Hoak v. Attorney General et al

Filing 71

MEMORANDUM DECISION AND ORDER. IT IS ORDERED that Defendant Siegert's Motion for Summary Judgment 63 is GRANTED. This case is DISMISSED with prejudice. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

LARRY M. HOAK,
Case No. 1:12-cv-00550-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
RONA SIEGERT,
Defendant.

Plaintiff, a prisoner in the custody of the Idaho Department of Correction
(“IDOC”), is proceeding pro se and in forma pauperis in this civil rights action. Now
pending before the Court in this civil rights matter is Defendant Siegert’s Motion for
Summary Judgment.
Having fully reviewed the record, the Court finds that the facts and legal
arguments are adequately presented in the briefs and record and that oral argument is
unnecessary. See D. Idaho Loc. Civ. R. 7.1. Accordingly, the Court enters the following
Order granting Defendant’s Motion and dismissing this case with prejudice.
BACKGROUND
1.

Procedural Background
Plaintiff filed the instant civil rights action against numerous Defendants—both

prison officials and prison medical providers—asserting Eighth Amendment medical
MEMORANDUM DECISION AND ORDER - 1

treatment claims with respect to his medical care for several conditions. The Court
granted Plaintiff in forma pauperis status. In the Court’s Initial Review Order, Plaintiff
was allowed to proceed only on his claim that Defendant Siegert violated the Eighth
Amendment with respect to the treatment Plaintiff has received for his diabetes. (Dkt. 11
at 21.) On October 24, 2013 (mailbox rule), Plaintiff filed an amended complaint, which
added some claims. (Dkt. 20.)
The Court then determined that Plaintiff had at least three previous actions
dismissed for failure to state a claim upon which relief could be granted, and the Court
revoked Plaintiff’s in forma pauperis status pursuant to 28 U.S.C. § 1915(g). (Dkt. 25.)
After Plaintiff failed to pay the filing fee, the Court dismissed this action. (Dkt. 27.)
The Ninth Circuit vacated and remanded, determining that Plaintiff had
sufficiently demonstrated that he was in “imminent danger of serious physical injury” for
purposes of the exception to the three-strikes provision in § 1915(g). (Dkt. 38.) This
Court reopened the case and granted Plaintiff in forma pauperis status. (Dkt. 41, 42.)
Defendant Siegert filed a motion to dismiss, which the Court granted in part and denied
in part. (Dkt. 52.) The Court concluded that the Amended Complaint stated a plausible
Eighth Amendment claim against Defendant Siegert with respect to Plaintiff’s medical
treatment for his diabetes. (Id.)
Defendant Siegert has moved for summary judgment. (Dkt. 63.) The Court has
denied Plaintiff’s motion to stay, which the Court construed as a Rule 56(d) motion,
because it did not “establish any specific reason why Plaintiff cannot properly prepare his

MEMORANDUM DECISION AND ORDER - 2

opposition to Defendant’s Motion for Summary Judgment.” (Dkt. 66 at 2.) Defendant’s
Motion for Summary Judgment is now ripe for consideration by the Court.
2.

Undisputed Facts
This section includes facts that are undisputed and material to the resolution of the

issues in this case. Because Plaintiff has not disputed most of Defendant’s Statement of
Undisputed Facts (“SOUF” or “Statement”), the following factual recitation is taken
primarily from that Statement and the documents supporting it. (See Dkt. 63-2.) The
Court will note the areas where Plaintiff disputes the Statement and will accept Plaintiff’s
version of the facts as to those disputes for purposes of this decision.
Plaintiff is incarcerated at the Idaho State Correctional Institution. The IDOC
contracts with a private company that provides medical treatment to Idaho state prisoners.
Defendant Siegert is the Health Services Director for the IDOC; her job is “to oversee the
medical contractor’s provision of medical services to IDOC facilities.” (Id. ¶ 3.)
Although Siegert is a registered nurse, she “does not provide patient care in her
role as the Health Services Director.” (Id.) Instead,
Siegert audits inmate medical files; monitors the contract
medical provider, the contract with the contract medical
provider, the NCCHC [National Commission on Correctional
Health Care] standards, and IDOC policy and procedures; and
investigates medical-related issues or complaints she receives,
discovers, and/or are brought to her attention, including
through concern forms and grievances. Siegert is the appellate
authority for offender grievances concerning health care.
Siegert supervises nurse managers and a contract monitor
who assist in the oversight of medical services provided to
inmates.

MEMORANDUM DECISION AND ORDER - 3

(Id. ¶¶ 4-5.) Joseph Cardona is one of the nurse managers whom Defendant Siegert
supervises. He is also a registered nurse. (Cordona Aff., Dkt. 63-4, ¶¶ 3-4.)
Plaintiff’s diabetes renders Plaintiff “a chronic care patient.” (SOUF ¶ 8.) As such,
he “is scheduled to [see] a provider for his diabetes at regular intervals, but at a minimum
of every ninety (90) days.” (Id.) Despite this ongoing treatment, Plaintiff’s “blood sugar
levels have remained high and his weight has steadily increased.” (Id.) Plaintiff’s organs
and his eyes remain relatively healthy and are not failing. According to Mr. Cardona,
Plaintiff “has not maintained compliance with [his] diet, medication, and exercise
recommendations.” (Id., citing Cardona Aff. ¶ 7.) Plaintiff disputes this portion of
Defendant’s Statement and alleges that Cardona “has no clue” and “has no idea about
[Plaintiff’s] situation.” (Dkt. 67 at 2.) Therefore, the Court will assume that Plaintiff
generally has been compliant with the recommendations of his medical providers with
respect to his diabetes treatment.
Defendant Siegert’s role in Plaintiff’s diabetes treatment was limited to the
grievance process. Between November 2010 and September 2015, Siegert received or
responded to five concern forms, and acted as the appellate review authority on four
grievances related to Plaintiff’s diabetes treatment. (SOUF ¶¶ 6-7; First Siegert Aff., Dkt.
14-2, ¶¶ 10-11; Second Siegert Aff., Dkt. 63-3, ¶ 7.)
On January 4, 2012, Plaintiff submitted a grievance complaining that “Medical
does not care about the seriousness of [his] health.” (First Siegert Aff. ¶ 10(a) and Ex. A
at 1-2.) Plaintiff complained that, on December 31, 2011, he received insulin from a staff
member who did not first consult a doctor; Plaintiff also appeared to have concerns about
MEMORANDUM DECISION AND ORDER - 4

the type or amount of insulin given to him on that occasion and “felt like [he] was going
into a coma.” (Id.) Defendant Siegert reviewed Plaintiff’s medical file and “determined
that on December 29, 30, and 31, the appropriate amount of insulin was provided to
[Plaintiff] based upon his blood sugar levels and the medical provider’s insulin order.”
(Id. ¶ 10(a).) In her response to Plaintiff’s grievance, Siegert stated,
[T]he correct amount of insulin, per the provider ordered
sliding scale, is being administered. Again, according to the
sliding scale a provider is to be notified if the blood sugar is
greater than 500. On December 29, 30 and 31 none of your
blood sugars were greater than 500, therefore, no provider
would have been notified of your blood sugar level.”
(Ex. A to First Siegert Aff.) Siegert also “noted the appointment [Plaintiff] had since he
filed the grievance where his insulin level was adjusted, as well as his upcoming
appointment. (First Siegert Aff. ¶ 10(a) and Ex A.)
On October 8, 2012, Plaintiff submitted a concern form concerning issues he was
having with his feet, including “hammer toes and ulcers under [his] toes, [and] purple
bottoms of [his] feet.” (Id. ¶ 11(a) and Ex. B.) Siegert received the concern form on
October 10 and arranged for a medical provider to evaluate Plaintiff’s feet. (Id.) Plaintiff
was evaluated the next day, but the medical provider examining him determined that
Plaintiff “did not meet the criteria for medical shoes at that time.” (Id. ¶ 11(b).)
In November 2012, Plaintiff submitted another concern form, claiming that he was
still waiting to see a medical provider regarding diabetic shoes. (Id. and Ex. C.)
Defendant Siegert responded to the concern form, stating that Plaintiff was, indeed, seen
on October 11 and that medical shoes were determined not to be medically necessary at

MEMORANDUM DECISION AND ORDER - 5

that time. (Id.) Plaintiff eventually received new shoes, on March 1, 2013, and new
insoles on June 28, 2013. (Second Siegert Aff. ¶ 7(a).)
Plaintiff submitted a grievance on June 17, 2013, complaining about pain in his
feet, hammer toes, and his request for specialty shoes and a right boot arch. (Id. and Ex.
A.) Siegert responded as the appellate authority in August 2013, noting the previous
issuance of shoes and insoles to Plaintiff and directing Plaintiff to submit a Health
Services Request form (“HSR”) at his “next chronic disease appointment” if he believed
he required additional or different shoes. (Id.)
The Director of the IDOC received a concern form from Plaintiff on July 15, 2013.
That concern form raised numerous complaints, including Plaintiff’s concern about his
blood sugar levels and a statement that Plaintiff’s insulin “does not work.” (Id. ¶ 7(d) and
Ex. D.) This concern form was routed to Defendant Siegert, who responded, “Issues
noted.” (Id.)
Plaintiff submitted another concern form on June 4, 2014. In this concern form,
Plaintiff complained that the person who gave him his insulin injection on June 1 had
mixed different types of insulin. (Id. ¶ 7(e) and Ex. E.) Siegert responded to Plaintiff,
informing him that mixing insulin “is standard practice.” (Id.)
On July 29, 2014, and September 15, 2014,1 Plaintiff grieved the issue of the
insulin that he received on June 1. (Id. ¶ 7(b) and Ex. B.) The grievance complained that

Plaintiff submitted a grievance dated July 29, but he was “directed to rewrite the grievance.” (Ex.
B to Second Siegert Aff.) He did so, and the rewritten grievance was received by prison staff on
September 15, 2014. (Id.)
1

MEMORANDUM DECISION AND ORDER - 6

the provider “might have [given the insulin] wrong.” Plaintiff stated that after he received
the insulin, he “started coughing real bad and [he] could not breath [sic].” (Ex. B to
Second Siegert Aff.) Two providers responded that Plaintiff’s blood sugars did not
indicate any medication error and that Plaintiff’s belief that he was given an overdose
was unsubstantiated. (Id.) Acting as the appellate authority on the grievance, Siegert
noted that Plaintiff’s allegation that he had almost been killed was “exaggerated and
unfounded.” (Id.) She also stated that if Plaintiff continued to have shortness of breath, he
should submit an HSR and “follow the sick call process.” (Id.)
On June 22, 2015, Plaintiff submitted a concern form to Siegert, once again
complaining that the “drug amounts” of his insulin “do[] not work.” (Ex. F to Second
Siegert Aff.) Siegert reviewed Plaintiff’s medical records and recommended that Plaintiff
“discuss these concerns with his provider during his next chronic disease appointment.”
(Second Siegert Aff. ¶ 7(f).)
On July 6, 2015, Plaintiff filed another grievance regarding his diabetes treatment,
this time stating his concerns about the kind of insulin he was receiving. (Id. ¶ 7(c).)
Plaintiff believed that his current insulin, as well as other types of insulin he had
received, did not work and made his body “suffer[] over the years. My liver, eyes[,]
kidneys.” (Ex. C to Second Siegert Aff.) Plaintiff stated that he felt it was “time to try
something else.” (Id.) As the appellate authority reviewing the grievance, Defendant
Siegert reviewed Plaintiff’s medical file and noted that, since Plaintiff had filed the
grievance, his medical providers had changed his insulin and scheduled him for a followup appointment to discuss how the new insulin was working. (Second Siegert Aff. ¶ 7(c)
MEMORANDUM DECISION AND ORDER - 7

and Ex. C.) Given that Plaintiff’s concerns had been addressed, Siegert directed Plaintiff
to discuss any further insulin concerns at his follow-up appointment or at his next chronic
care appointment. (Id.)
Defendant Siegert states that she did “not receive[] any information that would
have led [her] to believe [Plaintiff] was not receiving appropriate medical care for his
diabetes.” (Second Siegert Aff. ¶ 11.) Outside of the concern forms and grievances
described above, Defendant Siegert was not notified of any problems or concerns of
Plaintiff regarding his diabetes treatment, “including any concerns regarding damage to
[Plaintiff’s] eyes or organs as a result of his diabetes.” (Id.)
DISCUSSION
1.

Standard of Law Governing Summary Judgment
Summary judgment is appropriate where a party can show that, as to any claim or

defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the
summary judgment rule “is to isolate and dispose of factually unsupported claims or
defenses.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is not “a disfavored
procedural shortcut,” but is instead the “principal tool[] by which factually insufficient
claims or defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327.
“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment . . . .” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Rather, there must be no genuine
MEMORANDUM DECISION AND ORDER - 8

dispute as to any material fact in order for a case to survive summary judgment. Material
facts are those “that might affect the outcome of the suit.” Id. at 248. “Disputes over
irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W.
Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).
The moving party is entitled to summary judgment if that party shows that each
material fact cannot be disputed. To show that the material facts are not in dispute, a
party may cite to particular parts of materials in the record, or show that the adverse party
is unable to produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(A)
& (B). The Court must consider “the cited materials,” but it may also consider “other
materials in the record.” Fed. R. Civ. P. 56(c)(3). The Court is “not required to comb
through the record to find some reason to deny a motion for summary judgment.”
Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001)
(internal quotation marks omitted). Instead, the “party opposing summary judgment must
direct [the Court’s] attention to specific, triable facts.” So. Ca. Gas Co. v. City of Santa
Ana, 336 F.3d 885, 889 (9th Cir. 2003).
If the moving party meets its initial responsibility, then the burden shifts to the
opposing party to establish that a genuine dispute as to any material fact actually does
exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
existence of a scintilla of evidence in support of the non-moving party’s position is
insufficient. Rather, “there must be evidence on which [a] jury could reasonably find for
the [non-moving party].” Anderson, 477 U.S. at 252.

MEMORANDUM DECISION AND ORDER - 9

Material used to support or dispute a fact should be “presented in a form that
would be admissible in evidence,” or it may be subject to being stricken. Fed. R. Civ. P.
56(c)(2).2 Affidavits or declarations submitted in support of or in opposition to a motion
“must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters
stated.” Fed. R. Civ. P. 56(c)(4).
If a party “fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact,” the Court may consider that fact to be undisputed. Fed.
R. Civ. P. 56(e)(2). The Court may grant summary judgment for the moving party “if the
motion and supporting materials—including the facts considered undisputed—show that
the movant is entitled to it.” Fed. R. Civ. P. 56(e)(3).
The Court does not determine the credibility of affiants or weigh the evidence set
forth by the non-moving party. Although all reasonable inferences which can be drawn
from the evidence must be drawn in a light most favorable to the non-moving party, T.W.
Elec. Serv., Inc., 809 F.2d at 630-31, the Court is not required to adopt unreasonable
inferences from circumstantial evidence, McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th
Cir. 1988).

2

In determining admissibility for summary judgment purposes, it is the content of the evidence,
rather than its form, that must be considered. Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003).
If the content of the evidence could be presented in an admissible form at trial, the content may be
considered on summary judgment even if the evidence itself is hearsay. Id. (affirming consideration of
hearsay contents of plaintiff’s diary on summary judgment because at trial, plaintiff’s testimony would
not be hearsay).

MEMORANDUM DECISION AND ORDER - 10

Statements in a brief, unsupported by the record, cannot be used to create an issue
of fact. Barnes v. Indep. Auto. Dealers, 64 F.3d 1389, 1396 n.3 (9th Cir. 1995). The
Ninth Circuit “ha[s] repeatedly held that documents which have not had a proper
foundation laid to authenticate them cannot support a motion for summary judgment.”
Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1182 (9th Cir. 1988) (citation and
internal quotation marks omitted). Authentication, required by Federal Rule of Evidence
901(a), is not satisfied simply by attaching a document to an affidavit. Id. The affidavit
must contain “testimony of a witness with personal knowledge of the facts who attests to
the identity and due execution of the document.” Id.
2.

Standards of Law Applicable to Plaintiff’s Claim Against Siegert
The Eighth Amendment to the United States Constitution protects prisoners

against cruel and unusual punishment. To state a claim under the Eighth Amendment, a
prisoner must show that he is “incarcerated under conditions posing a substantial risk of
serious harm,” or that he has been deprived of “the minimal civilized measure of life’s
necessities” as a result of Defendants’ actions. Farmer v. Brennan, 511 U.S. 825, 834
(1994) (internal quotation marks omitted). An Eighth Amendment claim requires a
plaintiff to satisfy “both an objective standard—that the deprivation was serious enough
to constitute cruel and unusual punishment—and a subjective standard—deliberate
indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled in part on
other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc). The Eighth
Amendment includes the right to adequate medical care in prison, and prison officials or
prison medical providers can be held liable if their “acts or omissions [were] sufficiently
MEMORANDUM DECISION AND ORDER - 11

harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble,
429 U.S. 97, 106 (1976).
Regarding the objective standard for prisoners’ medical care claims, the Supreme
Court of the United States has explained that “[b]ecause society does not expect that
prisoners will have unqualified access to health care, deliberate indifference to medical
needs amounts to an Eighth Amendment violation only if those needs are ‘serious.’”
Hudson v. McMillian, 503 U.S. 1, 9 (1992). The Ninth Circuit has defined a “serious
medical need” in the following ways:
failure to treat a prisoner’s condition [that] could result in
further significant injury or the unnecessary and wanton
infliction of pain[;] . . . [t]he existence of an injury that a
reasonable doctor or patient would find important and worthy
of comment or treatment; the presence of a medical condition
that significantly affects an individual’s daily activities; or the
existence of chronic and substantial pain . . . .
McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (internal citations omitted),
overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997)
(en banc).
As to the subjective standard, “deliberate indifference entails something more than
mere negligence, [but] is satisfied by something less than acts or omissions for the very
purpose of causing harm or with knowledge that harm will result.” Farmer, 511 U.S. at
835. A prison official or prison medical provider acts with “deliberate indifference . . .
only if the [prison official] knows of and disregards an excessive risk to inmate health
and safety.” Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002) (citation and
internal quotation marks omitted). “Under this standard, the prison official must not only
MEMORANDUM DECISION AND ORDER - 12

‘be aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists,’ but that person ‘must also draw the inference.’” Toguchi v. Chung,
391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Farmer, 511 U.S. at 837).
“If a [prison official] should have been aware of the risk, but was not, then the
[official] has not violated the Eighth Amendment, no matter how severe the risk.”
Gibson, 290 F.3d at 1188. However, “[w]hether a prison official had the requisite
knowledge of a substantial risk is a question of fact subject to demonstration in the usual
ways, including inference from circumstantial evidence, . . . and a factfinder may
conclude that a prison official knew of a substantial risk from the very fact that the risk
was obvious.” Farmer, 511 U.S. at 842; see also Lolli v. County of Orange, 351 F.3d
410, 421 (9th Cir. 2003) (“[D]eliberate indifference to medical needs may be shown by
circumstantial evidence when the facts are sufficient to demonstrate that a defendant
actually knew of a risk of harm.”).
In the medical context, a conclusion that a defendant acted with deliberate
indifference requires that the plaintiff show “a purposeful act or failure to respond to a
prisoner’s pain or possible medical need and . . . harm caused by the indifference.” Jett v.
Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Deliberate indifference can be “manifested
by prison doctors in their response to the prisoner’s needs or by prison guards in
intentionally denying or delaying access to medical care or intentionally interfering with
the treatment once prescribed.” Estelle, 429 U.S. at 104-05 (footnotes omitted).
Differences in judgment between an inmate and prison medical providers
regarding appropriate medical diagnosis and treatment are not enough to establish a
MEMORANDUM DECISION AND ORDER - 13

deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). “[T]o
prevail on a claim involving choices between alternative courses of treatment, a prisoner
must show that the chosen course of treatment ‘was medically unacceptable under the
circumstances,’ and was chosen ‘in conscious disregard of an excessive risk’ to the
prisoner’s health.” Toguchi, 391 F.3d at 1058 (alteration omitted) (quoting Jackson v.
McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)); see also Collignon v. Milwaukee County,
163 F.3d 982, 989 (7th Cir. 1998) (“A plaintiff can show that the [medical] professional
disregarded the need only if the professional’s subjective response was so inadequate that
it demonstrated an absence of professional judgment, that is, that no minimally competent
professional would have so responded under those circumstances.”).
Mere indifference, medical malpractice, or negligence will not support a cause of
action under the Eighth Amendment. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th
Cir. 1980) (per curiam). A delay in treatment does not violate the Eighth Amendment
unless the delay causes further harm. McGuckin, 974 F.2d at 1060. If medical personnel
have been “consistently responsive to [the inmate’s] medical needs,” and there has been
no showing that the medical personnel had “subjective knowledge and conscious
disregard of a substantial risk of serious injury,” there has been no Eighth Amendment
violation. Toguchi, 391 F.3d at 1061.
Defendants who were involved in reviewing claims in the administrative grievance
process may or may not be liable for the constitutional violations complained of
regarding actual grievances they processed, depending upon (1) the type and timing of
problem complained of and (2) the role of the defendant in the process. For example, an
MEMORANDUM DECISION AND ORDER - 14

appeals coordinator cannot cause or contribute to a completed constitutional violation
that occurred in the past and that is not remediable by any action the reviewer might take.
See, e.g., George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) (“A guard who stands
and watches while another guard beats a prisoner violates the Constitution; a guard who
rejects an administrative complaint about a completed act of misconduct does not.”).
If, however, the alleged constitutional violation is ongoing, and the defendant
reviewing the inmate concern form or grievance has the duty and authority to review the
propriety of the medical treatment and take action to remedy the alleged deficiencies (not
by providing medical care themselves, but by obtaining the answer to whether the
medical care was proper from a person with medical training and directing a remedy to
be implemented), then the defendant may indeed be liable, because, under supervisory
liability principles applied in § 1983 actions, the defendant knew of an “ongoing
constitutional violation and . . . had the authority and opportunity to prevent the ongoing
violation.” See Herrera v. Hall, 2010 WL 2791586, at *4 (E.D. Cal. July 14, 2010)
(unpublished) (citing Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)).
Therefore, where claims are asserted against persons who supervise the provision
of prison medical care, the question is not whether the supervisor was “directly involved”
in the plaintiff’s diagnosis. See Gonzalez v. Ahmed, 67 F.Supp.3d 1145, 1156 (N.D. Cal.
2014). Rather, the question is whether the plaintiff has provided evidence from which a

MEMORANDUM DECISION AND ORDER - 15

jury could find that the supervisor’s knowing failure to address the treating provider’s
deficient care interfered with the plaintiff’s medical treatment.3
3.

Defendant Siegert Is Entitled to Summary Judgment
The undisputed material facts are sufficient for Defendant Siegert to meet her

initial burden of showing that she is entitled to judgment as a matter of law. According to
Siegert, she never received any information that led her to believe that Plaintiff was at a
substantial risk of serious harm from his diabetes treatment. Plaintiff was consistently and
regularly examined at his chronic disease appointments, and was also evaluated at
additional appointments scheduled by his providers, throughout the time period relevant
to Plaintiff’s claims. The type and dosage of the insulin Plaintiff received was adjusted
when it appeared necessary, and Plaintiff received medical shoes and insoles. Therefore,
Siegert has sufficiently demonstrated that medical providers were “consistently
responsive to [Plaintiff’s] medical needs” and that Siegert did not have “subjective
knowledge and conscious disregard of a substantial risk of serious injury” to Plaintiff

3

For example, in Gonzalez, summary judgment was denied as to the supervisory liability of Dr.
Chudy in reviewing Dr. Ahmed’s care of the plaintiff under the following circumstances:
Under Plaintiff’s version of the facts, Dr. Ahmed flatly refused to examine him because
Dr. Ahmed was tired at the end of the day. Plaintiff further alleges that Dr. Chudy and
Dr. Sepulveda knew that Dr. Ahmed had denied Plaintiff care, but nonetheless ordered
Plaintiff to return to Dr. Ahmed’s care.
Id. The Gonzalez court determined that the plaintiff’s complaints to Dr. Chudy were not merely about past
health care, but “referred to an ongoing and substantial risk to his health, and requested that Dr. Ahmed’s
actions be investigated so as to prevent future incidents.” Id. The court further denied Dr. Chudy’s request
for application of qualified immunity, reasoning that, “under Plaintiff’s version of the facts, a prison
official could not reasonably believe that forcing Plaintiff to return to Dr. Ahmed’s care unsupervised
would not be an effective denial of, or intentional interference with, Plaintiff's necessary medical
treatment.” Id. at *9.

MEMORANDUM DECISION AND ORDER - 16

based on his diabetes treatment. Toguchi, 391 F.3d at 1061. The burden thus shifts to
Plaintiff to establish a genuine dispute of material fact as to Siegert’s approach to
Plaintiff’s diabetes treatment. See Matsushita Elec. Indus. Co., 475 U.S. at 586.
Plaintiff has failed to do so. With the possible exception of Plaintiff’s July 15,
2013 concern form—which was sent initially to the Director of the IDOC and then
forwarded to Defendant Siegert for a response—each time Siegert reviewed one of
Plaintiff’s concern forms or grievances, she reviewed his medical records and relied on
her own medical expertise (e.g., by explaining that mixing insulin is standard medical
practice or advising him to follow the sick call process) in responding to Plaintiff. Based
on that review and expertise, Defendant Siegert reasonably determined that Plaintiff was
receiving adequate treatment for his diabetes.
In the July 15, 2013 concern form, Plaintiff complained of several different issues.
With respect to his diabetes treatment, Plaintiff stated, “My blood sugars has [sic] been
250 pluse [sic], I sweat like a pig and there [sic] insullent [sic] does not work. My eyes,
my kidney they are not working right. This prison needs to change for the better, no one
has sentenced me to a slow death.” (Ex. D to Second Siegert Aff.) Although Defendant
Siegert might have reviewed Plaintiff’s medical records prior to responding to Plaintiff
(with the simple phrase, “Issues noted”), it is unknown whether she in fact undertook
such a review.
If Defendant did not review Plaintiff’s medical records after she became aware of
the July 5 concern form, that could perhaps indicate that she might have been negligent.
However, negligence or medical malpractice is not enough to establish an Eighth
MEMORANDUM DECISION AND ORDER - 17

Amendment violation. See Broughton v. Cutter Labs., 622 F.2d at 460. Siegert’s response
to the July 5 concern form does not demonstrate a genuine dispute of material fact, nor
does it tend to suggest that Siegert subjectively drew an inference that Plaintiff was at a
substantial risk of serious harm as a result of his diabetes treatment. See Farmer, 511
U.S. at 837.
CONCLUSION
For the reasons set forth above, there exists no genuine dispute as to any material
fact with respect to Plaintiff’s claim that Defendant Siegert violated his Eighth
Amendment right to adequate diabetes treatment. Therefore, Defendant Siegert is entitled
to judgment as a matter of law.
ORDER
IT IS ORDERED that Defendant Siegert’s Motion for Summary Judgment (Dkt.
63) is GRANTED. This case is DISMISSED with prejudice.

DATED: July 27, 2017

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 18