Cochran 236701 v. Kubler

1 WO JDN [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT 8 OF ARIZONA [9] 10 Howard Cochran, No. CV 18-00688-PHX-MTL (JFM) 11 Plaintiff, 12 vs. ORDER [13] Nurse Kubler, [14] Defendants. [15] 16 Plaintiff Howard Cochran, who is confined in the Arizona State Prison Complex 17 (ASPC)-Eyman, Rynning Unit, brought this pro se civil rights action under 42 U.S.C. 18 § 1983 against Carl Kubler, a nurse employed at the prison. (Doc. 1.) Before the Court 19 is Defendant’s Motion for Summary Judgment. (Doc. 26.) The Court will grant the 20 Motion and terminate the action. 21 I. Background 22 Plaintiff’s claim arose during his confinement at the ASPC-Lewis prison facility in 23 Buckeye, Arizona. (Doc. 1 at 1.) Plaintiff asserted that he suffered serious back pain, 24 which was documented in his medical records. (Id. at 4.) He was assigned a kitchen job 25 and was required to stand for long periods of time, thereby aggravating his back pain. 26 (Id.) Plaintiff alleged that when he requested a medical release from his kitchen job due 27 to his back pain, Defendant refused to provide the release. (Id.) As a result, when 28 Plaintiff became unable to work due to back pain, he received disciplinary tickets for 1 failure to go to work. (Id.) On screening, the Court determined that Plaintiff’s 2 allegations stated an Eighth Amendment medical care claim against Defendant. (Doc. 7.) 3 Defendant filed his Motion for Summary Judgment, arguing that he was not 4 deliberately indifferent to Plaintiff’s back pain and that Plaintiff did not suffer any injury 5 attributable to Defendant’s acts or omissions. (Doc. 26.) 6 Plaintiff then filed a Dispositive Motion, which was construed as a Motion for 7 Summary Judgment and was stricken by the Court because Plaintiff did not submit a 8 separate statement of facts as required under the Local Rules of Civil Procedure. (Docs. 9 28–29.) The Court issued an Order with the Notice required under Rand v. Rowland, 154 10 F.3d 952, 960 (9th Cir. 1998) (en banc), informing Plaintiff of the summary judgment 11 requirements under Federal Rule of Civil Procedure 56 and the Local Rules and setting a 12 briefing schedule on Defendant’s Motion. (Doc. 30.) Plaintiff responded by filing what 13 he titled a “Motion for Summary Judgment” and he attached documentary evidence, and 14 he filed a Separate Statement of Facts. (Docs. 34–35.) Plaintiff’s Motion was stricken on 15 the grounds that it was untimely, that his Separate Statement of Facts did not reference 16 specific admissible portions of the record, that his exhibits were improperly appended to 17 his Motion rather than to his Statement of Facts, and that the Motion did not cite to 18 paragraphs within the Statement of Facts and instead cited to his attached exhibits. (Doc. 19 36.) Plaintiff did not submit any further filings. 20 II. Consideration of Plaintiff’s Filings as a Response to Defendant’s Motion 21 The Court must “construe pro se filings liberally,” Hebbe v. Pliler, 627 F.3d 338 , 22 342 (9th Cir. 2010), and it must afford a pro se plaintiff “‘the benefit of any doubt’ in 23 ascertaining what claims he ‘raised in his complaint and argued to the district court.’” 24 Alvarez v. Hill, 518 F.3d 1152, 1158 (9th Cir. 2008) (emphasis in original). Specific to 25 summary judgment briefing, the Ninth Circuit has directed that courts must “construe 26 liberally motions papers and pleadings filed by pro se inmates and . . . avoid applying 27 summary judgment rules strictly.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 28 2010); see Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). 1 Although Plaintiff’s Motion for Summary Judgment was untimely and properly 2 stricken for that reason, the Motion was filed within the time provided to file a response 3 to Defendant’s Motion for Summary Judgment. (See Docs. 30, 34.) Plaintiff titled his 4 filing “Motion for Summary Judgment”; however, within this filing, he specifically 5 referred to and responded to arguments presented in Defendant’s Motion for Summary 6 Judgment, and, in support of his opposition, Plaintiff cited to attached evidence that 7 directly refuted one of Defendant’s primary claims. (Doc. 34 at 2.) 8 Thus, after a review of the docket and Plaintiff’s filings, and in light of the above 9 precedent, the Court finds that while Plaintiff failed to strictly comply with the procedural 10 rules governing a separate statement of facts and attachment of exhibits, upon 11 reconsideration, this failure is not a proper basis for striking Plaintiff’s filing to the extent 12 that it constitutes a Response and not a Motion for Summary Judgment.1 Plaintiff’s filing 13 must be construed as a Response to Defendant’s Motion, and the prior Order will be 14 modified accordingly. See City of Los Angeles, Harbor Div. v. Santa Monica, 254 F.3d 15 882, 885 (9th Cir. 2001) (“[a]s long as a district court has jurisdiction over the case, then 16 it possesses the inherent procedural power to reconsider, rescind, or modify an 17 interlocutory order for cause seen by it to be sufficient”) (internal citations omitted). 18 Because the Court concludes that summary judgment for Defendant is warranted 19 even when considering Plaintiff’s Response and attached exhibits, Defendant is not 20 prejudiced by his inability to file a reply in support of his Motion. 21 III. Summary Judgment Standard 22 A court must grant summary judgment “if the movant shows that there is no 23 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 24 of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317 , 322–23 25 (1986). The movant bears the initial responsibility of presenting the basis for its motion [27] 1 Indeed, a review of the docket shows that Defendant also improperly appended 28 his Exhibits to his Motion instead of to his Separate Statement of Facts. (See Doc. 26, Exs.; Doc. 27.) 1 and identifying those portions of the record, together with affidavits, if any, that it 2 believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 3 323. 4 If the movant fails to carry its initial burden of production, the nonmovant need 5 not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 6 1099, 1102–03 (9th Cir. 2000). But if the movant meets its initial responsibility, the 7 burden then shifts to the nonmovant to demonstrate the existence of a factual dispute and 8 that the fact in contention is material, i.e., a fact that might affect the outcome of the suit 9 under the governing law, and that the dispute is genuine, i.e., the evidence is such that a 10 reasonable jury could return a verdict for the nonmovant. Anderson, 477 U.S. at 250 ; see 11 Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The 12 nonmovant need not establish a material issue of fact conclusively in its favor, First Nat’l 13 Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253 , 288–89 (1968); however, it must “come 14 forward with specific facts showing that there is a genuine issue for trial.” Matsushita 15 Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation 16 omitted); see Fed. R. Civ. P. 56(c)(1). 17 At summary judgment, the judge’s function is not to weigh the evidence and 18 determine the truth but to determine whether there is a genuine issue for trial. Anderson, [19] 477 U.S. at 249 . In its analysis, the court does not make credibility determinations; it 20 must believe the nonmovant’s evidence and draw all inferences in the nonmovant’s favor. 21 Id. at 255; Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). The 22 court need consider only the cited materials, but it may consider any other materials in 23 the record. Fed. R. Civ. P. 56(c)(3). Further, where the nonmovant is pro se, the court 24 must consider as evidence in opposition to summary judgment all of the pro se litigant’s 25 contentions that are based on personal knowledge and that are set forth in verified 26 pleadings and motions. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004); see 27 Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995). [28] 1 IV. Relevant Facts 2 At the relevant time, Plaintiff suffered serious back pain as a result of a back 3 injury. (Doc. 1 at 4.) Plaintiff’s prison medical records document that since 2015, 4 Plaintiff was diagnosed with muscle spasms; low back pain; thoracic disc degeneration; 5 polyosteoarthritis (joint pain/inflammation); and intervertebral disc degeneration in the 6 lumbosacral region. (Doc. 26-2 at 3–4.) Plaintiff had a job in the kitchen working on the 7 serving line, and this required him to stand up for long periods of time, thereby 8 exacerbating his back pain. (Doc. 1 at 4; Doc. 35 ¶ 1.) 9 On June 27, 2017, Plaintiff submitted a Health Needs Request (HNR) stating 10 “back pain hurt so bad can’t stand it[,] about to drop [illegible].” (Doc. 34 at 6.) The 11 HNR is signed by a staff member; however, in that portion of the response documenting 12 the “plan of action,” the space is empty. (Id.) 13 On July 10, 2017, Plaintiff was issued a six-month prescription for naproxen 14 (Aleve). (Doc. 26-2 at 5.) The record does not indicate who ordered this prescription. 15 (See id.) 16 On July 12, 2017, Plaintiff submitted another HNR informing medical that his 17 “back hurt very, very bad.” (Id. at 7.) The HNR is signed by a staff member, but there is 18 no plan of action indicated. (Id.) 19 The kitchen staff told Plaintiff that the only way he could be removed from his 20 kitchen job was to get a medical release from kitchen duty due to pain and suffering 21 caused by standing all day. (Doc. 1 at 4.) Therefore, on July 17, 2017, Plaintiff 22 submitted an HNR stating “I would like to be t[aken] out of the kitchen, standing up that 23 long ha[s] my back hurting.” (Doc. 34 at 5.) 24 In response to this HNR, Plaintiff was seen in medical that same day by 25 Defendant. (Doc. 26-2 at 1.) In the objective notes for this encounter, Defendant wrote 26 that Plaintiff was alert and oriented, he ambulated to medical, he was able to voice his 27 concerns, and no acute distress was noted. (Id. at 2.) Defendant assessed “alteration in 28 comfort,” and in the “Plan Notes,” Defendant wrote “discussed with Dr.” (Id. at 4, 6.) 1 There is no record identifying this “Dr.,” nor is there any record of a discussion with a 2 provider, and there was no change to Plaintiff’s medications. (See id. at 4–5.) The 3 medical record documents that Plaintiff was advised to return to medical with an HNR as 4 needed. (Id. at 7.) 5 The July 17, 2017 HNR was returned to Plaintiff, and in the “plan of action” 6 space, it stated “DENIED.” (Doc. 34 at 5.) The signature and date of the response are 7 illegible; however, Plaintiff avers that Defendant denied the request for a release from 8 kitchen duty. (Id.; Doc. 1 at 4; Doc. 34 ¶ 1; Doc. 35 ¶ 3.) 9 On September 15, 2017, Plaintiff submitted an HNR stating that he had lower 10 back pain and that the pain medication—naproxen—was not working. (Doc. 26-4 at 1, 11 5.) In response to this HNR, Plaintiff saw Defendant. (Id.) There were no objective 12 notes made in the medical record for this encounter, and Defendant assessed “alteration 13 in comfort.” (Id. at 2, 4.) The medical record documented that the provider was to be 14 contacted about Plaintiff’s pain medication. (Id. at 7.) The medical record shows no 15 change to Plaintiff’s medication. (Id. at 5.) 16 On September 20, 2017, Plaintiff submitted an HNR requesting Tylenol for back 17 pain. (Doc. 26-6 at 1.) In response to this HNR, he saw Defendant in medical. (Id.) 18 Defendant made no objective notes, and he assessed “alteration in comfort.” (Id. at 2, 4.) 19 Defendant documented in the plan notes “pain med”; however, the medical record shows 20 no medication changes or additions. (Id. at 4–6.) The record documents that Plaintiff 21 was advised to return to medical as needed. (Id. at 7.) 22 On October 4, 2017, Plaintiff submitted an HNR in which he wrote that he is 23 dealing with ongoing back pain and despite being told he was going to see the provider, 24 he had not been scheduled. (Doc. 34 at 8.) The HNR response informed Plaintiff “you 25 are schedule[d] for an appointment.” (Id.) 26 The medical records reflect that on October 11, 2017, a four-month prescription 27 for APAP Tabs/325-Acetaminophen (Tylenol) was ordered for Plaintiff. (Doc. 26-8 at 28 5.) The record does indicate who prescribed this medication. (See id.) 1 On January 13, 2018, Plaintiff submitted another HNR pleading to go to pain 2 management for his back pain because he could hardly walk and it hurt so bad. (Doc. 34 3 at 9.) The HNR response documented that the plan of action was “provider review.” 4 (Id.) 5 The medical records reflect that on February 1, 2018, a four-month prescription 6 for APAP Tabs/325 (Tylenol) was reordered. (Doc. 26-8 at 5.) The record does not 7 indicate who reordered this prescription. (See id.) 8 On February 2, 2018, Plaintiff submitted an HNR stating that his back pain was 9 “off the chart.” (Id. at 1.) In response to this HNR, Plaintiff saw Defendant. (Id.) 10 Defendant noted that Plaintiff was alert and oriented, able to voice his concerns, 11 ambulated to medical, and that there were no signs of acute distress. (Id. at 2.) 12 Defendant assessed “alteration in comfort”; documented in the plan notes “provider 13 review”; and advised Plaintiff to submit an HNR as needed. (Id. at 4, 6, 8.) 14 On March 8, 2018, Plaintiff submitted an HNR stating that he needs to see 15 someone about his back pain; “I am in so much pain please.” (Doc. 34 at 11.) In 16 response to this HNR, Plaintiff saw Defendant. (Doc. 26-10 at 1.) Defendant noted that 17 Plaintiff was alert and oriented, able to voice concerns, ambulated to medical, and that he 18 was grimacing at times. (Id. at 2.) Defendant assessed “alteration in comfort,” and the 19 plan notes were “provider review.” (Id. at 4, 6.) Defendant advised Plaintiff to submit an 20 HNR as needed. (Id. at 8.) 21 The medical records document that on October 13, 2018, Defendant reordered a 22 prescription for APAP Tabs/325 (Tylenol); however, this order was discontinued at the 23 pharmacy. (Doc. 26-11 at 1, 4.) 24 V. Eighth Amendment 25 To support a medical care claim under the Eighth Amendment, a prisoner must 26 demonstrate “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 27 1091, 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). There are 28 two prongs to the deliberate-indifference analysis: an objective standard and a subjective 1 standard. First, a prisoner must show a “serious medical need.” Id. (citations omitted). 2 A “‘serious’ medical need exists if the failure to treat a prisoner’s condition could result 3 in further significant injury or the ‘unnecessary and wanton infliction of pain.’” 4 McGuckin v. Smith, 974 F.2d 1050 , 1059–60 (9th Cir. 1992), overruled on other grounds 5 by WMX Techs., Inc. v. Miller, 104 F.3d 1133 , 1136 (9th Cir. 1997) (en banc) (internal 6 citation omitted). Examples of indications that a prisoner has a serious medical need 7 include “[t]he existence of an injury that a reasonable doctor or patient would find 8 important and worthy of comment or treatment; the presence of a medical condition that 9 significantly affects an individual’s daily activities; or the existence of chronic and 10 substantial pain.” Id. at 1059–60. 11 Second, a prisoner must show that the defendant’s response to that need was 12 deliberately indifferent. Jett, 439 F.3d at 1096 . “Deliberate indifference is a high legal 13 standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). “Mere 14 ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of 15 action.” Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 16 429 U.S. at 105–06). Even gross negligence is insufficient to establish deliberate 17 indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332 , 1334 18 (9th Cir. 1990). Instead, deliberate indifference is only present when a prison official 19 “knows of and disregards an excessive risk to inmate health or safety; the official must 20 both be aware of the facts which the inference could be drawn that a substantial risk of 21 serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 22 825, 837 (1994). “Prison officials are deliberately indifferent to a prisoner’s serious 23 medical needs when they ‘deny, delay or intentionally interfere with medical treatment.’” 24 Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) (quoting Hutchinson v. 25 United States, 838 F.2d 390, 394 (9th Cir. 1988)). Deliberate indifference may also be 26 shown where prison officials fail to respond to a prisoner’s pain or possible medical need. 27 Jett, 439 F.3d at 1096 . 28 Even if deliberate indifference is shown, to support an Eighth Amendment claim, 1 the prisoner must demonstrate harm caused by the indifference. Jett, 439 F.3d at 1096 ; 2 see Hunt v. Dental Dep’t, 865 F.2d 198, 200 (1989) (delay in providing medical 3 treatment does not constitute Eighth Amendment violation unless delay was harmful). 4 VI. Discussion 5 Defendant does not argue that Plaintiff’s back condition and pain did not 6 constitute a serious medical need. (See Doc. 26.) The medical records document 7 Plaintiff’s diagnosed and recognized conditions of back pain, muscle spasms, and disc 8 degeneration, and the HNRs and Plaintiff’s averments show that he suffered serious pain. 9 This record supports that Plaintiff suffered a serious medical need. 10 The analysis therefore turns to the deliberate-indifference prong, and the initial 11 question is whether Defendant knew of Plaintiff’s serious medical need. See Jett, 439 12 F.3d at 1097. Defendant does not argue that he was unaware of Plaintiff’s serious 13 medical need. Further, in light of the medical records documenting Plaintiff’s conditions, 14 and Plaintiff’s HNRs and reports of pain, the inference can be made that Defendant knew 15 of Plaintiff’s serious medical need. 16 The Court next examines whether Defendant’s response to Plaintiff’s serious 17 medical need constituted deliberate indifference. See Jett, 439 F.3d at 1097 . Defendant 18 asserts that he was responsive to Plaintiff’s HNRs regarding back pain and that from July 19 2017 to October 2018, he saw and examined Plaintiff regarding his back pain. (Doc. 26 20 at 5.) The medical records confirm that from July 2017 to October 2018, Defendant saw 21 and examined Plaintiff for back pain; however, those records show that Defendant did not 22 provide medication or treatment of any kind at the encounters during this period. See 23 Ortiz v. City of Imperial, 884 F.2d 1312 , 1314 (9th Cir. 1989) (“access to medical staff is 24 meaningless unless that staff is competent and can render competent care”). The only 25 record of any treatment prescribed by Defendant was on October 13, 2018, when he 26 reordered Tylenol for Plaintiff; however, this order was discontinued without 27 explanation. (Doc. 26-11 at 4.) 28 But Plaintiff’s claim against Defendant is not that Defendant or medical staff were 1 deliberately indifferent when they failed to adequately treat his back pain; rather, Plaintiff 2 specifically alleged that Defendant acted with deliberate indifference when he denied 3 Plaintiff’s request for a medical release from kitchen duty despite being aware of Plaintiff 4 pain and suffering. (Doc. 1 at 4; Doc. 35 ¶¶ 3, 6, 8.) In his Response to Defendant’s 5 Motion, Plaintiff did not expand this claim. (See Docs. 34–35.) Plaintiff expressly stated 6 that this case is not about medication; “Defendant makes it seem like Plaintiff was talking 7 about Tylenol, this is not the case.” (Doc. 35 ¶ 7.) Rather, Plaintiff explained the case 8 was about the harm he suffered from standing and Defendant’s denial of the request to be 9 excused from kitchen duty due to the pain. (Id. ¶¶ 3, 5, 7–8.) 10 As to this specific claim, Defendant argues that there is no record to support 11 Plaintiff’s contention the he requested to be excused from kitchen duty due to back pain, 12 and that within the HNRs that Defendant responded to, Plaintiff did not request to be 13 excused from kitchen duty due to pain. (Doc. 26 at 5.) This argument is belied by the 14 copy of Plaintiff’s July 17, 2017 HNR, which specifically requests that he be taken off 15 kitchen duty because standing hurts his back. (Doc. 34 at 5.)2 And the medical records 16 show that Defendant saw Plaintiff specifically in response to this HNR. (Doc. 26-2 at 1.) 17 Defendant asserts, however, that there is no evidence he had the ability to adjust 18 Plaintiff’s work duties. (Doc. 26 at 5.) Defendant proffers no sworn statement or other 19 evidence setting forth his responsibilities or showing that he was unable to grant a 20 medical release from work duty, nor does Defendant proffer any competent evidence to 21 refute that he was the one who denied Plaintiff’s request. Defense counsel’s argument 22 suggesting that Defendant did not have the ability to adjust Plaintiff’s work duties is not 23 evidence. See Barcamerica Int’l USA Trust v. Tyfield Imps., Inc., 289 F.3d 589 , 593 n.4 [24] 25 2 Of concern is defense counsel’s assertion that “[w]ithin the HNRs that Defendant responded to, Plaintiff does not specifically request to be excused from his kitchen duties 26 due to back pain.” (Doc. 26 at 5.) The face of Plaintiff’s July 17, 2017 HNR, which specifically requested to be taken off kitchen duty due to back pain from standing, shows 27 it was received and responded to by medical; thus, this HNR was in control of Defendant and was available. (Doc. 34 at 5.) The Court reminds defense counsel of his obligations 28 under Federal Rule of Civil Procedure 11(b) and the Local Rules. See Fed. R. Civ. P. 11(b)(4); LRCiv 83.1(f)(1)(A). 1 (9th Cir. 2002) (“arguments and statements of counsel are not evidence”). On this 2 record, there is a question of fact whether Defendant denied Plaintiff’s request to be 3 excused from kitchen duty due to severe back pain caused by standing. 4 Nonetheless, even assuming Defendant improperly denied Plaintiff’s request, this 5 isolated incident does not amount to an Eighth Amendment violation. Generally, for an 6 isolated incident to rise to deliberate indifference, it must be egregious in nature. See 7 McGuckin, 974 F.2d at 1060–61 (repeated failure to properly treat a prisoner or a single 8 failure that is egregious strongly suggests deliberate indifference); Wood, 900 F.2d at 9 1334 (“[i]n determining deliberate indifference, we scrutinize the particular facts and 10 look for substantial indifference in the individual case, indicating more than mere 11 negligence or isolated occurrences of neglect”). “[T]he more serious the medical needs 12 of the prisoner, and the more unwarranted the defendant’s action in light of those needs, 13 the more likely it is that a plaintiff has established ‘deliberate indifference’ on the part of 14 the defendant.” McGuckin, 974 F.2d at 1061 . 15 Here, Plaintiff does not allege that he repeatedly requested and was repeatedly 16 denied a medical release from kitchen duty; the record supports that he made one request 17 on July 17, 2017. Making all inferences in Plaintiff’s favor, in denying Plaintiff’s 18 request, Defendant failed to consider the extent of Plaintiff’s pain or even disregarded 19 Plaintiff’s reports of pain. But this one-time decision in disregard of Plaintiff’s pain was, 20 at most, negligent or grossly negligent, or a misdiagnosis, none of which rises to 21 deliberate indifference. See Broughton, 622 F.2d at 460 ; Wood, 900 F.2d at 1334 ; Garcia 22 v. Katukota, 362 F. App’x 622, 622 (9th Cir. 2010) (unpublished) (“evidence of medical 23 misdiagnosis and of a difference of medical opinion are insufficient to show deliberate 24 indifference”) (citing McGuckin, 974 F.2d at 1059 ). Although the record shows that in 25 the months following Defendant’s denial of Plaintiff’s work-release request, Plaintiff 26 suffered pain, the facts fail to support that his ongoing pain constituted a medical 27 emergency stemming from the July 17, 2017 denial such that Defendant’s decision could 28 be considered so egregious or deficient as to amount to deliberate indifference. Cf. 1 Rasmussen v. Skagit Cnty., 448 F. Supp. 2d 1203 , 1207–08, 1211–12 (W.D. Wash. 2006) 2 (even though the defendant doctor saw jail detainee just once before she died from sepsis 3 due to Staphylococcus aureus pneumonia, because detainee was dead within mere days of 4 the onset of symptoms, the fact that the defendant doctor “could not have stretched his 5 allegedly deliberately indifferent provision of medical care over many months should not 6 now preclude Plaintiffs’ § 1983 claim”); Rosen v. Chang, 811 F. Supp. 754, 756 , 760–61 7 (D. R.I. 1993) (where the defendant misdiagnosed the prisoner’s stomach pains as an 8 upset stomach when he was actually suffering from acute appendicitis, which caused his 9 death, the facts permitted the inference that the defendant’s examination “was so 10 deficient as to manifest a purposeful indifference to [the decedent]’s needs. Courts are 11 reluctant to raise a misdiagnosis to the level of a constitutional violation, but will do so 12 when the . . . outcome of such a misdiagnosis [is] particularly glaring”). Plaintiff alleged 13 that as a result of Defendant’s denial, he received disciplinary tickets after he could no 14 longer report to work due to his back pain. (Doc. 1 at 4.) This, too, fails to constitute a 15 medical emergency or an outcome that would support a finding that Defendant’s July 17, 16 2017 denial was egregious enough to implicate the Eighth Amendment. 17 In short, the facts do not evidence that Defendant’s July 17, 2017 denial of 18 Plaintiff’ request to be excused from kitchen duty due to back pain amounted to 19 deliberate indifference. Accordingly, the Court will grant summary judgment to 20 Defendant as to this claim. 21 IT IS ORDERED: 22 (1) The reference to the Magistrate Judge is withdrawn as to Defendant’s 23 Motion for Summary Judgment (Doc. 26.) 24 (2) The Court’s June 24, 2019 Order (Doc. 36), is modified to clarify that 25 Plaintiff’s filing at Doc. 34, titled “Motion for Summary Judgment,” is construed as a 26 Response to Defendant’s Motion for Summary Judgment and should not be stricken. 27 . . . . 28 . . . . 1 (3) Defendant’s Motion for Summary Judgment (Doc. 26) is granted. 2 (4) The Clerk of Court must enter judgment accordingly and terminate the action. 4 Dated this 30th day of January, 2020. [5] ° WMichak T. Shure Micha T. giburke Michael T. Liburdi 8 United States District Judge [28] -13-