McRae v. Dikran et al
Filing
105
FINDINGS and RECOMMENDATIONS Recommending that Defendant Betz's Motion for Summary Judgment be Granted as to Bivens Claims, and that the Court Decline to Exercise Supplemental Jurisdiction Over State Law Claims re 81 , signed by Magistrate Judge Gary S. Austin on 5/1/21. Referred to Judge UnassignedDJ. Objections to F&R Due Within Fourteen Days. (Gonzalez, R)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
MICHAEL SCOTT McRAE,
12
Plaintiff,
13
14
v.
BAIRAMIAN DIKRAN, et al.,
15
Defendants.
16
17
1:16-01066-NONE-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT DEFENDANT
BETZ’S MOTION FOR SUMMARY
JUDGMENT BE GRANTED AS TO
BIVENS CLAIMS, AND THAT THE
COURT DECLINE TO EXERCISE
SUPPLEMENTAL JURISDICTION OVER
STATE LAW CLAIMS
(ECF No. 81.)
OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN DAYS
18
19
20
21
I.
BACKGROUND
22
Michael Scott McRae (“Plaintiff”) is a former federal prisoner proceeding pro se and in
23
forma pauperis with this civil rights action pursuant to Bivens vs. Six Unknown Agents, 403
24
U.S. 388 (1971). This case now proceeds with Plaintiff’s Second Amended Complaint filed on
25
March 9, 2018, against defendants Dr. Dikran Bairamian,1 Dr. Kevin Cuong Nguyen, and Dr.
26
27
28
1
In his original Complaint, Plaintiff referred to this defendant as Dr. Bairamian, Dikran,
M.D. (ECF No. 1.) The court entered the defendant’s name as Bairamian Dikran. (Court docket.) In his
Answer to the complaint defense counsel clarifies that this defendant’s name is Dikran Bairamian. (ECF
No. 32.)
1
1
David Betz (Anesthesiologist), alleging a Bivens claim for inadequate medical care under the
2
Eighth Amendment, and state law claims for medical malpractice and medical battery. (ECF No.
3
14.)
4
On October 27, 2020, defendant Dr. Betz (“Defendant”) filed a motion for summary
5
judgment, or in the alternative for summary adjudication of claims. (ECF No. 81.) On December
6
4, 2020, Plaintiff filed an opposition to the motion.2 (ECF No. 88.) On December 10, 2020,
7
Defendant filed a reply to the opposition. (ECF No. 89.) Pursuant to Local Rule 230(l), this
8
motion is now before the court.
9
For the reasons set forth below the court recommends that the court grant summary
10
judgment in Defendant’s favor on Plaintiff’s Bivens claim, and that the court decline to exercise
11
supplemental jurisdiction over Plaintiff’s state law claims against Defendant.
12
II.
SUMMARY JUDGMENT STANDARD
13
Any party may move for summary judgment, and the court shall grant summary judgment
14
if the movant shows that there is no genuine dispute as to any material fact and the movant is
15
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted);
16
Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position,
17
whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular
18
parts of materials in the record, including but not limited to depositions, documents, declarations,
19
or discovery; or (2) showing that the materials cited do not establish the presence or absence of
20
a genuine dispute or that the opposing party cannot produce admissible evidence to support the
21
fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The court may consider other materials
22
in the record not cited to by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3);
23
24
25
26
27
28
2
Defendant failed to serve Plaintiff with the requisite notice of the requirements for
opposing the motion for summary judgment. Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir. 2012);
Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998). However, on January 11, 2021, the court
provided Plaintiff with a Rand Notice and Warning and allowed him an opportunity to withdraw his
previously-filed opposition to Defendant’s pending motion for summary judgment and file an amended
opposition to the pending motion for summary judgment, within thirty days. (ECF No. 91.) The thirtyday time period expired and Plaintiff did not withdraw his opposition or file a new opposition. Thus,
Plaintiff is proceeding with his opposition filed on December 4, 2020. (ECF No. 88.)
2
1
Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord
2
Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).
3
Defendant does not bear the burden of proof at trial and in moving for summary judgment,
4
he only needs to prove an absence of evidence to support Plaintiff’s case. In re Oracle Corp. Sec.
5
Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
6
S.Ct. 2548 (1986)). If Defendant meets his initial burden, the burden then shifts to Plaintiff “to
7
designate specific facts demonstrating the existence of genuine issues for trial.” In re Oracle
8
Corp., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 323). This requires Plaintiff to “show
9
more than the mere existence of a scintilla of evidence.” Id. (citing Anderson v. Liberty Lobby,
10
Inc., 477 U.S. 242, 252, 106 S.Ct. 2505 (1986)).
11
In judging the evidence at the summary judgment stage, the court may not make
12
credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509
13
F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all
14
inferences in the light most favorable to the nonmoving party and determine whether a genuine
15
issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v.
16
City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted).
17
The court determines only whether there is a genuine issue for trial. Thomas v. Ponder, 611 F.3d
18
1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted).
19
In arriving at these findings and recommendations, the court carefully reviewed and
20
considered all arguments, points and authorities, declarations, exhibits, statements of undisputed
21
facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of
22
reference to an argument, document, paper, or objection is not to be construed to the effect that
23
this court did not consider the argument, document, paper, or objection. This court thoroughly
24
reviewed and considered the evidence it deemed admissible, material, and appropriate.
25
///
26
///
27
///
28
///
3
1
III.
PLAINTIFF’S ALLEGATIONS -- SECOND AMENDED COMPLAINT3
2
The events at issue in the Second Amended Complaint allegedly occurred when Plaintiff
3
was incarcerated at the United States Penitentiary (USP)-Atwater in Atwater, California, in the
4
custody of the Federal Bureau of Prisons (BOP).
Plaintiff’s allegations follow:
5
6
Plaintiff fell on the wet kitchen floor at USP-Atwater and was taken to the infirmary for
7
an examination by Dr. Peikar [not a defendant], Plaintiff’s doctor. For several months afterward
8
Plaintiff submitted medical request forms to obtain additional medical care. Dr. Peikar knew the
9
extent of Plaintiff’s pain and medical condition. Dr. Peikar also knew that the delay in treatment
10
was largely ineffective, but declined to do anything more to attempt to improve Plaintiff’s
11
medical situation.
12
Defendant Dr. Bairamian, a private doctor contracted with the BOP, arrived at USP-
13
Atwater to assess Plaintiff’s lower back for surgery. After an examination and x-rays, Dr.
14
Bairamian informed Plaintiff that surgery was necessary. Plaintiff asked both doctors Peikar and
15
Bairamian if there was an alternative to surgery and was told that if surgery was not performed
16
Plaintiff would become paralyzed or die. Plaintiff elected to have the lower back surgery.
17
On July 22, 2014, Plaintiff was escorted to the Medical Center in Modesto, California,
18
for treatment and surgery on his lower back by defendants Dr. Bairamian, Dr. Nguyen, and Dr.
19
Betz. Without Plaintiff’s knowledge or consent, Plaintiff was given the wrong surgery to his
20
upper back which left Plaintiff unable to walk correctly with long-term injury to his back.
21
Plaintiff requests monetary relief and costs of suit.
22
///
23
///
24
///
25
26
27
28
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.
3
4
1
///
2
IV.
DEFENDANT BETZ’S UNDISPUTED FACTS
3
Defendant Betz filed a motion for summary judgment or in the alternative, for an order
4
adjudicating nine issues. (ECF No. 81.) In support of his motion, Defendant Betz has filed the
5
following Statement of Undisputed Facts, with references to supporting evidence for each of the
6
nine issues listed below.
7
A.
8
Issue 1: Plaintiff’s Bivens claim for inadequate medical care under the Eighth
9
Bivens Claim for Deliberate Indifference Under the Eighth Amendment
Amendment fails as a matter of law because Dr. Betz is not a federal officer or employee.
10
11
12
13
14
15
16
17
18
19
20
21
UNDISPUTED FACT
1. Plaintiff Michael McRae alleges a Bivens
claim for deliberate indifference under the
Eighth Amendment based on allegations that
defendants operated on his back without his
consent.
2. Plaintiff's operative Second Amended
Complaint alleges that defendants Dr.
Bairamian, Dr. Nguyen, and Dr. Betz were
“private
physicians,
surgeons,
and
anesthesiologists” who worked at Sutter
Health Memorial Medical Center and
performed his back surgery on July 22, 2014,
following a fall on the kitchen floor.
3. Dr. Betz is a private physician, not a federal
officer or employed by the federal
government.
4. Plaintiff’s Bivens claim is based on the
same allegations as his medical negligence
and medical battery claims.
SUPPORTING EVIDENCE
1. ECF No. 14, pg. 4-5 of 28; ECF No. 26, pg.
2-3.
2. ECF No. 14, pg. 4 of 28.
3. Dr. Betz Decl. ¶ 3; ECF No. 14, pg. 4 of 28.
4. ECF No. 14, pg. 4-5 of 28.
22
23
24
Issue 2: Plaintiff’s claim for inadequate medical care under the Eighth Amendment fails
as a matter of law because Dr. Betz is not a state actor.
25
26
27
UNDISPUTED FACT
SUPPORTING EVIDENCE
5. Defendants incorporate by reference 5. Evidence in support of Undisputed Facts
undisputed material facts and supporting No. 38-40, below.
evidence in Fact Nos. 38-40, below.
28
5
1
2
3
4
5
6. Dr. Betz works for Gould Medical Group, 6. Dr. Betz Decl. ¶ 3; ECF No. 14, pg. 4 of 28.
which is a private company. He is not a federal
employee, agent, or contractor.
Issue 3: Plaintiff has no claim for inadequate medical care under the Eighth Amendment
as a matter of law because there is no evidence of a ‘serious’ medical need that Dr. Betz failed
to treat and that resulted in the unnecessary and wanton infliction of pain.
6
7
8
9
10
11
UNDISPUTED FACT
7. Defendants incorporate by reference
undisputed material facts and supporting
evidence in Fact Nos. 15-29, below.
8. Plaintiff suffered no anesthetic
complications following his July 24, 2014
surgery.
9. The administration of anesthesia on July 23,
2014 did not cause Plaintiff’s alleged injuries.
SUPPORTING EVIDENCE
7. Evidence in support of Undisputed Facts
No. 15-29, below.
8. Dr. Betz Decl. ¶ 7; Dr. Bickler Decl. ¶ 21,
23.
9. Dr. Bickler Decl. ¶¶ 23-25; ECF No. 14, pg.
4-5 of 28.
12
13
14
Issue 4: Plaintiff has no claim for inadequate medical care under the Eighth Amendment
as a matter of law because Dr. Betz did not act with deliberate indifference.
15
16
17
18
19
20
21
22
23
24
UNDISPUTED FACT
10. Defendants incorporate by reference
undisputed material facts and supporting
evidence in Fact Nos. 25-29, 31-33, below.
11. Dr. Betz did not purposefully fail to
respond to Plaintiff's serious medical need.
12. Dr. Betz was not Plaintiff’s surgeon, and
had no role in determining the appropriate
surgical treatment or obtaining consent for his
surgery.
13. Plaintiff suffered no injury as a result of
the anesthesia administration.
14. Dr. Betz believed that plaintiff understood
and consented to the anesthetic plan, and he
would not have provided anesthesia services
to plaintiff had he believed plaintiff did not
consent or could not physically handle it.
SUPPORTING EVIDENCE
10. Evidence in support of Undisputed Facts
No. 25-29, 31-33, below.
11. Dr. Betz Decl. ¶ 4-8
12. Dr. Bickler Decl. ¶¶ 15-16, 20; Dr. Betz
Decl. ¶ 8; Exh. C, pgs. 8, 11-14, , 367-369,
389-396; 416
13. Dr. Bickler Decl. ¶ 21, 24; ECF. No. 14,
pgs. 4-5 of 28.
14. Dr. Betz Decl. ¶¶ 5, 6
25
26
27
28
6
1
2
3
Issue 5: Plaintiff has no claim for medical negligence as Dr. Betz complied with the
appropriate standard of care.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
UNDISPUTED FACT
SUPPORTING EVIDENCE
15. On 9/12/13, plaintiff had an initial 15. Dr. Bickler Decl. ¶ 8; Exh. B, pgs. 34-35.
neurosurgical consultation with defendant
Dikran Bairamian, M.D., at the request of Dr.
Franco of the Bureau of Prisons Health
Services. The patient was noted to be a 51year-old right-handed gentleman with lower
thoracic pain starting in January 2013. There
was no injury. His pain was on the lower
thoracic left side and it radiated around his
chest wall toward the xiphoid. He also had
weakness in his legs. He did not have
radicular pain. There was no bowel or bladder
dysfunction. Examination of the low back was
nontender. He did have left lumbar paraspinal
tenderness in the lower thoracic area. Hip
rotation was negative. Straight leg raise was
unlimited. He had decreased sensation to light
touch and pin prick in the lower thoracic area
like a band about 2 inches wide and extending
laterally toward the chest wall and ending near
the xiphoid. Lumbar MRI showed
degenerative changes but no cauda equina or
root compression. Dr. Bairamian’s impression
was lower thoracic left-sided pain with
thoracic radiculopathy and lower extremity
weakness. The patient’s pathology needed
further evaluation with a thoracic spine MRI
16. On 4/16/14, plaintiff underwent an MRI of 16. Dr. Bickler Decl. ¶ 9; Exh. B, pgs. 41-42.
the thoracic spine. While there were no acute
findings seen, at T2-3 there was considerable
hypertrophy of the ligamentum flava right
greater than left. This was causing posterior
lateral compression of the thoracic cord
particularly on the right and circumferential
stenosis. There was associated focal
myelomalacia within the thoracic cord.
24
25
26
27
28
7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
17. On 4/24/14, plaintiff returned to see Dr. 17. Dr. Bickler ¶ 10; Exh. B, pgs. 32-33.
Bairamian for follow-up. He had lower
thoracic pain on the left side that radiated
around the chest wall toward the xiphoid. He
had weakness in his legs and occasional
spasms. He did not have radicular pain. The
patient reported that when he had to have a
bowel movement or to urinate, he had to push
harder. Dr. Bairamian noted how plaintiff's
thoracic MRI showed cord compression at
T2- 3 which was more on the right side and
posterior secondary to ligamentum flavum
hypertrophy. Dr. Bairamian did not see cord
compression elsewhere. His impression was
thoracic myelopathy secondary to T2-3 cord
compression with cord signal most probably
secondary to edema. Dr. Bairamian told the
patient surgery was indicated to relieve the
pressure off of the cord. He told him the
surgery would not guarantee reversal of
symptoms however hopefully surgery would
prevent progression of symptoms. Risks and
benefits were discussed in detail including but
not limited to infection, bleeding, damage to
the cord, leakage of cerebrospinal fluid in
addition to anesthesia related complications
including but not limited to cardiopulmonary
complications,
DVT,
PE,
malignant
hyperthermia and even death. Dr. Bairamian
also told him on rare occasions the signal seen
in the cord that is presumed to be edema could
be secondary to a tumor that has not declared
itself. The patient wanted to think about it
before making a final decision.
18. Plaintiff's medical records from Dr. 18. Dr. Bickler Decl. ¶ 11; Exh. B, pgs. 25Bairamian’s
office
show
numerous 27.
communications between Dr. Bairamian’s
office and USP Atwater between 7/8/14 and
7/22/14 during which time Crystal from USP
Atwater informed Dr. Bairamian that the
patient wanted to proceed with surgery but
there was no transportation available to bring
him from the prison to the hospital. When the
prison suggested they consider surgery in
September, Dr. Bairamian informed them that
such a delay was not acceptable, that the
patient needed to have surgery right away, and
that he did not want the patient's condition to
deteriorate. It was suggested that the prison
bring plaintiff to Memorial Medical Center’s
emergency department. On 7/22/14, Crystal
from USP Atwater informed Dr. Bairamian’s
office that the prison would be bringing
plaintiff to the Memorial Medical Center
emergency department that day.
8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
19. On 7/22/14, plaintiff was evaluated in the
emergency department of Memorial Medical
Center by Dr. Kevin Nguyen who noted the
patient was presenting from jail for
consultation/surgery with Dr. Bairamian.
Patient was described to have had a history of
back injury, requiring surgery. Dr. Nguyen
noted that the patient had undergone an MRI
that showed compression fracture of T2-3. He
was to undergo surgery either that day or the
next with Dr. Bairamian.
20. That same day, 7/22/14, Dr. Bairamian
reevaluated the patient at the request of Dr.
Nguyen. Dr. Bairamian noted how the patient
was last seen in his office on 4/24/14 at which
time imaging studies revealed a T2 – T3 cord
compression with right leg weakness. Dr.
Bairamian had recommended surgery
however the patient wanted to think about it
and had eventually made up his mind. The
patient denied pain however he did complain
of stiffness and tightness in his legs and
weakness mainly in the right leg in addition to
chest wall tightness in the lower aspect of the
chest wall. Symptoms had been going on for
about a year or so. He also had bowel and
bladder urgency. Dr. Bairamian explained the
planned procedure to the patient and the
indications for surgery. The patient consented
to the procedure, which was a decompressive
laminectomy at T2-T3.
21. On 7/22/14, plaintiff signed a document
called Authorization for and Consent to
Surgery/Anesthesia and Special Diagnostic or
Therapeutic Procedures at 1917 (7:17 pm).
This consent form signed by plaintiff
described the planned surgical procedure as
“thoracic laminectomy”. Paragraph 7 of the
form states, “Your signature to this form
indicates that: You have read, understand and
had the opportunity to ask your physician
questions about this form and the procedure(s)
listed on this form; measures that will be taken
to prevent adverse events in procedure include
but will not be limited to patient
identification, procedure infection prevention
and procedure site marking; you desire no
further information and authorize and consent
to the performance of the procedure(s).” Mr.
McRae’s signing of the document was
witnessed by Seanna Magana, RN.
19. Dr. Bickler Decl. ¶ 12; Exh. C, pgs. 3-7.
20. Dr. Bickler ¶ 13; Exh. C, pg. 9; Dr.
Bairamian Decl. ¶ 4.
21. Dr. Bickler Decl. ¶ 14; Exh. C, pgs. 8, 367369.
27
28
9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
22. The following day, on 7/23/14 at 11:02
am, Dr. David Betz saw plaintiff for his
preprocedure evaluation. He started by taking
a history from the patient, noting that he had
had nothing by mouth for more than six hours
(solids and liquids), he had no history of
previous anesthetics, he did not have a history
of anesthetic complications, and he did not
have a family history of anesthetic
complications. He had a past medical history
significant for GERD and cardiomegaly.
When Dr. Betz examined the patient's airway,
he noted that plaintiff was Mallampati Class
II (soft palate, major part of uvula, fauces
visible) and had a thyromental distance (a
measurement from the prominence of the
thyroid cartilage to the menton with the neck
in full extension) greater than 6 cm. The
patient had full range of motion in the neck
and his interocclusal opening was normal.
These airway findings were all indications
that intubation of the patient should not be
difficult. He concluded that the patient was
ASA
II
(American
Society
of
Anesthesiologists Class II, which means the
patient has mild systemic disease without
substantive functional limitations). His plan
was to administer general anesthesia to the
patient. He then proceeded to have a consent
discussion with the patient describing his
anesthetic plans, risks, benefits and
alternatives. Dr. Betz documented the
patient's agreement with the anesthetic plan.
23. Plaintiff was then brought to the operating
room at 11:07 am, and surgery proceeded as
planned for plaintiff's preoperative diagnosis
of thoracic stenosis and cord compression at
T2-T3 with thoracic myelopathy. Dr. Betz
commenced general endotracheal anesthesia
at 11:11 am, and a standard endotracheal tube
was placed orally at 11:23 am. Dr. Bairamian
proceeded to perform a lower 3/4 of T2, upper
one-third of T3
laminectomy and
decompression of the cord surgery. The
surgery concluded at 2:51 pm. And anesthesia
completed at 3:22 pm. There were no surgical
or anesthetic complications.
24. Plaintiff was discharged back to the
correctional facility on 7/28/14 with
instructions to receive outpatient physical
therapy for his lower extremity weakness two
to three times a week and to have a front wheel
walker. He was also told to return for
neurosurgical follow up in three weeks.
22. Dr. Bickler Decl. ¶ 15; Exh. C, pgs. 394395.
23. Dr. Bickler Decl. ¶ 16; Exh. C, pgs. 1214, 389-396, 416.
24. Dr. Bickler Decl. ¶ 17; Exh. C, pgs. 1-2;
Exh. B, pg. 10.
28
10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
25. All of the anesthesia care and treatment
rendered by David Betz, M.D. met the
standard of care in this case.
26. Dr. Betz was the plaintiff’s
anesthesiologist during the surgery at issue in
this case. He was not the plaintiff’s surgeon.
As such, he played no role and had no duty of
care with respect to the diagnosis of plaintiff’s
neurosurgical condition, the determination of
the appropriate surgical treatment for that
condition or obtaining consent for the surgery.
27. To a reasonable degree of medical
probability that Dr. Betz performed a
thorough and appropriate preoperative
assessment of the patient for any potential
anesthetic risks. The choice of general
anesthesia was also appropriate. More
importantly, the medical record documents
Dr. Betz’s preoperative discussion with the
patient regarding Dr. Betz’s anesthetic plan
along with the anesthetic risks, benefits and
alternatives.
Dr.
Betz’s
preoperative
assessment note also memorialized the
patient's understanding and agreement to
proceed, indicating the patient provided
proper informed consent.
28. The anesthesia record from the procedure
itself establishes that Dr. Betz administered
the appropriate anesthesia and kept the patient
under continuous monitoring for his safety.
As mentioned, the plaintiff suffered
absolutely no anesthetic complications.
29. Dr. Betz as the patient’s anesthesiologist
played no role in the preoperative diagnosis or
the selection of the appropriate surgery to treat
the plaintiff's neurosurgical condition. The
patient provided informed consent for the
planned
thoracic
laminectomy
and
decompression
surgery
with
general
anesthesia, and it was appropriate for Dr. Betz
as the patient’s anesthesiologist to rely on the
surgical consent obtained by the surgeon. In
addition, Dr. Betz properly conducted his own
informed consent discussion with the patient
with respect to the anesthesia to be
administered. The patient then tolerated the
surgery well without any anesthetic
complications. All the anesthesia care and
treatment rendered by David Betz, M.D., met
the standard of care in this case and did not
cause or contribute to any injury to plaintiff.
25. Dr. Bickler Decl.¶ 18-23, 25.
26. Dr. Bickler Decl. ¶ 20.
27. Dr. Bickler Decl. ¶ 22; Exh. C, pgs. 367369.
28. Dr. Bickler Decl. ¶ 23.
29. Dr. Bickler Decl. ¶ 25.
27
28
11
1
2
Issue 6: Plaintiff has no claim for medical negligence as Dr. Betz did not, with a
reasonable degree of medical certainty, cause or contribute to any injury of plaintiff.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
UNDISPUTED FACT
30. Defendants incorporate by reference
undisputed material facts and supporting
evidence in Fact Nos. 14-23, above.
31. Nothing Dr. Betz did or failed to do caused
or contributed to any injury to Plaintiff.
32. Plaintiff has not claimed, nor has he
sustained, any injury from the administration
of anesthesia. In the case of the 7/23/14
surgery, the medical records establish that
plaintiff tolerated the surgery well and
sustained
absolutely
no
anesthetic
complications.
33. Plaintiff was given general endotracheal
anesthesia through the mouth. Difficulty
walking or delayed mobility from walking,
working, standing are not conditions caused
by general endotracheal anesthesia. In
plaintiff’s case, there were no anesthetic
complication during or immediately after
surgery. Thus, to a reasonable degree of
medical probability, nothing Dr. Betz did or
failed to do in administering anesthesia
caused or contributed to any injury of the
patient.
SUPPORTING EVIDENCE
30. Evidence in support of Undisputed Facts
No. 14-23, above.
31. Dr. Bickler Decl.¶¶ 19, 21, 23-25.
32. Dr. Bickler Decl. ¶ 21, ¶ 23.
33. Dr. Bickler Decl. ¶ 24.
17
18
19
Issue 7: Plaintiff has no claim for medical negligence or medical battery as plaintiff did
not suffer any injury as a result of Dr. Betz’s administration of anesthesia.
20
21
22
23
UNDISPUTED FACT
SUPPORTING EVIDENCE
34. Plaintiff suffered no injury as a result of 34. Dr. Bickler Decl. ¶ 21; 24; Dr. Betz ¶ 7;
the administration of anesthesia on July 24, Exh. C, 11-14, 389-396.
2014.
24
25
26
27
28
12
1
2
Issue 8: Plaintiff has no claim for medical battery as plaintiff consented to the anesthesia
plan that he received.
3
4
5
6
7
8
9
10
UNDISPUTED FACT
35. Defendants incorporate by reference
undisputed material facts and supporting
evidence in Fact Nos. 17, 21-23, above.
36. Dr. Betz had a consent discussion with the
with the patient describing his anesthetic
plans, risks, benefits and alternatives. Dr. Betz
documented the patient’s agreement with the
anesthetic plan, and administered the
anesthesia plan discussed and agreed to.
37. Dr. Betz did not purposefully provide
anesthesia to the patient without his consent
SUPPORTING EVIDENCE
35. Evidence in support of Undisputed Facts
No. 17, 21-23, above.
36. Dr. Bickler Decl. ¶ 15; Dr. Betz Decl. ¶ 46; Exh. C, pgs. 394-395.
37. Dr. Betz Decl. ¶ 5.
11
Issue 9: Plaintiff has no claim for medical battery based on the allegation that the wrong
12
13
14
surgery was performed as Dr. Betz was Plaintiff’s anesthesiologist, not the surgeon who
performed the surgery.
15
16
17
18
19
20
UNDISPUTED FACT
38. Dr. Betz was the anesthesiologist during
Plaintiff's July 24, 2014 surgery.
39. Dr. Bairamian was the surgeon who
performed Plaintiff's July 24, 2014 surgery.
40. Dr. Betz played no role and had no duty of
care with respect to the diagnosis of plaintiff's
neurosurgical condition or determining the
appropriate treatment for that condition.
SUPPORTING EVIDENCE
38. Dr. Bickler Decl. ¶¶ 15-16; 20; Dr. Betz
Decl. ¶ 8; Exh. C, pgs. 8, 11-14, 389-396; 416.
39. Exh. C, pgs. 8, 12-14, 389-396, 367-369.
40. Dr. Bickler Decl. ¶¶ 16, 20; Dr. Betz Decl.
¶ 8.
21
22
23
24
25
26
27
28
V.
DEFENDANT BETZ’S ARGUMENTS
Defendant Dr. Betz moves for an order granting summary judgment pursuant to Rule 56
of the Federal Rules of Civil Procedure on the grounds that Plaintiff is unable to raise a triable
issue of fact to support his claim that Dr. Betz violated his rights under the Eighth Amendment
to the Constitution of the United States of America, committed Medical Battery, or violated the
standard of care with respect to the medical care and treatment provided. In the alternative, Dr.
Betz asks for an order adjudicating nine issues.
13
1
Defendant Betz’s evidence consists of Plaintiff’s allegations in the Second Amended
2
Complaint, ECF No. 14; Decl. of Dr. Philip E. Bickler (expert witness), ECF No. 81 at 264; Decl.
3
of defendant Dr. David Betz, ECF No. 81 at 33; Decl. of Jessica P. Lamiero, Esq. (counsel for
4
defendant Dr. Betz), ECF No. 81 at 35; Decl. of defendant Dr. Dikran Bairamian, ECF No. 81-1
5
at 141 (Exhibit E); Curriculum Vitae of Dr. Bickler, ECF No. 81-1 at 38, 139 (Exhibits A, D),
6
Plaintiff’s medical records from Dr. Bairamian, ECF No. 81-1 at 6 (Exhibit B); and Plaintiff’s
7
medical records from Memorial Medical Center, ECF No. 81-1 at 110 (Exhibit C).
8
Defendant Betz moves the court for summary judgment in his favor and costs of suit
9
incurred herein. Defendant argues that there is no genuine issue of material fact as to any of
10
Plaintiff’s claims set forth in the Second Amended Complaint and therefore Defendant Betz is
11
entitled to summary judgment as a matter of law. Specifically, Dr. Betz argues that he is not a
12
federal employee nor a state actor, he did not act with deliberate indifference to Plaintiff’s serious
13
medical needs, he did not negligently cause or contribute to Plaintiff’s alleged injury, there is no
14
alleged injury attributable to Dr. Betz’s provision of anesthesia, and Plaintiff consented to the
15
anesthesia he received.
16
17
18
19
20
21
Alternatively, if for any reason summary judgment cannot be had, Dr. Betz moves the
Court for an order adjudicating the following nine issues:
Issue 1: Plaintiff’s Bivens claim for inadequate medical care under the Eighth
Amendment fails as a matter of law because Dr. Betz is not a federal officer or employee.
Issue 2: Plaintiff’s claim for inadequate medical care under the Eighth Amendment fails
as a matter of law because Dr. Betz is not a state actor.
22
Issue 3: Plaintiff has no claim for inadequate medical care under the Eighth Amendment
23
as a matter of law because there is no evidence of a ‘serious’ medical need that Dr. Betz failed
24
to treat and that resulted in the unnecessary and wanton infliction of pain.
25
26
4
27
All page numbers cited herein are those assigned by the court’s CM/ECF system and not based
on the parties’ pagination of their briefing materials.
28
14
1
2
3
4
5
6
7
8
9
10
Issue 4: Plaintiff has no claim for inadequate medical care under the Eighth Amendment
as a matter of law because Dr. Betz did not act with deliberate indifference.
Issue 5: Plaintiff has no claim for medical negligence, as Dr. Betz complied with the
appropriate standard of care.
Issue 6: Plaintiff has no claim for medical negligence, as Dr. Betz did not, with a
reasonable degree of medical certainty, cause or contribute to any injury of plaintiff.
Issue 7: Plaintiff has no claim for medical negligence or medical battery, as plaintiff did
not suffer any injury as a result of Dr. Betz’s administration of anesthesia.
Issue 8: Plaintiff has no claim for medical battery, as plaintiff consented to the anesthesia
plan that he received.
11
Issue 9: Plaintiff has no claim for medical battery based on the allegation that the wrong
12
surgery was performed, as Dr. Betz was Plaintiff's anesthesiologist, not the surgeon who
13
performed the surgery.
Plaintiff’s Bivens Claims Fail
14
A.
15
Defendant first argues that Dr. Betz is not a federal officer or federal employee rendering
16
Plaintiff unable to state a Bivens claim against Defendant as a matter of law. Defendant declares
17
that he works for a private company, Gould Medical Group, which staffs physicians at the private
18
hospital where Plaintiff had his surgery:
19
20
21
22
“In July 2014, I was not, and have never been, an employee of United States
Penitentiary (“USP”) - Atwater, or any state or federal prison. I work for Gould
Medical Group, a private company that staffs some of the physicians at Memorial
Medical Center, the private hospital where Plaintiff had his surgery. I am not a
Memorial Medical Center employee. I am not a federal employee or contractor.”
(Decl. of Dr. Betz, ECF No. 81 at 33 ¶ 3.)
23
Defendant also argues that even if Bivens applied, Plaintiff cannot establish an Eighth
24
Amendment violation, for the following reasons: Plaintiff has no claim for inadequate medical
25
care under the Eighth Amendment against Defendant; Plaintiff is not a governmental actor and
26
was not acting under the color of state law; Defendant was Plaintiff’s anesthesiologist, not
27
Plaintiff’s surgeon; and Plaintiff suffered no injury from the anesthesiology. Thus he argues that
28
there is no evidence that he ignored a serious medical need, acted with deliberate indifference
15
1
against Plaintiff, or caused any injury to Plaintiff. Undisputed evidence shows that while Plaintiff
2
may have had a serious injury he was provided medical care for that injury and he never had a
3
serious medical need for further or additional treatment. He was diagnosed with considerable
4
hypertrophy of the ligamentum flava right greater than left at T2-3, and the procedure Dr.
5
Bairamian performed was a lower 3/4 of T2, upper one-third of T3 laminectomy and
6
decompression of the cord surgery, Exh. C, pg. 12.
7
Pursuant to Dr. Peikar’s medical report dated April 16, 2014:
8
At T2-3 the disk space is intact. However, there is considerable hypertrophy of
the ligamentum flava, particularly on the right. There is some contrast
enhancement along the periphery on the right. This is causing moderate
posterolateral cord compression, right greater than left, and circumferential
stenosis. There is focal increased nonenhancing signal of the cord at this level,
compatible with myelomalacia.
9
10
11
12
(ECF No. 81-1 at 70, Exh. B.)
Dr. Bairamian’s medical report from Memorial Medical Center, dated July 23, 2014,
13
states:
14
15
16
17
18
19
20
21
22
23
24
PREOPERATIVE DIAGNOSIS: Thoracic stenosis and cord compression at T2
T3 with thoracic myelopathy. POSTOPERATIVE DIAGNOSIS: Thoracic
stenosis and cord compression at T2 T3 with thoracic myelopathy.
PROCEDURE: Lower 3/4 of T2, upper one third of T3 laminectomy and
decompression of the cord. SURGEON: Dikran Bairamian, MD. . .
ANESTHESIOLOGIST: David Betz, MD.
(ECF No. 81-1 at 87, Exh. C.)
As Dr. Betz declares, his only involvement in Plaintiff’s care was the administration of
anesthesia during his surgery:
“My only participation in Mr. McRae’s July 2014 surgery was providing the
anesthesia services. As an anesthesiologist, I have no control over the type or
method of surgery performed. I had no control over or participation in what
surgery was performed on Mr. McRae, or how it was performed. I also had no
control or participation in his post-surgical care, which, when there is no
anesthetic complication, is standard for an anesthesiologist.”
25
(Dr. Betz’s Decl., ECF No. 81 at 34 ¶ 8.) Dr. Betz also declares that he did not
26
purposefully provide anesthesia to Plaintiff without his consent:
27
28
“I did not purposefully provide anesthesia to the patient without his consent. On
July 23, 2014, prior to the procedure, I examined Plaintiff for purposes of
determining his ability to be intubated. I also discussed the plan to administer
16
1
2
3
4
general anesthesia during his surgery, and discussed with him the anesthetic plans,
risks, benefits, and alternatives. I documented the patient’s agreement with the
anesthetic plan because I believed he understood and consented to it. I would not
have provided anesthesia to him during the surgery if I did not believe that he
could physically handle it, or if I did not believe that he had consented to it.”
(Dr. Betz’s Decl., ECF No. 81 at 33 § 5.)
Dr. Betz provided the anesthesia services for the surgery without any complications, as
5
reported in Dr. Betz’s post-procedure assessment notes dated July 23, 2014:
6
7
8
9
10
11
Assessment: Mental status: awake, alert and oriented. Respiratory function:
airway patent, normal respiratory rate, adequate oxygenation Cardiovascular
function: BP and heart rate stable Pain: adequately controlled. Nausea: None.
Emesis: No. Post-Operative hydration: adequate anesthetic complications: No
anesthetic complications Post Procedure hand-off: P-C-: Summary reviewed.
Report given to recovery nurse and patient hand-off complete. Patient stable upon
transfer of care.
(ECF No. 81-1 at 100, Exh. C.)
Dr. Bickler, expert witness, concluded, “There were no surgical or anesthetic
12
complications.” (Dr. Bickler Decl., ECF No. 81 at 30 ¶ 16:23.)
13
Based on Defendant Dr. Betz’s arguments and evidence the court finds that Defendant
14
has met his burden of demonstrating that Plaintiff has no evidence that Plaintiff is able to state a
15
Bivens claim against Defendant as a matter of law, or that Defendant Betz acted with deliberate
16
indifference in violation of the Eighth Amendment when providing Plaintiff with medical care.
17
Therefore, the burden now shifts to Plaintiff to produce evidence of a genuine material fact in
18
dispute that would affect the final determination in this case.
19
B.
Discussion
20
Bivens actions are the judicially crafted counterparts to § 1983. Bivens actions enable
21
victims to sue individual federal officers for damages resulting from violations of Constitutional
22
rights. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619
23
(1971). To prevail on a Bivens claim, a plaintiff must show (1) they were deprived of a right
24
secured by the Constitution, and (2) the defendant acted under color of federal law. Morgan v.
25
United States, 323 F.3d 776, 780 (9th Cir. 2003). A person acts under color of federal law by
26
“exercising power possessed by virtue of [federal] law and made possible only because the
27
wrongdoer is clothed with the authority of [federal] law.” Polk Cty. v. Dodgson, 454 U.S. 312,
28
17
1
317-18 (1981); see also Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996) (noting how Bivens is
2
basically a § 1983 claim against federal officers); Boney v. Valline, 597 F. Supp. 2d 1167, 1172
3
(D. Nev. 2009) (plaintiff must show constitutional violation was “committed by a federal actor”).
4
Plaintiff alleges in the Second Amended Complaint that at the time of the events at issue
5
in this case he was a federal inmate incarcerated at USP-Atwater in Atwater, California, in the
6
custody of the federal Bureau of Prisons. (ECF No. 14 at 3-4.) Plaintiff alleges that defendants,
7
Drs. Bairamian, Nguyen and. David Betz, are private physicians, surgeons and anesthesiologist
8
who were working at Sutter Health Memorial Medical Center, Modesto, California, who
9
performed back surgery on Plaintiff on July 22, 2014. (Id. at 4.) Plaintiff also alleges that Dr.
10
Betz was acting under color of law as he was contracted with the BOP to provide medical care.
11
(Id. at 7 ¶ II.) These allegations are not admissible in evidence because they are not based on
12
Plaintiff’s personal knowledge or supported by admissible evidence.
13
admissible evidence in support of his allegation that defendant Dr. Betz was contracted with the
14
BOP to provide medical care or acting under color of law, whereas defendant Dr. Betz has
15
declared under penalty of perjury based on his personal knowledge, “In July 2014, I was not, and
16
have never been, an employee of United States Penitentiary (“USP”) - Atwater, or any state or
17
federal prison. I work for Gould Medical Group, a private company that staffs some of the
18
physicians at Memorial Medical Center, the private hospital where Plaintiff had his surgery. I am
19
not a Memorial Medical Center employee. I am not a federal employee or contractor.” (Decl. of
20
Dr. Betz, ECF No. 81 at 33 ¶ 3.)
Plaintiff offers no
21
Plaintiff’s allegations and evidence of events occurring in 2020, after he filed this case
22
on July 25, 2016, shall not be considered because Plaintiff did not have leave of court to file a
23
supplemental complaint. Under Rule 15(d), “the court may, on just terms, permit a party to serve
24
a supplemental pleading setting out any transaction, occurrence, or event that happened after the
25
date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d). A party may only file a
26
supplemental complaint with leave of court, and Plaintiff did not request and was not granted
27
leave of court to allege later-occurring events. Id.
28
18
1
2
Because Plaintiff has not presented any admissible evidence that Defendant Betz acted
under color of federal law, Plaintiff cannot prevail on a Bivens claim against Defendant Betz.
3
Moreover, as argued by Defendant, even if Bivens applied to Plaintiff’s claim against
4
Defendant Betz, Plaintiff cannot establish an Eighth Amendment violation. “[T]o maintain an
5
Eighth Amendment claim based on prison medical treatment, an inmate must show ‘deliberate
6
indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)
7
(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
8
indifference requires the plaintiff to show (1) “‘a serious medical need’ by demonstrating that
9
‘failure to treat a prisoner’s condition could result in further significant injury or the unnecessary
10
and wanton infliction of pain,’” and (2) “the defendant’s response to the need was deliberately
11
indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.
12
1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.
13
1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by “a purposeful
14
act or failure to respond to a prisoner’s pain or possible medical need, and harm caused by the
15
indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Deliberate indifference may be
16
manifested “when prison officials deny, delay or intentionally interfere with medical treatment,
17
or it may be shown by the way in which prison physicians provide medical care.” Id. Where a
18
prisoner is alleging a delay in receiving medical treatment, the delay must have led to further
19
harm in order for the prisoner to make a claim of deliberate indifference to serious medical needs.
20
McGuckin at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407
21
(9th Cir. 1985)).
The two-part test for deliberate
22
“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051,
23
1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the
24
facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but
25
that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 U.S.
26
825, 837 (1994)). “‘If a prison official should have been aware of the risk, but was not, then the
27
official has not violated the Eighth Amendment, no matter how severe the risk.’” Id. (quoting
28
Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A showing of
19
1
medical malpractice or negligence is insufficient to establish a constitutional deprivation under
2
the Eighth Amendment.” Id. at 1060. “[E]ven gross negligence is insufficient to establish a
3
constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)).
4
1.
Serious Medical Need
5
The court finds no dispute in this case that Plaintiff suffered from a “serious medical
6
need.” Defendant Betz does not contest that Plaintiff suffered from back pain that was certain to
7
continue or worsen if left untreated.
8
2.
Deliberate Indifference
9
The causation requirement of 42 U.S.C. § 1983 and a Bivens action is satisfied only if a
10
plaintiff demonstrates that a defendant did an affirmative act, participated in another’s affirmative
11
act, or omitted to perform an act which he was legally required to do that caused the deprivation
12
complained of. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981) (quoting Johnson v.
13
Duffy, 588 F.2d 740, 743–44 (9th Cir. 1978)).
14
The court finds no evidence that Defendant Dr. Betz deliberately disregarded a known
15
serious medical need, acted unreasonably, and caused injury to Plaintiff. Defendant has provided
16
ample evidence that he was the anesthesiologist for Plaintiff’s surgery and not a surgeon, did not
17
have control over, or participation in, what surgery was performed or how it was performed, and
18
that there were no anesthetic complications. Plaintiff alleges that Defendant Betz administered
19
anesthesia to Plaintiff without Plaintiff’s consent which caused mental and emotional pain and
20
physical impairment for the rest of Plaintiff’s life. However, Plaintiff provides no admissible
21
evidence that Dr. Betz’s participation in the July 2014 surgery as an anesthesiologist caused
22
Plaintiff to receive the wrong surgery, resulted in damage to Plaintiff or caused him to suffer
23
complications or other injury. Plaintiff has not shown any admissible evidence that Defendant
24
Dr. Betz acted against him with deliberate indifference in violation of the Eighth Amendment.
25
26
Here, with respect to Plaintiff’s Bivens Claims, even if material issues of fact remain as
27
to whether Plaintiff consented to the anesthesia administered by Dr. Betz, Plaintiff cannot
28
overcome Defendant’s motion for summary judgment because Plaintiff has not offered expert
20
1
testimony on the scope of the anesthesiologist’s duty to disclose, whether risks of long-term
2
neurological effects existed, or whether any act by Dr. Betz caused injury to Plaintiff. Plaintiff’s
3
opinion testimony is not admissible under Rule of Evidence 701 because he is a layman and not
4
a medical expert.
5
If a witness is not testifying as an expert, testimony in the form of an opinion is
limited to one that is:
6
(a) rationally based on the witness's perception;
7
(b) helpful to clearly understanding the witness's testimony or to determining a
fact in issue; and
8
9
(c) not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702.
10
11
Fed. R. Evid. 701.
12
Accordingly, based on the foregoing, the court should grant Defendant Betz’s motion for
13
summary judgment on Plaintiff’s Bivens claim of deliberate indifference in violation of the
14
Eighth Amendment.
15
VI.
PLAINTIFF’S STATE LAW CLAIMS
16
Plaintiff’s remaining claims, for medical battery and medical malpractice, are state law
17
claims.5 Because the court has found that Defendant Betz is entitled to summary judgment on
18
all claims brought under federal law, this court should decline to exercise supplemental
19
jurisdiction over Plaintiff’s state law claims.
20
The district court may decline to exercise supplemental jurisdiction where all claims over
21
which the court has original jurisdiction have been dismissed. 28 U.S.C. § 1367(c)(3). “[I]n the
22
usual case in which federal-law claims are eliminated before trial, the balance of factors to be
23
considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness,
24
25
26
27
28
5 Failure to provide sufficient information to support informed consent is a valid claim
under California law. Jackson v. United States, No. C 05-3006MHP, 2007 WL 4532223, at *6 (N.D. Cal.
Dec. 19, 2007). “A physician violates his duty to his patient and subjects himself to liability if he
withholds any facts which are necessary to form the basis of an intelligent consent by the patient to the
proposed treatment.” Id. (quoting Berkey v. Anderson, 1 Cal.App.3d 790, 803-804, 82 Cal.Rptr. 67
(1969). Liability for failure to obtain informed consent may attach even if the medical treatment is
performed in accordance with the standard of care. Id.
21
1
and comity — will point toward declining to exercise jurisdiction over the remaining state law
2
claims.” Carnegie-Mellon Univ. v. Cohill, Inc. (Carnegie-Mellon), 484 U.S. 343, 350 n.7 (1988)
3
(indicating disapproval of a district court’s retention of jurisdiction to adjudicate a statute of
4
limitations issue); Schneider v. TRW, Inc., 938 F.2d 986, 993 (9th Cir. 1991); United Mine
5
Workers v. Gibbs, 383 U.S. 715 (1966); Bryant v. Adventist Health Sys. W., 289 F.3d 1162,
6
1169 (9th Cir. 2002) (holding that once the federal claim on which jurisdiction exists has been
7
proven to be unfounded at summary judgment, this allows courts to avoid determining issues of
8
state law).
9
In this case, the court has found that Defendant Betz’s motion for summary judgment
10
should be granted as to Plaintiff’s federal claims. Therefore, this court should decline to exercise
11
supplemental jurisdiction over Plaintiff’s state law claims.
12
VII.
13
14
CONCLUSION AND RECOMMENDATIONS
The court finds that based on the undisputed facts, Defendant Dr. Betz’s motion for
summary judgment, filed on October 27, 2020, should be granted.
15
Therefore, based on the foregoing, it is HEREBY RECOMMENDED that:
16
1.
2020, be GRANTED as to all of Plaintiff’s federal claims under Bivens;
17
18
2.
19
20
The motion for summary judgment filed by Defendant Dr. Betz on October 27,
The court decline to exercise supplemental jurisdiction over Plaintiff’s state law
claims against Defendant Betz;
3.
The Clerk of Court be directed to reflect Defendant Dr. Betz’s dismissal from this
case on the court’s docket; and
21
22
4.
23
These findings and recommendations are submitted to the United States District Judge
24
assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen
25
(14) days from the date of service of these findings and recommendations, any party may file
26
written objections with the court.
27
Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served
28
and filed within ten (10) days after the date the objections are filed. The parties are advised that
This case be referred back to the Magistrate Judge for further proceedings.
Such a document should be captioned “Objections to
22
1
failure to file objections within the specified time may result in the waiver of rights on appeal.
2
Wilkerson, 772 F.3d at 838-39 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
3
4
5
6
IT IS SO ORDERED.
Dated:
May 1, 2021
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
23
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?