(PC) Robles v. Nguyen ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERTO ROBLES, No. 2:19-CV-1538-KJM-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECCOMMENDATIONS 14 E. NGUYEN, 15 Defendant. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Defendant Nguyen’s unopposed motion for 19 summary judgment, ECF No. 25. Plaintiff’s single claim alleges that Defendant Nguyen was 20 deliberately indifferent to Plaintiff’s serious medical needs. See ECF No. 1, pg. 3. Defendant 21 Nguyen contends that he was not deliberately indifferent to Plaintiff’s serious medical needs and 22 that he is entitled to qualified immunity. See ECF No. 25-2, pg. 1. 23 24 I. BACKGROUND 25 This action proceeds on Plaintiff’s original complaint. See ECF No. 1. Plaintiff 26 named Dr. Nguyen as the sole defendant. See id. Plaintiff alleges that his Eighth Amendment 27 rights were violated by Defendant Nguyen for delaying medical care. See id. at 4. 28 / / / 1 Plaintiff states the following: 2 I’ve been experiencing severe issues with, “pressure sores” for some time now at California Health Care Facility. . . . On January the first 3 2018, I seen [sic] Dr. Dove, orthopedics. His recommendation at the time was for general surgery, for both a (reflipping) [sic] and a 4 (wound debridement) [sic]. Since that consultation with Dr. Dove, CHCF Medical has scheduled two appointments. However, against 5 Dr. E. Nguyens [sic] orders to arrange special transportation (i.e. ambulance), CHCF instead arranged a “custody van” for the purpose 6 of this transportation. This particular van would have had me sitting vertically (upright) for extended periods of time. This action could 7 have caused additional pain and trauma with my “pressure sores”, my hip, hip joint, and pelvis. Both scheduled appointments were 8 cancelled by CHCF Medical causing me extreme delays with my medical care, which has caused additional medical problems (i.e. 9 emergency transport to San Joaquin County Hospital osteomyelitis and blood infection, etc.). This infection on my “pressure sores” has 10 spread from my hip, to my hip join [sic], and to my pelvis area. A ct scan was performed, in 2019 my abdomen showed changes of ostium 11 mellitus of my left pelvic area, involving inferior pubic rumus. 12 The duration of these issues has led to additional level of pain and suffering not addressed by Dr. E. Nguyen, seen by him one to three 13 times a week. Every single time I have expressed deep concern that this pain level, and the limited types of medication and level of 14 medication given to me was seriously in affected [sic]. I believe the above information, on constant medical delays which Dr. E. Nguyen 15 has not adequately addressed, has deeply affected my daily activities. 16 Due/because of delays of medical care at CHCF, and ignoring the recommendations of the outside orthopedics concerning my 17 “pressure sores”, now my pelvis has been affected, and due to this delay, has created substantial levels of pain and suffering caused by 18 Dr. E. Nguyen and his lack of adequate medical care for these serious problems. 19 20 Id. at 3-4 (errors in original). 21 22 II. DEFENDANT’S EVIDENCE 23 Defendant’s motion is supported by a sworn declaration from Defendant Nguyen, 24 Peter D. Lewicki, and B. Feinberg. See ECF No. 25-4, 5, and 6. Defendant relies on the 25 following exhibit attached to the declaration of Defendant Nguyen: 26 Exhibit A Medical Records and Chart Notes. ECF 27 No. 25-6, pgs. 15-177. 28 / / / 1 Defendant also relies on the following exhibit attached to the declaration of Peter 2 D. Lewicki: 3 Exhibit A Plaintiff Robles’s Deposition Transcript. ECF No. 25-5, pgs. 3-15. 4 5 Defendant also relies on the following exhibit attached to the declaration of B. 6 Feinberg: 7 Exhibit A Curriculum Vitae of Dr. B. Feinberg. ECF No. 25-4, pg. 18. 8 9 Further, Defendant Nguyen properly includes a Statement of Undisputed Facts 10 alongside his motion for summary judgment in which she states the following facts are 11 undisputed: 12 1. Plaintiff Roberto Robles is an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR). 13 2. At all times relevant to this lawsuit, Plaintiff was incarcerated 14 at California Health Care Facility (CHCF). 15 3. As of November 6, 2020, Plaintiff has not received any medical training, nor has he worked in the medical field. 16 4. Defendant Dr. E. Nguyen has been a licensed and practicing 17 physician since 2006, and has been employed by CDCR at CHCF as a Physician and Surgeon. Defendant is board certified by the 18 American Board of Family Medicine. 19 5. At all relevant times to this lawsuit, Defendant was a Physician and Surgeon at CHCF. 20 6. Defendant generally does not perform surgeries, nor are 21 surgeries generally performed at CDCR institutions. 22 7. In his professional capacity, Defendant has treated patients with chronic pain, decubitus ulcers, and osteomyelitis. Defendant 23 also consults with, and relies upon the reports and recommendations of other skilled health care professionals, including plastic surgeons. 24 8. CDCR provides medical services for patient-inmates that are 25 based on medical necessity and supported by data. In the absence of available data for a specific case, treatment is based on the judgment 26 of the physician that the treatment is considered effective, and is supported by both diagnostic information and consultations with 27 appropriate specialists. Further, if a CDCR physician believes an inmate needs specialized service not provided by the institution, the 28 physician must complete a Physician Request for Services form. The 1 Chief Physician may authorize or deny the request, or may request additional justification. 2 9. Inmates may not demand particular medication, diagnostic 3 evaluation, or courses of treatment. 4 10. Plaintiff was paralyzed from a gunshot in 2007, prior to his incarceration. Plaintiff is dependent on a wheelchair. 5 11. Prior to his incarceration, Plaintiff took Norco, an opioid pain 6 reliever. He also took Soma, a muscle relaxant. 7 12. During the time relevant to this lawsuit, Plaintiff was housed in a critical care housing unit at CHCF. 8 13. Prior to his treatment by Defendant, Plaintiff was treated by 9 other physicians, including a wound care team. 10 14. Plaintiff’s wound care was to address a decubitus ulcer, commonly referred to as a “bed sore” or “pressure sore.” A decubitus 11 ulcer is an injury to the skin and underlying tissue caused by prolonged pressure from sitting or lying down, and a restriction in 12 blood flow. Decubitus ulcers are common in patients dependent on a wheelchair, and often develop in in [sic] the tailbone and spine due 13 to contact with the chair. Decubitus ulcers vary in severity, and are classified in four stages. The most severe is stage four, which may 14 be so deep that the ulcer impacts the underlying muscles and/or bone. Severe ulcers may require skin grafts, which involves plastic surgery. 15 15. Plaintiff’s decubitus ulcer was rated as stage four, the most 16 severe. Treatment to Plaintiff’s wound included cleaning with gauze, placement of a dressing, and occasional draining. Plaintiff 17 underwent wound care procedures twice to three times daily. 18 16. Prior to his treatment by Defendant, a surgeon in Bakersfield Memorial Hospital, Dr. Dev1, performed a bone debridement to treat 19 Plaintiff’s osteomyelitis. Osteomyelitis is an infection of the bone. Symptoms can include fever, swelling, pain and fatigue, or present 20 no symptoms at all. 21 17. Prior to his treatment by Defendant, Plaintiff was previously prescribed acetaminophen with codeine (a narcotic) and a Neurontin2 22 to treat pain from these conditions. 23 18. Prior to his treatment by Defendant, Plaintiff was awaiting a plastic surgery appointment, at the recommendation of Dr. Dev. 24 19. On June 15, 2018, Defendant began treating Plaintiff. In this 25 encounter, Defendant discussed Plaintiff’s pain management treatment with him. Plaintiff was already prescribed and taking 26 acetaminophen with codeine, and Neurontin. Defendant determined that escalation in narcotics was not appropriate. 27 1 Dr. Dev is also referred to as “Dr. Dove” in Plaintiff’s deposition and complaint. 28 2 Neurontin is also referred to as “Gabepentin.” 1 20. On June 19, 2018, Defendant requested a CT scan and general surgery to treat Plaintiff’s chronic osteomyelitis and 2 decubitus ulcer, and to assess future care of these conditions. Defendant also counseled Plaintiff on pain management options, and 3 offered tricyclic medication. Plaintiff declined tricyclic medication. The requests for CT scan and surgery were initially denied by other 4 personnel at CHCF. 5 21. On June 27, 2018, Plaintiff declined an offer for sulindac, an anti-inflammatory pain reliever. 6 22. On July 20, 2018, Defendant conferred with Nurse 7 Practitioner Sanez Martin to assess the proposed CT scan of the abdomen and pelvis, and referral for surgery. 8 23. On July 24, 2018, Defendant encountered Plaintiff. 9 Defendant informed Plaintiff of the plan to seek reconsideration of the denial of the CT scan and outpatient surgery. Plaintiff reported 10 that his pain was stable. 11 24. While awaiting a determination on the request for outpatient surgery, Defendant met with Plaintiff during several encounters, and 12 addressed his pain management, renewed wound care orders. Additionally, Defendant consulted with Plaintiff’s wound care team, 13 and secured a CT scan for Plaintiff. On August 24, 2018, a review of the CT scan findings confirmed osteomyelitis in the left pelvis. 14 25. On August 28, 2018, Defendant met with the CHCF chief 15 physician to discuss plans for Plaintiff’s care, and the request for surgical consultation was approved. Plaintiff was taken that same 16 day to San Joaquin General Hospital (SJGH) to assess for antibiotics and a surgery consultation. SJGH informed Defendant that it did not 17 perform those types of surgical procedures. 18 26. On three encounters between September 5, 2018 and September 14, 2018, Defendant met with Plaintiff to discuss his pain, 19 and the pending referral for surgery. On September 5, 2018, Defendant renewed Plaintiff’s acetaminophen with codeine 20 prescription. On September 14, 2018, Plaintiff was informed that his surgery appointment would be held in Bakersfield. Defendant 21 requested transportation by ambulance due to the three-hour travel time, to prevent unnecessary pain to Plaintiff. Defendant can request 22 an ambulance, but the arrangements are made by appointment schedulers. 23 27. Plaintiff informed Defendant on October 10, 2018 that he 24 refused to attend his surgical consultation in Bakersfield due to a custody van being ordered for transportation, rather than an 25 ambulance, and his concerns about pain from sitting on his pressure sore on his left buttock for extended periods of time. Defendant did 26 not order this custody van for transport. Defendant resubmitted the request for service for transport by ambulance to the appointment in 27 Bakersfield. 28 / / / 1 28. Plaintiff admitted that he twice refused transport to medical appointments due to someone other than Defendant booking the 2 wrong van. Plaintiff further admitted that these refusals led to delays in his care, and further led to his increased pain. 3 29. Throughout November 2018, Defendant continued to meet 4 with Plaintiff, and discussed wound care and pain management with him. Defendant renewed Plaintiff’s wound care orders, monitored 5 Plaintiff’s decubitus ulcer, and determined the current wound care regimen was working well due to the shrinkage of the wound and 6 lack of infection. Plaintiff remained prescribed acetaminophen with codeine and Neurontin throughout November 2018. Defendant 7 remained concerned about opioid dependence, as Plaintiff was able to function despite his complaints of increased pain. Plaintiff was 8 scheduled for a surgical evaluation on November 30, 2018. 9 30. On December 5, 2018, Plaintiff’s surgery appointment was cancelled and rescheduled due to the specialist being pulled away 10 due to an emergency. 11 31. On December 11, 2018, Plaintiff was evaluated at the Kentfield Advanced Wound and Burn Center for a surgical 12 consultation. The attending physician recommended extensive bone debridement and intravenous antibiotics, and also recommended a 13 tertiary site for the surgery due to the need to coordinate multiple specialists for the complex procedure. 14 32. On December 19, 2018, Plaintiff met with Defendant and 15 complained of severe pain in his hips and lower pelvis. Defendant noted recent observations of Plaintiff engaging in activities and 16 moving via wheelchair without obvious signs of pain. Defendant offered Cymbalta to address Plaintiff’s pain, which Plaintiff refused 17 due to it being a psychiatric drug. Defendant also updated Plaintiff on the recommendation of surgery, and discussed possible locations 18 for the surgery. 19 33. On December 21, 2018, Defendant submitted the request for surgery to treat both the osteomyelitis and decubitus ulcer, with a 20 specific request for transport by ambulance for travel exceeding one hour. The request was approved December 24, 2018. 21 34. On December 26, 2018, Defendant met with Plaintiff, who 22 complained of increased pain in his hips and pelvis, particularly at night, that his current pain medications were not mitigating. Plaintiff 23 again refused psychiatric medication, but agreed to an increased dose of Gabapentin, which Defendant then prescribed. 24 35. On January 7, 2019, Defendant met with Plaintiff, who 25 complained of night hip pain, and stated a concern that his pain medication was insufficient. Defendant remained concerned about 26 opioid tolerance. Plaintiff agreed to try Elavil for pain management. Defendant also learned that Plaintiff’s previous surgeon in 27 Bakersfield no longer accepted CDCR patients. 28 / / / 1 36. On January 11, 2019, University of California (“UC”), at Davis informed Nguyen that it could not perform the surgery due to 2 Plaintiff’s insurance and medical plan. The offsite appointment schedulers were tasked with exploring other locations for the 3 surgery. Plaintiff was informed on January 14, 2019 of the status of the surgery referral. 4 37. Between January 14, 2019 and February 4, 2019, Plaintiff 5 met with Defendant on four occasions. At each appointment Plaintiff was advised of the status of the surgery referral, and Defendant 6 confirmed that Plaintiff was still taking Elavil and acetaminophen with codeine to treat his pain. Defendant contacted offsite schedulers 7 seeking updates on the surgery referral. 8 38. On February 20, 2019, Defendant was informed that referrals to UC Davis, UC San Francisco, California Pacific Medical Center 9 (CPMC) and Stanford University were denied. Plaintiff was however, scheduled for a plastic surgery consultation at the 10 Brentwood Laser & Aesthetics Center with Dr. Moulton-Barrett. Plaintiff was informed regarding the status of the referral on 11 February 25, 2019. 12 39. On March 20, 2019, Plaintiff was evaluated by Dr. Moulton- Barrett, who recommended surgery, a follow-up CT scan, additional 13 labwork, and bi-weekly evaluations after surgery. In a March 26, 2019 letter, Dr. Moulton-Barrett opined that Plaintiff’s wound care 14 treatment was “excellent” and should continue following surgery. Dr. Moulton-Barrett also noted challenges obtaining authorization 15 from surgery sites. 16 40. On April 1, 2019, a CT scan was ordered, and scheduled for April 12, 2019. 17 41. On April 12, 2019, Plaintiff underwent a CT scan. Defendant 18 renewed Plaintiff’s prescription for acetaminophen with codeine. On April 15, 2019, Defendant met with Plaintiff and discuss his 19 continuing on Elavil, and to discuss a new concern regarding Plaintiff’s wound emitting odor. 20 42. On April 29, 2019, Defendant met with Plaintiff, and they 21 discussed the pending plastic surgery appointment, and pain management. Plaintiff indicated his pain issues remained, and he 22 agreed to remain on Elavil. Defendant noted the CT scan revealed that pelvic bone inflammation and ulceration appeared improved 23 when compared with the August 24, 2018 CT scan results. Defendant further noted that when Plaintiff reported to Dr. Karan on 24 April 22, 2019 that his pain was well controlled. 25 43. On May 6, 2019, Defendant learned that the requested plastic surgery procedure was approved, and pending scheduling. 26 44. Between May 8, 2019 and May 14, 2019, Plaintiff was 27 hospitalized due to sepsis, hematuria, and catheter cystitis, conditions unrelated to osteomyelitis and decubitus ulcer. Following his return 28 from the hospital, Defendant noted that surgery referral at UC San 1 Francisco was approved, but had not yet been scheduled. 2 45. On May 24, 2019, Defendant noted that Plaintiff’s surgery was still pending scheduling, and that the decubitus ulcer, though 3 persistent, was slowly healing and did not appear infected. On May 31, 2019, an additional six weeks of bacterial antibiotics were 4 ordered to treat the osteomyelitis. 5 46. Between June 3, 2019 and June 6, 2019, Defendant followed up with schedulers to determine status of the plastic surgery 6 scheduling. Defendant learned that the request to facilitate surgery at San Leandro Surgery Center, Dr. Moulton-Barrett’s recommended 7 site, was denied. Dr. Moulton-Barrett was asked by the scheduling team to consider performing the surgery at one of CHCF’s contracted 8 hospitals, which Moulton-Barrett declined. Defendant then directed the schedulers to notify him regarding the surgery request submitted 9 to Highland Hospital. On June 7, 2019, Plaintiff was informed that Dr. Moulton-Barrett could not perform the surgery, and that further 10 steps would be taken to find an alternate surgery location, to which Plaintiff was agreeable. 11 47. At appointments on June 10, 2019 and June 14, 2019, 12 Defendant noted that Plaintiff’s decubitus ulcer was persistent, but slowly healing. Defendant confirmed that schedulers had requested 13 an alternate location for the surgery. 14 48. Between July 4, 2019 and July 8, 2019, Plaintiff was treated at SJGH for sepsis. Following his release from SJGH, on July 12, 15 2019, Plaintiff met with Defendant, who determined Plaintiff was stable, and that the schedulers had confirmed a specialist’s 16 availability for surgical consultation. 17 49. On July 19, 2019, Defendant noted that Plaintiff remained stable, but did not want to resume amitriptyline for pain management 18 due to drowsiness side effects. 19 50. On July 22, 2019, Defendant renewed Plaintiff’s acetaminophen with codeine prescription, and allowed more frequent 20 administrations of the drug due to a recent increase in pain. 21 51. On July 26, 2019, Defendant met with Plaintiff, and prescribed naproxen for seven days to address breakthrough hip pain. 22 Defendant also confirmed an x-ray was scheduled for August 1, 2019 to rule out a spread of osteomyelitis. 23 52. During encounters on July 29, 2019 and July 30, 2019, 24 Plaintiff reported that naproxen was not providing adequate pain relief. Plaintiff was agreeable to trying alternatives of NSAIDS and 25 ibuprofen for pain relief. Ibuprofen was prescribed. 26 53. On August 1, 2019, Plaintiff underwent an [sic] x-rays of his lumbar spine. The impression was minimal multilevel endplate 27 degenerative disc disease, unrelated to Plaintiff’s Osteomyelitis. 28 / / / 1 54. On August 2, 2019, Plaintiff continued to complain of hip pain and lower back pain. Plaintiff agreed to try ibuprofen on a 2 schedule, which Defendant prescribed. 3 55. Plaintiff testified that he believed it took too long to schedule his surgery, but acknowledged that Defendant was responsive to each 4 of his requests for help, and that he was unaware of anything Defendant should have done differently. 5 56. Plaintiff testified that Defendant was responsive to his 6 requests for help to resolve pain, and that at no time was he denied help. 7 57. Plaintiff testified that he never specifically requested a 8 stronger pain medication than the acetaminophen with codeine prescribed by Defendant. 9 58. Norco and Soma were inappropriate pain management 10 options under CDCR policies, and would have caused increased dependence on opiates over time to achieve necessary pain relief due 11 to the increase tolerance with stronger opioids. It is medically appropriate in cases of suspected opioid addiction and increased 12 tolerance, to explore alternative methods of pain treatment. 13 59. Defendant renewed prescriptions for acetaminophen with codeine multiple times, and adjusted the dose downward only when 14 concerned about Plaintiff’s increased opioid dependence. 15 60. Nguyen continued to monitor the status of the requests for surgery, while meeting and communicating with Plaintiff regularly, 16 and consulting other medical professionals at CHCF and outside of CDCR. 17 61. Defendant provided appropriate medical care to Plaintiff, and 18 at no time did he disregard Plaintiff’s medical needs. 19 ECF No. 25-3. 20 Plaintiff has not opposed Defendant’s motion nor disputed any of Defendant’s 21 facts. 22 23 III. STANDARD FOR SUMMARY JUDGEMENT 24 The Federal Rules of Civil Procedure provide for summary judgment or summary 25 adjudication when “the pleadings, depositions, answers to interrogatories, and admissions on file, 26 together with affidavits, if any, show that there is no genuine issue as to any material fact and that 27 the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The 28 1 standard for summary judgment and summary adjudication is the same. See Fed. R. Civ. P. 2 56(a), 56(c); see also Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). One of 3 the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. See 4 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under summary judgment practice, the 5 moving party 6 . . . always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, 7 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a 8 genuine issue of material fact. 9 Id., at 323 (quoting former Fed. R. Civ. P. 56(c)); see also Fed. R. Civ. P. 56(c)(1). 10 If the moving party meets its initial responsibility, the burden then shifts to the 11 opposing party to establish that a genuine issue as to any material fact actually does exist. See 12 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 13 establish the existence of this factual dispute, the opposing party may not rely upon the 14 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 15 form of affidavits, and/or admissible discovery material, in support of its contention that the 16 dispute exists. See Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 n.11. The 17 opposing party must demonstrate that the fact in contention is material, i.e., a fact that might 18 affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 19 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th 20 Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could 21 return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 22 (9th Cir. 1987). To demonstrate that an issue is genuine, the opposing party “must do more than 23 simply show that there is some metaphysical doubt as to the material facts . . . . Where the record 24 taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 25 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). It is sufficient that “the 26 claimed factual dispute be shown to require a trier of fact to resolve the parties’ differing versions 27 of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. 28 / / / 1 In resolving the summary judgment motion, the court examines the pleadings, 2 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. 3 See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, see Anderson, 4 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the 5 court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587. 6 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 7 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 8 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 9 1987). Ultimately, “[b]efore the evidence is left to the jury, there is a preliminary question for the 10 judge, not whether there is literally no evidence, but whether there is any upon which a jury could 11 properly proceed to find a verdict for the party producing it, upon whom the onus of proof is 12 imposed.” Anderson, 477 U.S. at 251. 13 14 IV. DISUCSSION 15 Defendant Nguyen argues that he was not deliberately indifferent to Plaintiff’s 16 medical needs. See ECF No. 25-2, pg. 14. Defendant further argues that he was diligent and 17 followed CDCR Guidelines for treating Plaintiff’s conditions; therefore, he should be entitled to 18 qualified immunity. See id. at 19. 19 A. Medical Needs 20 The treatment a prisoner receives in prison and the conditions under which the 21 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 22 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 23 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts 24 of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 25 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. 26 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with 27 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 28 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when 1 two requirements are met: (1) objectively, the official’s act or omission must be so serious such 2 that it results in the denial of the minimal civilized measure of life’s necessities; and (2) 3 subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of 4 inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison 5 official must have a “sufficiently culpable mind.” See id. 6 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious 7 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105; 8 see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health 9 needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), abrogated on other grounds by 10 Sandin v. Conner, 515 U.S. 472 (1995). An injury or illness is sufficiently serious if the failure to 11 treat a prisoner’s condition could result in further significant injury or the “. . . unnecessary and 12 wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled 13 on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); see 14 also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). Factors indicating seriousness 15 are: (1) whether a reasonable doctor would think that the condition is worthy of comment; (2) 16 whether the condition significantly impacts the prisoner’s daily activities; and (3) whether the 17 condition is chronic and accompanied by substantial pain. See Lopez v. Smith, 203 F.3d 1122, 18 1131-32 (9th Cir. 2000) (en banc). 19 The requirement of deliberate indifference is less stringent in medical needs cases 20 than in other Eighth Amendment contexts because the responsibility to provide inmates with 21 medical care does not generally conflict with competing penological concerns. See McGuckin, 22 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to 23 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 24 1989). The complete denial of medical attention may constitute deliberate indifference. See 25 Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical 26 treatment, or interference with medical treatment, may also constitute deliberate indifference. See 27 Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate 28 that the delay led to further injury. See McGuckin, 974 F.2d at 1060. 1 Negligence in diagnosing or treating a medical condition does not, however, give 2 rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a 3 difference of opinion between the prisoner and medical providers concerning the appropriate 4 course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, 5 90 F.3d 330, 332 (9th Cir. 1996). 6 Here, the undisputed evidence shows that Defendant Nguyen was aware of 7 Plaintiff’s medical needs and took reasonable measures to treat them. Defendant Nguyen met 8 with Plaintiff regularly, discussed his plan for care, offered and prescribed multiple non-opiate 9 pain management options to supplement the acetaminophen with codeine prescription, and 10 diligently pursued surgical options throughout despite scheduling obstacles that were beyond his 11 control. The undisputed evidence shows that Defendant Nguyen consistently monitored 12 Plaintiff’s wound care and recommended antibiotics and additional treatment to address the 13 wound. 14 Further, none of the delays were attributable to Defendant Nguyen. Defendant 15 Nguyen submitted a request for surgery within four days of his first encounter with Plaintiff. 16 Delays resulted from the complexity of Plaintiff’s surgery, unexpected cancellations, coordination 17 issues, and finding a site to perform the surgery. Throughout this process, Defendant Nguyen 18 submitted timely requests for surgery, followed up to obtain approval following a denial, and 19 communicated often with the schedulers to obtain updates. Additionally, Dr. Moulton-Barrett 20 refused to perform surgery, and Plaintiff’s hospitalization further complicated scheduling issues. 21 None of the delays were attributable to Defendant Nguyen. Therefore, Defendant Nguyen was 22 not deliberately indifferent to Plaintiff’s medical needs. 23 B. Qualified Immunity 24 Government officials enjoy qualified immunity from civil damages unless their 25 conduct violates “clearly established statutory or constitutional rights of which a reasonable 26 person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In general, 27 qualified immunity protects “all but the plainly incompetent or those who knowingly violate the 28 law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). In ruling upon the issue of qualified 1 immunity, the initial inquiry is whether, taken in the light most favorable to the party asserting the 2 injury, the facts alleged show the defendant’s conduct violated a constitutional right. See Saucier 3 v. Katz, 533 U.S. 194, 201 (2001). If a violation can be made out, the next step is to ask whether 4 the right was clearly established. See id. This inquiry “must be undertaken in light of the specific 5 context of the case, not as a broad general proposition . . . .” Id. “[T]he right the official is 6 alleged to have violated must have been ‘clearly established’ in a more particularized, and hence 7 more relevant, sense: The contours of the right must be sufficiently clear that a reasonable 8 official would understand that what he is doing violates that right.” Id. at 202 (citation omitted). 9 Thus, the final step in the analysis is to determine whether a reasonable officer in similar 10 circumstances would have thought his conduct violated the alleged right. See id. at 205. 11 When identifying the right allegedly violated, the court must define the right more 12 narrowly than the constitutional provision guaranteeing the right, but more broadly than the 13 factual circumstances surrounding the alleged violation. See Kelly v. Borg, 60 F.3d 664, 667 (9th 14 Cir. 1995). For a right to be clearly established, “[t]he contours of the right must be sufficiently 15 clear that a reasonable official would understand [that] what [the official] is doing violates the 16 right.” See Anderson v. Creighton, 483 U.S. 635, 640 (1987). Ordinarily, once the court 17 concludes that a right was clearly established, an officer is not entitled to qualified immunity 18 because a reasonably competent public official is charged with knowing the law governing his 19 conduct. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). However, even if the plaintiff 20 has alleged a violation of a clearly established right, the government official is entitled to 21 qualified immunity if he could have “. . . reasonably but mistakenly believed that his . . . conduct 22 did not violate the right.” Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001); see 23 also Saucier, 533 U.S. at 205. 24 The first factors in the qualified immunity analysis involve purely legal questions. 25 See Trevino v. Gates, 99 F.3d 911, 917 (9th Cir. 1996). The third inquiry involves a legal 26 determination based on a prior factual finding as to the reasonableness of the government 27 official’s conduct. See Neely v. Feinstein, 50 F.3d 1502, 1509 (9th Cir. 1995). The district court 28 has discretion to determine which of the Saucier factors to analyze first. See Pearson v. Callahan, 1 555 U.S. 223, 236 (2009). In resolving these issues, the court must view the evidence in the light 2 most favorable to plaintiff and resolve all material factual disputes in favor of plaintiff. See 3 Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003). 4 Qualified immunity shields government officials who, in the face of clearly 5 established law, acted reasonably but nonetheless violated some constitutional right. Here, 6 Defendant assessed Plaintiff’s conditions and the status of surgical referrals consistently and 7 often. He offered multiple options to address Plaintiff’s pain while awaiting surgery. Plaintiff’s 8 claim that the process took too long is rebutted by evidence that Defendant Nguyen was 9 responsive to each of his requests, never denied Plaintiff’s requests for help, and that delays in 10 scheduling surgery appointments were not attributable to Defendant Nguyen. The undisputed 11 evidence shows the Defendant did not violate Plaintiff’s rights. Therefore, qualified immunity is 12 not an issue in this case. And even if the Court concluded the Defendant did violate a clearly 13 established rights, Defendant would be entitled to qualified immunity because the evidence shows 14 that Defendant acted reasonably by appropriately treating Plaintiff’s medical concerns within the 15 CDCR guidelines. 16 / / / 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 V. CONCLUSION 2 Based on the foregoing, the undersigned recommends that: 3 1. Defendant Nguyen’s unopposed motion for summary judgment, ECF No. 25, 4 | be granted; and 5 2. Judgment be entered as a matter of law in favor of Defendant Nguyen. 6 These findings and recommendations are submitted to the United States District 7 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 8 | after being served with these findings and recommendations, any party may file written objections 9 | with the court. Responses to objections shall be filed within 14 days after service of objections. 10 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 11 | Yst, 951 F.2d 1153 (9th Cir. 1991). 12 13 | Dated: February 11, 2022 Ssvcqo_ DENNIS M. COTA 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 16