(PC) Harper v. Ramos ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 DARCY AARON HARPER, 1:17-cv-00606-DAD-GSA-PC 8 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT 9 v. VARANASI’S MOTION FOR SUMMARY JUDGMENT BE GRANTED 10 DR. RAMOS, et al., (ECF No. 34.) 11 Defendants. OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 12 13 I. BACKGROUND 14 Darcy Aaron Harper (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis 15 with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds against 16 defendants Dr. Htay, Dr. Ramos, and Dr. Varanasi for providing inadequate medical care in 17 violation of the Eighth Amendment.1 18 On January 8, 2021, defendant Dr. Varanasi (“Defendant”) filed a motion for summary 19 judgment. (ECF No. 34.) On February 2, 2021, Plaintiff filed an opposition to the motion.2 20 (ECF No. 37.) On February 9, 2021, Defendant filed a reply to the opposition. (ECF No. 38.) 21 Pursuant to Local Rule 230(l), this motion is now before the court. 22 For the reasons set forth below, the court recommends that the court grant summary 23 judgment to Defendant Varanasi. 24 1 On October 31, 2019, the court issued an order dismissing all other claims and 25 defendants from this action based on Plaintiff’s failure to state a claim. (ECF No. 16.) 26 2 Together with the motion for summary judgment, Defendant served Plaintiff with the 27 requisite notice of the requirements for opposing the motion for summary judgment. Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998). (ECF No. 28 34-3.) 1 II. SUMMARY JUDGMENT STANDARD 2 Any party may move for summary judgment, and the court shall grant summary judgment 3 if the movant shows that there is no genuine dispute as to any material fact and the movant is 4 entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); 5 Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, 6 whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular 7 parts of materials in the record, including but not limited to depositions, documents, declarations, 8 or discovery; or (2) showing that the materials cited do not establish the presence or absence of 9 a genuine dispute or that the opposing party cannot produce admissible evidence to support the 10 fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The court may consider other materials 11 in the record not cited to by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3); 12 Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord 13 Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 14 Defendant does not bear the burden of proof at trial and in moving for summary judgment, 15 he only needs to prove an absence of evidence to support Plaintiff’s case. In re Oracle Corp. Sec. 16 Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 17 S.Ct. 2548 (1986)). If Defendant meets his initial burden, the burden then shifts to Plaintiff “to 18 designate specific facts demonstrating the existence of genuine issues for trial.” Id. This requires 19 Plaintiff to “show more than the mere existence of a scintilla of evidence.” Id. (citing Anderson 20 v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505 (1986)). 21 In judging the evidence at the summary judgment stage, the court may not make 22 credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 23 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all 24 inferences in the light most favorable to the nonmoving party and determine whether a genuine 25 issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. 26 City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted). 27 The court determines only whether there is a genuine issue for trial. Thomas v. Ponder, 611 F.3d 28 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted). 1 In arriving at these findings and recommendations, the court carefully reviewed and 2 considered all arguments, points and authorities, declarations, exhibits, statements of undisputed 3 facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of 4 reference to an argument, document, paper, or objection is not to be construed to the effect that 5 this court did not consider the argument, document, paper, or objection. This court thoroughly 6 reviewed and considered the evidence it deemed admissible, material, and appropriate. 7 III. PLAINTIFF’S ALLEGATIONS -- SECOND AMENDED COMPLAINT3 8 Plaintiff is presently incarcerated at the California Health Care Facility in Stockton, 9 California. The events at issue in the Second Amended Complaint allegedly occurred when 10 Plaintiff was incarcerated at Wasco State Prison (WSP) in Wasco, California. Plaintiff’s 11 allegations follow: 12 Plaintiff was sentenced to 16 years to life in Fresno County. Nurse Vivian [not a 13 defendant] at Fresno County Jail emailed WSP Medical and asked them if they could 14 accommodate an inmate who needed peritoneal dialysis. WSP Medical advised her that they 15 could take care of that. When Plaintiff arrived at WSP they took all of the dialysis medicine that 16 was sent with him. WSP could not let Plaintiff do dialysis at the prison and sent him out to Mercy 17 Hospital in Bakersfield for dialysis about twice a week. WSP Medical later decided not to send 18 Plaintiff out for dialysis anymore. Dr. Ramos told Plaintiff that Dr. Varanasi had a meeting 19 instructing medical staff not to send Plaintiff out for dialysis anymore. This resulted in cardiac 20 arrest after 7 days. Plaintiff went into a coma, had blood blisters all over his body, ruptured his 21 pancreas, and lost oxygen to his brain. Dr. Ramos refused Plaintiff access to medical care in July 22 2014 after being instructed not to do so by Dr. Varanasi. Dr. Ramos told Plaintiff that Dr. 23 Varanasi told him not to give Plaintiff dialysis. Dr. Htay, B-yard doctor at WSP, refused Plaintiff 24 dialysis for 7 days in July 2014. R.N. Blocher [not a defendant] lied to Dr. Varanasi concerning 25 26 3 Plaintiff’s Second Amended Complaint is verified, and his allegations constitute evidence where they are based on his personal knowledge of facts admissible in evidence. Jones v. Blanas, 27 393 F.3d 918, 922-23 (9th Cir. 2004). The summarization of Plaintiff’s claim in this section should not 28 be viewed by the parties as a ruling that the allegations are admissible. The court will address, to the extent necessary, the admissibility of Plaintiff’s evidence in the sections which follow. 1 how Plaintiff was responding to hemodialysis. Dr. Varanasi had a meeting in July 2014 at WSP 2 where he instructed all medical staff not to send Plaintiff out for dialysis and to just let him die. 3 In July 2014, R.N. Wee [not a defendant] did nothing to get Plaintiff life-saving medical 4 attention. Plaintiff seeks monetary damages and an apology from Dr. Varanasi. He also wants 5 the court to prosecute Dr. Varanasi. 6 IV. PLAINTIFF’S MEDICAL CLAIM – LEGAL STANDARD 7 The Civil Rights Act under which this action was filed provides: 8 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to 9 be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 10 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 11 12 42 U.S.C. § 1983. 13 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 14 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 15 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v. 16 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 17 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v. 18 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of a state law 19 amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the 20 federal Constitution, Section 1983 offers no redress.” Id. 21 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 22 color of state law and (2) the defendant deprived him or her of rights secured by the Constitution 23 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 24 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 25 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 26 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act 27 which he is legally required to do that causes the deprivation of which complaint is made.’” 28 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 1 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be 2 established when an official sets in motion a ‘series of acts by others which the actor knows or 3 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479 4 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles 5 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 6 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 7 1026 (9th Cir. 2008). 8 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 9 inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 10 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part 11 test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by 12 demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury 13 or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need 14 was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 15 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 16 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown 17 by “a purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm 18 caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Deliberate indifference 19 may be manifested “when prison officials deny, delay or intentionally interfere with medical 20 treatment, or it may be shown by the way in which prison physicians provide medical care.” Id. 21 Where a prisoner is alleging a delay in receiving medical treatment, the delay must have led to 22 further harm in order for the prisoner to make a claim of deliberate indifference to serious medical 23 needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 24 407 (9th Cir. 1985)). 25 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 26 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the 27 facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but 28 that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 U.S. 1 825, 837 (1994)). “‘If a prison official should have been aware of the risk, but was not, then the 2 official has not violated the Eighth Amendment, no matter how severe the risk.’” Id. (quoting 3 Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A showing of 4 medical malpractice or negligence is insufficient to establish a constitutional deprivation under 5 the Eighth Amendment.” Id. at 1060. “[E]ven gross negligence is insufficient to establish a 6 constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)). 7 “A difference of opinion between a prisoner-patient and prison medical authorities 8 regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 9 1344 (9th Cir. 1981) (internal citation omitted). To prevail, a plaintiff “must show that the course 10 of treatment the doctors chose was medically unacceptable under the circumstances . . . and . . . 11 that they chose this course in conscious disregard of an excessive risk to plaintiff’s health.” 12 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted). 13 V. DEFENDANT VARANASI’S UNDISPUTED FACTS (SSUF)4 (ECF No. 39-2.) 14 Defendant Varanasi submitted this separate statement of undisputed facts in support of 15 his motion for summary judgment. 16 Issue No. 1: The undisputed facts establish that Dr. Varanasi was never deliberately 17 indifferent to Mr. Harper’s medical needs. 18 Defendant’s Undisputed Material Facts Supporting Evidence 19 1. Darcy Aaron Harper (“Plaintiff or “Mr. Second Amended Complaint (ECF 11, pages Harper”) is a California State Prison inmate 1 and 5) 20 and was incarcerated at Wasco State Prison 21 at the time of the events giving rise to this 22 lawsuit. 23 24 4 Plaintiff failed to properly address Defendant’s statement of undisputed facts, as 25 required by Local Rule 260(b). Accordingly, the court may consider Defendant’s assertions of fact as undisputed for purposes of this motion. Id; Fed. R. Civ. P. 56(e)(2). However, in light of the Ninth 26 Circuit’s directive that a document filed pro se is “to be liberally construed,” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, and Rule 8(e) of the Federal Rules of Civil Procedure provides that 27 “[p]leadings shall be construed so as to do justice,” see Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 28 2197, 2200, 167 L. Ed. 2d 1081 (2007), the court shall strive to resolve this motion for summary judgment on the merits. 1 Defendant’s Undisputed Material Facts Supporting Evidence 2 2. Mr. Harper was transferred from the Exhibit D, page 13 Declaration of Keith Fresno County Jail to the Wasco State Prison Klein, M.D. (“Klein Decl.”), ¶ 5(a) and 3 (“WSP”) on June 17, 2014. Exhibit B, page 27 4 (The references to Dr. Klein’s declaration 5 are included in this Statement of Undisputed 6 Facts for the convenience of the Court, so it 7 can see the cross-references between the 8 supporting evidence and the paragraphs of 9 Dr. Klein’s declaration in which he relies on 10 the cited materials.) 3. The records demonstrate that Mr. Harper Exhibit D, pages 13, 19-22 Exhibit E, pages 11 had an extensive past medical history that 28 Klein Decl, ¶ 5(a) and Exhibit B, pages 12 included end stage renal failure, type II 27, 33- 36, and 42 13 diabetes, diabetic neuropathy and 14 retinopathy, peripheral vascular disease, 15 fibromyalgia, osteoarthritis, Hepatitis C, 16 gastroparesis, GERD, chronic sinusitis, 17 degenerative disc disease, DVT, pulmonary embolism, hypertension, hyperlipidemia and 18 borderline schizophrenia. He also had an 19 extensive history of intravenous drug use. 20 4. At the time he was transferred to WSP, Exhibit D, page 13 Klein Decl, ¶ 5(b) and 21 Mr. Harper was receiving peritoneal dialysis Exhibit B, page 27 22 secondary to end stage renal disease. 23 5. The records indicate that the WSP dialysis Exhibit D, page 13 Klein Decl, ¶ 5(b) and 24 center was not equipped to provide peritoneal Exhibit B, page 27 25 dialysis, and Mr. Harper was sent to Mercy Southwest Hospital on June 17, 2014 to 26 continue peritoneal dialysis and to establish 27 hemodialysis. 28 1 Defendant’s Undisputed Material Facts Supporting Evidence 2 6. Mr. Harper was seen in the Emergency Exhibit E, pages 25-26 Klein Decl, ¶ 5(c) Department where it was documented that he and Exhibit B, pages 39-40 3 did not look severely fluid overloaded and 4 there was no indication for emergent dialysis. 5 7. He was admitted to Mercy Southwest Exhibit E, pages 29-30 Klein Decl, ¶ 5(c) 6 Hospital by hospitalist Mushtaq Ahmed, and Exhibit B, pages 43-44 7 M.D., who requested a Nephrology/renal 8 consultation. 9 8. On June 18, 2014, Dr. Varanasi provided a Exhibit E, pages 31-32 Klein Decl, ¶ 5(d) 10 Nephrology consultation to Mr. Harper at and Exhibit B, pages 45-46 Mercy Southwest Hospital. 11 9. Dr. Varanasi documented that Mr. Harper Exhibit E, pages 31-32 Klein Decl, ¶ 5(d) 12 had been on dialysis for ten years and was and Exhibit B, pages 45-46 13 using peritoneal dialysis in the Fresno 14 County Jail. However, he was transferred to 15 Wasco State Prison where peritoneal dialysis 16 was not available. 17 10. Dr. Varanasi documented that Mr. Harper Exhibit E, pages 31-32 Klein Decl, ¶ 5(d) 18 reported multiple vascular access failures, and Exhibit B, pages 45-46 but had a functioning access point in the right 19 upper arm (an AV fistula) that had not been 20 tried. 21 11. Mr. Harper also reported that his Exhibit E, pages 31-32 Klein Decl, ¶ 5(d) 22 subclavian vein was stenosed and an attempt and Exhibit B, pages 45-46 23 to open it about two months prior was 24 partially successful with significant 25 improvement of collateral circulation. 12. Dr. Varanasi further recorded that Mr. Exhibit E, pages 31-32 Klein Decl, ¶ 5(d) 26 Harper was clinically stable at the time. and Exhibit B, pages 45-46 27 28 1 Defendant’s Undisputed Material Facts Supporting Evidence 2 13. Due to the fact Mr. Harper was serving a Exhibit E, pages 31-32 Klein Decl, ¶ 5(d) life sentence and peritoneal dialysis was and Exhibit B, pages 45-46 3 unavailable at the prison, Dr. Varanasi 4 documented that Mr. Harper needed to be 5 switched to hemodialysis. 6 14. Dr. Varanasi noted that he had a Exhibit E, pages 31-32 Klein Decl, ¶ 5(d) 7 discussion with Mr. Harper regarding the and Exhibit B, pages 45-46 8 need to switch to hemodialysis and suggested 9 the AV fistula be tried for dialysis access. 10 15. If that approach were unsuccessful, Dr. Exhibit E, pages 31-32 Klein Decl, ¶ 5(d) Varanasi noted that he would obtain a and Exhibit B, pages 45-46 11 vascular surgery consultation regarding 12 placement of a stent in the subclavian vein. 13 16. Dr. Varanasi wrote that Mr. Harper was Exhibit E, pages 31-32 Klein Decl, ¶ 5(d) 14 very reluctant and apprehensive about using and Exhibit B, pages 45-46 15 the right arm fistula. 16 17. Dr. Varanasi further documented that, Exhibit E, pages 31-32 Klein Decl, ¶ 5(d) 17 after a lengthy discussion, he decided that and Exhibit B, pages 45-46 18 Mr. Harper would be continued on peritoneal dialysis while he was in the hospital and 19 would be evaluated by vascular surgery 20 regarding the vascular access. 21 18. Once the right upper arm AV fistula was Exhibit E, pages 31-32 Klein Decl, ¶ 5(d) 22 cleared for use by the vascular surgeon, Mr. and Exhibit B, pages 45-46 23 Harper would be started on hemodialysis. 24 19. Dr. Varanasi discussed Mr. Harper’s case Exhibit E, pages 31-32 Klein Decl, ¶ 5(d) 25 in detail with a vascular surgeon, Jose Soto, and Exhibit B, pages 45-46 M.D., who agreed to see the patient that 26 same day. 27 28 1 Defendant’s Undisputed Material Facts Supporting Evidence 2 20. There are no further documented Exhibit E Klein Decl, ¶ 5(d) and Exhibit B interactions between Mr. Harper and Dr. 3 Varanasi during his hospitalization of June 4 17 - 20, 2014. 5 21. On June 18, 2014, Dr. Soto provided a Exhibit E, pages 33-34 Klein Decl, ¶ 5(d) 6 Vascular Surgery consultation to Mr. Harper and Exhibit B, pages 47-48 7 at Mercy Southwest Hospital. 8 22. Dr. Soto also documented Mr. Harper Exhibit E, pages 33-34 Klein Decl, ¶ 5(d) 9 had a functioning AV fistula in the right and Exhibit B, pages 47-48 10 upper arm with an established wide and prominent venous collateral circulation that 11 could and should be accessed for 12 hemodialysis. 13 23. Dr. Soto recommended a fistulogram to Exhibit E, pages 33-34 Klein Decl, ¶ 5(d) 14 evaluate for evidence of local areas of and Exhibit B, pages 47-48 15 stenosis in the trajectory of the translocated 16 fistula or any areas of central stenosis that 17 could be dilated. 18 24. Mr. Harper refused the proposed care. Exhibit E, pages 33-34 Klein Decl, ¶ 5(d) and Exhibit B, pages 47-48 19 25. On June 20, 2014, Mr. Harper was Exhibit E, pages 35-36 Klein Decl, ¶ 5(d) 20 discharged from Mercy Southwest Hospital and Exhibit B, pages 49-50 21 to the WSP facility in stable condition. 22 26. The Inmate Discharge Summary reflects Exhibit E, pages 35-36 Klein Decl, ¶ 5(d) 23 that Mr. Harper refused the AV fistula and Exhibit B, pages 49-50 24 workup recommended by Dr. Varanasi and 25 Dr. Soto and was aware the prison facility could not provide adequate peritoneal 26 dialysis, making hemodialysis the best 27 option, and was willing to take the risk. 28 1 Defendant’s Undisputed Material Facts Supporting Evidence 2 27. Mr. Harper was subsequently Exhibit E, pages 37-98 Klein Decl, ¶ 5(d) hospitalized at Mercy Southwest Hospital and Exhibit B, pages 51-112 3 five more times on June 23, June 30, July 8, 4 July 25 and August 3, 2014, secondary to 5 increasing uremic symptoms from not being 6 able to obtain peritoneal dialysis. 7 28. There are no documented interactions Exhibit E, pages 37-98 Klein Decl, ¶ 5(d) 8 between Mr. Harper and Dr. Varanasi during and Exhibit B, pages 51-112 9 any of the subsequent hospitalizations. 10 29. Mr. Harper eventually agreed to switch to Exhibit E, pages 92-98 Klein Decl, ¶ 5(d) hemodialysis during the August 3, 2014 and Exhibit B, pages 106-112 11 hospitalization using the AV fistula on his 12 right upper arm as the dialysis access point. 13 30. Hemodialysis was done at the hospital Exhibit E, pages 97-98 Klein Decl, ¶ 5(d) 14 without any problems and he was discharged and Exhibit B, pages 111-112 15 back to the WSP facility on August 7, 2014 16 with instructions to undergo hemodialysis 17 three times per week. 18 31. Mr. Harper testified that he had no Exhibit C, pages 6-7 Klein Decl, ¶ 5(d) and recollection of ever having any conversations Exhibit B, pages 20-21 19 with Dr. Varanasi at WSP. 20 Issue No. 2: The undisputed facts show that Dr. Varanasi was never negligent in the 21 medical treatment he rendered to Mr. Harper. 22 32. Keith Klein, M.D. is qualified to render an Klein Decl., ¶¶ 1-5 and Exhibit A 23 opinion as to the standard of care applicable 24 to Nephrologists. 25 33. The care and treatment provided by Dr. Klein Decl., ¶¶ 6-7 26 Varanasi to Mr. Harper at all times met the 27 applicable standard of care. 28 1 See also Undisputed Facts as to Issue No. 1. 2 Issue No. 3: The undisputed facts show that nothing Dr. Varanasi did or did not do caused 3 any injury to Mr. Harper. 4 34. Keith Klein, M.D. is qualified to render an Klein Decl., ¶¶ 1-5 and Exhibit A 5 opinion as to causation. 6 35. There is nothing that Dr. Varanasi did or Klein Decl., ¶¶ 6-7 7 did not do that caused Mr. Harper to suffer any 8 injuries in this case. 9 See also Undisputed Facts as to Issue No. 1. 10 VI. DEFENDANT VARANASI’S ARGUMENTS 11 Defendant Dr. Varanasi moves for an order granting summary judgment pursuant to Rule 12 56 of the Federal Rules of Civil Procedure and Local Rule 56 on the grounds that Plaintiff is 13 unable to raise a triable issue of fact to support his claim that Dr. Varanasi violated his rights 14 under the Eighth Amendment to the Constitution of the United States of America, or violated the 15 applicable standard of care with respect to the medical care and treatment provided. 16 Defendant Varanasi’s evidence consists of the Second Amended Complaint (ECF No. 17 11); Declaration of Amanda Lucas, Esq., counsel for defendant Dr. Varanasi, (ECF No. 34-4), 18 and its attached exhibits, which include: Excerpts from Plaintiff’s deposition (Exhibit C), (ECF 19 No. 34-4 at 5-11)5; Plaintiff’s medical records from CDCR-California Healthcare Facility, 20 Stockton (Exhibit D), ECF No. 34-4 at 12-23; Plaintiff’s medical records from Mercy Southwest 21 Hospital (Exhibit E), ECF No. 34-4 at 24-105; and Plaintiff’s medical records from U.S. Davis 22 Health System (Exhibit F), ECF No. 34-4 at 106-113; Decl. of Keith Klein, M.D., expert (ECF 23 No. 34-5) and its attached exhibits, which include: Curriculum Vitae of Keith Klein, M.D. 24 (Exhibit A), ECF No. 34-5 at 8-16; and Plaintiff’s medical records reviewed by Dr. Klein (Exhibit 25 B), ECF No. 34-5 at 17-127). 26 27 5 All page numbers cited herein are those assigned by the court’s electronic filing system (CM/ECF) and not based on the parties’ pagination of their briefing materials. 28 1 1. The Undisputed Facts Establish That Dr. Varanasi Was Never Deliberately 2 Indifferent to Plaintiff’s Medical Needs. 3 The gravamen of Mr. Harper’s deliberate indifference claim in this case is his contention 4 that Dr. Varanasi refused to provide him with dialysis and instructed other providers not to let 5 Mr. Harper go to dialysis and instead to let him die. (Second Amended Complaint, ECF 11 at 2- 6 4.) As a result, Mr. Harper contends that he suffered cardiac arrest, went into a coma, and 7 developed blood blisters all over his body. He also claims that his pancreas ruptured, and he lost 8 oxygen to his brain. (Id. at 4.) 9 But Defendant argues that Plaintiff has no admissible evidence to support his claim. At 10 his deposition, Plaintiff testified that he never had a conversation with Dr. Varanasi: 11 Q . . . you don’t have any recollection of any conversations with Dr. Varanasi where 12 he was explaining to you that you needed hemodialysis because the prison could not provide you 13 with peritoneal dialysis? 14 A Never.· Not once. 15 (Pltf’s Depo., ECF No 34-4 at 6:9-14.) 16 Q You don’t remember ever having any conversations with Dr. Varanasi? 17 A No. · I remember him coming in to dialysis after I started hemodialysis, but I don’t 18 remember ever talking to him. 19 Q Do you remember ever talking to Dr. Varanasi at any time while you were at 20 Mercy Hospital during any of your hospitalizations? 21 A No.· I remember him coming in there with Dr. Ahmed and Dr. Soto just one time.· 22 I don’t remember ever seeing him any other time. 23 Q Okay.· And then you remember seeing him again when you were back at the 24 prison receiving the hemodialysis and you told me he would come in and look at the paperwork 25 that the nurses were doing; is that right? 26 A Exactly, ma’am.· That’s right. 27 Q And did he ever have any conversations with you at any time while you were 28 getting hemodialysis at the prison? 1 A I don’t believe so.· Now, he could have, but I just don’t – don’t remember.· I don’t 2 think he did. I don’t believe he did.· I could remember seeing him standing by the little desk 3 police guard looking at the notebooks and stuff, going back in the corner where the nurses’ little 4 station is and looking at their notebooks and stuff and turning around and leaving.· That’s all I 5 can remember about him. 6 (Id. at 6:20-7:21.) 7 Defendant argues that the only basis for Plaintiff’s claim against Dr. Varanasi is 8 Plaintiff’s own self-serving testimony about what he claims that other individuals ostensibly told 9 him, which is inadmissible hearsay. At his deposition, Plaintiff testified: 10 Q So I’m curious to know, in your responses that you gave me to our questions, you 11 had said the basis for your deliberate indifference claim against Dr. Varanasi was that he refused 12 to provide you with dialysis. 13 A Correct. · 14 Q Is that a fair statement? 15 A Yes. 16 Q Okay.· What I’d like to know from you today, Mr. Harper, is what is the basis for 17 that contention against Dr. Varanasi? 18 A Because he had a meeting and in that meeting, he told his staff, do not take me to 19 dialysis no more, to leave me in my cell and let me die. 20 Q Okay.· Were you present at that meeting? 21 A Someone else was. 22 Q Okay.· So someone else told you that Dr. Varanasi had a meeting where he told 23 other people not to give you dialysis? 24 A Yeah.· When they would call him and tell him that I needed to go to dialysis, he 25 would say, don’t take me. 26 (Id. at 8:2-21.) 27 Q Okay.· So I am going to ask you again then. Who told you that Dr. Varanasi had 28 a meeting where he instructed people not to provide you with dialysis? 1 A Dr. Ramos. 2 Q And do you remember – 3 A As soon as I came back from the hospital, he came into emergency where he 4 brought me in and he told me, Mr. Harper, I begged them not to do this to you and they did it 5 anyway.· He said, I will write out anything you need because they were wrong.· They shouldn't 6 have did it. ·Now -- · 7 Q And what was he referring to in your mind? · 8 A Not taking me to dialysis. 9 Q Okay.· So your understanding from Dr. Ramos is that he had some sort of meeting 10 with Dr. Varanasi where Dr. Varanasi told him not to provide you with any dialysis? 11 A Him and Dr. Htay.· And nurse -- another nurse. ·He told me all what was in there, 12 but I have to look at my notes to tell you who all was in there, but I know that Dr. Varanasi was 13 in there, and Dr. Htay. 14 Q And when did you have this conversation with Dr. Ramos? 15 A The day I came back from the heart attack from the hospital, from Mercy Hospital. 16 Q And this was the heart attack where you went into the coma and had the 17 hallucinations? 18 A Yes, ma’am. 19 (Id. at 9:16-10:19.) 20 Defendant also submits testimony by his medical expert, Keith Klein, M.D., qualified in 21 the field of Nephrology. (Decl. of Keith Klein, ECF No. 34-5 at 1-3 ¶¶ 1-4; Curriculum Vitae, 22 ECF No. 34-5 at 8-16 (Exh. A).) Dr. Klein opined that Dr. Varanasi complied with the applicable 23 standard of care and that the standard of care did not require Dr. Varanasi to provide the specific 24 form of dialysis demanded by Plaintiff. 25 “After reviewing the above-mentioned records and materials, obtaining all 26 of the facts concerning the care and treatment rendered to Mr. Harper, including 27 the factual outline set forth above, and based upon my education, training, 28 qualifications, and experience, it is my professional opinion that all aspects of the 1 care and treatment rendered by Dr. Varanasi to Mr. Harper met the applicable 2 standard of care. The primary bases for my opinion are as follows: Dr. Varanasi 3 met the standard of care by offering Mr. Harper an accepted treatment modality 4 in the form of hemodialysis. This is particularly true given that Mr. Harper was 5 unable to obtain peritoneal dialysis at the prison and had a functioning AV fistula 6 that could be used as a vascular access point for hemodialysis. The fact that Mr. 7 Harper reported that he was serving a life sentence further augmented the need to 8 switch to the treatment modality that was readily available to him at the prison, as 9 it was potentially dangerous to his health if he did not receive adequate dialysis. 10 The standard of care did not require Dr. Varanasi in this situation to 11 provide the specific form of dialysis demanded by the patient. Although there are 12 broad guidelines in the medical community regarding a patient’s right to refuse 13 medical treatment, in a case such as this where the treatment is required for life- 14 sustaining purposes, the best treatment modality is within the medical judgment 15 and discretion of the physician. That Dr. Varanasi determined it was not feasible 16 or acceptable to continue to provide peritoneal dialysis to the plaintiff in these 17 circumstances is perfectly reasonable, acceptable and within the applicable 18 standard of care.” 19 (Decl. of Keith Klein, M.D., ECF No. 34-5 at 6 ¶ 6(a)-6(b).) 20 2. The Undisputed Facts Show That Nothing Dr. Varanasi Did or Did Not Do 21 Caused Any Injury To Plaintiff. 22 Defendant argues that the Undisputed Facts show that Dr. Varanasi did not cause any 23 injury to Plaintiff. Dr. Klein found no affirmative link between Dr. Varanasi’s medical care and 24 treatment and Plaintiff’s alleged injuries. 25 “From a causation standpoint, there is no evidence that anything Dr. 26 Varanasi did or did not do caused Mr. Harper to suffer any injuries in this case. 27 The records amply demonstrate that Dr. Varanasi and the other providers had no 28 option but to provide peritoneal dialysis on an emergent basis each time Mr. 1 Harper returned to the hospital with complications of increasing uremia and 2 hypervolemia (fluid overload). Both conditions can be life threatening, as 3 illustrated by the fact Mr. Harper suffered cardiac arrest from complications 4 attributed to his worsening uremia and hypervolemia. This is precisely why Dr. 5 Varanasi, as well as the other providers, were insistent that Mr. Varanasi switch 6 to hemodialysis. However, there is nothing in the records I reviewed to suggest 7 that any of Mr. Harper’s medical issues or complaints were caused by anything 8 Dr. Varanasi did or did not do in connection with the care and treatment he 9 rendered to Mr. Harper.” 10 (Decl. of Keith Klein, M.D., ECF No. 34-5 at 7 ¶ 6(c).) 11 In addition, Defendant argues that Plaintiff‘s bald unsupported allegations are insufficient 12 to establish any competent evidence that he was harmed, much less that any alleged harm was 13 caused by Dr. Varanasi. 14 3. A Difference of Opinion Between the Physician and The Prisoner Concerning 15 Medical Treatment Does Not Amount To Deliberate Indifference. 16 Defendant argues that to the extent Plaintiff disagrees with Dr. Varanasi’s 17 recommendation that he switch to hemodialysis, Plaintiff cannot state a claim because a 18 difference of opinion between a physician and the prisoner – or between medical professionals – 19 concerning what medical care is appropriate does not amount to deliberate indifference. 20 VII. DEFENDANT HAS MET HIS BURDEN 21 Based on Defendant Dr. Varanasi’s arguments and evidence, the court finds that 22 Defendant has met his burden of demonstrating that Plaintiff has no evidence that Defendant 23 acted with deliberate indifference in violation of the Eighth Amendment when providing Plaintiff 24 with medical care. Therefore, the burden now shifts to Plaintiff to produce evidence of a genuine 25 material fact in dispute that would affect the final determination in this case. 26 VIII. PLAINTIFF’S OPPOSITION 27 In opposition, Plaintiff restates his allegations in detail and submits copies of medical 28 records showing that he transferred from hemodialysis to peritoneal dialysis in 2012, was treated 1 at Mercy Hospital for cardiac arrest in July 2014, and met with a doctor in November 2015 for 2 evaluation of his superior vena cava syndrome. (ECF No. 37 and exhibits at pp. 6, 11, 12, & 17.) 3 Plaintiff submits a witness list with five witnesses who are all medical providers. (ECF No. 37 4 at 4.) He also includes a one-page write-up concerning another case in this court, Cromer v. 5 Songer, U.S. DIST. Lexis 15845, case no. 1:15-cv-01742-SAB (PC). (ECF No. 37 at 3.) In 6 addition, Plaintiff’s allegations in the Second Amended Complaint constitute evidence where 7 they are based on his personal knowledge of facts admissible in evidence. Jones, 393 F.3d at 8 922-23. 9 Plaintiff argues that Dr. Varanasi deliberately withheld critical medical care from Plaintiff 10 knowing that Plaintiff could die, causing him life-changing harm and life-long pain. Plaintiff’s 11 alleges in the verified Second Amended Complaint: 12 “While I was at WSP [Wasco State Prison] I was refused lifegiving medical 13 care. I needed peritoneal dialysis every day and I was refused [it] for seven days.“ 14 (ECF No. 11 at 5.) 15 “I got sentenced to 16 yrs to life at Fresno County. County Nurse Vivian at 16 Fresno County Jail e-mailed WSP Medical and asked them if they could 17 accommodate an inmate who needed peritoneal dialysis. WSP Medical advised 18 her that they could take care of that. When I got to WSP, they took all of my 19 dialysis medicine that was sent to WSP with me. They WSP were sending me out 20 to Mercy Hospital in Bakersfield for dialysis about 2 times a week. WSP Medical 21 decided not to send me out for dialysis any more. Dr. Ramos told me that Dr. 22 Varanasi had a meeting instructing medical staff not to send me/Darcy Harper out 23 for dialysis any more. This resulted in cardiac arrest. After 7 days I went into a 24 coma, had blood blisters all over my body, ruptured my pancreas [and] lost 25 oxygen to my brain.” 26 (ECF No. 11 at 5, 4.) 27 /// 28 /// 1 IX. PLAINTIFF’S EIGHTH AMENDMENT MEDICAL CLAIM 2 Plaintiff claims that Defendant Dr. Varanasi violated his Eighth Amendment rights by 3 failing to provide him with proper medical care, causing him cardiac arrest and long-term pain. 4 1. Serious Medical Need 5 There is no dispute in this case that Plaintiff suffered from a “serious medical need.” 6 Defendant Varanasi does not contest that Plaintiff suffered from renal disease and required 7 dialysis. 8 2. Deliberate Indifference 9 Plaintiff has not met his burden to present evidence showing that Defendant Dr. Varanasi 10 was deliberately indifferent in response to Plaintiff’s medical need. First, Plaintiff does not recall 11 ever having a conversation with Dr. Varanasi. (Pltf’s Depo., ECF No 34-4 at 6:9-14, 6:20-7:21.) 12 Although Dr. Varanasi presents evidence that Plaintiff had a consultation with him about 13 changing from peritoneal dialysis to hemodialysis at Mercy Hospital on June 18, 2014, (ECF No. 14 32 at 31-32), Plaintiff does not recall the consultation and only recalls seeing Dr. Varanasi once 15 at the hospital and again back at the prison (ECF No. 34-4 at 6:20-7:21). 16 Plaintiff bases his deliberate indifference claim on a conversation he had with Dr. Ramos 17 who allegedly told Plaintiff that Dr. Varanasi had a meeting and told medical staff not to take 18 Plaintiff to dialysis any more and to leave Plaintiff in his cell and let him die. (ECF No. 34-4 at 19 8:9-21.) Plaintiff was not at the meeting (Id. at 8:15-16) and has no other evidence to support his 20 contention that the meeting was ever held or what happened at the meeting. This evidence is 21 inadmissible because Plaintiff did not testify about what he personally experienced, and 22 Plaintiff’s account of Dr. Ramos’ statement about the meeting is inadmissible hearsay. Plaintiff 23 has presented no other evidence that Dr. Varanasi acted against him with deliberate indifference. 24 Plaintiff has indicated that he has witnesses whose testimony will support his claims, but Plaintiff 25 has not submitted any declarations by any witnesses. 26 Plaintiff also fails to establish that anything Dr. Varanasi did or failed to do caused 27 Plaintiff harm. Plaintiff is not competent to provide medical opinion evidence sufficient to 28 create any triable issue of fact in this case. See Fed. R. Civ. P. 56(c)(4) (affidavit or declaration 1 used to oppose a motion must be made on personal knowledge, set out facts that would 2 be admissible in evidence, and show that the affiant or declarant is competent to testify on the 3 matters stated). Plaintiff has presented no evidence that Defendant’s conduct in response to 4 Plaintiff’s medical need fell below the medical standard of care so significantly that it could 5 constitute deliberate indifference under the Eighth Amendment, or that Defendant acted 6 unreasonably in response to the knowledge that Plaintiff faced a substantial risk of serious harm. 7 Rather, Plaintiff’s arguments rely entirely on his non-medical opinion. Plaintiff’s opinion 8 testimony is not admissible under Rule of Evidence 701 because he is a layman and not a medical 9 expert: 10 If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: 11 (a) rationally based on the witness’s perception; 12 (b) helpful to clearly understanding the witness’s testimony or to determining a 13 fact in issue; and 14 (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. 15 16 Fed. R. Evid. 701. 17 Accordingly, based on the foregoing, the court should grant Defendant Dr. Varanasi’s 18 motion for summary judgment on Plaintiff’s § 1983 claim of deliberate indifference in violation 19 of the Eighth Amendment. 20 X. CONCLUSION AND RECOMMENDATIONS 21 The court finds that based on the undisputed facts, Defendant Dr. Varanasi’s motion for 22 summary judgment, filed on January 8, 2021, should be granted. 23 Therefore, based on the foregoing, it is HEREBY RECOMMENDED that: 24 1. The motion for summary judgment filed by Defendant Dr. Varanasi on January 25 8, 2021, be GRANTED as to Plaintiff’s § 1983 claim under the Eighth 26 Amendment; 27 2. Summary judgment be granted to Defendant Dr. Varanasi; 28 /// 1 3. This case now proceed only against defendants Dr. Htay and Dr. Ramos on 2 Plaintiff’s §1983 claims for inadequate medical care in violation of the Eighth 3 Amendment; 4 4. The Clerk of Court be directed to reflect Defendant Dr. Varanasi’s dismissal from 5 this case on the court’s docket; and 6 5. This case be referred back to the Magistrate Judge for further proceedings. 7 These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 9 (14) days from the date of service of these findings and recommendations, any party may file 10 written objections with the court. Such a document should be captioned “Objections to 11 Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served 12 and filed within ten (10) days after the date the objections are filed. The parties are advised that 13 failure to file objections within the specified time may result in the waiver of rights on appeal. 14 Wilkerson, 772 F.3d at 838-39 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 IT IS SO ORDERED. 16 17 Dated: May 23, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28