(PC) Scott v. Chau ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICKY LEON SCOTT, Case No. 1:19-cv-01079-KES-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANT’S MOTION FOR 13 v. SUMMARY JUDGMENT1 14 (Doc. No. 60) 15 J. CHAU, FOURTEEN DAY OBJECTION PERIOD 16 Defendant. 17 18 Pending before the Court is Defendant J. Chau’s motion for summary judgment, filed July 19 3, 2024. (Doc. No. 60). Plaintiff filed an Opposition (Doc. No. 62), and Defendant filed a Reply 20 (Doc. No. 63). For the reasons discussed below, the Court recommends the district court grant 21 Defendant’s motion for summary judgment because there is no genuine dispute of material facts 22 as to whether Defendant acted with deliberate indifference to Plaintiff’s serious medical 23 condition. 24 I. BACKGROUND 25 A. Procedural History 26 Plaintiff Rickey Leon Scott is a state prisoner proceeding pro se and in forma pauperis in 27 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. 2023). 28 1 this civil rights action filed pursuant to 42 U.S.C. § 1983. (Doc. No. 28). Plaintiff proceeds on 2 his Second Amended Complaint, as screened, asserting an Eighth Amendment deliberate medical 3 indifference claim against Defendant J. Chau. (Doc. Nos. 28, 29, 31). On July 3, 2024, 4 Defendant timely filed the instant motion for summary judgment. (Doc. No. 60) 5 B. Defendant’s MSJ 6 Supporting his MSJ, Defendant submits: (1) a Rand notice to Plaintiff (Doc. No. 60-1); 7 (2) a statement of undisputed material facts (Doc. No. 60-2); (3) a memorandum of points and 8 authorities (Doc. No. 60-3); (4) the declaration of J. Chau (Doc. No. 60-4); (5) the declaration of 9 Dr. Edward Younger III (Doc. No. 60-5); (6) the declaration of E. Robinson (Doc. No. 60-6); (7) 10 the declaration of Defendant’s Counsel J. Gronna (Doc. No. 60-7); and (8) a Notice of Lodging 11 Transcripts (Doc. No. 60-8). 12 Defendant Chau asserts the undisputed evidence shows he was not deliberately indifferent 13 to a serious medical condition, and that Plaintiff’s allegations amount to a difference of medical 14 opinion. (Doc. No. 60-3 at 6). Specifically, an ice pack and narcotic pain medication were not 15 medically necessary to treat Plaintiff’s right knee pain on April 12, 2018, and discontinuing 16 Plaintiff’s Tylenol with Codeine prescription was medically appropriate. (Id.). In the alternative, 17 Chau contends he is entitled to qualified immunity because a reasonable physician in his position 18 would have believed his conduct was lawful. (Id.). 19 C. Plaintiff’s Opposition to Defendant’s MSJ 20 On August 5, 2024, Plaintiff filed his Opposition, including 86 pages of exhibits, which 21 consist primarily of Plaintiff’s prior filings in this case, discovery requests propounded on 22 Defendant, and Plaintiff’s medical records. (See Doc. No. 61 at 8-94). 23 As an initial matter, Plaintiff’s Opposition does not comply with the requirement in Local 24 Rule 260 that require: 25 [a]ny party opposing a motion for summary judgment or summary adjudication . . . reproduce the itemized facts in the [Defendant’s] 26 Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each 27 denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document 28 relied upon in support of that denial. 1 L.R. 260(b) (E.D. Cal. 2023); see also Fed. R. Civ. P. 56(c)(1)(A). Plaintiff responds in 2 scattershot fashion only to a handful of the factual assertions in Defendant’s declarations and 3 statement of undisputed facts and, even then, asserts only conclusory denials and does not cite to 4 any documents in the record in support. (See generally Doc. No. 62). The Court may deem 5 undisputed those facts which Plaintiff does not properly dispute by citing to relevant portions of 6 the record. See Fed. R. Civ. P. 56(e)(2). 7 For example, Plaintiff disputes the declaration of Nurse E. Robinson, who attests that 8 Plaintiff swung his cane twice at Dr. Chau. (Id. at 4-5). Plaintiff states that Robinson’s statement 9 “[w]as another material variance from the truth, and therefore, a basis for liability for derogatory 10 falsehood, or grant of Fed. R. Civ. P. 12(c) or Demand for Trial” but does not explain why the 11 assertion is false or cite to any fact in the record to dispute it. (Id. at 5). Similarly, as to 12 Defendant Chau’s statement in his declaration denying that he refused to provide Plaintiff with 13 medically acceptable treatment, Plaintiff again asserts, “[w]as a material variance from the truth, 14 and therefore a basis for liability for derogatory falsehood . . .” (Id. at 4). 15 Liberally construed, Plaintiff generally reiterates the factual assertions in his SAC, and 16 contends that he alleges a cognizable claim for deliberate medical indifference against Defendant 17 Chau. (See generally id.). 18 II. APPLICABLE LAW 19 A. Summary Judgment Standard 20 The “purpose of summary judgment is to pierce the pleadings and to assess the proof in 21 order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. Ltd. v. Zenith 22 Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). Summary judgment is appropriate 23 when there is “no genuine dispute as to any material fact and the movant is entitled to judgment 24 as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment should be entered “after adequate 25 time for discovery and upon motion, against a party who fails to make a showing sufficient to 26 establish the existence of an element essential to that party’s case, and on which that party will 27 bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The 28 moving party bears the “initial responsibility” of demonstrating the absence of a genuine issue of 1 material fact. Id. at 323. An issue of material fact is genuine only if there is sufficient evidence 2 for a reasonable fact finder to find for the non-moving party, while a fact is material if it “might 3 affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 4 U.S. 242, 248 (1986). 5 If the moving party meets its initial burden, the burden then shifts to the opposing party 6 to present specific facts that show there to be a genuine issue of a material fact. See Fed R. Civ. 7 P. 56(e); Matsushita, 475 U.S. at 586. An opposing party “must do more than simply show that 8 there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 587. The 9 party is required to tender evidence of specific facts in the form of affidavits, and/or admissible 10 discovery material, in support of its contention that a factual dispute exists. Fed. R. Civ. P. 11 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party is not required to establish a 12 material issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be 13 shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” 14 T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 15 1987). However, “failure of proof concerning an essential element of the nonmoving party’s 16 case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. 17 The court must apply standards consistent with Rule 56 to determine whether the 18 moving party demonstrated there is no genuine issue of material fact and showed judgment to be 19 appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). 20 “[A] court ruling on a motion for summary judgment may not engage in credibility 21 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 22 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the 23 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving 24 party. Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002). A mere scintilla 25 of evidence is not sufficient to establish a genuine dispute to defeat an otherwise properly 26 supported summary judgment motion. Anderson, 477 U.S. at 252. However, where “opposing 27 parties tell two different stories, one of which is blatantly contradicted by the record” courts 28 “should not adopt that version of the facts for purposes of ruling on a motion for summary 1 judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). 2 The Ninth Circuit has “held consistently that courts should construe liberally motion 3 papers and pleadings filed by pro se inmates and should avoid applying summary judgment rules 4 strictly.” Soto v. Sweetman, 882 F.3d 865, 872 (9th Cir. 2018) (quoting Thomas v. Ponder, 611 5 F.3d 1144, 1150 (9th Cir. 2010)). While prisoners are relieved from strict compliance, they still 6 must “identify or submit some competent evidence” to support their claims. Soto, 882 F.3d at 7 872. Plaintiff’s verified complaint may serve as an affidavit in opposition to summary judgment 8 if based on personal knowledge and specific facts admissible in evidence. Lopez v. Smith, 203 9 F.3d 1122, 1132 n. 14 (9th Cir. 2000) (en banc). However, a complaint’s conclusory allegations 10 unsupported by specific facts, will not be sufficient to avoid summary judgment. Arpin v. Santa 11 Clara Valley Transportation Agency, 261 F.3d 912, 922 (9th Cir. 2001). And, where a plaintiff 12 fails to properly challenge the facts asserted by the defendant, the plaintiff may be deemed to 13 have admitted the validity of those facts. See Fed. R. Civ. P. 56(e)(2). 14 The Court has carefully reviewed and considered all arguments, points and authorities, 15 declarations, exhibits, statements of undisputed facts and responses thereto, if any, objections, and 16 other papers filed by the parties. The omission to an argument, document, paper, or objection is 17 not to be construed that the Court did not consider the argument, document, paper, or objection. 18 Instead, the Court thoroughly reviewed and considered the evidence it deemed admissible, 19 material, and appropriate for purposes of issuing these Findings and Recommendations. 20 B. Eighth Amendment Deliberate Medical Indifference 21 The Constitution indisputably requires prison officials to provide inmates with reasonably 22 adequate medical care. Estelle v. Gamble, 429 U.S. 97, 103 (1976). To hold an official liable for 23 violating this duty under the Eighth Amendment, the inmate must satisfy two prongs, an objective 24 prong and subjective prong. First, the inmate must suffer from a serious medical need (the 25 objective prong); and second the official must be deliberately indifferent to the inmate’s serious 26 medical need (the subjective prong). Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), 27 overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); 28 Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012). A medical need is “serious” if the 1 failure to treat “could result in further significant injury or the unnecessary and wanton infliction 2 of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal citations omitted). A 3 serious medical need is evidenced by “the existence of an injury that a reasonable doctor or 4 patient would find important and worthy of comment or treatment; the presence of a medical 5 condition that significantly affects an individual’s daily activities; or the existence of chronic and 6 substantial pain are examples of indications that a prisoner has a ‘serious’ need for medical 7 treatment.” McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992). 8 The “second prong—defendant’s response to the need was deliberately indifferent—is 9 satisfied by showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible 10 medical need and (b) harm caused by the indifference.” Id. (internal citations omitted). This 11 standard requires that the prison official must not only “be aware of facts from which the 12 inference could be drawn that a substantial risk of serious harm exists,” but that person “must also 13 draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “If a [prison official] should 14 have been aware of the risk, but was not, then the [official] has not violated the Eighth 15 Amendment, no matter how severe the risk.” Gibson v. County of Washoe, Nevada, 290 F.3d 16 1175, 1188 (9th Cir. 2002). This “subjective approach” focuses only “on what a defendant’s 17 mental attitude actually was.” Farmer, 511 U.S. at 839. 18 Deliberate indifference is a higher standard than medical negligence or malpractice, and a 19 difference of opinion between medical professionals—or between a physician and the prisoner— 20 generally does not amount to deliberate indifference. See generally Toguchi v. Chung, 391 F.3d 21 1051 (9th Cir. 2004); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (A mere “difference 22 of medical opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference.”). 23 To prevail on a claim involving choices between alternative courses of treatment, a prisoner must 24 show that the chosen course of treatment “was medically unacceptable under the circumstances,” 25 and was chosen “in conscious disregard of an excessive risk to [the prisoner’s] health.” Jackson, 26 90 F.3d at 332. 27 Neither will an “inadvertent failure to provide medical care” sustain a claim. Estelle v. 28 Gamble, 429 U.S. 97, 105 (1976). Misdiagnosis alone is not a basis for a claim, see Wilhelm, 680 1 F.3d at 1123, and a “mere delay” in treatment, “without more, is insufficient to state a claim of 2 deliberate medical indifference,” Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 3 407 (9th Cir. 1985). Instead, a prisoner must show that a delay “would cause significant harm 4 and that defendants should have known this to be the case.” Hallett v. Morgan, 296 F.3d 732, 5 746 (9th Cir. 2002). 6 III. ANALYSIS 7 A. Allegations in Plaintiff’s Operative Complaint 8 The events giving rise to the Second Amended Complaint (“SAC”) occurred at North 9 Kern State Prison (“NKSP”). (See generally Doc. No. 28). As screened, Plaintiff’s SAC alleges 10 a single Eighth Amendment claim for deliberate medical indifference against Defendant J. Chau, 11 a physician at NKSP in connection with his medical treatment for his knee. (Id. at 3); (Doc. No. 12 29). 13 Liberally construed, on April 12, 2018, Plaintiff was taken to the NKSP medical 14 department a wheelchair after falling near his cell. (Id. at 7, 12). Plaintiff claims his right knee 15 was “hot with fever,” swollen and painful “as though [he had] Elephantiasis,” and gave out 16 because Dr. Chau changed unspecified medications and stopped Plaintiff’s pain medications 17 altogether. (Id. at 7-8). A nurse, who examined Plaintiff when he arrived in the medical 18 department, went to retrieve an ice pack for Plaintiff’s knee. (Id.). When she returned with the 19 ice pack, Dr. Chau came out of his office, grabbed the ice pack from the nurse, and told Plaintiff 20 he was not allowing him any treatment. (Id.). 21 According to the incident report attached as an exhibit to the SAC,2 Plaintiff began to 22 argue with Dr. Chau while swinging a cane toward Dr. Chau. (Id. at 13). Officer Mendez told 23 Plaintiff to stand down, but Plaintiff disobeyed, and Mendez took Plaintiff to the ground. (Id. at 24 12-13). Plaintiff was issued a Rules Violation Report (“RVR”) for assault with a deadly weapon. 25 2 The Court’s review is limited to the operative complaint, exhibits attached, and materials incorporated 26 into the operative complaint by reference, and matters of which the court may take judicial notice. Petrie v. Elec. Game Card, Inc., 761 F.3d 959, 966 (9th Cir. 2014); see also Fed. R. Civ. P. 10(c). Because the 27 exhibits are attached and incorporated in the Second Amended Complaint, the Court may consider the exhibits when their authenticity is not questioned. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th 28 Cir. 2001) 1 (Id. at 13). Plaintiff acknowledged that he disobeyed the order to stand down and that he may 2 have moved his arms and hand while holding the cane, but denied he ever swung the cane at Dr. 3 Chau. (Id. at 16). At the disciplinary hearing, Plaintiff stated “I am guilty of verbal assault but 4 not guilty of a weapons assault.” (Id. at 13). After the hearing, Plaintiff was found guilty of the 5 RVR. (Id.). 6 Plaintiff points to Defendant Chau’s modification of Plaintiff’s medications, termination 7 of his pain medication, and refusal to treat his hot, swollen knee on April 12, 2018, as evidence of 8 deliberate indifference to a serious medical condition in violation of the Eighth Amendment. As 9 relief, Plaintiff seeks a trial by jury and unspecified damages. (Id. at 10). 10 B. Defendant’s Proposed Expert Testimony 11 Defendants seek to qualify Dr. Edward Younger III as an expert based on his education, 12 background, training, knowledge, and substantial experience, coupled with his review of 13 Plaintiff’s medical records. 3 (Doc. No. 60-3 at 11); (Doc. No. 60-5 at 1 ¶ 3). Fed. R. Evid. 702 14 requires that expert testimony be both “reliable and relevant” whether based on scientific, 15 technical, or other specialized knowledge.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 16 149 (1999). 17 Dr. Younger has been licensed to practice medicine in California since 1981. (Doc. No. 18 60-5 at 1 ¶ 2). He has been board-certified in orthopedic surgery since 1989. (Id.). (Doc. No. 19 60-5 at 8). Younger has experience as an emergency physician, has been Chairman of the 20 Division of Orthopaedic Surgery at Mercy San Juan, and was in private medical practice for 31 21 years. (Id. at 7-8). In formulating his opinions, Dr. Younger reviewed Plaintiff’s medical records 22 and imaging studies from October 31, 2013 through February 28, 2023, as well as Plaintiff’s 23 24 3 Federal Rule of Evidence 702 governs the admissibility of expert testimony and provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify 25 if the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to 26 understand the evidence or to determine a fact in issue; (b) the testimony is based upon sufficient facts or data; 27 (c) the testimony is the product of reliable principles and methods; and (d) the witness has reliably applied the principles and methods to the facts of the case. 28 Fed. R. Evid. 702. 1 deposition testimony and the April 12, 2018 incident report. (Id. at 2 ¶¶ 4). 2 The Court accepts Dr. Younger’s opinion as expert testimony under Federal Rules of 3 Evidence 702 as to the medical care rendered by Defendant to Plaintiff, to the extent relevant. 4 D. Undisputed Material Facts 5 Defendant provided a statement of undisputed material facts. (Doc. No. 60-2). Each 6 listed fact cites to the operative supporting document and is gleaned from sworn declarations, 7 Plaintiff’s medical records, deposition testimony, and the Second Amended Complaint. (See 8 generally id). Having reviewed the record, the Court finds the following facts to be material and 9 undisputed, unless otherwise noted. 10 • Plaintiff Rickey Scott (AR5937) is an inmate in the custody of the California Department 11 of Corrections and Rehabilitation (“CDCR”), and at all times relevant to the SAC was 12 incarcerated at NKSP. (Doc. No. 28 at 1-10). 13 • Plaintiff is not a medical professional and has no formal medical training. (Doc. No. 60-7 14 at 4:24-25, 5:1-4). 15 • Defendant J. Chau is a physician and surgeon licensed by the State of California. (Doc. 16 No. 60-4 at 1-2 ¶¶ 2-3). 17 • At the times relevant in this action Dr. Chau was employed by California Correctional 18 Health Care Services (“CCHCS”) as a Physician and Surgeon. (Doc. No. 60-4 at 1-2 ¶ 3). 19 • Dr. Chau served as Plaintiff’s primary care physician (PCP) from approximately January 20 through April 2018. Dr. Chau had three medical appointments with Plaintiff during this 21 time. (Doc. No. 60-4 at 2-6 ¶¶ 4-5, 8, 12, 18-19, 21). 22 • A non-party medical provider first prescribed Plaintiff Tylenol with Codeine (also known 23 as “Tylenol 3”) on December 16, 2016, in connection with Plaintiff’s complaints of back 24 pain, hip pain, and general osteoarthritis. (Doc. No. 60-7 at 12:8-13, 24- 25; 13:1-21; 25 14:13-20; 15:7-10; 16:10-20, 17:17-20); (Doc. No. 60-4 at 3 ¶ 10); (Doc. No. 60-5 at 2 26 ¶ 5). 27 • Tylenol with Codeine is a narcotic pain medication that is used in some settings to relieve 28 severe pain. (Doc. No. 60-7 at 25:22-24); (Doc. No. 60-4 at 3 ¶ 10). 1 • Per community medical practice guidelines, long-term opioid therapy is not the preferred 2 course of treatment for chronic, non-cancerous pain. Tylenol with Codeine is an addictive 3 narcotic that can lose its efficacy over time. It is also associated with an increased risk of 4 serious opioid-related harm to patients and can perpetuate addiction. Medical guidelines 5 recommend treating chronic pain with non-opiate pain medications, such as anti- 6 inflammatory medications or regular Tylenol. (Doc. No. 60-7 at 59:18-20); (Doc. No. 60- 7 4 at 3 ¶ 10); (Doc. No. 60-5 at 2-3 ¶¶ 5, 8). 8 • Plaintiff’s Tylenol with Codeine prescription was not intended for long-term use. (Doc. 9 No. 60-7 at 15:11-16; 36:12-19). 10 • Plaintiff underwent curative Harvoni treatment for Hepatitis C between May 2017 and 11 September 2017. Plaintiff received his last dose of Harvoni on September 18, 2017. 12 Plaintiff was undetectable for Hepatitis C by December 20, 2017. (Doc. No. 60-7 at 13 21:19-22, 22: 6-19); (Doc. No. 60-5 at 3 ¶ 9). 14 • No medical provider ever informed Plaintiff that Tylenol with Codeine was the only form 15 of pain medication that Plaintiff could take following his Harvoni treatment in September 16 2017. (Doc. No. 60-7 at 26:2-5); (Doc. No. 60-4 at 4 ¶ 13). 17 • Plaintiff first saw Dr. Chau for medical care on February 8, 20184, in connection with his 18 routine chronic care program appointment and request for therapeutic shoes. Plaintiff 19 discussed his history of chronic back pain, hip pain, and osteoarthritis with Dr. Chau. 20 Plaintiff did not have any prior history of back or hip surgery and did not report any falls 21 to Dr. Chau. Plaintiff took Tylenol with Codeine for pain control, which had been 22 previously prescribed at a dosage of two, 30-milligram tablets taken three times per day. 23 (Doc. No. 60-7 at 18:9-18; 19: 11-13); (Doc. No. 60-4 at 3 ¶¶ 8-11); (Doc. No. 60-5 at 2 ¶ 24 6). 25 26 27 4 The Court notes that, according to Defendant’s statement of undisputed facts, he became Plaintiff’s PCP in January 2018 but did not see Plaintiff for an appointment until February 2018. To the extent these facts 28 present an inconsistent timeline, the Court does not find the inconsistency to be material. 1 • At the February 8, 2018 physical exam, Dr. Chau observed that Plaintiff had a normal gait 2 and could move at a moderate pace with the assistance of his cane. Plaintiff reported that 3 he was also able to program, ambulate with the use of his cane, shower, dress himself, 4 groom himself, walk to the medication line, and independently perform all activities of 5 daily living. (Doc. No. 60-7 at 19:25, 20:1-14, 23:8-25, 24:1-8); (Doc. No. 60-4 at 3 ¶ 9). 6 • Given Plaintiff’s functional ability and stable condition, Dr. Chau assessed that Tylenol 7 with Codeine was not medically necessary to treat Plaintiff’s chronic, arthritic pain. Dr. 8 Chau tapered Plaintiff’s Tylenol with Codeine to one, 30-milligram tablet taken three (3) 9 times a day. Dr. Chau also recommended activity modifications and ordered a follow up 10 visit in four to five weeks. (Doc. No. 60-7 at 30:16-24); (Doc. No. 60-4 at 3 ¶¶ 10-11). 11 • Plaintiff’s second medical encounter with Dr. Chau took place on March 12, 2018. Dr. 12 Chau observed that Plaintiff had a stable gait, could move at a moderate pace with the use 13 of his cane, and denied having any falls or weakness. Dr. Chau documented that 14 Plaintiff’s osteoarthritis and hip pain were stable and that Plaintiff remained functional. 15 (Doc. No. 60-4 at 4 ¶ 12); (Doc. No. 60-5 at 2 ¶ 7). 16 • After discussing the matter with Plaintiff, Dr. Chau discontinued Plaintiff’s Tylenol with 17 Codeine prescription in its entirety on March 12, 2018. (Doc. No. 60-4 at 4 ¶ 12). 18 • As a substitute for Tylenol with Codeine, Dr. Chau prescribed Plaintiff 650 mg of 19 Tylenol, to be taken three (3) times a day, for pain management. (Doc. No. 60-7 at 31:21- 20 25, 32:1-3); (Doc. No. 60-4 at 4 ¶ 12). 21 • Tylenol (without Codeine) was proper for Plaintiff based on his medical history. Tylenol 22 is a commonly used non-opioid analgesic and has few side effects when used 23 appropriately. Prescribing Tylenol for pain control did not cause Plaintiff any harm or 24 injury, let alone spontaneous swelling to his right knee. (Doc. No. 60-7 at 27:2-12); (Doc. 25 No. 60-4 at 4 ¶ 13); (Doc. No. 60-5 at 3 ¶ 9). 26 • Plaintiff also had access to Naproxen (Aleve) for pain relief, which he obtained from the 27 facility’s canteen free of charge. (Doc. No. 60-7 at 27:14-25, 28:1-9, 41:13-25, 42:1). 28 1 • The decision to taper Plaintiff’s Tylenol with Codeine on February 8, 2018, and 2 eventually discontinue the narcotic medication in favor of a non-opioid alternative on 3 March 12, 2018, was medically appropriate to treat Plaintiff’s chronic back pain, hip pain, 4 and osteoarthritis. (Doc. No. 60-4 at 4 ¶ 13); (Doc. No. 60-5 at 3 ¶¶ 8-10). 5 • Plaintiff first raised complaints regarding right knee pain on April 6, 2018. Plaintiff did 6 not start experiencing right knee pain until three weeks after he was entirely weaned off 7 Tylenol with Codeine. (Doc. No. 60-7 at 33:24-25, 34:1-3, 16-23); (Doc. No. 60-4 at 4 8 ¶¶ 12, 14); (Doc. No. 60-5 at 3 ¶ 10). 9 • Plaintiff stated at his deposition that his right knee pain did not arise from an acute knee 10 injury. (Doc. No. 60-7 at 35:10-18). He filed a Form 7362 medical services request 11 regarding his right knee pain on April 6, 2018, and acknowledged at his deposition that he 12 did so hoping that Tylenol with Codeine would be reinstated for pain management. (Id. at 13 36:20-23). Plaintiff stated at his deposition that he was frustrated Dr. Chau had not 14 endorsed the same pain management approach as his previous medical providers. (Id. at 15 29:21-25). 16 • Plaintiff subsequently went to the medical clinic on April 10, 2018, regarding his 17 complaints of right knee pain. Plaintiff did not present with a swollen right knee. (Doc. 18 No. 60-7 at 37:15-22, 38:25, 39:1-8); (Doc. No. 60-4 at 4-5 ¶ 15). 19 • RN Manigque performed a physical evaluation of Plaintiff’s right knee on April 10, 2018, 20 and documented that Plaintiff could ambulate using his cane. (Doc. No. 60-4 at 4-5 ¶ 15). 21 Plaintiff exhibited no signs or symptoms of infection to his right knee. (Id. at 5 ¶ 15). 22 According to her progress notes, RN Manigque advised Plaintiff that he had an upcoming 23 appointment with Dr. Chau and recommended that Plaintiff avoid strenuous activities. 24 (Id.). Plaintiff indicated to RN Manigque that he would wait for his scheduled 25 appointment with Dr. Chau for a complete evaluation and left the clinic in stable 26 condition. (Doc. No. 60-7 at 38:20-25, 39:1-14). 27 • Plaintiff went to the medical clinic the next day, on April 11, 2018. Plaintiff claimed that 28 he went man down due to right leg pain. Plaintiff did not present with a swollen right 1 knee, despite raising related concerns. (Doc. No. 60-7 at 39:20-25, 40:1-11, 42:9-10); 2 (Doc. No. 60-4 at 5 ¶ 16). 3 • RN Manigque performed another physical evaluation of Plaintiff’s right knee and did not 4 note any signs of inflammation. Plaintiff could also walk on both of his legs while using 5 his cane and was in no apparent distress when RN Manigque took his vital signs. (Doc. 6 No. 60-7 at 38:20-24); (Doc. No. 60-4 at 5 ¶ 16); (Doc. No. 60-5 at 3-4 ¶ 11). 7 • Plaintiff asked for Tylenol with Codeine to be reinstated on April 11, 2018, and became 8 argumentative with RN Manigque regarding his pain management. RN Manigque 9 informed Plaintiff that Dr. Chau would be advised of his complaints and recommended 10 that Plaintiff avoid strenuous activities. (Doc. No. 60-7 at 41:2-12); (Doc. No. 60-4 at 5 11 ¶ 16). 12 • Plaintiff left the clinic on April 11, 2018 with a stable gait and in no respiratory distress. 13 Dr. Chau was subsequently informed of Plaintiff’s complaints and Plaintiff was scheduled 14 for an appointment on April 16, 2018. (Doc. No. 60-4 at 5 ¶¶ 16-17). 15 • Plaintiff continued to take Tylenol and Naproxen for pain relief. (Doc. No. 60-7 at 41:12- 16 25, 42:1). 17 • On April 12, 2018, Plaintiff went man down in his housing unit. LVN Robinson 18 responded to the corresponding medical alarm at approximately 2:37 PM, and transported 19 Plaintiff to the facility A medical clinic for a walk-in evaluation with Dr. Chau. (Doc. No. 20 28 at 15); (Doc. No. 60-6 at 2 ¶ 6). 21 • Nursing staff promptly took Plaintiff’s vital signs. Plaintiff’s temperature was within 22 normal limits, and there was no sign of swelling, bruising, or discoloration to his right 23 knee. Plaintiff complained that his right knee had been causing him problems and 24 reported that his legs had given out on him. Plaintiff did not complain that he suffered 25 from any acute injuries or that he had sustained any serious trauma to his right knee. (Doc. 26 No. 28 at 15); (Doc. No. 60-7 at 47:21-25, 48:1-5, 49:9-20); (Doc. No. 60-6 at 3-4 ¶¶ 7, 10 27 11-12). 28 1 • After LVN Robinson apprised Dr. Chau of Plaintiff’s condition, Dr. Chau evaluated 2 Plaintiff in the vitals sign area. Dr. Chau did not observe any signs of acute injury or 3 swelling to Plaintiff’s right knee. Plaintiff’s condition was not life-threatening, emergent, 4 or urgent, and appeared to be largely unchanged from when he was evaluated by RN 5 Manigque the day before. (Doc. No. 60-4 at 5-7 ¶ 18-19, 22); (Doc. No. 60-5 at 4 ¶ 12); 6 (Doc. No. 60-6 at 3-4 ¶¶ 8, 12-13). 7 • Plaintiff told Dr. Chau that he attributed his right knee condition to Dr. Chau’s 8 discontinuation of Tylenol with Codeine. Plaintiff asked if Dr. Chau was going to put him 9 back on the narcotic pain medication. (Doc. No. 28 at 16); (Doc. No. 60-7 at 52:3-10); 10 (Doc. No. 60-4 at 6 ¶ 19). 11 • Dr. Chau understood and believed that Plaintiff’s complaints pertained to chronic pain, as 12 opposed to an acute knee injury or condition. (Doc. No. 60-4 at 6-7 ¶ 21-22). 13 • Dr. Chau determined that reinstating opioid therapy for Plaintiff’s pain management was 14 not clinically indicated on April 12, 2018. (Doc. No. 60-4 at 7 ¶ 22). Upon reviewing 15 Plaintiff’s medical records from April 2018, Dr. Younger opined that given the lack of 16 any significant knee trauma or acute knee injury, there was no justification for reinstating 17 Plaintiff’s prescription for Tylenol with Codeine on April 12, 2018. (Doc. No. 60-5 at 4 18 ¶ 12). 19 • Dr. Chau informed Plaintiff that he would not prescribe Tylenol with Codeine. Before Dr. 20 Chau could discuss a plan of care, Plaintiff became angry and abruptly stood up with no 21 apparent difficulty. (Doc. No. 60-4 at 5-6 ¶ 19); (Doc. No. 60-6 at 3 ¶ 9). 22 • Plaintiff was able to stand without the use of his assistive device when he engaged Dr. 23 Chau. (Doc. No. 60-7 at 7:25, 8:1, 6-7, 50:18-19, 54:14); (Doc. No. 60-4 at 5-6 ¶ 19); 24 (Doc. No. 60-6 at 3 ¶ 9). 25 • Dr. Chau feared for his safety when Plaintiff became argumentative during the April 12, 26 2018 encounter. Dr. Chau, LVN Robinson, and nearby custody staff thought that Plaintiff 27 was going to strike Dr. Chau with his cane. (Doc. No. 28 at 13); (Doc. No. 60-7 at 50:18- 28 1 25, 51:1, 7-8, 53:21-24, 57:9-14, 58:11, 65:19-22); (Doc. No. 60-4 at 5-6 ¶ 19); (Doc. No. 2 60-6 at 3 ¶ 9). 3 • Multiple staff members alerted their personal alarms in response to Plaintiff’s conduct. 4 The medical encounter ended when custody staff intervened, took Plaintiff to the ground, 5 and restrained him. (Doc. No. 60-7 at 8:2-3, 53:17-19); (Doc. No. 60-4 at 5-6 ¶ 19); (Doc. 6 No. 60-6 at 3 ¶ 9). 7 • Plaintiff was charged with, and found guilty of, a rule violation report (“RVR”) for 8 assaulting Dr. Chau with a weapon, resulting in the use of force, in connection with the 9 April 12, 2018 incident. (Doc. No. 60-7 at 60:10-14); (Doc. No. 60-4 at 6 ¶ 20). 10 • Dr. Chau ordered an x-ray of Plaintiff’s right knee on April 12, 2018, which was 11 performed on April 13, 2018. No fracture, dislocation, or acute knee abnormality was 12 present. The x-ray revealed mild arthritis and chondrocalcinosis in Plaintiff’s right knee. 13 (Doc. No. 60-7 at 6:2-6, 61:16-19); (Doc. No. 60-4 at 2, 6 ¶ 21, 38); (Doc. No. 60-5 at 4 14 ¶ 13). 15 • The April 12, 2018 visit was the only direct medical encounter that Plaintiff had with Dr. 16 Chau regarding complaints of right knee pain. Plaintiff did not have any further clinical 17 contact with Dr. Chau and was assigned to a new PCP thereafter. (Doc. No. 60-4 at 3, 4, 18 5-6 ¶¶ 8, 12, 19, 21). 19 • No medical provider has prescribed Plaintiff Tylenol with Codeine since he was weaned 20 from the medication on March 12, 2018. (Doc. No. 60-7 at 28:20-25). 21 • According to Dr. Younger, even if the April 12, 2018 encounter had not prematurely 22 ended, deferring a comprehensive evaluation of Plaintiff’s knee, maintaining Plaintiff’s 23 non-narcotic pain management approach until a definite diagnosis could be made would 24 have been a medically reasonable treatment plan. (Doc. No. 60-5 at 4 ¶ 14). 25 • According to Dr. Younger, an ice pack and Tylenol with Codeine were not medically 26 necessary to treat Plaintiff’s right knee pain on April 12, 2018. Nor would any failure to 27 provide Plaintiff with an ice pack and/or narcotic pain medication have posed an excessive 28 risk to Plaintiff’s health, made his right knee condition worse, or fallen below the standard 1 of care for similar complaints. (Doc. No. 60-4 at 6-7 ¶¶ 22-23); (Doc. No. 60-5 at 4-5 ¶¶ 2 14-15). 3 • Dr. Younger opined that the overall treatment Dr. Chau provided to Plaintiff, including 4 limitation of activities, use of an ambulatory aid, and non-narcotic pain medications, was 5 medically appropriate. (Doc. No. 60-4 at 7-8 ¶¶ 25-28); (Doc. No. 60-5 at 2-3 ¶ 8). 6 D. The Undisputed Facts Show Defendant Did Not Exhibit Deliberate 7 Indifference to a Serious Medical Condition 8 The Court first must consider whether Defendant, as the moving party, has met his initial 9 burden of showing prima facie entitlement to summary judgment on the issue of Plaintiff’s 10 deliberate medical indifference claim. Celotex Corp., 477 U.S at 323. Defendants submit that 11 Plaintiff cannot show a genuine dispute of material fact as to the second prong of medical 12 deliberate indifference—whether Defendant failed to respond to his serious medical condition. 13 Jett, 439 F.3d at 1096. A defendant “cannot be said to have been indifferent” to an inmate’s pain 14 if they took steps to address it.” DeGeorge v. Mindoro, No. 17-CV-06069-LHK, 2019 WL 15 2123590, at *7 (N.D. Cal. May 15, 2019). The Court agrees. 16 Construing the evidence in the light most favorable to Plaintiff, the undersigned finds 17 there is no triable issue as to whether Defendant acted with deliberate indifference to Plaintiff’s 18 serious medical conditions. Instead, the record evidence reveals only that Plaintiff disagrees with 19 Defendant Chau’s decision to wean him off Tylenol with Codeine (“Tylenol 3”) and substitute 20 another medication. Further, the evidence reveals that despite Plaintiff’s behavior during the 21 examination, Defendant Chau still ordered further testing on Plaintiff’s knee. 22 1. Serious Medical Need 23 Defendant does not explicitly dispute that Plaintiff was experiencing a serious medical 24 need during the time he was Plaintiff’s primary care physician from January to April 2018. 25 Throughout the events at issue here, Plaintiff was suffering from chronic arthritis, which is 26 generally accepted as a serious medical condition. See, e.g., Washington v. Brown, 2009 WL 27 160311, at *14 (E.D. Cal. Jan. 21, 2009) (undisputed that “chronic arthritis constitutes a serious 28 medical need”), report and recommendation adopted, 2009 WL 532615 (E.D. Cal. Mar. 3, 2009); 1 see also McGuckin, 974 F.2d at 1059-60 (“the existence of chronic and substantial pain are 2 examples of indications that a prisoner has a ‘serious’ need for medical treatment.”). 3 The Court thus assumes for purposes of this Motion that Plaintiff presented with a 4 serious medical need during the relevant time, even if it was a chronic condition rather than an 5 acute knee injury or undiagnosed Elephantiasis, as Plaintiff speculated. 6 2. Deliberate Indifference 7 Plaintiff attributes deliberate indifference to Defendant Chau for altering Plaintiff’s 8 medical prescriptions in February and March 2018, and then refusing to treat Plaintiff on April 9 12, 2018. (See generally Doc. No. 28). The undisputed facts, however, reflect that Dr. Chau 10 provided Plaintiff reasonable medical treatment throughout his time as Plaintiff’s primary care 11 physician, and that this treatment fell within the standard of care. 12 a. Defendant’s Decision to Taper Plaintiff’s Use of Tylenol 3 13 At the February 8, 2018 routine appointment, Dr. Chau observed that Plaintiff had a 14 normal gait and could move at a moderate pace with the assistance of his cane. Plaintiff reported 15 that he was also able to program, ambulate with the use of his cane, shower, dress himself, groom 16 himself, walk to the medication line, and independently perform all activities of daily living. 17 (Doc. No. 60-7 at 19:25, 20:1-14, 23:8-25, 24:1-8); (Doc. No. 60-4 at 3 ¶ 9). Plaintiff suffered 18 from chronic arthritis, which Chau concluded did not require continued treatment with opioids 19 and determined that it would be appropriate to taper Plaintiff’s use of Tylenol 3. (Doc. No. 60-7 20 at 30:16-24); (Doc. No. 60-4 at 3 ¶ 10-11). Dr. Chau also recommended activity modifications 21 and ordered a follow up visit in four to five weeks. (Doc. No. 60-7 at 30:16-24); (Doc. No. 60-4 22 at 3 ¶¶ 10-11). Plaintiff has not refuted this characterization of his condition on February 8, 2018 23 nor the description of Defendant’s plan of treatment. (See generally Doc. No. 62). 24 While Plaintiff disagrees with Defendant’s decision to taper his use of Tylenol 3, a 25 difference of medical opinion does not amount to deliberate indifference under the Eighth 26 Amendment. See Toguchi, 391 F.3d at 1051. “Typically, a difference of opinion between a 27 physician and the prisoner –– or between medical professionals –– concerning what medical care 28 is appropriate does not amount to deliberate indifference.” Edmo v. Corizon, Inc., 935 F.3d 757, 1 786 (9th Cir. 2019) (citations, quotations and brackets omitted). “But that is true only if the 2 dueling opinions are medically acceptable under the circumstances.” Id. (citation omitted). To 3 determine whether the treatment was medically acceptable, courts must consider “the record, the 4 judgments of prison medical officials, and the views of prudent professionals in the 5 field....” Id. “Accepted standards of care and practice within the medical community are highly 6 relevant in determining what care is medically acceptable and unacceptable.” Id. 7 Here, Plaintiff does not present any evidence to suggest that Defendant Chau failed to 8 treat him or that Chau’s course of treatment for his chronic arthritis “was medically unacceptable 9 under the circumstances,” and was chosen “in conscious disregard of an excessive risk to [the 10 prisoner’s] health.” Jackson, 90 F.3d at 332. Further, Dr. Younger opined that the decision to 11 taper Plaintiff off Tylenol 3 was medically appropriate in the circumstances. (Doc. No. 60-5 at 2- 12 3 ¶ 8). Thus, the undisputed facts reflect that Defendant was not deliberately indifferent to 13 Plaintiff’s serious medical condition when he saw Plaintiff on February 8, 2018 and made the 14 decision to taper Plaintiff from two 30-mg doses of Tylenol 3, three times per day to one 30-mg 15 dose of Tylenol 3, three times per day. (Doc. No. 60-7 at 30:16-24); (Doc. No. 60-4 at 3 ¶¶ 10- 16 11). 17 b. Defendant’s Decision to Discontinue Plaintiff’s Use of Tylenol 3 18 When Chau saw Plaintiff approximately a month later, he still had a stable gait, could 19 move at a moderate pace with the use of his cane, and denied having any falls or weakness. Dr. 20 Chau documented that Plaintiff’s osteoarthritis and hip pain were stable and that Plaintiff 21 remained functional. (Doc. No. 60-4 at 4 ¶ 12); (Doc. No. 60-5 at 2 ¶ 7). Plaintiff has not refuted 22 this characterization of his condition on March 12, 2018. (See generally Doc. No. 62). Again, 23 Dr. Younger’s unrefuted expert opinion is that the decision to discontinue Plaintiff use of Tylenol 24 3 altogether in March 2018 was medically appropriate. (Doc. No. 60-5 at 2-3 ¶ 8). 25 Thus, the undisputed facts reflect that Defendant Chau did not exhibit deliberate 26 indifference when he decided to discontinue Plaintiff’s use of Tylenol 3 altogether and instead 27 prescribe Plaintiff with 650 mg of Tylenol, taken three times per day. Further, the record reflects 28 that in addition to the non-opioid medication to address his chronic pain, Plaintiff was able to 1 supplement the prescribed medication with Naproxen that was available from the facility’s 2 canteen free of charge. 3 c. Defendant’s Treatment of Plaintiff on April 12, 2018 4 On April 12, 2018, Plaintiff presented to the NKSP medical clinic with what he states was 5 a “swollen knee, [that] was hot with fever.” (Doc. No. 28 at 8). Upon taking Plaintiff’s vital 6 signs, nursing staff noted that Plaintiff’s skin was warm, and his temperature was within normal 7 limits. (Doc. No. 60-6 at 3 ¶ 7). Upon examining Plaintiff, Defendant Chau “did not observe any 8 swelling, bruising, bleeding, or obvious signs of injury or trauma to [Plaintiff’s] right knee.” 9 (Doc. No. 60-4 at 5-6 ¶ 19). This was confirmed by LVN’s Robinson evaluation, which found no 10 sign of swelling, bruising, or discoloration to the right leg or knee. (Doc. No. 60-6 at 3-4 ¶¶ 7, 11 10-12). Nevertheless, Dr. Chau ordered an x-ray to be taken the next day, which indicated that 12 Plaintiff had mild arthritis and chondrocalcinosis.5 (See Doc. No. 60-5 at 4 ¶ 13). The 13 undisputed facts reflect that Defendant examined Plaintiff on April 12, 2018, and despite not 14 observing any signs of injury, nevertheless ordered further testing. 15 Plaintiff speculated that his knee pain and leg swelling were due to Dr. Chau 16 discontinuing Plaintiff’s prescription for Tylenol 3 and changing some other unspecified 17 medication. (Doc. No. 28 at 8). Thus, liberally construed, Plaintiff alleges that Dr. Chau’s 18 decision to taper and discontinue his use of Tylenol 3 reflected deliberate indifference to 19 Plaintiff’s chronic arthritis and related pain. The undisputed facts reflect, however, that Plaintiff 20 did not start experiencing right knee pain until three weeks after he was entirely weaned from 21 Tylenol 3, belying a causal connection between the two. (Doc. No. 60-7 at 33:24-25, 34:1-3, 16- 22 23); (Doc. No. 60-4 at 4 ¶¶ 12, 14). Moreover, Dr. Younger, the medical expert, opined that 23 “discontinuing [Plaintiff’s] Tylenol with Codeine on March 12, 2018 did not cause him to 24 develop increasing pain or an underlying knee condition.” (Doc. No. 60-5 at 3 ¶ 10). Thus, the 25 undisputed record shows there was no causal connection between Defendant Chau’s actions and 26 27 5 “Chondrocalcinosis is a type of arthritis that typically affects the knees and causes flare-ups of pain and inflammation.” https://www.medicalnewstoday.com/articles/chondrocalcinosis. 28 1 Plaintiff’s pain and that Defendant Chau’s refusal to reinstate Plaintiff’s Tylenol 3 prescription 2 was medically appropriate and did not reflect deliberate indifference. 3 Based on the record, Defendant has established that he was not deliberately indifferent to 4 Plaintiff’s serious medical need, and Plaintiff has failed to raise a genuine issue for trial that 5 Defendants’ chosen course of treatment to wean Plaintiff off Tylenol 3 and substitute alternative 6 medical treatment to treat his serious medical condition was medically unacceptable under the 7 circumstances and chosen in disregard of an excessive risk to Plaintiff’s health. See, e.g., See 8 Hutchins Jr. v. Johal, 2021 WL 4690597 (E.D. Cal. Oct. 7, 2021) (granting defendant’s motion 9 for summary judgment finding defendant was not deliberately indifferent to plaintiff’s serious 10 medical needs when defendant tapered and discontinued plaintiff’s morphine prescription) 11 findings and recommendation adopted by 2021 WL 6051696 (E.D. Cal. Jan. 10, 2022); 12 DeGeorge v. Mindoro, 2019 WL 2123590 (N.D. Cal. May 15, 2019) (granting defendants’ 13 motion for summary judgment and finding no deliberate indifference to plaintiff’s serious 14 medical needs when defendants weaned plaintiff off morphine and “took other reasonable steps to 15 abate plaintiff’s pain”); Wilkins v. Barber, 2023 WL 1111657, at *18 (E.D. Cal. Jan. 30, 2023), 16 report and recommendation adopted, 2023 WL 2617017 (E.D. Cal. Mar. 23, 2023); Solomon v. 17 Negrete, 2014 WL 546367 (E.D. Cal. Feb. 11, 2014), findings and recommendations adopted by 18 2014 WL 1024567 (E.D. Cal. Mar. 14, 2014) (granting motion for summary judgment on claim 19 challenging discontinuance of morphine prescription with alternate prescription for 20 ibuprofen). See also Wyres v. Zhang, 2021 WL 3772387 (S.D. Cal. Aug. 25, 2021); Montiel v. 21 Taher-Pour, 2014 WL 2574533 (E.D. Cal. June 9, 2014), findings and recommendations adopted 22 by 2014 WL 3615801 (E.D. Cal. July 22, 2014) (granting defendants summary judgment on 23 Eighth Amendment claim challenging abrupt discontinuation of tramadol and four-day taper of 24 gabapentin, with the use of an alternative prescription for ibuprofen). 25 The evidence in the record, however, reflects a dispute as to whether Defendant Chau 26 denied Plaintiff use of an ice pack on April 12, 2018. (See Doc. No. 60-6 at 3 ¶ 8, 10); (Doc. No. 27 28 at 8); see Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (“A verified complaint 28 may be used as an opposing affidavit under Rule 56.”) Even if Chau prevented Plaintiff from 1 having an ice pack, not conceded, the undisputed evidence indicates that doing so did not reflect 2 deliberate indifference. Given that Plaintiff did not present any acute injury on April 12, 2018, 3 Dr. Younger opined that “any failure to provide an ice pack and/or Tylenol with Codeine for pain 4 control was medically acceptable under the circumstances and would not have posed an excessive 5 risk to Mr. Scott’s health on April 12, 2018.” (Doc No. 60-5 at 4 ¶ 14). Further, the refusal to 6 provide an ice pack alone under the facts present here does not rise to a level of deliberate 7 indifference. See Jones v. Blanas, 2007 WL 137168, at *8 (E.D. Cal. Jan. 17, 2007), report and 8 recommendation adopted, 2007 WL 840782 (E.D. Cal. Mar. 19, 2007) (holding that the 9 defendant-doctor’s refusal to provide an ice pack for plaintiff’s sprained ankle did not violate the 10 Eighth Amendment, as the disagreement over whether an ice pack was medically necessary to 11 reduce swelling amounted to a difference of opinion regarding the proper course of treatment); 12 see also Derello v. Stickley, 631 F. Supp. 3d 758, 769 (D. Ariz. 2022), appeal dismissed, No. 22- 13 15379, 2022 WL 19038555 (9th Cir. Oct. 26, 2022) (holding no deliberate indifference when 14 defendant refused plaintiff’s request for ice, as there was no evidence of harm that resulted from 15 the refusal, or that ice was the only acceptable form of treatment). 16 Here, the undisputed evidence shows Defendant Chau examined Plaintiff, listened to his 17 concerns, and ordered further testing to rule out the possibility of injury. Thus, the Court finds no 18 genuine dispute that Chau provided adequate medical care on April 12, 2018 and was not 19 deliberately to Plaintiff’s serious medical needs. To the extent any further examination of 20 Plaintiff could or should have been made that day, Plaintiff’s own aggressive behavior toward Dr. 21 Chau prevented that from occurring and Plaintiff cannot fault Chau for an incomplete 22 examination. 23 Plaintiff generally disputes, without support, that Defendant’s actions were medically 24 appropriate. Except where the conduct at issue is within the common knowledge of laymen, 25 however, the standard of care can only be proven by expert testimony. See Hutchinson v. U.S., 26 838 F.2d 390, 392 (9th Cir. 1988). Thus, “[w]hen a defendant moves for summary judgment and 27 supports his motion with expert declarations that his conduct fell within the community standard 28 of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting 1 expert evidence.” Id. 2 Here, Plaintiff provides no evidence and no expert testimony to rebut Dr. Younger’s 3 expert opinion. The appropriate management of Plaintiff’s pain medication and treatment of 4 Plaintiff’s chronic arthritis is not something within a layperson’s common knowledge. Thus, 5 Plaintiff was required to provide expert testimony to rebut Dr. Younger’s opinion that the medical 6 care provided by Defendant Chau fell within the standard of care. See Hesse v. Cnty. of 7 Sacramento, 2024 WL 494007, at *7 (E.D. Cal. Feb. 8, 2024), report and recommendation 8 adopted, 2024 WL 1219078 (E.D. Cal. Mar. 21, 2024). Plaintiff did not. 9 The overwhelming and undisputed record evidence shows that Defendant Chau provided 10 appropriate medical care for Plaintiff’s pain and chronic conditions while serving as Plaintiff’s 11 primary care physician. On April 12, 2018, Chau properly examined and referred Plaintiff for 12 prompt, additional testing for his symptoms, even after Plaintiff allegedly assaulted him. Taken 13 together, the record refutes Plaintiff’s claim of medical deliberate indifference. Defendant is 14 accordingly entitled to summary judgment on this basis. 15 E. Qualified Immunity 16 Because the Court finds no genuine dispute of material fact that Defendant Chau was not 17 deliberately indifferent to Plaintiff’s serious medical condition, and thus that Chau did not violate 18 Plaintiff’s constitution rights, the Court need not reach Defendant’s affirmative defense of 19 qualified immunity. 20 CONCLUSION 21 Construing the evidence in the light most favorable to Plaintiff, the Court finds there is no 22 triable issue as to whether Defendant Chau acted with deliberate indifference to Plaintiff’s serious 23 medical condition. The record demonstrates Plaintiff received adequate medical care for his 24 chronic arthritis and that his decision to taper, then discontinue Plaintiff’s use of Tylenol 3 in 25 favor of Tylenol was medically appropriate and did not reflect deliberate medical indifference in 26 violation of the Eighth Amendment. The undisputed record also shows that Chau’s treatment of 27 Plaintiff’s symptoms on April 12, 2018 was appropriate and fell within the standard of care. 28 //// 1 Accordingly, it is hereby RECOMMENDED: 2 1. Defendant Chau’s motion for summary judgment (Doc. No. 60) be GRANTED. 3 2. The Clerk of Court terminate any pending motions, vacate all deadlines, enter 4 judgment in Defendant’s favor and close this case. 5 NOTICE TO PARTIES 6 These Findings and Recommendations will be submitted to the United States District 7 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 8 | after being served with a copy of these Findings and Recommendations, a party may file written 9 | objections with the Court. Jd.; Local Rule 304(b). The document should be captioned, 10 | “Objections to Magistrate Judge’s Findings and Recommendations.” The assigned District Judge 11 will review these Findings and Recommendations under 28 U.S.C. § 636(b)()(C). A party’s 12 | failure to file objections within the specified time may result in the waiver of certain rights on 13 || appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 14 1S Dated: _ September 9, 2024 oe Zh. Sareh Zackte 16 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 23