Cooper v. Brown et al
Filing
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FINDINGS and RECOMMENDATIONS, Recommending that Defendant's Motion for Summary Judgment be Granted 35 , signed by Magistrate Judge Gary S. Austin on 2/8/2019: 14-Day Deadline. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JASON LEROY COOPER,
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Plaintiff,
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v.
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EDMUND G. BROWN, JR., et al.,
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Defendants.
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1:15-cv-00908-DAD-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT BE
GRANTED
(ECF No. 35.)
OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN DAYS
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I.
BACKGROUND
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Jason Leroy Cooper (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis
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with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with
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Plaintiff’s Second Amended Complaint filed on July 7, 2017, against Dr. Chokatos
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(“Defendant”) on Plaintiff’s medical claim under the Eighth Amendment. (ECF No. 19.)
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On May 18, 2018, defendant Chokatos filed a motion for summary judgment on the
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grounds that: (1) Plaintiff’s claim is barred by the applicable statute of limitations, and
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that (2) Defendant was not deliberately indifferent to Plaintiff’s serious medical needs,
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and there is no genuine dispute of material fact as to Plaintiff’s claim for deliberate
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indifference.1 (ECF No. 35.) On December 6, 2018, after being granted extensions of
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time, Plaintiff filed an opposition to the motion. (ECF No. 48.) On December 14, 2018,
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Defendant filed a reply to the opposition. (ECF No. 49.)
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Defendant’s motion for summary judgment is now before the court. Local Rule 230(l).
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For the reasons that follow, the court recommends that the motion be granted.
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II.
SUMMARY JUDGMENT STANDARD
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Any party may move for summary judgment, and the court shall grant summary
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judgment if the movant shows that there is no genuine dispute as to any material fact and the
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movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks
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omitted); Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s
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position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to
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particular parts of materials in the record, including but not limited to depositions, documents,
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declarations, or discovery; or (2) showing that the materials cited do not establish the presence
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or absence of a genuine dispute or that the opposing party cannot produce admissible evidence
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to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The Court may
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consider other materials in the record not cited to by the parties, but it is not required to do so.
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Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th
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Cir. 2001); accord Simmons v. Navajo Cnty., 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, he need only prove an absence of evidence to support Plaintiff’s case. In re Oracle
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Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S.
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317, 323, 106 S.Ct. 2548 (1986)). If Defendant meets his initial burden, the burden then shifts
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to Plaintiff “to designate specific facts demonstrating the existence of genuine issues for trial.”
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In re Oracle Corp., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 323). This requires
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Concurrently with his motion for summary judgment, Defendant served Plaintiff with the
requisite notice of the requirements for opposing the motion. Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir.
2012); Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998). (ECF No. 35-1.)
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Plaintiff to “show more than the mere existence of a scintilla of evidence.”
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505 (1986)).
Id. (citing
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In judging the evidence at the summary judgment stage, the court may not make
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credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc.,
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509 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all
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inferences in the light most favorable to the nonmoving party and determine whether a genuine
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issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v.
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City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation
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omitted). The court determines only whether there is a genuine issue for trial. Thomas v.
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Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted).
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III.
SUMMARY OF ALLEGATIONS IN THE SECOND AMENDED COMPLAINT2
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Plaintiff is currently incarcerated at Mule Creek State Prison in Ione, California, in the
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custody of the California Department of Corrections and Rehabilitation (CDCR). The events
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giving rise to this action allegedly occurred at Pleasant Valley State Prison (PVSP) in Coalinga,
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California, when Plaintiff was incarcerated there.
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Plaintiff alleges the following. Plaintiff was transferred to PVSP in November 2011.
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(ECF No. 19 ¶ 1.) In approximately June 2013, Plaintiff was diagnosed with
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coccidioidomycosis, or “Valley Fever.” (Id. ¶¶ 9–10.) Valley Fever is not a curable disease, and
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the disseminated form of the disease is progressive, painful, and debilitating, and if left
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untreated, uniformly fatal once it progresses to meningitis. (Id. ¶¶ 11, 13.) The only
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medications found to be effective in treating Valley Fever are certain triazole compounds,
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including Fluconazole dosed at 400 milligrams per day; to be effective, Fluconazole must be
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taken daily, and lifelong treatment is recommended. (Id. ¶ 14.)
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Plaintiff’s Second Amended Complaint is verified and his allegations constitute evidence
where they are based on his personal knowledge of facts admissible in evidence. Jones v. Blanas, 393 F.3d 918,
922-23 (9th Cir. 2004). The summarization of Plaintiff’s claim in this section should not be viewed by the parties
as a ruling that the allegations are admissible. The Court will address, to the extent necessary, the admissibility of
Plaintiff’s evidence in the sections which follow.
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California health officials have long known about the prevalence of Valley Fever in the
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San Joaquin Valley region of the state. In November 2004, the Deputy Director of Health Care
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Services at the CDCR wrote a memorandum (the “Kanan Memo”) to CDCR staff and officials
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regarding Valley Fever, its origin, and its treatment. (Id. ¶ 16.) The Kanan Memo recognized
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that triazole compounds, such as Fluconazole, are the only medications known to be effective
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on inmates with Valley Fever. (Id.) The Kanan Memo was and continues to be widely available
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to CDCR physicians, including defendant Dr. Chokatos. (Id.) In April 2012, the California
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Correctional Health Care Services released a report titled “Coccidiodomycosis in California’s
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Adult Prisons, 2006–2010,” which concluded that the incidence of Valley Fever has been
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increasing in some prisons, including PVSP. (Id. ¶ 17.)
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Defendant Dr. Chokatos was the primary care physician assigned to Plaintiff by CDCR
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during the time he was at PVSP. (Id. ¶ 2.) Defendant Chokatos regularly treated patients with
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Valley Fever and knew that the only medications shown to be effective in treating the disease
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were triazole compounds, such as Fluconazole. (Id. ¶ 22.) Soon after Plaintiff was diagnosed
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with Valley Fever, he requested that defendant Dr. Chokatos start him on Fluconazole. (Id. ¶¶
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23–24.) Defendant Chokatos refused. (Id. ¶ 24.) During the next sixteen months Plaintiff’s
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symptoms worsened and he repeatedly reported his symptoms to defendant Chokatos while
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requesting Fluconazole; but on each occasion, defendant Chokatos refused to provide such
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treatment. (Id. ¶ 25.) As a result of his refusal Plaintiff alleges that the disease progressed
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causing him to suffer body aches, joint pain, and severe and debilitating fatigue. (Id. ¶ 26.)
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Finally, in September 2014, defendant Chokatos prescribed Fluconazole. (Id. ¶ 27.) The
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treatment eased his symptoms and appeared to slow the progression of the disease. (Id.) By that
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time, however, the delay in treatment had caused Plaintiff’s disease to progress causing
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additional and worsening symptoms and suffering. (Id. ¶ 28.)
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In this action, Plaintiff seeks monetary and declaratory relief.
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IV.
UNDISPUTED FACTS (UF)
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The following facts derive from Defendant’s statement of undisputed material facts,
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(ECF No. 35-5), Plaintiff’s responses to those statements, (ECF No. 48 ), evidence cited in
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those statements, and the court’s review of the record.
Supporting Evidence, Plaintiff’s Reponse,
Defendant’s Undisputed Material Facts
and Court’s Finding
1. Plaintiff Jason Leroy Cooper filed his
Compl. 19 (ECF No. 1); First Am. Compl. 6
original Complaint in this matter on June 1,
(ECF No. 12); Second Am. Compl. 13 (ECF No.
2015. He filed his First Amended Complaint
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on May 25, 2016. He filed his Second
Amended Complaint on April 30, 2017.
Court’s finding: undisputed.3
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2. Cooper currently alleges that he was Second Am. Compl. ¶¶ 23-27 (ECF No. 19);
damaged because from late 2012 to September Cooper Dep. 32:16-19 (Duggan Decl. Ex. I).
2014, Dr. Chokatos did not prescribe
Court’s finding: undisputed.4
Fluconazole for Cooper.
3. Cooper’s original Complaint did not address Compl. (ECF No. 1).
Fluconazole, Cooper’s medical treatment, or
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Dr. Chokatos. Instead it focuses on Cooper’s Court’s finding: undisputed.
alleged contraction of Valley Fever.
4. Cooper filed an administrative grievance on Gates Decl. ¶ 9; Patient-Inmate Healthcare
August 14, 2014, Appeal PVSP HC 14050888, Appeal (Gates Decl. Ex. D at 3).
requesting different treatment for alleged
Valley Fever symptoms.
Court’s finding: disputed in part.6
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Plaintiff admitted UF No. 1. (ECF No. 48 at 1.) Therefore, the court finds UF No. 1 to be
undisputed. However, the court is aware that the parties have agreed to the dates that Plaintiff’s complaints were
purportedly filed under the mailbox rule of Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379 (1988), which provides
that a pro se prisoner’s court filing is deemed filed at the time the prisoner delivers it to prison authorities for
forwarding to the court clerk. Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009). (See ECF No. 35-2 at 5:78.) The court’s record shows that Plaintiff’s original Complaint was filed with the court on June 15, 2015 (ECF
No. 1); Plaintiff’s First Amended Complaint was filed with the court on June 9, 2016 (ECF No. 12); and Plaintiff’s
Second Amended Complaint was filed with the court on July 7, 2017 (ECF No. 19). (Court Record.)
.
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Plaintiff admitted UF No. 2. (ECF No. 48 at 2.) The court finds UF No. 2 to be undisputed.
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Plaintiff admitted UF No. 3. (Id.) The court finds UF No. 3 to be undisputed.
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Plaintiff disputed UF No. 4 as follows: “Denied. In that HC 602, Plaintiff requested
treatment. He had not received ANY treatment so could not ask for ‘different’ treatment.” (Id.) The court finds
UF No. 4 to be disputed in part. However, it is not disputed that Plaintiff filed an administrative grievance on
August 14, 2014, Appeal PVSP HC 14050888, requesting treatment with Fluconazole for Valley Fever symptoms.
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Supporting Evidence, Plaintiff’s Reponse,
and Court’s Finding
5. Appeal log no. PVSP HC 14050888 was Gates Decl. ¶¶ 8-9; Appeal History for (F40950)
Plaintiff’s only grievance regarding his Jason Cooper (Gates Decl. Ex. C); Patienttreatment for alleged Valley Fever symptoms.
Inmate Healthcare Appeal (Gates Decl Exs. DF).
Defendant’s Undisputed Material Facts
Court’s finding: disputed in part.7
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6. On October 2, 2014 Appeal log no. PVSP Patient-Inmate Healthcare Appeal (Gates Decl.
HC 14050888 was partially granted at the first Ex. D at 1).
level after Cooper was prescribed Fluconazole.
Cooper did not pursue the grievance further.
Court’s finding: undisputed.8
7. In his Second Amended Complaint, Cooper Second Am. Compl. ¶ 28 (ECF No. 19).
asserts he exhausted administrative remedies
through grievance log number PVSP-14- Court’s finding: undisputed.9
01945.
8. Grievance log number PVSP-14-01945 Inmate/ Parolee Appeal (Voong Decl. Ex. H at
complains that prison officials were negligent 3-6).
in their dust abatement procedures and policies
for windy days, which resulted in Cooper Court’s finding: undisputed.10
contracting Valley Fever. The grievance does
not mention any subsequent treatment, and
does not mention Dr. Chokatos.
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Plaintiff disputed UF No. 5 as follows: “Denied. The symptoms were not simply ‘alleged,’
they were real. Also, multiple oral grievances on the issue were made.” (Id.) Therefore, the court finds UF No. 5
to be disputed in part. However, it is not disputed that appeal log number PVSP-HC-14050888 was Plaintiff’s
only written grievance regarding his treatment for his reported symptoms. The court finds UF No. 5 to be
undisputed to the extent that it addresses written and not oral grievances and Plaintiff’s reported symptoms.
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Plaintiff admitted UF No. 6, adding, “Plaintiff was told that he could not seek monetary
damages through the 602 process.” (Id.) Plaintiff’s statement does not cause a dispute of any part of UF No. 6.
Therefore, the court finds UF No. 6 to be undisputed.
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Plaintiff admitted UF No. 7 but states that “[t]his appears to be an inadvertent error of
referencing the wrong 602 which can be corrected by amendment.” (Id.) Therefore, the court finds UF No. 7 to
be undisputed to the extent that it reflects Plaintiff’s allegations in the Second Amended Complaint.
Plaintiff admitted UF No. 8 stating, “See response to number 7 above.” (Id.) The court finds
UF No. 8 to be undisputed to the extent that it reflects the contents of Plaintiff’s grievance log number PVSP-1401945.
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Supporting Evidence, Plaintiff’s Reponse,
and Court’s Finding
9. Cooper’s Second Amended Complaint states Second Am. Compl. ¶ 23-24 (ECF No. 19).
that in June 2013, he was diagnosed with
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Valley Fever, and “requested that Defendant Court’s finding: undisputed.
Chokatos start him on Fluconazole to alleviate
the symptoms and prevent further progression
of the disease.”
Defendant’s Undisputed Material Facts
10. Cooper’s Second Amended Complaint Second Am. Compl. ¶ 25 (ECF No. 19).
alleges that between June 2013 and September
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2014 he had several encounters with Dr. Court’s finding: undisputed.
Chokatos
and
repeatedly
requested
Fluconazole, which requests Dr. Chokatos
refused.
11. Cooper’s Second Amended Complaint Second Am. Compl. ¶ 27 (ECF No. 19).
alleges that in September 2014 Dr. Chokatos
Court’s finding: undisputed.13
prescribed Fluconazole for Cooper.
12. Cooper’s medical records show that it was Cooper Dep. 38:12-39:6, and Ex. 3 (Duggan
nurse practitioner Ogbuehi who prescribed Decl. Exs. I-J); Feinberg Decl. ¶¶ 26, 39.
Fluconazole for Cooper in September 2014, not
Dr. Chokatos.
Court’s finding: undisputed.14
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13. Coccidioidomycosis is an infection caused
by inhalation of spores of fungi of the genus
Coccidioides.
When
coccidioidomycosis
causes acute pneumonia, the condition is
known commonly as “Valley Fever.”
Chokatos Decl. ¶ 12; Carol A. Kauffman, et al.,
Primary Coccidioidal Infection 1 (Chokatos
Decl. Ex. B) (hereinafter “Kauffman”).
Court’s finding: undisputed.15
14. The most common symptoms of Chokatos Decl. ¶ 13; Kauffman at 3; Feinberg
coccidioidomycosis are chest pain, cough, and Decl. ¶ 39a.
fever.
Court’s finding: undisputed. 16
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Plaintiff admitted UF No. 9. (Id.) The court finds UF No. 9 to be undisputed.
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Plaintiff admitted UF No. 10. (Id. at 3.) The court finds UF No. 10 to be undisputed.
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Plaintiff admitted UF No. 11. (Id.) The court finds UF No. 11 to be undisputed.
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Plaintiff disputed UF No. 12 as follows: “Denied. The nurse practitioner works directly
under Defendant and prescribes pursuant to his authority.” (Id.) Plaintiff’s statement does not cause a dispute of
any part of UF No. 12. Therefore, the court finds UF No. 12 to be undisputed.
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Plaintiff admitted UF No. 13. (Id.) The court finds UF No. 13 to be undisputed.
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Plaintiff admitted UF No. 14. (Id.) The court finds UF No. 14 to be undisputed.
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Supporting Evidence, Plaintiff’s Reponse,
and Court’s Finding
15. It is estimated that more than half of cases Chokatos Decl. ¶14; Kauffman at 3-4; Feinberg
of coccidioidomycosis are never diagnosed. Decl. ¶ 39a
The symptoms are non-specific and in many
Court’s finding: undisputed.17
cases the infection resolves on its own without
specific therapy.
Defendant’s Undisputed Material Facts
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16. In cases where it does not resolve on its Chokatos Decl. ¶16; Feinberg Decl. ¶ 39a.
own, coccidioidomycosis may disseminate, or
Court’s finding: undisputed.18
spread outside the lungs and cause serious
health problems.
17. If coccidioidomycosis is suspected, the
patient is evaluated with serological testing, in
which a blood sample is taken and tested for
presence of antibodies to coccidioides fungus.
The result is a “titer,” which can be 0, 1:2, 1:4,
1:8, 1:16, etc. The higher the second number,
the more antibodies and the worse the
infection. Titers of 1:2 and 1:4 are considered
insignificant, indicating only that the patient
was exposed to the fungus and had an immune
response to it.
Chokatos Decl. ¶15; Kauffman at 3, 8; Cooper
medical records (Duggan Decl. Ex. K at 8);
Feinberg Decl. ¶ 11.
Court’s finding: undisputed.19
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18. Where a patient presents without evidence Chokatos Decl. ¶¶15-16, Kauffman at 5;
of extensive coccidioidal infection, and without Feinberg Decl. ¶ 39 a-b.
risk factors for dissemination of the infection,
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such as HIV or pregnancy, antifungal Court’s finding: undisputed.
treatment, such as Fluconazole, is not
medically necessary.
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Plaintiff admitted UF No. 15. (Id.) The court finds UF No. 15 to be undisputed.
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Plaintiff admitted UF No. 16. (Id.) The court finds UF No. 16 to be undisputed.
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Plaintiff disputed UF No. 17, as follows: “Denied. If a patient has a Titer score of 1:2 and
1:4, that is not insignificant if the patient has preexisting risk factors including [a] cardiopulmonary condition such
as asthma. Plaintiff suffers from such a preexisting risk factor, a condition documented in his medical file.” (Id. at
3-4.) Here, Plaintiff offers his opinion that his asthma is a preexisting risk factor and therefore he should have
been prescribed Fluconazole. Plaintiff’s opinion that his asthma was a risk factor is not admissible evidence
because Plaintiff is a layperson not qualified to give an expert medical opinion about whether he had a preexisting
risk factor making antifungal medication treatment necessary. Federal Rule of Evidence 701. Therefore, the court
finds UF No. 17 to be undisputed.
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Plaintiff denied UF No. 18, as follows: “Denied. As set forth above, Plaintiff did in fact have
a preexisting risk factor making antifungal medication treatment necessary.” (Id. at 4.) Here, Plaintiff offers his
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Supporting Evidence, Plaintiff’s Reponse,
and Court’s Finding
19. Plaintiff Cooper is not a doctor, nor is he a Cooper Dep. 20:18-24, 36:6-15 (Duggan Decl.
medical expert.
Ex. I).
Defendant’s Undisputed Material Facts
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Court’s finding: undisputed.21
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20. According to Cooper’s Second Amended Second Am. Compl. ¶ 27.
Complaint, once Fluconazole was prescribed,
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in September 2014, Plaintiff’s alleged Court’s finding: undisputed.
symptoms eased. According to the Second
Amended Complaint, the alleged delay in
prescribing Fluconazole caused Cooper’s
suffering from body aches, joint pain, fatigue,
and emotional distress.
21. From November 2012 to September 2014, Chokatos Decl. ¶ 19; Cooper medical records
Dr. Chokatos saw Cooper for eight medical (Duggan Decl. Ex. K at 2-18).
encounters.
Court’s finding: undisputed.23
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22. Coccidioidomycosis is first mentioned in
Cooper’s medical records in April 2013, when
Cooper sought testing to rule out hepatitis C
and coccidioidomycosis because of feelings of
fatigue and weakness. In May 2013, Cooper’s
first coccidioidomycosis test showed a titer of
1:2. Considering Cooper’s symptoms at that
time, Dr. Chokatos determined that
Fluconazole was not warranted.
Chokatos Decl. ¶¶ 16, 19, 24, 37; Cooper
medical records (Duggan Decl. Ex. K at 7-10);
Feinberg Decl. ¶¶ 10-13.
Court’s finding: undisputed.24
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own medical opinion, which is not admissible evidence because Plaintiff is a layperson not qualified to give an
expert medical opinion about whether he had a preexisting risk factor making antifungal medication treatment
necessary. Federal Rule of Evidence 701. Moreover, Plaintiff’s statement does not cause a dispute with any part
of UF No. 18. Therefore, the court finds UF No. 18 to be undisputed.
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Plaintiff admitted UF No. 19. (Id.) The court finds UF No. 19 to be undisputed.
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Plaintiff admitted UF No. 20. (Id.) The court finds UF No. 20 to be undisputed
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Plaintiff admitted UF No. 21. (Id.) The court finds UF No. 21 to be undisputed.
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Plaintiff admitted UF No. 22, “except to the extent of Dr. Chokatos’s conclusions being
correct. Dr. Chokatos never considered Plaintiff’s preexisting risk factors in his decision to deny care in violation
of his own guidelines.” (Id.) Here, Plaintiff disagrees with Dr. Chokatos’s evaluation and conclusion. However,
Plaintiff’s disagreement, without more, does not create a dispute of fact about what Dr. Chokatos considered and
concluded, because Plaintiff is a layperson not qualified to give an expert medical opinion. Federal Rule of
Evidence 701. Therefore, the court finds UF No. 22 to be undisputed.
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Supporting Evidence, Plaintiff’s Reponse,
and Court’s Finding
23. At Dr. Chokatos’s next encounter with Chokatos Decl. ¶ 25; Cooper medical records
Cooper, on July 12, 2013, Dr. Chokatos (Duggan Decl. Ex. K at 11-12); Feinberg Decl.
evaluated Cooper’s symptoms and again ¶¶ 14-15.
determined no specific treatment for
Court’s finding: undisputed.25
coccidioidomycosis was necessary.
Defendant’s Undisputed Material Facts
24. At Dr. Chokatos’s next encounter with
Cooper, on November 26, 2013, Dr. Chokatos
evaluated Cooper’s symptoms and again
determined no specific treatment for
coccidioidomycosis was necessary. On that
occasion, Cooper’s titer score was again
reported at 1:2. Dr. Chokatos concluded
Cooper’s coccidioidomycosis had been
successfully treated.
Chokatos Decl. ¶ 27; Cooper medical records
(Duggan Decl. Ex. K at 15-16); Feinberg Decl.
¶¶ 15, 18.
25. At Dr. Chokatos’s next encounter with
Cooper, on January 7, 2014, Dr. Chokatos
treated Cooper for shoulder pain. Dr. Chokatos
also evaluated Cooper’s symptoms and found
no symptoms of coccidioidomycosis.
Chokatos Decl. ¶ 28; Cooper medical records
(Duggan Decl. Ex. K at 17-18); Feinberg Decl. ¶
20.
Court’s finding: undisputed.26
Court’s finding: undisputed.27
26. After January 7, 2014, Cooper did not have Chokatos Decl. ¶¶ 28-33.
a medical encounter with Dr. Chokatos until
Court’s finding: undisputed.28
January 2015.
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Plaintiff admitted UF No. 23 but added, “[o]nce again, Dr. Chokatos failed to consider
Plaintiff’s preexisting risk factors.” (Id.) Plaintiff’s opinion about whether Plaintiff had preexisting risk factors is
not admissible evidence because Plaintiff is a layperson not qualified to give an expert medical opinion about
whether he had a preexisting risk factor. Federal Rule of Evidence 701. The court finds UF No. 23 to be
undisputed.
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Plaintiff denied UF No. 24 as follows: “Denied. Because no treatment was ordered until
2014, Plaintiff’s symptoms for Valley Fever could not have been successfully treated. This encounter concerned a
shoulder injury and not Valley Fever.” (Id. at 5.) Plaintiff’s statements do not cause a dispute with any part of UF
No. 24, which describes what Dr. Chokatos did and what he concluded. Therefore, the court finds UF No. 24 to be
undisputed.
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Plaintiff denied UF No. 25 as follows: “Denied. A Titer score of 1.2 does not indicate a lack
of infection and with the preexisting risk factor Plaintiff should have received treatment.” (Id.) Plaintiff’s
statement of his opinion does not cause a dispute with any part of UF No. 25, which describes what happened at
the January 7, 2014 visit. Therefore, the court finds UF No. 25 to be undisputed.
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Plaintiff admitted UF No. 26 “to the extent that the encounter was personal and not through
other medical personnel under his management.” (Id.) The court finds UF No. 26 to be undisputed to the extent
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Supporting Evidence, Plaintiff’s Reponse,
and Court’s Finding
27. Cooper had medical encounters with other Chokatos Decl. ¶¶ 29-30; Cooper medical
CDCR medical practitioners (not Dr. records (Duggan Decl. Ex. K at 19-24);
Chokatos) on January 15, 2014, May 10, 2014, Feinberg Decl. ¶¶ 21-23.
and May 19, 2014.
Court’s finding: undisputed.29
Defendant’s Undisputed Material Facts
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28. In August 2014, Cooper saw a CDCR nurse
practitioner and complained of fatigue. A
coccidioidomycosis test was ordered. In
September 2014, the test result came back. The
test result was again 1:2, indicating no active
disease. Despite the only symptom being
fatigue, nurse practitioner Ogbuehi approved a
Fluconazole prescription for Cooper.
Chokatos Decl. ¶¶ 30-31; Cooper medical
records (Duggan Decl. Ex. K at 25-29);
Feinberg Decl. ¶¶ 24-26.
29. On January 30, 2015, Dr. Chokatos saw
Cooper for a follow-up appointment. Dr.
Chokatos noted Cooper had a Fluconazole
prescription despite the treatment not being
medically indicated. Cooper had no symptoms
of a significant coccidioidomycosis infection.
Dr. Chokatos ordered a coccidioidomycosis
test and a follow up appointment.
Chokatos Decl. ¶ 33; Cooper medical records
(Duggan Decl. Ex. K at 31-32); Feinberg Decl. ¶
27.
Court’s finding: undisputed.30
Court’s finding: undisputed. 31
16
17
18
19
20
21
22
23
24
25
26
27
28
that the encounter was personal as to Dr. Chokatos and not through other medical personnel under Dr. Chokatos’s
management.
29
Plaintiff admitted UF No. 27, adding that “[t]he other medical practitioners all reported to
Defendant as their superior.” (Id.) Plaintiff’s statement does not cause a dispute with any part of UF No. 27.
Therefore, the court finds UF No. 27 to be undisputed.
Plaintiff admitted UF No. 28, “except for the clause stating that Fluconazole was prescribed
‘despite there being no indication of active disease.’ Because of Plaintiff’s preexisting risk factor, Fluconazole
was the admittedly correct prescription.” (Id.) Plaintiff’s statements do not cause a dispute with any part of UF
No. 28, which describes what happened at his August 2014 and September 2014 visits. Moreover, Plaintiff’s
opinion about whether there was indication of active disease or whether he had a preexisting risk factor and
needed treatment with Fluconazole is not admissible evidence because Plaintiff is a layperson who is not qualified
to give a medical opinion. Federal Rule of Evidence 701. Therefore, the court finds UF No. 28 to be undisputed.
30
Plaintiff admitted UF No. 29, adding that “[t]he Fluconazole prescribed by the nurse
practitioner had alleviated the symptoms [and] [t]he nurse practitioner worked under Dr. Chokatos’s authority and
supervision per CDCR medical procedures.” (Id.) The Court here need not address whether Plaintiff’s opinion
that the Fluconazole alleviated his symptoms is admissible evidence as it does not refute Defendant’s statement of
fact. Therefore, the court finds UF No. 29 to be undisputed.
31
11
1
2
3
4
Supporting Evidence, Plaintiff’s Reponse,
and Court’s Finding
30. On April 17, 2015 the test results came Chokatos Decl. ¶ 34; Cooper medical records
back with a titer of zero. Since Cooper had no (Duggan Decl. Ex. K at 39-41); Feinberg Decl. ¶
other symptoms of valley fever, the 30.
Fluconazole prescription was discontinued.
Court’s finding: undisputed.32
Defendant’s Undisputed Material Facts
5
6
7
8
9
31. Cooper is sentenced to life without the Cooper Dep. 35:11-12 (Duggan Decl. Ex. I).
possibility of parole.
Court’s finding: undisputed.33
32. Cooper was not diagnosed with Valley Chokatos Decl. ¶ 38; Feinberg Decl. ¶ 24.
Fever in the 2012-2016 time frame.
Court’s finding: undisputed.34
10
11
12
33. Dr. Chokatos determined that in 2012- Chokatos Decl. ¶ 37; Feinberg Decl. ¶ 39.
2016, Cooper did not have symptoms
Court’s finding: undisputed.35
indicating a Fluconazole prescription was
medically necessary.
13
14
15
34. At his deposition, Cooper testified that he Cooper Dep. 30:1-12 (Duggan Decl. Ex. I).
believed taking Fluconazole reduced his cough,
but did not affect his aches and pains.
Court’s finding: undisputed.36
16
17
18
19
20
21
22
23
24
25
26
27
28
Plaintiff admitted UF No. 30, adding that “[t]he Fluconazole treatment had been proven
effective.” (Id. at 6.) Plaintiff’s statement does not cause a dispute with any part of UF No. 30. Moreover,
Plaintiff’s opinion about the effectiveness of Fluconazole is inadmissible evidence because Plaintiff is a layperson.
Federal Rule of Evidence 701. Therefore, the court finds UF No. 30 to be undisputed.
32
33
Plaintiff admitted UF No. 31. (Id.) The court finds UF No. 31 to be undisputed.
Plaintiff denied UF No. 32 “on information and belief.” (Id.) Plaintiff’s vague denial,
unsupported by any admissible evidence, does not cause a genuine dispute of fact. Therefore, the court finds UF
No. 32 to be undisputed.
34
35
Plaintiff admitted UF No. 33, adding that “Dr. Chokatos failed to consider Plaintiff’s
preexisting risk factor as required by his own guidelines.” (Id.) Plaintiff’s statement does not cause a dispute with
any part of UF No. 33, which states that Dr. Chokatos made the determination that he did. Therefore, the court
finds UF No. 33 to be undisputed.
Plaintiff denied UF No. 34, stating, “This is a misleading and incomplete conclusion.” (Id.)
Plaintiff’s statement does not cause a dispute with the fact that he testified at his deposition as stated in UF No. 34.
Therefore, the court finds UF No. 34 to be undisputed.
36
12
1
2
3
Supporting Evidence, Plaintiff’s Reponse,
and Court’s Finding
35. In his Second Amended Complaint, Cooper Second Am. Compl. ¶ 35.
alleges that Dr. Chokatos acted in “conscious
disregard” of excessive risk to Cooper.
Court’s finding: undisputed.37
Defendant’s Undisputed Material Facts
4
5
6
36. Dr. Chokatos did not knowingly or Chokatos Decl. ¶ 38; Feinberg Decl. ¶¶ 39-40;
intentionally act to cause Cooper to experience Cooper Dep. 36:25-37:11 (Duggan Decl. Ex. I).
any pain, suffering, or injury.
Court’s finding: disputed.38
7
8
9
10
V.
STATUTE OF LIMITATIONS
Defendant argues that Plaintiff’s medical claim is barred by the applicable statute
of limitations.
11
A.
12
“For actions under 42 U.S.C. § 1983, courts apply the forum state’s statute of
13
limitations for personal injury actions, along with the forum state’s law regarding tolling,
14
including equitable tolling, except to the extent any of these laws is inconsistent with federal
15
law.” Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). The statute of limitations for
16
personal injury actions under California law is two years. See Cal. Code Civ. P. § 335.1; see
17
also Jones, 393 F.3d at 927.
Legal Standards
18
California Code of Civil Procedure § 352.1 provides for the tolling of the statute of
19
limitations for a maximum of two additional years for persons incarcerated for a term less than
20
life at the time the claim accrues. It states:
21
22
23
24
If a person entitled to bring an action . . . is, at the time the cause of action
accrued, imprisoned on a criminal charge . . . for a term less than for life, the
time of that disability is not a part of the time limited for the commencement of
the action, not to exceed two years.
Cal. Code Civ. P. § 352.1.
25
26
27
28
37
Plaintiff admitted UF No. 35. (Id.) The court finds UF No. 35 to be undisputed.
Plaintiff denied UF No. 36, stating, “Dr. Chokatos failed to consider Plaintiff’s preexisting
risk factors as required by his own guidelines.” (Id.) UF No. 36 is a legal conclusion about whether Defendant
was deliberately indifferent, which is the disputed subject of this case. Therefore, the court finds UF No. 36 to be
a disputed conclusion of law.
38
13
1
The Ninth Circuit has held that prisoners are also entitled to equitable tolling of the
2
statute of limitations while completing the mandatory exhaustion process. Brown v. Valoff,
3
422 F.3d 926, 942–943 (9th Cir. 2005). The equitable tolling of statutes of limitations is a
4
judicially created, nonstatutory doctrine designed to prevent unjust and technical forfeitures of
5
the right to a trial on the merits when the purpose of the statute of limitations - timely notice to
6
the defendant of the plaintiff’s claims - has been satisfied, McDonald v. Antelope Valley
7
Community College District, 45 Cal.4th 88, 99 (2008) (quotation marks and citations omitted),
8
and pursuit of administrative remedies equitably tolls the statute of limitations so long as there
9
was timely notice, lack of prejudice to the defendant, and reasonable, good faith conduct on the
10
part of the plaintiff. Id. at 101–03.
Defendant’s Motion
11
B.
12
Defendant argues that Plaintiff’s lawsuit is barred by the two-year statute of limitations,
13
because it was more than two years between January 7, 2014, when Dr. Chokatos’s last alleged
14
act or omission took place, and May 25, 2016, when Plaintiff brought his claim in the First
15
Amended Complaint. (UF Nos. 1, 3.) Because Plaintiff is serving a life sentence without
16
parole, (UF No. 31), Defendant asserts that Plaintiff is not eligible for additional tolling of up to
17
two years under Cal. Code Civ. P. § 352.1 for prisoners serving “a term less than for life.”
18
Defendant allows, however, that Plaintiff is eligible for 49 days additional tolling for the time
19
spent exhausting his administrative remedies because Plaintiff’s only written administrative
20
grievance regarding the claims in this case, (UF No. 7-8), was submitted on August 14, 2014,
21
and partially granted 49 days later on October 2, 2014, and Plaintiff did not pursue the
22
grievance further. (UF Nos. 4-6.) Defendant therefore concludes that Plaintiff’s causes of
23
action are barred in this lawsuit.
24
Defendant also argues that under applicable federal law,39 Plaintiff knew of his injury --
25
and his claim accrued -- at least as early as June 2013, because Plaintiff’s Second Amended
26
27
28
“‘[T]he accrual date of a § 1983 cause of action is a question of federal law that is not resolved
by reference to state law.’ Wallace v. Kato, 549 U.S. 3884, 388 (2007) (emphasis in original). ‘Under federal
law, a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action.’
TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999).” (Defendant’s motion, ECF 35-2 at 6.C.)
39
14
1
Complaint states that in June 2013, immediately after receiving his first 1:2 titer score, he
2
“requested that Defendant Chokatos start him on Fluconazole to alleviate the symptoms and
3
prevent further progression of the disease.” (UF Nos. 9, 11.)
4
Further, Defendant argues that to the extent Plaintiff may argue that part of his claim
5
accrued after April 7, 2014 because he did not receive Fluconazole until September 2014, (UF
6
No. 2), the continuing violation doctrine does not preserve his claim because Plaintiff did not
7
see Dr. Chokatos during that time period, (UF Nos. 9-12), and Plaintiff is alleging only
8
continuing impact, which is not actionable.
9
The court finds that Defendant has met his burden of demonstrating that Plaintiff’s
10
medical claim is barred by the applicable statute of limitations. Therefore, the burden now
11
shifts to Plaintiff to produce evidence of a genuine material fact in dispute that would affect the
12
final determination in this case.
13
C.
14
The parties do not dispute that under the applicable statute of limitations, Plaintiff had
15
at least two years after his medical claim had accrued in which to bring his medical claim.
16
Also, the parties agree that Plaintiff brought his medical claim on May 25, 2016, the date he
17
filed the First Amended Complaint under the mailbox rule. (UF Nos. 1, 3.) There is no dispute
18
that the two-year statute of limitations was tolled for an additional 49 days while Plaintiff
19
exhausted his administrative remedies, giving Plaintiff 2 years and 49 days in which to bring
20
his claim. The parties do not dispute any of these facts.
21
Discussion
The parties’ disagreement is about the date that Plaintiff’s medical claim accrued, which
22
is a question of law.
23
“[f]ederal law determines when a federal civil rights claim accrues.” Maldonado v. Harris, 370
24
F.3d 945, 955 (9th Cir. 2004) (internal citation omitted). Under federal law, a § 1983 action
25
accrues, and the statute of limitations begins to run, when the defendant’s alleged wrongful act
26
or omission causes damages. See Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 166
27
L.Ed.2d 973 (2007). In this regard, “a claim accrues when the plaintiff knows or has reason to
28
know of the injury which is the basis of the action.” Maldonado, 370 F.3d at 955.
Although state statutes of limitations and tolling principles apply,
15
1
Defendant argues that Plaintiff’s claim accrued in June 2013, immediately after Plaintiff
2
received his first 1:2 titer score, when he “requested that Defendant Chokatos start him on
3
Fluconazole to alleviate the symptoms and prevent further progression of the disease,” (UMF
4
No. 9), because that was when Plaintiff knew of his injury.
5
In opposition, Plaintiff argues that his claim was preserved by the continuing violation
6
doctrine and did not accrue until October 2, 2014, the date when Plaintiff’s health care appeal
7
was granted and Dr. Chokatos was ordered to provide Plaintiff with Fluconazole.
8
Here, the undersigned finds that the continuing violation doctrine brings Plaintiff’s
9
initiation of this case well within the statute of limitations. In another prisoner civil rights
10
action in which the plaintiff claimed deliberate indifference to his serious medical needs,
11
another Magistrate Judge of this court explained the doctrine as follows:
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
The continuing violation doctrine is an equitable doctrine designed “to prevent a
defendant from using its earlier illegal conduct to avoid liability for later illegal
conduct of the same sort.” O’Loghlin v. County of Orange, 229 F.3d 871, 875
(9th Cir. 2000). To establish a continuing violation, a plaintiff must show “a
series of related acts against a single individual ... that ... ‘are related closely
enough to constitute a continuing violation.’” Green v. Los Angeles County
Superintendent of Schools, 883 F.2d 1472, 148081 (9th Cir. 1989) (quoting
Bruno v. Western Elec. Co., 829 F.2d 957, 961 (10th Cir. 1987)). However, the
mere continuing impact from a past violation is not actionable under the
continuing violation doctrine. Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir.
2001) (citing Grimes v. City and County of San Francisco, 951 F.2d 236, 238–
39 (9th Cir. 1991)).
Although the Ninth Circuit has not applied the continuing violation doctrine to
Eighth Amendment deliberate indifference claims, several other circuits have.
See Heard v. Sheahan, 253 F.3d 316, 318 (7th Cir. 2001) (finding that
continuous violation doctrine applied to defendants’ deliberate indifference for
the span of time that prison officials were aware of plaintiff’s injury and
allegedly refused to treat it); Lavellee v. Listi, 611 F.2d 1129, 1132 (5th Cir.
1980) (“[T]he [arrestee’s] allegation of a failure to provide needed and requested
medical attention constitutes a continuing tort, which does not accrue until the
date medical attention is provided.”); Neel v. Rehberg, 577 F.2d 262, 263–64
(5th Cir. 1978) (per curiam) (finding that where inmate alleged that jail officials
failed to provide medical treatment over a three-month period, the continuous
violation doctrine applied and the statute of limitations did not begin to run until
the end of that period); see also Evans v. County of San Diego, No. 06 CV 0877
JM (RBB), 2008 WL 842459, at *12 (S.D.Cal. Mar. 27, 2008) (applying
continuing violation doctrine to prisoner’s Eighth Amendment medical
treatment claim).
27
Gipbsin v. Kernan, No. 2:12-CV-0556 GEB DAD, 2015 WL 3993073, at *3 (E.D.Cal. June 30,
28
2015), report and recommendation adopted, No. 2:12-CV-0556 GEB DAD, 2015 WL 4602774
16
1
(E.D.Cal. July 28, 2015) (quoting Martin v. Woodford, No. 1:08–cv–0415 LJO SKO PC, 2010
2
WL 2773235 at *4–*5 (E.D.Cal. July 13, 2010), adopted by 2010 WL 3853305 (E.D.Cal.
3
Sept.29, 2010), aff’d, Case No. 11015830, 2013 WL 29792 (9th Cir. Jan. 3, 2013).
4
The Court in Gipbsin continued,
5
6
7
8
9
10
11
12
13
14
15
District courts in the Ninth Circuit have consistently recognized the continuing
violation doctrine in prisoner civil rights cases. See, e.g., Watson v. Sisto, No.
2:07–cv–01871 LKK KJN P, 2011 WL 533716 at *5 (E.D.Cal. Feb. 14, 2011)
(applying continuing violation doctrine to plaintiff’s claim that the prison health
system, as administered by doctors and staff, consistently failed to provide
adequate medical care for plaintiff’s back condition); Evans v. County of San
Diego, No. 06 CV 0877 JM (RBB), 2008 WL 842459 at *12 (S.D.Cal. Mar.27,
2008) (applying the continuing violation doctrine to plaintiff’s deliberate
indifference claim because the claim was not based on the original knee injury
but rather on defendants’ ongoing failure to treat the injury); see also, e.g.,
MacGregor v. Dial, No. 2:13–cv–1883 JAM AC P, 2015 WL 1405492 at *9
(E.D.Cal. Mar. 25, 2015) (finding that the continuing violation doctrine did not
apply because the plaintiff’s allegations were based on discrete acts of deliberate
indifference); Navarro v. Herndon, No. 2:09–cv–1878 KJM KJN P, 2011 WL
3741351 at *8 (E.D.Cal. Aug. 24, 2011) (finding that continuing violation
doctrine did not apply because each mental health diagnosis and placement was
discrete with its own consequences), adopted in part and rejected in part on other
grounds by 2011 WL 4578534 (E.D.Cal. Sept. 30, 2011).
Gipbsin, 2015 WL 3993073, at *3.
16
In this case, Plaintiff's claim is based on defendant Chokatos’s alleged failure to treat
17
Plaintiff’s Valley Fever symptoms with the medication Fluconazole for more than a year
18
despite multiple complaints from Plaintiff. “A violation is called ‘continuing,’ signifying that a
19
plaintiff can reach back to its beginning even if that beginning lies outside the statutory
20
limitations period, when it would be unreasonable to require or even permit him to sue
21
separately over every incident of the defendant’s unlawful conduct.” Heard, 253 F.3d at 319;
22
accord Cleveland v. Los Angeles County Sheriff’s Department, No. 215CV01399DSFGJS,
23
2017 WL 1364227, at *10-11 (C.D.Cal. Feb. 7, 2017), report and recommendation adopted sub
24
nom. Cleveland v. Los Angeles Cty. Sheriff's Dep’t, No. 215CV01399DSFGJS, 2017 WL
25
1386003 (C.D.Cal. Apr. 11, 2017). “Not only would it be unreasonable to require [Plaintiff], as
26
a condition of preserving his right to have a full two years to sue in respect of the last day on
27
which his request was ignored, to bring separate suits two years after each of the earlier days of
28
deliberate indifference, but it would impose an unreasonable burden on the courts to entertain
17
1
an indefinite number of suits and apportion damages among them.” Heard, 253 F.3d at 319-20;
2
accord Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013).
3
In this regard, application of the continuing violation doctrine is appropriate because
4
Plaintiff complains of a continual unlawful act. Gipbsin, 2015 WL 3993073, at *4. Under the
5
continuing violation doctrine, the statute of limitations for Plaintiff’s filing of the present action
6
did not begin to run until Plaintiff was prescribed Fluocazole by nurse practitioner Ogbuehi in
7
September 2014. See Heard, 253 F.3d at 319 (cause of action accrues on the last day officials
8
refused to treat inmate’s medical condition or on the date he left the jail). Plaintiff commenced
9
this cause of action on May 25, 2016, less than two years later and therefore, the case falls
10
within the applicable two-year statute of limitations with tolling of 49 days while Plaintiff
11
exhausted his administrative remedies, and is timely.40
12
Accordingly, for all of the foregoing reasons, Defendant’s motion for summary
13
judgment based on the statute of limitations should be denied.
14
VI.
EIGHTH AMENDMENT MEDICAL CLAIM
15
A.
16
While the Eighth Amendment of the United States Constitution entitles Plaintiff to
17
medical care, the Eighth Amendment is violated only when a prison official acts with deliberate
18
indifference to an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th
19
Cir. 2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th
20
Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d
21
1091, 1096 (9th Cir. 2006). The two-part test for deliberate indifference requires the plaintiff
22
to show (1) “‘a serious medical need’ by demonstrating that ‘failure to treat a prisoner=s
23
condition could result in further significant injury or the unnecessary and wanton infliction of
24
pain,’” and (2) “the defendant=s response to the need was deliberately indifferent.” Jett, 439
25
F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on
Legal Standards
26
27
28
40
Even using the date Plaintiff filed the First Amended Complaint with the court, June 9, 2016,
the case still falls within the applicable statute of limitations.
18
1
other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc)
2
(internal quotations omitted)).
3
Deliberate indifference is shown by “(a) a purposeful act or failure to respond to a
4
prisoner’s pain or possible medical need, and (b) harm caused by the indifference.” Wilhelm,
5
680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective
6
recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d at 985
7
(citation and quotation marks omitted); Wilhelm, 680 F.3d at 1122. Deliberate indifference
8
may be manifested “when prison officials deny, delay or intentionally interfere with medical
9
treatment, or it may be shown by the way in which prison physicians provide medical care.”
10
Id. Where a prisoner is alleging a delay in receiving medical treatment, the delay must have led
11
to further harm in order for the prisoner to make a claim of deliberate indifference to serious
12
medical needs. McGuckin, 974 F.2d at 1060, overruled on other grounds by WMX Techs., Inc.
13
v. Miller, 104 F.3d 1133 (9th Cir. 1997) (citing Shapely v. Nevada Bd. of State Prison
14
Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)).
15
“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051,
16
1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the
17
facts from which the inference could be drawn that a substantial risk of serious harm exists,’
18
but that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511
19
U.S. 825, 837 (1994). “‘If a prison official should have been aware of the risk, but was not,
20
then the official has not violated the Eighth Amendment, no matter how severe the risk.’” Id.
21
(quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A
22
showing of medical malpractice or negligence is insufficient to establish a constitutional
23
deprivation under the Eighth Amendment.”
24
insufficient to establish a constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d
25
1332, 1334 (9th Cir. 1990)).
Id. at 1060.
“[E]ven gross negligence is
26
“A difference of opinion between a prisoner-patient and prison medical authorities
27
regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337,
28
1344 (9th Cir. 1981) (internal citation omitted). To prevail, a plaintiff “must show that the
19
1
course of treatment the doctors chose was medically unacceptable under the circumstances . . .
2
and . . . that they chose this course in conscious disregard of an excessive risk to plaintiff’s
3
health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted).
Parties’ Arguments
4
B.
5
Defendant argues that Plaintiff’s complaint rests solely on a mere difference of opinion
6
between a prisoner-patient and prison medical provider, and the medical course of treatment for
7
Plaintiff was medically acceptable. Defendant declares, and offers as evidence Plaintiff’s
8
medical records, Dr. Feinstein’s declaration, and Dr. Kauffman’s article, that in April 2013,
9
Plaintiff requested a coccidioidomycoses test, and the results showed a titer of 1:2, which
10
indicated that Plaintiff was exposed to the coccidioides fungus and had an immune response,
11
but does not indicate active disease, UF Nos. 17, 22 (Chokatos Decl. ¶¶15, 16, 19, 24, 37;
12
Kauffman at 3, 8; Cooper medical records (Duggan Decl. Ex. K at 7-10); Feinberg Decl. ¶¶ 10,
13
11, 13.) Defendant provides evidence that in the following months he monitored Plaintiff’s
14
condition, repeated the test again in November 2013, which again showed a titer of 1:2, and
15
considered the condition was successfully treated. UF No. 24 (Chokatos Decl. ¶ 27; Cooper
16
medical records (Duggan Decl. Ex. K at 15-16); Feinberg Decl. ¶¶ 15, 18.) Because Plaintiff is
17
not a doctor and has no medical training, UF No. 19 (Cooper Dep. 20:18-24, 36:6-15 (Duggan
18
Decl. Ex. I)), Defendant concludes that Plaintiff’s disagreement with his assessment is not
19
credible evidence.
20
Defendant also argues that he did not consciously disregard a risk to Plaintiff’s health.
21
Defendant declares, and offers Dr. Feinberg’s declaration and Plaintiff’s deposition testimony41
22
to show, that he did not act with any such conscious disregard and his goal was to provide
23
Plaintiff with the proper medical care. UM No. 36 (Chokatos Decl. ¶ 38; Feinberg Decl. ¶¶ 39-
24
40; Cooper Dep. 36:25-37:11 (Duggan Decl. Ex. I). Defendant offers his and Dr. Feinberg’s
25
///
26
27
41
28
“Q.· How can you know what was in Dr. Chokatos’·mind?
A.· I can't.”
(Cooper Depo. 36:25-37:11, ECF No. 35-7 at 22:10-11.)
20
1
opinions that Fluconazole simply was not medically indicated for Plaintiff, and accordingly
2
Defendant did not prescribe it. UF No. 33 (Chokatos Decl. ¶ 37; Feinberg Decl. ¶ 39).
3
Based on Defendant’s arguments and evidence in support of his motion for summary
4
judgment, the court finds that Defendant has met his burden of demonstrating that his course of
5
medical treatment was medically acceptable and he did not act with deliberate indifference to
6
Plaintiff’s serious medical need. Therefore, the burden now shifts to Plaintiff to produce
7
evidence of a genuine material fact in dispute that would affect the final determination in this
8
case.
9
In opposition, Plaintiff argues that he had a serious medical need because he was
10
diagnosed with Valley Fever and Defendant refused to prescribe him the only medication
11
proven to be effective in treating Valley Fever, Fluconazole, which caused his symptoms to
12
worsen.
13
diagnosed with Valley Fever. (Second Amended Complaint (SAC), ECF No. 19 at 3 ¶10, 7 ¶
14
23; Feinberg Decl., ECF No. 35-8 ¶ 11.) Plaintiff alleges that he immediately requested that
15
Dr. Chokatos start him on Fluconazole but Dr. Chokatos refused. (SAC at 7 ¶ 24.) Plaintiff
16
states that Dr. Chokatos was the primary care physician on a yard with scores of Valley Fever
17
patients and knew that the only medications shown to be effective in treating Valley Fever were
18
certain triazole compounds, including Fluconazole. (SAC at 19 ¶ 22.) Plaintiff argues that Dr.
19
Chokatos refused to consider that because Plaintiff had asthma he was at a heightened risk of
20
developing a more serious case of Valley Fever. (Plaintiff’s responses to UF Nos. 23, 25, and
21
33, ECF No. 48 at 5, 6.) Plaintiff argues that Dr. Chokatos’s own evidence, the article by Carol
22
A. Kaufmann, M.D., shows that he should have treated Plaintiff with Fluconazole because he
23
had a pre-existing cardiopulmonary condition. (Chokatos Decl., ECF No. 35-4 ¶ 18 (Exh. B) at
24
18.)
In his Second Amended Complaint, Plaintiff states that in June 2013, he was
25
In reply, Defendant declares that asthma is not a risk factor for the development of
26
severe coccidioidomycosis, and that Plaintiff’s mild asthma was not a pre-existing
27
cardiopulmonary condition which placed Plaintiff at increased risk of developing severe
28
disease. (Chokatos 2d Decl., ECF No. 49-1 at 3 ¶¶3, 4.)
21
1
C.
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Plaintiff’s disagreement with Defendant only presents a difference of opinion between a
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non-physician inmate and his treating physician, which is insufficient to defeat summary
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judgment here.42
Analysis
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Here, Plaintiff does not dispute that his claim is based upon symptoms including cough,
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body aches, joint pain, lethargy, emotional distress, and depression. (SAC, Doc. 19 at 4 ¶ 11.)
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Plaintiff’s reported symptoms are sufficient to show that he had a serious medical need.
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However, Plaintiff has not met his burden to present evidence of a genuine material fact in
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dispute that would affect the final determination in this case.
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It is undisputed that Defendant saw Plaintiff and reviewed his medical records in
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response to his complaints of pain and lethargy, including reviewing the results of a blood test
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showing that Plaintiff had been exposed to Valley Fever. (UF Nos. 21, 22.)
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Chokatos’s medical training and evaluation, Dr. Chokatos refused to prescribe Fluconazole for
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Plaintiff and instead monitored his condition and ordered follow-up blood tests. (UF Nos. 22-
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25.)
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complaints of pain, lethargy, and mental distress. There is no evidence that Dr. Chokatos drew
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the inference that Plaintiff faced an excessive risk to his health without taking Fluconazole and
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acted unreasonably.
Based on Dr.
This course of treatment does not show any deliberate indifference to Plaintiff’s
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Plaintiff argues that Defendant should have taken into consideration that Plaintiff’s
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asthma was a preexisting cardiopulmonary condition that placed him at heightened risk of
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Plaintiff’s opinions differing from Dr. Chokatos’s medical opinions are not admissible
evidence. Federal Rule of Evidence 701. Plaintiff’s statements expressing opinions regarding the adequacy of
treatment rendered by Dr. Chokatos shall not be considered by the court. Unlike in Fraser v. Goodale, 342 F.3d
1032, 1036 (9th Cir. 2003), Plaintiff’s opinions are not evidence that may be admissible in another form at trial,
such as excerpts from a diary even if the diary itself is inadmissible. Fraser at 1036 (At the summary judgment
stage, the court can consider evidence if its contents could be presented in an admissible form at trial); Aholelei v.
Haw. Dep’t of Pub. Safety, 220 Fed.Appx. 670, 672 (9th Cir. 2007) (district court abused its discretion in not
considering plaintiff’s evidence at summary judgment “which consisted primarily of litigation and administrative
documents involving another prison and letters from other prisoners” and could be made admissible at trial). Here,
Plaintiff’s opinions regarding the adequacy of medical treatment rendered by Dr. Chokatos do not satisfy the
standards of personal knowledge, admissibility, and competence required by Federal Rule of Civil Procedure
56(c)(4), nor are they admissible under Federal Rule of Evidence, section 701.
42
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developing a severe form of Valley Fever, and should have concluded that Plaintiff should be
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prescribed Fluconazole before his infection disseminated. Plaintiff has presented no admissible
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evidence of any change in his condition attributed to the medication Fluconazole or lack
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thereof, or any evidence that Dr. Chokatos’s evaluation of Plaintiff fell below the medical
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standard of care so significantly that it could constitute deliberate indifference under the Eighth
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Amendment. Rather, Plaintiff’s arguments rely entirely on his non-medical opinion. Plaintiff
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is not competent to provide medical opinion evidence sufficient to create any triable issue of
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fact in this case. See Fed. R. Civ. P. 56(c)(4) (affidavit or declaration used to oppose a motion
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must be made on personal knowledge, set out facts that would be admissible in evidence, and
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show that the affiant or declarant is competent to testify on the matters stated). Plaintiff agrees
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in his deposition that he is not a doctor, has no medical training, and has no medical education.
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(see Cooper Depo., ECF No. 35-7 at 12:18-24.)
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Therefore, the court finds that Plaintiff has not shown a triable issue of fact for trial.
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Accordingly, summary judgment should be granted in favor of Defendant in this case, and the
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court recommends granting Defendant’s motion for summary judgment.
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VII.
RECOMMENDATIONS
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Based on the foregoing, it is HEREBY RECOMMENDED that:
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1.
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Defendant’s motion for summary judgment, filed on May 18, 2018, be
GRANTED;
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2.
Judgment be entered in favor of Defendant; and
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3.
The Clerk be directed to close this case.
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These Findings and Recommendations will be submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within
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fourteen (14) days after being served with these Findings and Recommendations, the parties
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may file written objections with the court. The document should be captioned “Objections to
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Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be
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served and filed within ten (10) days after the date the objections are filed. The parties are
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advised that failure to file objections within the specified time may result in the waiver of rights
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on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v.
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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
February 8, 2019
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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