Johnson v. California Medical Facility, et al.

Filing 62

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 10/3/2017 GRANTING 60 Motion to Strike 59 Sur-Reply and RECOMMENDING 55 Motion to Dismiss be partially granted, defendant be granted qualified immunity, and this action be dismissed. Referred to Judge William B. Shubb. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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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 JACKIE M. JOHNSON, 12 13 14 15 Plaintiff, v. CALIFORNIA MEDICAL FACILITY HEALTH SERVICES, et al., 18 ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 16 17 No. 2:14-cv-0580 WBS KJN P I. Introduction Plaintiff is a former state prisoner, who proceeds without counsel and in forma pauperis in 19 this civil rights action filed pursuant to 42 U.S.C. § 1983. This case proceeds on the fourth 20 amended complaint, solely against defendant Luisa Plasencia, R.N. Presently pending is 21 defendant Plasencia’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). For the 22 reasons that follow, the undersigned recommends that defendant’s motion be partially denied, and 23 defendant be granted qualified immunity. 24 II. The Fourth Amended Complaint 25 Plaintiff alleges the following: On February 28, 2013, a ganglion lymphoma was 26 surgically removed from plaintiff’s left wrist. (ECF No. 38 at 2.) On March 7, 2013, plaintiff’s 27 stitches were removed. Plaintiff was told to wait for defendant Supervising Nurse Luisa 28 Plasencia, R.N. to dress and wrap the incision site. (Id.) The incision site was never dry. After a 1 1 long wait, defendant took one look at the incision site and said “it did not need to be dressed or 2 wrapped,” and then walked away. Defendant refused to give her name and would not give a good 3 examination, but came back with “paper stitches and one not . . . big enough band aid.” (ECF No. 4 38 at 2.) Plaintiff repeatedly asked defendant to dress and wrap the incision site, but defendant 5 “put her hands up and walked away.” (Id.) Defendant allegedly called a correctional officer to 6 remove plaintiff from the clinic, and “waved her hand indifferently in [his] direction, as if [he] 7 were a fly buzzing around her head. . . .” (Id. at 3.) Plaintiff was escorted back to the day room 8 where inmate Thomas saw plaintiff bleeding and gave him a face towel to cover it, and the band- 9 aid and paper sutures were now hanging off plaintiff’s wrist. Plaintiff had another inmate ask the 10 wing correctional officer to call B-1 clinic, which advised the officer to send plaintiff to B-1 after 11 dinner/count. After count, in the dining room, plaintiff realized his wound “is [now] burning with 12 pain[,] bleeding red blood.” (Id.) After presenting at B-1 clinic, plaintiff was referred to the 13 emergency room, where the doctor informed plaintiff the wound could not be re-stitched because 14 it may get infected. Subsequently, various nurses at B-1 clinic dressed and wrapped plaintiff’s 15 wound every day for over 4 weeks. (ECF No. 38 at 4.) At some unidentified point, the wound 16 did get infected, requiring an operation to remove the infected portion. (ECF No. 38 at 3.) Over 17 six months later, plaintiff still gets shooting pain and burning at the wound site, and suffers an 18 ugly scar. 19 Plaintiff provided the declarations of inmates Josh Thomas and Rishardo Lawrence who 20 state that on March 7, 2013, while sitting in the dayroom, they saw plaintiff’s wound was only 21 half covered and the band-aid was wet with or covered in blood. (ECF No. 38 at 5, 9.) Thomas 22 gave plaintiff a towel. At the dining hall during dinner, Thomas and Lawrence noticed plaintiff’s 23 wound was open and bleeding. When plaintiff returned from B-1 clinic, his left wrist was 24 covered with white gauze wrapping or bandaged. (ECF No. 38 at 6, 9.) Lawrence declares that 25 subsequently, plaintiff went to B-1 clinic daily for the changing of his bandages. (ECF No. 38 at 26 10.) 27 //// 28 //// 2 1 2 III. Defendant’s Motion to Strike Plaintiff filed an opposition to defendant’s motion to dismiss; defendant filed a reply. On 3 March 9, 2017, plaintiff signed a document styled, “Reply Not to Dismiss,” in which he claims he 4 has not conceded, and requests that the court not dismiss the pleading because the defendant did 5 not dress plaintiff’s wound as the doctor ordered. (ECF No. 59 at 2.) Defendant moves to strike 6 plaintiff’s filing as an unauthorized sur-reply. (ECF No. 60.) Defendant asserts that sur-replies 7 are not permitted absent a showing of necessity and good cause, and argue that plaintiff’s pro se 8 status does not excuse him from complying with the Court’s rules. Defendant contends that 9 plaintiff had sufficient time to file an opposition to the motion, and that plaintiff’s sur-reply 10 11 reiterates arguments in his opposition. The Local Rules do not authorize the routine filing of a sur-reply. Nevertheless, a district 12 court may allow a sur-reply “where a valid reason for such additional briefing exists, such as 13 where the movant raises new arguments in its reply brief.” Hill v. England, 2005 WL 3031136, at 14 *1 (E.D. Cal. 2005); accord Norwood v. Byers, 2013 WL 3330643, at *3 (E.D. Cal. 2013) 15 (granting the motion to strike the sur-reply because “defendants did not raise new arguments in 16 their reply that necessitated additional argument from plaintiff, plaintiff did not seek leave to file 17 a sur-reply before actually filing it, and the arguments in the sur-reply do not alter the analysis 18 below”), adopted, 2013 WL 5156572 (E.D. Cal. 2013). In the present case, defendant did not 19 raise new arguments in the reply brief, plaintiff did not seek leave to file a sur-reply, and his 20 reiterated allegations (ECF No. 59 at 2:14-28) do not impact the court’s analysis. For these 21 reasons, defendant’s motion to strike plaintiff’s sur-reply is granted. 22 IV. Motion to Dismiss 23 A. Legal Standards Governing Motion to Dismiss 24 Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for 25 “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In 26 considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court 27 must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89 28 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. 3 1 McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 2 1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more 3 than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a 4 cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, 5 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 6 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 7 upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. 8 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to 9 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 10 U.S. at 678. Attachments to a complaint are considered to be part of the complaint for purposes 11 of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Reiner & Co., 12 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). 13 A motion to dismiss for failure to state a claim should not be granted unless it appears 14 beyond doubt that the plaintiff can prove no set of facts in support of his claims which would 15 entitle him to relief. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). In general, pro se 16 pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 17 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz 18 v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court’s liberal 19 interpretation of a pro se complaint may not supply essential elements of the claim that were not 20 pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 21 B. Eighth Amendment Standards 22 Generally, deliberate indifference to a serious medical need presents a cognizable claim 23 for a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. 24 Estelle v. Gamble, 429 U.S. 97, 104 (1976.) According to Farmer v. Brennan, 511 U.S. 825, 947 25 (1994), “deliberate indifference” to a serious medical need exists “if [the prison official] knows 26 that [the] inmate [ ] face[s] a substantial risk of serious harm and disregards that risk by failing to 27 take reasonable measures to abate it.” Id. The deliberate indifference standard “is less stringent 28 in cases involving a prisoner’s medical needs than in other cases involving harm to incarcerated 4 1 individuals because ‘the State’s responsibility to provide inmates with medical care does not 2 conflict with competing administrative concerns.” McGuckin v. Smith, 974 F.2d 1050, 1060 (9th 3 Cir. 1992) (quoting Hudson v. McMillian, 503 U.S. 1, 6 (1992)), overruled on other grounds by 4 WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). Specifically, a determination of “deliberate indifference” involves two elements: (1) the 5 6 seriousness of the prisoner’s medical needs; and (2) the nature of the defendant’s responses to 7 those needs. McGuckin, 974 F.2d at 1059. 8 9 First, a serious medical need exits if the failure to treat a prisoner’s condition could result in further significant injury or the “unnecessary and wanton infliction of pain.” Id. (citing Estelle, 10 429 U.S. at 104). Examples of instances where a prisoner has a “serious” need for medical 11 attention include the existence of an injury that a reasonable doctor or patient would find 12 important and worthy of comment or treatment; the presence of a medical condition that 13 significantly affects an individual’s daily activities; or the existence of chronic and substantial 14 pain. McGuckin, 974 F.2d at 1059-60 (citing Wood v. Housewright, 900 F.2d 1332, 1337-41 15 (9th Cir. 1990). 16 Second, the nature of a defendant’s response must be such that the defendant purposefully 17 ignores or fails to respond to a prisoner’s pain or possible medical need in order for “deliberate 18 indifference” to be established. McGuckin, 974 F.2d at 1060. Deliberate indifference may occur 19 when prison officials deny, delay or intentionally interfere with medical treatment, or may be 20 shown by the way in which prison physicians provide medical care.” Hutchinson v. United 21 States, 838 F.2d 390, 392 (9th Cir. 1988). In order for deliberate indifference to be established, 22 there must first be a purposeful act or failure to act on the part of the defendant and resulting 23 harm. See McGuckin, 974 F.2d at 1060. “A defendant must purposefully ignore or fail to 24 respond to a prisoner’s pain or possible medical need in order for deliberate indifference to be 25 established.” Id. Second, there must be resulting harm from the defendant’s activities. (Id.) The 26 needless suffering of pain may be sufficient to demonstrate further harm. Clement v. Gomez, 298 27 F.3d 898, 904 (9th Cir. 2002). 28 //// 5 1 Mere differences of opinion concerning the appropriate treatment cannot be the basis of an 2 Eighth Amendment violation. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Franklin v. 3 Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). However, a physician need not fail to treat an 4 inmate altogether in order to violate that inmate’s Eighth Amendment rights. Ortiz v. City of 5 Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical 6 condition, even if some treatment is prescribed, may constitute deliberate indifference in a 7 particular case. (Id.) 8 9 10 C. The Parties’ Positions i. Defendant’s Motion Defendant disputes that plaintiff had a serious medical need, arguing that the seriousness 11 of the injury must be evaluated on the basis the condition presented at the time, not based on 12 subsequent conditions the defendant did not observe: 13 14 15 “There are no facts in the FAC [first amended complaint”] that would support a finding that a wart, or ingrown hair, could have resulted in a “significant injury” or in any way “significantly” altered Plaintiff’s daily activities. McGuckin, 914 F.2d at 1059. 16 Larson v. Paramo, 2016 WL 3905712, at *7 (S.D. Cal. July 19, 2016). Plaintiff presented with a 17 small surgical incision which had healed sufficiently to have the stitches removed (by a different 18 nurse) and was not bleeding. Defendant examined plaintiff and determined that all he needed was 19 paper sutures and a band-aid. About four hours later, the site started bleeding, and plaintiff 20 returned to the clinic and his wound was dressed and wrapped by different medical staff. The 21 “small, healing, post-surgical site was not bleeding” when defendant treated plaintiff, and 22 therefore does not constitute a “serious medical need under the Eighth Amendment, relying on 23 Edwards v. California State Prison Los Angeles County, 2012 WL 3023317, *11 (C.D. Cal. July 24 23, 2012) (small cut to prisoner’s hand, which LVN treated, but not to the prisoner’s satisfaction, 25 did not constitute a serious medical need). (ECF No. 55-1 at 5.) 26 Defendant also contends that plaintiff fails to allege facts demonstrating that she could 27 have inferred a substantial risk of harm existed, because the small, healing surgical incision was 28 not bleeding. That plaintiff disagrees with defendant does not establish deliberate indifference, 6 1 but rather a difference of opinion. 2 Defendant also seeks qualified immunity because it was not beyond debate that 3 defendant’s choice of wound dressing violated the Eighth Amendment. Defendant did not fail to 4 treat plaintiff, but rather chose a treatment that was not medically unacceptable under the 5 circumstances. Plaintiff’s incision was small, the wound did not start bleeding until after 6 defendant applied the paper sutures and band-aid and plaintiff had returned to his housing unit, 7 about four hours later. Under these circumstances, it was not beyond debate that defendant’s 8 choice of wound dressing was medically unacceptable and thus was not indisputably 9 unconstitutional. Defendant relies on Jackson, 90 F.3d at 332 (prisoner entitled to qualified 10 immunity unless it is beyond debate that the course of treatment chosen was medically 11 unacceptable under the circumstances), and Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 12 2016) (prison medical providers’ choice of treatment for prisoner’s hernia did not clearly violate 13 the prisoner’s Eighth Amendment rights). 14 ii. Plaintiff’s Opposition 15 Plaintiff counters that he has stated a plausible claim for deliberate indifference to his 16 serious medical needs because the order from the doctor was to wrap and dress the wound 17 because of the removal of the stitches. (ECF No. 57 at 2.) Plaintiff appears to claim that the 18 nurse who took out his stitches told plaintiff that the doctor wrote up the order. (Id.) The incision 19 site was wet when defendant put on the two paper sutures and the band-aid. Despite plaintiff 20 asking defendant to do as the doctor said, defendant refused several times. Defendant did not 21 follow the doctor’s orders, and by not wrapping and dressing plaintiff’s incision, the incision 22 came open. He asks the court not to dismiss his case.1 23 Plaintiff did not address the issue of qualified immunity. 24 iii. Defendant’s Reply 25 Defendant contends plaintiff simply reasserted his allegations and failed to address the 26 legal grounds supporting her motion. Because plaintiff failed to address defendant’s argument 27 1 Plaintiff also discusses matters related to settlement negotiations which are not relevant here. 28 7 1 that the allegations of the pleading are insufficient to state a claim for deliberate indifference and 2 that defendant is entitled to qualified immunity, the court should find that plaintiff conceded 3 defendant’s arguments. (ECF No. 58 at 1-2.) 4 D. Discussion 5 In Edwards, the prisoner inflicted a small cut on his left hand by “banging on the door” of 6 his cell to get a correctional officer’s attention. Id., 2012 WL 3023317, at *11. Edwards’ 7 medical records appended to his pleading established that “his cuts did not constitute a serious 8 medical need or pose a significant threat to his health.” Id. (“he only suffered “several small cuts 9 in his hand”, . . . [Edwards] “appeared well” and expressly admitted he only had “mild pain” and 10 was in “no acute distress,” and that his minor injury was promptly treated with 4 or 5 small 11 stitches, and did not pose a significant threat to his health.”) 12 13 Here, the court does not have benefit of any medical records. Indeed, the court does not even have a definition of “ganglion lymphoma.”2 14 In the operative pleading, plaintiff claims that he was told to wait for defendant to dress 15 and wrap the incision site. (ECF No. 38 at 2.) In his opposition, plaintiff declares that the doctor 16 ordered plaintiff’s incision to be dressed and wrapped. If plaintiff can demonstrate that a doctor 17 ordered that the incision be dressed and wrapped, such order suggests that the doctor found the 18 post-surgical incision to be worthy of treatment. McGuckin, 974 F.2d at 1059. The incision was 19 located on plaintiff’s wrist, and an inference can be made that the frequent use of one’s wrist may 20 put the incision at risk for reopening. Moreover, an inference can be made that the failure to 21 properly care for a surgical incision site, even after the removal of sutures, may subject the patient 22 to an infection or allow the incision to reopen. The fact that the incision was small does not 23 negate the risk of infection. For all of these reasons, at this stage of the proceedings, the 24 undersigned finds that plaintiff has demonstrated a serious medical need, and that the alleged 25 2 26 27 28 As noted by defendant, in the second amended complaint, plaintiff described the ganglion lymphoma as the size of a quarter. (ECF No. 10 at 2.) Defendant asks the court to take judicial notice that a quarter is less than one inch in diameter. (ECF No. 55-1 at 2, citing (United_States_coin) (a quarter has a diameter of .955 inches.”). 8 1 failure to adequately care for the incision site arguably posed a risk that an incision on the wrist 2 might reopen and subject plaintiff to an infection. 3 An important distinction in this case is that plaintiff did not present to defendant for initial 4 treatment. Rather, plaintiff presented to another nurse for removal of stitches after surgery. 5 Following the removal of the stitches, plaintiff declares that he was directed to wait for defendant 6 to dress and wrap the incision site. This fact raises an inference that the other nurse believed the 7 site should be dressed and wrapped. In his opposition, plaintiff declares that the doctor ordered 8 that his incision was to be dressed and wrapped, he was informed of the order by the other nurse, 9 and he claims he informed defendant of the doctor’s order. It is likely that a medical record exists 10 directing that plaintiff return to clinic for removal of stitches within a certain time frame, and that 11 record may include additional follow-up orders or instructions. Again, if plaintiff can adduce 12 evidence that the doctor ordered the incision site to be dressed and wrapped, defendant’s decision 13 to apply two paper sutures and a band-aid to a wet incision site was arguably contrary to, or 14 interfered with, the doctor’s order, constituting deliberate indifference. 15 On the other hand, defendant may be able to adduce evidence that the doctor did not order 16 the incision dressed and wrapped, and that defendant’s decision to apply the two paper sutures 17 and a band-aid was reasonable, based on defendant’s own examination. 18 If plaintiff had simply presented to defendant for an initial exam of the incision site and 19 defendant examined the site and determined that only two paper sutures and a band-aid was 20 sufficient, this court would find such claim was, at most, mere negligence. But on a motion to 21 dismiss, the court must take as true plaintiff’s claims that he was told to wait for defendant to 22 dress and wrap the site, and that the doctor ordered that the incision site on plaintiff’s wrist be 23 dressed and wrapped. The use of a band-aid and paper sutures does not appear to be the 24 equivalent of “dressing and wrapping,” as ordered by the doctor, because other nurses 25 subsequently wrapped plaintiff’s incision site with white gauze bandages, suggesting that the use 26 of paper sutures and a band-aid was inadequate. Whether or not plaintiff’s incision began 27 bleeding immediately or hours later in the dining room is of no consequence where plaintiff 28 alleges that the wound was wet, and that the band-aid and paper sutures were inadequate to keep 9 1 the wound from reopening, which it did, and put plaintiff at risk for infection, which he 2 subsequently developed, and then required an operation to address. Defendant’s refusal to wrap 3 and dress plaintiff’s incision, contrary to the doctor’s orders, could be construed as deliberate 4 indifference. 5 For all of the above reasons, the undersigned recommends that defendant’s motion to 6 dismiss the complaint for failure to state a plausible claim for deliberate indifference to a serious 7 medical need be denied. 8 E. Qualified Immunity 9 Government officials are immune from civil damages “unless their conduct violates 10 ‘clearly established statutory or constitutional rights of which a reasonable person would have 11 known.’” Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 12 U.S. 800, 818 (1982)). “Qualified immunity balances . . . the need to hold public officials 13 accountable when they exercise power irresponsibly and the need to shield officials from 14 harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. 15 Callahan, 555 U.S. 223, 231 (2009). “Because qualified immunity protects government officials 16 from suit as well as from liability, it is essential that qualified immunity claims be resolved at the 17 earliest possible stage of litigation.” Id. at 233-34 (citing Mitchell v. Forsyth, 472 U.S. 511, 526, 18 (1985)). 19 In analyzing a qualified immunity defense, the court must consider the following: (1) 20 whether the alleged facts, taken in the light most favorable to the plaintiff, demonstrate that 21 defendant’s conduct violated a statutory or constitutional right; and (2) whether the right at issue 22 was clearly established at the time of the incident. Saucier v. Katz, 533 U.S. 194, 201 (2001). 23 These questions may be addressed in the order most appropriate to “the circumstances in the 24 particular case at hand.” Pearson, 555 U.S. at 236. Thus, if a court decides that plaintiff’s 25 allegations do not support a statutory or constitutional violation, “there is no necessity for further 26 inquiries concerning qualified immunity.” Saucier, 533 U.S. at 201. On the other hand, if a court 27 determines that the right at issue was not clearly established at the time of the defendant’s alleged 28 misconduct, the court need not determine whether plaintiff’s allegations support a statutory or 10 1 constitutional violation. Pearson, 555 U.S. at 236-242. 2 6 A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, “[t]he contours of [a] right [are] sufficiently clear” that every “reasonable official would have understood that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L.Ed.2d 523 (1987). We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate. See ibid.; Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 89 L.Ed.2d 271 (1986). 7 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). A right is clearly established if “it would be clear 8 to a reasonable [official] that his conduct was unlawful in the situation he confronted . . . or 9 whether the state of the law [at the time of the violation] gave fair warning to the official[ ] that 10 [his] conduct was [unlawful].” Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002) (internal 11 quotation marks and citations omitted). This does not require that the same factual situation must 12 have been decided, but that existing precedent would establish the statutory or constitutional 13 question beyond debate. Id.; Nelson v. City of Davis, 685 F.3d 867, 884 (9th Cir. 2012). 3 4 5 14 Here, defendant relies on al-Kidd, and Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 15 1996) (defendant entitled to qualified immunity unless it is beyond debate that the course of 16 treatment chosen was medically unacceptable under the circumstances).3 Defendant argues that 17 she is entitled to qualified immunity because it is not beyond debate that defendant’s choice of 18 wound dressing violated the Eighth Amendment. 19 At the time of this incident, it was clearly established that prison officials could not be 20 deliberately indifferent to plaintiff’s serious medical needs. But in the context of this case, it was 21 not clearly established that defendant would or could have known that in exercising her medical 22 judgment, even in the face of a doctor’s note instructing that the incision be dressed and wrapped, 23 defendant’s choice of applying two paper sutures and a band-aid instead of gauze bandages would 24 violate plaintiff’s constitutional rights. Defendant did not fail to treat plaintiff, but rather chose a 25 3 26 27 28 Defendant primarily relies on cases decided in 2015, 2016, and 2017. (ECF No. 55-1 at 7.) However, when engaging in qualified immunity analysis, district courts are required to consider the law at the time the plaintiff’s injury occurred. Robinson v. Prunty, 249 F.3d 862, 866 (9th Cir. 2001). The incident at issue here occurred in 2013. Because these cases cited by defendant were decided after the 2013 medical care at issue here, such decisions could not have guided defendant’s conduct in 2013, and are therefore not addressed. 11 1 treatment that was arguably not medically unacceptable. Plaintiff provides no legal authority 2 demonstrating that it is beyond debate that applying two paper sutures and a band-aid to his 3 incision was medically unacceptable under the circumstances. Indeed, he provided no legal 4 authority. A reasonable medical professional in defendant’s position could have believed that 5 despite the doctor’s order, defendant, as an R.N. had the authority to exercise her medical 6 judgment, following the removal of sutures, to determine the appropriate dressing for a small 7 incision that was not bleeding at the time of treatment. 8 9 10 11 Therefore, the undersigned recommends that defendant be granted qualified immunity and this action be dismissed. VI. Conclusion For the foregoing reasons, IT IS HEREBY ORDERED that defendants’ motion (ECF No. 12 60) to strike plaintiff’s sur-reply (ECF No. 59) is granted. 13 IT IS HEREBY RECOMMENDED that: 14 1. Defendants’ motion to dismiss (ECF No. 55) be partially granted; 15 2. Defendant be granted qualified immunity; and 16 3. This action be dismissed. 17 These findings and recommendations are submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 19 after being served with these findings and recommendations, petitioner any party may file written 20 objections with the court and serve a copy on all parties. Such a document should be captioned 21 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 22 objections shall be filed and served within fourteen days after service of the objections. The 23 parties are advised that failure to file objections within the specified time may waive the right to 24 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 Dated: October 3, 2017 26 27 /john0580.mtd.12b6 28 12

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