Ayobi v. Adams et al

Filing 47

FINDINGS and RECOMMENDATIONS regarding Defendant's MOTION FOR SUMMARY JUDGMENT 44 signed by Magistrate Judge Stanley A. Boone on 4/24/2019. Referred to Judge Dale A. Drozd; Objections to F&R's due within 21-Days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHAJIA AYOBI,

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Plaintiff,

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v.
BARBARA SHOWALTER,

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Defendant.

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FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
[ECF No. 44]

pursuant to 42 U.S.C. § 1983.
Currently before the Court is Defendant’s motion for summary judgment, filed March 25,

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Case No.: 1:17-cv-00693-DAD-SAB (PC)

Plaintiff Shajia Ayobi is appearing pro se and in forma pauperis in this civil rights action

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2019.

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I.

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INTRODUCTION

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This action is proceeding against Defendant Dr. Barbara Showalter for deliberate indifference

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to a serious medical need. On February 7, 2018, Defendant filed an answer to the complaint. On

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February 8, 2018, the Court issued the discovery and scheduling order.

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As previously stated, on March 25, 2019, Defendant Barbara Showalter filed a motion for
summary judgment. Plaintiff filed an opposition on April 5, 2019, and Defendant did not file a reply.

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Accordingly, Defendant’s motion for summary judgment is deemed submitted for review without oral

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argument. Local Rule 230(l).

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II.

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LEGAL STANDARD

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Any party may move for summary judgment, and the Court shall grant summary judgment if

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the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

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judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Washington Mut. Inc. v.

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U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, whether it be that a fact is disputed

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or undisputed, must be supported by (1) citing to particular parts of materials in the record, including

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but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials

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cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot

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produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted).

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The Court may consider other materials in the record not cited to by the parties, but it is not required

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to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031

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(9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

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In judging the evidence at the summary judgment stage, the Court does not make credibility

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determinations or weigh conflicting evidence, Soremekun, 509 F.3d at 984 (quotation marks and

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citation omitted), and it must draw all inferences in the light most favorable to the nonmoving party

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and determine whether a genuine issue of material fact precludes entry of judgment, Comite de

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Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d at 942 (quotation marks and

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citation omitted).

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III.

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DISCUSSION

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A.

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Plaintiff alleges that Defendant Showalter was her Primary Care Physician during the relevant

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times and failed to properly prescribe Plaintiff cholesterol medication that would not cause serious and

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permanent side effects. Throughout the course of Plaintiff’s medical treatment, Defendant Showalter

Summary of Plaintiff’s Complaint

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prescribed Lipitor to help reduce and control Plaintiff’s cholesterol.

From the initial visitation,

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Plaintiff was hesitant about taking prescribed medication, being aware of Lipitor’s possible side

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effects and pending lawsuits against the manufacturer. Upon being prescribed Lipitor by Defendant

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Showalter, Plaintiff made her concerns known and questioned the direction of her medical treatment.

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Plaintiff was informed by Defendant Showalter that some of the claims of possible side effects are

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simply not true. Defendant Showalter proceeded to discuss Plaintiff’s possible side effects, explaining

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she may experience some pain and discomfort in her arms and knees.

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assurance prompted Plaintiff to take the prescribed medication.

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treatment, Plaintiff began experiencing pain in her arms and legs, which limited her daily activities.

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This prompted Plaintiff to schedule another doctor visit, where Defendant Showalter ordered lab work.

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Prior to receiving the results, Defendant Showalter called Plaintiff into her office attempting to

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subdue Plaintiff’s concerns about taking Lipitor. Defendant Showalter explained that only patients

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who have a family history of diabetes have a potential risk of being diagnosed with Type II diabetes

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on this medication. Plaintiff replied that Defendant was aware of her family history of diabetes.

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Plaintiff alleges that Defendant Showalter acted with deliberate indifference by knowingly and

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intentionally prescribing Lipitor to Plaintiff knowing of her family history of diabetes. Defendant

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Showalter instructed Plaintiff to stop taking the medication, but Plaintiff asserts it was too late as the

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damage was already done. Once the lab results returned, Plaintiff’s suspicions were confirmed; the

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medication had caused her to become a Type II diabetic. As a result, Plaintiff is currently taking 500

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mg of Metformin twice a daily and Niacin, which is known to be hard on the liver and kidneys.

Defendant Showalter’s

After beginning her course of

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B.

Statement of Undisputed Facts

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At all relevant times, Plaintiff Shajia Ayobi was incarcerated by the California

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Department of Corrections and Rehabilitation (“CDCR”) at Central California Women’s Facility

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(“CCWF”). (Second Am. Compl., ¶¶ 3-5, ECF No. 24.)
2.

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On April 27, 2015, Plaintiff was examined by Dr. Romero to address Plaintiff’s

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dyslipidemia and related health concerns. Dr. Romero apparently prescribed atorvastatin at that time.

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(Declaration of Showalter, ¶ 3, Ex. A.)

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3.

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Showalter, ¶ 4, Ex. A.)
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Dr. Showalter began her employment as a physician at CCWF on May 4, 2015.

(Declaration of Showalter, ¶ 5, Ex. B.)
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Dr. Barbara Showalter did not examine Plaintiff on April 27, 2015. (Declaration of

On May 26, 2015, Dr. Showalter signed an order stopping Plaintiff’s prescription for

atorvastatin. (Declaration of Showalter, ¶ 6, Ex. A.)
Analysis of Defendant’s Motion

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C.

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Defendant argues that she was not employed at CCWF at the time of the treatment at issue, and

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Plaintiff’s difference of opinion is inadequate to support a claim for deliberate indifference.
Plaintiff disputes that Dr. Showalter’s claim that she did not treat her on April 27, 2015.

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Plaintiff contends that she intends to call nursing staff that were on duty during the examination to

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show that Dr. Showalter was on the premises and treating inmates.
Dr. Showalter declares and submits evidence that she was not employed at CCWF on April 27,

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2015, the date at issue in this action. Plaintiff fails to provide any evidence to support her contention

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that Dr. Showalter was employed at CCWF on April 27, 2015, or that she provided treatment to her on

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this date. Rather, the evidence before the Court demonstrates that Dr. Showalter did not begin her

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employment at CCWF until May 4, 2015. (Declaration of Showalter, ¶ 5, Ex. B [Notice of Personnel

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Action, effective date at CCWF on May 4, 2015].) Furthermore, on May 26, 2015, Dr. Showalter

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stopped Plaintiff’s prescription for atorvastatin, which was previously prescribed on April 27, 2015, by

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Dr. Romero. (Declaration of Showalter, ¶ 3, Ex. A.) Accordingly, based on undisputed evidence,

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Defendant Dr. Showalter is entitled to summary judgment as a matter of law.

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IV.

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RECOMMENDATIONS

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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Defendant Dr. Showalter’s motion for summary judgment be granted; and

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The Clerk of Court be directed to enter judgment in favor of Dr. Showalter.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21)

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days after being served with these Findings and Recommendations, the parties may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” The parties are advised that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-

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39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

April 24, 2019
UNITED STATES MAGISTRATE JUDGE

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