The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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11 PAUL D. CARR, Case No. 5:21-cv-00865-MRA (PVC)
12 Plaintiff, ORDER ACCEPTING FINDINGS AND
13 v. RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
14 DR. SHERIF ABDOU,
15 Defendant.
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18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the operative Second
19 Amended Complaint, the records on file, and the Report and Recommendation of
20 the United States Magistrate Judge (“Report”). Further, the Court has engaged in a
21 de novo review of those portions of the Report to which objections have been made.
22 The Report recommends the grant of summary judgment for Defendant on
23 Plaintiff’s Eighth Amendment claims (Dkt. No. 91), the denial of Plaintiff’s Rule
24 56(h) motion (Dkt. No. 100), and dismissal of this action with prejudice. (Dkt. No.
25 111.) As explained below, Plaintiff’s Objections to the Report (Dkt. Nos. 115 and
26 120) do not warrant a change to the Report’s findings or recommendation.
27 Plaintiff objects that the Report overlooked that he raised a genuine dispute
28 of material fact through 46 factual exhibits and his verification. (Dkt. No. 115 at 2.)
1 As the Report recognized, however, the Central District’s Local Rule 56-4
2 expressly provides that “[t]he Court is not obligated to look any further in the
3 supporting evidence other than what is actually and specifically referenced in the
4 Statement of Uncontroverted Facts, the Statement of Genuine Disputes, and the
5 Response to Statement of Genuine Disputes.” (Dkt. No. 111 at 2 n.4.) Although
6 Plaintiff’s Opposition to the Motion for Summary Judgment did include citations to
7 the record (Dkt. No. 99), Plaintiff did not explain how the citations raised a genuine
8 dispute of material fact. In general, “[t]he ‘party opposing summary judgment must
9 direct [the court’s] attention to specific, triable facts,’ and the reviewing court is
10 ‘not required to comb through the record to find some reason to deny a motion for
11 summary judgment.’” Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1058 (9th Cir.
12 2009) (quoting Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885,
13 889 (9th Cir. 2003)).
14 Nonetheless, Plaintiff’s exhibits were reviewed by the Magistrate Judge (Dkt.
15 No. 111 at 3 n.5) and by this Court. The Court concurs with the Report that, even
16 after granting Plaintiff “the benefit of every justifiable inference, his claims – at
17 most – show a disagreement as to how his medical conditions should have been
18 addressed, which is insufficient to create a triable issue for a deliberate indifference
19 claim.” (Id. at 3.)
20 Plaintiff objects that he was denied equal protection because the Magistrate
21 Judge declined to appoint counsel for him. (Dkt. No. 115 at 2.) To the contrary,
22 the “exceptional circumstances” that would warrant the appointment of counsel—a
23 “likelihood of success on the merits” and an inability to articulate the claims “pro
24 se in light of the complexity of the legal issues involved”—were not present here.
25 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (internal citations omitted).
26 See also Dkt. Nos. 12, 31, and 48 (explaining why “exceptional circumstances”
27 were not present in this case).
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1 Plaintiff objects that, “if nothing else,” the Court should review medical
2 records showing that his Losartan dosage was 150 mg daily, rather than 100 mg
3 daily, as Defendant claimed. (Dkt. No. 115 at 3.) As the Report found, however,
4 “whether or not Plaintiff was prescribed 150 mg of Losartan [prior to his treatment
5 by Defendant] is irrelevant to this case.” (Dkt. No. 111 at 29.) Such evidence
6 would “not show that a prescription for 100 mg of Losartan daily was medically
7 unacceptable or that [Defendant] chose that dosage in the knowledge that the lower
8 dose presented an excessive risk to Plaintiff’s health. In fact, it did not.” (Id.) As
9 the Magistrate Judge explained in the Report: “Plaintiff’s blood pressure was
10 generally well controlled at Ironwood. The one time where his blood pressure was
11 not well controlled was after Plaintiff had refused to take Losartan at all for four
12 days in a row because he was upset that his Meclizine prescription was being
13 gradually reduced and discontinued. After Plaintiff began taking Losartan regularly
14 again, his blood pressure stabilized.” (Id. at 19-30.)
15 Plaintiff objects that the Report misstated he was in a wheelchair due to
16 chronic dizziness, rather than severe mobility restrictions. (Dkt. No. 115 at 3.)
17 This objection does not overcome the Report’s reasonable finding that Defendant’s
18 decision to gradually discontinue Plaintiff’s prescription for Meclizine, whose side
19 effects include dizziness and which is contraindicated for patients over 65 years old,
20 was not deliberately indifferent. (Dkt. No. 111 at 27-28.)
21 Plaintiff objects that the Report used the unsworn statements of nurses to
22 disparage Plaintiff’s credibility. (Dkt. No. 115 at 3.) To the contrary, the Report
23 made no credibility assessments. (Dkt. No. 111.)
24 Plaintiff objects that Defendant knew Plaintiff had fallen and remained
25 deliberately indifferent. (Dkt. No. 115 at 4.) The Report recognizes the record
26 submitted by Plaintiff that “reflect[s] that Defendant was notified on April 12, 2021
27 that Plaintiff had fallen.” (Dkt. No. 111 at 21.) As the Report found, however,
28 even assuming that Defendant was aware of the fall, which he denies, Defendant
1 would not have changed his mind about Plaintiff’s prescriptions, “given how his
2 fall is likely to have been a symptom caused by excessive doses of medication.”
3 (Id. at 22; Dkt. No. 91-1 at 13, ¶ 81.) Plaintiff has not shown how such an
4 assessment was medically unacceptable under the circumstances.
5 Plaintiff objects that he should be allowed additional discovery for his
6 medical records. (Dkt. No. 115 at 4.) As the Report reasonably found, however,
7 the reopening of discovery is unwarranted. (Dkt. No. 111 at 29.) Specifically,
8 medical records about the treatment Plaintiff received before Defendant began
9 treating Plaintiff would not show that Defendant’s decision to reduce or gradually
10 eliminate some of Plaintiff’s medications was medically unacceptable under the
11 circumstances.
12 Plaintiff objects that, once Plaintiff’s vertigo and pain returned due to
13 Defendant changing Plaintiff’s medications, Defendant did nothing to correct the
14 suffering. (Dkt. No. 115 at 5.) To the contrary, Defendant authorized alternative
15 treatments and then closely monitored Plaintiff’s care by seeing him four times in
16 less than two months and educating Plaintiff as to the reasons for the course of
17 treatment. (Dkt. No. 111 at 32.)
18 Plaintiff raises a series of objections that, in effect, argue that the Report
19 made “errors of facts” about his medical history. (Dkt. No. 115 at 5-8.) None of
20 these alleged errors call into question the Report’s ultimate conclusion that Plaintiff
21 failed to raise a triable issue that Defendant’s treatment decisions were medically
22 unacceptable under the circumstances.
23 Plaintiff objects that the Report overlooked evidence in determining the
24 summary judgment motion. (Dkt. No. 115 at 8-10.) To the contrary, even after
25 drawing every justifiable inference in Plaintiff’s favor, the evidence shows, at most,
26 “a disagreement as to how his medical conditions should have been addressed,
27 which is insufficient to create a triable issue for a deliberate indifference claim.”
28 (Dkt. No. 111 at 3.)
1 Plaintiff objects that “patients have the right to make their own health care
2 decisions,” including the “right to refuse certain kinds of medical care.” (Dkt. No.
3 115 at 10-16.) This case, however, was never about Plaintiff’s right to refuse
4 certain kinds of medical care. Instead, it was about Plaintiff’s insistence on
5 receiving drugs that Defendant, a prison physician, believed were medically
6 inappropriate. As the Report recognized, a “difference of opinion between a
7 physician and the prisoner – or between medical professionals – concerning what
8 medical care is appropriate does not amount to deliberate indifference.” (Dkt. No.
9 111 at 18 (quoting Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016)).
10 Plaintiff objects that his motion to extend discovery under Federal Rule of
11 Civil Procedure 56(h) was to prove that Defendant had made false statements about
12 Plaintiff’s fall and to obtain records regarding Plaintiff’s past use of Meclizine.
13 (Dkt. No. 115 at 16.) This objection does not overcome the Report’s finding that
14 further discovery would leave undisturbed the conclusion that the “purported
15 misrepresentations that Plaintiff accuses [Defendant] of making did not have a
16 dispositive effect[.]” (Dkt. No. 111 at 22.) Specifically, even assuming that
17 Defendant had been aware of Plaintiff’s fall, Defendant would not have changed his
18 mind about Plaintiff’s Meclizine prescription, “given how his fall is likely to have
19 been a symptom caused by excessive doses of medication.” (Dkt. No. 111 at 22;
20 Dkt. No. 91-1 at 13, ¶ 81.) Plaintiff has not shown how such an assessment was
21 medically unacceptable under the circumstances.
22 Plaintiff similarly objects that he has been assigned the “absurd burden” of
23 showing that Defendant knew of Plaintiff’s fall risk. (Dkt. No. 115 at 17.) But the
24 Report assumed, for purposes of argument, that Defendant was aware of Plaintiff’s
25 fall, yet reasonably concluded that Defendant would not have changed his mind
26 about Plaintiff’s prescriptions, “given how his fall is likely to have been a symptom
27 caused by excessive doses of medication.” (Dkt. No. 111 at 22; Dkt. No. 91-1 at
28 13, ¶ 81.)
1 Plaintiff objects that Defendant was deliberately indifferent for changing
2 Plaintiff’s medications. (Dkt. No. 115 at 18-21.) This objection fails to overcome
3 the Report’s detailed findings that Plaintiff established, at most, a disagreement
4 with Defendant about the proper course of treatment, which does not create a triable
5 issue for a deliberate indifference claim.
6 Plaintiff objects that Defendant is not entitled to qualified immunity because
7 Plaintiff had a right to decide his own medical care. (Dkt. No. 115 at 22-28.) To
8 the contrary, as the Report recognized, Plaintiff established only that he had a
9 difference of opinion with his doctor, which does not create a triable issue for a
10 deliberate indifference claim. (Dkt. No. 111 at 3, 18.)
11 Plaintiff further objects in his Reply to Defendant’s Response to Plaintiff’s
12 Objections to the Report and Recommendation that, contrary to Defendant’s
13 representations, his initial objections to the Report were timely filed. (Dkt. No. 120
14 at 1.) The Court has considered the substance of Plaintiff’s objections in their
15 entirety, without any regard to whether they were timely filed.
16 Plaintiff objects that, contrary to Defendant’s assertions, he did not testify
17 falsely about his medication. (Dkt. No. 120 at 2.) As stated previously, the Report
18 made no credibility assessments. (Dkt. No. 111.)
19 Plaintiff objects that his medical records from different prisons raise a
20 genuine issue of material fact for his deliberate indifference claim. (Dkt. No. 120 at
21 2-3.) As stated previously, Plaintiff established only that he had a difference of
22 opinion with his doctor, which does not create a triable issue for a deliberate
23 indifference claim. (Dkt. No. 111 at 3, 18.)
24 Plaintiff objects that Defendant’s medical decisions were “not reasonable.”
25 (Dkt. No. 120 at 4.) This conclusory objection fails to raise a triable issue. Plaintiff
26 has not presented evidence showing that Defendant’s medical decisions were
27 “medically unacceptable” or made with the knowledge they would present “an
28 excessive risk to Plaintiff’s health.” (Dkt. No. 111 at 29.)
1 In sum, Plaintiff's objections are overruled.
2 IT IS ORDERED that (1) the Report and Recommendation is accepted (Dkt.
3 || No. 111); (2) Plaintiff's motion to deny summary judgment in order to extend
4 || discovery under Rule 56(h) is denied (Dkt. No. 100); (3) Defendant’s motion for
5 || summary judgment is granted (Dkt. No. 91); and (4) Judgment shall be entered
6 || dismissing this action with prejudice.
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8 || DATED: May 31, 2024
9 □
10 K. AtC—
NPRICA RAMIREZ AEMADANT.
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