(PC) Vazquez v. Conannan ( 2021 )

Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 1 of 34 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN R. VAZQUEZ, ) Case No.: 1:19-cv-00045-DAD-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATIONS 13 v. REGARDING DEFENDANTS’ MOTION FOR ) SUMMARY JUDGMENT 14 ) E. CONANNAN, et.al., ) (ECF No. 46) 15 Defendants. ) ) 16 ) 17 Plaintiff Juan R. Vazquez is appearing pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Defendants’ motion for summary judgment, filed on September 20 16, 2020. 21 I. 22 RELEVANT BACKGROUND 23 This action is proceeding on Plaintiff’s first amended complaint against Defendants E. 24 Conanan, J. Silveira, G. Kamen, N. Siegrist, S. Hitchman and M. Vanblargen for deliberate 25 indifference in violation of the Eighth Amendment. 26 On August 23, 2019, Defendants filed an answer to the complaint. (ECF No. 24.) 27 On August 27, 2019, the Court set a settlement conference for November 7, 2019. (ECF No. 28 25.) 1 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 2 of 34 1 On September 26, 2019, Defendants filed a notice to opt-out of the settlement conference. 2 (ECF No. 26.) Therefore, on September 27, 2019, the Court vacated the settlement conference. (ECF 3 No. 27.) 4 On October 1, 2019, the Court issued the discovery and scheduling order. (ECF No. 28.) 5 On January 15, 2020, Plaintiff filed his first motion to amend. (ECF No. 31.) Defendants filed 6 an opposition on January 30, 2020, and Plaintiff filed a reply on February 10, 2020. (ECF Nos. 32, 7 36.) As an initial matter, the Court notes that Plaintiff’s filing is a letter addressed to the Clerk of the 8 Court which provides notice and a copy of a letter sent to defense counsel requesting permission to 9 amend his pleadings. (ECF No. 31.) Plaintiff states he “just found out” that he should have submitted 10 to the Court a copy of the letter addressed to defense counsel. (Id.) Given Plaintiff’s pro se status, the 11 Court construes Plaintiff’s letter as a motion to amend the complaint under Federal Rule of Civil 12 Procedure 15. 13 On February 5, 2020, Plaintiff filed a second motion to amend the complaint, along with a 14 copy of the proposed amended complaint which was lodged. (ECF Nos. 34, 35.) Defendants filed an 15 opposition on February 4, 2020. (ECF No. 37.) 16 On April 20, 2020, the Court granted Plaintiff’s motion to amend the complaint with regard to 17 Defendant Kamen and his request for damages. (ECF No. 39.) Plaintiff filed a second amended 18 complaint on May 11, 2020. (ECF No. 40.) 19 On September 16, 2020, Defendants filed the instant motion for summary judgment. (ECF No. 20 46.) After receiving four extensions of time, Plaintiff filed an opposition on January 21, 2021.1 (ECF 21 No. 54.) Defendants filed a timely reply on February 11, 2021. (ECF No. 58.) 22 /// 23 /// 24 /// 25 26 11 Defendants argue that Plaintiff’s opposition does not fully comply with Local Rule 260(b) by not clearly stating which portion of the Defendants’ statement is disputed and what portion is undisputed. While Plaintiff may not have strictly 27 complied with all the requirements set forth in Local Rule 260(b), the Court finds that given Plaintiff’s pro se status, his opposition is sufficient for consideration. See Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, 28 but it may consider other materials in the record.”). 2 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 3 of 34 1 II. 2 LEGAL STANDARD 3 A. Summary Judgment Standard 4 Any party may move for summary judgment, and the Court shall grant summary judgment if 5 the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 6 judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Washington Mut. Inc. v. 7 U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, whether it be that a fact is disputed 8 or undisputed, must be supported by (1) citing to particular parts of materials in the record, including 9 but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials 10 cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot 11 produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). 12 The Court may consider other materials in the record not cited to by the parties, but it is not required 13 to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 14 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 15 In judging the evidence at the summary judgment stage, the Court does not make credibility 16 determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 17 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all inferences in the light most 18 favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry 19 of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d at 942 20 (quotation marks and citation omitted). 21 In arriving at these Findings and Recommendations, the Court carefully reviewed and considered 22 all arguments, points and authorities, declarations, exhibits, statements of undisputed facts and responses 23 thereto, if any, objections, and other papers filed by the parties. Omission of reference to an argument, 24 document, paper, or objection is not to be construed to the effect that this Court did not consider the 25 argument, document, paper, or objection. This Court thoroughly reviewed and considered the evidence 26 it deemed admissible, material, and appropriate. 27 /// 28 /// 3 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 4 of 34 1 III. 2 DISCUSSION 3 A. Summary of Plaintiff’s Allegations 4 “Plaintiff was declared permanently disabled by orthopedic specialist Dr. Stephen Dye [and] 5 was initially confined to a wheelchair [and] is now classified by the CDCR as a ‘high risk’ medical 6 patient.” (Sec. Am. Compl. at 7.)2 7 In October 2015, Plaintiff began having pain in his right heel which over the course of three 8 months developed into a one and one-half inch open wound on both heels. 9 On October 20, 2015, Plaintiff submitted a request to see a specialist regarding the pain in his 10 right heel and mobility impairments. The next day, Defendant Dr. Kamen examined Plaintiff in an 11 “assaultive & abusive manner, shoving Plaintiff’s legs around violently, addressing Plaintiff in a loud, 12 insulting & angry voice while discrediting Plaintiff’s medical conditions & rescinding Plaintiff’s 13 wheelchair. Defendant Kamen failed to respond reasonably; his decision to rescind Plaintiff’s 14 wheelchair clearly made Plaintiff’s medical problems worse causing further & significant harm 15 ultimately resulting in the open would previously mentioned.” 16 On November 20, 2015, Plaintiff complained to Defendant Siegrist about the pain in his right 17 heel and increase in mobility impairments but no care was provided. 18 On December 4, 2015, Plaintiff asked Siegrist to examine the open wound on his right heel. 19 Defendant Siegrist ignored Plaintiff and did not even look at the wound. 20 On December 10, 2015, Plaintiff saw Siegrist again and requested treatment for the open 21 wound on his right heel as well as for his neuropathy, arthritis, tendonitis, fatigue, and weight loss that 22 combined made it extremely difficult for Plaintiff to perform even the simplest of daily activities. At 23 this point, Plaintiff’s pain and discomfort was so intense he could focus on little else. Although 24 Plaintiff showed Siegrist his foot for the second time, he refused to examine the wound now one and 25 one-fourth inch deep, he did not provide any treatment. 26 27 2 All references to pagination of specific documents pertain to those as indicated on the upper right corners via the CM/ECF electronic court docketing system. 28 4 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 5 of 34 1 On December 14, 2015, Plaintiff complained to Defendant Vanblargen of the increased pain 2 and difficulty walking due to the open wound on his hell. Defendant Vanblargen dressed the wound 3 but his treatment was inadequate in that it did not prevent the wound from growing or alleviate the 4 pain. 5 On December 17, 2015, Plaintiff asked Defendant Hitchman for treatment of his open wound 6 and referral to a specialist. After an examination, Hitchman failed to treat Plaintiff’s wound or refer 7 him to a specialist. 8 On December 21, 2015, Plaintiff complained again to Defendant Van Blargen of increased 9 pain and difficulty walking because his wound had deepened and grown to over an inch in length. 10 Van Blargen dressed the wound which did nothing to keep it from growing or to lessen the pain. 11 On December 23, 2015, Plaintiff complained a third time to Defendant Van Blargen of his 12 painful wound and arthritis in his shoulder. Van Blargen gave Plaintiff Naproxen for his arthritis but 13 only looked at his wound without comment. 14 On December 28, 2015, Plaintiff complained a fourth time to Defendant Van Blargen 15 regarding his bleeding wound. He explained that every step he felt as if his flesh was tearing making 16 even the most personal hygiene needs an arduous chore. Van Blargen dressed the wound again which 17 did nothing to keep it from growing or to lessen the pain. 18 On December 29, 2015, Plaintiff complained to Defendant Siegrist of his open wound and 19 deteriorating health. Plaintiff was nauseated, had diarrhea, suffered weight loss, was fatigued, and the 20 open wound was bleeding. The wound was now one and one-half inches, and Siegrist only applied the 21 usual ineffective ointment and dressing that did nothing to heal the wound or alleviate the pain. 22 On January 5, 2016, Plaintiff showed Van Blargen a second wound opening on his left heel 23 and explained the intense pain of just standing, walking to the dining room, showers, and restroom 24 which were now arduous trips. Plaintiff’s socks were stained with blood and his neuropathy made 25 wearing shoes torturous. Van Blargen applied the usual ointment and dressing that proved inadequate 26 to heal Plaintiff’s wounds or address the pain. 27 On January 12, 2016, Plaintiff reported his growing wounds to Defendant Mathos. Upon 28 observing the severity of Plaintiff’s wounds, Defendant Mathos ordered a three-day tegaderm dressing 5 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 6 of 34 1 and use of a temporary walker to alleviate the pressure of Plaintiff’s weight on his heels. However, 2 Mathos’s order was overridden by Defendants Silveira and Conanan. Plaintiff was thereafter forced to 3 continue walking on painful and bleeding wounds. 4 On January 14, 2016, Plaintiff requested treatment from Defendant Siegrist for the open 5 wounds on his heels. In obvious concern for the severity, Defendant Siegrist asked Defendant Silveira 6 to assist but Silveira downplayed the seriousness of his wounds and contradicted the unified opinions 7 of three trained professionals. Defendant Silveira continued with the same course of treatment in 8 applying band-aids which did nothing to heal or treat the wounds. 9 On January 15, 2016, Defendant Conanan responded to Plaintiff’s appeal for adequate 10 treatment of his open wounds by dismissing it as “less urgent” than other issues. Defendant Conanan 11 also overruled the orders by Barajas, Mathos and Vanblargen for a temporary walker causing Plaintiff 12 further pain and harm. 13 On February 1, 2016, Plaintiff’s emergency appeal for a wheeled mobility device was denied 14 by Defendant Conanan as being “not medically indicated.” This denial was proven incorrect eight 15 days later by independent specialist Orlando Zorrilla who ordered a walker for Plaintiff. 16 On February 5, 2016, Plaintiff complained to Defendant Vanblargen a seventh time about how 17 much pain he was enduring. Vanblargen noted Plaintiff’s distress but continued with the same course 18 of treatment which was so cursory it amounted to no treatment at all. 19 On February 9, 2016, Plaintiff was attended to by independent specialist Orlando Zorrilla who 20 examined Plaintiff’s wound and immediately noted the need for urgent treatment to prevent further 21 injury and pain. Dr. Zorrilla ordered Neosporin dressings, padding and a walker. 22 On February 10, 2016, Plaintiff was attended by Defendant Siegrist who ignored Dr. Zorrilla’s 23 orders and continued with the ineffective treatment. Plaintiff never received further Neosporin and the 24 padding was not provided until after his transfer on March 1, 2016. Plaintiff was issued a walker on 25 February 25, 2016, several days after it was prescribed, and 129 days after Plaintiff demonstrated a 26 medical need for it. 27 /// 28 /// 6 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 7 of 34 1 B. Statement of Undisputed Facts3,4 2 1. At all times relevant to this action, Plaintiff was in the custody of the California 3 Department of Corrections and Rehabilitation (CDCR) as a prisoner at Avenal State Prison (ASP). 4 (Pl.’s Dep. at 9:12-14, Attach 1, ECF No. 46-3.) 5 2. At all relevant times, Dr. Conanan was employed by CDCR as a physician at ASP. 6 (Declaration of Dr. Conanan (“Conanan Decl.”) ¶ 1, Attach 2, ECF No. 46-3.) 7 3. At all relevant times, Dr. Kamen was employed by CDCR as a physician at ASP. 8 (Declaration of Dr. Kamen (“Kamen Decl.”) ¶ 1, Attach 3, ECF No. 46-3.) 9 4. At all relevant times, Siegrist was employed by CDCR as a physician assistant at ASP. 10 (Declaration of Siegrist (“Siegrist Decl.”) ¶, Attach 4, ECF No. 46-3.) 11 5. At all relevant times, Hitchman was employed by CDCR as a physician assistant at 12 ASP. (Declaration of Hitchman (“Hitchman Decl.”) ¶, Attach 5, ECF No. 46-3.) 13 6. At all relevant times, Silveira was employed by CDCR as a registered nurse at ASP.5 14 (Declaration of Silveira (“Silveira Decl.”) ¶, Attach 6, ECF No. 46-3.) 15 7. At all relevant times, Van Blargen was employed by CDCR as a registered nurse at 16 ASP. (Declaration of Van Blargen (“Van Blargen Decl.”) ¶, Attach 7, ECF No. 46-3.) 17 8. In evaluating an inmate-patient’s medical or mobility conditions, a medical provider 18 bases his or her evaluation on the inmate-patient’s physical condition, the inmate-patient’s statements, 19 and available medical records at the time of the visit. (Conanan Decl. ¶ 13; Kamen Decl. ¶ 9.) 20 9. Finding that a patient has demonstrated a need for a mobility device does not 21 necessarily undermine prior findings that no mobility device was medically indicated, because the 22 inmate-patient’s ambulation abilities may change over time. (Conanan Decl. ¶ 13; Kamen Decl. ¶ 9.) 23 24 3 Hereinafter referred to as “UdF.” 25 4 Plaintiff disputes almost every statement of undisputed fact presented by Defendants. However, a majority of Plaintiff's objections do not actually dispute the facts as set forth by Defendants and merely adds additional facts relating to his legal 26 argument. Accordingly, the Court will not address all of Plaintiff's objections, and will only address those that have actual merit. 27 5 Silveira retired from CDCR in June 2017 and has not been employed as a registered nurse since retiring. (Silveira Decl. 28 ¶ 1.) 7 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 8 of 34 1 10. To the extent that an inmate-patient presents differently to different providers, whether 2 intentional or not, this could contribute to different medical assessments and conclusions by the 3 examining medical provider. (Conanan Decl. 13; Kamen Decl. ¶ 9.) 4 11. A medical provider may take into account objective indicators that an inmate-patient 5 can ambulate satisfactorily despite different presentations that the inmate-patient makes to the 6 examining medical provider. (Conanan Decl. 13; Kamen Decl. ¶ 9.) 7 12. Although medical provider—including, but not limited to, physicians and physician 8 assistants—attempt to address all medical issues during regularly scheduled appointments, when more 9 urgent medical issues are presented, these more urgent issues may take precedence over routine or less 10 urgent concerns, such that medical issues are prioritized and addressed accordingly through a standard 11 process referred to as triage. (Conanan Decl. ¶ 4.) 12 Plaintiff’s Visit with Dr. Kamen on October 21, 2015 13 13. On October 21, 2015, Dr. Kamen saw Plaintiff for a medical visit. (Kamen Decl. ¶ 4.) 14 14. The purpose of the October 21, 2015 visit between Dr. Kamen and Plaintiff was for Dr. 15 Kamen to evaluate Plaintiff’s disability status, need for a wheelchair, and need for any other 16 accommodations in light of Plaintiff’s claim that he felt pain his feet and heels. (Kamen Decl. ¶ 5.) 17 15. During the October 21, 2015 visit, Dr. Kamen conducted a physical examination of 18 Plaintiff, including his bodily extremities and motion. (Kamen Decl. ¶ 5; Pl.’s Dep. at 20:11-20.) 19 16. Based on the October 21, 2015 physical examination, Dr. Kamen observed that there 20 was no callus formation on Plaintiff’s feet, did not observe any significant deformity, and concluded 21 that Plaintiff’s gait was steady. (Kamen Decl. ¶ 5.) 22 17. During the October 12, 2015 visit, Dr. Kamen learned and believed that Plaintiff had 23 been jumping rope earlier that month. (Kamen Decl. ¶ 5.) 24 18. Based on the October 12, 2015 physical examination, evaluation of Plaintiff’s physical 25 condition and mobility, evaluation of Plaintiff’s medical records, evaluation of Plaintiff’s complaints, 26 and confirmation that Plaintiff had been jumping rope earlier in the month, Dr. Kamen concluded that 27 Plaintiff was able to ambulate satisfactorily and, therefore, did not need a wheelchair. On this basis, 28 Dr. Kamen rescinded Plaintiff’s wheelchair accommodation. (Kamen Decl. ¶ 6, Pl.’s Dep. at 24:1-6.) 8 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 9 of 34 1 19. In evaluating complaints that Plaintiff presented during his October 21, 2015 visit, Dr. 2 Kamen considered Plaintiff’s claims in light of objective findings and results from the physical 3 examination. (Kamen Decl. ¶¶ 5-6, 9.) 4 20. Dr. Kamen’s medical opinion was informed, in part, from his assessment that 5 Plaintiff’s conduct such as jumping rope was incompatible with suffering from a physical disability, 6 informing Dr. Kamen’s opinion that Plaintiff appeared to be engaging in manipulative behavior. 7 (Kamen Decl. ¶¶ 6-7; Pl.’s Dep. at 22:10-12.) 8 Plaintiff’s Visits with Physician Assistant Siegrist 9 21. On November 20, 2015, in her capacity as a physician assistant, Siegrist saw Plaintiff 10 for a medical visit. (Siegrist Decl. ¶ 4; Pl.’s Dep. at 28:2-6.) 11 22. The purpose of the November 20, 2015 visit between Siegrist and Plaintiff was to 12 follow up on the status of a computed tomography scan (also referred as “CT scan” or “CAT scan”) 13 performed on December 1, 2015, as well as to evaluate Plaintiff’s lung disease. (Siegrist Decl. ¶ 4.) 14 23. The main issue discussed during the November 20, 2015 visit was Plaintiff’s reactions 15 to medications intended to treat his lung disease symptoms, but Siegrist also addressed Plaintiff’s 16 request that his walker be returned to him. (Siegrist Decl. ¶ 4; Pl.’s Dep. at 29:21-23, 30:8-10, 24.) 17 24. In evaluating whether to grant Plaintiff’s walker request, Siegrist learned and believed 18 that Plaintiff had been observed jumping rope, which, in her view, contributed to the decision to 19 previously rescind Plaintiff’s walker. (Siegrist Decl. ¶ 4.) 20 25. During the November 20, 2015 visit, based on Plaintiff’s documented history of 21 jumping rope, Siegrist denied Plaintiff’s request for a walker. (Siegrist Decl. ¶ 4.) 22 26. During the November 20, 2015 visit, Siegrist advised Plaintiff on his upcoming 23 appointment with an orthotics specialist, who would further address Plaintiff’s mobility-related 24 complaints, to which Plaintiff confirmed that he understood. (Siegrist Decl. ¶ 4.) 25 27. Beyond the care and education provided to Plaintiff, Siegrist did not believe further 26 action was necessary during the November 20, 2015 visit. (Siegrist Decl. ¶ 4.) 27 /// 28 /// 9 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 10 of 34 1 28. On December 4, 2015, Siegrist met with Plaintiff to interview him in connection with 2 the review of a healthcare grievance that Plaintiff filed, identified as grievance log number ASP HC 3 15029556, in which Plaintiff requested that his seated walker be reinstated. (Siegrist Decl. ¶ 5.) 4 29. During the December 4, 2015 interview, Siegrist learned or was aware that Dr. Kamen 5 had previously evaluated Plaintiff’s mobility issues on October 21, 2015 and performed a physical 6 examination that revealed no difficulty ambulating, and that medical staff had observed Plaintiff 7 jumping rope for approximately one minutes with no signs of difficulty. (Siegrist Decl. ¶ 5.) 8 30. On December 4, 2015, when Plaintiff was unaware that Siegrist was observing him, 9 Siegrist observed Plaintiff walking to a medical clinic without exhibiting any ambulation issues. 10 (Siegrist Decl. ¶ 5.) 11 31. Based on Plaintiff’s medical history, Plaintiff’s explanations during the December 4, 12 2015 interview, and Siegrist’s personal observations of Plaintiff ambulating without distress or 13 balance issues, Siegrist concluded that Plaintiff could ambulate satisfactorily and, therefore, deemed 14 that no further action was necessary. (Siegrist Decl. ¶ 5; Pl.’s Dep. at 33:16-19.) 15 32. On December 10, 2015, Siegrist saw Plaintiff for a medical visit. (Siegrist Decl. ¶ 6; 16 Pl.’s Dep. at 35:1-3.) 17 33. The purpose of the December 10, 2015 visit between Siegrist and Plaintiff was to 18 follow up on a CAT scan performed on December 1, 2015. (Siegrist Decl. ¶ 6.) 19 34. During the December 10, 2015 visit, Siegrist discussed the CAT scan findings, which 20 confirmed the existence of chronic interstitial lung disease and pulmonary fibrosis. (Siegrist Decl. ¶ 21 6.) 22 35. During the December 10, 2015 visit, Siegrist attempted to convey to Plaintiff the 23 seriousness of his lung condition and weight loss, but Plaintiff wanted to re-focus the conversation 24 back to his complaints about pain in his feet. (Siegrist Decl. ¶ 6.) 25 36. During the December 10, 2015 visit, Siegrist advised Plaintiff that his focus should be 26 his lung function and weight loss, and further advised him that he was being referred for additional 27 pulmonary tests and would undergo a pulmonology consultation. (Siegrist Decl. ¶ 6.) 28 10 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 11 of 34 1 37. Upset at Siegrist’s attempt to re-focus attention to his lung condition, Plaintiff left the 2 exam room before Siegrist could conclude the December 10, 2015 visit, albeit Siegrist nonetheless 3 scheduled Plaintiff for a follow-up referral. (Siegrist Decl. ¶ 6.) 4 38. During the December 10, 2015 visit, Siegrist concluded that Plaintiff’s health would be 5 best served by focusing on addressing his lung condition and weight loss. (Siegrist Decl. ¶ 6.) 6 39. On February 24, 2016, Siegrist saw Plaintiff for a medical visit. (Siegrist Decl. ¶ 7.) 7 40. During the February 24, 2016 visit, Siegrist reviewed the medical consultation noted, 8 dated February 9, 2016, by Dr. Zorrilla who noted that Plaintiff’s nails, fissures, and lesions were 9 “debrided,” and were cleaned and dressed with a multilayer compression, and Plaintiff was instructed 10 to keep the compressing dressing intact for a minimum of two days. (Siegrist Decl. ¶ 7.) 11 41. During the February 24, 2016 visit, Siegrist further noted the findings from Plaintiff’s 12 lung biopsy taken on January 13, 2016, whereby Siegrist concluded that Plaintiff had chronic 13 interstitial disease and further discussed with Plaintiff the pain he felt around his left elbow and steroid 14 injection to address the pain. (Siegrist Decl. ¶ 8.) 15 42. In light of Plaintiff’s health condition during the February 24, 2016 visit, as well as the 16 findings and recommendation made by Dr. Zorrilla during the February 9, 2016 consultation, Siegrist 17 determined that granting a temporary walker for sixty days was warranted, and further submitted 18 requests for follow-up podiatry and pulmonology consultations. (Siegrist Decl. ¶ 8.) 19 Plaintiff’s Visits with Registered Nurse Van Blargen 20 43. On December 14, 2015, in his capacity as a registered nurse, Van Blargen saw Plaintiff 21 for a medical visit, which was prompted by a health care request form submitted by Plaintiff in which 22 he complained about lesions on his foot that frustrated his ability to walk. (Van Blargen Decl. ¶ 5.) 23 44. During the December 14, 2015 visit, Van Blargen observed a cut (also known as a 24 fissure) to Plaintiff’s right heel, which was approximately two centimeters long. (Van Blargen Decl. ¶ 25 6.) 26 45. In evaluating the cut to Plaintiff’s right heel during the December 14, 2015 visit, Van 27 Blargen observed dry cracking on both feet, noticed foot fungus formation, but otherwise observed no 28 active bleeding. (Van Blargen Decl. ¶ 6.) 11 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 12 of 34 1 46. Based on observations of Plaintiff’s right heel on December 14, 2015, Van Blargen’s 2 medical opinion was that the cut appeared to be a chronic and, therefore, long-term condition. (Van 3 Blargen Decl. ¶ 6.) 4 47. Acknowledging that the cut could cause pain, Van Blargen’s medical opinion, based on 5 his observation of Plaintiff’s foot during the December 14, 2015 visit, was that the cut did not pose a 6 substantial risk to Plaintiff’s health. (Van Blargen Decl. ¶ 6.) 7 48. Based on his observation of Plaintiff’s foot during the December 14, 2015 visit, Van 8 Blargen determined that, under the circumstances, wound care via sterilization and dressing was 9 reasonable and sufficient to mitigate further injury and infection risk, assuming Plaintiff followed the 10 advice of medical staff. (Van Blargen Decl. ¶ 6.) 11 49. On December 21, 2015, Van Blargen saw Plaintiff for a medical visit, which was 12 prompted by a health care request form submitted by Plaintiff in which he complained about a cut to 13 his right heel area and request for a walker. (Van Blargen Decl. ¶ 7; Pl.’s Dep. at 43:12-25.) 14 50. During the December 21, 2015 visit Van Blargen observed that the cut was two-to- 15 three centimeters, remained without signs and symptoms of an infection, and appeared to be 16 improving. (Van Blargen Decl. ¶ 7.) 17 51. During the December 21, 2015 visit, Van Blargen instructed Plaintiff to continue with 18 daily dressing, and informed Plaintiff that he would discuss his request for a walker with his primary 19 care physician, noting that a follow-up visit had been scheduled for the following week. (Van Blargen 20 Decl. ¶ 7.) 21 52. On December 23, 2015, Van Blargen saw Plaintiff for a medical visit, which was 22 prompted by a health care request form in which Plaintiff mainly complained about pain in both 23 shoulders, albeit he also complained about pain his right heel. (Van Blargen Decl. ¶ 8.) 24 53. During the December 23, 2015 visit, Van Blargen measured Plaintiff’s vital signs— 25 such as his blood pressure, pulse rate, and temperature—and also observed his range of movement and 26 bodily extremities. (Van Blargen Decl. ¶ 8.) 27 28 12 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 13 of 34 1 54. While the December 23, 2015 visit mostly focused on Plaintiff’s shoulder pain, Van 2 Blargen note that Plaintiff was referred to a podiatry specialist to assess his foot-related pain. (Van 3 Blargen Decl. ¶ 8.) 4 55. On December 28, 2015, Van Blargen saw Plaintiff for a medical visit, which was 5 prompted by Plaintiff’s complaints pertaining to his foot fungus and sharp pain arising from the cut to 6 his right heel area. (Van Blargen Decl. ¶ 9.) 7 56. During the December 28, 2015 visit, Van Blargen observed substantial callus formation 8 on his right foot (i.e., thickening and hardening of the skin due to exposure to repeated friction), as 9 well as foot fungus and a cut to his right heel. (Van Blargen Decl. ¶ 9.) 10 57. Based on observations of Plaintiff’s physical condition and medical assessment during 11 the December 28, 2015 visit, Van Blargen’s medical opinion was that proper foot care and hygiene 12 were key to effectively managing Plaintiff’s cut to his heel, and, on this basis, Van Blargen cleaned, 13 applied antibiotic ointment to, and re-dressed Plaintiff’s right foot. (Van Blargen Decl. ¶ 9.) 14 58. During the December 28, 2015 visit, Van Blargen advised Plaintiff to make sure to 15 keep his feet clean, using soap and water, and to ensure his feet remained dry. (Van Blargen Decl. ¶ 16 9.) 17 59. On January 5, 2016, Van Blargen saw Plaintiff for a medical visit, which was prompted 18 by Plaintiff’s complaint pertaining to a cut to his left heel care. (Van Blargen Decl. ¶ 10; Pl.’s Dep. at 19 51:19-20.) 20 60. During the January 5, 2016 visit, Van Blargen observed that the cut was located within 21 the middle left heal area—amid callous, dry, and cracking skin. (Van Blargen Decl. ¶ 10.) 22 61. The cut to Plaintiff’s left heel developed approximately one week before the January 5, 23 2016 visit. (Van Blargen Decl. ¶ 10.) 24 62. During the January 5, 2016 visit, Van Blargen observed that the cut to Plaintiff’s left 25 heel was approximately 1.5 centimeters in length. (Van Blargen Decl. ¶ 10.) 26 63. During the January 5, 2016 visit, Van Blargen observed that the cut to Plaintiff’s right 27 heel remained largely unchanged, albeit the right heel area became heavily callused but was without 28 any active bleeding. (Van Blargen Decl. ¶ 10.) 13 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 14 of 34 1 64. During the January 5, 2016 visit, Van Blargen irrigated and cleansed the cuts to both 2 feet using sodium Chloride Irrigation solution and Chlorhexidine skin cleanser, both of which were 3 standard sterilizing solutions. (Van Blargen Decl. ¶ 10.) 4 65. During the January 5, 2016 visit, Van Blargen learned that Plaintiff had a pending 5 appointment with a podiatry specialist, who would address the cuts to his feet as well as the callus 6 issues, and otherwise referred him for a follow-up appointment with the registered nursing clinic. 7 (Van Blargen Decl. ¶ 10.) 8 66. On February 5, 2016, Van Blargen saw Plaintiff for a medical visit, the purpose of 9 which was to follow up on the cuts to Plaintiff’s heels. (Van Blargen Decl. ¶ 11.) 10 67. During the February 5, 2016 visit, Plaintiff reported no change in either foot, albeit 11 Plaintiff reported that he still experienced pain and continued to have difficulty walking. (Van 12 Blargen Decl. ¶ 11.) 13 68. During the February 5, 2016 visit, Van Blargen observed that Plaintiff was ambulating 14 with a cane, and further observed that there was no sign of infection on Plaintiff’s feet. (Van Blargen 15 Decl. ¶ 11.) 16 69. During the February 5, 2016 visit, Van Blargen noted that a podiatry consultation had 17 been scheduled for February 9, 2016. (Van Blargen Decl. ¶ 11.) 18 70. During the February 5, 2016 visit, Van Blargen provided instruction to Plaintiff to 19 maintain all his follow up appointments and to take all prescribed medications in accordance with his 20 primary care physician’s order, to which Plaintiff responded that he understood. (Van Bargen Decl. ¶ 21 11.) 22 71. While Van Bargen noted the pain reported by Plaintiff during the February 5, 2016 23 visit, Van Blargen’s medical opinion nonetheless was that no further action was medically necessary, 24 pending the consultation with the podiatric specialist. (Van Blargen Decl. ¶ 11.) 25 72. As a registered nurse, Van Blargen did not have authority to, and accordingly did not, 26 prescribe medications, issue medical orders, approve or deny any request for a mobility device, or 27 override the orders or treatment plans of other medical providers such as a podiatry specialist, 28 physician assistant, or physician. (Van Blargen Decl. ¶ 13.) 14 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 15 of 34 1 73. During the relevant times, Plaintiff did not comply with medical staff’s advice and/or 2 instructions with respect to proper foot care—including, but not limited to, walking on prison grounds 3 without any socks or shoes—which can exacerbate cuts to the heels. (Van Blargen Decl. ¶ 14.) 4 Plaintiff’s Visit with Physician Assistant Hitchman on December 17, 2015 5 75. On December 17, 2015, in his capacity as a physician assistant, Hitchman saw Plaintiff 6 for a medical visit, which was prompted by Plaintiff’s complaint pertaining to reported difficulties 7 ambulating due to lower body pain. (Hitchman Decl. ¶ 4.) 8 76. During the December 17, 2015 visit, Hitchman conducted a physical examination of 9 Plaintiff, examining his chest and back area, which revealed no bruising or abrasions. (Hitchman Decl. 10 ¶ 4.) 11 77. During the December 17, 2015 visit, Plaintiff presented as having an unsteady gait and 12 balance. (Hitchman Decl. ¶ 4.) 13 78. From the physical examination on December 17, 2015, Hitchman observed that 14 Plaintiff’s gait appeared extremely deliberate and erratic, and objective findings from a strength 15 examination revealed that Plaintiff could ambulate satisfactorily. (Hitchman Decl. ¶ 4.) 16 79. Based on his observations, findings, and assessments during the December 17, 2015 17 visit, Hitchman had significant reservations about the way Plaintiff attempted to present himself 18 during the visit, and concluded that inconsistencies between Plaintiff’s attempted presentation and the 19 objective findings from the physical examination reflected manipulative behavior on Plaintiff’s part. 20 (Hitchman Decl. ¶ 5.) 21 80. Based on his observations, findings, and medication assessments during the December 22 17, 2015 visit, Hitchman concluded that Plaintiff had minimal-to-no mobility impairment and, 23 therefore, rescinded the wheelchair accommodation. (Hitchman Decl. ¶ 5.) 24 81. During the December 17, 2015 visit, Hitchman advised Plaintiff to wear his orthotic 25 shoes, and referred Plaintiff to his primary care physician for further determination. (Hitchman Decl. 26 ¶ 5.) 27 /// 28 /// 15 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 16 of 34 1 Plaintiff’s Visits with Registered Nurse Silveira 2 82. With respect to any medical care that Silveira provided to Plaintiff, as a registered 3 nurse, Silveira did not have authority to, and did not, issue any medical orders, approve, or deny any 4 request for a mobility device, or override the orders or treatment plans of other medical providers such 5 as a podiatry specialist, physician assistant, or physician. (Silveira Decl. ¶ 6.) 6 83. As a registered nurse, Silveira did not have authority to issue any binding orders or 7 commands to physician assistants, including physician assistant Siegrist. (Silveira Decl. ¶ 6.) 8 84. During the January 14, 2015 visit, Silveira only observed Plaintiff’s foot condition. 9 (Pl.’s Dep. at 56:1-7.) 10 85. Any opinion that Silveira communicated to medical staff, including physician assistant 11 Siegrist, pertaining to Plaintiff’s foot condition was informal, complimentary, and non-binding. 12 (Silveira Decl. ¶ 6.) 13 86. Based on observations of Plaintiff’s foot condition, and in light of Plaintiff’s medical 14 complaints and/or presentation, Silveira did not believe that Plaintiff had a foot condition that posed a 15 substantial risk of serious harm. (Silveira Decl. ¶¶ 4, 7.) 16 87. Any action taken or opinion expressed by Siegrist in connection with Plaintiff’s foot 17 condition did not bind or control the medical opinions or treatments of other medical providers. 18 (Silveira Decl. ¶¶ 5-6.) 19 Plaintiff’s Visits with Dr. Conanan 20 88. On January 12, 2016, Dr. Conanan met with Plaintiff to interview him in connection 21 with the review of a healthcare grievance, identified as grievance log number ASP HC 15029625, 22 which grieved that Plaintiff was provided with inadequate health care, in particular that Siegrist was 23 indifferent to and ignored issues pertaining to his shoulder pain, tendonitis, and “lesions” on his foot. 24 (Conanan Decl. ¶ 5.) 25 89. During the January 12, 2016 interview, Plaintiff was allowed to fully explain his 26 grievance issues. (Conanan Decl. ¶ 5.) 27 /// 28 /// 16 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 17 of 34 1 90. Based on Dr. Conanan’s review of Plaintiff’s grievance and pertinent medical records, 2 Dr. Conanan concluded that Plaintiff’s staff misconduct allegation was not substantiated. (Conanan 3 Decl. ¶ 6.) 4 91. Dr. Conanan’s conclusion from the January 12, 2016 interview was based on his 5 assessment that, during his visit with physician assistant Siegrist, Plaintiff’s lung condition and related 6 symptoms took priority over less urgent conditions such as the cut to his foot, justifying Siegrist’s 7 focus on Plaintiff’s lung issues. (Conanan Decl. ¶ 6.) 8 92. Dr. Conanan further concluded that, contrary to what Plaintiff claimed, his foot-related 9 complaint was not ignored, but rather Plaintiff’s foot-related grievance was appropriately noted, and 10 the cut to his heel was appropriately treated with ointment and dressing. (Conanan Decl. ¶ 6.) 11 93. From the January 12, 2016 interview, Dr. Conanan further concluded that, given 12 Plaintiff’s musculoskeletal condition—i.e., condition pertaining to his muscle and skeletal systems— 13 was stable and adequately addressed under the circumstances, no further intervention was medically 14 necessary. (Conanan Decl. ¶ 6.) 15 94. On February 1, 2016, a first-level institutional response was issued concerning a 16 healthcare grievance filed by Plaintiff, identified as grievance log number ASP HC 15029632, which 17 grieved that physician assistant Hitchman examined Plaintiff to determine whether he needed a 18 wheelchair given his “lesion” on his right heel but improperly focused on other issues and rescinded 19 the wheelchair. (Conanan Decl. ¶ 7.)6 20 95. Dr. Conanan reviewed Plaintiff’s grievance log number ASP HC 15029632 and 21 pertinent medical records, and found that nurse practitioner Mathos evaluated him and noted foot 22 calluses but did not order a walker; Plaintiff’s foot received wound care dressing; and Plaintiff was 23 referred to a podiatry specialist and awaiting consultation. (Conanan Decl. ¶ 8.) 24 /// 25 /// 26 27 6 Dr. Conanan’s declaration contains a typographical error as it incorrectly references the grievance as log number ASP 28 HC 15029625, not log number ASP HC 15029632. 17 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 18 of 34 1 96. Based on his review of the medical records and findings, Dr. Conanan concurred with 2 the determination that neither a wheelchair not walker was medically indicated, and grievance log 3 number ASP HC 15029632 was partially granted. (Conanan Decl. ¶ 8.) 4 Plaintiff’s Visit with Dr. Zorrilla on February 9, 2016 5 97. On February 9, 2016, in his capacity as a Doctor of Podiatric Medicine, Dr. Zorrilla 6 saw Plaintiff for a podiatry consultation to assess and treat Plaintiff’s feet pains and conditions. 7 (Conanan Decl. ¶ 10; Siegrist Decl. ¶ 7.) 8 98. During the February 9, 2016 visit, Dr. Zorrilla noted Plaintiff’s fissures and reported 9 pain in his feet, as well as reported ambulation difficulties. (Conanan Decl. ¶ 10; Siegrist Decl. ¶ 7.) 10 99. During the February 9, 2016 visit, Plaintiff’s nails, fissures, and lesions were debrided, 11 which is the medical process of removing damaged skin to achieve healing or other health benefits. 12 (Conanan Decl. ¶ 10; Siegrist Decl. ¶ 7.) 13 100. The debrided area was cleaned and dressed with a multilayer compression during the 14 February 9, 2016 visit, and Plaintiff was instructed to keep the compressing dressing intact for a 15 minimum of two days. (Conanan Decl. ¶ 10; Siegrist Decl. ¶ 6.) 16 101. During the February 9, 2016 visit, Dr. Zorrilla recommended that a walker be issued to 17 assist Plaintiff gain balance and alleviate pressure, and further recommended that his ankle-foot 18 orthosis (AFO) be padded. (Conanan Decl. ¶ 10; Siegrist Decl. ¶ 7.) 19 C. Analysis of Defendants’ Motion 20 Defendants argue that the undisputed evidence demonstrates Defendants provided proper 21 treatment to Plaintiff under the circumstances. 22 Plaintiff argues that the undisputed evidence establishes more than a different of opinion 23 because Defendants acted with deliberate indifference in causing the opening of two wounds on his 24 heels which grew to 1.5 inches, with a depth of .25 inches, causing extreme pain with every step that 25 often immobilized him. Plaintiff contends despite knowledge of the extent of his pain, Defendants 26 ignored his numerous appeals offering only minimal treatment which constituted no treatment at all. 27 While the Eighth Amendment of the United States Constitution entitles Plaintiff to medical 28 care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference to 18 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 19 of 34 1 an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled 2 in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v. 3 Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 4 Plaintiff “must show (1) a serious medical need by demonstrating that failure to treat [his] condition 5 could result in further significant injury or the unnecessary and wanton infliction of pain,” and (2) that 6 “the defendant’s response to the need was deliberately indifferent.” Wilhelm, 680 F.3d at 1122 (citing 7 Jett, 439 F.3d at 1096). Deliberate indifference is shown by “(a) a purposeful act or failure to respond 8 to a prisoner’s pain or possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680 9 F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective 10 recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d at 985 (citation and 11 quotation marks omitted); Wilhelm, 680 F.3d at 1122. 12 “A difference of opinion between a physician and the prisoner - or between medical 13 professionals - concerning what medical care is appropriate does not amount to deliberate 14 indifference.” Snow, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 15 Wilhelm, 680 F.3d at 1122-23 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, 16 Plaintiff “must show that the course of treatment the doctors chose was medically unacceptable under 17 the circumstances and that the defendants chose this course in conscious disregard of an excessive risk 18 to her health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation marks 19 omitted). In addition, “[m]edical malpractice does not become a constitutional violation merely 20 because the victim is a prisoner.” Estelle v. Gamble, 429 U.S. 97, 106 (1977); Snow v. McDaniel, 681 21 F.3d at 987-88, overruled in part on other grounds, Peralta v. Dillard, 744 F.3d at 1082-83; Wilhelm, 22 680 F.3d at 1122. 23 1. Defendant Dr. Kamen 24 Plaintiff alleges that on October 21, 2015, Defendant Dr. Kamen examined Plaintiff in an 25 “assaultive & abusive manner, shoving Plaintiff’s legs around violently, addressing Plaintiff in a loud, 26 insulting & angry voice while discrediting Plaintiff’s medical conditions & rescinding Plaintiff’s 27 wheelchair. Defendant Kamen failed to respond reasonably; his decision to rescind Plaintiff’s 28 19 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 20 of 34 1 wheelchair clearly made Plaintiff’s medical problems worse causing further & significant harm 2 ultimately resulting in the open would previously mentioned.” (Sec. Am. Compl. at 8.) 3 It is undisputed that on October 21, 2015, Dr. Kamen saw Plaintiff for a medical visit. (UDF 4 13.) The purpose of the October 21, 2015 visit between Dr. Kamen and Plaintiff was for Dr. Kamen 5 to evaluate Plaintiff’s disability status, need for a wheelchair, and need for any other accommodations 6 in light of Plaintiff’s claim that he felt pain his feet and heels. (UdF 14.) During the October 21, 2015 7 visit, Dr. Kamen conducted a physical examination of Plaintiff, including his bodily extremities and 8 motion. (UdF 15.) Based on the October 21, 2015 physical examination, Dr. Kamen observed that 9 there was no callus formation on Plaintiff’s feet, did not observe any significant deformity, and 10 concluded that Plaintiff’s gait was steady. (UdF 16.) During the October 12, 2015 visit, Dr. Kamen 11 learned and believed that Plaintiff had been jumping rope earlier that month. (UdF 17.) Based on the 12 October 12, 2015 physical examination, evaluation of Plaintiff’s physical condition and mobility, 13 evaluation of Plaintiff’s medical records, evaluation of Plaintiff’s complaints, and confirmation that 14 Plaintiff had been jumping rope earlier in the month, Dr. Kamen concluded that Plaintiff was able to 15 ambulate satisfactorily and, therefore, did not need a wheelchair. On this basis, Dr. Kamen rescinded 16 Plaintiff’s wheelchair accommodation. (UdF 18.) In evaluating complaints that Plaintiff presented 17 during his October 21, 2015 visit, Dr. Kamen considered Plaintiff’s claims in light of objective 18 findings and results from the physical examination. (UdF 19.) Dr. Kamen’s medical opinion was 19 informed, in part, from his assessment that Plaintiff’s conduct such as jumping rope was incompatible 20 with suffering from a physical disability, informing Dr. Kamen’s opinion that Plaintiff appeared to be 21 engaging in manipulative behavior. (UdF 20.) 22 In opposition, Plaintiff contends that appeal log number ASP SC 15000662 impeaches Dr. 23 Kamen’s and creates a dispute of fact as to his medical care because reviewing staff determined that 24 Dr. Kamen violated CDCR policies. (ECF No. 54, Opp’n at 8-10, 12, 100-01.) However, the 25 determination that Dr. Kamen failed to comply with CDCR policies, specifically Title 15 of the 26 California Code of Regulations section 3391 (dealing with professionalism and courteous behavior) is 27 irrelevant to the issue of whether he was deliberately indifference under the Eighth Amendment. See 28 Valdez v. Farmon, 766 F. Supp. 1529, 1537 (E.D. Cal. 1991) (“This court knows of no authority that 20 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 21 of 34 1 holds that an Eighth Amendment constitutional interest is created by state regulations, the violation of 2 which gives rise to a constitutional tort.”), rev'd on other grounds, 1993 U.S. App. LEXIS 4976 (9th 3 Cir. Mar. 10, 1993). “[V]iolation of state tort law, state regulations, rules and policies of the CDCR, 4 or other state law is not sufficient to state a claim for relief under [Section] 1983.” Ruiz v. Orozco, No. 5 1:19-cv-00048-AWI-GSA-PC, 2020 WL 3058332, at *8 (E.D. Cal. June 9, 2020); accord Hammler v. 6 Alvarez, No. 3:18-cv-0326-AJB-WVG, 2019 WL 3315567, at *4 (S.D. Cal. July 23, 2019) (“[A] 7 prison official's violation of a prison regulation does not itself establish a constitutional violation.”). 8 Therefore, the fact that Dr. Kamen violated a prison regulation does not demonstrate that he acted with 9 deliberate indifference to Plaintiff’s serious medical needs. 10 Plaintiff further declares that there were three documented falls in his medical records, and at 11 least one in the correctional officer’s daily log for ASP Building E520. (ECF No. 54, Opp’n at 64.) 12 However, Plaintiff contends this is not the complete account of the numerous times that he fell or 13 simply tripped while engaging in his daily activities. Plaintiff claims that he feared retribution by 14 Defendant Dr. Kamen who threatened him not to “play the fall game.” (Id.) Plaintiff contends that 15 Dr. Kamen actually rescinded all of his accommodations which caused Plaintiff to fear further 16 retribution. (Id.) Even assuming the validity of Plaintiff’s allegations, Plaintiff fails to demonstrate 17 that Dr. Kamen acted with deliberate indifference to a serious medical need. See, e.g., McClellan v. 18 Bassett, 2006 WL 2079371 (D. Va. 2006) ( “an institutional employee's verbal harassment or idle 19 threats to an inmate, even if they cause an inmate fear, anxiety, or discomfort, do not constitute an 20 invasion of any identified liberty interest.”). Furthermore the undisputed facts establish that Dr. 21 Kamen concluded that Plaintiff was able to ambulate well enough without the medical necessity for a 22 wheelchair. Plaintiff has identified no evidence suggesting that Dr. Kamen’s stated reasons for this 23 decision were not his actual subjective reasons. Rather, Plaintiff argues that because of his alleged 24 falls Dr. Kamen was should not have rescinded his wheelchair accommodation. The Court disagrees. 25 The fact that plaintiff had previously been issued a wheelchair accommodation does not establish 26 deliberate indifference by Dr. Kamen. Further, Plaintiff’s report that he had previously fallen three 27 (or more) times does not demonstrate that Dr. Kamen was deliberately indifferent by rescinding his 28 wheelchair accommodation, as Plaintiff cannot provide medical opinion as to the necessity of the 21 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 22 of 34 1 accommodation. Fed. R. Evid. 702; see also Snow v. McDaniel, 681 F.3d at 987; Hutchinson v. 2 United States, 838 F.2d 390, 392 (9th Cir. 1988) (appropriate standard of care for medical treatment 3 can only be established by expert medical testimony; inmate plaintiff's allegations supported only by 4 lay opinions failed to present a triable issue of fact). Moreover, even if there was a difference of 5 opinion among doctors about the appropriate accommodations for Plaintiff, such difference of medical 6 opinion is insufficient as a matter of law to establish deliberate indifference. Toguchi v. Chung, 391 7 F.3d 1051, 1058 (9th Cir. 2004); Jackson v. McIntosh, 90 F.3d at 332. Where there is a difference of 8 opinion, Plaintiff can prevail only if the course of treatment defendant chose was medically 9 unacceptable under the circumstances, and was chosen in conscious disregard of an excessive risk to 10 plaintiff's health or safety. Jackson, 90 F.3d at 332. The record in this case is devoid of evidence that 11 Dr. Kamen’s choice to rescind the wheelchair accommodation was “medically unacceptable.” 12 Plaintiff has failed to rebut the medical opinion offered by Defendant Dr. Kamen with any competent 13 evidence asserting that the course of treatment provided was inappropriate for his medical condition. 14 See Jackson, 90 F.3d at 332. 15 2. Defendant Physician Assistant Siegrist 16 Plaintiff contends that on November 20, 2015, he complained to Defendant Siegrist about pain 17 in his right foot but no care was provided. (Sec. Am. Compl. at 8.) On December 4, 2015, Plaintiff 18 contends he urged Siegrist to examine his wound, but he again ignored it. (Id.) On December 10, 19 2015, Plaintiff saw Siegrist and requested treatment for his open wound, as well as other related 20 ailments that made it extremely difficult for him to perform daily chores. (Id.) Plaintiff attempted to 21 show Siegrist his wound during this visit, but Siegrist ignored it. (Id.) 22 It is undisputed that on November 20, 2015, in her capacity as a physician assistant, Siegrist 23 saw Plaintiff for a medical visit. (UdF 21.) The purpose of the November 20, 2015 visit between 24 Siegrist and Plaintiff was to follow up on the status of a computed tomography scan (also referred as 25 “CT scan” or “CAT scan”) performed on December 1, 2015, as well as to evaluate Plaintiff’s lung 26 disease. (UdF 22.) The main issue discussed during the November 20, 2015 visit was Plaintiff’s 27 reactions to medications intended to treat his lung disease symptoms, but Siegrist also addressed 28 Plaintiff’s request that his walker be returned to him. (UdF 23.) In evaluating whether to grant 22 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 23 of 34 1 Plaintiff’s walker request, Siegrist learned and believed that Plaintiff had been observed jumping rope, 2 which, in her view, contributed to the decision to previously rescind Plaintiff’s walker. (UdF 24.) 3 During the November 20, 2015 visit, based on Plaintiff’s documented history of jumping rope, Siegrist 4 denied Plaintiff’s request for a walker. (UdF 25.) Siegrist advised Plaintiff on his upcoming 5 appointment with an orthotics specialist, who would further address Plaintiff’s mobility-related 6 complaints, to which Plaintiff confirmed that he understood. (UdF 26.) Beyond the care and 7 education provided to Plaintiff, Siegrist did not believe further action was necessary during the 8 November 20, 2015 visit. (UdF 27.) 9 On December 4, 2015, Siegrist met with Plaintiff to interview him in connection with the 10 review of a healthcare grievance that Plaintiff filed, identified as grievance log number ASP HC 11 15029556, in which Plaintiff requested that his seated walker be reinstated. (UdF 28.) During the 12 December 4, 2015 interview, Siegrist learned or was aware that Dr. Kamen had previously evaluated 13 Plaintiff’s mobility issues on October 21, 2015 and performed a physical examination that revealed no 14 difficulty ambulating, and that medical staff had observed Plaintiff jumping rope for approximately 15 one minutes with no signs of difficulty. (UdF 29.) On December 4, 2015, when Plaintiff was unaware 16 that Siegrist was observing him, Siegrist observed Plaintiff walking to a medical clinic without 17 exhibiting any ambulation issues. (UdF 30.) Based on Plaintiff’s medical history, Plaintiff’s 18 explanations during the December 4, 2015 interview, and Siegrist’s personal observations of Plaintiff 19 ambulating without distress or balance issues, Siegrist concluded that Plaintiff could ambulate 20 satisfactorily and, therefore, deemed that no further action was necessary. (UdF 31.) 21 On December 10, 2015, Siegrist saw Plaintiff for a medical visit. (UdF 32.) The purpose of 22 the December 10, 2015 visit between Siegrist and Plaintiff was to follow up on a CAT scan performed 23 on December 1, 2015. (UdF 33.) During the December 10, 2015 visit, Siegrist discussed the CAT 24 scan findings, which confirmed the existence of chronic interstitial lung disease and pulmonary 25 fibrosis. (UdF 34.) Siegrist attempted to convey to Plaintiff the seriousness of his lung condition and 26 weight loss, but Plaintiff wanted to re-focus the conversation back to his complaints about pain in his 27 feet. (UdF 35.) Siegrist advised Plaintiff that his focus should be his lung function and weight loss, 28 and further advised him that he was being referred for additional pulmonary tests and would undergo a 23 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 24 of 34 1 pulmonology consultation. (UdF 36.) Upset at Siegrist’s attempt to re-focus attention to his lung 2 condition, Plaintiff left the exam room before Siegrist could conclude the December 10, 2015 visit, 3 albeit Siegrist nonetheless scheduled Plaintiff for a follow-up referral. (UdF 37.) Siegrist concluded 4 that Plaintiff’s health would be best served by focusing on addressing his lung condition and weight 5 loss. (UdF 38.) 6 On February 24, 2016, Siegrist saw Plaintiff for a medical visit. (UdF 39.) During the 7 February 24, 2016 visit, Siegrist reviewed the medical consultation noted, dated February 9, 2016, by 8 Dr. Zorrilla who noted that Plaintiff’s nails, fissures, and lesions were “debrided,” and were cleaned 9 and dressed with a multilayer compression, and Plaintiff was instructed to keep the compressing 10 dressing intact for a minimum of two days. (UdF 40.) During the February 24, 2016 visit, Siegrist 11 further noted the findings from Plaintiff’s lung biopsy taken on January 13, 2016, whereby Siegrist 12 concluded that Plaintiff had chronic interstitial disease and further discussed with Plaintiff the pain he 13 felt around his left elbow and steroid injection to address the pain. (UdF 41.) In light of Plaintiff’s 14 health condition during the February 24, 2016 visit, as well as the findings and recommendation made 15 by dr. Zorrilla during the February 9, 2016 consultation, Siegrist determined that granting a temporary 16 walker for sixty days was warranted, and further submitted requests for follow-up podiatry and 17 pulmonology consultations. (UdF 42.) 18 The undisputed evidence demonstrates that Siegrist did not ignore or fail to treat Plaintiff’s 19 wounds. To the contrary, the evidence reflects that Siegrist listened to Plaintiff’s requests for 20 treatment and request for a walker, but he believed it was not medically necessary. While Plaintiff 21 may have wished to further discuss his foot conditions, Siegrist stressed the seriousness of his lung 22 condition and resulting weight loss and attempted to re-focus Plaintiff on those issues. Nonetheless, 23 Defendant Siegrist referred him for additional pulmonary tests and pulmonology consultation. (UDF 24 36.) Although Plaintiff complained of foot pain, Siegrist’s actions demonstrate that Plaintiff’s health 25 would be best served by prioritizing his lung condition and weight loss first and foremost, which were 26 substantially more urgent than his foot condition. As a layperson, Plaintiff’s belief that his foot 27 conditions were more urgent than his lung condition and weight loss is not admissible. Fed. R. Evid. 28 701. Therefore, Plaintiff's opinion that he had an urgent need for treatment and/or a walker prior to 24 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 25 of 34 1 February 2016, is not admissible. Only an expert witness with specialized knowledge may determine 2 whether Defendant's conduct was within the appropriate standard of care, whether Defendant's actions 3 or failure to act were the cause of any harm, or if delays in Plaintiff's treatment led to further harm. 4 For that reason, Defendant Siegrist’s action in triaging the treatment for his various medical conditions 5 is a class example of the exercise of medical judgment. (UdF 12.) 6 In opposition, Plaintiff references appeal log number ASP HC 15029625 in which Plaintiff 7 claimed that he was provided with inadequate health care, in particular that Siegrist was indifferent to 8 and ignored issues pertaining to his shoulder pain, tendonitis, and “lesions” on his foot. (ECF No. 54, 9 Opp’n at 71-72; UdF 88.) However, Plaintiff’s handwritten complaints about the treatment or lack 10 thereof provided by Defendant Siegrist in a CDCR 602 inmate grievance is insufficient to create a 11 genuine dispute of material fact. Accordingly, Defendant Siegrist is entitled to judgment as a matter 12 of law. 13 3. Defendant Registered Nurse Van Blargen 14 Plaintiff contends that on December 14, 2015, he complained to Defendant Van Blargen about 15 his pain and inability to walk due to his open wound. (Sec. Am. Compl. at 8.) While Van Blargen 16 dressed the wound, Plaintiff contends this treatment was inadequate because the wound continued to 17 grow. (Id.) On December 21, 2015, Plaintiff again complained to Van Blargen about his increasing 18 pain and difficulty walking, particularly because the wound alleged had grown in size. (Id. at 9.) On 19 December 23, 2015, Plaintiff again complained to Van Blargen, and complained to him for a third 20 time on December 28, 2015. (Id.) Van Blargen dressed the wound again, but Plaintiff contends that 21 did nothing to stop it from growing. (Id.) Then, on January 5, 2015, Plaintiff showed Van Blargen a 22 second wound that had begun to develop on his left heel. (Id.) Plaintiff explained that standing on his 23 feet, walking to the dining room, showering, and using the restroom caused intense pain. (Id.) Van 24 Blargen applied the usual ointment and dressing remedies, which were ineffective. (Id.) Lastly, on 25 February 5, 2016, Plaintiff complained to Van Blargen about his continuing pain. (Id. at 10.) Van 26 Blargen noted his distress but continued with the usual treatment, which Plaintiff contends was 27 ineffective. (Id.) 28 /// 25 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 26 of 34 1 Here, it is undisputed that on December 14, 2015, in his capacity as a registered nurse, Van 2 Blargen saw Plaintiff for a medical visit, in which he complained about lesions on his foot that 3 frustrated his ability to walk. (UdF 43.) During the December 14, 2015 visit, Van Blargen observed a 4 cut (also known as a fissure) to Plaintiff’s right heel, which was approximately two centimeters long. 5 (UdF 44.) In evaluating the cut to Plaintiff’s right heel during the December 14, 2015 visit, Van 6 Blargen observed dry cracking on both feet, noticed foot fungus formation, but otherwise observed no 7 active bleeding. (UdF 45.) Based on observations of Plaintiff’s right heel on December 14, 2015, Van 8 Blargen’s medical opinion was that the cut appeared to be a chronic and, therefore, long-term 9 condition. (UdF 46.) Acknowledging that the cut could cause pain, Van Blargen’s medical opinion, 10 based on his observation of Plaintiff’s foot during the December 14, 2015 visit, was that the cut did 11 not pose a substantial risk to Plaintiff’s health. (UdF 47.) Based on his observation of Plaintiff’s foot 12 during the December 14, 2015 visit, Van Blargen determined that, under the circumstances, wound 13 care via sterilization and dressing was reasonable and sufficient to mitigate further injury and infection 14 risk, assuming Plaintiff followed the advice of medical staff. (UdF 48.) 15 On December 21, 2015, Van Blargen saw Plaintiff for a medical visit, which was prompted by 16 a health care request form submitted by Plaintiff in which he complained about a cut to his right heel 17 area and request for a walker. (UdF 49.) During the December 21, 2015 visit Van Blargen observed 18 that the cut was two-to-three centimeters, remained without signs and symptoms of an infection, and 19 appeared to be improving. (UdF 50.) Van Blargen instructed Plaintiff to continue with daily dressing, 20 and informed Plaintiff that he would discuss his request for a walker with his primary care physician, 21 noting that a follow-up visit had been scheduled for the following week. (UdF 51.) 22 On December 23, 2015, Van Blargen saw Plaintiff for a medical visit, which was prompted by 23 a health care request form in which Plaintiff mainly complained about pain in both shoulders, albeit he 24 also complained about pain his right heel. (UdF 52.) During the December 23, 2015 visit, Van 25 Blargen measured Plaintiff’s vital signs—such as his blood pressure, pulse rate, and temperature—and 26 also observed his range of movement and bodily extremities. (UdF 53.) While the December 23, 27 2015 visit mostly focused on Plaintiff’s shoulder pain, Van Blargen note that Plaintiff was referred to 28 a podiatry specialist to assess his foot-related pain. (UdF 54.) 26 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 27 of 34 1 On December 28, 2015, Van Blargen saw Plaintiff for a medical visit, which was prompted by 2 Plaintiff’s complaints pertaining to his foot fungus and sharp pain arising from the cut to his right heel 3 area. (UdF 55.) During the December 28, 2015 visit, Van Blargen observed substantial callus 4 formation on his right foot (i.e., thickening and hardening of the skin due to exposure to repeated 5 friction), as well as foot fungus and a cut to his right heel. (UdF 56.) Based on observations of 6 Plaintiff’s physical condition and medical assessment during the December 28, 2015 visit, Van 7 Blargen’s medical opinion was that proper foot care and hygiene were key to effectively managing 8 Plaintiff’s cut to his heel, and, on this basis, Van Blargen cleaned, applied antibiotic ointment to, and 9 re-dressed Plaintiff’s right foot. (UdF 57.) Van Blargen advised Plaintiff to make sure to keep his feet 10 clean, using soap and water, and to ensure his feet remained dry. (UdF 58.) 11 On January 5, 2016, Van Blargen saw Plaintiff for a medical visit, which was prompted by 12 Plaintiff’s complaint pertaining to a cut to his left heel care. (UdF 59.) During the January 5, 2016 13 visit, Van Blargen observed that the cut was located within the middle left heal area—amid callous, 14 dry, and cracking skin. (UdF 60.) The cut to Plaintiff’s left heel developed approximately one week 15 before the January 5, 2016 visit. (UdF 61.) Van Blargen observed that the cut to Plaintiff’s left heel 16 was approximately 1.5 centimeters in length. (UdF 62.) Van Blargen also observed that the cut to 17 Plaintiff’s right heel remained largely unchanged, albeit the right heel area became heavily callused 18 but was without any active bleeding. (UdF 63.) Van Blargen irrigated and cleansed the cuts to both 19 feet using sodium Chloride Irrigation solution and Chlorhexidine skin cleanser, both of which were 20 standard sterilizing solutions. (UdF 64.) During this visit, Van Blargen learned that Plaintiff had a 21 pending appointment with a podiatry specialist, who would address the cuts to his feet as well as the 22 callus issues, and otherwise referred him for a follow-up appointment with the registered nursing 23 clinic. (UdF 65.) 24 On February 5, 2016, Van Blargen saw Plaintiff for a medical visit, the purpose of which was 25 to follow up on the cuts to Plaintiff’s heels. (UdF 66.) During the February 5, 2016 visit, Plaintiff 26 reported no change in either foot, albeit Plaintiff reported that he still experienced pain and continued 27 to have difficulty walking. (UdF 67.) Van Blargen observed that Plaintiff was ambulating with a 28 27 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 28 of 34 1 cane, and further observed that there was no sign of infection on Plaintiff’s feet. (UdF 68.) Van 2 Blargen noted that a podiatry consultation had been scheduled for February 9, 2016. (UdF 69.) 3 Van Blargen provided instruction to Plaintiff to maintain all his follow up appointments and to take all 4 prescribed medications in accordance with his primary care physician’s order, to which Plaintiff 5 responded that he understood. (UdF 70.) While Van Bargen noted the pain reported by Plaintiff 6 during the February 5, 2016 visit, Van Blargen’s medical opinion nonetheless was that no further 7 action was medically necessary, pending the consultation with the podiatric specialist. (UdF 71.) As a 8 registered nurse, Van Blargen did not have authority to, and accordingly did not, prescribe 9 medications, issue medical orders, approve or deny any request for a mobility device, or override the 10 orders or treatment plans of other medical providers such as a podiatry specialist, physician assistant, 11 or physician. (UdF 72.) During the relevant times, Plaintiff did not comply with medical staff’s 12 advice and/or instructions with respect to proper foot care—including, but not limited to, walking on 13 prison grounds without any socks or shoes—which can exacerbate cuts to the heels. (UdF 73.) 14 Based on the undisputed evidence, Plaintiff has failed to demonstrate that a genuine dispute of 15 material fact exists. At the December 14, 2015 visit, Van Blargen observed the cut on Plaintiff’s right 16 heel and did not deny that it caused pain. (UdF 47.) However, Van Blargen’s medical opinion was, 17 based on his observation of Plaintiff’s foot, that the cut did not pose a substantial risk to Plaintiff’s 18 health. (Id.) Based on his opinion, Van Blargen determined that, under the circumstances, it was 19 reasonable and sufficient to care for the wound by sterilization and dressing to mitigate further injury 20 and infection risk, assuming Plaintiff followed the advice of medical staff. (UdF 48.) 21 Plaintiff’s claim that Van Blargen provided insufficient care despite informing him of his 22 grievance on December 21, 23, 28, 2015, lacks merit. As set forth above, the undisputed evidence 23 demonstrates that beyond the wound care and education that Van Bargen provided to Plaintiff during 24 the December 21, 23, and 28 visits, no further action was medically necessary. The evidence supports 25 the finding that Van Blargen duly noted Plaintiff’s complaints and took reasonable steps to address 26 those complaints. Plaintiff’s mere disagreement with Van Blargen’s medical opinions are insufficient 27 to give rise to a genuine dispute of material fact. 28 /// 28 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 29 of 34 1 As illustrated above, the main concern with respect to the wounds on Plaintiff’s heels was to 2 ensure that they did not develop into an infection. With regard to the January 5, 2016 visit, the 3 evidence confirms that Van Blargen took steps to mitigate the risk of infection by applying sterilizing 4 solutions, while simultaneously noting that Plaintiff had a pending appointment with a podiatry 5 specialist, who would further evaluate the wounds on his feet as well as the callus issues. (UdF 65.) 6 In light of Van Blargen’s evaluation concerning the condition of Plaintiff’s cut, there is no evidence 7 that the treatment was unreasonable under the circumstances. While Plaintiff may disagree or 8 preferred other treatment, his disagreement and personal opinion are insufficient to establish that the 9 treatment at the January 5, 2016 visit constituted deliberate indifference in violation of the Eighth 10 Amendment. Accordingly, Defendant Van Blargen is entitled to judgment as a matter of law. 11 4. Defendant Physician Assistant Hitchman 12 Plaintiff contends that on December 17, 2015, he asked Defendant Hitchman for wound 13 treatment and a referral to a specialist. (Sec. Am. Compl. at 8.) However, after conducting an 14 examination, Hitchman failed to treat Plaintiff’s wound and failed to refer him to a specialist. (Id.) 15 It is undisputed that on December 17, 2015, in his capacity as a physician assistant, Hitchman 16 saw Plaintiff for a medical visit, which was prompted by Plaintiff’s complaint pertaining to reported 17 difficulties ambulating due to lower body pain. (UdF 75.) During the December 17, 2015 visit, 18 Hitchman conducted a physical examination of Plaintiff, examining his chest and back area, which 19 revealed no bruising or abrasions. (UdF 76.) Plaintiff presented as having an unsteady gait and 20 balance. (UdF 77.) From the physical examination on December 17, 2015, Hitchman observed that 21 Plaintiff’s gait appeared extremely deliberate and erratic, and objective findings from a strength 22 examination revealed that Plaintiff could ambulate satisfactorily. (UdF 78.) Based on his 23 observations, findings, and assessments during the December 17, 2015 visit, Hitchman had significant 24 reservations about the way Plaintiff attempted to present himself during the visit, and concluded that 25 inconsistencies between Plaintiff’s attempted presentation and the objective findings from the physical 26 examination reflected manipulative behavior on Plaintiff’s part. (UdF 79.) Hitchman concluded that 27 Plaintiff had minimal-to-no mobility impairment and, therefore, rescinded the wheelchair 28 29 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 30 of 34 1 accommodation. (UdF 80.) Hitchman advised Plaintiff to wear his orthotic shoes, and referred 2 Plaintiff to his primary care physician for further determination. (UdF 81.) 3 Plaintiff declares that another inmate told him Defendant Hitchman claims to be a medical 4 doctor and he is “well-known for his ‘animus’ toward inmates with a reputation of being mean, 5 abusive, and uncaring.” (Opp’n at 67.) Plaintiff became “very skeptical about letting Defendant 6 Hitchman examine [him].” (Id.) Defendant Hitchman isolated Plaintiff “to another area where his 7 female assistant was found seated behind a desk.” (Id. at 68.) Hitchman then began to interview 8 Plaintiff and he asked Plaintiff a lot of questions about his boxing career. (Id.) Plaintiff further 9 declares that “Defendant Hitchman stood me up in front of him, grabbed onto my shirt with one hand, 10 pulling it tightly around my waist almost to the point of lifting my feet and frail body off the ground. 11 Defendant Hitchman then began spinning me from side to side so roughly that I lost my balance and 12 had to grab onto him. When Defendant Hitchman released me, I was dizzy and confused and cannot 13 remember exactly what he said, but Defendant Hitchman made a comment about my being able to 14 pivot and him having a witness.” (Id.) Plaintiff believes the examination was conducted without any 15 witnesses, besides his personal assistant in order to unjustly discredit him. (Id.) 16 It remains undisputed that Defendant Hitchman is a licensed physician assistant who was 17 qualified to examine and treat Plaintiff on December 17, 2015. (Hitchman Decl. ¶ 1 (“My duties and 18 regular functions as a physician assistant include reviewing inmate-patients’ medical records for 19 assessment of their medical condition or diagnosis, meeting with and providing medical care to 20 inmate-patients, setting forth treatment plans, and referring inmate-patients for follow-up 21 appointments or visits as necessary.”)) While Plaintiff may not have enjoyed or agreed with the 22 examination by Defendant Hitchman, there is insufficient evidence to demonstrate that Hitchman 23 acted with deliberate indifference on December 17, 2015. To the contrary, Hitchman noted that he 24 observed callus formation on Plaintiff’s right heel, but concluded that would not adversely impact 25 Plaintiff’s ambulation activities. Further, Hitchman advised Plaintiff to wear his orthopedic shoes and 26 referred Plaintiff to his primary care physician for further evaluation. Plaintiff’s disagreement with the 27 examination and treatment is insufficient to demonstrate deliberate indifference. Accordingly, based 28 30 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 31 of 34 1 on the undisputed evidence, there is no genuine dispute of material fact as to whether Defendant 2 Hitchman acted with deliberate indifference. 3 5. Defendant Registered Nurse Silveira 4 Plaintiff alleges that Defendant Silveira arrived to an ongoing visit he had with physician 5 assistant Siegrist on January 14, 2016. (Sec. Am. Compl. at 10.) Siegrist allegedly asked Silveira to 6 assist her examine Plaintiff’s feet, but Silveira downplayed the seriousness of his wounds and 7 contradicted other medical providers. (Sec. Am. Compl. at 10.) 8 It is undisputed that during the January 14, 2015 visit, Silveira only observed Plaintiff’s foot 9 condition. (UdF 84.) Even assuming Silveira expressed his opinion that Plaintiff’s foot conditions 10 were not serious, this does not demonstrate deliberate indifference. Any opinion that Silveira 11 communicated to medical staff, including physician assistant Siegrist, pertaining to Plaintiff’s foot 12 condition was informal, complimentary, and non-binding. (UdF 85.) Based on observations of 13 Plaintiff’s foot condition, and in light of Plaintiff’s medical complaints and/or presentation, Silveira 14 did not believe that Plaintiff had a foot condition that posed a substantial risk of serious harm. (UdF 15 86.) Any action taken or opinion expressed by Siegrist in connection with Plaintiff’s foot condition 16 did not bind or control the medical opinions or treatments of other medical providers. (UdF 87.) 17 Further, as a registered nurse, Silveira lacked authority to issue any orders or override the 18 determinations of other medical providers. (UdF 82.) Siegrist was not subordinate to Silveira. (UdF 19 83.) It is undisputed that the only action taken by Silveira was his opinion as to the condition of 20 Plaintiff’s foot, which had no binding effect. Consequently, even assuming the validity of Plaintiff’s 21 testimony regarding Silveira’s conduct on January 14, 2016, there is no evidence that Silveira ignored 22 a substantial risk of serious harm or influenced others to ignore any substantial risk of serious harm. 23 Plaintiff’s claim is nothing more than a disagreement with Silveira’s non-binding opinion which does 24 not give rise to deliberate indifference in violation of the Eighth Amendment. 25 6. Defendant Dr. Conanan 26 Plaintiff contends that Dr. Conanan responded to his request for treatment by dismissing it as 27 “less urgent” than other issues, overruling the orders of other providers. (Sec. Am. Compl. at 10.) 28 Plaintiff further alleges that, on February 1, 2016, Dr. Conanan denied his “emergency appeal” for a 31 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 32 of 34 1 mobility device as “not medically indicated.” (Id.) Plaintiff argues this denial proved to be incorrect 2 eight days later by independent specialist Dr. Orlando Zorrilla, who ordered a walker for Plaintiff. 3 (Id.) 4 It is undisputed that On January 12, 2016, Dr. Conanan met with Plaintiff to interview him in 5 connection with the review of a healthcare grievance, identified as grievance log number ASP HC 6 15029625, which grieved that Plaintiff was provided with inadequate health care, in particular that 7 Siegrist was indifferent to and ignored issues pertaining to his shoulder pain, tendonitis, and “lesions” 8 on his foot. (UdF 88.) During the January 12, 2016 interview, Plaintiff was allowed to fully explain 9 his grievance issues. (UdF 89.) Based on Dr. Conanan’s review of Plaintiff’s grievance and pertinent 10 medical records, Dr. Conanan concluded that Plaintiff’s staff misconduct allegation was not 11 substantiated. (UdF 90.) Dr. Conanan’s conclusion from the January 12, 2016 interview was based on 12 his assessment that, during his visit with physician assistant Siegrist, Plaintiff’s lung condition and 13 related symptoms took priority over less urgent conditions such as the cut to his foot, justifying 14 Siegrist’s focus on Plaintiff’s lung issues. (UdF 91.) Dr. Conanan further concluded that, contrary to 15 what Plaintiff claimed, his foot-related complaint was not ignored, but rather Plaintiff’s foot-related 16 grievance was appropriately noted, and the cut to his heel was appropriately treated with ointment and 17 dressing. (UdF 92.) From the January 12, 2016 interview, Dr. Conanan further concluded that, given 18 Plaintiff’s musculoskeletal condition—i.e., condition pertaining to his muscle and skeletal systems— 19 was stable and adequately addressed under the circumstances, no further intervention was medically 20 necessary. (UdF 93.) On February 1, 2016, a first-level institutional response was issued concerning 21 a healthcare grievance filed by Plaintiff, identified as grievance log number ASP HC 15029632, which 22 grieved that physician assistant Hitchman examined Plaintiff to determine whether he needed a 23 wheelchair given his “lesion” on his right heel but improperly focused on other issues and rescinded 24 the wheelchair. (UdF 94.) Dr. Conanan reviewed Plaintiff’s grievance log number ASP HC 25 15029632 and pertinent medical records, and found that nurse practitioner Mathos evaluated him and 26 noted foot calluses but did not order a walker; Plaintiff’s foot received wound care dressing; and 27 Plaintiff was referred to a podiatry specialist and awaiting consultation. (UdF 95.) Based on his 28 review of the medical records and findings, Dr. Conanan concurred with the determination that neither 32 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 33 of 34 1 a wheelchair not walker was medically indicated, and grievance log number ASP HC 15029632 was 2 partially granted. (UdF 96.) 3 Plaintiff declares that he was never once attended to by Dr. Conanan in a physician-patient 4 capacity but only in his capacity as a reviewer of his health care appeal. (Opp’n at 66.) While that 5 may be true, it does not demonstrate deliberate indifference on the part of Dr. Conanan. Indeed, it is 6 undisputed that Dr. Conanan’s involvement in Plaintiff's treatment was limited to his review and 7 assessment of whether the medical care previously provided was appropriate. Based on the 8 undisputed evidence, it is clear that Dr. Conanan listened to Plaintiff’s subjective complaints, reviewed 9 his grievances, and thoroughly reviewed his medical records, and concluded that the medical 10 evaluations and treatment provided was appropriate. Plaintiff has failed to present evidence to support 11 a reasonable inference that Dr. Conanan’s decisions were “medically unacceptable” or evinced a 12 “conscious disregard of an excessive risk to [his] health,” Jackson v. McIntosh, 90 F.3d at 332, and 13 Dr. Conanan’s agreement with the prior medical decisions and treatment fails to demonstrate 14 deliberate indifference. Even assuming, as Plaintiff alleges, that Dr. Conanan’s examination was 15 inadequate such would establish nothing more than potential negligence and/or medical malpractice 16 which is not enough. See Estelle, 429 U.S. at 105-106. Plaintiff’s disagreement with Dr. Conanan’s 17 assessments and conclusions fails to demonstrate deliberate indifference. Accordingly, the 18 undersigned recommends that summary judgment be granted in favor of Defendant Dr. Conanan. 19 IV. 20 RECOMMENDATIONS 21 Based on the foregoing, it is HEREBY RECOMMENDED that: 22 1. Defendants’ motion for summary judgment be granted; and 23 2. The Clerk of Court be directed to enter judgment in favor of Defendants. 24 These Findings and Recommendations will be submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) 26 days after being served with these Findings and Recommendations, the parties may file written 27 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 28 33 Case 1:19-cv-00045-DAD-SAB Document 59 Filed 06/16/21 Page 34 of 34 1 Findings and Recommendations.” The parties are advised that failure to file objections within the 2 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838- 3 39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 6 IT IS SO ORDERED. 7 Dated: June 15, 2021 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 34