiac medications

27 to manage his heart condition. Before his booking, the remanding court warned the jail

28 medical staff in writing that Wilson had serious medical issues.

1 During the first six days of his incarceration, Wilson did not receive any of his

2 cardiac medications. He missed 36 doses of those medications. Over the next three days,

3 he received only six doses of some of his medications, but his prescriptions required 18

4 doses. On the morning of the tenth day, Wilson passed away due to sudden cardiac death

5 arising from acute CHF and HCM.

6 Pending before the Court is Defendants’ joint ex parte motion for stay pending

7 appeal (“Stay Motion”) (Doc. 148). Plaintiff filed an opposition to Defendants’ Stay

8 Motion. (Doc. 152.) In Defendants’ Stay Motion, they explain that Defendants Macy

9 Germono, Marylene Ibanez, and Anil Kumar (collectively, the “Nurse Defendants”) filed

10 a notice of interlocutory appeal to the Ninth Circuit concerning this Court’s qualified

11 immunity ruling on summary judgment (Doc. 147) and ask this Court to stay this entire

12 action until the appeal is resolved. (Doc. 148 at 2.)1

13 Additionally, pending before the Court is Plaintiff’s motion to certify as frivolous

14 Defendants’ interlocutory appeal from the Court’s denial of summary judgment (“Frivolity

15 Motion”) (Doc. 154). Defendants filed an opposition to Plaintiff’s Frivolity Motion

16 (“Opposition”). (Doc. 161.) Plaintiff filed a reply brief in support of its Frivolity Motion.

17 (Doc. 162.) In Plaintiff’s Frivolity Motion, Plaintiff asks this Court to certify the Nurse

18 Defendants’ interlocutory appeal as frivolous. (Doc. 154-1 at 5.) In Plaintiff’s Frivolity

19 Motion, it argues the Nurse Defendants’ interlocutory appeal is frivolous because (1)

20 circumstantial evidence raises triable issues of fact regarding the Nurse Defendants’

21 knowledge of a substantial risk of harm to Wilson, (2) Defendants’ interlocutory appeal

22 does not raise purely legal issues, and (3) the Court conducted an individualized qualified

23 immunity analysis as to each Defendant. (Id. at 9–17.) The Court need not address the

24 third argument as Defendants do not address this point in opposition to Plaintiff’s Frivolity

25 Motion. (Doc. 161.) However, to the extent the case law in Plaintiff’s Frivolity Motion is

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1 relevant to the qualified immunity analysis, the Court takes that case law into consideration.

2 In the Frivolity Motion, Plaintiff adds that, if the Court is not inclined to certify the Nurse

3 Defendants’ appeal as frivolous, Plaintiff may dismiss the § 1983 claims against the Nurse

4 Defendants “in the interest of proceeding without further delay.” (Doc. 154-1 at 17.)

5 The Court finds these matters suitable for determination without oral argument

6 pursuant to Civil Local Rule 7.1(d)(1). For the reasons discussed below, Plaintiff’s

7 Frivolity Motion is GRANTED and Defendants’ Stay Motion is DENIED.

8 I. RELEVANT BACKGROUND

9 The factual and legal background concerning the Court’s denying summary

10 judgment to the Nurse Defendants on Plaintiff’s deliberate indifference to serious medical

11 needs claim and on the Nurse Defendants’ qualified immunity defense can be found in the

12 Court’s Order granting in part and denying in part the CCMG and County Defendants’

13 motions for summary judgment. (Doc. 142 at 7–10, 14–16, 18, 32–41, 45–49.)

14 II. LEGAL STANDARD

15 A. Frivolity

16 “[A] district court’s denial of a claim of qualified immunity, to the extent that it turns

17 on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291

18 notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530

19 (1985). In the Ninth Circuit, where “the interlocutory claim is immediately appealable, its

20 filing divests the district court of jurisdiction to proceed with trial.” Chuman v. Wright,

21 960 F.2d 104, 105 (9th Cir. 1992). However, with respect to an interlocutory appeal on

22 the issue of qualified immunity, “[s]hould the district court find that the defendants’ claim

23 of qualified immunity is frivolous or has been waived, the district court may certify, in

24 writing, that defendants have forfeited their right to pretrial appeal, and may proceed with

25 trial.” Id.

26 “An appeal is frivolous if the results are obvious, or the arguments of error are

27 wholly without merit.” In re George, 322 F.3d 586, 588 (9th Cir. 2003) (quoting Maisano

28 v. United States, 908 F.2d 408, 411 (9th Cir. 1990)). “District courts have certified appeals

1 of qualified immunity as frivolous where (1) defendants claim to rely on, but do not actually

2 rely on, the plaintiff’s version of the facts, or (2) where defendants’ legal arguments run

3 afoul of clearly established law.” Henderson v. City of Torrance, Case No. CV 18-3918-

4 MWF (EX), 2021 WL 3185479, at *3 (C.D. Cal. Apr. 5, 2021). Thus, to determine whether

5 the interlocutory appeals of the Nurse Defendants are frivolous, the Court examines

6 whether there is any merit to their qualified immunity argument under Plaintiff’s version

7 of the facts.

8 B. Qualified Immunity

9 “The doctrine of qualified immunity protects government officials ‘from liability for

10 civil damages insofar as their conduct does not violate clearly established statutory or

11 constitutional rights of which a reasonable person would have known.’” Pearson v.

12 Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

13 (1982)). Qualified immunity shields an officer from liability even if his or her action

14 resulted from “‘a mistake of law, a mistake of fact, or a mistake based on mixed questions

15 of law and fact.’” Id. (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004)).

16 “Determining whether officials are owed qualified immunity involves two inquiries:

17 (1) whether, taken in the light most favorable to the party asserting the injury, the facts

18 alleged show the official’s conduct violated a constitutional right; and (2) if so, whether

19 the right was clearly established in light of the specific context of the case.” Robinson v.

20 York, 566 F.3d 817, 821 (9th Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).

21 A right is “clearly established” when, “at the time of the challenged conduct, the contours

22 of a right are sufficiently clear that every reasonable official would have understood that

23 what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting

24 Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

25 “[C]learly established law should not be defined at a high level of generality.”

26 Martinez v. City of Clovis, 943 F.3d 1260, 1275 (9th Cir. 2019) (quoting White v. Pauly,

27 580 U.S. 73, 79 (2017)). Rather, it “must be ‘particularized’ to the facts of the case.” Id.

28 (internal citation omitted). Courts must not define clearly established law “at a high level

1 of generality, since doing so avoids the crucial question whether the official acted

2 reasonably in the particular circumstances that he or she faced.” D.C. v. Wesby, 583 U.S.

3 48, 63–64 (2018). At the same time, “[i]t is not necessary to have a case involving a heart

4 attack, a case involving appendicitis, or a case involving a bowel obstruction for a § 1983

5 claim based on one of those conditions to survive qualified immunity.” Russell v. Lumitap,

6 31 F.4th 729, 737–38 (9th Cir. 2022). There need not be “a case directly on point, but

7 existing precedent must have placed the statutory or constitutional question beyond

8 debate.” Ashcroft, 563 at 741. The rule must be “settled law,” which means it is dictated

9 by “controlling authority” or “a robust consensus of cases of persuasive authority.” Wesby,

10 583 at 63 (internal quotation marks and citations omitted).

11 “[O]fficials can be on notice that their conduct violates established law even in

12 novel factual situations.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). “[A] general

13 constitutional rule already identified in the decisional law may apply with obvious clarity

14 to the specific conduct in question” even if the specific action in question has not previously

15 been held unlawful. Taylor v. Riojas, 141 S. Ct. 52, 54 (2020) (quoting Hope, 536 U.S. at

16 741).

17 “If the right is clearly established by decisional authority of the Supreme Court or

18 this Circuit, our inquiry should come to an end. On the other hand, when ‘there are

19 relatively few cases on point, and none of them are binding,’ we may inquire whether the

20 Ninth Circuit or Supreme Court, at the time the out-of-circuit opinions were rendered,

21 would have reached the same results.” Boyd v. Benton Cnty., 374 F.3d 773, 781 (9th Cir.

22 2004) (quoting Capoeman v. Reed, 754 F.2d 1512, 1515 (9th Cir. 1985)). Thus, in the

23 absence of binding precedent, we “‘look to whatever decisional law is available to ascertain

24 whether the law is clearly established’ for qualified immunity purposes, ‘including

25 decisions of state courts, other circuits, and district courts.’” Id. (quoting Drummond ex

26 rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1060 (9th Cir. 2003)).

27 “It is the plaintiff who bears the burden of showing that the rights allegedly violated

28 were clearly established.” Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110, 1118 (9th Cir.

1 2017) (internal quotation marks and citation omitted). “However, because resolving

2 whether the asserted federal right was clearly established presents a pure question of law,

3 [the court] draw[s] on [its] full knowledge’ of relevant precedent rather than restricting [its]

4 review to cases identified by the plaintiff.” Gordon v. Cnty. of Orange, 6 F.4th 961, 969

5 (9th Cir. 2021) (citing Elder v. Holloway, 510 U.S. 510, 516 (1994)); see also Gomez v.

6 City of Vacaville, 483 F. Supp. 3d 850, 867 (E.D. Cal. 2020) (same); Brown v. Grinder,

7 No. 2:13-cv-01007-KJM-KJN, 2019 WL 280296, at *15 (E.D. Cal. Jan. 22, 2019)

8 (“[B]ecause resolving whether the asserted federal right was clearly established presents a

9 pure question of law, the court is not aware of any reason it should not draw on its full

10 knowledge of relevant precedent in laying a strong foundation at the trial court level, rather

11 than restricting its review to cases identified by plaintiff.”) (internal quotation marks and

12 citation omitted). The Court may also look at unpublished decisions. See Jessop v. City of

13 Fresno, 936 F.3d 937, 941 (9th Cir. 2019) (“[W]e may look at unpublished decisions and

14 the law of other circuits, in addition to Ninth Circuit precedent.”) (quoting Prison Legal

15 News v. Lehman, 397 F.3d 692, 702 (9th Cir. 2005)).

16 III. DISCUSSION

17 A. Deliberate Indifference2

18 The Nurse Defendants appear to challenge the Court’s ruling on Plaintiff’s Eighth

19 Amendment deliberate indifference claim against them because there was “no evidence

20 that any Defendant/Appellant drew [the] inference” of a substantial risk of harm under

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23 2 While the Nurse Defendants claim an action taken under the color of state law must be a

misuse of state power under § 1983, it is not clear whether they intend this new theory,

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raised for the first time in their opposition, as commentary or a legal argument. (See Doc.

25 161 at 11.) In any event, the Court rejects such an argument as meritless. “[G]enerally, a

public employee acts under color of state law while acting in his official capacity or while

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exercising his responsibilities pursuant to state law.” West v. Atkins, 487 U.S. 42, 50

27 (1988). It has long been settled that prison medical staff act under the color of state law

when treating inmate-patients. See id. at 55–57 (finding physician contracting with state

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1 Farmer v. Brennan, 511 U.S. 825, 837, 842–43 (1994). (Doc. 161 at 12–13.) Plaintiff

2 argues that a prison official’s subjective knowledge of a substantial risk of harm is a

3 question of fact that can be demonstrated through circumstantial evidence. (Doc. 154-1 at

4 6, 9–12 (citing Farmer, 511 U.S. at 842).)

5 The Nurse Defendants’ argument is meritless. To the extent the Nurse Defendants

6 contest the genuine disputes of material fact found by this Court, those findings are

7 unreviewable on an interlocutory appeal. See Est. of Anderson v. Marsh, 985 F.3d 726,

8 730–31 (9th Cir. 2021) (“[A]ny ‘portion of a district court’s summary judgment order that,

9 though entered in a ‘qualified immunity’ case, determines only a question of ‘evidence

10 sufficiency,’ i.e., which facts a party may, or may not, be able to prove at trial ... is not

11 appealable.’”) (quoting Johnson v. Jones, 515 U.S. 304, 313 (1995)); Ames v. King Cnty.,

12 846 F.3d 340, 347 (9th Cir. 2017) (“Where the district court has determined the parties’

13 evidence presents genuine issues of material fact, such determinations are not reviewable

14 on interlocutory appeal.”).

15 In any event, in Farmer, the Supreme Court held that “[w]hether a prison official

16 had the requisite knowledge of a substantial risk is a question of fact subject to

17 demonstration in the usual ways, including inference from circumstantial evidence, and a

18 factfinder may conclude that a prison official knew of a substantial risk from the very fact

19 that the risk was obvious.” 511 U.S. at 842 (internal citations omitted).3 The Nurse

20 Defendants do not quibble with Farmer’s holding. Rather, they argue the evidence of their

21 knowledge in this case did not come close to Farmer’s example concerning a longstanding

22 and well-documented risk of inmate attacks, of which “circumstances suggest[ed] the

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25 3 Additionally, the Supreme Court noted that “[w]hile the obviousness of a risk is not

conclusive and a prison official may show that the obvious escaped him, he would not

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escape liability if the evidence showed that he merely refused to verify underlying facts

27 that he strongly suspected to be true, or declined to confirm inferences of risk that he

strongly suspected to exist[.]” Id. 843 n.8 (internal citations omitted).

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1 defendant-official” was exposed. (Doc. 161 at 12–13.) Of course, the Supreme Court’s

2 example in Farmer merely reflected the allegations in that case concerning prison officials’

3 deliberate indifference to the petitioner’s safety. See 511 U.S. at 829–30, 842–43. That

4 example does not limit Farmer’s holding that a defendant’s knowledge of a substantial risk

5 is a question of fact that can be demonstrated by inferences drawn from circumstantial

6 evidence or the obviousness of a risk. See id. at 842–43; see also Lolli v. Cnty. of Orange,

7 351 F.3d 410, 421 (9th Cir. 2003) (“Much like recklessness in criminal law, deliberate

8 indifference to medical needs may be shown by circumstantial evidence when the facts are

9 sufficient to demonstrate that a defendant actually knew of a risk of harm.”) (citing Farmer,

10 511 U.S. at 842; Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1197 (9th Cir. 2002), overruled

11 on other grounds by Castro v. Cnty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016)).

12 Here, viewing the evidence and drawing all reasonable inferences in the light most

13 favorable to Plaintiff, the Court correctly found genuine issues of material fact as to

14 whether the Nurse Defendants were aware of a substantial risk to Wilson’s health and

15 safety. (See Doc. 142 at 35–36, 40 (citing Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

16 2006).). Each of the Nurse Defendants, trained medical professionals, were aware of

17 Wilson’s history of CHF and HCM, the remanding court’s warning to jail medical staff

18 concerning his serious medical issues, his essential cardiac medications prescribed by a

19 prison physician, and his not receiving those medications for many days or doses. It is for

20 the jury to determine whether each of the Nurse Defendants drew the inference that there

21 was a substantial risk to Wilson’s health and safety.

22 B. Clearly Established

23 1. Question Before the Court

24 The Nurse Defendants argue that, for the Court to deny qualified immunity, it “must

25 have reasonably concluded that every reasonable jail nurse would have understood, beyond

26 debate, that his or her mere inaction, after reviewing a prisoner’s jail medical records

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1 documenting lifelong medical issues, violates the Eighth Amendment.” (Doc. 161 at 14.)

2 Plaintiff responds that the Nurse Defendants “knowing inaction” is deliberate indifference.

3 (Doc. 162 at 2.)

4 The Court rejects the Nurse Defendants’ framing of the question because it implicitly

5 fails to view the facts in a light most favorable to Plaintiff. See Evans v. City of Vallejo,

6 No. 2:17-CV-01619-TLN-AC, 2022 WL 2160463, at *1 (E.D. Cal. June 15, 2022) (“[T]o

7 present a reviewable issue with respect to qualified immunity on interlocutory appeal,

8 ‘[t]he officials must present the appellate court with a legal issue that does not require the

9 court to consider the correctness of the plaintiff’s version of the facts...’”) (quoting

10 Cunningham v. City of Wenatchee, 345 F.3d 802, 807 (9th Cir. 2003)). Viewing the facts

11 in a light most favorable to Plaintiff, the question is whether every reasonable jail medical

12 staff member would have understood that denying or delaying providing prescribed cardiac

13 medications to an inmate-patient they knew had severe cardiac issues and had missed many

14 days or doses of those medications is a constitutional violation.

15 2. Prior Cases

16 The Court now addresses the parties’ arguments concerning whether prior case law

17 clearly established the constitutional violation in this case at the time of the Nurse

18 Defendants’ conduct. As explained supra at II.B, the Court is not limited to considering

19 the cases Plaintiff cites and may draw on its full knowledge of relevant precedent in

20 addressing this legal question.

21 The Nurse Defendants contend Easter v. Powell, 467 F.3d 459 (5th Cir. 2006) is

22 distinguishable because the nurse in that case, in addition to knowing the inmate-patient

23 had a heart condition and was not given his prescribed heart medication, knew the inmate-

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4 Elsewhere in the Nurse Defendants’ Opposition, they contend the pertinent questions are:

27 “Can a jail nurse be liable under the Eighth Amendment for unnecessary and wanton

infliction of pain to a prisoner who was not in pain? Or for inaction after reviewing a

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1 patient was experiencing severe chest pain. (Doc. 161 at 14–15.) The Nurse Defendants

2 argue Reed v. Barcklay, 634 F. App’x 184 (9th Cir. 2015) is distinguishable because the

3 physician defendant “deliberately chose” not to provide effective medication the inmate-

4 patient had long been prescribed for serious migraines and “complained of significant

5 pain.” (Id. at 15–16.) The Nurse Defendants argue Egberto v. Nevada Dep’t of Corr., 678

6 F. App’x 500 (9th Cir 2017) is distinguishable because the Ninth Circuit concluded a

7 reasonable jury could find prison officials delayed treatment of the inmate-patient’s back

8 pain for non-medical reasons and a doctor noted the inmate-patient was in “excruciating”

9 and “chronic” pain. (Id. at 16.) Lastly, the Nurse Defendants argue Plaintiff’s citation to

10 Jett v. Penner, 439 F.3d 1091 (9th Cir. 2006) is distinguishable because it did not involve

11 alleged violations by jail nurses, the physician knew the prisoner was in pain and earlier

12 treatment had been largely ineffective, and the physician “declined to do more to attempt

13 to improve the prisoner’s situation.” (Id. at 16–17.)

14 Plaintiff responds that a right can be clearly established “despite a lack of factually

15 analogous preexisting case law” and, here, “a robust consensus of authority established that

16 medical professionals could not delay or deny prescription medication to patients with

17 serious medical conditions.” (Id. at 2–4.) Lastly, Plaintiff argues that minor factual

18 differences between this case and prior authority does not mean the unconstitutionality of

19 the Nurse Defendants’ conduct was not clearly established at the time of Wilson’s death.

20 (Id. at 4–5.)

21 The Nurse Defendants’ arguments raise two pertinent questions: (1) whether a nurse

22 can be on notice of unconstitutional conduct from prior cases concerning the deliberate

23 indifference of physicians in denying, delaying, or intentionally interfering with medical

24 treatment, and (2) whether a nurse, despite knowing of an inmate-patient’s severe cardiac

25 issues and that he had missed many days or doses of his prescribed cardiac medications,

26 must know the inmate-patient is suffering from significant pain for their inaction to

27 constitute deliberate indifference.

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1 a. Physicians and Nurses

2 The Nurse Defendants’ argument that the deliberate indifference of physicians fails

3 to put jail nurses on notice of unconstitutional conduct is wholly without merit in this case.

4 First, the Ninth Circuit has relied on cases involving physicians denying, delaying, or

5 intentionally interfering with medical treatment to determine whether the unconstitutional

6 conduct of a nurse was clearly established. See e.g., Sandoval v. Cnty. of San Diego, 985

7 F.3d 657, 678–79 (9th Cir. 2021) (relying in part on Jett, 439 F.3d at 1097–98, involving

8 a physician defendant’s delay of treatment of a fractured thumb, in denying qualified

9 immunity to nurse who engaged in minimal, almost non-existent, course of treatment in

10 response to a sweating, tired, and disoriented inmate-patient a deputy urged the nurse to

11 re-evaluate); Aytch v. Sablica, 498 F. App’x 703, 704–05 (9th Cir. 2012) (citing Jett, 439

12 F.3d at 1098 and Hunt v. Dental Dep’t, 865 F.2d 198 (9th Cir. 1989), involving prison

13 dentist’s alleged denial of inmate-patient’s request for prompt treatment, in denying

14 summary judgment to prison nurses regarding their delay in responding to inmate-patient’s

15 dental issues).

16 Second, the Ninth Circuit has not drawn a distinction in cases where both nurses and

17 physicians are aware of a substantial risk of serious harm yet fail to reasonably respond or

18 in cases where nurses unreasonably rely on a physician’s outdated assessment. See e.g.,

19 Russell v. Lumitap, 31 F.4th 729, 743–45 (9th Cir. 2022) (denying summary judgment on

20 deliberate indifference claim to nurses who unreasonably relied on physician’s hours-

21 earlier assessment of inmate-patient with classic symptoms of a heart attack even though

22 the symptoms had become far more severe); Ortiz v. City of Imperial, 884 F.2d 1312, 1314

23 (9th Cir. 1989) (reversing district court’s grant of summary judgment to nurses and

24 physician on deliberate indifference claim where they “knew of Ortiz’s head injury but

25 disregarded evidence of complications to which they had been specifically alerted and,

26 without an examination, [the doctor] prescribed sedatives that were contraindicated[.]”).

27 Lastly, the facts of this case do not raise concerns exclusive to the expertise of

28 physicians as opposed to nurses or concern a nurse’s reliance on a physician’s timely

1 assessment of an inmate-patient. See Russell, 31 F.4th at 744 (granting summary judgment

2 on qualified immunity to nurse for deliberate indifference claim where the nurse called and

3 relied on the on-call physician’s evaluation and recommendation instead of hospitalizing

4 inmate-patient for classic symptoms of a heart attack); c.f. Pride v. Correa, 533 F. App’x

5 745, 747 (9th Cir. 2013) (finding genuine disputes of material fact as to whether doctor and

6 nurse were deliberately indifferent when doctor sent the unqualified nurse as his

7 representative to a committee that declined to follow the inmate-patient’s treating

8 physician’s recommendation and chose an inferior course of treatment). Rather, it

9 concerns the Nurse Defendants’ knowledge of: (1) Wilson’s severe cardiac issues, (2) the

10 remanding court’s warning to all jail medical staff concerning Wilson’s serious medical

11 needs, (3) Wilson’s missing many days or doses of his prescribed cardiac medications, and

12 (4) their failure to act upon that information. See Ortiz, 884 F.3d at 1314 (“[A]ccess to

13 medical staff is meaningless unless that staff is competent and can render competent care.”)

14 (quotation marks and citations omitted). Thus, this argument is meritless in this case.

15 b. Significant Pain

16 The Nurse Defendants’ argument that a nurse, despite knowing of an inmate-

17 patient’s severe cardiac issues and that he had missed many days or doses of his prescribed

18 cardiac medications, must know the inmate-patient is suffering from significant pain for

19 their inaction to constitute deliberate indifference is also meritless. Clearly established law

20 at the time of the Nurse Defendants’ conduct in this case imposed no such requirement

21 where prison officials deny, delay, or intentionally interfere with medical treatment.

22 To begin, the Nurse Defendants ignore the information that each of them were aware

23 of when viewed in a light most favorable to Plaintiff. Defendant Kumar knew Wilson had

24 a history of CHF and HCM, that he had a left-sided heart pacer, that he was prescribed

25 multiple heart medications by a prison physician, and that Wilson was complaining of not

26 having received his medications—at that point four days into his incarceration. (See Doc.

27 117-4 (Ex. 15), Kumar Dep. 74:23–75:2, 78:20–79:14, 81:17–23.) Importantly, Defendant

28 Kumar also knew about the remanding court’s warning to jail medical staff that Wilson

1 “has some serious medical issues.” (See id. at 82:6–12; Doc. 131, Joint Statement of

2 Undisputed Facts at 1.)

3 Five days into Wilson’s incarceration, Defendant Ibanez knew the same information

4 Defendant Kumar knew above. Defendant Ibanez also knew that Defendant Kumar merely

5 noted Wilson was scheduled for a registered nurse sick call in response to his request for

6 his missing prescribed medications. (See CSD000044–45.) Defendant Ibanez was also

7 aware Wilson was complaining of a “cough that won’t go away” and CHF was a potentially

8 fatal condition if not treated properly with diuretics, beta blockers, or medications that

9 lower blood pressure. (See CSD000044; Doc. 117 (Ex. 19), Ibanez Dep. 10:21–11:5,

10 11:14–17.)

11 Seven or eight days into Wilson’s incarceration, Defendant Germono knew of

12 Wilson’s history of CHF and HCM, that he had a left-sided heart pacer, that he was

13 prescribed multiple heart medications, that he complained of not receiving those

14 medications, that the remanding court warned jail medical staff concerning Wilson’s

15 “serious medical issues,” and that Wilson had a “cough that won’t go away.” (See

16 CSD000036; CSD000044–45.) Germono was also aware Wilson was a Level One priority

17 patient who complained of shortness of breath and that his mother had called jail medical

18 staff about his having trouble breathing and not receiving his medications. (See

19 CSD000036.) During her examination of Wilson, Germono learned he was in moderate

20 distress with lung sounds as well as upper respiratory and inspiratory wheezing. (See

21 CSD000035.) While Germono knew Wilson was not using accessory muscles to breath,

22 she also knew he had a cough and would catch his breath whenever he talked. (See id.)

23 Importantly, Germono knew that people with CHF can die if left untreated and

24 undiagnosed and that signs of CHF included difficulty breathing—one of Wilson’s

25 symptoms. (See Doc. 100-2 (Ex. F) Germono Dep. 30:5–13.; Doc. 117-2 (Ex. 13)

26 Germono Dep. 35:10–12.)

27 To summarize, in addition to knowing of Wilson’s severe cardiac issues and many

28 missed days or doses of his prescription cardiac medications, the Nurse Defendants were

1 aware of other facts indicating a substantial risk of harm to Wilson. While Defendant

2 Kumar was not aware of physical symptoms, he knew the remanding court had specifically

3 warned jail medical staff that Wilson had serious medical issues. Defendant Ibanez not

4 only knew of the remanding court’s warning, but also knew Wilson had a “cough that won’t

5 go away”—a “cardinal symptom” of CHF—and that CHF was deadly if not treated

6 properly with diuretics, beta blockers, and blood pressure medications. (See CSD000044;

7 Doc. 96-2 (Ex. R), Dr. Homer Venters’ Expert Report (“Venters Report”) at 15.)

8 Defendant Germono was not only aware of the remanding court’s warning, but also knew

9 of Wilson’s cough, shortness of breath, trouble breathing, lung sounds, upper and

10 inspiratory wheezing, and that he would catch his breath whenever he talks, even if he was

11 not using accessory muscles to breath. Notably, Defendant Germono knew difficult

12 breathing is a sign of CHF and, if left untreated, CHF can be fatal.

13 It is under these circumstances that the Court must evaluate whether it was clearly

14 established that the Nurse Defendants’ inaction concerning Wilson’s prescribed cardiac

15 medications was a constitutional violation. The Court will now discuss the controlling

16 authority and the robust consensus of persuasive authority clearly establishing Wilson’s

17 constitutional right to not be denied or delayed his prescribed cardiac medications for his

18 serious cardiac issues.

19 i. Ninth Circuit Precedent

20 In the Ninth Circuit, it is clearly established that prison officials may not “deny,

21 delay, or intentionally interfere with medical treatment[.]” McGuckin v. Smith, 974 F.2d

22 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104

23 F.3d 1133 (9th Cir.1997) (en banc) (citation omitted). In Wakefield v. Thompson, the

24 plaintiff suffered from Organic Delusional Disorder and took psychotropic medication to

25 manage his disorder and prevent violent outbursts. 177 F.3d 1160, 1161–62 (9th Cir.

26 1999). While incarcerated, the plaintiff was prescribed such medication by a prison

27 physician. Id. at 1162. Shortly before his release, the plaintiff met with that physician,

28 who wrote him a two-week prescription for that medication to be filled by prison officials

1 and dispensed to him during his release procedure. Id. On the day of his release, the

2 plaintiff asked for his prescribed medication, and the officer handling his release procedure

3 told him there was no medication available. Id. The plaintiff responded that the medicine

4 was prescribed and without it he would suffer a relapse of his mental disorder, but the

5 officer refused to even call prison medical staff to check on his prescription because the

6 officer was “late paroling.” Id. Eleven days after his release, the plaintiff suffered a

7 relapse, leading to a violent outburst and his subsequent arrest. Id.

8 The Ninth Circuit explained “the state must provide prisoners with the medical care

9 they need during the period of their incarceration” because “while a prisoner is actually

10 incarcerated the state restricts completely his ability to secure medical care ‘on his own

11 behalf.’” Id. at 1164. The Ninth Circuit held that:

12 the state must provide an outgoing prisoner who is receiving and continues to require

medication with a supply sufficient to ensure that he has that medication available

13

during the period of time reasonably necessary to permit him to consult a doctor and

14 obtain a new supply. A state’s failure to provide medication sufficient to cover this

transitional period amounts to an abdication of its responsibility to provide medical

15

care to those, who by reason of incarceration, are unable to provide for their own

16 medical needs.

17

18 Id. Then, in addressing the officer’s deliberate indifference to the plaintiff’s serious

19 medical needs, the Ninth Circuit explained “allegations that a prison official has ignored

20 the instructions of a prisoner’s treating physician are sufficient to state a claim for

21 deliberate indifference.” Id. at 1165. The Ninth Circuit held the officer’s failure to provide

22 the plaintiff his prescribed psychotropic medication, failure to contact prison medical staff

23 to inquire into the location of that medication, failure to make any other effort on the

24 plaintiff’s behalf, and explanation of being too busy paroling prisoners to assist the

25 plaintiff, alleged sufficient facts to support the plaintiff’s deliberate indifference to serious

26 medical needs claim. See id.

27 The Ninth Circuit’s deliberate indifference ruling in Wakefield did not turn on the

28 officer’s knowledge of any symptoms or pain of the plaintiff. Rather, the constitutional

1 violation derived from the officer denying the plaintiff medication that a prison physician

2 had prescribed to the plaintiff for his mental health condition and making no effort to locate

3 that medication on his behalf. Like Wakefield, here a prison physician prescribed Wilson

4 his four cardiac medications for his severe cardiac issues. The Nurse Defendants were

5 aware of Wilson’s condition and his prescribed medications. The Nurse Defendants were

6 also aware Wilson complained of not receiving those prescribed medications. Defendant

7 Germono was additionally aware Wilson’s mother had complained of Wilson’s not

8 receiving his medications. By failing to provide Wilson those prescribed medications or

9 make any effort on Wilson’s behalf to procure those medications, the Nurse Defendants

10 either denied or delayed Wilson’s receiving those prescribed medications.

11 While the officer’s denial of the prescribed medication in Wakefield appeared at least

12 in part to be due to the non-medical reason of late paroling, the Defendants in this case

13 have never articulated a medical reason why Wilson was denied or delayed his prescribed

14 cardiac medications. And while Wakefield involved an officer’s denial of prescribed

15 medication to an inmate-patient during his release from incarceration as opposed to during

16 his incarceration, Wakefield is clear that the same principle governs. In fact, the core

17 question in Wakefield concerned whether the principle governing medical care for

18 incarcerated prisoners extends to outgoing prisoners. And for qualified immunity purposes,

19 there need not be “a case directly on point,” rather “existing precedent must have placed

20 the statutory or constitutional question beyond debate.” Ashcroft, 563 at 741. Wakefield

21 placed the constitutional question concerning a prison official’s denial of medication

22 prescribed by a prison physician to manage a serious medical condition beyond debate.

23 In Lolli v. County of Orange, the plaintiff informed a nurse at the jail that he was

24 diabetic, felt ill, and needed to eat something as soon as possible; the nurse assured him he

25 would receive food promptly. 351 F.3d 410, 412 (9th Cir. 2003). The plaintiff was placed

26 in a holding cell where he informed deputies standing near him that he was diabetic, feeling

27 very sick, promised long overdue food, and asked what happened to the food he requested.

28 Id. at 420. Upon transportation to a medical observation cell, the plaintiff again told

1 deputies he was diabetic and needed food. Id. The Ninth Circuit concluded the deputies’

2 indifference to the plaintiff’s extreme behavior, obviously sickly appearance, and urgent

3 statements he needed food because he was diabetic could lead a jury to believe they were

4 deliberately indifferent to a serious risk to his health in denying medical attention. See id.

5 at 421.

6 Lolli did not rest on the deputies’ knowledge of any significant pain of the plaintiff.

7 The deputies in Lolli were aware of the plaintiff’s serious medical condition, diabetes, and

8 his request for food to manage that condition, but they did not provide any food. Similarly,

9 here the Nurse Defendants were aware of Wilson’s serious cardiac issues and that he was

10 requesting his prescribed cardiac medications meant to manage his conditions. They also

11 knew the remanding court warned jail medical staff of Wilson’s serious medical issues.

12 Yet the Nurse Defendants failed to provide those medications. The deputies in Lolli were

13 also aware of the plaintiff’s erratic behavior and sickly appearance. Similarly here,

14 Defendants Ibanez and Germono, both trained medical professionals, were aware of

15 Wilson’s symptoms potentially indicative of CHF and the fatal consequences of failing to

16 treat CHF, even if those symptoms were not as pronounced as those seen by deputies in

17 Lolli. Thus, Lolli placed Defendants Ibanez and Germono on notice that, if they are aware

18 of an inmate-patient’s serious medical condition, symptoms consistent with that condition,

19 and the inmate-patient’s request for treatment to manage that condition, it is deliberate

20 indifference to deny or delay such treatment.

21 In Jett, the plaintiff fractured his thumb in prison, was sent to the hospital, and

22 advised by a physician verbally and in aftercare instructions to see an orthopedic physician.

23 439 F.3d at 1094. The aftercare instructions were in the plaintiff’s medical file, and the

24 plaintiff sent medical slips, a medical grievance, and a letter to a prison physician

25

26

27 5 There are also allegations that the plaintiff was beaten by deputies prior to his

transportation to the medical observation cell that were the subject of a separate excessive

28

1 describing his need to see an orthopedic physician to set and recast his fractured right

2 thumb. Id. at 1097. The Ninth Circuit determined the factfinder could find the prison

3 physician was aware of those documents that were sent weeks earlier. See id. The Ninth

4 Circuit held the factfinder could also conclude the prison physician’s failure to see the

5 plaintiff during that intervening period and ensure his fracture was set and recast was

6 deliberate indifference to his serious medical condition. See id.6

7 The Ninth Circuit’s opinion in Jett did not rest on the prison physician’s knowledge

8 of any significant pain of the plaintiff. Rather, the prison physician in Jett was aware of

9 the prisoner’s serious medical condition, a fractured thumb, and aware of his request for

10 prescribed treatment, to see an orthopedist to set and recast his thumb. Despite this, the

11 physician delayed seeing the plaintiff for weeks. As in Jett, the Nurse Defendants here

12 were aware of Wilson’s serious cardiac issues and his complaining of not receiving his

13 treatment prescribed by the prison physician, i.e., his cardiac medications. Similar to Jett,

14 not only did Defendants Kumar and Ibanez delay meeting with Wilson, they failed to meet

15 with him entirely even though jail policy required them to do so. (See Doc. 117-5 (Ex. 16)

16 at 1–2.) Thus, Jett placed Defendants Kumar and Ibanez on notice that, if they are aware

17 of an inmate-patient’s serious medical condition and his request for treatment prescribed

18 by a physician, delaying that treatment by failing to meet with the inmate-patient and

19 address the need for treatment constitutes deliberate indifference.

20 ii. Robust Consensus of Persuasive Authority

21 In addition to controlling authority, a robust consensus of persuasive authority

22 clearly established Wilson’s right not to be denied or delayed medical treatment in the form

23 of prescribed medications for a serious medical condition. This includes in situations

24 where the plaintiff’s symptoms or significant pain had not yet onset.

25

26

27 6 The Ninth Circuit also found genuine disputes of fact concerning deliberate indifference

to serious medical needs on other grounds for the physician’s conduct after meeting with

28

1 In Johnson v. Schwarzenegger, in a memorandum opinion, the Ninth Circuit

2 reversed the district court’s granting of summary judgment to a chief medical officer and

3 licensed pharmacist. 366 F. App’x 767, 769 (9th Cir. 2010). The plaintiff in Johnson was

4 diagnosed with hepatitis C, cirrhosis, and end-stage liver disease and was prescribed

5 Lactulose for his conditions. Johnson v. Swartzenegger, No. S-06-0821 MCE EFB P, 2008

6 WL 449708, at *1 (E.D. Cal. Feb. 15, 2008), report and recommendation adopted, No.

7 CIV S-06-0821MCE EFB P, 2008 WL 877835 (E.D. Cal. Mar. 28, 2008), aff’d in part,

8 rev’d in part sub nom. Johnson, 366 F. App’x 767. The Ninth Circuit explained there was

9 conflicting evidence on the issue of whether there was an interruption in plaintiff’s

10 Lactulose refills because he had complained he was deprived of his medication for three

11 days and pursued inmate appeals concerning ongoing failures to provide him his prescribed

12 dosage of medication. 366 F. App’x 769. The Ninth Circuit reversed summary judgment

13 to the chief medical officer because he was responsible for ensuring the plaintiff continued

14 to receive necessary prescribed medications when he was transferred from a previous

15 facility, received correspondence from plaintiff’s sister concerning his not receiving his

16 prescribed medication regularly, and saw plaintiff’s appeal containing his complaint of not

17 receiving medication for at least three days. Id.7 The Ninth Circuit also found there was a

18 genuine dispute of fact as to whether the plaintiff’s irregular medication supply was the

19 cause of his subsequent suffering and coma. Id.

20 The Ninth Circuit in Johnson held that “[f]ailure to provide medication to prevent a

21 life-threatening condition may amount to deliberate indifference to a serious medical

22 need.” Id. (citing Gibson, 290 F.3d at 1194; Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir.

23 2000); Wakefield, 177 F.3d at 1164–65). The Ninth Circuit’s opinion did not mention or

24 rely on whether the plaintiff was experiencing symptoms or in pain during the three-day

25 period that he did not receive his prescribed medication and whether the defendants were

26

27

7 The Ninth Circuit also reversed summary judgment for the licensed pharmacist given

28

1 so aware of any symptoms or pain.

2 In Natale v. Camden County Correctional Facility, the plaintiff, an insulin-

3 dependent diabetic, was arrested and taken to an emergency department, where a physician

4 gave him a dose of insulin and wrote a note stating he “must have insulin” while

5 incarcerated. 318 F.3d 575, 578 (3d Cir. 2003). During his subsequent intake screening at

6 the jail, the plaintiff informed employees of the private company providing health services

7 for the jail that he was an insulin-dependent diabetic. Id. That information was also noted

8 in his chart. Id. The plaintiff did not receive his first dose of insulin until 21 hours after

9 being admitted to the jail. Id. The plaintiff was released the same day and suffered a stroke

10 two days later. Id. The Third Circuit reversed the district court’s decision granting

11 summary judgment on the plaintiff’s deliberate indifference claim and determined there

12 was sufficient evidence in the record the employees were deliberately indifferent to the

13 plaintiff’s serious medical needs. Id. at 582. The Third Circuit reasoned there was

14 evidence prison officials ignored the plaintiff’s need for insulin, including testimony from

15 the plaintiff he informed employees he was an insulin-dependent diabetic, the note on his

16 chart, and that a physician indicated in a note he “must have insulin.” Id. The Third Circuit

17 held “[a] reasonable jury could conclude that [the] employees knew that Natale was an

18 insulin-dependent diabetic and that if insulin was not administered as required, he would

19 suffer adverse health consequences.” Id. at 582–83. The Third Circuit also held “[a]

20 reasonable jury could find that such a practice constituted the delay of medical treatment

21 for non-medical reasons” because of evidence the employees delayed medical treatment

22 due to the lack of a policy requiring promptly seeing inmate-patients with more immediate

23 medical needs. See id. at 583.

24 Absent from the Third Circuit’s opinion in Natale was any mention of the medical

25 employees’ awareness of any physical symptoms or significant pain of the plaintiff.

26 Rather, the Third Circuit’s opinion rested on their awareness of the plaintiff’s serious

27 medical condition and need for medication for that condition. While the medical

28 employees’ delay in providing medication in Natale appeared to be due in part to a non-

1 medical reason, the Defendants in this case, again, have never articulated a medical reason

2 why Wilson was delayed many days in receiving his prescribed cardiac medications.

3 In Scinto v. Stansberry, a prison physician prescribed twice a day insulin to a diabetic

4 plaintiff when his blood sugar rose above 140 milligrams per deciliter and prescribed

5 supplemental insulin injections when the plaintiff’s blood sugar rose above 150 milligrams

6 per deciliter. 841 F.3d 219, 227 (4th Cir. 2016). The plaintiff requested the physician

7 provide a supplemental insulin injection when his blood sugar was at 200 milligrams per

8 deciliter. Id. Instead of providing the insulin, the physician terminated the medical visit

9 with the plaintiff. Id. The physician instead developed an alternative treatment plan to

10 monitor his blood sugar levels at mealtimes and provide short acting insulin, but the

11 plaintiff claimed that plan was not followed. Id. at 227–28. The plaintiff claimed this

12 inadequate treatment increased his blood sugar and hemoglobin A1C levels and

13 unnecessarily exacerbated his serious diabetic condition, damaging his kidneys, eyesight,

14 nervous system, and psychological well-being. Id. at 228. The Fourth Circuit held there

15 was a genuine dispute of material fact concerning the physician’s deliberate indifference

16 to the plaintiff’s serious medical needs. Id. at 229. The Fourth Circuit reasoned the

17 physician was aware of the plaintiff’s serious medical condition due to his prescribing the

18 insulin regimen for his diabetes and was aware of the plaintiff’s elevated blood sugar level

19 at the time, raising an inference that the physician knew failure to provide the insulin could

20 result in a substantial risk of serious harm. Id. The Fourth Circuit’s opinion in Scinto did

21 not rest on the physician’s knowledge of any symptoms or significant pain of the plaintiff,

22 but rather on his awareness of his diabetes, elevated blood sugar level, his prescribed

23 insulin regime, and the physician’s denial of his insulin.

24 In Easter v. Powell, the plaintiff had a history of serious heart problems and went to

25 the prison infirmary complaining of severe chest pain. 467 F.3d 459, 461 (5th Cir. 2006).

26 The nurse took his blood pressure and sent him to the prison pharmacy to have his

27

28

1 nitroglycerin prescription refilled. Id. The pharmacy was closed, and when plaintiff asked

2 the nurse for nitroglycerin, she ordered him to leave and denied his requests for an

3 electrocardiogram and nitroglycerin. Id. After four hours of severe pain, a different

4 medical professional provided the plaintiff nitroglycerin, but by the time his pain ceased,

5 the blood vessels in his left eye had burst and filled with blood. Id. Accepting the

6 plaintiff’s allegations as true, the Fifth Circuit presumed the nurse knew the plaintiff had a

7 heart condition including heart disease, had previously suffered a heart attack, was

8 experiencing severe chest pains, and did not have his prescribed heart medication. Id. at

9 463. The Fifth Circuit inferred from such circumstances that the nurse was subjectively

10 aware of a substantial risk of harm to the plaintiff’s health. Id. The Fifth Circuit also

11 determined the plaintiff sufficiently alleged the nurse failed to act by simply directing him

12 to the pharmacy to obtain a refill of his nitroglycerin prescription, and upon learning the

13 pharmacy was closed, sending him back to his cell without providing any treatment. Id. at

14 463–64. The Fifth Circuit’s opinion in Easter is similar to this case in that the nurse knew

15 about the plaintiff’s severe cardiac issues, that he was prescribed heart medication, and that

16 he did not have that medication and was requesting that medication. While the nurse in

17 Easter also knew the plaintiff was experiencing severe chest pain, that is similar to

18 Defendant Ibanez’s knowledge that Wilson had a cough that would not go away and

19 Defendant Germono’s knowledge of a multitude of other symptoms Wilson had that were

20 potentially indicative of CHF.

21 In Garretson v. City of Madison Heights, the plaintiff informed her booking officer

22 of her diabetic condition and that she was late for her current dose of insulin. 407 F.3d

23

24

25 8 Nitroglycerin is used to prevent chest pain caused by coronary artery disease or to relieve

a chest pain attack that is already occurring. See Mayo Clinic, Nitroglycerin (Oral Route,

26

Sublingual Route), www.mayoclinic.org, available at https://www.mayoclinic.org/drugs-

27 supplements/nitroglycerin-oral-route-sublingual-route/description/drg 20072863#:~:text=

Nitroglycerin%20belongs%20to%20the%20group,while%20reducing%20its%20work%2

28

1 789, 794 (6th Cir. 2005). The booking officer explained insulin would not be supplied, but

2 the plaintiff could make arrangements for insulin to be delivered, and the jail would

3 administer it upon delivery. Id. The plaintiff requested a transfer to another jail she knew

4 would provide insulin, but her request was denied, and no arrangements were made to

5 acquire and administer insulin to her. Id. The plaintiff was placed in a holding cell where

6 she informed another officer of her medical needs, and the officer said he would “see what

7 he can do.” Id. Throughout the night, the plaintiff suffered symptoms of insulin

8 deprivation and high blood pressure and knocked on the cell door for assistance but

9 received no response. Id. The Sixth Circuit concluded these two officers were aware of

10 facts from which they could infer a substantial risk of harm and there was a genuine dispute

11 of material fact as to whether they were deliberately indifferent to the plaintiff’s serious

12 medical needs. Id. at 798. The Sixth Circuit’s opinion in Garretson did not concern the

13 officers’ knowledge of the plaintiff’s symptoms or significant pain, but rather only upon

14 their knowing she had a serious medical condition requiring medication, her requests for

15 that medication, and their failure to provide her that medication.

16 In Hudson v. McHugh, during the plaintiff’s intake interview at the jail, he told

17 several officers he was epileptic and needed anti-convulsion medication daily. 148 F.3d

18 859, 861 (7th Cir. 1998). The intake officers did not acquire the plaintiff’s anti-convulsion

19 medication. Id. Over the next few days, he requested that medication and filled out several

20 medical request forms, but again did not receive the medication. Id. After a few more

21 days, the plaintiff saw a nurse, who he informed about his condition, but the nurse did not

22 take any steps to get him his anti-convulsion medication. Id. After 11 days of having his

23 requests ignored, the plaintiff suffered a grand mal epileptic seizure. Id. In concluding the

24 plaintiff had adequately pled a deliberate indifference claim against the jail intake officers

25 and nurse, the Seventh Circuit reasoned “the officers at the jail knew the basic facts giving

26 rise to the inference that he had a serious medical need—they knew he had epilepsy, they

27 knew he didn’t have his medicine and they knew he wasn’t getting it—and with knowledge

28 of these basic facts pleaded, drawing the inference of a serious medical need is a question

1 of fact.” Id. at 864 (citing Farmer, 114 S.Ct. at 1981–82). The Seventh Circuit explained

2 the case was a “prototypical case of deliberate indifference, an inmate with a potentially

3 serious problem repeatedly requesting medical aid, receiving none, and then suffering a

4 serious injury.” Id. (emphasis added). The Seventh Circuit’s opinion in Hudson did not

5 reference any symptoms or significant pain of the plaintiff. Rather, it was sufficient that

6 the defendants knew of his serious medical condition, his complaints of not receiving his

7 necessary medication, and their failure to provide that medication.

8 In Wynn v. Southward, the plaintiff was moved to an isolation detention unit without

9 his heart medication. 251 F.3d 588, 590–91 (7th Cir. 2001). The plaintiff filed a grievance

10 form requesting, inter alia, his heart medication immediately. Id. at 591. The plaintiff

11 then continued to request his medication from officers for a week but to no avail. Id. The

12 plaintiff’s heart began fluttering and he warned that he may begin to experience “heavy

13 chest pains” if he did not resume his medication. Id. The Seventh Circuit held the plaintiff

14 adequately stated a deliberate indifference claim against officers regarding their failure to

15 provide his heart medication. See id. at 594. In Wynn, it does not appear the officers were

16 aware of whether the plaintiff had an underlying heart condition, but rather that the plaintiff

17 was without his heart medication, experiencing heart fluttering, and could experience

18 heavy chest pains. By contrast here, the Nurse Defendants, trained medical professionals,

19 were aware of Wilson’s serious cardiac issues, the remanding court’s warning about his

20 serious medical issues, and that he did not have his prescribed cardiac medications. Like

21 the officers in Wynn, Defendants Ibanez and Germono were aware of Wilson’s symptoms,

22 but they additionally knew of symptoms consistent with Wilson’s history of CHF and that

23 CHF is potentially fatal when left untreated.

24 In Egebergh v. Nicholson, the plaintiff informed the booking officer that he was an

25 insulin-dependent diabetic and the booking officer noted this on his lock-up sheet. 272

26 F.3d 925, 927 (7th Cir. 2001). The plaintiff’s sister brought insulin to the police station,

27 he received an insulin injection that evening, and the shift supervisor’s logbook said he

28 would need another shot in the morning. Id. In the morning, the shift supervisor read that

1 logbook and assigned another office to take the plaintiff to a bond hearing. Id. The shift

2 supervisor knew an insulin-dependent diabetic needs regular insulin injections and the

3 assigned officer knew diabetes is potentially fatal. Id. The plaintiff informed the officer

4 he needed another insulin shot, which was relayed to the shift supervisor, who said plaintiff

5 did not need the shot. Id. The plaintiff did not receive the shot and was taken to the

6 courthouse for the bond hearing where plaintiff complained of feeling woozy and shaky,

7 but the officer did nothing. Id. The plaintiff freaked out in an adjacent room, but then

8 feeling better, the bond hearing proceeded, and bond was denied. Id. Upon arriving at jail,

9 the plaintiff was examined by a doctor that afternoon who noticed he was dehydrated. Id.

10 His condition deteriorated rapidly, and the plaintiff died that evening. Id. The Seventh

11 Circuit held that a reasonable jury could infer the shift supervisor and officer were

12 deliberately indifferent to the plaintiff’s serious medical needs because they knew he was

13 an insulin-dependent diabetic, could be seriously harmed by the deprivation of insulin, and

14 deprived him of the morning shot for no other reason than to get him out of the police

15 station. Id. at 927–28. The Seventh Circuit’s opinion in Egebergh did not rely on the

16 defendants’ knowledge of any symptoms or significant pain when they failed to provide

17 the plaintiff his insulin. Notably, like the officers in Egebergh, Defendants Ibanez and

18 Germono, each knew CHF was potentially fatal, that Wilson was not receiving his

19 prescribed cardiac medications, and failed to provide those medications.

20 In Phillips v. Jasper County Jail, the Eighth Circuit denied summary judgment to

21 jail employees on a deliberate indifference claim for failing to administer the plaintiff his

22 prescribed dosage of anti-seizure medication. 437 F.3d 791, 795–96 (8th Cir. 2006). The

23 Eight Circuit first explained that the knowing failure to administer prescribed medicine can

24 constitute deliberate indifference. Id. at 796. The Eighth Circuit then held there was a

25 genuine dispute of material fact as to whether the jail employees were deliberately

26 indifferent where there was evidence that both before and after the plaintiff suffered a

27 seizure, he was not given the prescribed amount of his anti-seizure medication and filed

28 grievances regarding that failure to no effect. Id. The jail employees contested whether

1 the plaintiff suffered a seizure, and the Eighth Circuit found a genuine dispute of material

2 fact on that issue as well. Id. The Eighth Circuit’s opinion in Phillips made no reference

3 to the jail employees’ knowledge of any symptoms or significant pain of the plaintiff before

4 his seizure. Rather, it was sufficient that jail employees did not give him the prescribed

5 amount of his anti-seizure medication, even though he received some anti-seizure

6 medication, after he complained of that failure.

7 iii. Analysis

8 Viewing the evidence in the light most favorable to Plaintiff, the Nurse Defendants

9 knew Wilson had a history of CHF and HCM, had a heart pacer, that the remanding court

10 warned jail medical staff of his serious medical issues, that he was prescribed four cardiac

11 medications by a prison physician to manage his serious cardiac issues, that he complained

12 of not receiving those medications, and that he did not receive those medications for many

13 days or doses. Additionally, Defendant Ibanez knew Wilson complained of a “cough that

14 won’t go away”—a “cardinal symptom” of CHF—and that CHF was deadly if not treated

15 properly with diuretics, beta blockers, and blood pressure medications. Defendant

16 Germono knew Wilson’s mother called jail medical staff complaining of his trouble

17 breathing and not receiving his medications. She also knew of Wilson’s cough, shortness

18 of breath, trouble breathing, lung sounds, upper and inspiratory wheezing, and that he

19 would catch his breath whenever he talks, even if he was not using accessory muscles to

20 breath. Defendant Germono knew difficult breathing is a sign of CHF and, if left untreated,

21 CHF can be fatal. Despite this knowledge, the Nurse Defendants failed to ensure Wilson

22 received his prescribed cardiac medications.

23 At the time of the Nurse Defendants’ conduct, it was clearly established that denying

24 or delaying providing prescribed cardiac medications to an inmate-patient jail medical staff

25 knew had severe cardiac issues and had missed many days or doses of those medications

26 was a constitutional violation. Controlling authority in Wakefield placed the Nurse

27 Defendants on notice that, if they are aware a prison physician prescribed an inmate-patient

28 medication to manage a serious medical condition, it is deliberate indifference to deny the

1 inmate-patient’s request for that medication for non-medical reasons. That is true even if

2 the inmate-patient is not expressing any symptoms or experiencing significant pain, as was

3 the situation in Wakefield. Additionally, controlling authority in Jett placed Defendants

4 Kumar and Ibanez on notice that, if they are aware of an inmate-patient’s serious medical

5 condition and his request for treatment prescribed by a physician, delaying that treatment

6 by failing to meet with the inmate-patient and address the need for treatment constitutes

7 deliberate indifference. Consistent with Jett and Wakefield, the opinions in Johnson,

8 Natale, Garretson, Hudson, Egebergh, and Phillips placed the Nurse Defendants on notice

9 that if they are aware of an inmate-patient’s serious medical condition, the need for

10 treatment to manage that condition, and the inmate-patient’s request for that treatment, it

11 is deliberate indifference to deny or delay that treatment.

12 Moreover, controlling authority in Lolli placed Defendants Ibanez and Germono on

13 notice that, if they are aware of an inmate-patient’s serious medical condition, symptoms

14 consistent with that condition, and the inmate-patient’s request for treatment to manage

15 that condition, it is deliberate indifference to deny or delay such treatment. Consistent with

16 Lolli, the opinions in Scinton, Easter, and Wynn placed Defendants Ibanez and Germono

17 on notice that such denial or delay of treatment include the denial or delay in providing

18 prescribed medication for an inmate-patient’s serious medical condition when they exhibit

19 symptoms consistent with that condition.

20 Thus, it was clearly established by controlling authority in this Circuit and a robust

21 consensus of persuasive authority at the time of the Nurse Defendants’ conduct in this case

22 that jail medical staff could not deny or delay providing prescribed cardiac medications to

23 an inmate-patient they knew had serious cardiac issues and had not received his prescribed

24 cardiac medications for many days or doses. As demonstrated in Wakefield, Jett, Johnson,

25 Natale, Garretson, Hudson, Egebergh, and Phillips, the Nurse Defendants’ argument that

26 they needed to know Wilson was in significant pain for their inaction to constitute

27 deliberate indifference “run[s] afoul of clearly established law.” Henderson, 2021 WL

28 3185479, at *3. Thus, the Court GRANTS Plaintiff’s Frivolity Motion and certifies that

1 the Nurse Defendants’ interlocutory appeals are frivolous. In light of the foregoing, the

2 Court DENIES Defendants’ Stay Motion.

3 IV. CONCLUSION

4 For the foregoing reasons, the Court GRANTS Plaintiff’s Frivolity Motion (Doc.

5 154) and DENIES Defendants’ Stay Motion (Doc. 148). The Court resets the remaining

6 pretrial deadlines as follows:

7 1. Pretrial Disclosures are due on or before May 31, 2024

8 2. Memorandum of Contentions of Fact and Law are due on or before May 31, 2024

9 3. Meeting with counsel Pursuant to CivLR 16.1(f)(4) must occur on or before June

10 7, 2024

11 4. Plaintiff’s Draft Pretrial Order is due on or before June 14, 2024

12 5. The parties’ Proposed Final Pretrial Conference Order must be lodged with the Court

13 on or before June 21, 2024

14 6. The pretrial conference is scheduled for June 27, 2024 at 1:30 p.m.

15 IT IS SO ORDERED.

16 DATE: April 8, 2024

17 _____________________________________

HON. RUTH BERMUDEZ MONTENEGRO

18

UNITED STATES DISTRICT JUDGE

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