Miller v. Rufion, et al

Filing 123

ORDER signed by Judge Barry T. Moskowitz on 3/16/2011 granting 101 MOTION for SUMMARY JUDGMENT by J. Akanno. Defendant J. Akanno dismissed from action.(Lundstrom, T)

-WMC (PC) Miller v. Rufion, et al

Doc. 123

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION

GERALD L. MILLER, JR., CDCR #C-92075, Plaintiff, vs. O. RUFION, et al., Defendants.

Civil No.

08cv01233-BTM(WMC)

ORDER GRANTING DEFENDANT AKANNO'S MOTION FOR SUMMARY JUDGMENT (Dkt No. 101)

Plaintiff Gerald L. Miller, Jr. ("Miller"), a state prisoner proceeding pro se and in forma pauperis with a Second Amended Prisoner Civil Rights Complaint pursuant to 42 U.S.C. § 1983, alleges he was denied medical treatment for a broken thumb he incurred during a fight with another inmate in October 2007. He names as defendants three of the prison's medical staff members, in their official and individual capacities, seeking compensatory damages, punitive damages, and injunctive relief. (Dkt No. 37, 8:1-8.) Two of the three named defendants previously filed a Motion For Summary Judgment (Dkt No. 65), which was decided on March 14, 2011. (Dkt No. 122.) The third named defendant, Dr. J. Akanno, now moves separately for summary judgment ("Motion") pursuant to Fed.R.Civ.P. 56 on the Eighth Amendment claim alleged against him. (Dkt No. 101.) Miller filed an Opposition (Dkt No. 109), and

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Dr. Akanno filed a Reply (Dkt No. 111). After careful consideration of the parties' briefing and exhibits in light of controlling legal authority, the Court finds that Miller fails to substantiate a triable issue of material fact with respect to his allegation that Dr. Akanno was deliberately indifferent to his serious medical needs. For the reasons discussed below, the defendant is entitled to judgment in his favor as a matter of law, and the Court therefore GRANTS the Motion. I. BACKGROUND Miller filed his civil rights Complaint initiating this action on August 20, 2008, naming as defendants O. Rufino, a licensed vocational nurse, and G. Moonga, a registered nurse, both medical staff at Kern Valley State Prison, then filed a First Amended Complaint on September 26, 2008, naming the same two defendants before they appeared in the action. (Dkt No. 8.) On November 26, 2008, this matter was reassigned for all purposes from the bench of the Eastern District of California to the undersigned visiting judge. (Dkt No. 9.) By Order entered January 26, 2009, the Court directed the U.S. Marshal Service to serve the defendants with the amended complaint. (Dkt No. 17.) They filed an

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Answer on April 14, 2009. (Dkt No. 24.) By Order entered December 15, 2009, the Court granted
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Miller's request for leave to file a Second Amended Complaint ("SAC") to add a third defendant, Dr. J. Akanno, instructed the Clerk of Court to add the new defendant to the docket and to issue the appropriate summons with the documents necessary for the U.S. Marshal Service to serve the new defendant, and directed the defendants to file a response to the SAC no later than January 29, 2010. (Dkt No. 36.) On January 28, 2010, defendants Rufino and Moonga (only) filed an Answer. (Dkt No. 40.) The docket reflects that summons did not actually issue as to Dr. Akanno until May 11, 2010. (Dkt No. 55.) He filed a separate Answer on July 15, 2010. (Dkt No. 78.) On August 6, 2010, the magistrate judge assigned to this case ordered discovery reopened as to defendant Akanno only, and set a deadline of November 3, 2010 for him to file any pretrial motion. (Dkt No. 86.) Dr. Akanno timely filed this Motion on October 20, 2010. (Dkt No. 101.) The following pertinent facts are undisputed. Dr. Akanno is a medical doctor employed by the California Department of Corrections and Rehabilitation ("CDCR") at Kern Valley State Prison who was assigned to A-yard at the time Miller was injured. (Dkt No. 109, 10:12-27.) On October 16, 2007,

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Miller was involved in a mutual combat fight with another prisoner on A-Yard. (Id., 2:21-22, 11:11-14.) He was taken to the A Facility medical clinic where he was seen by co-defendant O. Rufino, a licensed vocational nurse employed by the prison. (Id., 2:24-28.) Defendant Rufino noted Miller had some superficial abrasions and what appeared to him to be a dislocated thumb, although Miller expressed his personal belief the thumb was broken. (Id., 3:12-23.) Rufino cleared Miller for transfer to the Administrative Segregation Housing Unit ("Ad Seg"). Miller saw co-defendant RN Moonga on October 23, 2007, the day after he requested a medical appointment complaining of continued pain from his thumb injury, apparently while he was still temporarily housed in the Ad Seg unit. (Dkt No. 109, 5:10-22.) There is no dispute that the "first notice Dr. Akanno had of Plaintiff's right thumb injury" was when RN Moonga described Miller's symptoms to him that day. "In response to Plaintiff's complaints, Dr. Akanno ordered an x-ray of the right hand and prescribed pain medication." (Id., 13:10-28.) At the October 23, 2007 appointment, Moonga had the x-ray Dr. Akanno ordered taken and wrapped Miller's thumb in a splint. (Id., 17:3-4.) Miller alleges

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he did not see a doctor until five months later, when Dr. Marshall Lewis, M.D. examined him at a clinic
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outside the prison, apparently too late for surgery to correct the manner in which the thumb had healed. (Id., 5:17-18, 8:7-11.) Dr. Akanno moves for summary judgment on grounds Miller fails to proffer any evidence providing a factual basis from which a reasonable inference can be drawn that he was deliberately indifferent to a serious medical need in violation of the Eighth Amendment. (Dkt No. 111.) II. DISCUSSION A. Legal Standards 1. Civil Rights Act, 42 U.S.C. § 1983

The Civil Rights Act, 42 U.S.C. § 1983 ("Section 1983"), creates a procedure to vindicate federal rights violations. See Graham v. Connor, 490 U.S. 386, 393-94 (1989) ("[Section] 1983 'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred' ") (citation omitted). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). "Liability under section 1983 arises only upon a showing of personal participation by the defendant," acting under color of state law, that deprived the plaintiff of a constitutional or federal statutory right. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). There is no respondeat superior liability under Section 1983. Monell v. Dept. of Soc. Servs, 436 U.S. 658 (1978) (the supervisor of someone who allegedly violated a plaintiff's constitutional rights is not made liable for the violation by virtue of that role). Federal courts hold pro se litigants' pleadings to "less stringent standards than formal pleadings drafted by lawyers." Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (punctuation and citation omitted); see Erickson v. Pardus, 551 U.S. 89, 93, 94 (2007) (per curiam) ("A document filed pro se is to be liberally construed;" a plaintiff need only give the defendant fair notice of the claim and the grounds on which it rests). However, " 'a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled.' " Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 ( 9th Cir. 1997) (citation omitted). Furthermore, the advantage of liberal construction

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does not entitle prisoners' pro se pleadings to "the benefit of every conceivable doubt," but only to the
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drawing of reasonable factual inferences. McKinney v. De Bord, 507 F.2d 501, 504 (9th Cir. 1974). 2. Prison Litigation Reform Act

The Prison Litigation Reform Act of 1996 ("PLRA"), 42 U.S.C. § 1997e, modified the processing of pro se prisoners' civil rights complaints. The court may now at any time dismiss an action or portions of it, sua sponte or on a party's motion, if the "action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief." 42 U.S.C. § 1983e(c); see also 28 U.S.C. § 1915. The PLRA also restricts the availability and extent of remedies prisoners may seek in civil rights actions. For example, recovery for mental or emotional injury suffered while in custody requires "a prior showing of physical injury" that is more than de minimus. 42 U.S.C. § 1997e(e); see Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002); see also Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003); cf. Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998) (no such showing applies to allegations of constitutional violations not premised on mental or emotional injury, such as claims arising under the First Amendment).

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3.

Summary Judgment Standard Of Review

Any claiming or defending party "may move, with or without supporting affidavits, for summary judgment on all or part of the claim." Rule 56(a), (b). Summary judgment is properly entered "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Rule 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 256 (1986). "A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982). The substantive law defining the elements of the claim controls the materiality of facts. See Anderson, 477 U.S. at 248. A complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. See Celotex, 477 U.S. at 323. The moving party bears the initial "burden of showing the absence of a genuine issue as to any material fact, and for these purposes the material it lodged must be viewed in the light most favorable

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to the opposing party." Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The movant is not
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required to produce evidence negating the non-movant's claims. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 885, 888-89 (1990) ("the purpose of Rule 56 is to enable a party who believes there is no genuine dispute as to a specific fact essential to the other side's case to demand at least one sworn averment of that fact before the lengthy process of litigation continues"). If the moving party fails to discharge that burden, summary judgment must be denied, "even if no opposing evidentiary matter is presented." Adickes, 398 U.S. at 159-60. If the movant carries its burden, the burden shifts to the non-moving party to establish facts beyond the pleadings showing there remains a genuine issue of material fact so that summary judgment is not appropriate. Celotex, 477 U.S. at 324; Adickes, 398 U.S. at 157. The "mere existence of a scintilla of evidence in support of the non-moving party's position is not sufficient" to create a genuine issue for trial. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (there is no genuine issue for trial if, on the record taken as a whole, a rational trier of fact could not find in favor of the party

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opposing the motion); see also Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007) ("To avoid summary judgment, [the plaintiff] was required to present significant probative evidence tending to support her allegations") (punctuation and citations omitted). The opposing party must "go beyond the pleadings and by her own affidavits, or by 'the depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.' " Celotex, 477 U.S. at 324, quoting FED . R. CIV . P. 56(e). The opposing party may not rest on mere assertions or conclusory allegations. See Taylor, 880 F.2d at 1045. Rather, that party must present evidence of specific and material factual disputes that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 249-50, 256 (citation omitted). The court accepts the version of disputed facts most favorable to the non-moving party in ruling on a Rule 56 motion. Anderson, 477 U.S. at 255. The court does not make credibility determinations, weigh conflicting evidence, or draw its own inferences, as those are functions reserved for the trier of fact. Id. at 249, 255, 249 (the district court's role on summary judgment is merely to determine whether

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there is a genuine issue for trial). Considering the evidence from both sides, "[i]f reasonable minds
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could differ" and there is "evidence on which the jury could reasonably find for the [non-moving] party," summary judgment for the moving party is improper. Id. at 252. "[W]here the [material] facts specifically averred by [the opposing] party contradict facts specifically averred by the movant, the motion must be denied." Lujan, 497 U.S. at 888. Conversely, summary judgment must be entered for the moving party "if, under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson, 477 U.S. at 250-251; Celotex, 477 U.S. at 325. B. Summary Judgment Granted For Defendant Dr. Akanno 1. Eighth Amendment In Medical Treatment Context

The Eighth Amendment protects prisoners from inhumane methods of punishment and inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner's interests or safety. . . . It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that

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conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock. Wilson v. Seiter, 501 U.S. 291, 298-99 (1991), quoting Whitley v. Albers, 475 U.S. 312, 319 (1986); see also Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) ("the officials' conduct must constitute 'unnecessary and wanton infliction of pain' before it violates the Eighth Amendment") (punctuation omitted), quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976). "A violation of the Eighth Amendment occurs when prison officials are deliberately indifferent to a prisoner's medical needs." Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). "Deliberate indifference" means the official "knows of and disregards an excessive risk to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Liability thus hinges on the seriousness of the prisoner's medical needs, the nature of the particular defendant's response to those needs, and the defendant's culpable state of mind. McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997). "[A] serious medical need

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is present whenever the 'failure to treat a prisoner's condition could result in further significant injury
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or the "unnecessary and wanton infliction of pain." ' " Clement v. Gomez, 298 F.3d 898, 905 (9th Cir.2002) (citations omitted). . Resolution of a claim "that the official has inflicted cruel and unusual punishment" necessarily

entails "inquiry into the prison official's state of mind." Wilson, 501 U.S. at 298-99. "[T]he official must both be aware of the facts from which the inference could be drawn that a substantial risk of harm exists, and he must also draw the inference" to satisfy the "deliberate indifference" element. Farmer, 511 U.S. at 837. Although the defendant's conduct need not have been undertaken for the very purpose of causing harm, a "sufficiently culpable state of mind" requires that the conduct entailed more than mere negligence. Id. at 837, 847. Nothing less than recklessness in the criminal sense, that is, subjective disregard of a risk of harm of which the actor is actually aware, satisfies the "deliberate indifference" element of an Eighth Amendment claim. Id. at 837. Deliberate indifference may be manifested "when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide

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medical care." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (the prisoner must show a purposeful act or failure to respond to his pain or medical need and resulting harm caused by the indifference). If the risk of harm was obvious, the trier of fact may infer that a defendant knew of the risk, but obviousness per se will not impart knowledge as a matter of law. Farmer, 511 U.S. at 840-42. Even "[i]f a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk." Id. at 834. Liability depends on a "purposeful act or failure to act on the part of the defendant" in response to the inmate's pain or serious medical need. Estelle, 429 U.S. at 105-06; see McGuckin, 974 F.2d at 1060-61. Therefore, a medical professional's negligence in diagnosing or treating a medical condition, even gross negligence, is insufficient to establish deliberate indifference for Eighth Amendment purposes. Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) ("more than mere negligence or isolated occurrences" associated with an inmate's complaint of inadequate medical care are required before a prison official's treatment amounts to a constitutional violation). "Medical malpractice does

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not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106;
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see Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir.1998) (finding no merit in constitutional claims stemming from alleged delays in administering pain medication, treating broken nose, and providing replacement crutch, because the claims did not amount to more than negligence); cf. Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (intentional interference with previously prescribed medical care to inmate with a broken jaw wired shut precluded summary judgment for defendants). To prevail on his Eight Amendment claim, Miller must prove each individual defendant (1) was actually aware of facts from which an inference could be drawn that a substantial risk of harm existed, (2) actually drew the inference, but (3) nevertheless disregarded the risk to the inmate's health. Farmer, 511 U.S. at 837. Dr. Akanno does not challenge that a broken thumb is a serious medical condition, leaving only the subjective prong of an Eighth Amendment claim for evaluation here, that is, a "purposeful act or failure to respond to a prisoner's pain or possible medical need" intended to deny, delay, or interfere with plaintiff's medical treatment, causing consequent harm. Jett, 439 F.3d at 1096, citing McGuckin, 974 F.2d at 1060 and Estelle, 429 U.S. at 104.

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2.

SAC Allegations And Miller's Evidence

Miller filed his SAC in order to name Dr. Akanno as a third defendant. He states he "was never seen by defendant J. Akanno" and "did not know [of Dr. Akanno's] involvement [u]ntil after the filing of this suit." (Dkt No. 109, 6:16-25, 7:6-10.) The SAC alleges: On October 22, 2007, Defendant Moonga informed J. Akanno M.D. a[] physician and surgeon at the Facility of the Plaintiff['s] condition that Plaintiff had fracture[d] his right thumb. Defendant J. Akanno order[ed] the plaintiff to be xrayed and a 30-day supply of pain medication. Defendant J. Akanno disposition of (deliberate indifference) to Plaintiff['s] medical needs in a 180 days delay in medical treatment leaving the Plaintiff['s] thumb disfigure[d] and show[ed] a clearly reckless knowingly disregards of excessive risk to my health or well being. (Dkt No. 37, 4:1-10.) The parties provide excerpts from Miller's September 23, 2010 deposition in support of and in opposition to the Motion. (Dkt No. 101-1, pp. 10-14; Dkt No. 109, pp. 78-87.) Miller elaborated his reasons for pursuing a deliberate indifference claim against Dr. Akanno after he received Interrogatory

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responses from defendants Rufino and Moonga:
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Q: And what do they say that makes you think that Dr. Akanno was responsible? A: Well, they said that he was advised of my treatment, advised that I had a broken thumb. And he provided x-rays, he was the one that ordered the x-rays and the pain medication. Because those are nurses are not really allowed to order pain medication or x-rays. [¶] So it was him who ordered this. And by him ordering this, he knew that I needed medical treatment at that time. The damage is because he didn't set my thumb and didn't place my thumb in a cast at the proper time and allowed it to heal like that. [¶] He had an obligation to come in there. Okay, we got an inmate with a broken thumb. He needs it set. He had an obligation to come in there, set the thumb, place it in a cast. He didn't do that; he didn't provide me any medical treatment. . . .[¶] And if Dr. Akanno wasn't able to set my thumb, he should have called a orthopedics ­ a bone specialist and had them come in and set my thumb. And that's my problem I have with Dr. Akanno. (Dkt No. 109, 86:11-87:19.) Miller confirmed that he was housed in the prison's A Yard at the time of the October 16, 2007 incident, and he was taken to the A Yard clinic along with the other inmate participant in the fight. (Dkt No. 109, 80:5-12.) He was seen there only by defendant nurse Rufino that day, who cleared him for

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transport to Ad Seg, where he was taken. (Id., 80:15-81:15.) After three days, when he hadn't seen anyone for his swollen thumb, Miller "filed an administrative appeal, pointing out that my thumb was broken and I needed x-rays and pain medication." (Id., 82:9-13.) A week later [i.e., on October 23, 2007], I was taken to the clinic where I seen Defendant Moonga, and, at that time, Defendant Moonga xrayed my thumb and provided me with pain medication. At least I believed it was him doing this. I didn't know that he made a phone call to Defendant Akanno. I didn't know at that time. I didn't find out until discovery. [¶] You know, all that time I believed it was Moonga, that he placed a splint on my hand and gave me 30 days' pain medication and told me I would be seeing a doctor within three days. And I never seen no one after that. (Dkt No. 109, 82:14-25.) About five months later, Miller was taken to an outside medical consultant, Dr. Marshall Lewis, at his Tehachapi clinic. (Dkt No. 109, 84:1-20.) Dr. Lewis gave him anti-inflammatory medication to reduce the swelling that remained in his thumb, took x-rays, and told him "why he couldn't correct the thumb from the break because it had healed incorrectly, and it healed in a malunion so that I lost

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movement, because it healed in the joint." (Id., 84:21-85:3.) Miller attaches as Exhibit "C" to his
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Opposition two Orthopedic Consultation reports prepared by Dr. Lewis, one dated March 26, 2008 and the other dated June 11, 2008. (Dkt No. 109, pp. 51-54.) The earlier report is an "Initial Comprehensive Orthopedic Consultation" prepared to evaluate Miller's right first metacarpal. Dr. Lewis recorded in that report the patient was injured "when he struck someone in October 2007," and had "sustained a fracture and was casted for several weeks in the facility." He noted "[t]he patient continues to have pain and stiffness in the right thumb and increased difficulty with usage." Dr. Lewis observed a "malunion" at the healed fracture site, but attributed no cause or blame for that result. (Id., pp. 50, 54.) Dr. Lewis' June 11, 2008 follow-up consultation report recites that day's x-rays revealed "irregularity at the carpometacarpal joint," as the "fracture did appear to extend to the articular portion of the first metacarpal." (Id., p. 51.) Miller's Exhibit H documentary evidence is discussed below. 3. No Material Issue Of Fact That Dr. Akanno Was Deliberately Indifferent

In support of his Motion, Dr. Akanno provides his own Declaration (Dkt No. 101-1. pp. 6-8), excerpts from Miller's September 23, 2010 Deposition (Id., pp. 10-14), the Declaration of Dr. Sherry

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Lopez, Chief Medical Officer at Kern Valley State Prison (Id., pp. 16-18), and his Responses to Miller's Interrogatories (Id., pp. 20-29). Dr. Akanno declares: 4. I am familiar with plaintiff Gerald Miller's medical treatment regarding a thumb injury sustained in October 2007 and have reviewed the medical records on this patient subpoenaed from Kern Valley State Prison. In reviewing the records, I recognized my signature and handwriting on records regarding a right thumb injury sustained on October 16, 2007, in a mutual combat incident. I was involved in Mr. Miller's medical care for that injury on a single occasion. Because I am not assigned to the medical clinic affiliated with Mr. Miller's housing unit, I was not assigned to Mr. Miller's medical care and follow-up. On or about October 23, 2007, on a single occasion, I became involved in the treatment of Mr. Miller's thumb injury. 5. According to the medical records, Mr. Miller was involved in a mutual combat incident on Oc[to]ber 16, 2007. According to the CDCR 7219 (Medical Report of Injury or Unusual Occur[re]nce) prepared on October 16, 2007, by LVN Rufino, Mr. Miller had superficial abrasions to his left leg and left hand, a bloody nose and a dislocated right thumb. Mr. Miller was cleared for transfer to the Administrative Segregation Housing Unit. There is no medical evidence that as of October 16, 2007, Mr. Miller had any life threatening injuries requiring immediate medical attention. Likewise, there is no medical evidence that as of October 16, 2007, Mr. Miller was unsuitable for transfer to the Administrative Housing Unit. With regard to Mr. Miller's injuries, there is no documented medical evidence on October 16, 2007, of a fractured thumb. 6. On October 22, 2007, Mr. Miller requested a medical appointment for complaint that he had broken his right thumb. I had no knowledge of his injury prior to that date. On Oc[to]ber 23, 2007, I ordered an x-ray of the right hand and prescribed pain medications. This is the appropriate and medically accepted treatment for a suspected thumb fracture. (Dkt No. 101-1, p. 7; see also Dr. Akanno's Interrogatory Responses, Dkt No. 101-1, 22:10-28, 23:1416, 18, 24:3.) Dr. Akanno explains: "The x-ray was ordered to confirm or rule out possible fracture." (Dkt No. 101-1, 23:13-14.) After an x-ray is taken and interpreted, "then the appropriate treatment could be ordered." (Id., 22:28-23:1.) "The x-ray was completed on October 26, 2007," by which time Dr. Akanno represents he "was no longer involved in Plaintiff's care or treatment." (Id., 23:1-2.) Although he argues Dr. Akanno remained responsible for his medical care, Miller offers no evidence to refute Dr. Akanno's representations that he was assigned to A-yard in October 2007, where Miller was then housed,

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but that "[a]fter the October 16, 2007, fight, Mr. Miller was assigned to B-yard," which had its own
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medical staff, while Dr. Akanno remained assigned to A-yard and not responsible for B-yard inmates' care. (Dkt No. 101-1, pp. 7-8: "Because Mr. Miller was not one of my patients on A-yard, I was not assigned to his follow-up care after ordering x-ray. Instead, Mr. Miller's follow-up care was charged to the doctors on B-yard..") Moreover, in Dr. Akanno's professional opinion, "[w]ithout knowing the results of the x-ray it would be medically inappropriate to place Plaintiff's thumb in a cast," because even if the x-ray revealed a fracture, "not all thumb fractures require casting." (Id., 24:5-7.) He asserts: "There was no medical evidence on the single occasion I was involved in Plaintiff's medical care that casting or a brace was medically appropriate." (Id., 24:7-9.) In her Declaration in support of Dr. Akanno's Motion, Dr. Sherry Lopez represents she is "familiar with plaintiff Gerald Miller's medial treatment regarding a thumb injury sustained in October 2007" through her review of "the medical records subpoenaed from Kern Valley State Prison." (Dkt No. 101-1, 17:9-11.) She substantiates: 6. The medical staff, including Registered Nurses (RN) and Licensed Vocational Nurses (LVN), routinely conducts examinations for the purpose of determining if an inmate is medically fit for transfer to the Administrative Segregation Housing Unit. At the conclusion of the examination, a CDCR 7219 (Medical Report of Injury or Unusual Occurr[e]nce) is prepared. 7. According to the CDCR 7219 prepared on October 16, 2007, by LVN Rufino, Mr. Miller had superficial abrasions to his left leg and left hand. The form also notes Mr. Miller had a bloody nose and a dislocated right thumb. Mr. Miller was cleared for transfer to the Administrative Segregation Housing Unit. 8. There is no medical evidence that as of October 16, 2007, Mr. Miller had any life threatening injuries requiring immediate medical attention. Likewise, there is no medical evidence that as of October 16, 2007, Mr. Miller was unsuitable for transfer to the Administrative Segregation Housing Unit. (Dkt No. 101-1, 17:13-18:4 ("Based on my review of the medical records, Dr. Akanno's actions and recommendations were appropriate.") In his Opposition, Miller offers his own opinions regarding the treatment response he should have received for his thumb injury, although he lacks any medical qualifications. (See Dkt No. 101-1,

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12:17-24, Miller Deposition excerpts substantiating he has no medical training, has taken no classes in
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any sort of medicine or health care, and has no certification for any health-related issue.) Miller summarily contends that although Dr. Akanno ordered pain medication and an x-ray as soon as Miller's complaint was first brought to his attention, even before the x-ray results were known: "defendant Akanno had an obligation to provide Plaintiff with immediate medical care upon his order for x-rays and pain medication and this would include casting or a medical brace" (Dkt No. 109, 15:2-5); "Dr. Akanno knew the Plaintiff had a fracture[d] thumb and failed to treat the Plaintiff by casting and setting the Plaintiff's thumb" (Id., 18:7-9); and "Defendant Dr. Akanno knew that the Plaintiff had a fracture[d] thumb and failed to treat[] him personally when defendant Moonga inform[ed] him of my fracture[d] thumb and cause[d] the Plaintiff['s] thumb to heal in a malunion" (Id., 18:28-19:4). Dr. Akanno denies any such "knowledge" or obligation to treat Miller at the initial evaluation stage other than with pain medication and the obtaining of a diagnostic x-ray. Miller contends Dr. Lewis' findings recorded in his consultation reports from March and June 2008, summarized above, create a genuine issue of material fact regarding Defendants' Eighth

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Amendment liability. He speculates from the "malunion" Dr. Lewis identified at the healed fracture site
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five months after the injury that Dr. Lewis would testify Defendants' conduct violated his constitutional rights. However, Miller offers no more than conjecture regarding Dr. Lewis' "possible testimony" (Dkt No. 109, 33:23-24), or the "probable content of his testimony" (Id., 33:28), unsupported by evidence of any actual expert opinion Dr. Lewis may have regarding Dr. Akanno's response to the description he was given of Miller's injury. For example, in his Statement Of Disputed Factual Issues filed in support of his Opposition, Miller frames the issue: "Whether the testimony of doctor Marshall[] Lewis will state a claim of deliberate indifference to the Plaintiff['s] medical needs defendants J. Akanno, Moonga, & Rufino where the Plaintiff[']s fracture heal[ed] with a malunion and some deformity." (Dkt No. 109, 25:9-13.) His unsubstantiated hope regarding "the probable content" of a potential witness's testimony falls short of his burden on summary judgment. He provides no affidavit from Dr. Lewis, or evidence from any other medical expert, expressing any professional opinion whatsoever regarding Dr. Akanno's conduct. Moreover, "deliberate indifference" requires that the defendant "knows of and disregards" a serious health issue." Farmer, 511 U.S. at 837; Wood, 900 F.2d at 1334. The evidentiary record reflects

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Dr. Akanno did not "disregard" Miller's medical complaints­ instead, he acted to alleviate his pain with prescription medication and began the diagnostic process. The evidentiary import of Dr. Lewis' reports is accordingly limited to factual support for Miller's contention his thumb healed imperfectly. Even if one could draw an inference from that result that the injury was neglected within the prison medical system, neither negligence nor medical malpractice is sufficient to sustain an Eighth Amendment claim. See Estelle, 429 U.S. at 106; Wood, 900 F.2d at 1334. Moreover, Dr. Akanno's exposure to Miller's medical condition was limited to a single, secondhand consultation, a fact incompatible with the "obduracy and wantonness" necessary to find an Eighth Amendment violation. Wilson, 501 U.S. at 298-99. It is undisputed Dr. Akanno never examined Miller. Dr. Akanno declares: prior to October 22, 2007, when "Mr. Miller requested a medical appointment for complaint that he had broken his right thumb," he "had no knowledge of his injury" (Dkt No. 101-1:2223); "there is no documented evidence on October 16, 2007," the date of the mutual combat incident, "of a fractured thumb" (Id., 7:20-21); and on "October 23, 2007, I ordered an x-ray of the right hand and

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prescribed pain medications, . . . the appropriate and medically accepted treatment for suspected thumb
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fractures" (Id., 7:23-25). Miller's transfer to B-yard placed him under the auspices of other medical care providers. The scope of Miller's complaint against Dr. Akanno is thus circumscribed by his lay opinion that the ordering of an x-ray and pain medication do not constitute medical care, Dr. Akanno should have known his thumb was broken and should have set the bone immediately on October 23, 2007, before the x-ray results were obtained, or on October 26, 2007, the date of a "follow-up report" provided as part of Exhibit H to his Opposition. (Dkt No. 109 7:22-26.) Miller's Exhibit H is comprised of four documents. One is a Department of Corrections "Physician's Orders" form directed to the pharmacy, completed for "Miller, G" by Dr. Akanno and dated October 23, 2007, prescribing a 30-day supply of Motrin, 800 mg. (Dkt No. 109, p. 90.) A second "Physician's Orders" form, also dated October 23, 2007, instructs Miller is to have an x-ray taken of his right hand ordered by Dr. Akanno. (Id., p. 91.) A third document is a brief written report from Kern Radiology Medical Group in Bakersfield, California directed to Kern Valley State Prison, bearing a "D" date of October 26, 2007 (possibly a "diagnosis" date) and a "T" date of October 29, 2007 (possibly a

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"transmission" date). (Dkt No. 109, p. 89.) That document, signed by Jeffrey K. Child, M.D., identifies the patient as "Miller, G.", the subject matter as "INTERPRETATION OF OUTSIDE FILMS: RIGHT HAND: 10/26/07", and the "Referring Physician" as "JONATHAN E. AKANNO, M.D. " (Id.) The "Interpretation" portion of the text reads, in its entirety: There is an acute fracture through the proximal first metacarpal metaphysis with slight medial angulation of the distal fracture fragment. No other fractures. The remaining bones and joints are atraumatic and nonosteoarthritic. There are no marginal or subchondral erosions. (Dkt No. 109, p. 89.) The only reasonable inferences to be drawn from the Radiology Medical Group document are that the x-ray Dr. Akanno ordered was transmitted to a medical facility outside the prison for interpretation and diagnosis, a process that apparently was not completed until October 26, 2007, three days after thereafter. A fourth document in Miller's Opposition Exhibit H is an "Interdisciplinary Progress Notes" form dated "10-26-07" bearing a "Nurse Signature" and noting "splint to R thumb," with two pre-printed boxes checked: "Followup with MD within 5 days;" and "Follow up with MD/RN as needed." (Dkt No. 109, p. 92.) No indication on that form suggests it was prepared by or for Dr. Akanno or was directed to his attention. Furthermore, Plaintiff's Ex. D, a "Health Care Services Request Form" dated October 31, 2007, shows that Plaintiff was housed in "B-2-121," consistent with Dr. Akanno's assertion that Miller was transferred to the B yard. In Ex. D, Plaintiff asked for treatment for his thumb. Thus, at the time of the suggested follow-up in 5 days noted above, Miller was in the B facility and not subject to Dr. Akanno's care. Miller made another request on a "Health Care Services Request Form" (Plaintiff's Ex. E) on November 7, 2007. It appears that he was seen by RN Triesch on November 8, 2007, who noted that a splint was applied to his thumb per Dr. Patel's orders. (Exs. D and E.) Thus, consistent with Dr. Akanno's asertions, Miller's care was passed to facility B. Viewing the evidence in the light most favorable to Miller as the non-moving party, the Court finds as a matter of law Miller's scant allegations against Dr. Akanno fail to posit so much as a

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negligence claim. "[A] prisoner must allege acts or omissions sufficiently harmful to evidence
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deliberate indifference to serious medical needs." Estelle, 429 U.S. at 106; Jett, 439 F.3d at 1096; McGuckin, 974 F.2d at 1060. "It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause . . . ." Wilson, 501 U.S. at 298-99. Even evidence of gross negligence or medical malpractice cannot sustain an Eighth Amendment cruel and unusual punishment cause of action. Estelle, 429 U.S. at 106; Wood, 900 F.2d at 1334; see also Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (an actual difference of competent medical opinion regarding diagnosis or treatment "does not amount to deliberate indifference to a serious medical need" as required for liability under Section 1983); Toguchi, 391 F.3d at 1058 ("[A] mere 'difference of medical opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference' "), quoting Jackson, 90 F.3d at 332.. To defeat summary judgment, Miller had to do more than assert his own belief regarding what Dr. Akanno should have done. In summary, Dr. Akanno's immediate ordering of medication for Miller's pain inescapably absolves Dr. Akanno of liability as a matter of law on an Eighth Amendment theory of "unnecessary

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and wanton infliction of pain." See Hallett, 296 F.3d at 744; Estelle, 429 U.S. at 104. Similarly, his
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immediate ordering of an x-ray for the purpose of diagnosing the nature of Miller's thumb injury inescapably absolves Dr. Akanno of liability as a matter of law on an Eighth Amendment theory of "deliberate indifference" to a serious medical need, for failure of proof the official "knows of and disregards an excessive risk to inmate health or safety." Farmer, 511 U.S. at 837. The x-ray results were not obtained from the outside medical facility until October 26, 2007, three days after Dr. Akanno's only involvement with Miller's case, substantiating for the first time the thumb was actually broken. Miller was released from Ad Seg to B yard rather than returned to A yard where Dr. Akanno worked. He has not produced any evidence adequate to create a genuine issue of material fact on his Eighth Amendment claim that Dr. Akanno personally "denied, delayed or intentionally interfered with" Miller's medical treatment. Jett, 439 F.3d at 1096. /// /// ///

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III.

CONCLUSION AND ORDER For all the foregoing reasons, IT IS HEREBY ORDERED defendant Dr. Akanno's Motion For

Summary Judgment in his favor is GRANTED, and he is dismissed from this action. IT IS SO ORDERED. DATED: March 16, 2011

Honorable Barry Ted Moskowitz United States District Judge

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