Rood v. Swarthout, et al.

Filing 88

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 10/29/21 RECOMMENDING that moving defendants' motion for summary judgment 77 be granted. Judgment be entered as a matter of law in favor of defendants Tan, Fontillas, Hardman, Win and Braunger ("Carlson"); and non-moving defendants Hannies, Kiesz and Herhst be dismissed pursuant to FRCP 4(m) for failure to effect timely service of process. Motion 77 referred to Judge John A. Mendez. Objections due within 14 days.(Plummer, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

RICHARD V. ROOD,

12
13
14

No. 2:13-CV-0478-JAM-DMC-P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

WIN, et al.,

15

Defendants.

16
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

17
18

42 U.S.C. § 1983. Pending before the Court are Defendants’ motion for summary judgment, ECF

19

No. 77, Plaintiff’s opposition, ECF No. 86, and Defendants’ reply, ECF No. 87. The undersigned

20

recommends Defendants’ motion for summary judgment be granted.

21
I. BACKGROUND

22
23

A.

Plaintiff’s Allegations

24

Plaintiff named 46 defendants in his first amended complaint. See ECF No. 33,

25

pgs. 1-17. The Court narrowed this list down to eight: (1) S. Hannies; (2) Richard Tan; (3) E.

26

Fontillas; (4) F. Hardman; (5) Khin Win; (6) Kiesz; (7) J. Herhst; and (8) C. Braunger

27

(“Carlson”). See ECF No. 45. Defendants Win, Tan, Fontillas, Carlson, and Hardman move for

28

summary judgment. See ECF 77, pg. 1. Therefore, the undersigned will direct the analysis
1

1

towards Defendants Tan, Fontillas, Hardman, Win, and Carlson only and will not address

2

Plaintiff’s claims against Defendants Hannies, Kiesz, and Herhst.1

3

Plaintiff alleges Eighth Amendment claims against each of the five moving

4

Defendant (Defendant’s Win, Tan, Fontillas, Carlson, and Hardman). See ECF No. 33, pgs. 1-17.

5

Plaintiff contends that while housed at the Shasta County Jail Dr. Craig diagnosed him with

6

having an ACL tear in his right knee and LDD of his L3 and L6 vertebrae. See id. at 3. Plaintiff

7

was informed he would have to wait until he arrived at his permanent housing facility before

8

receiving treatment. See id. at 3-4. Plaintiff claims the Defendants ignored Dr. Craig’s diagnosis,

9

dismissed Plaintiff’s medical complaints, and blocked Plaintiff’s access to medical personnel, and

10

that their actions amount to deliberate indifference to a serious medical injury in violation of the

11

Eighth Amendment. See id. at 3-15.

12

1.

13

Plaintiff’s Allegations Against Each Moving Defendant
a.

Defendant Tan

14

Plaintiff states the following concerning Defendant Tan:

15

On December 21, 2010, Defendant R. Tan, M.D., reviewed
Plaintiff’s CDCR 7277 . . . and noted plaintiff’s complaint of a serious
medical need, and HISTORY OF AN ACL TEAR IN THE RIGHT
KNEE, and that NO MEDICAL REFERRALS were being made regarding
plaintiff’s complaint of a serious medical need. Defendant Tan also
reviewed plaintiff’s CDCR 7371 Health Care Transfer Information form,
which was completed by medical personnel at HDSP, and
DOCUMENTED PLAINTIFF’S PREVIOUSLY DIAGNOSED
SERIOUS MEDICAL COMPLAINT OF AN ACL TEAR IN THE
RIGHT KNEE.
Defendant Tan, instead of alerting additional medical personnel of
plaintiff’s serious medical needs, or taking ANY steps to ensure that
plaintiff receive the medical attention that his DOCUMENTED injury
required, simply allowed [sic] custody staff to house plaintiff wherever
they wanted, without taking into account plaintiff’s inability to climb into
the upper bunk, or request for a “lower bunk, lower tier” chrono.
Defendant Tan abandoned his medical duty to plaintiff, even after
noting the DOCUMENTED serious medical needs of plaintiff, because he
believed plaintiff was faking his symptoms and complaint in order to
receive pain medication.

16
17
18
19
20
21
22
23
24
25
26
27
28

1

Defendants Hannies, Kiesz, and Herhst have not been served. Service of process
was returned unexecuted as to Defendants Kiesz and Hannies on December 19, 2019. See ECF
No. 58. Service of process was returned unexecuted as to Defendant Herhst on January 23, 2020.
See ECF No. 64. The Court will recommend these three defendants be dismissed pursuant to
Federal Rule of Civil Procedure 4(m) for failure to effect timely service of process.
2

1

The failure of Defendant Tan to conduct an adequate examination
of plaintiff, or take the necessary steps to ensure plaintiff receive the
needed medical treatment, despite defendant Tan’s actual knowledge of
plaintiff’s serious medical needs, constitutes deliberate indifference to
plaintiff’s serious medical needs.
As a result of defendant Tan’s deliberate indifference, plaintiff
suffered further injury, physical and emotional pain and suffering, as well
as life altering physical disability.

2
3
4
5

Id. at 6.
6
Plaintiff alleges more facts concerning Defendant Tan below.

7

b.

8

Defendant Fontillas

Plaintiff alleges that on December 28, 2010, Plaintiff was seen by a nurse,

9
10

Defendant Fontillas. See id. at 7. Defendant Fontillas “was acting as the ‘gate keeper’ to access

11

the doctor.” Id. Plaintiff informed Defendant Fontillas that he had been diagnosed with a torn

12

ACL and that it was documented in Plaintiff’s medical file. See id. Plaintiff also told Defendant

13

Fontillas that Plaintiff’s pain medication was not helping his “severe and debilitating pain, which

14

consisted of a steady, deep throbbing pain centered in his right knee, which made it very difficult

15

to concentrate, write a letter or even sleep at night.” See id. Additionally, Plaintiff requested a

16

lower bunk due to his knee problems. See id. Plaintiff contends that Defendant Fontillas did not

17

address any of Plaintiff’s concerns but “simply took plaintiff’s vital signs and informed plaintiff

18

that he would have to request a ‘lower bunk, lower tier’ chrono from the doctor.” Id. Defendant

19

Fontillas allegedly told Plaintiff that he was scheduled to see a doctor on December 31, 2010.

20

See id.

21

Plaintiff claims that Defendant Fontillas’ failure to alert the proper medical

22

personnel of Plaintiff’s “DOCUMENTED serious medical needs . . . constitutes deliberate

23

indifference to plaintiff’s serious medical needs.” See id. “As a result of defendant Fontillas’

24

deliberate indifference, plaintiff suffered further injury, physical and emotional pain and

25

suffering, as well as a life altering physical disability.” Id. at 7-8.

26

///

27

///

28

///
3

1

c.

Defendant Hardman

2

Plaintiff states that on January 2, 2011, Plaintiff submitted a CDCR 7362 Health

3

Care Services Request Form requesting to see a doctor for Plaintiff’s “serious medical needs as

4

plaintiff was in extreme pain and suffering and his current pain medication was not working,” for

5

Plaintiff was unable to see a doctor on December 31, 2010. See id. at 8. On January 4, 2011,

6

Plaintiff was seen by another nurse, Defendant Hardman. See id. Defendant Hardman was also

7

acting as “gate keeper” to see the doctor. See id. Plaintiff’s allegations against Defendant

8

Hardman are a mirror image of his allegations against Defendant Fontillas. See id. at 8-9. The

9

one difference is that after Defendant Hardman took Plaintiff’s vitals and ignored Plaintiff’s

10

concerns, Defendant Hardman said that Plaintiff would be “seen by Dr. Win on the 11th and you

11

can request a ‘lower, lower’ chrono then.” See id. at 8.

12
13

d.

Defendant Win

On January 11, 2011, Plaintiff was seen by a doctor, Defendant Win. See id. at 9.

14

“Prior to plaintiff arriving for his appointment with defendant Win, defendant Win had already

15

formed the opinion that plaintiff was faking his symptoms and complaint of severe and

16

debilitating pain in order to receive pain medication.” Id. Plaintiff informed Defendant Win that

17

he had been diagnosed with a torn ACL and that it was documented in Plaintiff’s medical file.

18

See id. Plaintiff also told Defendant Win that Plaintiff’s pain medication was not helping his

19

“severe and debilitating pain, which consisted of a steady, deep throbbing pain centered in his

20

right knee, which made it very difficult to concentrate, write a letter or even sleep at night.” See

21

id. Additionally, Plaintiff requested a lower bunk due to his knee problems. See id.

22

“Defendant Win began by telling plaintiff, ‘This is a new facility and we will

23

make our own diagnosis. It is very unlikely that it is an ACL tear, because you are experiencing

24

pain.’” Id. Plaintiff alleges that Defendant Win did a “cursory examination” of Plaintiff’s knee

25

and “declared that plaintiff did not have an ACL tear.” Id. Defendant Win increased Plaintiff’s

26

pain medication “from 200 mg Ibuprophen [sic] to 400 mg.” Id. This is after Plaintiff informed

27

Defendant Win that “the Ibuprophen [sic] was not working and upset his stomach.” Id.

28

Defendant Win then “referred plaintiff for ‘physical therapy’ to help lessen the pain in plaintiff’s
4

1

right knee.” Id. at 9-10.

2

“Defendant Win NEVER attempted to diagnose plaintiff’s medical complaint of

3

previously diagnosed, and DOCUMENTED, ACL tear and severe and debilitating pain because

4

defendant Win believed plaintiff was fakinf [sic] his symptoms and medical complaint in order

5

to receive pain medication.” Id. at 10. Plaintiff alleges that Defendant Win’s failure to conduct

6

an adequate examination of Plaintiff, “despite defendant Win’s actual knowledge of plaintiff’s

7

serious medical needs, constitutes deliberate indifference to plaintiff’s serious medical nedds

8

[sic].” Id. Plaintiff contends that as a result “plaintiff suffered further injury, physical and

9

emotional pain and suffering, as well as a life altering physical disability.” Id.

10

e.

Defendant Braunger (“Carlson”)

11

Plaintiff alleges the following concerning Defendant Carlson:

12

On February 27, 2011, Plaintiff submitted yet another CDCR 7362
Health Care Services Request Form stating, ‘This is the 4th 7362 I have
sent in to see the doctor about my knee. I have been to RN line twice in
the last month and each one I saw said I’ll be ducated [sic] in a couple of
days. I have not been ducated [sic] yet. Need to see the doctor ASAP.’
On March 1, 2011, defendant C. Braunger, RN, received and
processed plaintiff’s CDCR 7362, however, defendant Braunger did not
ducat [sic] plaintiff to ‘nurses line.’ Instead, defendant Braunger ignored
plaintiff’s medical request.
The failure of defendant Braunger to properly process plaintiff
CDCR 7362 Health Care Services Request Form and alert the proper
medical personnel of plaintiff’s well DOCUMENTED serious medical
need, despite defendant Braunger’s actual knowledge, constitutes
deliberate indifference to plaintiff’s serious medical needs.
As a result of defendant Braunger’s deliberate indifference to
plaintiff’s serious medical needs, plaintiff suffered further injury, physical
and emotional pain and suffering, as well as a life altering physical
disability.

13
14
15
16
17
18
19
20
21
22

Id. at 12.

23

2.

24

On March 2, 2011, while attempting to climb into his upper bunk, Plaintiff’s right

25

knee “gave out and buckled, causing plaintiff to fall, striking the toilet and injuring his wrist and

26

ribs.” Id. at 13. “On March 10, 2011, based solely on plaintiff falling while trying to get into the

27

upper bunk, defendant Win requested an MRI of plaintiff’s right knee to ‘rule out a meniscus

28

injury.’” Id. “On May 24, 2011, plaintiff finally received an MRI of his right knee. The MRI

Plaintiff’s Allegations Relating to Further Injuries

5

1

revealed that plaintiff did, in fact, have an ACL tear. In fact, it was much worse than just an

2

ACL tear.” Id. Plaintiff alleges that had Defendants done their jobs, Plaintiff would not have

3

been forced to languish in his cell, “in severe and debilitating pain, without sufficient pain

4

medication.” Id.

5

However, “[e]ven after the MRI confirmed that plaintiff had an ACL tear, and

6

was in severe and debilitating pain, defendants continued to operate under the assumption that

7

plaintiff was faking the extent of his pain in order to receive stronger pain medication.” Id. at 14.

8

“On October 14, 2011, plaintiff underwent reconstructive surgery, at Doctors

9

Hospital of Manteca.” Id. “Following surgery, plaintiff continued to experience extreme pain in

10

his right knee for some reason. The pain continued to worsen, yet defendants would not increase

11

pain medication.” Id.

12

Plaintiff alleges:

13

On or about July 7, 2012, plaintiff went to stand up and his right
knee suddenly gave out and began to swell. It felt as if something was
trying to poke through plaintiffs [sic] skin. Plaintiff could only move his
leg to a certain point and then it would feel like something would break if
he attempted to extend it any further.
On July 27, 2012, Plaintiff was seen by defendant R. Tan, MD, for
his complaint of continued pain in his right knee and the more recent issue
of it feeling like something was trying to poke through the skin. Plaintiff
explained to defendant Tan how it felt and that the object felt sharp.
Defendant Tan told plaintiff, “That’s normal. It is due to scar
tissue and your knee will continue to be stiff. Defendant Tan NEVER
attempted to diagnose plaintiffs [sic] complaint, nor did defendant Tan
conduct any type of examination regarding Plaintiff’s medical complaint.

14
15
16
17
18
19
20
21
22
23

***
On August 6, 2012, after repeated complaints to defendant Tan of
severe right knee pain and something loose in plaintiff [sic] knee, plaintiff
was referred to Dr. Casey for a follow-up consult regarding the continued
complaint of pain.
***

24

27

On November 6, 2012, plaintiff was finally given a postop MRI.
The result of this MRI revealed that plaintiff would need addition [sic]
surgery to remove the 13 mm loose body from his knee, which was the
cause of his ongoing pain issue.
On January 25, 2013, plaintiff had additional surgery to remove the
13 mm loose body from his knee.

28

Id. at 14-15.

25
26

6

1

Plaintiff concludes stating:

2

Due to defendants [sic] deliberate indifference to plaintiff [sic]
serious medical needs, plaintiff was forced to undure [sic] prolonged
extreme pain and suffering because defendants did not attempt to diagnose
plaintiff’s complaints because defendants believed plaintiff was faking his
symptoms in order to receive pain medication. No reasonable person
would have believed plaintiff was faking his symptoms, given that
plaintiff had a previously diagnosed ACL tear DOCUMENTED in his
medical records, which defendants choose to disregard and ignore.

3
4
5
6

Id.
7
8
II. THE PARTIES’ EVIDENCE

9
10

A.

Defendants’ Evidence
Defendants’ motion for summary judgment is supported by the sworn declarations

11
12

of Defendants Carlson, ECF No. 77-3, Hardman, ECF No. 77-4, Tan, ECF No. 77-5, Win, ECF

13

No. 77-6, and Fontillas, ECF No. 77-7. Additionally, Defendants rely on the sworn declaration of

14

their attorney, Jason R. Cale, ECF No. 77-8. Defendants further rely on the following exhibits

15

attached to the Cale declaration:

16

Exhibit A

First Amended Complaint. ECF No. 77-8, pgs. 3-22.

17

Exhibit B

Mercy Medical Records. ECF No. 77-8, pgs. 23-30.

18

Exhibit C

Deposition of Richard Rood. ECF No. 77-8, pgs. 31-45.

19

Exhibit D

CDCR Medical Records. ECF No. 77-8, pgs. 46-149.

20

Defendants contend: (1) they timely and properly treated Plaintiff’s right knee

21

injury on those occasions that they saw him; (2) Defendants adequately addressed Plaintiff’s

22

complaints of pain; (3) Plaintiff was provided a lower bunk accommodation upon request; (4)

23

Plaintiff cannot establish that his damages are supported as they are speculative; and (5)

24

Defendants are entitled to qualified immunity. ECF No. 77, pg. 1.

25

///

26

///

27

///

28

///
7

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

In support of these contentions, Defendants offer a Statement of Undisputed Facts
in which they state the following facts are undisputed:
1.
Plaintiff was involved in a bicycle accident in 2008,
following which he was treated at Mercy Medical Center in Redding,
California, and was diagnosed with a right knee sprain.
2.
While housed at the Shasta County Jail in 2009, Plaintiff’s
right knee buckled causing further injuries.
3.
Plaintiff alleges that, after this incident in 2009, he received
treatment from “Dr. Craig” who diagnosed Plaintiff with a right-knee
ACL tear. No records have been located confirming this diagnosis or that
“Dr. Craig” is a licensed physician qualified to make a diagnosis of an
ACL tear.
4.
In September 2010, Plaintiff was transferred to High Desert
State Prison (HDSP).
5.
On October 7, 2010, an x-ray of Plaintiff’s right knee was
performed and indicated no change from Plaintiff’s prior exam in July
2010. Specifically, the October 2010 images revealed that Plaintiff’s right
knee as “stable negative.” A lower spine x-ray also revealed “negative
lower spine” with no issues noted.
6.
On October 21, 2010, Plaintiff was treated by a nurse at
HDSP for a complaint of right-knee ACL tear. At the time, Plaintiff stated
his pain, which he described as a “dull ache,” was a 7.5 out of 10. His
condition was noted as stable and Plaintiff was referred to follow up with
his physician concerning further treatment or to resubmit a healthcare
services request if the pain increased.
7.
On December 21, 2010, Plaintiff was transferred from
HDSP to California State Prison – Solano (CSP-Solano).
8.
An initial health screening form provided by HDSP to
CSP-Solano, dated December 21, 2010, indicated that Plaintiff had “an
ACL tear” and lower back pain, but also indicated Plaintiff had “pending
chronic need care” without indicating any need for urgent care. The form
did not indicate Plaintiff had any pending specialist appointments or
clinical follow-up appointments, but indicated that a follow-up was
recommended in four weeks.
9.
Dr. Tan reviewed the initial health screening form and
Plaintiff’s medical record and indicated in his December 21, 2010, report
that Plaintiff had no active medications at the time of his transfer other
than Ibuprofen, that Plaintiff had a history of an ACL tear, and that
Plaintiff should be scheduled for a follow-up with the primary care
physician in four weeks.
10.
On December 27, 2010, Plaintiff was treated by Nurse
Fontillas after submitting a request for health services form. Plaintiff
complained of chronic back pain and was provided Ibuprofen.
8

1
2
3
4
5
6
7
8
9
10
11
12

11.
On January 4, 2011, Nurse Hardman responded to a heath
service request form submitted by Plaintiff indicating chronic right knee
and lower back pain. Plaintiff’s vitals were taken, and chart notes
indicated that Plaintiff was scheduled for an appointment with his primary
care physician on January 11, 2011.
12.
Plaintiff was treated and evaluated by Dr. Win, Plaintiff’s
primary care physician while at CSP-Solano, on January 11, 2011. Dr.
Win indicated Plaintiff had a right-knee meniscus injury, but stated it was
unlikely Plaintiff had an ACL tear. Dr. Win noted Plaintiff told him
another doctor had stated he has an ACL tear and needed surgery to repair
it. Dr. Win performed a physician assessment and noted that Plaintiff’s
gait was normal and Plaintiff had no difficulty getting on and off the chair.
Dr. Win ordered physical therapy and provided Plaintiff with a
prescription for Naproxen for pain.
13.
On January 28, 2011, Plaintiff was treated by Nurse
Carlson for right knee pain. Chart notes from this visit state that Plaintiff
had been prescribed Naproxen earlier for pain and Plaintiff should submit
a health care services request form if his symptoms persist or his pain
increases. At the time of the exam, Plaintiff was ambulatory and stable,
and was returned to his housing unit with a request that he follow up in the
clinic with his primary care physician. Plaintiff described his pain as a 6
out of 10.

13
14
15
16
17
18
19
20
21
22
23
24
25

14.
On February 27, 2011, Plaintiff submitted a healthcare
services form requesting to be provided an appointment to see Dr. Win.
Nurse Carlson signed chart notes on March 1, 2011, indicating Plaintiff
was scheduled to see Dr. Win on March 10, 2011.
15.
Plaintiff was seen by Dr. Win on March 10, 2011. At the
time, Plaintiff complained of further pain in his right knee, which he
indicated had been exacerbated due to another recent fall eight to nine
days prior when he slipped trying to climb into his upper bunk. Dr. Win
ordered an x-ray which was taken the same day.
16.
The x-ray indicated “no fracture, dislocation, or focal
osseous lesion, along with no joint effusion.” The impression further
indicated “negative knee.”
17.
Dr. Win saw Plaintiff later that same day (March 10, 2011)
and scheduled a further x-ray to confirm that no metallic materials were in
Plaintiff’s body in order to clear Plaintiff for an MRI. The second x-ray
was taken on March 25, 2011, and Plaintiff was cleared for an MRI with
an outside specialist.
18.
On March 21, 2011, Nurse Fontillas indicated in response
to a further health services request by Plaintiff that Plaintiff was awaiting
diagnostic testing results, which Dr. Win reviewed that day. The testing
results indicated that Plaintiff’s right knee was normal.

26
27
28

19.
Nurse Fontillas received another health service request
form from Plaintiff on April 16, 2011, in which Plaintiff requested a lower
bunk accommodation. Plaintiff was scheduled for a follow-up
appointment with Dr. Win on April 21, 2011.
9

1

20.
Plaintiff was seen again by Dr. Win on April 21, 2011, who
referred Plaintiff for a consultation with an outside orthopedic specialist
for his right nee to rule out a right-knee meniscus tear. Dr. Win also
granted Plaintiff’s request for a lower bunk accommodation, which
Plaintiff received on June 14, 2011.

2
3
4

21.
The request for referral to an outside orthopedic specialist
was approved on June 6, 2011, with an initial consultation with Dr. Casey
scheduled for August 8, 2011.

5
6

22.
On May 19, 2011, Plaintiff filed a heath services request
form for pain, indicating physical therapy was not helping, that Plaintiff
had an MRI exam that day and wanted to know the results, and that this
pain medication was not sufficient.

7
8

23.
On May 24, 2011, MRI scans showed that Plaintiff’s knee
was “grossly abnormal” with “multiple tear sites at the medial meniscus,”
“a partial detachment of the ACL from the femoral origin existed,” and
“there was a degeneration of the posterior horn lateral meniscus.”

9
10
11

24.
On June 2, 2011, Plaintiff was seen by Dr. Win for
complaints of right knee pain. Dr. Win prescribed acetaminophen with
codeine for pain.

12
13

25.
On July 14, 2011, Plaintiff was seen again by Dr. Win, who
indicate that he is still waiting for results of the orthopedic consult.
Plaintiff was provided a cane for mobility.

14
15

26.
On August 8, 2011, Plaintiff had a consultation with
outside orthopedist, Dr. Casey. Dr. Casey’s notes indicate that Plaintiff
said that his right knee pain has been increasing over the last few years,
with increasing swelling and instability. Plaintiff reported an inability to
go up and down stairs in particular. Dr. Casey recommended that Plaintiff
receive an allograft ACL reconstruction and meniscectomy “sometime in
the near future.” No specific date for indicated in Dr. Casey’s report.

16
17
18
19

27.
On August 15, 2011, Dr. Win followed up with Plaintiff
after his recent outside orthopedic consultation with Dr. Casey. At the
time, Plaintiff stated that he wanted to have the surgery recommended by
Dr. Casey. Plaintiff was prescribed Tramadol for pain.

20
21

28.
On September 27, 2011, Plaintiff was again seen by Dr.
Win, who informed Plaintiff that surgery had been approved.

22
23

29.
Plaintiff underwent surgery on October 14, 2011. The
surgery was performed by Dr. Casey. The surgery was indicated to have
been successful.

24
25

30.
Following surgery, Plaintiff was returned to CSP-Solano
and evaluated by Dr. Hseih. On October 19, 2011, Plaintiff was seen by
Dr. Lee, who reported that Plaintiff had been caught a few days prior
“cheeking” pain medication. Dr. Lee noted that Plaintiff appeared to have
intentionally slid off his chair while checking Plaintiff’s vitals.

26
27
28

///
10

1
2
3
4
5

31.
Further post-surgical evaluations were conducted by Dr.
Win on October 20, 2011, November 2, 2011, November 17, 2011, and
January 6, 2012.
32.
Dr. Tan became Plaintiff’s primary care physician on April
22, 2012, after Plaintiff was transferred to Facility B at CSP-Solano. On
May 25, 2012, Dr. Tan had a further post-surgery follow up with Plaintiff.
At the time, Plaintiff’s knee appeared normal, and Plaintiff was provided a
knee brace and shoe insoles as further accommodations. Plaintiff’s lower
bunk accommodation was renewed for another year.

6
7
8

33.
On July 27, 2012, Dr. Tan saw Plaintiff for swelling in his
right knee. Plaintiff stated his knee had given way a few weeks earlier.
Dr. Tan ordered another x-ray of Plaintiff’s knee. The x-ray showed
degenerative changes and a small joint effusion of fluid in the
suprapatellar bursa.

9
10
11

34.
Plaintiff was seen again by Dr. Tan on August 6, 2012, for
right knee pain. Plaintiff was scheduled for a follow up appointment with
Dr. Casey concerning a loose body in his right knee and a follow up
request was generated for shoe insoles, which had not yet been provided.
Plaintiff’s prescription for Tramadol was renewed.

12
13
14
15
16
17
18
19

35.
On August 27, 2012, Plaintiff was treated again by Dr. Tan.
Treatment notes indicate Plaintiff was provided his shoe insoles but
refused to accept them because he did not like the ones provided. Plaintiff
was issued different gel insoles which he received that same day.
36.
On August 28, 2012, Plaintiff seen by Dr. Casey for a
follow up appointment. Dr. Casey stated that Plaintiff is doing well
despite subjective complaints. Dr. Casey ordered a follow-up MRI.
37.
On November 6, 2012, an MRI was performed on
Plaintiff’s right knee. The study revealed a 13 mm loose body in the
suprapatellar bursa. Otherwise, the knee was normal.
38.
On November 30, 2012, Plaintiff was scheduled for a
follow up appointment with Dr. Casey.

20
21
22

39.
Plaintiff attended a follow up appointment with Dr. Casey
on December 12, 2012. Dr. Casey indicated he would proceed with
removal of the loose body in Plaintiff’s right knee through another
arthroscopic surgery. Otherwise, Dr. Casey indicated the prior surgery
was successful.

23
24

40.
Dr. Hsieh saw Plaintiff on December 14, 2012, and
reported that Plaintiff refused Toradol and refused a lower tier transfer.
He also refused to use his walker.

25
26
27
28

41.
Plaintiff underwent further arthroscopic surgery on his right
knee on January 25, 2013, to remove the loose body. At the time, the
medial meniscus and articulating surfaces were visually inspected, along
with the ACL, and Dr. Casey indicated they were in good repair. The
loose body removed was indicated to be a little larger than a pea, which
Dr. Casey stated would have likely caused Plaintiff some minor
11

1

discomfort.

2

42.
After the second surgery, Plaintiff refused to use crutches
and at times refused to take pain medications.

3
43.
X-ray imaging obtained after the second surgery indicated
only mild degenerative changes since his ACL reconstruction.

4
5

44.
CSP-Solano policy requires that all new requests, increases,
or changes in pain medication must be approved by the Pain Management
Committee upon submission of a request by a primary care physician.

6
7

45.
Dr. Win did not intentionally or willfully seek to harm
Plaintiff or delay medical treatment.

8
46.
Dr. Tan did not intentionally or willfully seek to harm
Plaintiff or delay medical treatment.

9
10

47.
Nurse Fontillas did not intentionally or willfully seek to
harm Plaintiff or delay medical treatment.

11
12

48.
Nurse Carlson did not intentionally or willfully seek to
harm Plaintiff or delay medical treatment.

13

49.
Nurse Hardman did not intentionally or willfully seek to
harm Plaintiff or delay medical treatment.

14
ECF No. 77-2.
15
16

B.

Plaintiff’s response in opposition is largely a restatement of Plaintiff’s claims. See

17
18

Plaintiff’s Evidence

ECF No. 86. Plaintiff relies on the following exhibits attached to Plaintiff’s opposition:

19

Exhibit A

CDCR Form 7277. ECF No. 86, pgs. 39-40.

20

Exhibit B

Photo of “Loose Body.” ECF No. 86, pgs. 41-42.

21

Exhibit C

Proof of Ongoing Knee Issues. ECF No. 86, pgs. 43-64.

22

Plaintiff does not reproduce Defendants’ itemized facts and does not admit or deny

23

any of Defendants’ itemized facts. Plaintiff merely provides his account of the incident again.
Plaintiff failed to comply with Federal Rule of Civil Procedure 56 and Eastern

24
25

District of California Local Rule 260(b) by not providing the required support for his assertions

26

that a triable issue of fact exists. Plaintiff did not cite particular parts of materials in the record,

27

nor did he show that the materials cited do not establish the absence or presence of a genuine

28

dispute.
12

1

Federal Rule of Civil Procedure 56(c)(1) states:

2

A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record
including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or other materials;
or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.

3
4
5
6
7

Additionally, Eastern District Court of California’s Local Rule 260(b) states in

8
9
10
11
12
13

relevant part:
Any party opposing a motion for summary judgment or summary
adjudication shall reproduce the itemized facts in the Statement of
Undisputed Facts and admit those facts that are undisputed and deny those
that are disputed, including with each denial a citation to the particular
portions of any pleading, affidavit, deposition, interrogatory answer,
admission, or other document relied upon in support of that denial.

14

Further, Federal Rule of Civil Procedure 56(e) states:

15

If a party fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact as required by Rule 56(c), the
court may:
(1) give an opportunity to properly support or address the
fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting
materials—including the facts considered undisputed—
show that the movant is entitled to it; or
(4) issue any other appropriate order.

16
17
18
19
20
21

Here, Plaintiff failed to reproduce Defendants’ undisputed facts, failed to admit or

22

deny Defendants’ undisputed facts, and failed to cite to evidence that demonstrates the existence

23

of a genuine issue of material fact. The Court considers Defendants’ facts as undisputed for the

24

purposes of this motion. Beard v. Banks, 548 U.S. 521, 527 (2006) (“[B]y failing specifically to

25

challenge the facts identified in the defendant's statement of undisputed facts, [plaintiff] is

26

deemed to have admitted the validity of the facts contained in the [defendant's] statement.”); Brito

27

v. Barr, No. 2:18-cv-00097-KJM-DB, 2020 WL 4003824, at *6 (E.D. Cal. July 15, 2020); see

28

also Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004).
13

1

III. STANDARD FOR SUMMARY JUDGMENT

2

The Federal Rules of Civil Procedure provide for summary judgment or summary

3

adjudication when “the pleadings, depositions, answers to interrogatories, and admissions on file,

4

together with affidavits, if any, show that there is no genuine issue as to any material fact and that

5

the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The

6

standard for summary judgment and summary adjudication is the same. See Fed. R. Civ. P.

7

56(a), 56(c); see also Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). One of

8

the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. See

9

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under summary judgment practice, the

10
11

moving party

13

. . . always bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of “the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any,” which it believes demonstrate the absence of a
genuine issue of material fact.

14

Id., at 323 (quoting former Fed. R. Civ. P. 56(c)); see also Fed. R. Civ. P. 56(c)(1).

15

If the moving party meets its initial responsibility, the burden then shifts to the

12

16

opposing party to establish that a genuine issue as to any material fact actually does exist. See

17

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to

18

establish the existence of this factual dispute, the opposing party may not rely upon the

19

allegations or denials of its pleadings but is required to tender evidence of specific facts in the

20

form of affidavits, and/or admissible discovery material, in support of its contention that the

21

dispute exists. See Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 n.11. The

22

opposing party must demonstrate that the fact in contention is material, i.e., a fact that might

23

affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S.

24

242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th

25

Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could

26

return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436

27

(9th Cir. 1987). To demonstrate that an issue is genuine, the opposing party “must do more than

28

simply show that there is some metaphysical doubt as to the material facts . . . . Where the record
14

1

taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no

2

‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). It is sufficient that “the

3

claimed factual dispute be shown to require a trier of fact to resolve the parties’ differing versions

4

of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631.

5

In resolving the summary judgment motion, the court examines the pleadings,

6

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.

7

See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, see Anderson,

8

477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the

9

court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587.

10

Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to

11

produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen

12

Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir.

13

1987). Ultimately, “[b]efore the evidence is left to the jury, there is a preliminary question for the

14

judge, not whether there is literally no evidence, but whether there is any upon which a jury could

15

properly proceed to find a verdict for the party producing it, upon whom the onus of proof is

16

imposed.” Anderson, 477 U.S. at 251.

17
18

IV. DISCUSSION

19

In their motion for summary judgment, Defendants argue that they are entitled to

20

judgment as a matter of law for the following reasons: (1) Plaintiff failed to cite to specific

21

evidence that supports that there is a genuine issue of material fact; (2) Defendants timely and

22

properly treated Plaintiff’s right knee, adequately addressed Plaintiff’s complaints of pain, and

23

appropriately provided a lower bunk accommodation upon request; and (3) Defendants are

24

entitled to qualified immunity. See ECF No. 87, pg. 1, and ECF No. 77, pg. 1.
Plaintiff’s non-compliance with the Federal Rules of Civil Procedure and Local

25
26

Rules regarding opposing a motion for summary judgment is discussed above. Below the Court

27

discusses Defendants’ remaining contentions.

28

///
15

1
2

A.

Deliberate Indifference to Plaintiff’s Serious Medical Needs
The treatment a prisoner receives in prison and the conditions under which the

3

prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel

4

and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan,

5

511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts

6

of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102

7

(1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v.

8

Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with

9

“food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy,

10

801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when

11

two requirements are met: (1) objectively, the official’s act or omission must be so serious such

12

that it results in the denial of the minimal civilized measure of life’s necessities; and (2)

13

subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of

14

inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison

15

official must have a “sufficiently culpable mind.” See id.

16

Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious

17

injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105;

18

see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health

19

needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), abrogated on other grounds by

20

Sandin v. Conner, 515 U.S. 472 (1995). An injury or illness is sufficiently serious if the failure to

21

treat a prisoner’s condition could result in further significant injury or the “. . . unnecessary and

22

wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled

23

on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); see

24

also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). Factors indicating seriousness

25

are: (1) whether a reasonable doctor would think that the condition is worthy of comment; (2)

26

whether the condition significantly impacts the prisoner’s daily activities; and (3) whether the

27

condition is chronic and accompanied by substantial pain. See Lopez v. Smith, 203 F.3d 1122,

28

1131-32 (9th Cir. 2000) (en banc).
16

1

The requirement of deliberate indifference is less stringent in medical needs cases

2

than in other Eighth Amendment contexts because the responsibility to provide inmates with

3

medical care does not generally conflict with competing penological concerns. See McGuckin,

4

974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to

5

decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir.

6

1989). The complete denial of medical attention may constitute deliberate indifference. See

7

Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical

8

treatment, or interference with medical treatment, may also constitute deliberate indifference. See

9

Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate

10

that the delay led to further injury. See McGuckin, 974 F.2d at 1060.

11

Negligence in diagnosing or treating a medical condition does not, however, give

12

rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a

13

difference of opinion between the prisoner and medical providers concerning the appropriate

14

course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh,

15

90 F.3d 330, 332 (9th Cir. 1996).

16

1.

17

Prior to Plaintiff’s ACL surgery and prior to Defendant Tan becoming Plaintiff’s

Defendant Tan

18

primary care physician, Defendant Tan reviewed Plaintiff’s medical records, indicated in his

19

report dated December 21, 2010, that Plaintiff had no active medications at the time of his

20

transfer other than ibuprofen, that Plaintiff had a history of an ACL tear, and the Plaintiff should

21

be scheduled for a follow-up appointment with his primary care physician in approximately four

22

weeks. See ECF No. 77-2, pg. 3.

23

After Plaintiff’s surgery and after Defendant Tan became Plaintiff’s primary care

24

physician on or about April 22, 2012, Defendant Tan treated Plaintiff on May 25, 2012. Id. at 7.

25

“The knee appeared normal, and Plaintiff was provided as a further accommodation a knee brace

26

and shoe insoles for support.” Id. Plaintiff’s lower bunk accommodation was renewed for

27

another year. See id.

28

///
17

1

On July 27, 2012, Defendant Tan treated Plaintiff for swelling in his knee. See id.

2

Defendant Tan had already approved a renewal of Plaintiff’s pain medications and ordered an x-

3

ray exam. See id. The x-ray exam indicated “degenerative changes existed and there was a small

4

joint effusion of fluid in the suprapatellar bursa.” Id.

5

On August 6, 2012, Defendant Tan saw Plaintiff for right knee pain and was

6

scheduled for a follow up appointment with another doctor concerning a loose body in Plaintiff’s

7

right knee. See id. at 7-8. A request for shoe insoles was generated and Plaintiff’s pain

8

medication was renewed again. See id. at 8.

9

On August 27, 2012, Defendant Tan treated Plaintiff again. See id. Plaintiff

10

refused shoe insoles provided to him and was then issued different gel insoles. See id. After

11

Plaintiff received an MRI, Plaintiff had surgery to remove a loose body in Plaintiff’s right knee.

12

See id.

13

Defendant Tan was at most negligent. There are no facts that demonstrate that

14

Defendant Tan in any way sought to intentionally inflict harm on Plaintiff or that Defendant Tan

15

was deliberately indifferent to Plaintiff’s medical needs. To the contrary, the undisputed facts

16

submitted by Defendants show that Defendant Tan consistently provided Plaintiff treatment.

17

Therefore, Defendant Tan is entitled to judgment as a matter of law.

18

2.

Defendant Fontillas

19

On December 27, 2010, Plaintiff was treated by Defendant Fontillas, after

20

submitting a request for health services. See id. at 3. “Plaintiff complained of chronic back pain

21

and was provided ibuprofen for this pain.” Id. The plan was for Plaintiff to see the doctor to

22

discuss other needs, which Plaintiff did two weeks later. See id.

23

On March 9, 2011, Defendant Fontillas reviewed another health services request

24

from Plaintiff, indicating Plaintiff would like to see Defendant Win, and Defendant Fontillas

25

noted that Plaintiff was scheduled to see Dr. Win the next day. See id. at 4.

26

///

27

///

28

///
18

1

On April 16, 2011, Defendant Fontillas received a further healthcare services

2

request from Plaintiff to obtain a lower bunk accommodation. See id. at 5. Defendant Fontillas’s

3

notes reflect that Plaintiff was scheduled for a follow-up appointment with Defendant Win on

4

April 21, 2011, who could address the lower bunk accommodation request. See id.

5

The undisputed facts establish that Defendant Fontillas did nothing to give rise to a

6

constitutional claim. Defendant Fontillas did not have the authority to change pain medications

7

or grant a lower bunk accommodation request. See id. at 9. Further, the undisputed facts simply

8

do not show that Defendant Fontillas intended to harm Plaintiff or that Defendant Fontillas

9

deliberately disregarded his medical needs. Therefore, Defendant Fontillas is entitled to

10

judgment as a matter of law.

11

3.

12

On January 4, 2011, Defendant Hardman responded to Plaintiff’s health services

13

request form, indicating chronic right knee and lower back pain. See id. at 5. “Plaintiff’s vitals

14

were taken, and the notes indicated that Plaintiff was scheduled for an appointment with

15

Plaintiff’s primary care physician to occur on January 11, 2011.” Id.

16

Defendant Hardman

“On May 19, 2011, Plaintiff filed another health services request form for pain,

17

indicating physical therapy was not assisting, that Plaintiff had an MRI exam that day and wanted

18

to know the results, and that his Tylenol 3 pain medication was not sufficient.” Id. The response

19

from Defendant Hardman on May 24, 2011, indicated Plaintiff’s vitals were taken, and Plaintiff

20

indicated his pain was a 6 out of 10. See id. “Plaintiff was referred back to his primary care

21

physician, Plaintiff’s pain medication was refilled, and it was communicated to Plaintiff an

22

appointment was scheduled for June 2, 2011 with Dr. Win, which would allow time for the MRI

23

results to be obtained.” Id.

24

As with Defendant Fontillas, the undisputed facts establish that Defendant

25

Hardman did nothing to give rise to a constitutional claim. Defendant Hardman did not have the

26

authority to change pain medications or grant a lower bunk accommodation request. See id. at 9.

27

Further, the facts simply do not show that Defendant Hardman intended to harm Plaintiff or

28

deliberately disregarded his medical needs. Therefore, Defendant Hardman is entitled to
19

1

judgment as a matter of law.

2

4.

Defendant Win

3

On January 11, 2011, Plaintiff was treated and evaluated by Defendant Win. See

4

id. at 3. “Dr. Win indicated Plaintiff had a right-knee meniscus injury, [sic] but stated it was

5

unlikely Plaintiff had an ACL tear.” Id. “Dr. Win’s notes stated the medical records did not

6

show any prior doctor had ordered an MRI or an orthopedic referral for Plaintiff’s right knee.”

7

Id. Defendant Win noted that Plaintiff’s gait was normal, undertook a physical assessment, and

8

noted that Plaintiff had no difficulty getting on and off the chair. See id. “Dr. Win noted further

9

that Plaintiff had a chronic right knee injury but needed to rule out an ACL tear. Dr. Win ordered

10

Plaintiff to physical therapy, [sic] and provided a prescription for naproxen for Plaintiff’s pain.”

11

Id.

12

On March 10, 2011, Defendant Win saw Plaintiff who complained of further pain

13

in his right knee, which he indicated had been exacerbated due to another recent fall. See id. at 4.

14

“Dr. Win ordered Plaintiff an x-ray, which was taken that same day.” Id. The x-ray notes

15

indicated “no fracture, dislocation or focal osseous lesion, along with no joint effusion.” Id.

16

“The impression indicated ‘negative knee.’” Id.

17

Defendant Win requested Plaintiff be scheduled for an MRI and scheduled a

18

further x-ray to confirm that no metallic materials were in Plaintiff’s body in order to clear

19

Plaintiff for an MRI. See id. The x-ray was done on March 25, 2011. See id.

20

On April 21, 2011, Defendant referred Plaintiff to consult an orthopedic specialist

21

for his knee and granted Plaintiff’s request for a lower bunk accommodation. See id. at 5.

22

“Plaintiff received his lower bunk accommodation on June 14, 2011.” Id.

23
24

On June 2, 2011, Defendant Win prescribed acetaminophen with codeine for
Plaintiff’s pain, which was approved by the Pain Management Committee. See id. at 6.

25

On July 14, 2011, Plaintiff was seen by Defendant Win again, who indicated that

26

he was waiting the results of Plaintiff’s orthopedic consult and provided Plaintiff with a cane for

27

mobility. See id.

28

///
20

1

On August 15, 2011, after Plaintiff’s orthopedic consult, Defendant Win treated

2

Plaintiff who elected to have surgery, and Defendant Win “prescribed Tramadol (Toradol)” for

3

his pain; a decision that was approved by the Pain Management Committee. See id.
“Plaintiff had several other follow-up evaluations with Dr. Win and file consults

4
5

that occurred after Plaintiff’s surgery. This included evaluations on October 20, 2011, November

6

2, 2011, November 17, 2011, and January 6, 2012, with other file consults, prescription referrals

7

and file notes included in the same time frame.” Id. at 7.

8
9

As stated above, Defendant Win provided Plaintiff treatment, pain medications,
and a lower bunk accommodation to address Plaintiff’s medical issues. Defendant Win thought

10

Plaintiff did not have a torn ACL but still provided Plaintiff with treatment and exams, which

11

ultimately lead to Plaintiff’s surgeries. The undisputed evidence shows that Defendant Win was

12

not deliberately indifferent. At most, Defendant Win may have been negligent in not identifying

13

a torn ACL. Defendant Win is entitled to judgment as a matter of law on Plaintiff’s Eighth

14

Amendment deliberate indifference claims.
Defendant Braunger (“Carlson”)

15

5.

16

On January 28, 2011, Plaintiff was treated by Defendant Carlson for right knee

17

pain. See id. at 4. Defendant’s notes indicate that Plaintiff had been prescribed naproxen for his

18

pain, and Plaintiff should submit a health care services request form if his symptoms persist or his

19

pain increases. See id. “Plaintiff was ambulatory and stable, [sic] and was returned to his

20

housing unit with a request that he follow up with the physician clinic shortly.” Id. “Plaintiff

21

described his pain level as a 6 plus out of 10.” Id.

22

The undisputed evidence does not reflect any conduct by Defendant Carlson that

23

gives rise to a constitutional violation. Defendant Carlson is entitled to judgment as a matter of

24

law.

25

///

26

///

27

///

28

///
21

1
2

C.

Qualified Immunity
Government officials enjoy qualified immunity from civil damages unless their

3

conduct violates “clearly established statutory or constitutional rights of which a reasonable

4

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In general,

5

qualified immunity protects “all but the plainly incompetent or those who knowingly violate the

6

law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). In ruling upon the issue of qualified

7

immunity, the initial inquiry is whether, taken in the light most favorable to the party asserting the

8

injury, the facts alleged show the defendant’s conduct violated a constitutional right. See Saucier

9

v. Katz, 533 U.S. 194, 201 (2001). If a violation can be made out, the next step is to ask whether

10

the right was clearly established. See id. This inquiry “must be undertaken in light of the specific

11

context of the case, not as a broad general proposition . . . .” Id. “[T]he right the official is

12

alleged to have violated must have been ‘clearly established’ in a more particularized, and hence

13

more relevant, sense: The contours of the right must be sufficiently clear that a reasonable

14

official would understand that what he is doing violates that right.” Id. at 202 (citation omitted).

15

Thus, the final step in the analysis is to determine whether a reasonable officer in similar

16

circumstances would have thought his conduct violated the alleged right. See id. at 205.

17

When identifying the right allegedly violated, the court must define the right more

18

narrowly than the constitutional provision guaranteeing the right, but more broadly than the

19

factual circumstances surrounding the alleged violation. See Kelly v. Borg, 60 F.3d 664, 667 (9th

20

Cir. 1995). For a right to be clearly established, “[t]he contours of the right must be sufficiently

21

clear that a reasonable official would understand [that] what [the official] is doing violates the

22

right.” See Anderson v. Creighton, 483 U.S. 635, 640 (1987). Ordinarily, once the court

23

concludes that a right was clearly established, an officer is not entitled to qualified immunity

24

because a reasonably competent public official is charged with knowing the law governing his

25

conduct. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). However, even if the plaintiff

26

has alleged a violation of a clearly established right, the government official is entitled to

27

qualified immunity if he could have “. . . reasonably but mistakenly believed that his . . . conduct

28

did not violate the right.” Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001); see
22

1

also Saucier, 533 U.S. at 205.

2

The first factors in the qualified immunity analysis involve purely legal questions.

3

See Trevino v. Gates, 99 F.3d 911, 917 (9th Cir. 1996). The third inquiry involves a legal

4

determination based on a prior factual finding as to the reasonableness of the government

5

official’s conduct. See Neely v. Feinstein, 50 F.3d 1502, 1509 (9th Cir. 1995). The district court

6

has discretion to determine which of the Saucier factors to analyze first. See Pearson v. Callahan,

7

555 U.S. 223, 236 (2009). In resolving these issues, the court must view the evidence in the light

8

most favorable to plaintiff and resolve all material factual disputes in favor of plaintiff. See

9

Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003).

10

Qualified immunity shields government officials who, in the face of clearly

11

established law, acted reasonably but nonetheless violated some constitutional right. As

12

discussed above, the undisputed evidence shows the Defendants did not violate Plaintiff’s rights.

13

Therefore, qualified immunity is not an issue in this case. And even if the Court concluded the

14

Defendants did violate a clearly established right, they would be entitled to qualified immunity

15

because the undisputed evidence shows that the Defendants acted reasonably by appropriately

16

treating Plaintiff’s medical concerns and providing Plaintiff with a lower bunk accommodation.

17

///

18

///

19

///

20

///

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

///
23

1

V. CONCLUSION

2

Based on the foregoing, the undersigned recommends that:

3

1.

Moving Defendants’ motion for summary judgment, ECF No. 77, be

2.

Judgement be entered as a matter of law in favor of Defendants Tan,

4
5
6
7
8

granted;

Fontillas, Hardman, Win, and Braunger (“Carlson”); and
3.

Non-moving Defendants Hannies, Kiesz, and Herhst be dismissed pursuant

to Federal Rule of Civil Procedure 4(m) for failure to effect timely service of process.

9

These findings and recommendations are submitted to the United States District

10

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

11

after being served with these findings and recommendations, any party may file written objections

12

with the court. Responses to objections shall be filed within 14 days after service of objections.

13

Failure to file objections within the specified time may waive the right to appeal. See Martinez v.

14

Ylst, 951 F.2d 1153 (9th Cir. 1991).

15
16
17
18

Dated: October 29, 2021
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

19
20
21
22
23
24
25
26
27
28
24