Arthur v. Brown et al

Filing 50

ORDER by Judge Lucy H. Koh granting 23 Motion for Summary Judgment (Attachments: # 1 Certificate/Proof of Service) (mpb, COURT STAFF) (Filed on 2/11/2014)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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TIMOTHY W. ARTHUR,

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Plaintiff,
v.
EDMUND G. BROWN, et al.,
Defendants.

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No. C 13-1097 LHK (PR)
ORDER GRANTING MOTION
FOR SUMMARY JUDGMENT

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Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42
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U.S.C. § 1983, alleging that prison officials were deliberately indifferent to his serious medical
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needs. Defendant Dr. Jane W. Lee (“Dr. Lee”) has moved for summary judgment. Although
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given an opportunity, plaintiff has not filed an opposition. Having carefully considered the
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papers submitted, the court GRANTS Dr. Lee’s motion for summary judgment, for the reasons
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set forth below.
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BACKGROUND
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The following facts are taken in the light most favorable to plaintiff, and are undisputed
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unless otherwise indicated.
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On May 8, 2012, while housed at Salinas Valley State Prison, plaintiff injured his hand
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and sought medical treatment. (Compl. at 3A.) A nurse taped plaintiff’s fingers together for
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stability. (Id.) On May 25, 2012, plaintiff had still not been seen by a doctor, and so plaintiff
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submitted a second request for sick call. (Id.) On May 31, 2012, plaintiff was seen by a nurse,

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who called the emergency room physician, Dr. Pajong. (Id.) Dr. Pajong checked the results of

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an x-ray of plaintiff’s hand, and determined that there was no fracture. (Id.) The nurse taped

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plaintiff’s fingers again and provided plaintiff with pain medication. (Id. at 3A-3B.)

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In June 2012, plaintiff’s x-ray was transmitted to Dr. Lee, a private radiologist who had

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an independent contracting relationship with Valley Radiology Medical Associates. (Lee Decl.

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at ¶ 2; Compl. at 3B.) Dr. Lee performed a “read only” procedure, and found that the x-ray

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revealed no fractures or dislocations. (Id.)

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Over the next few months, plaintiff was still experiencing pain and felt his finger was

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healing abnormally. (Id.) Plaintiff submitted sick call slips, and was treated with heat and ice,

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as well as pain medication. (Id. at 3B-3C.) Finally, on September 25, 2012, plaintiff’s primary

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care physician, Dr. Mack, ordered another x-ray to rule out an occult fracture. (Id. at 3C.) On

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October 12, 2012, Dr. Lee prepared a report, indicating that this x-ray revealed the presence of a

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2 millimeter ossific fragment in plaintiff’s right fourth finger. (Id.) On October 18, 2012, Dr.

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Mack requested a referral for plaintiff to have hand surgery. (Id.)

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Plaintiff asserts that the all defendants were aware that plaintiff needed medical attention.

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Plaintiff further argues that he was forced to suffer for four months before he saw his physician,

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which resulted in a physical deformity in plaintiff’s hand that could have been prevented. (Id. at

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3D.)

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ANALYSIS
A.

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

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that 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. Id.

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

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

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party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no

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reasonable trier of fact could find other than for the moving party. But on an issue for which the

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opposing party will have the burden of proof at trial, as is the case here, the moving party need

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only point out “that there is an absence of evidence to support the nonmoving party’s case.” Id.

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at 325.

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Once the moving party meets its initial burden, the nonmoving party must go beyond the

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

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genuine issue for trial.” Fed. R. Civ. P. 56(e). The court is only concerned with disputes over

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material facts and “factual disputes that are irrelevant or unnecessary will not be counted.”

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). It is not the task of the court to scour

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the record in search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th

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Cir. 1996). The nonmoving party has the burden of identifying, with reasonable particularity,

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the evidence that precludes summary judgment. Id. If the nonmoving party fails to make this

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showing, “the moving party is entitled to judgment as a matter of law.” Celotex Corp., 477 U.S.

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at 323.

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At the summary judgment stage, the court must view the evidence in the light most

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

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evidence produced by the nonmoving party, the judge must assume the truth of the evidence set

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forth by the nonmoving party with respect to that fact. See Leslie v. Grupo ICA, 198 F.3d 1152,

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1158 (9th Cir. 1999).

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B.

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Plaintiff’s Claim
Deliberate indifference to serious medical needs 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 by

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WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A

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determination of “deliberate indifference” involves an examination of two elements: the
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seriousness of the prisoner’s medical need and the nature of the defendant’s response to that

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need. See McGuckin, 974 F.2d at 1059.

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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.

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Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only “be aware of

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facts from which the inference could be drawn that a substantial risk of serious harm exists,” but

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he “must also draw the inference.” Id. If a prison official should have been aware of the risk,

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but was not, then the official has not violated the Eighth Amendment, no matter how severe the

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risk. Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002).

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Plaintiff’s allegations against Dr. Lee are insufficient to survive defendants’ motion for

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summary judgment. First, plaintiff has failed to provide any evidence that Dr. Lee “actually and

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proximately caused the deprivation of a federally protected right.” Lemire v. California Dep't. of

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Corrections & Rehabilitation, 726 F.3d 1062 at 1068 (9th Cir. 2013); Leer v. Murphy, 844 F.2d

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628, 634 (9th Cir. 1988). Dr. Lee’s reading of plaintiff’s x-ray, taken in May 2012, was that the

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bones, joint spaces, and soft tissues were radiographically normal. (Werden Decl. at ¶ 4.) Dr.

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Lee’s reading of plaintiff’s second x-ray, taken in September 2012, was that the image was

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consistent with “volar plate fracture.” (Id. at ¶ 6.) However, a volar plate fracture does not

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necessarily mean that a fracture is apparent. (Id.)

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Notably, plaintiff does not allege that Dr. Lee was incorrect in her findings. Here, there

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is an absence of evidence that Dr. Lee knew plaintiff faced a substantial risk of harm, and

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consciously disregarded that risk in some fashion. See Farmer, 511 U.S. at 837. In addition,

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even assuming that Dr. Lee’s conclusions were incorrect, Dr. Lee’s involvement with plaintiff

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was limited to these two brief occasions. At most, these are isolated occurrences of neglect,

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which do not set forth a viable deliberate indifference claim. See O’Loughlin v. Doe, 920 F.2d

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614, 617 (9th Cir.1990) (repeatedly failing to satisfy requests for aspirins and antacids to

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alleviate headaches, nausea and pains is not constitutional violation; it may constitute grounds

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for medical malpractice but does not rise to level of unnecessary and wanton infliction of pain).

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CONCLUSION

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Accordingly, Dr. Lee’s motion for summary judgment is GRANTED.

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IT IS SO ORDERED.

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DATED:

2/10/14
LUCY H. KOH
United States District Judge

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Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion
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