(PC) Montgomery v. Moreno

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 DWAYNE STEVEN MONTGOMERY, No. 2:22-cv-00127-DAD-EFB (PC) 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 J. MORENO, et al., 15 Defendants. [16] 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983 . ECF No. 22. Pursuant to 28 U.S.C. § 1915A(a), the court previously determined 19 that plaintiff’s second amended complaint (SAC) alleged potentially cognizable Eighth 20 Amendment deliberate indifference claims against defendants S. Kirkendall-Cooper1 (licensed 21 vocational nurse) and S. Wong (primary care physician), who were employed at Mule Creek State 22 Prison (MCSP). ECF Nos. 25, 26. Defendants now move for summary judgment under Rule 56. 23 ECF No. 45. Plaintiff has responded, ECF No. 51, and defendants have replied, ECF No. 52. 24 The SAC 25 Allegations Against Kirkendall-Cooper. The SAC alleges that plaintiff was working in 26 the MCSP kitchen on February 12, 2020 when he slipped on food spillage while serving pots and 27 1 Plaintiff refers to this defendant as “K. Kirkendall.” But the court refers to her as she has identified herself in her declaration: “S. Kirkendall-Cooper.” ECF No. 45-5 at 1. [28] 1 pans, fell, and injured himself. ECF No. 22 at 4. A corrections officer (LaMott) called the 2 medical clinic to inform persons there of the injury. Another inmate (Hightower) wheeled 3 plaintiff to the clinic because plaintiff could not walk there on his own. Id. The clinic was 4 closed, but Kirkendall-Cooper answered plaintiff’s yelling and informed him there was no doctor 5 on duty. Id. at 5. Plaintiff told Kirkendall-Cooper he was in severe pain. Id. Plaintiff became 6 verbally belligerent in insisting that he needed to see a doctor. Id.; see also ECF No. 45-1 at 7 n.1 7 (citing excerpts from plaintiff’s deposition). Kirkendall-Cooper assessed that plaintiff’s injuries 8 did not appear to be serious enough to need a doctor, and she gave plaintiff two acetominophen2 9 and a health care service request form 7362. ECF No. 22 at 4. Plaintiff alleges that defendant 10 Kirkendall-Cooper failed to treat plaintiff or document any of these events and caused a 11 substantial delay of plaintiff seeing a doctor for treatment until February 27, 2020, fifteen days 12 after the accident. Id. at 6. 13 Allegations Against Wong. Plaintiff alleges that he submitted multiple requests before 14 seeing defendant Dr. Wong on February 27, 2020. Id. at 6-7. Plaintiff claims that he continued to 15 suffer pain and mental anguish and informed Wong that he was still unable to perform his job 16 duties. Id. He requested a replacement back brace, a wheelchair or walker for mobility 17 assistance, stronger pain medication, and physical therapy. Id. Wong did not provide these, but 18 he did refer plaintiff for an X-ray and gave him a seven-day lay-in until March 7, 2020. Id. 19 Plaintiff submitted additional requests for physician care, but he received no further physician 20 visits at MCSP. Id. 21 Allegations Regarding Care Provided After Leaving MCSP. Plaintiff was transferred to 22 Kern Valley State Prison (KVSP) in about October 2020. Id.; see also ECF No. 51 at 49. 23 According to the SAC, within weeks of his arrival at KVSP plaintiff was provided with a walker, 24 back brace, physical therapy, pain medication, and medical attention. Id. at 7-8. He was 25 diagnosed with arthritis in his lower spine and given better pain medication. Id. at 7. Plaintiff 26 2 The medication Kirkendall-Cooper provided is sometimes identified in the record as “Tylenol” and elsewhere as acetaminophen. The court notes that Tylenol is a form of 27 acetaminophen. See https://www.health.harvard.edu/pain/10-things-you-should-know-aboutcommon-pain-relievers. For the sake of consistency, the court will refer to the medication as 28 acetaminophen. 1 alleges that his injuries had worsened due to the delay in treatment. Id. at 8. 2 The Parties’ Exhibits 3 Defendants submit the declarations of Wong, ECF No. 45-4, Kirkendall-Cooper, ECF No. 4 45-5, and P. Bonacci, a registered nurse who is a consultant program reviewer for the California 5 Correctional Health Care Services (CCHCS), ECF No. 45-6. They also rely on excerpts from 6 plaintiff’s deposition, ECF No. 45-3 (“Pltf. Depo.”), and plaintiff’s medical records pertaining to 7 the care provided at MCSP. 8 In opposition, plaintiff submits his own declaration and the declarations from two of his 9 inmate co-workers, Clark and Hightower. ECF No. 51 at 33, 48. He submits additional medical 10 records: (1) of his medical history preceding his injury, id. at 78-82, 103-121; (2) related to his 11 post-injury treatment at MCSP, id. at 96-102, 136, 141, 170-172; and (3) of treatment plaintiff 12 received after his transfer to KVSP, id. at 189-192. Plaintiff also submits documentation of the 13 claim he submitted to the State Compensation Insurance Fund (the “workers compensation 14 claim”). Id. at 34-46, 142-159, 160-163. 15 Plaintiff’s Deposition Transcript 16 The deposition excerpts submitted by defendants (ECF No. 45-3) contain plaintiff’s 17 testimony about his interaction with Kirkendall-Cooper, at pages 12, 24-27 of the transcript. In 18 accordance with Local Rule 133(j), defendants lodged a copy of the entire transcript with the 19 court. ECF No. 46. The court has reviewed the full transcript and finds that additional pages of 20 the transcript add context to the excerpted pages and are relevant to analysis of plaintiff’s claim 21 against Kirkendall-Cooper for this reason. Accordingly, the court will direct the Clerk to file 22 pages 22, 28, 32, 39, and 40 of the transcript on the public docket of this case. 23 Summary Judgment Standard Under Rule 56 24 Summary judgment is appropriate when the moving party “shows that there is no genuine 25 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 26 Civ. P. 56(a). 27 Under summary judgment practice, the moving party “initially bears the burden of 28 proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 1 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving 2 party may accomplish this by “citing to particular parts of materials in the record, including 3 depositions, documents, electronically stored information, affidavits or declarations, stipulations 4 (including those made for purposes of the motion only), admissions, interrogatory answers, or 5 other materials” or by showing that such materials “do not establish the absence or presence of a 6 genuine dispute, or that the adverse party cannot produce admissible evidence to support the 7 fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at 8 trial, “the moving party need only prove that there is an absence of evidence to support the 9 nonmoving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325 ); see 10 also Fed. R. Civ. P. 56(c)(1)(B). Indeed, summary judgment should be entered, after adequate 11 time for discovery and upon motion, against a party who fails to make a showing sufficient to 12 establish the existence of an element essential to that party’s case, and on which that party will 13 bear the burden of proof at trial. See Celotex, 477 U.S. at 322 . “[A] complete failure of proof 14 concerning an essential element of the nonmoving party’s case necessarily renders all other facts 15 immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as 16 whatever is before the district court demonstrates that the standard for entry of summary 17 judgment, . . ., is satisfied.” Id. at 323 . 18 If the moving party meets its initial responsibility, the burden then shifts to the opposing 19 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita 20 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 21 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 22 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 23 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 24 Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the 25 fact in contention is material, i.e., a fact that might affect the outcome of the suit under the 26 governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., 27 Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626 , 630 (9th Cir. 1987), and that the dispute is 28 genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving 1 party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 2 To establish the existence of a factual dispute, the opposing party need not establish a 3 material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be 4 shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” 5 T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce the 6 pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 7 Matsushita, 475 U.S. at 587 (citations omitted). 8 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the 9 court draws “all reasonable inferences supported by the evidence in favor of the non-moving 10 party.” Walls v. Central Costa County Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the 11 opposing party’s obligation to produce a factual predicate from which the inference may be 12 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), 13 aff’d, 810 F.2d 898 , 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing 14 party “must do more than simply show that there is some metaphysical doubt as to the material 15 facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the 16 nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation 17 omitted). 18 Deliberate Indifference Standard 19 To succeed on an Eighth Amendment claim predicated on deliberate indifference to a 20 need for medical care, a plaintiff must establish that: (1) she had a serious medical need; and (2) 21 the defendant’s response to that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091 , 22 1096 (9th Cir. 2006); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical 23 care need exists if the failure to treat the condition could result in further significant injury or the 24 unnecessary and wanton infliction of pain. Jett, 439 F.3d at 1096 . Deliberate indifference may 25 be shown by the denial, delay, or intentional indifference with treatment, or by the way in which 26 care is provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). 27 To act with deliberate indifference, a prison official must both be aware of facts from 28 which the inference could be drawn that a substantial risk of serious harm exists, and he must also 1 draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant will be 2 liable for violating the Eighth Amendment if he knows that plaintiff faces “a substantial risk of 3 serious harm and disregards that risk by failing to take reasonable measures to abate it.” Id. at 4 847. A physician need not fail to treat an inmate altogether in order to violate that inmate’s 5 Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312 , 1314 (9th Cir. 1989). A 6 failure to competently treat a serious medical condition even if some treatment is prescribed, may 7 constitute deliberate indifference in a particular case. Id. 8 “Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice,’ will not support an Eighth 9 Amendment claim. Broughton v. Cutter Laboratories, 622 F.2d 4548 , 460 (9th Cir. 1980) (citing 10 Estelle, 429 U.S. at 105-06 ); see also Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). 11 “Rather, to prevail on a claim involving choices of treatment, a prisoner must show that the 12 chosen course of treatment ‘was medically unacceptable under the circumstances,’ and was 13 chosen ‘in conscious disregard of an excessive risk to [the prisoner’s] health.’” Id. (quoting 14 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). Further, a plaintiff must have suffered 15 some type of pain or harm that is more than de minimis in order to implicate the Eighth 16 Amendment. See, e.g., Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th 17 Cir. 1985) (“delay of surgery, without more, is insufficient to state a claim of deliberate medical 18 indifference … unless the denial was harmful”). 19 Evidentiary Record And Claim Analysis 20 Kirkendall-Cooper 21 The Evidentiary Record For The Claim Against Kirkendall-Cooper. The parties broadly 22 agree regarding the events of February 12, 2020. It is undisputed that after plaintiff fell in the 23 kitchen he was taken to the clinic in a wheeled walker belonging to his co-worker Hightower. 24 They agree that plaintiff was verbally belligerent when Kirkendall-Cooper answered at the clinic 25 window, and that Kirkendall-Cooper gave plaintiff two acetaminophen but she did not summon 26 the on-call physician because she assessed that plaintiff’s injury did not present an emergency. 27 ECF No. 45-1 at 7; ECF No. 45-3 at 7-8; ECF No. 45-5 at 3-4 ¶¶ 13-14; ECF No. 51 at 13-14, 2328 24, 48; ECF No. 52 at 2-3. Plaintiff testifies, and his witness Hightower declares, that plaintiff 1 informed Kirkendall-Cooper he had a work-related injury, and defendants do not dispute that the 2 work-related nature of plaintiff’s injury was known to Kirkendall-Cooper. See ECF No. 45-3 at 5 3 ll. 19-20; id. at 6 ll.18-20; ECF No. 51 at 48. Defendants do not dispute that Kirkendall-Cooper 4 told plaintiff he would be scheduled to see someone the next day. ECF No. 45-3 at 6 ll.23-24; id. 5 at 48 (Hightower’s declaration). 6 At plaintiff’s request, Kirkendall-Cooper gave him two blank forms to fill out: (1) a “7362 7 form” which is used by inmates to request medical attention; and (2) a “7219 form” which is used 8 to document work-related injuries. ECF No. 45-3 at 6 ll.12-20. Plaintiff filled out the 7362 form 9 and returned it to Kirkendall-Cooper. ECF No. 45-1 at 13; ECF No. 45-4 at 2 ¶ 3; ECF No. 51 at 10 3 ¶ 3. His testimony is that Kirkendall-Cooper should have documented his injury as work11 related on the 7362 form, or perhaps that a properly-completed 7219 form should have been 12 attached to the 7362 form, which would have led to immediate physician attention, likely within 13 24 hours. ECF No. 51 at 7, 25; Pltf. Depo. at 22 ll.10-18; id. at 39 ll.9-15, id. at 40 ll.3-4. 14 Kirkendall-Cooper did not sign the 7362 form that plaintiff filled out and signed on 15 February 12, 2020. ECF No. 45-4 at 7. Instead, another nurse (Cox) signed the form the next 16 day, on February 13. Either Cox or Kirkendall-Cooper made a notation on the form for “RN next 17 day.” Plaintiff was indeed seen by nurse Cox on February 14. ECF No. 45-4 at 2 ¶ 4; id. at 9-19. 18 Thus, this first 7362 form led to a nursing assessment rather than immediate physician attention. 19 ECF No. 45-6 at 3 ¶¶ 9-10; id. at 10. The parties agree that plaintiff submitted three more form 20 7362 requests for medical attention between February 15 and 25, 2020. ECF No. 45-4 at 2-3 ¶¶ 21 5-9; id. at 21, 24, 38. Nurses (Cox and Klatt) assessed those requests until the final 7362 request 22 apparently led to plaintiff’s encounter with physician Wong on February 27, 2020. ECF No. 45-1 23 at 8-9; ECF No. 45-4 at 41-47. 24 Plaintiff also filled out the 7219 form and returned it to Kirkendall-Cooper. Pltf. Depo. at 25 28 ll.10-12. Defendants do not appear to dispute plaintiff’s contention that Kirkendall-Cooper did 26 not complete the 7219 form or place it in plaintiff’s records. Plaintiff testifies that Kirkendall27 Cooper was required to document his work-related injury, especially because he was unable to 28 move about on his own after his fall. Pltf. Depo. at 32 ll.15-20. He contends that Kirkendall1 Cooper’s omission caused his workers compensation claim to be denied. 2 Analysis Of The Deliberate Indifference Claim Against Kirkendall-Cooper. The 3 deliberate indifference claim against Kirkendall-Cooper that survived screening is that she failed 4 to document plaintiff’s injuries, which allegedly delayed plaintiff’s ability to obtain treatment. 5 ECF No. 25 at 6; see also Alley v. Saelee, No. 2:22-cv-0661 DB P, 2023 WL 3582636 , at *3, 6 6 (E.D. Cal. May 22, 2023) (screening in a deliberate indifference claim against a defendant who 7 allegedly denied inmate’s request for further medical attention and “failed to document his 8 injuries on a CDCR 7219 Form”); Downs v. Jiminez, No. 2:22-cv-01021-AC, 2023 WL 3063335 , 9 at *3 (E.D. Cal. Apr. 24, 2023) (deliberate indifference claim stated by allegation that a nurse’s 10 failure to document injuries delayed the inmate’s ability to obtain treatment). On summary 11 judgment, there must be evidence that the failure to document adversely affected treatment and 12 caused actual harm. Bossardet v. Centurion Healthcare, No. CV-21-00179-TUC-RM, 2024 WL 13 4534618, at *26 (D. Ariz. Mar. 27, 2024) (a physician’s failure to document pain “may have been 14 dishonest and unprofessional” but did not rise to deliberate indifference because it did not alter 15 the course of treatment; a nurse’s false report of a patient encounter might have supported a 16 deliberate indifference claim if actual harm had resulted). 17 Plaintiff argues two adverse consequences followed from Kirkendall-Cooper’s 18 documentation omissions: (1) plaintiff had to wait 15 days to see physician Wong, instead of 19 having a visit within 24 hours; and (2) plaintiff’s workers compensation claim was denied.3 20 As for the first alleged consequence, plaintiff’s claim fails because he cannot show that 21 Kirkendall-Cooper’s handling of the form 7362, filled out by plaintiff on February 12 to request 22 medical treatment, caused delay in receiving a physician’s attention. Kirkendall-Cooper 23 obviously did place that first 7362 form into the queue for response, because Cox completed the 24 form on February 13 and then made a nursing assessment on February 14. Cox or Klatt answered 25 plaintiff’s next three 7362 requests until plaintiff’s encounter with Wong on February 27. Given [26] 27 3 As noted above, plaintiff refers to two forms that were provided to him by KirkendallCooper. One, form 7362, is used to request medical treatment. The other, form 7219, is used to 28 document that an injury is work related. 1 the four intervening nursing reviews and/or assessments, plaintiff cannot show that Kirkendall2 Cooper’s handling of the first 7362 form on February 12 was the reason plaintiff did not see 3 Wong until February 27, or that plaintiff suffered any harm because of the way that Kirkendall4 Cooper handled the first 7362 form. 5 As for the second alleged consequence, defendants do not dispute that plaintiff submitted 6 a workers compensation claim that was denied because of “[t]he lack of substantial medical 7 documentation in [your] file outlining the causal relationship between the alleged injury and your 8 employment.” ECF No. 51 at 161. Defendants argue the workers compensation denial is 9 irrelevant to plaintiff’s Eighth Amendment claim, ECF No. 52 at 2-3 & n.2. Plaintiff, on the 10 other hand, surmises that the workers compensation claim would have allowed him to “receive 11 the medical treatment that he was not receiving from the defendants at the prison.” ECF No. 51 12 at 17. To the extent plaintiff attempts to base his Eighth Amendment deliberate indifference 13 claim on the denial of his workers compensation claim, it fails as a matter of law because the 14 California Workers’ Compensation Appeals Board has exclusive authority over claims for the 15 recovery of workers compensation, or any related right or liability. Cal. Labor Code § 5300 (a); 16 see Smith v. Allison, No. 2:22-cv-0306 KJM AC P, 2022 WL 1271378 , at *3 (E.D. Cal. Apr. 28, 17 2022) (federal district courts have “refused to entertain claims involving worker’s compensation 18 benefits, brought by inmate workers who have been injured in prison”). The court also notes that 19 plaintiff has not alleged compliance with the California Government Claims Act. See Terry v. 20 Smith, No. 13-cv-01227-EMC, 2016 WL 7033738 , at *14 (N.D. Cal. Dec. 2, 2016) (“a claim of 21 intentional concealment or fraud in the preparation of [a] worker’s compensation claim form that 22 might not fall within the exclusive remedy of the worker’s compensation scheme … must be 23 dismissed because [plaintiff] indisputably failed to comply with the California Government 24 Claims Act, which requires presentation of the claim to the California Victim Compensation and 25 Government Claims Board” within six months of accrual of the cause of action). 26 To be sure, “[t]he availability of a remedy under state workers’ compensation law does 27 not preclude a § 1983 claim” that is predicated on deliberate indifference to a plaintiff’s safety 28 that results in serious injury, see, e.g., Morgan v. Morgensen, 465 F.3d 1041, 1044 (9th Cir. 2006) 1 (citation omitted). But plaintiff here alleges that Kirkendall-Cooper’s failure to assist him in 2 pursuing a workers compensation claim by not properly completing form 7219 to document that 3 the injury was work related is sufficient to show an Eighth Amendment violation. The failure of 4 an employer to properly document that an injury was work-related may have relevance to the 5 merits of plaintiff’s worker’s compensation claim, but plaintiff has not shown that Kirkendall6 Cooper acted with deliberate indifference to plaintiff’s serious medical needs in not completing 7 that documentation relevant to a request for treatment. Rather, Kirkendall-Cooper had plaintiff 8 complete and sign the form 7362, which is used to document a request medical treatment, and 9 placed that documentation in the queue for further action, and the next day nurse Cox signed the 10 form and subsequently made a nursing assessment. 11 Plaintiff has not shown any genuine dispute as to whether Kirkendall-Cooper caused any 12 material delay or denial of treatment by failing to properly document plaintiff’s injury and/or 13 need for medical attention. For this reason, defendants’ motion for summary judgment must be 14 granted as to the deliberate indifference claim against Kirkendall-Cooper. 15 Wong 16 The Evidentiary Record For The Claim Against Wong. Preliminarily, the parties agree 17 that plaintiff had some degree of mobility impairment at the time of his injury and was using a 18 cane while working in the kitchen performing such tasks as carrying pots and pans. ECF No. 4519 1 at 7; see also ECF No. 51 at 14 (plaintiff used his cane to knock on the clinic door). Plaintiff’s 20 mobility impairment was apparently due to a vascular deformation of his right foot, and which 21 had obvious effects on his gait. ECF No. 51 at 27; id. at 184, 186 (medical providers at KVSP 22 assessed that plaintiff’s right foot deformity throws off his gait, requires that he use a walker, and 23 causes a lot of pain). He had had surgery for this condition in 2008, and in 2011 and 2012 he had 24 been limited to sedentary jobs. Id. at 78-82, 103-121. Plaintiff was apparently cleared for kitchen 25 work in 2019. Id. at 17, 84-87. 26 Wong declares that on February 27, 2020 he saw plaintiff for his complaint of “right hip 27 pain” and that the right hip appeared normal and X-rays later showed no evidence of fracture of 28 osteonecrosis, and that bone mineralization was within normal limits. ECF No. 45-4 at 3 ¶ 10. 1 Wong’s declaration consistently describes plaintiff’s medical condition as right hip pain, but all 2 four of the 7362 requests plaintiff submitted in February 2020 stated that he had injured his back; 3 three of the 7362 requests stated that plaintiff had fallen while working in the kitchen and one 4 7362 request mentions plaintiff’s mobility limitations; only two of these 7362 requests also 5 mention the right side of plaintiff’s hip. Id. at 7, 21, 24, 38. Wong’s declaration does not 6 acknowledge plaintiff’s other complaints. The parties agree that Wong ordered an X-ray of the 7 right hip, acetaminophen, and a seven day lay-in. 8 The parties’ principal dispute regarding the February 27 encounter with Wong is that 9 plaintiff claims Wong failed to document his requests for physical therapy, back brace,4 or a 10 wheelchair. ECF No. 45-1 at 9; ECF No. 45-4 at 3-4 ¶ 10; ECF No. 51 at 6-7. Wong declares 11 that plaintiff did not make these requests, but plaintiff points out that he had been seeking durable 12 medical equipment appliances for some time and he maintains he therefore took this opportunity 13 to renew his requests. ECF No. 51 at 7. Whether or not plaintiff did make such requests is 14 obviously not a question that can be resolved on summary judgment. Plaintiff claims to have also 15 questioned Wong about the removal of the previous work restriction that had prohibited kitchen 16 work due to plaintiff’s mobility issues. Id. at 17. 17 Wong does not dispute that he had no further encounters with plaintiff after February 27. 18 Yet the parties agree that plaintiff submitted two additional 7362 requests for medical attention in 19 March 2020 in which he complained of pain including “severe chronic pain in my right foot and 20 lower back,” and that he was seen by a nurse (Omari) who referred him to Wong for pain 21 medications although apparently there was no follow-up on the referral. ECF No. 45-4 at 4 ¶¶ 22 11-15; id. at 50-56. On April 17, 2020, a physical therapist (Negrete) recommended continued 23 use of a McKesson abdominal binder.5 Id. at 4 ¶ 16; id. at 65. Negrete did not provide actual 24 physical therapy, only a consultation. Plaintiff submits documentation of an additional [25] 4 Plaintiff agrees he did have a back brace, but it was old and worn out. ECF No. 51 at 26 28. 27 5 This appears to be a wrap-around compression panel designed to support the abdomen. See https://mms.mckesson.com/product/890528/McKesson-Brand-925. [28] 1 consultation with Negrete on June 24, 2020. ECF No. 51 at 137. Plaintiff complained to Negrete 2 on June 24 that his “‘back hurts, can hardly walk, can’t stand up straight,’” and Negrete opined 3 that plaintiff’s symptoms were “consistent with Lumbar Extension Syndrome.” Id.; see also 4 https://my.clevelandclinic.org/health/articles/22396-lumbar-spine (the lumbar spine is in the 5 lower back). Negrete’s recommendation was that plaintiff “would likely benefit from having a 6 rolling walker for ambulation purposes.” Id. As noted, plaintiff did not receive a walker until 7 after he left MCSP. Plaintiff claims that Negrete also recommended a back brace, but plaintiff 8 did not receive a new back brace from MCSP. Id. at 29. Wong does not indicate that he 9 reviewed the two 7362 requests submitted in March 2020 or Negrete’s recommendations made in 10 April 2020 and June 2020, even though Wong maintains that he “did not ignore or fail to provide 11 Plaintiff with the medically necessary treatment for the conditions that are the subject of this 12 lawsuit,” and that the care plaintiff received complied with CCHCS Care Guidelines. ECF No. 13 45-4 at 4-5 ¶¶ 11-18. 14 Wong also does not dispute plaintiff’s evidence regarding the medical attention plaintiff 15 received after his arrival at KVSP in October 2020. Plaintiff was issued a back brace and walker 16 shortly after he was transferred. ECF No. 51 at 29-30, 165-169; see also id. at 184 (as of 17 November 13, 2020 plaintiff “requires a walker for ambulatory stability”). Plaintiff’s medical 18 provider at KVSP declined plaintiff’s request for gabapentin, but did prescribe suboxone instead 19 of acetaminophen. Id. at 186. Plaintiff’s primary care physician at KVSP also prescribed 20 physical therapy and ordered a more comprehensive set of X-rays than those ordered by Wong. 21 Id. at 30. Plaintiff maintains the physical therapy he received at KVSP was immediately helpful 22 in reducing pain and increasing his mobility. Id. Plaintiff claims the more comprehensive X-rays 23 showed that plaintiff’s lower back was in worse condition than had been diagnosed based on 24 Wong’s X-ray of the right hip and pelvis, but the medical and radiology records submitted by 25 plaintiff do not unequivocally support his assertion regarding the X-rays. Id. A KVSP 26 assessment apparently conducted in June 2021 was that an X-ray of plaintiff’s back showed 27 “moderate osteoarthritis …. This would not be unexpected in a 57-year-old. This should not be 28 disabling.” Id. at 179. Plaintiff was nevertheless given a walker by KVSP officials, indicating 1 such a need regardless of the X-rays. 2 Analysis Of The Deliberate Indifference Claim Against Wong. The screened-in deliberate 3 indifference claim against Wong alleges that he “was aware of plaintiff’s pain and inability to 4 walk without a walker, and with reckless disregard for plaintiff’s deteriorating condition, denied 5 him basic medical necessities, including pain medication, physical therapy, and a walking 6 apparatus, as well as any follow-up care after his February 27, 2020 visit.” ECF No. 25 at 5-6 7 (footnote omitted). Defendants’ motion addresses some, but not all, of the issues identified in this 8 screened-in deliberate indifference claim. 9 Wong makes the incomplete argument that he was not deliberately indifferent to 10 plaintiff’s complaint of “right hip pain.” ECF No. 45-1 at 14-15. On the evidentiary record 11 before the court, plaintiff’s medical condition was not limited to right hip pain, and his deliberate 12 indifference claim is clearly premised on the larger context of his injury having occurred while he 13 worked in the kitchen with some degree of mobility impairment with only a cane for mobility 14 assistance, and that his injury affected his back as well as his right hip. The four 7362 requests 15 plaintiff submitted in February 2020 all stated that plaintiff had thrown out his back (three 16 mentioned this happened while he worked in the kitchen), but only two of the requests also 17 mention the right side of plaintiff’s hip. ECF No. 45-4 at 7, 21, 24, 38. One of the 7362 requests 18 plaintiff submitted in March 2020, which apparently received no response from Wong, asked for 19 pain medication because plaintiff was experiencing “severe chronic pain in my right foot and 20 lower back.” Id. at 56. Nothing in the record shows that Wong addressed plaintiff’s right foot 21 and lower back pain, or the work-related nature of his injury, or whether he might need additional 22 assistive mobility equipment or physical therapy. 23 As for the dispute about whether plaintiff requested physical therapy, back brace, or a 24 wheelchair during the February 27 visit with Wong, plaintiff has shown a plausible factual issue 25 as to whether he made these requests. The question whether Wong failed to accurately document 26 such requests, standing alone, may not support an independent Eighth Amendment claim, but 27 coupled with a course of treatment that was medically inappropriate would suffice. Here, a 28 failure to document plaintiff’s requests has relevance to plaintiff’s claim of deliberate indifference 1 only if there is also a triable issue whether Wong’s course of treatment was medically 2 inappropriate. 3 Aside from the documentation question, and regardless whether or not plaintiff requested 4 physical therapy, back brace, or a wheelchair from Wong during their February 27 visit, there is 5 evidence that such considerations were suggested by the circumstances of plaintiff’s injury and 6 his medical history including the vascular deformation of his right foot that affected his mobility. 7 Medical providers at KVSP assessed that plaintiff’s right foot deformity throws off his gait, 8 requires that he use a walker, and causes a lot of pain. ECF No. 51 at 184, 186. At times in the 9 past, plaintiff had been limited to sedentary jobs, yet as of February 12, 2020 he was assigned to 10 the scullery job and his only assistive device was a cane. This evidence demonstrates a triable 11 factual issue whether it was medically inappropriate to fail to provide additional mobility 12 equipment or other medical necessities after plaintiff’s fall at work, especially in anticipation of 13 his return to the scullery job. 14 Wong’s declaration that plaintiff “received ongoing medical evaluations and treatment 15 regarding his complaint of right hip pain” is sufficiently disputed to create another genuine 16 factual issue. See ECF No. 45-4 at 5 ¶ 17. Wong himself does not appear to have provided 17 further care after the February 27, 2020 visit. He does not claim to have reviewed or responded 18 to the two 7362 requests plaintiff made in March 2020, or to have reviewed or acted on Negrete’s 19 consultations in April 2020 and June 2020, including Negrete’s recommendation for a rolling 20 walker. Id. at 4-5; see ECF No. 51 at 137. Plaintiff received physical therapy, a new back brace, 21 and a walker only after he transferred to KVSP in October 2020, more than eight months after his 22 injury. See Morris v. Mitchell, No. 3:23-cv-00042-ART-CSD, 2025 WL 732356 , at *8-9 (D. 23 Nev. Mar. 6, 2025) (a delay in providing necessary medical equipment causing further injury such 24 as increased pain, can amount to deliberate indifference, and “a reasonable juror could find that 25 Plaintiff needed a working mobility device”). 26 Defendants do address the pain medication Wong provided to plaintiff. ECF No. 45-1 at 27 14; ECF No. 45-4 at 5 ¶ 17. Like Wong, plaintiff’s medical provider at KVSP also declined 28 plaintiff’s request for gabapentin, but the KVSP officials did prescribe suboxone instead of 1 acetaminophen. ECF No. 51 at 186. Plaintiff’s evidence establishes a genuine factual issue about 2 whether Wong’s treatment of plaintiff’s pain was medically inappropriate. 3 The question then becomes whether the factual issues surrounding Wong’s treatment of 4 plaintiff’s condition might support a finding of deliberate indifference – i.e., whether the 5 treatment was medically unacceptable under the circumstances and chosen in conscious disregard 6 of an excessive risk to plaintiff’s health. Toguchi, 391 F.3d at 1058 . Hewing to Toguchi’s 7 description of the deliberate indifference standard,6 plaintiff has shown genuine issues of material 8 fact that create more than a metaphysical doubt whether Wong’s care was deliberately indifferent. 9 Construing in plaintiff’s favor all reasonable inferences that are supported by the evidence of 10 record, Wong’s motion for summary judgment must be denied because there remain genuine 11 issues of material fact as to whether Wong was deliberately indifferent in the care that Wong 12 provided to plaintiff, including failing to provide adequate pain medication, physical therapy, a 13 walking apparatus, and follow-up care. 14 Qualified Immunity 15 Defendants argue they are entitled to qualified immunity because: (1) there has been no 16 constitutional violation; and (2) even if a constitutional violation occurred, reasonable medical 17 officials would not have understood at the time that the care provided to plaintiff was 18 constitutionally deficient. ECF No. 45-1 at 15-16; ECF No. 52 at 6 (citing Harlow v. Fitzgerald, 19 6 Deliberate indifference is often described as more than negligence or even gross negligence. See, e.g., Lemire v. California Dept. of Corrections and Rehabilitation, 726 F.3d 20 1062, 1080 (9th Cir. 2013); Atayde v. Napa State Hospital, No. 1:16-cv-00398-DAD-SAB, 2022 WL 2392619 , at *4-5 (E.D. Cal. July 1, 2022). According to the California Supreme Court, gross 21 negligence is either 1) a want of even scant care, or 2) an extreme departure from the ordinary standard of conduct. City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754 , 62 Cal. 22 Rptr. 3d 527, 161 P.3d 1095 . Also, gross negligence “falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind.” Gore v. 23 Board of Medical Quality Assurance (1980) 110 Cal. App. 3d 184, 197 , 167 Cal. Rptr. 881 (citations and internal quotation marks omitted). 24 At least one court has noted a lack of clarity about how the deliberate indifference standard differs from gross negligence. Dat Thank Luong v. Napa State Hospital, 411 F. Supp. 25 3d 615, 635 (N.D. Cal. 2019) (concluding that “[f]or purposes of the instant case, there may not be any material difference between the two standards as a practical matter”), reversed in part on 26 other grounds and appeal dismissed in part by Luong v. Napa State Hospital, 831 F. App’x 855 (9th Cir. 2020); see also Ocampo v. Corizon, LLC, No. 20-35990, 2022 WL 229093 , at *3 (9th 27 Cir. Jan. 25, 2022) (concluding that any difference between gross negligence as defined in Idaho’s tort claims statute and the Eighth Amendment deliberate indifference standard was 28 immaterial in the circumstances of that case). [1] 457 U.S. 800, 818 (1982)). 2 Qualified immunity protects government officials from civil liability where “their conduct 3 does not violate clearly established statutory or constitutional rights of which a reasonable person 4 would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotations omitted). A 5 defendant is entitled to qualified immunity “unless a plaintiff pleads facts showing (1) that the 6 official violated a statutory or constitutional right, and (2) that the right was “clearly established” 7 at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731 , 735 (2010). “Qualified 8 immunity gives government officials breathing room to make reasonable but mistaken judgments 9 about open legal questions.” Id. at 743. 10 Showing the unlawfulness of the conduct was “clearly established” requires a showing 11 that “at the time of the officer’s conduct, the law was sufficiently clear that every reasonable 12 official would understand that what he is doing is unlawful.” Id. (citation and internal quotation 13 marks omitted); see also Kisela v. Hughes, 540 U.S. 100, 105 (2018) (per curiam) (“An officer 14 ‘cannot be said to have violated a clearly established right unless the right’s contours were 15 sufficiently definite that any reasonable official in the defendant’s shoes would have understood 16 that he was violating it.’” (citation omitted)). “While there does not have to be ‘a case directly on 17 point,’ existing precedent must place the lawfulness of the [conduct] ‘beyond debate.’” 18 Villanueva v. California, 986 F.3d 1158 , 1165 (9th Cir. 2021) (alteration in original) (quoting 19 Wesby v. District of Columbia, 583 U.S. 48 , 64, 138 S. Ct. 577, 590 (2018)). 20 The Supreme Court has warned courts not to define clearly established law “at too high a 21 level of generality.” City of Tahlequah v. Bond, 595 U.S. 9 , 12 (2021) (per curiam); Kisela, 540 22 U.S. at 104. “[T]he farther afield existing precedent lies from the case under review, the more 23 likely it will be that the officials’ acts will fall within that vast zone of conduct that is perhaps 24 regrettable but is at least arguably constitutional.” Hamby v. Hammond, 821 F.3d 1085 , 1095 25 (9th Cir. 2016). But “officials can still be on notice that their conduct violated established law 26 even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002) (explaining that 27 “a general constitutional rule already identified in the decisional law may apply with obvious 28 clarity to the specific conduct in question, even though ‘the very action in question has [not] 1 previously been held unlawful’”) (alteration in original) (quoting United States v. Lanier, 520 2 U.S. 259 , 271 (1997)). Whether such a clearly established right exists is “a question of law” for 3 the court to decide. Morales v. Fry, 873 F.3d 817, 819 (9th Cir. 2017)). 4 The court does not reach Kirkendall-Cooper’s qualified immunity argument because it is 5 recommending that her motion for summary judgment be granted on its merits. Defendants have 6 not shown that Wong is entitled to qualified immunity because they have not shown that a 7 reasonable physician would not have understood the need to address plaintiff’s more extensive 8 medical needs including his right foot and back pain, his mobility impairment, his need for 9 additional assistive devices, and the work-related nature of his injury. See Stewart v. Aranas, 32 10 F.4th 1192 , 1195-1196 (9th Cir. 2022) (prison officials who adopted “wait and see” treatment 11 plan that was clearly ineffective were not entitled to qualified immunity; effective treatment was 12 immediately provided upon transfer to a different facility and this was not a mere disagreement 13 about appropriate care); see also Dennis v. Kernan, No. 2:16-cv-00542 DAD AC P, 2023 WL 14 2839402, at *12 (E.D. Cal. Apr. 7, 2023) (nurse practitioner not entitled to qualified immunity 15 because no reasonable person would have believed it was constitutional to minimize or fail to 16 record plaintiff’s symptoms which may have interfered with treatment or prevented surgery). For 17 all these reasons, Wong’s argument that he is entitled to qualified immunity must be denied. 18 Order and Recommendation 19 Accordingly, it is ORDERED that the Clerk shall docket the following pages of the 20 transcript of plaintiff’s deposition, lodged as noticed at ECF No. 46, as a separate docket entry: 21 Pages 22, 28, 32, 39, and 40. 22 For the foregoing reasons, IT IS HEREBY RECOMMENDED that defendants’ motion 23 for summary judgment (ECF No. 45) be GRANTED IN PART AND DENIED IN PART and 24 that: 25 1) summary judgment be entered as to plaintiff’s claim against Kirkendall-Cooper; and 26 2) summary judgment be denied as to plaintiff’s claim against Wong. 27 These findings and recommendations are submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within fourteen days 1 | after being served with these findings and recommendations, any party may file written 2 || objections with the court and serve a copy on all parties. Such a document should be captioned 3 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 4 | within the specified time may waive the right to appeal the District Court’s order. Turner v. 5 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 95 F.2d 1153 (9th Cir. 1991). [6] 7 | Dated: May 29, 2025 _Lattiel Pema UNITED STATES MAGISTRATE JUDGE [10] 1]