Chappell v. Gerber et al

Filing 68

ORDER GRANTING 58 Motion for Summary Judgment, signed by Chief Judge Ralph R. Beistline on 05/12/2015.CASE CLOSED (Martin-Gill, S)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
REX CHAPPELL,
Case No. 1:12-cv-01767-RRB
Plaintiff,
ORDER GRANTING MOTION
FOR SUMMARY JUDGMENT

vs.
GERBER, et al.,
Defendants.

At Docket 58 Defendants S. Shiesha, M. Vu, A. Joaquin, and H. Tate have filed a
motion for summary judgment. Plaintiff Rex Chappell has opposed the motion.1 Having
reviewed the motion and opposition, the Court has determined that an optional reply brief
would not materially assist the Court in resolving the issues presented. Accordingly, the matter
is submitted for decision on the moving and opposing papers without oral argument.2
I.

STANDARD OF REVIEW
Summary judgment is appropriate if, when viewing the evidence in the light most

favorable to the non-moving party, there are no genuine issues of material fact and the moving

1

Docket 65.

2

LR 230(l).

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party is entitled to judgment in its favor as a matter of law.3 Support and opposition to a motion
for summary judgment is made by affidavit made on personal knowledge of the affiant,
depositions, answers to interrogatories, setting forth such facts as may be admissible in
evidence.4 In response to a properly supported motion for summary judgment, the opposing
party must set forth specific facts showing that there is a genuine issue of material fact for
trial.5 The issue of material fact required to be present to entitle a party to proceed to trial is
not required to be resolved conclusively in favor of the party asserting its existence; all that is
required is that sufficient evidence supporting the claimed factual dispute be shown to require
a jury or judge to resolve the parties' differing versions of the truth at trial. In order to show that
a genuine issue of material fact exists a nonmoving plaintiff must introduce probative evidence
that establishes the elements of the complaint.6 Material facts are those that may affect the
outcome of the case.7 A dispute as to a material fact is genuine if there is sufficient evidence
for a reasonable jury to return a verdict for the non-moving party.8 "Credibility determinations,
the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury

3

Fed. R. Civ. P. 56(c); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc);
Taylor v. List, 880 F.2d 1040, 1044 (9th Cir. 1989).
4

Fed. R. Civ. P. 56(e).

5

Id.; Henderson v. City of Simi Valley, 305 F.3d 1052, 1055–56 (9th Cir. 2002).

6

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).

7

Id.

8

Id.

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functions, not those of a judge, [when] he is ruling on a motion for summary judgment."9 The
evidence of the non-moving party is to be believed and all justifiable inferences are drawn in
his favor.10 The moving party has the burden of showing there is no genuine issue of material
fact; therefore, he or she bears the burden of both production and persuasion.11 The moving
party, however, has no burden to negate or disprove matters on which the non-moving party
will have the burden of proof at trial. The moving party need only point out to the Court that
there is an absence of evidence to support the non-moving party's case.12 There is no genuine
issue of fact if, on the record taken as a whole, a rational trier of fact could not find in favor of
the party opposing the motion.13
In general, in ruling on a motion for summary judgment, a court may not weigh the
evidence or judge the credibility of witnesses.14 Instead, it generally accepts as true
statements made under oath.15 However, this rule does not apply to conclusory statements

9

Id. at 255.

10

Id.

11

Celotex Corp. v. Catrett, 477 U.S. 317, 322–323 (1986).

12

Sluimer v. Verity, Inc., 606 F.3d 584, 586 (9th Cir. 2010); see Celotex, 477 U.S. at

13

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

14

Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1036 (9th Cir. 2005).

15

Earp v. Ornoski, 431 F.3d 1158, 1170 (9th Cir. 2005).

325.

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unsupported by underlying facts,16 nor may a court draw unreasonable inferences from the
evidence.17
II.

BACKGROUND/ISSUES PRESENTED
This action arises out of Chappell’s incarceration at California Correctional Institution

– Tehachapi (“CCI”). In his Complaint Chappell raised six claims for relief. In screening the
Complaint the Court permitted Chappell to proceed on two of those claims: the Second and
Sixth Claims. All other claims were dismissed without leave to amend.18
In his Second Claim for Relief Chappell alleged that he was improperly denied single
cell status and his medical providers failed to prescribe medication appropriate to his
documented disability. Defendants Vu, Tate, Shiesha, and Joaquin were required to respond
to the Second Claim for Relief to the extent it alleged deliberate medical indifference.
In his Sixth Claim for Relief Chappell alleged that Defendant Tate denied him
appropriate pain medication in retaliation for filing grievances. Defendant Tate was required
to respond to the Sixth Claim for Relief.
III.

DISCUSSION
The Supreme Court, holding that the infliction of unnecessary suffering on prisoners

violated the Eighth Amendment, stated:

16

Walker v. Sumner, 917 F.2d 382, 387 (9th Cir. 1990).

17

See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001);
McLaughlin v. Liu, 849 F.2d 1205, 1207–1209 (9th Cir. 1988).
18

Docket 16.

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[D]eliberate indifference to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.
This is true whether the indifference is manifested by prison doctors in their
response to the prisoner’s needs or by prison guards in intentionally denying or
delaying access to medical care or intentionally interfering with the treatment
once prescribed. Regardless of how evidenced, deliberate indifference to a
prisoner’s serious illness or injury states a cause of action under § 1983.19
In Estelle the Supreme Court distinguished “deliberate indifference to serious medical needs
of prisoners,” from “negligen[ce] in diagnosing or treating a medical condition,” holding that
only the former violates the Constitution.20 In short, Eighth Amendment liability requires “more
than ordinary lack of due care for the prisoner's interests or safety.”21
In determining deliberate indifference, the court scrutinizes the particular facts and
looks for substantial indifference in the individual case, indicating more than mere negligence
or isolated occurrences of neglect.22 The Ninth Circuit has spoken to the subject of the
appropriate test under Estelle:
In the Ninth Circuit, the test for deliberate indifference consists of two parts.
First, the plaintiff 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. Second, the plaintiff must show
the defendant’s response to the need was deliberately indifferent. 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.
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
19

Estelle v. Gam ble, 429 U.S. 97, 104–105 (1976) (footnotes, internal quotation
marks, and citations omitted).
20

Id. at 106.

21

Whitley v. Albers, 475 U.S. 312, 319 (1986).

22

Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).

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physicians provide medical care. Yet, an inadvertent [or negligent] failure to
provide adequate medical care alone does not state a claim under § 1983. A
prisoner need not show his harm was substantial; however, such would provide
additional support for the inmate’s claim that the defendant was deliberately
indifferent to his needs. If the harm is an isolated exception to the defendant’s
overall treatment of the prisoner [it] ordinarily militates against a finding of
deliberate indifference.23
A defendant must purposely ignore or fail to respond to a prisoner’s pain or medical
need in order for deliberate indifference to be established. To make a claim, Plaintiff must
show that Defendants exhibited “deliberate indifference to serious medical needs.”24 Such a
showing is sufficient to demonstrate the “unnecessary and wanton infliction of pain proscribed
by the Eighth Amendment.”25 The Constitution “does not necessitate comfortable prisons,”26
nor is the Eighth Amendment a mandate for “broad prison reform” or excessive federal judicial
involvement.27 However, the Eighth Amendment does not permit inhumane conditions, and
prison conditions are subject to scrutiny under its provisions.28
The United States Supreme Court has outlined a two-part test to determine if prison
officials have violated a prisoner’s rights under the Eighth Amendment:

23

Jett v. Penner, 429 F.3d 1091, 1096 (9th Cir. 2006) (internal quotation marks and
citations omitted).
24

Estelle v. Gamble, 429 U.S. 97, 105 (1976).

25

Estelle v. Gamble, 429 U.S. 97,104 (1976) (quoting Gregg v. Georgia, 428 U.S.
153, 173 (1976)) (internal quotation marks and citation omitted)).
26

Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452
U.S. 337, 349 (1981))
27

Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) (abrogated on other grounds
by Sandlin v. O’Connor, 515 U.S. 472 (1995).
28

Farmer, 511 U.S. at 832.

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[A] prison official violates the Eighth Amendment only when two requirements
are met. First, the deprivation alleged must be, objectively, sufficiently serious[;]
a prison official’s act or omission must result in the denial of the minimal
civilized measure of life’s necessities . . . . The second requirement follows from
the principle that only the unnecessary and wanton infliction of pain implicates
the Eighth Amendment. To violate the Cruel and Unusual Punishments Clause,
a prison official must have a sufficiently culpable state of mind.29
For the purposes of ruling on the motion, as do the Defendants, the Court assumes
without deciding, that Chappell has met the first requirement. As to the second requirement,
the relevant state of mind is “one of ‘deliberate indifference’ to inmate health or safety.”30 To
show deliberate indifference, the inmate must prove that “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.”31 “Thus, Farmer [ ] requires an inmate to show that the official knew of the
risk and that the official inferred that substantial harm might result from the risk.”32 The “prison
official need not have acted ‘believing that harm actually would befall an inmate; it is enough

29

Farmer 511 U.S. at 834 (citations and internal quotations omitted); see also Wilson
v. Seiter, 501 U.S. 294, 299–300 (1991) (discussing subjective requirement); Johnson v.
Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (discussing two-part test); Osolinski v. Kane, 92
F.3d 934, 937 (9th Cir. 1996) (same); Wallis v. Baldwin, 70 F.3d 1074, 1076–77 (9th Cir.
1995) (same); Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994) (same).
30

Farmer, 511 U.S. at 834.

31

Id. at 837; see Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (discussing
objective and subjective elements of deliberate indifference claim).
32

Wallis, 70 F.3d at 1077.

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that the official acted . . . despite his knowledge of a substantial risk of serious harm.’”14 The
question of the official’s knowledge is a question of fact.15
“Deliberate indifference is a high legal standard. A showing of medical malpractice or
negligence is insufficient to establish a constitutional deprivation under the Eighth
Amendment.”16 A mere difference of medical opinion regarding the course of medical
treatment is “insufficient as a matter of law, to establish deliberate indifference.”17
It is undisputed that during the relevant time period Defendants Vu and Tate treated
Chappell. It is also undisputed that during that time frame Defendants Joaquin and Shiesha
reviewed Chappell’s inmate appeals and grievances; but neither treated him.
Chappell raised his single-cell claim in another action in this District, which action was
dismissed by both the District Court and the Court of Appeals.18 Consequently, that claim is
barred by the doctrine of res judicata. The Court further notes that, in any event, Chappell has

14

Id. (quoting Farmer, 511 U.S. at 842) (omission in original).

15

Farmer, 511 U.S. at 826.

16

Toguchi, 391 F. 3d at 1060; see Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir.
2002); see also Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) (stating that even
gross negligence is insufficient to establish a constitutional violation).
17

Toguchi, 391 F.3d at 1059–60 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th
Cir. 1996)); Franklin v. State of Oregon, State Welfare Div., 662 F.2d 1337, 1344 (9th Cir.
1981) (noting that a disagreement between a prisoner and a medical professional over the
most appropriate course of treatment cannot give rise to a viable claim of deliberate
indifference).
18

Chappell v. Perez, 2:09-cv-01465-GEB-KJN. This Court takes judicial notice of the
records in that case. Fed. R. Evid. 201.
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not alleged that he suffered any injury whatsoever as a result of being housed with another
inmate.
With respect to his waist-chain claim, in his Complaint Chappell alleged that custody
staff refused to honor the no waist-chain chrono issued by medical.19 In his opposition to the
motion Chappell alleges that Joaquin, Tate, and Vu in some unspecified way somehow
conspired with custody staff to not use waist chains. In support of this allegation Chappell
quotes an unidentified person as saying that “custody did not want medical to issue chrono’s
for waist chains.”20 Nowhere in either his complaint or his opposition does Chappell provide
a factual basis for his conclusory allegation that Joaquin, Tate, Vu, and/or Shiesha somehow
conspired with custody staff. The simple fact is that, at best, Chappell has established that
medical issued a no waist-chain chrono, but custody staff refused to honor it. This does not
support a claim for deliberate medical indifference as against the medical personnel.
Turning to Chappell’s medical indifference claim. Initially, the Court notes that this claim
is based upon an alleged refusal to provide appropriate medication, i.e., a narcotic-based
pain reliever. Attached to Chappell’s Complaint is a CDCR 602 HC “Inmate/Parolee Health
Care Appeal” dated June 25, 2012, in which he raises his claim that he was not receiving
adequate medical care. In particular, Chappell complained about the use of Tylenol-3 because
it was crushed before it was administered and caused constipation.21 The record in this case
does not reflect that the June 15 602 HC was ever processed. As noted below, however, the
19

Docket 1, pp. 18–19, paragraphs 20–22.

20

Docket 65, p. 3.

21

Docket 1, pp. 46–48.

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record reflects that the use of Tylenol-3, was discontinued by Dr. Tate at Chappell’s request
on July 12, 2012. Accordingly, the Court assumes without deciding that Chappell’s June 15
602 HC was resolved to Chappell’s satisfaction.
On the other hand, nothing in the record before this Court indicates that Chappell at any
time sought any administrative relief with respect to his medical indifference claims against
Defendants Vu, Tate, Joaquin and Shiesha. Failure to exhaust administrative remedies is an
affirmative defense to be raised and proven by the defense.22 Although Defendants raised
failure to exhaust as an affirmative defense in their Answer, they do not pursue that defense
in their motion for summary judgment. Accordingly, the Court assumes without deciding that
the Defendants have waived the failure to exhaust defense.
Resolution of this matter is further complicated by the fact that most of the facts relevant
to the medical treatment Chappell received at CCI spanned a time period that both preceded
and followed the date of Chappell’s Complaint, October 16, 2012. Because both parties have
relied upon those facts, in the interests of justice and to avoid unnecessary delay in finally
resolving this matter the Court will consider those facts.
As relevant to this case, Chappell’s medical records reflect that for some time prior
to July 2012 Chappell had been prescribed Tylenol-3, a narcotic pain reliever. On July 12,
2012, Dr. Tate discontinued the Tylenol-3 at Chappell’s request because Chappell reported

22

Jones v. Bock, 549 U.S. 199, 212–17 (2007); Albino v. Baca, 747 F3d 1162, 1166,
1168 (9th Cir. 2014) (en banc).
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that Tylenol-3 was constipating and he had not taken it for several days.23 On November 8,
2012, Chappell reported to Dr. Vu that he refused to take Tylenol-3 because it caused blisters
in his mouth.24 In the Progress Note dated December 14, 2012, Dr. Vu noted that Chappell
did not want more pain medications.25 On January 8, 2013, Dr. Vu prescribed morphine
sulfate for better pain control,26 continued it on January 25, 2013,27 and February 26, 2013.28
On February 21, 2013, Dr. Williams conducted a TeleMedicine evaluation at the request of
Dr. Vu. Dr. Williams recommended the use of a cane to help both with the pain and to
increase Chappell’s functional level.29 In April 2013 Chappell was transferred from CCI to
California State Prison–Corcoran.
The declarations of Drs. Vu and Tate establish that, in their professional opinions, the
treatment regimen prescribed for Chappell, although conservative, was medically

23

Facility B Medical Clinic PCP Progress Note, Docket 58-5, p. 33; Declaration of
Defendant Tate, Docket 58-7
24

Primary Care Provider Progress Note, Docket 58-5, p. 35; Declaration of Defendant
Vu, Docket 58-6.
25

Primary Care Provider Progress Note, Docket 58-5, p. 36; Declaration of Defendant
Vu, Docket 58-6. The Court notes that in that Progress Note Dr. Vu noted he had discussed
the issue of the waist chain-chrono with “custody staffs, who report this is their standard
protocol.”
26

Primary Care Provider Progress Note, Docket 58-5, p. 41; Declaration of Defendant
Vu, Docket 58-6.
27

Primary Care Provider Progress Note, Docket 58-5, p. 43; Declaration of Defendant
Vu, Docket 58-6.
28

Primary Care Provider Progress Note, Docket 58-5, p. 53; Declaration of Defendant
Vu, Docket 58-6. Dr. Vu also ordered the use of a cane and mobility vest as recommended
by the consulting physician, Dr. Williams.
29

Physical Medicine and Rehabilitation Report, Docket 58-5, p. 47.

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appropriate.30 For the most part In his opposition Chappell relies on statements allegedly
made by Drs. Vu and Tate to the effect that the refusal to prescribe a narcotic-based pain
medication was to appease custody staff because custody staff did not want inmates to have
narcotic-based pain medications. Even if the Court were to accept Chappel’s version of the
facts, Chappell would not prevail. Chappell’s argument has two fatal flaws. First, Chappell
does not refute the record, which reflects that: (1) Dr. Tate discontinued Tylenol-3 at Chappel’s
request; and (2) subsequently Dr. Vu prescribed a narcotic-based pain reliever—morphine.
Second and more importantly, other than his own opinion, Chappell has failed to provide any
evidence that the treatment he was accorded was inadequate or rose to the level of
negligence or medical malpractice, let alone deliberate medical indifference.
IV.

CONCLUSION/ORDER
Chappell’s claims are based upon speculation, conjecture, and innuendo, unsupported

by relevant, competent evidence. Accordingly, the Complaint on file herein is hereby
DISMISSED in its entirety as against all Defendants. Plaintiff to take nothing by way thereof,
and judgment to be entered thereon in favor of the Defendants.
The record reflects that this Court revoked Chappell’s in forma pauperis status.31
Furthermore, this Court, having fully considered the matter finds that reasonable jurists could
not disagree with this Court’s resolution of Chappell’s constitutional claims, or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed further.

30

Docket 58-6 (Vu Declaration); Docket 58-7 (Tate Declaration).

31

Docket 15.

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Accordingly, any appeal would be frivolous or taken in bad faith.32 Therefore, should Chappell
seek to appeal from the judgment in this case, his notice of appeal must be accompanied by
the filing fee, or an application addressed to the Court of Appeals to proceed in forma
pauperis on appeal.
The Clerk of the Court is directed to enter final judgment accordingly.
WARNING
In the event Chappell seeks further review of this matter in the Court of Appeals,
he must comply with the Federal Rules of Appellate Procedure and the rules
adopted by the Court of Appeals for the Ninth Circuit, including the payment of the
filing fee, or an application addressed to the Court of Appeals to proceed in forma
pauperis on appeal.
IT IS SO ORDERED this 12th day of May, 2015.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

32

28 U.S.C. § 1915(a)(3); see Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th
Cir. 2002).
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