Heilman v. Cook et al

Filing 184

ORDER on Motions for Summary Judgment. The Court grants 172 Motion for Leave to File Excess Pages. It is ordered that the Court grants in part and denies in Part Defendants' 151 Motion for Summary Judgment, and denies Plaintiff's 155 Motion for Summary Judgment. Signed by Judge Janis L. Sammartino on 5/23/2017. (All non-registered users served via U.S. Mail Service)(dxj)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 THOMAS JOHN HEILMAN, CDCR #H-76785, 15 ORDER ON MOTIONS FOR SUMMARY JUDGMENT Plaintiff, 13 14 Case No.: 14-CV-1412 JLS (AGS) v. (ECF Nos. 151, 155, 172) J. COOK, et al., Defendants. 16 17 Presently before the Court is Plaintiff Thomas John Heilman’s Motion for Summary 18 Judgment, (“Pl.’s MSJ,” ECF No. 155), as well as Defendants Jessica Cook, David 19 Donoghue, and Robert J. Davis’s Response in Opposition to, (“Pl.’s MSJ Opp’n,” ECF No. 20 159), and Plaintiff’s Reply in Support of, (“Pl.’s MSJ Reply,” ECF No. 176), Plaintiff’s 21 MSJ. Also before the Court is Defendants’ Motion for Summary Judgment, (“Defs.’ MSJ,” 22 ECF No. 151), as well as Plaintiff’s Response in Opposition to, (“Defs.’ MSJ Opp’n,”1 23 ECF No. 174), and Defendants’ Reply in Support of, (“Defs.’ MSJ Reply,” ECF No. 178), 24 Defendants’ MSJ. The Court vacated the hearing on the parties’ cross motions for summary 25 judgment and took them under submission without oral argument pursuant to Civil Local 26 27 28 1 Plaintiff also seeks leave of the Court to exceed the legal brief page limitation in his response in opposition to Defendants’ Motion for Summary Judgment. (ECF No. 172.) After reviewing the motion, and good cause appearing, the Court GRANTS Plaintiff’s motion (ECF No. 172). 1 14-CV-1412 JLS (AGS) 1 Rule 7.1(d)(1). (ECF No. 180.) After considering the parties’ arguments and the law, the 2 Court rules as follows. 3 BACKGROUND 4 Plaintiff was an inmate at the Richard J. Donovan Correctional Facility (“RJD”) 5 when the relevant events in this case occurred. (See generally First Amended Complaint 6 (“FAC”), ECF No. 18.) He contends that on May 9, 2013 he was beaten by correctional 7 officers in his cell in the administrative segregation unit at RJD (hereinafter the “Incident”). 8 (Defs.’ MSJ Mem. 72 (citing FAC 3), ECF No. 163.)3 He alleges that these correctional 9 officers concocted a story that Plaintiff was seen hanging with a noose around his neck so 10 they had a plausible reason for forcibly extracting him from his cell. 4 (Id. (citing FAC 4, 11 8–9).) After the Incident, Plaintiff was taken to be evaluated by RJD medical personnel. 12 (Id.) Defendants are medical professionals who worked at RJD at the relevant time: Dr. 13 Jessica Cook is a Doctor of Osteopathy who was working in the Triage and Treatment Area 14 (“TTA”), Nurse David Donoghue is a Registered Nurse who was working in the Crisis 15 Treatment Center (“CTC”), and Dr. Robert Davis is a psychiatrist who was working in the 16 CTC. (Id. (citing FAC 9–12).) 17 Within approximately fifteen minutes of the Incident, a psychiatry technician 18 documented areas of redness around Plaintiff’s body, and noted his complaint of pain to 19 his left anterior thorax and an abrasion/scratch on his cheek. (Id.) He documented that 20 Plaintiff was “clear for psych assessment; no first aid indicated per RN.” (Id. (citing 21 Declaration of Bruce Barnett (“Barnett Decl.”) ¶ 26, ECF No. 151-3).) About an hour later 22 23 24 25 26 27 28 2 Pin citations to docketed material refer to the CM/ECF numbers electronically stamped at the top of each page. The Court cites to Defendants’ statement of facts for background purposes only, avoiding any alleged facts that Plaintiff disputes. The Court later draws all reasonable inferences from the evidence in favor of the nonmoving party when assessing each party’s respective motion for summary judgment. 3 4 Plaintiff has a separate lawsuit pending against the correctional officers for the alleged beating. See Heilman v. Silva, et al., Case No. 13-cv-02984 JLS (AGS). 2 14-CV-1412 JLS (AGS) 1 Plaintiff was evaluated by a psychiatric social worker, who noted that Plaintiff was 2 disheveled, manic, uncooperative, angry, and agitated, and that the plan was for Plaintiff 3 to be evaluated by psychiatry. (Id. (citing Barnett Decl. ¶ 11).) Shortly thereafter Dr. 4 Nizamani performed a psychiatric evaluation on Plaintiff, and noted that Plaintiff was 5 agitated, refused to give any history, and was uncooperative. (Id. at 8.) Dr. Nizamani noted 6 some external injuries, and also assessed Plaintiff with mixed affective state and multiple 7 risk factors for suicide. (Id. (citing Barnett Decl. ¶ 12, and Ex. C, ECF No. 151-12, at 6).) 8 The plan was to admit Plaintiff to a mental health crisis bed in the CTC. (Id.) 9 Within less than three hours of the Incident, Plaintiff was interviewed about the 10 Incident on video-tape, which shows the external injuries Plaintiff claims to have sustained 11 as a result of the Incident. (Id. (citing Declaration of Dion Arguilez (“Arguilez Decl.”) ¶ 4, 12 ECF No. 151-7, and Ex. A, ECF No. 151-10).) 13 Defendant Donoghue also assessed Plaintiff prior to his admission into the CTC. 14 (Id.) Donoghue documented that Plaintiff was uncooperative during the examination and 15 refused to have his vital signs taken, but also checked a box titled “ABNORMAL BREATH 16 SOUNDS.” (Id.; see also id. Ex. C, at 10.) Prior to admission into the CTC, Donoghue 17 determined that Plaintiff had not been medically cleared by the TTA, so he sent Plaintiff 18 to the TTA for examination and an x-ray. (Defs.’ MSJ Mem. 8 (citing Declaration of David 19 Donoghue (“Donoghue Decl.”) ¶¶ 4–7, ECF No. 151-5).) Once at the TTA, Registered 20 Nurse Lacorum evaluated Plaintiff for medical clearance prior to his admission to the CTC. 21 (Id. at 9.) 22 Defendant Davis also evaluated Plaintiff in the CTC on May 9, 2013, noting several 23 external injuries. (Id. (citing Barnett Decl. ¶ 24, and Ex. C, at 12).) Plaintiff informed Davis 24 that he had been kicked in the ribs and complained of difficulty breathing on his left side 25 that caused him to cough a lot, which Davis explained could be a result of being kicked in 26 the ribs. (Id. (citing Declaration of Robert J. Davis (“Davis Decl.”) ¶ 5, ECF No. 151-6).) 27 28 3 14-CV-1412 JLS (AGS) 1 Davis took Plaintiff’s vital signs, which were all normal. (Id.) Davis noted crepitus5 in 2 Plaintiff’s left lung and indicated that chest x-rays should be completed if not already done 3 and ordered that x-ray when he completed his admission orders. (Id. (citing Davis Decl. 4 ¶ 6, and Ex. C, 10–14).) Davis also assessed Plaintiff with depressive disorder, and ordered 5 Plaintiff to be observed in the CTC and to have 24-hour per day one-to-one monitoring 6 while in the CTC. (Id. (citing, e.g., Ex. C, at 15–16).) Notations of Plaintiff’s activities 7 every fifteen minutes documented that Plaintiff’s respirations were unlabored, that he was 8 eating his meals, and that he was sleeping. (Id. (citing Barnett Decl. ¶ 36, and Ex. C, at 17– 9 39).) 10 On May 13, 2013, Plaintiff underwent another chest x-ray. (Id.) That same day the 11 CTC Interdisciplinary Treatment Team, which included Dr. Davis and others, conferred 12 and determined that Plaintiff did not need medical care and thus discharged Plaintiff from 13 the CTC. (Id. (citing Barnett Decl. ¶¶ 31, 32, and Ex. C, at 54).) 14 On May 16, 2013, Plaintiff’s x-rays were read and the radiologist stated that Plaintiff 15 had a left sided 30-40% pneumothorax (collection of air or gas in the chest or pleural space 16 that causes part or all of a lung to collapse) of indeterminate age. (Id. at 11.) Plaintiff was 17 transported to Alvarado Hospital for further evaluation. (Id. (citing Barnett Decl. ¶ 32, and 18 Ex. C, at 59–75).) The hospital assessed him with 35-40% left lung pneumothorax, and, by 19 May 20, 2013, four days after admission, Plaintiff underwent a thoracotomy (incision into 20 the chest or pleural space) to address his injury. (Id. (citing Ex. C, at 64–69).) Plaintiff was 21 discharged from the hospital back to RJD on May 25, 2013. (Id. (citing Barnett Decl. ¶¶ 37– 22 39, and Ex. C).) Shortly thereafter Plaintiff was sent back to the hospital to address an 23 /// 24 25 26 27 28 According to Defendants, “[c]repitus is a term of art that describes a crackling sound or feeling of mild crackling, like crumpled freezer paper, under affected skin. The finding of crepitus can indicate air within damaged tissues. But other physical phenomenon can also produce the sounds of crepitus including fluid normally in lungs that are not fully expanded, or arthritic changes in joints. The presence of crepitus at the time of evaluation was not by itself sufficient evidence upon which to diagnose a pneumothorax.” (Defs.’ MSJ Mem. 10 n.3 (citing Barnett Decl. ¶ 26).) 5 4 14-CV-1412 JLS (AGS) 1 infection he contracted at the surgical site. (Id. (citing Barnett Decl. ¶¶ 37–39, and Ex. C, 2 at 76–84).) 3 LEGAL STANDARD 4 Under Federal Rule of Civil Procedure 56(a), a party may move for summary 5 judgment as to a claim or defense or part of a claim or defense. Summary judgment is 6 appropriate where the Court is satisfied that there is “no genuine dispute as to any material 7 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); 8 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Material facts are those that may affect 9 the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A 10 genuine dispute of material fact exists only if “the evidence is such that a reasonable jury 11 could return a verdict for the nonmoving party.” Id. When the Court considers the evidence 12 presented by the parties, “[t]he evidence of the non-movant is to be believed, and all 13 justifiable inferences are to be drawn in his favor.” Id. at 255. 14 The initial burden of establishing the absence of a genuine issue of material fact falls 15 on the moving party. Celotex, 477 U.S. at 323. The moving party may meet this burden by 16 identifying the “portions of ‘the pleadings, depositions, answers to interrogatories, and 17 admissions on file, together with the affidavits, if any,’” that show an absence of dispute 18 regarding a material fact. Id. When a party seeks summary judgment as to an element for 19 which it bears the burden of proof, “it must come forward with evidence which would 20 entitle it to a directed verdict if the evidence went uncontroverted at trial.” See C.A.R. 21 Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (quoting 22 Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992)). 23 Once the moving party satisfies this initial burden, the nonmoving party must 24 identify specific facts showing that there is a genuine dispute for trial. Celotex, 477 U.S. at 25 324. This requires “more than simply show[ing] that there is some metaphysical doubt as 26 to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 27 586 (1986). Rather, to survive summary judgment, the nonmoving party must “by her own 28 affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ 5 14-CV-1412 JLS (AGS) 1 designate ‘specific facts’” that would allow a reasonable fact finder to return a verdict for 2 the non-moving party. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 248. The non- 3 moving party cannot oppose a properly supported summary judgment motion by “rest[ing] 4 on mere allegations or denials of his pleadings.” Anderson, 477 U.S. at 256. 5 ANALYSIS The Court considers each party’s cross motion for summary judgment in turn, 6 7 beginning first with Defendants’ Motion for Summary Judgment. 8 I. Defendants’ Motion for Summary Judgment 9 Defendants move for summary judgment on several of Plaintiff’s claims. First, 10 Defendants argue that there are no genuine disputes of material fact which could support a 11 finding that any Defendant violated the Eighth Amendment or that Davis and Cook violated 12 Plaintiff’s due process rights under the First and Fourteenth Amendments.6 (Def.’s MSJ 13 Mem. 6.) Second, Defendants argue that they are entitled to qualified immunity. (Id.) The 14 Court addresses each argument in turn. 15 A. Eighth Amendment 16 An inmate has an Eighth Amendment right to adequate physical and mental health 17 care. Doty v. Cty. of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). Deliberate indifference to 18 the serious medical needs of an inmate is inconsistent with the basic standards of human 19 decency and antithetical to the Eighth Amendment’s proscription of “unnecessary and 20 wanton infliction of pain.” Gregg v. Georgia, 428 U.S. 153, 173 (1976). 21 A determination of deliberate indifference involves a two-step analysis consisting of 22 both objective and subjective inquiries. Farmer v. Brennan, 511 U.S. 825, 837 (1994). 23 24 25 26 27 28 Plaintiff alleges that certain Defendants violated his “due process” rights under the First and Fourteenth Amendments. (See FAC 2.) However, he states that these Defendants violated his “First and [Fourteenth] Amendment due process rights . . . for retaliation and concealment/falsification of information.” (Id.) Liberally construing Plaintiff’s pleadings, it appears that he asserts violations of his due process rights under the Fourteenth Amendment and separately for retaliation in violation of his First Amendment rights. (See, e.g., Pl.’s MSJ Mem. 83 (arguing a retaliation claim under the First Amendment).) Accordingly, the Court considers Plaintiff’s claims under these formulations. 6 6 14-CV-1412 JLS (AGS) 1 First, the plaintiff must demonstrate a serious medical need such that failure to provide 2 treatment could “result in further significant injury” or “unnecessary and wanton infliction 3 of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 4 429 U.S. 97, 104 (1976)). Second, the plaintiff must show that the defendant’s response to 5 the medical need was deliberately indifferent. Id. (citing McGuckin v. Smith, 974 F.2d 6 1050, 1059–60 (9th Cir. 1992)). 7 Deliberate indifference consists of (1) a purposeful act or failure to respond to a 8 prisoner’s pain or possible medical need and (2) harm caused by the indifference. Id. Such 9 indifference may be manifested when “prison officials deny, delay[,] or intentionally 10 interfere with medical treatment, or it may be shown by the way in which prison physicians 11 provide medical care.” Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). 12 This standard is one of subjective recklessness. Farmer, 511 U.S. at 839–40. “To satisfy 13 this subjective component of deliberate indifference, the inmate must show that prison 14 officials ‘kn[e]w [ ] of and disregard[ed]’ the substantial risk of harm, but the officials need 15 not have intended any harm to befall the inmate; ‘it is enough that the official acted or 16 failed to act despite his knowledge of a substantial risk of serious harm.’” Lemire v. Cal. 17 Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013) (alterations in original) 18 (quoting Farmer, 511 U.S. at 837, 842). “‘Deliberate indifference is a high legal standard. 19 A showing of medical malpractice or negligence is insufficient to establish a constitutional 20 deprivation under the Eighth Amendment.’” Hamby v. Hammond, 821 F.3d 1085, 1092 21 (9th Cir. 2016) (quoting Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004)); Estelle, 22 429 U.S. at 106. 23 1. Dr. Cook 24 Defendants argue the undisputed facts demonstrate that Cook did not act with 25 deliberate indifference to Plaintiff’s serious medical needs and thus she is entitled to 26 summary judgment. (Defs.’ MSJ Mem. 15.) Specifically, Defendants argue (1) Cook never 27 actually examined Plaintiff; (2) Cook reasonably relied on Lacorum’s observations in 28 assessing Plaintiff’s conditions; and (3) even if Cook did not fully examine Plaintiff when 7 14-CV-1412 JLS (AGS) 1 she should have, Plaintiff was uncooperative and did not allow the staff to fully examine 2 him. (Id. at 15–17.) 3 The Court disagrees with Defendants. To begin, Cook claims that she never actually 4 examined Plaintiff, relying instead on Lacorum’s observations and notations. (Id. at 15.) 5 While Cook “do[es] not recall examining Plaintiff on May 9, 2013 . . . [partially] due to 6 the lack of records showing that [she] conducted a physical examination of Plaintiff,” 7 (Declaration of Jessica Cook (“Cook Decl.”) ¶ 5, ECF No. 151-4), Plaintiff explains that 8 other Defendants’ Answers to his operative Complaint at least create genuine issues of 9 material fact regarding whether Cook did, in fact, examine Plaintiff on May 9, 2013. (See 10 Defs.’ MSJ Opp’n 174.) The Court agrees. Indeed, both Defendants Davis and Donoghue 11 identified Cook as the physician who examined Plaintiff and medically cleared him. 7 (Pl.’s 12 MSJ Mem. Ex. D (Defs. Davis’s and Donoghue’s Ans. to Pl.’s First Am. Compl. (“Davis 13 & Donoghue Ans.”) ¶ 7, ECF No. 155, at 98–106 (“Defendants admit that Defendant J. 14 Cook was a Doctor of Osteopath at RJD, employed by CDCR, and that [s]he evaluated 15 Plaintiff, who complained of pain to his body, ordered x-rays, and authorized Plaintiff’s 16 admission to the CTC for suicide monitoring.” (emphasis added))).) Thus, drawing all 17 reasonable inferences in Plaintiff’s favor, as the Court must do, genuine issues of material 18 fact remain regarding whether Cook personally evaluated Plaintiff. Because this 19 conflicting evidence calls into question Cook’s contention that she simply relied on 20 Lacorum’s notations of Plaintiff’s condition in making her medical recommendations, the 21 Court cannot say as a matter of law that Cook was not deliberately indifferent to Plaintiff’s 22 23 24 25 26 27 28 Defendants argue that these Answers are inadmissible evidence for summary judgment purposes. (Pl.’s MSJ Opp’n 16 (citing Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988)).) The Court disagrees. In American Title, the Ninth Circuit clearly held that a “statement in a complaint, answer or pretrial order is a judicial admission, as is a failure in an answer to deny an allegation,” and “[f]actual assertions in pleadings and pretrial orders, unless amended, are considered judicial admissions conclusively binding on the party who made them.” Id. While the Court agrees with Defendants that Davis’s and Donoghue’s statements are not binding as to Cook, they at least raise a genuine issue of material fact that Cook personally evaluated Plaintiff on the day of the Incident. 7 8 14-CV-1412 JLS (AGS) 1 medical needs. Defendants will, of course, be entitled to offer Cook’s explanation to the 2 trier of fact. Accordingly, the Court DENIES this portion of Defendants’ Motion for 3 Summary Judgment.8 4 2. Nurse Donoghue 5 Defendants argue the undisputed facts demonstrate that Donoghue did not act with 6 deliberate indifference to Plaintiff’s serious medical needs and thus he is entitled to 7 summary judgment. (Defs.’ MSJ Mem. 16–19.) Specifically, Defendants argue that 8 Donoghue appropriately sent Plaintiff back to the TTA to have x-rays and a physical 9 completed because he had not yet been medically cleared by the TTA. (Id. at 17 (citing 10 Donoghue Decl. ¶ 7).) 11 Plaintiff has not refuted any of this evidence or otherwise demonstrated that 12 Donoghue acted with deliberate indifference to his medical needs. Instead, Plaintiff 13 “alleges the majority of [Donoghue’s] assertions . . . to be fabricated to justify 14 [Donoghue’s] decision to deny, delay, or intentionally withhold medical treatment” for his 15 injury. (Def.’s MSJ Opp’n 53–54.) Plaintiff also claims that Donoghue “tried to make it 16 hard on [Plaintiff] to explain his medical injuries” and ridiculed him for “getting what he 17 deserved” as a result of the alleged beating. (Id. at 54.) But Plaintiff provides no evidence 18 to corroborate these allegations. 19 That said, Plaintiff has identified a genuine issue of material fact that prevents a 20 grant of summary judgment in Donoghue’s favor. Specifically, when assessing Plaintiff at 21 the CTC, Donoghue checked a box titled “ABNORMAL BREATH SOUNDS” and noted 22 “No S/S of TB” as well as something unintelligible. (See Id. Ex. M, ECF No. 155, at 198; 23 see also Defs.’ MSJ Mem. Ex. C, at 10 (same).) Defendants argue that “this was a mistaken 24 mark because Plaintiff refused to allow Nurse Donoghue to assess his breath sounds. Had 25 26 27 28 For this reason, the Court cannot assess the merits of Defendants’ alternative argument that Cook is shielded by qualified immunity. See, e.g., Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (“Given the district court’s determination that there is a triable issue as to deliberate indifference, the doctors were not entitled to summary judgment on the ground that they could reasonably have believed their conduct did not violate clearly-established law.” (citing Hamilton v. Endell, 981 F.2d 1062, 1066 (9th Cir. 1992))). 8 9 14-CV-1412 JLS (AGS) 1 Nurse Donoghue actually heard abnormal breath sounds, a description of the problem 2 would be noted on the form.” (Defs.’ MSJ Mem. 17 (citing Donoghue Decl. ¶ 5).) But 3 Defendants provide no other evidence corroborating this mistaken mark or Donoghue’s 4 explanation. Without more, this declaration is insufficient to create an undisputed fact that 5 Donoghue mistakenly checked this box. Thus, a genuine dispute of material fact remains 6 regarding whether Donoghue was aware of Plaintiff’s abnormal breathing and whether in 7 light of that knowledge Donoghue was deliberately indifferent to Plaintiff’s serious 8 medical needs in the course of medical care he administered. Defendants will, of course, 9 be entitled to explain this alleged scrivener’s error to the trier of fact. Accordingly, the 10 Court DENIES this portion of Defendants’ Motion for Summary Judgment.9 11 3. Dr. Davis 12 Defendants argue the undisputed facts demonstrate that Davis did not act with 13 deliberate indifference to Plaintiff’s serious medical needs and thus he is entitled to 14 summary judgment. (Defs.’ MSJ Mem. 19–23.) The Court agrees. 15 The undisputed facts show that Davis, a staff psychiatrist, physically and mentally 16 examined Plaintiff for the CTC’s records. (Id. at 19 (citing Davis Decl. ¶ 4).) Among other 17 things, Plaintiff told Davis he had difficulty breathing on the left side that caused him to 18 cough a lot, and Davis explained that if he had been kicked in the ribs, as he claimed, this 19 could cause Plaintiff to experience pain when breathing. (Id. (citing Davis Decl. ¶ 5).) 20 Additionally, on May 9, 2013 Davis took Plaintiff’s vital signs, which were all normal. (Id. 21 (citing Davis Decl. ¶ 6).) Specifically, Davis claims that “there was no evidence of 22 shortness of breath, difficulty breathing, inadequate air flow into or out of the lungs, or 23 rapid respirations, which would support a determination of respiratory distress, though pain 24 may have made breathing uncomfortable for Plaintiff.” (Davis Decl. ¶ 6.) Davis noted some 25 26 For this reason, the Court cannot assess the merits of Defendants’ alternative argument that Donoghue is shielded by qualified immunity. See, e.g., Jackson, 90 F.3d at 332. 9 27 28 10 14-CV-1412 JLS (AGS) 1 crepitus in Plaintiff’s lungs and thus noted that a chest x-ray should be completed if it had 2 not already been. (Id.) But Davis noted that this crepitus indicated the movement of air, not 3 the absence of lung breath sounds. (Id.) In sum, based on his evaluation of Plaintiff, Davis 4 claims that Plaintiff “did not show any signs or symptoms of someone that was 5 experiencing a serious medical condition or experiencing medical (respiratory) distress 6 indicative of someone in a medically emergent situation.” (Id. ¶ 7.) Instead, after Plaintiff’s 7 physical examination with Davis, Plaintiff requested and ate all of his food, washed 8 himself, and appeared to be sleeping with unlabored breathing. (Id.) Thereafter Davis had 9 no personal knowledge of the medical treatment plaintiff received once he was admitted 10 into the CTC. (Id.) 11 On May 9, 2013 Davis also assessed Plaintiff for mental health issues and 12 determined that Plaintiff would have 24 hour one-to-one monitoring while in the CTC. 13 (Id. ¶ 8.) Davis also evaluated Plaintiff on May 10 and 13, 2013, and the notes from those 14 assessments indicate that “xray results presumed negative”; because he received no x-ray 15 report, he presumed that the chest x-ray was read as normal/negative by the radiologist. 16 (Id. ¶ 9.) On May 13, 2013 the CTC Interdisciplinary Treatment Team, of which Davis was 17 a member, determined that plaintiff did not need medical care and would be discharged 18 from the CTC. (Id. ¶ 8.) 19 Plaintiff’s challenges to Defendants’ evidence are not convincing. For one, Plaintiff 20 argues that Defendants “have contrived to present conflicting and contradictory 21 statements . . . in an attempt to mitigate Defendant Davis’[s] role and responsibility . . . .” 22 (Defs.’ MSJ Opp’n 39.) For instance, Plaintiff points to Defendants’ claim that on May 9, 23 2013 Plaintiff would not allow his vitals to be taken, and the seemingly contradictory 24 statement that Plaintiff allowed Davis to take his vitals. (Id. at 42.) But these are not 25 mutually exclusive—that Plaintiff was uncooperative with, for example, Donoghue does 26 not necessarily mean that he was so with Davis. Nor does Plaintiff actually dispute that he 27 was cooperative with Davis and allowed him to take certain measurements. 28 /// 11 14-CV-1412 JLS (AGS) 1 Additionally, Plaintiff argues that instead of assisting or providing him with medical 2 care, Davis “intentionally ignored [his] complaints and symptoms of [difficulty breathing] 3 and ordered [him] placed on 24 hour one-to-one ‘suicide’ monitoring while in the CTC.” 4 (Id. at 45.) Plaintiff argues that this conduct was “in line with ‘the plan,’ the ‘plausible 5 alibi’ contrived by [the Defendants in his related case] to justify [his] admission into the 6 CTC . . . .” (Id. at 45–46.) These arguments fail. First, Plaintiff provides no evidence that 7 Davis intentionally ignored his complaints. To the contrary, Plaintiff admits that Davis 8 ordered a chest x-ray to assess the extent of his crepitus and determine what steps, if any, 9 were thereafter required to address his breathing problems. And Plaintiff further admits 10 that when he continued to complain of pain, on May 10, 2013, Davis ordered another chest 11 x-ray to additionally cover his “lateral chest” and “traumatized” area. (Id. at 46 (citing Pl.’s 12 MSJ Mem. Ex. I, ECF No. 155, at 147).) Indeed, Davis ordered this second x-ray despite 13 the fact that on May 10, 2013 Davis noted that the “[first] xray results [were] presumed 14 negative” because he received no x-ray report. (Davis Decl. ¶ 9.) While Plaintiff may have 15 wanted more or different medical treatment, “Eighth Amendment doctrine makes clear that 16 ‘[a] difference of opinion between a physician and the prisoner—or between medical 17 professionals—concerning what medical care is appropriate does not amount to deliberate 18 indifference.’” Hamby, 821 F.3d at 1092 (quoting Snow v. McDaniel, 681 F.3d 978, 987 19 (9th Cir. 2012)); cf id. at 1094 (“At worst, the evidence in the record shows a difference of 20 medical opinion amounting to possible negligence on the part of Drs. Hammond and Smith. 21 As such, even when the evidence is viewed in the light most favorable to Hamby, ‘we 22 cannot say that only someone ‘plainly incompetent’ or who ‘knowingly violate[s] the law’ 23 would have . . . acted as [the officials here] did.’” (quoting Mullenix, 136 S. Ct. at 310)). 24 Moreover, Plaintiff provides no evidence that Davis placed him in the CTC as part 25 of some conspiracy or “plan” with other prison officials to deny him adequate medical care. 26 Nor does he provide any evidence refuting or even questioning Davis’s statement that he 27 “was following prudent action in the care of a patient regarded as suicidal when referred 28 /// 12 14-CV-1412 JLS (AGS) 1 for admission to the CTC.” (Davis Decl. ¶ 11; see also id. (noting that he is not aware of 2 any documents supporting Plaintiff’s claim that he assessed Plaintiff as being “suicidal”).) 3 In sum, while Plaintiff chiefly argues that his condition should not have been 4 ignored, (Defs.’ MSJ Opp’n at 48), Plaintiff has not demonstrated that Davis ignored his 5 condition, much less that he acted with deliberate indifference. Nor has Plaintiff rebutted 6 Davis’s contention and evidence that Plaintiff was not exhibiting any overt signs of a 7 patient in an emergency situation which might otherwise have supported a claim that Davis 8 should have done more. (See also Defs.’ MSJ Mem. Ex. A (“DVD Heilman Interview”), 9 ECF No. 151-10 (depicting Plaintiff in a video interview, hours after the incident, without 10 noticeable breathing problems); id. (discussing various alleged injuries but never 11 mentioning breathing problems).) Without more, the Court cannot conclude that Davis was 12 deliberately indifferent to Plaintiff’s serious medical needs. Accordingly, the Court 13 GRANTS Defendants’ Motion for Summary Judgment on this point.10 14 B. Fourteenth Amendment 15 Defendants also move for summary judgment on Plaintiff’s due process claims, 16 arguing there are no genuine issues of material fact that Davis and Cook violated Plaintiff’s 17 due process rights under the Fourteenth Amendment. (Defs.’ MSJ Mem. 23–26.) 18 The Fourteenth Amendment to the United States Constitution provides, among other 19 things, that no state shall deprive a person of life, liberty, or property without due process 20 of law. “A section 1983 claim based upon procedural due process thus has three elements: 21 (1) a liberty or property interest protected by the Constitution; (2) a deprivation of the 22 interest by the government; (3) lack of process.” Portman v. Cty. of Santa Clara, 995 F.2d 23 898, 904 (9th Cir. 1993). “The requirements of procedural due process apply only to the 24 deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty 25 and property.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972). “A 26 27 28 For this reason the Court does not reach Defendants’ alternative argument that Davis is entitled to qualified immunity. 10 13 14-CV-1412 JLS (AGS) 1 liberty interest can arise from one of two sources—either the Due Process Clause of the 2 Fourteenth Amendment or state law.” Chappell v. Mandeville, 706 F.3d 1052, 1062 (9th 3 Cir. 2013) (citing Mendoza v. Blodgett, 960 F.2d 1425, 1428 (9th Cir. 1992)). 4 “‘[L]awfully incarcerated persons retain only a narrow range of protected liberty 5 interests.’” Id. at 1062–63 (quoting Hewitt v. Helms, 459 U.S. 460, 467 (1983)). “Thus, 6 ‘[a]s long as the conditions or degree of confinement to which the prisoner is subjected is 7 within the sentence imposed upon him and is not otherwise violative of the Constitution, 8 the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities 9 to judicial oversight.’” Id. (quoting Montanye v. Haymes, 427 U.S. 236, 242 (1976)). 10 “Under Sandin [v. Conner], a prisoner possesses a liberty interest under the federal 11 constitution when a change occurs in confinement that imposes an ‘atypical and significant 12 hardship . . . in relation to the ordinary incidents of prison life.’” Jackson v. Carey, 353 13 F.3d 750, 755 (9th Cir. 2003) (quoting Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000) 14 (alteration in original) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995))). “Sandin 15 makes clear that the focus of the liberty interest inquiry is whether the challenged condition 16 imposes an atypical and significant hardship on the inmate in relation to the ordinary 17 incidents of prison life.” Id. (citing Sandin, 515 U.S. at 483–84); see also Resnick, 213 F.3d 18 at 448 (noting that the Sandin Court “relied on three factors in determining that the plaintiff 19 possessed no liberty interest in avoiding disciplinary segregation: (1) disciplinary 20 segregation was essentially the same as discretionary forms of segregation; (2) a 21 comparison between the plaintiff’s confinement and conditions in the general population 22 showed that the plaintiff suffered no ‘major disruption in his environment’; and (3) the 23 length of the plaintiff’s sentence was not affected”). “‘What less egregious condition or 24 combination of conditions or factors would meet the test requires case by case, fact by fact 25 consideration.’” Jackson, 353 F.3d at 755 (quoting Keenan v. Hall, 83 F.3d 1083, 1089 26 (9th Cir. 1996)). 27 /// 28 /// 14 14-CV-1412 JLS (AGS) 1 1. Dr. Davis 2 Defendants argue they are entitled to summary judgment on Plaintiff’s claim that 3 Davis violated Plaintiff’s due process rights under the Fourteenth Amendment. (Defs.’ MSJ 4 Mem. 25–26.) Plaintiff alleges that Davis “falsified information on official state 5 documents” by stating that Plaintiff was “suicidal” after being discovered with an alleged 6 “noose.” (FAC 22.) He further argues that Davis refused to believe that he was not suicidal 7 despite the alleged absence of ligature or strangulation marks around Plaintiff’s neck. (Id.) 8 Thus, Plaintiff argues that Davis violated his rights to due process “under the First and 9 Fourteenth Amendments . . . .” (Id.) 10 The Court agrees with Defendants. First, as Defendants point out, Plaintiff does not 11 identify a protected property or liberty interest that Davis allegedly violated, either under 12 state or federal law. Liberally construing Plaintiff’s pleadings and moving papers, it is 13 possible Plaintiff argues that being placed in the CTC for four days to assess his mental 14 health, including a 24-hour one-to-one monitoring, somehow violated a protected liberty 15 interest under the Fourteenth Amendment. (See, e.g., Defs.’ MSJ Opp’n 33 (“[Plaintiff’s] 16 Fourteenth Amendment Due Process rights were violated when the Defendants employed 17 several instances of falsifying official state (CDCR) medical records/information 18 to . . . admit [Plaintiff] involuntarily into a Mental Health Crisis Bed (MHCB) unit under 19 false pretenses for an alleged failed suicide attempt . . . .”).) But Plaintiff fails to offer any 20 authority demonstrating that this short-term, mental health monitoring within the prison 21 facility was not “within the range of confinement to be normally expected” by prison 22 inmates “in relation to the ordinary incidents of prison life,” Sandin, 515 U.S. at 486–487, 23 thus requiring due process under the Fourteenth Amendment. See Resnick, 213 F.3d at 24 484–87; Chappell, 706 F.3d at 1063 (collecting citations for the proposition that “[t]ransfer 25 to less amenable quarters for non-punitive reasons has been held to be ‘ordinarily 26 contemplated by a prison sentence’”); cf. id. (“Only the most extreme changes in the 27 conditions of confinement have been found to directly invoke the protections of the Due 28 Process Clause, such as involuntary commitment to a mental institution, or the forced 15 14-CV-1412 JLS (AGS) 1 administration of psychotropic drugs . . . .” (citations omitted)); Vitek v. Jones, 445 U.S. 2 480 (1980) (holding that the involuntary transfer of a state prisoner to an outside mental 3 hospital implicates a liberty interest protected by the Due Process Clause). To the contrary, 4 courts have found that similar short-term psychiatric evaluations do not implicate a 5 protected liberty interest under the Fourteenth Amendment. See, e.g., Jefferson v. Helling, 6 324 F. App’x 612, 613 (9th Cir. 2009) (“The district court also properly granted summary 7 judgment on Jefferson’s due process claim arising from his emergency transfer to a prison’s 8 mental health unit because Jefferson failed to offer any authority that he was entitled to a 9 hearing prior to the short-term emergency detention.”); Hill v. Wamble-Fisher, No. 1:11- 10 CV-00101-REB, 2013 WL 3223634, at *5 (D. Idaho June 24, 2013) (“Plaintiff was 11 transferred to the mental health unit so the prison could address an emergency mental 12 health situation, and it does not appear that Plaintiff was confined in the MHU for more 13 than 30 days. In light of the serious mental health problems Plaintiff was experiencing at 14 the time he was placed in the MHU, this period of time does not trigger due process 15 protections.”); Gonzales v. Carpenter, No. 9:08-CV-629 LEK/ATB, 2011 WL 768990, at 16 *11 (N.D.N.Y. Jan. 3, 2011), report and recommendation adopted, No. 9:08-CV-629 LEK 17 ATB, 2011 WL 767546 (N.D.N.Y. Feb. 25, 2011) (“This court concludes that temporary 18 confinement of an inmate with clear mental health problems for a total of less than 30 days 19 for observation and evaluation in the psychiatric unit within a prison does not implicate a 20 liberty interest.” (citing, e.g., Jefferson, 324 Fed. App’x at 613)). Thus, the Court concludes 21 that Plaintiff’s brief confinement for observation and evaluation in the psychiatric unit 22 within RJD prison (the CTC) does not implicate a liberty interest under the Fourteenth 23 Amendment. 24 That said, Plaintiff claims that Davis falsified information on state documents in 25 order to admit him into the CTC. But Plaintiff fails to provide any evidence of this alleged 26 falsification, nor does he even identify which documents Davis is alleged to have falsified. 27 (See Defs.’ MSJ Opp’n 49–51.) And Davis is “not aware of any documents that support 28 Plaintiff’s claim that [he] assessed Plaintiff as being ‘suicidal.’” (Davis Decl. ¶ 11.) Rather, 16 14-CV-1412 JLS (AGS) 1 Davis explained that in prescribing this brief admittance into the CTC he was “following 2 prudent action in the care of a patient regarded as suicidal when referred for admission to 3 the CTC.” (Davis Decl. ¶ 11 (emphasis added).) Even if that characterization was 4 erroneous, “[a] prisoner has no constitutionally guaranteed immunity from being wrongly 5 or falsely accused of conduct which may result in the deprivation of a protected liberty 6 interest.” Deadmon v. Grannis, No. 06CV1382-LAB (WMC), 2008 WL 595883, at *7 7 (S.D. Cal. Feb. 29, 2008) (quoting Lopez v. Celaya, 2008 WL 2025256, at *5 (N.D. Cal. 8 Jan. 23, 2008) (citing, inter alia, Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989))). 9 In the end, Plaintiff simply “alleges Defendant Davis had knowledge and information that 10 [he] was not suicidal” and that this was all part of “‘the plan’ contrived by the [related case] 11 Defendants to explain [his] injuries as caused by an attempted suicide by hanging.” (Defs.’ 12 MSJ Opp’n 51 (emphasis added).) Of course, mere allegations are insufficient at the 13 summary judgment stage, and thus Plaintiff has failed to rebut Defendants’ arguments and 14 proffered evidence. Accordingly, the Court GRANTS this portion of Defendants’ Motion 15 for Summary Judgment.11 16 2. Dr. Cook 17 Defendants argue they are entitled to summary judgment on Plaintiff’s claim that 18 Cook violated Plaintiff’s due process rights under the Fourteenth Amendment. (Defs.’ MSJ 19 Mem. 23–25.) Plaintiff alleges that Cook “falsified information on official state documents 20 that [his] serious internal injuries were the result of a ‘spontaneous secondary 21 pneumothorax.’” (FAC 6.) Thus, Plaintiff alleges that Cook “has violated [his] right to due 22 process under the [First] and [Fourteenth] Amendments . . . to deliberately portray falsely 23 24 25 26 27 28 In his reply in support of his own Motion for Summary Judgment, Plaintiff claims that the “Defendants have not filed an opposition to [his] First and Fourteenth Due Process Claims against Defendant [Davis] as stated in Pl.’s MSJ, and thus concede those claims as to the Court’s finding for [Plaintiff] and entitling [Plaintiff] to judgment as a matter of law.” (Pl.’s MSJ Reply 24 (emphasis added).) However, it does not appear that Plaintiff specifically addressed these claims as to Davis in his opening brief, so there was nothing for Defendants to rebut. (See generally Pl.’s MSJ Mem.) Additionally, he specifically addressed his due process (in actuality, retaliation) claim as to Defendant Cook. (See id. at 83–85.) Accordingly, the Court declines to adopt Plaintiff’s conclusion. 11 17 14-CV-1412 JLS (AGS) 1 a scenario under which [he] could have suffered such a serious internal injury to conceal 2 fellow CDCR prison staff unlawful conduct and to impede [his] ability to prosecute 3 responsible CDCR staff members in court action.” (Id. at 21.) 4 The Court agrees with Defendants. As an initial matter, Plaintiff fails to identify a 5 protected property or liberty interest involved with either an alleged concealment of 6 unlawful conduct or an ability to prosecute certain persons in court. To be sure, Plaintiff 7 argues that this alleged falsification violates his liberty interest under California Penal Code 8 section 134 because it is a felony to “prepare false documentary evidence.” (Defs.’ MSJ 9 Opp’n 35.) But Plaintiff fails to demonstrate—let alone argue—that this provision of the 10 California penal code creates a cognizable liberty interest. Cf. Franklin v. Knowles, 428 F. 11 App’x 777, 778 (9th Cir. 2011) (noting that prisoners do not have a protected liberty 12 interest in earning work time credits under the California Penal Code and collecting 13 authority). To the contrary, this provision simply codifies the crime of preparing false 14 documentary evidence. It does not purport to establish any substantive or procedural rights, 15 much less contain “‘explicitly mandatory language,’ i.e., specific directives to the 16 decisionmaker that if the regulations’ substantive predicates are present, a particular 17 outcome must follow[,]” that is required for a state statute to create a constitutionally 18 protected liberty interest. Carver v. Lehman, 558 F.3d 869, 875 (9th Cir. 2009) (quoting 19 Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 463 (1989), and Hewitt v. Helms, 459 20 U.S. 460, 472 (1983)). Accordingly, Plaintiff has failed to demonstrate that California 21 Penal Code section 134 creates a cognizable liberty interest entitling him to due process. 22 Nor does Plaintiff’s description of the alleged events clarify a protected property or 23 liberty interest. Specifically, Plaintiff alleges that on May 16, 2013, when Cook submitted 24 a form requesting Plaintiff be transported to Alvarado Hospital, Cook noted that her request 25 for Plaintiff’s medical treatment stemmed from his injury resulting from an “altercation.” 26 (Id. at 30 (citing Ex. B).) But upon returning from surgery at the hospital, and in sending 27 Plaintiff back to deal with a later-developed infection, Cook submitted a new medical 28 request form on June 11, 2013 and apparently removed any reference to Plaintiff’s injury 18 14-CV-1412 JLS (AGS) 1 resulting from an “altercation.” However, Plaintiff fails to explain how this alleged 2 discrepancy in notation implicates any property or liberty interest under the Fourteenth 3 Amendment. For instance, Plaintiff does not complain that he was sent to the hospital for 4 treatment against his will, or that Cook or other staff seized any of his property. This alone 5 is fatal to Plaintiff’s claim. 6 But Plaintiff’s claim would fail even if he did identify a protected property or liberty 7 interest. Specifically, Plaintiff argues that Cook falsely attributed his lung injury to a 8 “spontaneous” event as opposed to “blunt force trauma beating by prison guards.” 9 However, Plaintiff has presented no evidence that Cook falsified any documents, nor has 10 he at least presented any evidence creating a genuine issue of material fact as to that claim. 11 Rather, at core Plaintiff’s argument with Cook’s characterization of his injury as 12 “spontaneous” is that she “presents no evidence as to this diagnosis.” (Defs.’ MSJ Opp’n 13 34 (emphasis in original).) But that is not true. To the contrary, Defendants explain that the 14 term “spontaneous” is “merely an indication that the doctor does not know the etiology of 15 the pneumothorax, which can have numerous etiologies, including but not limited to, 16 coughing, a bleb,12 smoking, drug use, blunt force, secondary to congenital pathology, etc.” 17 (Defs.’ MSJ Mem. 24 (citing Barnett Decl. ¶ 42) (emphasis added).) In other words, 18 Defendants argue that the term “spontaneous” could also include trauma from a beating, 19 and thus it was not improper for Cook to indicate in the records that Plaintiff sustained a 20 “spontaneous” pneumothorax. (Id.) And, as already discussed, “Eighth Amendment 21 doctrine makes clear that ‘[a] difference of opinion between a physician and the prisoner— 22 or between medical professionals—concerning what medical care is appropriate does not 23 amount to deliberate indifference.’” Hamby, 821 F.3d at 1092 (quoting Snow, 681 F.3d at 24 987). 25 26 According to Defendants, “[b]lebs are small sacks of air in lung tissue, and when they rupture, they can cause a pneumothorax. Typically, a bleb does not cause any symptoms. Blebs can rupture for a variety of reasons, including coughing or a very sudden deep breath.” (Defs.’ MSJ Mem. 24 (citing Barnett Decl. ¶ 44).) 12 27 28 19 14-CV-1412 JLS (AGS) 1 In his opposition brief Plaintiff further argues that “Defendants” (which ostensibly 2 includes Cook) violated his due process rights by falsifying certain state documents in order 3 “to admit [him] involuntarily into a Mental Health Crisis Bed (MHCB) unit under false 4 pretenses for an alleged failed suicide attempt . . . [despite Plaintiff’s] complaint that he 5 [was] not suicidal, and his injuries are viewed as inconsistent with an alleged suicide 6 attempt by hanging with a ‘noose tied around his neck.’” (Defs.’ MSJ Opp’n 33–34 7 (emphasis in original); id. at 35 (noting that Cook’s alleged falsification created an 8 “atypical and significant” hardship for Plaintiff much different than those ordinarily 9 experienced by inmates).) 10 The Court disagrees. As discussed above, supra Section II.B.1, the Court concludes 11 that Plaintiff’s brief confinement in the CTC does not implicate a protected liberty interest 12 under the Fourteenth Amendment. Moreover, as with Davis, Plaintiff argues that Cook 13 falsified documents in order to admit him into the CTC. But Plaintiff has not demonstrated 14 that Cook falsified any documents, nor has he even identified which documents Cook 15 allegedly falsified in order to admit him into the CTC. Rather, as discussed, Plaintiff’s chief 16 concern with Cook is her notation that his injury was “spontaneous” when she requested 17 Plaintiff be sent to Alvarado Hospital on June 11, 2013, which was after he was released 18 from the CTC. (See, e.g., Defs.’ MSJ Opp’n 17 (admitting that Plaintiff was removed from 19 the MCHB unit on May 13, 2013).) Accordingly, Plaintiff has failed to rebut Defendants’ 20 arguments and evidence and thus the Court GRANTS this portion of Defendants’ Motion 21 for Summary Judgment. 22 II. Plaintiff’s Motion for Summary Judgment 23 Plaintiff also moves for summary judgment on his claims that the Defendants were 24 deliberately indifferent to his serious medical needs in violation of the Eighth Amendment, 25 and that Defendants Cook and Davis also violated his First and Fourteenth Amendment 26 rights. (See generally Pl.’s MSJ Mem.) Given the Court’s rulings above, see supra Part I, 27 the Court briefly addresses Plaintiff’s contentions. 28 /// 20 14-CV-1412 JLS (AGS) 1 A. Eighth Amendment 2 To begin, the Court has already held that Davis is entitled to summary judgment that 3 he was not deliberately indifferent to Plaintiff’s serious medical needs. See supra Section 4 I.A.3. In so holding, the Court also considered Plaintiff’s proffered argument and evidence 5 in his opening brief in support of his Motion for Summary Judgment. (See, e.g., Pl.’s MSJ 6 Mem. 80–83 and accompanying exhibits.) Accordingly, the Court DENIES Plaintiff’s 7 Motion for Summary Judgment as to his claim that Davis violated his Eighth Amendment 8 rights. 9 Plaintiff also moves for summary judgment on his claims that Cook and Donoghue 10 were deliberately indifferent to his serious medical needs in violation of his Eighth 11 Amendment rights. (See id. at 79.) Plaintiff’s motion fails. 12 As to Cook, drawing all reasonable inferences from the evidence in Cook’s favor, 13 Plaintiff’s evidence does not establish that as a matter of law Cook was deliberately 14 indifferent to his serious medical needs. (Id. at 80–83.) Specifically, as Defendants note, 15 Plaintiff simply cites to medical records which were not authored by Cook. (Pl.’s MSJ 16 Opp’n 12.) Thus, these medical records do not unquestionably demonstrate that Cook was 17 actually aware of the range of Plaintiff’s alleged injuries, including his claim that he was 18 having severe breathing difficulties. Moreover, Cook states under oath that she “do[es] not 19 recall examining Plaintiff on May 9, 2013, and due to the lack of records showing that [she] 20 conducted a physical examination of Plaintiff and the notification by Nurse Lacorum of his 21 findings, [she] can only surmise that [she] ordered the facial x-ray based upon Nurse 22 Lacorum’s examination of Plaintiff, wherein he complained of jaw pain.” (Cook Decl. ¶ 5.) 23 As with Defendants’ Motion for Summary Judgment, Cook’s declaration creates a genuine 24 issue of material fact as to whether she was aware of Plaintiff’s alleged serious medical 25 needs, and thus the Court cannot hold as a matter of law that Cook was deliberately 26 indifferent to those same needs. Accordingly, the Court DENIES Plaintiff’s Motion for 27 Summary Judgment on his claim that Cook violated his Eighth Amendment rights. 28 /// 21 14-CV-1412 JLS (AGS) 1 As to Donoghue, drawing all reasonable inferences from the evidence in Donoghue’s 2 favor, Plaintiff’s evidence does not establish as a matter of law that Donoghue was 3 deliberately indifferent to his serious medical needs. (Pl.’s MSJ Mem. 82–83 (citing Exs. 4 M–P).) Exhibit M, prepared by Donoghue, notes that Plaintiff was uncooperative, hostile, 5 demanding, and did not allow a complete assessment. (Id. Ex. M, at 198–99).) While 6 Donoghue checked a box titled “ABNORMAL BREATH SOUNDS,” (id. at 198), 7 Donoghue declares under oath that this was a mistaken mark, which, as discussed above, 8 supra Section I.A.2, at least creates a genuine issue of material fact. Plaintiff fails to explain 9 the relevance of Exhibit N, which is a medical document dated May 13, 2013, four days 10 after Donoghue evaluated Plaintiff on May 9, 2013. Exhibit O is Donoghue’s Responses 11 to Set One of Plaintiff’s Interrogatories. (Id. at 203.) Not only does Plaintiff fail to identify 12 which portions of Donoghue’s responses demonstrate his deliberate indifference, 13 Donoghue’s responses actually corroborate his notations in the medical records that, 14 among other things, Plaintiff was uncooperative, hostile, and did not allow Donoghue to 15 fully assess his vitals. (Id. at 203–13.) Similarly, Exhibit P corroborates Donoghue’s 16 explanation that he mistakenly checked the incorrect box when noting that Plaintiff 17 exhibited abnormal breath sounds. (Id. at 216.) In sum, Plaintiff has failed to offer 18 undisputed evidence that Donoghue was deliberately indifferent to his alleged serious 19 medical needs. Accordingly, the Court DENIES Plaintiff’s Motion for Summary Judgment 20 on his claim that Donoghue violated his Eighth Amendment Rights. 21 B. First and Fourteenth Amendments 22 Plaintiff also moves for summary judgment on his claims that Cook and Davis 23 violated his due process rights under the Fourteenth Amendment. However, the Court has 24 already held that Cook and Davis are entitled to summary judgment that they did not violate 25 Plaintiff’s due process rights. See supra Section II.B. In so holding, the Court also 26 considered Plaintiff’s proffered argument and evidence in his opening brief in support of 27 his Motion for Summary Judgment. (See, e.g., Pl.’s MSJ Mem. 83–85 and accompanying 28 exhibits.) Accordingly, the Court DENIES Plaintiff’s Motion for Summary Judgment as 22 14-CV-1412 JLS (AGS) 1 to his claims that Cook and Davis violated his due process rights under the Fourteenth 2 Amendment. 3 But Plaintiff also moves for summary judgment on his claim that Cook violated his 4 First Amendment rights under a theory of retaliation. (Pl.’s MSJ Mem. 83.) Specifically, 5 Plaintiff argues that, in retaliation for Plaintiff’s filing a grievance against certain prison 6 personnel, Cook falsified official state records in order to help the correctional officers 7 succeed on the merits in Plaintiff’s related case. (Id. at 83–84.) 8 “Prisoners have a First Amendment right to file grievances against prison officials 9 and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th 10 Cir. 2012) (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “In the prison 11 context, a claim for First Amendment retaliation under § 1983 must establish five elements: 12 ‘(1) an assertion that a state actor took some adverse action against an inmate (2) because 13 of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 14 exercise of his First Amendment rights, and (5) the action did not reasonably advance a 15 legitimate correctional goal.’” Howard v. Foster, 208 F. Supp. 3d 1152, 1159 (D. Nev. 16 2016) (quoting Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005)). “The filing of 17 an inmate grievance is protected conduct.” Watison, 668 F.3d at 1114. The adverse action 18 does not need to be an independent constitutional violation, and the mere threat of harm 19 can be an adverse action. Id. “A causal connection between the adverse action and the 20 protected conduct can be alleged by an allegation of a chronology of events from which 21 retaliation can be inferred.” Howard, 208 F. Supp. 3d at 1159 (citing Watison, 668 F.3d at 22 1114). 23 In support of his Motion, Plaintiff relies on Cook’s alleged falsification of medical 24 documents when, in sending Plaintiff back to the hospital to treat his infection, she noted 25 that his lung injury occurred as a result of a “spontaneous” event. (Pl.’s MSJ Mem. 84 26 (citing Ex. R); see also supra Section II.B.2.) But, to the contrary, Plaintiff contends that 27 his injury occurred “from the beating [he] endured at the hands of four (4) correctional 28 officers,” and raises the question “why would [Cook] do this?” (Id.) 23 14-CV-1412 JLS (AGS) 1 Plaintiff’s Motion fails. As an initial matter, Plaintiff has provided no evidence that 2 Cook actually falsified this document by noting that Plaintiff’s injury occurred after a 3 “spontaneous” event. Quite the opposite, drawing all reasonable inferences from the 4 evidence in Cook’s favor, the record reflects that a “spontaneous” event can include injury 5 from blunt force trauma (i.e., Cook’s notation encompassed even Plaintiff’s account of his 6 injury). (Barnett Decl. ¶ 42.) But Plaintiff’s retaliation claim would fail even if he 7 demonstrated that Cook falsified this medical document. Specifically, Plaintiff has 8 provided no evidence that Cook was actually aware that Plaintiff filed any grievances, 9 much less that she acted adversely to Plaintiff because of those grievances. Thus, Plaintiff 10 has failed to establish a causal connection between his protected exercise (filing of the 11 grievance) and Cook’s allegedly retaliatory conduct (falsifying a medical document). Nor 12 has he alleged, much less demonstrated, that this alleged retaliation chilled his exercise of 13 his First Amendment rights. In sum, Plaintiff has failed to establish that as a matter of law 14 Cook retaliated against him in violation of his First Amendment rights. Accordingly, the 15 Court DENIES Plaintiff’s Motion for Summary Judgment as to his claim that Cook 16 violated his rights under the First Amendment. 17 CONCLUSION 18 For the reasons stated above, the Court GRANTS IN PART and DENIES IN 19 PART Defendants’ Motion for Summary Judgment (ECF No. 151), and DENIES 20 Plaintiff’s Motion for Summary Judgment (ECF No. 155). 21 22 IT IS SO ORDERED. Dated: May 23, 2017 23 24 25 26 27 28 24 14-CV-1412 JLS (AGS)

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