(PC) Moore v. Diaz

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 STEVEN PAUL MOORE, Case No. 1:20-cv-01089-KES-HBK (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO

GRANT DEFENDANT’S MOTION FOR

13 v. SUMMARY JUDGMENT1

14 NKIRUKA AKABIKE,

FOURTEEN-DAY OBJECTION PERIOD

15 Defendant.

(Doc. No. 38)

16

17 Pending before the Court is Defendant’s Motion for Summary Judgment. (Doc. No. 38,

18 “MSJ”). For the reasons set forth below, the undersigned finds that no genuine dispute of

19 material fact exists as to whether Defendant acted with deliberate indifference to Plaintiff’s

20 serious medical condition. Therefore, the Court recommends that Defendant’s MSJ be granted

21 I. BACKGROUND

22 A. Procedural History

23 Plaintiff Steven Paul Moore, a state prisoner, is proceeding pro se and in forma pauperis

24 on his Complaint filed under 42 U.S.C. § 1983. (Doc. No. 1). On December 13, 2022, this Court

25 issued a screening order for Plaintiff’s Complaint. (Doc. No. 13). As discussed in the Court’s

26 December 13, 2022 Screening Order, the Complaint stated a cognizable Eighth Amendment

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1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302

28 (E.D. Cal. 2023).

1 claim for medical deliberate indifference to Plaintiff’s medical needs against Defendant Dr.

2 Nkiruka Ndu, formerly known as Dr. Nkiruka Akabike,2 but no other claim. (See id. at 4–6). On

3 December 30, 2022, Plaintiff filed his response to December 13, 2022 Screening Order, stating he

4 wished to voluntarily dismiss Defendant Diaz and his American Disabilities Act (“ADA”) and

5 Rehabilitation Act (“RA”) claims. (Doc. No. 14). In accordance with Plaintiff’s response, the

6 Court voluntarily dismissed Defendant Diaz and his ADA and RA claims. (Doc. No. 15). On

7 December 10, 2024, Defendant filed a merits-based Motion for Summary Judgment on the

8 remaining claim against her. (Doc. No. 38). Plaintiff filed his Objection to Summary Judgment3

9 (Doc. No. 41) and Defendant filed a Reply (Doc. No. 42).

10 B. Defendant’s MSJ

11 Supporting her MSJ, Defendant submits: (1) a memorandum of points and authorities

12 (Doc. No. 38); (2) a separate statement of undisputed facts (Doc No. 38-1); (3) the sworn

13 declaration of N. Ndu (Doc. No. 38-2); (4) Exhibits A-G to the declaration of N. Ndu (Doc. No.

14 38-3); (5) the sworn declaration of D. Gamez (Doc. No. 38-4); (6) Exhibit A to the declaration of

15 D. Gamez (Doc. No. 38-5); (7) the sworn declaration of N. Guerrero (Doc. No. 38-6); (8) Exhibit

16 A to the declaration of N. Guerrero (Doc. No. 38-7); and (9) Defendant’s Rand Warning to

17 Plaintiff (Doc. No. 38-8). Plaintiff’s Objection to Summary Judgment includes (1) a response to

18 Defendant’s separate statement of undisputed facts and (2) Plaintiff’s separate statement of

19 undisputed facts. (Doc. No. 41).

20 II. APPLICABLE LAW

21 A. Summary Judgment Standard

22 The “purpose of summary judgment is to pierce the pleadings and to assess the proof in

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2 Defendant’s last name was changed from Akabike to Ndu during her treatment of Plaintiff. (Doc. No.

24 38-2 at 2, ¶ 3).

3 On January 6, 2025, Plaintiff filed an unsigned and undated objection to Defendant’s Motion for

25 Summary Judgment. (Doc. No. 40). On January 10, 2025, Plaintiff filed a nearly identical pleading that

was signed and dated. (Doc. No. 41). Although these pleadings are nearly identical, the Court will only

26 consider the January 10, 2025 filing. See Fresno Rock Taco, LLC v. Nat'l Sur. Corp., No. CV F 11-0845

LJO BAM, 2012 WL 3260418, at *7 (E.D. Cal. Aug. 8, 2012) (refusing to consider unsigned declaration

27 on summary judgment); Blaine v. Adams, No. 1:05-CV-00088 DGC, 2009 WL 2824743, at *2 (E.D. Cal.

Sept. 1, 2009) (same); see also Anderson v. Krpan, No. 1:14-CV-01380 AWI, 2015 WL 402086, at *2

28 (E.D. Cal. Jan. 29, 2015) (“The Court cannot consider unsigned filings . . .”).

1 order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. Ltd. v. Zenith

2 Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). Summary judgment is appropriate

3 when there is “no genuine dispute as to any material fact and the movant is entitled to judgment

4 as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment should be entered “after adequate

5 time for discovery and upon motion, against a party who fails to make a showing sufficient to

6 establish the existence of an element essential to that party’s case, and on which that party will

7 bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The

8 moving party bears the “initial responsibility” of demonstrating the absence of a genuine issue of

9 material fact. Id. at 323. An issue of material fact is genuine only if there is sufficient evidence

10 for a reasonable fact finder to find for the non-moving party, while a fact is material if it “might

11 affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477

12 U.S. 242, 248 (1986).

13 If the moving party meets its initial burden, the burden then shifts to the opposing party

14 to present specific facts that show there to be a genuine issue of a material fact. See Fed R. Civ.

15 P. 56(e); Matsushita, 475 U.S. at 586. An opposing party “must do more than simply show that

16 there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 587. The

17 party is required to tender evidence of specific facts in the form of affidavits, and/or admissible

18 discovery material, in support of its contention that a factual dispute exists. Fed. R. Civ. P.

19 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party is not required to establish a

20 material issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be

21 shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.”

22 T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir.

23 1987). However, “failure of proof concerning an essential element of the nonmoving party’s

24 case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323.

25 The court must apply standards consistent with Rule 56 to determine whether the

26 moving party demonstrated there is no genuine issue of material fact and showed judgment to be

27 appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993).

28 “[A] court ruling on a motion for summary judgment may not engage in credibility

1 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir.

2 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the

3 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving

4 party. Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002). A mere scintilla

5 of evidence is not sufficient to establish a genuine dispute to defeat an otherwise properly

6 supported summary judgment motion. Anderson., 477 U.S. at 252. However, where “opposing

7 parties tell two different stories, one of which is blatantly contradicted by the record” courts

8 “should not adopt that version of the facts for purposes of ruling on a motion for summary

9 judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

10 Plaintiff’s verified complaint may serve as an affidavit in opposition to summary

11 judgment if based on personal knowledge and specific facts admissible in evidence. Lopez v.

12 Smith, 203 F.3d 1122, 1132 n. 14 (9th Cir. 2000) (en banc). However, a complaint’s conclusory

13 allegations unsupported by specific facts, will not be sufficient to avoid summary judgment.

14 Arpin v. Santa Clara Valley Transportation Agency, 261 F.3d 912, 922 (9th Cir. 2001). And,

15 where a plaintiff fails to properly challenge the facts asserted by the defendant, the plaintiff may

16 be deemed to have admitted the validity of those facts. See Fed. R. Civ. P. 56(e)(2).

17 The undersigned has carefully reviewed and considered all arguments, points and

18 authorities, declarations, exhibits, statements of undisputed facts and responses thereto, if any,

19 objections, and other papers filed by the parties. The omission to an argument, document, paper,

20 or objection is not to be construed that the undersigned did not consider the argument, document,

21 paper, or objection. Instead, the undersigned thoroughly reviewed and considered the evidence it

22 deemed admissible, material, and appropriate for purposes of issuing these Findings and

23 Recommendations.

24 B. Eighth Amendment Medical Deliberate Indifference

25 The Constitution requires prison officials to provide inmates with reasonably adequate

26 medical care. Estelle v. Gamble, 429 U.S. 97, 103 (1976). To hold an official liable for violating

27 this duty under the Eighth Amendment, the inmate must satisfy two prongs, an objective prong

28 and subjective prong. First, the inmate must suffer from a serious medical need (the objective

1 prong); and second the official must be deliberately indifferent to the inmate’s serious medical

2 need (the subjective prong). Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled in

3 part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082–83 (9th Cir. 2014); Wilhelm v.

4 Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012). A medical need is “serious” if the failure to treat

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

6 v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal citations omitted). The “second prong—

7 defendant’s response to the need was deliberately indifferent—is satisfied by showing (a) a

8 purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) harm

9 caused by the indifference.” Id. (internal citations omitted). This standard requires that the

10 prison official must not only “be aware of facts from which the inference could be drawn that a

11 substantial risk of serious harm exists,” but that person “must also draw the inference.” Farmer v.

12 Brennan, 511 U.S. 825, 837 (1994). “If a [prison official] should have been aware of the risk, but

13 was not, then the [official] has not violated the Eighth Amendment, no matter how severe the

14 risk.” Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002). This

15 “subjective approach” focuses only “on what a defendant’s mental attitude actually was.”

16 Farmer, 511 U.S. at 839.

17 Deliberate indifference is a higher standard than medical negligence or malpractice, and a

18 difference of opinion between medical professionals—or between a physician and the prisoner—

19 generally does not amount to deliberate indifference. See generally Toguchi v. Chung, 391 F.3d

20 1051 (9th Cir. 2004); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (A mere “difference

21 of medical opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference.”).

22 To prevail on a claim involving choices between alternative courses of treatment, a prisoner must

23 show that the chosen course of treatment “was medically unacceptable under the circumstances,”

24 and was chosen “in conscious disregard of an excessive risk to [the prisoner’s] health.” Jackson,

25 90 F.3d at 332.

26 Neither will an “inadvertent failure to provide medical care” sustain a claim. Estelle, 429

27 U.S. at 105. Misdiagnosis alone is not a basis for a claim, see Wilhelm, 680 F.3d at 1123, and a

28 “mere delay” in treatment, “without more, is insufficient to state a claim of deliberate medical

1 indifference,” Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985).

2 Instead, a prisoner must show that a delay “would cause significant harm and that defendants

3 should have known this to be the case.” Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002).

4 III. ANALYSIS

5 A. Allegations in Plaintiff’s Complaint

6 Plaintiff, a state prisoner currently confined at the California Substance Abuse Treatment

7 Facility (“SATF”), operated by the California Department of Corrections and Rehabilitation,

8 brings this action under 42 U.S.C. § 1983 against Defendant Dr. Nkiruka Ndu, a medical doctor at

9 the facility. (Doc. No. 1 at 1). Plaintiff asserts that Defendant acted with deliberate indifference

10 to his serious medical needs by denying him (1) orthotics or orthopedic shoes4 and (2) a light-

11 duty work chrono, in violation of the Eighth Amendment. (Id. at 2–4).

12 Plaintiff alleges he “suffers from severe crippling foot pain, toe pain, ganglionic cysts,

13 onychomycosis, onychocryptosis, paronychia, and edema.” (Id. at 4). On February 14, 2019,

14 Defendant denied Plaintiff’s request for orthotics, a recommendation previously made by

15 specialist Dr. Zorrilla on July 11, 2018, and approved by Dr. Hails, Plaintiff’s prior primary care

16 physician. (Id. at 3). Dr. Hails had issued a permanent medical chrono for durable medical

17 equipment authorizing orthopedic shoes and insoles. (Id.). Despite these prior medical

18 determinations, Defendant denied Plaintiff’s request and told him that “there was no such thing as

19 a permanent chrono” while refusing to acknowledge Plaintiff’s documented medical necessity.

20 (Id. at 4). Defendant informed Plaintiff that “due to state medical costs she was ordered to re-

21 evaluate [sic] everyone who requested new orthotics.” (Id.)

22 Plaintiff experiences pain twenty-four hours a day. (Id.). Notably, Plaintiff “is forced to

23 perform his job assignment which causes him to be on his feet almost all day long, and to lift

24 heavy boxes, without orthopedic shoes and support insoles, which causes [Plaintiff] extremely

25 severe crippling pain.” (Id.). Despite informing Defendant of his condition, Plaintiff contends

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27 4 The Complaint and record reference orthotics, orthopedic shoes, and therapeutic shoes interchangeably.

The Court frequently refers to these medical accommodations as orthotics for the sake of simplicity in this

28 order.

1 that she also refused to issue a light-duty chrono, which could have mitigated his physical

2 distress. (Id.). For relief, Plaintiff requests a declaratory judgment; an award of monetary

3 damages, compensatory damages, and punitive damages in an amount determined by the court;

4 the costs of the suit; and any further relief deemed appropriate. (Id. at 8).

5 B. Undisputed Material Facts

6 In support of her MSJ, Defendant submits a Separate Statement of Undisputed Facts

7 (“SSUF”). (Doc. No. 38-1). Each listed fact in Defendant’s SSUF cites to sworn declarations,

8 medical records, deposition testimony, or the Complaint. (See generally Doc. Nos. 1, 38-2, 38-3,

9 38-4, 38-5, 38-6, 38-7). In his Objection to Summary Judgment, Plaintiff includes a response to

10 Defendant’s SSUF and his own statement of undisputed facts. (Doc. No. 41).

11 By his Objection to Summary Judgment, Plaintiff contests nearly all of Defendant’s

12 material facts listed in her SSUF by making “objections” and providing a brief explanation to

13 support their basis. (Doc. No. 41 at 2–3). Many of these objections are based on: (1) Plaintiff’s

14 lack of medical or legal expertise;5 (2) the assertion that the “medical records relied upon [in

15 Defendant’s SSUF] are self-serving documents;” and (3) Plaintiff’s statement that “[he]

16 complained of foot and leg pain at all medical visits [with Defendant].” (Id.). Nearly all of

17 Plaintiff’s objections and undisputed facts lack evidentiary support. (See id. at 2–4).

18 Where Plaintiff’s response to Defendant’s SSUF or his statement of undisputed facts are

19 based solely on conclusory statements or the Complaint, and lacks detailed facts, while Defendant

20 provides detailed facts or documentary evidence in support, the Court generally does not find

21 Plaintiff’s objections or statements of fact sufficient to establish a genuine dispute of material

22 fact. See Lopez v. Smith, 203 F.3d 1122, 1132 n.14 (9th Cir. 2000) (en banc); see also FTC v.

23 Publishing Clearing House, 104 F.3d 1168, 1171 (9th Cir. 1997) (“A conclusory, self-serving

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25 5 The Court denied Plaintiff’s motion to appoint counsel because he failed to satisfy the burden required

for such an appointment in a civil matter under the circumstances. (See Doc. No. 15). The Court also

26 notes that Plaintiff never moved to appoint a neutral expert, nor does this case warrant such an

appointment because this action is not sufficiently complex to require one. See, e.g., Wilkins v. Barber,

27 562 F. Supp. 3d 943, 947 (E.D. Cal. 2021) (denying appointment of a neutral expert witness where the

plaintiff’s alleged medical deliberate indifference claims included, inter alia, the discontinuation of an

28 orthopedic shoe prescription).

1 affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine

2 issue of material fact.”). Having reviewed the record, the undersigned finds the following facts to

3 be material and undisputed, unless otherwise noted.

4 • Plaintiff Steven Paul Moore is prisoner confined at the California Substance Abuse

5 Treatment Facility (“SATF”), operated by the California Department of Corrections and

6 Rehabilitation, at the time of the events giving rise to Plaintiff’s claim. (Doc. No. 1 at 1).

7 • Defendant Dr. Ndu (formerly Dr. Akabike) was a physician at SATF at the time of the

8 events giving rise to Plaintiff’s claim. (Doc. No. 1 at 3; Doc. No. 38-2 at 1–2, ¶¶ 1, 3).

9 • On or about July 11, 2018, Plaintiff was seen by specialist Dr. Zorrilla, who recommended

10 he wear orthopedic shoes and insoles. Dr. Hails, Plaintiff’s former primary care physician

11 (“PCP”), subsequently issued Plaintiff a medical authorization for orthopedic footwear

12 (“2018 Orthotics Order”). (Doc. No. 1 at 3; Doc. No. 41 at 4).

13 • Orthotics are devices used to support, align, or improve the function of body parts affected

14 by injury, deformity, or disability. (Doc. No. 38-2 at 2, ¶ 4).

15 • In his Complaint, Plaintiff alleged that Defendant told him “there was no such thing as a

16 permanent chrono” that would necessitate specific medical equipment being issued. (Doc.

17 No. 1 at 4). But, at his deposition, Plaintiff clarified that Defendant did not actually say

18 permanent chronos do not exist, but rather told Plaintiff he did not need the requested

19 shoes. (Moore Depo. Tr. at 27:24–28:11, Doc. No. 38-7).6 Thus, the allegation in the

20 Complaint is refuted by Plaintiff’s deposition testimony.

21 • In his Complaint, Plaintiff alleged that Defendant was ordered to reevaluate everyone who

22 requested orthotics due to state cost considerations. (Doc. No. 1 at 4). But, at his

23 deposition, Plaintiff testified that he did not recall Defendant mentioning the reevaluation

24 for medical costs. Plaintiff further noted that he believed everybody was being evaluated

25 regarding their durable medical equipment supplies. (Moore Depo. Tr. 32:20–33:14) thus,

26 the allegation in the Complaint is refuted by Plaintiff’s deposition testimony.

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6 The Court refers throughout this Order to the complete deposition transcript lodged with the Court

28 pursuant to Local Rule 133(j).

1 • Generally, physicians are assigned based on inmate-patient placements at the facility.

2 Defendant was Plaintiff’s PCP from January 17, 2019 to March 10, 2022. (Doc. No. 38-2

3 at 1, ¶ 1).

4 • During the first evaluation on January 17, 2019, Defendant observed that Plaintiff had

5 been treated for his right foot, as Plaintiff had a ganglion cyst. Plaintiff’s prior treatment

6 included a steroid injection. (Doc. No. 38-2 at 2, ¶ 3; Doc. No. 38-3 at 2–3).

7 • A ganglion cyst is a typically benign fluid-filled lump that may cause discomfort. (Doc.

8 No. 38-2 at 2 ¶ 3).

9 • Treatment for ganglion cysts may vary from observation to surgical removal (excision).

10 (Doc. No. 38-2 at 2, ¶ 3).

11 • During the January 17, 2019 evaluation, upon inspecting Plaintiff’s foot, Defendant

12 determined that no further action was medically necessary, as Plaintiff stated he had been

13 pain-free since the injection. (Doc. No. 38-2 at 2, ¶ 3; Doc. No. 38-3 at 2–3).

14 • During the initial January 17, 2019 evaluation, Plaintiff did not voice any further

15 complaints. (Doc. No. 38-2, ¶ 3; Doc. No. 38-3 at 2–3).

16 • On February 14, 2019 Defendant evaluated Plaintiff again. Plaintiff requested a referral

17 for orthotics for his right foot. Defendant examined Plaintiff’s foot and did not observe

18 any evidence of pain or deformity. Plaintiff denied having ankle pain or deformity. (Doc.

19 No. 38-2 at 2, ¶ 4; Doc No. 38-3 at 5–6).

20 • The referrals Plaintiff sought, whether for medical equipment like orthotics or orthopedic

21 shoes or for a specialist consultation, required a determination of medical necessity by the

22 PCP. (Doc. No. 38-2 at 2–3, ¶ 5).

23 • In Defendant’s professional medical opinion, no medical necessity existed for the referrals

24 or treatment Plaintiff had requested in this case. (Doc. No. 38-2 at 2–3, ¶ 5).

25 • At Plaintiff’s deposition, he recalled Defendant requesting to see his foot and determining

26 at that time that Plaintiff did not require orthotics or orthopedic shoes. (Moore Depo. Tr.

27 at 24:19–25:5).

28 • Defendant continued to see and treat Plaintiff throughout 2019 and 2020 for various issues

1 including concerns about hypertension, follow-ups related to medication, Plaintiff’s

2 concerns regarding lumps on his shoulders, and COVID-19. During these visits, Plaintiff

3 voiced no further complaints about his foot. (Doc. No. 38-2 at 3, ¶7; Doc. No. 38-3 at 8–

4 13).

5 • Plaintiff’s medical records indicate that he went to the Triage and Treatment Area

6 (“TTA”) on October 10, 2019, and was seen by Dr. Bass and Dr. Scharffenberg for

7 concerns regarding his right foot and to request a podiatrist who could perform aspiration

8 and injection treatment. Dr. Bass and Dr. Scharffenberg discussed the matter with Plaintiff

9 and deferred any procedures related to Plaintiff’s foot. (Doc. No. 38-4 at 2, ¶ 3; Doc. No.

10 38-5 at 2).

11 • The TTA functions as an urgent care clinic at the facility, where patients can receive

12 treatment and undergo procedures and evaluations. (Doc. No. 38-2 at 4, ¶ 8).

13 • At the TTA on October 10, 2019, Plaintiff wore his personal shoes and told Dr. Bass and

14 Dr. Scharffenberg that he was satisfied with them. (Doc. No. 38-4 at 2, ¶ 3; Doc. No. 38-

15 5 at 2).

16 • Defendant saw Plaintiff on July 15, 2021, for treatment of the cyst on his right foot, at

17 which time Plaintiff requested excision of the cyst. Defendant referred Plaintiff to the

18 procedure clinic at the TTA for evaluation of his foot and ordered an x-ray to determine

19 the medical necessity of excision. (Doc. No. 38-2 at 4, ¶ 8; Doc. No. 38-3 at 15–16).

20 • During the July 15, 2021 consultation, Plaintiff’s medical charts indicated that he was

21 experiencing intermittent hypertension, for which he refused to take blood pressure

22 medication. (Doc. No. 38-2 at 4, ¶ 8; Doc. No. 38-3 at 15–16).

23 • Defendant saw Plaintiff again on October 13, 2021, at which time Plaintiff continued to

24 refuse blood pressure medication and denied any other issues. Plaintiff stated that he did

25 not go to the procedure clinic for treatment of his cyst. (Doc. No. 38-2 at 4, ¶ 9; Doc. No.

26 38-3 at 18–19).

27 • Plaintiff’s medical records indicate that on January 20, 2022 he saw another medical

28 provider, Physician Assistant Mbadugha. Plaintiff informed the provider that he had

1 bilateral arch pain in his foot and had been experiencing it for five years. (Doc. No. 38-2

2 at 4, ¶ 10; Doc. No. 38-3 at 21–22).

3 • Plaintiff had not informed Defendant of his foot pain in the years prior. Defendant was

4 unaware of this pain until observing the progress note by another physician on January 20,

5 2022. (Doc. No. 38-2 at 4, ¶ 10)

6 • Defendant saw Plaintiff for the last time on March 10, 2022. Because Plaintiff refused

7 new x-rays of his foot, Defendant reviewed the x-ray taken during Plaintiff’s podiatry visit

8 in May 2018. In Defendant’s medical opinion, the x-ray was unremarkable. Nonetheless,

9 Defendant ordered therapeutic shoes for Plaintiff based on his complaints of bilateral foot

10 pain. (Doc. No. 38-2 at 4–5, ¶ 11; Doc. No. 38-3 at 24–25).

11 C. Eighth Amendment Medical Deliberate Indifference

12 The Court first must consider whether Defendant, as the moving party, has met her initial

13 burden of showing prima facie entitlement to summary judgment on the issue of Plaintiff’s

14 medical deliberate indifference claim. Celotex Corp., 477 U.S at 323. The prima facie elements

15 of medical deliberate indifference are (1) a “serious medical need[,] [where] failure to treat a

16 prisoner’s condition could result in further significant injury or the unnecessary and wanton

17 infliction of pain” and (2) the defendant’s “response to the need was deliberately indifferent.”

18 Wilhelm, 680 F.3d at 1122 (internal quotation marks and citation omitted). The second prong is

19 satisfied by showing “(a) a purposeful act or failure to respond to a prisoner’s pain or possible

20 medical need and (b) harm caused by the indifference.” Jett, 439 F.3d at 1096 (internal citations

21 omitted).

22 1. Serious Medical Need

23 Defendant argues that Plaintiff did not have a serious medical need because he never

24 raised any concerns about pain during his visits with Defendant. (Doc. No. 38 at 10). Defendant

25 further argues that “[a]t least as it relates to [Plaintiff’s] ganglion cyst, [he] did not have a serious

26 medical need.” (Id. at 11 (citing Walker v. Aranas, 2012 WL 3230561 (D. Nev. June 20, 2012),

27 and then citing Solvey v. Zepp, 2023 WL 5917993 (E.D. Cal. Sept. 11, 2023))). However,

28 Plaintiff’s Complaint asserts that his pain did not stem solely from a cyst. Rather, Plaintiff

1 alleges that he “suffers from severe crippling foot pain, toe pain, ganglionic cysts,

2 onychomycosis, onychocryptosis, paronychia, and edema.” (Doc. No. 1 at 4).

3 On January 17, 2019, during their first visit, when Plaintiff requested a referral for

4 orthotics, Defendant was aware that Plaintiff had received a steroid injection on July 2, 2018 for

5 treatment of his right foot. (Doc. No. 38-3 at 2). Additionally, Defendant’s progress notes from

6 January 17, 2019 and February 14, 2019 indicate that Plaintiff had “mild talonavicular joint

7 arthritis.” (Doc. No. 38-3 at 2–3, 5–6). Although Plaintiff did not report to Defendant any degree

8 of discomfort or pain on those days, the record reflects that he had ongoing issues affecting his

9 right foot. See Washington v. Brown, 2009 WL 160311, at *14 (E.D. Cal. Jan. 21, 2009)

10 (undisputed that “chronic arthritis constitutes a serious medical need”), report and

11 recommendation adopted, 2009 WL 532615 (E.D. Cal. Mar. 3, 2009); see also Hollis v. Lee,

12 2007 WL 963319, at *7 (N.D. Cal. Mar. 30, 2007) (finding triable issue of fact as to whether the

13 plaintiff’s foot pain constituted a serious medical need when the plaintiff’s doctor previously

14 prescribed orthotics), aff’d sub nom. Hollis v. Barrie, 321 F. App’x 677 (9th Cir. 2009); Lopez v.

15 Scribner, 2007 WL 184831, at *9 (E.D. Cal. Jan. 23, 2007) (finding triable issue of fact as to

16 whether the plaintiff’s foot condition constituted a serious medical need where the plaintiff had

17 been prescribed orthotics dating back to 1993), report and recommendation adopted, 2007 WL

18 781432 (E.D. Cal. Mar. 13, 2007). The Court thus assumes, for purposes of this MSJ, whether

19 Plaintiff had a serious medical need during the relevant time, even if it was a chronic or semi-

20 chronic condition rather than an issue related solely to Plaintiff’s ganglionic cysts, is a question of

21 fact.

22 2. Deliberate Indifference

23 Turning to the second prong, the Court examines whether Defendant acted with deliberate

24 indifference to Plaintiff’s serious medical needs by denying him (1) orthotics or orthopedic shoes

25 and (2) a light-duty work chrono. The Court first examines the orthotics-related issues.

26 Plaintiff attributes liability to Defendant due her failure to order new orthotics on February

27 14, 2019, as previously authorized by Dr. Zorrilla and Dr. Hails on or around July 18, 2018

28 (“2018 Orthotics Order”). (Doc. No. 1 at 3–4; Doc. No. 41 at 4). Raised for the first time in his

1 Objection to Summary Judgment, Plaintiff argues that because he was unable to receive new

2 orthotics, he sought medical attention in July 2022 for his torn menisci in both of his knees and

3 underwent left knee surgery in July 2024. (See Doc. No. 41 at 4; see also Moore Depo. Tr. at

4 18:25–19:19). After reviewing Plaintiff’s Complaint, Objection to Summary Judgment, and

5 deposition, Plaintiff’s medical deliberate indifference claim can be distilled into two core

6 contentions: Defendant acted with deliberate indifference because (1) she denied Plaintiff

7 orthotics despite being aware of his constant pain, and (2) she disregarded the prior 2018

8 Orthotics Order.

9 Defendant argues that she exercised her medical judgment in treating Plaintiff,

10 determining that no further intervention was necessary based on her personal observations and

11 Plaintiff’s own statements regarding his pain levels. (Doc. No. 38 at 12). Despite Plaintiff’s

12 preference for orthotics, Defendant concluded that they were not medically required during the

13 relevant period. (Id.). While her assessment may have differed from Plaintiff’s previous primary

14 care provider, she maintains that her determination remained medically acceptable given the

15 information available to her at the time. (Id.). For the following reasons, the Court agrees with

16 Defendant.

17 As to Plaintiff’s first core contention, the Court finds that Defendant was not deliberately

18 indifferent to Plaintiff’s serious medical condition because the undisputed facts and evidence in

19 the record reflect that Plaintiff did not disclose to Defendant that he was in pain until March 10,

20 2022, at which time she ordered him new orthotics. (See Doc. No. 38-3 at 24–25). During his

21 deposition, Plaintiff testified that he told Defendant his feet were in pain “every time [he was] in

22 front of her.” (Moore Depo. Tr. at 13:5–17). However, in sharp contrast to his testimony, the

23 record indicates that Plaintiff did not inform Defendant that he suffered any foot pain prior to

24 March 10, 2022,7 the date on which Defendant ordered Plaintiff new orthotics. (See Doc. No. 38-

25 3 at 2–3 (“got steroid injection to right foot and has been pain free,” “He has no complaints.”); 5–

26

27 7 The dates Defendant evaluated Plaintiff prior to March 10, 2022 include January 17, 2019, February 14,

2019, July 16, 20219, January 8, 2020, March 19, 2020, July 6, 2020, December 24, 2020, July 15, 2021,

28 and October 13, 2021. (See Doc. No. 38-3 at 2–3, 5–6, 8–13, 15–16, 18–19).

1 6 (“denies ankle pain or deformity,” “has been pain free,” “He has no complaint.”); 8–13 (“no

2 joint pain or swelling,” “states he is doing well and no complaint”); 15–16 (“ganglion cyst of

3 right foot,” “referred patient to procedure clinic for evaluation”); 18–19 (“no joint pain or

4 swelling,” “patient said he has not been to procedure clinic for ganglion cyst right foot,” “follow

5 up on procedure clinic referral”); 24–25 (“bilateral foot pain,” “ordered therapeutic shoes”).

6 Additionally, on October 10, 2019, Plaintiff was seen by Dr. Bass and Dr. Scharffenberger at his

7 Triage and Treatment Area (“TTA”) appointment regarding the ganglion cyst on his right foot.

8 (Doc. No. 38-5 at 2). At this visit, the parties engaged in an “extended discussion” regarding

9 Plaintiff’s right foot and ganglion cyst history. (Id.). The progress note from that date shows that

10 Plaintiff never indicated he was in pain but instead actually expressed satisfaction with his

11 personal shoes. (Id.) (Stating Plaintiff “is wearing his personal shoes and says he is satisfied with

12 them). Dr. Bass and Dr. Scharffenberger concluded that they would defer any procedure

13 concerning his foot at that time. (Id.).

14 Indeed, the undisputed evidence demonstrates that it was not until January 20, 2022 that

15 Plaintiff first complained of foot pain to any medical provider. (See Doc. No. 38-3 at 21–22

16 (“reports history of bilateral arch pain x5years”)). Specifically, Plaintiff informed Physician

17 Assistant Mbadugha of pain while walking and toe cramps at night during that visit. (Id.). On

18 March 10, 2022, Plaintiff first informed Defendant of his bilateral foot pain. (Doc. No. 38-3 at

19 24–25). Defendant reviewed his X-ray from May 2018, noting that Plaintiff refused to undergo

20 an X-ray in August 2021, and found it unremarkable. (Id. at 24). Nonetheless, Defendant

21 ordered Plaintiff therapeutic shoes that day based on his self-report of pain. (Id. at 25).

22 To the extent that Plaintiff asserts that Defendant intentionally denied or delayed an order

23 for new orthotics, Plaintiff fails to provide evidence sufficient to raise a genuine dispute of

24 material fact supporting an Eighth Amendment violation. Plaintiff’s Complaint asserts that

25 Defendant was ordered to reevaluate everyone who requested orthotics due to cost considerations

26 for the state. (Doc. No. 1 at 4). However, at his deposition, Plaintiff stated that he did not recall

27 Defendant mentioning the reevaluation for medical costs. (Moore Depo. Tr. 32:20–33:14).

28 Rather, Plaintiff now claimed that Defendant’s motivation for intentionally depriving Plaintiff of

1 his orthotics was racially motivated. (Id. at 38:9–39:3). Plaintiff describes Defendant as “cold

2 and disconnected,” that their interactions were “always negative” and that she was “[n]ever

3 helpful, never understanding, and [that she] always [ ] brush[ed] [him] off.” (Id. at 12:14–13:1,

4 37:17–22). As an “older Caucasian” male, Plaintiff believes that Defendant treated him this way

5 because of his race. (Id. at 38:5–23).

6 Even assuming arguendo that racial tension existed between Plaintiff and Defendant,

7 Plaintiff’s deliberate indifference claim fails because, as explained supra, the record supports that

8 as soon as Plaintiff reported that he was experiencing foot pain to Defendant on March 10, 2022,

9 she ordered him new orthotics. Dr. Bass and Dr. Scharffenberger also deferred making further

10 treatment recommendations regarding Plaintiff’s foot condition during this same time. Without

11 more, Plaintiff fails to provide factual support disputing that Defendant was unaware of any

12 substantial serious risk of harm during the relevant period. See Sandoval, 985 F.3d at 668 (“a

13 prison official who should have been aware of a medically related risk to an inmate, but in fact

14 was not, has not violated the Eighth Amendment.” (emphasis in original)). See Shapley, 766 F.2d

15 at 407 (a delay in treatment, without more, is insufficient to state a deliberate indifference claim).

16 Plaintiff’s newly raised argument that the delay in ordering his new orthotics eventually

17 led to the tearing of his menisci fails for the same reasons. During his deposition, Plaintiff stated

18 that his torn menisci occurred at some point “during the four-year timeframe.” (Moore Depo. Tr.

19 at 19:20–20:8). He further testified that he never brought up his knee pain with Defendant and

20 that his knee-related pain and subsequent treatment occurred after he had received his orthotics

21 and was under the care of his new PCP, Dr. Galvez. (Id. at 23:3–24:4). Moreover, Plaintiff

22 admitted that Defendant “didn’t have anything to do with [his] knees. [He] didn’t even know they

23 were torn.” (Id. at 23:3–7). Plaintiff fails to put forth evidence showing that Defendant, or even

24 Plaintiff himself, was aware of any issues related to his knees during Defendant’s treatment of

25 Plaintiff. See Sandoval, 985 F.3d at 668; see also Shapley, 766 F.2d at 407.

26 As to Plaintiff’s second core contention, the Court finds that Defendant was not

27 deliberately indifferent to Plaintiff’s serious medical condition because the undisputed facts

28 reflect that her treatment was medically acceptable under the circumstances when conducting her

1 own independent evaluation of Plaintiff rather than following the prior 2018 Orthotics Order.

2 Plaintiff testified that Defendant “blatant[ly] disregard” the 2018 Orthotics Order as

3 instructed in his permanent chrono8 located in his medical file. (Moore Depo. Tr. at 27:18–

4 28:11). Plaintiff took issue with Defendant for conducting an independent evaluation, rather than

5 just replacing his worn-out orthotics based on the 2018 Orthotics Order. During his visit with

6 Defendant, Plaintiff testified that he “wonder[ed] why she wanted to see [his] foot because [he]

7 was there asking her. . . [for] another pair of shoes” [ ] [as] permitted by [his] DME.” (Id. at

8 24:19–25:2). Defendant then “looked at [his foot] with [his] sock off and determined right then

9 and there that [he] didn’t need any [new orthotics].” (Id. at 25:3–5). Plaintiff’s own testimony

10 supports that he was merely unsatisfied with Defendant’s independent evaluation, which

11 determined that Plaintiff did not meet the criteria for a new orthotics referral. See Toguchi, 391

12 F.3d at 1058 (“a mere difference of medical opinion is insufficient . . . to establish deliberate

13 indifference” (cleaned up)). Defendant asserts that the 2018 Orthotics Order “is an undisputed

14 fact for which [he] [has] documentation to support it.” (Doc. No. 41 at 2). However, Plaintiff

15 failed to provide any documentation to support its existence other than his own self-reported

16 claims. Even assuming the existence of the 2018 Orthotics Order, Plaintiff fails to provide any

17 evidence to support that a prior medical treatment cannot be rescinded or changed. See, e.g.,

18 Washington v. Rouch, 2018 WL 3770203, at *7 (E.D. Cal. Aug. 7, 2018) (“The undisputed

19 evidence is that even accommodations designated as ‘permanent’ are subject to review and

20 possible modification or rescission.”), aff’'d, 771 F. App’x 832 (9th Cir. 2019).

21 Nonetheless, the pivotal question of this case is whether Defendant’s “chosen course of

22 treatment was medically unacceptable under the circumstances, and was chosen in conscious

23 disregard of an excessive risk to the prisoner’s health.” See Toguchi, 391 F.3d at 1058 (cleaned

24 up). Here, Plaintiff fails to put forth any evidence raising an issue of material fact regarding

25 Defendant’s denial of new orthotics and whether it was medically unacceptable under the

26 circumstances. Rather, the undisputed facts support the opposite conclusion. Notably, during

27

8 Plaintiff refers to his permanent chrono, permanent durable medical equipment, permanent disability

28 medical equipment, and DME interchangeably throughout his deposition.

1 their separate evaluation, Dr. Bass and Dr. Scharffenberger noted that Plaintiff was satisfied with

2 his personal shoes and concluded that they would defer any further treatment concerning his foot

3 at the time. This evaluation, which apparently occurred without Defendant’s input, along with

4 various other medical documentation in the record, allows the Court to draw a reasonable

5 inference that Defendant’s denial of orthotics did not rise to the level of an Eighth Amendment

6 violation during the relevant period. Therefore, the Court finds no evidence to support a triable

7 issue as to whether Defendant was deliberately indifferent to Plaintiff’s medical needs when she

8 did not order reorder orthotics for Plaintiff. See Washington, 2018 WL 3770203, at *8 (granting

9 summary judgment in favor of the defendants who rescinded and denied the plaintiff’s permanent

10 chrono for orthopedic shoes).

11 Finally, the Court examines whether Defendant acted with deliberate indifference to

12 Plaintiff’s serious medical needs by denying a light-duty work chrono. The Court notes that

13 neither party addressed this issue in their moving papers. (See generally Doc. Nos. 38, 41, 42).

14 Plaintiff’s Complaint asserts that he “is forced to perform his job assignment which causes him to

15 be on his feet almost all day long, and to lift heavy boxes, without orthopedic shoes and support

16 insoles, which causes [him] extremely severe crippling pain.” (Doc. No. 1 at 4). Despite

17 informing Defendant of his condition, Plaintiff contends that she refused to issue a light-duty

18 chrono, which could have mitigated his pain. (Id.). In Plaintiff’s deposition, he stated that his

19 request for a light-duty chrono was denied but was unable to recall any specifics regarding the

20 denial. (Moore Depo. Tr. at 36:14–37:6). Here, the record contains no request for a light-duty

21 chrono. Instead, the record reveals that Plaintiff requested “orthotics for ankle support” because

22 “he works in the kitchen and picks up heavy objects.” (See Progress Note dated January 17,

23 2019, Doc. NO. 38-3 at 6). Upon examining Plaintiff, Defendant noted “Right ankle and foot are

24 not tender nor swollen, ROM is normal. He kas normal arches, no deformity, normal gait.” (Id.).

25 Thus, Defendant opined that “Patient does not meet criteria for orthotic referral.” (Id.). As noted,

26 there is no evidence in the record that Plaintiff requested a light-duty chrono but instead requested

27 orthotics. Consequently, three is no evidence that Defendant knew of and disregarded an

28 excessive risk to Plaintiff’s health and safety during the relevant time, as explained supra. See

1 Toguchi, 391 F.3d at 1058. Because Plaintiff fails to make a sufficient showing to establish the

2 existence of the essential element regarding the second prong of a medical deliberate indifference

3 claim under the Eighth Amendment, summary judgment should be granted for Defendant. See

4 Celotex, 477 U.S. at 323.

5 D. Qualified Immunity

6 In the alternative, Defendant asserts that she is entitled to qualified immunity in this case

7 because no official in her position would believe her conduct in denying orthotics for a ganglion

8 cyst violated Plaintiff’s constitutional rights. (Doc. No. 38 at 13). In support, Defendant cites to

9 Harden v. High Desert State Prison, No. 2:15-cv-01168, 2018 U.C. Dist. LEXIS 111809, at *10

10 (D. Nev. July 5, 2018), where the court noted that qualified immunity would be appropriate in

11 that case because there exists no clearly established right to elective surgical procedures for

12 benign cysts. (Id.).

13 A government official is entitled to qualified immunity under Section 1983 unless (1) the

14 official “violated a federal statutory or constitutional right, and (2) the unlawfulness of his

15 conduct was ‘clearly established at the time.’” District of Columbia v. Wesby, 138 S. Ct. 577, 589

16 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)); Harlow v. Fitzgerald, 457 U.S.

17 800, 817 (1982). To demonstrate that a right was “clearly established” requires a showing that

18 the statutory or constitutional question was “beyond debate,” such that every reasonable official

19 would understand that what he is doing is unlawful. Wesby, 138 S. Ct. at 589; Vos v. City of

20 Newport Beach, 892 F.3d 1024, 1035 (9th Cir. 2018). This standard is “demanding” and protects

21 “all but the plainly incompetent or those who knowingly violate the law.” Wesby, 138 S. Ct. at

22 589 (citing Malley v. Briggs, 475 U.S. 335, 341 (1986)). “[A] court typically should identify a

23 case where an officer acting under similar circumstances as [the defendant] was held to have

24 violated the constitutional right at issue.” S.B v. County of San Diego, 864 F.3d 1010, 1015 (9th

25 Cir. 2017)). “Even when no case is ‘directly on point,’ courts may compare relevant factors to

26 determine whether every reasonable officer should have known the conduct in question was

27 unlawful.” Anderson v. Virga, 2018 WL 1556806, *2 (E.D. Cal. Mar. 30, 2018) (citing Isayeva v.

28 Sacramento Sheriff’s Dep’t, 872 F.3d 938, 946–47 (9th Cir. 2017). The plaintiff bears the burden

1 | of establishing that the right alleged was clearly established. Moran v. Washington, 47 F.3d 839,

2 | 844 (9th Cir. 1998).

3 As discussed supra, the Court finds the undisputed facts show that Defendant was not

4 || deliberately indifferent to Plaintiff's serious medical needs. Thus, because the Court finds no

5 | constitutional violation, the Court need not address the second prong.

6 Accordingly, it is RECOMMENDED:

7 1. The district court GRANT Defendant’s Motion for Summary Judgment (Doc. No. 38).

8 2. Judgment be entered in Defendant’s favor and the case closed.

9 NOTICE TO PARTIES

10 These Findings and Recommendations will be submitted to the United States District

11 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days

12 | after being served with a copy of these Findings and Recommendations, a party may file written

13 | objections with the Court. /d.; Local Rule 304(b). The document should be captioned,

14 | “Objections to Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen

15 | (15) pages. The Court will not consider exhibits attached to the Objections. To the extent a party

16 | wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its

17 | CM/ECF document and page number, when possible, or otherwise reference the exhibit with

18 || specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by

19 | the District Judge when reviewing these Findings and Recommendations under 28 U.S.C. §

20 | 636(b)()(C). A party’s failure to file any objections within the specified time may result in the

21 | waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).

22

23 | Dated: _ April 23, 2025 Mihaw. Wh. foareh fackte

HELENA M. BARCH-KUCHTA

24 UNITED STATES MAGISTRATE JUDGE

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