(PC) Chambers v. Bentley ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DONALD CLARENCE CHAMBERS, No. 2:19-CV-0582-JAM-DMC 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 JIM BENTLEY, et. al, 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court are defendants’ motion for summary judgment (ECF 19 No. 21); plaintiff’s opposition (ECF No. 24); and defendants’ reply (ECF No. 25). 20 21 I. PLAINTIFF’S ALLEGATIONS 22 Plaintiff, Donald Clarence Chambers, is an inmate at California State Prison, 23 Solano (CSP Solano)1. Plaintiff names the following defendants: (1) Doctor Jim Bentley2, 24 Physician at CSP Solano, (2) Miguel Aguilera, Registered Dietician at CSP Solano, and Doctor 25 Martin Kuersten, Chief Medical Executive at CSP Solano. 26 27 1 Plaintiff erroneously refers to California State Prison Solano as Solano State Prison, Vacaville in his original complaint. 28 2 Doctor Bentley is deceased. See ECF No. 12. 1 Plaintiff alleges that defendants violated his Eighth Amendment rights by 2 repeatedly refusing to provide him with a soy-free diet despite his soy allergy. See ECF No. 1, pg. 3 5. Plaintiff claims he saw Dr. Bentley for symptoms reminiscent of a soy allergy on April 20, 4 2018, April 27, 2018, and June 5, 2018. See ECF No. 24, pg. 2. Plaintiff claims he first met with 5 defendant Aguilera on June 14, 2018. See ECF No. 24, pg. 2. Plaintiff alleges that Aguilera told 6 plaintiff that plaintiff could not get on a soy-free diet until his soy allergy was confirmed through 7 a medical test. Id. 8 Plaintiff claims that Doctor Mo, who is not named as a defendant, ordered a 9 soybean allergy test for plaintiff on June 29, 2018. Id. Plaintiff alleges he had a blood test for the 10 soybean allergy test on July 3, 2018. Id. Plaintiff alleges that Doctor Bentley told plaintiff that he 11 tested positive for a soybean allergy on the IgG test with a 2.1 score on July 12, 2018. Id. Plaintiff 12 also alleges that Doctor Bentley ordered him a soy-free therapeutic diet at this time. Id. 13 Plaintiff claims he went to retrieve his first therapeutic meal on July 13, 2018. See 14 ECF No. 1, pg. 4. Plaintiff alleges that he suffered the same side effects from the therapeutic meal 15 as the mainline prison meals. Id. Plaintiff claims that he realized the kitchen had been providing 16 him gluten-free meals rather than soy-free meals on July 14, 2018. Id. Plaintiff alleges that the 17 kitchen staff told him they were instructed to provide him with gluten-free meals by the dietician 18 on July 14, 2018, July 15, 2018, July 16, 2018, and July 17, 2018. Id. Plaintiff claims that he 19 began collecting the labels on his meals on July 18, 2018. Id. 20 Plaintiff claims that on July 25th, 2018, a member of the kitchen staff handed him 21 a bag labeled “no soy” that contained a meal with soy products. See ECF No. 1, pg. 3. Plaintiff 22 claims that the kitchen staff told him that Aguilera instructed them to give the bag to plaintiff. Id. 23 Plaintiff alleges that Doctor Bentley cancelled his soy-free diet on July 26, 2018 by falsely 24 claiming that plaintiff refused the meals. See ECF No. 1, pg. 3. Plaintiff claims that defendant 25 Doctor Kuersten ordered a second allergy test for plaintiff on August 22, 2018. Id. Plaintiff 26 alleges that although he underwent a blood test, Dr. Kuersten stopped the blood analysis from 27 occurring. Id. Plaintiff claims that Dr. Keursten then fabricated a false report from Quest 28 Diagnostics stating that plaintiff did not have a soy allergy. See ECF No. 1, pg. 4. 1 Plaintiff claims he once again saw Dr. Bentley on September 11, 2018. See ECF 2 No. 1, pg. 4. Plaintiff alleges that Dr. Bentley provided him with a copy of Dr. Kuersten’s 3 medical report and stated that the new allergy test indicated plaintiff did not have an allergy to 4 soy. Id. Plaintiff claims that he asked Dr. Bentley why he discontinued plaintiff’s therapeutic diet. 5 Id. Plaintiff claims Dr. Bentley replied that he cancelled the diet because plaintiff did not have a 6 soy allergy, and plaintiff retorted that Dr. Bentley cancelled his diet a month before the most 7 recent test results arrived. Id. Plaintiff claims that Dr. Bentley then made him leave the medical 8 facility. Id. 9 Plaintiff claims he contacted Quest Diagnostics for his test results on October 11, 10 2018. See ECF No. 1, pg. 4. Plaintiff claims that although Quest initially refused to speak to him, 11 a Quest representative eventually told plaintiff that there were no test results on file under his 12 name. See ECF No. 1, pg. 5. 13 14 II. PROCEDURAL HISTORY 15 On April 3, 2019, plaintiff filed his prisoner civil rights complaint against Bentley, 16 Aguilera, and Kuersten, alleging that their conduct violated his right to medical treatment under 17 the Eighth Amendment. See ECF No. 1. The summons for Doctor Bentley was not executed 18 because he was deceased. See ECF No. 12. On September 3, 2019, defendants filed an answer to 19 plaintiff’s civil rights complaint. See ECF No. 19. Defendants then filed their motion for 20 summary judgment on November 6, 2019. See ECF No. 21. Plaintiff filed his opposition to 21 defendants’ motion for summary judgment on March 2, 2020. See ECF No. 24. Defendants 22 submitted their reply to plaintiff’s opposition to summary judgment on March 4, 2020. See ECF 23 No. 25. The Court now reviews defendants’ motion for summary judgment. 24 /// 25 /// 26 /// 27 /// 28 /// 1 III. STANDARD FOR SUMMARY JUDGMENT 2 The Federal Rules of Civil Procedure provide for summary judgment or summary 3 adjudication when “the pleadings, depositions, answers to interrogatories, and admissions on file, 4 together with affidavits, if any, show that there is no genuine issue as to any material fact and that 5 the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The 6 standard for summary judgment and summary adjudication is the same. See Fed. R. Civ. P. 7 56(a), 56(c); see also Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). One of 8 the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. See 9 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under summary judgment practice, the 10 moving party 11 . . . always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, 12 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a 13 genuine issue of material fact. 14 Id., at 323 (quoting former Fed. R. Civ. P. 56(c)); see also Fed. R. Civ. P. 56(c)(1). 15 If the moving party meets its initial responsibility, the burden then shifts to the 16 opposing party to establish that a genuine issue as to any material fact actually does exist. See 17 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 18 establish the existence of this factual dispute, the opposing party may not rely upon the 19 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 20 form of affidavits, and/or admissible discovery material, in support of its contention that the 21 dispute exists. See Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 n.11. The 22 opposing party must demonstrate that the fact in contention is material, i.e., a fact that might 23 affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 24 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th 25 Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could 26 return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 27 (9th Cir. 1987). To demonstrate that an issue is genuine, the opposing party “must do more than 28 1 simply show that there is some metaphysical doubt as to the material facts . . . . Where the record 2 taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 3 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). It is sufficient that “the 4 claimed factual dispute be shown to require a trier of fact to resolve the parties’ differing versions 5 of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. 6 In resolving the summary judgment motion, the court examines the pleadings, 7 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. 8 See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, see Anderson, 9 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the 10 court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587. 11 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 12 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 13 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 14 1987). Ultimately, “[b]efore the evidence is left to the jury, there is a preliminary question for the 15 judge, not whether there is literally no evidence, but whether there is any upon which a jury could 16 properly proceed to find a verdict for the party producing it, upon whom the onus of proof is 17 imposed.” Anderson, 477 U.S. at 251. 18 19 IV. THE PARTIES’ EVIDENCE 20 A. Defendants’ Evidence 21 Defendants’ motion for summary judgment is supported by the following sworn 22 declarations: 1) M. Kuersten, ECF No. 21-4 and 2) M. Aguilera, ECF No. 21-5. Defendants also 23 submit a statement of undisputed facts discussed below in section (IV)(C). 24 /// 25 /// 26 /// 27 /// 28 /// 1 B. Plaintiff’s Evidence 2 In support of his opposition, plaintiff relies on his own sworn declaration, ECF No. 3 24, pgs. 2-5, and the following exhibits: 4 Exhibit A Plaintiff’s Patient Discharge Instructions from Medical Examinations on April 20, 2018, April 27, 5 2018, and June 12, 2018. ECF 24, pgs. 34-38. 6 Exhibit B Plaintiff’s Medical Consultation Order and Progress 7 Notes for May 24, 2018. Id. at 39-40. 8 Exhibit C Plaintiff’s Patient Discharge Instructions for June 29, 2018 and Medical Test Order for June 29, 2018. 9 Id. at 41-42. 10 Exhibit D Plaintiff’s IgG test results from July 9, 2018 and Plaintiff’s Medical Orders from July 12, 2018. Id. at 11 43-45. 12 Exhibit E Plaintiff’s Patient Discharge Instructions for a Medical Visit on September 11, 2018, Plaintiff’s 13 Medical Orders from August 22, 2018, and Plaintiff’s IgE Test Results. Id. at 46-50. 14 Exhibit F Plaintiff’s Medical Order on May 24, 2018, 15 Plaintiff’s Food Labels, and a Brown Paper Bag Labeled with Plaintiff’s Name and “No Soy”. Id. at 16 51-60. 17 Exhibit G Plaintiff’s Medical Order for August 23, 2018, Plaintiff’s Miscellaneous Stool Test Results, a Copy 18 of Plaintiff’s Inmate Financial Statement Report, Two Duplicative Copies of Plaintiff’s IgG Test 19 Results, Plaintiff’s Correspondences with Quest Diagnostics, Letters Informing Plaintiff He Had 20 Exhausted All Prison Remedies, and Plaintiff’s Medical Records for Other Providers from April 15, 21 2019, and April 9, 2020. Id. at 61-81. 22 Exhibit H Plaintiff’s External Movement History, an Index of Institutions Providing Outpatient Therapeutic Diets, 23 Email Correspondence Between Bentley and Aguilera, Medical Orders from July 25, 2018 to 24 July 27, 2018, Progress Notes from September 12, 2018, Duplicative Lab Order Request from August 25 22, 2018, Defendant Kuersten’s Responses to Requests for Production of Documents, Defendant 26 Aguilera’s Response to Request for Admissions, and Defendants’ Responses to Requests for 27 Production of Documents. Id. at 82-104. 28 /// 1 C. Defendant’s Statement of Undisputed Facts and Plaintiff’s Response 2 The following are: 1) defendants’ Statement of Undisputed Facts, ECF No. 21-2; 3 and 2) plaintiff’s responses, ECF No. 24, pgs. 6-18. 4 5 Defendants’ Statement Plaintiff’s Response 6 1. Mr. Chambers has been housed at California 1. Deny. Plaintiff arrived at California State State Prison, Solano since September 2015. Prison, Solano on August 10, 2017. 7 (Declaration of Dr. Kuersten in Support of (Exhibit H, pg. 823 in Opposition to Motion 8 Motion for Summary Judgment (Dr. Kuersten for Summary Judgment). Decl.) ¶3) 9 10 2. Mr. Chambers was never diagnosed with a 2. Admit. soy allergy prior to being at California State 11 Prison, Solano. 12 (Dr. Kuersten Decl. ¶3) 13 3. Mr. Chambers claimed that he had a soy 3. Deny. Plaintiff saw Dr. Bentley on April 14 allergy and requested a soy free diet in 2018. 20, 2018, April 27, 2018, June 5, 2018, and June 12, 2018. Plaintiff claims he requested 15 (Declaration of M. Aguilera (Aguilera Decl.) an allergy test at each of those visits but Dr. ¶2.) Bentley refused. 16 (Exhibit A, pgs. 1-5 in Opposition to Motion 17 for Summary Judgment). 18 4. Dr. Bentley ordered an IgG test to evaluate 4. Deny. Dr. Bentley did not order plaintiff’s 19 soy sensitivity and referred Mr. Chambers to a IgG test. Plaintiff admits Dr. Bentley referred dietician. him to a dietician. 20 (7/3/18 Quest Lab Result Exhibit A to Dr. (Exhibit C, pgs. 41-42 in Opposition to 21 Kuersten Decl., Aguilera Decl. ¶ 2.) Motion for Summary Judgment). 22 5. The IgG test is not used to diagnose 5. Deny. The IgG test is used to test diagnose 23 allergies. allergies. 24 (7/3/18 Quest Lab Result Exhibit A to Dr. (Exhibit D, pgs. 43-44, Exhibit G pgs. 75-79 Kuersten’s Decl., Dr. Kuersten’s Decl. ¶3, in Opposition to Motion for Summary 25 lines 13-16.) Judgment). 26 3 Plaintiff used his own numbering system for his exhibits and uses this numbering 27 system to cite to pages in his exhibit. The page numbers listed in this document reflect the page number where the reference can be found within the ECF page count of plaintiff’s Opposition to 28 Motion for Summary Judgment. 1 6. The IgG test showed Mr. Chambers had a 6. Deny. Plaintiff is allergic to soy rather than 2 borderline sensitivity to soy. just having a borderline sensitivity to soy. 3 (7/3/18 Quest Lab Result Exhibit A to Dr. (Exhibit D, pg. 44, Exhibit G pg. 77in Kuersten’s Decl., Dr. Kuersten Decl. ¶3, line Opposition to Motion for Summary 4 11.) Judgment).4 5 7. On June 14, 2018, registered dietician M. 7. Deny. Plaintiff did not meet with Aguilera 6 Aguilera met with Mr. Chambers. Mr. on June 14, 2018. Chambers requested a soy free diet. 7 (Plaintiff claims that Aguilera has no record (Aguilera Decl. ¶2.) of the meeting outside of his declaration.) 8 9 8. California State Prison, Solano does not 8. Deny. California State Prison is one of the have a soy free diet available. 22 prisons that provide therapeutic diets 10 within the California prison system. (Aguilera Decl. ¶2, line 25, Dr. Kuersten Decl. 11 ¶4, lines 20-21.) (Exhibit H, pg. 83 in Opposition to Motion for Summary Judgment). 12 13 9. Dr. Bentley placed Mr. Chambers on a 9. Deny. Dr. Bentley did not place plaintiff on gluten free diet in or around July 2018. a gluten-free diet on or around July 2018. 14 (Aguilera Decl. ¶3.) (Exhibit D1, pg. 44 in Opposition to Motion 15 for Summary Judgment). 16 10. On July 18, 2018, Mr. Chambers saw M. 10. Deny. Plaintiff did not see Dr. Aguilera 17 Aguilera and requested a soy free diet. on July 18, 2018. 18 (Aguilera Decl. ¶3.) (Plaintiff claims that Aguilera has no evidence outside his personal declaration). 19 11. M. Aguilera followed up with Chief 11. Deny. M. Aguilera did not follow up with 20 Medical Executive Dr. Kuersten Dr. Kuersten and Dr. Benltey about the meeting and request for a soy diet. 21 (Aguilera Decl. ¶4, Dr. Kuersten Decl. ¶3, lines 5-6, ¶4, lines 17-18.) (Plaintiff claims that M. Aguilera has no 22 evidence this meeting took place beyond his personal declaration). 23 24 12. Dr. Kuersten reviewed the IgG test result. 12. Deny. Dr. Kuersten did not review the IgG results from the test plaintiff took on July 25 (Dr. Kuersten Decl. ¶3, line 11.) 3, 2018 because if he did he would have understood that plaintiff is allergic to soy. 26 27 4 Plaintiff erroneously wrote pg. 76 in his Disputed Facts section. However, he 28 presumably refers to pg. 78, which contains the information he references. 1 (Plaintiff claims Kuersten has not provided any documentation or medical records 2 showing he received the test and refused to have the special soy-free diet provided as 3 ordered by Dr. Bentley). 4 5 13. Dr. Kuersten determined that the IgG test 13. Deny. IgG test is reliable and the IgE test is not a reliable test to determine food allergy is not more reliable for diagnosing food 6 as it can have false positives. Based on his allergies. review of medical literature, Dr. Kuersten 7 determined that the IgE test is a more reliable (Dr. Kuersten has provided no evidence that test for diagnosing food allergy. the IgG test is not reliable or that the IgE is a 8 more reliable test for diagnosing food (Dr. Kuersten Decl., ¶ 3, lines 13-16.) allergies.) 9 10 14. On July 26, 2018, Dr. Kuersten advised Dr. 14. Deny. Dr. Bentley ordered that plaintiff Bentley to discontinue the gluten free diet be placed on a soy free medical diet, not a 11 because it would not eliminate soy from Mr. gluten free diet. Dr. Bentley discontinued Chambers’s diet. plaintiff’s soy free diet on the false grounds 12 that plaintiff refused the food. In actuality, the (Dr. Kuersten Decl., ¶ 4, lines 19-20.) soy free diet was discontinued because Dr. 13 Kuersten and M. Aguilera refused to order and provide soy free meals to plaintiff. 14 (Exhibit D, pgs. 44-45 in Opposition to 15 Motion for Summary Judgment). 16 17 15. On August 22, 2018, Dr. Kuersten ordered 15. Deny. The blood test taken on August 22, an IgE blood test to determine if Mr. 2018 was never sent to the laboratory. 18 Chambers had a soy allergy. Plaintiff admits that Dr. Kuersten ordered a blood test on August 22, 2018. 19 (Dr. Kuersten Decl., ¶ 6, Exhibit 3, Quest Diagnostic Test Results.) (Exhibit E, pgs. 46-50 in Opposition to 20 Motion for Summary Judgment). 21 16. The IgE test was performed on August 23, 16. Deny. Although plaintiff’s had blood 22 2018. taken on August 22, 2018, the sample never went to Quest Diagnostics. Dr. Kuersten 23 (Dr. Kuersten Decl., ¶6, Exhibit 3, Quest fabricated the copy of the IgE results. Diagnostic Test Results.) 24 (Exhibit G, pgs. 68-72 in Opposition to Motion for Summary Judgment). 25 26 27 28 1 17. The test result showed an undetectable 17. Deny. Plaintiff never tested negative for a 2 level regarding soy which indicated that Mr. soy allergy. Plaintiff is allergic to soy. Chambers did not have a soy allergy. 3 (Dr. Kuersten Decl., ¶ 6, Exhibit 3, Quest (Exhibit G, pgs. 61-72 in Opposition to 4 Diagnostic Results.) Motion for Summary Judgment). 5 18. As Mr. Chambers does not have a soy 18. Deny. Plaintiff is allergic to soy as 6 allergy, there was no medical reason to order a indicated by his IgG test and the fact Doctor special diet. Bentley ordered plaintiff a soy-free diet on 7 July 12, 2018. Doctor Taylor ordered plaintiff (Dr. Kuersten Decl. ¶7.) medication for his soy allergy on April 15, 8 2019 and Dr. Ali refilled this prescription on October 12, 2019. 9 (Exhibit C, pg. 42, Exhibit D, pgs. 43-45; 10 Exhibit G, pg. 61-72 in Opposition to Motion for Summary Judgment.) 11 12 19. M. Aguilera provided adequate and 19. Deny. Aguilera did not provide adequate appropriate care during each of his visits with and appropriate care to plaintiff. Aguilera 13 Mr. Chambers. denied plaintiff a soy-free diet despite the fact California Correctional Health Care Services 14 (Aguilera Decl. ¶6, lines 11-13.) approved CSP Solano to provide therapeutic meals. Aguilera also refused to fulfill Dr. 15 Bentley’s request that plaintiff be provided soy free meals. 16 (Exhibit H, pg. 83, Exhibit D-1, pg. 44 in 17 Opposition to Motion for Summary Judgment.) 18 19 20. At no time did M. Aguilera disregard any 20. Deny. M. Aguilera lied by claiming that serious injury or pain complaints of Mr. there was no soy free diet at CSP Solano. M. 20 Chambers. Aguilera also ignored plaintiff having no suitable food because he could not eat the 21 (Aguilera Decl. ¶¶ 2, 5, 6.) meals that contained soy. 22 (Exhibit H, pg. 83 in Opposition to Motion for Summary Judgment.) 23 24 21. At no time did M. Aguilera knowingly or 21. Deny. M. Aguilera refused to provide intentionally cause Mr. Chambers pain, plaintiff with a soy-free diet despite Dr. 25 suffering, or injury. Bentley’s order and plaintiff’s medical complaints. M. Aguilera instructed the 26 (Aguilera Decl. ¶¶ 2, 5, 6.) kitchen staff to provide plaintiff with meals containing soy. M. Aguilera also instructed 27 kitchen staff to provide plaintiff meals that contained soy in a bag that said “no soy”. 28 1 (Exhibit F, pgs. 46-60 in Opposition to 2 Motion for Summary Judgment.) 3 22. Dr. Kuersten provided adequate and 22. Deny. Dr. Kuersten refused to provide 4 appropriate care to Mr. Chambers. plaintiff with a soy-free diet despite his positive allergy test and Dr. Bentley’s order 5 (Dr. Kuersten Decl. ¶8.) for a soy-free diet. 6 (Exhibit D, pgs. 43-45 in Opposition to Motion for Summary Judgment.) 7 23. Dr. Kuersten ordered the medical testing 23. Deny. Dr. Kuersten ordered a blood test 8 he felt was necessary to evaluate Mr. for plaintiff but never sent the results to Quest Chambers’s complaints and ruled out the Diagnostics. Dr. Kuersten also fabricated an 9 purported soy allergy. allergen report stating that plaintiff did not have a soy allergy. 10 (Dr. Kuersten Decl. ¶¶3-8.) (Exhibit E, pgs. 46-50, Exhibit G, pgs. 61-81) 11 12 24. At no time did Dr. Kuersten disregard any 24. Deny. Dr. Kuersten disregarded plaintiff’s serious injury or pain complaints of Mr. serious injury and pain complaints regarding 13 Chambers. his soy allergy. He refused to order plaintiff a soy-free diet despite plaintiff’s soy allergy. 14 (Dr. Kuersten Decl. ¶¶3-8.) (Exhibit D, pgs. 43-45, Exhibit H, pgs. 82-90, 15 Exhibit G, pgs. 61-81). 16 25. At no time did Dr. Kuersten knowingly or 25. Deny. Dr. Kuersten knowingly and 17 intentionally cause Mr. Chambers pain, intentionally caused plaintiff pain by refusing suffering, or injury of any kind. to provide plaintiff with soy-free meals 18 despite knowing about plaintiff’s soy allergy. (Dr. Kuersten Decl. ¶8.) 19 (Exhibit D, pgs. 43-45, Exhibit G, pgs. 61-81) 20 21 22 V. DISCUSSION 23 In their motion for summary judgment, defendants argue: (1) plaintiff presents no 24 genuine dispute of material fact regarding his Eighth Amendment claims against defendants 25 and (2) defendants are entitled to qualified immunity. The Court agrees on both parts. 26 /// 27 /// 28 1 A. Claims Against Dr. Bentley 2 Under Federal Rule of Civil Procedure 25(a)(1), a civil suit against a deceased 3 party must be dismissed unless a party moves for substitution within 90 days of a service noting 4 death. See FED. R. CIV. P. 25. After the deceased party is dismissed, the action proceeds with the 5 remaining parties. See FED. R. CIV. P. 25(a)(2). 6 Doctor Bentley is deceased. See ECF No. 12; ECF No. 23. Plaintiff received 7 notice of Doctor Bentley’s death on July 18, 2019. See ECF No. 12. Thus, plaintiff’s ninety-day 8 filing period expired on October 16, 2019. Plaintiff still has not filed a motion for substitution as 9 of July 2, 2020 and therefore plaintiff’s claims against Dr. Bentley must be dismissed. 10 B. Eighth Amendment Medical Indifference Claim 11 Defendants argue that plaintiff’s Eighth Amendment claim for deliberate 12 indifference to medical needs fails as a matter of law. The Court agrees. 13 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious 14 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105; 15 see also Farmer, 511 U.S. at 837. An injury or illness is sufficiently serious if the failure to treat a 16 prisoner’s condition could result in further significant injury or the “. . . unnecessary and wanton 17 infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other 18 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); see also Doty 19 v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). 20 A difference of opinion between medical professionals concerning the appropriate 21 course of treatment generally does not amount to deliberate indifference to serious medical needs. 22 See Toguchi v. Chung, 391 F.3d 1051, 1059-60 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 23 242 (9th Cir. 1989). To establish that a difference of opinion amounted to deliberate indifference, 24 the prisoner “must show that the course of treatment the doctors chose was medically 25 unacceptable under the circumstances” and “that they chose this course in conscious disregard of 26 an excessive risk to [the prisoner’s] health.” See Jackson v. McIntosh, 90 F.3d 330, 332 (9th 27 Cir.1996); see also Toguchi, 391 F.3d at 1058; Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 28 1992) (stating that prisoner may demonstrate deliberate indifference if prison officials relied on 1 the contrary opinion of a non-treating physician), abrogated on other grounds as stated in Estate 2 of Ford v. Ramirez-Palmer, 301 F.3d 1043 (9th Cir. 2002), overruled on other grounds by Saucier 3 v. Katz, 533 U.S. 194 (2001), overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 4 223, 236 (2009). 5 A difference of opinion between the physician and the prisoner concerning the 6 appropriate course of treatment does not amount to deliberate indifference to serious medical 7 needs. See Toguchi, 391 F.3d at 1058; Jackson, 90 F.3d at 332; Franklin v. Or., State Welfare 8 Div., 662 F.2d 1337, 1344 (9th Cir. 1981). 9 1. Defendant Aguilera 10 Defendants claim that plaintiff has failed to demonstrate any genuine dispute as to 11 whether Aguilera was deliberately indifferent to plaintiff’s medical needs. In their motion to 12 dismiss, defendants argue that: 13 . . .Mr. Chambers cannot meet his burden to show that M. Aguilera 14 acted with deliberate indifference. M. Aguilera saw plaintiff for a dietary consult at the request of Dr. Bentley. M. Aguilera advised Mr. Chambers 15 that there was no soy-free diet at the institution. He also followed up with Dr. Kuersten because Mr. Chambers did not have any documented soy 16 allergy. There was no act or omission on his part that could support a claim for deliberate indifference. 17 … 18 Mr. Chambers is not qualified to give any medical opinion. Jackson, 90 F.3d at 332. He is not a doctor and has no medical training. 19 Any conclusion by him about necessary treatment is pure speculation because Mr. Chambers lacks insight into the subjective state of mind and 20 knowledge of his providers or anyone else whom he may blame for his condition. Nelson v. Pima Community College, 83 F.3d 1075, 1081-1082 21 (9th Cir. 1996)[“[m]ere…speculation does not create a factual dispute for 22 the purposes of summary judgment”]; Hutchinson, 838 F.2d at 393 [plaintiff’s conclusory statement insufficient to establish even medical 23 negligence, must less deliberate indifference]. 24 ECF No. 21-1, pgs. 6-7. 25 /// 26 /// 27 /// 28 1 In response, plaintiff states in his opposition that: 2 Plaintiff deny the claim that at no time did M. Aguilera knowingly or intentionally cause the Plaintiff pain, suffering, or injury. 3 …On July 12, 2018, Dr. Bentley ordered the Plaintiff placed on a therapeutic soy free medical diet, see Exhibit D-1. M. Aguilera refused to 4 order and provide soy-free meals for the Plaintiff as ordered by Dr. 5 Bentley, but instead ordered the medical kitchen staff to issue that Plaintiff meals containing the exact things that the Plaintiff is allergic to which is 6 soy, see Exhibits F1, F2, F3, F4, F5, F6, F7, with F8 being the bag Plaintiff last meal was given to the Plaintiff in, notice the bag has no soy 7 written on it and circled, but Exhibit-F7 clearly highlight the meal contain soybean oil, which the Plaintiff once again could not eat and suffered, and 8 to this day the Plaintiff is suffering, for the Plaintiff is forced to (1) either 9 go hungry and suffer the pains of hunger or (2) when unable to fight the pains of hunger any longer the Plaintiff is forced to consume mainline 10 meals containing soy, and within a short period of time becoming ill and suffering the symptoms of diarrhea and vomiting, for which the Plaintiff is 11 prescribed soy allergy medication to this very day. 12 ECF No. 24, pg. 16. 13 14 Plaintiff also states that: 15 Plaintiff deny the claim that at no time did M. Aguilera disregard any serious injury on pain complaints of the Plaintiff. 16 17 M. Aguilera lied claiming no soy free therapeutic diet is available when Solano prison is approved to provide that at Doctor’s orders, see 18 Exhibit-H1. From July 13, 2018, to July 26, 2018, M. Aguilera knew the Plaintiff was complaining about not being able to eat the meals given to 19 the Plaintiff because they contain soy, and the Plaintiff was forced to go hungry and suffer. 20 21 ECF No. 24, pg. 16. 22 23 The Court agrees with defendants. Plaintiff’s argument that there is a genuine issue 24 of material fact rests on faulty analyses. First, plaintiff’s only support for his contention that CSP 25 Solano provides a soy-free diet is a general list named “Institutions Providing Outpatient 26 Therapeutic Diets”. See ECF No. 24, pg. 83. The general placeholder “outpatient therapeutic 27 diets” does not establish that CSP Solano offered a soy-free diet. In fact, Aguilera informed 28 plaintiff that the only therapeutic diets available at CSP Solano were renal, gluten-free, or hepatic 1 diets under a doctors’ orders. See ECF No. 21-5, pg. 1. Second, plaintiff’s assertion that Doctor 2 Bentley ordered a soy-free diet is misguided. Although Doctor Bentley wrote that a soy-free diet 3 would be preferable, his medical order explicitly requests a gluten-free diet for plaintiff. See ECF 4 No. 24, pg. 44. Aguilera did not have the ability to prescribe plaintiff with the soy-free diet 5 because there was no such diet available in the facility. Aguilera also did not have the authority to 6 transfer plaintiff to a facility that provided soy-free diets even if plaintiff tested positive for a soy 7 allergy. See ECF No. 21-5, pg. 2. 8 Plaintiff also claims that Aguilera did not provide sufficient evidence to establish 9 that he met with plaintiff or that plaintiff requested a soy free diet during the meeting. See ECF 10 No. 24, pgs. 9-10. Plaintiff further alleges that Aguilera did not provide sufficient evidence to 11 establish that Aguilera discussed plaintiff’s case with Doctor Bentley and Doctor Kuersten. See 12 ECF No. 24, pg. 11. However, these assertions do not meet the standard of proof necessary to 13 discredit Aguilera’s claims. Although the moving party bears the initial responsibility of 14 identifying the deficiencies in the nonmoving party’s argument, the nonmoving party must prove 15 there is a genuine dispute of material fact. See Celotex v. Catrett, 477 U.S. 317, 325 (1986); 16 Matushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving 17 party cannot rely on allegations or denial in its pleadings, but instead must tender specific facts in 18 the form of affidavits or admissible discovery material. See FED. R. CIV. P. 56(c)(1). Aguilera, as 19 the moving party, has fulfilled his responsibility by providing sworn affidavits that support these 20 claims. See ECF No. 21-5. Thus, the burden has shifted to plaintiff, as the nonmoving party, to 21 prove there is a genuine dispute of material fact. Here, plaintiff does not offer any evidence 22 beyond pointing out alleged deficiencies in the Aguilera’s evidence. Plaintiff’s claim that 23 Aguilera’s evidence is insufficient cannot establish a genuine dispute of material fact because 24 plaintiff offers no affirmative evidence of his own. In fact, plaintiff’s own exhibits provide a 25 dated notice of his meeting with Aguilera on June 14th as well as Aguilera’s email 26 correspondence with Doctor Bentley and Doctor Kuersten. See ECF No. 24, pg. 39; ECF No. 24, 27 pg. 84. 28 /// 1 Plaintiff has not provided sufficient evidence for a reasonable jury to conclude that 2 Aguilera acted with deliberate indifference to plaintiff’s health. There is no evidence that 3 Aguilera ignored plaintiff’s symptoms. Rather, from the record presented, it appears that Aguilera 4 acted diligently by meeting with plaintiff, discussing plaintiff’s case with his superior, and 5 following his superior’s orders regarding plaintiff’s treatment. Plaintiff’s displeasure with the 6 medical professionals’ decisions regarding the ultimate course of treatment cannot establish a 7 cognizable Eighth Amendment claim. 8 2. Defendant Doctor Kuersten 9 Defendants claim that plaintiff has failed to demonstrate any genuine dispute of 10 material fact as to whether Doctor Kuersten was deliberately indifferent to plaintiff’s medical 11 needs. In their motion to dismiss, defendants argue that: 12 . . .Mr. Chambers’ deliberate indifference claim against Dr. 13 Kuersten fails as a matter of law. Dr. Kuersten discontinued the gluten free diet that had been ordered by Dr. Bentley because this diet would have soy 14 in it. Dr. Kuersten did not believe the IgG test was reliable for diagnosing a soy allergy. He also ordered further testing to determine whether Mr. 15 Chambers actually had a soy allergy as no such allergy was documented in his records. The testing showed that Mr. Chambers did not have a soy 16 allergy. 17 … Mr. Chambers is not a medical doctor and is not qualified to 18 interpret test results. Differences in opinion regarding treatment between an inmate and a physician are insufficient to support a claim for deliberate 19 indifference. Sanchez, 891 F.2d at 242. As Mr. Chambers does not have a soy allergy, there was no medical reason to modify his diet. Further, a soy 20 free diet is not available at the institution. Mr. Chambers cannot establish 21 the subjective requirement that Dr. Kuersten knew of and disregarded a risk to him. 22 ECF No. 21-1, pg. 7. 23 24 In response, plaintiff states in his opposition that: 25 Plaintiff deny the claim that at no time did Dr. Kuersten disregard 26 any serious injury or pain complaints of the Plaintiff. …Dr. Kuersten did disregard the Plaintiff’s serious injury and pain 27 complaints, see Exhibits-D, D1, which show the Plaintiff allergic to soy, and show Doctor Bentley clearly ordered the plaintiff a soy free diet, see 28 1 Exhibit-H1, that authorized Dr. Kuersten to provide the meal, see Exhibits-G13, G13-1, G13-2, G13-3, and G13-4 show that two Doctors 2 since this complaint has been filed prescribed the plaintiff six months’ worth of soy allergy medication for his ongoing pain and suffering. 3 4 ECF No. 24, pg. 18. 5 Plaintiff also states that: 6 Plaintiff deny the claim that Dr. Kuersten ordered a test he felt was necessary to evaluate the Plaintiff’s allergy to soy, that’s a lie and a 7 perjury. 8 … On August 22, 2018, Dr. Kuersten ordered the plaintiff blood be 9 collected on August 23, 2018. Dr. Kuersten ordered the test cancelled on August 23, 2018, at the exact moment that Plaintiff’s blood was collected, 10 then Dr. Kuersten falsified a Quest Diagnostics allergen report and placed it in the Plaintiff’s medical records on August 29, 2018. Dr. Kuersten did 11 not have the blood taken from the Plaintiff on August 23, 2018 at 9:32 12 AM ever sent to be tested as the following exhibit has confirmed, see Exhibit-E1 Laboratory Quest misc test, order Details-time study collect 13 8/23/18, 9:32am, stop time 8/23/18, 9:32am, now see Exhibits-G9, G10, G11, and G11A, from where the plaintiff was verified by Quest 14 Diagnostics that no such test was conducted upon which they sent the copy of the document that Dr. Kuersten placed in the Plaintiff’s medical 15 file on August 29, 2018 back to the Plaintiff with Exhibit-G11, there 16 response. 17 ECF No. 24, pg. 17. 18 The Court agrees with defendants. A difference of opinion between a physician 19 and a prisoner concerning the appropriate course of medical treatment does not amount to 20 deliberate indifference to medical needs. See Toguchi v. Young, 391 F.3d 1051, 1058 (9th Cir. 21 2004). Thus, plaintiff’s personal opinion regarding the existence of his soy allergy is not relevant 22 to an Eighth Amendment deliberate indifference discussion. At most, plaintiff has established that 23 Doctor Kuersten and Doctor Bentley had a difference of opinion regarding the appropriate form 24 of testing used to diagnose a soy allergy. See ECF No. 21-4; ECF No. 24, pg. 17. Differences in 25 medical opinion alone do not give rise to an Eighth Amendment claim. See Toguchi, 391 F.3d at 26 1059-60. Similarly, plaintiff’s evidence that other doctors prescribed him medication labeled “soy 27 allergy” at most establishes a difference of opinion between Doctor Kuersten and those 28 physicians. See ECF No. 24, pgs. 78-82. Doctor Kuersten examined plaintiff’s medical record 1 and ordered further testing because he did not believe that the IgG test was sufficient. See ECF 2 No. 21-4, pgs. 2-3. In fact, plaintiff’s IgG report expressly stated that the test should not be used 3 to diagnose allergic or atopic diseases except for gluten sensitivity and neonatal sensitivity to 4 milk. Id. Doctor Kuersten did not provide plaintiff with treatment for a soy allergy because 5 plaintiff’s test results came back negative. Id. A reasonable jury could not find that Doctor 6 Kuersten’s refusal to treat plaintiff for a soy allergy constituted deliberate indifference to 7 plaintiff’s medical needs when medical testing confirmed that plaintiff did not have a soy allergy. 8 Plaintiff’s argument that Doctor Kuersten fabricated the IgE test results rests on a 9 faulty assumption. Plaintiff’s only evidence to support this allegation is a letter from Quest 10 Diagnostics stating that they had no pathology or billing records for plaintiff. See ECF No. 24, 11 pg. 72. Plaintiff uses this lack of pathology or billing records as evidence that Doctor Kuersten 12 never sent his blood test results to Quest Diagnostics and fabricated a report instead. See ECF No. 13 24, pgs. 13-14. However, plaintiff ignores the portion of the letter that states Quest had several 14 medical records on file for plaintiff. Id. In fact, the IgG test results plaintiff references to attempt 15 to establish his soy allergy came from Quest Diagnostics. See ECF No. 24, pg. 43. Because 16 plaintiff has no additional evidence to support this claim, no reasonable jury could find that 17 Doctor Kuersten fabricated plaintiff’s test results. 18 Plaintiff further claims that Doctor Kuersten did not provide sufficient evidence to 19 establish that the IgG test is not reliable and the IgE is a more precise method. See ECF No. 24, 20 pg. 11. Plaintiff also claims that Dr. Kuersten did not provide sufficient evidence to prove that he 21 reviewed plaintiff’s medical records. Id. However, plaintiff has not met the standard of proof 22 necessary to discredit Doctor Kuersten’s claims. Although the moving party bears the initial 23 responsibility of identifying the deficiencies in the nonmoving party’s argument, the nonmoving 24 party must prove there is a genuine dispute of material fact. See Celotex v. Catrett, 477 U.S. 317, 25 325 (1986); Matushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The 26 nonmoving party cannot rely on the allegations on denials in its pleadings, but instead must 27 tender specific facts in the form of affidavits or admissible discovery material. See FED. R. CIV. P. 28 56(c)(1). Doctor Kuersten, as the moving party, fulfilled his responsibility by providing sworn 1 affidavits stating that he reviewed plaintiff’s medical records and his medical research led him to 2 conclude that IgE was a more suitable test. Thus, the burden has shifted to plaintiff, as the 3 nonmoving party, to prove there is a genuine dispute of material fact. Here, plaintiff does not 4 offer any evidence beyond his allegations. Plaintiff is not a doctor and, absent concrete evidence 5 that plaintiff has not provided, he cannot conclusively determine the reliability of an IgG test or 6 an IgE test. 7 Further, plaintiff’s only support for his argument that Doctor Kuersten did not 8 review his medical record is that: 9 Plaintiff deny the claim the claim that Dr. Kuersten reviewed the 10 IgG test results from the soy allergy test the Plaintiff took on July 3, 2018 at 21:00AM because if he had he would have understood as did Drs. 11 Bentley, Taylor, and Dr. Ali that 2.1 means allergic and 2.0 means not allergic… 12 ECF No. 24, pg. 11. 13 Plaintiff’s assertion that Doctor Kuersten would have agreed with plaintiff’s other 14 doctors had he reviewed plaintiff’s medical record is conclusory. Conclusory allegations do not 15 establish a genuine dispute of material fact. See Ashcroft v. Iqbal, 556 U.S. 662, 680-681 (2009). 16 As discussed above, plaintiff provides no valid evidentiary support for his claim that Doctor 17 Kuersten was deliberately indifferent to his medical needs. Thus, no reasonable jury could find 18 that Doctor Kuersten’s actions constituted an Eighth Amendment violation and Doctor Kuersten 19 is entitled to judgment as a matter of law. 20 C. Qualified Immunity 21 As discussed above, the Court finds that plaintiff has failed to establish a valid 22 Eighth Amendment medical indifference claim at the summary judgment stage. However, in the 23 event the District Judge finds a genuine dispute as to plaintiff’s Eighth Amendment deliberate 24 indifference claims, the undersigned provides the following analysis. 25 Government officials enjoy qualified immunity from civil damages unless their 26 conduct violates “clearly established statutory or constitutional rights of which a reasonable 27 person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In general, 28 1 qualified immunity protects “all but the plainly incompetent or those who knowingly violate the 2 law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). In ruling upon the issue of qualified 3 immunity, the initial inquiry is whether, taken in the light most favorable to the party asserting the 4 injury, the facts alleged show the defendant’s conduct violated a constitutional right. See Saucier 5 v. Katz, 533 U.S. 194, 201 (2001). If a violation can be made out, the next step is to ask whether 6 the right was clearly established. See id. This inquiry “must be undertaken in light of the specific 7 context of the case, not as a broad general proposition . . . .” Id. “[T]he right the official is 8 alleged to have violated must have been ‘clearly established’ in a more particularized, and hence 9 more relevant, sense: The contours of the right must be sufficiently clear that a reasonable 10 official would understand that what he is doing violates that right.” Id. at 202 (citation omitted). 11 Thus, the final step in the analysis is to determine whether a reasonable officer in similar 12 circumstances would have thought his conduct violated the alleged right. See id. at 205. 13 When identifying the right allegedly violated, the court must define the right more 14 narrowly than the constitutional provision guaranteeing the right, but more broadly than the 15 factual circumstances surrounding the alleged violation. See Kelly v. Borg, 60 F.3d 664, 667 (9th 16 Cir. 1995). For a right to be clearly established, “[t]he contours of the right must be sufficiently 17 clear that a reasonable official would understand [that] what [the official] is doing violates the 18 right.” See Anderson v. Creighton, 483 U.S. 635, 640 (1987). Ordinarily, once the court 19 concludes that a right was clearly established, an officer is not entitled to qualified immunity 20 because a reasonably competent public official is charged with knowing the law governing his 21 conduct. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). However, even if the plaintiff 22 has alleged a violation of a clearly established right, the government official is entitled to 23 qualified immunity if he could have “. . . reasonably but mistakenly believed that his . . . conduct 24 did not violate the right.” Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001); see 25 also Saucier, 533 U.S. at 205. 26 / / / 27 / / / 28 / / / 1 The first factors in the qualified immunity analysis involve purely legal questions. 2 See Trevino v. Gates, 99 F.3d 911, 917 (9th Cir. 1996). The third inquiry involves a legal 3 determination based on a prior factual finding as to the reasonableness of the government 4 official’s conduct. See Neely v. Feinstein, 50 F.3d 1502, 1509 (9th Cir. 1995). The district court 5 has discretion to determine which of the Saucier factors to analyze first. See Pearson v. Callahan, 6 555 U.S. 223, 236 (2009). In resolving these issues, the court must view the evidence in the light 7 most favorable to plaintiff and resolve all material factual disputes in favor of plaintiff. See 8 Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003). 9 The Court finds both defendants are entitled to qualified immunity. The plaintiff 10 has the burden of alleging a violation that has been clearly established that the officers should 11 have been on notice. Luna v. Ridge, 436 F. Supp. 2d 1163, 1173 (S.D. Cal. 2006) (“[b]road 12 generalities in the articulation of the constitutional right at issue . . . are insufficient to identify a 13 clearly established right . . .”). "Except in the rare case of an 'obvious' instance of constitutional 14 misconduct . . . [p]laintiffs must identify a case where an officer acting under similar 15 circumstances as [defendants] was held to have violated [plaintiff’s constitutional rights]." Sharp 16 v. Cty. of Orange, 871 F.3d 901, 911 (9th Cir. 2017) (emphasis in original) (quoting White v. 17 Pauly, 137 S.Ct. at 552). 18 As discussed above, plaintiff has not sufficiently established that an obvious 19 constitutional violation occurred. Defendants’ refusal to provide plaintiff with soy-free meals did 20 not amount to an obvious constitutional violation when a medical test indicated that plaintiff did 21 not have a soy allergy. Thus, plaintiff must demonstrate legal precedent where an officer acting 22 under similar circumstances as defendants was held to have violated plaintiff’s constitutional 23 rights. See Sharp v. Cty. of Orange, 871 F.3d 901, 911 (9th Cir. 2017). “In other words, [plaintiff] 24 must point to prior case law that articulates a constitutional rule specific enough to 25 alert these [officers] in this case that their particular conduct was unlawful.” Id. However, here, 26 plaintiff only addresses defendants’ qualified immunity discussion through a conclusive sentence 27 which states that defendants do not have qualified immunity because they were deliberately 28 indifferent to plaintiff’s medical needs. See ECF No. 24, pg. 30. Plaintiff provides no case MAIS 6 LDU VY YO □□ EAINT IVING RAUL OIC eT OY Oe VI oe 1 | precedent and has therefore clearly failed to meet his burden. 2 3 VI. CONCLUSION 4 Based on the foregoing, the undersigned recommends that Defendant’s motion for 5 || summary judgment (ECF No. 21) be granted in full. 6 These findings and recommendations are submitted to the United States District 7 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 8 | after being served with these findings and recommendations, any party may file written objections 9 | with the court. Responses to objections shall be filed within 14 days after service of objections. 10 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 11 Yist, 951 F.2d 1153 (9th Cir. 1991). 12 13 | Dated: July 13, 2020 Ssvcqo_ DENNIS M. COTA 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 22