Sowell v. Munks et al

Filing 18

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT. Signed by Judge William Alsup on 12/18/13. (Attachments: # 1 Certificate/Proof of Service)(dt, COURT STAFF) (Filed on 12/19/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ARTHUR SOWELL,
For the Northern District of California

United States District Court

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No. C 13-0965 WHA (PR)

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ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT

Plaintiff,
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v.
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SAN MATEO COUNTY SHERIFF
GREG S; CHIEF MEDICAL
DIRECTOR JEAN S. FRASER;
NURSE MALOU; NURSE LISA,

(Docket No. 20)

Defendants
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INTRODUCTION
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Plaintiff filed this pro se civil rights action under 42 U.S.C. 1983. He claims that he
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received inadequate medical Carre when he was detained in the San Mateo County jail in
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November 2011. Defendants Greg Munks, Jean S. Fraser, Merilou Meria and Lisa Khan filed a
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motion for summary judgment and served plaintiff with the warning about summary judgment
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motions required by Rand v. Rowland, 154 F.3d 952,953-954 (9th Cir. 1998) (en banc).
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Plaintiff also received that warning with the order of service. Despite that warning, plaintiff has
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not opposed defendants’ summary judgment motion. For the reasons discussed below, the
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motion for summary judgment is GRANTED.
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ANALYSIS

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A.

STANDARD OF REVIEW
Summary judgment is proper where the pleadings, discovery and affidavits show that

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there is "no genuine issue as to any material fact and that the moving party is entitled to

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judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those which may affect

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the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). A dispute

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as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a

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verdict for the nonmoving party.

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The moving party for summary judgment bears the initial burden of identifying those
portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine

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For the Northern District of California

United States District Court

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issue of material fact. Celotex Corp.v. Cattrett, 477 U.S. 317, 323 (1986). When the moving

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party has met this burden of production, the nonmoving party must go beyond the pleadings

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and, by its own affidavits or discovery, set forth specific facts showing that there is a genuine

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issue for trial. If the nonmoving party fails to produce enough evidence to show a genuine issue

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of material fact, the moving party wins. Ibid.

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B.

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ANALYSIS
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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record sua sponte for a triable issue of fact).

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Plaintiff complains that defendants Meria and Khan, two jail nurses, failed to treat an
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infection in his foot, and that defendants Fraser and MUNKS, two supervisory officials, failed

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to take corrective action when the inadequate treatment was reported to them. Deliberate

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

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

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medical need exists if the failure to treat a prisoner's condition could result in further significant

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injury or the unnecessary and wanton infliction of pain. Ibid. A prison official is deliberately

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indifferent if she knows that a prisoner faces a substantial risk of serious harm and disregards

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that risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837

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(1994). Neither negligence nor gross negligence will constitute deliberate indifference. Id. at

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For the Northern District of California

United States District Court

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835-36 & n.4.
Defendants’ evidence, including plaintiff’s medical records and declarations, establishes

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that plaintiff received proper medical care from Meria and Khan. Specifically, their papers

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show that Meria’s only contact with plaintiff was to perform his intake examination when he

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arrived at the jail on November 3, 2011 (Meria Decl. ¶ 2; Del Rosario Decl. ¶ 4(a)). She

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evaluated his answers on the extensive medical questionnaire, physically examined him, took

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his vital signs, and questioned him regarding his health (Meria Decl. ¶ 2). Plaintiff reported

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back problems and a “flat foot” but no foot infection or injury, and he indicated that he had not

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had any recent body aches or pains (ibid.). She reviewed his medical records from prior stays at

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the jail and discovered a history of mental health problems and hypertension and referred him to

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a mental health care provider; the next day, he informed the mental health provider that he had

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used methamphetamine the day before and had stopped taking antidepressants, but he did say

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that he had any problem with his foot (ibid.; Del Rosario Decl. ¶ 4(c)).

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Plaintiff’s medical records show that he first complained about his foot on November 5,

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2011, and he was seen that day by another jail nurse, Huai Chen (who is not a defendant) (Del

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Rosario Decl. ¶ 4(d)). He complained about pain and swelling in his left heel (ibid.). Chen

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found it somewhat swollen and calloused, but she determined that it was not infected because

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he could bear weight on it, the skin was not broken, and there was no drainage or fever (ibid.).

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She prescribed Motrin, which he received along with other pain medication on a daily basis (id.
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¶ 4(d)-(k)). Nurse Khan saw him two days later, on November 7, when plaintiff complained

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that he could not breathe; her examination revealed that his lungs, blood pressure, temperature,

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vital signs, oxygen levels, blood sugar and speech capability were all normal (id. ¶ 4(h)). Based

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on these findings, she determined that his wheezing and hyperventilating were deliberate and

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not the result of any medical problem, and she declined his requests for narcotics, cough syrup

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and a hospital visit as medically unnecessary (ibid.). Two days later, on November 9, another

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nurse, Betsi Carey (also not a defendant) examined plaintiff and found that he had athlete’s foot

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with an infection between his toes, and she prescribed Tylenol, an antibiotic, medicated foot

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soaks and a topical fungus cream, which he received in a variety of forms throughout his stay at
the jail. (Id. ¶ 4(k).)

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For the Northern District of California

United States District Court

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Meria and Khan were not “deliberately indifferent” to any foot infection or injury

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plaintiff suffered because there is no evidence that he had such an infection or injury when they

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examined him. To the contrary, plaintiff’s medical records show that their examinations and an

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intervening examination by another nurse showed no symptom of an infection or other injury.

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Although an infection was subsequently found in his foot, this does not mean the foot was

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infected two days earlier when Khan examined him or six days earlier when Meria examined

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him. Moreover, if the infection had been in place earlier when they examined him and they

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failed to discover it, this would not amount to “deliberate indifference” because there is no

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evidence that they knew it was there and deliberately ignored it. At most, they may have been

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negligent, as plaintiff contends (Compl. 3). As indicated, medical negligence does not violate

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the Eighth Amendment or any other federal law, and as such is not actionable under Section

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1983. Accordingly, defendants’ papers establish the absence of any material factual issue as to

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whether Meria and Khan violated his constitutional rights, and they are entitled to summary

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judgment on his claims.

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The claims against the supervisory defendants Fraser and Munks are largely derivative

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of the claims against Meria and Khan insofar as plaintiff complains that Fraser and Munks did

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not correct the adequate medical care for his foot. The medical records indicate, however, that

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plaintiff received medically appropriate care. He was examined on a nearly daily basis by
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nurses each time he had a complaint, he received daily pain medication, and, once an infection

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was discovered, he received antibiotics, medication and cream to treat it throughout his time at

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the jail. There is no evidence that such measures were inadequate to address the infection. The

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records show, moreover, that he did not have symptoms of an infection requiring such treatment

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earlier. As a result, there is no evidence that he received inadequate medical care necessitating

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any corrective action by Fraser and Munks. Accordingly, they are entitled to summary

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judgment as well.

CONCLUSION

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Defendants’ motion for summary judgment (dkt. 20) is GRANTED.
The clerk shall enter judgment and close the file.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: December
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16 , 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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