Zolnierz v. Arpaio et al

Filing 250

ORDER granting Dr. Rao's 185 Motion for Summary Judgment. The Clerk of Court is directed to enter judgment in favor of Dr. Rao in this matter and Zolnierz shall take nothing. (See document for further details). Signed by Judge G Murray Snow on 8/21/13. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV-11-00146-PHX-GMS

Douglas John Zolnierz,

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ORDER

Plaintiff,

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v.

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Joseph Arpaio, Sheriff of Maricopa County;
Fulton Brock; Don Stapley; Andrew
Kunasek; Max Wilson; Mary Rose Wilcox;
Board of Maricopa County Supervisors;
Betty Adams, Director of Maricopa County
Correctional Health Services; Dr. R.
Venkatabalaji, Director of Jail Medical
Review Board, et al.,

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Defendants.

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The remaining Defendant in this case, Dr. Sudha Rao, has moved for summary

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judgment on Plaintiff Douglas Zolnierz’s remaining claim. (Doc. 185). Oral argument on

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the Motion was held on August 19, 2013. The Court grants summary judgment in favor

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of Dr. Rao for the reasons described below.
FACTUAL BACKGROUND

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Zolnierz was a pre-trial detainee at the Maricopa County Fourth Avenue Jail for

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almost ten months in 2009. (Doc. 186 ¶ 1; Doc. 225 ¶ 1.) He brought a number of claims

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against a number of defendants based on his treatment there. The only remaining claim is

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that Dr. Rao was deliberately indifferent to Zolnierz’s needs in violation of the Eighth

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Amendment.

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Zolnierz arrived at the Jail on January 16, 2009. (Id.) All new inmates pass

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through Intake Screening, handled by nurses from Maricopa County Correctional Health
Services (CHS). (Doc. 186 ¶ 8; Doc. 225 ¶ 8.) During his intake screening, Zolnierz
reported that he was diabetic, had been treated for mental illness, and was prescribed
diabetic, blood pressure, and psychiatric medications prior to entering the Jail. (Doc. 186
¶ 9; Doc. 225 ¶ 9.) Although the intake forms report no other condition, Zolnierz claims
that he also reported liver disease, hepatitis C, and cirrhosis. (Doc. 186-5, Ex. 3 (Ex. A) at
MC-CHS-00070–72; Doc. 226-1, Ex. 1 (Zolnierz Decl.) ¶ 4.) CHS nurses ordered daily
blood sugar checks (Accuchecks) in response to Zolnierz’s self-reported diabetes. (Doc.
186 ¶ 10; Doc. 225 ¶ 10.) They also reviewed the prescriptions that Zolnierz had before
incarceration, but did not provide those medications to Zolnierz at that time or at any time
during his stay at the Jail. (Id.; Doc. 226-1, Ex. 1 Zolnierz Decl.) ¶ 5; Doc. 186-2, Ex. 2
(Ex. A) at MC-CHS-00373, -00376; Doc. 186-3, Ex. 3 (Ex. A) at MC-CHS-00017, 00026.)
Since 1998, Dr. Rao has been licensed to practice medicine in Arizona and has
served as a CHS medical staff physician. (Doc. 186 ¶ 2; Doc. 225 ¶ 2.) Her duties as a
CHS medical staff physician include conducting Initial Health Assessments of inmate
patients, managing and treating inmate patients’ medical conditions, and referring cases
to the CHS Medical Director for final clinical decision making. (Id.)
Dr. Rao met with Zolnierz for his Initial Health Assessment on February 3, 2009.
(Doc. 186 ¶ 11; Doc. 225 ¶ 11.) She reviewed Zolnierz’s Intake Screening and preincarceration prescriptions. (Doc. 186 ¶ 12; Doc. 225 ¶ 12.) She noted that Zolnierz’s
blood glucose levels had been within normal ranges while in the Jail, although Zolnierz
now argues that his medical records show otherwise. (Id.) During the Assessment,
Zolnierz provided additional medical history, including his prior diagnoses of cirrhosis
and Hepatitis C. (Id.) Dr. Rao examined a complete metabolic profile (CMP) that showed
a stable liver, and ordered a follow-up CMP. (Id.) She solicited Zolnierz’s medical
records from his outside doctors and conducted a physical examination that was

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unremarkable. (Id.) Zolnierz’s outside medical records revealed a long history of
treatment for serious mental illness, such as paranoia, persecutory ideations, auditory
hallucinations, manic episodes, depression, pressured speech, confrontational volatility,
and irritability. (Doc. 186 ¶ 14; Doc. 225 ¶ 14.) Zolnierz had a history of alcohol and
drug abuse and had been non-compliant with mental health treatment plans. (Id.) The
records also showed that Zolnierz was diagnosed with cirrhosis and Hepatitis C in 2001.
(Doc. 186 ¶ 15; Doc. 225 ¶ 15.) No record showed decompensated end stage liver disease
symptoms, however. (Doc. 186 ¶ 16; Doc. 225 ¶ 16.)
Based on the Initial Health Assessment, Dr. Rao’s plan for Zolnierz’s diabetes and
liver disease (cirrhosis and Hepatitis C) was to have periodic testing of his blood sugars
and liver function accompanied by clinical follow-ups. (Doc. 186 ¶ 24; Doc. 225 ¶ 24.)
According to Dr. Rao, Zolnierz did not need a CHS special needs plan or qualify under
the CHS Chronic Disease policy because his blood sugars were consistently at normal
levels and his liver disease/cirrhosis had not progressed to a decompensated status. (Doc.
186-1, Ex. 1 (Rao Aff.) ¶ 28.) If the tests revealed anything of note, Zolnierz would be reassessed to determine whether the plan needed to change. (Id.)
Zolnierz complained twice in an inmate grievance on January 25, 2009, that CHS
had not prescribed diabetic pills. (Doc. 186 ¶ 25; Doc. 225 ¶ 25.) CHS nursing staff,
supervisors, or quality management personnel were in charge of reviewing and
responding to these grievances, and CHS informed Zolnierz that he was not prescribed
any medication because his blood sugars were normal. (Id.) Zolnierz signed the
resolution. (Id.) Dr. Rao was not involved in resolving this grievance.
CHS staff reviewed Zolnierz’s CMP results on February 12, 2009, and found that
Zolnierz’s blood sugar was within normal limits and his liver function was stable. (Doc.
186-4, Ex. 3, Ex. A at MC-CHS-0049.) Dr. Rao ordered CHS to tell Zolnierz that his
blood sugars were at normal levels. (Doc. 186 ¶ 28; Doc. 225 ¶ 28.)
Zolnierz requested diabetic monitoring on a daily basis on April 3, 2009. (Doc.

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186 ¶ 32; Doc. 225 ¶ 32.) Dr. Rao met with him and told him that his blood sugars were
consistently normal and that any diabetic medication or other treatment was unwarranted.
(Doc. 186-1, Ex. 1 (Rao Aff.) ¶ 35.) She told him that CHS would continue to run
periodic CMPs. (Doc. 186 ¶ 33; Doc. 225 ¶ 33.) Zolnierz acknowledged his
understanding. (Id.) Zolnierz had questions again about his diabetes on May 11, 2009.
(Doc. 186 ¶ 36; Doc. 225 ¶ 36.) Once again, Dr. Rao told Zolnierz that his blood glucose
levels were within normal limits and ordered another CMP. (Id.)

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On June 24, 2009, Zolnierz underwent a single ammonia level test by order of the
CHS psychiatrist. (Doc. 186 ¶ 53; Doc. 225 ¶ 53.) The test showed elevated results. (Id.)
Dr. Rao met with Zolnierz on the basis of the elevated results. (Id.) At the meeting,
Zolnierz denied confusion, agitation, any change in mental status or functioning,
bleeding, constipation, diarrhea, dehydration, or infections. (Id.) A physical examination
was unremarkable. (Id.) Based on these observations, Dr. Rao concluded that Zolnierz
did not present with clinical hepatic encephalopathy. (Id.) Nevertheless, Dr. Rao
consulted with the CHS psychiatrist and determined that they would offer a trial of
lactulose for the possible sub-clinical (grade one) hepatic encephalopathy. (Doc. 186
¶¶ 54–55; Doc. 225 ¶¶ 54–55.) Dr. Rao also ordered another CMP to monitor Zolnierz’s
liver function, along with other tests. (Id.) Dr. Rao met with Zolnierz on July 16, 2009,
and claims she offered a trial of lactulose. (Doc. 186-2 (Rao Aff.) ¶ 56.) Zolnierz does not
recall that she made such an offer. (Doc. 226-1, Ex. 1 (Zolnierz Decl.) ¶ 13.)

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Dr. Rao claims that Zolnierz did not present with altered medical status or other
symptoms of hepatic encephalopathy while in the Jail. (Doc. 186-1, Ex. 2 (Rao Aff.)
¶ 58.) Zolnierz claims that he experienced at this time a variety of symptoms that he
associates with hepatic encephalopathy: confusion, delirium, inability to bathe without
help, urinary incontinence. (Doc. 226-1, Ex. 1 (Zolnierz Decl.) ¶ 12.) Dr. Rao did not
order any additional testing specific to hepatic encephalopathy. (Doc. 186 ¶ 57; Doc. 225
¶ 57.)

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From January 16 through November 3, 2009, CHS obtained at least seven CMPs
to monitor Zolnierz’s blood sugars and liver function. (Doc. 186 ¶ 58; Doc. 225 ¶ 58.) Dr.
Rao claims that these tests showed consistently normal limits for blood sugars and
stability for compensated cirrhosis. (Doc. 186-1 ¶¶ 15, 16, 28, 30, 31, 35, 38.) Zolnierz
departed the Jail and entered the control of the Arizona Department of Corrections on
November 4, 2009.

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DISCUSSION
I.

LEGAL STANDARD
Summary judgment is appropriate if the evidence, viewed in the light most

favorable to the nonmoving party, demonstrates “that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). Substantive law determines which facts are material and “[o]nly disputes over
facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). “A fact issue is genuine ‘if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at 248). Thus, the nonmoving
party must show that the genuine factual issues “‘can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.’” Cal. Architectural
Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987)
(quoting Anderson, 477 U.S. at 250). Because “[c]redibility determinations, the weighing
of the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge, . . . [t]he evidence of the nonmovant is to be believed, and
all justifiable inferences are to be drawn in his favor” at the summary judgment stage. Id.
at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)); Harris v.
Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999) (“Issues of credibility, including questions
of intent, should be left to the jury.”) (citations omitted).

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Furthermore, the party opposing summary judgment “may not rest upon the mere
allegations or denials of [the party’s] pleadings, but . . . must set forth specific facts
showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); see Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); Brinson v. Linda Rose
Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995); Taylor v. List, 880 F.2d 1040, 1045
(9th Cir. 1989); see also L.R.Civ. 1.10(l)(1) (“Any party opposing a motion for summary
judgment must . . . set[ ] forth the specific facts, which the opposing party asserts,
including those facts which establish a genuine issue of material fact precluding summary
judgment in favor of the moving party.”). If the nonmoving party’s opposition fails to
specifically cite to materials either in the court’s record or not in the record, the court is
not required to either search the entire record for evidence establishing a genuine issue of
material fact or obtain the missing materials. See Carmen v. S.F. Unified Sch. Dist., 237
F.3d 1026, 1028–29 (9th Cir. 2001); Forsberg v. Pac. N.W. Bell Tel. Co., 840 F.2d 1409,
1417–18 (9th Cir. 1988).
II.

ANALYSIS
A.

Evidentiary Issues

Dr. Rao objected on numerous grounds, (Doc. 232), to the admissibility or
supportability of almost all of the facts that Zolnierz set forth in his Separate Statement of
Facts, (Doc. 225). Zolnierz sought leave to respond to those objections, (Doc. 241),
which the Court granted.
Those objections, for the most part, are meritless. Dr. Rao claims first that the
medical records Zolnierz cites are not properly authenticated. But there is no requirement
to authenticate records in response to a summary judgment motion. Rule 56(c)(2) allows
a party to object only on the basis that “the material cited to support or dispute a fact
cannot be presented in a form that would be admissible in evidence.” Both the third-party
medical records and the medical records from the MCSO were produced by Dr. Rao,
along with the custodian’s authentication. No serious argument can be made that the third

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party medical records cannot be presented in a form that would be admissible in
evidence. As for the deposition testimony, Zolnierz relies only on the deposition
transcripts that Dr. Rao has already produced and relied upon in her Motion. Again, no
serious argument can be made that the deposition transcripts are not what they purport to
be.
To the extent Dr. Rao objects on foundation grounds to the Declaration of Joseph
Mais, (Doc. 226), in which he states that the attachments to the Separate Statement of
Facts are “true and correct copies,” that objection has no real bearing on Zolnierz’s
ability to rely on those documents. As discussed above, there is no real dispute that each
document could be presented in a form that would be admissible in evidence. Dr. Rao’s
objections to the evidence on authentication grounds are overruled.
B.

Merits

Zolnierz’s claim arises under 42 U.S.C. § 1983. Section 1983 provides a cause of
action for persons who have been deprived of their constitutional rights by persons acting
under color of law.1 Section 1983 “is not itself a source of substantive rights” but only
provides a cause of action “for vindicating federal rights elsewhere conferred.” Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979). Section 1983 “imposes liability for violations of
rights protected by the Constitution, not for violations of duties of care arising out of tort
law.” Baker, 443 U.S. at 146.
Zolnierz asserts an Eighth Amendment violation. Prison officials “violate a
prisoner’s Eighth Amendment rights if they are deliberately indifferent to his serious

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The Section reads, in full: “Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress, except that in any
action brought against a judicial officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be granted unless a declaratory decree was
violated or declaratory relief was unavailable. For the purposes of this section, any Act of
Congress applicable exclusively to the District of Columbia shall be considered to be a
statute of the District of Columbia.” 42 U.S.C. § 1983.
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medical needs.” Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995) (citing
Estelle v. Gamble, 429 U.S. 97, 105-06 (1976)). Deliberate indifference “may appear
when prison officials deny, delay, or intentionally interfere with medical treatment, or it
may be shown by the way in which prison physicians provide medical care.” Hutchinson
v. United States, 838 F.2d 390, 394 (9th Cir. 1988) (citing Estelle, 429 U.S. at 104–05).
The indifference to medical needs, however, “must be substantial; a constitutional
violation is not established by negligence or ‘an inadvertent failure to provide adequate
medical care.’” Anderson, 45 F.3d at 1310 (quoting Estelle, 429 U.S. at 105–06); see
Hutchinson, 838 F.2d at 394 (“Mere negligence in diagnosing or treating a medical
condition, without more, does not violate a prisoner’s Eighth Amendment rights.”)
Farmer v. Brennan, 511 U.S. 825, 834 (1994) (“[A] prison official cannot be found liable
under the Eighth Amendment for denying an inmate humane conditions of confinement
unless the official knows of and disregards an excessive risk to inmate health or safety;
the official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.”) Thus,
“[m]edical malpractice does not become a constitutional violation merely because the
victim is a prisoner.” Estelle, 429 U.S. at 106–07 (1976); see Wood v. Housewright, 900
F.2d 1332, 1334 (9th Cir. 1990). “[A] difference of medical opinion as to the need to
pursue one course of treatment over another [is] insufficient, as a matter of law, to
establish deliberate indifference.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)
(citation omitted).
To establish deliberate indifference, a plaintiff must show two things. First, he
must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s
condition could result in further significant injury or the ‘unnecessary and wanton
infliction of pain.’” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled
on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).
Second, he must show that the defendant’s response to the serious medical need was

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deliberately indifferent. Id. at 1060. “This second prong—defendant’s response to the
need was deliberately indifferent—is satisfied by showing (a) a purposeful act or failure
to respond to a prisoner’s pain or possible medical need and (b) harm caused by the
indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
Zolnierz maintains that Dr. Rao was deliberately indifferent with respect to
Zolnierz’s diabetes and hepatic encephalopathy/high blood ammonia levels. Zolnierz
does not contest summary judgment on his claim that he should have received Interferon
treatment, and the Court grants summary judgment on that claim in favor of Dr. Rao.2

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1.

Diabetes Care

Zolnierz maintains that Dr. Rao was deliberately indifferent to his diabetes.
Diabetes qualifies as a serious medical need for purposes of the Eighth Amendment. Lolli
v. Cnty. of Orange, 351 F.3d 410, 419–20 (9th Cir. 2003). The next question is whether
Dr. Rao knew of Zolnierz’s diabetic condition. There is no dispute that she did. Zolnierz
informed CHS personnel at his Intake Screening that he had been diagnosed with Type II
diabetes and CHS personnel informed Dr. Rao of that diagnosis. Dr. Rao verified this
diagnosis by reviewing his outside medical records and prescriptions. Dr. Rao was
therefore aware of Zolnierz’s potentially serious medical need.
“To have acted with deliberate indifference, however, [Dr. Rao] also must have
inferred from this information that [Zolnierz] was at serious risk of harm if he did not
receive [treatment].” Lolli, 351 F.3d at 420. The evidence, which Zolnierz is unable to
successfully challenge, shows that Zolnierz was not at serious risk of harm. The core of
Zolnierz’s deliberate indifference claim as it relates to his diabetes is that Dr. Rao should

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Zolnierz tangentially claims in his Response that “Dr. Rao refused to provide
Zolnierz with his pre-incarceration prescription of Atenolol, a medication for high blood
pressure, in the dosage prescribed by his treating physician.” (Doc. 224 at 2.) Zolnierz
does not press this alleged failure as a basis for denying the Motion for Summary
Judgment in the body of the Response, and has filed a Notice that he intends to withdraw
any claim related to Dr. Rao’s provision of blood pressure medication. (Doc. 248.)
Consequently, there is no deliberate indifference claim arising of the alleged high blood
pressure condition.
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have provided him with his pre-incarceration prescription of Metformin and should have
regularly monitored his blood sugar levels. The evidence uniformly shows, however, that
Dr. Rao monitored Zolnierz’s blood sugar levels and that those levels were in normal
ranges. For the initial period following Zolnierz’s incarceration in the Jail, CHS nurses
conducted daily blood sugar checks (Accuchecks). Dr. Rao examined those blood sugar
levels a few weeks after Zolnierz checked into the Jail and determined that his blood
glucose levels were normal, and she continued to monitor his blood sugar levels over the
course of his stay in the Jail.
Zolnierz, however, contends that his blood glucose levels were out of range, and
cites several medical charts over the course of his stay that report blood sugar levels of
110, 117, 119, 134, 142, and 187. (Doc. 226-1, Ex. 2 at MC-CHS-00100, -00106, -00339,
-00343.) On these charts, two of the levels cited by Zolnierz are marked with an “H” and
refer to a “reference range” of 65–99 mg/dL in a fasting state. (Id. at MC-CHS-00100, 00106.) The others have no specific designation. Zolnierz asserts that these scores
“exceeded laboratory reference ranges” and therefore show that his blood sugar levels
were not within normal ranges.3 But outside of these bare assertions, Zolnierz has
provided no evidence or testimony to support his interpretation of the significance of
these levels. In contrast, Dr. Rao has testified that Zolnierz’s scores were within normal
ranges, and has buttressed that interpretation with the testimony of two other doctors who
agree. Dr. Bruce A. Bethancourt, an internal medicine specialist, opined that Zolnierz’s
blood sugars were “consistently within normal range,” and that the records “consistently
showed blood sugar levels within normal limits.” (Doc. 186 ¶ 6(b)–(c); Doc. 226 ¶ 6.) Dr.
Jeffrey Alvarez, the current CHS Medical Director and a licensed physician, likewise
stated that “[t]here was no medical need to manage diabetes in a patient such as Mr.

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3

Zolnierz claims there is a genuine dispute about whether the tests were
conducted while he was in a fasting or non-fasting state. The records are not clear on this
question, but, as discussed later, every doctor who has reviewed Zolnierz’s blood sugar
test results agrees that his levels were normal, regardless of what fasting state he was in.

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Zolnierz with consistently stable blood sugars.” (Doc. 186 ¶ 7(c), (j); Doc. 226 ¶ 7.) In
the face of testimony from three physicians who all interpret Zolnierz’s blood sugar
results to be consistently normal, Zolnierz cannot cite medical record excerpts without
explanation to create a genuine issue of material fact.4 Cf. Conroy v. Avalos, CV0800210PHX-MHMECV, 2010 WL 1268150 at *6 (D. Ariz. Mar. 30, 2010) (“To the extent
that Plaintiff contends his medical records support his position, they require interpretation
by an expert, and it was incumbent upon Plaintiff to provide an affidavit or deposition of
an expert to establish the appropriate standard of care.”).
Neither can Zolnierz create a factual dispute regarding the presence or absence of
high blood sugar levels by simply claiming that he experiences painful symptoms, such
as cramps, numbness, fluid retention in his legs, and muscle seizures when his blood
sugar is high and that he experienced these symptoms on several occasions while in the
Jail. Zolnierz lacks the expertise to give an opinion on whether or not his blood sugar
levels were elevated at a given period or not. While he may testify that he experienced
certain symptoms—and the Court has accepted that testimony for purposes of summary
judgment—Zolnierz cannot opine on the proper diagnosis for those symptoms. The
medical evidence in the record shows that Zolnierz’s blood sugar levels were in normal
range during his time at the Jail.
Because his blood sugar levels were within normal ranges, Zolnierz’s specific
allegations of deliberate indifference fail. With normal blood sugar levels, he was not “at

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Dr. Rao has cited an article from the American Diabetes Association which
claims that “[c]riteria for the diagnosis of diabetes” include “[s]ymptoms of
hyperglycemia and a casual (random) plasma glucose > 200 mg/dl (11.1 mmol/l). Casual
(random) is defined as any time of day without regard to time since last meal.” American
Diabetes Association, Standards of Medical Care in Diabetes—2009, Diabetes Care,
January 2009, at S14, http://care.diabetesjournals.org/content/32/Supplement_1/S13.full
pdf+html. Subsequently, counsel for Zolnierz cited at oral argument another chart from
the American Diabetes Association that allegedly showed that blood glucose levels less
than 200mg/dl can be problematic for an individual who has already been diagnosed with
diabetes. Both Parties ask the Court to take judicial notice of these facts. The Court,
however, cannot take judicial notice of these documents. As the dispute between the
Parties shows, the appropriate blood glucose levels of a diabetic are not “[w]ell-known
medical facts.” Barnes v. Indep. Auto. Dealders Ass’n of Cal. Health & Welfare Benefit
Plan, 64 F.3d 1389, 1395 n.2 (9th Cir. 1995).
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serious risk of harm if he did not receive [treatment].” Lolli, 351 F.3d at 420. Thus his
claim that Dr. Rao was deliberately indifferent for not enrolling him in the CHS Chronic
Disease Program upon learning that he had been diagnosed with diabetes falls short. As
an initial matter, Dr. Mullany, not Dr. Rao, made that decision. (Doc. 186-4, Ex. 3 (Ex.
A) at MC-CHS-0027.) And in the face of normal blood sugar levels, Dr. Rao was not
deliberately indifferent for failing to subsequently enroll Zolnierz in the program.
Similarly, Zolnierz’s claims that Dr. Rao was deliberately indifferent by telling
CHS nurses to inform him that his blood sugars were normal when they were not and by
failing to provide Zolnierz with Metformin cannot succeed on the evidence in the record.
In the absence of elevated blood sugar levels, Dr. Rao’s decisions did not amount to a
disregard for an excessive risk to Zolnierz’s safety. See Farmer, 511 U.S. at 834.
Finally, Dr. Rao’s decision to not reinstate regular blood sugar monitoring was not
deliberate indifference on this record. First, it was usually CHS staff that responded to
Zolnierz’s requests, including those for regular monitoring. (Doc. 186-2, Ex. 2 (Ex. A) at
MCSO 00016 (1/25/09 request); id. at MCSO 00020 (1/08/09 request—same as
previous); Doc. 186-15, Ex. 3 (Ex. A) at MC-CHS-00373 (4/3/09)). There is no evidence
that Dr. Rao controls the CHS staff, and their actions consequently cannot be imputed
back to her. Second, Dr. Rao continued to monitor—although not daily—Zolnierz’s
blood sugar levels during his stay. There were seven CMPs during Zolnierz’s stay, all of
which apparently showed normal blood sugar levels.
In sum, Zolnierz has not created a genuine issue of material fact as to the presence
of elevated blood sugar levels. The uncontroverted medical evidence is that his blood
sugar levels were normal and Dr. Rao’s actions were not deliberately indifferent on that
evidence. The record shows that Dr. Rao conducted medical exams and lab reviews in
response to Zolnierz’s requests, and reviewed those findings with Zolnierz in person.
2.

Hepatic Encephalopathy/High Blood Ammonia Levels

Zolnierz next contends that Dr. Rao was deliberately indifferent to his high blood

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ammonia levels. Abnormally high blood ammonia levels can qualify as a serious medical
condition for purposes of the Eighth Amendment. See Johnson v. Schwarzenegger, 366
Fed. App’x 767, 770 (9th Cir. 2010). A blood ammonia test on June 24, 2009, showed an
elevated ammonia level. Dr. Cohen, Zolnierz’s treating gastroenterologist, testified that
elevated ammonia levels alone are not diagnostic of hepatic encephalopathy and would
not require prescribing Lactulose or serial ammonia screening. (Doc. 186 ¶ 66; Doc. 225
¶ 66.) Elevated ammonia levels, however, can be suggestive of hepatic encephalopathy if
accompanied by a lack of alertness, cognition problems, bad or musty breath, and
variations in neurologic function. (Doc. 186-23, Ex. 6 (Cohen Dep.) at 75:7–21.)
Dr. Rao reviewed the June 24 test and met with Zolnierz to ascertain whether he
was suffering from hepatic encephalopathy. Upon examination after the elevated
ammonia level and meeting with Zolnierz, Dr. Rao noted that Zolnierz “denie[d] any
confusion, agitation or change in mental status or functioning.” He presented as “afebrile,
alert and oriented x 3, no acute distress, no confusion/agitation/lethargy/somnolence.”
(Id. at MC-CHS-0060–62.) Dr. Rao determined that Zolnierz did not present with clinical
hepatic encephalopathy but may have subclinical hepatic encephalopathy, psychiatric
issues, or some combination. (Id. at MC-CHS-0062.) She followed up on July 16, and
again noted that Zolnierz appeared normal. (Id. at MC-CHS-0065–66.)
Zolnierz, however, has stated that he in fact often experienced difficulty thinking,
confusion, delirium, an inability to bathe and engage in other activities of hygiene and
self-care without assistance, and urinary incontinence while at the Jail. (Doc. 226-1, Ex. 1
(Zolnierz Decl.) ¶ 12.) That statement does not create a genuine issue of material fact as
to Dr. Rao’s knowledge of those symptoms. Zolnierz does not assert that he reported
those symptoms to her. A deliberate indifference claim lies where a doctor is aware of
and then ignores a serious medical need. See Lolli, 351 F.3d at 419–20. That Dr. Rao
noted on July 9, 2009, that Zolnierz’s “baseline level of functioning” was being affected
by “underlying [psychiatric] issues/subclinical hepatic encephalopathy or combination of

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two” does not establish a genuine dispute of material fact as to the Dr. Rao’s awareness
of cognitive difficulties contemporaneous with the elevated ammonia level. (Doc. 186-5,
Ex. 3 (Ex. A) at MC-CHS-00062.) There is no dispute that Zolnierz had suffered from
mental illness, but those previous episodes have not been connected to the one-time
elevated blood ammonia level. As the record stands, the undisputed evidence is that Dr.
Rao did not observe and Zolnierz did not report cognitive issues.
What happened next is a matter of genuine dispute. Dr. Rao claims that she
offered to prescribe Lactulose to Zolnierz, but he refused. Zolnierz, however, “does not
recall Dr. Rao offering [him] lactulose, explaining how lactulose works, or explaining to
me the risks of not taking lactulose, such as a worsening of the symptoms associated with
hepatic encephalopathy. Had Dr. Rao offered [him] lactulose, [he] would have taken it.”
(Doc. 226-1, Ex. 1 (Zolnierz Decl.) ¶ 13.) Dr. Rao’s cited cases are inapposite. Those
cases addressed whether a party’s statement “on information and belief” sufficed to
create a genuine issue of material fact, not whether a party’s statement that he did not
recall an event could create a genuine dispute of material fact. See, e.g., Columbia
Pictures Indus., Inc. v. Prof’l Real Estate Investors, Inc., 944 F.2d 1525, 1529 (9th Cir.
1991); Taylor v. List, 880 F.2d 1040, 1045 n.3 (9th Cir.1989). As this is a Motion for
Summary Judgment, the Court assumes that Zolnierz is correct and Dr. Rao did not offer
Lactulose, and therefore does not address the Parties’ dispute regarding the
documentation of Zolnierz’s alleged refusal.
Even assuming that Dr. Rao did not offer Lactulose, she was not deliberately
indifferent. Elevated blood ammonia levels are not sufficient, by themselves, to show the
presence of hepatic encephalopathy. Dr. Rao met with Zolnierz and did not observe any
other abnormalities. While Zolnierz has a history of mental illness, he did not present
with specific symptoms at the time Dr. Rao examined him in response to the elevated
result. She continued to monitor Zolnierz’s blood ammonia levels through subsequent
CMPs and did not observe any subsequent elevated levels. Drs. Bethancourt and Alvarez

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both opined that Dr. Rao’s response to the single elevated blood ammonia level was
medically reasonable. (Doc. 186 ¶¶ 6(a), (b), (d), (e), (k)–(n), 7(b), (d), (j), (k); Doc. 225
¶¶ 6, 7.) According to Dr. Bethancourt, the medical evidence showed that Zolnierz did
not present with overt hepatic encephalopathy.5 (Doc. 186 ¶ 6(e); Doc. 224 ¶ 6.) While
failure to provide medication to prevent a life-threatening condition may amount to
deliberate indifference to a serious medical need, see Gibson v. County of Washoe, 290
F.3d 1175, 1194 (9th Cir. 2002), there is no genuine dispute of material fact regarding
Zolnierz’s medical condition, or Dr. Rao’s response. He presented a single elevated blood
ammonia level. There is no evidence that such a result portends a life-threatening, serious
condition, thus Dr. Rao’s response to the condition as presented to her does not constitute
deliberate indifference.

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Zolnierz relies heavily on the fact that he was subsequently hospitalized for
hepatic encephalopathy twelve days after his arrival to the ADOC in November. (Doc.
226-1, Ex. 12 at MC-00297, MC-00301.) That hospitalization, however, bears little
relevance to the question of whether Dr. Rao was deliberately indifferent to Zolnierz’s
needs in June, when he had a single instance of elevated blood ammonia levels and
otherwise presented normally. Consequently, there is no genuine dispute of material fact
regarding Dr. Rao’s treatment for Zolnierz’s liver problems and summary judgment in
her favor is warranted.

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CONCLUSION

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There is no genuine dispute of material fact regarding Dr. Rao’s treatment of
Zolnierz at the Jail. On those undisputed facts, her treatment did not amount to deliberate
indifference and summary judgment is granted in Dr. Rao’s favor.
///
///

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5

While both doctors assumed Dr. Rao offered Lactulose, Dr. Bethancourt
specifically opined that offering Lactulose would exceed the standard of care given the
medical evidence. (Doc. 186 ¶ 6(e); Doc. 224 ¶ 6.).
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IT IS THEREFORE ORDERED that Dr. Rao’s Motion for Summary Judgment
is GRANTED. (Doc. 185.) The Clerk of Court is directed to enter judgment in favor of
Dr. Rao in this matter and Zolnierz shall take nothing.
Dated this 21st day of August, 2013.

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