Jacobsen v. People of the State of California

Filing 123

ORDER GRANTING Nurse Monica Choe's Motion for Summary Judgment 109 , signed by Magistrate Judge Jennifer L. Thurston on 8/18/17:Defendant Nurse Monica Choe and all claims against her are DISMISSED with prejudice; and the Clerk of the Court is directed to enter judgment against Plaintiff and in favor of Defendant Nurse Choe and reflect her termination on the docket for this case. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL NEIL JACOBSEN,
Plaintiff,

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v.

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PEOPLE OF THE STATE OF
CALIFORNIA, et al.,

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Case No. 1:14-cv-00108-JLT (PC)
ORDER GRANTING NURSE MONICA CHOE’S
MOTION FOR SUMMMARY JUDGMENT
(Doc. 109)

Defendants.

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I.

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Procedural History
Plaintiff claims that, in deliberate indifference to his serious medical needs sustained in an

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altercation with jail staff, Nurse Monica Choe, ignored his complaints and misdiagnosed him.

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Defendant contends that she is entitled to summary judgment as Plaintiff cannot prove the

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elements of his claim against her and failed to exhaust available administrative remedies on them

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as well. For the reasons discussed below, the Court finds that Defendant’s motion does not reveal

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a genuine issue of material fact and should be GRANTED.1

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///

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The Court notified Plaintiff of the requirements for opposing a motion for summary judgment in an order issued on
May 2, 2017. Woods v. Carey, Nos. 09-15548, 09-16113, 2012 WL 2626912 (9th Cir. Jul. 6, 2012), Wyatt v.
Terhune, 315 F.3d 1108 (9th Cir. 2003), Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), and Klingele v. Eikenberry,
849 F.2d 409 (9th Cir. 1988). That notice warned Plaintiff that his failure to file an opposition or a statement of nonopposition to Defendants’ motion could result in dismissal for failure to prosecute and that his failure to contradict
Defendants’ motion with declarations or other evidence would result in Defendants’ evidence being taken as truth
upon which final judgment may be entered. (Doc. 113.) Despite lapse of more than two months beyond the allowed
time, Plaintiff has filed neither an opposition nor a statement of opposition to Defendant’s motion. The motion is
thus deemed submitted. L.R. 230 (l).

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II.

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Plaintiff’s Claim
Plaintiff alleges that on December 25, 2013, he was involved in an altercation with

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officers of the Fresno County Jail, resulting in injuries including a black eye, scrapes and bumps

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to his forehead and right shoulder. Plaintiff also alleges that on March 11, 2014, Officer Barajas

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rolled him over and smashed his knee into the back of his head and neck, resulting in fractures to

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his right jaw and left hand, as well as re-injury to his right shoulder. Plaintiff alleges that he was

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denied medical treatment for his alleged injuries. Plaintiff alleges that he was seen by Defendant

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once (date unspecified) and he tried to show her his fractured hand and jaw, but that Defendant

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didn’t pay any attention to his complaints and misdiagnosed him with syphilis. (Doc. 16, p.5.)

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III.

Summary Judgment Standard
Summary judgment is appropriate where there is “no genuine dispute as to any material

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fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington

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Mutual Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine only if there

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is sufficient evidence for a reasonable fact finder to find for the non-moving party, while a fact is

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material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 F.2d 1422, 1436
(9th Cir. 1987). The Court determines only whether there is a genuine issue for trial and in doing
so, it must liberally construe Plaintiff’s filings because he is a pro se prisoner. Thomas v. Ponder,
611 F3d 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted).
In addition, Rule 56 allows a court to grant summary adjudication, or partial summary
judgment, when there is no genuine issue of material fact as to a particular claim or portion of that
claim. Fed. R. Civ. P. 56(a); see also Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir.
1981) (“Rule 56 authorizes a summary adjudication that will often fall short of a final
determination, even of a single claim . . .”) (internal quotation marks and citation omitted). The

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standards that apply on a motion for summary judgment and a motion for summary adjudication
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are the same. See Fed. R. Civ. P. 56 (a), (c); Mora v. Chem-Tronics, 16 F.Supp.2d 1192, 1200
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(S.D. Cal. 1998).
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Each party’s position must be supported by (1) citing to particular parts of materials in the

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record, including but not limited to depositions, documents, declarations, or discovery; or (2)

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showing that the materials cited do not establish the presence or absence of a genuine dispute or

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that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P.

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56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not

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cited to by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San

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Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo

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County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

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Defendant does not bear the burden of proof at trial and, in moving for summary

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judgment, need only prove an absence of evidence to support Plaintiff’s case. In re Oracle Corp.

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Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S.

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317, 323 (1986)). If Defendant meets the initial burden, it then shifts to Plaintiff “to designate

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specific facts demonstrating the existence of genuine issues for trial.” In re Oracle Corp., 627

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F.3d at 387 (citing Celotex Corp., 477 U.S. at 323). This requires Plaintiff to “show more than

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the mere existence of a scintilla of evidence.” Id. (citing Anderson v. Liberty Lobby, Inc., 477

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U.S. 242, 252 (1986)). An issue of fact is genuine only if there is sufficient evidence for a
reasonable fact finder to find for the non-moving party, while a fact is material if it “might affect
the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248; Wool v. Tandem
Computers, Inc., 818 F.2d 1422, 1436 (9th Cir. 1987).
In judging the evidence at the summary judgment stage, the Court may not make
credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless Inc., 509
F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and must draw all
inferences in the light most favorable to the nonmoving party and determine whether a genuine
issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v.
City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted),

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cert. denied, 132 S.Ct. 1566 (2012). Inferences, however, are not drawn out of the air; the
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nonmoving party must produce a factual predicate from which the inference may reasonably be
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drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985),
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aff’d, 810 F.2d 898 (9th Cir. 1987).

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Where, as here, the opposing party fails to file an opposition, a district court may not grant

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a motion for summary judgment solely on this basis. Cristobal v. Siegel, 26 F.3d 1488, 1494-95

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& n. 4 (9th Cir.1994). However, an unopposed motion for summary judgment may be granted if

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the movant’s papers are sufficient to support the motion and do not on their face reveal a genuine

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issue of material fact. See United States v. Real Property at Incline Village, 47 F.3d 1511,

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1519-20 (9th Cir.1995) (holding local rule cannot mandate automatic entry of judgment for

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moving party without consideration of whether motion and supporting papers satisfy

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Fed.R.Civ.P. 56), rev=d on other grounds sub nom. Degen v. United States, 517 U.S. 820 (1996).

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IV.

Discussion and Analysis

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A.

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Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a

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prisoner’s] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need

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is serious if failure to treat it will result in ‘“significant injury or the unnecessary and wanton

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infliction of pain.”’” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner,

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Eighth Amendment -- Deliberate Indifference to Serious Medical Needs

439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th
Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th
Cir.1997) (en banc))
To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must
first “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 defendants’ response to the need was deliberately indifferent.”
Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096
(quotation marks omitted)).
As to the first prong, indications of a serious medical need “include the existence of an

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injury that a reasonable doctor or patient would find important and worthy of comment or
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treatment; the presence of a medical condition that significantly affects an individual’s daily
activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060,
1066 (9th Cir. 2014) (citation and internal quotation marks omitted); accord Wilhelm, 680 F.3d at

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1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). Plaintiff’s alleged injuries from the

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altercations with custody staff are accepted as a serious medical need.

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As to the second prong, deliberate indifference is “a state of mind more blameworthy than

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negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or

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safety.’ ” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319).

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Deliberate indifference is shown where a prison official “knows that inmates face a substantial

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risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”

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Id., at 847. In medical cases, this requires showing: (a) a purposeful act or failure to respond to a

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prisoner’s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680

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F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was

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substantial; however, such would provide additional support for the inmate’s claim that the

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defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096, citing McGuckin, 974

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F.2d at 1060.

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Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060
(9th Cir.2004). “Under this standard, the prison official must not only ‘be aware of the facts from
which the inference could be drawn that a substantial risk of serious harm exists,’ but that person
‘must also draw the inference.’ ” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If 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. (quoting Gibson v. County of Washoe,
Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).
B.

Defendant’s Motion

Defendant’s evidence shows that she saw Plaintiff twice relative to his claims against her
in this action, while he was incarcerated in the Fresno County Jail. On April 16, 2014, Plaintiff
complained of pain on the right cheekbone extending to the facial muscle and a sensation of his

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teeth wiggling. (UMF #11.) There was a history of an altercation on March 11, 2014. (Id.)
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Plaintiff gave a history of a right shoulder rotator cuff injury and had further complaints of
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tenderness and swelling of the metacarpal bone in his left hand and numbness in the right hand.
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(Id.) Examination of Plaintiff’s left hand revealed a bulging bone structure 3cm x 3cm with no

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tenderness but was positive for numbness on palpitation. (UMF #12.) There was noted

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tenderness on extension of the left hand and right shoulder tenderness on rotation. (Id.)

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Plaintiff’s right cheek was negative for tenderness on palpation. (Id.) Defendant’s assessment

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was acute pain of the left hand and right cheekbone following altercation as well as chronic pain

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of the right shoulder secondary to Plaintiff’s history of rotator cuff injury. (UMF #13.)

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Defendant referred Plaintiff to the physician. (Id.)
Plaintiff was also seen by Defendant on April 25, 2014. (UMF #14.) On that date,

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Plaintiff presented with concern about a “little red lesion.” (Id.) Plaintiff had no complaints of

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tenderness or discharge lately. (Id.) Plaintiff also had complaints of right shoulder pain with past

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history of rotator cuff injury years prior. (Id.) The day before, the physician increased Plaintiff’s

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Neurontin dosage from l00mg to 300mg. (UMF #15.) Plaintiff was noted to be positive for

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Syphilis and stated he had not previously been so informed. (Id.) Examination revealed a mole-

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like 0.2cm x 0.2cm red lesion without tenderness or swelling. (UMF #16.) Defendant’s

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assessment was that Plaintiff was clinically stable and she referred him to the MD/NP to evaluate

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the need to treat Plaintiff’s Syphilis. (Id.) Defendant also introduced evidence in the form of
expert testimony that her treatment and care of the Plaintiff was medically appropriate, met the
applicable standard of care, and that nothing Defendant did or failed to do was a substantial factor
of injury to Plaintiff. (UMFs #17-20, 23, 24.)
Defendant’s evidence is sufficient to show that she was not deliberately indifferent to

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Plaintiff’s serious medical needs in violation of the Eighth Amendment. The evidence supports
Defendant’s motion and does not on its face reveal a genuine issue of material fact. United
States, 47 F.3d at 1519-20. Defendant’s request for summary judgment because Plaintiff fails to
exhaust available administrative remedies on his claims against her before filing suit need not be
reached since Defendant is entitled to summary judgment on the merits of Plaintiff’s claim.

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V.
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Order
Accordingly, Defendant Nurse Monica Choe’s motion for summary judgment, filed May

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1, 2017 (Doc. 109) is GRANTED; Defendant Nurse Monica Choe and all claims against her are
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DISMISSED with prejudice; and the Clerk of the Court is directed to enter judgment against

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Plaintiff and in favor of Defendant Nurse Monica Choe and reflect her termination on the docket

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for this case.

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IT IS SO ORDERED.
Dated:

August 18, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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