Rankins v. Liu et al

Filing 76

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 10/17/19 RECOMMENDING that Defendant's Motion for Summary Judgment 53 be granted. These Findings and Recommendations are submitted to U.S. District Judge Kimberly J. Mueller. Objections to these F&Rs due within fourteen days. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NORMAN RANKINS,

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Plaintiff,

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No. 2:15-cv-1164 KJM DB P

v.

FINDINGS AND RECOMMENDATIONS

ALEXANDER LIU,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff claims defendant violated his rights under the

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Eighth Amendment. Presently before the court is defendant’s fully briefed motion for summary

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judgment. For the reasons set forth below the court will recommend that defendant’s motion for

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summary judgment be granted.
BACKGROUND

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I.

Procedural History

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Plaintiff initiated this action by filing a complaint on May 29, 2015. (ECF No. 1.) The

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original complaint was dismissed during the screening process and plaintiff was given leave to

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amend. (ECF No. 11.) Plaintiff’s first amended complaint (ECF No. 16) presented a cognizable

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claim and the magistrate judge assigned to the case at that time ordered service appropriate for

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defendant, Dr. Liu. (ECF No. 17.)
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After being served defendant moved to dismiss. (ECF No. 28.) Plaintiff then filed a

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motion to amend. (ECF No. 35.) The court granted plaintiff’s motion to amend and denied

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defendant’s motion to dismiss as moot. (ECF No. 39.)

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Plaintiff filed a third amended complaint (TAC). (ECF No. 40.) Thereafter, defendant

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filed a second motion to dismiss. (ECF No. 41.) The undersigned recommended that defendant’s

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motion to dismiss be denied and the recommendations were adopted by the district judge. (ECF

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Nos. 45, 48.) Following discovery, defendant filed the instant motion for summary judgment.

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(ECF Nos. 53, 54.) After requesting and being granted several extensions of time, plaintiff filed

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an opposition to the summary judgment motion. (ECF No. 70.) Defendant filed a reply. (ECF

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No. 71.) Upon reviewing plaintiff’s opposition (ECF No. 70), the court observed that plaintiff

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referenced exhibits in his opposition but had not attached any exhibits to the opposition. The

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court granted plaintiff the opportunity to file the referenced exhibits. (ECF No. 73.) Thereafter,

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plaintiff filed an additional document captioned “Opposition.” (ECF No. 75.) In light of

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plaintiff’s pro se status, the court has reviewed and considered both documents captioned as

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oppositions in its resolution of the pending summary judgment motion.

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II.

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Allegations in the Complaint
Plaintiff claims that defendant violated his right to adequate medical care under the Eighth

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Amendment. Plaintiff had a transurethral resection of the prostate (“TURP”) procedure

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performed by defendant on March 14, 2014. (ECF No. 40 at 7.) Plaintiff alleges he informed

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defendant of post-operative complaints at a follow-up appointment on March 20, 2014. (Id.)

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Specifically, plaintiff indicated that he was in excruciating pain and could only urinate if straining

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to do so. (Id.) Plaintiff claimed defendant told him he was too busy to perform an examination.

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(Id.) Plaintiff repeated his symptoms and begged defendant to examine him. (Id.) However,

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plaintiff alleges defendant stated he would see plaintiff again in two weeks and if plaintiff was

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still symptomatic he would examine him at that time. (Id.)

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On April 7, 2014, plaintiff had a second follow-up appointment with defendant. (Id. at 8.)

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Plaintiff claimed after he informed defendant his symptoms were worse, defendant performed a

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flexible cystoscopy and found debris from the TURP procedure was blocking plaintiff’s urethral

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channel causing plaintiff’s pain and difficulty urinating. (Id.)

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On May 9, 2014, defendant performed a second TURP procedure in response to plaintiff’s

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continued symptoms. (Id. at 9.) Plaintiff saw defendant for a follow-up appointment on May 22,

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2014 and informed defendant he no longer had control of his bladder. (Id.) Defendant told

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plaintiff his complete incontinence was permanent. (Id.)

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Plaintiff claims defendant demonstrated callous indifference when he delayed examining

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plaintiff on March 20, 2014, causing him to suffer unnecessary pain, develop an umbilical hernia,

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and become permanently incontinent. (Id.)

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SUMMARY JUDGMENT

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Defendant argues he is entitled to summary judgment because the undisputed facts show

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that he provided constitutionally adequate treatment and plaintiff cannot show a causal

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connection between the alleged constitutional violation and his harm. (ECF No. 54.)

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In his opposition, plaintiff argues that he informed defendant of his symptoms and

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defendant failed to treat him in violation of his Eighth Amendment rights. (ECF No. 70.)

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Plaintiff’s specifically disputes defendant’s account and report regarding the March 20, 2014

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appointment.

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In his reply, defendant argues summary judgment should be granted because plaintiff has

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failed to meet his burden of proof on a necessary element of deliberate indifference. (ECF No. 71

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at 4.) Defendant claims that plaintiff’s only evidence in this action is that at the March 20, 2014

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appointment he complained of pain and difficulty urinating. However, these are both common

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post-surgical complaints. (ECF No. 71 at 4.) Defendant further argues that even if plaintiff’s

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disputed claim that defendant did not perform an exam on March 20, 2014 is true, it did not

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change plaintiff’s outcome. (ECF No. 71 at 4.) Defendant additionally argues that plaintiff

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cannot claim that defendant’s failure to treat him caused him to develop a hernia because such a

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claim is contradicted by plaintiff’s deposition testimony. (ECF No. 71 at 5.)

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I.

Legal Standards
A. Summary Judgment Standards under Rule 56

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Summary judgment is appropriate when the moving party “shows that there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

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Civ. P. 56(a). Under summary judgment practice, “[t]he moving party bears the burden of

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proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d

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376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving

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party may accomplish this by “citing to particular parts of materials in the record, including

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depositions, documents, electronically stored information, affidavits or declarations, stipulations

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(including those made for purposes of the motion only), admissions, interrogatory answers, or

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other materials” or by showing that such materials “do not establish the absence or presence of a

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genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”

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Fed. R. Civ. P. 56(c)(1).

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“Where the non-moving party bears the burden of proof at trial, the moving party need

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only prove there is an absence of evidence to support the non-moving party’s case.” Oracle

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Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B).

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Indeed, summary judgment should be entered, “after adequate time for discovery and upon

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motion, against a party who fails to make a showing sufficient to establish the existence of an

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element essential to that party’s case, and on which that party will bear the burden of proof at

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trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element

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of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. In such

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a circumstance, summary judgment should “be granted so long as whatever is before the district

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court demonstrates that the standard for the entry of summary judgment, as set forth in Rule

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56(c), is satisfied.” Id.

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

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to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec.

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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the

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existence of this factual dispute, the opposing party may not rely upon the allegations or denials
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of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or

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admissible discovery material, in support of its contention that the dispute exists. See Fed. R.

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Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a

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fact “that might affect the outcome of the suit under the governing law,” Anderson v. Liberty

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Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809

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F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., “the evidence is such that a

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reasonable jury could return a verdict for the nonmoving party,” Anderson, 477 U.S. at 248.

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In the endeavor to establish the existence of a factual dispute, the opposing party need not
establish a material issue of fact conclusively in its favor. It is sufficient that “‘the claimed

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factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the

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truth at trial.’” T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat’l Bank of Ariz. v. Cities

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Serv. Co., 391 U.S. at 288-89 (1968). Thus, the “purpose of summary judgment is to pierce the

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pleadings and to assess the proof in order to see whether there is a genuine need for trial.”

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Matsushita, 475 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

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court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls

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v. Cent. Costa Cnty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (per curiam) (citation

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omitted). It is the opposing party’s obligation to produce a factual predicate from which the

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inference may be drawn. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir.

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1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply

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show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586

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(citations omitted). “Where the record is taken as a whole could not lead a rational trier of fact to

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find for the non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l

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Bank, 391 U.S. at 289).

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On a motion for summary judgment, it is inappropriate for the court to weigh evidence or

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resolve competing inferences. “In ruling on a motion for summary judgment, the court must

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leave ‘[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate

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inferences from the facts’ to the jury.” Foster v. Metropolitan Life Ins. Co., 243 Fed.Appx. 208,

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210 (9th Cir. 2007) (quoting Anderson, 477 U.S. at 255).

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B. Deliberate Indifference under the Eighth Amendment

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The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S.

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Const. amend. VIII. The unnecessary and wanton infliction of pain constitutes cruel and unusual

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punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986);

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Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).

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Neither accident nor negligence constitutes cruel and unusual punishment, as “[i]t is obduracy

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and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited

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by the Cruel and Unusual Punishments Clause.” Whitley, 475 U.S. at 319.

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What is needed to show unnecessary and wanton infliction of pain “varies according to

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the nature of the alleged constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 5 (1992)

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(citing Whitley, 475 U.S. at 320). In order to prevail on a claim of cruel and unusual punishment,

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however, a prisoner must allege and prove that objectively he suffered a sufficiently serious

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deprivation and that subjectively prison officials acted with deliberate indifference in allowing or

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causing the deprivation to occur. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991).

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For an Eighth Amendment claim arising in the context of medical care, the prisoner must

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allege and prove “acts or omissions sufficiently harmful to evidence deliberate indifference to

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serious medical needs.” Estelle, 429 U.S. at 106. To prove that the response of prison officials to

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a prisoner’s medical needs was constitutionally deficient, the prisoner must establish: (1) a

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serious medical need; and (2) deliberate indifference to that need by prison officials. See

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McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds, WMX

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Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).

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A medical need is serious “if the failure to treat the prisoner’s condition could result in

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further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974

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F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include

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“the presence of a medical condition that significantly affects an individual’s daily activities.” Id.

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at 1059-60.
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If a prisoner establishes the existence of a serious medical need, he must then show that

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prison officials responded to the serious medical need with deliberate indifference. See Farmer v.

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Brennan, 511 U.S. 825, 834 (1994). In general, deliberate indifference may be shown when

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prison officials deny, delay, and intentionally interfere with medical treatment, or may be shown

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by the way in which prison officials provide medical care. Hutchinson v. United States, 838 F.2d

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390, 394 (9th Cir. 1988).
Before it can be said that a prisoner’s civil rights have been abridged with regard to

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medical care, “the indifference to his medical needs must be substantial. Mere ‘indifference,’

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‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter

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Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06); see also

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Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere negligence in

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diagnosing or treating a medical condition, without more, does not violate a prisoner’s Eighth

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Amendment rights.”); McGuckin, 974 F.2d at 1059 (same). Deliberate indifference is “a state of

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mind more blameworthy than negligence” and “requires more than ordinary lack of due care for

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the prisoner’s interest or safety.” Farmer, 511 U.S. at 835 (citations omitted).

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Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S.

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at 104-05. To establish a claim of deliberate indifference arising from delay in providing care, a

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plaintiff must show that the delay was harmful. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th

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Cir. 2002); Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at 1059;

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Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Hunt v. Dental Dep’t, 865 F.2d 198,

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200 (9th Cir. 1989); Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir.

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1985). In this regard, “[a] prisoner need not show his harm was substantial; however, such would

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provide additional support for the inmate’s claim that the defendant was deliberately indifferent to

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his needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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Finally, mere differences of opinion between a prisoner and prison medical staff or

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between medical professionals as to the proper course of treatment for a medical condition do not

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give rise to a § 1983 claim. See Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330,

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332 (9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662

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F.2d 1337, 1344 (9th Cir. 1981).

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II.

Material Facts
Defendants filed a Statement of Undisputed Facts (“DSUF”) as required by Local Rule

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260(a). (ECF No. 55.) Plaintiff’s filing in opposition to defendants’ motion for summary

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judgment fails to comply with Local Rule 260(b). Rule 260(b) requires that a party opposing a

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motion for summary judgment “shall reproduce the itemized facts in the Statement of Undisputed

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Facts and admit those facts that are undisputed and deny those that are disputed, including with

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each denial a citation to the particular portions of any pleading, affidavit, deposition,

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interrogatory answer, admission, or other document relied upon in support of that denial.”

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Plaintiff indicates several areas of dispute within his opposition brief and filed a declaration

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containing his own recitation of the relevant facts supporting his claim. (Plaintiff’s Statement of

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Facts (“PSF”) ECF No. 70 at 6-8.)

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The court is mindful of the Ninth Circuit’s instruction that district courts are to “construe

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liberally motion papers and pleadings filed by pro se inmates and should avoid applying summary

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judgment rules strictly.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). Accordingly,

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the court considers the record before it in its entirety despite plaintiff’s failure to be in strict

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compliance with the applicable rules. However, only those assertions in the opposition which

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have evidentiary support in the record will be considered. While the parties dispute the

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characterization of some events and highlight different facts, most of the facts are undisputed.

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A. Undisputed Facts
At all relevant times plaintiff was an inmate within the California Department of

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Corrections and Rehabilitation. (DSUF (ECF No. 55) ¶ 1; PSF (ECF No. 70 at 6-8) ¶ 1.)

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Plaintiff was seen by defendant on February 3, 2014 regarding his complaints of frequent

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urination. (DSUF ¶ 1, 2; PSF ¶ 4.) Following a prostate exam, plaintiff was diagnosed with

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lower urinary tract symptoms with significant bladder outlet obstruction symptoms that could not

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be controlled with medications. (DSUF ¶ 3, 4.) Defendant determined a transurethral resection

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of the prostate (TURP) was a treatment option. (DSUF ¶ 5; PSF ¶ 4.) Defendant discussed the
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TURP procedure as a treatment option with plaintiff. (DSUF ¶ 5, 6; PSF ¶ 4.) Plaintiff consented

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to the procedure following a discussion about the associated risks and benefits of the procedure,

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including the risk of incontinence. (DSUF ¶ 6, 7; PSF ¶ 4.)

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On March 14, 2014, defendant performed the TURP procedure. (DSUF ¶ 8; PSF ¶ 5.)

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During the procedure, defendant resected plaintiff’s enlarged prostate without complication.

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(DSUF ¶ 8; PSF ¶ 5.) Plaintiff was discharged the following day. (DSUF ¶ 9; PSF ¶ 5.)

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Plaintiff states that on or about March 18, 2014, he was seen by prison medical staff for a

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small umbilical hernia. (DSUF ¶ 10; PSF ¶ 6.) A prison doctor reduced the hernia temporarily.

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(DSUF ¶ 10.) The hernia returned, and plaintiff was sent to an outside hospital for evaluation.

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(DSUF ¶ 10.) A computed tomography scan (CT) of plaintiff’s abdomen and pelvis revealed a

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tiny umbilical hernia containing only fat and showed plaintiff’s bladder was grossly normal.

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(DSUF ¶ 11.) Plaintiff’s hernia was reduced for a second time and he was discharged. (DSUF ¶

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12.) Plaintiff’s hernia bulged out again after he was returned to prison and he was referred for a

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surgical repair. (DSUF ¶ 13.) Plaintiff’s hernia was surgically repaired on April 11, 2014.

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(DSUF ¶ 14.)

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On March 20, 2014, plaintiff had a post-operative appointment with defendant. (DSUF ¶

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(DSUF ¶ 16; PSF ¶ 7.) Defendant’s notes summarizing the visit indicate that plaintiff complained

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of difficulty urinating, hematuria (or bloody urine), and that examination showed plaintiff’s

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bladder was not distended. (DSUF ¶ 17.) Defendant instructed plaintiff to return for an

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additional post-operative visit in two weeks to evaluate whether his symptoms had resolved or

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required additional treatment. (DSUF ¶ 18.) Defendant indicated that a cystoscopy would be

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performed for further evaluation if plaintiff’s symptoms had not resolved at that time. (DSUF ¶

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18.)

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Plaintiff had a second post-operative appointment with defendant on April 7, 2014.

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(DSUF ¶ 20; PSF ¶ 9.) Plaintiff reported that he was still having trouble urinating. (DSUF ¶ 20;

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PSF ¶ 9.) Defendant performed a cystoscopy. (DSUF ¶ 21; PSF ¶ 9.) The cystoscopy showed

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that the prostate was not completely healed and there was some debris blocking the prostatic
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urethral channel. (DSUF ¶ 22; PSF ¶ 9.) The debris was broken up and pushed back into the

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bladder where it could possibly spontaneously pass with urination. (DSUF ¶ 22; PSF ¶ 9.)

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Following the cystoscopy plaintiff continued to suffer from difficultly urinating. (DSUF ¶

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24.) Defendant determined that plaintiff’s prostate was incompletely resected or that he had scar

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tissue in the prostate and urethral area. (DSUF ¶ 25.) In order to resolve plaintiff’s symptoms,

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defendant recommended a second TURP procedure. (DSUF ¶ 5; PSF ¶ 9.) Plaintiff elected to

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proceed with a second TURP procedure. (DSUF ¶ 26.)

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On May 9, 2014, defendant performed a cystoscopy and a second TURP procedure,
revealing some residual prostate tissue and some areas that had not completely healed yet.

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(DSUF ¶ 27; PSF ¶ 10.) Plaintiff was discharged the following day. (DSUF ¶ 28.) At a post-

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operative visit on May 22, 2014 plaintiff reported that he suffered from significant pain and

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bladder spasms. (DSUF ¶ 29; PSF ¶ 10.) Plaintiff was treated by defendant for incontinence

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through August 11, 2016. (DSUF ¶ 30.)

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B. Disputed Facts
The main dispute between the parties relates to their accounts of what occurred during the

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March 20, 2014 appointment. However, as set forth below, these factual disputes are not

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material.

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Plaintiff states defendant did not examine him as set forth in defendant’s notes

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summarizing the March 20, 2014 appointment. (ECF No. 70 at 3.) As plaintiff does not dispute

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that he was seen by defendant on March 20, 2014, the court construes this statement to indicate

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that defendant did not conduct a physical examination of plaintiff’s person at the March 20, 2014

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appointment. Additionally, plaintiff alleges defendant’s statement in the notes from the March

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20, 2014 appointment, indicating plaintiff’s bladder was not distended, cannot be correct because

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defendant did not examine him on that date. (Id.)

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Plaintiff also disputes defendant’s statement in his report detailing the March 20, 2014

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visit stating that plaintiff seemed able to empty his bladder. (Id.) Plaintiff claims he told

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defendant “that he was not able to urinate, and when he did, it was only after painfully straining

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to get a little out.” (Id.)
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III.

Analysis
A. Plaintiff’s Condition Constituted a Serious Medical Need

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The court finds, that based on the evidence presented by the parties for purposes of

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summary judgment, a reasonable juror could find that plaintiff’s symptoms, frequent urination,

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difficulty urinating, and post-operative pain, constitute an objective, serious medical need. See

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McGuckin, 974 F.2d at 1059-60 (“The existence of an injury that a reasonable doctor or patient

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would find important and worthy of comment or treatment; the presence of a medical condition

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that significantly affects an individual’s daily activities; or the existence of chronic and

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substantial pain are examples of indications that a prisoner has a ‘serious’ need for medical

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treatment.”); see also Canell v. Brashaw, 840 F.Supp. 1382, 1393 (D. Or. 1993) (the Eighth

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Amendment duty to provide medical care applies “to conditions that may result in pain and

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suffering which serve no legitimate penological purpose.”). Accordingly, the court’s analysis will

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focus on defendant’s response to plaintiff’s serious medical need.

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B. Plaintiff has not Shown Hernia was Caused by Delay in Treatment
Plaintiff alleged in the complaint that defendant’s failure to treat plaintiff’s post-operative

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symptoms at the March 20, 2014 appointment caused him to develop a hernia. (ECF No. 40 at 8.)

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Defendants argue that plaintiff’s development of a hernia was not caused by the delay in

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treatment. (ECF No. 54 at 9-10.) Plaintiff has acknowledged that he developed the hernia before

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his initial post-operative appointment with defendant. (ECF No. 70 at 2.) Thus, plaintiff cannot

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show that the alleged delay, caused plaintiff’s hernia because plaintiff developed the hernia

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before March 20, 2014. Cramer v. Target Corp., No. 1:08-cv-1693 SKO, 2011 WL 5873401 at

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*18 (E.D. Cal. Nov. 22, 2011) (“The question for purposes of Plaintiff’s claim, however, is not

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whether the injuries he sustained [], have caused him further harm, but whether the delay in

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treatment caused him any further harm. It is the delay in treatment that is the essence

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of Plaintiff’s civil rights claim for deliberate indifference, not the harm he suffered as a result of

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his injury in and of itself.”).

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C. Difference of Medical Opinion not Sufficient
Plaintiff’s main argument in opposition is that defendant should have done more at the

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March 20, 2014 appointment. Specifically, plaintiff believes that he would have had a better

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outcome if defendant had performed a cystoscopy on March 20, 2014. (ECF No. 58-1 at 18.)

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However, plaintiff is not a medical expert and cannot opine on the best course of treatment. Nor

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has he presented testimony from a medical expert in support of his position. At best, plaintiff has

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shown that he holds a difference of opinion concerning the proper course of treatment. It is well

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established that mere differences of opinion concerning the appropriate treatment cannot be the

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basis of an Eighth Amendment violation. Jackson, 90 F.3d at 332; Franklin, 662 F.2d at 1344.

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Thus, in order to defeat summary judgment, plaintiff must show that the course chosen by

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defendant was medically unacceptable under the circumstances and that defendant was aware of

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the risk posed by the chosen course. Jackson, 90 F.3d at 332; Farmer, 511 U.S. at 840.

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Defendant argues that plaintiff’s complaints of pain and difficult urination conveyed

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during the March 20, 2014 appointment, are common post-surgical complaints following a TURP

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procedure. (ECF No. 54 at 7; DSUF ¶ 36.) In support of his argument, defendant presented

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evidence, in the form of an expert opinion, showing that defendant’s decision to wait another two

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weeks to evaluate whether plaintiff’s post-surgical symptoms would resolve was appropriate and

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well within the standard of care. The expert also stated that it was appropriate and within the

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common practice of surgeons to not proceed with a cystoscopy while a patient is still healing

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from a TURP procedure, as plaintiff was. (ECF No. 54 at 8; ECF No. 57 at 5.)

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Plaintiff has disputed the statement in defendant’s notes indicating that an “exam” showed

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that plaintiff’s bladder was not distended. (ECF No. 70 at 3.) Plaintiff argues this statement must

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be false because defendant did not examine him on March 20, 2014. However, assuming

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plaintiff’s account is correct, defendant’s expert has stated that even if defendant had physically

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examined plaintiff, it would not have made a difference because defendant’s post-operative

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management was appropriate. (ECF No. 57 at 5; ECF No. 71 at 4-5.) Although the parties

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disagree about what occurred during the March 20, 2014 appointment, defendant has put forth

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evidence, not disputed by plaintiff, showing that this disagreement is immaterial.
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To defeat defendant’s motion for summary judgment, plaintiff must “produce at least

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some significant probative evidence tending to [show],” T.W. Elec. Serv., 809 F.2d at 630, that

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defendant’s actions or failure to act, was “in conscious disregard of an excessive risk to plaintiff’s

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health,” Jackson, 90 F.3d at 332 (citing Farmer, 511 U.S. at 837). Plaintiff states he will present

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expert evidence showing that defendant’s actions were clearly unreasonable in the medical field.

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(ECF No. 70 at 5.) However, as plaintiff was previously instructed (see ECF No. 19 at 6), he is

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required to show proof of his claims in an opposition to properly oppose a summary judgment

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motion.

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Although plaintiff clearly believes that he would have had a better outcome if defendant

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had performed a cystoscopy at the March 20, 2014 appointment, plaintiff is not a doctor, and he

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has not presented any medical evidence demonstrating that defendant’s approach to plaintiff’s

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symptoms was medically unacceptable. Plaintiff’s opinion as to what was or was not proper care,

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does not create a triable issue. See Estelle, 429 U.S. at 106; see also Sanchez, 891 F.2d at 242

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(difference of opinion regarding medical treatment does not amount to deliberate indifference).
Accordingly, the court will recommend that defendant’s motion for summary judgment be

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granted because the undisputed facts fall short of demonstrating deliberate indifference.

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CONCLUSION
For the foregoing reasons, IT IS HEREBY RECOMMENDED that defendant’s motion

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for summary judgment (ECF No. 54) be granted.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days

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

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objections with the court and serve a copy on all parties. Such a document should be captions

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: October 17, 2019

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