Marroquin v. Helen et al

Filing 32

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT by Judge Jon S. Tigar, granting 26 Motion for Summary Judgment. (Attachments: # 1 Certificate/Proof of Service) (wsn, COURT STAFF) (Filed on 1/28/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EDGAR MARROQUIN,

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Case No. 12-cv-0617-JST (PR)

Plaintiff,
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ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

v.
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Re: Dkt. No. 26

MS. HELEN,

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Defendant.

United States District Court
Northern District of California

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Edgar Marroquin, a California prisoner proceeding pro se and currently incarcerated at

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Ironwood State Prison, filed the instant civil rights action pursuant to 42 U.S.C. § 1983, alleging

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that his constitutional rights were violated when he was incarcerated at Salinas Valley State Prison

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(“SVSP”). Marroquin alleges that Nurse Helen (“defendant”) was deliberately indifferent to a

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serious medical need when she refused to provide treatment for plaintiff‟s fractured elbow.
Now before the Court is defendant‟s motion for summary judgment. Marroquin did not

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file any opposition to the motion, and the deadline by which to do so has passed.
FACTUAL BACKGROUND1

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Marroquin fractured his left elbow while playing in the recreation yard at Salinas Valley
State Prison at about 10:00 a.m. on Saturday, June 26, 2010. (Dkt. No. 1 at 5.) He was taken to
the prison‟s medical clinic, where he alleges that he was refused treatment for his fractured elbow,

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which was very painful. (Id. at 5-6.) Nurse Helen did not refer him to a medical doctor or
orthopedic surgeon, and sent him back to his cell without any medical treatment. (Id. at 5-6.) At

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The following facts, unless otherwise noted, are undisputed.

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about 1:00 p.m. that same day, Marroquin returned to the clinic “begging” for help due to the pain

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he was experiencing. (Id. at 6.) Nurse Helen was dismissive toward his complaints of pain and

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said she thought he was “faking.” (Id.) Marroquin‟s complaint indicates that defendant told him

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that the emergency room doctor would not examine and treat him on a weekend because his

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condition was not an emergency; Marroquin was informed him that he would have to wait for a

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weekday to see a doctor. (Id.)
According to defendant‟s medical notes, at the time defendant saw Marroquin, Marroquin

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was awake, alert, and had good vital signs. (Decl. Thornton at ¶ 2; Dkt. No. 1, Ex. B.) Marroquin
complained that, on a scale on 1 to 10, his pain level was at a 10. (Dkt. No. 1, Ex. B.) He also

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United States District Court
Northern District of California

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complained of numbness in his fingers, and his left elbow appeared tender. (Id.) Defendant noted

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that Marroquin had a “good radial pulse,” and his “capillary refill was less than two seconds.”

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(Decl. Thornton at ¶ 2; Dkt. No. 1, Ex. B.) Marroquin‟s physical exam showed no “neurovascular

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compromise or other emergent condition.” (Decl. Thornton at ¶ 2.) Defendant called the

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emergency room regarding Marroquin‟s condition, and the staff at the emergency room told
defendant that Marroquin‟s symptoms did not warrant emergency treatment. (Id. at ¶ 3.)

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Defendant was told that Marroquin should return for a follow-up on Monday, June 28, 2010, for

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an x-ray and further evaluation. (Id.) Defendant relayed that message to Marroquin, and provided

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him with an ice pack and an ace-bandage. (Id. at ¶ 4; Dkt. No. 1, Ex. B.) Defendant also gave

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Marroquin acetaminophen for pain. (Id.) Marroquin said he understood, and walked out of the

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clinic in a stable condition. (Decl. Thornton at ¶ 4.)
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On Sunday, June 27, 2010, Marroquin went to the medical gate to obtain help for his pain
and was told to “get out of here” by some unidentified individual. (Dkt. No. 1 at 8.)
On Monday, June 28, 2010, Marroquin returned to the medical clinic for treatment. His

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elbow was x-rayed and it was determined that he had a hairline fracture and a small bone chip.

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(Decl. Bridgnell at ¶ 4.) Marroquin‟s arm was splinted and he was given Tylenol with codeine for
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pain. (Id. at ¶ 5.) Marroquin continued to have pain thereafter. He states that physical therapy
causes pain and he is still taking pain medication. (Dkt. No. 1 at 5.)
Exhibits to the complaint show abundant encounters with medical staff for care of his

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elbow problems. He has seen doctors and other health care providers numerous times, has had

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multiple x-rays of his elbow, has received various pain medications, has received physical therapy

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for his elbow, was seen by an outside orthopedic surgeon, and has had an MRI.

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DISCUSSION
I.

Standard of Review
Summary judgment is proper where the pleadings, discovery, and affidavits show there is

United States District Court
Northern District of California

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“no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” See Fed. R. Civ. P. 56(a). Material facts are those that may affect the outcome of the case.

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See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is

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genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving

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party. See id.

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A court shall grant summary judgment “against a party who fails to make a showing

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sufficient to establish the existence of an element essential to that party‟s case, and on which that
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party will bear the burden of proof at trial[,] . . . since a complete failure of proof concerning an

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essential element of the nonmoving party‟s case necessarily renders all other facts immaterial.”

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See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the initial

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burden of identifying those portions of the record that demonstrate the absence of a genuine issue

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of material fact. Id. The burden then shifts to the nonmoving party to “go beyond the pleadings

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and by [his] own affidavits, or by the „depositions, answers to interrogatories, and admissions on
file,‟ designate „specific facts showing that there is a genuine issue for trial.‟” See id. at 324

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(citing Fed. R. Civ. P. 56(e) (amended 2010)).
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For purposes of summary judgment, the court must view the evidence in the light most

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favorable to the nonmoving party; if the evidence produced by the moving party conflicts with

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evidence produced by the nonmoving party, the court must assume the truth of the evidence

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submitted by the nonmoving party. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir.

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1999). The court‟s function on a summary judgment motion is not to make credibility

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determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W.

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Elec. Serv., Inc., v. Pacific Elec. Contractors Ass‟n., 809 F.2d 626, 630 (9th Cir. 1987).
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A verified complaint may be used as an opposing affidavit under Rule 56, provided it is

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based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder

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United States District Court
Northern District of California

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v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995) (treating plaintiff's verified complaint

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as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746,

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plaintiff stated, under penalty of perjury, contents were true and correct, and allegations were not
based purely on information and belief but rather on personal knowledge). Here, plaintiff‟s

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verified complaint is considered in opposition to the motion for summary judgment.
II.

Analysis
Deliberate indifference to a serious medical need violates the Eighth Amendment‟s

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

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(1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds,

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WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc); Jones v.
Johnson, 781 F.2d 769, 771 (9th Cir. 1986). A determination of “deliberate indifference” involves

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an examination of two elements: the seriousness of the prisoner‟s medical need and the nature of
the defendant‟s response to that need. See McGuckin, 974 F.2d at 1059.
A “serious” medical need exists if the failure to treat a prisoner‟s condition could result in

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further significant injury or the “unnecessary and wanton infliction of pain.” McGuckin, 974 F.2d

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at 1059 (citing Estelle, 429 U.S. at 104). The “existence of chronic and substantial pain [is an] . . .
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indication[] that a prisoner has a „serious‟ need for medical treatment.” Id. at 1060.
A prison official is deliberately indifferent if he knows that a prisoner faces a substantial

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risk 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). The prison official must not only “be aware of facts from

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which the inference could be drawn that a substantial risk of serious harm exists,” but he “must

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also draw the inference.” Id. If a prison official should have been aware of the risk but was not,

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then the official has not violated the Eighth Amendment, no matter how severe the risk. Gibson v.
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County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002).
A showing of nothing more than a difference of medical opinion as to the need to pursue

United States District Court
Northern District of California

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one course of treatment over another is insufficient, as a matter of law, to establish deliberate

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indifference, see Toguchi v. Chung, 391 F.3d 1051, 1058, 1059-60 (9th Cir. 2004); Sanchez v.

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Vild, 891 F.2d 240, 242 (9th Cir. 1989); Mayfield v. Craven, 433 F.2d 873, 874 (9th Cir. 1970).
In order to prevail on a claim involving choices between alternative courses of treatment, a

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plaintiff must show that the course of treatment the doctor chose was medically unacceptable
under the circumstances and that he chose this course in conscious disregard of an excessive risk

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to plaintiff‟s health. Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.

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1996) (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

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Even assuming that Marroquin had a serious medical need, there is no genuine issue of
material fact in dispute about whether defendant exhibited deliberate indifference with regard to
Marroquin‟s fractured elbow. Although Marroquin‟s allegation creates a genuine dispute as to

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whether he had a “serious” medical need, see McGuckin, 974 F.2d at 1060, Marroquin has not

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come forward with any evidence to show that defendant had the requisite state of mind for a

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deliberate indifference claim.

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Marroquin complains that defendant failed to refer him to an orthopedic specialist, or to
send him to a doctor, or to order x-rays. However, defendant was told by the emergency room
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staff that Marroquin‟s condition did not warrant immediate treatment, and that Marroquin should

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return two days later for a follow-up and an x-ray. Marroquin‟s mere disagreement with this

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decision does not establish deliberate indifference. See Franklin, 662 F.2d at 1344 (holding “[a]

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difference of opinion between a prisoner-patient and prison medical authorities regarding

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treatment does not give rise to a § 1983 claim”). Marroquin fails to provide evidence that

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defendant‟s decision was medically unacceptable or that defendant denied plaintiff alternative
treatment, in conscious disregard of Marroquin‟s health.

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In support of his motion for summary judgment, defendant has submitted a declaration
stating that, based on her examination of Marroquin and her consultation with the emergency

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United States District Court
Northern District of California

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room staff, defendant believed that she provided Marroquin with the appropriate treatment. (Decl.

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Thornton at ¶ 5.) Further, the doctor who provided treatment to Marroquin that following Monday

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supplied a declaration, stating that after reviewing Marroquin‟s medical files regarding the

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fractured elbow, he believed that defendant‟s treatment of Marroquin was reasonable under the

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circumstances. (Decl. Bridgnell at ¶ 6.)
Moreover, there is an absence of evidence that any harm resulted from the delay of two to

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three days between the time defendant saw Marroquin until the time that Marroquin was seen by a

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doctor and received x-rays. See, e.g., Hallett v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002)

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(plaintiffs could not prove Eighth Amendment violation in class action because they “have not

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demonstrated that delays occurred to patients with [dental] problems so severe that delays would
cause significant harm and that defendants should have known this to be the case”).

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Marroquin has produced no evidence to dispute defendant‟s evidence. Marroquin‟s claim

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of deliberate indifference is based entirely on his own opinion with no support in the record.

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Based on the record, the court concludes that no reasonable inference can be drawn that defendant

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knew that Marroquin was faced with a substantial risk of harm if he was not given seen by a

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doctor or received x-rays earlier, nor that defendant disregarded a substantial risk of harm. See
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Farmer, 511 U.S. at 837. At most here, Marroquin has a difference of opinion as to defendant‟s

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treatment of him. However, Marroquin has provided nothing to suggest that defendant‟s actions

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or inactions were medically unacceptable under the circumstances, or that her decisions were

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chosen in conscious disregard to Marroquin‟s health. See id.

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Accordingly, there is no genuine factual dispute as to whether defendant was deliberately
indifferent to Marroquin‟s medical needs in violation of the Eighth Amendment.

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CONCLUSION

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For the foregoing reasons, defendant‟s motion for summary judgment is GRANTED.

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United States District Court
Northern District of California

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The Clerk shall enter judgment and close the file.

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This order terminates Docket No. 26.

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IT IS SO ORDERED.
Dated: January 28, 2014

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______________________________________
JON S. TIGAR
United States District Judge

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