McMurtry v. Hu, et al

Filing 63

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 12/23/2016 DENYING plaintiff's 56 request to continue; and RECOMMENDING defendants' 52 motion for summary judgment be granted and this action be dismissed. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLEY McMURTRY, 12 Plaintiff, 13 14 v. ORDER AND HU, et al., 15 No. 2:12-cv-00103 JAM DB P FINDINGS AND RECOMMENDATIONS Defendants. 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 17 18 action filed pursuant to 42 U.S.C. § 1983. This matter proceeds on plaintiff’s original complaint 19 against defendants Gebrezghi and Hu on Eighth Amendment claims. Pending before the court is 20 defendants’ August 21, 2015, motion for summary judgment, which plaintiff opposes. For the 21 reasons set forth below, the undersigned will recommend that defendants’ motion be granted. 22 I. Relevant Procedural Background 23 Plaintiff initiated this action on January 12, 2012. His complaint was screened on 24 December 20, 2012, and found to state Eighth Amendment claims against the defendant. Service 25 was ordered, and defendants filed an answer on July 24, 2013. On August 6, 2013, a discovery and scheduling order issued setting the discovery deadline 26 27 for November 22, 2013, and the dispositive motion deadline for February 14, 2014. (ECF No. 28 24.) 1 On February 10, 2014, defendants moved to dismiss for failure to exhaust administrative 2 remedies.1 (ECF No. 32.) In light of this motion, the dispositive motion deadline was extended to 3 45 days following ruling on defendants’ motion. (ECF No. 34.) 4 On July 9, 2015, defendants’ motion was denied (see ECF Nos. 49, 51), and the instant 5 motion for summary judgment soon followed. It is now fully briefed and ready for disposition. Also pending is plaintiff’s request to continue consideration of defendants’ motion for 6 7 summary judgment pending additional discovery. (ECF No. 56.) Defendants oppose this request. 8 (ECF No. 59.) 9 II. Plaintiff’s Allegations 10 Plaintiff alleges that defendants violated his rights under the Eighth Amendment while he 11 was incarcerated at California State Prison-Solano (“CSP-Solano”) by taking the following 12 actions: 13  On or about June 5, 2010, at a time when plaintiff was held in five-point restraints, 14 defendant Nurse Gebrezghi twice injected plaintiff with drugs. Plaintiff had informed 15 Nurse Gebrezghi of his phobia of needles; moreover, the drugs could have been orally 16 administered. (ECF No. 1 at 5, 7, 9.)  17 On or about June 9, 2010, plaintiff was placed in a safety cell (also known as a “rubber 18 room”). After plaintiff complained about a lack of ventilation in the safety cell, a 19 correctional officer placed a fan in front of the cell, which allowed air to enter through 20 a crack at the bottom of the cell door. Less than 30 minutes later, defendant Nurse Hu 21 stated to plaintiff, “We don’t like you! You don’t get a fan! Besides, other inmates 22 will beg for one too!” and removed the fan. Plaintiff’s nose started to bleed, and he 23 “suffered in extremely harsh conditions” for twenty-four hours before a correctional 24 officer placed the fan back in front of the cell. (Id. at 10.)  25 On or about June 11, 2010, Nurse Hu placed plaintiff’s arm in a restraint. When he 26 27 1 This motion was later converted to a motion for summary judgment pursuant to Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014). (See ECF No. 39.) 28 2 1 told her it was too tight, she replied, “I wish they [would] put you in a gas chamber so 2 I won’t have to bother with you anymore!” She then began to repeatedly express a 3 wish that she could kill plaintiff. (Id. at 11.) 4 III. Plaintiff moves for a continuance on defendant’s motion for summary judgment pursuant 5 6 Plaintiff’s Motion to Continue to Federal Rule of Civil Procedure “56(f)” pending additional discovery. The court construes plaintiff’s motion as one for relief pursuant to Federal Rule of Civil 7 8 Procedure 56(d).2 Under that rule, a party opposing a motion for summary judgment to request an 9 order deferring the time to respond to the motion and permitting that party to conduct additional 10 discovery upon an adequate factual showing. See Fed. R. Civ. P. 56(d) (requiring party making 11 such request to show “by affidavit or declaration that, for specified reasons, it cannot present facts 12 essential to justify its opposition.”). A Rule 56(d) affidavit must identify “the specific facts that 13 further discovery would reveal, and explain why those facts would preclude summary judgment.” 14 Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006). On such a 15 showing, “the court may: (1) defer considering the motion or deny it; (2) allow time to obtain 16 affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. 17 Civ. P. 56(d). 18 “Though the conduct of discovery is generally left to a district court’s discretion, 19 summary judgment is disfavored where relevant evidence remains to be discovered, particularly 20 in cases involving confined pro se plaintiffs.” Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir. 21 1988). Thus, summary judgment in the face of requests for additional discovery is appropriate 22 only where such discovery would be “fruitless” with respect to the proof of a viable claim.” Jones 23 v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004). “The burden is on the nonmoving party, however, to 24 show what material facts would be discovered that would preclude summary judgment.” 25 Klingele, 849 F.2d at 412; see also Conkle v. Jeong, 73 F.3d 909, 914 (9th Cir. 1995) (“The 26 2 27 28 Federal Rule of Civil Procedure 56(f) does not provide the relief that plaintiff seeks. Rather, it grants the court authority to enter judgment independent of the motion for a nonmovant, on grounds not raised by a party, or to consider summary judgment on its own after identifying for the parties material facts that may be genuinely in dispute. 3 1 burden is on the party seeking to conduct additional discovery to put forth sufficient facts to show 2 that the evidence sought exists.”). Moreover, “‘[t]he district court does not abuse its discretion by 3 denying further discovery if the movant has failed diligently to pursue discovery in the past.’” 4 Conkle, 73 F.3d at 914 (quoting California Union Ins. Co. v. American Diversified Sav. Bank, 5 914 F.2d 1271, 1278 (9th Cir. 1990). 6 Plaintiff has not met his burden under Rule 56(d). Plaintiff’s motion does not identify 7 which documents he seeks or how those documents would assist him in opposing defendants’ 8 motion. In his opposition to defendants’ motion, plaintiff claims that maintenance logs related to 9 the air conditioning unit and reports by an unidentified correctional officer purportedly a witness 10 to Nurse Hu’s conduct will help him defeat defendants’ motion. Plaintiff does not explain, 11 however, why these records were not and could not have been obtained through the normal 12 course of discovery, which ended three years ago. Conkle, 73 F.3d at 914. During that open 13 period of discovery, plaintiff filed a single motion to compel wherein he challenged the propriety 14 of defendants’ responses to his discovery requests. He failed, though, to identify which responses 15 were improper and why, and the motion was ultimately denied for this lack of specificity. (See 16 ECF No. 38.) Plaintiff’s motion here will therefore be denied for his failure to act diligently. 17 IV. 18 Undisputed Facts3 At all times relevant to this action, plaintiff was an inmate incarcerated at CSP-Solano. 19 Defendants are Registered Nurse (“RN”) S. Gebrezghi, the Supervising Registered Nurse II, and 20 RN K. Hu. Defs.’ Statement Undisputed Facts (“DSUF”) (ECF No. 52-3) ¶¶ 3-4. 21 A. CSP-Solano Mental Health Care Guidelines 22 The California Department of Corrections and Rehabilitation (“CDCR”) maintains 23 comprehensive medical and mental health records for every inmate in its custody, commonly 24 referred to as a Unit Health Record (“UHR”). DSUF ¶ 5. Encounters between institutional 25 medical and mental staff and inmate-patients are recorded and maintained in the UHR. Id. Staff 26 are trained to chart or document all inmate-patient interactions meticulously, no matter how 27 28 3 All facts are undisputed unless noted otherwise. 4 1 minor. Id. Mental health records are part of an inmate’s UHR, but are maintained separately from 2 medical or dental records. Id. 3 Inmates who are diagnosed with a serious mental illness are provided mental health 4 services through CDCR’s Mental Health Services Delivery System (“MHSDS”). DSUF ¶ 6. It is 5 designed to provide appropriate levels of treatment and to promote individual functioning within 6 the least-restrictive clinical environment, consistent with the safety and security needs of the 7 inmate-patient and the institution. Id. Mental health care is provided by a variety of mental health 8 professionals, including Clinical Social Workers, Psychologists, and Psychiatrists. Id. 9 The most restrictive level of mental health care within a CDCR institution is a Mental 10 Health Crisis Bed (“MHCB”). DSUF ¶ 7. The MHCB provides short-term (ordinarily ten days or 11 less) inpatient treatment to inmate-patients who exhibit significant impairment and dysfunction, 12 require 24-hour nursing care, and present a danger to themselves or others. MHCB inmates are 13 monitored daily by their primary clinician. Id. They meet with their Interdisciplinary Treatment 14 Team (“IDTT”) at least once a week, are evaluated by a psychiatrist at least twice a week, and 15 receive 24-hour nursing care and intensive therapy and rehabilitation as needed. Id. 16 In the clinical judgment of a physician that an emergency situation exists, medication may 17 be forcibly administered to an inmate-patient over the inmate-patient’s objection. DSUF ¶ 8. An 18 emergency exists when there is a sudden, marked change in an inmate-patient’s condition so that 19 action is immediately necessary for the preservation of life, to prevent serious bodily harm to the 20 inmate or others, and it is impracticable to first obtain consent. Id. In such circumstances, only 21 medication that is required to treat the emergency condition is provided, and in ways that are least 22 restrictive of the personal liberty of the inmate.4 Id. 23 When staff discovers inmates harming themselves, medical assistance is summoned 24 4 25 26 27 28 Plaintiff disputes many of defendants’ medical and administrative facts with citation to only his own statements. Since plaintiff is not qualified as an expert witness and in the absence of any evidentiary basis for these objections, they will be disregarded. See Fed. R. Evid. 702. Plaintiff also disputes other ancillary facts that are immaterial to the resolution of the instant motion. Those disputes will be noted but ultimately disregarded. Lastly, plaintiff raises disputes that concern the conduct of non-parties and/or the conduct of the defendants that were found to not state a claim per the December 20, 2012, Screening Order; these, too, will be disregarded. 5 1 immediately to provide emergency medical care. DSUF ¶ 9. These events are taken very seriously 2 and are considered emergency situations. Id. Nursing staff are expected to carry out orders from 3 physicians during emergency situations. Id. ¶ 10. 4 Staff members are trained to monitor and record any changes in an inmate-patient’s 5 environment that may pose a risk to their health or well-being. DSUF ¶ 11. This includes the cell 6 temperature and any non-functioning equipment. Id. 7 The CSP-Solano Correctional Treatment Center (“CTC”) is cooled by a centralized air 8 conditioning system that blows cool air throughout the building. DSUF ¶ 12. Staff members 9 regularly check and record cell temperatures. Id. If equipment is not properly working, or a cell is 10 unsafe to house an inmate-patient, staff members may “redline” that cell. Id. This process consists 11 of notifying custody staff and building maintenance officials that a cell is not available to house 12 an inmate. Id. The inmate-patient is then escorted out of their cell to another cell that is in proper 13 condition. Id. 14 When an inmate is restrained, CDCR nurses are trained to monitor each extremity every 15 fifteen minutes in order to ensure adequate circulation. DSUF ¶ 13. A registered nurse also 16 conducts hourly assessments of the inmate-patient during the entire period of restraint. Id. The 17 hourly assessments document current physical, mental, and behavioral status of the inmate- 18 patient, any indicated interventions performed, and the inmate-patient’s readiness for release from 19 restraints. Id. The assessment also includes an overall summary of the inmate-patient’s physical 20 condition, general behavior, and response to counseling / interviews. Id. 21 Safety cells are those that are designed to be free from hazardous objects or fixtures; have 22 adequate light and ventilation; are maintained at an appropriate temperature; have secure, 23 lockable doors; and have windows that permit visual observation of the inmate-patient by staff. 24 DSUF ¶ 14. Plaintiff’s Relevant Mental Health History 25 B. 26 Plaintiff was housed at MCHB in the CSP-Solano CTC between June 3 and 13, 2010, 27 because he had suicidal and homicidal ideations. DSUF ¶¶ 15-16. Dr. Obegi, who participated as 28 a member of plaintiff’s IDTT, provided mental health treatment for plaintiff during his stay at the 6 1 CTC. Id. 2 Dr. Obegi evaluated plaintiff and conducted his CTC intake assessment on June 3, 2010, 3 at approximately 2:30 p.m. DSUF ¶ 16. He documented plaintiff’s mental illness as Mood 4 Disorder Not Otherwise Specified (“NOS”), which is a type of disorder that has features of other 5 mental disorders but does not squarely fit into a single discrete category. Id. ¶ 17. Dr. Obegi also 6 documented that plaintiff had features of borderline personality disorder and a sense of 7 entitlement. Id. 8 Features of borderline personality disorder include pervasive patterns of instability 9 of interpersonal relationships, self-image, and marked impulsivity. DSUF ¶ 18. Individuals with 10 this condition may be very sensitive to environmental circumstances. Id. They may also 11 experience intense abandonment fears and inappropriate anger. Id. 12 Individuals with borderline personality disorder may have a pattern of unstable and 13 intense relationships. They may idealize potential caregivers, but they may also switch quickly 14 from idealizing other people to devaluing them, and feeling that the other person does not care 15 enough or does not give enough. Id. These individuals are prone to sudden and dramatic shifts in 16 their view of others, who may alternatively be seen as beneficent supports or as cruelly punitive. 17 Id. Persons with this disorder may express inappropriate and intense anger or have difficulty 18 controlling their anger. Id. 19 Persons with this disorder may also display reoccurring impulsive acts of self-damaging 20 and self-injurious behavior (such as cutting or burning themselves) that frequently include an 21 intent to die. DSUF ¶ 19. Suicide attempts and threats from individuals with borderline 22 personality disorder are very common. DSUF ¶ 20. Plaintiff’s exhibition of these features was documented during his stay at the CSP- 23 24 Solano CTC. DSUF ¶ 21. These features materialized during his episodes of intense anger at 25 nursing staff, apparently triggered by perceived slights, followed by periods of relative calm. Id. 26 They were also demonstrated by his impulsive self-injurious behavior and his report of recent 27 preparations to kill himself, as well as his threats to harm staff. Id. 28 //// 7 1 C. 2 During the evening of June 4, 2010, nursing staff observed plaintiff attempting to use the Events Involving Nurse Gebrezghi 3 edge of a plastic container to cut his right forearm. DSUF ¶ 22. A nurse asked him to stop and 4 called for help. Id. ¶ 23. Plaintiff did stop but then covered his upper body and arm with a 5 blanket. Id. ¶ 24. Nursing staff then asked plaintiff to cooperate and submit to handcuffs so he 6 could be safely brought out of his cell. Id. ¶ 25. Plaintiff refused and instead placed his mattress 7 against the cell door, covering it so staff could not see into the cell. Id. ¶ 26. The Watch 8 Commander and Sergeant approached plaintiff’s cell and convinced him to remove the mattress 9 and comply with being handcuffed. Id. ¶ 27. Plaintiff was then escorted out of his cell to receive 10 11 treatment. Id. Within minutes, Dr. Kumar, a Staff Psychiatrist, ordered plaintiff to be secured in five- 12 point restraints for four hours to prevent plaintiff from inflicting further self-harm or from 13 harming others. DSUF ¶ 28. Dr. Kumar ordered nursing checks to be conducted every fifteen 14 minutes. Id. Dr. Kumar also ordered that the restraints could be gradually loosened if plaintiff 15 agreed not to harm himself. Id. Dr. Kumar noted that plaintiff had a history of poor impulse 16 control. Id. Dr. Kumar then ordered staff to follow all nursing protocols relative to plaintiff’s 17 medications, fluids, toileting, range of motion, and vital signs. Id. 18 The medical notes indicate that plaintiff cooperated but with hesitation and visible anger, 19 saying, “do not give me a shot.” DSUF ¶¶ 29-30. Nursing staff asked plaintiff to cooperate and 20 submit himself to a restraint bed, which plaintiff did with slight resistance. Id. ¶ 31. Plaintiff 21 threatened to harm any nursing staff who tried to give him an injection; he was loud and 22 argumentative. Id. ¶ 33. After plaintiff was secured in restraints, he tried to release himself. Id. ¶ 23 34. He then appeared angry, volatile, had an intense look, and had veins popping out of his neck 24 and arm. Id. ¶ 35. Plaintiff continued to say that if he was given a shot he would hurt staff. Id. 25 During this time, Dr. Kumar ordered 20 mg of Geodon, an antipsychotic medication, and 26 20 mg of Ativan, a sedative, to be administered by intramuscular injection. DSUF ¶ 36. Around 27 7:20 p.m., Dr. Kumar came to plaintiff with the Watch Commander, talked to him, and discussed 28 his situation. Id. ¶ 37. Defendants contend that plaintiff agreed to be given an injection but 8 1 wanted another nurse to administer it. Id. ¶ 38. Plaintiff has no recollection of agreeing to an 2 injection; instead, he was screaming and crying not to be injected. Pl.’s Resp. to DSUF ¶ 38 (ECF 3 No. 57). Around this time, Defendant Nurse Gebrezghi appeared and administered Dr. Kumar’s 4 5 ordered injections into plaintiff’s left thigh. DSUF ¶ 39. This is the only instance in which Nurse 6 Gebrezghi administered an involuntary intramuscular injection for plaintiff during his stay at the 7 CSP-Solano CTC between June 3 and 13, 2010. Id. ¶ 40. Plaintiff claims Nurse Gebrezghi 8 administered this shot in retaliation for his threats to staff. Pl.’s Resp. to DSUF ¶ 41. 9 Dr. Kumar’s decision to order intramuscular administration of Geodon and Ativan was 10 reasonable and clinically indicated under the circumstances.5 DSUF ¶ 41. Plaintiff was required 11 to submit to five-point restraints in order to prevent him from harming himself or others. Id. He 12 also had recently been observed cutting his arm with a plastic container and was unpredictable. 13 Id. Releasing plaintiff from the restraints to take medication orally would have exposed staff and 14 plaintiff to risk of harm in light of his visible anger and threats to harm staff. Id. The emergency 15 nature of the circumstances made it reasonable for plaintiff to be administered the injections 16 intramuscularly. Id. 17 D. Events Involving Nurse Hu 18 On June 9, 2010, Dr. Shamasundara, a psychiatrist, ordered plaintiff to be placed in a 19 safety cell around 2:45 p.m. DSUF ¶ 42. One-on-one suicide watch was ordered, with checks to 20 be conducted every fifteen minutes. Id. This order was renewed by the attending psychiatrist 21 around every four hours until June 11, 2010, at 2:00 a.m., when plaintiff was again placed in five- 22 point restraints for exhibiting destructive behavior. Id. Following is a timeline of events beginning on June 9, 2010, at 2:45 p.m., when plaintiff’s 23 24 safety cell temperature measured 72 degrees. DSUF ¶ 44. At that time, plaintiff was sitting up 25 against the door, covered in his blanket. Id. He responded to staff, but refused to remove the 26 5 27 28 Plaintiff disputes that these injections were reasonable and necessary, but he fails to submit any evidence beyond his own statements. See Pl.’s Resp. to DSUF ¶ 41. Since plaintiff is not qualified as an expert witness, there is no dispute as to the reasonableness and necessity of these injections. 9 1 blanket from his head. Id. He was not exhibiting behavior indicating he would inflict self-harm. 2 Id. At 5:00 p.m., plaintiff was provided a meal, which he ate. Id. ¶ 45. At 5:20 p.m., he used toilet 3 paper to cover his cell door window and refused to take it down. Id. ¶ 46. He also began swinging 4 his blanket and hitting a camera in the cell. Id. At 5:30 p.m., plaintiff was escorted out of the 5 safety cell and placed in another cell. Id. ¶ 47. He was seen by a psychologist at 5:50 p.m. and 6 returned to the safety cell at 6:30 p.m. Id. 7 8 From 7:30 p.m. on June 9, 2010, until 3:00 a.m. on June 10, 2010, plaintiff was quiet, and appeared to be asleep. DSUF ¶ 48. His cell temperature was between 72 and 73 degrees. Id. 9 On June 10, 2010, at around 3:00 a.m., plaintiff asked for pain medications for his 10 arthritis, and he fell asleep again at 6:00 a.m. DSUF ¶ 49. At 7:00 a.m., plaintiff told nursing 11 staff that he was not suicidal, denied having hallucinations, and promised that he would not 12 hurt anybody that day. Id. ¶ 50. He spoke with staff about returning a tray. Id. His cell 13 temperature was around 73 degrees. Id. 14 From 9:00 a.m., until 2:05 p.m., plaintiff’s cell temperature was between 72 and 75 15 degrees. DSUF ¶ 51. Defendants claim plaintiff exhibited no signs of being in distress during this 16 time, but plaintiff claims the air conditioning was not working properly and he fainted from 17 lightheadedness due to the lack of ventilation. Id.; Pl.’s Resp. to DSUF ¶ 51. Plaintiff fell asleep 18 from around 2:05 p.m. until around 4:35 p.m. DSUF ¶ 51. 19 At 4:35 p.m., plaintiff was observed with a tissue containing a small amount of blood in 20 his hand. DSUF ¶ 52. Plaintiff attributed the blood to poor air circulation in his cell, and claimed 21 the bleeding stopped after he blew his nose twice. Id. Nursing notes reflect a portable fan was 22 provided at the door of plaintiff’s cell. Id. Plaintiff voiced concern about the air conditioning, 23 claiming it provided him “psychological support.” Id. Plaintiff was offered fluids but he declined 24 to drink them. Id. 25 At 5:00 p.m., plaintiff was standing by his door and calm. DSUF ¶ 53. His cell 26 temperature measured 74 degrees. Id. At 5:36 p.m., plaintiff was still standing by the door. Id. ¶ 27 54. He claimed that he coughed up red blood. Id. He was seen by Dr. Rallos, a medical doctor, 28 two minutes later at 5:38 p.m. Id. By 6:00 p.m., the observing nurse noted there was no active 10 1 bleeding. Id. ¶ 55. Plaintiff was sitting up, talking, and was given medications orally. Id. He 2 continued to be upset about the air conditioning. Id. 3 At 6:10 p.m., another portable fan was placed at his door, and more fluids were offered. 4 DSUF ¶ 56. Plaintiff then stuck his arms out his cell door food port and refused for it to be 5 closed; plaintiff claims he did this to complain about the lack of air conditioning. Id.; Pl.’s Obj. 6 DSUF ¶ 11. Custody staff arrived to talk to plaintiff, and he continued to bang on the cell door. 7 DSUF ¶ 56. Plaintiff spoke with Dr. Obegi at around 6:37 p.m. DSUF ¶ 57. 8 9 At 7:00 p.m., plaintiff was yelling intermittently, and he had his arm stuck through the food port. DSUF ¶ 58. Correctional Sergeant responded and ordered plaintiff to remove his arm 10 from the food port and put it back in his cell. Id. ¶ 58. Around this same time, nursing staff 11 reported air conditioning was back in working condition. Id. Plaintiff was cooperative, talking, 12 and smiling for the next several hours. Id. ¶ 59. At 10:00 p.m., plaintiff’s cell temperature measured 75 degrees. DSUF ¶ 60. Plaintiff was 13 14 smiling and pleasant. Id. At 1:00 a.m., on June 11, 2010, plaintiff’s cell temperature measured 15 74.5 degrees. Id. ¶ 61. 16 At around 2:50 a.m. on June 11, 2010, plaintiff began peeling rubber off his safety cell 17 walls, biting the wall, putting paper in his mouth, and complaining that he did not get pain 18 medications when he asked for them. DSUF ¶ 62. He became very angry and alleged staff was 19 trying to punish him. Id. The observing nurse apologized to plaintiff and offered him his pain 20 medications, but plaintiff refused to take them. Id. Plaintiff’s psychiatrist was apprised of the 21 situation and ordered plaintiff to return to five-point restraints because he was exhibiting self- 22 harming behavior. Id. At 3:00 a.m., plaintiff apologized for getting upset. Id. ¶ 63. His cell 23 temperature measured 73 degrees. Id. No noteworthy interactions occurred until around 6:00 a.m. 24 Id. 25 At 6:00 a.m., plaintiff was asked by a different staff member how he was doing and why 26 he was back in restraints. DSUF ¶ 64. Plaintiff did not saying anything but looked angrily at the 27 staff member. Id. He did not respond to questions, closed his eyes, and ignored staff. Id. His 28 circulation was checked and was normal. Id. Staff did not release plaintiff to check his range of 11 1 2 motion due to the unpredictability of his anger toward staff. Id. At 7:20 a.m., the nurse’s notes indicate that plaintiff was observed glaring menacingly at 3 them. DSUF ¶ 65. Plaintiff appeared to be sleeping from 8:00 a.m. until 11:00 a.m. Id. ¶ 66. At 4 11:00 a.m., plaintiff refused to answer when asked whether he was suicidal. Id. ¶ 67. He closed 5 his eyes and ignored staff. Id. At noon, plaintiff had his eyes closed, but was able to move from 6 side to side. DSUF ¶ 68. He was not forthcoming when asked about whether he was suicidal. Id. 7 He had an angry tone in his voice, was visibly angry, and claimed nurses were retaliating against 8 him. Id. 9 At 1:00 p.m., restraints were removed on each of plaintiff’s four limbs, one at a time for 10 fifteen minutes each, so that staff could check his range of motion. DSUF ¶ 69. Plaintiff was 11 angry and complained that staff did not immediately respond to his pain. Id. He had a fierce look 12 in his eyes, was unpredictable, and had veins popping out of his neck when he was talking. Id. 13 Nurse Hu worked with plaintiff beginning at 2:20 p.m. on June 11, 2010; his cell 14 temperature measured 72 degrees at this time. DSUF ¶ 71. Nurse Hu observed plaintiff was lying 15 on his back and did not appear to be in distress. Id. His breathing was even and he did not 16 complain of pain or numbness. Id. Plaintiff had good circulation to each of his extremities. Id. 17 Plaintiff claims that Nurse Hu entered his cell, cursed at him, and was forced to leave by a 18 correctional officer. Pl.’s Resp. to DSUF ¶ 71. 19 At 3:20 p.m., plaintiff’s cell temperature measured 72 degrees. DSUF ¶ 72. Nurse Hu 20 conducted range of motion exercises, and she observed that plaintiff did not appear to have any 21 objective injuries. Id. Plaintiff disputes this fact, claiming that he complained of numbness in his 22 extremities due to the tight restraints. Pl.’s Resp. to DSUF ¶ 72. 23 At 4:20 p.m., the nursing notes indicate that plaintiff accused Nurse Hu of wanting to hurt 24 him and/or wanting for him to commit suicide. DSUF ¶ 73. He also asked Nurse Hu to give him a 25 razor so that he can kill himself. Id. He did not appear to have any physical injuries. Id. 26 At 5:30 p.m., plaintiff was making excuses to have his restraints removed. DSUF ¶ 74. 27 When Nurse Hu removed the restraints for range of motion exercises, plaintiff was very resistant 28 to have them put back on. Id. 12 1 At 6:30 p.m., plaintiff was very upset and angry. DSUF ¶ 75. He accused Nurse Hu of 2 saying he was sent to the gas chamber and asserted that he would file a grievance. Id. He was also 3 very upset with Nurse Hu when she reapplied the restraints after checking the range of motion in 4 his extremities. Id. At 7:30 p.m., another nurse took over Nurse Hu’s duties for checking on plaintiff. DSUF ¶ 5 6 76. This nurse’s notes are lengthy, noting that plaintiff was unpredictable and angry; at no point 7 in these notes is there a notation that plaintiff complained of restraints being placed too tightly. 8 See id. 9 When Nurse Hu returned at 9:30 p.m., the cell temperature measured 73 degrees. DSUF ¶ 10 77. At 9:35 p.m., Nurse Hu was informed that plaintiff said he was going to get out of his 11 restraints and hurt somebody. Id. ¶ 78. She documented this information. Id. 12 At 10:30 p.m., plaintiff complained of neck pain and was provided Tylenol. DSUF 13 ¶ 79. He did not appear to have any injuries. Id. Nurse Hu’s interactions with plaintiff then ended. 14 Id. 15 During the period Nurse Hu observed plaintiff in restraints, he was monitored every 16 fifteen minutes by Licensed Vocational Nurses, and checked on hourly by Nurse Hu. DSUF ¶ 80. 17 His vital statistics were also checked every shift change. Id. Plaintiff’s circulation and respiration 18 was normal throughout the entire period in which he was restrained on June 11, 2010. Id. It is Nurse Hu’s custom and practice when applying restraints to allow three fingers 19 20 to be placed between the inmate-patient and the restraints. DSUF ¶ 70. That way the inmate’s 21 circulation will not be restricted. Id. Plaintiff disputes this statement and claims that Nurse Hu 22 repeatedly tightened the restraints on his limbs while cursing and threatening him. Pl.’s Resp. to 23 DSUF ¶ 70. Nurse Hu does not recall removing a fan from the plaintiff’s cell door at any time. DSUF 24 25 26 ¶ 43. Plaintiff disputes many of the above facts relating to Nurse Hu. Instead, he claims that 27 Nurse Hu repeatedly tightened plaintiff’s restraints while cursing and threatening him; that a 28 correctional officer witnessed this conduct and reported it to his supervisor; that this correctional 13 1 officer forced Nurse Hu to leave plaintiff’s cell; and that this officer’s report will be a “smoking 2 gun” in this case. Though plaintiff claims further discovery is necessary to locate the identity of 3 this correctional officer and his report, this request will be denied for the reasons discussed supra. 4 Plaintiff submits no other evidence in support of his claims. 5 V. Legal Standards 6 Summary judgment is appropriate when the moving party “shows that there is no genuine 7 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 8 Civ. P. 56(a). 9 Under summary judgment practice, “[t]he moving party initially bears the burden of 10 proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 11 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving 12 party may accomplish this by “citing to particular parts of materials in the record, including 13 depositions, documents, electronically stored information, affidavits or declarations, stipulations 14 (including those made for purposes of the motion only), admission, interrogatory answers, or 15 other materials” or by showing that such materials “do not establish the absence or presence of a 16 genuine dispute, or that the adverse party cannot produce admissible evidence to support the 17 fact.” Fed. R. Civ. P. 56(c)(1). “Where the non-moving party bears the burden of proof at trial, 18 the moving party need only prove that there is an absence of evidence to support the non-moving 19 party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. 20 Civ. P. 56(c)(1)(B). Indeed, summary judgment should be entered, “after adequate time for 21 discovery and upon motion, against a party who fails to make a showing sufficient to establish the 22 existence of an element essential to that party’s case, and on which that party will bear the burden 23 of proof at trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an 24 essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” 25 Id. at 323. Summary judgment should be granted, “so long as whatever is before the district court 26 demonstrates that the standard for entry of summary judgment . . . is satisfied.” Id. at 323. 27 28 If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 14 1 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the 2 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 3 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 4 admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ. P. 5 56(c)(1); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in 6 contention is material, i.e., a fact “that might affect the outcome of the suit under the governing 7 law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific 8 Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., 9 “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” 10 Anderson, 447 U.S. at 248. 11 In the endeavor to establish the existence of a factual dispute, the opposing party need not 12 establish a material issue of fact conclusively in its favor. It is sufficient that “‘the claimed 13 factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the 14 truth at trial.’” T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat’l Bank v. Cities Serv. Co., 15 391 U.S. 253, 288-89 (1968). Thus, the “purpose of summary judgment is to pierce the pleadings 16 and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita, 475 17 U.S. at 587 (citation and internal quotation marks omitted). “In evaluating the evidence to determine whether there is a genuine issue of fact, [the 18 19 court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls 20 v. Central Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is 21 the opposing party’s obligation to produce a factual predicate from which the inference may be 22 drawn. Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to 23 demonstrate a genuine issue, the opposing party “must do more than simply show that there is 24 some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations 25 omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the 26 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank, 391 27 U.S. at 289). 28 ////]= 15 1 VI. Discussion 2 A. 3 Plaintiff’s claim against Nurse Gebrezghi is premised on her administration of two 4 intramuscular injections on June 4, 2010. Plaintiff contends this was deliberately indifferent to his 5 medical needs. 6 Nurse Gebrezghi Deliberate indifference to a prisoner's serious illness or injury, or risks of serious injury or 7 illness, gives rise to a claim under the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 8 105 (1976); see also Farmer v. Brennan, 511 U.S. 825, 837 (1994). This applies to physical as 9 well as dental and mental health needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 10 1982). An injury or illness is sufficiently serious if the failure to treat a prisoner's condition could 11 result in further significant injury or the “...unnecessary and wanton infliction of pain.” McGuckin 12 v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 13 546 (9th Cir. 1994). Factors indicating seriousness are: (1) whether a reasonable doctor would 14 think that the condition is worthy of comment; (2) whether the condition significantly impacts the 15 prisoner's daily activities; and (3) whether the condition is chronic and accompanied by 16 substantial pain. See Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc). 17 The requirement of deliberate indifference is less stringent in medical needs cases than in 18 other Eighth Amendment contexts because the responsibility to provide inmates with medical 19 care does not generally conflict with competing penological concerns. See McGuckin, 974 F.2d at 20 1060. Thus, deference need not be given to the judgment of prison officials as to decisions 21 concerning medical needs. See Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989). The 22 complete denial of medical attention may constitute deliberate indifference. See Toussaint v. 23 McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). 24 Construing the facts in plaintiff’s favor, as the court must, the evidence establishes that 25 Nurse Gebrezghi administered two intramuscular injections at the direction of Dr. Kumar and 26 over plaintiff’s objections. Dr. Kumar submits that administering the medication in this manner 27 was reasonable and clinically indicated under the circumstances, which were extensively 28 documented at the time and included plaintiff’s attempt to self-harm, his loud and argumentative 16 1 behavior, his threats to nursing staff, and the physical manifestations of his anger (veins popping 2 out of his neck and arms). While the injections were administered over plaintiff’s objections, 3 which will be assumed to have caused psychological harm, there is simply no evidence that Nurse 4 Gebrezghi acted with a sufficiently culpable state of mind. Based on this evidence, the 5 undersigned concludes that no reasonable trier of fact would find that Nurse Gebrezghi violated 6 plaintiff’s Eighth Amendment right to be free from excessive force. 7 Insofar as plaintiff’s claim can construed as one involving the involuntary administration 8 of medication, inmates have a substantial liberty interest, grounded in the Due Process Clause, in 9 avoiding the involuntary administration of antipsychotic medication. See Washington v. Harper, 10 494 U.S. 210, 221-22 (1990) (holding that prisoners possess “a significant liberty interest in 11 avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the 12 Fourteenth Amendment”). “[T]he Due Process Clause permits the State to treat a prison inmate 13 who has a serious mental illness with antipsychotic drugs against his will, if the inmate is 14 dangerous to himself or others and the treatment is in the inmate’s medical interest.” Id. at 227. 15 As noted, the evidence here demonstrates that plaintiff was both a danger to himself and to others. 16 Notably, plaintiff admits that he did not oppose the medication per se, only its intramuscular 17 administration. Fed. R. Civ. P. 56(f)(2). 18 And finally, to the extent plaintiff claims that Nurse Gebrezghi injected him in retaliation 19 for his threats against the nurses, he submits no evidence that she was present during or otherwise 20 aware of these threats, that her conduct was motivated by anything other than an order from Dr. 21 Kumar, or that the injections did not advance a legitimate correctional goal of subduing plaintiff 22 under the circumstances presented. See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 23 2005) (“Within the prison context, a viable claim of First Amendment retaliation entails five basic 24 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 25 because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's 26 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 27 correctional goal.”) 28 For these reasons, summary judgment should be entered for this defendant. 17 1 B. 2 Plaintiff’s claim against Nurse Hu is premised on her alleged removal of a fan from under Nurse Hu 3 plaintiff’s door on June 9, 2010, with malicious intent. This caused plaintiff’s nose to bleed and 4 him to suffer under harsh conditions for twenty-four hours before another fan was placed in front 5 of his cell. 6 “The Eighth Amendment’s prohibition against cruel and unusual punishment protects 7 prisoners not only from inhumane methods of punishment but also from inhumane conditions of 8 confinement.” Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer, 511 9 U.S. at 847, and Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Although conditions of 10 confinement may be, and often are, restrictive and harsh, they “must not involve the wanton and 11 unnecessary infliction of pain.” Rhodes, 452 U.S. at 347. 12 An Eighth Amendment claim challenging conditions of confinement must satisfy both 13 objective and subjective criteria. Wilson v. Seiter, 501 U.S. 294, 298 (1991). First, the deprivation 14 must be sufficiently serious to implicate the Constitution. Id. The conditions of a prisoner’s 15 confinement amount to cruel and unusual punishment only if he has been deprived of the 16 “minimal civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347. Second, prison 17 officials are liable for the deprivation only if they acted with deliberate indifference to a 18 substantial risk of serious harm. Farmer, 511 U.S. at 828. The official must know of and disregard 19 an excessive risk to inmate health or safety; she must have been aware of facts from which the 20 inference could be drawn that a substantial risk of serious harm existed, and must actually have 21 drawn the inference. Id. at 837. 22 Nurse Hu is entitled to summary judgment on this claim because plaintiff has not satisfied 23 the objective element of his Eighth Amendment conditions of confinement claim. Setting aside 24 the fact that the nursing notes demonstrate that Nurse Hu’s first interaction with plaintiff occurred 25 on June 11, 2010, two days after plaintiff claims she removed the fan, the records reveal that 26 plaintiff’s cell temperature never rose over 75-degrees even in the absence of a fan and air 27 conditioning. This moderate temperature does not support plaintiff’s claim that he suffered under 28 “extremely harsh conditions” as a result of Nurse Hu’s conduct. Even if plaintiff can establish 18 1 deliberate indifference, his placement in a cell for 24 hours with a temperature never exceeding 2 75 degrees is not, objectively speaking, sufficiently serious to implicate the Constitution. Only 3 those deprivations denying the minimal civilized measure of life’s necessities are sufficiently 4 grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 503 U.S. 1, 9 5 (1992) (citations and quotations omitted); see also Graves v. Arpaio, 623 F.3d 1043, 1049 (9th 6 Cir. 2010) (per curiam) (noting the Eighth Amendment requires adequate heating, but not 7 necessarily a “comfortable” temperature). Summary judgment should therefore be entered for 8 Nurse Hu. 9 Plaintiff’s excessive force claim against Nurse Hu is premised on the latter’s placement of 10 a tight restraint on plaintiff’s hand on June 11, 2010, and her refusal to loosen it after plaintiff 11 complained. When determining whether the force was excessive, the court looks to the “extent of 12 the injury suffered by an inmate . . . , the need for application of force, the relationship between 13 that need and the amount of force used, the threat ‘reasonably perceived by the responsible 14 officials,’ and ‘any efforts made to temper the severity of a forceful response.’” Hudson, 503 U.S. 15 at 7 (citing Whitley, 475 U.S. at 321). While de minimis uses of physical force generally do not 16 implicate the Eighth Amendment, significant injury need not be evident in the context of an 17 excessive force claim, because “[w]hen prison officials maliciously and sadistically use force to 18 cause harm, contemporary standards of decency always are violated.” Hudson, 503 U.S. at 9 19 (citing Whitley, 475 U.S. at 327). 20 The extent of injury suffered by the plaintiff may indicate the amount of force applied. 21 Wilkins v. Gaddy, 559 U.S. 34, 37 (2010). “[N]ot ‘every malevolent touch by a prison guard 22 gives rise to a federal cause of action.’” Id. (quoting Hudson, 503 U.S. at 9). 23 24 25 26 27 The Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind. An inmate who complains of a ‘push or shove’ that causes no discernible injury almost certainly fails to state a valid excessive force claim. Injury and force, however, are only imperfectly correlated, and it is the latter that ultimately counts.” 28 19 1 Wilkins, 559 U.S. at 37-38 (internal citations and some internal quotation marks omitted). 2 Nurse Hu denies having placed the restraints too tightly and asserts that it is her practice 3 to allow three fingers to be placed between the inmate-patient and the restraints so that circulation 4 will not be restricted. Assuming arguendo that Nurse Hu did place the restraints on plaintiff 5 tightly, there is no evidence of plaintiff’s complaints of pain or injury to Nurse Hu or any other 6 staff member. There is also no evidence of any physical injury to plaintiff, such as bruising, 7 swelling or abrasion. Instead, the evidence demonstrates that plaintiff repeatedly frustrated 8 nursing staff’s efforts to place the restraints on him, both before and after Nurse Hu’s shift; that 9 he was combative, uncooperative, unpredictable, threatening, and violent; and that numerous 10 times the range of motion exercises were not performed by Nurse Hu or other nursing staff 11 because of plaintiff’s conduct. There is also evidence from defendants’ expert, who opines that 12 plaintiff’s complaints can be attributed to his borderline personality disorder because individuals 13 exhibiting that condition believe others do not care about them enough or even want to punish 14 them. DSUF ¶ 81. On the facts presented then, the undersigned concludes that no reasonable trier 15 of fact would find that the force applied by Nurse Hu was anything more than de minimis and of 16 minimal duration. Thus, summary judgment should be entered for Nurse Hu. Based on the foregoing, the undersigned will recommend that defendants’ motion for 17 18 summary judgment granted. In light of this recommendation, the court declines to consider 19 defendants’ alternate argument that they are entitled to qualified immunity. 20 IV. 21 22 23 24 Conclusion Accordingly, IT IS HEREBY ORDERED that plaintiff’s request to continue (ECF No. 56) is DENIED; and IT IS HEREBY RECOMMENDED that defendants’ motion for summary judgment be granted and this action be dismissed. 25 These findings and recommendations are submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 27 after being served with these findings and recommendations, any party may file written 28 objections with the court and serve a copy on all parties. Such a document should be captioned 20 1 “Objections to Magistrate Judge’s Findings and Recommendations.” 2 Any reply to the objections shall be served and filed within fourteen days after service of 3 the objections. Failure to file objections within the specified time may waive the right to appeal 4 the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 5 951 F.2d 1153 (9th Cir. 1991). 6 Dated: December 23, 2016 7 8 9 10 11 /DLB7 DB/Inbox/Substantive/mcmu0103.msj 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21

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