Cooper v. Kaur, et al

Filing 71

ORDER signed by Judge Garland E. Burrell, Jr. on 3/16/2012 ADOPTING 63 Findings and Recommendations in full, with exception; GRANTING 36 , 64 Motion for Summary Judgment as to Plaintiff's 14th Amendment due process claim; GRANTING 36 as to Defendant Kaur's Motion for Summary Judgment on Plaintiff's 8th Amendment claim; DENYING 36 as to Defendant Chen's Motion for Summary Judgment on Plaintiff's 8th Amendment claim. (Michel, G)

1
2
3
4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE EASTERN DISTRICT OF CALIFORNIA

6
7

TROY COOPER,
Plaintiff,

8
v.

9
10

PHARMACIST S. NAKU, NURSE KAUR,
and DR. YUEN CHEN,

11

Defendants.
________________________________

12

Plaintiff

13

Troy

Cooper

)
)
)
)
)
)
)
)
)
)
)

2:10-cv-01057-GEB-DAD
ORDER

(“Plaintiff”),

a

state

prisoner

14

proceeding pro se, brings this civil rights action under 42 U.S.C. §

15

1983, alleging Defendants acted with deliberate indifference to his

16

serious

17

Amendments to the United States Constitution. Defendants Kaur and Chen

18

move

19

Plaintiff’s Fourteenth Amendment due process claim is duplicative of his

20

Eighth

21

indifference to Plaintiff’s serious medical needs, Plaintiff cannot

22

establish that Defendants’ actions or omissions caused Plaintiff harm,

23

and alternatively, that Defendants are entitled to qualified immunity.

24

(Defs.’ Mot. for Summ. J. 8:13-14, 9:20-21, 10:1, 11:27-12:5, ECF No.

25

36.)

medical

for

summary

Amendment

needs

in

judgment

violation

claim,

on

each

Defendants

of

of

the

Eighth

Plaintiff’s

did

not

act

and

Fourteenth

claims,

with

arguing

deliberate

26

The matter was referred to a United States Magistrate Judge

27

pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On February 1,

28

2012, the Magistrate Judge filed findings and recommendations, which

1

1

were served on all parties, and which contained notice to all parties

2

that any objections to the findings and recommendations were to be filed

3

within fourteen days. (ECF No. 63.) Defendants filed objections to the

4

findings and recommendations. (ECF No. 68.)

5

In accordance with 28 U.S.C. § 636(b)(1) and Local Rule 304,

6

this Court has conducted a de novo review of this case. Having carefully

7

reviewed

8

recommendations to be supported by the record and by proper analysis

9

except

10

the

on

the

entire

issue

file,

whether

the

court

Defendant

finds

Kaur

the

acted

findings

with

and

deliberate

indifference concerning Plaintiff’s serious medical needs.

11

I. LEGAL STANDARD

12

A party seeking summary judgment bears the initial burden of

13

demonstrating the absence of a genuine issue of material fact for trial.

14

Celotex

15

‘material’ when, under the governing substantive law, it could affect

16

the outcome of the case.” Thrifty Oil Co. v. Bank of Am. Nat. Trust &

17

Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir. 2003)(quoting Anderson v.

18

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of material

19

fact is “genuine” when “‘the evidence is such that a reasonable jury

20

could return a verdict for the nonmoving party.’” Id. (quoting Anderson,

21

477 U.S. at 248).

22
23
24
25
26
27
28

Corp.

v.

Catrett,

477

U.S.

317,

323

(1986).

“A

fact

is

When the defendant is the moving party and is seeking summary
judgment on one or more of a plaintiff’s claims, the defendant
has both the initial burden of production and the
ultimate burden of persuasion on [the motion]. In
order to carry its burden of production, the
[defendant] must either produce evidence negating
an essential element of the [plaintiff's claim] or
show that the [plaintiff] does not have enough
evidence of an essential element to carry its
ultimate burden of persuasion at trial. In order to
carry its ultimate burden of persuasion on the
2

1

motion, the [defendant] must persuade the court
that there is no genuine issue of material fact.

2
Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099,
3
1102 (9th Cir. 2000)(citations omitted). If the moving party satisfies
4
its initial burden, “the non-moving party must set forth, by affidavit
5
or as otherwise provided in [Federal] Rule [of Civil Procedure (‘Rule’)]
6
56, ‘specific facts showing that there is a genuine issue for trial.’”
7
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626,
8
630 (9th Cir. 1987)(quoting Fed. R. Civ. P. 56(e)). The “non-moving
9
plaintiff cannot ‘rest upon the mere allegations or denials of the
10
adverse party's pleading’ but must instead produce evidence that ‘set[s]
11
forth specific facts showing that there is a genuine issue for trial.’”
12
Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d
13
1019, 1030 (9th Cir. 2008)(quoting Fed. R. Civ. P. 56(e)).
14
Evidence must be viewed “in the light most favorable to the
15
non-moving party,” and “all reasonable inferences” that can be drawn
16
from the evidence must be drawn “in favor of [the non-moving] party.”
17
Nunez

v.

Duncan,

591

F.3d

1217,

1222-23

(9th

Cir.

2010)(internal

18
quotation marks omitted). However, “[t]he district court must . . .
19
undertake

some

initial

scrutiny

of

the

inferences

that

could

be

20
reasonably drawn from the evidence” to determine “whether there remains
21
sufficient probative evidence which would permit a finding in favor of
22
the [non-moving party] based on more than mere speculation, conjecture,
23
or fantasy.” Barnes v. Arden Mayfair, Inc., 759 F.2d 676, 680-81 (9th
24
Cir. 1985).
25
26
27
28
3

II. UNCONTROVERTED FACTS1

1
2

At

all

relevant

times,

Plaintiff

was

incarcerated

at

3

California State Prison-Solano (“SOL”). (Defs.’ Statement of Undisputed

4

Facts

5

allegations

6

indifference concerning his serious medical need; specifically, his

7

peripheral vascular disease (“PVD”). (Pl.’s First Am. Compl. ¶¶ 6-131.)

8

Plaintiff’s allegations concern medical treatment he received at SOL

9

preceding the January 7, 2009, below-the-knee amputation of his right

10

(“SUF”)

¶

that

1.)

In

certain

essence,
SOL

this

medical

action
staff

concerns

acted

with

Plaintiff’s
deliberate

leg. Id.

11

Plaintiff was diagnosed with PVD in 2005. (SUF ¶ 2.) PVD is a

12

progressive narrowing or blocking of the arteries which results in

13

restricted blood flow to the leg. Id. ¶ 3. PVD can cause coldness,

14

bluish discoloration, pain when walking, which is called “claudication,”

15

or gangrene in the extremities. Id. Between August 2005 and April 2008,

16

Plaintiff underwent three surgical procedures on his right leg to treat

17

his PVD. Id. ¶ 4. In April of 2008, he was

18

thinner, to treat his PVD. Id. ¶ 5.

prescribed Coumadin, a blood

19

At all relevant times, Defendant Kaur (“Kaur”) was employed by

20

SOL as a nurse. (Decl. of K. Kaur (“Kaur Decl.”) ¶ 1.) She has been

21

licensed in California as a registered nurse since 2004. Id. As a

22

registered nurse, Kaur provides primary medical care to inmates. Id. ¶

23

2. She triages patients’ complaints, conducts physical examinations,

24

refers inmates to doctors, and schedules appointments. Id.

25
26
27
28

1

The uncontroverted facts discussed herein concern only the
issue of whether Defendant Kaur acted with deliberate indifference
concerning Plaintiff’s serious medical needs since all other portions of
the findings and recommendations are adopted in full.
4

1

Plaintiff’s claims against Kaur involve his interactions with

2

her on October 6, 2008, and October 22, 2008, concerning Plaintiff’s

3

complaint of right leg pain. (Pl.’s Dep. 28:3-29:7, 36:8-11, 39:4-8;

4

Kaur Decl. ¶ 3.)2

5

on these dates.

The parties dispute the extent of their interactions

6

On November 5, 2008, Plaintiff had a follow up appointment

7

with his vascular surgeon, who noted that the prior surgeries to correct

8

or improve Plaintiff’s circulation to his right leg failed. (SUF ¶ 25.)

9

Therefore, Plaintiff underwent another right-leg surgery that same day.

10

Id. Plaintiff underwent a fifth right-leg surgery on December 31, 2008,

11

and had his right leg amputated below the knee on January 7, 2009, after

12

attempts to restore circulation to his foot failed. Id. ¶¶ 32-33.

13

Plaintiff contends Kaur’s actions and/or omissions were a direct cause

14

of his right leg amputation. (Pl.’s First Am. Compl. ¶ 125.)

15

III. DISCUSSION

16

Kaur seeks summary judgment on Plaintiff’s Eighth Amendment

17

deliberate indifference to serious medical needs claim, arguing, inter

18

alia,

19

demonstrates that she was indifferent to his medical needs.” (Defs.’

20

Mot. for Summ. J. 8:17-19.) Specifically, Kaur argues: “[i]n October

21

2008, [she] . . . treated and triaged [Plaintiff’s] ailments, referred

22

him to a doctor as needed, scheduled follow-up appointments, placed

23

orders

24

prescriptions. Nothing in Kaur’s conduct or treatment of [Plaintiff]

“[n]othing

for

in

[her]

prescriptions,

conduct

and

or

checked

treatment

on

the

of

[Plaintiff]

status

of

his

25
26
27
28

2

Although Kaur states in her declaration, and Plaintiff’s
medical records reflect, that Kaur interacted with Plaintiff on two
additional dates, October 8, 2008, and October 10, 2008, these events
are not discussed herein since they are not a basis for Plaintiff’s
claims against Kaur. (Kaur Decl. ¶¶ 7-10, Ex. B at 3-4.)
5

1

demonstrates that she was indifferent to his medical needs.” Id. at

2

8:14-18 (citation omitted). Plaintiff counters that Kaur’s “motion for

3

summary judgment [should be] denied.” (Pl.’s Opp’n 2:10-12.)

4

“An inmate's complaint of inadequate medical care amounts to

5

a constitutional violation if the inmate alleges ‘acts or omissions

6

sufficiently harmful to evidence deliberate indifference to serious

7

medical needs.’” Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.

8

1990)(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

9

13

In the Ninth Circuit, the test for deliberate
indifference consists of two parts[:] First, the
plaintiff must show a “serious medical need” by
demonstrating that “failure to treat a prisoner's
condition could result in further significant
injury or the unnecessary and wanton infliction of
pain.” Second, the plaintiff must show the
defendant's response to the need was deliberately
indifferent.

14

Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)(quoting McGukin v.

15

Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds

16

by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997)(en

17

banc))(internal quotation marks and citations omitted). “For purposes of

18

this motion,” Kaur does not dispute that Plaintiff had a serious medical

19

need. (Defs.’ Mot. for Summ. J. 8 n.1.) Therefore, resolution of her

20

summary judgment motion on Plaintiff’s Eighth Amendment claim depends

21

solely upon whether a genuine issue of material fact exists that she

22

acted with deliberate indifference to his serious medical need.

10
11
12

23

Deliberate

indifference

is

“satisfied

by

showing

(a)

a

24

purposeful act or failure to respond to a prisoner’s pain or possible

25

medical need and (b) harm caused by the indifference.” Jett v. Penner,

26

439 F.3d 1091, 1096 (9th Cir. 2006). “[Deliberate i]ndifference ‘may

27

appear when prison officials deny, delay or intentionally interfere with

28

medical treatment, or it may be shown by the way in which prison
6

1

physicians provide medical care.’” Jett, 439 F.3d at 1096 (quoting

2

McGuckin, 974 F.2d at 1059).

3

“[A]n ‘inadvertent or negligent failure to provide adequate

4

medical care alone does not state [a Constitutional violation].’” Id.

5

(internal brackets omitted)(quoting McGuckin, 974 F.2d at 1059). “While

6

poor medical treatment will at a certain point rise to the level of

7

constitutional violation, mere malpractice, or even gross negligence,

8

does not suffice.” Wood, 900 F.2d at 1334. Further, “a mere difference

9

of medical opinion is insufficient, as a matter of law, to establish

10

deliberate indifference.’” Toguchi v. Chung, 391 F.3d 1051, 1058 (9th

11

Cir. 2004)(internal brackets omitted)(quoting Jackson v. McIntosh, 90

12

F.3d 330, 332 (9th Cir. 1996)). “Rather, to prevail on a claim involving

13

choices between alternative courses of treatment, a prisoner must show

14

that the chosen course of treatment ‘was medically unacceptable under

15

the

16

excessive risk to the prisoner's health.’” Id. (internal brackets

17

omitted)(quoting Jackson, 90 F.3d at 332).

circumstances,’

and

was

chosen

‘in

conscious

disregard

of

an

18

Concerning the parties’ October 6, 2008, interaction, Kaur

19

declares that she “treated [Plaintiff]” when “[h]e submitted a request

20

for medical treatment for pain in his right-lower leg that he claimed

21

began earlier that day.” (Kaur Decl. ¶ 2.) Kaur further declares:

22
23
24
25
26
27

During
[her]
examination,
[she]
took
[Plaintiff’s] blood pressure, respiration, pulse,
temperature, and checked his orientation and pain
level. [She] examined his legs and ability to walk.
He had no swelling, discoloration, or acute
distress, and his left and right calves were the
same size. [She] checked for Homans’ signs—a test
to check for possible blood clots by flexing the
ankle while the knee is bent at a ninety-degree
angle—which were negative. [She] found that
[Plaintiff’s] pedal pulse was weaker in his right
foot than his left.

28
7

1
2
3
4
5
6

Based on [her] findings, [Kaur] scheduled
[Plaintiff] for an immediate appointment with a
doctor. [Defendant] Chen saw him that afternoon.
After [Plaintiff’s] appointment with the
doctor,
[Kaur]
scheduled
him
for
his
next
appointment, instructed him to take his Coumadin .
. . as prescribed, and to return to the clinic if
he developed any swelling or redness or if his leg
pain continued. [Kaur] also called the prison
pharmacy to ensure that [Plaintiff’s] Coumadin
prescription was delivered to him.

7
8

(Kaur Decl. ¶¶ 4-6.)

9

Plaintiff testified during his deposition that Kaur examined

10

him on October 6, 2008, and that he was subsequently seen by Dr. Chen on

11

the same day. (Pl.’s Dep. 28:3-23, 32:10-21.) However, he disputes the

12

extent to which Kaur examined his right foot. Plaintiff testified in

13

relevant part as follows:

14

Q.
When you arrived at the medical clinic,
did Nurse Kaur see you right away?

15
A.

Yes.

16
17

Q.
Okay.
And
to
the
best
of your
recollection, what is it that you told her was your
primary complaint?

18
19

A.
Well, I told her I walk
distance and I would have to stop.

a certain

20

Q.

Did you specify what that distance was?

21

A.

Yes, I did.

22

Q.

What did you tell her?

23

A.

About 150 yards.

24

Q.

Okay.

25
26
27

A.
She then asked me to take off my boot and
sock, and that’s when she felt my Achilles tendon.
She said at that time you have tendinitis, and she
called another nurse to verify her diagnosis saying
that that nurse had experience with that type of
condition.

28
. . . .
8

1
2
3

Q.
When Nurse Kaur was examining your foot,
did you feel she had any kind of animosity or ill
will against you?
A.
She didn’t examine my foot. She examined
my tendon –-

4
Q.

Okay.

A.

-- my Achilles tendon.

5
6
No, I didn’t
animosity.

7
8
9

Q.

feel

that

she

had

any

Okay.

A.
But she didn’t in my presence consult my
medical record.

10
11
12
13

Q.
Did you ask her if she had reviewed your
medical records before your arrival?
A.

No, I didn’t.

Q.
Did she tell you that she had not
reviewed your medical file before your arrival?

14
A.

No, she didn’t.

15
16
17
18

Q.
Now, you mentioned that she asked you to
take off your shoe and your sock; is that correct?
A.

Yes.

Q.
Okay. Did she or did you roll up your
pants, if you were wearing pants?

19
20
21
22
23

A.
I didn’t have to roll them up. It was
already pulled up.
Q.
Okay. And what part was it from, just
below the knee, mid calf, that your leg was exposed
to view?
A.
my foot.

It was my whole –- well, from my knee to

24
25
26

Q.
Okay. Did Nurse Kaur put her hand on your
feet? Did she touch you on your foot, your calf,
your knee or anywhere on that lower part of your
leg?

27

A.

She touched me on the Achilles tendon.

28

Q.

Okay. So she put her hands on you?
9

1
2

A.

Yes.

Q.
Okay.
touching you?

And

how

long

was

she actually

3
A.

No more than six, seven seconds.

4
5

Q.
Okay. And while she was touching you, did
she say anything to you?

6

A.
After she finished touching me she said
something.

7
8

Q.
Okay. What did she say after she was done
touching your leg?

9

A.

She said you have tendinitis.

10

Q.

Did she say anything else?

11

A.

Not that I can recall, no.

12

. . . .

13

Q.
And you mentioned that after she examined
you she went and got another nurse?

14
15

A.
No, the nurse was present at that time in
the same room.

16

Q.
Okay. So while she was touching your leg
there was another nurse present?

17
A.

Yes.

18
. . . .
19
20

Q.
Did that other nurse say anything in
response to any of the comments you had made about
the symptoms you were having?

21
22
23
24
25
26

A.
No, she didn’t. She simply, I think, felt
my Achilles tendon and said yes, it’s tendinitis.
Q.
So both nurses, Nurse Kaur and this other
nurse, touched your leg during the process of them
treating you?
A.

Yes.

Q.
After the second nurse concurred with
Nurse Kaur, what happened after that?

27
A.

Well, after that I was seen by Dr. Chen.

28
. . . .
10

1

Q.

Okay. But you saw Dr. Chen the same day?

2

A.

Yes.

3
4

Q.
Okay. Would you say you waited more or
less than an hour?

5

A.

6

. . . .

7
8
9
10

I would say less.

Q.
Okay. At any time when Nurse Kaur was
seeing you on October 6th, did she refuse to
address any of the concerns you had?
A.

She just didn’t make any comment on them.

Q.
Okay. At any time did she tell you that
she was not going to treat you for your complaints?

11
A.

No.

12
. . . .
13
Q.

Did you tell Nurse Kaur that you had PVD?

A.

Well, I –- no, I didn’t express that on
that day, no.

14
15
16
17
18
19

. . . .
Q.
Okay. Did you tell Nurse Kaur that you
had suffered from blood clots before October 6,
2008?
A.
I simply stated on the appeal –- I mean
health care form that I had suspected a blood clot.

20
21

Q.
During any time she saw you and was
looking at your leg, did you mention blood clots at
all to her?

22
A.

No.

23
Id. at 28:21-34:6.
24
Regarding the parties’ October 22, 2008, interaction, Kaur
25
declares that she “did not treat or triage [Plaintiff] on this day[,]”
26
but she “placed an order for an arch support and scheduled [him] for the
27
blood work that Dr. Chen prescribed.” (Kaur Decl. ¶ 11.)
28
11

1

Plaintiff testified in his deposition that his medical records

2

do reference an order for a “gel insole” on October 22, 2008. (Pl.’s

3

Dep. 35:9-36:7.) However, Plaintiff testified that Kaur personally

4

examined him on that date as well. Plaintiff testified concerning his

5

October 22, 2008, interaction with Kaur as follows:

6

[Q.] You mentioned that [Kaur] also saw you on
October 22, 2008; is that correct?

7
A.

Yes.

8
9

Q.
Do you remember if that was a ducated
appointment or if it was a walk-in?

10
11

A.

It was a scheduled appointment.

Q.
Did you fill out another health request
form for that appointment?

12
A.

No, I didn’t.

13
14

Q.
Okay.
appointment?

15

A.

16

Was

that

like

a follow-up

. . . .

17

I believe so, yes.

[D]o you have an independent recollection of seeing
[Kaur] on October 22nd?

18
A.
19
20
21

Yes, I remember seeing her on October

22nd.
. . . .
Q.
Okay. When you saw Nurse Kaur on October
22nd, what were your complaints at that time?

22
23

A.
I believe I told her I was still having
the same type of pain that I had previously.

24

Q.
Did you tell her what distance you were
able to walk before the pain became intolerable?

25
A.

No, I don’t believe I mentioned that.

26
27
28

Q.
Do you recall if you mentioned your PVD
on October 22nd?
A.

No.
12

1

Q.

Did you mention your PVD on October 22nd?

2

A.

I don’t think I did.

3
4
5
6

Q.
Did you mention to Nurse Kaur that you
had previously suffered from blood clots on October
22nd?
A.

Not on that date, no.

Q.
Okay. Did she put her hands on you to
examine you on October 22nd?

7
A.

No.

8
9

Q.
What was the extent of your interaction
with her on October 22nd?

10

A.
I believe she took my blood pressure. I’m
not sure.

11
12

Q.
Were you there to see her specifically or
were you there to see another –- a doctor?

13

A.
Well, the process here is you see the
nurse first and then you see a doctor.

14
15

Q.
Okay. So your interaction with her was
more in just doing the initial blood pressure,
temperature, maybe pulse before you saw the doctor?

16
A.

Yes.

17
18
19
20

Q.
Okay. It wasn’t a specific appointment
with her?
A.

No.

Q.
Okay. On October 22nd, did she make any
kind of diagnosis as far as your condition?

21
22

A.
I
tendinitis.

23

Q.

Did she look at your leg –-

24

A.

No.

25

Q.

-- before she said that?

26

A.

No.

27
28

believe

she

said

again

that

I had

Q.
Okay. At any time when she was processing
you and taking your vital signs, did you feel that
she had any animosity or ill feelings towards you?
13

1

A.

2

. . . .

3

No, I didn’t.

Q.
Any any time during your interaction with
Nurse Kaur on October 22nd, did she tell you that
she was not going to treat you?

4
5

A.

6

No, she didn’t.

Q.
Did she tell you she was not going to
allow you to see the physician?

7
A.

No, she didn’t.

8
9

Q.
clinic?

10

A.

11

Did she refuse you entry into the medical
No, she didn’t.

Q.
Were you able to get in to see Dr. Chen
on the 22nd of October?

12
A.

Yes.

13
14

(Pl.’s Dep. 34:9-38:17.)

15

Although the parties dispute the scope of their interactions

16

on October 8, 2008, and October 22, 2008, it is undisputed that Kaur

17

never refused Plaintiff treatment. Further, it is undisputed that Kaur

18

did not delay Plaintiff in obtaining further medical care; Plaintiff was

19

seen by a doctor, Defendant Chen, on both of the dates at issue. Even

20

accepting all of Plaintiff’s deposition testimony as true, and drawing

21

all reasonable inferences therefrom in his favor, “[t]here is nothing in

22

[Kaur’s] actions to suggest that she knew that [Plaintiff] faced a

23

substantial risk of serious harm and disregarded that risk by failing to

24

take reasonable steps to abate it.” Newman v. McLean, No. C 05-01724 JW

25

(PR),

26

allegations that “[Defendant Nurse] saw plaintiff within a day or two of

27

his

28

examination after plaintiff complained of continual pain, and referred

2009

initial

WL

688859,

injury,

at

*3

promptly

(N.D.

ordered

14

Cal.

an

Mar.

x-ray

13,

upon

2009)(stating

a

follow-up

1

plaintiff to a physician for further treatment . . . [a]t most . . . may

2

give rise to a claim of medical malpractice or negligence which are

3

insufficient to make out a violation of the Eighth Amendment”). “Even if

4

[Kaur]

5

amounted to negligence, that is insufficient to establish deliberate

6

indifference.” Schilling v. Ferriter, No. CV 11-28-H-DWM-RKS, 2012 WL

7

78423, at *3 (D. Mont. Jan. 10, 2012)(dismissing Eighth Amendment

8

deliberate indifference to serious medical needs claim against nurses

9

who allegedly misdiagnosed an inmate’s dislocated shoulder as a muscle

10

misdiagnosed

his

condition,

and

even

if

that

misdiagnosis

cramp).

11

Accordingly, IT IS HEREBY ORDERED that:

12

1.

The findings and recommendations filed February 1, 2012,

13

are adopted in full except on the issue that a genuine material factual

14

issue exists concerning whether Kaur acted with deliberate indifference

15

concerning Plaintiff’s serious medical needs;

16
17

2.

No. 36) is granted in part and denied in part as follows:

18
19

A.

Each Defendant’s motion for summary judgment on

Plaintiff's Fourteenth Amendment due process claim is granted;

20
21

Defendants' May 5, 2011 motion for summary judgment (ECF

B.

Defendant Chen’s motion for summary judgment on

Plaintiff's Eighth Amendment claim is denied;

22

C.

Defendant Kaur’s motion for summary judgment on

23

Plaintiff’s Eight Amendment claim is granted.

24

Dated:

March 16, 2012

25
26
27

GARLAND E. BURRELL, JR.
United States District Judge

28
15

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
16