Grogan v. Kessel et al

Filing 18

ORDER by Judge William Alsup granting 16 Motion for Summary Judgment (Attachments: # 1 Certificate of Service) (dt, COURT STAFF) (Filed on 7/22/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C 10-1522 WHA (PR)

DANIEL WAYNE GROGAN,

ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT

Plaintiff,

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For the Northern District of California

United States District Court

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v.
J. CLARK KESSEL, Federal
Receiver; CANDY, C.D.C.R.
Receiver; DR. JAVATE;
CALIFORNIA PRISON HEALTH
CARE CORPORATION,

(Docket No. 16)

Defendants.
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INTRODUCTION

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This is a civil rights action filed under 42 U.S.C. 1983 by a state prisoner proceeding pro

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se. Plaintiff claims that defendant Dr. Javate did not provide adequate medical care while he

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was incarcerated at the California Training Facility in Soledad, California. The claims against

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the other three defendants, Receiver J. Clark Kessel and Candy and the California Prison Health

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Care Corporation, were dismissed for failure to state a cognizable claim for relief. Defendant

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Javate has moved for summary judgment. Although he was give an opportunity to oppose the

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motion, plaintiff has not done so. For the reasons set out below, the motion for summary

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judgment is GRANTED.

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ANALYSIS

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The motion for summary judgment is unopposed. A district court may not grant a

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motion for summary judgment solely because the opposing party has failed to file an

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opposition. Cristobal v. Siegel, 26 F.3d 1488, 1494-95 & n.4 (9th Cir. 1994) (unopposed

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motion may be granted only after court determines that there are no material issues of fact).

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The court may, however, grant an unopposed motion for summary judgment if the movant's

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papers are themselves sufficient to support the motion and do not on their face reveal a genuine

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issue of material fact. See Carmen v. San Francisco Unified School District, 237 F.3d 1026,

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1029 (9th Cir. 2001); see also North American Specialty Insurance Company v. Royal Surplus

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Lines Insurance Company, 541 f.3d 552, 558 (5th Cir. 2008) (if no factual showing is made in

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opposition to a motion for summary judgment, the district court is not required to search the

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For the Northern District of California

United States District Court

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record sua sponte for a triable issue of fact).
The papers in support of the motion for summary judgment show that Dr. Javate was not

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deliberately indifferent to plaintiff’s medical needs in violation of the Eighth Amendment.

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Deliberate indifference to a prisoner's serious medical needs violates the Eighth Amendment's

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proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976).

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A prison official is deliberately indifferent if she knows that a prisoner faces a substantial risk

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of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer

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v. Brennan, 511 U.S. 825, 837 (1994). Neither negligence nor gross negligence will constitute

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deliberate indifference. Id. at 835-36 & n.4 (1994).

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Defendants have presented plaintiff’s medical records which show that Dr. Javate first

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examined plaintiff on February 1, 2010, when plaintiff told her that he had torn ligaments in his

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right knee that his knee and pain in his lower back and foot (Askew Decl. Ex. A). Dr. Javate

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noted that plaintiff had previously been at a different institution where he had an MRI and x-

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rays, but the results of those tests were not in his file (ibid.). She ordered those results,

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prescribed a knee brace, and issued an authorization (called a “chrono”) for a lower bunk and

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relief from work assignments (ibid.). She next examined plaintiff on March 4, 2010, when he

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continued to complain of pain in his knee and back, and she referred him for an MRI and to a

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pain specialist and continued his chrono (id. Ex. B). Her next exam of plaintiff was on April 5,

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2010, when she noted that plaintiff was approved for an MRI and a pain specialist; she also
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continued his chrono and opined that his symptoms suggested a meniscus tear (id. Ex. C). An

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MRI was performed on April 21, 2010, and a radiologist reviewed the results (id. Ex. D). He

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found a torn ligament, a previously repaired ligament, as well as posttraumatic abnormalities

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and degeneration suffered from a prior motorcycle accident (ibid.). On May 7, 2010, Dr.

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Timothy Friederichs referred plaintiff to physical therapy and to an orthopedist, but on May 27,

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2010, plaintiff refused to participate in physical therapy (id. Exs. E, F). X-rays were scheduled

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to be performed on July 22, 2010, but plaintiff declined them and stated that he would handle

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his medical care after he was released from prison, which occurred on August 19, 2010 (id. Ex.

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G).
Defendant’s evidence establishes that Dr. Javate did not disregard plaintiff’s need for

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For the Northern District of California

United States District Court

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medical care, but rather provided a substantial amount of medical treatment for plaintiff’s

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condition. She examined him three times over approximately two months, and ordered both the

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results of a prior MRI and a new MRI when those results did not arrive promptly, referred him

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to a specialist to address his pain, ordered a knee brace, and issued a chrono to ensure that

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plaintiff could sleep on a lower bunk and would miss work. These actions dispel any notion

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that she knowingly disregarded plaintiff’s need for medical care for his knee. There is

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furthermore no evidence that the treatment she provided was deficient or medically

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inappropriate. As noted, plaintiff has filed no opposition, and even the factual allegations in his

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complaint cannot be considered as an opposing affidavit because the complaint is not verified.

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Cf. Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995). Because the

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uncontradicted evidence presented by Dr. Javate demonstrates that she was not deliberately

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indifferent to plaintiff’s serious medical needs, Dr. Javate is entitled to summary judgment on

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plaintiff’s claims.

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//

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//

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CONCLUSION
Defendant’s motion for summary judgment (docket number 16) is GRANTED. The clerk

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shall enter judgment and close the file.

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IT IS SO ORDERED.

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Dated: July 22

, 2011.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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