Ortega v. Ritchie et al

Filing 47

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING DEFENDANTS 23 MOTION FOR SUMMARY JUDGMENT. (Attachments: # 1 Certificate/Proof of Service)(ndrS, COURT STAFF) (Filed on 2/27/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CARLOS ARMANDO ORTEGA, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 15-cv-04876-HSG (PR) ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT v. MARK RITCHIE, et al., Re: Dkt. No. 23 Defendants. 12 INTRODUCTION 13 14 On October 23, 2015, plaintiff, an insanity acquittee incarcerated at Napa State Hospital 15 and proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 alleging 16 constitutional violations at the Santa Clara County Jail (“SCCJ”), where he was housed as a post- 17 arraignment pretrial detainee at various intervals between 2007 and 2012. On January 9, 2016, the 18 Court screened plaintiff’s first amended complaint (“FAC”), and found that it stated a cognizable 19 claim for deliberate indifference to serious medical needs against SCCJ medical and supervisory 20 staff Mark Ritchie, M.D.; Amarjit Grewal, M.D.; Beverly Purdy, M.D.; Gilda Versales, M.D.; 21 Salma Khan, M.D; Michael Meade, M.D.; Christine Ferry, R.N.; Laurie Smith; Edward Flores; 22 and David Sepulveda. 23 Plaintiff’s deliberate indifference claim was also the subject of a 2009 action brought by 24 plaintiff in this court, Ortega v. Ritchie, at al., No. C 09-5527 SBA (PR). The 2009 action was 25 dismissed without prejudice on the grounds that plaintiff failed to exhaust administrative remedies 26 27 28 1 prior to filing suit as required by the Prison Litigation Reform Act of 1995 (“PLRA”). See Case 2 No. C 09-5527 SBA (PR) at Dkt. No. 94.1 Now before the Court is defendants’ motion for summary judgment. Plaintiff has filed an 3 4 opposition, and defendants have filed a reply. Plaintiff has also filed an unsolicited sur-reply. For 5 the reasons discussed below, the motion will be granted. BACKGROUND 6 Plaintiff contends he suffers from bi-polar disorder and schizophrenia. He asserts three 7 8 cognizable claims for deliberate indifference. First, he argues that medical staff at the SCCJ’s Main Jail—Drs. Mark Ritchie, Amarjit 9 Grewal, Beverly Purdy, Gilda Versales and Salma Khan (the “Medical Defendants”)—were 11 United States District Court Northern District of California 10 deliberately indifferent to his serious medical needs by delaying or denying him medical care and 12 medications between 2007 and 2012. Second, he sues Dr. Michael Meade and nurse Christine 13 Ferry solely for the expert declarations they submitted on behalf of the Medical Defendants in 14 plaintiff’s first lawsuit. Third, plaintiff alleges that correctional department supervisory staff— 15 Sheriff Laurie Smith, former chief of corrections Edward Flores and Captain David Sepulveda (the 16 “Supervisory Defendants”)—were deliberately indifferent to his medical needs by promulgating 17 policies in which inmates were delayed from receiving adequate mental health care and were 18 required to complete “disciplinary time” before being rehoused in mental health units. DISCUSSION 19 20 I. Standard of Review 21 Summary judgment is proper where the pleadings, discovery and affidavits show there is 22 “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 23 law.” See Fed. R. Civ. P. 56(a). Material facts are those that may affect the outcome of the case. 24 25 26 27 28 1 The PLRA amended 42 U.S.C. § 1997e to provide that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Because plaintiff was adjudicated not guilty by reason of insanity and has been involuntarily committed to Napa State Hospital, he is not a prisoner as defined by the PLRA. See Mullen v. Surtshin, 590 F. Supp. 2d 1233, 1240 (N.D. Cal. 2008). Therefore, the PLRA’s exhaustion requirements no longer apply to plaintiff. 2 1 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is 2 genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving 3 party. See id. A court shall grant summary judgment “against a party who fails to make a showing 4 sufficient to establish the existence of an element essential to that party’s case, and on which that 6 party will bear the burden of proof at trial[,] . . . since a complete failure of proof concerning an 7 essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” 8 See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the initial 9 burden of identifying those portions of the record that demonstrate the absence of a genuine issue 10 of material fact. Id. The burden then shifts to the nonmoving party to “go beyond the pleadings 11 United States District Court Northern District of California 5 and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on 12 file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” See id. at 324 13 (citing Fed. R. Civ. P. 56(e) (amended 2010)). The nonmoving party must show more than “the 14 mere existence of a scintilla of evidence.” In re Oracle Corp. Sec. Litigation, 627 F.3d 376, 387 15 (9th Cir. 2010) (citing Liberty Lobby, 477 U.S. at 252). “In fact, the non-moving party must come 16 forth with evidence from which a jury could reasonably render a verdict in the non-moving party’s 17 favor.” Id. (citing Liberty Lobby, 477 U.S. at 252). If the nonmoving party fails to make this 18 showing, “the moving party is entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. at 19 323. 20 For purposes of summary judgment, the court must view the evidence in the light most 21 favorable to the nonmoving party; if the evidence produced by the moving party conflicts with 22 evidence produced by the nonmoving party, the court must assume the truth of the evidence 23 submitted by the nonmoving party. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). 24 The court’s function on a summary judgment motion is not to make credibility determinations or 25 weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv., Inc. v. 26 Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 27 28 A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder 3 1 v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995) (treating plaintiff’s verified complaint 2 as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746, 3 plaintiff stated under penalty of perjury that contents were true and correct, and allegations were 4 not based purely on his belief but on his personal knowledge). Here, plaintiff’s verified FAC (dkt. 5 no. 10), and plaintiff’s declaration in support of his opposition to summary judgment (dkt. no. 29- 6 22) are considered in evaluating the motion for summary judgment. 7 II. 8 9 Deliberate Indifference to Serious Medical Needs Deliberate indifference to a serious medical need violates the Eighth Amendment’s proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, 11 United States District Court Northern District of California 10 WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A 12 determination of “deliberate indifference” involves an examination of two elements: the 13 seriousness of the prisoner’s medical need and the nature of the defendant’s response to that need. 14 See McGuckin, 974 F.2d at 1059. 15 Plaintiff’s claims arise under the Due Process Clause of the Fourteenth Amendment rather 16 than under the Cruel and Unusual Punishment Clause of the Eighth Amendment because he was 17 an arrestee or detainee at the relevant time; however, the deliberate indifference standard still 18 applies to his medical care claim. See Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996) 19 (standard of deliberate indifference applicable to pretrial detainees’ medical claims). 20 A “serious” medical need exists if the failure to treat a prisoner’s condition could result in 21 further significant injury or the “unnecessary and wanton infliction of pain.” McGuckin, 974 F.2d 22 at 1059 (citing Estelle, 429 U.S. at 104). Serious medical needs may include mental health care. 23 See Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994) (mentally ill prisoner may 24 establish unconstitutional treatment by showing that officials have been deliberately indifferent to 25 his serious medical needs). 26 A prison official is deliberately indifferent if he knows that a prisoner faces a substantial 27 risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer 28 v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only “be aware of facts from 4 1 which the inference could be drawn that a substantial risk of serious harm exists,” but he “must 2 also draw the inference.” Id. If a prison official should have been aware of the risk but was not, 3 then the official has not violated the Eighth Amendment, no matter how severe the risk. Gibson v. 4 County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002), overruled on other grounds, Castro v. 5 County of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016). Mere negligence, or even gross 6 negligence, is not enough. Farmer, 511 U.S. at 835–36 & n.4. A claim of medical malpractice or negligence is insufficient to make out a violation of the 7 Eighth Amendment. McGuckin, 974 F.2d at 1059. Nor does “a difference of opinion between a 9 prisoner patient and prison medical authorities regarding treatment” amount to deliberate 10 indifference. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). Consequently, a 11 United States District Court Northern District of California 8 plaintiff’s opinion that medical treatment was unduly delayed does not, without more, state a 12 claim of deliberate indifference. Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 13 (9th Cir. 1987). In order to prevail on a claim involving choices between alternative courses of 14 treatment, a plaintiff must show that the course of treatment the doctor chose was medically 15 unacceptable under the circumstances and that he chose this course in conscious disregard of an 16 excessive risk to plaintiff’s health. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); 17 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (citing Farmer, 511 U.S. at 837). 18 III. Analysis 19 A. 20 The following is a summary of the specific deliberate indifference allegations and timeline 21 Medical Defendants against the Medical Defendants contained in plaintiff’s FAC: March 21-27, 2007: After plaintiff’s arrest on March 21, 2007, Dr. Grewal denied plaintiff immediate medication; although plaintiff concedes doctors prescribed him medication by March 24, 2007. Plaintiff further contends Drs. Grewal and Khan denied him immediate mental health treatment in 8A2, although he concedes he was admitted to “full treatment” between March 24 and 27, 2007 and that he received “15 minute checks” (FAC ¶¶ 12-13 at 5-6, ¶ 35 at 15); 22 23 24 25 March 28, 2007: Dr. Grewal denied plaintiff treatment in 8A despite plaintiff being allegedly delusional (FAC ¶ 14 at 6); 26 27 28 2 8A is the Main Jail’s acute psychiatric unit. Declaration of Dr. Meade (“Meade Decl.”) ¶ 5. 5 1 2 3 4 5 6 April 30 – May 6, 2007: Dr. Khan prescribed plaintiff new medication, which plaintiff claims did not begin working until May 18, 2007 (FAC ¶ 35 at 16); May 14-18, 2007: Plaintiff claims he suffered because Dr. Versales discharged him from 8A on May 17, 2007 “despite continue[d] presisstance (sic) [of] mental-illness (sic).” Plaintiff asserts that he was readmitted to 8A by Dr. Versales on May 18 and discharged again on May 21, 2007 (FAC ¶ 34 at 14-15); June 29, 2007: Dr. Versales denied plaintiff mental health treatment in 8A (FAC ¶ 34 at 15); 7 8 9 10 United States District Court Northern District of California 11 12 13 14 June 30, 2007: Dr. Grewal prescribed three weeks of medication to plaintiff (FAC ¶ 15 at 7); July 9-16, 2007: Dr. Grewal denied plaintiff treatment in 8A for his depression until July 16, 2007 (FAC ¶ 19 at 8); July 28 – August 6, 2007; Dr. Grewal denied plaintiff treatment in 8A for full mental health treatment. (FAC ¶ 16 at 7); August 6-9, 2007: Plaintiff received mental health treatment in 8A (FAC ¶ 16 at 7); September 30 – October 2, 2007: Plaintiff received mental health treatment in 8A (FAC at p. 7 ¶ 17); 15 16 17 October 7, 2007: Plaintiff received mental health treatment in 8A for “untreated mental health delusions” (FAC ¶ 18 at 7-8); 18 November 8 – December 3, 2007: Dr. Khan denied plaintiff mental health treatment in 8A (FAC ¶ 35 at 17); 19 December 4, 2007 – July 15, 2008: Plaintiff was not in county custody; 20 July 16 – September 3, 2008: Upon his return from Metropolitan State Hospital, Dr. Grewal denied plaintiff treatment in 8A; although Dr. Grewal prescribed plaintiff medication, plaintiff alleges the dose was too low (FAC ¶¶ 20-21 at 8); 21 22 23 24 25 26 August 12-15, 2008: Plaintiff alleges he was suicidal because he did not receive his “p.m. medications for three days” from Dr. Ritchie (FAC ¶ 31 at 11-12); August 15, 2008: Plaintiff suffered delusions, and Dr. Ritchie denied him full mental health treatment and care on 8A (FAC ¶ 31 at 11-12); August 13-19, 2008: Plaintiff claims he suffered a two-day adjustment while he acclimated and waited “for medications to work or take effect” (FAC ¶ 32 at 12); 27 28 October 14, 2008 – February 25, 2009: Plaintiff was not in county custody; 6 1 2 February 26, 2009 – March 5, 2009: Upon his return from Patton State Hospital, plaintiff suffered due to low medication dosages from Drs. Grewal and Ritchie, although he concedes he was receiving “full mental health care on 8-A” between March 2 and 5, 2009 (FAC ¶¶ 23, 26 at 9-10); 3 4 5 6 7 8 9 10 April 9-10, 2009: Plaintiff concedes he refused an appointment with Dr. Ritchie because he was “stable on his housing and medications” (FAC ¶ 27 at 10); April 9 – June 8, 2009: Plaintiff suffered when his “medications started not to work” (FAC ¶ 28 at 10); May 5, 2009: Plaintiff contends he was delusional and unstable due to Dr. Purdy decreasing his medications; contends he submitted an Inmate Grievance Form to see a doctor (FAC ¶ 33 at 12-13); May 6-9, 2009: Plaintiff admitted for full mental health care in 8A; contends he was improperly discharged on May 9, 2009 by Drs. Purdy and Ritchie (FAC ¶ 24 at 9, ¶ 33 at 13); United States District Court Northern District of California 11 12 13 14 15 16 17 18 May 7 – June 8, 2009, Dr. Purdy admitted plaintiff for full treatment in 8A but adjusted plaintiff’s medications making him more “unstable” (FAC ¶ 33 at 13); June 8-10, 2009: Plaintiff received treatment in 8A, but Dr. Ritchie released him on June 10, 2009. He also contends his Seroquel medication was stopped. (FAC ¶ 29 at 11); December 29, 2009: Plaintiff concedes his medications “were good,” but claims he was denied full treatment in 8A (FAC ¶ 30 at 11); January 12, 2010: Plaintiff returned from Patton State Hospital (FAC ¶ 25 at 9); January 12-14, 2010: Plaintiff was admitted to 8A, but Dr. Grewal released him on January 14, 2010 (FAC ¶ 25 at 9); 19 20 21 22 23 24 25 26 27 28 January 25 – February 8, 2012: Dr. Ritchie admitted plaintiff on a 14-day involuntary hold due to plaintiff’s danger to others, and plaintiff admits he was “serverely (sic) suffering[,] voices, racing thoughts, depression” (FAC ¶ 32 at ¶ 32). The Court assumes for purposes of this motion that plaintiff had a serious medical need. The record, however, amply demonstrates that the Medical Defendants provided plaintiff adequate care. Plaintiff routinely received ongoing care and treatment during the times he was detained at SCCJ. Meade Decl. ¶¶ 9-98. These included routine mental health assessments, treatment and medications. See id. Plaintiff received routine follow-up care when his medications were adjusted (see, e.g., id. ¶¶ 79, 88-90) and received immediate psychiatric treatment in 8A when indicated by his own complaints, or when referred by nursing and correctional staff (see, e.g., id. ¶¶ 43, 64, 77). 7 1 Plaintiff himself has submitted reams of exhibits in this action documenting a great deal of care, 2 including regular health care visits and psychiatric assessments at SCCJ. Defendants have submitted a declaration from Michael Meade, M.D., a physician certified 3 4 by the American Board of Psychiatry and Neurology and a qualified medical examiner with the 5 State of California. Meade Decl. ¶ 1. Dr. Meade reviewed and analyzed all of the medical records 6 from Santa Clara County Adult Custody Mental Health Services and concluded that the 7 evaluation, diagnosis, care, treatment, and advice rendered to plaintiff by the Medical Defendants 8 and other staff complied with the applicable standard of care for psychiatric medicine practitioners 9 and does not evidence indifference by mental health staff. Id. ¶¶ 3, 4. Dr. Meade further concluded that the medications (both types and dosages) prescribed for plaintiff by the Medical 11 United States District Court Northern District of California 10 Defendants and other staff complied with the applicable standard of care for psychiatric medicine 12 practitioners. Id. ¶ 6. Dr. Meade found no indication whatsoever that the Medical Defendants denied plaintiff 13 14 access to mental health treatment. Id. ¶ 5. Rather, according to Dr. Meade, plaintiff was routinely 15 monitored and evaluated by mental health staff. Id. He received medically acceptable mental 16 health treatment, including through psychiatric holds under California Welfare and Institutions 17 Code section 5150.3 Id. Evaluation of such holds occurs within the main jail in unit 8A, which is 18 the main jail’s acute psychiatric treatment facility. Id. Dr. Meade found no indication that 19 plaintiff was denied treatment in 8A when such acute treatment was called for by plaintiff’s 20 symptoms and behaviors. Id. Plaintiff has failed to come forward with specific facts to support a finding to the contrary, 21 22 let alone a finding of deliberate indifference to his medical needs. He has set forth no evidence 23 showing that the course of treatment the Medical Defendants chose was medically unacceptable 24 under the circumstances and that they chose this course in conscious disregard of an excessive risk 25 to plaintiff’s health. See Toguchi, 391 F.3d at 1058. Plaintiff’s desire to have his medications 26 3 27 28 Pursuant to California Welfare and Institutions Code section 5150, mental health staff is required to implement an inpatient psychiatric hold for up to 72 hours for any inmate determined to be a danger to others, danger to self or gravely disabled, for assessment, evaluation, and crisis intervention, or placement for evaluation and treatment in another facility. 8 1 adjusted or to spend more time in the acute treatment facility, without more, does not create a 2 triable issue of fact as to whether such treatment was medically necessary. See Jackson, 90 F.3d at 3 332; Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (“A difference of opinion between a 4 prisoner-patient and prison medical authorities regarding treatment does not give rise to a Section 5 1983 claim.”) 6 Considering the evidence in the light most favorable to plaintiff, the Court finds plaintiff 7 fails to raise a triable issue of material fact as to whether the Medical Defendants were deliberately 8 indifferent to plaintiff’s serious medical needs. Accordingly, summary judgment will be granted as 9 to defendants Drs. Ritchie, Grewal, Purdy, Varsales and Khan. B. 11 United States District Court Northern District of California 10 Plaintiff does not allege that defendants Dr. Meade or Nurse Ferry provided him 12 inadequate health care at SCCJ. Rather, plaintiff sues Dr. Meade and Nurse Ferry based solely 13 upon the testimony (through sworn declarations) that they submitted in plaintiff’s earlier lawsuit, 14 No. C 09-5527 SBA (PR). See FAC ¶¶ 36-41; Pl.’s. Opp’n Summ. J. Exs. D1, E1. 15 Defendants Meade and Ferry Both private individuals and government officials who serve as witnesses are absolutely 16 immune from suit for damages with respect to their testimony. Paine v. City of Lompoc, 265 F.3d 17 975, 980 (9th Cir. 2001) (“Witnesses, including police witnesses, are accorded absolute immunity 18 from liability for their testimony in judicial proceedings.”) Because they are protected by absolute 19 immunity, summary judgment will be granted as to defendants Dr. Meade and Nurse Ferry. 20 C. Supervisory Defendants 21 Plaintiff also alleges that defendants Smith, Flores, and Sepulveda are liable in their 22 capacity as supervisors. Specifically, plaintiff alleges that the Supervisory Defendants maintained 23 policies by which (1) the main jail medical staff delayed in providing adequate mental health care 24 to inmates; and (2) inmates with mental health issues were required to complete “disciplinary 25 time” before they could be housed in an acute care step-down ward. FAC ¶¶ 62, 63 at 29-31. 26 Plaintiff has produced no evidence of any such policies. Further, defendants have 27 submitted the official policies regarding mental health and medical treatment for inmates at SCCJ, 28 which policies contradict plaintiff’s allegations. See Declaration of David Sepulveda (“Sepulveda 9 1 Decl.”) Exs. A-F. Specifically, defendants submit evidence of policies that provide numerous 2 avenues for inmates, such as plaintiff, to receive timely and adequate mental health treatment. See 3 id. 4 Finally, defendants submit evidence that plaintiff never served time in disciplinary housing 5 while at SCCJ. See Declaration of Thomas Duran (“Duran Decl.”) ¶ 8. Outside of medical or 6 mental health housing, the only housing units plaintiff was confined to were general housing and 7 administrative segregation. Id. Administrative segregation is different from disciplinary housing 8 in that administrative segregation is not used to punish inmates. Id. Administrative segregation is 9 assigned to inmates who are prone to escape, prone to assaulting staff or other inmates, or likely to need protection from other inmates. Id. ¶ 11. Plaintiff did not remain in administrative 11 United States District Court Northern District of California 10 segregation during his entire stay at the main jail, but he was assigned to administrative 12 segregation at times due to his history of being the target of assaults and his own assaultive 13 behavior, including stabbing a correctional officer at another facility, physically assaulting 14 corrections officers at the main jail, threatening to harm correctional officers, and increased 15 altercations with and aggressive behavior toward other inmates. Id. ¶ 12. Plaintiff admits that he 16 had assaulted officers and was a “high risk candidate for suicide and assaultive behavior.” FAC ¶ 17 61 at 29; Pl’s Decl. ¶¶ 5-6 at 3-5. Conditions in administrative segregation at the main jail result 18 in little deviation from the conditions imposed on inmates in general housing to the extent 19 possible. Duran Decl. ¶ 11. 20 A supervisor may be liable under § 1983 upon a showing of (1) personal involvement in 21 the constitutional deprivation or (2) a sufficient causal connection between the supervisor's 22 wrongful conduct and the constitutional violation. Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 23 2011). A supervisor therefore generally “is only liable for constitutional violations of his 24 subordinates if the supervisor participated in or directed the violations, or knew of the violations 25 and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 26 It is well-established that in order to defeat summary judgment, a plaintiff must come 27 forward with significantly probative evidence from which a jury could reasonably render a verdict 28 in his favor. See Liberty Lobby, 477 U.S. at 249-52; In re Oracle Corp. Sec. Litigation, 627 F.3d. 10 1 376, 387 (9th Cir. 2010). Plaintiff has not. His mere allegations regarding policies that are unfair 2 to mentally ill inmates are simply not enough to show a genuine dispute. In any event, as discussed above, plaintiff has failed to raise a triable issue of material fact 3 4 that he was subjected to constitutionally inadequate medical care. Therefore, plaintiff has failed to 5 produce sufficient evidence regarding an essential element of his supervisory liability claim, i.e., 6 an underlying constitutional violation. Accordingly, the Court finds that defendants Smith, Flores, 7 and Sepulveda are not liable, as supervisors, for deliberate indifference, and they are entitled to 8 summary judgment.4 CONCLUSION 9 10 United States District Court Northern District of California 11 For the foregoing reasons, defendants’ motion for summary judgment is GRANTED. The Clerk shall enter judgment for defendants and close the file. 12 This order terminates Docket No. 23. 13 IT IS SO ORDERED. 14 Dated: 2/27/2017 15 16 HAYWOOD S. GILLIAM, JR. United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 4 Because the Court finds all defendants are entitled to summary judgment on the merits of plaintiff’s Eighth Amendment claims, it need not address defendants’ alternative argument that the claims are also untimely. 11

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