(PC) Foster v. Schmidt ( 2021 )

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 FOR THE EASTERN DISTRICT OF CALIFORNIA 12 13 JOSEPH WAYNE FOSTER, Case No. 2:17-cv-02199-MCE-JDP (PC) 14 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT DEFENDANT’S MOTION FOR 15 v. SUMMARY JUDGMENT BE GRANTED 16 RALPH DELGADO, OBJECTIONS DUE IN 14 DAYS 17 Defendant. ECF No. 33 18 19 20 Joseph Wayne Foster (“plaintiff”) alleges that, while he was incarcerated at High Desert 21 State Prison, defendant Ralph Delgado violated his Eighth Amendment rights by denying him 22 medical care for a painful back lipoma. Defendant Delgado has filed a motion for summary 23 judgment arguing that he lacked the requisite culpability for Eighth Amendment deliberate 24 indifference. After reviewing the pleadings, including plaintiff’s late-filed opposition, I 25 recommend that defendant’s motion be granted. 1 26 27 1 Defendant argues that I should disregard plaintiff’s opposition. ECF No. 37 at 2-3. This argument is well-taken but, out of an abundance of caution and considering plaintiff’s pro se 28 status, I have considered the opposition. 1 Motion for Summary Judgment 2 A. Legal Standards 3 1. Summary Judgment Standard 4 Summary judgment is appropriate where there is “no genuine dispute as to any material 5 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington 6 Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine 7 only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, 8 while a fact is material if it “might affect the outcome of the suit under the governing law.” 9 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 10 F.2d 1422, 1436 (9th Cir. 1987). 11 Rule 56 allows a court to grant summary adjudication, also known as partial summary 12 judgment, when there is no genuine issue of material fact as to a claim or a portion of that claim. 13 See Fed. R. Civ. P. 56(a); Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) (“Rule 14 56 authorizes a summary adjudication that will often fall short of a final determination, even of a 15 single claim . . . .”) (internal quotation marks and citation omitted). The standards that apply on a 16 motion for summary judgment and a motion for summary adjudication are the same. See Fed. R. 17 Civ. P. 56 (a), (c); Mora v. Chem-Tronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998). 18 Each party’s position must be supported by (1) citations to particular portions of materials 19 in the record, including but not limited to depositions, documents, declarations, or discovery; or 20 (2) argument showing that the materials cited do not establish the presence or absence of a 21 genuine factual dispute or that the opposing party cannot produce admissible evidence to support 22 its position. See Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The court may consider 23 other materials in the record not cited to by the parties, but it is not required to do so. See Fed. R. 24 Civ. P. 56(c)(3); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 25 2001); see also Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 26 “The moving party initially bears the burden of proving the absence of a genuine issue of 27 material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the 28 moving party must either produce evidence negating an essential element of the nonmoving 1 party’s claim or defense or show that the nonmoving party does not have enough evidence of an 2 essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. 3 Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this 4 initial burden, the burden then shifts to the non-moving party “to designate specific facts 5 demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d 6 376, 387 (citing Celotex Corp., 477 U.S. at 323). The non-moving party must “show more than 7 the mere existence of a scintilla of evidence.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 8 U.S. 242, 252 (1986)). However, the non-moving party is not required to establish a material 9 issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be shown to 10 require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. 11 Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). 12 The court must apply standards consistent with Rule 56 to determine whether the moving 13 party has demonstrated there to be no genuine issue of material fact and that judgment is 14 appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). 15 “[A] court ruling on a motion for summary judgment may not engage in credibility 16 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 17 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the 18 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party. 19 Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002); Addisu v. Fred Meyer, Inc., 20 198 F.3d 1130, 1134 (9th Cir. 2000). 21 2. Eighth Amendment Deliberate Indifference to Medical Needs 22 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 23 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 24 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for 25 deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by 26 demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury 27 or the unnecessary and wanton infliction of pain,’” and (2) that “the defendant’s response to the 28 need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1 1050, 1059 (9th Cir. 1992)). “This second prong—defendant’s response to the need was 2 deliberately indifferent—is satisfied by showing (a) a purposeful act or failure to respond to a 3 prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Id. (citing 4 McGuckin, 974 F.2d at 1060). Indifference may be manifest “when prison officials deny, delay 5 or intentionally interfere with medical treatment, or it may be shown by the way in which prison 6 physicians provide medical care.” Id. When a prisoner alleges a delay in receiving medical 7 treatment, the delay must have led to further harm for the prisoner to make a claim of deliberate 8 indifference to serious medical needs. See McGuckin, 974 F.2d at 1060 (citing Shapely v. Nevada 9 Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)). 10 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 11 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the 12 facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but 13 that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 U.S. 14 825, 837 (1994)). “If a prison official should have been aware of the risk, but was not, then the 15 official has not violated the Eighth Amendment, no matter how severe the risk.” Id. (quoting 16 Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A showing of medical 17 malpractice or negligence is insufficient to establish a constitutional deprivation under the Eighth 18 Amendment.” Id. at 1060. “[E]ven gross negligence is insufficient to establish a constitutional 19 violation.” Id. (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)). Additionally, 20 a difference of opinion between an inmate and prison medical personnel—or between medical 21 professionals—on appropriate medical diagnosis and treatment is not enough to establish a 22 deliberate indifference claim. See Toguchi, 391 F.3d at 1058; Sanchez v. Vild, 891 F.2d 240, 242 23 (9th Cir. 1989). 24 B. Background 25 Plaintiff alleges that, while incarcerated at High Desert State Prison, he began to 26 experience pain on the left side of his upper back. ECF No. 16 at 2. He submitted a health 27 request form and saw physician Leslie Schmidt. Id. After examining plaintiff, Schmidt 28 discovered a “soft tissue mass” and referred plaintiff to an outside surgeon. Id. The surgeon 1 diagnosed plaintiff with a lipoma. ECF No. 33-3 at 32. Schmidt then requested that a surgical 2 excision of the lipoma be authorized. Id. at 40. Defendant Delgado, a physician advisor working 3 for the California Department of Corrections and Rehabilitation, denied Schmidt’s request. Id. 4 He acknowledged the surgeon’s diagnosis, but found that the medical evidence was inconclusive 5 as to whether the lipoma interfered with plaintiff’s activities of daily life and whether the pain 6 was severe. Id. at 67. Delgado referred the matter back to Schmidt and requested that plaintiff’s 7 pain be “better defined” and that additional information be provided as to whether the lipoma was 8 impacting plaintiff’s “neurocirc.” Id. The defendant had no further involvement in any treatment 9 decision affecting the plaintiff. Id. The medical records show that the next time plaintiff sought 10 treatment for his lipoma was on April 25, 2017, following a transfer to a different institution. Id. 11 at 6. 12 C. Analysis 13 The evidence shows that defendant Delgado did not act with a degree of culpability rising 14 to the level of deliberate indifference. As stated above, a prison official cannot exhibit deliberate 15 indifference unless he “knows of and disregards an excessive risk to inmate health and safety.” 16 Farmer, 511 U.S. at 837. The Supreme Court has equated this standard to criminal recklessness. 17 Id. at 839-40. Here, Delgado’s involvement in plaintiff’s care was limited to reviewing Schmidt’s 18 request for a surgical excision of the lipoma. In denying the request, Delgado explicitly professed 19 a lack of awareness as to whether the lipoma was an excessive risk to plaintiff’s health. He noted 20 that the records did not convey the severity of plaintiff’s pain or the extent of the lipoma’s impact 21 on his daily activities. Delgado’s denial was not a final one; it explicitly invited resubmission of 22 the request with additional information. ECF No. 33-3 at 67. Nothing in the record implies that 23 Delgado’s requests for additional information on these issues were disingenuous or intended as 24 dilatory. 25 Additionally, there is no evidence that the delay occasioned by Delgado’s decision 26 negatively impacted plaintiff’s health. A delay in treatment only amounts to deliberate 27 indifference if it led to further harm. See McGuckin, 974 F.2d at 1060. In his deposition, plaintiff 28 admitted that, after Delgado’s denial, the pain level for the lipoma remained “tolerable.” ECF 1 | No. 33-2 at4. Indeed, plaintiff refused an April 2016 follow-up appointment with his primary 2 || care provider to discuss Delgado’s denial of the surgical procedure. Jd. at 42. It was not until the 3 | following year that plaintiff, at a different institution, again sought treatment for the lipoma. /d. 4 | at 68. 5 Plaintiff's opposition offers little in the way of substance. It is, as defendant points out in 6 | his reply, primarily a restatement of plaintiff's allegations. It also cites to and relies upon 7 | California Department of Corrections and Rehabilitation regulations, but non-compliance with 8 | those rules, standing alone, cannot sustain an Eighth Amendment claim. I find that plaintiff has 9 | not demonstrated the existence of genuine issues of fact that would necessitate a trial. 10 Based on the foregoing, it is recommended that: 11 1. Defendant Delgado’s motion for summary judgment, ECF No. 33, be granted and 12 | plaintiffs claims against him be dismissed with prejudice. 13 2. The Clerk of Court be directed to close this case. 14 I submit these findings and recommendations to the district judge under 28 U.S.C. 15 | § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 16 | Eastern District of California. Within 14 days of the service of the findings and 17 || recommendations, any party may file written objections to the findings and recommendations 18 | with the court and serve a copy on all parties. That document should be captioned “Objections to 19 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings 20 | and recommendations under 28 U.S.C. § 636(b)(1)(C). Failure to file objections within the 21 | specified time may result in the waiver of rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 22 | 834, 839 (9th Cir. 2014). 23 IT IS SO ORDERED. 25 ( q oy — Dated: _ August 10, 2021 Q_-——— 26 JEREMY D,. PETERSON UNITED STATES MAGISTRATE JUDGE 28 &K 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28