(PC) McRae v. Dikran ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL SCOTT McRAE, 1:16-01066-NONE-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT 13 v. BETZ’S MOTION FOR SUMMARY JUDGMENT BE GRANTED AS TO 14 BAIRAMIAN DIKRAN, et al., BIVENS CLAIMS, AND THAT THE COURT DECLINE TO EXERCISE 15 Defendants. SUPPLEMENTAL JURISDICTION OVER STATE LAW CLAIMS 16 (ECF No. 81.) 17 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 18 19 20 21 I. BACKGROUND 22 Michael Scott McRae (“Plaintiff”) is a former federal prisoner proceeding pro se and in 23 forma pauperis with this civil rights action pursuant to Bivens vs. Six Unknown Agents, 403 24 U.S. 388 (1971). This case now proceeds with Plaintiff’s Second Amended Complaint filed on 25 March 9, 2018, against defendants Dr. Dikran Bairamian,1 Dr. Kevin Cuong Nguyen, and Dr. 26 27 1 In his original Complaint, Plaintiff referred to this defendant as Dr. Bairamian, Dikran, M.D. (ECF No. 1.) The court entered the defendant’s name as Bairamian Dikran. (Court docket.) In his 28 Answer to the complaint defense counsel clarifies that this defendant’s name is Dikran Bairamian. (ECF No. 32.) 1 David Betz (Anesthesiologist), alleging a Bivens claim for inadequate medical care under the 2 Eighth Amendment, and state law claims for medical malpractice and medical battery. (ECF No. 3 14.) 4 On October 27, 2020, defendant Dr. Betz (“Defendant”) filed a motion for summary 5 judgment, or in the alternative for summary adjudication of claims. (ECF No. 81.) On December 6 4, 2020, Plaintiff filed an opposition to the motion.2 (ECF No. 88.) On December 10, 2020, 7 Defendant filed a reply to the opposition. (ECF No. 89.) Pursuant to Local Rule 230(l), this 8 motion is now before the court. 9 For the reasons set forth below the court recommends that the court grant summary 10 judgment in Defendant’s favor on Plaintiff’s Bivens claim, and that the court decline to exercise 11 supplemental jurisdiction over Plaintiff’s state law claims against Defendant. 12 II. SUMMARY JUDGMENT STANDARD 13 Any party may move for summary judgment, and the court shall grant summary judgment 14 if the movant shows that there is no genuine dispute as to any material fact and the movant is 15 entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); 16 Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, 17 whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular 18 parts of materials in the record, including but not limited to depositions, documents, declarations, 19 or discovery; or (2) showing that the materials cited do not establish the presence or absence of 20 a genuine dispute or that the opposing party cannot produce admissible evidence to support the 21 fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The court may consider other materials 22 in the record not cited to by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3); 23 24 2 Defendant failed to serve Plaintiff with the requisite notice of the requirements for 25 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). However, on January 11, 2021, the court 26 provided Plaintiff with a Rand Notice and Warning and allowed him an opportunity to withdraw his previously-filed opposition to Defendant’s pending motion for summary judgment and file an amended 27 opposition to the pending motion for summary judgment, within thirty days. (ECF No. 91.) The thirty- day time period expired and Plaintiff did not withdraw his opposition or file a new opposition. Thus, 28 Plaintiff is proceeding with his opposition filed on December 4, 2020. (ECF No. 88.) 1 Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord 2 Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 3 Defendant does not bear the burden of proof at trial and in moving for summary judgment, 4 he only needs to prove an absence of evidence to support Plaintiff’s case. In re Oracle Corp. Sec. 5 Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 6 S.Ct. 2548 (1986)). If Defendant meets his initial burden, the burden then shifts to Plaintiff “to 7 designate specific facts demonstrating the existence of genuine issues for trial.” In re Oracle 8 Corp., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 323). This requires Plaintiff to “show 9 more than the mere existence of a scintilla of evidence.” Id. (citing Anderson v. Liberty Lobby, 10 Inc., 477 U.S. 242, 252, 106 S.Ct. 2505 (1986)). 11 In judging the evidence at the summary judgment stage, the court may not make 12 credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 13 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all 14 inferences in the light most favorable to the nonmoving party and determine whether a genuine 15 issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. 16 City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted). 17 The court determines only whether there is a genuine issue for trial. Thomas v. Ponder, 611 F.3d 18 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted). 19 In arriving at these findings and recommendations, the court carefully reviewed and 20 considered all arguments, points and authorities, declarations, exhibits, statements of undisputed 21 facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of 22 reference to an argument, document, paper, or objection is not to be construed to the effect that 23 this court did not consider the argument, document, paper, or objection. This court thoroughly 24 reviewed and considered the evidence it deemed admissible, material, and appropriate. 25 /// 26 /// 27 /// 28 /// 1 III. PLAINTIFF’S ALLEGATIONS -- SECOND AMENDED COMPLAINT3 2 The events at issue in the Second Amended Complaint allegedly occurred when Plaintiff 3 was incarcerated at the United States Penitentiary (USP)-Atwater in Atwater, California, in the 4 custody of the Federal Bureau of Prisons (BOP). 5 Plaintiff’s allegations follow: 6 Plaintiff fell on the wet kitchen floor at USP-Atwater and was taken to the infirmary for 7 an examination by Dr. Peikar [not a defendant], Plaintiff’s doctor. For several months afterward 8 Plaintiff submitted medical request forms to obtain additional medical care. Dr. Peikar knew the 9 extent of Plaintiff’s pain and medical condition. Dr. Peikar also knew that the delay in treatment 10 was largely ineffective, but declined to do anything more to attempt to improve Plaintiff’s 11 medical situation. 12 Defendant Dr. Bairamian, a private doctor contracted with the BOP, arrived at USP- 13 Atwater to assess Plaintiff’s lower back for surgery. After an examination and x-rays, Dr. 14 Bairamian informed Plaintiff that surgery was necessary. Plaintiff asked both doctors Peikar and 15 Bairamian if there was an alternative to surgery and was told that if surgery was not performed 16 Plaintiff would become paralyzed or die. Plaintiff elected to have the lower back surgery. 17 On July 22, 2014, Plaintiff was escorted to the Medical Center in Modesto, California, 18 for treatment and surgery on his lower back by defendants Dr. Bairamian, Dr. Nguyen, and Dr. 19 Betz. Without Plaintiff’s knowledge or consent, Plaintiff was given the wrong surgery to his 20 upper back which left Plaintiff unable to walk correctly with long-term injury to his back. 21 Plaintiff requests monetary relief and costs of suit. 22 /// 23 /// 24 /// 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 /// 2 IV. DEFENDANT BETZ’S UNDISPUTED FACTS 3 Defendant Betz filed a motion for summary judgment or in the alternative, for an order 4 adjudicating nine issues. (ECF No. 81.) In support of his motion, Defendant Betz has filed the 5 following Statement of Undisputed Facts, with references to supporting evidence for each of the 6 nine issues listed below. 7 A. Bivens Claim for Deliberate Indifference Under the Eighth Amendment 8 Issue 1: Plaintiff’s Bivens claim for inadequate medical care under the Eighth 9 Amendment fails as a matter of law because Dr. Betz is not a federal officer or employee. 10 11 UNDISPUTED FACT SUPPORTING EVIDENCE 1. Plaintiff Michael McRae alleges a Bivens 1. ECF No. 14, pg. 4-5 of 28; ECF No. 26, pg. 12 claim for deliberate indifference under the 2-3. Eighth Amendment based on allegations that 13 defendants operated on his back without his consent. 14 2. Plaintiff's operative Second Amended 2. ECF No. 14, pg. 4 of 28. Complaint alleges that defendants Dr. 15 Bairamian, Dr. Nguyen, and Dr. Betz were “private physicians, surgeons, and 16 anesthesiologists” who worked at Sutter Health Memorial Medical Center and 17 performed his back surgery on July 22, 2014, following a fall on the kitchen floor. 18 3. Dr. Betz is a private physician, not a federal 3. Dr. Betz Decl. ¶ 3; ECF No. 14, pg. 4 of 28. officer or employed by the federal 19 government. 4. Plaintiff’s Bivens claim is based on the 4. ECF No. 14, pg. 4-5 of 28. 20 same allegations as his medical negligence and medical battery claims. 21 22 Issue 2: Plaintiff’s claim for inadequate medical care under the Eighth Amendment fails 23 as a matter of law because Dr. Betz is not a state actor. 24 25 UNDISPUTED FACT SUPPORTING EVIDENCE 26 5. Defendants incorporate by reference 5. Evidence in support of Undisputed Facts undisputed material facts and supporting No. 38-40, below. 27 evidence in Fact Nos. 38-40, below. 28 6. Dr. Betz works for Gould Medical Group, 6. Dr. Betz Decl. ¶ 3; ECF No. 14, pg. 4 of 28. 1 which is a private company. He is not a federal employee, agent, or contractor. 2 Issue 3: Plaintiff has no claim for inadequate medical care under the Eighth Amendment 3 as a matter of law because there is no evidence of a ‘serious’ medical need that Dr. Betz failed 4 to treat and that resulted in the unnecessary and wanton infliction of pain. 5 6 UNDISPUTED FACT SUPPORTING EVIDENCE 7 7. Defendants incorporate by reference 7. Evidence in support of Undisputed Facts undisputed material facts and supporting No. 15-29, below. 8 evidence in Fact Nos. 15-29, below. 8. Plaintiff suffered no anesthetic 8. Dr. Betz Decl. ¶ 7; Dr. Bickler Decl. ¶ 21, 9 complications following his July 24, 2014 23. surgery. 10 9. The administration of anesthesia on July 23, 9. Dr. Bickler Decl. ¶¶ 23-25; ECF No. 14, pg. 2014 did not cause Plaintiff’s alleged injuries. 4-5 of 28. 11 12 Issue 4: Plaintiff has no claim for inadequate medical care under the Eighth Amendment 13 as a matter of law because Dr. Betz did not act with deliberate indifference. 14 15 UNDISPUTED FACT SUPPORTING EVIDENCE 16 10. Defendants incorporate by reference 10. Evidence in support of Undisputed Facts undisputed material facts and supporting No. 25-29, 31-33, below. 17 evidence in Fact Nos. 25-29, 31-33, below. 11. Dr. Betz did not purposefully fail to 11. Dr. Betz Decl. ¶ 4-8 18 respond to Plaintiff's serious medical need. 19 12. Dr. Betz was not Plaintiff’s surgeon, and 12. Dr. Bickler Decl. ¶¶ 15-16, 20; Dr. Betz had no role in determining the appropriate Decl. ¶ 8; Exh. C, pgs. 8, 11-14, , 367-369, 20 surgical treatment or obtaining consent for his 389-396; 416 surgery. 21 13. Plaintiff suffered no injury as a result of 13. Dr. Bickler Decl. ¶ 21, 24; ECF. No. 14, the anesthesia administration. pgs. 4-5 of 28. 22 14. Dr. Betz believed that plaintiff understood 14. Dr. Betz Decl. ¶¶ 5, 6 and consented to the anesthetic plan, and he 23 would not have provided anesthesia services to plaintiff had he believed plaintiff did not 24 consent or could not physically handle it. 25 26 27 28 1 2 Issue 5: Plaintiff has no claim for medical negligence as Dr. Betz complied with the 3 appropriate standard of care. 4 5 UNDISPUTED FACT SUPPORTING EVIDENCE 15. On 9/12/13, plaintiff had an initial 15. Dr. Bickler Decl. ¶ 8; Exh. B, pgs. 34-35. 6 neurosurgical consultation with defendant Dikran Bairamian, M.D., at the request of Dr. 7 Franco of the Bureau of Prisons Health Services. The patient was noted to be a 51- 8 year-old right-handed gentleman with lower thoracic pain starting in January 2013. There 9 was no injury. His pain was on the lower thoracic left side and it radiated around his 10 chest wall toward the xiphoid. He also had weakness in his legs. He did not have 11 radicular pain. There was no bowel or bladder dysfunction. Examination of the low back was 12 nontender. He did have left lumbar paraspinal tenderness in the lower thoracic area. Hip 13 rotation was negative. Straight leg raise was unlimited. He had decreased sensation to light 14 touch and pin prick in the lower thoracic area like a band about 2 inches wide and extending 15 laterally toward the chest wall and ending near the xiphoid. Lumbar MRI showed 16 degenerative changes but no cauda equina or root compression. Dr. Bairamian’s impression 17 was lower thoracic left-sided pain with thoracic radiculopathy and lower extremity 18 weakness. The patient’s pathology needed further evaluation with a thoracic spine MRI 19 16. On 4/16/14, plaintiff underwent an MRI of 16. Dr. Bickler Decl. ¶ 9; Exh. B, pgs. 41-42. the thoracic spine. While there were no acute 20 findings seen, at T2-3 there was considerable hypertrophy of the ligamentum flava right 21 greater than left. This was causing posterior lateral compression of the thoracic cord 22 particularly on the right and circumferential stenosis. There was associated focal 23 myelomalacia within the thoracic cord. 24 25 26 27 28 17. On 4/24/14, plaintiff returned to see Dr. 17. Dr. Bickler ¶ 10; Exh. B, pgs. 32-33. 1 Bairamian for follow-up. He had lower thoracic pain on the left side that radiated 2 around the chest wall toward the xiphoid. He had weakness in his legs and occasional 3 spasms. He did not have radicular pain. The patient reported that when he had to have a 4 bowel movement or to urinate, he had to push harder. Dr. Bairamian noted how plaintiff's 5 thoracic MRI showed cord compression at T2- 3 which was more on the right side and 6 posterior secondary to ligamentum flavum hypertrophy. Dr. Bairamian did not see cord 7 compression elsewhere. His impression was thoracic myelopathy secondary to T2-3 cord 8 compression with cord signal most probably secondary to edema. Dr. Bairamian told the 9 patient surgery was indicated to relieve the pressure off of the cord. He told him the 10 surgery would not guarantee reversal of symptoms however hopefully surgery would 11 prevent progression of symptoms. Risks and benefits were discussed in detail including but 12 not limited to infection, bleeding, damage to the cord, leakage of cerebrospinal fluid in 13 addition to anesthesia related complications including but not limited to cardiopulmonary 14 complications, DVT, PE, malignant hyperthermia and even death. Dr. Bairamian 15 also told him on rare occasions the signal seen in the cord that is presumed to be edema could 16 be secondary to a tumor that has not declared itself. The patient wanted to think about it 17 before making a final decision. 18. Plaintiff's medical records from Dr. 18. Dr. Bickler Decl. ¶ 11; Exh. B, pgs. 25- 18 Bairamian’s office show numerous 27. communications between Dr. Bairamian’s 19 office and USP Atwater between 7/8/14 and 7/22/14 during which time Crystal from USP 20 Atwater informed Dr. Bairamian that the patient wanted to proceed with surgery but 21 there was no transportation available to bring him from the prison to the hospital. When the 22 prison suggested they consider surgery in September, Dr. Bairamian informed them that 23 such a delay was not acceptable, that the patient needed to have surgery right away, and 24 that he did not want the patient's condition to deteriorate. It was suggested that the prison 25 bring plaintiff to Memorial Medical Center’s emergency department. On 7/22/14, Crystal 26 from USP Atwater informed Dr. Bairamian’s office that the prison would be bringing 27 plaintiff to the Memorial Medical Center emergency department that day. 28 19. On 7/22/14, plaintiff was evaluated in the 19. Dr. Bickler Decl. ¶ 12; Exh. C, pgs. 3-7. 1 emergency department of Memorial Medical Center by Dr. Kevin Nguyen who noted the 2 patient was presenting from jail for consultation/surgery with Dr. Bairamian. 3 Patient was described to have had a history of back injury, requiring surgery. Dr. Nguyen 4 noted that the patient had undergone an MRI that showed compression fracture of T2-3. He 5 was to undergo surgery either that day or the next with Dr. Bairamian. 6 20. That same day, 7/22/14, Dr. Bairamian 20. Dr. Bickler ¶ 13; Exh. C, pg. 9; Dr. reevaluated the patient at the request of Dr. Bairamian Decl. ¶ 4. 7 Nguyen. Dr. Bairamian noted how the patient was last seen in his office on 4/24/14 at which 8 time imaging studies revealed a T2 – T3 cord compression with right leg weakness. Dr. 9 Bairamian had recommended surgery however the patient wanted to think about it 10 and had eventually made up his mind. The patient denied pain however he did complain 11 of stiffness and tightness in his legs and weakness mainly in the right leg in addition to 12 chest wall tightness in the lower aspect of the chest wall. Symptoms had been going on for 13 about a year or so. He also had bowel and bladder urgency. Dr. Bairamian explained the 14 planned procedure to the patient and the indications for surgery. The patient consented 15 to the procedure, which was a decompressive laminectomy at T2-T3. 16 21. On 7/22/14, plaintiff signed a document 21. Dr. Bickler Decl. ¶ 14; Exh. C, pgs. 8, 367- called Authorization for and Consent to 369. 17 Surgery/Anesthesia and Special Diagnostic or Therapeutic Procedures at 1917 (7:17 pm). 18 This consent form signed by plaintiff described the planned surgical procedure as 19 “thoracic laminectomy”. Paragraph 7 of the form states, “Your signature to this form 20 indicates that: You have read, understand and had the opportunity to ask your physician 21 questions about this form and the procedure(s) listed on this form; measures that will be taken 22 to prevent adverse events in procedure include but will not be limited to patient 23 identification, procedure infection prevention and procedure site marking; you desire no 24 further information and authorize and consent to the performance of the procedure(s).” Mr. 25 McRae’s signing of the document was witnessed by Seanna Magana, RN. 26 27 28 22. The following day, on 7/23/14 at 11:02 22. Dr. Bickler Decl. ¶ 15; Exh. C, pgs. 394- 1 am, Dr. David Betz saw plaintiff for his 395. preprocedure evaluation. He started by taking 2 a history from the patient, noting that he had had nothing by mouth for more than six hours 3 (solids and liquids), he had no history of previous anesthetics, he did not have a history 4 of anesthetic complications, and he did not have a family history of anesthetic 5 complications. He had a past medical history significant for GERD and cardiomegaly. 6 When Dr. Betz examined the patient's airway, he noted that plaintiff was Mallampati Class 7 II (soft palate, major part of uvula, fauces visible) and had a thyromental distance (a 8 measurement from the prominence of the thyroid cartilage to the menton with the neck 9 in full extension) greater than 6 cm. The patient had full range of motion in the neck 10 and his interocclusal opening was normal. These airway findings were all indications 11 that intubation of the patient should not be difficult. He concluded that the patient was 12 ASA II (American Society of Anesthesiologists Class II, which means the 13 patient has mild systemic disease without substantive functional limitations). His plan 14 was to administer general anesthesia to the patient. He then proceeded to have a consent 15 discussion with the patient describing his anesthetic plans, risks, benefits and 16 alternatives. Dr. Betz documented the patient's agreement with the anesthetic plan. 17 23. Plaintiff was then brought to the operating 23. Dr. Bickler Decl. ¶ 16; Exh. C, pgs. 12- room at 11:07 am, and surgery proceeded as 14, 389-396, 416. 18 planned for plaintiff's preoperative diagnosis of thoracic stenosis and cord compression at 19 T2-T3 with thoracic myelopathy. Dr. Betz commenced general endotracheal anesthesia 20 at 11:11 am, and a standard endotracheal tube was placed orally at 11:23 am. Dr. Bairamian 21 proceeded to perform a lower 3/4 of T2, upper one-third of T3 laminectomy and 22 decompression of the cord surgery. The surgery concluded at 2:51 pm. And anesthesia 23 completed at 3:22 pm. There were no surgical or anesthetic complications. 24 24. Plaintiff was discharged back to the 24. Dr. Bickler Decl. ¶ 17; Exh. C, pgs. 1-2; correctional facility on 7/28/14 with Exh. B, pg. 10. 25 instructions to receive outpatient physical therapy for his lower extremity weakness two 26 to three times a week and to have a front wheel walker. He was also told to return for 27 neurosurgical follow up in three weeks. 28 25. All of the anesthesia care and treatment 25. Dr. Bickler Decl.¶ 18-23, 25. 1 rendered by David Betz, M.D. met the standard of care in this case. 2 26. Dr. Betz was the plaintiff’s 26. Dr. Bickler Decl. ¶ 20. anesthesiologist during the surgery at issue in 3 this case. He was not the plaintiff’s surgeon. As such, he played no role and had no duty of 4 care with respect to the diagnosis of plaintiff’s neurosurgical condition, the determination of 5 the appropriate surgical treatment for that condition or obtaining consent for the surgery. 6 27. To a reasonable degree of medical 27. Dr. Bickler Decl. ¶ 22; Exh. C, pgs. 367- probability that Dr. Betz performed a 369. 7 thorough and appropriate preoperative assessment of the patient for any potential 8 anesthetic risks. The choice of general anesthesia was also appropriate. More 9 importantly, the medical record documents Dr. Betz’s preoperative discussion with the 10 patient regarding Dr. Betz’s anesthetic plan along with the anesthetic risks, benefits and 11 alternatives. Dr. Betz’s preoperative assessment note also memorialized the 12 patient's understanding and agreement to proceed, indicating the patient provided 13 proper informed consent. 28. The anesthesia record from the procedure 28. Dr. Bickler Decl. ¶ 23. 14 itself establishes that Dr. Betz administered the appropriate anesthesia and kept the patient 15 under continuous monitoring for his safety. As mentioned, the plaintiff suffered 16 absolutely no anesthetic complications. 29. Dr. Betz as the patient’s anesthesiologist 29. Dr. Bickler Decl. ¶ 25. 17 played no role in the preoperative diagnosis or the selection of the appropriate surgery to treat 18 the plaintiff's neurosurgical condition. The patient provided informed consent for the 19 planned thoracic laminectomy and decompression surgery with general 20 anesthesia, and it was appropriate for Dr. Betz as the patient’s anesthesiologist to rely on the 21 surgical consent obtained by the surgeon. In addition, Dr. Betz properly conducted his own 22 informed consent discussion with the patient with respect to the anesthesia to be 23 administered. The patient then tolerated the surgery well without any anesthetic 24 complications. All the anesthesia care and treatment rendered by David Betz, M.D., met 25 the standard of care in this case and did not cause or contribute to any injury to plaintiff. 26 27 28 1 Issue 6: Plaintiff has no claim for medical negligence as Dr. Betz did not, with a 2 reasonable degree of medical certainty, cause or contribute to any injury of plaintiff. 3 4 UNDISPUTED FACT SUPPORTING EVIDENCE 30. Defendants incorporate by reference 30. Evidence in support of Undisputed Facts 5 undisputed material facts and supporting No. 14-23, above. evidence in Fact Nos. 14-23, above. 6 31. Nothing Dr. Betz did or failed to do caused 31. Dr. Bickler Decl.¶¶ 19, 21, 23-25. or contributed to any injury to Plaintiff. 7 32. Plaintiff has not claimed, nor has he 32. Dr. Bickler Decl. ¶ 21, ¶ 23. sustained, any injury from the administration 8 of anesthesia. In the case of the 7/23/14 surgery, the medical records establish that 9 plaintiff tolerated the surgery well and sustained absolutely no anesthetic 10 complications. 33. Plaintiff was given general endotracheal 33. Dr. Bickler Decl. ¶ 24. 11 anesthesia through the mouth. Difficulty walking or delayed mobility from walking, 12 working, standing are not conditions caused by general endotracheal anesthesia. In 13 plaintiff’s case, there were no anesthetic complication during or immediately after 14 surgery. Thus, to a reasonable degree of medical probability, nothing Dr. Betz did or 15 failed to do in administering anesthesia caused or contributed to any injury of the 16 patient. 17 18 Issue 7: Plaintiff has no claim for medical negligence or medical battery as plaintiff did 19 not suffer any injury as a result of Dr. Betz’s administration of anesthesia. 20 21 UNDISPUTED FACT SUPPORTING EVIDENCE 34. Plaintiff suffered no injury as a result of 34. Dr. Bickler Decl. ¶ 21; 24; Dr. Betz ¶ 7; 22 the administration of anesthesia on July 24, Exh. C, 11-14, 389-396. 2014. 23 24 25 26 27 28 1 Issue 8: Plaintiff has no claim for medical battery as plaintiff consented to the anesthesia 2 plan that he received. 3 4 UNDISPUTED FACT SUPPORTING EVIDENCE 35. Defendants incorporate by reference 35. Evidence in support of Undisputed Facts 5 undisputed material facts and supporting No. 17, 21-23, above. evidence in Fact Nos. 17, 21-23, above. 6 36. Dr. Betz had a consent discussion with the 36. Dr. Bickler Decl. ¶ 15; Dr. Betz Decl. ¶ 4- with the patient describing his anesthetic 6; Exh. C, pgs. 394-395. 7 plans, risks, benefits and alternatives. Dr. Betz documented the patient’s agreement with the 8 anesthetic plan, and administered the anesthesia plan discussed and agreed to. 9 37. Dr. Betz did not purposefully provide 37. Dr. Betz Decl. ¶ 5. anesthesia to the patient without his consent 10 11 Issue 9: Plaintiff has no claim for medical battery based on the allegation that the wrong 12 surgery was performed as Dr. Betz was Plaintiff’s anesthesiologist, not the surgeon who 13 performed the surgery. 14 15 UNDISPUTED FACT SUPPORTING EVIDENCE 16 38. Dr. Betz was the anesthesiologist during 38. Dr. Bickler Decl. ¶¶ 15-16; 20; Dr. Betz Plaintiff's July 24, 2014 surgery. Decl. ¶ 8; Exh. C, pgs. 8, 11-14, 389-396; 416. 17 39. Dr. Bairamian was the surgeon who 39. Exh. C, pgs. 8, 12-14, 389-396, 367-369. performed Plaintiff's July 24, 2014 surgery. 18 40. Dr. Betz played no role and had no duty of 40. Dr. Bickler Decl. ¶¶ 16, 20; Dr. Betz Decl. care with respect to the diagnosis of plaintiff's ¶ 8. 19 neurosurgical condition or determining the appropriate treatment for that condition. 20 21 V. DEFENDANT BETZ’S ARGUMENTS 22 Defendant Dr. Betz moves for an order granting summary judgment pursuant to Rule 56 23 of the Federal Rules of Civil Procedure on the grounds that Plaintiff is unable to raise a triable 24 issue of fact to support his claim that Dr. Betz violated his rights under the Eighth Amendment 25 to the Constitution of the United States of America, committed Medical Battery, or violated the 26 standard of care with respect to the medical care and treatment provided. In the alternative, Dr. 27 Betz asks for an order adjudicating nine issues. 28 1 Defendant Betz’s evidence consists of Plaintiff’s allegations in the Second Amended 2 Complaint, ECF No. 14; Decl. of Dr. Philip E. Bickler (expert witness), ECF No. 81 at 264; Decl. 3 of defendant Dr. David Betz, ECF No. 81 at 33; Decl. of Jessica P. Lamiero, Esq. (counsel for 4 defendant Dr. Betz), ECF No. 81 at 35; Decl. of defendant Dr. Dikran Bairamian, ECF No. 81-1 5 at 141 (Exhibit E); Curriculum Vitae of Dr. Bickler, ECF No. 81-1 at 38, 139 (Exhibits A, D), 6 Plaintiff’s medical records from Dr. Bairamian, ECF No. 81-1 at 6 (Exhibit B); and Plaintiff’s 7 medical records from Memorial Medical Center, ECF No. 81-1 at 110 (Exhibit C). 8 Defendant Betz moves the court for summary judgment in his favor and costs of suit 9 incurred herein. Defendant argues that there is no genuine issue of material fact as to any of 10 Plaintiff’s claims set forth in the Second Amended Complaint and therefore Defendant Betz is 11 entitled to summary judgment as a matter of law. Specifically, Dr. Betz argues that he is not a 12 federal employee nor a state actor, he did not act with deliberate indifference to Plaintiff’s serious 13 medical needs, he did not negligently cause or contribute to Plaintiff’s alleged injury, there is no 14 alleged injury attributable to Dr. Betz’s provision of anesthesia, and Plaintiff consented to the 15 anesthesia he received. 16 Alternatively, if for any reason summary judgment cannot be had, Dr. Betz moves the 17 Court for an order adjudicating the following nine issues: 18 Issue 1: Plaintiff’s Bivens claim for inadequate medical care under the Eighth 19 Amendment fails as a matter of law because Dr. Betz is not a federal officer or employee. 20 Issue 2: Plaintiff’s claim for inadequate medical care under the Eighth Amendment fails 21 as a matter of law because Dr. Betz is not a state actor. 22 Issue 3: Plaintiff has no claim for inadequate medical care under the Eighth Amendment 23 as a matter of law because there is no evidence of a ‘serious’ medical need that Dr. Betz failed 24 to treat and that resulted in the unnecessary and wanton infliction of pain. 25 26 4 All page numbers cited herein are those assigned by the court’s CM/ECF system and not based 27 on the parties’ pagination of their briefing materials. 28 1 Issue 4: Plaintiff has no claim for inadequate medical care under the Eighth Amendment 2 as a matter of law because Dr. Betz did not act with deliberate indifference. 3 Issue 5: Plaintiff has no claim for medical negligence, as Dr. Betz complied with the 4 appropriate standard of care. 5 Issue 6: Plaintiff has no claim for medical negligence, as Dr. Betz did not, with a 6 reasonable degree of medical certainty, cause or contribute to any injury of plaintiff. 7 Issue 7: Plaintiff has no claim for medical negligence or medical battery, as plaintiff did 8 not suffer any injury as a result of Dr. Betz’s administration of anesthesia. 9 Issue 8: Plaintiff has no claim for medical battery, as plaintiff consented to the anesthesia 10 plan that he received. 11 Issue 9: Plaintiff has no claim for medical battery based on the allegation that the wrong 12 surgery was performed, as Dr. Betz was Plaintiff's anesthesiologist, not the surgeon who 13 performed the surgery. 14 A. Plaintiff’s Bivens Claims Fail 15 Defendant first argues that Dr. Betz is not a federal officer or federal employee rendering 16 Plaintiff unable to state a Bivens claim against Defendant as a matter of law. Defendant declares 17 that he works for a private company, Gould Medical Group, which staffs physicians at the private 18 hospital where Plaintiff had his surgery: 19 “In July 2014, I was not, and have never been, an employee of United States Penitentiary (“USP”) - Atwater, or any state or federal prison. I work for Gould 20 Medical Group, a private company that staffs some of the physicians at Memorial Medical Center, the private hospital where Plaintiff had his surgery. I am not a 21 Memorial Medical Center employee. I am not a federal employee or contractor.” 22 (Decl. of Dr. Betz, ECF No. 81 at 33 ¶ 3.) 23 Defendant also argues that even if Bivens applied, Plaintiff cannot establish an Eighth 24 Amendment violation, for the following reasons: Plaintiff has no claim for inadequate medical 25 care under the Eighth Amendment against Defendant; Plaintiff is not a governmental actor and 26 was not acting under the color of state law; Defendant was Plaintiff’s anesthesiologist, not 27 Plaintiff’s surgeon; and Plaintiff suffered no injury from the anesthesiology. Thus he argues that 28 there is no evidence that he ignored a serious medical need, acted with deliberate indifference 1 against Plaintiff, or caused any injury to Plaintiff. Undisputed evidence shows that while Plaintiff 2 may have had a serious injury he was provided medical care for that injury and he never had a 3 serious medical need for further or additional treatment. He was diagnosed with considerable 4 hypertrophy of the ligamentum flava right greater than left at T2-3, and the procedure Dr. 5 Bairamian performed was a lower 3/4 of T2, upper one-third of T3 laminectomy and 6 decompression of the cord surgery, Exh. C, pg. 12. 7 Pursuant to Dr. Peikar’s medical report dated April 16, 2014: 8 At T2-3 the disk space is intact. However, there is considerable hypertrophy of the ligamentum flava, particularly on the right. There is some contrast 9 enhancement along the periphery on the right. This is causing moderate posterolateral cord compression, right greater than left, and circumferential 10 stenosis. There is focal increased nonenhancing signal of the cord at this level, compatible with myelomalacia. 11 (ECF No. 81-1 at 70, Exh. B.) 12 Dr. Bairamian’s medical report from Memorial Medical Center, dated July 23, 2014, 13 states: 14 PREOPERATIVE DIAGNOSIS: Thoracic stenosis and cord compression at T2 15 T3 with thoracic myelopathy. POSTOPERATIVE DIAGNOSIS: Thoracic stenosis and cord compression at T2 T3 with thoracic myelopathy. 16 PROCEDURE: Lower 3/4 of T2, upper one third of T3 laminectomy and decompression of the cord. SURGEON: Dikran Bairamian, MD. . . 17 ANESTHESIOLOGIST: David Betz, MD. 18 (ECF No. 81-1 at 87, Exh. C.) 19 As Dr. Betz declares, his only involvement in Plaintiff’s care was the administration of 20 anesthesia during his surgery: 21 “My only participation in Mr. McRae’s July 2014 surgery was providing the anesthesia services. As an anesthesiologist, I have no control over the type or 22 method of surgery performed. I had no control over or participation in what surgery was performed on Mr. McRae, or how it was performed. I also had no 23 control or participation in his post-surgical care, which, when there is no anesthetic complication, is standard for an anesthesiologist.” 24 25 (Dr. Betz’s Decl., ECF No. 81 at 34 ¶ 8.) Dr. Betz also declares that he did not 26 purposefully provide anesthesia to Plaintiff without his consent: 27 “I did not purposefully provide anesthesia to the patient without his consent. On July 23, 2014, prior to the procedure, I examined Plaintiff for purposes of 28 determining his ability to be intubated. I also discussed the plan to administer general anesthesia during his surgery, and discussed with him the anesthetic plans, 1 risks, benefits, and alternatives. I documented the patient’s agreement with the anesthetic plan because I believed he understood and consented to it. I would not 2 have provided anesthesia to him during the surgery if I did not believe that he could physically handle it, or if I did not believe that he had consented to it.” 3 (Dr. Betz’s Decl., ECF No. 81 at 33 § 5.) 4 Dr. Betz provided the anesthesia services for the surgery without any complications, as 5 reported in Dr. Betz’s post-procedure assessment notes dated July 23, 2014: 6 Assessment: Mental status: awake, alert and oriented. Respiratory function: 7 airway patent, normal respiratory rate, adequate oxygenation Cardiovascular function: BP and heart rate stable Pain: adequately controlled. Nausea: None. 8 Emesis: No. Post-Operative hydration: adequate anesthetic complications: No anesthetic complications Post Procedure hand-off: P-C-: Summary reviewed. 9 Report given to recovery nurse and patient hand-off complete. Patient stable upon transfer of care. 10 (ECF No. 81-1 at 100, Exh. C.) 11 Dr. Bickler, expert witness, concluded, “There were no surgical or anesthetic 12 complications.” (Dr. Bickler Decl., ECF No. 81 at 30 ¶ 16:23.) 13 Based on Defendant Dr. Betz’s arguments and evidence the court finds that Defendant 14 has met his burden of demonstrating that Plaintiff has no evidence that Plaintiff is able to state a 15 Bivens claim against Defendant as a matter of law, or that Defendant Betz acted with deliberate 16 indifference in violation of the Eighth Amendment when providing Plaintiff with medical care. 17 Therefore, the burden now shifts to Plaintiff to produce evidence of a genuine material fact in 18 dispute that would affect the final determination in this case. 19 B. Discussion 20 Bivens actions are the judicially crafted counterparts to § 1983. Bivens actions enable 21 victims to sue individual federal officers for damages resulting from violations of Constitutional 22 rights. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 23 (1971). To prevail on a Bivens claim, a plaintiff must show (1) they were deprived of a right 24 secured by the Constitution, and (2) the defendant acted under color of federal law. Morgan v. 25 United States, 323 F.3d 776, 780 (9th Cir. 2003). A person acts under color of federal law by 26 “exercising power possessed by virtue of [federal] law and made possible only because the 27 wrongdoer is clothed with the authority of [federal] law.” Polk Cty. v. Dodgson, 454 U.S. 312, 28 1 317-18 (1981); see also Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996) (noting how Bivens is 2 basically a § 1983 claim against federal officers); Boney v. Valline, 597 F. Supp. 2d 1167, 1172 3 (D. Nev. 2009) (plaintiff must show constitutional violation was “committed by a federal actor”). 4 Plaintiff alleges in the Second Amended Complaint that at the time of the events at issue 5 in this case he was a federal inmate incarcerated at USP-Atwater in Atwater, California, in the 6 custody of the federal Bureau of Prisons. (ECF No. 14 at 3-4.) Plaintiff alleges that defendants, 7 Drs. Bairamian, Nguyen and. David Betz, are private physicians, surgeons and anesthesiologist 8 who were working at Sutter Health Memorial Medical Center, Modesto, California, who 9 performed back surgery on Plaintiff on July 22, 2014. (Id. at 4.) Plaintiff also alleges that Dr. 10 Betz was acting under color of law as he was contracted with the BOP to provide medical care. 11 (Id. at 7 ¶ II.) These allegations are not admissible in evidence because they are not based on 12 Plaintiff’s personal knowledge or supported by admissible evidence. Plaintiff offers no 13 admissible evidence in support of his allegation that defendant Dr. Betz was contracted with the 14 BOP to provide medical care or acting under color of law, whereas defendant Dr. Betz has 15 declared under penalty of perjury based on his personal knowledge, “In July 2014, I was not, and 16 have never been, an employee of United States Penitentiary (“USP”) - Atwater, or any state or 17 federal prison. I work for Gould Medical Group, a private company that staffs some of the 18 physicians at Memorial Medical Center, the private hospital where Plaintiff had his surgery. I am 19 not a Memorial Medical Center employee. I am not a federal employee or contractor.” (Decl. of 20 Dr. Betz, ECF No. 81 at 33 ¶ 3.) 21 Plaintiff’s allegations and evidence of events occurring in 2020, after he filed this case 22 on July 25, 2016, shall not be considered because Plaintiff did not have leave of court to file a 23 supplemental complaint. Under Rule 15(d), “the court may, on just terms, permit a party to serve 24 a supplemental pleading setting out any transaction, occurrence, or event that happened after the 25 date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d). A party may only file a 26 supplemental complaint with leave of court, and Plaintiff did not request and was not granted 27 leave of court to allege later-occurring events. Id. 28 1 Because Plaintiff has not presented any admissible evidence that Defendant Betz acted 2 under color of federal law, Plaintiff cannot prevail on a Bivens claim against Defendant Betz. 3 Moreover, as argued by Defendant, even if Bivens applied to Plaintiff’s claim against 4 Defendant Betz, Plaintiff cannot establish an Eighth Amendment violation. “[T]o maintain an 5 Eighth Amendment claim based on prison medical treatment, an inmate must show ‘deliberate 6 indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) 7 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for deliberate 8 indifference requires the plaintiff to show (1) “‘a serious medical need’ by demonstrating that 9 ‘failure to treat a prisoner’s condition could result in further significant injury or the unnecessary 10 and wanton infliction of pain,’” and (2) “the defendant’s response to the need was deliberately 11 indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 12 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 13 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by “a purposeful 14 act or failure to respond to a prisoner’s pain or possible medical need, and harm caused by the 15 indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Deliberate indifference may be 16 manifested “when prison officials deny, delay or intentionally interfere with medical treatment, 17 or it may be shown by the way in which prison physicians provide medical care.” Id. Where a 18 prisoner is alleging a delay in receiving medical treatment, the delay must have led to further 19 harm in order for the prisoner to make a claim of deliberate indifference to serious medical needs. 20 McGuckin at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 21 (9th Cir. 1985)). 22 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 23 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the 24 facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but 25 that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 U.S. 26 825, 837 (1994)). “‘If a prison official should have been aware of the risk, but was not, then the 27 official has not violated the Eighth Amendment, no matter how severe the risk.’” Id. (quoting 28 Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A showing of 1 medical malpractice or negligence is insufficient to establish a constitutional deprivation under 2 the Eighth Amendment.” Id. at 1060. “[E]ven gross negligence is insufficient to establish a 3 constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)). 4 1. Serious Medical Need 5 The court finds no dispute in this case that Plaintiff suffered from a “serious medical 6 need.” Defendant Betz does not contest that Plaintiff suffered from back pain that was certain to 7 continue or worsen if left untreated. 8 2. Deliberate Indifference 9 The causation requirement of 42 U.S.C. § 1983 and a Bivens action is satisfied only if a 10 plaintiff demonstrates that a defendant did an affirmative act, participated in another’s affirmative 11 act, or omitted to perform an act which he was legally required to do that caused the deprivation 12 complained of. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981) (quoting Johnson v. 13 Duffy, 588 F.2d 740, 743–44 (9th Cir. 1978)). 14 The court finds no evidence that Defendant Dr. Betz deliberately disregarded a known 15 serious medical need, acted unreasonably, and caused injury to Plaintiff. Defendant has provided 16 ample evidence that he was the anesthesiologist for Plaintiff’s surgery and not a surgeon, did not 17 have control over, or participation in, what surgery was performed or how it was performed, and 18 that there were no anesthetic complications. Plaintiff alleges that Defendant Betz administered 19 anesthesia to Plaintiff without Plaintiff’s consent which caused mental and emotional pain and 20 physical impairment for the rest of Plaintiff’s life. However, Plaintiff provides no admissible 21 evidence that Dr. Betz’s participation in the July 2014 surgery as an anesthesiologist caused 22 Plaintiff to receive the wrong surgery, resulted in damage to Plaintiff or caused him to suffer 23 complications or other injury. Plaintiff has not shown any admissible evidence that Defendant 24 Dr. Betz acted against him with deliberate indifference in violation of the Eighth Amendment. 25 26 Here, with respect to Plaintiff’s Bivens Claims, even if material issues of fact remain as 27 to whether Plaintiff consented to the anesthesia administered by Dr. Betz, Plaintiff cannot 28 overcome Defendant’s motion for summary judgment because Plaintiff has not offered expert 1 testimony on the scope of the anesthesiologist’s duty to disclose, whether risks of long-term 2 neurological effects existed, or whether any act by Dr. Betz caused injury to Plaintiff. Plaintiff’s 3 opinion testimony is not admissible under Rule of Evidence 701 because he is a layman and not 4 a medical expert. 5 If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: 6 (a) rationally based on the witness's perception; 7 (b) helpful to clearly understanding the witness's testimony or to determining a 8 fact in issue; and 9 (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. 10 11 Fed. R. Evid. 701. 12 Accordingly, based on the foregoing, the court should grant Defendant Betz’s motion for 13 summary judgment on Plaintiff’s Bivens claim of deliberate indifference in violation of the 14 Eighth Amendment. 15 VI. PLAINTIFF’S STATE LAW CLAIMS 16 Plaintiff’s remaining claims, for medical battery and medical malpractice, are state law 17 claims.5 Because the court has found that Defendant Betz is entitled to summary judgment on 18 all claims brought under federal law, this court should decline to exercise supplemental 19 jurisdiction over Plaintiff’s state law claims. 20 The district court may decline to exercise supplemental jurisdiction where all claims over 21 which the court has original jurisdiction have been dismissed. 28 U.S.C. § 1367(c)(3). “[I]n the 22 usual case in which federal-law claims are eliminated before trial, the balance of factors to be 23 considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, 24 25 5 Failure to provide sufficient information to support informed consent is a valid claim under California law. Jackson v. United States, No. C 05-3006MHP, 2007 WL 4532223, at *6 (N.D. Cal. 26 Dec. 19, 2007). “A physician violates his duty to his patient and subjects himself to liability if he withholds any facts which are necessary to form the basis of an intelligent consent by the patient to the 27 proposed treatment.” Id. (quoting Berkey v. Anderson, 1 Cal.App.3d 790, 803-804, 82 Cal.Rptr. 67 (1969). Liability for failure to obtain informed consent may attach even if the medical treatment is 28 performed in accordance with the standard of care. Id. 1 and comity — will point toward declining to exercise jurisdiction over the remaining state law 2 claims.” Carnegie-Mellon Univ. v. Cohill, Inc. (Carnegie-Mellon), 484 U.S. 343, 350 n.7 (1988) 3 (indicating disapproval of a district court’s retention of jurisdiction to adjudicate a statute of 4 limitations issue); Schneider v. TRW, Inc., 938 F.2d 986, 993 (9th Cir. 1991); United Mine 5 Workers v. Gibbs, 383 U.S. 715 (1966); Bryant v. Adventist Health Sys. W., 289 F.3d 1162, 6 1169 (9th Cir. 2002) (holding that once the federal claim on which jurisdiction exists has been 7 proven to be unfounded at summary judgment, this allows courts to avoid determining issues of 8 state law). 9 In this case, the court has found that Defendant Betz’s motion for summary judgment 10 should be granted as to Plaintiff’s federal claims. Therefore, this court should decline to exercise 11 supplemental jurisdiction over Plaintiff’s state law claims. 12 VII. CONCLUSION AND RECOMMENDATIONS 13 The court finds that based on the undisputed facts, Defendant Dr. Betz’s motion for 14 summary judgment, filed on October 27, 2020, should be granted. 15 Therefore, based on the foregoing, it is HEREBY RECOMMENDED that: 16 1. The motion for summary judgment filed by Defendant Dr. Betz on October 27, 17 2020, be GRANTED as to all of Plaintiff’s federal claims under Bivens; 18 2. The court decline to exercise supplemental jurisdiction over Plaintiff’s state law 19 claims against Defendant Betz; 20 3. The Clerk of Court be directed to reflect Defendant Dr. Betz’s dismissal from this 21 case on the court’s docket; and 22 4. This case be referred back to the Magistrate Judge for further proceedings. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 25 (14) days from the date of service of these findings and recommendations, any party may file 26 written objections with the court. Such a document should be captioned “Objections to 27 Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served 28 and filed within ten (10) days after the date the objections are filed. The parties are advised that 1 failure to file objections within the specified time may result in the waiver of rights on appeal. 2 Wilkerson, 772 F.3d at 838-39 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 IT IS SO ORDERED. 4 5 Dated: May 1, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28