Abenth v. Weinholdt et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/6/13 RECOMMENDING that defendants May 13, 2013 motion for summary judgment (ECF No. 30 ) be granted and the Clerk of the Court be directed to enter judgment and close this case. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(Dillon, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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RANDALL ABENTH,
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Plaintiff,
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No. 2:11-cv-391-MCE-EFB P
v.
FINDINGS AND RECOMMENDATIONS
TERRI WEINHOLDT, et al.,
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Defendants.
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42
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U.S.C. § 1983. Defendant Grewal, the sole remaining defendant in this action, moves for
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summary judgment.1 ECF No. 30. For the reasons provided below, defendant’s motion must be
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granted.
I.
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Background
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Plaintiff suffers from a painful condition called oral lichen planus. ECF No. 1 (“Compl.”)
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¶¶ 4, 7, 12; Def.’s Mot. for Summ. J., ECF No. 30-1, Ex. B (“Grewal Decl.”), Ex. H. 2 He claims
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he cannot eat his meals in the little amount of time permitted in the chow hall, and must therefore
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be fed in his cell. Compl. ¶¶ 5, 9, 11, 12. Dr. Grewal was a dentist at Mule Creek State Prison,
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where plaintiff was confined. Grewal Decl. ¶ 2.
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Defendants Quattlebaum, Walker, and Weinholdt have been dismissed. ECF Nos. 5, 26.
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Plaintiff’s complaint is signed under penalty of perjury.
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On May 9, 2008, Dr. Grewal saw plaintiff for an examination. Id. ¶ 6, Ex. D. Based upon
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his findings, including a preliminary diagnosis of 1) oral cancidiasis, 2) cancidal leukeoplakia, or
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3) idiopathic lichen planus, Dr. Grewal issued plaintiff a cell feed chrono. Id.; Compl. ¶ 5.
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Grewal subsequently renewed plaintiff’s cell feed chrono on September 5, 2008, December 2,
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2008, April 30, 2009, and June 17, 2009. Grewal Decl. ¶¶ 17, 21, 24, Exs. J, N, P, R; Compl.
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¶¶ 11-12; ECF No. 30-1. Ex. A (“Pl.’s Dep.”) at 14:17-15:1.
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Plaintiff claims that in September 2009, the medical department ended his cell feeding.
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Compl. ¶ 13. He states that on September 16, 2009, he saw Dr. Grewal in the clinic hallway and
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asked him if he was going to renew his cell feed chrono. Id. According to plaintiff, Dr. Grewal
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would not give him an answer. Id. ¶ 14.
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On September 21, 2009, plaintiff filed a health care appeal requesting that his cell feed
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chrono be renewed. Id. In response to his appeal, plaintiff was seen by Dr. Machida. Id. ¶ 15.
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Dr. Machida referred plaintiff’s request for an extension of the cell feed chrono to the Dental
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Authorization Review (“DAR”) Committee. Grewal Decl. ¶ 24; Ex. U. Apparently, beginning in
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the fall of 2009, the medical staff at Mule Creek State Prison began reviewing all medical chronos
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to ensure that inmates were not abusing the system. Id. ¶ 25. As part of the review process, cell
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feed chronos were reviewed by the DAR Committee. Id. Dr. Grewal was not on the DAR
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Committee. Id. ¶ 29.
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On November 3, 2009, Dr. Machida informed plaintiff that the DAR Committee had
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denied his request for an extended cell feed. Grewal Decl. ¶¶ 35-36; Ex. Y. The DAR
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Committee concluded that plaintiff’s lack of weight loss demonstrated that the cell feed chrono
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was not medically necessary. Id.; Compl. ¶¶ 15-16. According to plaintiff, he did not lose weight
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because he was forced to eat “fattening” ramen noodles in his cell. Compl. ¶ 17. He claims he
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was living “a nightmare life of pain with mental suffering, knowing [his] poor diet [was] making
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[his] erosive lichen planus worse.” Id. ¶ 18. Plaintiff’s cell feed chrono was ultimately approved
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by the DAR Committee, and his cell feeding had resumed as of July 2011. Grewal Decl. ¶ 39,
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Ex. BB.
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Plaintiff claims that Dr. Grewal was deliberately indifferent to his medical needs in
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violation of the Eighth Amendment by failing to renew his cell feed chrono. See generally
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Compl. Dr. Grewal now moves for summary judgment.3 ECF No. 30.
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II.
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Summary Judgment Standard
Summary judgment is appropriate when there is “no genuine dispute as to any material
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fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary
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judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant
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to the determination of the issues in the case, or in which there is insufficient evidence for a jury
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to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600
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(1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass’n v.
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U.S. Dep’t of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment
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motion asks whether the evidence presents a sufficient disagreement to require submission to a
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jury.
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The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims
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or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to
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“‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for
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trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
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(quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 amendments). Procedurally,
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under summary judgment practice, the moving party bears the initial responsibility of presenting
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the basis for its motion and identifying those portions of the record, together with affidavits, if
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any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477
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U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving
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party meets its burden with a properly supported motion, the burden then shifts to the opposing
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party to present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e);
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Anderson, 477 U.S. at 248; Auvil v. CBS “60 Minutes”, 67 F.3d 816, 819 (9th Cir. 1995).
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Dr. Grewal’s motion also addresses plaintiff’s claim “that Dr. Grewal violated his Eighth
Amendment rights by . . . making ill-fitting dentures.” ECF No. 30 at 1. The complaint,
however, does not include those allegations, and defendant’s argument as to that “claim” is not
addressed.
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A clear focus on where the burden of proof lies as to the factual issue in question is crucial
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to summary judgment procedures. Depending on which party bears that burden, the party seeking
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summary judgment does not necessarily need to submit any evidence of its own. When the
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opposing party would have the burden of proof on a dispositive issue at trial, the moving party
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need not produce evidence which negates the opponent’s claim. See e.g., Lujan v. National
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Wildlife Fed’n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters
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which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323-
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summary judgment motion may properly be made in reliance solely on the ‘pleadings,
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depositions, answers to interrogatories, and admissions on file.’”). Indeed, summary judgment
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should be entered, after adequate time for discovery and upon motion, against a party who fails to
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make a showing sufficient to establish the existence of an element essential to that party’s case,
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and on which that party will bear the burden of proof at trial. See id. at 322. In such a
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circumstance, summary judgment must be granted, “so long as whatever is before the district
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court demonstrates that the standard for entry of summary judgment . . . is satisfied.” Id. at 323.
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To defeat summary judgment the opposing party must establish a genuine dispute as to a
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material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that
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is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at
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248 (“Only disputes over facts that might affect the outcome of the suit under the governing law
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will properly preclude the entry of summary judgment.”). Whether a factual dispute is material is
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determined by the substantive law applicable for the claim in question. Id. If the opposing party
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is unable to produce evidence sufficient to establish a required element of its claim that party fails
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in opposing summary judgment. “[A] complete failure of proof concerning an essential element
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of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S.
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at 322.
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Second, the dispute must be genuine. In determining whether a factual dispute is genuine
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the court must again focus on which party bears the burden of proof on the factual issue in
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question. Where the party opposing summary judgment would bear the burden of proof at trial on
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the factual issue in dispute, that party must produce evidence sufficient to support its factual
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claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion.
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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, the opposing party must, by affidavit
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or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue
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for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to
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demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such
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that a fair-minded jury “could return a verdict for [him] on the evidence presented.” Anderson,
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477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial.
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The court does not determine witness credibility. It believes the opposing party’s
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evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255;
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Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of “thin air,” and the
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proponent must adduce evidence of a factual predicate from which to draw inferences. American
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Int’l Group, Inc. v. American Int’l Bank, 926 F.2d 829, 836 (9th Cir. 1991) (Kozinski, J.,
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dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at
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issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th
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Cir. 1995). On the other hand, “[w]here the record taken as a whole could not lead a rational trier
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of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475
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U.S. at 587 (citation omitted); Celotex, 477 U.S. at 323 (if the evidence presented and any
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reasonable inferences that might be drawn from it could not support a judgment in favor of the
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opposing party, there is no genuine issue). Thus, Rule 56 serves to screen cases lacking any
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genuine dispute over an issue that is determinative of the outcome of the case.
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Defendant’s motion for summary judgment included a notice to plaintiff informing him of
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the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil
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Procedure. See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952,
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957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999); Klingele v. Eikenberry, 849
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F.2d 409 (9th Cir. 1988).
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III.
Discussion
To succeed on an Eighth Amendment claim predicated on inadequate medical care, a
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plaintiff must establish that he had a serious medical need and that the defendant’s response to
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that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see
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also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the failure to
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treat the condition could result in further significant injury or the unnecessary and wanton
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infliction of pain. Jett, 439 F.3d at 1096. Deliberate indifference may be shown by the denial,
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delay or intentional interference with medical treatment or by the way in which medical care is
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provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988).
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To act with deliberate indifference, a prison official must both be aware of facts from
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which the inference could be drawn that a substantial risk of serious harm exists, and he must also
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draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if
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he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk by failing
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to take reasonable measures to abate it.” Id. at 847. It is important to differentiate common law
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negligence claims of malpractice from claims predicated on violations of the Eight Amendment’s
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prohibition of cruel and unusual punishment. In asserting the latter, “[m]ere ‘indifference,’
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‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter
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Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle v. Gamble, 429 U.S. 97, 105-106
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(1976); see also Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004).
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Here, there is no genuine dispute as to whether Dr. Grewal acted with deliberate
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indifference toward plaintiff’s serious medical needs. The undisputed evidence shows that Dr.
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Grewal issued plaintiff a three-month cell feed chrono on May 9, 2008, and that he subsequently
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renewed the chrono on September 5, 2008, December 2, 2008, April 30, 2009, and June 17, 2009.
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Plaintiff alleges that Dr. Grewal ignored his request to renew the chrono when he saw Dr. Grewal
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in the clinic hallway on September 16, 2009. Plaintiff, however, admits that he did not have an
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appointment with Dr. Grewal that day. Pl.’s Dep. at 39:1-12 (stating he was at the clinic for a
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non-dental appointment). Dr. Grewal, who does not have any recollection of the encounter,
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explains that it would have been improper for plaintiff to seek medical treatment outside of a
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medical appointment. Grewal Decl. ¶¶ 41-42 (explaining that he cannot prescribe treatment or
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issue chronos for inmates without seeing their medical records and performing an examination).
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Assuming Dr. Grewal ignored plaintiff’s passing request on September 16, 2009, it would not
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have amounted to deliberate indifference. At worst, it would demonstrate an isolated incident of
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neglect, which does not constitute deliberate indifference to a serious medical need. See Jett, 439
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F.3d at 1096.
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Moreover, plaintiff admits that it was the DAR Committee, which Dr. Grewal was not
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part of, that reviewed and denied plaintiff’s request for a cell feed chrono in November 2009.
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Plaintiff asserts in his opposition that Dr. Grewal, and not the DAR, had the “final say” on
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whether his cell feed chrono should have been renewed. Pl.’s Opp’n, ECF No. 33 at 6. However,
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plaintiff fails to support this assertion with any evidence.
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After the DAR discontinued plaintiff’s cell feed chrono, plaintiff did not see Dr. Grewal
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for another year and a half, until July 2011. By this time, the DAR Committee had approved
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plaintiff’s cell feed chrono and at the July 2011 appointment, Dr. Grewal extended plaintiff’s cell
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feed chrono.
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Plaintiff fails to demonstrate that any genuine dispute precludes summary judgment in
favor of Dr. Grewal.
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Accordingly, IT IS HEREBY RECOMMENDED that defendant’s May 13, 2013 motion
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for summary judgment (ECF No. 30) be granted and the Clerk of the Court be directed to enter
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judgment and close this case.
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These findings and recommendations are 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 fourteen days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
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objections shall be served and filed within fourteen days after service of the objections. The
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parties are advised that failure to file objections within the specified time may waive the right to
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appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez
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v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: November 6, 2013.
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