(PC) Reyna v. Kings County Jail ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN REYNA, Case No. 1:20-cv-00203-NODJ-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANTS’ MOTIONS FOR 13 v. SUMMARY JUDGMENT1 14 KINGS COUNTY JAIL, WENDY BATCHELOR, and NAEEM SIDDIQI, FOURTEEN-DAY OBJECTION PERIOD2 15 Defendants. (Doc. Nos. 40, 41) 16 17 18 Pending before the Court are two motions for summary judgment, one filed by Defendants 19 Wendy Batchelor and Naeem Siddiqi, the other by Defendant Kings County Jail. (Doc. Nos. 40, 20 41). For the reasons discussed below, the undersigned recommends the district court grant 21 summary judgment to Defendant Batchelor and Siddiqi because there is no genuine dispute of 22 material facts as to whether Defendants Batchelor and Siddiqi acted with deliberate indifference 23 to Plaintiff’s serious medical condition. Because the undersigned finds no underlying 24 25 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2022). 26 2 On December 1, 2023, this case was assigned to the No District Judge (“NODJ”) docket due to the elevation of District Judge Ana I. de Alba to the Ninth Circuit Court of Appeals. This case will remain 27 pending until a new district judge is appointed or until another district judge considers these Findings and Recommendation. Despite this anticipated delay, the objection period remains fourteen (14) days, absent 28 leave for an extension of time being granted. 1 constitutional violation by Defendants Batchelor and Siddiqi, Plaintiff’s claim arising under 2 Monell3 against Defendant Kings County Jail fails. Thus, the undersigned recommends the 3 district court also grant summary judgment to Kings County Jail. 4 I. BACKGROUND 5 A. Procedural History 6 Plaintiff John Reyna is a state prisoner proceeding pro se and in forma pauperis in his 7 civil rights action under 42 U.S.C. § 1983 against Defendants Kings County Jail (KCJ), Wendy 8 Batchelor, and Naeem Siddiqi. (Doc. No. 1, “Complaint”). On July 7, 2020, the former 9 magistrate judge found the Complaint stated colorable claims of medical deliberate indifference 10 against Kings County Jail, Wendy Batchelor, and Naeem Siddiqi. (Doc. No. 6). Defendants filed 11 answers to the Complaint (Doc. Nos. 13, 29) and the Court entered a discovery and scheduling 12 order. (Doc. No. 36). On April 19, 2023, Batchelor and Siddiqi filed a timely motion for 13 summary judgment. (Doc. No. 40). On April 20, 2023, KCJ filed a timely motion for summary 14 judgment or in the alternative for summary adjudication. (Doc. No. 41). On May 17, 2023, 15 Plaintiff filed an Opposition to KCJ’s MSJ (Doc. No. 43) and an Opposition to Batchelor and 16 Siddiqi’s MSJ (Doc. No. 44). KCJ timely filed a Reply (Doc. No. 45), as did Batchelor and 17 Siddiqi (Doc. No. 46). Plaintiff filed a Surreply to Batchelor and Siddiqi’s MSJ. (Doc. No. 47). 18 The Court denied Defendants’ Motion to Strike Plaintiff’s Surreply. (Doc. No. 48). 19 B. Batchelor and Siddiqi’s MSJ 20 Supporting their MSJ, Defendants Batchelor and Siddiqi submit: (1) a memorandum of 21 points and authorities (Doc. No. 40); (2) a statement of undisputed material facts (Doc No. 40-2); 22 (3) the declaration of Chad C. Couchot (Doc. No. 40-3); (4) a copy of Plaintiff’s Complaint (Doc. 23 No. 40-4); (5) a copy of the Court’s Screening Order in this case (Doc. No. 40-5); (5) a copy of 24 Plaintiff’s pertinent medical records (Doc. No. 40-6); and (7) the medical opinion of Dr. Alfred 25 Joshua, MD, MBA, CCHP-P, FAAEM. (Doc. No. 40-7). Defendants refer to Dr. Joshua as an 26 “expert.” (Doc. No. 40-3 at 2). 27 28 3 Monell v. Dep’t of Soc. Services of City of New York, 436 U.S. 658 (1978). 1 In opposition, Plaintiff submits (1) his own declaration (Doc. No. 40 at 1-4), (2) a 2 statement of disputed factual issues (id. at 4-7); (3) a memorandum (id. at 8-10); (4) a copy of his 3 Complaint; (5) excerpts of Plaintiff’s medical records (id. at 19-20); (6) a copy of a document that 4 appears to be Plaintiff’s history of medical prescriptions (id. at 21); (7) an excerpt of a document 5 titled “Defendants’ Response to Plaintiff’s Request for Admissions” (id. at 22); (8) a copy of a 6 document summarizing Plaintiff’s grievance at KCJ regarding discontinuation of his medication 7 (id. at 23-24); (9) various medical records and progress notes pertaining to Plaintiff’s medical 8 treatment (id. at 25-43); (10) copies of NaphCare documents listing the job qualifications for 9 Nurse Practitioner, Medical Director, and Full-Time Medical Director (id. at 44-58); (11) a copy 10 of NaphCare’s Medication Services policy (id. at 59-62); (12) the declaration of Chrystal Thomas 11 (id. at 63-66); (13) copies of Plaintiff’s medical services requests (id. at 67-68); (14) copies of 12 Plaintiff’s progress notes and other medical records (id. at 69-78); and (15) a summary of 13 Plaintiff’s grievance requesting renewal of his shoe chrono (id. at 79-80). 14 B. Kings County Jail’s MSJ 15 Supporting their MSJ, Defendant Kings County Jail submits: (1) a memorandum of points 16 and authorities (Doc. No. 41-1); (2) a statement of undisputed material facts (Doc No. 41-2); (3) 17 the declaration of Captain Chrystal Thomas (Doc. No. 41-3); and (4) the declaration of Matthew 18 Bunting, to which is attached an excerpt of Plaintiff’s deposition testimony (Doc. No. 41-4). 19 In opposition, Plaintiff submits: (1) his own declaration (Doc. No. 43 at 1-2); (2) an 20 excerpt of a document marked “Defendant’s Response to Plaintiff’s Request for Production of 21 Documents” (Set One) (id. at 3-4); and a copy of a letter to Plaintiff from defense attorney James 22 J. Arendt dated March 9, 2023 (id. at 5). 23 II. APPLICABLE LAW 24 A. Summary Judgment Standard 25 The “purpose of summary judgment is to pierce the pleadings and to assess the proof in 26 order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. Ltd. v. Zenith 27 Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). Summary judgment is appropriate 28 when there is “no genuine dispute as to any material fact and the movant is entitled to judgment 1 as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment should be entered “after adequate 2 time for discovery and upon motion, against a party who fails to make a showing sufficient to 3 establish the existence of an element essential to that party’s case, and on which that party will 4 bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The 5 moving party bears the “initial responsibility” of demonstrating the absence of a genuine issue of 6 material fact. Id. at 323. An issue of material fact is genuine only if there is sufficient evidence 7 for a reasonable fact finder to find for the non-moving party, while a fact is material if it “might 8 affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 9 U.S. 242, 248 (1986). 10 If the moving party meets its initial burden, the burden then shifts to the opposing party 11 to present specific facts that show there to be a genuine issue of a material fact. See Fed R. Civ. 12 P. 56(e); Matsushita, 475 U.S. at 586. An opposing party “must do more than simply show that 13 there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 587. The 14 party is required to tender evidence of specific facts in the form of affidavits, and/or admissible 15 discovery material, in support of its contention that a factual dispute exists. Fed. R. Civ. P. 16 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party is not required to establish a 17 material issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be 18 shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” 19 T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 20 1987). However, “failure of proof concerning an essential element of the nonmoving party’s 21 case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. 22 The court must apply standards consistent with Rule 56 to determine whether the 23 moving party demonstrated there is no genuine issue of material fact and showed judgment to be 24 appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). 25 “[A] court ruling on a motion for summary judgment may not engage in credibility 26 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 27 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the 28 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving 1 party. Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002). A mere scintilla 2 of evidence is not sufficient to establish a genuine dispute to defeat an otherwise properly 3 supported summary judgment motion. Anderson v. Liberty Lobby, Inc., 477 U.S. at 252. 4 However, where “opposing parties tell two different stories, one of which is blatantly 5 contradicted by the record” courts “should not adopt that version of the facts for purposes of 6 ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). 7 The Ninth Circuit has “held consistently that courts should construe liberally motion 8 papers and pleadings filed by pro se inmates and should avoid applying summary judgment rules 9 strictly.” Soto v. Sweetman, 882 F.3d 865, 872 (9th Cir. 2018) (quoting Thomas v. Ponder, 611 10 F.3d 1144, 1150 (9th Cir. 2010)). While prisoners are relieved from strict compliance, they still 11 must “identify or submit some competent evidence” to support their claims. Soto, 882 F.3d at 12 872. Plaintiff’s verified complaint may serve as an affidavit in opposition to summary judgment 13 if based on personal knowledge and specific facts admissible in evidence. Lopez v. Smith, 203 14 F.3d 1122, 1132 n. 14 (9th Cir. 2000) (en banc). However, a complaint’s conclusory allegations 15 unsupported by specific facts, will not be sufficient to avoid summary judgment. Arpin v. Santa 16 Clara Valley Transportation Agency, 261 F.3d 912, 922 (9th Cir. 2001). And, where a plaintiff 17 fails to properly challenge the facts asserted by the defendant, the plaintiff may be deemed to 18 have admitted the validity of those facts. See Fed. R. Civ. P. 56(e)(2). 19 The undersigned has carefully reviewed and considered all arguments, points and 20 authorities, declarations, exhibits, statements of undisputed facts and responses thereto, if any, 21 objections, and other papers filed by the parties. The omission to an argument, document, paper, 22 or objection is not to be construed that the undersigned did not consider the argument, document, 23 paper, or objection. Instead, the undersigned thoroughly reviewed and considered the evidence it 24 deemed admissible, material, and appropriate for purposes of issuing these Findings and 25 Recommendations. 26 B. Deliberate Medical Indifference 27 Because it is unclear from the pleadings whether Plaintiff was a prisoner or pretrial 28 detainee at the time of the incidents alleged, the Court sets forth both the legal standards for 1 deliberate medical indifference applicable to prisoners and to pretrial detainees. 2 1. Eighth Amendment Deliberate Medical Indifference 3 Deliberate indifference to the serious medical needs of an incarcerated person constitutes 4 cruel and unusual punishment in violation of the Eighth Amendment. See Estelle v. Gamble, 429 5 U.S. 97, 104 (1976). To maintain an Eighth Amendment claim premised on prison medical 6 treatment, the prisoner must show that officials were deliberately indifferent to his medical needs. 7 A finding of “deliberate indifference” involves an examination of two elements: the seriousness 8 of the plaintiff’s medical need (determined objectively) and the nature of the defendant's response 9 (determined by defendant’s subjective state of mind). See McGuckin v. Smith, 974 F.2d 1050, 10 1059 (9th Cir.1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 11 1133, 1136 (9th Cir.1997) (en banc). On the objective prong, a “serious” medical need exists if 12 the failure to treat “could result in further significant injury” or the “unnecessary and wanton 13 infliction of pain.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014). On the subjective 14 prong, a prison official must know of and disregard a serious risk of harm. Farmer v. Brennan, 15 511 U.S. 825, 837 (1994). Such indifference may appear when a prison official intentionally 16 denies or delays care, or intentionally interferes with treatment once prescribed. Estelle, 429 U.S. 17 at 104-05. 18 If, however, the official failed to recognize a risk to the plaintiff—that is, the official 19 “should have been aware” of a risk, but in fact was not—the official has not violated the Eighth 20 Amendment. Sandoval v. Cnty. of San Diego, 985 F.3d 657, 668 (9th Cir. 2021) (emphasis in 21 original). That is because deliberate indifference is a higher standard than medical malpractice. 22 Thus, a difference of opinion between medical professionals—or between the plaintiff and 23 defendant—generally does not amount to deliberate indifference. See Toguchi v. Chung, 391 24 F.3d 1051, 1057 (9th Cir. 2004). An argument that more should have been done to diagnose or 25 treat a condition generally reflects such differences of opinion and not deliberate indifference. 26 Estelle, 429 U.S. at 107. To prevail on a claim involving choices between alternative courses of 27 treatment, a plaintiff must show that the chosen course “was medically unacceptable under the 28 circumstances,” and was chosen “in conscious disregard of an excessive risk” to the plaintiff’s 1 health. Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016). 2 Neither will an “inadvertent failure to provide medical care” sustain a claim, Estelle, 429 3 U.S. at 105, or even gross negligence, Lemire v. California Dep't of Corr. & Rehab., 726 F.3d 4 1062, 1082 (9th Cir. 2013). Misdiagnosis alone is not a basis for a claim of deliberate medical 5 indifference. Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012). A delay in treatment, 6 without more, is likewise insufficient to state a claim. Shapley v. Nevada Bd. of State Prison 7 Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). It is only when an official both recognizes and 8 disregards a risk of substantial harm that a claim for deliberate indifference exists. Peralta v. 9 Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) (en banc). A plaintiff must also demonstrate harm 10 from the official’s conduct. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). And the 11 defendant’s actions must have been both an actual and proximate cause of this harm. Lemire, 726 12 F.3d at 1074. 13 2. Fourteenth Amendment Deliberate Medical Indifference 14 The Ninth Circuit has held that the objective, not subjective, deliberate indifference 15 standard applies when evaluating a pretrial detainee’s medical care claim. See Gordon v. County 16 of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (holding claims for violations of the right to 17 adequate medical care for pretrial detainees are evaluated under the objective standard set forth in 18 Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016)). The elements of a detainee’s 19 medical care claim under the Fourteenth Amendment are: (1) the defendant made an intentional 20 decision with respect to the conditions under which the plaintiff was confined; (2) those 21 conditions put the plaintiff at substantial risk of suffering serious harm; (3) the defendant did not 22 take reasonable available measures to abate that risk, even though a reasonable official in the 23 circumstances would have appreciated the high degree of risk involved—making the 24 consequences of the defendant’s conduct obvious; and (4) by not taking such measures, the 25 defendant caused plaintiff’s injuries. Gordon, 888 F.3d at 1124-1125. 26 “With respect to the third element, the defendant’s conduct must be objectively 27 unreasonable, a test that will necessarily ‘turn[ ] on the facts and circumstances of each particular 28 case.’” Castro, 833 F.3d at 1071 (quoting Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015); 1 Graham v. Connor, 490 U.S. 386, 396 (1989)). The “‘mere lack of due care by a state official’ 2 does not deprive an individual of life, liberty, or property under the Fourteenth Amendment.” Id. 3 (quoting Daniels v. Williams, 474 U.S. 327 330–31 (1986). Thus, the plaintiff must “prove more 4 than negligence but less than subjective intent—something akin to reckless disregard.” Castro, 5 833 F.3d at 1071. 6 III. ANALYSIS 7 A. Allegations in Plaintiff’s Complaint 8 The events giving rise to the Complaint took place at Kings County Jail and at various 9 offsite medical facilities. (See generally Doc. No. 1). The following allegations are set forth in 10 the Complaint. On January 2, 2020, while Plaintiff was incarcerated at KCJ, Defendant Batchelor 11 discontinued Plaintiff’s pain medication in preparation for an off-site medical appointment on 12 January 7, 2020. (Doc. No. 1 at 3). Plaintiff’s pain medications consisted of Gabapentin 800 mg, 13 Baclofen 20 mg, and Tramadol 50 mg. (Doc. No. 1 at 3). Plaintiff had been taking the 14 medication for up to a year when they were discontinued. (Id.). 15 After being transported to the appointment, Plaintiff learned that the appointment had 16 been cancelled on December 11, 2019, because of insurance issues. (Id.). Plaintiff requested to 17 be put back on his pain medication, but Defendant Batchelor removed Plaintiff from the list of 18 inmates to be seen regarding medical requests. (Id. at 3-4). On January 16, 2020, Plaintiff’s 19 prescription for Tramadol 50 mg and Baclofen 20 mg were renewed, but not his prescription for 20 Gabapentin 800 mg. (Id. at 4). On January 27, 2020, Plaintiff began receiving Gabapentin 800 21 mg. (Id. at 4). On January 29, 2020, Plaintiff’s prescriptions for Baclofen and Tramadol were 22 discontinued. (Id.). On January 30, 2020, Plaintiff’s prescriptions for Baclofen and Tramadol 23 were renewed. (Id.). In total, Plaintiff “was deprived of receiving three (3) of [his] 24 medications[,] one of them for approximately twenty-five (25) days [and the other two] for 25 approximately seventeen (17) days.” (Id.). During this time, Plaintiff “was in chronic pain[,] 26 unable to eat, sleep, or walk.” (Id.). 27 In a second claim, the Complaint alleges that on November 14, 2019, KCJ medical staff 28 informed Plaintiff that his Gabapentin and Tramadol prescriptions were discontinued by 1 Defendant Siddiqi. (Id. at 5). Two days later, Plaintiff met with Defendant Siddiqi and asked 2 him why he discontinued his medication, given Siddiqi’s knowledge of Plaintiff’s numerous 3 medical conditions.4 Siddiqi responded that it was the result of an error and renewed all of 4 Plaintiff’s pain medications. Plaintiff also discussed with Siddiqi the results of an MRI Plaintiff 5 underwent on September 5, 2019. (Id. at 5). Siddiqi asked him, “so what are they going to do for 6 you, are you going to have surgery?” (Id.). Plaintiff shook his head and said, “I need to see a 7 specialist . . . you are not a back or nerve specialist.” (Id.). Siddiqi agreed and said, “one thing at 8 a time. I’m going to put you in for pain management and see if they approve you that’s all I can 9 do.” (Id. at 5-6). The Complaint appears to allege that Defendant Siddiqi was also responsible 10 for Defendant Batchelor’s above alleged failure to provide Plaintiff his pain medication because 11 Siddiqi “over see’s [sic] NP Wendy in all her medical decisions an [sic] either approves or 12 disaproves [sic] of them an signs off on them or corrects them.” (Id. at 6). 13 Plaintiff states because he did not have his pain medication for two days, he “could not 14 eat, sleep or walk.” (Id. at 5). He also suffered physical and emotional pain and could not stand 15 for long periods due to the pain. (Id.). 16 In a third claim, Plaintiff alleges that despite multiple grievances regarding the deficient 17 medical care at Kings County Jail, “KCJ has refused to acknowledge the deficiencies in this 18 medical care system” causing him physical and emotional pain and suffering. (Id. at 7) 19 As relief, Plaintiff seeks “proper medical care for [his] medical condition[,] a spinal 20 surgeon or specialist” and monetary damages of $500,000.00. (Id. at 8). 21 B. Material Facts 22 1. Undisputed Material Facts 23 Having reviewed the record, the undersigned finds the following facts to be material and 24 undisputed, unless otherwise noted. The Court notes that Defendants included in their statement 25 of undisputed material facts an extensive recitation of the medical care Plaintiff received while at 26 4 The Complaint notes that in 2005 Plaintiff’s left kidney was removed. (Doc. No. 1 at 5). In 2007 he had 27 back surgery on his “L-4.” (Id.). In 2016 Plaintiff had a heart attack and two stents installed. (Id.). He also suffers from disc protrusions in his back. (Id.). As a result of these various conditions, Plaintiff is in 28 chronic pain and walks with a cane. (Id.). 1 KCJ beginning in January 2019. (See generally Doc. No. 40-2). Given that the events giving rise 2 to Plaintiff’s claims took place between November 14, 2019 and January 30, 2020, Plaintiff’s 3 preceding medical treatment history at KCJ is of only limited relevance and the Court thus does 4 not find each of the referenced treatment appointments and prescriptions to be material here. 5 • On January 9, 2019, KCJ medical staff diagnosed Plaintiff with hypertension, 6 chronic pain, and neuropathy. (Id.). A KCJ nurse prescribed gabapentin 400 mg 7 twice a day for 90 days and baclofen 10 mg every night, or as needed for pain. (Id. 8 at 61). She also approved Plaintiff’s request for a shoe chrono. (Id.). 9 • Between January 2019 and May 2020, Plaintiff submitted various medical requests 10 related to his back pain, sciatic nerve, chronic pain, and chest pain. (See Doc. No. 11 40-6 at 2, 3, 5, 7, 8, 12-14, 16, 18). 12 • In response to his requests, Plaintiff saw medical providers on at least 26 occasions 13 between January 2019 and May 2020, including routine examinations, spinal MRI, 14 two emergency room visits, and various appointments with nurse practitioners, a 15 licensed vocational nurse, a social worker, and primary care physicians. (See 16 generally id.). 17 • In response to Plaintiff’s reports of various forms of physical pain, numerous KCJ 18 medical providers, including Defendants Batchelor and Siddiqi, prescribed or 19 adjusted Plaintiff’s prescription for pain medication—including Acetaminophen, 20 Tramadol, Baclofen, and Gabapentin—on more than 40 occasions. (Id.). 21 • On August 23, 2019, Dr. Siddiqi saw Plaintiff for a chronic care visit. (Id. at 106- 22 113). Dr. Siddiqi performed a neurological examination which was normal. (Id. at 23 109-110). Dr. Siddiqi noted Plaintiff walked with a cane, shifting his weight to the 24 right leg. There was slight restriction of the range of motion of the left leg. (Id. at 25 110). Dr. Siddiqi ordered an x-ray and an MRI of Plaintiff’s lumbar spine. (Id. at 26 69). 27 • On September 5, 2019, Dr. William Taylor reviewed the MRI of Plaintiff’s lumbar 28 spine. (Id. at 10-11). His impression was a 3 mm left subarticular disc protrusion 1 at L1-2 and a 5 mm left foraminal disc protrusion at L5-S1 with slight posterior 2 displacement of the descending left S1 nerve root. (Id.). 3 • On November 21, 2019, Plaintiff submitted a medical request stating he did not 4 understand why his gabapentin and tramadol were discontinued. (Id. at 13). Mr. 5 Ignacio advised Plaintiff he would be added to the Medical Provider Sick Call. 6 (Id.). Per the Medication Administration records, Plaintiff received both 7 gabapentin and tramadol on November 21, 2019 at 12:47 AM. (Id. at 57). 8 Plaintiff received gabapentin on November 22, 23, and 24, 2019, but one 9 administration was cancelled on November 24, 2019. (Id. at 58-59). Tramadol 10 was resumed on November 23, 2019. (Id. at 58-59). 11 • On November 23, 2019, Dr. Siddiqi saw Plaintiff for complaints of lower back 12 pain. (Id. at 71-72). Dr. Siddiqi examined Plaintiff and noted he was walking with 13 a cane. (Id. at 72). He reviewed the MRI of the lumbar spine from September 5, 14 2019. (Id.). He noted there were disc protrusions at different levels. (Id.). He 15 ordered gabapentin 800 mg, three times a day and tramadol 50 mg, three times a 16 day. (Id. at 53). Dr. Siddiqi educated Plaintiff on back exercises. (Id. at p. 73). 17 • On November 29, 2019, Robynn Weston, a nurse practitioner, ordered baclofen 20 18 mg, twice a day. (Id. at 54). On December 2, 2019, Dr. Siddiqi ordered tramadol 19 50 mg, three times a day. (Id.). 20 • On December 4, 2019, Plaintiff was transported to see Kenneth Ejiogu, a nurse 21 practitioner at LAGS Medical Center, after complaining of ongoing back pain. 22 (Id. at 36-43). Mr. Ejiogu performed a physical examination. (Id. at 40-41). 23 Nurse Ejiogu’s assessments were lumbago, radicular neuropathy, chronic pain 24 syndrome, and long-term opiate analgesic use. (Id. at 41). He noted Plaintiff was 25 currently taking gabapentin 800 mg 1 tablet orally once a day, tramadol 50 mg 2 26 tablets every eight hours, and baclofen 10 mg 1 tablet orally twice a day. (Id. at 27 42). He planned to start Plaintiff on tramadol 50 mg four times and baclofen 10 28 mg three times a day. (Id.). The plan also included an epidural spinal block to 1 decrease inflammation of the nerve root. (Id.). 2 • On December 5, 2019, Ms. Batchelor ordered tramadol 50 mg, four times a day, 3 and baclofen 20 mg, three times a day. (Id. at p. 256). On December 23, 2019, Ms. 4 Batchelor ordered gabapentin 800 mg, three times a day. (Id. at 54). 5 • On January 2, 2020, Chantal Miranda, a medical assistant, noted that per the office 6 staff at LAGS Medical Center in Fresno, all pain medication was to be withheld, 7 including aspirin, for five days beginning today for Plaintiff's epidural injection on 8 January 7, 2020. (Id. at 72). Plaintiff submits this information was not verified by 9 Miranda on January 2, 2020, but this does not contradict with Defendants’ 10 statement, which merely asserts that Miranda’s note in the file was entered on 11 January 2, 2020. 12 • On January 3, 2020, Tiffany Mendonca, a licensed vocational nurse, noted 13 Plaintiff’s pain medications were discontinued the prior day due to an upcoming 14 appointment. (Id. at 72-73). During a medication pass in the morning, Plaintiff 15 complained of nausea, vomiting, diarrhea, chills, and pain. (Id. at 72). Ms. 16 Mendonca noted Plaintiff was pale, and the hairs were raised on both arms. (Id.). 17 Plaintiff reported he did not understand why he could not have anything for his 18 back. (Id.). Ms. Mendonca advised him the medications were being withheld 19 based on the directives of the specialist for his upcoming appointment. (Id.). 20 Plaintiff also complained about how he felt and said “if this is what those meds are 21 doing to me, then I don't want to take them anymore. I would rather take 22 something else that won’t make me feel this way. I hate this feeling, this ain’t 23 me.” (Id. at 72-73). 24 • On January 7, 2020, Ms. Batchelor noted that per Plaintiff’s consulting physician, 25 his pain medications had been withheld for five days pending his appointment 26 scheduled for January 7, 2020. (Id. at 73). However, the appointment had been 27 rescheduled by the specialist to January 15, 2020. (Id.). The plan was to resume 28 medications until January 10, 2020. (Id.). Batchelor ordered gabapentin 800 mg, 1 three times a day. (Id. at 54). 2 • On January 10, 2020, Plaintiff submitted a request for renewal of his medication. 3 (Id. at 14). He noted: “I don't understand why you would discontinue my heart 4 medication for no just cause or reason. Please renew them. Also, my gabapentin, 5 tramadol, an [sic] baclofen. Why do you continue to do this for no reason is 6 wrong. I’m in chronic pain do [sic] to your wrong doings. Please renew them.” 7 (Id.). 8 • On January 11, 2020, William Tejereso, a registered nurse, entered a message to 9 StatCare to restart the pain medications that were discontinued for the epidural 10 injection. (Id. at 73). On January 12, 2020, Mr. Huls responded to Plaintiff’s 11 request for medication renewal indicating Plaintiff was ordered to have no pain 12 medications and to see a pain management specialist. (Id. at 14). 13 • On January 15, 2020, Plaintiff was transported to Mr. Ejiogu for a follow-up 14 appointment. (Id. at 29-35). Mr. Ejiogu performed a physical examination and 15 noted normal thoracolumbar range of motion with positive testing on the left side. 16 (Id. at 33). Plaintiff was taking gabapentin 800 mg 1 tablet orally once a day, 17 tramadol 50 mg 1 tablet four times a day, and baclofen 10 mg 1 tablet orally three 18 times a day. (Id. at 31). The epidural injection was canceled and rescheduled for 19 February 4, 2020. (Id. at 34). The plan was to renew the tramadol and baclofen. 20 (Id.). Mr. Ejiogu also ordered Plaintiff to have an electromyelogram (EMG) to 21 evaluate radicular neuropathy. (Id.). 22 • On January 15, 2020, Ms. Batchelor ordered tramadol 50 mg, three times a day, 23 and baclofen 10 mg, three times a day. (Id. at 54). 24 • On January 21, 2020, Plaintiff was transported to Dr. Mahendra Nath, a physical 25 medicine and rehabilitation specialist, for an EMG. (Id. at 15). Plaintiff 26 complained of lower back pain that radiated to the bilateral lower extremities, left 27 greater than right. (Id.). He also had been experiencing paresthesia, shocking, and 28 burning in the bilateral lower extremities, left greater than right. (Id.). Dr. Nath 1 noted Plaintiff had lumbar surgery in 2005. (Id.). Dr. Nath performed a physical 2 examination and noted the sensation was intact to light touch bilaterally in the 3 lower extremities. (Id.). Dr. Nath performed an EMG. His impressions were a 4 normal bilateral lower nerve conduction study and bilateral lower needle EMG; 5 there was no electrodiagnostic evidence of large fiber peripheral polyneuropathy. 6 (Id.). 7 • On January 26, 2020, Ms. Mendonca noted Plaintiff was asking why his 8 gabapentin had not been restarted. (Id. at 6). He complained of pain to his left leg 9 and stated he could not put weight on it. (Id.). He also complained of leg tremors. 10 (Id.). Ms. Mendonca advised Plaintiff he was on the list to see a provider. (Id.). 11 On January 27, 2020, the next day, Ms. Batchelor ordered gabapentin 800 mg, 12 three times a day. (Id. at 54). 13 • On January 29, 2020, Plaintiff submitted a medical request for renewal of his 14 tramadol and baclofen. (Id. at 16). Mr. Huls advised Plaintiff the medications had 15 been ordered for two weeks and he would be added to the Medical Provider Sick 16 Call. (Id.). 17 • On January 30, 2020, Plaintiff submitted a medical request to see a physician or a 18 nurse practitioner for his back problems. (Id. at 17). Mr. Ignacio advised Plaintiff 19 his medications (baclofen and tramadol) were restarted on January 30, 2020. (Id.). 20 Stephanie Ramirez, a medical assistant, entered a note that LAGS Surgery Center 21 called with instructions on the upcoming appointment for the epidural injection. 22 (Id. at 73). Ms. Batchelor ordered tramadol 50 mg, three times a day, and baclofen 23 10 mg, three times a day. (Id. at 55). 24 • On February 4, 2020, Ms. Ramirez noted transport called and advised her 25 Plaintiff's epidural injection scheduled for February 4, 2020 needed to be 26 rescheduled due to shortage of staff. (Id. at 73). Ms. Ramirez rescheduled the 27 procedure. (Id.). 28 • On February 13, 2020, Ms. Mendonca noted Plaintiff’s tramadol and baclofen 1 prescriptions had expired. (Id. at 74). She spoke to Ms. Batchelor who gave a 2 verbal authorization to refill the medications if there were no conflicting offsite 3 appointments scheduled. (Id.). Ms. Mendonca confirmed with Ms. Ramirez that 4 Plaintiff had an upcoming appointment and could not have baclofen but could 5 have tramadol. (Id.). Ms. Batchelor ordered tramadol 50 mg, three times a day. 6 (Id. at 55). 7 • On February 20, 2020, Plaintiff was transported to see Dr. Thomas Jacques, who 8 performed left L5 and S1 transforaminal epidural injections. (Id. at 26-28). 9 Plaintiff reported pre-operative pain as 8/10 and post-operative pain as 0/10. (Id. 10 at 27). 11 • On February 20, 2020, Ms. Batchelor noted Plaintiff returned from his offsite visit. 12 (Id. at 74-75). The plan was to continue the previous medications. (Id. at 74). 13 She ordered baclofen 20 mg, three times a day; tramadol 50 mg, four times a day; 14 and gabapentin 800 mg, three times a day. (Id. at 55). On February 26, 2020, Ms. 15 Batchelor ordered gabapentin 800 mg, three times a day. (Id.). 16 • On February 28, 2020, Plaintiff was transported to Tilksew Tedla, a nurse 17 practitioner who specialized in pain management, for a follow-up. (Id. at 19-25). 18 Plaintiff stated that his pain without medications was a 10/10 and 6/10 with 19 medications. (Id. at 20). He was taking gabapentin 800 mg 1 tablet orally once a 20 day, tramadol 50 mg 1 tablet four times a day, and baclofen 10 mg 1 tablet orally 21 three times a day. (Id. at 22). Ms. Tedla performed a physical examination. (Id. 22 at 23-24). Her assessment was lumbar radiculopathy and small fiber neuropathy. 23 (Id. at 24). She recommended baclofen 20 mg, three times a day, and tramadol 24 50mg, four times a day. (Id.). She directed Plaintiff to follow-up in four weeks. 25 (Id.). 26 • On February 28, 2020, Marsha Burgess, a nurse practitioner, ordered tramadol 50 27 mg, four times a day, and baclofen 20 mg, three times a day. (Id. at 55). 28 • On March 9, 2020, Plaintiff submitted a request for renewal of tramadol. (Id. at 1 18). Mr. Huls advised he would be added to the Medical Provider Sick Call. (Id.). 2 On March 11, 2020, Ms. Batchelor ordered tramadol 50 mg four times a day. (Id. 3 at 55). 4 • On March 27, 2020, Plaintiff was transported to see Mr. Ejiogu for a follow-up. 5 (Id. at 44-45). Plaintiff complained of increased pain. (Id. at 45). Mr. Ejiogu 6 recommended increasing tramadol to 100 mg three times a day, and continued 7 baclofen and gabapentin. (Id.). Additionally, he recommended physical therapy. 8 (Id.). 9 • On March 27, 2020, Ms. Batchelor ordered gabapentin 800 mg, three times a day. 10 (Id. at 55). Casey Gladney, a nurse practitioner, ordered tramadol 50 mg, two 11 tablets three times a day. (Id.). On March 30, 2020, Ms. Batchelor ordered 12 baclofen 20 mg, three times a day. (Id.). 13 • On April 1, 2020, Ms. Batchelor ordered tramadol 50 mg, two tablets three times a 14 day. (Id. at 55). 15 • On April 26, 2020, Ms. Batchelor ordered gabapentin 800 mg, three times a day. 16 (Id. at 55). On April 30, 2020, she ordered baclofen 20 mg, three times a day. 17 (Id.). 18 • On May 20, 2020, Ms. Batchelor noted Plaintiff's offsite visit for pain 19 management was delayed due to COVID-19 restrictions. (Id. at 76). She noted 20 Plaintiff’s pain continued to be managed with medications. (Id.). The plan was 21 for the referral to be deferred for four weeks. (Id.) 22 • On May 20, 2020, Nicole Cotton, a licensed vocational nurse, saw Plaintiff for 23 complaints of low back pain, worse with ambulation and standing. (Id.). Plaintiff 24 reported he was unable to ambulate without assistance and rated his pain 10/10. 25 (Id.). Ms. Cotton spoke to Ms. Batchelor who ordered a ketorolac injection. (Id. 26 at 56). Ms. Cotton administered the injection to the left and right gluteus 27 maximus. (Id. at 76). 28 • On May 26, 2020, Ms. Batchelor ordered gabapentin 800 mg, three times a day. 1 (Id. at 56). On May 31, 2020, Ms. Batchelor ordered baclofen 20 mg, three times 2 a day. (Id.). 3 2. Plaintiff’s Statement of Disputed Facts 4 Plaintiff’s Opposition points to various factual discrepancies or procedural issues that he 5 alleges establish a genuine dispute of material fact. For the reasons discussed further below, the 6 Court finds Plaintiff’s statements do not set forth a genuine dispute as to any material fact. 7 • Plaintiff contends Defendants Batchelor and Siddiqi’s Motion for Summary 8 Judgment was untimely filed because under Rule 56(c) a motion for summary 9 judgment can be made up to 30 days after close of discovery and the close of 10 discovery in this case was 1/20/2023. (Doc. No. 44 at 4 ¶ 1). The Court notes that 11 it has the inherent authority to establish case management deadlines for the cases 12 on its docket. The Discovery and Scheduling Order issued in this case, issued on 13 May 23, 2020, set the deadline for dispositive motions on April 20, 2023. (See 14 Doc. No. 36). Because all Defendants filed their MSJs by the April 20, 2023 15 deadline, (see Docket), the respective MSJs were timely. 16 • Plaintiff states he had a deposition5 at KCJ and complains that Defendants failed to 17 provide him with a copy of this deposition. Plaintiff claims the deposition “could 18 [have] been helpful during these proceedings.” (Id. ¶ 2). This is not a material fact 19 bearing on whether Defendants violated Plaintiff’s constitutional right, while 20 incarcerated at KCJ, to adequate medical care. Notably, no Defendant cites to 21 Plaintiff’s deposition or attaches excerpts from it that Plaintiff needs to refute. See 22 Local Rule 133(j). Accordingly, whether Plaintiff was provided with a copy of his 23 deposition transcript does not set forth a genuine dispute of material fact. Further, 24 Plaintiff did not in discovery seek to compel Defendants to produce a copy of his 25 deposition transcript. Moreover, even if he had, such motion likely would have 26 been denied. Plaintiff’s in forma pauperis status does not entitle him to a free 27 28 5 Plaintiff refers to this as a “disposition hearing” but the Court infers he is referring to a deposition. 1 copy of his deposition transcript.6 2 • On January 18, 2019, Dr. Siddiqi noted Plaintiff requested gel cushion technology 3 insoles, which Dr. Siddiqi recommended. (Doc. No. 40-6 at 4). Defendants state 4 that Defendant Siddiqi “approved” the gel cushion insoles. (Doc. No. 40-2 at 2 ¶ 5 3). Plaintiff disputes this characterization, noting that his medical records reflect 6 only that Siddiqi “recommended” the gel cushion technology insoles. (Doc. No. 7 44 at 4 ¶ 3). The Complaint does not assert a claim based on Plaintiff’s request for 8 gel cushion insoles. (See generally Doc. No. 1). Thus, Plaintiff’s statement does 9 not set forth a genuine dispute of material fact. 10 • Plaintiff claims on June 21, 2019, Siddiqi stated he would refer Plaintiff for a 11 neurosurgery consult. However, there is no documentation in Plaintiff’s medical 12 records of Plaintiff ever being scheduled to see a neurosurgeon or a referral for 13 one. (Id. ¶ 4). The Complaint does not cite Defendant Siddiqi’s alleged failure to 14 order a neurosurgery consult as a basis for a constitutional claim. (See generally 15 Doc. No. 1). Thus, Plaintiff’s statement does not set forth a genuine dispute of 16 material fact. 17 • Plaintiff disputes that he received gabapentin and tramadol on November 21, 2019 18 and beyond November 23, 2019. (Id. ¶ 5). He points to a limited excerpt of his 19 drug order records, but this is contradicted by the more complete records of drug 20 administrations, which show the time and date that Plaintiff was administered 21 various prescribed drugs. These records show that Plaintiff received both 22 gabapentin and tramadol on November 21, 2019 at 12:47 AM. (Id. at 57). 23 Plaintiff also received gabapentin on November 22, 23, and 24, 2019, but one 24 administration was cancelled on November 24, 2019. (Id. at 58-59). Tramadol 25 6 See Tedder v. Odel, 890 F.2d 210, 212 (9th Cir. 1989) (finding plain language of § 1915 did not waive 26 payment of fees or expenses for witnesses); see also Boston v. Garcia, 2013 WL 1165062 *2 (March 20, 2013) (denying inmate plaintiff’s motion for free copy of deposition transcript at the discovery stage of the 27 proceedings); Joseph v. Parciasepe, 2016 WL 2743448 *4 (E.D. Ca. May 11, 2016) (denying motion to compel production of deposition transcript for free at the discovery stage of the proceedings). 28 1 was resumed on November 23, 2019. (Id. at 58-59). Thus, there is no genuine 2 dispute that Plaintiff received the drugs as Defendants attests. 3 • Plaintiff contends that his January 7, 2020 appointment was never verified nor 4 confirmed before his pain medications were discontinued. (Id. ¶ 6). Failure to 5 verify an appointment does not demonstrate deliberate indifference. Nor does the 6 operative pleading assert facts showing it was Defendant Batchelor’s responsibility 7 to reconfirm the appointment, or that she received notice of the cancellation and 8 intentionally disregarded it. 9 • Plaintiff contends that Defendants have not pointed to any documentation showing 10 that Plaintiff’s procedure appointment was rescheduled to January 15, 2020. “NP 11 Wendy knew Plaintiff had a follow up appointment for pain management in the 12 city of Hanford on January 15, 2020 and not a procedure appointment.” (Id. ¶ 7). 13 However, contemporaneous notes in the record show that Plaintiff’s appointment 14 was rescheduled to January 15, 2020. And that it was later again rescheduled. 15 • Plaintiff notes that, although Nurse Tejereso put him on the priority list to be seen 16 regarding his request for pain medication, “Plaintiff was never seen.” (Id. ¶ 8). 17 Even if true, this fact is not a material because it does not demonstrate deliberate 18 indifference on the part of either named Defendant. Further, this fact does not 19 appear disputed because Defendants did not say they saw him on that date, only 20 that the nurse put him on the priority list. 21 For the reasons set forth above, the discrepancies Plaintiff points out between his statement of 22 facts and that of Defendants Batchelor and Siddiqi do not, standing alone, establish a genuine 23 dispute as to any fact material to the claims alleged. 24 C. Defendant’s Proposed Expert Testimony 25 Defendants refer to Dr. Alfred Joshua’s opinion testimony as “expert” testimony seeks to 26 qualify him as an expert based on his education, background, training, knowledge, and substantial 27 experience, coupled with his review of Plaintiff’s medical records. (Doc. No. 40-3 at 2). Federal 28 Rule of Evidence 702 governs the admissibility of expert testimony and provides: 1 A witness who is qualified as an expert by knowledge, skill, experience, training, or 2 education may testify if the form of an opinion or otherwise if: 3 (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine 4 a fact in issue; 5 (b) the testimony is based upon sufficient facts or data; 6 (c) the testimony is the product of reliable principles and methods; and 7 (d) the witness has reliably applied the principles and methods to 8 the facts of the case. 9 Fed. R. Evid. 702. Rule 702 requires that expert testimony be both “reliable and relevant” 10 whether based on scientific, technical, or other specialized knowledge.” Kumho Tire Co., Ltd. v. 11 Carmichael, 526 U.S. 137, 149 (1999). 12 Dr. Joshua is licensed in California as a physician and surgeon and has been board 13 certified in Emergency Medicine since 2012. (Doc. No. 40-7 at 2). He has experience as an 14 emergency medicine physician, in primary care, and in correctional medicine and administration, 15 including serving as Chief Medical Officer for the San Diego County Sheriff’s Medical Services 16 Division. (Id. at 2-3). He received a Certification for Certified Correctional Health Care 17 Professional from the National Commission of Correctional Healthcare. (Id. at 2). Dr. Joshua 18 has an extensive list of presentations, publications, including books, and has testified or been 19 deposed as an expert (and not disqualified) in 33 different federal actions in the last four years. 20 (Id. at 3-6). In formulating his opinions, Dr. Joshua relied upon his education, training, 21 knowledge, and professional experience in the correctional healthcare field, and reviewed the 22 following materials: (1) the Complaint; (2) the National Commission of Correctional Health 23 Standards, Jails 2018; (3) Naphcare Medical Records; and (4) the Screening Order in Plaintiff’s 24 case. (Id. at 6). 25 Dr. Joshua opines that: 26 Mr. John Anthony Reyna received not only the standard of care while he was incarcerated at Kings County Jail but also Naphcare 27 and its providers which included Dr. Nareem Siddiqi and Nurse Practitioner Wendy Bachelor acted reasonably and purposefully and 28 did not show any indifference or deviations to the standard of care 1 with respect to the medication and clinical management of Mr. Reyna. It is also clear based on the medical notes that the clinical 2 actions taken by NP Wendy Batchelor were based on the recommendations of the surgeon at the offsite clinic so that the 3 lumbar epidural injection could be completed to alleviate Mr. Reyna’s lumbar back pain. 4 Id. at 8. Other than referring to Dr. Joshua as a “high priced” witness offering a “one-sided 5 opinion,” Plaintiff does not challenge Dr. Joshua’s qualification as an expert of his testimony 6 under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). 7 The Court finds Dr. Joshua’s education, training, credentials, and experience qualifies him 8 as an expert. The Court further finds Dr. Joshua’s testimony set forth in his declaration both 9 relevant and admissible. Thus, the Court accepts Dr. Joshua’s opinion as expert testimony under 10 Federal Rules of Evidence 702 as to whether the medical care Defendants provided Plaintiff was 11 appropriate and met the standard of care. 12 D. Neither Dr. Siddiqi nor Nurse Batchelor Acted with Deliberate Indifference 13 The undersigned first must consider whether Defendants, as the moving parties, have met 14 their initial burden of showing prima facie entitlement to summary judgment on the issue of 15 Plaintiff’s medical deliberate indifference claim. Celotex Corp., 477 U.S at 323. The prima facie 16 elements of medical deliberate indifference are: (1) a “serious medical need[,] [where] failure to 17 treat a prisoner’s condition could result in further significant injury or the unnecessary and 18 wanton infliction of pain” and (2) the defendant’s “response to the need was deliberately 19 indifferent.” Wilhelm, 680 F.3d at 1122 (internal quotation marks and citation omitted). The 20 second prong is satisfied by showing “(a) a purposeful act or failure to respond to a prisoner’s 21 pain or possible medical need and (b) harm caused by the indifference.” Jett, 439 F.3d at 1096 22 (internal citations omitted). 23 Alternatively, because it is unclear whether Plaintiff was a pretrial detainee at the time of 24 the events alleged, Plaintiff may be able to state a Fourteenth Amendment claim by demonstrating 25 that (1) the defendant made an intentional decision with respect to the conditions under which the 26 plaintiff was confined; (2) those conditions put the plaintiff at substantial risk of suffering serious 27 harm; (3) the defendant did not take reasonable available measures to abate that risk, even though 28 1 a reasonable official in the circumstances would have appreciated the high degree of risk 2 involved—making the consequences of the defendant’s conduct obvious; and (4) by not taking 3 such measures, the defendant caused plaintiff’s injuries. Gordon, 888 F.3d at 1124-1125. 4 As set forth more fully below, the Complaint fails to show a genuine dispute of material 5 fact under either standard. Accordingly, the undersigned will recommend Defendants’ motions 6 for summary judgment. 7 1. Serious Medical Need 8 A serious medical need is evidenced by “the existence of an injury that a reasonable 9 doctor or patient would find important and worthy of comment or treatment; the presence of a 10 medical condition that significantly affects an individual’s daily activities; or the existence of 11 chronic and substantial pain are examples of indications that a prisoner has a ‘serious’ need for 12 medical treatment.” McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on 13 other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). Here, the 14 parties do not appear to dispute that Plaintiff had an ongoing serious medical need, particularly 15 chronic pain related his displaced discs and sciatica, along with various other physical ailments. 16 (See Doc. No. 1 at 5). These conditions were documented to varying degrees beginning in 17 January 2019, when Plaintiff was first incarcerated at KCJ. Voluminous entries in Plaintiff’s 18 medical records reflect that these conditions were well-known to KCJ medical staff, including 19 Defendants, and that Plaintiff was prescribed pain medication, ordered diagnostics, and provided 20 other treatment over the course of months. (See generally Doc. No. 40-6). When viewed in the 21 light most favorable to Plaintiff, a reasonable jury therefore could find that Plaintiff had a serious 22 medical need resulting from his back condition and other health problems. 23 2. Deliberate Indifference 24 However, the second prong of medical deliberate indifference—failure to respond to a 25 prisoner’s pain, resulting in harm—is absent from the record. Jett, 439 F.3d at 1096. A 26 defendant “cannot be said to have been indifferent” to an inmate’s pain if they took steps to 27 address it.” DeGeorge v. Mindoro, 2019 WL 2123590, at *7 (N.D. Cal. May 15, 2019). Here, 28 Defendants indisputably took steps to address Plaintiff’s complaints of pain. Plaintiff received 1 more than two dozen medical appointments from January 2019 to May 2020, including 2 emergency treatment for chest pain, an MRI of his spine, numerous prescriptions for pain 3 medication, and many routine care visits in response to his medical requests. Dr. Siddiqi and 4 Nurse Batchelor each ordered pain medication for Plaintiff on several occasions, as well as other 5 forms of specialized and follow-up care. (See generally Doc. No. 40-6). 6 While the record reflects isolated occasions in November 2019 and January 2020 when 7 Plaintiff did not receive one or more of his usually prescribed pain medications, these instances 8 do not demonstrate deliberate indifference on the part of either Defendants. When Plaintiff’s pain 9 medications were discontinued on or about November 21, 2019, he filed a request for renewal of 10 his prescriptions and Defendant Siddiqi promptly responded two days later. (Doc. No. 1 at 5). 11 Taking Plaintiff’s’ account as true, Siddiqi apologized and attributed the discontinuation to an 12 error. (Id.). An “inadvertent [or negligent] failure to provide adequate medical care” alone does 13 not state a claim under § 1983. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal 14 citations omitted). Because the undisputed facts reflect that Plaintiff’s pain medications lapsed 15 for two days due to an error, and then Defendant Siddiqi promptly renewed them, the Complaint 16 fails to demonstrate a genuine dispute as to whether Defendant Siddiqi was deliberately 17 indifferent to a serious medical condition. Thus, the undersigned recommends dismissal of 18 Plaintiff’s Eighth Amendment claim against Defendant Siddiqi. 19 The Complaint alleges that Defendant Batchelor was deliberately indifferent to his serious 20 medical need under various theories. First, Plaintiff contends that she should have verified that 21 his January 7, 2020 appointment had not been cancelled before discontinuing his pain 22 medications on January 2, 2020. (Doc. No. 44 at 8) (“If defendant’s [sic] Wendy Batchelor or 23 Naeem Sidiqi would have followed up and confirm [sic] the Plaintiff’s appointment on January 7, 24 2020 . . . defendants would have known Plaintiff’s appointment was cancelled on December 11, 25 2019”). Plaintiff suggests the failure to do so was inconsistent with NaphCare policy. (Id.). 26 However, the Court does not find in the attached policy any statement to that effect. And if it did, 27 a mere failure by staff collectively to reconfirm Plaintiff’s appointment would amount at most to 28 negligence. There are no facts indicating that Defendant Batchelor knew Plaintiff’s appointment 1 had been cancelled on January 2, 2020, when she temporarily discontinued Plaintiff’s pain 2 medication for the anticipated appointment. Further, when it came to light that Plaintiff’s January 3 7, 2020 appointment had been rescheduled to January 15, 2020, Defendant Batchelor immediately 4 renewed Plaintiff’s gabapentin 800 mg prescription through January 9, 2020, allowing Plaintiff 5 the prescribed five days without pain medication prior to his scheduled lumbar epidural injection. 6 (See Doc. No. 40-6 at 54). After Plaintiff’s injection was rescheduled again to February 4, 2020, 7 (see id. at 34), on January 15, 2020 Defendant Batchelor promptly renewed Plaintiff’s 8 prescriptions for gabapentin, baclofen, and tramadol through January 28, 2020, again allowing the 9 prescribed five days prior to the scheduled epidural injection. (See id. at 54). Thus, her actions 10 reflect diligence in ensuring Plaintiff would retain access to his prescribed pain medication. 11 According to Plaintiff, he was receiving tramadol and baclofen from January 16 until 12 January 29, 2020, when they were discontinued for one day and resumed on January 30, 2020. 13 (Doc. No. 1 at 4). Plaintiff did not receive his prescribed gabapentin from January 16 until 14 January 27, 2020, despite Defendant Batchelor having ordered them. (See id; Doc. No. 40-6 at 15 54). Plaintiff alleges that Defendant Batchelor cancelled various appointments he made during 16 this time to see her about his medication. (Doc. No. 1 at 4). Plaintiff apparently attributes the 17 fact that he did not receive all his pain medications during this time to Defendant Batchelor’s 18 actions. However, the record reflects that Batchelor took steps to ensure Plaintiff promptly 19 received continued access to all three of his prescribed pain medication, including promptly 20 ordered renewals after his offsite appointments. (See Doc. No. 40-6 at 54). The facts do not 21 reflect that Plaintiff’s failure to receive the medications was due to any deliberate indifference on 22 Defendant Batchelor’s part. Nor is there any indication that Defendant Batchelor alone had 23 authority to ensure Plaintiff timely received the medication. Rather, the pleadings reflect that 24 while a medical provider such as Defendant Batchelor could order medications, they had to be 25 approved by additional decision-makers, and thus could be subject to delays. (See, e.g., Doc. No. 26 1 at 6) (quoting Siddiqi as stating, “I’m going to put you in for pain management and see if they 27 approve you.”); (see also Doc. No. 44 at 7) (registered nurse Huls advising Plaintiff that his 28 medication had been ordered for more than two weeks but had not yet come through). 1 The overwhelming record evidence shows that Defendants Batchelor and Siddiqi provided 2 attentive medical care to Plaintiff prior to, during, and after the period when he was briefly unable 3 to access some of his pain medication, including promptly renewing his medication when it was 4 inadvertently discontinued or paused due to rescheduling of his off-site appointment. This is 5 consistent with Dr. Joshua’s expert opinion. Taken together, the record refutes Plaintiff’s claim 6 of medical deliberate indifference. Defendants are accordingly entitled to summary judgment as 7 to an Eighth Amendment deliberate medical indifference claim. 8 Nor does the alleged conduct rise to the level sufficient to state a claim under the arguably 9 more lenient Fourteenth Amendment standard. Critically, the facts do not reflect that Defendants 10 Siddiqi or Batchelor failed to take reasonable available measures to abate the risk of harm or 11 suffering from Plaintiff’s chronic medical conditions. Indeed, the same facts cited above indicate 12 that both Defendants responded promptly to ensure Plaintiff’s prescribed medications were 13 continued any time they were at risk of lapsing or had been inadvertently discontinued due to 14 impending outside medical appointments that were cancelled and rescheduled. Thus, Defendants 15 Siddiqi and Batchelor are entitled to summary judgment as to a Fourteenth Amendment claim. 16 E. Monell Claim 17 To establish municipal liability, a plaintiff must prove that (1) he or she was deprived of a 18 constitutional right; (2) the municipality had a policy; (3) the policy amounted to deliberate 19 indifference to a plaintiff’s constitutional right; and (4) the policy was the “moving force” behind 20 the constitutional violation. Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). 21 While Monell claims of municipal liability do not arise from a respondeat superior theory, 22 Monell, 436 U.S. at 691, such claims still require that Plaintiff demonstrate a predicate violation 23 of constitutional rights. Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 1994) (holding that 24 “municipal defendants cannot be held liable because no constitutional violation occurred”); see 25 also City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (finding if no individual claim 26 against police officer remains, then no liability on city and the Police Commission). 27 Here, the undersigned recommends that Defendant KCJ’s Motion for Summary Judgment 28 be granted because the record does not contain any genuine issue of material fact concerning 1 | Plaintiff's Eighth Amendment/Fourteenth Amendment deliberate indifference to a serious 2 | medical condition claim as to Dr. Siddiqi and Ms. Batchelor. Thus, because no “underlying 3 | constitutional violation” is present, Plaintiff's Monell claim fails as a matter of law. 4 Accordingly, it is RECOMMENDED: 5 1. The district court GRANT Defendants Batchelor and Siddiqi’s motion for summary 6 | judgment (Doc. No. 40). 7 2. The district court GRANT Defendant King County Jails’ motion for summary 8 | judgment (Doc. No. 41). 9 3. The district court enter judgment in favor of all Defendants and against Plaintiff and 10 | close this case. 11 NOTICE TO PARTIES 12 These findings and recommendations will be submitted to the United States District Judge 13 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 14 | days after being served with these findings and recommendations, a party may file written 15 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 16 | Findings and Recommendations.” Parties are advised that failure to file objections within the 17 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 18 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 20 Dated: _ December 18, 2023 law ZA. foareh Zackte 21 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 26