(PC) Turner v. Zepp ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 VINCENT TURNER, Case No. 1:20-cv-00184-AWI-EPG (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANTS’ 13 v. MOTIONS FOR SUMMARY JUDGMENT BE GRANTED 14 ANDREW ZEPP, et al., (ECF Nos. 72, 74, 105) 15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN 16 TWENTY-ONE DAYS 17 Plaintiff Vincent Turner (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Before the Court are two 19 motions for summary judgment filed by Defendants Andrew Zepp and Khaled A. Tawansy 20 (“Defendants”). (ECF Nos. 72, 74, 105.) The matter was referred to the undersigned pursuant to 21 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. For the following reasons, the Court recommends 22 that the motions be granted. 23 I. BACKGROUND 24 This case proceeds on Plaintiff’s claims against Defendants for deliberate indifference to 25 serious medical needs in violation of the Eighth Amendment. (ECF No. 15.) Plaintiff’s complaint 26 alleges that, following sinus surgery, Plaintiff told Defendant Zepp he was experiencing pain and 27 needed to be seen right away. (ECF No. 1.) Plaintiff did not receive treatment for several days, 28 1 resulting in a significant infection, pain, swelling, permanent injury, and loss of facial bone. (Id.) 2 Defendant Tawansy filed his motion for summary judgment on October 28, 2021. (ECF 3 No. 72.) Defendant Tawansy argues that Plaintiff does not have evidence that there was a 4 deprivation of sufficient seriousness or that Defendant Tawansy acted with a sufficiently culpable 5 state of mind. (Id. at 10.) Instead, the evidence shows that Defendant Tawansy provided effective 6 and timely care. (Id.) 7 Defendant Zepp filed his motion for summary judgment on November 1, 2021. (ECF No. 8 74.) Defendant Zepp likewise argues that he provided all reasonable and necessary care for 9 Plaintiff’s medical condition. (Id. at 7.) At most, Plaintiff’s claim amounts to a difference of 10 medical opinion, which is not sufficient to establish deliberate indifference. (Id.) 11 On November 12, 2021, Plaintiff filed a document titled “Plaintiff Defense Against the 12 Summary Judgment.” (ECF No. 78.) Because it was not clear whether this document was 13 responsive to either of Defendants’ motions, the Court ordered Plaintiff to file oppositions or 14 statements of non-opposition to Defendants’ motions for summary judgment within thirty days. 15 (ECF No. 82.) On January 3, 2022, Plaintiff filed two documents purporting to respond to 16 Defendants’ motions for summary judgment. (ECF Nos. 91-92.) Plaintiff filed three more 17 documents on January 6, 2022. (ECF Nos. 93-95.) In these filings, Plaintiff generally argues that 18 he contacted Defendant Zepp on September 8 or 9, 2017, and requested medical treatment but did 19 not receive any for several days, causing Plaintiff to need several additional surgeries. (ECF Nos. 20 78, 91, 93-94.) According to Plaintiff, this failure to provide medical treatment amounted to 21 deliberate indifference. (Id.) 22 On March 8, 2022, the Court entered an order granting Plaintiff leave to file supplemental 23 briefing in opposition to Defendants’ motions for summary judgment. (ECF No. 103.) On May 2, 24 2022, Plaintiff filed a response to Defendant Tawansy’s Separate Statement of Undisputed Facts. 25 (ECF No. 104.) 26 On May 11, 2022, Defendant Tawansy filed a reply and objections to Plaintiff’s response 27 his Separate Statement of Undisputed Facts. (ECF No. 105.) On May 17, 2022, Defendant Zepp 28 filed a reply in support of his motion for summary judgment, noting that Plaintiff’s oppositions 1 solely addressed Defendant Tawansy’s motions and did not contain any arguments referring to 2 Defendant Zepp. (ECF No. 106.) 3 The matter was then taken under submission on the record without oral argument. See 4 E.D. Cal. L.R. 230(l). 5 II. UNDISPUTED FACTS 6 The Court has carefully reviewed the parties’ submissions, including separate statements 7 of undisputed facts, supporting declarations and documents, and statements in the parties’ briefs. 8 The following facts are undisputed.1 9 Plaintiff was housed at Kern Valley State Prison (“KVSP”) during the events at issue in 10 this case. (ECF Nos. 72-2 at 2, 74-1 at 1, 91 at 3, 104 at 2, 105 at 2.) Defendant Zepp was 11 Plaintiff’s primary care physician at KVSP and Defendant Tawansy is an ophthalmologist who 12 treated Plaintiff. (ECF Nos. 72-2 at 2, 74-1 at 2, 104 at 2, 105 at 2.) 13 On August 9, 2017, Plaintiff complained of pressure in his left eye with swelling. (ECF 14 No. 74-1 at 2.) Defendant Zepp performed a physical examination, sent Plaintiff to San Joaquin 15 1 To the extent the Court necessarily relied on evidence that has been objected to, the Court relied only on evidence it considered to be admissible. Generally, it is not the practice of the Court to rule on evidentiary matters individually in 16 the context of summary judgment. This is particularly true when “the objections are boilerplate recitations of evidentiary principles or blanket objections without analysis applied to specific items of evidence.” Capital Records, 17 LLC v. BlueBeat, Inc., 765 F.Supp.2d 1198, 1200 n.1 (C.D. Cal. 2010) (quoting Doe v. Starbucks, Inc., 2009 WL 5183773, at *1 (C.D. Cal. Dec. 18, 2009)). 18 The Court notes that Plaintiff did not file any response to Defendant Zepp’s itemized Separate Statement of 19 Undisputed Facts as required under the Local Rules. See E.D. Cal. L.R. 260(b). Further, Plaintiff’s responses to Defendant Tawansy’s Separate Statement of Undisputed Material Facts do not admit or deny each of the listed facts. 20 (See ECF Nos. 99, 104.) Plaintiff did not respond to several of Defendant Tawansy’s itemized facts at all, and many of his responses do not address the facts listed. (Id.) For example, in response to Defendant Tawansy’s Undisputed 21 Material Fact No. 9, which states, “Plaintiff’s second visit with Tawansy took place on August 21, 2017 where Tawansy performed surgery on Plaintiff draining the mass and puncturing a sinus bone to allow sinus drainage,” 22 Plaintiff responds, “My second visit 8-21-17 so How Did My first visit take place April 10, what about the August 10, visit. That’s on record where he states. He’ll be doing surgery on 8-21-17 at his O.R.” (ECF No. 104 at 3.) 23 Defendants both provided Plaintiff with a Rand warning informing him of the summary judgment requirements of and of the Local Rules’ directive that Plaintiff “reproduce the itemized facts in the Statement of Undisputed Facts and 24 admit those facts that are undisputed and deny those that are disputed[.]” (ECF No. 74-2 at 2; see also ECF No. 72-4 at 2.) Thus, the Court may properly take all facts set forth in Defendant Zepp’s statement, as well as those facts in 25 Defendant Tawansy’s statement that Plaintiff did not respond to, as undisputed. However, Plaintiff attached evidence to his oppositions, and the operative complaint is verified. (See ECF Nos. 1, 78, 91, 93-95) See Jones v. Blanas, 393 F.3d 918, 922-23 (9th Cir. 2004) (noting that, where the plaintiff was proceeding pro se, the court was required to 26 “consider as evidence in his opposition to summary judgment all of [his] contentions offered in motions and pleadings, where such contentions are based on personal knowledge and set forth facts that would be admissible in 27 evidence, and where [he] attested under penalty of perjury that the contents of the motions or pleadings are true and correct”). The Court has considered this evidence in determining whether the facts are undisputed and Defendants are 28 entitled to summary judgment under the applicable legal standards. 1 Community Hospital for a CT scan, and prescribed antibiotic drops and pain medication. (Id.) 2 Plaintiff received a CT scan on August 9, 2017, which showed an expansive mass coming from 3 his left ethmoid sinus, and that part of the ethmoid bone was destroyed. (Id.) Plaintiff was 4 scheduled to see Defendant Tawansy the next day. (Id.) 5 Plaintiff first visited Defendant Tawansy on August 10, 2017,2 for an evaluation of his left 6 eye. (ECF Nos. 72-2 at 2-3, 74-1 at 2, 104 at 3, 105 at 3.) Defendant Tawansy reviewed 7 Plaintiff’s CT scan and determined that there was an enlarging mass behind the left eye. (ECF 8 Nos. 72-2 at 3, 104 at 3, 105 at 3-4.) Dr. Tawansy examined Plaintiff and scheduled him for a 9 biopsy and excision of the mass. (ECF Nos. 72-2 at 3, 74-1 at 2, 104 at 3, 105 at 4.) 10 Defendant Zepp followed up with Plaintiff on August 11, 2017, and Plaintiff complained 11 of swelling in his eyes. (ECF No. 74-1 at 2.) Defendant Zepp confirmed the scheduled biopsy 12 with Defendant Tawansy as well as Plaintiff’s prescription for antibiotic drops and pain 13 medication. (Id.) 14 Plaintiff again visited Defendant Tawansy on August 21, 2017, for surgery draining the 15 mass and puncturing a sinus bone to allow sinus draining. (ECF Nos. 72-2 at 3-4, 74-1 at 2, 104 16 at 3-4, 105 at 4-5.) There were no complications during the surgery, Plaintiff reported immediate 17 relief of symptoms, and Plaintiff was started on double oral antibiotic coverage, as well as topical 18 antibiotics. (ECF Nos. 72-2 at 4, 74-1 at 2, 104 at 4, 105 at 5.) 19 Plaintiff’s third visit with Defendant Tawansy occurred on August 23, 2017. (ECF Nos. 20 72-2 at 4, 74-1 at 2, 104 at 4, 105 at 5-6.) Plaintiff had a follow-up exam and was doing well. 21 (ECF Nos. 72-2 at 4, 104 at 4, 105 at 6.) 22 On August 25, 2017, Plaintiff followed up with Defendant Zepp. (ECF No. 74-1 at 2.) 23 Plaintiff reported that he was still in significant pain. (Id.) Defendant Zepp prescribed methadone 24 5mg twice per day, confirmed his other medications, and ordered him to follow up with 25 Defendant Tawansy as directed. (Id.) 26 2 Defendant Tawansy’s Separate Statement of Undisputed Material Facts states that Plaintiff’s first visit occurred on April 10, 2017. (ECF No. 72-2.) Plaintiff’s response disputes this and contends that his first visit occurred on August 27 10, 2017. (ECF No. 104.) In his reply, Defendant Tawansy clarified that the April 10 date was a typo and concedes that Plaintiff’s first visit occurred on August 10, 2017. (ECF No. 105.) Accordingly, the date of Plaintiff’s first visit 28 with Defendant Tawansy is undisputed. 1 Plaintiff had his fourth visit with Defendant Tawansy on September 6, 2017, for another 2 follow-up examination. (ECF Nos. 72-1 at 4-5, 104 at 4-5, 105 at 6.) Plaintiff told Defendant 3 Tawansy that “it’s coming back” and Defendant Tawansy told him he had pain due to healing. 4 (ECF Nos. 104 at 5, 105 at 6.) 5 Plaintiff was seen by Dr. Sao at the KVSP triage center on September 11, 2017. (ECF 6 Nos. 72-2 at 7, 74-1 at 3, 104 at 7, 105 at 13.) Plaintiff reported that he had started having pain, 7 redness, and tearing the previous day. (ECF No. 74-1 at 3.) Plaintiff was sent to San Joaquin 8 Community Hospital Emergency Room and a CT scan was performed that evening. (ECF Nos. 9 72-2 at 7, 74-1 at 3, 104 at 7, 105 at 13.) The ER doctor noted that there was inflammatory tissue, 10 prescribed Plaintiff seven days of clindamycin, and instructed Plaintiff to see Defendant Tawansy 11 in one-to-two days. (Id.) Defendant Tawansy received a call from the ER on the night of 12 September 11, 2017, and he informed the ER doctor of the biopsy findings. (ECF Nos. 72-2 at 7- 13 8, 104 at 7-8, 105 at 14.) The ER did not ask Defendant Tawansy to go to the hospital and 14 Plaintiff was returned to KVSP. (ECF Nos. 72-2 at 8, 74-1 at 3, 104 at 8, 105 at 14-15.) 15 Plaintiff visited Defendant Zepp on September 12, 2017, and complained of pain and 16 swelling. (ECF Nos. 72-2 at 8, 74-1 at 3, at 104 at 8, 105 at 15.) Defendant Zepp called Defendant 17 Tawansy,3 who asked to see Plaintiff. (ECF Nos. 72-2 at 8, 74-1 at 3, 104 at 8, 105 at 15-16.) 18 Defendant Zepp contacted the scheduling nurse to schedule a visit for Plaintiff with Defendant 19 Tawansy for September 13, 2017, and confirmed Plaintiff’s prescriptions for pain medication and 20 antibiotics. (ECF No. 74-1 at 3.) 21 Plaintiff’s fifth and final visit with Defendant Tawansy occurred on September 13, 2017. 22 (ECF Nos. 72-2 at 8, 74-1 at 3, 104 at 8, 106 at 16.) Plaintiff had swelling of the conjunctiva and 23 recurrent inflammation and proptosis. (ECF No. 72-2 at 9, 104 at 9, 105 at 16-17.) Defendant 24 Tawansy recommended that Plaintiff be admitted to the hospital, have intravenous antibiotic 25 therapy, and receive a consultation for possible surgery to excise the ethmoid and frontal sinuses. 26 (ECF Nos. 72-2 at 9, 74-1 at 3, 104 at 9, 105 at 17-18.) 27 3 It is undisputed that Defendant Zepp called Defendant Tawansy, who asked to see Plaintiff. Plaintiff contends that this call occurred on September 8 or 9, 2017, while Defendants contend it occurred on September 12, 2017. (See ECF 28 Nos. 72-2 at 8, 74-1 at 3, 104.) 1 Plaintiff was transported to San Joaquin Community Hospital that day as a direct admit to 2 the Ear, Nose & Throat service for treatment. (ECF No. 74-1 at 3.) The ENT doctor on duty 3 indicated that the necessary treatment was beyond the scope of what could be provided at their 4 facility and sent Plaintiff to Riverside University Health System. (Id.) Plaintiff was admitted to 5 Riverside University Health System from September 13, 2017 until September 20, 2017, when he 6 was discharged back to KVSP. (Id.) 7 Defendant Tawansy made a follow-up appointment for Plaintiff for September 20, 2017, 8 but Plaintiff did not return to see him. (ECF Nos. 72-2 at 9, 104 at 9, 105 at 18.) Plaintiff 9 followed up with Defendant Zepp on September 22 and 28, 2017, and with the ENT at Riverside 10 University Health System on September 26 and 29, 2017. (ECF No. 74-1 at 3-4.) Plaintiff’s sinus 11 issue was resolved after two additional surgeries, one on September 18, 2017, and another on 12 March 6, 2018. (ECF Nos. 72-2 at 11, 104 at 11, 105 at 22.) 13 III. LEGAL STANDARDS 14 A. Summary Judgment Generally 15 Summary judgment in favor of a party is appropriate when there “is no genuine dispute as 16 to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 17 56(a); Albino v. Baca (“Albino II”), 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (“If there is a genuine dispute about material facts, summary judgment will not be granted.”). A party asserting 18 that a fact cannot be disputed must support the assertion by “citing to particular parts of materials 19 in the record, including depositions, documents, electronically stored information, affidavits or 20 declarations, stipulations (including those made for purposes of the motion only), admissions, 21 interrogatory answers, or other materials, or showing that the materials cited do not establish the 22 absence or presence of a genuine dispute, or that an adverse party cannot produce admissible 23 evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). 24 A party moving for summary judgment “bears the initial responsibility of informing the 25 district court of the basis for its motion, and identifying those portions of ‘the pleadings, 26 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 27 any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 28 1 Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-moving party bears the burden of 2 proof at trial, the moving party need only prove that there is an absence of evidence to support the 3 non-moving party's case. Id. at 325. “[A] complete failure of proof concerning an essential 4 element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 322. Where the moving party meets that burden, the burden then shifts to the non-moving party 5 to designate specific facts demonstrating the existence of genuine issues for trial. Id. at 324. This 6 burden is not a light one. The non-moving party must show more than the mere existence of a 7 scintilla of evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). “A summary 8 judgment motion cannot be defeated by relying solely on conclusory allegations unsupported by 9 factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). The non-moving party must do 10 more than show there is some “metaphysical doubt” as to the material facts at issue. Matsushita 11 Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In fact, the non-moving 12 party must come forth with evidence from which a jury could reasonably render a verdict in the 13 non-moving party's favor. Anderson, 477 U.S. at 252. 14 In reviewing the evidence at the summary judgment stage, the Court “must draw all 15 reasonable inferences in the light most favorable to the nonmoving party.” Comite de Jornaleros 16 de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). It need only 17 draw inferences, however, where there is “evidence in the record . . . from which a reasonable 18 inference . . . may be drawn . . ..”; the court need not entertain inferences that are unsupported by 19 fact. Celotex, 477 U.S. at 330 n. 2 (citation omitted). Additionally, “[t]he evidence of the non- 20 movant is to be believed . . ..” Anderson, 477 U.S. at 255. Moreover, the Court must liberally 21 construe Plaintiff’s filings because he is a prisoner proceeding pro se in this action. Thomas v. 22 Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). 23 In reviewing a summary judgment motion, the Court may consider other materials in the 24 record not cited to by the parties, but is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. 25 San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). 26 B. Deliberate Indifference to Serious Medical Needs “The treatment a prisoner receives in prison and the conditions under which he is confined 27 are subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 832 28 1 (1994) (citation omitted). Prison officials have a duty “to take reasonable measures to guarantee 2 the safety of inmates, which has been interpreted to include a duty to protect prisoners.” Labatad 3 v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Farmer, 511 U.S. at 4 832–33; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005)). To establish a violation of this duty, the prisoner must “show that the officials acted with deliberate indifference to threat of 5 serious harm or injury to an inmate.” Labatad, at 1160 (citation omitted). 6 A prison official violates the Eighth Amendment only when two requirements are met: (1) 7 objectively, the official’s act or omission must be so serious such that it results in the denial of the 8 minimal civilized measure of life’s necessities; and (2) subjectively, the prison official must have 9 acted unnecessarily and wantonly for the purpose of inflicting harm. See Farmer, 511 U.S. at 834. 10 For the objective component, the alleged deprivation must be “sufficiently serious” and 11 where a failure to prevent harm is alleged, “the inmate must show that he is incarcerated under 12 conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834 (quoting Rhodes v. 13 Chapman, 452 U.S. 337, 349 (1981)). 14 For the subjective component, the prison official must “know of and disregard an 15 excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. A prison official must “be 16 aware of facts from which the inference could be drawn that a substantial risk of serious harm 17 exists, and...must also draw the inference.” Id. Liability may follow only if a prison official 18 “knows that inmates face a substantial risk of serious harm and disregards that risk by failing to 19 take reasonable measures to abate it.” Id. at 847; see also id. at 835, 36-37 (explaining that 20 “deliberate indifference entails something more than mere negligence...[but] something less than 21 acts or omissions for the very purpose of causing harm or with the knowledge that harm will 22 result”; and defining “deliberate indifference” standard as equal to “recklessness,” in which “a 23 person disregards a risk of harm of which he is aware”). IV. ANALYSIS 24 Defendants both argue that they are entitled to summary judgment because Plaintiff 25 received effective and reasonable care for his medical condition and there is no evidence of 26 subjective deliberate indifference. (ECF No. 72 at 9-10, 74 at 7-9.) In support of this argument, 27 Defendants provide declarations regarding the treatment they provided to Plaintiff as well as 28 1 medical records documenting that treatment. (See ECF Nos. 72-3, 74-3, 75.) 2 Defendant Tawansy explains that he evaluated Plaintiff on August 10, 2017, performed 3 surgery on August 21, 2017, and had follow up visits with Plaintiff on August 23, 2017, and 4 September 6, 2017. (ECF No. 72-3 at 44-45.) Plaintiff went to the emergency room on September 5 11, 2017, and Defendant Tawansy was contacted and discussed the case with the emergency 6 physician, but was not asked to come to the hospital to evaluate Plaintiff. (Id. at 45-47.) 7 According to Defendant Tawansy, Plaintiff was not in a medical or surgical emergency at that 8 time. (Id. at 47.) Plaintiff’s next visit with Defendant Tawansy was on September 13, 2017. (Id. at 9 10.) During that visit, Defendant Tawansy referred Plaintiff to a medical specialist, who 10 performed surgery on Plaintiff on September 18, 2017. (Id.) 11 As to Defendant Zepp, he declares that he first treated Plaintiff on August 9, 2017, for 12 complaints of pressure in the left eye. (ECF No. 74-3 at 14.) Defendant Zepp referred Plaintiff to 13 San Joaquin Community Hospital for a CT scan and prescribed antibiotic drops and pain 14 medication for his eyes. (Id. at 14-15.) Defendant Zepp followed up with Plaintiff on August 11, 15 2017 and confirmed his prescriptions and the scheduled biopsy. (Id.) Defendant Zepp also 16 followed up with Plaintiff after his surgery on August 25, 2017, prescribed pain medication, 17 confirmed Plaintiff’s other medications, and ordered him to follow up with Defendant Tawansy 18 as directed. (Id.) Plaintiff was seen at the KVSP triage center on September 11, 2017, and sent to 19 the San Joaquin Community Hospital Emergency Room for a CT scan. (Id.) Plaintiff followed up 20 with Defendant Zepp again on September 12, 2017, with reports of pain and increased swelling. 21 (Id. at 16.) Defendant Zepp called Defendant Tawansy to expedite Plaintiff’s next appointment. 22 (Id.) Defendant Tawansy asked to see Plaintiff the following morning, so Defendant Zepp 23 contacted the scheduling nurse and further confirmed Plaintiff’s prescriptions for pain 24 medications and antibiotics. (Id.) 25 The Court finds that Defendants have met their initial burden at summary judgment of 26 showing undisputed facts upon which no reasonable jury could find that Defendants knew of and 27 disregarded an excessive risk to Plaintiff’s health or safety in the course of their evaluation and 28 treatment of Plaintiff. Defendants have pointed to the absence of evidence of their subjective 1 deliberate indifference, which is an essential element of Plaintiff’s claims against them. The 2 burden therefore shifts to Plaintiff as the non-moving party to put forth evidence that a reasonable 3 jury could rely on to find Defendants were subjectively deliberately indifferent in their treatment 4 of Plaintiff’s condition. 5 In his oppositions, Plaintiff argues that, on either September 8 or 9, 2017, he followed up 6 with Defendant Zepp and reported that his condition was getting worse. (ECF Nos. 78 at 2.) 7 Defendant Zepp gave him an ice pack and sent him back to the yard without giving him medical 8 treatment. (Id. at 1, 3.) Defendant Zepp also spoke to Defendant Tawansy, making him aware of 9 his condition. (ECF No. 93 at 1.) However, Plaintiff was not seen by Defendant Tawansy until 10 September 13, 2017. (Id.) 11 Plaintiff does not submit a declaration or other statement under penalty of perjury in 12 support of his opposition regarding his conversation with Defendant Zepp on September 8 or 9, 13 2017. However, Plaintiff’s complaint is signed under penalty of perjury and states that he 14 reported experiencing pain to Defendant Zepp on September 9, 2017, but did not receive 15 treatment. (ECF No. 1.)4 16 Construing the evidence liberally in Plaintiff’s favor, the Court finds that there is no 17 genuine dispute of material fact precluding summary judgment. The undisputed evidence shows 18 that the Defendants repeatedly evaluated Plaintiff, provided him with medications, ordered 19 testing, performed surgery, and referred him to specialists. Plaintiff alleges that he reported pain 20 and a worsening condition on September 8 or 9, 2017, but did not see Defendant Tawansy until 21 September 13, 2017. However, even when accepted as true and construed in the light most 22 favorable to Plaintiff, these facts do not show that Defendants acted in conscious disregard of an 23 excessive risk to Plaintiff’s health. Plaintiff concedes that Defendant Zepp provided an ice pack 24 when he reported pain, and it is also undisputed that Plaintiff received medical care and testing on 25 4 Plaintiff’s opposition cites to a “Refusal of Examination And/Or Treatment” form dated September 8, 2017 to “prove [Plaintiff] saw Doctor Andrew Zepp on the Date of 9-8-2017.” (ECF No. 78 at 3, 9.) However, this form does 26 not refer to Defendant Zepp or indicate that Plaintiff saw or spoke to him that day. Instead, the form documents Plaintiff’s refusal of treatment for a latent TB infection and is signed by P. Rodriguez, RN. (ECF No. 78 at 9-10.) 27 Plaintiff also refers to progress notes where Defendant Zepp describes giving Plaintiff an ice pack for comfort, but these progress notes are dated August 25, 2017, not September 8, 2017, which is consistent with Defendant Zepp’s 28 report that he had a follow-up appointment with Plaintiff on August 25, 2017. (ECF No. 78 at 16.) 1 September 11, 2017, when he visited the KVSP triage center and was sent to the emergency 2 room. (ECF No. 104.) Plaintiff saw Defendant Zepp the next day, and Defendant Tawansy the 3 day after. Plaintiff was then admitted to the hospital at Defendant Tawansy’s recommendation. 4 Plaintiff does not describe anything about his interactions with either Defendant or their reactions 5 to his reports of pain and worsening condition that would indicate Defendants knew Plaintiff 6 would be harmed at all if he did not see Defendant Tawansy the same day, much less that they 7 disregarded a substantial risk of serious harm. 8 Plaintiff’s allegation of a two-to-three-day delay in treatment is not sufficient for a 9 reasonable jury to find that either Defendant acted deliberate indifference to serious medical 10 needs, rather than negligence. Estelle, 429 U.S. at 106 (“[A] complaint that a physician has been 11 negligent in diagnosing or treating a medical condition does not state a valid claim of medical 12 mistreatment under the Eighth Amendment.”). Although Plaintiff may have preferred to see 13 Defendant Tawansy the same day he says that he spoke to Defendant Zepp, Plaintiff has not 14 submitted any evidence that the course of treatment Defendants provided was medically 15 unacceptable under the circumstances. Further, neither a difference of opinion between medical 16 providers nor Plaintiff’s disagreement regarding the proper course of treatment constitute 17 deliberate indifference. Toguchi v. Chung, 391 F.3d 1051, 1059-60 (9th Cir. 2004) (“[A] 18 difference of medical opinion . . . cannot support a claim of deliberate indifference.”); Sanchez v. 19 Vild, 891 F.2d 240, 242 (9th Cir. 1989) (reasoning that a difference of opinion between an inmate 20 and prison medical personnel regarding appropriate medical diagnosis and treatment is not 21 enough to establish a deliberate indifference claim).5 22 5 Plaintiff’s opposition also contends that Defendants are doctoring documents. (ECF Nos. 78, 92.) For example, on a medical record from Riverside University Health System, Plaintiff includes a handwritten note stating “K.V.S.P. This 23 is Evidence their changing Dates to make it fit their stories. Dates can be changed but not names.” (ECF No. 78 at 7.) On another progress note, Plaintiff states, “copy these pages it clearly shows that their fixing Documents to fit 24 whatever they want it to say. Dates been changed like I stated from the begin and their getting away with it. Here’s ‘Evidence’ their sayin the same Doctor from tri-city. He’s signed off on this case in Riverside.” (ECF No. 78 at 19.) 25 Plaintiff does not explain what dates were changed, how the documents “show” that any dates were changed, or how any changes would be material. Having reviewed the documents at issue, there is nothing on their face indicating that 26 Defendants tampered with their contents, and Plaintiff has not adequately explained why he believes they are “doctored.” As Plaintiff’s arguments are conclusory and unsupported, the Court finds that they are insufficient to 27 preclude summary judgment. See In re Oracle Corp. Securities Litig., 627 F.3d 376, 387 (9th Cir. 2010) (“The non- moving party must do more than show there is some ‘metaphysical doubt’ as to the material facts at issue.”) (quoting 28 Matsushita, 475 U.S. at 586). 1 Because Plaintiff has not submitted sufficient evidence from which a reasonable jury 2 | could find that Defendants were subjectively deliberate indifferent in evaluating and treating 3 | Plaintiff's left eye, the Court recommends granting Defendants’ motions for summary judgment.® 4 V. CONCLUSION AND RECOMMENDATION 5 Based on the foregoing, IT IS HEREBY RECOMMENDED that: 6 1. Defendants’ motions for summary judgment (ECF Nos. 72, 74) be granted; 7 2. Judgment be entered in favor of Defendants Khaled A. Tawansy and Andrew 8 Zepp; and 9 3. The Clerk of Court be directed to close this case. 10 These findings and recommendations are submitted to the United States District Judge 11 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within twenty-one 12 | (21) days after being served with these findings and recommendations, any party may file written 13 | objections with the court. Such a document should be captioned "Objections to Magistrate Judge's 14 | Findings and Recommendations." Any reply to the objections shall be served and filed within 15 | fourteen (14) days after service of the objections. The parties are advised that failure to file 16 | objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 17 | Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 18 | (9th Cir. 1991)). 19 20 IT IS SO ORDERED. 21 | Dated: _ July 27, 2022 [see heey □ 09 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 6 Tn light of this recommendation, the Court declines to address the remainder of Defendants’ arguments, including 28 | that Plaintiff does not have evidence that there was a deprivation of sufficient seriousness. 12