Buchanan v. Garikaparthi et al

Filing 61

REPORT AND RECOMMENDATION re 48 Defendants' Motion for Summary Judgment. IT IS RECOMMENDED that the District Court issue an Order: (1) Approving and Adopting this Report and Recommendation; and (2) GRANTING Defendants' motion for summar y judgment. Any written objections to this Report must be filed with the Court and served on all parties no later than October 30, 2017. Any reply to the objection shall be filed with the Court and served on all parties no later than November 6, 2017. Signed by Magistrate Judge Mitchell D. Dembin on 10/16/2017.(All non-registered users served via U.S. Mail Service)(aef)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TORRY BUCHANAN, Case No.: 15cv0059-BEN-MDD Plaintiff, 12 13 v. 14 RE. A. GARIKAPARTHI and DR. S. ROBERTS, 15 Defendant. 16 REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [ECF No. 48] 17 18 This Report and Recommendation is submitted to United States 19 Districted Judge Roger T. Benitez pursuant to 28 U.S.C. § 636(b)(1) and Local 20 Civil Rule 72.1(c) of the United States District Court for the Southern 21 District of California. 22 23 24 25 For the reasons set forth herein, the Court RECOMMENDS Defendants’ Motion for Summary Judgment be GRANTED. I. PROCEDURAL HISTORY Torry Buchanan (“Plaintiff”) is a state prisoner proceeding pro se and in 26 forma pauperis, with a civil complaint filed pursuant to 42 U.S.C. § 1983. 27 (ECF Nos. 1, 4). In his Complaint, Plaintiff sets forth two claims alleging 1 15cv0059-BEN-MDD 1 that his Eighth Amendment rights were violated by Doctors Garikaparthi 2 and Roberts, who were deliberately indifferent to Plaintiff’s serious medical 3 needs. (ECF No. 4 at 2-4). Both of Plaintiff’s claims are related to 4 Defendants’ alleged failure to provide adequate medical treatment that led to 5 the amputation of three of Plaintiff’s toes. (Id. at 3-4). On July 13, 2017, Defendants filed a motion for summary judgment, 6 7 and served a Rand notice on Plaintiff. (ECF No. 48). Plaintiff was given 8 until September 19, 2017, to file his opposition, but as of the date of this 9 Report and Recommendation, he has not done so. 10 II. FACTUAL BACKGROUND 11 Defendants have produced evidence of the following facts.1 In 2002, 12 Plaintiff was shot, resulting in right foot drop, which made his foot 13 susceptible to additional injury. (ECF No. 48-3 at ¶8). Plaintiff received 14 accommodations for his foot from prison staff including orthosis, a cane, and 15 special shoes. (Id.). Additionally, it was recommended that Plaintiff not have 16 prolonged periods of either standing or sitting. (Id.). In October, 2012, Plaintiff was first seen by Dr. Sedighi for treatment of 17 18 a wound on his right foot’s big toe. (Id. at ¶9). According to medical records, 19 Plaintiff indicated that he had had a blister for three weeks, but did not 20 present for medical care until shortly before his scheduled appointment with 21 Dr. Sedighi. (Id.) The wound appeared “superficial with no discharge,” but 22 “out of an abundance of caution,” Plaintiff was given a round of oral 23 antibiotics and instructed to have his dressings changed daily with topical 24 antibiotics. (Id.) Plaintiff also had an x-ray taken which showed no 25 26 27 These facts are undisputed because Plaintiff has not filed an opposition or put forth any evidence disputing them. 1 2 15cv0059-BEN-MDD 1 underlying osteomyelitis or other bony abnormality. (Id.) Because Plaintiff’s 2 foot drop was known, a podiatry referral was made, with the appointment 3 focusing on new accommodations for Plaintiff. (Id. at ¶11). At this November 4 9, 2012 appointment, Plaintiff refused wound care. (Id.). 5 On November 20, 2012, a prison officer placed a note in Plaintiff’s 6 medical record. (Id. at ¶12). The note indicated that despite instructions to 7 avoid prolonged sitting or standing and to use orthotics and a cane, Plaintiff 8 was observed playing football for “approximately 45 minutes and was 9 running, jumping, throwing, and catching.” (Id.). 10 Starting in early December, 2012, Plaintiff began reporting to the 11 podiatrist for regular treatment of his wound including removing damaged 12 tissue and applying Silvadene, a cream used to prevent and treat infection. 13 (Id. at ¶13). 14 According to medical staff, as of April 12, 2013, Plaintiff had refused 15 wound care twenty-one times. (Id. at ¶14). Plaintiff further refused to 16 attend his scheduled podiatry appointment on May 3, 2014. (Id. at ¶15). 17 Additionally, notes from a May 2013 appointment indicate that Plaintiff both 18 refused crutches and had been removing the accommodation “designed to 19 offload weight from his big toe in order to help his ulcer heal. The doctor 20 noted ‘poor patient compliance.’” (Id. at 16). 21 On June 5, 2013, a nurse treating Plaintiff’s wound noticed 22 serosanguinous drainage and consulted with Dr. Garikaparthi who requested 23 a culture be sent to the lab for analysis. (Id. at 54). Plaintiff again refused 24 crutches at this appointment. (Id.) A week later the lab results showed “the 25 growth of Staph aureus and Pseudomonas. (Id. at ¶18). The following day 26 Dr. Garikaparthi met with Plaintiff for the first time. The doctor noted 27 Plaintiff’s “pertinent past history, addressed pain management, and started 3 15cv0059-BEN-MDD 1 Plaintiff on antibiotics….” (Id. at 55-59). At Plaintiff’s second and last visit with Dr. Garikaparthi on October 10, 2 3 2013, the doctor was concerned by the appearance of Plaintiff’s wound and 4 sent plaintiff to the Triage and Treatment Area (“TTA”) for “an antibiotic 5 injection for immediate onset, to have two oral antibiotics and Tylenol with 6 Codeine for pain control initiated, and continued daily dressing changes.” 7 (Id. at ¶19.) An x-ray was negative for osteomyelitis. As of the October 10 8 appointment, Plaintiff had twenty-six documented refusals of wound care. 9 (Id.) 10 Plaintiff was then sent to Alvarado Hospital for treatment, staying 11 there from October 14 to October 23, 2013. (Id. at 68). Medical staff believed 12 Plaintiff had chronic osteomyelitis and septic arthritis in his right big toe. 13 (Id.). During his hospitalization, various medical professionals urged 14 Plaintiff to consent to having his big toe amputated, which Plaintiff 15 repeatedly refused. (Id. at ¶21). As such, a “less than optimal” treatment 16 plan was devised, including intravenous antibiotics that would control but 17 not resolve the infection. (Id.). 18 Dr. Sedighi documented Plaintiff’s refusals of and noncompliance with 19 treatment through to October 24, 2013, noting that Plaintiff had been 20 counseled against refusing treatment and the likelihood that without 21 treatment he was increasing his risk of a “higher level” amputation, sepsis, or 22 death. (Id. at ¶23). Dr. Sedighi indicated that Plaintiff “verbalized 23 understanding but states that he does not want to have IV antibiotics.” (Id.). 24 Further, Dr. Sedighi indicated he would be referring Plaintiff for a 25 psychiatric evaluation to determine whether Plaintiff’s capacity to make 26 medical decisions was impaired. (Id.). Two days later, a psychologist 27 determined that Plaintiff did not seem to be having urgent mental health 4 15cv0059-BEN-MDD 1 problems. (Id. at ¶24). 2 On October 31, 2013, Plaintiff was seen by Dr. Currier, who noted that 3 Plaintiff checked himself out of the treatment center against medical advice. 4 (Id. at ¶25). Dr. Currier explained to Plaintiff in great detail, including hand- 5 drawn diagrams, what was happening internally with Plaintiff’s toe, 6 summarized the recommendations from all of the medical professionals who 7 had opined on Plaintiff’s condition, and that the consensus was that 8 amputation was necessary. (Id.). Further, Dr. Currier explained that as 9 Plaintiff had refused amputation, the next best option was IV antibiotics, 10 which Plaintiff also refused. Dr. Currier’s notes indicate that Plaintiff was 11 only willing to take oral antibiotics and that medical staff did not agree with 12 this plan. (Id.). 13 In notes from December 19, 2013, Dr. Kandkhorova stated that he told 14 Plaintiff that his condition would not resolve with medication alone and that 15 amputation was necessary, but that Plaintiff refused. (Id. at ¶26). Plaintiff 16 was again taken to Alvarado hospital on January 8, 2014, after additional 17 documented refusals of care, where records indicate that Plaintiff “…‘again 18 refused amputation,’ but agreed to have … removal of necrotic tissue and 19 cultures. Eight weeks of IV antibiotics were recommended to Plaintiff, but he 20 would only agree to undergo four weeks….” (Id. at ¶28). Following this 21 appointment Plaintiff reported a brief period of relief, however, by April 2014, 22 Plaintiff was again complaining of worsening pain in his toe. (Id.). 23 Following five additional refusals of care, Plaintiff saw Dr. Bates on 24 May 5, 2014, who ordered immediate transport to Tri-City Medical Center. 25 (Id. at ¶30). The first, second, and third toes on Plaintiff’s right foot were 26 amputated for extensive osteomyelitis on May 7, 2014. (Id. at ¶31). 27 Plaintiff filed a number of 602-HC health care appeals with respect to 5 15cv0059-BEN-MDD 1 his right foot. (ECF No. 48-4 at ¶8). None of Plaintiff’s appeals mentioned 2 Dr. Garikaparthi. (Id. at ¶9). Dr. Roberts was tasked with responding to 3 three appeals, HC 14051270, HC 14051455, and HC 15053483), each of which 4 were filed after Plaintiff’s toes had been amputated. (Id. at ¶10). The first of 5 these, HC 14051270, was filed on June 2, 2014, and requested that Plaintiff 6 be put back on medication that was supposedly discontinued without first 7 seeing a doctor. (Id. at 9). Dr. Roberts indicated that interviewing and 8 examining doctors noted Plaintiff’s surgery wounds were healing well, that 9 Plaintiff’s treatment plan would change naturally without seeing a physician 10 as he healed, and that physicians were reviewing his chart regularly to make 11 any required adjustments. (Id. at ¶4). 12 The second appeal, HC 14051455, was filed on July 8, 2014 and 13 contained Plaintiff’s request for stronger medication. (Id. at 9-10). Plaintiff’s 14 appeal was partially granted, however Plaintiff was given Tylenol and a right 15 foot orthotic because narcotics were not generally given two months after 16 surgery. (Id. at ¶5). 17 Dr. Roberts’ third and last involvement with Plaintiff’s appeals process 18 was on June 17, 2015, when Plaintiff’s appeal, HC 15053483, requested 19 shower shoes. (Id. at 8). Plaintiff’s request for footwear was denied “as not 20 being medically indicated.” (Id. at ¶6). Dr. Roberts did not respond to any of 21 Plaintiff’s other health care appeals. (Id. at ¶8). 22 III. LEGAL STANDARD 23 A. Summary Judgment 24 Rule 56(c) of the Federal Rules of Civil Procedure authorizes the 25 granting of summary judgment “if the pleadings, depositions, answers to 26 interrogatories, and admissions on file, together with the affidavits, if any, 27 show that there is no genuine issue as to any material fact and that the 6 15cv0059-BEN-MDD 1 moving party is entitled to judgment as a matter of law.” The standard for 2 granting a motion for summary judgment is essentially the same as for the 3 granting of a directed verdict. Judgment must be entered, “if, under the 4 governing law, there can be but one reasonable conclusion as to the verdict.” 5 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “If reasonable 6 minds could differ,” however, judgment should not be entered in favor of the 7 moving party. Id. at 250-51. 8 The parties bear the same substantive burden of proof as would apply 9 at a trial on the merits, including plaintiff’s burden to establish any element 10 essential to his case. Liberty Lobby, 477 U.S. at 252; Celotex v. Catrett, 477 11 U.S. 317, 322 (1986); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). The 12 moving party bears the initial burden of identifying the elements of the claim 13 in the pleadings, or other evidence, which the moving party “believes 14 demonstrates the absence of a genuine issue of material fact.” Celotex, 477 15 U.S. at 323; see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); 16 Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). “A material 17 issue of fact is one that affects the outcome of the litigation and requires a 18 trial to resolve the parties’ differing versions of the truth.” S.E.C. v. 19 Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982). More than a 20 “metaphysical doubt” is required to establish a genuine issue of material fact. 21 Matsushita Elec. Indus. Co., Ltd v. Zenith Radio Corp., 475 U.S. 574, 586 22 (1986). 23 The burden then shifts to the non-moving party to establish, 24 beyond the pleadings, that there is no genuine issue for trial. See Celotex, 25 477 U.S. at 324. To successfully rebut a properly supported motion for 26 summary judgment, the nonmoving party “must point to some facts in the 27 record that demonstrate a genuine issue of material fact and, with all 7 15cv0059-BEN-MDD 1 reasonable inferences made in the plaintiff[’s] favor, could convince a 2 reasonable jury to find for the plaintiff[].” Reese v. Jefferson School Dist. No. 3 14J, 208 F.3d 736, 738 (9th Cir. 2000) (citing Fed. R. Civ. P. 56; Celotex, 477 4 U.S. at 323; Liberty Lobby, 477 U.S. at 249). 5 While the district court is “not required to comb the record to find some 6 reason to deny a motion for summary judgment,” Forsberg v. Pacific N.W. 7 Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988), see also Nilsson v. 8 Louisiana Hydrolec, 854 F.2d 1538, 1545 (9th Cir. 1988), the court may 9 nevertheless exercise its discretion “in appropriate circumstances,” to 10 consider materials in the record which are on file but not “specifically 11 referred to.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 12 1031 (9th Cir. 2001). However, the court need not “examine the entire file for 13 evidence establishing a genuine issue of fact, where the evidence is not set 14 forth in the opposing papers with adequate references so that it could be 15 conveniently found.” Id. 16 In ruling on a motion for summary judgment, the court need not accept 17 legal conclusions “cast in the form of factual allegations.” Western Mining 18 Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). “No valid interest is 19 served by withholding summary judgment on a complaint that wraps 20 nonactionable conduct in a jacket woven of legal conclusions and hyperbole.” 21 Vigliotto v. Terry, 873 F.2d 1201, 1203 (9th Cir. 1989). 22 Moreover, “[a] conclusory, self-serving affidavit, lacking detailed 23 facts and any supporting evidence, is insufficient to create a genuine issue of 24 material fact.” F.T.C. v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 25 (9th Cir. 1997). Nevertheless, “the district court may not disregard a piece of 26 evidence at the summary stage solely based on its self-serving nature.” Nigro 27 v. Sears, Roebuck & Co., 784 F.3d 495, 497-498 (9th Cir. 2015) (finding 8 15cv0059-BEN-MDD 1 plaintiff’s “uncorroborated and self-serving” declaration sufficient to establish 2 a genuine issue of material fact because the “testimony was based on 3 personal knowledge, legally relevant, and internally consistent.”). 4 A district court may not grant a motion for summary judgment solely 5 because the opposing party has failed to file an opposition. Cristobal v. 6 Siegel, 26 F.3d 1488, 1494-95 & n. 4 (9th Cir. 1994). A court may, 7 nonetheless, “grant an unopposed motion for summary judgment if the 8 movant’s papers are themselves sufficient to support the motion and do not 9 on their face reveal a genuine issue of material fact[.]” Williams v. Santa 10 Cruz Cnty. Sheriff’s Dep’t, 234 F. App’x 522, 523 (9th Cir. 2007) (citing Henry 11 v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993)). 12 IV. DISCUSSION 13 Plaintiff brings two claims. (ECF No. 4). Claim 1 alleges that 14 Defendant Dr. Garikaparthi violated Plaintiff’s Eighth Amendment right to 15 be free from cruel and unusual punishment by failing to provide Plaintiff 16 with adequate medical treatment. (ECF No. 4 at 3). Claim 2 alleges that 17 Defendant Dr. Roberts similarly violated Plaintiff’s Eighth Amendment right 18 by not fulfilling his obligation in his supervisory capacity to ensure that 19 Plaintiff’s medical needs were being adequately met. (Id. at 4). 20 1. 11th Amendment Immunity 21 Defendants argue that as they were sued in their official capacities 22 only, they are not “persons” under 42 U.S.C. § 1983, and as such are immune 23 from suit under the Eleventh Amendment. (ECF No. 48-2 at 17). 24 The Supreme Court has recognized that “a suit against a state official 25 in his or her official capacity is not a suit against the official but rather is a 26 suit against the official's office. As such, it is no different from a suit against 27 the State itself.” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). 9 15cv0059-BEN-MDD 1 Absent a waiver by the state or a valid congressional override, the Eleventh 2 Amendment offers state agencies immunity from private causes of action for 3 damages brought in federal court. Dittman v. California, 191 F.3d 1020, 4 1025-26 (9th Cir. 1999). The State of California has not waived its immunity 5 under the Eleventh Amendment for § 1983 claims. Id. In addition, the 6 Supreme Court has held that Congress did not intend for § 1983 to abrogate a 7 state's Eleventh Amendment immunity. See id (citing Kentucky v. Graham, 8 473 U.S. 159, 169 n.17 (1985)). 9 Accordingly, the Court RECOMMENDS that defendants Garikaparthi 10 and Roberts are entitled to summary judgment with respect to Plaintiff's 11 official capacity claims for damages. See also Hafer v. Melo, 502 U.S. 21, 30 12 (1991) (clarifying that the Eleventh Amendment does not bar suits against 13 state officials sued in their individual capacities, nor does it bar suits for 14 prospective injunctive relief against state officials sued in their official 15 capacities). 16 2. Deliberate Indifference 17 In the FAC, Plaintiff claims that between October 2012 and May 2015, 18 he repeatedly complained about a painful infection in his big toe and that Dr. 19 Garikaparthi “failed to take [his] condition seriously and prescribe [him] with 20 the appropriate medical treatment.” (ECF No. 4 at 3). Plaintiff further 21 alleges that Dr. Garikaparthi’s treatment only involved bandages and foot 22 cream, which were “all superficial and did not affectively address the 23 underlying problem of [his] infection. (Id.). Defendants argue in their motion 24 that Dr. Garikaparthi was only involved in Plaintiff’s medical care in three 25 specific instances and that the medical record lacks any support for the 26 theory that Dr. Garikaparthi was deliberately indifferent. (ECF No. 48-2 at 27 19-20.) 10 15cv0059-BEN-MDD 1 To succeed on an Eighth Amendment claim predicated on the denial of 2 medical care, a plaintiff must establish that he had a serious medical need 3 and that the defendant's response to that need was deliberately indifferent. 4 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see also Estelle v. Gamble, 5 429 U.S. 97, 106 (1976). A serious medical need exists if the failure to treat 6 the condition could result in further significant injury or the unnecessary and 7 wanton infliction of pain. Jett, 439 F.3d at 1096. Deliberate indifference may 8 be shown by the denial, delay, or intentional interference with medical 9 treatment, or by the way in which medical care is provided. Hutchinson v. 10 11 United States, 838 F.2d 390, 394 (9th Cir. 1988). To act with deliberate indifference, a prison official must both be aware 12 of facts from which the inference could be drawn that a substantial risk of 13 serious harm exists, and he must also draw the inference. Farmer v. 14 Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if he knows 15 that plaintiff faces “a substantial risk of serious harm and disregards that 16 risk by failing to take reasonable measures to abate it.” Id. at 847. A 17 physician need not fail to treat an inmate altogether in order to violate that 18 inmate's Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 19 1314 (9th Cir. 1989). Failure to competently treat a serious medical 20 condition, even if some treatment is prescribed, may constitute deliberate 21 indifference in a particular case. Id. 22 It is important to differentiate common law negligence claims of 23 malpractice from claims predicated on violations of the 8th Amendment's 24 prohibition of cruel and unusual punishment. In asserting the latter, “[m]ere 25 'indifference,' 'negligence,' or 'medical malpractice' will not support this cause 26 of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 27 1980) (citing Estelle, 429 U.S. at 105-06); see also Toguchi v. Chung, 391 F.3d 11 15cv0059-BEN-MDD 1 1051, 1057 (9th Cir. 2004). Plaintiff must show a deliberate disregard for a 2 known medical need. The Ninth Circuit has made clear that a difference of 3 medical opinion is, as a matter of law, insufficient to establish deliberate 4 indifference. See Toguchi, 391 F.3d at 1058. “Rather, to prevail on a claim 5 involving choices between alternative courses of treatment, a prisoner must 6 show that the chosen course of treatment ‘was medically unacceptable under 7 the circumstances,’ and was chosen ‘in conscious disregard of an excessive 8 risk to [the prisoner's] health.’” Id. (quoting Jackson v. McIntosh, 90 F.3d 9 330, 332 (9th Cir. 1996)). 10 Deliberate indifference lies somewhere between negligence and 11 “conduct engaged in for the very purposes of causing harm or with the 12 knowledge that harm will result.” Farmer, 511 U.S. at 836; see also Redman 13 v. County of San Diego, 942 F.2d 1435, 1440 (9th Cir. 1991). To succeed on a 14 deliberate indifference claim, a plaintiff must also demonstrate that the 15 prison official had a sufficiently culpable state of mind. Farmer, 511 U.S. at 16 839-40. Thus, an official must: (1) be actually aware of facts from which an 17 interference could be drawn that a substantial risk of harm exists; (2) 18 actually draw that inference; but (3) nevertheless disregard the risk to the 19 inmate’s health and wellbeing. Id. at 837-38. 20 Here, the signed declarations filed with defendants’ motion indicate 21 that Plaintiff had two in-person interactions with Dr. Garikaparthi, each 22 resulting in medical treatment increasing in intensity. Additionally, it was 23 Dr. Garikaparthi who ordered lab tests of Plaintiff’s serosanguinous 24 drainage, started Plaintiff on antibiotics, and referred Plaintiff to the TTA. 25 Indeed, Dr. Garikaparthi’s involvement in Plaintiff’s treatment resulted in 26 Plaintiff receiving medical treatment beyond bandages and cream. 27 Under the circumstances of this case, it would be likely that a trier of 12 15cv0059-BEN-MDD 1 fact would determine that Plaintiff’s complaints amounted to a serious 2 medical condition. However, there are no facts to support a finding of 3 deliberate indifference. Plaintiff saw medical personnel frequently and was 4 provided with substantial treatment for his complaints. At the same time, 5 Plaintiff repeatedly refused treatments and frequently refused to heed the 6 recommendations of medical staff. 7 Of importance is the fact that Dr. Garikaparthi did not work as a 8 physician at RJD for the entirety of the time Plaintiff alleges the doctor 9 ignored his requests for treatment. Plaintiff alleges that his complaints of 10 pain span from October 2012, to May 2015. Dr. Garikaparthi only worked at 11 RJD from May 2013 to November 2014. Dr. Garikaparthi provided a 12 consultation to a nurse regarding Plaintiff’s toe ulcer on June 5, 2013, and 13 then Dr. Garikaparthi met with Plaintiff on June 13, 2013 and October 10, 14 2013. Plaintiff alleges that he repeatedly complained to Dr. Garikaparthi 15 about his increasingly painful infection, but the medical record shows that 16 Plaintiff only had the opportunity to complain twice. Further, both of those 17 meetings resulted in increased and more advanced treatment. 18 Plaintiff has not supported his contention that Dr. Garikaparthi’s 19 indifference to Plaintiff allowed the infection to spread and ultimately led to 20 the amputation. To the contrary, the medical record shows that the only 21 indifference here was that of Plaintiff toward his own medical care. Plaintiff 22 was repeatedly advised that failure to acquiesce to more advanced treatment 23 or amputation of his big toe had the potential to lead to more serious medical 24 issues up to and including death. Despite these warnings, Plaintiff 25 attempted to substitute his own medical opinion, rejecting IV antibiotics for 26 the less favored oral antibiotics, only willing to take four weeks’ worth of 27 antibiotics instead of the recommended eight. The undisputed medical facts 13 15cv0059-BEN-MDD 1 show that it was only Plaintiff who disregarded the substantial risk of serious 2 harm. 3 Although Plaintiff alleges in the complaint that Dr. Garikaparthi was 4 deliberately indifferent in violation of Plaintiff’s Eighth Amendment rights 5 from October 2012 to May 2015, Plaintiff has presented no evidence of that or 6 of any purposeful act or failure on the part of the doctor. 7 Accordingly, the Court RECOMMENDS that Defendants’ Motion for 8 Summary Judgment be GRANTED as to Plaintiff’s deliberate indifference 9 claim. 10 3. No liability for involvement in the appeals process 11 Plaintiff argues that he sent Defendant Dr. Roberts several letters 12 indicating he was not receiving adequate treatment on his toes and 13 expressing concern that he would lose his foot. (ECF No. 4 at 4). Plaintiff 14 asserts that Dr. Roberts was aware of Plaintiff’s condition through 15 institutional correspondence and that his failure to satisfy his supervisory 16 responsibility to ensure Plaintiff was being adequately treated constituted 17 deliberate indifference. (Id.). Defendants argue that Dr. Robert’s 18 involvement was limited to responding to some of Plaintiff’s 602-HC appeals 19 and that that limited involvement does not open up Dr. Roberts to liability. 20 (ECF No. 48-2 at 25). Further, Defendants assert that there is no vicarious 21 liability for civil rights violations. (Id. at 24). 22 “Prison officials are not required to process inmate appeals in a specific 23 way or respond to them in a favorable manner.” De Bose v. Schmidt, No. 24 2:15-cv-1076-EFB (TEMP) P, 2016 U.S. Dist. LEXIS 75504, at *3 (E.D. Cal. 25 June 9, 2016). “Inmates lack a separate constitutional entitlement to a 26 specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 27 (9th Cir. 2003). A prisoner is entitled to the procedural right of a grievance 14 15cv0059-BEN-MDD 1 process, but this does not then bestow upon the prisoner any substantive 2 right. Rios v. Paramo, No. 14cv1073-WQH (DHB), 2015 U.S. Dist. LEXIS 3 117271, at *155 (S.D. Cal. June 29, 2015). A prison official’s denial of an 4 inmate’s grievance or appeal from a misconduct finding generally does not 5 constitute significant participation in an alleged constitutional violation 6 sufficient to give rise to personal liability. See Wilson v. Woodford, 2009 U.S. 7 Dist. LEXIS 25749, 2009 WL 839921, *6 (E.D. Cal. 2009). 8 Here, Dr. Roberts’ role as an appeals officer does not contribute to a 9 claim for an 8th Amendment violation. Additionally, Dr. Roberts did not 10 serve as Dr. Garikaparthi’s supervisor and therefore could not be held labile 11 for failure to properly supervise Dr. Garikaparthi. As established by the 12 dates of the 602-HC appeals that Dr. Roberts addressed, his participation in 13 Plaintiff’s case began after Plaintiff’s toes were amputated and months after 14 the last contact between Plaintiff and Dr. Garikaparthi. (ECF No. 48-2 at 15 22). Plaintiff alleges no facts that indicate Dr. Roberts personally treated 16 Plaintiff. Plaintiff’s conclusory statements in the Complaint do not establish 17 how Dr. Roberts’ involvement in reviewing three 602-HC appeals constitutes 18 a significant involvement in an alleged Eighth Amendment violation 19 sufficient to establish personal liability. 20 21 Accordingly, this Court RECOMMENDS that summary judgment be GRANTED as to Dr. Roberts’ participation in the appeals process. 22 4. Qualified immunity 23 Defendants raise qualified immunity as an alternative basis for 24 dismissal of Plaintiff’s claims. Defendants contend that they are entitled to 25 qualified immunity because there is no clearly established authority that 26 would find their conduct unconstitutional. (ECF No. 48-2 at 30). 27 Qualified immunity shields government officials performing 15 15cv0059-BEN-MDD 1 discretionary functions from liability for civil damages unless their conduct 2 violates clearly established statutory or constitutional rights of which a 3 reasonable person would have known. Anderson v. Creighton, 483 U.S. 635, 4 640 (1987). “In determining whether an officer is entitled to qualified 5 immunity, we consider (1) whether there has been a violation of a 6 constitutional right; and (2) whether that right was clearly established at the 7 time of the officer's alleged misconduct.” C.V. by & through Villegas v. City of 8 Anaheim, 823 F.3d 1252, 1255 (9th Cir. 2016) (quoting Lal v. California, 746 9 F.3d 1112, 1116 (9th Cir. 2014)). The Court may decide which of the two 10 prongs to address first. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Here, 11 as discussed above, there is no constitutional violation. Accordingly, both 12 Defendants are entitled to qualified immunity. 13 Based on the lack of any evidence of an Eighth Amendment violation 14 and Defendants’ entitlement to qualified immunity on this claim, the Court 15 RECOMMENDS that their motion for summary judgment be GRANTED, 16 and that this action be DISMISSED. V. CONCLUSION 17 For the reasons outlined above, IT IS RECOMMENDED that the 18 19 District Court issue an Order: (1) Approving and Adopting this Report and 20 Recommendation; and (2) GRANTING Defendants’ motion for summary 21 judgment. 22 IT IS HEREBY ORDERED that any written objections to this Report 23 must be filed with the Court and served on all parties no later than October 24 30, 2017. The document should be captioned “Objections to Report and 25 Recommendation.” 26 27 IT IS FURTHER ORDERED that any reply to the objection shall be filed with the Court and served on all parties no later than November 6, 16 15cv0059-BEN-MDD 1 2017. The parties are advised that the failure to file objections within the 2 specified time may waive the right to raise those objections on appeal of the 3 Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). 4 5 IT IS SO ORDERED. 6 7 Dated: October 16, 2017 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 17 15cv0059-BEN-MDD

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