Oram v. Linderman et al

Filing 117

ORDER, the reference to the Magistrate Judge is withdrawn as to Plaintiff's Motion for Summary Judgment on Count III 72 , Defendants Wexford, Bell, and Lewis' Motion for Summary Judgment 80 , and Plaintiff's Motion for Leave to Authe nticate Plaintiff's Exs. B-E 94 ; Plaintiff's Motion for Summary Judgment on Count III 72 is denied; the Clerk is directed to ensure that the docket reflects that Plaintiff's Motion is still pending as to Counts I and II; Plaintiff& #039;s Motion for Leave to Authenticate Plaintiff's Exs. B-E 94 is denied as moot; Defendants Wexford, Bell, and Lewis's Motion for Summary Judgment 80 is granted; the claim in Count III is dismissed with prejudice and Defendants Wexford, Bell, and Lewis are dismissed; the remaining claims are Counts I and II against Linderman and Manning. Signed by Senior Judge Frederick J Martone on 6/9/14. (REW)

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1 2 SVK WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jimmy Oram, 10 11 12 No. CV-12-02450-PHX-FJM (BSB) Plaintiff, vs. ORDER Mike Linderman, et al., 13 Defendants. 14 15 Plaintiff Jimmy Oram, who is a prisoner in the custody of the Arizona Department 16 of Corrections (ADC), brought this civil rights case pursuant to 42 U.S.C. § 1983 against 17 Defendants Mike Linderman, Charles Manning, Wexford Health Services (Wexford), Dr. 18 Thomas Bell, and Cameron Lewis, Facility Health Administrator (FHA). (Doc. 41, 19 Second Amend. Compl. (SAC).) 20 remaining claims—Counts I through III. (Doc. 72.) Defendants Wexford, Bell, and 21 Lewis, who are Defendants in Count III only, cross-move for summary judgment.1 (Doc. 22 80.) Defendants Linderman and Manning, who are Defendants in Counts I and II only, 23 file a separate cross-motion for summary judgment.2 (Doc. 99.) Plaintiff moves for summary judgment on the 24 25 26 27 28 1 The Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc), regarding the requirements of a response. (Doc. 82.) 2 Counts I and II raise religious exercise claims under the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), and the Court will address those Counts by separate Order. 1 The Court will deny Plaintiff’s Motion on Count III, grant Defendants’ Motion on 2 Count III, and dismiss the claim and Defendants Wexford, Bell, and Lewis. 3 I. Background 4 In Count III, Plaintiff claims his Eighth Amendment rights were violated when 5 Defendants Wexford and Bell arbitrarily discontinued his diabetes medication and Lewis 6 failed to correct the problem. 7 medication, he experienced vomiting, dizziness, fatigue, and general malaise. Plaintiff claims that as a result of being denied the 8 In support of his Motion, Plaintiff submits his Statement of Facts (Doc. 73 (PSOF 9 ¶¶ 33-47)), his declaration (Doc. 74, Pl. Decl. ¶¶ 32-46), and various exhibits (Doc. 75, 10 Exs. 12-18 (in part)). Defendants submit their Statement of Facts (Doc. 81 (DSOF)) and 11 exhibits (id.). Plaintiff submits his reply and response (Doc. 86) and his Statement of 12 Facts in Response to Defendants’ Motion (Doc. 87 (PSOFR)) with additional exhibits. 13 Plaintiff also files a Motion for Leave to Authenticate Plaintiff’s Exs. B-E, which are 14 attached to PSOFR; Defendants oppose. (Docs. 94, 102.) 15 II. Summary Judgment Standard 16 A court “shall grant summary judgment if the movant shows that there is no 17 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 18 of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 19 (1986). 20 responsibility of presenting the basis for its motion and identifying those portions of the 21 record, together with affidavits, which it believes demonstrate the absence of a genuine 22 issue of material fact. Id. at 323. If the moving party meets its initial responsibility, the 23 burden then shifts to the opposing party who must demonstrate the existence of a material 24 factual dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Under summary judgment practice, the moving party bears the initial 25 When considering a summary judgment motion, the court examines the pleadings, 26 depositions, answers to interrogatories, and admissions on file, together with the 27 affidavits or declarations, if any. See Fed. R. Civ. P. 56(c). At summary judgment, the 28 judge’s function is not to weigh the evidence and determine the truth but to determine -2- 1 whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The evidence of 2 the non-movant is “to be believed, and all justifiable inferences are to be drawn in his 3 favor.” Id. at 255. But, if the evidence of the non-moving party is merely colorable or is 4 not significantly probative, summary judgment may be granted. 5 Conclusory allegations, unsupported by factual material, are insufficient to defeat a 6 motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 7 III. Id. at 248-49. Count III—Wexford Health Services, Dr. Bell, and Mr. Lewis 8 A. 9 Wexford is the private company that during the relevant time period contracted 10 with ADC to provide health care services to ADC inmates. (PSOF ¶ 33.) Dr. Bell and 11 Mr. Lewis were employees of Wexford. (PSOF ¶¶ 34, 35; Doc. 81, Ex. 3, Bell Decl. ¶ 2, 12 Ex. 9, Lewis Decl. ¶¶ 1-2.) Background Facts 13 Plaintiff, who is housed at Arizona State Prison Complex (ASPC)-Lewis, asserts 14 that he is diabetic and takes Metformin. He claims that when he does not have his 15 medication, his blood-sugar levels can rise dangerously. (PSOF ¶ 36.) Dr. Bell was 16 Plaintiff’s treating physician and on June 4, 2012, ordered Plaintiff Metformin through 17 December 2012. On November 17, 2012, Plaintiff stopped receiving the medication and 18 began to experience mild symptoms within days. On November 25, he submitted a 19 Health Needs Request (HNR) for medication. (PSOF ¶ 38.) The pharmacy advised 20 Plaintiff on November 27 that the medication was discontinued. (PSOF ¶ 39; DSOF ¶ 21 21.) 22 On December 4, 2012, in response to an inmate letter about the lack of 23 medication, Plaintiff was advised by CO III Neu that he sent an email “to the FHA.” 24 (PSOF ¶ 40.) When Plaintiff did not receive a further response, he filed a grievance. (Id. 25 ¶ 41.) 26 Defendants concede that the medication was discontinued. (DSOF ¶ 23.) But 27 they assert that in August of 2012, Dr. Bell left ASPC-Lewis and worked exclusively at 28 ASPC-Florence and ASPC-Eyman and did not return to ASPC-Lewis until January 15, -3- 1 2013. From August 2012 until January 15, 2013, Dr. Bell did not treat inmates at ASPC- 2 Lewis. (Id.) After Dr. Bell left ASPC-Lewis, Dr. Erin Corridon, a temporary doctor who 3 is not a Defendant, provided treatment to inmates at ASPC-Lewis. (Id. ¶ 17.) The 4 pharmacy records show that Dr. Corridon renewed Plaintiff’s Metformin prescription on 5 November 9, 2012 for six months but the quantity prescribed was zero. (Id. ¶¶ 22-23, Ex. 6 5.) 7 On January 30, 2013, after his return to ASPC-Lewis, Bell examined Plaintiff, 8 ordered tests, and prescribed two Metformin prescriptions. (Id. ¶¶ 38-40.) According to 9 Defendants, one Metformin prescription was for 30 days, which Plaintiff received that 10 day; the other prescription was for 17 days and was filled on February 19. (Id. ¶¶ 43-46.) 11 Plaintiff disputes that he received his prescription on January 30. Instead, he asserts that 12 he did not receive his medication until February 20. (PSOFR ¶ 38.) 13 Lewis first began working as Complex Manager on December 3, 2012 and his 14 email was not set up until several days later. (DSOF ¶¶ 28-31, Ex. 9, Lewis Decl. ¶¶ 1, 15 2.) He avers that he did not receive Plaintiff’s medical grievance until January 30, 2013, 16 and scheduled an appointment for Plaintiff to see Dr. Bell that same day (DSOF ¶¶ 35- 17 36.) 18 B. 19 To prevail on a claim under the Eighth Amendment for prison medical care, a 20 prisoner must demonstrate “deliberate indifference to serious medical needs.” Jett v. 21 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 22 (1976)). A plaintiff must show (1) a “serious medical need” by demonstrating that failure 23 to treat the condition could result in further significant injury or the unnecessary and 24 wanton infliction of pain and (2) that the defendant’s response was deliberately 25 indifferent. Id. To act with deliberate indifference, a prison official must both know of 26 and disregard an excessive risk to inmate health; the official must be aware of facts from 27 which the inference could be drawn that a substantial risk of serious harm exists, and he 28 must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate Legal Standards -4- 1 indifference in the medical context may be shown by a purposeful act or failure to 2 respond to a prisoner’s pain or possible medical need and harm caused by the 3 indifference. Jett, 439 F.3d at 1096. 4 But mere claims of “indifference,” “negligence,” or “medical malpractice” do not 5 support a claim under § 1983. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 6 1980). 7 constitute an Eighth Amendment violation. Wood v. Housewright, 900 F.2d 1332, 1334 8 (9th Cir. 1990). 9 medical personnel regarding an appropriate medical diagnosis or treatment are not 10 enough to establish a deliberate indifference claim. Jackson v. McIntosh, 90 F.3d 330, 11 332 (9th Cir. 1996). Inadequate treatment due to malpractice or even gross negligence does not Moreover, differences in judgment between an inmate and prison 12 C. 13 The Court will deny Plaintiff’s motion and grant Defendants’ motion for summary 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Discussion judgment. 1. Preliminary Issue—Plaintiff’s Motion to Authenticate and Admissibility In his SAC, Plaintiff asserts policies or practices by Wexford and Bell of (1) arbitrarily discontinuing life-saving medications to save money and (2) failing to train staff to appropriately address inmates’ HNRs. (Doc. 41 ¶¶ 5, 13.) Plaintiff submits four exhibits with the PSOFR that he moves to have authenticated. (Doc. 94; ref. Doc 87, Ex. B, “Written Cure Notification”; Ex. C, Wexford Organizational Chart; Ex. D, ADC Press Release; Ex. E, Inmate Letter Response.) Defendants object on grounds of admissibility and authentication. (Docs. 91, 102.) Plaintiff’s Exhibit B is a letter, dated September 21, 2012, from the ADC to Wexford, designated a Written Cure Notification. (PSOFR ¶¶ 5, 16; Ex. B.) The document is self-authenticating. See Fed. R. Evid. 902(1). It contains the Arizona State Seal as well as the ADC Seal. Moreover, Defendants do not claim that the letter is not what it purports to be. (Doc. 102.) Plaintiff argues that the letter is admissible under Rule 803(6) and (8). (PSOFR ¶ 5.) Relying on this Cure-Notification letter, Plaintiff -5- 1 further asserts that “according to ADC officials, ‘Wexford’s Regional and Corporate 2 personnel,’ were aware that within just the first 6 weeks of the start of their contract more 3 than ‘8350’ prisoner’s medications were discontinued and there weren’t enough medical 4 personnel to meet their medical needs.” (Doc. 87 at 2.) In fact, this letter states that 5 during August 2012, ADC conducted random reviews of prescriptions and learned that “a 6 significant number of inmates may not have been receiving their medications as 7 prescribed due to expired prescriptions and inappropriate renewals or refills. 8 Approximately 8,358 prescriptions required review and potential renewal to ensure 9 inmates receive their required medications.” (Id., Ex. B at 2) (Emphasis added.) The 10 letter also alleges “inadequate staffing levels in multiple program areas at multiple 11 locations.”3 (Id. at 5.) Defendants object to the admissibility of the letter. (Doc. 91 at 3.) 12 The Court finds that although the letter is admissible to show that Wexford was on 13 notice of alleged problems with medications, see e.g. U.S. v. Payne, 944 F.2d 1458, 1472 14 (9th Cir. 1991), the allegations in the letter regarding the existence of those problems are 15 not admissible against Wexford or any Wexford employee. That is, the allegations 16 themselves are not evidence of a problem with medications. 17 hearsay made in the context of a contract dispute between ADC and Wexford, and they 18 are not admissible as admissions against Wexford under Federal Rule of Evidence 19 801(d)(2). Those allegations are 20 In addition, Plaintiff fails to point to evidence in an admissible form to establish 21 the existence of widespread problems with medications. See Fed. R. Civ. P. 56(c)(2). 22 Only admissible evidence may be considered in ruling on a summary judgment motion. 23 Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002). While material produced at the 24 summary judgment stage need not be in the form of admissible evidence, in order to 25 create a genuine dispute of fact, a party must demonstrate at summary judgment that he 26 can present evidence in support of the fact that would be admissible at trial. “At the 27 28 3 Plaintiff does not raise an issue of understaffing in his SAC, so the Court will not consider it. See Pickern v. Pier 1 Imports, Inc., 457 F.3d 963, 968-69 (9th Cir. 2006) (a party may not raise new claims in response to a summary judgment motion). -6- 1 summary judgment stage, we do not focus on the admissibility of the evidence’s form. 2 We instead focus on the admissibility of its contents.” Fraser v. Goodale, 342 F.3d 1032, 3 1036-37 (9th Cir. 2003) (finding on summary judgment that that even if a diary was not 4 admissible, it was sufficient if the contents of the diary were admissible where the 5 contents were mere recitations of events within the plaintiff’s personal knowledge to 6 which she could testify at trial); see also Block v. City of Los Angeles, 253 F.3d 410, 419 7 (9th Cir. 2001) (although a party need not produce at summary judgment evidence in a 8 form that would be admissible at trial, it was an abuse of discretion to consider 9 information in an affidavit that failed to set forth facts that would be admissible in 10 evidence because it was not made on personal knowledge). 11 As the commentary to Rule 56(c)(2) states, “[t]he burden is on the proponent to 12 show that the material is admissible as presented or to explain the admissible form that is 13 anticipated.” See Fed. R. Civ. P. 56(c)(2), Advisory comm. notes to 2010 Amendments. 14 Plaintiff points to no evidence other than the Cure-Notification letter to establish the 15 alleged widespread policy or practice of failing to provide medications. Plaintiff does not 16 submit the underlying data referred to in the Cure-Notification letter that purports to form 17 the basis of the allegations. He does not claim to have the data, and he does not identify 18 other evidence in admissible form to prove a policy or practice of failing to provide 19 medications. 20 explain how he will present evidence on this point in a form that would be admissible. 21 See Fed. R. Civ. P. 56(c)(2). Without admissible evidence, Plaintiff fails to create a 22 genuine issue of disputed fact regarding such a policy. Moreover, discovery is closed. (Doc. 20, 67.) Thus, Plaintiff does not 23 The January 2013 News Release, which Plaintiff seeks to have authenticated, 24 merely states that ADC and Wexford agreed to terminate the contract. (Doc. 87, Ex. D.) 25 It contains no probative evidence regarding any issues in the case, and therefore the 26 motion for authentication is denied. The Court will address the authentication of the 27 remainder of the exhibits in question as they are relevant to the issues. 28 -7- 1 2. 2 Defendants a. Dr. Bell 3 The undisputed facts show that Dr. Bell prescribed Plaintiff’s Metformin on June 4 4, 2012 through December 2012. It is also undisputed that Bell was not at the ASPC- 5 Lewis facility from August 2012 until January 15, 2013, and he did not treat ASPC- 6 Lewis inmates during his absence. Plaintiff argues that it is irrelevant that Bell did not 7 treat inmates because Bell was Wexford’s Medical Director, and under ADC policy, he 8 was “accountable to ensure all inmates are provided access to health care.” (PSOFR ¶ 9 16.) But there is no respondeat superior liability under § 1983, and therefore a 10 defendant’s position as the supervisor of persons who allegedly violated Plaintiff=s 11 constitutional rights does not impose liability. Monell v. New York City Dep’t of Soc. 12 Serv., 436 U.S. 658, 691-92 (1978); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 13 Thus, Bell’s position as Medical Director is insufficient to create a triable issue of fact as 14 to his liability. Plaintiff’s motion to authenticate the organizational chart showing Bell as 15 medical director at PSOFR, Ex. C is denied as moot. 16 Nevertheless, as a supervisor, Bell could be deliberately indifferent if he “was 17 personally involved in the constitutional deprivation or a sufficient causal connection 18 exists between the supervisor’s unlawful conduct and the constitutional violation.” Lolli 19 v. Cnty. of Orange, 351 F.3d 410, 418 (9th Cir. 2003). The requisite causal connection 20 can be established in a number of ways: the plaintiff may show that the supervisor 21 knowingly refused to terminate acts by others that he knew or should have known would 22 inflict a constitutional injury; that he acquiesced in a constitutional deprivation by 23 subordinates; or that he exhibited a reckless or callous indifference to the prisoner’s 24 constitutional rights. Moss v. U.S. Secret Serv., 675 F.3d 1213, 1231 (9th Cir. 2012); 25 Dubner v. City of S.F., 266 F.3d 959, 968 (9th Cir. 2001); Starr v. Baca, 652 F.3d 1202 26 (9th Cir. 2011). 27 Plaintiff suggests that Bell was aware of the “expired medication issue” because 28 on September 21, 2012, ADC provided Wexford the Cure-Notification letter. (PSOFR ¶¶ -8- 1 5, 16; Ex. B.) First, as noted, the allegations in the letter are inadmissible hearsay as to 2 “expired prescriptions and inappropriate renewals or refills.” 3 evidence that Bell ever saw the letter or otherwise knew about the alleged problem; Bell 4 is not listed as a recipient of the letter. And although Plaintiff alleged in his SAC that it 5 was Bell’s policy, he offers no evidence to support the claim. Instead, Plaintiff admits 6 that Bell prescribed Metformin for Plaintiff. Second, there is no 7 Bell attests that after he returned to ASPC-Lewis, he examined Plaintiff on 8 January 30, ordered tests, and prescribed Metformin that same day. However, Plaintiff 9 asserts that he did not receive his medication until February 20—20 days later. (PSOFR 10 ¶ 38.) He further states that “though Bell filled out the prescription[,] . . . he never 11 processed it or followed up on it.” (Id.) 12 But Plaintiff provides no evidence that Bell failed to “process” the prescription; he 13 does not explain what he means by this conclusory allegation and offers no evidence that 14 Bell had a duty to follow-up on the prescription absent a complaint from Plaintiff 15 regarding non-receipt of his medication. Plaintiff’s speculation is not evidence of Bell’s 16 deliberate indifference. See Taylor, 880 F.2d at 1045. 17 In sum, there is no evidence that Bell was deliberately indifferent to Plaintiff’s 18 medical needs. Bell actually prescribed Plaintiff Metformin on two occasions and was 19 otherwise absent and not treating Plaintiff during the relevant timeframe. Summary 20 judgment is granted in favor of Bell. 21 2. Lewis 22 It is undisputed that Lewis is an administrator; he held the title of Complex 23 Manager, formerly known as the FHA. Plaintiff alleges that under ADC regulations, 24 Lewis had the duty to investigate medical grievances and correct problems in a timely 25 manner. (PSOF ¶ 35.) Plaintiff asserts that Lewis knew for almost two months that the 26 medication had been stopped but took no action to remedy the situation. (PSOFR ¶ 37.) 27 Lewis asserts that he started working at ASPC-Lewis on December 3, 2012, and 28 that his e-mail was not set up until several days later. (DSOF, Ex. 9, Lewis Decl. ¶¶ 1, -9- 1 2.) Plaintiff disputes the date of the e-mail set-up, arguing that CO III Neu stated in his 2 December 1, 2012 response to Plaintiff’s inmate letter, that he sent an e-mail “to the 3 FHA” regarding the medical issues. (PSOFR ¶ 28.) But even assuming that Neu’s 4 statement is admissible to show Neu sent an e-mail to FHA, the statement is ambiguous 5 as to when the e-mail was sent, and provides no evidence as to when or whether Lewis 6 actually received the e-mail. The Court finds that PSOFR, exhibit E is irrelevant to the 7 question of whether Lewis actually received an e-mail notification. Plaintiff’s motion to 8 authenticate exhibit E is denied as moot. 9 Plaintiff filed a grievance directed to Neu on December 19, writing “Emergency” 10 at the top. (DSOF, Ex. 11 (Doc. 81-1 at 40)) It is stamped as received in the Health Unit 11 on December 27. (Id.) Plaintiff speculates that the grievance was therefore processed 12 and delivered to Lewis as an emergency medical grievance. 13 Plaintiff’s speculation is not evidence that the grievance was received earlier by the 14 Health Unit and then delivered to Lewis. Instead, protocol at ASPC-Lewis required that 15 medical emergencies were to be conveyed by the CO III to medical staff, not to 16 administrative staff such as Lewis. (PSOFR ¶ 34.) But 17 Lewis attests that to the best of his recollection he did not become aware of the 18 grievance until January 30, 2013. (DSOF, Ex. 9 ¶ 6.) The grievance is not addressed to 19 Lewis and there is no evidence to contradict Lewis’s claim. 20 Plaintiff’s grievance on January 30, 2013, Lewis acted to ensure that Plaintiff received 21 appropriate medical treatment by scheduling an appointment with Dr. Bell the very same 22 day. (DSOF 37). Once Lewis received 23 In sum, there is insufficient probative evidence to show that Lewis was 24 deliberately indifferent to Plaintiff’s medical needs, in other words that he was aware of 25 Plaintiff’s medication issue prior to late January and, knowing of a risk to Plaintiff, failed 26 to take action. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“If a prison 27 official should have been aware of the risk, but was not, then the official has not violated 28 - 10 - 1 the Eighth Amendment, no matter how severe the risk.”). Summary judgment is granted 2 in favor of Lewis. 3 3. Wexford 4 It is well established that although municipalities and local governmental units can 5 be sued under § 1983, they cannot be held liable solely because they employed a 6 tortfeasor; that is, they cannot be liable on a theory of respondeat superior. Monell v. 7 Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). The requirements of Monell apply to 8 § 1983 suits against private entities acting under color of law. Brentwood Acad. v. Tenn. 9 Secondary School Athletic Ass’n, 531 U.S. 288, 295 (2001). 10 A plaintiff can establish private-entity liability by proving “that a[n] . . . employee 11 committed the alleged constitutional violation pursuant to a formal [entity] policy or 12 longstanding practice or custom which constitutes the standard operating procedure of the 13 . . . entity.” Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992). Plaintiff must also 14 prove that the policy caused the constitutional violation. Id. In his SAC, Plaintiff alleged 15 that Wexford began deliberately discontinuing life-saving medications to save money. 16 (Doc. 40, SAC, Count III, ¶ 5.) 17 But as noted, Plaintiff provides no admissible evidence of such a policy. In 18 contrast, two Wexford doctors prescribed Plaintiff’s Metformin during the relevant time 19 period, and Bell renewed the prescription immediately upon his return to ASPC-Lewis. 20 Moreover, Defendants provide evidence that throughout the relevant timeframe, Plaintiff, 21 continued to receive medications for all of his other conditions, including hypertension, 22 cholesterol, and hypokalemia. 23 inconsistent with the policy alleged by Plaintiff. At most, non-receipt of the Metformin 24 was an isolated exception to Plaintiff’s overall treatment, and there was no “purposeful 25 act” or “failure to respond” to Plaintiff’s medical needs. See Jett, 439 F.3d at 1096. 26 Mere negligence does not rise to the level of a constitutional violation. See Wood, 900 27 F.2d at 1334. (DSOF ¶¶ 49-52.) 28 - 11 - Providing such medications is 1 Additionally, there is insufficient probative evidence that “expired medication 2 renewal” was the “moving force” behind Plaintiff’s non-receipt of his Metformin, 3 particularly since he received numerous other medications for other conditions during the 4 same period. See Rivera v. County of Los Angeles, 745 F.3d 384, 389 (9th Cir. 2014). 5 Finally, Plaintiff asserts that Wexford was understaffed and that there was no 6 pharmacy in the complex. (Doc. 86 at 3.) Plaintiff offers no admissible evidence of 7 these allegations. But even if true, these allegations are beyond the scope of the SAC, 8 and there is no proof that understaffing or lack of the pharmacy in the complex caused the 9 discontinuation of the medication. 10 Plaintiff fails to establish that the interruption in receipt of his medication was 11 caused by a policy or practice of Wexford or that Wexford was otherwise deliberately 12 indifferent to his medical needs. Summary judgment is granted in favor of Wexford. 13 IT IS ORDERED: 14 (1) The reference to the Magistrate Judge is withdrawn as to Plaintiff’s Motion 15 for Summary Judgment on Count III (Doc. 72), Defendants Wexford, Bell, and Lewis’s 16 Motion for Summary Judgment (Doc. 80), and Plaintiff’s Motion for Leave to 17 Authenticate Plaintiff’s Exs. B-E (Doc. 94). 18 (2) Plaintiff’s Motion for Summary Judgment on Count III (Doc. 72) is denied; 19 the Clerk of Court is directed to ensure that the docket reflects that Plaintiff’s Motion is 20 still pending as to Counts I and II. 21 22 (3) Plaintiff’s Motion for Leave to Authenticate Plaintiff’s Exs. B-E (Doc. 94) is denied as moot. 23 (4) Defendants Wexford, Bell, and Lewis’s Motion for Summary Judgment 24 (Doc. 80) is granted; the claim in Count III is dismissed with prejudice and 25 Defendants Wexford, Bell, and Lewis are dismissed. 26 … 27 … 28 … - 12 - 1 2 (5) 3 Dated this 9th day of June, 2014. The remaining claims are Counts I and II against Linderman and Manning. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 -

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