Duron v. Beatty et al

Northern District of California, cand-4:2015-cv-03015

ORDER by Judge Yvonne Gonzalez Rogers granting {{37}} Defendants' Motion for Summary Judgment.

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2 1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 MOSES J. DURON, 6 Case No. 15-cv-03015-YGR (PR) Plaintiff, 7 ORDER GRANTING DEFENDANTS' v. MOTION FOR SUMMARY JUDGMENT 8 DR. GEORGE BEATTY, et al., 9 Defendants. 10 11 I. INTRODUCTION 12 This is a pro se civil rights action filed by Plaintiff Moses J. Duron, a state prisoner who is Northern District of California United States District Court 13 currently incarcerated at the California Substance Abuse and Treatment Facility ("CSATF"), 14 pursuant to 42 U.S.C. § 1983. The operative complaint is the amended complaint, in which he 15 sought monetary damages and injunctive relief. See Dkt. 19. He alleged constitutional violations 16 during his previous incarceration at San Quentin State Prison ("SQSP") from October 2013 17 through July 2015. Id. at 3.1 Plaintiff specifically alleged a claim of deliberate indifference to 18 serious medical needs against SQSP employees stemming from inadequate treatment for his left 19 knee pain. The alleged constitutional violations at SQSP ended on July 30, 2015, when Plaintiff 20 was transferred from SQSP to Deuel Vocational Institution ("DVI"). 21 The Court begins by outlining the procedural background of this matter. On June 29, 22 2015, Plaintiff filed his original complaint. Dkt. 1. In an Order dated January 6, 2016, the Court 23 determined that the original complaint raised a cognizable claim against the following Defendants: 24 SQSP Physician George Beatty, M.D.; SQSP Registered Nurse ("RN") Bill Honey; and SQSP 25 Chief Medical Officer Elena Tootell (hereinafter "the served Defendants"). See Dkt. 6. The 26 following summary of Plaintiff's claim is taken from the Court's January 6, 2016 Order, which 27 28 1 Page number citations refer to those assigned by the court's electronic case management filing system and not those assigned by the parties. 2 1 states as follows: 2 Plaintiff's allegation that since February 5, 2015, he has suffered "great pain" to his left knee (which initially required an M.R.I. and 3 for which a knee replacement is now recommended due to a "torn meniscus") supports an inference that he has serious medical needs. 4 Dkts. 1 at 3, 6 at 1. Liberally construed, Plaintiff's allegations that SQSP prison medical staff failed to provide adequate medical 5 treatment for his left knee pain—by specifically denying his requests: for an ice pack and a walking cane from Defendant Beatty; 6 to be examined by Defendant Honey; and to speak with Defendant Tootell—state a cognizable deliberate indifference claim against 7 Defendants Beatty, Honey and Tootell. Accordingly, this claim may proceed against these Defendants. 8 Id. at 2. The Court then directed the Clerk of the Court to serve the original complaint and issued 9 a briefing schedule for the served Defendants to file a dispositive motion. See id. at 3-4. 10 On March 11, 2016, the served Defendants filed a motion to dismiss the original complaint 11 under Federal Rule of Civil Procedure 12(b)(6) on the grounds that Plaintiff had not exhausted his 12 Northern District of California administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. United States District Court 13 § 1997e(a). Dkt. 13. Plaintiff opposed that motion and also requested leave to file a proposed 14 supplemental claim. See Dkt. 14. 15 In an Order dated November 14, 2016, the Court granted Plaintiff leave to file an amended 16 complaint, which could include "the claims found cognizable in his original complaint as well as 17 the claim he seeks to add by way of his proposed supplemental claim mentioned in his 18 opposition." Dkt. 18 at 6. The Court also denied the served Defendants' motion to dismiss 19 without prejudice to renewing their arguments after Plaintiff had filed his amended complaint. See 20 id. 21 On December 9, 2016, Plaintiff filed his amended complaint. Dkt. 19. Plaintiff named the 22 same aforementioned served Defendants from the original complaint and an additional Defendant: 23 SQSP Physician Allison Devers, M.D. Id. at 2. He also specified that the time period for the 24 alleged Eighth Amendment violation was from October 2013 through July 2015. Id. at 3. 25 On March 30, 2017, all Defendants filed another motion to dismiss for failure to exhaust 26 administrative remedies. Dkt. 20. 27 In an Order dated December 18, 2017, the Court denied the motion to dismiss upon finding 28 2 2 1 that it could not be discerned from the face of the amended complaint "whether or not Plaintiff 2 still had administrative remedies available to him, and whether or not Plaintiff had a full 3 opportunity and ability to file a timely grievance but did not do so." Dkt. 27 at 9. The Court then 4 set a new briefing schedule upon concluding that this case "cannot be dismissed under Rule 5 12(b)(6) on exhaustion grounds," but that this argument may be renewed in a summary judgment 6 motion. Id. at 10. The Court also reviewed the amended complaint and concluded as follows: 7 (1) that Plaintiff's claims for injunctive relief were dismissed as moot given that he was no longer 8 incarcerated at SQSP; and (2) that the new allegations in his amended complaint stated a claim of 9 deliberate indifference to his serious medical needs against Defendants Beatty, Honey, Tootell, 10 and Devers (hereinafter "Defendants"). Id. at 7-8. 11 On January 8, 2018, Defendants filed an answer to the amended complaint. Dkt. 28. 12 The parties are now presently before the Court on Defendants' motion for summary Northern District of California United States District Court 13 judgment. Dkt. 37. Defendants move for summary judgment on Plaintiff's claim of deliberate 14 indifference to serious medical needs on the following grounds: (1) failure to exhaust 15 administrative remedies; and (2) failure to provide evidence that Defendants' were deliberately 16 indifferent to Plaintiff's medical needs. Id. at 16-22. Specifically, the argue that Plaintiff cannot 17 show that Defendants Beatty's, Honey's, and Devers's treatment of Plaintiff's left knee pain 18 amounted to: (1) deliberate indifference of his serious medical needs; or (2) a medically 19 unacceptable course of treatment chosen in conscious disregard to Plaintiff's health. Id. 20 Defendants also claim that "[Defendant] Tootell was not involved in [Plaintiff's] care" and that 21 this Defendant "was not even involved with [Plaintiff] through the inmate appeals process." Id. 22 Thus, Defendants argue that Plaintiff has not made a causal link between Defendant Tootell and 23 the violation of his constitutional rights. Id. at 22-23. 24 Plaintiff has filed an opposition to Defendants' motion, and Defendants have filed a reply. 25 Dkts. 44, 45. 26 Having read and considered the papers submitted in connection with this matter, the Court 27 hereby GRANTS Defendants' motion for summary judgment. 28 3 2 II. FACTUAL BACKGROUND2 1 A. Relevant SQSP Policy Regarding Administrative Health Care Appeals 2 Effective August 1, 2008, health-care appeals involving inmate medical, dental, and mental 3 health-care issues have been processed by the California Correctional Health Care Services. Gates 4 Decl. ¶ 3. At SQSP, inmates prepare their own California Department of Corrections and 5 Rehabilitation ("CDCR") 602 health care form when they want to file an appeal/grievance 6 regarding medical staff or care. Mamongay Decl. ¶ 4. When an inmate submits a form, the form 7 is routed to the Health Care Appeal/Grievance Office Coordinator for stamping to designate 8 receipt. Id. It is then scanned and logged into the Health Care Appeals and Risk Tracking System 9 ("HCARTS") and assigned a tracking number. Gates Decl. ¶ 4. The HCARTS tracks inmate 10 health care appeals that are processed by the institution at the first and second level of review, as 11 well as those processed by the Health Care Correspondence and Appeals Branch ("HCCAB") and 12 Northern District of California adjudicated at the third level of review. Id. The HCARTS also tracks health care appeals that United States District Court 13 were received and ultimately rejected. Id. It is maintained as a regular course of business, and the 14 computer entries are made at or near the time of the occurrence by the employee who processes 15 the health care appeal. Id. 16 The HCCAB is part of the CDCR responsible for providing oversight to administrative 17 health care appeals relating to medical, dental, and mental health care services to adult inmates 18 within California institutions. Gates Decl. ¶ 1. The HCCAB receives, reviews, and maintains all 19 health care appeals accepted for the third level, which is the final level of review in the inmate 20 21 2 22 This Order contains many acronyms. Here, in one place, they are: 23 CDCR California Department of Corrections and Rehabilitation CSATF California Substance Abuse and Treatment Facility 24 DVI Deuel Vocational Institution 25 HCARTS Health Care Appeals and Risk Tracking System HCCAB Health Care Correspondence and Appeals Branch 26 HCSR Health Care Services Request MRI Magnetic Resonance Imaging 27 NSAID Nonsteroidal Anti-Inflammatory Drug RN Registered Nurse 28 SQSP San Quentin State Prison 4 2 1 health care appeal process, and renders decisions on these health care appeals. Id. at ¶ 3. 2 Once the form is scanned and logged into the HCARTS, a clinician triages the 3 appeal/grievance for its degree of urgency. Mamongay Decl. ¶ 4. Afterwards, the form is routed 4 back to the Health Care Appeal/Grievance Coordinator for screening before being routed to 5 appropriate staff for an interview, assessment, and response. Id. The appeal/grievance and 6 response are reviewed by a supervisor and scanned into the HCARTS before being given to the 7 inmate. Id. Thus, CDCR 602 health care forms submitted by inmates at SQSP are recorded and 8 maintained at or near the time of its submission in the HCARTS. Id. at ¶ 5. 9 B. Plaintiff's Health Care Appeals/Grievances at SQSP 10 The following background related to Plaintiff's health care appeals/grievances at SQSP is 11 taken from the Court's December 18, 2017 Order resolving Defendants' previously-filed motion 12 to dismiss for failure to exhaust, which states as follows: Northern District of California United States District Court 13 Plaintiff alleges he submitted the facts in his amended complaint through the grievance procedure when he submitted 602 Inmate 14 Appeal log no. SQ160293 ("SQ160293"), which was dated January 1, 2016, and filed with the CDCR on February 11, 2016. Dkt. 19 at 15 1-2. On his amended complaint, Plaintiff checked both boxes for "YES" and "NO" in response to the question: "Is the last level to 16 which you appealed the highest level of appeal available to you?" Id. at 2. Plaintiff elaborates by stating that SQ160293 was "sent 17 from [CSATF] and cancelled." Id. at 1. He further states the following relating to SQ160293: "Cancelled appeal on 2/26/16 by 18 [SQSP] Appeals Office [and] cannot be resubmitted therefore deeming appeal process exhausted." Id. Thus, Plaintiff alleges he 19 both did and did not fully exhaust his appeal to the highest level of appeal available, and claims the CDCR "ha[s] a pattern that is a 20 practice which unduly violates appellant's due process by way of circumventing [the] issue, cancelling or rejecting appeals." Id. at 2. 21 Attached to Plaintiff's amended complaint is a copy of SQ160293, 22 which he has labeled as Exhibit 1. See id., Ex. 1. SQ160293 relates to the June 18, 2015 incident during which Plaintiff claims he fell 23 down stairs, injured himself, and did not receive any treatment for his injuries. See id. Under the section labeled, "Action requested," 24 Plaintiff states he requests that "CDCR medical staff be accountible [sic] for thier [sic] negative actions and unprofessional attitude to 25 [his] medical needs." Id. On February 26, 2016, SQ160293 was canceled at the first level of review. Id. In support of SQ160293, 26 Plaintiff had attached copy of another 602 inmate appeal log no. SQ- L-15-3230 ("SQ-L-15-3230"), in which Plaintiff complains that he 27 had submitted a previous 602 appeal on June 21, 2015 that was "based on [him] falling at SQ[SP]" and that he had not yet received 28 a response." Id., Ex. 1. SQ-L-15-3230 was rejected at the first level 5 2 of review on three different dates: November 23, 2015, December 1, 1 2015, and January 13, 2016. Id. In the January 13, 2016 rejection of SQ-L-15-3230, the appeals coordinator noted that: "[a] review of 2 our records does not show that you submitted an appeal around June of 2015. Provide a copy of your appeal." Id. In response to this 3 rejection letter, Plaintiff wrote as follows: "I filled out a new 602 in place of [the] original 602 that has been misplaced by [SQSP] staff 4 there after 6/21/15." Id. Nothing in the record exists to show that Plaintiff pursued either SQ160293 or SQ-L-15-3230 to the highest 5 level of review. Id. Similarly, no copy of the 602 appeal dated June 21, 2015 exists on the record. Id. 6 Dkt. 27 at 8-9 (footnote omitted). 7 C. Background Relating to Plaintiff's Left Knee/Leg Injury 8 Plaintiff's medical records show that he had a longstanding malformation of his lower left 9 leg due to a motor vehicle accident in 2002 and the resulting multiple surgeries which, according 10 to him, "[h]ealed wrong [because] [he] tried to escape from [an] outside hospital (Enlo[e] Hosp. in 11 Chico) window while in jail." Beatty Decl. ¶ 10; Dkt. 40 at 23. 12 Northern District of California Plaintiff's Medical Care and Treatment for His Left Knee Pain at SQSP United States District Court D. 13 On October 8, 2013, Plaintiff submitted a Health Care Services Request ("HCSR") form 14 complaining that his left knee was swelling and requesting "new shoes" and to "see RN or doctor 15 ASAP." Dkt. 19 at 21. On October 10, 2013, RN E. Monroe and RN A. Bird reviewed the HCSR 16 and emailed the doctor that Plaintiff wanted to ask for an "ice chrono3" and replacement shoes. Id. 17 On October 18, 2013, Plaintiff submitted another HCSR form requesting "more Terazosin4 18 5 mg. caps[ules] . . . medical shoes. . . [and] surgery on [his] left knee [because] it[']s swelling up 19 and hurts." Id. at 22. On October 21, 2013, RN Monroe sent a copy of the HCSR form to the 20 pharmacy and noted that Plaintiff, who was 5'8'' and weighed 230 lbs., had complaints of 21 "musculoskeletal" issues. Id. 22 Beginning on February 26, 2014, Defendant Beatty, who has been a Physician and 23 Surgeon at SQSP since early 2014, was assigned to Plaintiff as his Primary Care Provider. Id. at 24 ¶ 5. On that date, Defendant Beatty met with Plaintiff to discuss his left knee pain. Id. at ¶ 10. 25 26 A "chrono" is a form that allows prisoners to request certain medical accommodations as 3 27 deemed necessary by medical staff. Beatty Decl. ¶ 10. 4 28 Terazosin is used alone or with other drugs to treat high blood pressure (hypertension). See https://www.webmd.com/drugs/2/drug-6834/terazosin-oral/details (last visited Aug. 23, 2018). 6 2 1 Plaintiff requested two chronos—one for new shoes and another for ice for his left knee. Id. 2 According to Defendant Beatty, Plaintiff "wore a brace, and showed progressive degeneration and 3 pain in both knees and left ankle." Id. Defendant Beatty "observed no swelling or effusion in his 4 left knee." Id. Defendant Beatty and Plaintiff "discussed the management of [Plaintiff's] pain," 5 and Plaintiff "was agreeable to converting his current morphine dose to methadone to alleviate his 6 pain." Id.; Dkt. 40 at 51. 7 On March 28, 2014, Defendant Beatty again met with Plaintiff in response to his HCSR 8 form that indicated he was still experiencing knee pain. Beatty Decl. ¶ 11. Defendant Beatty 9 "attempted to reconcile [Plaintiff's] pain medications by giving him a new prescription for 10 10 milligrams of methadone for 90 days." Id.; Dkt. 40 at 67. 11 On April 1, 2014, after complaining of left leg pain related to his work that consisted of 12 lifting and working long hours on his feet, Plaintiff was granted a "lay-in," which is the term used Northern District of California United States District Court 13 for when an inmate needs to be excused from their work assignment. Beatty Decl. ¶ 12; Dkt. 40 at 14 52-54. In this instance, the lay-in allowed Plaintiff to be excused from work for fifteen days until 15 he saw his Primary Care Provider. Id. 16 On April 16, 2014, Defendant Beatty met with Plaintiff for a routine follow up to address 17 his ongoing pain management issues. Beatty Decl. ¶ 13. Defendant Beatty decided to increase 18 Plaintiff's evening methadone dose to fifteen milligrams. Id. Defendant Beatty declined to restart 19 morphine as both he and Plaintiff had agreed to an equivalent dose of methadone in lieu of 20 morphine. Id. Defendant Beatty explained that Plaintiff had likely developed some tolerance to 21 morphine that could decrease its therapeutic effect. Id. Defendant Beatty re-referred Plaintiff to 22 the orthotics clinic for potential adjustment to his leg brace and for evaluation of orthotics or 23 inserts in his boots. Id. In addition, Defendant Beatty rewrote a directive to state that Plaintiff had 24 a limitation for standing at work for one hour at a time. Id.; Dkt. 40 at 12, 55-56, 68. 25 On July 1, 2014, Defendant Beatty again examined Plaintiff, who primarily complained of 26 back pain that day. Beatty Decl. ¶ 14. As Defendant Beatty noted, Plaintiff had a "leg length 27 discrepancy." Id. Defendant Beatty also noted that the anticipated scheduling for prosthetics 28 fitting might alleviate Plaintiff's back pain, which radiated into his legs. Id.; Dkt. 40 at 57-58. 7 2 1 On September 10, 2014, Plaintiff informed Defendant Beatty that he was in the process of 2 "pursuing legal avenues of resolution" because he still "ha[d] not gotten orthotics/orthopedic boots 3 replaced." Beatty Decl. ¶ 15. Defendant Beatty explained that he attributed the failure to a 4 "scheduling issue." Id. Defendant Beatty e-mailed the scheduler to expedite the process. Id. 5 Plaintiff and Defendant Beatty then discussed the possibility that Plaintiff might require further 6 orthopedic surgery to address some of his issues. Id. Plaintiff mentioned his preference to have 7 surgery outside SQSP. Id. Defendant Beatty concurred as Plaintiff was scheduled to go before 8 the Board of Parole Hearings for possible resentencing. Id.; Dkt. 40 at 13-14, 59-60. 9 On October 29, 2014, Plaintiff received his orthopedic shoes and orthotics. Beatty Decl. 10 ¶ 16; Dkt. 40 at 61. 11 On November 7, 2014, Plaintiff requested a renewal of his low bunk chrono and wanted to 12 reconsider the possibility of corrective surgery now that his appeal for resentencing seemed Northern District of California United States District Court 13 unlikely. Beatty Decl. ¶ 17. Plaintiff weighed 233 pounds, an increase from the 225 pounds he 14 weighed two months earlier. Id. Defendant Beatty found "no effusion or swelling, minimal 15 tenderness at the joint line of his left knee, but crepitus5 with extension." Id. (footnote added). 16 Plaintiff's ligaments were stable. Id. Defendant Beatty referred Plaintiff for an orthopedic 17 evaluation and renewed his low bunk chrono. Id.; Dkt. 40 at 62-63. 18 On December 11, 2014, Plaintiff was seen by Dr. William C. Lyon6 in the on-site 19 orthopedics clinic. Beatty Decl. ¶ 18 (footnote added). Dr. Lyon requested x-rays and a return 20 visit. Id. Dr. Lyon also advised Plaintiff to abide by certain work restrictions and granted him 21 another lay-in. Id.; Dkt. 40 at 64. 22 On December 16, 2014, Plaintiff submitted an HCSR form related to the pain in his left 23 knee and right ankle. Beatty Decl. ¶ 19. A day later, Defendant Honey, an RN, called the 24 25 5 Crepitus is the "grinding, grating feeling or a crunchy sound when joints move." See 26 https://www.webmd.com/osteoarthritis/qa/what-are-the-symptoms-of-osteoarthritis (last visited Aug. 17, 2018). 27 6 Defendant Beatty spells Dr. Lyon's last name incorrectly as "Lyons." Compare Beatty 28 Decl. ¶ 18 with Dkt. 40 at 64, 66. 8 2 1 radiology and specialty departments about having Plaintiff's x-rays taken prior to his December 2 22, 2014 follow-up visit. Beatty Decl. ¶¶ 19, 22; Dkt. 40 at 64-65. 3 On December 22, 2014, Dr. Lyon re-ordered the x-rays. Beatty Decl. ¶¶ 20, 227; Dkt. 40 4 at 66. That same day, Dr. D. Goller, the radiologist, provided his report of the x-rays for Plaintiff. 5 Beatty Decl. ¶ 20. Relative to Plaintiff's left knee, the report noted "[m]oderate degenerative 6 changes on the left knee." Id.; Dkt. 40 at 15. 7 On January 7, 2015, Plaintiff had another appointment with Defendant Beatty. Beatty 8 Decl. ¶ 22. Because the x-rays were not initially available for his follow-up visit with Dr. Lyon on 9 December 22, 2014, Plaintiff was instead "scheduled for a follow-up with orthopedic surgery to 10 review the x-rays and discuss future recommendations." Id. In the interim, Defendant Beatty 11 reclassified Plaintiff in order that his prison job would not entail standing or involve any use of 12 heavy machinery. Id. Plaintiff agreed, and Dr. Lyon concurred. Id. Defendant Beatty continued Northern District of California United States District Court 13 Plaintiff's non-steroidal and methadone pain management until his next orthopedic visit 14 approximately four to six weeks later. Id.; Dkt. 40 at 16. 15 On January 8, 2015, Plaintiff met with Dr. Lyon to discuss Plaintiff's left knee. Beatty 16 Decl. ¶ 23. Dr. Lyon was not convinced Plaintiff would need a total knee arthroplasty.8 Id. Dr. 17 Lyon believed that even though Plaintiff had failed physical therapy and intra-articular steroids in 18 the past at a prior institution, he thought it was worth another trial of physical therapy along with a 19 knee sleeve. Id. Dr. Lyon also believed Plaintiff "had enough disease at this point to warrant an 20 [magnetic resonance imaging ("MRI")] to better evaluate his degenerative disease and rule out any 21 concomitant connective tissue chronic injury." Id.; Dkt. 40 at 17-19, 21. 22 On January 21, 2015, Plaintiff had another appointment with Defendant Beatty for a 23 mandatory follow-up visit concerning Plaintiff's orthopedic surgery evaluation for his left knee. 24 Beatty Decl. ¶ 23. Due to Dr. Lyon's recommendations, Defendant Beatty planned to submit a 25 26 7 The Court notes that Defendant Beatty's declaration is missing paragraph 21. See Beatty Decl. at 5. 27 8 Arthroplasty is another word for knee replacement surgery. See 28 https://www.webmd.com/osteoarthritis/guide/knee-replacement-surgery#1 (last visited Aug. 17, 2018). 9 2 1 request for an MRI of Plaintiff's left knee. Id. Defendant Beatty also "supported the repeat trial 2 of physical therapy, as well as the need to give [Plaintiff] a chrono for a soft knee sleeve." Id. 3 The plan was to follow up with orthopedic surgery after the MRI. Id.; Dkt. 40 at 17-19, 21. 4 On February 5, 2015, Plaintiff went in for an MRI on his left knee. Dkt. 1 at 3; Beatty 5 Decl. ¶ 24; Dkt. 40 at 20. 6 On February 18, 2015, Plaintiff submitted an HCSR form to talk to a doctor about his left 7 knee pain. Beatty Decl. ¶ 25; Dkt. 40 at 22. Plaintiff claimed that he had not received "his leg 8 brace yet or therapy," and he wanted surgery. Id. Defendant Honey informed Plaintiff that he had 9 a scheduled follow-up visit with Defendant Beatty on March 3, 2015, and another scheduled visit 10 with an orthopedic specialist. Id. Defendant Honey also "sent the medical supply [department] a 11 copy of the chrono. . . to get the sleeve delivered to [Plaintiff]." Id. 12 On March 3, 2015, Defendant Beatty was unavailable for the appointment with Plaintiff. Northern District of California United States District Court 13 Beatty Decl. ¶ 26. Instead, Plaintiff met with Dr. J. Lee concerning his left knee pain. Id.; Dkt. 40 14 at 24. Dr. Lee reiterated the plan for physical therapy and use of the leg sleeve. Id. 15 On March 17, 2015, Plaintiff submitted an HCSR form indicating that he had needed to 16 "see a doctor ASAP" because the extreme pain in his back caused his severe sleep deprivation. 17 Beatty Decl. ¶ 27; Dkt. 40 at 24-25. On March 18, 2015, Defendant Honey made an urgent 18 referral to Defendant Beatty after seeing Plaintiff. Id. 19 On March 19, 2015, Defendant Beatty examined Plaintiff, diagnosed him "Lumbar 20 musculoskeletal strain," and noted the following: 21 The patient does have a chronic pain syndrome, but this seems to be clearly superimposed soft tissue injury. I do not see any alarming 22 signs or symptoms at this time, and the patient feels he is managing fairly well. He does state that he has been asked to work in an 23 unlimited fashion, though he already has standing restricted work designation with restriction[s] on lifting and standing. I will renew 24 this with a new [CDCR] 128 C3 [Chrono][,] and I will submit his chronos into the system, which will designate him low bunk and 25 ground floor, based on his malformation and need for [a] knee brace. In the meantime, he will continue with modification of activities and 26 rest as needed. He will add some Naprosyn9 to see if this helps, and 27 9 28 Naproxen (brand names: Aleve, Naprosyn, and many others) is an NSAID, which works by blocking the body's production of certain natural substances that cause inflammation and 10 2 I will give him a short course of baclofen.10 He will continue with 1 the same dose of methadone. He will return for any worsening or new symptoms, particularly lower extremity pain, weakness or 2 numbness, and he will let me know if he is not improved by the end of the month. Otherwise, he appears to be quite stable, and we will 3 follow him up at his regularly scheduled Chronic Care follow-up visit for the remainder of his medical problems. 4 Beatty Decl. ¶ 28; Dkt. 40 at 26 (footnotes added). 5 On April 10, 2015, Defendant Beatty requested physical therapy to help relieve Plaintiff's 6 chronic pain, which was approved four days later on April 14, 2015. Beatty Decl. ¶ 29; Dkt. 40 at 7 27, 44. 8 Also, in April 2015, Plaintiff began requesting a transfer to another institution that did not 9 have stairs. Beatty Decl. ¶ 30; Dkt. 40 at 28. 10 On May 11, 2015, Defendant Honey met with Plaintiff based on his complaints of left leg 11 and back pain, and referred him to Defendant Beatty. Beatty Decl. ¶ 31; Dkt. 40 at 29-31. 12 Northern District of California On May 25, 2015, Plaintiff met with Defendant Beatty in order to discuss his left knee and United States District Court 13 lower back pain. Beatty Decl. ¶ 31. Defendant Beatty wrote his diagnosis of "degenerative 14 disease" as the cause of Plaintiff's left knee and lower back symptoms. Id. Defendant Beatty 15 suggested that Plaintiff request another orthopedic surgery evaluation, but Plaintiff indicated that 16 he wanted to wait until he transferred to California Medical Facility for an orthopedic surgery 17 evaluation there instead. Id. Plaintiff expressed that he was "quite frustrated [on that day] due to 18 the inability of getting a follow-up [visit] scheduled]" and stated that "nothing [was] being done 19 for [his] pain" and that "he [was] planning litigation because of this." Id.; Dkt. 32. Defendant 20 Beatty acknowledged that Plaintiff's physical therapy evaluation and orthopedic follow-up 21 appointment appeared to have been delayed due to scheduling backlogs of these providers. Id.; 22 Dkt. 40 at 32-33. Defendant Beatty ordered Plaintiff an extended lay-in to June 15, 2015, and 23 increased his pain medication, methadone, by five milligrams. Id. Defendant Beatty indicated 24 25 26 relieving pain from various conditions. See https://www.webmd.com/drugs/2/drug-1705- 2289/naprosyn-oral/naproxen-suspension-oral/details (last visited Aug. 17, 2018). 27 10 Baclofen (Gablofen, Lioresal) is a medication that treats spasticity, a condition marked 28 by stiff muscles and spasms. See https://www.webmd.com/multiple-sclerosis/qa/what-is-baclofen (last visited Aug. 17, 2018). 11 2 1 that "[Plaintiff] was satisfied with these measures and felt his needs [had] been addressed to the 2 extent possible [on that day]." Id., Dkt. 40 at 33. 3 E. Plaintiff's June 18, 2015 Fall at SQSP and Resulting Medical Care and Treatment 4 On June 18, 2015, Plaintiff reported that he was going "down stairs to the lower yard," and 5 "missed a step a[nd] fell and hurt [him]self again." Beatty Decl. ¶ 32; Dkt. 40 at 34. 6 On June 19, 2015, Plaintiff was treated in the Triage & Treatment Area for left knee pain 7 from a knee-injury." Beatty Decl. ¶ 32. Plaintiff stated that "[he] fell on the stairs. . . and hit [his] 8 leg." Id. Plaintiff then underwent a comprehensive musculoskeletal examination by RN Corpuz, 9 who noted that Plaintiff was found to be stable and ambulatory. Id. Plaintiff was given an order 10 for ice and a cane. Id. Plaintiff was referred to Defendant Devers, an SQSP physician. Id.; Dkt. 11 40 at 35-37. On that same day, Defendant Devers performed a comprehensive examination 12 regarding Plaintiff's musculoskeletal complaints. Id. at ¶ 33. She found "his left knee [was] Northern District of California United States District Court 13 tender at both the medial and lateral joint lines, no change in laxity,11 negative anterior drawer 14 (test for [anterior cruciate ligament or "ACL"] damage), no effusion12, and no focal swelling at the 15 patella or posteriorly." Id. (footnotes added). Defendant Devers noted that Plaintiff had pain with 16 varus (inward rotation)13 and valgus (outward rotation)14 stress at the medial knee, and diffused 17 swelling. Id. Defendant Devers also examined Plaintiff's back and found it normal, except he 18 was tender in the paraspinal lumbar muscles on the left. Id.; Dkt. 40 at 38-41. Defendant Devers 19 noted that Plaintiff had chronic left knee pain and chronic low back pain, with an acute flare-up 20 21 The Merriam-Webster Dictionary states the medical definition of "laxity" as "the quality 11 22 or state of being loose." See Merriam-Webster Online Dictionary, retrieved August 20, 2018, from https://www.merriam-webster.com/dictionary/laxity. 23 Effusion or "swollen knee" occurs when excess fluid accumulates in or around your 12 24 knee joint. See https://www.mayoclinic.org/diseases-conditions/swollen-knee/symptoms- causes/syc-20378129 (last visited Aug. 20, 2018). 25 Varus means "of, relating to, or being a deformity in which an anatomical part is turned 13 26 inward toward the midline of the body to an abnormal degree." See Merriam-Webster Online Dictionary, retrieved August 23, 2018, from https://www.merriam-webster.com/dictionary/varus. 27 Valgus means "of, relating to, or being a deformity in which an anatomical part is turned 14 28 outward away from the midline of the body to an abnormal degree." See Merriam-Webster Online Dictionary, retrieved August 23, 2018, from https://www.merriam-webster.com/dictionary/valgus. 12 2 1 following his fall on June 18, 2015. Beatty Decl. ¶ 33. Defendant Devers prescribed ice for five 2 days, a temporary cane, and noted Plaintiff had a Disability Not Impacting Placement Mobility 3 form already completed. Id. Defendant Devers also prescribed "a muscle relaxant for seven days, 4 continued narcotic pain medications, and ordered a lay-in ([including] meals delivered to his cell; 5 medical showers) for 10 days." Id. She noted Plaintiff's allergy to ibuprofen meant that she could 6 not give him an NSAID. Id. Instead, Defendant Devers wrote Plaintiff a prescription to include 7 1000 milligrams of methocarbamol (Robaxin15) twice a day for seven days. Id.; Dkt. 40 at 38-41. 8 On June 24, 2015, Plaintiff had a mandatory follow-up appointment with Defendant Beatty 9 after being treated at the Triage & Treatment Area for his fall on June 18, 2015. Beatty Decl. 10 ¶ 34. Defendant Beatty noted all the key details of Plaintiff's fall and resulting treatment. Id. 11 Plaintiff stated that his pain had improved, his swelling was reduced, and he did not have any 12 clicking or buckling of the knee. Id. Plaintiff did not request any additional accommodations or Northern District of California United States District Court 13 pain medications. Id. In the physical examination, Defendant Beatty found Plaintiff's "[l]eft 14 lower extremity varus malformation as previously described," and the left knee had "some trace 15 effusion and generalized edema surrounding the knee relative to the left." Id.; Dkt. 40 at 42. 16 Defendant Beatty found "no joint line tenderness medially or laterally; and, noted some mild 17 tenderness on compression of the medial compartment." Id. He found "no pain or laxity on 18 medial collateral ligament and negative anterior drawer (test for ACL injury)." Id.; Dkt. 40 at 42- 19 43. Defendant Beatty noted that the knee was healing as expected and that Plaintiff was managing 20 well with his cane. Id. at ¶ 35. Defendant Beatty prescribed continued application of ice, a soft 21 knee brace, and use of the cane until the knee was back to baseline. Id. In addition, Defendant 22 Beatty prescribed Plaintiff to continue opiates for chronic pain. Id. Defendant Beatty also noted 23 that Plaintiff was in the process of being transferred to another prison in order to minimize the use 24 of stairs. Id.; Dkt. 40 at 42-43. 25 On July 6, 2015, the SQSP physical therapist noted that Plaintiff still had pain and 26 27 15 Robaxin (generic name is methocarbamol) is used to treat muscle spasms/pain. See 28 https://www.webmd.com/drugs/2/drug-11197/robaxin-oral/details (last visited Aug. 20, 2018). 13 2 1 recommended heat and/or cold treatment with three additional physical therapy visits. Beatty 2 Decl. ¶ 36; Dkt. 40 at 45. 3 On July 13, 2015, Plaintiff requested that his lay-in be extended. Beatty Decl. ¶ 37. His 4 lay-in request for meals and medical showers was granted for another sixteen days by RN Monroe. 5 Id.; Dkt. 40 at 46. 6 F. Plaintiff's Medical Care and Treatment After His Transfer From SQSP 7 On July 30, 2015, Plaintiff was transferred to DVI in Tracy. Beatty Decl. ¶ 38; Dkt. 40 at 8 47. Thereafter, on an unknown date, he was transferred to CSATF. Beatty Decl. ¶ 39. On 9 November 6, 2015, Plaintiff was examined by CSATF RN Arietta for ongoing pain in his left 10 knee. Id.; Dkt. 40 at 50. Plaintiff explained to RN Arietta that he previously had knee surgery in 11 2009 and that the pain was ongoing, and walking made it worse. Beatty Decl. ¶ 39. RN Arietta 12 noted that Plaintiff was 5'8" and weighed 258 lbs., and that there was no swelling and limited Northern District of California United States District Court 13 range of motion. Id. RN Arietta did not refer Plaintiff to a doctor. Id. She noted that Plaintiff 14 was currently on five milligrams of methadone. Id. She recommended heat and ice be applied as 15 appropriate and told Plaintiff to submit an HCSR form if he had an increase in pain or swelling. 16 Id.; Dkt. 40 at 48-49. No other further medical documents exist in the record to explain Plaintiff's 17 medical care and treatment after November 6, 2015. 18 Finally, the Court notes that Plaintiff mentions in his opposition that he has since had knee 19 surgery on an unknown date. Dkt. 44 at 5. 20 III. LEGAL STANDARD 21 Summary judgment is proper where the pleadings, discovery and affidavits demonstrate 22 that there is "no genuine issue as to any material fact and that the moving party is entitled to 23 judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those which may affect the 24 outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to 25 a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for 26 the nonmoving party. Id. 27 The party moving for summary judgment bears the initial burden of identifying those 28 portions of the pleadings, discovery, and affidavits which demonstrate the absence of a genuine 14 2 1 issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving 2 party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no 3 reasonable trier of fact could find other than for the moving party. On an issue for which the 4 opposing party by contrast will have the burden of proof at trial, as is the case here, the moving 5 party need only point out "that there is an absence of evidence to support the nonmoving party's 6 case." Id. at 325. 7 Once the moving party meets its initial burden, the nonmoving party must go beyond the 8 pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a 9 genuine issue for trial." Fed. R. Civ. P. 56(e). The court is only concerned with disputes over 10 material facts and "[f]actual disputes that are irrelevant or unnecessary will not be counted." 11 Anderson, 477 U.S. at 248. It is not the task of the court to scour the record in search of a genuine 12 issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party Northern District of California United States District Court 13 has the burden of identifying, with reasonable particularity, the evidence that precludes summary 14 judgment. Id. If the nonmoving party fails to make this showing, "the moving party is entitled to 15 a judgment as a matter of law." Celotex, 477 U.S. at 323. 16 For purposes of summary judgment, the court must view the evidence in the light most 17 favorable to the nonmoving party; if the evidence produced by the moving party conflicts with 18 evidence produced by the nonmoving party, the court must assume the truth of the evidence 19 submitted by the nonmoving party. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). 20 A district court may only consider admissible evidence in ruling on a motion for summary 21 judgment. See Fed. R. Civ. P. 56(e); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). In 22 support of the motion for summary judgment, Defendant Beatty has presented his own 23 declaration/supporting exhibits and Defendants have also attached declarations/supporting exhibits 24 by HCCAB Chief S. Gates and SQSP Health Care Appeal/Grievance Office Coordinator Jessica 25 Mamongay. Dkts. 38-40. Meanwhile, Plaintiff has filed his verified amended complaint and 26 opposition. Dkts. 19, 44. The Court construes his amended complaint as an affidavit under Federal 27 Rule of Civil Procedure 56, insofar as it is based on personal knowledge and sets forth specific facts 28 admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995). 15 2 IV. DISCUSSION 1 A. Deliberate Indifference to Medical Needs Claim 2 The Eighth Amendment protects prisoners from inhumane conditions of confinement. 3 Farmer v. Brennan, 511 U.S. 825, 832 (1994). The government has an "obligation to provide 4 medical care for those whom it is punishing by incarceration," and failure to meet that obligation 5 can constitute an Eighth Amendment violation cognizable under section 1983. Estelle v. Gamble, 6 429 U.S. 97, 103-105 (1976). 7 In order to prevail on an Eighth Amendment claim for inadequate medical care, a plaintiff 8 must show "deliberate indifference" to his "serious medical needs." Estelle, 429 U.S. at 104. 9 "This includes 'both an objective standard—that the deprivation was serious enough to constitute 10 cruel and unusual punishment—and a subjective standard—deliberate indifference.'" Colwell v. 11 Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation omitted). 12 Northern District of California To meet the objective element of the standard, a plaintiff must demonstrate the existence of United States District Court 13 a serious medical need. Estelle, 429 U.S. at 104. A "serious medical need[]" exists if the failure 14 to treat a prisoner's condition could result in further significant injury or the "[u]nnecessary and 15 wanton infliction of pain." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (citing 16 Estelle, 429 U.S. at 104), overruled in part on other grounds by WMX Techs., Inc. v. Miller, 104 17 F.3d 1133, 1136 (9th Cir. 1997) (en banc). The existence of an injury that a reasonable doctor or 18 patient would find important and worthy of comment or treatment; the presence of a medical 19 condition that significantly affects an individual's daily activities; or the existence of chronic and 20 substantial pain are examples of indications that a prisoner has a "serious" need for medical 21 treatment. McGuckin, 974 F.2d at 1059-60 (citing Wood v. Housewright, 900 F.2d 1332, 1337-41 22 (9th Cir. 1990)). 23 To satisfy the subjective element, the plaintiff must show that "the official knows of and 24 disregards an excessive risk to inmate health or safety; the official must both be aware of facts 25 from which the inference could be drawn that a substantial risk of serious harm exists, and he must 26 also draw the inference." Farmer, 511 U.S. at 837. A plaintiff must establish that the course of 27 treatment the doctors chose was "medically unacceptable under the circumstances" and that they 28 16 2 1 embarked on this course in "conscious disregard of an excessive risk to [the plaintiff's] health." 2 See Toguchi v. Chung, 391 F.3d 1051, 1058-60 (9th Cir. 2004) (citing Jackson v. McIntosh, 90 3 F.3d 330, 332 (9th Cir. 1996)). A claim of mere negligence related to medical problems, or a 4 difference of opinion between a prisoner patient and a medical doctor, is not enough to make out a 5 violation of the Eighth Amendment. Id. 6 Here, Plaintiff claims that Defendants were deliberately indifferent to his medical needs 7 when they denied him adequate treatment for his left knee pain from October 2013 through July 8 2015. Dkt. 19 at 3. Specifically, Plaintiff claims that Defendants "became aware of [his] 9 complain[ts] of pain and were reluctant to take appropriate measures to not violate [his] right not 10 to suffer needlessly." Id. 11 While Defendants seem to concede that, as alleged, Plaintiff's health condition may rise to 12 the level of a serious medical need, they argue that no evidence exists to show that Defendants Northern District of California United States District Court 13 acted with "deliberate indifference" to that need. Dkt. 37 at 20-22. Defendants also argue that 14 Defendants Beatty's, Devers's, and Honey's treatment of Plaintiff's left knee pain was within the 15 standard of medical care and thus they did not deny Plaintiff any appropriate or reasonable 16 medical treatment. Id. at 21-22. Specifically, Defendants argue that "[t]here is no direct evidence 17 that [Defendant] Beatty suspected that [Plaintiff] had a serious risk of harm relating to his knee, 18 which [Defendant] Beatty then ignored. Id. Following a review of Plaintiff's medical records, 19 Defendants point out that Defendant Beatty 20 avers that ". . . based upon my review of Mr. Duron's records, he received from Nurse Honey, Dr. Devers, and me, all reasonable and 21 necessary care for his left knee complaints consistent with community standards and his medical condition. Their individual 22 recommendations, as well as mine, were all medically acceptable ones. It is evident that Mr. Duron had problems with his left knee, 23 but those problems were repeatedly addressed, assessed, and treated." 24 Id. at 22 (citing Beatty Decl. ¶ 42). Defendants further argue that "there is no circumstantial 25 evidence that [Defendant] Beatty or [Defendant] Devers or [Defendant] Honey were aware of 26 some risk, but consciously disregarded it." Id. at 22. Defendants further point out that "[t]he 27 record is replete with evidence of [Defendants Beatty, Devers, and Honey] showing concern—not 28 17 2 1 indifference—to [Plaintiff]." Id. Defendants claim that none of these Defendants denied Plaintiff 2 any appropriate or reasonable medical treatment. Id. Finally, as mentioned above, Defendants 3 argue that Defendant Tootell was "not alleged to have provided any treatment, nor do any medical 4 records show that she was involved in Plaintiff's treatment." Id. 5 As mentioned above, a prison official is deliberately indifferent if he or she knows that a 6 prisoner faces a substantial risk of serious harm and disregards that risk by failing to take 7 reasonable steps to abate it. Farmer, 511 U.S. at 837. In order to establish deliberate indifference, 8 a plaintiff must show a purposeful act or failure to act on the part of the defendant and a resulting 9 harm. McGuckin, 974 F.2d at 1060. Such indifference may appear when prison officials deny, 10 delay, or intentionally interfere with medical treatment, or it may be shown in the way in which 11 prison officials provided medical care. See id. at 1062. 12 To the extent that Plaintiff's claim amounts to medical malpractice or an allegation that Northern District of California United States District Court 13 Defendants were negligent in providing treatment, his allegations do not support an Eighth 14 Amendment claim. See Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 15 1981); Toguchi, 391 F.3d at 1060; McGuckin, 974 F.2d at 1059 (mere negligence in diagnosing or 16 treating a medical condition, without more, does not violate a prisoner's Eighth Amendment 17 rights); O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (repeatedly failing to satisfy 18 requests for aspirins and antacids to alleviate headaches, nausea, and pains is not constitutional 19 violation; isolated occurrences of neglect may constitute grounds for medical malpractice but do 20 not rise to level of unnecessary and wanton infliction of pain). 21 Despite Plaintiff's claims that he received no treatment for his left knee pain, Defendants 22 have submitted a verified declaration from Defendant Beatty indicating that Plaintiff's conditions 23 and complaints were treated continuously based upon the medical evidence as well as the 24 judgment of the medical providers. See Beatty Decl. ¶¶ 10-39. As explained in detail above, the 25 evidence shows that during the time period at issue, each time Plaintiff presented with any left 26 knee/leg pain or back pain, he was evaluated, treated with pain medication, and at some point, x- 27 rays and MRIs were ordered as needed. Plaintiff was also referred for an orthopedic surgery 28 evaluation for his left knee. However, Dr. Lyon explained that he was not convinced Plaintiff 18 2 1 would need a total knee replacement surgery. Instead, Dr. Lyon noted that Plaintiff would benefit 2 from physical therapy along with a knee sleeve. Defendant Beatty examined Plaintiff based on 3 extreme back pain in March 2015, diagnosed him "Lumbar musculoskeletal strain," and noted that 4 Plaintiff was managing fairly well with the pain medication along with modification of activities 5 and rest as needed. On May 11, 2015, Defendant Honey examined Plaintiff for his left knee/leg 6 pain and referred him to Defendant Beatty. On May 25, 2015, Defendant Beatty noted his 7 diagnosis of "degenerative disease" as the cause of Plaintiff's left knee and lower back symptoms. 8 When Plaintiff complained of a delay in his treatment, Defendant Beatty acknowledged that 9 Plaintiff's physical therapy evaluation and orthopedic follow-up appointment appeared to have 10 been delayed due to scheduling backlogs of these providers. Due to this, Defendant Beatty 11 increased Plaintiff's pain medication. After Plaintiff's June 18, 2015 fall, the record shows that 12 Plaintiff was immediately seen the next day and treated in the Triage & Treatment Area for his Northern District of California United States District Court 13 knee injury. Meanwhile, Plaintiff provides a conclusory, unsupported statement in his opposition 14 that staff "refused for a period of weeks to even give [him] crutches, a cane or ice" after his fall. 15 See Dkt. 44 at 5. In contrast, as explained above, medical records show that Plaintiff was given a 16 cane and referred to Defendant Devers, who examined him the day after his fall. Defendant 17 Devers prescribed muscle relaxant, continued narcotic pain medication, and ordered a lay-in for 18 ten days. Five days later, on June 24, 2015, Plaintiff was examined by Defendant Beatty, who 19 noted that Plaintiff stated that the pain had improved, and his knee was healing as expected. 20 Defendant Beatty prescribed continued application of ice, a soft knee brace and the use of the cane 21 until the knee was back to baseline. Thereafter, on June 30, 2015, Plaintiff was transferred to 22 DVI. In sum, the undisputed evidence (supported by Defendant Beatty's declaration and 23 supporting exhibits) shows no evidence to suggest that any of Plaintiff's requests for medical 24 treatment were ignored and could have resulted in further injury. 25 Furthermore, in his opposition, Plaintiff seems to claim that Defendants were deliberately 26 indifferent for refusing to "provid[e] him the surgery that was necessary to cure the pain" in his 27 left knee. Dkt. 44 at 2. As mentioned above, on June 29, 2015, the date Plaintiff filed his original 28 complaint, he claimed that "knee replacement" surgery was being recommended. Dkt. 1 at 3. 19 2 1 However, Plaintiff does not provide any supporting medical records showing such a 2 recommendation by any SQSP medical personnel. See Dkt. 1. Instead, according to Defendant 3 Beatty, Plaintiff "fell into [a] category of conservative treatment with the prospect of future 4 surgery, if then warranted, during his time at [SQSP]." Beatty Decl. ¶ 42 (emphasis added). 5 Specifically, Defendant Beatty claims that their choice of treatment were "medically acceptable 6 ones," stating as follows: 7 I observe that the outcome from surgery is often unpredictable, and might in various instances worsen someone's physical condition. 8 As a result, it is preferable to exhaust conservative approaches to treatment, which includes pain management as needed, prior to 9 considering surgical intervention. 10 Id. In his opposition, Plaintiff mentions that he has since had surgery at an unknown date, stating: 11 ". . . [Defendants] delayed so long in getting me the surgery I needed that by the time I finally got 12 it the meniscus had completely work out, and it was bone-on-bone." Dkt. 44 at 5. However, even Northern District of California United States District Court 13 if Plaintiff claims he should have received different treatment for his medical needs—i.e., surgery 14 on his left knee—a difference of opinion as to the urgency and treatment of his medical needs is 15 insufficient, as a matter of law, to establish deliberate indifference. See Toguchi, 391 F.3d at 16 1058, 1059-60; Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). In order to prevail on a claim 17 involving choices between alternative courses of treatment, a plaintiff must show that the course 18 of treatment the doctors chose was medically unacceptable under the circumstances and that they 19 chose this course in conscious disregard of an excessive risk to plaintiff's health. Jackson v. 20 McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (citing Farmer, 511 U.S. at 837). The evidence here 21 establishes that Defendants Beatty, Devers, and Honey chose a course of treatments that was 22 medically accepted. Although the medical treatment Plaintiff received may not have been what he 23 considered proper treatment, he presents no evidence that these aforementioned Defendants were 24 deliberately indifferent to his serious medical needs. Rather, the undisputed factual record shows 25 that they: (1) continuously monitored and treated Plaintiff, specifically for his complaints of left 26 knee/leg pain; (2) modified his prescribed medications and made referrals to consultants when 27 needed; (3) chose medically acceptable courses of treatment while being aware of the risks 28 associated with his health problems (i.e., left knee/leg pain; back pain; and knee injury from the 20 2 1 fall); (4) provided prescription drugs and ordered x-rays and MRIs when needed; (5) referred 2 Plaintiff for a physical therapy evaluation and an orthopedic follow-up appointment; and 3 (6) continued follow up care afterwards to treat his left knee/leg pain until he was transferred to 4 DVI. Thus, Plaintiff has failed to provide evidence regarding an essential element of his Eighth 5 Amendment claim against Defendants Beatty, Devers, and Honey. 6 Accordingly, Plaintiff's Eighth Amendment claim fails as a matter of law. Therefore, the 7 court GRANTS Defendants' motion for summary judgment as to Plaintiff's claim that Defendants 8 Beatty, Devers, and Honey were deliberately indifferent to his medical needs. 9 B. Supervisory Liability Claim Against Defendant Tootell 10 While Plaintiff alleges that his Eighth Amendment rights were violated when Defendants 11 Beatty, Devers, and Honey were allegedly deliberately indifferent to his serious medical needs, the 12 Court notes that Plaintiff has failed to link Defendant Tootell (SQSP's Chief Medical Officer) to Northern District of California United States District Court 13 this Eighth Amendment claim. For example, Plaintiff claims that Defendant Tootell was in charge 14 of the medical staff at SQSP, gave orders to staff to not give anyone more than one-day lay-ins, 15 and denied Plaintiff's requests to meet with her at all levels. Dkt. 1 at 3. Thus, without more, it 16 seems that such allegations do not establish the requisite level of personal involvement. 17 The Court construes Plaintiff's claim against Defendant Tootell as a supervisory liability 18 claim. However, Plaintiff only makes conclusory allegations that Defendant Tootell gave orders 19 to staff to not give anyone more than one-day lay-ins, and that he denied Plaintiff's requests to 20 meet with her at all levels. See id. Conclusions masquerading as facts are insufficient to hold 21 Defendant Tootell accountable. See Marks v. United States, 578 F.2d 261, 263 (9th Cir.1978) 22 ("Conclusory allegations unsupported by factual data will not create a triable issue of fact.") 23 (citation omitted). Furthermore, defendants whose personal involvement is not alleged cannot be 24 held liable for the acts of their subordinates under a theory of respondeat superior or vicarious 25 liability. See Milton v. Nelson, 527 F.2d 1158, 1159 (9th Cir. 1975). Vicarious liability on the 26 part of a supervisory official is not recognized as a basis for liability under the Civil Rights Act. 27 Palmer v. Sanderson, 9 F.3d 1433, 1438 (9th Cir. 1993). A supervisor is liable only when he or 28 she has directly participated in or proximately caused the alleged deprivation. Id. at 1437-38; see 21 2 1 also Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981); May v. Enomoto, 633 F.2d 2 164, 167 (9th Cir. 1980). The law is clear that liability of supervisory personnel must be based on 3 more than merely the right to control others. Monell v. Department of Social Services, 436 U.S. 4 658, 694 n.58 (1978). 5 Here, Plaintiff has not made a causal link between Defendant Tootell and a violation of his 6 constitutional rights. To the extent Defendant Tootell is being sued in her capacity as a 7 supervisory official, Plaintiff fails to raise a material issue of fact against this Defendant because 8 nothing in the record shows that she directly participated in or proximately caused the alleged 9 deprivation. In any event, the Court has found above that Plaintiff's Eighth Amendment claim 10 against Defendant Tootell's subordinates—Defendants Beatty, Devers, and Honey—has failed as 11 a matter of law. Accordingly, Defendants' motion for summary judgment is GRANTED as to 12 Plaintiff's supervisory liability claim against Defendant Tootell. Northern District of California United States District Court 13 V. CONCLUSION 14 For the reasons outlined above, the Court rules as follows: 15 1. Defendants' motion for summary judgment is GRANTED,16 and judgment will be 16 entered in their favor. Dkt. 37. 17 2. The Clerk shall terminate all pending motions and close the file. 18 3. This Order terminates Docket No. 37. 19 IT IS SO ORDERED. 20 Dated: August 31, 2018 21 ______________________________________ YVONNE GONZALEZ ROGERS 22 United States District Judge 23 24 25 26 27 16 The Court's finding that Defendants are entitled to summary judgment as to Plaintiff's 28 Eighth Amendment claim obviates the need to address Defendants' alternative argument in their motion, including the failure to exhaust administrative remedies. 22