Kaeo-Tomaselli v. Women's Community Correctional Center et al

Filing 58

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT re 47 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 3/19/13. "Defendants Tina Agaran and Abby Medrano's Motion for Summary Judgment is GRANTED. Defendant Eric Stevenson is DISM ISSED without prejudice. The Clerk is instructed to enter judgment and close the file." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Dion'e Kaeo-Tomaselli served by first class mail at the address of record on March 19, 2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DION’E KAEO-TOMASELLI,
#A5004463,
Plaintiff,
vs.
ABBY MEDRANO, TINA AGARAN,
ERIC STEVENSON,
Defendants.
____________________________

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CIV. NO. 11-00669 SOM-KSC
ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Before the court is Defendants Tina Agaran and Abby
Medrano’s Motion for Summary Judgment.
is unopposed.

ECF No. 47.

The Motion

For the following reasons, Defendants’ Motion for

Summary Judgment is GRANTED.1
I. PLAINTIFF’S CLAIMS
Plaintiff commenced this action on November 1, 2011,
alleging that Medrano and Agaran, nurses employed at the Women’s

1

The court exercises its discretion to decide this matter
without a hearing . See Local Rule LR7.2(d) (“Unless
specifically required, the court, in its discretion, may decide
all matters, including motions, petitions, and appeals, without a
hearing.”). This court sometimes holds hearings in cases
involving pro se prisoners even when they fail to submit written
opposition to motions. The court does that to ensure that the
prisoners actually received the motions, and to give them an
opportunity to orally oppose motions. However, that opportunity
makes more sense in the context of motions to dismiss for failure
to state a claim than motions for summary judgment that turn on
evidence. Moreover, in the present case, Plaintiff participated
in a pretrial conference on March 12, 2013, at which she
acknowledged that she had the summary judgment motion but had not
filed an opposition or sought any discovery.

Community Correctional Center (“WCCC”), had denied and/or delayed
adequate medical care to her with deliberate indifference to her
health.
#107-08.

See Second Amended Compl. (“SAC”), ECF No. 23 PageID
Specifically, Plaintiff alleges that Agaran refused to

refer her to a physician on October 30, 2009.

Plaintiff alleges

that Medrano: (1) gave her incorrect medicine and countermanded
her lower bunk and no shackles medical orders on May 6, 2009; (2)
refused to refer her to a physician on November 3, 2009; and (3)
gave her incorrect medicine again on April 22, 2010.

Plaintiff

claims that Defendants’ refusal to refer her to a physician
resulted in her emergency hospitalization in the Intensive Care
Unit (“ICU”) of the Castle Medical Center (“CMC”) for pneumonia,
allegedly damaging her throat.

Id.

Plaintiff seeks compensatory

damages, “perpetual care upon release,” and “reformation” of the
Hawaii Department of Public Safety’s (“DPS”) medical triage
treatment procedures.

Id. PageID #110.
II. LEGAL STANDARD

Summary judgment is proper when there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.

Fed. R. Civ. P. 56(a).

Rule 56(a)

mandates summary judgment “against a party who fails to make a
showing sufficient to establish the existence of an element
essential to the party’s case, and on which that party will bear
the burden of proof at trial.”

Celotex Corp. v. Catrett, 477
2

U.S. 317, 322 (1986); see also Broussard v. Univ. of Cal. at
Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
“A party seeking summary judgment bears the initial
burden of informing the court of the basis for its motion and of
identifying those portions of the pleadings and discovery
responses that demonstrate the absence of a genuine issue of
material fact.”

Soremekun v. Thrifty Payless, Inc., 509 F.3d

978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323); see
also Jespersen v. Harrah’s Operating Co., 392 F.3d 1076, 1079
(9th Cir. 2004).

“When the moving party has carried its burden

under Rule 56[(a)] its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts
[and] come forward with specific facts showing that there is a
genuine issue for trial.”

Matsushita Elec. Indus. Co. v. Zenith

Radio, 475 U.S. 574, 586–87 (1986) (citation and internal
quotation signals omitted); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247–48 (1986) (stating that a party cannot
“rest upon the mere allegations or denials of his pleading” in
opposing summary judgment).
To establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor.

It is sufficient that “the claimed

factual dispute be shown to require a jury or judge to resolve
the parties’ differing versions of the truth at trial.”
3

T.W.

Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d
626, 631 (9th Cir. 1987).

“A scintilla of evidence or evidence

that is merely colorable or not significantly probative does not
present a genuine issue of material fact.”

Addisu v. Fred Meyer,

Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).

“[I]f the factual

context makes the non-moving party’s claim implausible, that
party must come forward with more persuasive evidence than would
otherwise be necessary to show that there is a genuine issue for
trial.”

Cal. Arch’l Bldg. Prods., Inc. v. Franciscan Ceramics,

Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (citing Matsushita
Elec. Indus. Co., 475 U.S. at 587); accord Addisu, 198 F.3d at
1134 (“There must be enough doubt for a ‘reasonable trier of
fact’ to find for plaintiffs in order to defeat the summary
judgment motion.”).

Thus, the “purpose of summary judgment is to

‘pierce the pleadings and to assess the proof in order to see
whether there is a genuine need for trial.’”

Matsushita Elec.

Indus. Co., 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e)
advisory committee’s note on 1963 amendments).
“An issue is ‘genuine’ only if there is a sufficient
evidentiary basis on which a reasonable fact finder could find
for the nonmoving party, and a dispute is ‘material’ only if it
could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing
Anderson, 477 U.S. at 248).

When considering the evidence on a
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motion for summary judgment, the court must draw all reasonable
inferences on behalf of the nonmoving party.

Matsushita Elec.

Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating
that “the evidence of [the nonmovant] is to be believed, and all
justifiable inferences are to be drawn in his favor” (citations
omitted)).
III.

DISCUSSION

“To sustain an action under section 1983, a plaintiff
must show ‘(1) that the conduct complained of was committed by a
person acting under color of state law; and (2) that the conduct
deprived the plaintiff of a federal constitutional or statutory
right.’”

Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007)

(citation omitted), vacated and remanded on other grounds, 129 S.
Ct. 2431 (2009); see also West v. Atkins, 487 U.S. 42, 48 (1988);
42 U.S.C. § 1983.
Defendants argue that Plaintiff cannot show that they
denied or delayed her medical care or a referral to a physician,
administered incorrect medication, or contravened a medical order
for a lower bunk and no shackles with deliberate indifference to
her health.

Defendants also argue that Plaintiff’s claims that

accrued in May and October 2009 are time-barred because she did
not commence this action until November 1, 2011.
//
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A.

Deliberate Indifference Standard

“[D]eliberate indifference [by prison personnel] to
serious medical needs of prisoners constitutes the ‘unnecessary
and wanton infliction of pain,’ in contravention of the Eighth
Amendment.”

Estelle v. Gamble, 429 U.S. 97, 104 (1976) (internal

citation omitted); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.
2006).

This may be shown by “acts or omissions sufficiently

harmful to evidence deliberate indifference to serious medical
needs.”

Estelle, 429 U.S. at 105–06.

Deliberate indifference is

found when an official “knows of and disregards an excessive risk
to inmate health or safety.”
837 (1994).

Farmer v. Brennan, 511 U.S. 825,

To determine deliberate indifference, the court must

“scrutinize the particular facts and look for substantial
indifference in the individual case, indicating more than mere
negligence or isolated occurrences of neglect. . . .

While poor

medical treatment will at a certain point rise to the level of
constitutional violation, mere malpractice, or even gross
negligence, does not suffice.”
1332, 1334 (9th Cir. 1990).

Wood v. Housewright, 900 F.2d

Deliberate indifference can be shown

when there has been denial, delay, or intentional interference
with medical treatment.

Id. at 1334.

A difference in medical

opinion, however, does not constitute deliberate indifference.
Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).

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B.

No Denial of Medical Care on October 30 and November 3,
2009
Plaintiff complains that she asked Agaran (on October

30, 2009) and Medrano (on November 3, 2009) to see a doctor or be
taken to the hospital, but that they denied her requests.
Plaintiff alleges that this resulted in her emergency transport
to CMC and placement in intensive care on life support, and
permanently damaged her throat.
The uncontested facts show that, on October 26, 2009,
Plaintiff went to the WCCC Medical Unit complaining that she had
pneumonia and her throat was sore, and requesting antibiotics.
Defs’. Ex. C, ECF No. 48-5 (SEALED) PageID #285.

Plaintiff’s

medical chart reflects that her lungs were clear, she had no
fever, had good air exchange, and was told to gargle with salt
for her sore throat.

Id.

She was cautioned to return to the

clinic “ASAP” if her symptoms persisted or worsened.

Id.

Plaintiff did not alert the WCCC Medical Unit staff then or
thereafter that she was HIV positive, although she had been aware
of her condition since 2002.

See Kaeo-Tomaselli Dep., ECF No.

48-2 (SEALED), PageID #270-71.
Two days later, on October 28, 2009, Plaintiff returned
to the WCCC Medical Unit still complaining of a sore throat and
respiratory problems.

See ECF No. 48-5 (SEALED), PageID #285.

WCCC medical staff admitted Plaintiff to the infirmary for
observation until she was fever-free for twenty-four hours.
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Id.,

PageID #288.

Plaintiff’s medical chart notes that WCCC medical

staff reassured Plaintiff that “her lungs are clear” and noted
that “she’s moving air quite well.”2

Id. PageID #285.

They also

notified Dr. Paderes of Plaintiff’s condition and complaints.
Id.

The chart records that Plaintiff “is non-compliant [with]

her [psychotropic] medications . . . .
for the past 2 nights.”

She did not take her meds

Id. PageID #286.

Plaintiff was observed

with “watchful expectancy” and given Tylenol and increased
fluids.

Id., PageID #289.
On October 29, 2009, Plaintiff’s fever resolved.

She

indicated that she felt better, but she requested cough medicine.
Id., PageID #289.

Dr. Bauman examined her, determined that there

was “no need for clinic,” and left instructions to increase
Plaintiff’s fluid intake.

Id.

Plaintiff was given her

psychotropic medicine and cautioned that if she remained noncompliant, these medications would be discontinued.
remained overnight in the clinic.

Id.

She

See Kaeo-Tomaselli Dep., ECF

No. 48-2 (SEALED), PageID #260.
On October 30, 2009, Plaintiff was monitored throughout
the day until her fever was stable for twenty-four hours; she was
returned to her module at or about 21:15.
(SEALED), PageID #290.

See ECF No. 48-5

Three nurses monitored Plaintiff on this

2

It does not appear that either Medrano or Agaran was
involved with Plaintiff’s care on October 28, 2009.
8

date; Agaran signed the medical chart releasing Plaintiff from
the infirmary.

ECF No. 48-5 (SEALED), PageID #290.

Plaintiff

states that she asked Agaran to take her to the hospital or to
see a doctor but claims that Agaran refused.

See Kaeo-Tomaselli

Dep., ECF No. 48-2 (SEALED) PageID #262.
On October 31, 2009, Plaintiff returned to the
infirmary complaining of difficulty breathing and a lack of
appetite.

See ECF No. 48-5 (SEALED), PageID #292.

Her

temperature was elevated (101.5), and her breathing was shallow.
Less than two hours later, however, Plaintiff asked to return to
her module.

See id. (“Can I go. It’s boring.” and “Wants to

return to housing. States, ‘I feel better.’”).
discharged.

Plaintiff was

Id.

Plaintiff was readmitted to the infirmary on November
1, 2009, where she remained until November 3, 2009.

See Kaeo-

Tomaselli Dep., ECF No. 48-2 (SEALED) PageID #264-65.
(Plaintiff’s medical records for these dates are not in the
court’s record).

Plaintiff says that her condition worsened,

and, on November 3, 2009, she was sent to CMC for a chest x-ray.
Id.

Plaintiff says the CMC radiologist told her and a WCCC guard

that Plaintiff should go to the emergency room.

Either the

radiologist did not direct hospital staff to take her there, or
hospital staff failed to receive or follow the radiologist’s
directions.

The upshot was that Plaintiff was discharged from

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CMC and returned to WCCC.

Id.

On arrival at WCCC, Plaintiff was

returned to her housing module.
Within a few hours, Plaintiff returned to the WCCC
Medical Unit.

Plaintiff said she was dizzy and lost

consciousness for awhile.

While Medrano retrieved oxygen,

Plaintiff told a guard that she felt as if she were dying.

The

guard allegedly relayed this information to Medrano when she
returned and administered the oxygen.

Id.

Plaintiff was then

sent back to CMC (which is less than two miles from WCCC) and
admitted to the ICU.

Id. PageID #266-68.

Plaintiff disclosed

her HIV status to CMC personnel on November 3, 2009.

Id. PageID

#270.
David Saldana, M.D., who is employed by the Hawaii
Department of Public Safety and provides medical care to inmates
at WCCC, reviewed Plaintiff’s medical records from WCCC and CMC
regarding this respiratory infection incident.
Decl., ECF No. 48-6.

See Saldana

Dr. Saldana states, “I must conclude that

given the information available to WCCC staff at the time, . . .
a self-limiting viral infection was a reasonable and justified
working diagnoses during the early phases of the clinical disease
process.”

Id., PageId #296.

Dr. Saldana notes that, when

Plaintiff’s condition deteriorated, “a transfer to the hospital
was indicated and occurred.”

Id.

10

Dr. Saldana opines that, based on his review of
Plaintiff’s medical records from the CMC, “it appears that an
accurate diagnosis was delayed due to the withholding of
pertinent medical history.”

Id., PageId #297.

He says, “Had

[Plaintiff] disclosed her HIV status[,] the medical staff at WCCC
would have followed a different course of treatment designed to
account for her true medical condition.”

Id.

Dr. Saldana states

that, in his medical opinion, based on his education, training,
and experience, Plaintiff received timely and appropriate medical
care at all times during this incident.
1.

Id.

October 30, 2009: Claims Against Agaran
Plaintiff was treated at the WCCC infirmary on October

26, then admitted to the WCCC infirmary on October 28, 2009,
where she remained for two days.

Dr. Bauman monitored, treated,

and examined Plaintiff on October 29, 2009, and cleared her for
release the next day.

By October 30, 2009, Plaintiff’s fever was

gone and she exhibited no other symptoms.

Agaran released

Plaintiff in accordance with Dr. Bauman’s orders, after her fever
had stabilized for twenty-four hours.
Plaintiff reentered

the infirmary the next day at her

own request, but was discharged less than two hours later, again
at her own request.

Plaintiff admits that she failed to notify

anyone at the WCCC Medical Unit at any time that she was HIV
positive.

Pl. Dep., ECF No. 48-2 PageID #270.
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Had she done so,

this might have alerted Dr. Bauman and the other WCCC medical
personnel to pursue a different course of treatment.

There is no

genuine issue of material fact as to whether Agaran provided
Plaintiff with timely and appropriate medical care on October 30,
2009, based on the symptoms Plaintiff presented and the
information she had disclosed, and in light of Dr. Bauman’s
specific orders to release Plaintiff the next day if her fever
was stable.

Plaintiff’s claims against Agaran fail as a matter

of law.
2.

November 3, 2009
Plaintiff admits that she was sent to CMC twice on

November 3, 2009, where she was treated by a radiologist and
later admitted, contradicting her claim that Medrano “refused to
refer [her] to a doctor,” or denied her access to medical
personnel on this date.

There is no evidence that Medrano

delayed sending Plaintiff to CMC or ordered CMC to release
Plaintiff after the chest x-ray was taken, even assuming Medrano
had the power to do so.

Thus, there is no genuine issue of

material fact as to whether Medrano refused to refer Plaintiff to
a physician or failed to provide appropriate and timely medical
care to Plaintiff on November 3, 2009.

Plaintiff’s claims

against Medrano regarding the November 3, 2009, incident fail as
a matter of law.

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Defendants’ Motion for Summary Judgment is GRANTED on
Plaintiff’s claims that Medrano and Agaran failed to provide her
with adequate medical care on October 30, and November 3, 2009.
B.

Rescission of “No Shackle” and “Lower Bunk” Orders
Plaintiff alleges that Medrano rescinded physician

orders prescribing her a lower bunk and no shackles.

Medrano

reviewed Plaintiff’s medical records and states that there are no
such medical orders in Plaintiff’s file.

Plaintiff fails to

produce these orders or any other support for this claim, such as
a statement from the doctor who allegedly issued the no shackle
and lower bunk orders.

Plaintiff cannot simply rest on the

allegations in her pleadings to oppose summary judgment.
Anderson, 477 U.S. at 247–48.

See

She must show more than a

“metaphysical doubt” that these medical orders exist and that
Medrano rescinded them with deliberate indifference to
Plaintiff’s health or safety.

Plaintiff fails to show that there

is a genuine issue of material fact concerning the alleged denial
of the no shackle and lower bunk orders, and summary judgment is
GRANTED as to this claim.
C.

Incorrect Medication
Plaintiff alleges that Medrano gave her incorrect

medication on May 6, 2009, and April 22, 2010.

She claims that

she suffered an allergic reaction from Medrano’s alleged mistake.

13

Medrano denies that she gave Plaintiff incorrect
medicine on either date.
#276.

Medrano Decl., ECF No. 48-4 PageID

Medrano states that she does not prescribe medicine to

inmates, but simply provides prescriptions that are issued by the
inmate’s physicians.

Id.

Medrano says that her practice is to

ascertain that the medication prescribed by a physician is the
medication given to an inmate before she dispenses it.
PageId 3277.

Id.,

If an inmate says the medication is incorrect,

Medrano will compare the medication to the prescription in the
inmate’s records to verify.

If the inmate’s chart indicates that

incorrect medicine was dispensed, Medrano would correct the
mistake.
1.

Id.
May 6, 2009
Plaintiff’s medical records show that she was seen at

the WCCC Medical Unit on May 4, 2009, for boils.
PageId #279.

ECF No. 48-5

The chart indicates that Dr. Paderes was notified.

Id. (“A/P - T.C. Dr. Paderes; Dr. aware of previous infections”).
Dr. Bauman prescribed Bactrim, a sulfa medication,3 for seven
days, and ordered that a “C&S” (culture and sensitivity) test be
performed when the boils began to drain.

3

Id.

Medrano’s name is

Bactrim contains a combination of sulfamethoxazole and
trimethoprim and is supplied in tablets and a liquid suspension.
Sulfamethoxazole and trimethoprim are both antibiotics that treat
different types of infection caused by bacteria.
http://www.webmd.com/drugs/drug-5530-Bactrim. (last visited Mar.
6, 2013).
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not on the chart on this date, and there is no evidence that she
was the attending nurse when Bactrim was prescribed or given to
Plaintiff.
On May 5, 2009, Plaintiff returned to the clinic for
treatment for her toe.

Medrano noted that Plaintiff’s boils were

improved and that she was “responding to Bactrim.”
6, 2009, Plaintiff returned to the clinic again.

Id.

On May

Medrano treated

Plaintiff’s toe, examined her boils, and changed her dressings.
Id.

Medrano gave Plaintiff Tylenol for her fever, and told her

to return at 5:00 p.m. to have her temperature and dressings
rechecked.

Medrano then conferred with Dr. Saldana regarding

this treatment and Plaintiff’s temperature.

Dr. Saldana

instructed Medrano to discontinue the Bactrim, start 500 mg. of
Cipro, and have certain lab tests done.

Id., PageID #279-80.

Another nurse, Rick Richy, R.N., notes that, at or about 11:00
p.m., he received a call from a guard relating that Plaintiff was
feeling ill.

Richy told the guard to contact the clinic if

Plaintiff’s condition changed or failed to improve.

Id., PageID

#280.
On May 7, 2009, Plaintiff returned to the clinic
complaining of vomiting, diarrhea, and chills.
fever and was given Tylenol.

Id.

Plaintiff later asked to return to

her housing unit so that she could eat regular food.
#281.

She had a

Id., PageId

Plaintiff also complained that she had been given the

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wrong medication the night before.

Dr. Bauman examined

Plaintiff, noted her boils, rash, itching, and “general
dermatitis,” and noted in her medical chart, “Sulfa allergy
(unlikely Cipro, I believe).”

Id. PageID #282.

Dr. Bauman

prescribed tetracycline, erythromycin, Flagyl, and Benadryl, and
discontinued the Cipro.

Medrano followed Dr. Bauman’s directions

and administered these medications.
Plaintiff’s medical records do not show that Medrano
was deliberately indifferent to Plaintiff’s serious medical
needs.

That Plaintiff had a reaction to either Bactrim or Cipro

does not, of itself, subject Medrano to liability.

As noted,

liability turns on subjective intent - whether Medrano was
deliberately indifferent to Plaintiff’s serious medical needs.
The uncontroverted facts establish that Medrano did not prescribe
either Bactrim or Cipro, but administered them on Dr. Saldana’s
and Dr. Bauman’s orders.

The evidence establishes that Dr.

Bauman and Dr. Saldana adjusted Plaintiff’s treatment as soon as
they became aware of Plaintiff’s reactions.

Plaintiff’s medical

chart establishes, without dispute, that Medrano, Bauman,
Saldana, and others at the WCCC Medical Unit responded to
Plaintiff’s changing conditions in a timely, appropriate manner.
Plaintiff provides nothing to controvert this conclusion.
Plaintiff’s allegation that she was given the wrong
medication establishes, at most, negligence, not deliberate

16

indifference.

Negligence does not support a claim under the

Eighth Amendment.

See Estelle, 429 U.S. at 106 (stating that a

claim “that a physician has been negligent in diagnosing or
treating a medical condition does not state a valid claim of
medical mistreatment under the Eighth Amendment.

Medical

malpractice does not become a constitutional violation merely
because the victim is a prisoner.”); Toguchi v. Chung, 391 F.3d
1051, 1057 (9th Cir. 2004).

Medrano is entitled to summary

judgment regarding the May 6, 2009, incident.4
2.

April 22, 2010
Plaintiff alleges that Medrano also gave her incorrect

medicine on or about April 22, 2010.

Plaintiff’s medical records

show that she was not seen at the WCCC Medical Unit on April 22,
2010, however.

See ECF No. 48-4 PageID #293 (showing that

Plaintiff saw Dr. Saldana on April 20 and 27, 2010, and was given
Tylenol and a Barium swallow esophagram).

During her deposition,

Plaintiff stated that Medrano gave her four pills on or about
April 22, 2010, including two Vistaril and two Doxepin, when she
had been prescribed 75 mg. of Doxepin.
PageID #254.

Pl. Dep., ECF No. 48-2,

Plaintiff claimed that when she pointed this out to

4

In light of this, it is unnecessary to address Defendants’
argument that Plaintiff’s claims accruing before November 1,
2009, are untimely. The record does not establish whether the
statute of limitation was tolled while Plaintiff grieved these
issues, or whether Plaintiff was entitled to equitable tolling
during her illnesses.
17

Medrano, Medrano told her that her medications had been changed.
Id., PageId #255.

Plaintiff said she had a hard time waking up

the next morning, was dizzy, and her eyes were red.
#256.

Id. PageId

Plaintiff admitted, however, that once she woke up she did

not seek medical care.

Id. PageId #257.

Defendants submit that, based on Plaintiff’s deposition
responses, she may be referring to May 6, 2010, when Dr. Wendler
prescribed her Doxepin.

See Pl. Dep., ECF No. 48-2 PageID #254.

Plaintiff’s medical chart does not show that Medrano had any
involvement with Plaintiff between April 15 and May 12, 2010,
when Medrano made a treatment note in Plaintiff’s chart.

If

Plaintiff was given the wrong medication on May 6, 2010, she did
not seek treatment for this and there is nothing to show that
Medrano was involved.

Moreover, Defendants submit evidence

showing that a common side effect of Doxepin is drowsiness, the
effect Plaintiff claims she experienced.

Plaintiff’s allegations

regarding this incident are unsupported by the record and
insufficient to defeat Defendants’ motion for summary judgment.
Medrano is GRANTED summary judgment on this claim.
IV.

DISMISSAL OF DEFENDANT STEVENSON

On December 27, 2012, more than a year after Plaintiff
was ordered to serve Defendants, the court granted Plaintiff an
extension of time to serve Defendant Eric Stevenson.

ECF No. 50.

Plaintiff was told to provide an address for Stevenson to the
18

U.S. Marshals within thirty days of the Order.

There is no

indication in the record that Plaintiff has done so, and
Stevenson remains unserved.
has long passed.

The deadline for service of process

Accordingly, Defendant Eric Stevenson is

dismissed from this action, without prejudice to the filing of a
new action against Stevenson if Plaintiff locates him.
V.

CONCLUSION

Defendants Tina Agaran and Abby Medrano’s Motion for
Summary Judgment is GRANTED.

Defendant Eric Stevenson is

DISMISSED without prejudice.

The Clerk is instructed to enter

judgment and close the file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 19, 2013.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Kaeo-Tomaselli v. WCCC Medical Unit, Civ. No. 11-00669 SOM-KSC, ORDER GRANTING MOTION
FOR SUMMARY JUDGMENT; G:\docs\prose attys\Ords\DMP\2013\Tomaselli 11-669 SOM (MSJ).wpd

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