Thompson v. Saukhla ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 FELICIA THOMPSON, INDIVIDUALLY No. 2:18-cv-02422 WBS KJN AND AS SUCCESSOR IN INTEREST OF 13 KEITH AUSTIN THOMPSON 14 Plaintiff, MEMORANDUM AND ORDER RE DEFENDANTS’ MOTIONS FOR 15 v. SUMMARY JUDGMENT 16 NARINDER SAUKHLA, M.D.; RUTH PORTUGAL; SILOCHANA NAIDOO; 17 BRIAN BRIGGS; MONICA R. CORTEZ; ANDRES D. GALVAN; BETHLEHEM 18 HAILE, M.D.; et al. 19 Defendants. 20 21 ----oo0oo---- 22 Plaintiff Felicia Thompson brought this action against 23 defendants Narinder Saukhla, M.D. (“Dr. Saukhla”), Ruth Portugal 24 (“Nurse Portugal”), and Brian Briggs (“Officer Briggs”), 25 individually and as the as successor-in-interest to her father, 26 decedent Keith Austin Thompson (“decedent” or “Thompson”), 27 seeking damages under 42 U.S.C. § 1983 for deliberate 28 indifference to a serious medical need in violation of the Eighth 1 Amendment, and alleging medical malpractice/professional 2 negligence and wrongful death under California state law.1 (See 3 Second Amended Complaint (“SAC”) (Docket No. 34).) Defendants 4 now move for summary judgment on all claims except for 5 plaintiff’s state law claims against Dr. Saukhla. (See Def. 6 Portugal’s Mot. for Summ. J. (“Portugal MSJ”) (Docket No. 81-1); 7 Defs. Saukhla & Briggs Mot. for Summ. J. (“Saukhla & Briggs MSJ”) 8 (Docket No. 85).) 9 I. Factual and Procedural Background 10 This action arises out of the death of Keith Thompson, 11 a 57-year-old inmate imprisoned at California Medical Facility 12 Prison (“CMF”) in Vacaville, California, in the early hours of 13 September 3, 2017. (See Saukhla & Briggs Statement of Undisputed 14 Facts (“Saukhla & Briggs SUF”) No. 1 (Docket No. 83-1).) 15 Thompson suffered from several ongoing health conditions prior to 16 his death, including type II diabetes, chronic kidney disease, 17 glaucoma, and HIV. (See Decl. of Diana Esquivel (“Esquivel 18 Decl.”), Ex. D, Record Review Report of Dr. Dan L. Field (“Field 19 Report”) at 3 (Docket No. 83-3).) 20 1 Plaintiff’s original complaint alleged generally the 21 same claims as the operative complaint, but named other 22 defendants, who have since been dismissed. (See Compl. (Docket No. 1); Docket Nos. 28, 32, 78, 86.) The operative complaint 23 also names two other successors-in-interest to Thompson, Kibriyaa Taajwar (f/k/a Keith Thompson, Jr.) and Austin Shuntay Williams, 24 as defendants pursuant to California Code of Civil Procedure § 382, because plaintiff has been unable to ascertain whether 25 they choose to participate in the action. See Cal. Code Civ. P. § 382; (SAC ¶¶ 8-9). Though Taajwar and Williams are named as 26 nominal defendants, plaintiff does not assert any actual claims 27 or seek any relief from them. In reality, they are plaintiffs. See Hall v. Superior Ct., 108 Cal. App. 4th 706, 715 (2d Dist. 28 1 In the week leading up to his death, evidence shows 2 that Thompson began feeling unwell, such that he was unable to 3 work in his position as the chairman of the Men’s Advisory 4 Council at CMF. (Pl.’s Resp. to Defs. Saukhla & Briggs Statement 5 of Undisputed Facts (“Pl.’s Resp. to Saukhla & Briggs SUF”) No. 6 43 (Docket No. 89).) On the afternoon of September 2nd, 7 temperatures at CMF exceeded 110 degrees Fahrenheit. (Id. at No. 8 44). Evidence shows that, around 4:30 p.m. that day, Thompson 9 began to act incoherently and appear noticeably ill and weak. 10 (Id. at No. 45.) Witnesses describe him as slurring his words 11 and expressing confusion as to where he was. (Id. at Nos. 45- 12 46.) Thompson asked his bunkmate, Melvin Smith, to help him cool 13 off in the dorm’s shower. (Id. at No. 45.) Thompson stated that 14 he wanted to keep his clothes on in the shower, and said he was 15 ready to go “man down,” a general term used in the prison context 16 to describe a situation where an inmate needs to be seen in the 17 prison emergency room as quickly as possible. (Id. at Nos. 34, 18 45; Index of Exs. in Support of Portugal Mot. for Summ. J., Ex. 19 12 (“Portugal Dep.”) 34:10-25 (Docket No. 81-3).) 20 Because it was well-known that the dorm’s showers only 21 produced hot water, and due to Thompson’s erratic behavior, a 22 correctional officer, Cortez, was summoned. (Id. at Nos. 46-47.) 23 Immediately upon seeing Thompson, Officer Cortez radioed for a 24 “man down.” (Id.) (Portugal Statement of Undisputed Facts 25 (“Portugal SUF”) No. 12 (Docket No. 81-2).) 26 Nurse Portugal, who was working in CMF’s treatment 27 and triage area (“TTA”) that day, responded to the man down call, 28 arriving at the dorm at approximately 4:50 p.m. (Portugal SUF 1 Nos. 3, 13; Pl.’s Resp. to Saukhla & Briggs SUF No. 47; Index of 2 Exs. in Support of Portugal Mot. for Summ. J., Ex. 2 (“Portugal 3 Decl.”) ¶¶ 9-10.) Because of the heat, Nurse Portugal 4 immediately transported Thompson back to the TTA and adjacent “B- 5 1 clinic,” conducting an initial assessment of Thompson as she 6 went. (See Pl.’s Resp. to Saukhla & Briggs SUF No. 47; Portugal 7 Decl. ¶¶ 9-10; Index of Exs. in Support of Portugal Mot. for 8 Summ. J., Ex. 3 (“Thompson Initial Assessment”).) Nurse Portugal 9 recorded Thompson’s chief complaint as “exhaustion.” (See 10 Thompson Initial Assessment.) 11 Upon arriving at the B-1 clinic, at 5:04 p.m., Nurse 12 Portugal performed at full assessment of Thompson. (See Index of 13 Exs. in Support of Portugal Mot. for Summ. J., Ex. 4 (“TTA Flow 14 Sheet”).) She recorded a generally normal review of Thompson’s 15 systems, but noted that his respiration was “slightly” rapid, 16 that he appeared drowsy (though oriented), and that his right 17 pupil was not reactive to light. (Portugal Dep. 41:20-46:20; TTA 18 Flow Sheet.) Nurse Portugal further recorded a body temperature 19 of 96.5 degrees Fahrenheit and a Glasgow Coma Scale (“GCS”) 20 score--a measure of responsiveness involving the eye, verbal, and 21 muscular response levels--of 15/15 (a perfect score). (TTA Flow 22 Sheet; Portugal Dep. 44:10-23, 53:24-54:2.) 23 At this point, plaintiff’s and defendants’ accounts of 24 events begin to diverge. Nurse Portugal contends that, although 25 he was alert and oriented, Thompson refused to answer her 26 questions regarding his history and his complaints. (See 27 Portugal Decl. ¶ 9.) Nurse Portugal noted that Thompson had a 28 history of glaucoma, and concluded that his pupil reaction was 1 therefore not unusual. (See id. at ¶ 12.) Because Thompson 2 followed commands by assisting medical staff in transferring him 3 from the gurney to the bed in the TTA, responded to questions 4 about his pain levels by asking for pain medication, and complied 5 with requests to open his eyes, Nurse Portugal concluded that 6 Thompson’s lack of response was voluntary, and inferred from his 7 drowsiness that his chief complaint was “heat exhaustion,” though 8 Thompson had not explicitly stated that he was feeling too hot or 9 that he was suffering from heat exhaustion. (See id. at ¶¶ 9-11; 10 TTA Flow Sheet; Portugal Dep. 39:10-41:19.) 11 Plaintiff contends that Thompson was not voluntarily 12 refusing to answer Nurse Portugal’s questions--rather, Thompson’s 13 responses of “let me sleep” or “leave [me] be” were indications 14 that Thompson was still experiencing the changes to his mental 15 status that had led officers in his dorm to call “man down” in 16 the first place. (See Pl.’s Resp. to Portugal SUF Nos. 14.) 17 Though there is no evidence in the record that Nurse Portugal was 18 ever informed of Thompson’s behavior at the dorm, or that he had 19 been feeling sick for the past week, another inmate who was 20 present at the B-1 clinic, Earl Miller, testified that upon 21 Thompson’s arrival, Thompson “at times . . . didn’t know . . . 22 where he was at” and that “sometimes he looked at me like he 23 didn’t know me, and then an hour or so later, he would call me by 24 name.” (Index of Exs. in Support of Pl.’s Opp’n at 118 (“Miller 25 Dep.”) 36:9-19.) 26 Plaintiff’s expert, Dr. Field, contends that the 27 behavior described by Miller, along with symptoms that Nurse 28 Portugal’s herself noted--that Thompson was having difficulty 1 moving on his own, that his eyes were initially closed, that his 2 pupil was not reactive to light, and that he was not responsive 3 to questioning--is more consistent with a GCS score as low as 9, 4 which would represent a true medical emergency in this setting. 5 (Pl.’s Resp. to Saukhla & Briggs SUF No. 53.) 6 Nurse Portugal continued to monitor Thompson’s vital 7 signs over the course of the next several hours, until Thompson 8 was discharged from the clinic. (See TTA Flow Sheet.) In all, 9 Nurse Portugal collected six sets of vital signs at 5:05 p.m., 10 5:15 p.m., 6:30 p.m., 7:00 p.m., 8:00 p.m., and 9:00 p.m. (See 11 id.) Over the course of four hours, Thompson’s vitals remained 12 relatively stable and, if anything, appeared to improve: his 13 pulse decreased from 118 to 94, his temperature remained 14 approximately 96.5 degrees, his blood pressure decreased from 15 144/72 to 120/67, and his respiration remained relatively 16 constant at 22 breaths/minute. (See id.) While the other 17 inmate, Miller, testified that Thompson complained to nursing 18 staff that he was having trouble breathing (Miller Dep. 37:8- 19 38:9), Thompson’s blood-oxygen saturation was measured at 100% 20 throughout his stay in the clinic. (Id.) 21 Because Thompson had been complaining of “10/10” pain 22 in his back, Nurse Portugal gave Thompson water and Tylenol at 23 approximately 6:00 p.m. (Id. at 2; Portugal Dep. 47:5-50:25.) 24 She also performed a finger-stick blood sugar test at 25 approximately 6:30, which returned a normal value. (Id.) 26 At approximately 6:50 p.m., Nurse Portugal called Dr. 27 Saukhla, the on-call doctor for the TTA and the B-1 clinic. 28 (Portugal SUF No. 18; Saukhla & Briggs SUF Nos. 2, 7.) Nurse 1 Portugal informed Dr. Saukhla that Thompson had gone man down for 2 “exhaustion” and conveyed Thompson’s vital signs, which reflected 3 Thompson’s temperature of 96.5 degrees and slightly elevated 4 blood pressure, pulse, and respiration rate. (Saukhla & Briggs 5 SUF No. 8; Portugal Dep. 72:21-73:6.) She also provided Dr. 6 Saukhla with a list of Thompson’s existing medical conditions. 7 (See Esquivel Decl., Ex. C (“Thompson Med. Records”) at 13.) 8 Nurse Portugal further informed Dr. Saukhla that she had given 9 Thompson Tylenol for his back pain and that he had drank three to 10 four cups of water. (Saukhla & Briggs SUF No. 8.) Nurse 11 Portugal did not inform Dr. Saukhla that Thompson had been 12 complaining about shortness of breath or that he had been having 13 trouble breathing, but did inform him that Thompson’s blood 14 oxygen level was 100%. (Id. at No. 16; Thompson Med. Records at 15 13.) No evidence in the record suggests that Nurse Portugal 16 informed Dr. Saukhla that Thompson was unable or unwilling to 17 answer her questions or that he was experiencing signs of an 18 altered mental state. (Saukhla & Briggs SUF No. 16.) 19 Dr. Saukhla was aware that it had been a particularly 20 hot day and that other inmates had been seen in the TTA and the 21 B-1 clinic for complaints of exhaustion due to dehydration. 22 (Saukhla & Briggs SUF No. 8.) Based on this information and the 23 information Nurse Portugal provided, Dr. Saukhla considered the 24 possibility that Thompson’s complaints of exhaustion were 25 “secondary” to the heat (i.e., that they were caused by the heat 26 and not by some other underlying condition), and ordered that 27 Nurse Portugal observe Thompson for 45-60 minutes and provide him 28 plenty of fluids orally. (Id. at No. 10.) Dr. Saukhla did not 1 further inquire with Nurse Portugal to see if Thompson had 2 exhibited any mental status changes. (Pl.’s Resp. to Saukhla & 3 Briggs SUF No. 10.) 4 Plaintiff’s expert witness, Dr. Field, contends that 5 had Dr. Saukhla inquired as to Thompson’s mental status and had 6 Nurse Portugal informed Saukhla of the symptoms Thompson was 7 exhibiting, Thompson’s need for emergency medical attention would 8 have become clear at this time. (Id.) Plaintiff also contends 9 that Nurse Portugal could not have accurately conveyed how much 10 water Thompson had drunk at that point because she was not 11 actively monitoring Thompson’s water intake. (See id.) While 12 Nurse Portugal testified that she gave Thompson a pitcher of 13 water to drink, one of the inmate janitors at the B-1 clinic, 14 Crumwell, provided a sworn declaration that he had to bring 15 Thompson a container of ice water because he did not have any and 16 was asking for water. (Pl.’s Index of Exs. in Support of Pl.’s 17 Opp’n at 19 (“Crumwell Decl.”) (Docket No. 90).) Crumwell also 18 stated that he had to lift Thompson up into a sitting position to 19 drink because he was unable to sit up on his own. (Id.) 20 Nurse Portugal continued to monitor Thompson and called 21 Dr. Saukhla two more times before Thompson was discharged. 22 (Saukhla & Briggs SUF Nos. 13-17; Portugal SUF Nos. 21-28.) Dr. 23 Saukhla noted Thompson’s vital signs and, based on the 24 information Nurse Portugal provided him, instructed her to 25 continue monitoring Thompson, give him dinner, and ensure he 26 drank plenty of fluids. Nurse Portugal’s notes indicate that 27 Thompson ate 10-15% of his meal and that he was “resting 28 comfortably” during this time. (Id.) However, Crumwell, the 1 inmate janitor, stated that he had to assist Thompson in using 2 the restroom and that Thompson was unable to feed himself when 3 Crumwell brought him food. (Crumwell Decl. at 2.) Crumwell does 4 not specify whether this food was in addition to the food Nurse 5 Portugal says Thompson ate. (See id.) Another inmate in the 6 clinic, Earl Miller, observed that, when a nurse brought Thompson 7 his food, Thompson told her he could not eat anything. (Index of 8 Exs. in Support of Pl.’s Opp’n at 12 (“Miller Decl.”).) Because 9 Thompson continued to report his back pain as a 10/10, Nurse 10 Portugal administered Tylenol No. 3--Tylenol with codeine-- 11 pursuant to a physician’s standing order (an order which permits 12 Nurse Portugal to administer the medication whenever certain 13 conditions are met). (Portugal SUF No. 24; Portugal Decl. ¶ 18.) 14 By 9:41 p.m., when Nurse Portugal and Dr. Saukhla had 15 their third call, defendants’ contention is that Thompson 16 indicated that he was feeling better and that his back pain had 17 lessened to a 3/10. (See Saukhla & Briggs SUF No. 16; Thompson 18 Med. Records at 13.) Because Thompson’s vitals appeared to have 19 trended towards normalcy (Thompson Med. Records at 13; Portugal 20 Decl. ¶¶ 13, 19), Dr. Saukhla concluded that Thompson’s 21 dehydration had resolved, and ordered Nurse Portugal to encourage 22 Thompson to continue to drink fluids and to return Thompson to 23 his dorm. (Portugal SUF No. 28; Saukhla & Briggs SUF No. 15.) 24 Officer Briggs arrived at the B-1 clinic to escort 25 Thompson back to his dorm at approximately 11:00 p.m. (Saukhla & 26 Briggs SUF No. 18.) When Briggs arrived, Thompson was still in 27 his bed. (Id. at No. 19.) Plaintiff offers witness testimony 28 indicating that, by the time Thompson was set to leave the clinic 1 with Officer Briggs, his condition had not improved and that, in 2 fact, he was still too weak to stand on his own or move from his 3 bed to a wheelchair, and was still complaining that he was having 4 trouble breathing (though records indicate that his oxygen 5 saturation levels were still at 100%). (See Crumwell Decl.; 6 Miller Dep. 37:8-45:9; Miller Decl.; TTA Flow Sheet.) 7 Another nurse in the clinic, Nurse Joseph, informed 8 Officer Briggs that Thompson was ready to go back to his housing 9 unit and had already been cleared by medical staff. (Saukhla & 10 Briggs SUF at No. 19.) Briggs asked Thompson if he was ready to 11 go, and Thompson replied “Yes Briggs, I’m ready to go,” or words 12 to that effect. (Id. at No. 20.) Briggs contends that when he 13 escorted Thompson back to his room, Thompson seemed fatigued, as 14 if he had been tired, but was coherent. (Id. at No. 75; Saukhla 15 & Briggs SUF No. 21.) Briggs states that he was able to have a 16 full conversation with Thompson about Thompson’s release date, 17 sports, and children. (Id.) 18 Plaintiff contends that Thompson was continuing to 19 experience mental status changes as Briggs escorted him back to 20 the dorm. (See Pl.’s Resp. to Saukhla & Briggs SUF No. 21-22.) 21 Miller noted that, as Thompson was being wheeled out of the 22 clinic, he was not talking or looking around. (Id. at No. 60.) 23 Plaintiff points out that even Briggs’ account--which describes 24 Briggs as moving slowly to ensure Thompson did not fall out of 25 his chair--implies that Thompson was having trouble staying 26 upright. (Id.) Multiple inmate witnesses reported that Thompson 27 was sliding out of his wheelchair and was still noticeably unwell 28 upon his return to the dorm. (Id. at No. 78.) One witness 1 stated that Thompson began rattling off numbers and saying that 2 someone was after him. (Index of Exs. in Support of Pl.’s Opp’n 3 at 7 (“Smith Decl.”).) 4 Within 10-15 minutes of arriving at his dorm, Thompson 5 went “man down” for a second time, and was taken back to the TTA 6 on a gurney. (Id. at No. 77; Saukhla & Briggs SUF Nos. 23-25.) 7 At approximately 11:30, Nurse Joseph called Dr. Saukhla and 8 informed him that Thompson was not talking and was exhibiting 9 loss of consciousness. (Saukhla & Briggs SUF No. 26.) Nurse 10 Joseph also informed him that Thompson’s temperature was 96.8, 11 his blood pressure and pulse had decreased, and that he was cold, 12 clammy, and drowsy. (Id.) Dr. Saukhla ordered that IV fluids be 13 administered and that Thompson be transferred to VacaValley 14 Hospital for a higher level of care. (Id.) Thompson died a few 15 hours later, in the early hours of September 3, 2017, at 16 VacaValley Hospital. (Id.) 17 Plaintiff’s expert, defendants Saukhla and Briggs’ 18 expert, and the Solano County Coroner all came to different 19 conclusions regarding the cause of Thompson’s death. The Solano 20 County Coroner performed an autopsy shortly after Thompson’s 21 death, and concluded that the cause of death was acute mixed drug 22 intoxication based on his observation of elevated levels of 23 chlorpheniramine (a mild decongestant) and opiates in his blood. 24 (Index of Exs. in Support of Saukhla & Briggs Mot. Summ. J., Ex. 25 21 (“Vilke Dep.”) 20:6-23; Index of Exs. in Support of Pl.’s 26 Opp’n at 166 (“Field Dep.”) 35:23-36:22.) Defendants’ expert, 27 Dr. Vilke, disagreed with this conclusion, and instead found that 28 Thompson’s death was caused by “hyperkalemia,” or elevated 1 potassium levels, due to kidney failure. (Vilke Dep. 18:16- 2 20:23.) These elevated potassium levels caused Thompson to 3 suffer a heart attack, which caused his death. (Id.) 4 Plaintiff’s expert, Dr. Field, also disagreed with the 5 coroner’s conclusion that Thompson died from acute mixed drug 6 intoxication. Dr. Field instead concluded that Thompson likely 7 died from sepsis leading to multiorgan failure and cardiac 8 arrest. (Field Report at 11.) Dr. Field contends that, when 9 Thompson first presented to the B-1 clinic, his vital signs 10 displayed 3 out of the 4 criteria for Systemic Inflammatory 11 Response Syndrome (“SIRS”), a deadly condition in which the body 12 is under attack. (Field Report at 10; Index of Exs. in Support 13 of Pl.’s Opp’n, at 1 (“Field Rebuttal Report”).) When combined 14 with an infection, SIRS becomes sepsis, the life-threatening 15 condition that Dr. Field contends Thompson ultimately died from. 16 (Field Rebuttal Report 17 The key vital sign that Dr. Field focuses on is 18 Thompson’s temperature--Dr. Field contends that Dr. Saukhla 19 should have recognized the possibility that Thompson was 20 suffering from SIRS based on his temperature of 96.5 degrees, 21 which Dr. Field states is hypothermic in the SIRS context and 22 inconsistent with Dr. Saukhla’s diagnosis of heat illness. 23 (Field Report at 10-11.) Dr. Field concludes that, because 24 Thompson was suffering from symptoms of SIRS and was hypothermic, 25 Dr. Saukhla’s failure to inquire further into the possibility 26 that Thompson was exhibiting mental status changes and his 27 failure to transfer Thompson to an emergency medical setting fell 28 below the standard of care and constituted deliberate 1 indifference to Thompsons’ well-being. (Field Rebuttal Report at 2 2.) 3 II. Analysis 4 Summary judgment is proper “if the movant shows that 5 there is no genuine dispute as to any material fact and the 6 movant is entitled to judgment as a matter of law.” Fed. R. Civ. 7 P. 56(a). The party moving for summary judgment bears the 8 initial burden of establishing the absence of a genuine issue of 9 material fact and can satisfy this burden by presenting evidence 10 that negates an essential element of the non-moving party’s case. 11 Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 12 Alternatively, the movant can demonstrate that the non- 13 moving party cannot provide evidence to support an essential 14 element upon which it will bear the burden of proof at trial. 15 Id. If the moving party has properly supported its motion, the 16 burden shifts to the non-moving party to set forth specific facts 17 to show that there is a genuine issue for trial. See id. at 324. 18 “Where the record taken as a whole could not lead a rational 19 trier of fact to find for the non-moving party, there is no 20 genuine issue for trial.” Matsuhita Elec. Indus. Co. v. Zenith 21 Radio Corp., 475 U.S. 574, 587 (1986). Any inferences drawn from 22 the underlying facts must, however, be viewed in the light most 23 favorable to the party opposing the motion. See id. 24 A. Plaintiff’s § 1983 Claims for Deliberate Indifference under the Eighth Amendment 25 26 Plaintiff’s operative complaint states a § 1983 claim 27 under the Eighth Amendment against all three defendants. (See 28 generally SAC.) To establish a violation of the Eighth Amendment 1 due to inadequate medical care, a plaintiff must establish that 2 the alleged inadequacy rises to the level of “deliberate 3 indifference to serious medical needs.” Estell v. Gamble, 429 4 U.S. 97, 106 (1976). In the Ninth Circuit, the test for 5 deliberate indifference consists of two parts. See Jett v. 6 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). “First, the 7 plaintiff must show a ‘serious medical need’ by demonstrating 8 that ‘failure to treat a prisoner’s condition could result in 9 further significant injury or the unnecessary and wanton 10 infliction of pain.’” Id. (quoting WMX Techs., Inc. v. Miller, 11 104 F.3d 1133, 1096 (9th Cir. 1997)). Second, the plaintiff must 12 show that “the defendant’s response to the need was deliberately 13 indifferent.” Id. 14 All three defendants assert the defense of qualified 15 immunity from suit on plaintiff’s § 1983 claim. The doctrine of 16 qualified immunity “protects government officials ‘from liability 17 for civil damages insofar as their conduct does not violate 18 clearly established statutory or constitutional rights of which a 19 reasonable person would have known.’” Pearson v. Callahan, 555 20 U.S. 223, 231 (2009)(citing Harlow v. Fitzgerald, 457 U.S. 800, 21 818 (1982).) To determine whether an official is entitled to 22 qualified immunity, the court considers: (1) whether there has 23 been a violation of a constitutional right; and (2) whether the 24 official’s conduct violated “clearly established” federal law. 25 Sharp v. Cnty. of Orange, 871 F.3d 901, 909 (9th Cir. 2016) 26 (citing Kirkpatrick v. Cnty. Of Washoe, 843 F.3d 784, 788 (9th 27 Cir. 2016)). 28 Qualified immunity is a question of law to be decided 1 by the court. See Hunter v. Bryant, 502 U.S. 224, 228 (2009). 2 Qualified immunity attaches when an official’s conduct does not 3 violate clearly established statutory or constitutional rights of 4 which a reasonable person would have known. See Kisela v. 5 Hughes, 138 S. Ct. 1148, 1152 (2018) (internal citations 6 omitted). Although the Supreme Court has established that the 7 case law does not require a case to be directly on point for a 8 right to be clearly established, existing precedent must have 9 placed the statutory or constitutional question beyond debate. 10 See White v. Pauly, 137 S. Ct. 548, 551 (2017). The Supreme 11 Court has also made clear that clearly established law should not 12 be defined at a high level of generality. See Kisela, 138 S. Ct. 13 at 1152. The plaintiff bears the burden of “proving that the 14 right allegedly violated was clearly established at the time of 15 the official’s allegedly impermissible conduct.” Camarillo v. 16 McCarthy, 998 F.2nd 638, 640 (9th Cir. 1993). 17 Qualified immunity applies to cases brought under the 18 Eighth Amendment the same as it does to cases brought for 19 violations of rights provided by other amendments, such as the 20 Fourth Amendment. See Estate of Ford v. Ramirez-Palmer, 301 F.3d 21 1043, 1049 (9th Cir. 2002). It is obvious, however, that the 22 analysis in an Eighth Amendment case for deliberate indifference 23 to a serious medical need is different than in an excessive force 24 case, or even a detention or arrest case, under the Fourth 25 Amendment. Because the Eighth Amendment inquiry asks whether a 26 prison official has deliberately ignored the serious medical need 27 of an inmate, one might speculate as to whether qualified 28 immunity is appropriate at all, as it is somewhat difficult to 1 imagine scenarios in which a reasonable official could think it 2 was reasonable to be deliberately indifferent to a substantial 3 risk of serious harm. Indeed, in Hamilton v. Endell, 981 F.2d 4 1062, 1066 (9th Cir. 1992), the Ninth Circuit held that a 5 “finding of deliberate indifference necessarily precludes a 6 finding of qualified immunity” for this very reason. 7 However, just ten years after deciding Hamilton, the 8 Ninth Circuit reversed course and held in Estate of Ford that the 9 Supreme Court’s intervening decision in Saucier v. Katz, 533 U.S. 10 194 (2001) had effectively overruled Hamilton. Estate of Ford, 11 301 F.3d 1049. In Saucier, the Ninth Circuit had held that 12 qualified immunity was inappropriate in an excessive force case 13 because the constitutional inquiry--whether unreasonable force 14 was used in making the arrest--and the inquiry on qualified 15 immunity were the same. Saucier, 533 U.S. at 202. The Supreme 16 Court reversed, observing that the goal of qualified immunity 17 would be undermined if summary judgment were denied every time a 18 material issue of fact remains on an excessive force claim, and 19 holding that the qualified immunity inquiry therefore must be 20 analyzed separately from the constitutional inquiry. Id. 21 Estate of Ford made clear that the principle espoused 22 in Saucier applies in the Eighth Amendment context as well. See 23 Estate of Ford, 301 F.3d at 1049. Qualified immunity must be 24 analyzed separately from the inquiry of whether an official has 25 exhibited deliberate indifference to a serious medical need, 26 because “the qualified immunity inquiry ‘has a further 27 dimension’”--the clearly-established law inquiry. Id. (quoting 28 Saucier, 533 U.S. at 205). This inquiry recognizes that “it is 1 often difficult for an officer to determine how the relevant 2 legal doctrine will apply to the factual situation that he 3 faces,” and, therefore, “all but the plainly incompetent or those 4 who knowingly violate the law” have immunity from suit. Id. 5 “If the law at the time of an alleged violation did not clearly 6 establish that the specific situation faced by an officer was 7 sufficiently serious, ‘a reasonable prison official understanding 8 that he cannot recklessly disregard a substantial risk of serious 9 harm, could know all of the facts yet mistakenly, but reasonably, 10 perceive that the exposure in any given situation was not that 11 high.’” Sandoval v. Cnty. of San Diego, 985 F.3d 657, 672 (9th 12 Cir. 2021) (quoting Estate of Ford, 301 F.3d at 1050). In such a 13 circumstance, the official would be entitled to qualified 14 immunity even though he had, in fact, been deliberately 15 indifferent to what turned out to be a substantial risk of 16 serious harm. See id. 17 Accordingly, the court must analyze whether defendants 18 are entitled to qualified immunity in the same manner it would in 19 a Fourth Amendment or any other context. The court has the 20 discretion to analyze the “clearly established law” prong of the 21 qualified immunity analysis first, and, if analysis of that prong 22 proves dispositive, the court need not analyze the other. See 23 Pearson, 555 U.S. at 236. According to the Ninth Circuit, the 24 “dispositive inquiry” in the clearly-established analysis is 25 “‘whether it would be clear to a reasonable officer that his 26 conduct was unlawful in the situation he confronted,’ based on 27 the law at the time.” Sandoval, 985 F.3d at 672 (quoting Estate 28 of Ford, 301 F.3d at 1050). 1 1. Nurse Portugal 2 Plaintiff has not met her burden of demonstrating that 3 it would have been clear to a reasonable officer in Nurse 4 Portugal’s position that her conduct was unlawful. Plaintiff 5 argues that, in the Ninth Circuit, it has been clearly 6 established that prison officials violate the Constitution when 7 they “deny, delay or intentionally interfere” with needed medical 8 treatment. See Jett, 439 F.3d at 1096; Sandoval, 985 F.3d at 9 679. The strongest case plaintiff offers in support of this 10 contention is Sandoval, which involved two separate holdings that 11 the conduct of three nurses did not warrant the application of 12 qualified immunity. 13 First, in Sandoval, the Ninth Circuit held that a jail 14 nurse was not entitled to qualified immunity for failure to 15 provide constitutionally adequate medical care where evidence 16 submitted by the plaintiff showed that the nurse had “fail[ed] to 17 provide any meaningful treatment to an inmate who was sweating 18 and appeared so tired and disoriented that a deputy urged that he 19 be re-evaluated.” Id. at 680. Despite being told by a sheriff’s 20 deputy that the inmate was shaking, tired, disoriented, and 21 needed to be looked at more thoroughly, the nurse merely 22 administered a duplicative, “very quick” blood sugar test, and 23 then failed to check on the detainee--who was obviously 24 exhibiting drug withdrawal symptoms and was visibly shaking--for 25 six hours, though his cell was only located 20 feet away. Id. 26 Second, the Ninth Circuit held that two other jail nurses were 27 not entitled to qualified immunity where the evidence showed that 28 they delayed calling paramedics for over 40 minutes upon finding 1 an inmate who had collapsed to the ground and was completely 2 “unresponsive and having a seizure or ‘seizure-like activity.’” 3 Id. at 663. 4 Sandoval is so factually distinguishable that it could 5 not have placed a reasonable nurse in Portugal’s position on 6 notice that her conduct was unlawful. Undisputed evidence shows 7 that Nurse Portugal responded to the initial “man down” call from 8 Thompson’s dorm, transported him back to the B-1 clinic, 9 attempted to evaluate the cause of his symptoms, measured his 10 vital signs, administered pain medication in response to his 11 requests, communicated with Dr. Saukhla, the on-call physician, 12 on three separate occasions, and carried out the treatment plan 13 formulated by Dr. Saukhla, ultimately measuring Thompson’s vital 14 signs six times over approximately four hours before sending 15 Thompson back to his dorm on Dr. Saukhla’s orders. (See Pl.’s 16 Resp. to Portugal SUF Nos. 12-28; TTA Flow Sheet.) While 17 plaintiff raises factual disputes as to whether Nurse Portugal 18 adequately monitored Thompson’s fluid intake, or accurately 19 reported how much he ate, the picture of Nurse Portugal’s care 20 that arises from the undisputed evidence is a far cry from simply 21 administering one “quick 10-second blood test” while otherwise 22 ignoring an inmate in obvious need of help for hours on end. See 23 Sandoval, 985 F.3d at 680. 24 Nor is plaintiff’s argument that Nurse Portugal “failed 25 to accurately assess and observe that Mr. Thompson was 26 experiencing symptoms of mental status changes” persuasive. (See 27 Pl.’s Resp. to Portugal SUF No. 14.) At best, this is nothing 28 more than a disagreement with the medical conclusion Nurse 1 Portugal came to after attempting to assess plaintiff’s mental 2 state on the way to and at the B-1 clinic. It is true that the 3 Ninth Circuit has held that prisoners have the right to be free 4 from a “course of treatment that is medically unacceptable under 5 the circumstances.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th 6 Cir. 1996). However, the Ninth Circuit has also made clear that 7 this does not mean that every disagreement over medical treatment 8 rises to the level of a constitutional violation--the state 9 official must also have chosen that course of treatment in 10 conscious disregard of an excessive risk to the decedent’s 11 health. See id.; Sandoval, 985 F.3d at 680 (“We emphasize that 12 this is not a case where a nurse mistakenly diagnosed a patient 13 after reasonably attempting to ascertain the cause of unexplained 14 symptoms.”). 15 Plaintiff does not provide any evidence that Nurse 16 Portugal purposefully or consciously avoided evaluating 17 Thompson’s mental state. Rather, the undisputed evidence shows 18 that Nurse Portugal followed CMF policy by asking Thompson 19 questions regarding his complaints and performing a GCS 20 evaluation in order to assess his mental status. (See Pl.’s 21 Resp. to Portugal SUF Nos. 14, 15, 18; Pl.’s Resp. to Saukhla & 22 Briggs SUF Nos. 38, 40.) The undisputed evidence further shows 23 that, because Thompson answered at least some of Nurse Portugal’s 24 questions--by asking her to let him sleep, indicating that his 25 back hurt, and stating that he wanted pain medication--and 26 complied with her verbal commands, Nurse Portugal ultimately 27 concluded that Thompson’s failure to answer some of her questions 28 was not clinically significant. (See Pl.’s Resp. to Portugal SUF 1 Nos. 14, 15, 18.) Nurse Portugal’s expert witness, Nancy Booth, 2 R.N., opined that Nurse Portugal’s assessment that Thompson was 3 voluntarily refusing to respond to her initial inquiries was 4 reasonable under the circumstances and within the standard of 5 care for a nurse in a correctional setting. (Index of Exs. in 6 Support of Portugal MSJ, Ex. 20 (“Booth Decl.”) ¶ 17 (Docket No. 7 81-3).) 8 Plaintiff counters that, even if there is no direct 9 evidence that Nurse Portugal consciously ignored Thompson’s 10 mental status changes, the fact that those mental status changes 11 were obvious to other eyewitnesses would allow a jury to conclude 12 that Nurse Portugal did consciously pursue a course of treatment 13 that posed an excessive risk to Thompson’s health by failing to 14 adequately describe those changes to Dr. Saukhla or escalate 15 Thompson’s care to an emergency medical setting. See (Field 16 Report at 8); Farmer v. Brennan, 511 U.S. 825, 842 (1970) (noting 17 that a jury may infer a prison official’s knowledge of a 18 substantial risk “from the very fact that the risk was obvious”). 19 However, plaintiff points to no clearly established law 20 requiring a nurse to call 9-1-1 or alert a physician based on the 21 types of mental status changes observed by witnesses in this 22 case--occasionally appearing confused as to where one is, 23 slurring one’s words, babbling, and failing to remember other 24 inmate’s names. A reasonable official in Nurse Portugal’s 25 position would simply not have concluded that failing to alert a 26 doctor or call an ambulance to transport Thompson to the 27 emergency room presented the same risk of harm as failing to call 28 a paramedic for an inmate who is completely unconscious and 1 actively seizing on the floor of a jail cell, especially 2 considering the fact that Thompson was already located in a 3 clinical (albeit not an emergency) setting and was already being 4 treated by a physician. See Sandoval, 985 F.3d at 680. 5 The reasonableness of Nurse Portugal’s conduct is 6 further evidenced by the testimony of her expert witness, Nancy 7 Booth. After a full review of the record--including the written 8 declarations and depositions of eyewitnesses at the facility--Ms. 9 Booth concluded that nothing in Thompson’s presentation should 10 have led Portugal to believe that Thompson was suffering from a 11 more serious illness that required emergent care. (See Booth 12 Decl. ¶ 19.) Though plaintiff’s expert, Dr. Field, disagrees, 13 the fact that a qualified expert opined that Nurse Portugal’s 14 course of treatment was medically acceptable under the 15 circumstances supports the conclusion that a reasonable nurse in 16 Portugal’s position would not have known that her course of 17 treatment violated the law. See Jackson, 90 F.3d at 332. Nurse 18 Portugal is therefore entitled to qualified immunity as to 19 plaintiff’s § 1983 claim for deliberate indifference under the 20 Eighth Amendment. 21 2. Dr. Saukhla 22 Plaintiff has also failed to meet her burden of 23 demonstrating that law was clearly established such that a 24 reasonable physician in Dr. Saukhla’s position would have known 25 that his conduct was unlawful. Plaintiff again cites to Jackson 26 for the proposition that Thompson “had a clearly established 27 right to be free from a course of treatment that is medically 28 unacceptable under the circumstances.” Jackson, 90 F.3d at 332. 1 However, as noted above, the Ninth Circuit has made it clear that 2 a mere “difference of medical opinion” does not, by itself, 3 establish a violation of the Eighth Amendment. Id. In other 4 words, the fact that a doctor misdiagnoses a patient or provides 5 him with medically unacceptable treatment does not turn a claim 6 of malpractice into an Eighth Amendment claim simply because the 7 patient is a prisoner. See Broughton v. Cutter Labs., 622 F.2d 8 458, 460 (9th Cir. 1980). To violate clearly established law, 9 the defendant must have chosen the medically unacceptable course 10 of treatment in conscious disregard of an excessive risk to the 11 patient’s health. See Jackson, 90 F.3d at 332. 12 In Jackson, the Ninth Circuit held that the physician 13 defendants were not entitled to qualified immunity at the motion 14 to dismiss stage because the plaintiff had adequately alleged 15 that the defendants denied him the opportunity for a kidney 16 transplant not because of an honest medical judgment, but “on 17 account of personal animosity.” Id. Here, plaintiff has 18 presented no evidence, and does not even appear to argue, that 19 Dr. Saukhla acted pursuant to any personal animosity toward 20 Thompson. 21 Rather, plaintiff relies on the testimony of her 22 expert, Dr. Field, to argue that Dr. Saukhla deliberately ignored 23 the possibility that Thompson was experiencing mental status 24 changes. (See Field Report at 4, 10.) Dr. Field faults Dr. 25 Saukhla for “failing to inquire about Mr. Thompson’s true mental 26 status.” Id. Because Thompson “met SIRS criteria, signifying a 27 potentially lethal condition, based on his abnormal vital signs 28 alone,” Dr. Field opines that Dr. Saukhla should have asked Nurse 1 Portugal additional questions regarding Thompson’s mental status 2 to appropriately determine whether transport to emergency care 3 was necessary. (Field Report at 10-11.) Dr. Field further 4 argues that Dr. Saukhla should have asked about Thompson’s mental 5 status even under his diagnosis of heat illness with dehydration, 6 and that under this diagnosis, there were additional tests Dr. 7 Saukhla should have ordered, including orthostatic evaluation and 8 IV fluids. (Id.) Again, this argument presents little more than 9 a difference of medical opinion. See Jackson, 90 F.3d at 332. 10 There is a fundamental difference between not doing something the 11 doctor should have done and acting with deliberate indifference. 12 Dr. Saukhla’s expert, Dr. Vilke, testified that 13 Thompson’s vital signs could have been indicative of dehydration 14 as a result of heat exhaustion, and that his low body 15 temperature, while on the lower end of what is normal, was not 16 necessarily indicative of a more serious medical condition. 17 (Vilke Dep. 31:21-37:17.) He further testified that, based on 18 the information Nurse Portugal provided Dr. Saukhla, Dr. 19 Saukhla’s inquiry into the circumstances surrounding Thompson’s 20 need to go “man down” and Dr. Saukhla’s chosen course of 21 treatment were medically reasonable. (Vilke Dep. 33:17-34:10; 22 68:4-69:11.) 23 Plaintiff presents no evidence that Dr. Saukhla was 24 ever made aware of information from which he could infer that 25 Thompson was experiencing altered mental status or a continued 26 serious medical need warranting transfer to a higher level of 27 care. Dr. Field even conceded in his deposition that nothing in 28 the medical records suggested that Dr. Saukhla was ever informed 1 by Nurse Portugal that Thompson was not responding, that he was 2 babbling, or that he had any sort of altered mental status. 3 (Field Dep. 119:8-123:19.) 4 The undisputed evidence instead shows that Dr. Saukhla 5 considered Thompson’s body temperature, as well as all of his 6 other vital signs, and ultimately concluded that Thompson was 7 likely suffering from heat exhaustion. (See Saukhla & Briggs SUF 8 Nos. 10-12.) Plaintiff does not point to any clearly established 9 law indicating that a physician has violated the Eighth Amendment 10 when he attempts, in good faith, to diagnose a patient’s 11 condition and, based on this diagnosis, chooses a course of 12 treatment that, while ultimately wrong, is medically acceptable 13 to at least some well-qualified members of the profession. See 14 Jackson, 90 F.3d at 332. 15 This is not a case like Jett, where a doctor 16 purposefully delayed setting and casting an inmate’s fractured 17 thumb for six months, despite acknowledging that this course of 18 treatment was required to alleviate the inmate’s pain and avoid 19 permanent disfigurement. See Jett, 439 F.3d at 1096. In this 20 case, there is simply no evidence suggesting that Dr. Saukhla 21 “consciously disregarded” a substantial risk of harm resulting 22 from Thompson’s altered mental status that would have been 23 “obvious” to a reasonable physician in his position. See 24 Jackson, 90 F.3d at 332. 25 If well-qualified experts disagree as to whether Dr. 26 Saukhla chose a medically acceptable course of action based on 27 the information available at the time, the risk of harm to 28 Thompson of failing to inquire as to Thompson’s mental status or 1 failing to order additional tests can hardly be said to have been 2 “obvious” to a reasonable physician. See id. Dr. Saukhla is 3 therefore entitled to qualified immunity as to plaintiff’s § 1983 4 claim for deliberate indifference under the Eighth Amendment. 5 3. Officer Briggs 6 Finally, plaintiff has also failed to demonstrate that 7 Officer Briggs’ conduct violated clearly established law. 8 Plaintiff, again relying on Sandoval, argues that Officer Briggs 9 effectively “stood by” as Thompson suffered from what was 10 obviously acute distress in transporting him back to his dorm, 11 rather than taking some other action to treat his condition, such 12 as calling 9-1-1. (See Pl.’s Opp’n at 10-11); Sandoval, 985 F.3d 13 at 680. Plaintiff contends that any reasonable officer in 14 Briggs’ position would have realized that continuing to transport 15 Thompson back to his room, “away from necessary medical 16 treatment,” after seeing that he was slipping out of his chair 17 was constitutionally impermissible. See id. 18 Again, Sandoval is distinguishable from the case at 19 hand. Not only did Sandoval involve the reasonableness of the 20 actions of medically-trained nurses, as opposed to medically- 21 untrained correctional staff, it did not concern a situation in 22 which the defendant indisputably was acting pursuant to the 23 orders of medical staff. See generally Sandoval, 985 F.3d at 24 657. Plaintiff does not identify a single case in which a court 25 has held that a correctional officer must second-guess the 26 representation of medical staff that an inmate-patient is 27 medically cleared to return to his housing unit and call 9-1-1 or 28 otherwise summon emergency medical care. 1 To the contrary, the Supreme Court has held that 2 “clearly established federal law does not prohibit a reasonable 3 officer . . . from assuming that proper procedures . . . have 4 already been followed.” See White, 137 S. Ct. at 552. Officer 5 Briggs was therefore entitled to assume that proper medical 6 procedures, including Nurse Portugal’s medical clearance of 7 Thompson just minutes before, had been followed. See id. 8 Because plaintiff has failed to identify sufficiently specific 9 constitutional precedents that would have alerted a reasonable 10 officer in Officer Briggs’ position that his conduct was 11 unlawful, Officer Briggs is entitled to qualified immunity on 12 plaintiff’s claim for deliberate indifference under the Eighth 13 Amendment. 14 For the foregoing reasons, defendants Portugal, 15 Saukhla, and Briggs are entitled to summary judgment on 16 plaintiff’s first claim for deliberate indifference under the 17 Eighth Amendment. 18 B. Plaintiff’s State Law Claims 19 Because summary judgment will be granted on plaintiff’s 20 federal claim as to all three defendants against whom relief is 21 sought, the court no longer has federal question jurisdiction, 22 the alleged basis for federal jurisdiction in this case.2 (See 23 2 Plaintiff’s operative complaint does not allege that 24 diversity jurisdiction exists in this case. See generally SAC; see also 28 U.S.C. § 1332. Though plaintiff alleges that she is 25 a resident of Ohio, she does not present allegations related to the citizenship of defendants Saukhla, Portugal, Briggs, Kibriyaa 26 Taajwar, or Austin Shuntay Williams. (See SAC ¶¶ 7-17.) The 27 court is therefore unable to find that one of the two necessary prerequisites for diversity jurisdiction, complete diversity of 28 1 SAC ¶¶ 4-5.) Federal courts have “supplemental jurisdiction over 2 all other claims that are so related to claims in the action 3 within such original jurisdiction that they form part of the same 4 case or controversy under Article III of the United States 5 Constitution.” 28 U.S.C. § 1367(a). But a district court “may 6 decline to exercise supplemental jurisdiction. . . [if] the 7 district court has dismissed all claims over which it has 8 original jurisdiction.” 28 U.S.C. § 1367(c); see also Acri v. 9 Varian Assocs., Inc., 114 F.3d 999, 1001 n.3 (9th Cir. 1997) (en 10 banc) (explaining that a district court may decide sua sponte to 11 decline to exercise supplemental jurisdiction). 12 The Supreme Court has stated that “in the usual case in 13 which all federal-law claims are eliminated before trial, the 14 balance of factors to be considered under the pendent 15 jurisdiction doctrine--judicial economy, convenience, fairness 16 and comity--will point toward declining to exercise jurisdiction 17 over the remaining state-law claims.” Carnegie- Mellon Univ. v. 18 Cohill, 484 U.S. 343, 350 n.7 (1988). 19 Here, comity weighs in favor of declining to exercise 20 Associates v. Prudential Ins. Co. of Am., 446 F.2d 1187, 1190 (9th Cir. 1970) (“The prerequisites to the exercise of 21 jurisdiction are specifically defined. They are conditions which 22 must be met by the party who seeks the exercise of jurisdiction in his favor. He must allege in his pleading the facts essential 23 to show jurisdiction. If he fails to make the necessary allegations he has no standing.” (quoting McNutt v. Gen. Motors 24 Acceptance Corp. of Indiana, 298 U.S. 178, 189 (1935)); Elshazi v. Dist. of Columbia, 415 F. Supp. 3d 20, 28 n.5 (D.D.C. 2019) 25 (concluding that, although plaintiff “may have been able to may have been able to bring [his] case under the Court's diversity 26 jurisdiction,” because he had not invoked diversity jurisdiction 27 or pled the citizenship of the defendants, he “ha[d] not established that complete diversity of citizenship exists”). 28 1 supplemental jurisdiction over plaintiff’s state law claims 2 against defendants for “Wrongful Death: Negligence/Malpractice” 3 and “Wrongful Death, Code Civ. Proc. § 377.60.” (See SAC at 13.) 4 The state courts are fully competent to adjudicate such claims. 5 Some of plaintiff’s claims raise peculiar questions of state 6 law.3 Such questions are better left to California courts to 7 resolve. 8 As for judicial economy, plaintiff’s state law claims 9 have not been the subject of any significant litigation in this 10 case. Judicial economy does not weigh in favor of exercising 11 supplemental jurisdiction. And finally, convenience and fairness 12 do not weigh in favor of exercising supplemental jurisdiction 13 over plaintiff’s remaining state law claim. The federal and 14 state fora are equally convenient for the parties. There is no 15 reason to doubt that the state court will provide an equally fair 16 adjudication of the issues. There is nothing to prevent 17 plaintiff from refiling her state law claims against the 18 remaining defendants in state court,4 and any additional cost or 19 3 For instance, plaintiff’s claim for medical malpractice 20 against Nurse Portugal would require the court to address the question of whether plaintiff’s retained expert, Dr. Field, is 21 qualified to offer expert testimony. California law prohibits 22 expert physicians from testifying as to the applicable standard of care for nurses in medical malpractice claims “absent some 23 ‘certification, expertise or relevant knowledge’ of the applicable standard of care.” Trujillo v. Cnty. of Los Angeles, 24 951 F. App’x 968, 972 (9th Cir. 2018). Because plaintiff’s expert, Dr. Field, is not a registered nurse, the court would 25 have to deal with the knotty issue of whether his experience working with and supervising nurses throughout his career would 26 qualify him to opine on the applicable standard of care for Nurse 27 Portugal in light of California case law. 4 “[T]he period of limitations for any claim asserted 28 1 delay resulting therefrom should be minimal. Accordingly, the 2 court declines to exercise supplemental jurisdiction and will 3 | dismiss plaintiff’s remaining state law claims without prejudice 4 to refiling in state court. 5 IT IS THEREFORE ORDERED that defendants’ motions for 6 summary judgment (Docket Nos. 81, 83) be, and the same hereby 7 are, GRANTED as to plaintiff’s first claim for deliberate 8 indifference to serious medical needs or serious risk of harm in 9 | violation of the Fighth Amendment under 42 U.S.C. § 1983. 10 Plaintiff’s remaining claims against defendants under California 11 law are DISMISSED WITHOUT PREJUDICE to refilling in state court. 12 Dated: April 27, 2021 13 14 atte A, hh be— WILLIAM B. SHUBB 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 action that is voluntarily dismissed at the same time or after the dismissal of the claim under subsection (a), shall be tolled 27 | while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling 28 | period.” 28 U.S.C. § 1367(d). 30