Robinson v. Robertson ( 2020 )

1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 MALCOLM ANTWIONE No. C 19-1613 WHA (PR) ROBINSON, 12 ORDER GRANTING MOTION FOR Plaintiff, SUMMARY JUDGMENT 13 v. 14 J. ROBERTSON; E. GOULDING; T. 15 ABAD; B.WOODS; C. DELTE, (ECF No. 21) 16 Defendants. / 17 18 INTRODUCTION 19 Plaintiff filed this pro se civil rights case under 42 U.S.C. § 1983 claiming that 20 defendants, who are officials at Pelican Bay State Prison (“PBSP”), were deliberately 21 indifferent to his serious medical needs. Defendants filed a motion for summary judgment. 22 Although plaintiff was the opprtunity to file an opposition and cautioned about the adverse 23 consequences of not doing so, he has not opposed defendants’ motion. For the reasons 24 explained below, the motion for summary judgment is GRANTED. 25 STATEMENT 26 Plaintiff broke a bone in his hand in a fight with other inmate at PBSP in May 2018. 27 Medical personnel, including defendant E. Golding, a PBSP nurse, examined him and gave him 28 pain medication, a splint, and care instructions. Over the next six months, PBSP medical 1 personnel examined him regularly, sent him to an outside hospital for x-rays, MRIs and 2 examinations by an orthopedic specialist. Plaintiff’s pain had significantly decreased by June, 3 was gone by July, and the hand was healed by August. Medical personnel at PBSP and the 4 outside hospital continued to check with plaintiff about the condition of his hand on a regular 5 basis over the ensuing months. In December 2018, plaintiff had surgery on the hand to correct 6 arthritis. An orthopedist had diagnosed the arthritis in 2017 and found that it arose from a prior 7 fracture in plaintiff’s hand in 2013. The surgery involved removing a bone and extending the 8 tendon in the hand. 9 Plaintiff alleges that at an appointment on May 21, 2018, defendant Golding did not 10 believe Plaintiff’s report that his pain was a ten on a scale of one to ten, and failed to grant his 11 request for an appointment with a doctor. Plaintiff filed an administrative grievance requesting 12 that Golding be fired. Defendant Supervising Nurse T. Abad interviewed plaintiff and Golding, 13 reviewed his medical records, and examined him. Abad found no fault in Golding’s job 14 performance and denied the grievance. Defendants Healthcare Chief Executive Officer B. 15 Woods, and Appeals Chief C. Delte, were also involved in denying the grievance. Defendant J. 16 Robertson was the PBSP Warden. 17 ANALYSIS 18 A. STANDARD OF REVIEW 19 Summary judgment is proper where the pleadings, discovery and affidavits show that 20 there is "no genuine issue as to any material fact and that the moving party is entitled to 21 judgment as a matter of law." Fed. R. Civ. P. 56. Material facts are those which may affect the 22 outcome of the case. A dispute as to a material fact is genuine if there is sufficient evidence for 23 a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 24 477 U.S. 242,248 (1986). The moving party for summary judgment bears the initial burden of 25 identifying those portions of the pleadings, discovery and affidavits which demonstrate the 26 absence of a genuine issue of material fact. When the moving party has met this burden of 27 production, the nonmoving party must go beyond the pleadings and, by its own affidavits or 28 1 discovery, set forth specific facts showing that there is a genuine issue for trial. If the 2 nonmoving party fails to produce enough evidence to show a genuine issue of material fact, the 3 moving party wins. Celotex Corp.v. Cattrett, 477 U.S. 317, 323 (1986). 4 At summary judgment, the judge must view the evidence in the light most favorable to 5 the nonmoving party: if evidence produced by the moving party conflicts with evidence 6 produced by the nonmoving party, the judge must assume the truth of the evidence set forth by 7 the nonmoving party with respect to that fact. Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014). 8 Defendants’ summary judgment motion may not be granted solely because plaintiff has 9 not opposed it. See Cristobal v. Siegel, 26 F.3d 1488, 1494-95 & n.4 (9th Cir. 1994) . The 10 court may grant an unopposed motion for summary judgment if the movant's papers are 11 themselves sufficient to support the motion and do not on their face reveal a genuine issue of 12 material fact. See Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1029 (9th 13 Cir. 2001). 14 B. DISCUSSION 15 There is no evidence that defendants violated plaintiff’s constitutional rights. Deliberate 16 indifference to a prisoner’s serious medical needs violates the Eighth Amendment’s proscription 17 against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). A 18 prison official is deliberately indifferent if he knows that a prisoner faces a substantial risk of 19 serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer v. 20 Brennan, 511 U.S. 825, 837 (1994). The prison official must not only “be aware of facts from 21 which the inference could be drawn that a substantial risk of serious harm exists,” but he “must 22 also draw the inference.” Id. 23 There is no evidence of deliberate indifference to plaintiff’s broken hand. Plaintiff 24 received pain medication, a splint, regular examinations by nurses, doctors and orthopedic 25 specialists, x-rays and MRIs. His condition improved and healed, and there is no evidence that 26 defendants’ care slowed or prevented the healing process. Defendants present the 27 uncontradicted opinion of an orthopedic surgeon that plaintiff received medically sound 28 1 treatment for his hand. Defendant Golding denies minimizing plaintiff’s reported pain levels, 2 but even if plaintiff’s contention that he did so is correct, there is no evidence that this 3 negatively impacted the medical care that plaintiff received, including his pain medication. 4 Plaintiff alleges that Golding disregarded his request to see a doctor, but a doctor examined 5 plaintiff nine days later. The expert indicates that seeing a doctor sooner than that would not 6 have changed the treatment at all. 7 Plaintiff asserted in his Complaint that he should have received the surgery sooner. The 8 surgery was performed to correct the arthritis in plaintiff’s hand, which plaintiff’s medical 9 records show was a preexisting condition from an earlier break from 2013. Plaintiff alleged that 10 the surgeon told him that if he had operated sooner, then he could have saved the bone. This 11 allegation does not create a triable issue regarding defendants’ deliberate indifference, for 12 several reasons. First, plaintiff did not present evidence of the surgeon’s statement, and on its 13 own it is inadmissible hearsay. Second,the surgeon’s opinion conflicted with the orthopedist 14 who examined plaintiff in 2017, the orthopedists who reviewed his test results and treated him 15 following the break in 2018, and defendants’ expert orthopedic surgeon, none of whom opine 16 that surgery soon was necessary sooner, would have saved the bone, or would yielded a better 17 outcome for plaintiff. A difference of opinion among medical professionals as to the proper 18 course of treatment does not establish deliberate indifference. Toguchi v. Chung, 391 F.3d 19 1051, 1058-60 (9th Cir. 2004) Third, by the time defendants became involved in plaintiff’s 20 care, in 2018, arthritis had already set into plaintiff’s hand, which means even if they had 21 referred him for surgery right away, the same operation would have been necessary. 22 As there is no triable issue that, if resolved in plaintiff’s favor, establishes that 23 defendants were deliberately indifferent to his medical needs. Accordingly, defendants are 24 entitled to summary judgment on plaintiff’s claim. 25 // 26 // 27 28 1 CONCLUSION 2 For the reasons set out above, defendants’ motion for summary judgment is GRANTED. 3 The clerk shall enter judgment and close the file. 4 IT IS SO ORDERED. =_ 6|| Dated: June 16 __, 2020. ILLIAM ALSUP 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 é 13 14 2 15