McKenzie v. Jorizzo et al

Filing 58

OPINION AND ORDER: Defendants' Motion for Summary Judgment 41 is GRANTED and this action is dismissed with prejudice. See formal opinion and order. Copy of opinion and order sent to Pro Se Plaintiff. Signed on 1/6/2015 by Chief Judge Ann L. Aiken. (rh)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION

No. 1:13-cv-1302-AA
OPINION AND ORDER

GUSTAVO MCKENZIE,
Plaintiff,

v.
PAUL A. JORIZZO, M.D., and
MEDICAL EYE CENTER-MEDFORD,
Defendants.
AIKEN, Chief Judge:
Plaintiff

Gustavo

prisoner, brings this 42 U.S.C.
Paul Jorizzo

("Plaintiff"),

McKenzie

("Jorizzo"),

M.D.,

§

a

California

1983 action against Defendants
and Medford Medical Eye Center

( "MMEC") (collectively, "Defendants") , alleging an Eighth Amendment
claim

for

Pursuant

deliberate
to

defendants

Federal
move

Amendment claim.

for

indifference
Rule

of

summary

Civil

to

serious

medical

needs.

("Rule")

56(c),

Plaintiff's

Eighth

Procedure

judgment

on

For the reasons set forth below,

Defendants'

motion (Dkt. 41) for summary judgment is granted and this action is
dismissed with prejudice.
Page 1 - OPINION AND ORDER

STANDARDS
"On a motion for summary judgment,

'facts must be viewed in

the light most favorable to the nonmoving party only if there is a
'genuine'

dispute as to those facts.'"

U.S. 557, 586 (2009)

(citation omitted).

Ricci v.

DeStefano,

557

As the Supreme Court has

emphasized, "[w]hen the moving party has carried its burden under
Rule 56(c), its opponent must do more than simply show that there
is some metaphysical doubt as to the material facts."
Harris,

550 U.S.

372,

380

(2007)

(citation omitted).

Scott v.

When "the

record taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no genuine issue for trial."
Id.

(internal quotation marks omitted) .
"By its very terms,

[the Rule 56 (c)]

standard provides that

the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue
of material fact." Anderson v. Liberty Lobby, Inc.,
247-48

(1986)

(emphasis in the original).

477 U.S. 242,

"When opposing parties

tell two different stories, one of which is blatantly contradicted
by the [summary judgment] record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment."

Scott, 550

U.S. at 380 (emphasis added).
BACKGROUND
Plaintiff received medical treatment by Jorizzo,

"a medical

doctor licensed by the State of Oregon practicing in the specialty

Page 2 - OPINION AND ORDER

of ophthalmology at the
Answer~

[MMEC] . " 1

(Second Am.

Compl.

at 4A-1;

1; McKenzie Decl. Ex. Bat 1-2.) Plaintiff suffers from

"primary open-angle glaucoma," a progressive disease where eye
pressures affect the optic nerve.
being

evaluated

by

Jorizzo

on

(Jorizzo Decl.
December

13,

~

3.)

2012,

Prior to
Plaintiff

"suffered profound visual loss in his right eye well beyond legal
blindness." (Jorizzo Decl.

~

4.)

Plaintiff was referred to Jorizzo

by the Department of Corrections and Rehabilitation,

Pelican Bay

State Prison, "for an urgent/emergent glaucoma surgery" because his
intraocular

pressures

administration
(Jorizzo

of

Decl.

~~

remained

"maximum
4-5.)

consistently

medical
Jorizzo's

high

therapy"
initial

at

despite
the

the

prison.

examination

of

Plaintiff's right eye revealed an intraocular pressure of fortyfive and visual acuity tests showed only "hand movement vision."
(Jorizzo Decl.

~

6.)

1

Near the end of his second amended complaint, Plaintiff
states: "And under penalty of perjury, I solemnly swear that the
foregoing [allegations are] true and correct." (Second Am. Compl.
at 4A-12.)
Thus, to the extent Plaintiff's allegations are based
on personal knowledge and set forth material facts that would be
admissible in evidence, the Court has included them in this
background section.
See generally Jones v. Blanas, 393 F.3d 918,
923 (9th Cir. 2004) ("[B]ecause Jones is prose, we must consider
as evidence in his opposition to summary judgment all of Jones's
contentions
offered in motions
and pleadings,
where
such
contentions are based on personal knowledge and set forth facts
that would be admissible in evidence, and where Jones attested
under penalty of perjury that the contents of the motions or
pleadings are true and correct."). At the same time, however, the
Court has omitted reference to contentions that: (1) do not concern
Jorizzo' s treatment of Plaintiff; (2) the Court construes as
argument, not evidence; and (3) repeatedly suggest "any competent
opthamologist" would testify to certain facts (see Second Am.
Compl. at 4A-8, 4A-10).
Page 3 - OPINION AND ORDER

Following an informed consent discussion with Jorizzo, it was
decided

that

Plaintiff

would

immediately

undergo

a

surgical

procedure known as a "trabeculectomy," in order to allow fluid to
escape from the eye and reduce intraocular pressures.
Decl.

6-7.)

~~

(Jorrizo

Jorizzo's chart notes from the day of the December

13, 2012 surgery indicate the following:
It was explained to the patient that [his intraocular
pressure] is suboptimally controlled,
[and] further
treatment is needed. Trabeculectomy surgery discussed in
detail with the patient, patient had the opportunity to
ask questions, and was offered further, more detailed
e~planation of procedure. [Visual acuity] is limited at
this time and it may get worse and may not improve.
It was also explained to the patient that in some cases,
Fluorouracil injections may be necessary during the
post[-]op[erative] period to ensure that the fluid in the
eye is able to drain properly, and to optimize the final
outcome of surgery . . . . Explained that [visual acuity]
will be blurry for up to [three] months as the eye heals.
(Second Am. Compl. Ex. B1 at 3-4)
At a
still

(emphasis added) .

post-operative visit on December 14,

had

concluded

hand movement
that

the

vision

surgery

in

was

his

right

successful

eye

~

8.)

Plaintiff

and

since

intraocular pressures were significantly reduced.
Ex. Bat 3; Jorizzo Decl.

2012,

Jorizzo

Plaintiff's

(McKenzie Decl.

Jorizzo's December 14, 2012 chart

notes indicate, among other things, that Plaintiff needed to use an
eye shield while sleeping; he was prescribed new eye drops for his
right eye

(Ocuflox,

Durezol and Atropine);

he was instructed to

stop all "glaucoma" eye drops in his right eye (e.g., oculus dexter
or "OD")

but continue in the left eye

(e.g.,

oculus sinister or

"OS"); that his intraocular pressure was "very low" and his right
eye was soft; that he needed to limit activity with no lifting,
bending

or

straining;

and

Page 4 - OPINION AND ORDER

that

he

would

follow-up

with

"Dr.

Lafever," an optometrist at Pelican Bay State Prison, who could
refer him to Jorizzo "as needed."

(McKenzie Decl. Ex. Bat 4, Ex.

D at 1; Second Am. Compl. at 4A-6, Ex. B1 at 5-7.)
Plaintiff was seen for a follow-up visit with Adam Mpimsnwa
( "Mpimsnwa") , M.D. ,
2012.

at Pelican Bay State Prison on· December 21,

(McKenzie Decl. Ex. Eat 1.)

pressure. in

[his right]

eye

[wa] s

Plaintiff reported that "the
fine" and "that he had been

seeing better after surgery, but yesterday he noticed his vision
was worse."

(McKenzie Decl. Ex. Eat 1.)

indicate that

an appointment with Dr.

Mpimsnwa's chart notes

Lafever was

going to be

rescheduled (i.e., since Plaintiff refused a prior follow-up with
Dr. Lafever after apparently being kept waiting in the rain)
that Mpimsnwa spoke with Jorizzo after the examination.
Decl.

Ex.

E at 1.)

and

(McKenzie

Jorizzo informed Mpimsnwa "that he expected

visual acuity to be worse after surgery for several weeks," that a
sudden decrease

in vision

could be

due

to

a

small

hemorrhage

brought on by overactivity, and that Dr. Lafever "could and should
check eye pressure at her first opportunity." (McKenzie Decl. Ex.
E at 1.)

On

January

determined that
fifty-four.

9,
the

2013,

Dr.

LaFever

examined

intraocular pressure in his

(Second Am. Compl. at 4A-8.)

Plaintiff
right

and

eye was

Instead of "wait [ ing]

around," Plaintiff immediately returned to his cell and inserted
glaucoma eye drops
pressure.

in his

(Second Am.

right

Compl.

eye to reduce the intraocular

at 4A-8.)

Plaintiff also stopped

taking two of the three eye drops prescribed by Jorrizo- Durezol
and Atropine.

(McKenzie Decl. Ex. E at 2.)

The medical staff at

Pelican Bay State Prison documented the fact that Plaintiff refused
Page 5 - OPINION AND ORDER

(McKenzie

to use his eye medications in the manner prescribed.
Decl.

Ex.

E at

2.)

Six days

later,

on January 15,

LaFever examined Plaintiff and determined that the
pressure

in

his

right

eye

was

thirty-four,

attributes to his use of glaucoma eye drops.
4A-8,

Ex.

B-1 at

8.)

which

2 013,

Dr.

intraocular
Plaintiff

(Second Am. Compl. at

Plaintiff also alleges that Dr.

LaFever

advised him that the "hole" in his right eye had "closed."

(Second

Am. Compl. at 4A-9.)

On January 28, 2013, at 10:50 a.m., Plaintiff was seen for a
follow-up visit with Risenhoover Mpimsser

("Mpimsser"), a family

nurse practitioner at Pelican Bay State Prison,

who entered the

following progress note in Plaintiff's medical file:
[P]hone call to spec[ialty] clinic spoke with [registered
nurse]
Bree re[garding]
optometry [follow-up]
with
information, [intraocular pressure] check [every three]
months, Dr. Jorizzo called her back nothing can do for
him [if]
lost the sight in the right eye.
[P]er
[registered
nurse]
Bree,
will
notify
optometrist
p[atient] can see slight color out of the [right] eye in
dim light, also notify optometrist p[atient] has stopped
using the atropine [and] durezol eye drops since [January
9, 2013 and] stopped taking the acetazolamide (diamox)
since November 2012. R[egistered nurse] will notify
[primary care provider] when optometry avail[able] for
updated UM for [intraocular pressure] check [and] eye
exam.
(Second Am. Compl. Ex. B1 at 9; McKenzie Decl. Ex. E at 2.)

At

11:40 a.m. that same day, Mpimsser entered a second progress note
that stated: "[P]hone call to Dr. Jacobsen reviewed case, p[atien]t
noncompliant with eye drops and diamox pills with recom[mendation];
continue his medications that he is reporting refusing until [he]
can be seen by the optometrist. Document his refusals and not using
his eye medications as prescribed.

Page 6 - OPINION AND ORDER

No other recom[mendation]

at

this time." 2

(Second Am. Compl. Ex. B1 at 9; McKenzie Decl. Ex. E

at 2.)
Plaintiff's last follow-up visit occurred,
record before the Court, on February 11, 2013.
Ex. B1 at 9; McKenzie Decl. Ex. Eat 2.)

at least on the
(Second Am. Compl.

Mpimsser made a notation

indicating that Plaintiff was being seen for medication management
and that Plaintiff stated:
[Y]ou are renewing
I have to come down
I am suppose[d] to
medications. If I
outline of objects
dim.
(Second Am.

Compl.

Ex.

those medications I am not taking[.]
for them [and] that is malpractice[.]
be seeing an eye specialist for those
cover my [1] eft eye I can see the
[and] color sometimes if the light is
B1

at

9;

McKenzie

Decl.

Ex.

E at

2.)

Plaintiff denied eye drainage to Mpimsser, but acknowledged that
there was discomfort in his right eye.

(Second Am. Compl. Ex. B1 at

9; McKenzie Decl. Ex. Eat 2.)
Plaintiff filed this 42 U.S.C.

§

1983 against Defendants on

July 29, 2013, alleging an Eighth Amendment claim for deliberate
indifference to serious medical needs.
DISCUSSION
Defendants move for summary judgment on Plaintiff's Eighth
Amendment claim alleging (1) there is no genuine issue of material
fact

as

to

whether

Plaintiff's

Eighth

Amendment

rights

were

violated; and (2) they are qualifiedly immune from suit.
"To prevail under 42 U.S.C.
that he was

§

1983,

a plaintiff must prove

'deprived of a right secured by the Constitution or

laws of the United States,

2

and that the alleged deprivation was

This appears to be the only instance where a "Dr. Jacobsen"
is referenced in the summary judgment record.
Page 7 - OPINION AND ORDER

committed under color of state law.'"
680 F.3d 1148, 1152
Co.

v.

526

Sullivan,

plaintiff

must

established'

(9th Cir. 2012)
U.S.

"show

that

40,

Marsh v. Cnty. of San Diego,

(quoting Am. Mfrs. Mut.

49-50

the

(1999)).

federal

at the time of the violation,

Additionally,

right

was

a

'clearly

otherwise government

officials are entitled to qualified irnmuni ty. ".
v. Scherer,

Ins.

(quoting Davis

I d.

468 U.S. 183, 191 (1984)).

Although private parties do not generally act under the color
of state law for§ 1983 purposes, see, e.g., Simmons v. Sacramento
Cnty.

Superior

Court,

318

F.3d

1156,

1161

(9th

Cir.

2003),

"[a]nyone whose conduct is 'fairly attributable to the state' can
be sued as a state actor under § 1983," Filarsky v. Delia, 132 S.
Ct. 1657, 1661 (2012)
922, 937 (1982)).

(quoting Lugar v. Edmondson Oil Co., 457 U.S.

Consistent with this understanding, courts have

held that private physicians and medical entities are state actors
for purposes of § 1983, when a state has delegated its obligation
to provide medical care to inmates. See Carl v. Muskegon Cnty., 763
F.3d 592, 596 (6th Cir. 2014)
v. Donnelly,

42 F.3d 220, 225-26

who treated an inmate was a
contract

(collecting cases); see also Conner

with

the

prison) .

(4th Cir. 1994)

(private doctor

state actor even though he had no
The

parties

seem

to

agree

that

Defendants are state actors for purposes of this § 1983 lawsuit.
(Compare Second Am. Compl. at 4A-1, with Defs.' Mem. Supp. at 7.)

The parties disagree, however, about whether a reasonable trier of
fact

could

conclude

that

Defendants

violated

Plaintiff's

constituti?nal rights.
Plaintiff's § 1983 claim alleges a violation of the Eighth
Amendment arising from allegedly deficient medical treatment, on a
Page 8 - OPINION AND ORDER

theory of deliberate indifference to serious medical needs.

The

Ninth Circuit's test for deliberate indifference to medical need is
two-pronged: "First, the plaintiff must show a serious medical need
by demonstrating that failure to treat a prisoner's condition could
result in further significant injury or the unnecessary and wanton
infliction of pain. Second, the plaintiff must show the defendant's
response to the need was deliberately indifferent."
Rotman,

68 0

F . 3d

1113 ,

112 2

( 9th

Ci r .

2 0 12 )

Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)).

Wilhelm v.

( quoting

Jet t

v.

The first prong of

the Ninth Circuit's test is satisfied because Plaintiff's primary
open-angle glaucoma was a serious medical need.

See id. at 1066

(agreeing with the district court that monocular blindness is a
serious medical need,
that

and noting that "[o]ther courts have held

similar and even less

medical

needs.") ;

see

also

serve losses
Wilhelm,

68 0

of vision are
F. 3d

at

serious

1122.

("The

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
are examples of indications that a prisoner has a

'serious' need

for medical treatment." (quoting McGuckin v. Smith, 974 F.2d 1050,
1059-60 (9th Cir. 1992), overruled on other grounds by WMX Techs.,
Inc. v. Miller, 104 F. 3d 1133 (9th Cir. 1997)

(en bane)).

The second prong of the inquiry presents a more difficult
question.

As the Ninth Circuit recently explained in Colwell v.

Bannister,
[a] prison official is deliberately indifferent under the
[second, ] subjective [prong] of the test only if the
official knows of and disregards an excessive risk to
Page 9 - OPINION AND ORDER

inmate health and safety. This requires more than
ordinary lack of due care. The official must both be
aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he
must also draw the inference. Deliberate indifference may
appear when prison officials deny, delay or intentionally
interfere with medical treatment, or it may be shown by
the way in which prison physicians provide medical care.
In
deciding
whether
there
has
been
deliberate
indifference to an inmate's serious medical needs,
[courts] need not defer to the judgment of prison doctors
or administrators.
763 F.3d at 1066 (internal citations, quotation marks, and brackets
omitted) .
Plaintiff

asserts

medical

Defendants

indifferent

to

Jorizzo

"consciously aware

was

his

that

perform a trabeculectomy;"

needs

(2)

in

the

that

he

deliberately

were

followings

did

not

ways:

know

( 1)

[how]

to

Jorizzo failed to insert "a tiny

tube" into Plaintiff's right eye during the trabeculectomy, which
eventually allowed the hole created to close up;

(3) Jorizzo failed

to schedule a second post-operative follow-up visit with Plaintiff
regarding

"the

botched

surgery;"

( 4)

MMEC

allowed

Jorizzo

to

perform "a surgery that he could not [ha]ve been certified to do,
or has no track record of
administer

Fluorouracil

[performing];"

injections

( 5)

during

Jorizzo failed to
the

post-operative

period, even though he said such injections are necessary in "some
cases" to

optimize the

final

outcome

of the

surgery;

(6)

MMEC

failed to intervene and prevent "Jorrizo from putting a senseless
hole

in

opinions"

[Plaintiff's]
that

were

right
not

eye;"

based

on

( 7)

Jorizzo made

an

in-person

"dismissive

examination

of

Plaintiff; and (8) Jorizzo failed to "follow-up and fix .

. the

sen [ s] eless,

right

closed-up hole that he made in

[Plaintiff's]

eye." (Pl.'s Mem. Opp'n at 6-9; Second Am. Compl. at 4A-10.)
Page 10 - OPINION AND ORDER

Initially, several of Plaintiff's assertions are simply belied
by

the

record. 3

Defendants'

Contrary

to

assertions

answers to Plaintiff's first

(1)

and

(4)

above,

set of interrogatories

indicate that Jorizzo is board-certified in ophthalmology and had
experience performing the surgery at issue. 4
B at

2,

Ex.

C at 2. )

(McKenzie Decl. Ex.

Defendants also admit that Jorizzo "is a

medical doctor licensed by the State of Oregon practicing in the
specialty of ophthalmology at the [MMEC] ."

(Answer! 1.)

Contrary

to assertion (6) above, Plaintiff acknowledges that he consented to
Jorizzo's

performance

of

a

trabeculectomy,

which

Plaintiff

understood to involve the creation of a drainage system (or "hole")
3

Throughout his memorandum in opposition, Plaintiff asserts
that Defendants are "lying" about a number of relevant facts,
including Jorrizo's claim that Plaintiff failed to follow postoperative instructions.
(Pl.'s Mem. Opp' n at 12.)
However,
Plaintiff cannot create a genuine issue of fact simply by
proffering conclusory allegations that witnesses are lying.
See,
e.g., Johnson v. Queens Admin. for Children's Servs., No. 02-4497,
2006 WL 229905, at *5 (E.D.N.Y. Jan. 31, 2006) ("Plaintiff does not
contradict CPS Williams' account that notice was given to Marion
Johnson other than by his conclusory allegation that Williams was
lying, which is insufficient to create a genuine issue of fact that
plaintiff's procedural due process rights were violated.").
4

Although Plaintiff sought the names and the addresses of
Jorrizzo's prior patients during the discovery process, Defendants
informed Plaintiff that his request sought documentation protected
by state and federal law, including, but not limited to, the Health
Insurance Portability and Accountability Act ("HIPAA").
(McKenzie
Decl. Ex. B at 2, Ex. C at 3.)
As one district court recently
noted, "there are 'significant public policy reasons for keeping a
[person]'s sensitive medical information restricted,' which HIPAA
protects by allowing disclosure of only 'expressly authorized,
limited,
and
specifically
identified
protected
health
information[.]'"
Ford v. United States, No. 11-3039, 2013 WL
3877756, at *1 (D. Md. July 25, 2013) (quoting Piehl v. Saheta, No.
13-254, 2013 WL 2470128, at *2 (D. Md. June 5, 2013)).
Clearly
Plaintiff was not entitled to the names and addresses of Jorizzo's
patients.
Page 11 - OPINION AND ORDER

that would allow fluid to drain from his right eye.

(Pl.'s Mem.

Opp'n at 4; Second Am. Compl. at 4A-5, 4A-6.)
Essentially,

then,

this case boils down to whether Jorizzo

exhibited deliberate indifference to Plaintiff's serious medical
needs

based

on

the

manner

trabeculectomy and provided

in

which

follow-up

Jorrizzo
care.

The

performed

the

only medical

evidence presented at this stage is Jorizzo's declaration, wherein
he states:
6. On December 13, 2012,
[a]n informed consent
discussion was held with [Gustavo McKenzie] and he
consented to a trabeculectomy.
7. A trabeculectomy is an appropriate surgical treatment
to allow aqueous humor to escape from the trabecular mesh
network and reduce intraocular pressures. My surgical
procedure [on Gustavo McKenzie] was performed with
appropriate technique and wholly within the standard of
care.
8. The following day, December 14, the patient returned
to my care. He still had hand movement vision in his
right eye. The trabeculectomy was successful because the
patient's pressures were significantly reduced.
9. Appropriate post-operative instructions for activity
and medications were provided to Mr. McKenzie after each
visit.
Mr. McKenzie failed to follow post-operative
orders, causing a spike in intraocular pressures which
affected his vision.
10. I am familiar with the degree of care and skill
provided by similar ophthalmologists and ophthalmology
clinics in Jackson County and similar communities. All of
the medical care provided by me and the [MMEC] to Gustavo
McKenzie was reasonable and consistent with that degree
of care, skill, and diligence used by ordinary careful
ophthalmologists practicing in Jackson County, Oregon, or
similar
communities
through
the
time
alleged
in
plaintiff's complaint.
11. All of the medical care provided by me and the [MMEC]
was wholly within the standard of care. Any damage caused
to Gustavo McKenzie was due to his failure to follow
post-operative orders and the progression of his disease.
(Jorizzo Decl.

~~

7-11.)

Page 12 - OPINION AND ORDER

Plaintiff

takes

issue

with

the

fact

that

Jorizzo

doesn't

specifically identify what post-operative instructions Plaintiff
failed to follow, and states that Jorizzo "cannot point to any in
particular."
relied

on

by

(Pl.'s Mem. Opp'n at 12.)
Plaintiff,

however,

The pleadings and exhibits

clearly

demonstrate

that

he

disregarded Jorizzo's instructions to (1) use Durezol and Atropine
in his right eye until told to "stop" or "change," and (2) only use
"glaucoma" eye drops in his left eye.

(Compare McKenzie Decl. Ex.

D at 1, with Second Am. Compl. at 4A-8, and McKenzie Decl. Ex. E at
2.)

Plaintiff did so knowingly after apparently "discover [ing]

that the eye drops that Dr. Jorizzo had prescribed (Atropine and
Durezol) were major contributors to the return of glaucoma in [his]
right eye."

(Second Am. Compl. at 4A-8.)

Plaintiff appears to have made similar discoveries regarding
the adequacy of the surgery and follow-up treatment provided by
Jorizzo,

as

Plaintiff

repeatedly

notes

that

"any

competent

ophthalmologist" would testify to certain facts that conflict with
the decisions made by Jorizzo. But cf. Self v. Crum, 439 F.3d 1227,
1230

(lOth Cir. 2006)

evidence,

("To defeat a motion for summary judgment,

including testimony,

speculation,

conjecture,

or

must be based on more than mere

surmise.")

For example,

Plaintiff

alleges that "any competent ophthalmologist would testify that, in
order to do a 'trabeculectomy,' the Retinal Specialist-Surgeon must
insert a tiny tube (in the hole created), which would serve as the
'new channel/ canal' for the fluid to flow through. But Dr. Jorizzo
did not do that, which is why the hole he made closed up."
Am. Compl. at 4A-10.)

(Second

Plaintiff also alleges that "any competent

Page 13 - OPINION AND ORDER

ophthalmologist would agree that prolonged use of Atropine and
Durezol may result in glaucoma."

(Second Am. Compl. at 4A-9.)

What Plaintiff fails to recognize is that "[a] difference of
opinion between a physician and the prisoner-or

[even]

between

medical professionals-concerning what medical care is appropriate
does not amount to deliberate indifference."

Colwell, 763 F.3d at

1068 (quoting Snow v. McDaniel, 681 F. 3d 978, 982 (9th Cir. 2012),
overruled in part on other grounds by Peralta v. Dillard, 744 F.3d

1076

(9th

Cir.

indifference

2014)

is

a

high

(en

bane)).

legal

Indeed,

standard.

"[d]eliberate

A showing

of

medical

malpractice or [even gross] negligence is insufficient to establish
a constitutional deprivation under the Eighth Amendment."
v. Chung, 391 F.3d 1051, 1060

(9th Cir. 2004)

(citation omitted).

To properly demonstrate deliberate indifference,
'must

"the plaintiff

show that the course of treatment the doctors

medically

unacceptable

defendants

'chose

this

under

the

course

in

circumstances'
conscious

excessive risk to plaintiff's health.'"

Toguchi

chose was

and

that

disregard

of

the
an

Colwell, 763 F.3d at 1068.

(quoting Snow, 681 F.3d at 988).
Even when viewing the evidence in the light most favorable to
Plaintiff,

the

record

cannot

support

a

finding

that

Jorizzo

undertook a medically unacceptable course of treatment in conscious
disregard of an excessive risk to Plaintiff's health.
Jorizzo

informed

Plaintiff

prior

to

the

To be sure,

performance

of

the

trabeculectomy that his visual acuity "may get worse and may not
improve," and Plaintiff chose to disregard certain post-operative
instructions provided by Jorizzo based on a difference of opinion.
(Second

Am.

Compl.

at

4A-8,

Page 14 - OPINION AND ORDER

Ex.

B1

at

4.)

In

addition

to

testifying that the medical care provided to Plaintiff "was wholly
within the standard of care," Jorizzo maintains that "[a]ny damage
caused to

[Plaintiff]

was

due

to

his

failure

to

follow

(Jorizzo

operative orders and the progression of his disease."
Decl.

<J[

11.)

conformance

post-

Even assuming that Jorizzo's actions were not in
with

that

of

a

"competent

ophthalmologist,"

as

Plaintiff posits, the record simply cannot support a finding that
Jorrizo' s
medical

actions amounted to anything more than negligence or
malpractice-which

constitutional
Accordingly,

is

deprivation
Defendants

are

insufficient
under

establish

to

the

entitled

summary

Amendment.

Eighth

to

a

judgment

on

Plaintiff's Eighth Amendment claim.
Because Plaintiff has failed to raise a triable issue of fact
as to deliberate indifference, the Court need not address whether
Defendants are entitled to qualified immunity.
243 F. App'x 353, 355 (9th Cir. 2007)

See Amarir v. Hill,

("Because this case lacks any

indicia of deliberate indifference, we need not address whether Dr.
Hill and Dr. Friedman are entitled to qualified immunity").
CONCLUSION
For
summary

the

reasons

judgment

is

stated,

Defendants'

GRANTED and this

motion

action

is

( Dkt.

IT IS SO ORDERED.

b ~day

of January 2015.

Ann Aiken
United States District Judge
Page 15 - OPINION AND ORDER

for

dismissed with

prejudice.

Dated this

41)