(PC) Salinas v. Wang ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JASON MICHAEL SALINAS, Case No. 1:19-00157-HBK 12 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT2 13 v. (Doc. No. 32) 14 JEFFREY WANG, P. JOHNSON,1 ORDER DIRECTING CLERK TO CORRECT 15 Defendants. MISSPELLING ON DOCKET 16 17 Pending before the Court is Defendants Wang, M.D. and P. Johnson, N.P.’s Motion for 18 Summary Judgment filed January 26, 2021. (Doc. No. 32, “MSJ”). The MSJ contained a Rand3 19 warning and notice under Local Rule 260(a). (Doc. No. 32-1). Plaintiff did not file a timely 20 response to the MSJ. (See docket). Considering Plaintiff’s pro se status, on March 18, 2021, the 21 Court sua sponte again warned Plaintiff of the pending MSJ and afforded him thirty days to 22 respond. (Doc. No. 33 at 5). On April 28, 2021, Defendants submitted a reply, urging the Court 23 to consider the merits of the MSJ, despite Plaintiff’s repeated failure to respond. (Doc. No. 34). 24 25 1 Plaintiff identified nurse practioner “P. Jhonson” as a Defendant. (Doc. No. 1 at). In their Answer, Defendants advise that “Jhonson” was a typographical error and admitted that the nurse practioner P. 26 Johnson was the correct named Defendant. (Doc. No. 13 at 1, fn. 1). The Clerk of Court is directed to correct the spelling of Defendant Johnson’s name on the docket. 27 2 Both parties have consented to the jurisdiction of a magistrate judge in accordance with Local Rule 301. (Doc. No. 30). 28 3 Rand v. Rowland, 154 F. 3d 952, 962-63 (9th Cir. 1988) (en banc). 1 The Court finds no genuine dispute as to any material facts as to whether Defendants acted, or 2 failed to act, out of deliberate indifference to Plaintiff’s shoulder injury and grants Defendants’ 3 MSJ. 4 I. BACKGROUND 5 Plaintiff Jason Michael Salinas (“Plaintiff” or “Salinas”), a state prisoner initiated this 6 action by filing a pro se civil rights complaint under 42 U.S.C. § 1983 on January 21, 2019. 7 (Doc. No. 1). On September 25, 2019, the then-assigned magistrate judge screened the 8 complaint, finding that Salinas had stated cognizable claims of medical deliberate indifference 9 against Defendants Wang and Johnson and directed service of the complaint on Defendants. 10 (Doc. Nos. 10, 12). On December 12, 2019, Defendants filed an answer to the complaint and 11 discovery commenced. (Doc. Nos. 13, 15). On February 3, 2020, Salinas filed an improper reply 12 to Defendants’ answer. (Doc. No. 19). After discovery and in compliance with the modified 13 scheduling order (Doc. No. 24), Defendants timely filed the MSJ sub judice. (Doc. No. 32). In 14 support, Defendants submitted declarations from defense counsel (Doc. No. 32-2), Defendant 15 Wang (Doc. No. 32-3), and Defendant Johnson (Doc. No. 32-5); Salinas’ medical records (Doc. 16 No. 32-3 at 5-74); and letters related to Salinas’ medical board complaint against Wang. (Doc. 17 No. 32-3 at 75-81). Because Salinas elected not to respond to the MSJ, the Court nonetheless 18 considers the following in ruling on the MSJ: the Complaint (Doc. No. 1); the exhibits attached 19 thereto, including, Salinas’ own affidavit (Doc. No. 1 at 7-9); Salinas’ medical records, requests 20 for medical services forms, and health care appeals (Id. at 13-32). 21 II. APPLICABLE LAW 22 A. Summary Judgment Standard 23 The “purpose of summary judgment is to pierce the pleadings and to assess the proof in 24 order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. Ltd. v. 25 Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). Summary judgment is 26 appropriate when there is “no genuine dispute as to any material fact and the movant is entitled 27 to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment should be entered 28 “after adequate time for discovery and upon motion, against a party who fails to make a 1 showing sufficient to establish the existence of an element essential to that party’s case, and on 2 which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 3 322 (1986). The moving party bears the “initial responsibility” of demonstrating the absence of 4 a genuine issue of material fact. Id. at 323. An issue of material fact is genuine only if there is 5 sufficient evidence for a reasonable fact finder to find for the non-moving party, while a fact is 6 material if it “might affect the outcome of the suit under the governing law.” Anderson v. 7 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 8 If the moving party meets its initial burden, the burden then shifts to the opposing party 9 to present specific facts that show there to be a genuine issue of a material fact. See Fed R. Civ. 10 P. 56(e); Matsushita, 475 U.S. at 586. An opposing party “must do more than simply show that 11 there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 587. The 12 party is required to tender evidence of specific facts in the form of affidavits, and/or admissible 13 discovery material, in support of its contention that a factual dispute exists. Fed. R. Civ. P. 14 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party is not required to establish a 15 material issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be 16 shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” 17 T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 18 1987). However, “failure of proof concerning an essential element of the nonmoving party’s 19 case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. 20 The court must apply standards consistent with Rule 56 to determine whether the 21 moving party demonstrated there is no genuine issue of material fact and showed judgment to be 22 appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). 23 “[A] court ruling on a motion for summary judgment may not engage in credibility 24 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 25 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the 26 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving 27 party. Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002). The mere scintilla 28 of evidence is not sufficient to establish a genuine dispute to defeat an otherwise properly 1 supported summary judgment motion. Anderson v. Liberty Lobby, Inc., 477 U.S. at 252. 2 B. Eighth Amendment Medical Deliberate Indifference 3 The Constitution indisputably requires prison officials to provide inmates with reasonably 4 adequate medical care. Estelle v. Gamble, 429 U.S. 97, 103 (1976). To hold an official liable for 5 violating this duty under the Eighth Amendment, the inmate must satisfy two prongs, an objective 6 prong and subjective prong. First, the inmate must suffer from a serious medical need (the 7 objective prong); and, second the official must be deliberately indifferent to the inmate’s serious 8 medical need (the subjective prong). Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), 9 overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); 10 Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012). A medical need is “serious” if the 11 failure to treat “could result in further significant injury or the unnecessary and wanton infliction 12 of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal citations omitted). “This 13 second prong—defendant’s response to the need was deliberately indifferent—is satisfied by 14 showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need 15 and (b) harm caused by the indifference.” Id. (internal citations omitted). This standard requires 16 that the prison official must not only “be aware of facts from which the inference could be drawn 17 that a substantial risk of serious harm exists,” but that person “must also draw the 18 inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “If a [prison official] should have 19 been aware of the risk, but was not, then the [official] has not violated the Eighth Amendment, no 20 matter how severe the risk.” Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 21 2002). This “subjective approach” focuses only “on what a defendant’s mental attitude actually 22 was.” Farmer, 511 U.S. at 839. 23 Deliberate indifference is a higher standard than medical negligence or malpractice, and a 24 difference of opinion between medical professionals—or between a physician and the prisoner— 25 generally does not amount to deliberate indifference. See generally Toguchi v. Chung, 391 F.3d 26 1051 (9th Cir. 2004); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (A mere “difference 27 of medical opinion . . . [is] insufficient, as a matter of law, to establish deliberate 28 indifference.”). To prevail on a claim involving choices between alternative courses of treatment, 1 a prisoner must show that the chosen course of treatment “was medically unacceptable under the 2 circumstances,” and was chosen “in conscious disregard of an excessive risk to [the prisoner’s] 3 health.” Jackson, 90 F.3d at 332. 4 Neither will an “inadvertent failure to provide medical care” sustain a claim. Estelle v. 5 Gamble, 429 U.S. 97, 105 (1976). Misdiagnosis alone is not a basis for a claim, see Wilhelm v. 6 Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012), and a “mere delay” in treatment, “without more, is 7 insufficient to state a claim of deliberate medical indifference,” Shapley v. Nevada Bd. of State 8 Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). Instead a prisoner must show that a delay 9 “would cause significant harm and that defendants should have known this to be the case.” 10 Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002). 11 III. ANALYSIS 12 A. The Complaint 13 Salinas alleges Defendants were deliberately indifferent to his serious medical need, in 14 violation of his Eighth Amendment rights, when Defendants delayed treating Salinas’ left 15 shoulder pain. (Doc. No. 1 at 3). Salinas states he suffered a shoulder injury which caused him 16 pain and prevented him from going about his normal daily functions in February 2015. (Id.). 17 Salinas claims he had to wait 10 months for an x-ray, 13 months for physical therapy, 18 months 18 for an MRI, and 2 ½ years for surgery. (Id.). Salinas attributes liability to Defendant Wang for 19 failing to submit proper documentation, which caused a delay in his treatment and for Wang lying 20 “when dealing with [Salinas] and [his] medical file.” (Id.). Salinas attributes liability to Johnson 21 for failing to properly document his care and failing to “follow through” on his physical therapy 22 and MRI. (Id.). Salinas complains that the delay in treatment caused him pain and caused 23 “debris” to accumulate in his shoulder, which would not have occurred if he underwent surgery in 24 a timely manner. (Id.). Salinas states that post-operation he suffers from paresthesia, slight pain, 25 numbness, stiffness, and impingement syndrome in his rotator cuff. (Id.). As relief, Salinas seeks 26 $400,000 in monetary damages. (Id. at 4). 27 Salinas attaches an “affidavit of default” to his Complaint in which he appears to claim 28 that he is entitled to a default judgment against Defendants. (Doc. No. 1 at 12). A motion 1 seeking a default judgment at the initial pleading stage of a complaint is improper. Federal Rule 2 of Civil Procedure 55(b)(2) allows the court to enter judgment against a party following the clerk 3 of court’s entry of default under 55(a). Here, no clerk’s default was entered. Further, Defendants 4 answered Salinas’ complaint in a timely manner and have abided with all discovery and briefing 5 orders. Thus, Salinas is not entitled to a default judgment to the extent he seeks the same in his 6 Complaint. 7 B. Undisputed Facts 8 1. Plaintiff’s Failure to Oppose the Motion 9 At the outset, despite being afforded two opportunities, Salinas elected not to file an 10 opposition to Defendants’ MSJ. (See docket, Doc. No. 32-1, Rand notice; Doc. No. 33). Thus, 11 Salinas did not submit a separate statement of undisputed facts as required by Local Rule 260(a). 12 Where a party fails to oppose a motion for summary judgment, “Rule 56 is clear that although a 13 court may deem facts admitted in the exercise of its discretion, it need not do so.” Warkentin v. 14 Federated Life Ins. Co., 594 F. App’x 900, 902-903 (2014); see Fed. R. Civ. P. 56 Advisory 15 Committee Notes (2010) (noting that “the court may choose not to consider [a] fact as 16 undisputed, particularly if the court knows of record materials that show grounds for genuine 17 dispute”). Nor may the Court automatically grant summary judgment to a defendant solely 18 because a plaintiff fails to oppose the motion. Cristobal v. Siegel, 26 F.3d 1488, 1494-95 & n.4 19 (9th Cir. 1994); Martinez v. Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003). 20 However, summary judgment cannot be avoided by conclusory allegations unsupported 21 by factual data. Arpin v. Santa Clara Valley Transportation Agency, 261 F.3d 912, 922 (9th Cir. 22 2001) (citing Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)). Where, as here, a party fails to 23 properly support an assertion of fact or fails to challenge the facts asserted by the moving party, 24 the non-moving party may be deemed to have admitted the validity of those facts. See Fed. R. 25 Civ. P. 56(e)(2). Further, Local Rule 230(l) provides that the “[f]ailure of the responding party to 26 file an opposition or to file a statement of no opposition may be deemed a waiver of any 27 opposition to the granting of the motion and may result in the imposition of sanctions.” The 28 1 Court will consider the entire record and deem only those facts true which are properly supported 2 by evidence and otherwise deemed unopposed by Salinas. 3 2. Defendants’ Evidence 4 a. Salinas Was Examined, Given Steroid Injections and Physical Therapy 5 P. Johnson is a licensed nurse practitioner (NP) at Valley State Prison. (Doc. No. 35-2 at 6 1). She treated Salinas for less than a year, roughly between August 6, 2015 to July 12, 2016. 7 (Doc. No. 32-5 at 2). At some point in July 2016, Salinas was transferred to Kern Valley State 8 Prison. (Doc. No. 1 at 8). Following his transfer to Kern Valley State Prison, Dr. Wang first 9 treated Salinas on July 28, 2016 and continued to treat him through December 23, 2016. (Doc. 10 No. 32-3 at 2). At all other times, Salinas was treated by other health care providers. 11 On February 2 and 6, 2015, Salinas submitted health care services request forms 12 complaining of, inter alia, pain in his left shoulder. (Doc. No. 1 at 13-14). On February 10, 13 2015, Salinas went to medical complaining of pain in his left shoulder that he attributed to an 14 injury he sustained while playing handball in Contra Costa County’s custody. (Doc. No. 32-3 at 15 45-47). Salinas was prescribed 24 tablets of Ibuprofen 200 mg. (Id. at 46). Salinas’ medical 16 records do not contain any evidence that Salinas made any other complaints about pain in his left 17 shoulder pain between February 11, 2015 and November 15, 2015. (Id. at 3). 18 On November 16, 2015, Salinas was examined in medical complaining that his left 19 shoulder has “hurt” for one week. (Id. at 40). Salina denied any pain during the examination but 20 claimed he experienced pain with “movement.” (Id.). Salinas’ vitals (blood pressure, pulse, 21 respiration, temperature) were examined. (Id). The notes indicate Salinas “refused pain med.” 22 (See handwritten notes in margins, id. at 40-41). Salinas was referred for “follow-up.” (Id.). On 23 December 4, 2015, Johnson ordered an x-ray of Salinas’ left shoulder, which was completed the 24 same day. (Id. at 60, 73). The results of the x-ray were within normal limits, revealed mild to 25 moderate acromioclavicular arthropathy4 but no bone abnormality. (Doc. No. 1 at 15; Doc. No. 26 27 4 Acromioclavicular arthropathy causes pain and arthritis in the shoulder. See https://health.ucdavis.edu/orthopaedics/specialties/sports-medicine-info/ac-joint-rehab.html, last accessed 28 June 8, 2021. 1 32-3 at 50, 69, 73). On December 9, 2015, Johnson prescribed Salinas a steroid injection for his 2 left shoulder. (Doc. No. 32-3 at 51, 67). On December 22, 2015, Johnson prescribed Salinas pain 3 medication. (Id. at 59). According to the Complaint, Johnson ordered physical therapy for 4 Salinas on December 22, 2015 and January 26, 2016. (Doc. No. 1 at 8;). Defendants submit 5 records which reveal that Johnson ordered physical therapy on January 26, 2016 and February 16, 6 2016. (Doc. No. 32-3 at 57). The records indicate that although ordered, Salinas did not attend 7 physical therapy until March 22, 2016. (Doc. No. 32-3 at 49, 58). Salinas complained of pain 8 and expressed frustrations with physical therapy because he was shackled and unable to do the 9 physical therapy properly. (Id. at 49). 10 b. Salinas Underwent an MRI but MRI Results Delayed 11 Salinas was examined on April 5, 2016 and May 27, 2016 but it was determined that an 12 MRI of Salinas’ left shoulder was not clinically indicated. (Doc. No. 32-3 at 66, 32; Doc. No. 32- 13 5 at 2). On June 17, 2016, Salinas submitted a health care services request form complaining of 14 “extreme pain” in his left shoulder when raising his arm, when putting pressure on it, or when 15 laying on it. (Doc. 32-3 at 48). 16 Defendant Dr. Wang encountered Salinas three separate times. (Id. at 77). First, on July 17 28, 2016, Dr. Wang examined Salinas and suspecting he had a torn rotator cuff submitted a 18 request for an MRI. (Id. at 2, 64). On August 30, 2016, Salinas had an MRI performed. (Id. at 2, 19 71, 74). Dr. Wang next encountered Salinas on September 6, 2016 when he examined Salinas’ 20 knee. On December 23, 2016, Dr. Wang saw Salinas for a follow-up appointment. (Id. at 56, 61- 21 62). During that appointment, Salinas notified Dr. Wang that he had not received the MRI 22 results. (Id. at 2-3). This was the first time Dr. Wang learned that the MRI results were delayed. 23 (Id. at 76). The general procedure at CDCR is for the radiology department to provide MRI 24 results directly to inmates. (Id. at 3). On December 23, 2016, after learning that Salinas had not 25 been given the MRI results, Dr. Wang directed the radiology department to provide Salinas with 26 his MRI results. (Id. at 2). On January 30, 2017, Salinas received the MRI results. (Id. at 3, 54). 27 It is undisputed that there was a five-month delay between the date of the MRI and the date 28 Salinas received his MRI results. Physician Assistant Relevante noted that although there was a 1 delay in reporting the MRI results to Salinas “because of systemic issues,” he opined that “there 2 was no evidence that it caused an adverse outcome of surgery.” (Doc. No. 1 at 21). Dr. Wang 3 states that the “arthroscopy. . . would not have been avoided or results improved with any earlier 4 orthopedic intervention.” (Doc. No. 32-3 at 76). 5 c. Conservative Treatment and Eventual Surgery 6 On February 3, 2017, after a determination that conservative treatment for Salinas’ left 7 shoulder had failed, a request was made for a surgical consultation for Salinas. (Doc. No. 32-3 at 8 3, 29-30). On April 7, 2017, Salinas has a surgical consultation. (Id. at 3). On May 16, 2017, 9 Salinas underwent surgery to repair a torn rotator cuff in his left shoulder. (Id. at 22-23). Salinas 10 stated that his shoulder was “feeling great” after the surgery. (Id. at 15). 11 Both Defendants Dr. Wang and N.P. Johnson attest that: 12 “The medically acceptable practice, as well as the practice that accords with CDCR guidelines, to treat an injury like plaintiff’s left shoulder is to 13 assess the injury, proceed through conservative treatment until it is exhausted, and then proceed to surgical assessment and intervention. 14 Medically acceptable conservative treatment for a left shoulder injury includes physical therapy, home exercise, non-opioid pain medication, 15 education, anti-inflammatory medication, and an assessment of the patient’s ability to carry out activities of daily living. The above-described 16 conservative treatment was prescribed for inmate Salinas before he could receive an MRI and, ultimately, surgery.” 17 (Doc. No. 32-2 at 3; Doc. No. 32-5 at 2). 18 Further, Defendants testify that: 19 “Based on my professional experiences as a licensed physician[nurse 20 practitioner], my familiarity with inmate Salinas’ condition, my clinical visits with him, and a review of his medical records, it is my professional 21 medical opinion that inmate Salinas received proper, timely, and medically acceptable treatment for the left shoulder injury that is the subject of his 22 complaint. My review of inmate Salinas’ medical records shows that he received accurate diagnoses, that he was promptly provided treatment, 23 clinically indicated testing, and that his pain levels were managed through appropriate medications.” 24 (Doc. No. 32-3 at 2; Doc. No. 32-5 at 2). 25 d. Post-Surgery Complaints 26 On June 4, 2017, Salinas submitted a patient-inmate health care appeal no. 17038506 27 (“602 Form”) complaining of excessive delay in medical treatment and seeking a reason for the 28 1 delay in providing him an MRI. (Doc. No. 1 at 27-30). In the second level appeal, Salinas stated 2 that Dr. Wang lied in his first level response when he stated that he interviewed Salinas regarding 3 his 602 appeal. (Id.). Salinas alleges that surgery would not have been necessary if the MRI 4 results has been received in a timely manner. (Id). Salinas’ appeal was denied at the third level 5 of review stating that Salinas received adequate medical care, including being enrolled in the 6 chronic care program, being placed on medication and physical therapy, and undergoing an MRI 7 and surgery. (Id. at 31-32). 8 Post-surgery, Salinas states that he now suffers from numbness in his left shoulder, arm, 9 and hand and the feeling of needles in his arm and hand. (Doc. No. 1 at 9). On March 23, 2018, 10 Salinas submitted a health care services request form claiming his arm was going numb and his 11 hand was uncontrollably shaking. (Doc. No. 1 at 24). On May 20, 2018, Salinas submitted a 12 health care services request form stating he had pain in his left shoulder and numbness in his arm, 13 ticking in his fingers, and a feeling of hot needles in his arm. (Doc. No. 1 at 25). On July 1, 14 2019, Salinas was examined by Dr. Virdi, who determined that Salinas’ pain and numbness was a 15 result of minimal to mild left carpal tunnel syndrome. (Doc. No. 32-2 at 28). 16 III. ANALYSIS 17 Defendants argue that they are entitled to summary judgment because Defendants 18 exercised medical judgment in determining Salinas’ treatment, including the timing of the 19 treatments. (See generally Doc. No. 32). Defendants submit that they used their professional 20 medical judgment when they provided Salinas with a conservative course of treatment for his 21 shoulder before resorting to a surgical intervention. (Id. at 12-14). Defendants further attest that 22 an MRI was not medically indicated until Salinas finished his course of physical therapy. (Id. at 23 13). Defendants admit that although Salinas’ receipt of the MRI results was delayed, this delay 24 did not affect Salinas’ treatment or condition. (Id.). Further, the reasons for the MRI delay was 25 not Defendants. (Id.). Defendants also contend that Salinas’ continued pain and numbness is 26 due to carpal tunnel syndrome and are not symptoms related to his left shoulder injury. (Id.). 27 Consequently, Defendants argue that there is no evidence to support Salinas’ claim that 28 they acted with deliberate indifference towards Salinas. (Id. at 14). Defendants assert that they 1 provided Salinas with appropriate medical care in the form of “medical evaluations, pain 2 medication, education, X-rays, a MRI, physical therapy, steroid injections, and a surgery with 3 follow-up care.” (Id.). 4 The Court first must consider whether Defendants, the moving party, have met their initial 5 burden of “proving the absence of a genuine issue of material fact” and showing prima facie 6 entitlement to summary judgment on the issue of Salinas’ medical deliberate indifference claim. 7 Celotex Corp., 477 U.S at 323. The prima facie elements of medical deliberate indifference are: a 8 “serious medical need by demonstrating that failure to treat a prisoner’s condition could result in 9 further significant injury or the unnecessary and wanton infliction of pain” and that the 10 defendants’ “response to the need was deliberately indifferent.” Wilhelm, 680 F.3d at 1122 11 (internal quotation marks and citation omitted). The second prong is satisfied by showing “(a) a 12 purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) harm 13 caused by the indifference.” Jett, 439 F.3d at 1096 (internal citations omitted). 14 Defendants do not appear to dispute, and the undisputed facts when viewed in the light 15 most favorable to Salinas’ evidence that Salinas had a serious medical need—continued pain in 16 his left shoulder which affected his daily activities and subsequent numbness and pain in his 17 shoulder, arm, and hand. See McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir.1992) (“The 18 existence of an injury that a reasonable doctor or patient would find important and worthy of 19 comment or treatment; the presence of a medical condition that significantly affects an 20 individual’s daily activities; or the existence of chronic and substantial pain are examples of 21 indications that a prisoner has a ‘serious’ need for medical treatment.”), overruled on other 22 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir.1997) (en banc). Therefore, 23 Salinas makes an adequate showing from which a reasonable jury could find a serious medical 24 need. The Court now considers the undisputed facts in analyzing the second prong of the 25 deliberate indifference standard as to each Defendant. 26 A. Defendant Wang 27 The Court finds Defendant Dr. Wang has negated an essential element of Salinas’ claim. 28 The undisputed facts show that Dr. Wang provided Salinas with reasonably adequate medical 1 care for his shoulder pain. Thus, Salinas cannot establish “(a) a purposeful act or failure to 2 respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.” 3 Jett, 439 F.3d at 1096. 4 Dr. Wang had three encounters with Salinas. On July 28, 2016, Dr. Wang examined 5 Salinas and submitted a request for an MRI. (Doc. No. 32-3 at 2, 64). Salinas underwent an MRI 6 about a month later, on August 30, 2016. (Id. at 2, 71, 74). Accordingly, Dr. Wang recognized 7 Salinas’ serious medical need and promptly ordered treatment. The normal procedure at the 8 prison is for the radiology department to provide inmates with their MRI results directly. (Id. at 9 3). Dr. Wang’s second encounter with Salinas concerned unrelated knee pain and is therefore not 10 relevant to the case. Dr. Wang next encountered Salinas for a follow-up appointment on 11 December 23, 2016, where Salinas notified Dr. Wang that he had not received the results of his 12 MRI. (Id. at 2-3, 56, 61-62,). Prior to this time, Dr. Wang had no knowledge that the MRI results 13 were delayed. (Id. at 76). That same day, on December 23, 2016, Dr. Wang directed the 14 radiology department to provide Salinas with his MRI results. (Id. at 2). Salinas received the 15 MRI results about a month later, on January 30, 2017. (Id. at 3, 54). Thus, Defendant Wang has 16 met his initial burden on summary judgment by showing the absence of a genuine issue of 17 material fact as to Salinas’ deliberate indifference claim. See Celotex Corp., 477 U.S. at 325. 18 The burden now shifts to Salinas to present specific facts that show a genuine issue of a 19 material fact. See Fed R. Civ. P. 56(e); Matsushita, 475 U.S. at 586. As an initial matter, Salinas 20 has not identified any medical records which support his claim and has not provided any opinion 21 from a medical expert or any admissible testimony from a medical provider. Salinas provides his 22 own conjecture that the delay in receipt of the MRI and accompanying delay in surgery caused 23 him additional pain. See Anderson, 477 U.S. at 248 (recognizing that a party may not rest on 24 allegations in the complaint when evidence shows no genuine issue in dispute). Salinas is not a 25 medical professional. Therefore, Salinas’ allegations as to the cause of his pain are outside of his 26 personal knowledge and require medical expertise. Thus, these allegations would not be 27 admissible at trial and a reasonable trier of fact would have no evidence upon which to find those 28 alleged facts. See id. at 252; Fed. R. Civ. P. 56(c)(4). 1 Salinas’ allegations that Dr. Wang was deliberately indifferent to his serious medical need 2 is unpersuasive and, indeed, is refuted by the evidence in the record. As discussed above, 3 “[d]eliberate indifference is a high legal standard.” Toguchi, 391 F.3d at 1060. “Under this 4 standard, the prison official must not only ‘be aware of the facts from which the inference could 5 be drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the 6 inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837) (“If a prison official should have been 7 aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter 8 how severe the risk.”). 9 Salinas presents no evidence that Dr. Wang’s choice in Salinas’ course of treatment was 10 medically unsound. The undisputed facts show that Dr. Wang and other prison medical 11 professionals prescribed pain medication, a steroid injection, physical therapy, an x-ray, an MRI, 12 surgery, and provided Salinas with post-operation follow-up appointments. “A difference of 13 opinion between a physician and the prisoner—or between medical professionals—concerning 14 what medical care is appropriate does not amount to deliberate indifference.” Colwell v. 15 Bannister, 763 F.3d 1060, 1068 (9th Cir. 2014) (quoting Snow v. McDaniel, 681 F.3d 978, 987 16 (9th Cir. 2012)). Instead, the plaintiff “‘must show that the course of treatment the doctors chose 17 was medically unacceptable under the circumstances’ and that the defendants ‘chose this course 18 in conscious disregard of an excessive risk to plaintiff’s health.’” Id. (quoting Snow, 681 F.3d at 19 988); see Estelle, 429 U.S. at 107 (“[W]hether an X-ray or additional diagnostic techniques or 20 forms of treatment is indicated is a classic example of a matter for medical judgment. A medical 21 decision . . . does not represent cruel and unusual punishment. At most it is medical 22 malpractice.”). In this case, Salinas presents no evidence that Dr. Wang deviated from accepted 23 medical judgment in prescribing a conservative course of treatment before proceeding to surgery. 24 Distinguishing a difference of opinion from a choice of medically unacceptable treatment can 25 pose a challenge, but it remains uncontroversial that a medical professional must exercise some 26 degree of professional judgment; a plaintiff can prevail by showing that a medical professional 27 exercised no medical judgment at all. Colwell, 763 F.3d. at 1069. Salinas has failed to show that 28 Dr. Wang exercised no medical judgment at all. 1 Nor does Salinas demonstrate that Dr. Wang was responsible for the delay of the MRI 2 results. Dr. Wang requested an MRI on the same day he first examined Salinas. And 3 immediately after Salinas notified Dr. Wang that he had not received the results of the MRI, Dr. 4 Wang ordered the radiology department to provide Salinas with the MRI results. Salinas has 5 neither presented facts that show that Dr. Wang took a purposeful act or failed to respond to 6 Salinas’ shoulder pain, nor presented facts that any further harm resulted from Dr. Wang’s 7 actions. Despite the five-month delay in Salinas’ receipt of the MRI results, there is no evidence 8 that Dr. Wang was responsible for, much less knew about, this delay. Further, Salinas has not 9 shown how the delay in providing the MRI results further harmed him. To the contrary, Salinas 10 and Dr. Wang both presented evidence that the delay in his receipt of the MRI did not cause an 11 adverse outcome of surgery. (Doc. No. 1 at 21; Doc. No. 32-3 at 76). 12 Furthermore, Salinas fails to show that Dr. Wang was responsible for any delay in his 13 surgery, which occurred on May 16, 2017, nearly a year-and-a-half after Dr. Wang stopped 14 treating him. Likewise, Salinas fails to show that Dr. Wang was responsible for the treatment of 15 Salinas’ numbness in his hand, arm, and shoulder, which developed in 2018, post-surgery. 16 Finally, Salinas vague allegations that Wang “lied when dealing with me and my medical file.” 17 (Doc. No. 1 at 3) warrant no further analysis. Salinas provides no information describing what 18 Dr. Wang allegedly lied about or how it is related to his deliberate indifference medical claim. 19 Instead, it appears that Salinas faults Dr. Wang for his response during the grievance process. 20 Due to the lack of explanation and supporting evidence, the Court declines to consider or analyze 21 Salinas’ vague and unsubstantiated claim. Based upon a review of the record and finding no 22 genuine dispute as to any materials fact, the Court finds Defendant Wang is entitled to summary 23 judgment in this matter. 24 B. Defendant Johnson 25 The Court similarly finds Defendant Johnson, N.P., has negated an essential element of 26 Salinas’ claim. The undisputed facts show that Johnson provided reasonably adequate medical 27 care for Salinas shoulder pain. Thus, Salinas cannot establish “(a) a purposeful act or failure to 28 1 respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.” 2 Jett, 439 F.3d at 1096. 3 Johnson treated Salinas from approximately August 6, 2015 to July 12, 2016. (Doc. No. 4 32-5 at 2). During this period, Johnson encountered Salinas on five separate occasions. On 5 December 1, 2015, Johnson ordered an x-ray. On December 9, 2015, Johnson ordered a steroid 6 injection. On December 22, 2015, Johnson ordered pain medication. And on both January 26, 7 2016 and February 16, 2016, Johnson ordered physical therapy. There appears some dispute as to 8 when Salinas started physical therapy. Salinas alleges Johnson ordered physical therapy on 9 December 22, 2015 and January 26, 2016 but physical therapy did not commence until March 22, 10 2016. (Doc. No. 1 at 8; Doc. No. 32-3 at 49, 58). Defendants submit records which show that 11 Johnson ordered physical therapy on January 26, 2016 and February 16, 2016. (Doc. No. 32-3 at 12 57). In any event, these records show that Johnson referred Salinas to physical therapy at least 13 twice and possibly three times during the relevant time. There is no evidence, or even allegation, 14 that Johnson caused any delay in Salinas physical therapy. Thus, Johnson has met her initial 15 burden on summary judgment by showing the absence of a genuine issue of material fact that she 16 was not deliberately indifferent to Salinas serious medical condition. See Celotex Corp., 477 U.S. 17 at 325. 18 Because Johnson has satisfied her initial burden, the burden now shifts to Salinas to 19 present specific facts that show a genuine issue of a material fact. See Fed R. Civ. P. 56(e); 20 Matsushita, 475 U.S. at 586. Here, as with Dr. Wang, Salinas fails to submit any medical 21 evidence that Johnson was deliberately indifferent or that her course of treatment was medically 22 unacceptable. Rather, the evidence shows that Johnson used her medical judgment when she 23 treated Salinas with conservative treatment, including pain medication, an x-ray, a steroid 24 injection, and referrals to physical therapy. After his physical therapy session on March 22, 2016, 25 Salinas complained of pain and stated that he was frustrated with physical therapy because he was 26 shackled and unable to do the physical therapy properly. (Doc. No. 32-3 at 49). However, there 27 is no evidence in the record to show that Johnson knew of Salinas’ difficulty during physical 28 1 therapy on March 22, 2016 or beyond, nor that Johnson was responsible for ensuring that 2 Johnson’s physical therapy was completed. 3 To the extent that Salinas contends that Johnson was responsible for the delayed results of 4 the MRI, his argument is unavailing. The undisputed facts show that Johnson did not treat 5 Salinas after July 12, 2016. Indeed, Salinas’ MRI was ordered on July 28, 2016, after he was 6 transferred to Kern Valley State Prison. There is no evidence in the record to suggest, let alone 7 show, that Johnson knew about any delay in the MRI results, nor that Johnson had any 8 responsibility or control over the delivery of the MRI results at a different correctional institution. 9 For the same reason there is no evidence to show that Johnson had any involvement in scheduling 10 Salinas’ surgery or was responsible for his post-surgery care. And the uncontroverted evidence 11 reveals that any post-surgery numbness in Salinas’ hand, arm, and shoulder which developed in 12 2018, is unrelated to his shoulder pain and shoulder surgery and instead is attributable to carpal 13 tunnel syndrome. Accordingly, the Court will grant summary judgment on Salinas’ claim against 14 Johnson. 15 Construing the evidence in the light most favorable to Salinas, the Court finds no evidence 16 to raise a triable issue as to whether Defendant Johnson N.P. or Defendant Dr. Wang were 17 deliberately indifferent to Salinas’ shoulder pain or otherwise were responsible for any delay in 18 providing Salinas with his MRI results or shoulder surgery. The Court therefore concludes that 19 Defendants are entitled to summary judgment as a matter of law. 20 Accordingly, it is ORDERED: 21 1. The Clerk of Court is directed to correct the spelling of Defendant Johnson’s name on 22 the docket. 23 2. Defendants’ Motion for Summary Judgment (Doc. No. 32) is GRANTED. 24 3. Judgment be entered in favor of the Defendants; all deadlines be terminated; and, the 25 case be closed. 26 4. Plaintiff’s construed motion for default contained in his Complaint (Doc. No. 1 at 12) 27 is DENIED. 28 DONE AND ORDERED 1 5 | Dated: __July 7, 2021 ooo. WN fereh fackt HELENA M. BARCH-KUCHTA 3 UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17