Thompson v. Saukhla et al

Filing 96

ORDER signed by Senior Judge William B. Shubb on 4/27/21 ORDERING that defendants' 81 , 83 motions for summary judgment are GRANTED as to plaintiff's first claim for deliberate indifference to serious medical needs or serious risk of harm in violation of the Eighth Amendment under 42 U.S.C. § 1983. Plaintiff's remaining claims against defendants under California law are DISMISSED WITHOUT PREJUDICE to refiling in state court. CASE CLOSED (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FELICIA THOMPSON, INDIVIDUALLY
AND AS SUCCESSOR IN INTEREST OF
KEITH AUSTIN THOMPSON
Plaintiff,

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No. 2:18-cv-02422 WBS KJN
MEMORANDUM AND ORDER RE
DEFENDANTS’ MOTIONS FOR
SUMMARY JUDGMENT

v.
NARINDER SAUKHLA, M.D.; RUTH
PORTUGAL; SILOCHANA NAIDOO;
BRIAN BRIGGS; MONICA R. CORTEZ;
ANDRES D. GALVAN; BETHLEHEM
HAILE, M.D.; et al.
Defendants.

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Plaintiff Felicia Thompson brought this action against

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defendants Narinder Saukhla, M.D. (“Dr. Saukhla”), Ruth Portugal

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(“Nurse Portugal”), and Brian Briggs (“Officer Briggs”),

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individually and as the as successor-in-interest to her father,

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decedent Keith Austin Thompson (“decedent” or “Thompson”),

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seeking damages under 42 U.S.C. § 1983 for deliberate

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indifference to a serious medical need in violation of the Eighth
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Amendment, and alleging medical malpractice/professional

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negligence and wrongful death under California state law. 1

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Second Amended Complaint (“SAC”) (Docket No. 34).)

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now move for summary judgment on all claims except for

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plaintiff’s state law claims against Dr. Saukhla.

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Portugal’s Mot. for Summ. J. (“Portugal MSJ”) (Docket No. 81-1);

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Defs. Saukhla & Briggs Mot. for Summ. J. (“Saukhla & Briggs MSJ”)

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(Docket No. 85).)

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I.

(See

Defendants
(See Def.

Factual and Procedural Background

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This action arises out of the death of Keith Thompson,

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a 57-year-old inmate imprisoned at California Medical Facility

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Prison (“CMF”) in Vacaville, California, in the early hours of

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September 3, 2017.

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Facts (“Saukhla & Briggs SUF”) No. 1 (Docket No. 83-1).)

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Thompson suffered from several ongoing health conditions prior to

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his death, including type II diabetes, chronic kidney disease,

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glaucoma, and HIV.

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Decl.”), Ex. D, Record Review Report of Dr. Dan L. Field (“Field

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Report”) at 3 (Docket No. 83-3).)

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(See Saukhla & Briggs Statement of Undisputed

(See Decl. of Diana Esquivel (“Esquivel

Plaintiff’s original complaint alleged generally the
same claims as the operative complaint, but named other
defendants, who have since been dismissed. (See Compl. (Docket
No. 1); Docket Nos. 28, 32, 78, 86.) The operative complaint
also names two other successors-in-interest to Thompson, Kibriyaa
Taajwar (f/k/a Keith Thompson, Jr.) and Austin Shuntay Williams,
as defendants pursuant to California Code of Civil Procedure
§ 382, because plaintiff has been unable to ascertain whether
they choose to participate in the action. See Cal. Code Civ. P.
§ 382; (SAC ¶¶ 8-9). Though Taajwar and Williams are named as
nominal defendants, plaintiff does not assert any actual claims
or seek any relief from them. In reality, they are plaintiffs.
See Hall v. Superior Ct., 108 Cal. App. 4th 706, 715 (2d Dist.
2003).
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In the week leading up to his death, evidence shows

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that Thompson began feeling unwell, such that he was unable to

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work in his position as the chairman of the Men’s Advisory

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Council at CMF.

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of Undisputed Facts (“Pl.’s Resp. to Saukhla & Briggs SUF”) No.

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43 (Docket No. 89).)

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temperatures at CMF exceeded 110 degrees Fahrenheit.

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44).

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began to act incoherently and appear noticeably ill and weak.

(Pl.’s Resp. to Defs. Saukhla & Briggs Statement
On the afternoon of September 2nd,
(Id. at No.

Evidence shows that, around 4:30 p.m. that day, Thompson

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(Id. at No. 45.)

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and expressing confusion as to where he was.

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46.)

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off in the dorm’s shower.

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he wanted to keep his clothes on in the shower, and said he was

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ready to go “man down,” a general term used in the prison context

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to describe a situation where an inmate needs to be seen in the

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prison emergency room as quickly as possible.

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45; Index of Exs. in Support of Portugal Mot. for Summ. J., Ex.

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12 (“Portugal Dep.”) 34:10-25 (Docket No. 81-3).)

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Witnesses describe him as slurring his words
(Id. at Nos. 45-

Thompson asked his bunkmate, Melvin Smith, to help him cool
(Id. at No. 45.)

Thompson stated that

(Id. at Nos. 34,

Because it was well-known that the dorm’s showers only

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produced hot water, and due to Thompson’s erratic behavior, a

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correctional officer, Cortez, was summoned.

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Immediately upon seeing Thompson, Officer Cortez radioed for a

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“man down.”

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(“Portugal SUF”) No. 12 (Docket No. 81-2).)

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(Id.)

(Id. at Nos. 46-47.)

(Portugal Statement of Undisputed Facts

Nurse Portugal, who was working in CMF’s treatment

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and triage area (“TTA”) that day, responded to the man down call,

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arriving at the dorm at approximately 4:50 p.m.
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(Portugal SUF

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Nos. 3, 13; Pl.’s Resp. to Saukhla & Briggs SUF No. 47; Index of

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Exs. in Support of Portugal Mot. for Summ. J., Ex. 2 (“Portugal

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Decl.”) ¶¶ 9-10.)

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immediately transported Thompson back to the TTA and adjacent “B-

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1 clinic,” conducting an initial assessment of Thompson as she

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went.

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Decl. ¶¶ 9-10; Index of Exs. in Support of Portugal Mot. for

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Summ. J., Ex. 3 (“Thompson Initial Assessment”).)

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recorded Thompson’s chief complaint as “exhaustion.”

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Because of the heat, Nurse Portugal

(See Pl.’s Resp. to Saukhla & Briggs SUF No. 47; Portugal
Nurse Portugal
(See

Thompson Initial Assessment.)

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Upon arriving at the B-1 clinic, at 5:04 p.m., Nurse

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Portugal performed at full assessment of Thompson.

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Exs. in Support of Portugal Mot. for Summ. J., Ex. 4 (“TTA Flow

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Sheet”).)

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systems, but noted that his respiration was “slightly” rapid,

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that he appeared drowsy (though oriented), and that his right

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pupil was not reactive to light. (Portugal Dep. 41:20-46:20; TTA

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Flow Sheet.)

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of 96.5 degrees Fahrenheit and a Glasgow Coma Scale (“GCS”)

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score--a measure of responsiveness involving the eye, verbal, and

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muscular response levels--of 15/15 (a perfect score).

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Sheet; Portugal Dep. 44:10-23, 53:24-54:2.)

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(See Index of

She recorded a generally normal review of Thompson’s

Nurse Portugal further recorded a body temperature

(TTA Flow

At this point, plaintiff’s and defendants’ accounts of

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events begin to diverge.

Nurse Portugal contends that, although

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he was alert and oriented, Thompson refused to answer her

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questions regarding his history and his complaints.

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Portugal Decl. ¶ 9.)

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history of glaucoma, and concluded that his pupil reaction was

(See

Nurse Portugal noted that Thompson had a
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therefore not unusual.

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followed commands by assisting medical staff in transferring him

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from the gurney to the bed in the TTA, responded to questions

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about his pain levels by asking for pain medication, and complied

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with requests to open his eyes, Nurse Portugal concluded that

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Thompson’s lack of response was voluntary, and inferred from his

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drowsiness that his chief complaint was “heat exhaustion,” though

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Thompson had not explicitly stated that he was feeling too hot or

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that he was suffering from heat exhaustion.

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TTA Flow Sheet; Portugal Dep. 39:10-41:19.)

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(See id. at ¶ 12.)

Because Thompson

(See id. at ¶¶ 9-11;

Plaintiff contends that Thompson was not voluntarily

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refusing to answer Nurse Portugal’s questions--rather, Thompson’s

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responses of “let me sleep” or “leave [me] be” were indications

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that Thompson was still experiencing the changes to his mental

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status that had led officers in his dorm to call “man down” in

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the first place.

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Though there is no evidence in the record that Nurse Portugal was

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ever informed of Thompson’s behavior at the dorm, or that he had

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been feeling sick for the past week, another inmate who was

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present at the B-1 clinic, Earl Miller, testified that upon

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Thompson’s arrival, Thompson “at times . . . didn’t know . . .

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where he was at” and that “sometimes he looked at me like he

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didn’t know me, and then an hour or so later, he would call me by

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name.”

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Dep.”) 36:9-19.)

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(See Pl.’s Resp. to Portugal SUF Nos. 14.)

(Index of Exs. in Support of Pl.’s Opp’n at 118 (“Miller
Plaintiff’s expert, Dr. Field, contends that the

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behavior described by Miller, along with symptoms that Nurse

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Portugal’s herself noted--that Thompson was having difficulty
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moving on his own, that his eyes were initially closed, that his

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pupil was not reactive to light, and that he was not responsive

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to questioning--is more consistent with a GCS score as low as 9,

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which would represent a true medical emergency in this setting.

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(Pl.’s Resp. to Saukhla & Briggs SUF No. 53.)

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Nurse Portugal continued to monitor Thompson’s vital

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signs over the course of the next several hours, until Thompson

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was discharged from the clinic.

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Nurse Portugal collected six sets of vital signs at 5:05 p.m.,

(See TTA Flow Sheet.)

In all,

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5:15 p.m., 6:30 p.m., 7:00 p.m., 8:00 p.m., and 9:00 p.m.

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id.)

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relatively stable and, if anything, appeared to improve: his

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pulse decreased from 118 to 94, his temperature remained

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approximately 96.5 degrees, his blood pressure decreased from

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144/72 to 120/67, and his respiration remained relatively

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constant at 22 breaths/minute.

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inmate, Miller, testified that Thompson complained to nursing

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staff that he was having trouble breathing (Miller Dep. 37:8-

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38:9), Thompson’s blood-oxygen saturation was measured at 100%

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throughout his stay in the clinic.

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(See

Over the course of four hours, Thompson’s vitals remained

(See id.)

While the other

(Id.)

Because Thompson had been complaining of “10/10” pain

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in his back, Nurse Portugal gave Thompson water and Tylenol at

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approximately 6:00 p.m.

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She also performed a finger-stick blood sugar test at

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approximately 6:30, which returned a normal value.

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(Id. at 2; Portugal Dep. 47:5-50:25.)
(Id.)

At approximately 6:50 p.m., Nurse Portugal called Dr.

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Saukhla, the on-call doctor for the TTA and the B-1 clinic.

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(Portugal SUF No. 18; Saukhla & Briggs SUF Nos. 2, 7.)
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Nurse

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Portugal informed Dr. Saukhla that Thompson had gone man down for

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“exhaustion” and conveyed Thompson’s vital signs, which reflected

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Thompson’s temperature of 96.5 degrees and slightly elevated

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blood pressure, pulse, and respiration rate.

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SUF No. 8; Portugal Dep. 72:21-73:6.)

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Saukhla with a list of Thompson’s existing medical conditions.

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(See Esquivel Decl., Ex. C (“Thompson Med. Records”) at 13.)

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Nurse Portugal further informed Dr. Saukhla that she had given

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Thompson Tylenol for his back pain and that he had drank three to

(Saukhla & Briggs

She also provided Dr.

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four cups of water.

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Portugal did not inform Dr. Saukhla that Thompson had been

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complaining about shortness of breath or that he had been having

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trouble breathing, but did inform him that Thompson’s blood

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oxygen level was 100%.

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13.)

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informed Dr. Saukhla that Thompson was unable or unwilling to

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answer her questions or that he was experiencing signs of an

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altered mental state.

(Saukhla & Briggs SUF No. 8.)

Nurse

(Id. at No. 16; Thompson Med. Records at

No evidence in the record suggests that Nurse Portugal

(Saukhla & Briggs SUF No. 16.)

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Dr. Saukhla was aware that it had been a particularly

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hot day and that other inmates had been seen in the TTA and the

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B-1 clinic for complaints of exhaustion due to dehydration.

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(Saukhla & Briggs SUF No. 8.)

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information Nurse Portugal provided, Dr. Saukhla considered the

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possibility that Thompson’s complaints of exhaustion were

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“secondary” to the heat (i.e., that they were caused by the heat

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and not by some other underlying condition), and ordered that

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Nurse Portugal observe Thompson for 45-60 minutes and provide him

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plenty of fluids orally.

Based on this information and the

(Id. at No. 10.)
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Dr. Saukhla did not

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further inquire with Nurse Portugal to see if Thompson had

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exhibited any mental status changes.

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Briggs SUF No. 10.)

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(Pl.’s Resp. to Saukhla &

Plaintiff’s expert witness, Dr. Field, contends that

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had Dr. Saukhla inquired as to Thompson’s mental status and had

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Nurse Portugal informed Saukhla of the symptoms Thompson was

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exhibiting, Thompson’s need for emergency medical attention would

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have become clear at this time.

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that Nurse Portugal could not have accurately conveyed how much

(Id.)

Plaintiff also contends

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water Thompson had drunk at that point because she was not

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actively monitoring Thompson’s water intake.

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Nurse Portugal testified that she gave Thompson a pitcher of

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water to drink, one of the inmate janitors at the B-1 clinic,

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Crumwell, provided a sworn declaration that he had to bring

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Thompson a container of ice water because he did not have any and

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was asking for water.

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Opp’n at 19 (“Crumwell Decl.”) (Docket No. 90).)

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stated that he had to lift Thompson up into a sitting position to

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drink because he was unable to sit up on his own.

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(See id.)

While

(Pl.’s Index of Exs. in Support of Pl.’s
Crumwell also
(Id.)

Nurse Portugal continued to monitor Thompson and called

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Dr. Saukhla two more times before Thompson was discharged.

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(Saukhla & Briggs SUF Nos. 13-17; Portugal SUF Nos. 21-28.)

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Saukhla noted Thompson’s vital signs and, based on the

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information Nurse Portugal provided him, instructed her to

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continue monitoring Thompson, give him dinner, and ensure he

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drank plenty of fluids.

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Thompson ate 10-15% of his meal and that he was “resting

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comfortably” during this time.

Nurse Portugal’s notes indicate that

Dr.

(Id.)
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However, Crumwell, the

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inmate janitor, stated that he had to assist Thompson in using

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the restroom and that Thompson was unable to feed himself when

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Crumwell brought him food.

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not specify whether this food was in addition to the food Nurse

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Portugal says Thompson ate.

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clinic, Earl Miller, observed that, when a nurse brought Thompson

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his food, Thompson told her he could not eat anything.

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Exs. in Support of Pl.’s Opp’n at 12 (“Miller Decl.”).)

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Thompson continued to report his back pain as a 10/10, Nurse

(Crumwell Decl. at 2.)
(See id.)

Crumwell does

Another inmate in the
(Index of
Because

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Portugal administered Tylenol No. 3--Tylenol with codeine--

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pursuant to a physician’s standing order (an order which permits

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Nurse Portugal to administer the medication whenever certain

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conditions are met).

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(Portugal SUF No. 24; Portugal Decl. ¶ 18.)

By 9:41 p.m., when Nurse Portugal and Dr. Saukhla had

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their third call, defendants’ contention is that Thompson

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indicated that he was feeling better and that his back pain had

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lessened to a 3/10.

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Med. Records at 13.)

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trended towards normalcy (Thompson Med. Records at 13; Portugal

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Decl. ¶¶ 13, 19), Dr. Saukhla concluded that Thompson’s

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dehydration had resolved, and ordered Nurse Portugal to encourage

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Thompson to continue to drink fluids and to return Thompson to

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his dorm.

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(See Saukhla & Briggs SUF No. 16; Thompson
Because Thompson’s vitals appeared to have

(Portugal SUF No. 28; Saukhla & Briggs SUF No. 15.)
Officer Briggs arrived at the B-1 clinic to escort

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Thompson back to his dorm at approximately 11:00 p.m.

(Saukhla &

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Briggs SUF No. 18.)

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his bed.

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indicating that, by the time Thompson was set to leave the clinic

When Briggs arrived, Thompson was still in

(Id. at No. 19.)

Plaintiff offers witness testimony
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with Officer Briggs, his condition had not improved and that, in

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fact, he was still too weak to stand on his own or move from his

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bed to a wheelchair, and was still complaining that he was having

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trouble breathing (though records indicate that his oxygen

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saturation levels were still at 100%).

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Miller Dep. 37:8-45:9; Miller Decl.; TTA Flow Sheet.)

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(See Crumwell Decl.;

Another nurse in the clinic, Nurse Joseph, informed

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Officer Briggs that Thompson was ready to go back to his housing

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unit and had already been cleared by medical staff.

(Saukhla &

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Briggs SUF at No. 19.)

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go, and Thompson replied “Yes Briggs, I’m ready to go,” or words

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to that effect.

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escorted Thompson back to his room, Thompson seemed fatigued, as

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if he had been tired, but was coherent.

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& Briggs SUF No. 21.)

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full conversation with Thompson about Thompson’s release date,

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sports, and children.

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Briggs asked Thompson if he was ready to

(Id. at No. 20.)

Briggs contends that when he
(Id. at No. 75; Saukhla

Briggs states that he was able to have a
(Id.)

Plaintiff contends that Thompson was continuing to

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experience mental status changes as Briggs escorted him back to

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the dorm.

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Miller noted that, as Thompson was being wheeled out of the

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clinic, he was not talking or looking around.

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Plaintiff points out that even Briggs’ account--which describes

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Briggs as moving slowly to ensure Thompson did not fall out of

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his chair--implies that Thompson was having trouble staying

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upright.

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was sliding out of his wheelchair and was still noticeably unwell

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upon his return to the dorm.

(See Pl.’s Resp. to Saukhla & Briggs SUF No. 21-22.)

(Id.)

(Id. at No. 60.)

Multiple inmate witnesses reported that Thompson
(Id. at No. 78.)
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One witness

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stated that Thompson began rattling off numbers and saying that

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someone was after him.

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at 7 (“Smith Decl.”).)

(Index of Exs. in Support of Pl.’s Opp’n

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Within 10-15 minutes of arriving at his dorm, Thompson

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went “man down” for a second time, and was taken back to the TTA

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on a gurney.

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At approximately 11:30, Nurse Joseph called Dr. Saukhla and

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informed him that Thompson was not talking and was exhibiting

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loss of consciousness.

(Id. at No. 77; Saukhla & Briggs SUF Nos. 23-25.)

(Saukhla & Briggs SUF No. 26.)

Nurse

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Joseph also informed him that Thompson’s temperature was 96.8,

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his blood pressure and pulse had decreased, and that he was cold,

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clammy, and drowsy.

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administered and that Thompson be transferred to VacaValley

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Hospital for a higher level of care.

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hours later, in the early hours of September 3, 2017, at

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VacaValley Hospital.

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(Id.)

Dr. Saukhla ordered that IV fluids be
(Id.)

Thompson died a few

(Id.)

Plaintiff’s expert, defendants Saukhla and Briggs’

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expert, and the Solano County Coroner all came to different

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conclusions regarding the cause of Thompson’s death.

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County Coroner performed an autopsy shortly after Thompson’s

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death, and concluded that the cause of death was acute mixed drug

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intoxication based on his observation of elevated levels of

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chlorpheniramine (a mild decongestant) and opiates in his blood.

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(Index of Exs. in Support of Saukhla & Briggs Mot. Summ. J., Ex.

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21 (“Vilke Dep.”) 20:6-23; Index of Exs. in Support of Pl.’s

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Opp’n at 166 (“Field Dep.”) 35:23-36:22.)

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Dr. Vilke, disagreed with this conclusion, and instead found that

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Thompson’s death was caused by “hyperkalemia,” or elevated
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The Solano

Defendants’ expert,

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potassium levels, due to kidney failure.

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20:23.)

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suffer a heart attack, which caused his death.

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(Vilke Dep. 18:16-

These elevated potassium levels caused Thompson to
(Id.)

Plaintiff’s expert, Dr. Field, also disagreed with the

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coroner’s conclusion that Thompson died from acute mixed drug

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intoxication.

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died from sepsis leading to multiorgan failure and cardiac

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arrest.

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Thompson first presented to the B-1 clinic, his vital signs

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displayed 3 out of the 4 criteria for Systemic Inflammatory

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Response Syndrome (“SIRS”), a deadly condition in which the body

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is under attack.

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of Pl.’s Opp’n, at 1 (“Field Rebuttal Report”).)

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with an infection, SIRS becomes sepsis, the life-threatening

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condition that Dr. Field contends Thompson ultimately died from.

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(Field Rebuttal Report

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Dr. Field instead concluded that Thompson likely

(Field Report at 11.)

Dr. Field contends that, when

(Field Report at 10; Index of Exs. in Support
When combined

The key vital sign that Dr. Field focuses on is

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Thompson’s temperature--Dr. Field contends that Dr. Saukhla

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should have recognized the possibility that Thompson was

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suffering from SIRS based on his temperature of 96.5 degrees,

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which Dr. Field states is hypothermic in the SIRS context and

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inconsistent with Dr. Saukhla’s diagnosis of heat illness.

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(Field Report at 10-11.)

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Thompson was suffering from symptoms of SIRS and was hypothermic,

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Dr. Saukhla’s failure to inquire further into the possibility

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that Thompson was exhibiting mental status changes and his

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failure to transfer Thompson to an emergency medical setting fell

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below the standard of care and constituted deliberate

Dr. Field concludes that, because

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indifference to Thompsons’ well-being.

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2.)

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II.

(Field Rebuttal Report at

Analysis

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Summary judgment is proper “if the movant shows that

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there is no genuine dispute as to any material fact and the

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movant is entitled to judgment as a matter of law.”

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P. 56(a).

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initial burden of establishing the absence of a genuine issue of

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material fact and can satisfy this burden by presenting evidence

Fed. R. Civ.

The party moving for summary judgment bears the

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that negates an essential element of the non-moving party’s case.

11

Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

12

Alternatively, the movant can demonstrate that the non-

13

moving party cannot provide evidence to support an essential

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element upon which it will bear the burden of proof at trial.

15

Id.

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burden shifts to the non-moving party to set forth specific facts

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to show that there is a genuine issue for trial.

18

“Where the record taken as a whole could not lead a rational

19

trier of fact to find for the non-moving party, there is no

20

genuine issue for trial.”

21

Radio Corp., 475 U.S. 574, 587 (1986).

22

the underlying facts must, however, be viewed in the light most

23

favorable to the party opposing the motion.

24
25
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If the moving party has properly supported its motion, the

A.

See id. at 324.

Matsuhita Elec. Indus. Co. v. Zenith
Any inferences drawn from
See id.

Plaintiff’s § 1983 Claims for Deliberate Indifference
under the Eighth Amendment
Plaintiff’s operative complaint states a § 1983 claim

27

under the Eighth Amendment against all three defendants.

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generally SAC.)

(See

To establish a violation of the Eighth Amendment
13

1

due to inadequate medical care, a plaintiff must establish that

2

the alleged inadequacy rises to the level of “deliberate

3

indifference to serious medical needs.”

4

U.S. 97, 106 (1976).

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deliberate indifference consists of two parts.

6

Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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plaintiff must show a ‘serious medical need’ by demonstrating

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that ‘failure to treat a prisoner’s condition could result in

9

further significant injury or the unnecessary and wanton

Estell v. Gamble, 429

In the Ninth Circuit, the test for
See Jett v.
“First, the

10

infliction of pain.’”

11

104 F.3d 1133, 1096 (9th Cir. 1997)).

12

show that “the defendant’s response to the need was deliberately

13

indifferent.”

14

Id. (quoting WMX Techs., Inc. v. Miller,
Second, the plaintiff must

Id.

All three defendants assert the defense of qualified

15

immunity from suit on plaintiff’s § 1983 claim.

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qualified immunity “protects government officials ‘from liability

17

for civil damages insofar as their conduct does not violate

18

clearly established statutory or constitutional rights of which a

19

reasonable person would have known.’”

20

U.S. 223, 231 (2009)(citing Harlow v. Fitzgerald, 457 U.S. 800,

21

818 (1982).)

22

qualified immunity, the court considers: (1) whether there has

23

been a violation of a constitutional right; and (2) whether the

24

official’s conduct violated “clearly established” federal law.

25

Sharp v. Cnty. of Orange, 871 F.3d 901, 909 (9th Cir. 2016)

26

(citing Kirkpatrick v. Cnty. Of Washoe, 843 F.3d 784, 788 (9th

27

Cir. 2016)).

28

The doctrine of

Pearson v. Callahan, 555

To determine whether an official is entitled to

Qualified immunity is a question of law to be decided
14

1

by the court.

See Hunter v. Bryant, 502 U.S. 224, 228 (2009).

2

Qualified immunity attaches when an official’s conduct does not

3

violate clearly established statutory or constitutional rights of

4

which a reasonable person would have known.

5

Hughes, 138 S. Ct. 1148, 1152 (2018) (internal citations

6

omitted).

7

case law does not require a case to be directly on point for a

8

right to be clearly established, existing precedent must have

9

placed the statutory or constitutional question beyond debate.

See Kisela v.

Although the Supreme Court has established that the

10

See White v. Pauly, 137 S. Ct. 548, 551 (2017).

11

Court has also made clear that clearly established law should not

12

be defined at a high level of generality.

13

at 1152.

14

right allegedly violated was clearly established at the time of

15

the official’s allegedly impermissible conduct.”

16

McCarthy, 998 F.2nd 638, 640 (9th Cir. 1993).

The Supreme

See Kisela, 138 S. Ct.

17

The plaintiff bears the burden of “proving that the
Camarillo v.

Qualified immunity applies to cases brought under the

18

Eighth Amendment the same as it does to cases brought for

19

violations of rights provided by other amendments, such as the

20

Fourth Amendment.

21

1043, 1049 (9th Cir. 2002).

22

analysis in an Eighth Amendment case for deliberate indifference

23

to a serious medical need is different than in an excessive force

24

case, or even a detention or arrest case, under the Fourth

25

Amendment.

26

prison official has deliberately ignored the serious medical need

27

of an inmate, one might speculate as to whether qualified

28

immunity is appropriate at all, as it is somewhat difficult to

See Estate of Ford v. Ramirez-Palmer, 301 F.3d
It is obvious, however, that the

Because the Eighth Amendment inquiry asks whether a

15

1

imagine scenarios in which a reasonable official could think it

2

was reasonable to be deliberately indifferent to a substantial

3

risk of serious harm.

4

1062, 1066 (9th Cir. 1992), the Ninth Circuit held that a

5

“finding of deliberate indifference necessarily precludes a

6

finding of qualified immunity” for this very reason.

7

Indeed, in Hamilton v. Endell, 981 F.2d

However, just ten years after deciding Hamilton, the

8

Ninth Circuit reversed course and held in Estate of Ford that the

9

Supreme Court’s intervening decision in Saucier v. Katz, 533 U.S.

10

194 (2001) had effectively overruled Hamilton.

11

301 F.3d 1049.

12

qualified immunity was inappropriate in an excessive force case

13

because the constitutional inquiry--whether unreasonable force

14

was used in making the arrest--and the inquiry on qualified

15

immunity were the same.

16

Court reversed, observing that the goal of qualified immunity

17

would be undermined if summary judgment were denied every time a

18

material issue of fact remains on an excessive force claim, and

19

holding that the qualified immunity inquiry therefore must be

20

analyzed separately from the constitutional inquiry.

21

Estate of Ford,

In Saucier, the Ninth Circuit had held that

Saucier, 533 U.S. at 202.

The Supreme

Id.

Estate of Ford made clear that the principle espoused

22

in Saucier applies in the Eighth Amendment context as well.

See

23

Estate of Ford, 301 F.3d at 1049.

24

analyzed separately from the inquiry of whether an official has

25

exhibited deliberate indifference to a serious medical need,

26

because “the qualified immunity inquiry ‘has a further

27

dimension’”--the clearly-established law inquiry.

28

Saucier, 533 U.S. at 205).

Qualified immunity must be

Id. (quoting

This inquiry recognizes that “it is
16

1

often difficult for an officer to determine how the relevant

2

legal doctrine will apply to the factual situation that he

3

faces,” and, therefore, “all but the plainly incompetent or those

4

who knowingly violate the law” have immunity from suit.

5

“If the law at the time of an alleged violation did not clearly

6

establish that the specific situation faced by an officer was

7

sufficiently serious, ‘a reasonable prison official understanding

8

that he cannot recklessly disregard a substantial risk of serious

9

harm, could know all of the facts yet mistakenly, but reasonably,

Id.

10

perceive that the exposure in any given situation was not that

11

high.’”

12

Cir. 2021) (quoting Estate of Ford, 301 F.3d at 1050).

13

circumstance, the official would be entitled to qualified

14

immunity even though he had, in fact, been deliberately

15

indifferent to what turned out to be a substantial risk of

16

serious harm.

17

Sandoval v. Cnty. of San Diego, 985 F.3d 657, 672 (9th
In such a

See id.

Accordingly, the court must analyze whether defendants

18

are entitled to qualified immunity in the same manner it would in

19

a Fourth Amendment or any other context.

20

discretion to analyze the “clearly established law” prong of the

21

qualified immunity analysis first, and, if analysis of that prong

22

proves dispositive, the court need not analyze the other.

23

Pearson, 555 U.S. at 236.

24

“dispositive inquiry” in the clearly-established analysis is

25

“‘whether it would be clear to a reasonable officer that his

26

conduct was unlawful in the situation he confronted,’ based on

27

the law at the time.”

28

of Ford, 301 F.3d at 1050).

The court has the

See

According to the Ninth Circuit, the

Sandoval, 985 F.3d at 672 (quoting Estate
17

1

1.

Nurse Portugal

2

Plaintiff has not met her burden of demonstrating that

3

it would have been clear to a reasonable officer in Nurse

4

Portugal’s position that her conduct was unlawful.

5

argues that, in the Ninth Circuit, it has been clearly

6

established that prison officials violate the Constitution when

7

they “deny, delay or intentionally interfere” with needed medical

8

treatment.

9

679.

Plaintiff

See Jett, 439 F.3d at 1096; Sandoval, 985 F.3d at

The strongest case plaintiff offers in support of this

10

contention is Sandoval, which involved two separate holdings that

11

the conduct of three nurses did not warrant the application of

12

qualified immunity.

13

First, in Sandoval, the Ninth Circuit held that a jail

14

nurse was not entitled to qualified immunity for failure to

15

provide constitutionally adequate medical care where evidence

16

submitted by the plaintiff showed that the nurse had “fail[ed] to

17

provide any meaningful treatment to an inmate who was sweating

18

and appeared so tired and disoriented that a deputy urged that he

19

be re-evaluated.”

20

deputy that the inmate was shaking, tired, disoriented, and

21

needed to be looked at more thoroughly, the nurse merely

22

administered a duplicative, “very quick” blood sugar test, and

23

then failed to check on the detainee--who was obviously

24

exhibiting drug withdrawal symptoms and was visibly shaking--for

25

six hours, though his cell was only located 20 feet away.

26

Second, the Ninth Circuit held that two other jail nurses were

27

not entitled to qualified immunity where the evidence showed that

28

they delayed calling paramedics for over 40 minutes upon finding

Id. at 680.

Despite being told by a sheriff’s

18

Id.

1

an inmate who had collapsed to the ground and was completely

2

“unresponsive and having a seizure or ‘seizure-like activity.’”

3

Id. at 663.

4

Sandoval is so factually distinguishable that it could

5

not have placed a reasonable nurse in Portugal’s position on

6

notice that her conduct was unlawful.

7

that Nurse Portugal responded to the initial “man down” call from

8

Thompson’s dorm, transported him back to the B-1 clinic,

9

attempted to evaluate the cause of his symptoms, measured his

Undisputed evidence shows

10

vital signs, administered pain medication in response to his

11

requests, communicated with Dr. Saukhla, the on-call physician,

12

on three separate occasions, and carried out the treatment plan

13

formulated by Dr. Saukhla, ultimately measuring Thompson’s vital

14

signs six times over approximately four hours before sending

15

Thompson back to his dorm on Dr. Saukhla’s orders.

(See Pl.’s

16

Resp. to Portugal SUF Nos. 12-28; TTA Flow Sheet.)

While

17

plaintiff raises factual disputes as to whether Nurse Portugal

18

adequately monitored Thompson’s fluid intake, or accurately

19

reported how much he ate, the picture of Nurse Portugal’s care

20

that arises from the undisputed evidence is a far cry from simply

21

administering one “quick 10-second blood test” while otherwise

22

ignoring an inmate in obvious need of help for hours on end.

23

Sandoval, 985 F.3d at 680.

24

See

Nor is plaintiff’s argument that Nurse Portugal “failed

25

to accurately assess and observe that Mr. Thompson was

26

experiencing symptoms of mental status changes” persuasive.

27

Pl.’s Resp. to Portugal SUF No. 14.)

28

more than a disagreement with the medical conclusion Nurse
19

(See

At best, this is nothing

1

Portugal came to after attempting to assess plaintiff’s mental

2

state on the way to and at the B-1 clinic.

3

Ninth Circuit has held that prisoners have the right to be free

4

from a “course of treatment that is medically unacceptable under

5

the circumstances.”

6

Cir. 1996).

7

this does not mean that every disagreement over medical treatment

8

rises to the level of a constitutional violation--the state

9

official must also have chosen that course of treatment in

10

conscious disregard of an excessive risk to the decedent’s

11

health.

12

this is not a case where a nurse mistakenly diagnosed a patient

13

after reasonably attempting to ascertain the cause of unexplained

14

symptoms.”).

15

It is true that the

Jackson v. McIntosh, 90 F.3d 330, 332 (9th

However, the Ninth Circuit has also made clear that

See id.; Sandoval, 985 F.3d at 680 (“We emphasize that

Plaintiff does not provide any evidence that Nurse

16

Portugal purposefully or consciously avoided evaluating

17

Thompson’s mental state.

18

that Nurse Portugal followed CMF policy by asking Thompson

19

questions regarding his complaints and performing a GCS

20

evaluation in order to assess his mental status.

21

Resp. to Portugal SUF Nos. 14, 15, 18; Pl.’s Resp. to Saukhla &

22

Briggs SUF Nos. 38, 40.)

23

that, because Thompson answered at least some of Nurse Portugal’s

24

questions--by asking her to let him sleep, indicating that his

25

back hurt, and stating that he wanted pain medication--and

26

complied with her verbal commands, Nurse Portugal ultimately

27

concluded that Thompson’s failure to answer some of her questions

28

was not clinically significant.

Rather, the undisputed evidence shows

(See Pl.’s

The undisputed evidence further shows

(See Pl.’s Resp. to Portugal SUF

20

1

Nos. 14, 15, 18.)

2

R.N., opined that Nurse Portugal’s assessment that Thompson was

3

voluntarily refusing to respond to her initial inquiries was

4

reasonable under the circumstances and within the standard of

5

care for a nurse in a correctional setting.

6

Support of Portugal MSJ, Ex. 20 (“Booth Decl.”) ¶ 17 (Docket No.

7

81-3).)

8
9

Nurse Portugal’s expert witness, Nancy Booth,

(Index of Exs. in

Plaintiff counters that, even if there is no direct
evidence that Nurse Portugal consciously ignored Thompson’s

10

mental status changes, the fact that those mental status changes

11

were obvious to other eyewitnesses would allow a jury to conclude

12

that Nurse Portugal did consciously pursue a course of treatment

13

that posed an excessive risk to Thompson’s health by failing to

14

adequately describe those changes to Dr. Saukhla or escalate

15

Thompson’s care to an emergency medical setting.

16

Report at 8); Farmer v. Brennan, 511 U.S. 825, 842 (1970) (noting

17

that a jury may infer a prison official’s knowledge of a

18

substantial risk “from the very fact that the risk was obvious”).

19

However, plaintiff points to no clearly established law

20

requiring a nurse to call 9-1-1 or alert a physician based on the

21

types of mental status changes observed by witnesses in this

22

case--occasionally appearing confused as to where one is,

23

slurring one’s words, babbling, and failing to remember other

24

inmate’s names.

25

position would simply not have concluded that failing to alert a

26

doctor or call an ambulance to transport Thompson to the

27

emergency room presented the same risk of harm as failing to call

28

a paramedic for an inmate who is completely unconscious and

See (Field

A reasonable official in Nurse Portugal’s

21

1

actively seizing on the floor of a jail cell, especially

2

considering the fact that Thompson was already located in a

3

clinical (albeit not an emergency) setting and was already being

4

treated by a physician.

5

See Sandoval, 985 F.3d at 680.

The reasonableness of Nurse Portugal’s conduct is

6

further evidenced by the testimony of her expert witness, Nancy

7

Booth.

8

declarations and depositions of eyewitnesses at the facility--Ms.

9

Booth concluded that nothing in Thompson’s presentation should

After a full review of the record--including the written

10

have led Portugal to believe that Thompson was suffering from a

11

more serious illness that required emergent care.

12

Decl. ¶ 19.)

13

the fact that a qualified expert opined that Nurse Portugal’s

14

course of treatment was medically acceptable under the

15

circumstances supports the conclusion that a reasonable nurse in

16

Portugal’s position would not have known that her course of

17

treatment violated the law.

18

Portugal is therefore entitled to qualified immunity as to

19

plaintiff’s § 1983 claim for deliberate indifference under the

20

Eighth Amendment.

(See Booth

Though plaintiff’s expert, Dr. Field, disagrees,

See Jackson, 90 F.3d at 332.

21

2.

22

Nurse

Dr. Saukhla

Plaintiff has also failed to meet her burden of

23

demonstrating that law was clearly established such that a

24

reasonable physician in Dr. Saukhla’s position would have known

25

that his conduct was unlawful.

26

for the proposition that Thompson “had a clearly established

27

right to be free from a course of treatment that is medically

28

unacceptable under the circumstances.”

Plaintiff again cites to Jackson

22

Jackson, 90 F.3d at 332.

1

However, as noted above, the Ninth Circuit has made it clear that

2

a mere “difference of medical opinion” does not, by itself,

3

establish a violation of the Eighth Amendment.

4

words, the fact that a doctor misdiagnoses a patient or provides

5

him with medically unacceptable treatment does not turn a claim

6

of malpractice into an Eighth Amendment claim simply because the

7

patient is a prisoner.

8

458, 460 (9th Cir. 1980).

9

the defendant must have chosen the medically unacceptable course

Id.

In other

See Broughton v. Cutter Labs., 622 F.2d
To violate clearly established law,

10

of treatment in conscious disregard of an excessive risk to the

11

patient’s health.

12

See Jackson, 90 F.3d at 332.

In Jackson, the Ninth Circuit held that the physician

13

defendants were not entitled to qualified immunity at the motion

14

to dismiss stage because the plaintiff had adequately alleged

15

that the defendants denied him the opportunity for a kidney

16

transplant not because of an honest medical judgment, but “on

17

account of personal animosity.”

18

presented no evidence, and does not even appear to argue, that

19

Dr. Saukhla acted pursuant to any personal animosity toward

20

Thompson.

21

Id.

Here, plaintiff has

Rather, plaintiff relies on the testimony of her

22

expert, Dr. Field, to argue that Dr. Saukhla deliberately ignored

23

the possibility that Thompson was experiencing mental status

24

changes.

25

Saukhla for “failing to inquire about Mr. Thompson’s true mental

26

status.”

27

potentially lethal condition, based on his abnormal vital signs

28

alone,” Dr. Field opines that Dr. Saukhla should have asked Nurse

(See Field Report at 4, 10.)
Id.

Dr. Field faults Dr.

Because Thompson “met SIRS criteria, signifying a

23

1

Portugal additional questions regarding Thompson’s mental status

2

to appropriately determine whether transport to emergency care

3

was necessary.

4

argues that Dr. Saukhla should have asked about Thompson’s mental

5

status even under his diagnosis of heat illness with dehydration,

6

and that under this diagnosis, there were additional tests Dr.

7

Saukhla should have ordered, including orthostatic evaluation and

8

IV fluids.

9

a difference of medical opinion.

(Field Report at 10-11.)

(Id.)

Dr. Field further

Again, this argument presents little more than
See Jackson, 90 F.3d at 332.

10

There is a fundamental difference between not doing something the

11

doctor should have done and acting with deliberate indifference.

12

Dr. Saukhla’s expert, Dr. Vilke, testified that

13

Thompson’s vital signs could have been indicative of dehydration

14

as a result of heat exhaustion, and that his low body

15

temperature, while on the lower end of what is normal, was not

16

necessarily indicative of a more serious medical condition.

17

(Vilke Dep. 31:21-37:17.)

18

the information Nurse Portugal provided Dr. Saukhla, Dr.

19

Saukhla’s inquiry into the circumstances surrounding Thompson’s

20

need to go “man down” and Dr. Saukhla’s chosen course of

21

treatment were medically reasonable.

22

68:4-69:11.)

He further testified that, based on

(Vilke Dep. 33:17-34:10;

23

Plaintiff presents no evidence that Dr. Saukhla was

24

ever made aware of information from which he could infer that

25

Thompson was experiencing altered mental status or a continued

26

serious medical need warranting transfer to a higher level of

27

care.

28

the medical records suggested that Dr. Saukhla was ever informed

Dr. Field even conceded in his deposition that nothing in
24

1

by Nurse Portugal that Thompson was not responding, that he was

2

babbling, or that he had any sort of altered mental status.

3

(Field Dep. 119:8-123:19.)

4

The undisputed evidence instead shows that Dr. Saukhla

5

considered Thompson’s body temperature, as well as all of his

6

other vital signs, and ultimately concluded that Thompson was

7

likely suffering from heat exhaustion.

8

Nos. 10-12.)

9

law indicating that a physician has violated the Eighth Amendment

(See Saukhla & Briggs SUF

Plaintiff does not point to any clearly established

10

when he attempts, in good faith, to diagnose a patient’s

11

condition and, based on this diagnosis, chooses a course of

12

treatment that, while ultimately wrong, is medically acceptable

13

to at least some well-qualified members of the profession.

14

Jackson, 90 F.3d at 332.

15

See

This is not a case like Jett, where a doctor

16

purposefully delayed setting and casting an inmate’s fractured

17

thumb for six months, despite acknowledging that this course of

18

treatment was required to alleviate the inmate’s pain and avoid

19

permanent disfigurement.

20

case, there is simply no evidence suggesting that Dr. Saukhla

21

“consciously disregarded” a substantial risk of harm resulting

22

from Thompson’s altered mental status that would have been

23

“obvious” to a reasonable physician in his position.

24

Jackson, 90 F.3d at 332.

See Jett, 439 F.3d at 1096.

In this

See

25

If well-qualified experts disagree as to whether Dr.

26

Saukhla chose a medically acceptable course of action based on

27

the information available at the time, the risk of harm to

28

Thompson of failing to inquire as to Thompson’s mental status or
25

1

failing to order additional tests can hardly be said to have been

2

“obvious” to a reasonable physician.

3

therefore entitled to qualified immunity as to plaintiff’s § 1983

4

claim for deliberate indifference under the Eighth Amendment.

See id.

Dr. Saukhla is

5

3.

Officer Briggs

6

Finally, plaintiff has also failed to demonstrate that

7

Officer Briggs’ conduct violated clearly established law.

8

Plaintiff, again relying on Sandoval, argues that Officer Briggs

9

effectively “stood by” as Thompson suffered from what was

10

obviously acute distress in transporting him back to his dorm,

11

rather than taking some other action to treat his condition, such

12

as calling 9-1-1.

13

at 680.

14

Briggs’ position would have realized that continuing to transport

15

Thompson back to his room, “away from necessary medical

16

treatment,” after seeing that he was slipping out of his chair

17

was constitutionally impermissible.

18

(See Pl.’s Opp’n at 10-11); Sandoval, 985 F.3d

Plaintiff contends that any reasonable officer in

See id.

Again, Sandoval is distinguishable from the case at

19

hand.

Not only did Sandoval involve the reasonableness of the

20

actions of medically-trained nurses, as opposed to medically-

21

untrained correctional staff, it did not concern a situation in

22

which the defendant indisputably was acting pursuant to the

23

orders of medical staff.

24

657.

25

has held that a correctional officer must second-guess the

26

representation of medical staff that an inmate-patient is

27

medically cleared to return to his housing unit and call 9-1-1 or

28

otherwise summon emergency medical care.

See generally Sandoval, 985 F.3d at

Plaintiff does not identify a single case in which a court

26

1

To the contrary, the Supreme Court has held that

2

“clearly established federal law does not prohibit a reasonable

3

officer . . . from assuming that proper procedures . . . have

4

already been followed.”

5

Briggs was therefore entitled to assume that proper medical

6

procedures, including Nurse Portugal’s medical clearance of

7

Thompson just minutes before, had been followed.

8

Because plaintiff has failed to identify sufficiently specific

9

constitutional precedents that would have alerted a reasonable

See White, 137 S. Ct. at 552.

Officer

See id.

10

officer in Officer Briggs’ position that his conduct was

11

unlawful, Officer Briggs is entitled to qualified immunity on

12

plaintiff’s claim for deliberate indifference under the Eighth

13

Amendment.

14

For the foregoing reasons, defendants Portugal,

15

Saukhla, and Briggs are entitled to summary judgment on

16

plaintiff’s first claim for deliberate indifference under the

17

Eighth Amendment.

18

B.

19

Plaintiff’s State Law Claims
Because summary judgment will be granted on plaintiff’s

20

federal claim as to all three defendants against whom relief is

21

sought, the court no longer has federal question jurisdiction,

22

the alleged basis for federal jurisdiction in this case. 2

23
24
25
26
27
28

(See

Plaintiff’s operative complaint does not allege that
diversity jurisdiction exists in this case. See generally SAC;
see also 28 U.S.C. § 1332. Though plaintiff alleges that she is
a resident of Ohio, she does not present allegations related to
the citizenship of defendants Saukhla, Portugal, Briggs, Kibriyaa
Taajwar, or Austin Shuntay Williams. (See SAC ¶¶ 7-17.) The
court is therefore unable to find that one of the two necessary
prerequisites for diversity jurisdiction, complete diversity of
citizenship among the parties, is met in this case. See Fifty
27
2

1

SAC ¶¶ 4-5.)

2

all other claims that are so related to claims in the action

3

within such original jurisdiction that they form part of the same

4

case or controversy under Article III of the United States

5

Constitution.”

6

decline to exercise supplemental jurisdiction. . . [if] the

7

district court has dismissed all claims over which it has

8

original jurisdiction.”

9

Varian Assocs., Inc., 114 F.3d 999, 1001 n.3 (9th Cir. 1997) (en

10

banc) (explaining that a district court may decide sua sponte to

11

decline to exercise supplemental jurisdiction).

12

Federal courts have “supplemental jurisdiction over

28 U.S.C. § 1367(a).

But a district court “may

28 U.S.C. § 1367(c); see also Acri v.

The Supreme Court has stated that “in the usual case in

13

which all federal-law claims are eliminated before trial, the

14

balance of factors to be considered under the pendent

15

jurisdiction doctrine--judicial economy, convenience, fairness

16

and comity--will point toward declining to exercise jurisdiction

17

over the remaining state-law claims.”

18

Cohill, 484 U.S. 343, 350 n.7 (1988).

19
20
21
22
23
24
25
26
27
28

Carnegie- Mellon Univ. v.

Here, comity weighs in favor of declining to exercise
Associates v. Prudential Ins. Co. of Am., 446 F.2d 1187, 1190
(9th Cir. 1970) (“The prerequisites to the exercise of
jurisdiction are specifically defined. They are conditions which
must be met by the party who seeks the exercise of jurisdiction
in his favor. He must allege in his pleading the facts essential
to show jurisdiction. If he fails to make the necessary
allegations he has no standing.” (quoting McNutt v. Gen. Motors
Acceptance Corp. of Indiana, 298 U.S. 178, 189 (1935)); Elshazi
v. Dist. of Columbia, 415 F. Supp. 3d 20, 28 n.5 (D.D.C. 2019)
(concluding that, although plaintiff “may have been able to may
have been able to bring [his] case under the Court's diversity
jurisdiction,” because he had not invoked diversity jurisdiction
or pled the citizenship of the defendants, he “ha[d] not
established that complete diversity of citizenship exists”).
28

1

supplemental jurisdiction over plaintiff’s state law claims

2

against defendants for “Wrongful Death: Negligence/Malpractice”

3

and “Wrongful Death, Code Civ. Proc. § 377.60.”

4

The state courts are fully competent to adjudicate such claims.

5

Some of plaintiff’s claims raise peculiar questions of state

6

law. 3

7

resolve.

(See SAC at 13.)

Such questions are better left to California courts to

8

As for judicial economy, plaintiff’s state law claims

9

have not been the subject of any significant litigation in this

10

case.

11

supplemental jurisdiction.

12

do not weigh in favor of exercising supplemental jurisdiction

13

over plaintiff’s remaining state law claim.

14

state fora are equally convenient for the parties.

15

reason to doubt that the state court will provide an equally fair

16

adjudication of the issues.

17

plaintiff from refiling her state law claims against the

18

remaining defendants in state court, 4 and any additional cost or

19
20
21
22
23
24
25
26
27
28

Judicial economy does not weigh in favor of exercising
And finally, convenience and fairness
The federal and
There is no

There is nothing to prevent

For instance, plaintiff’s claim for medical malpractice
against Nurse Portugal would require the court to address the
question of whether plaintiff’s retained expert, Dr. Field, is
qualified to offer expert testimony. California law prohibits
expert physicians from testifying as to the applicable standard
of care for nurses in medical malpractice claims “absent some
‘certification, expertise or relevant knowledge’ of the
applicable standard of care.” Trujillo v. Cnty. of Los Angeles,
951 F. App’x 968, 972 (9th Cir. 2018). Because plaintiff’s
expert, Dr. Field, is not a registered nurse, the court would
have to deal with the knotty issue of whether his experience
working with and supervising nurses throughout his career would
qualify him to opine on the applicable standard of care for Nurse
Portugal in light of California case law.
4
“[T]he period of limitations for any claim asserted
under [28 U.S.C. § 1367(a)], and for any other claim in the same
29
3

1

delay resulting therefrom should be minimal.

2

court declines to exercise supplemental jurisdiction and will

3

dismiss plaintiff’s remaining state law claims without prejudice

4

to refiling in state court.

5

Accordingly, the

IT IS THEREFORE ORDERED that defendants’ motions for

6

summary judgment (Docket Nos. 81, 83) be, and the same hereby

7

are, GRANTED as to plaintiff’s first claim for deliberate

8

indifference to serious medical needs or serious risk of harm in

9

violation of the Eighth Amendment under 42 U.S.C. § 1983.

10

Plaintiff’s remaining claims against defendants under California

11

law are DISMISSED WITHOUT PREJUDICE to refiling in state court.

12

Dated:

April 27, 2021

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

action that is voluntarily dismissed at the same time or after
the dismissal of the claim under subsection (a), shall be tolled
while the claim is pending and for a period of 30 days after it
is dismissed unless State law provides for a longer tolling
period.” 28 U.S.C. § 1367(d).
30