Fox v. Uribe

[7] 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA [10] LEONARD JAMES FOX, 11 Case No. 18-cv-07221 BLF (PR) Plaintiff, 12 ORDER GRANTING v. DEFENDANTS’ MOTION FOR 13 SUMMARY JUDGMENT AFTER ADDITIONAL BRIEFING 14 T. URIBE, et al., 15 Defendants. (Docket No. 33) [17] 18 Plaintiff, a California inmate, filed the instant pro se civil rights action pursuant to [19] 42 U.S.C. § 1983 against medical personnel at Salinas Valley State Prison (“SVSP”). The 20 amended complaint is the operative complaint in this action. Dkt. No. 15.1 Finding the 21 amended complaint stated a cognizable claim under the Eighth Amendment for deliberate 22 indifference to serious medical needs, the Court ordered service upon Defendants.2 Dkt. 23 No. 16. Defendants Dr. Nguyen, Dr. K. Kumar, and Dr. B Brizendine filed a motion for [25] 1 All page references herein are to the Docket pages shown in the header to each document and brief cited, unless otherwise indicated. [26] 2 A deliberate indifference to safety claim was dismissed for failure to state a claim. Dkt. [27] No. 16 at 7. Defendants P. Sullivan, Law Fu, Dr. F. Tuvera, and Tereasa Uribe were 1 summary judgment on the grounds that the undisputed material facts show they did not 2 violate Plaintiff’s constitutional rights and based on qualified immunity. Dkt. No. 33.3 3 Plaintiff did not file an opposition although given an opportunity to do so. After 4 considering all the papers, including Plaintiff’s verified amended complaint,4 the Court 5 granted Defendants’ summary judgment motion. Dkt. No. 38. 6 The Court later granted Plaintiff’s motion for reconsideration, which Defendants 7 did not oppose, and reopened the action to give Plaintiff another opportunity to file an 8 opposition. Dkt. No. 49. Plaintiff filed an opposition consisting of two pages, Dkt. No. 9 50,5 and Defendants filed a reply, Dkt. No. 51. 10 For the reasons discussed below, Defendants’ motion is GRANTED. [11] 12 DISCUSSION 13 I. Statement of Facts 14 A. Plaintiff’s Allegations 15 This action is based on Plaintiff’s claim that Defendants acted with deliberate 16 indifference to his serious medical needs with respect to pain management, causing him to 17 suffer daily extreme pain. Dkt. No. 15 at 4. On November 10, 2016, Plaintiff suffered a 18 second degree burn to his left foot. Id. He was provided with crutches upon his return [19] 3 In support of their motion, Defendants provide declarations from Defendant Dr. Thao [20] Nguyen with exhibits, Dkt. No. 33-1, Defendant Dr. Brittany Brizendine, Dkt. No. 33-2, and Defendant Dr. Reetika Kim Kumar with exhibits, Dkt. No. 33-3. [21] 4 A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is [22] based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454 , 460 & nn.10-11 (9th Cir. 1995) (treating plaintiff's [23] verified complaint as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746 , plaintiff stated under penalty of perjury that contents were true and [24] correct, and allegations were not based purely on his belief but on his personal knowledge); see also Keenan v. Hall, 83 F.3d 1083 , 1090 n.1 (9th Cir. 1996), amended, [25] 135 F.3d 1318 (9th Cir. 1998) (treating allegations in prisoner's verified amended complaint as opposing affidavit). [26] 1 from the hospital. Id. Then on November 15, 2016, Plaintiff fell down the stairs and 2 injured his back. Id. at 5-6. He was prescribed pain medications and physical therapy. Id. 3 at 6-7. 4 Plaintiff claims that on May 11, 2017, Dr. Nguyen purposefully interfered with his 5 prescribed pain medications by intentionally discontinuing them, causing him to suffer 6 prolonged extreme pain. Id. at 7. Plaintiff claims Dr. Nguyen acted despite being 7 informed by Plaintiff that he was in pain. Id. Plaintiff claims the medical care chosen by 8 Dr. Nguyen was medically unreasonable considering the circumstances, and that 9 discontinuing his medication was chosen in conscious disregard to an excessive risk to his 10 health. Id. Plaintiff claims that he notified Drs. Kumar and Brizendine that he was in 11 extreme pain through the “inmate request process, correspondence, and 602 process,” but 12 that they failed to respond. Id. at 8. 13 Based on these allegations, the Court found Plaintiff stated cognizable claims under 14 the Eighth Amendment for deliberate indifference to serious medical needs against Dr. 15 Nguyen and supervisor liability against Drs. Kumar and Brizendine. Dkt. No. 16 at 6-7. 16 B. Plaintiff’s Injury and Initial Treatment 17 In November 2016, Plaintiff started medical treatment for complaints of lumbago as 18 a result of falling down the stairs at SVSP. Nguyen Decl. ¶ 16; Dkt. No. 33-1 at 10-19. A 19 few days prior to the fall, Plaintiff had suffered burns on his foot from boiling water. Id. 20 Plaintiff was 22 years old at the time. Id.; Dkt. No. 33-1 at 13. On November 30, 2016, he 21 was examined by Dr. Fernando Tuvera, not a party to this action, who referred Plaintiff to 22 physical therapy and prescribed Ibuprofen 600 mg, three times a day. Dkt. No. 33-1 at 15. 23 On January 23, 2017, Plaintiff saw Nurse Practitioner Doehring for his lower back 24 pain, and she prescribed Oxcarbazepine 300 mg, by mouth two times per day for chronic 25 low back pain. Nguyen Decl. ¶ 17; Dkt. No. 33-1 at 30, 35-36, 49. On January 25, 2017, 26 Plaintiff failed to take both his morning and afternoon medication of Oxcarbazepine 300 1 failed to take his Oxcarbazepine 300 mg medication for lower back pain in February 2017, 2 at the following times: 2/9 (pm), 2/12 (am), 2/17 (pm), 2/20 (am), 2/21 (am), 2/22 (am), 3 2/25 (pm) 2/27 (pm), and 2/28 (am & pm). Id. ¶ 18; Dkt. No. 33-1 at 23-24. 4 Plaintiff failed to take his Oxcarbazepine 300 mg medication for lower back pain in 5 March 2017, at the following times: 3/1 (pm), 3/4 (pm), 3/5 (pm), 3/8 (am), 3/12 (am), 6 3/13 (am), 3/15 (am & pm), 3/16 (am), 3/17 (pm), 3/19 (am & pm), 3/23 (am & pm), 3/26 7 (am), and 3/30 (pm). Id. ¶ 19; Dkt. No. 33-1 at 25-26. 8 On March 24, 2017, Plaintiff was seen by Dr. Carl Bourne, not a party to this 9 action, for complaints of lower back pain at SVSP. Id. ¶ 20; Dkt. No. 33-1 at 46-47. Dr. 10 Bourne noted Plaintiff’s failure to fully comply with taking Oxcarbazepine as his pain 11 medication. Id. Plaintiff was refusing to take Oxcarbazepine. Id. Plaintiff told Dr. 12 Bourne that he did not feel the Oxcarbazepine was effective for treating his pain. Id. 13 Plaintiff did not identify any significant side effect except constipation. Id. Plaintiff 14 agreed to continue to take Oxcarbazepine until his next primary care physician (“PCP”) 15 visit for his lower back pain complaints. Id. 16 Plaintiff continued to fail to take his Oxcarbazepine medication for lower back pain 17 during April 2017 as follows: 4/3 (am & pm), 4/6, 4/7 (am), 4/8 (am), 4/9 (am), 4/10 (am), 18 4/11 (am), 4/13 (am & pm), 4/15 (am), 4/16 (am), 4/18 (am), 4/19 (am), 4/20 (am & pm), 19 4/22 (am), 4/23 (am), 4/26 (pm), and 4/29 (am). Id. ¶ 21; Dkt. No. 33-1 at 27-32. 20 On April 16, 2017, Plaintiff was seen by Dr. Yasmeen Shagufta, not a party to this 21 action, for a follow-up to his complaints of chronic lower back pain. Id. ¶ 22; Dkt. No. 3322 1 at 51-52. Dr. Shagufta noted Plaintiff was taking Oxcarbazepine for neuralgia, but 23 Plaintiff stated it was not helping. Id. Plaintiff complained of pain on weight bearing, 24 limited range of motion, and the need to use a cane. Id. However, his most recent x-rays 25 showed normal spine alignment and no osseous abnormalities. Id. Plaintiff was to return 26 to clinic in 30 days for a further exam. Id. 1 informed him that if he was still in pain at his next follow-up, “there should be a[n] M.R.I. 2 provide[d] to identify the chronic back pain origin.” Id. at 1. 3 As of April 24, 2017, Plaintiff was prescribed Ranitidine, 150 mg (2x/day), 4 Ibuprofen 600 mg (3x/day), and Oxcarbazepine 300 mg (2x/day) by Dr. Shagufta. Nguyen 5 Decl. ¶ 23; Dkt. No. 33-1 at 31-32, 35, 37. On April 25, 2017, Plaintiff again expressly 6 indicated that Oxcarbazepine does not help. Id.; Dkt. No. 33-1 at 54. 7 Plaintiff failed to take his medications during the month of May 2017, as follows: 8 5/2 (am - all medications), 5/2 (pm - Ibuprofen), 5/3 (am - all medications, pm - 9 Ibuprofen), 5/4 (am & pm – all medications), 5/5 (pm – all medications), 5/6 (am & pm – 10 all medications), 5/8 (am & pm – all medications), 5/9 (am & pm – all medications), 5/11 11 (am – all medications, pm – Ibuprofen), 5/12 (pm – Ibuprofen), 5/13 (pm – Ibuprofen), 12 5/16 (am & pm – Ibuprofen), 5/17 (am – Ibuprofen), 5/18 (pm – Ibuprofen), 5/19 (am – all 13 medications), 5/21 (pm – all medications), 5/23 (am – Ibuprofen), and 5/24 (am – 14 Ibuprofen). Id.; Dkt. No. 33-1 at 33-37. 15 C. Treatment from Defendant Dr. Nguyen 16 On May 11, 2017, Plaintiff refused all medications for the morning, and Ibuprofen 17 at noon. Nguyen Decl. ¶ 26; Dkt. No. 33-1 at 33. Dr. Nguyen treated Plaintiff in the clinic 18 later that day. Id.; Dkt. No. 33-1 at 56-57. At that time, Plaintiff reported it was hard for 19 him to bend forward because of pain in his back and that he had numbness all over but not 20 in any particular pattern. Id. ¶ 27; Dkt. No. 33-1 at 59, 61. Plaintiff walked with his cane 21 on his left side, even though he complained of pain to his right leg. Id. When asked to 22 point to where the pain is, Plaintiff pointed to his IT band, then quickly changed locations 23 to his back. Id. at 59. Plaintiff was able to put his right shoe on without using his hands. 24 Id. This demonstrated he could easily use his legs and feet to maneuver his shoe on. Id. 25 Plaintiff also stated that Oxcarbazepine does not work for him, and he requested an 26 opioid medication. Id. ¶ 28. Dr. Nguyen’s examination showed no motor or sensory 1 back. Id. Plaintiff did not cooperate with some parts of the exam, such as giving no effort 2 to dorsiflex or plantar flex his foot. Id. However, when Dr. Nguyen observed him in the 3 yard with Officer Lozano, Plaintiff reacted normally when a ball came to him. Id.; Dkt. 4 No. 33-1 at 59. He squatted quickly, got up quickly, picked up the ball, and threw it back. 5 Id. Plaintiff had no balance issues, which would require a cane. Id. Plaintiff did not have 6 his cane when he squatted down to pick up the ball and stood up quickly. Id. 7 Based on her physical examination of Plaintiff, her direct observations of him, and 8 his medical records, Dr. Nguyen found the above factors did not support chronic back pain 9 with pathology warranting a cane or opioid pain medications. Id. ¶ 29; Dkt. No. 33-1 at 10 61. Plaintiff’s records showed no signs of severe acute injury, and no fracture or 11 dislocation. Id. Her examination of Plaintiff also showed no upper motor neuron signs 12 and no dermatomal numbness. Id. Plaintiff was able to squat quickly when not in the 13 exam room. Id. 14 As for the Oxcarbazepine, Plaintiff expressly told Dr. Nguyen it did not work and 15 he would not take it. Id. ¶ 30. Based on his statement and the above listed factors, Dr. 16 Nguyen made the medical determination to discontinue Plaintiff’s prescription for 17 Oxcarbazepine 300 mg that day. Id.; Dkt. No. 33-1 at 62-63. In Dr. Nguyen’s assessment, 18 Plaintiff had subjective lower back pain that did not interfere with his activities of daily 19 life or his ability to walk or to play in the yard. Id. For Plaintiff’s subjective low back 20 pain, Dr. Nguyen re-ordered Ibuprofen, as needed, for one month, taking care not to order 21 NSAIDs for a prolonged period of time due to the risk to Plaintiff of gastro-intestinal 22 bleeding. Id. 23 In opposition, Plaintiff claims for the first time that upon his return from the 24 hospital on an unspecified date, Dr. Nguyen gave him medication which she stated was for 25 pain relief “when in fact they were mental health medication used for mood swings.” Dkt. 26 No. 50 at 1. Plaintiff asserts that on May 11, 2017, Dr. Nguyen “showed deliberate 1 that the pain medication was not working and that he needed the cane to help relieve the 2 pressure off his lower back. Id. Plaintiff claims Dr. Nguyen “refused” him any treatment 3 and took him off everything “with full disregard to my past injur[ies].” Id. at 2. 4 D. Defendant Dr. Kumar - Administrative Grievances 5 Defendant Dr. Kumar is the Chief Medical Executive of SVSP. Kumar Decl. ¶ 5. 6 Part of her duties include reviewing inmate appeals to ensure the inmate-patient is 7 receiving medical care and has been seen by his PCP, as determined based on the scope of 8 the inmate’s complaint. Id. ¶ 8a. After an inmate has been seen by his physician, Dr. 9 Kumar checks to see if the complaints in the appeal have been addressed by the attending 10 physician, with a hands-on medical evaluation, as applicable. Id. 11 On April 3, 2017, prior to Dr. Nguyen’s treatment, Plaintiff filed a 602 health care 12 appeal, No. SVSP-HC-17057289, complaining of his chronic back pain and that the 13 Oxcarbazepine he had been prescribed did not help reduce his pain symptoms. Kumar 14 Decl. ¶ 9; Dkt. No. 33-3 at 11. Plaintiff requested to be seen by a doctor to be prescribed 15 medication for his chronic back pain. Id. 16 On May 8, 2017, Nurse Practitioner R. Erguiz and Dr. D. Bright, not parties to this 17 action, responded at the first level and partially granted the appeal. Kumar Decl. ¶ 10; Dkt. 18 No. 33-3 at 8. They noted Plaintiff’s refusal to take Oxcarbazepine when last seen by his 19 PCP on March 24, 2017. Id. On May 17, 2017, Plaintiff requested a second level review 20 due to his dissatisfaction with the first level response. Id.; Dkt. No. 33-3 at 13. 21 On June 19, 2017, Defendant Dr. Kumar and G. Ellis, Chief Executive Officer 22 (“CEO”) of SVSP issued CDCR’s second level response, partially granting Plaintiff’s 23 appeal. Kumar Decl. ¶ 11; Dkt. No. 33-3 at 7. Their response was based on Plaintiff’s 24 statement that he was seen by his PCP on May 11, 2017, and that she discontinued 25 Oxcarbazepine and he was currently on Ibuprofen for pain. Id. Plaintiff appealed the [26] 1 matter to the third level of review on June 28, 2017.6 Dkt. No. 33-3 at 130 2 On June 4, 2017, Plaintiff filed another 602 health care appeal, No. SVSP-HC3 17057694, complaining that Dr. Nguyen had discontinued “all medical needed,” that he 4 was still in pain, and “can’t get help.” Kumar Decl. ¶ 12; Dkt. No. 33-3 at 20. He wanted 5 to be placed “back on all medical treatment” for his injuries. Id. On July 3, 2017, Nurse 6 Erguiza and Dr. Bright responded at the first level, and partially granted the appeal. 7 Kumar Decl. ¶ 13; Dkt. No. 33-3 at 22. They noted that after his treatment with Dr. 8 Nguyen on May 11, 2017, Plaintiff saw his PCP on June 16, 2017, and that he was 9 instructed to perform back and stretching exercises and continue taking Ibuprofen 400 mg 10 for pain. Id. They also noted Plaintiff’s medical condition would “continue to be 11 monitored with care provided as determined medically indicated by the primary care 12 provider.” Id. 13 On August 21, 2017, Dr. Kumar and CEO Ellis issued the second level response, 14 partially granting the appeal. Kumar Decl. ¶ 14; Dkt. No. 33-3 at 24. This response 15 indicated that Plaintiff was seen by his PCP on June 16, 2017, “for back pain and his issues 16 were addressed,” and that he would be scheduled for a follow-up appointment with his 17 PCP. Id. On August 30, 2017, Plaintiff objected to this decision and claimed he was 18 racially profiled and denied treatment for his chronic back pain. Id.; Dkt. No. 33-3 at 21. 19 On December 19, 2017, J. Lewis, Deputy Director, issued CDCR’s third-level 20 response, denying the appeal. Kumar Decl. ¶ 15; Dkt. No. 33-3 at 18. This response 21 indicated the following: (1) Plaintiff received PCP evaluation and monitoring for his 22 history of lower back pain; (2) detailed the specific scope of treatment related to Plaintiff’s 23 claimed lower back pain; (3) noted that Plaintiff’s PCP determined there was no evidence 24 of severe disease or neurological impairment limiting mobility; (4) after August 23, 2017, 25 Plaintiff failed to request medical care for uncontrolled back pain; and (5) Plaintiff’s [26] 1 medical condition would “continue to be monitored with care provided as determined 2 medically indicated by the primary care provider.” Id. The decision stated that no 3 intervention was necessary as Plaintiff’s medical condition “has been evaluated and you 4 are receiving treatment deemed medically necessary.” Dkt. No. 33-3 at 19. 5 E. Facts Regarding Defendant Dr. Brizendine 6 Defendant Dr. Brizendine was the Chief Executive Officer at SVSP from July 2016 7 to April 30, 2017. Brizendine Decl. ¶ 6. Then from May 1, 2017, to December 2019, Dr. 8 Brizendine worked as the acting and subsequently permanent Assistant Deputy Director, 9 CEA, at CDCR Statewide Mental Health Program, at Mental Health Headquarters in Elk 10 Grove. Id. Currently, Dr. Brizendine is the Chief Executive Officer of California State 11 Prison in Sacramento. Id. 12 As of May 2017, Dr. Brizendine was not working at SVSP in any capacity and had 13 no responsibility for medical care or daily operation of that facility. Id. ¶ 7. Contrary to 14 Plaintiff’s allegations, see supra at 3, Dr. Brizendine had no involvement, in any manner, 15 with Dr. Nguyen’s treatment of Plaintiff on May 11, 2017, as she was not working at 16 SVSP at that time. Brizendine Decl. ¶ 8. Dr. Brizendine had no notice that Plaintiff was 17 in extreme pain through the 602 process related to his treatment with Dr. Nguyen on May 18 11, 2017, and she was not in the chain of command for any medical treatment at SVSP at 19 that time. Id. ¶ 9. Nor did Dr. Brizendine have any involvement with Dr. Kumar’s review 20 of that treatment. Id. ¶ 8. 21 II. Summary Judgment 22 Summary judgment is proper where the pleadings, discovery and affidavits show 23 that there is “no genuine dispute as to any material fact and the movant is entitled to 24 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment 25 “against a party who fails to make a showing sufficient to establish the existence of an 26 element essential to that party’s case, and on which that party will bear the burden of proof 1 nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. 2 Cattrett, 477 U.S. 317, 322-23 (1986). A fact is material if it might affect the outcome of 3 the lawsuit under governing law, and a dispute about such a material fact is genuine “if the 4 evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 5 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 6 Generally, the moving party bears the initial burden of identifying those portions of 7 the record which demonstrate the absence of a genuine issue of material fact. See Celotex 8 Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on an issue 9 at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other 10 than for the moving party. But on an issue for which the opposing party will have the 11 burden of proof at trial, the moving party need only point out “that there is an absence of 12 evidence to support the nonmoving party’s case.” Id. at 325. If the evidence in opposition 13 to the motion is merely colorable, or is not significantly probative, summary judgment may 14 be granted. See Liberty Lobby, 477 U.S. at 249-50 . 15 The burden then shifts to the nonmoving party to “go beyond the pleadings and by 16 her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on 17 file,’ designate specific facts showing that there is a genuine issue for trial.’” Celotex 18 Corp., 477 U.S. at 324 (citations omitted). If the nonmoving party fails to make this 19 showing, “the moving party is entitled to judgment as a matter of law.” Id. at 323. 20 The Court’s function on a summary judgment motion is not to make credibility 21 determinations or weigh conflicting evidence with respect to a material fact. See T.W. 22 Elec. Serv., Inc. V. Pacific Elec. Contractors Ass’n, 809 F.2d 626 , 630 (9th Cir. 1987). 23 The evidence must be viewed in the light most favorable to the nonmoving party, and the 24 inferences to be drawn from the facts must be viewed in a light most favorable to the 25 nonmoving party. See id. at 631. It is not the task of the district court to scour the record 26 in search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275 , 1279 (9th Cir. 1 the evidence that precludes summary judgment. Id. If the nonmoving party fails to do so, 2 the district court may properly grant summary judgment in favor of the moving party. See 3 id.; see, e.g., Carmen v. San Francisco Unified School District, 237 F.3d 1026 , 1028-29 4 (9th Cir. 2001). 5 A. Deliberate Indifference 6 Deliberate indifference to a prisoner’s serious medical needs violates the Eighth 7 Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A prison official violates the 8 Eighth Amendment only when two requirements are met: (1) the deprivation alleged is, 9 objectively, sufficiently serious, and (2) the official is, subjectively, deliberately indifferent 10 to the inmate’s health or safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). 11 A “serious” medical need exists if the failure to treat a prisoner’s condition could 12 result in further significant injury or the “unnecessary and wanton infliction of pain.” Id. 13 The following are examples of indications that a prisoner has a “serious” need for medical 14 treatment: the existence of an injury that a reasonable doctor or patient would find 15 important and worthy of comment or treatment; the presence of a medical condition that 16 significantly affects an individual’s daily activities; or the existence of chronic and 17 substantial pain. McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled 18 on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) 19 (en banc). 20 A prison official is deliberately indifferent if he knows that a prisoner faces a 21 substantial risk of serious harm and disregards that risk by failing to take reasonable steps 22 to abate it. See Farmer, 511 U.S. at 837 . The official must both know of “facts from 23 which the inference could be drawn” that an excessive risk of harm exists, and he must 24 actually draw that inference. Id. If a prison official should have been aware of the risk, 25 but was not, then the official has not violated the Eighth Amendment, no matter how 26 severe the risk. Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). 1 regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 2 1337, 1344 (9th Cir. 1981). Similarly, a showing of nothing more than a difference of 3 medical opinion as to the need to pursue one course of treatment over another is 4 insufficient, as a matter of law, to establish deliberate indifference, see Toguchi v. Chung, [5] 391 F.3d 1051, 1058, 1059-60 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 6 1989); Mayfield v. Craven, 433 F.2d 873, 874 (9th Cir. 1970). In order to prevail on a 7 claim involving choices between alternative courses of treatment, a plaintiff must show 8 that the course of treatment the doctors chose was medically unacceptable under the 9 circumstances and that he or she chose this course in conscious disregard of an excessive 10 risk to plaintiff’s health. Toguchi, 391 F.3d at 1058 ; Jackson v. McIntosh, 90 F.3d 330 , 11 332 (9th Cir. 1996) (citing Farmer, 511 U.S. at 837 ). 12 B. Analysis 13 Plaintiff claims that Dr. Nguyen acted with deliberate indifference when she 14 interfered with his prescribed pain medications by discontinuing them, despite knowing he 15 was in pain. Dkt. No. 15 at 7. Plaintiff claims that Drs. Kumar and Brizendine’s failure to 16 respond to his serious medical needs through the inmate appeals process also constitutes 17 deliberate indifference. Id. at 8. 18 1. Claim against Defendant Dr. Nguyen 19 Defendants assert that Dr. Nguyen was not deliberately indifferent to Plaintiff’s 20 serious medical needs. Dkt. No. 33 at 15. Defendants assert that assuming there was 21 serious medical need for other pain medication, Plaintiff fails to show that Dr. Nguyen 22 acted with a conscious disregard of an excessive risk of serious harm to him. Id. at 16. 23 Defendants assert that Dr. Nguyen did not subjectively know of a risk of serious harm to 24 Plaintiff by changing his pain medications and no medical record indicates there was any 25 harm to him. Id. Defendants assert that Plaintiff was never in a risk of serious harm in the 26 first place. Id. 1 prescribed was really for “mood swings” rather than for pain. Dkt. No. 50. In reply, 2 Defendants assert that Plaintiff’s allegation is nothing more than “fanciful lay opinion” 3 without any valid foundation. Dkt. No. 51 at 3. Defendants assert that the evidence shows 4 that Dr. Nguyen prescribed Ibuprofen 600 mgs, 3 times a day, to treat Plaintiff’s pain, and 5 that Plaintiff’s opposition fails to create a triable issue of material fact. Id. 6 After a careful review of the submitted papers and evidence, construed in the light 7 most favorable to Plaintiff, the Court finds there is no genuine dispute of material fact with 8 respect to the Eighth Amendment claim against Dr. Nguyen. Plaintiff claims Dr. Nguyen 9 discontinued his medication despite being informed by him that he was in pain. Dkt. No. 10 15 at 7. However, there is no evidence or allegation that Dr. Nguyen subjectively believed 11 that Plaintiff was experiencing extreme and chronic pain. Rather, Plaintiff’s medical 12 records indicate that for months before he saw Dr. Nguyen on May 11, 2017, Plaintiff was 13 increasingly failing to take the prescribed pain medication Oxcarbazepine for his lower 14 back pain. See supra at 3-5. And although he indicated that the Oxcarbazepine was not 15 helping, Plaintiff was also frequently failing to take the other prescribed pain medications, 16 i.e., Ibuprofen and Ranitidine. Id. When Dr. Nguyen saw Plaintiff on May 11, 2017, her 17 examination and observations showed that Plaintiff had no motor or sensory deficit, no 18 tenderness in his back, that his reflexes were normal, and his hips had full range of motion. 19 Id. at 5. Plaintiff also reacted normally when a ball came to him: he squatted quickly and 20 picked it up, got up quickly and threw the ball back, all without the use of his cane. Id. 21 Contrary to Plaintiff’s assertion that he was in extreme pain, Dr. Nguyen found that her 22 physical examination, personal observations, and his medical records did not support 23 chronic back pain with pathology that warranted opioid pain medications. Id. at 6. There 24 is no evidence suggesting that Dr. Nguyen both knew of facts from which the inference 25 could be drawn that Plaintiff was at an excessive risk of further pain and that she drew that 26 inference. See Farmer, 511 U.S. at 837 . Rather, she simply did not believe that Plaintiff’s 1 As she states in her declaration, Dr. Nguyen concluded that Plaintiff’s records did not 2 show objective evidence to support the level of disability he claimed, and that his 3 subjective complaints of pain could not be verified on physical examination. Nguyen 4 Decl. ¶ 34. She also states that at no time when she treated Plaintiff on May 11, 2017, did 5 she observe or know of any risk of serious harm to him in any manner. Id. ¶ 37. In 6 response, Plaintiff’s opposition fails to point to any evidence showing that Dr. Nguyen 7 knew that he faced a substantial risk of serious harm, i.e., extreme and debilitating pain, if 8 she discontinued the Oxcarbazepine and disregarded that risk by going ahead and 9 cancelling it anyway. Id. 10 What remains of Plaintiff’s claim is a mere disagreement with Dr. Nguyen’s chosen 11 course of treatment which simply does not give rise to a § 1983 claim. See Franklin, 662 12 F.2d at 1344. Plaintiff has not shown that her course of treatment was medically 13 unacceptable under the circumstances. It matters not whether another doctor, Dr. 14 Yasmeen, believed on April 23, 3017, that an MRI may be necessary at Plaintiff’s next 15 follow-up if his pain persisted because the mere difference of medical opinion as the need 16 to pursue one course of treatment over another is insufficient, as a matter of law, to 17 establish deliberate indifference. See Toguchi, 391 F.d at 1058. Rather, it cannot be said 18 that Dr. Nguyen’s decision to discontinue Oxcarbazepine was medically unreasonable 19 under the circumstances where Plaintiff repeatedly asserted that Oxcarbazepine was not 20 effective, and he was frequently refusing to take it. Nor has Plaintiff shown that Dr. 21 Nguyen chose this course in conscious disregard of an excessive risk to his health where 22 she attests, and the supporting documents show, that she was not aware of any such risk. 23 Toguchi, 391 F.3d at 1058 . 24 Plaintiff has failed to show in opposition that there is a genuine issue for trial or 25 identify any evidence that precludes summary judgment. Celotex Corp., 477 U.S. at 324 . 26 Accordingly, based on the foregoing, the Court finds summary judgment is appropriate 1 indifference claim against Dr. Nguyen. See Celotex Corp., 477 U.S. at 323 . Dr. Nguyen is 2 entitled to summary judgment on this claim. 3 2. Claim against Defendant Dr. Kumar 4 Defendants first assert that Plaintiff’s claim against Dr. Kumar for failing to 5 properly respond to his appeal does not rise to the level of a constitutional violation 6 because there is no constitutional right to a prison grievance procedure. Dkt. No. 33 at 197 20. In the amended complaint, Plaintiff alleged generally that “staff refused to respond to 8 some of the appeals naming defendants” and that the “administrative remedy process is 9 inadequate.” Dkt. No. 15 at 12. However, Plaintiff did not connect this allegation with 10 any named defendant. To the extent that he was attempting to state a claim based on 11 inadequacies in the administrative grievance process, Defendants are correct that there is 12 no constitutional right to a prison administrative appeal or grievance system under due 13 process. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 14 F.2d 639, 640 (9th Cir. 1988). And although there is a right to petition the government for 15 redress of grievances,7 there is no right to a response or any particular action from the 16 prison. See Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (“prisoner’s right to petition 17 the government for redress ... is not compromised by the prison’s refusal to entertain his 18 grievance.”). As such, Dr. Kumar’s failure to respond in a particular way does not give 19 rise to a constitutional violation. Id. 20 Secondly, Defendants assert that because there is no triable issue of material fact to 21 show that Dr. Nguyen was deliberately indifferent, there can be no supervisory liability 22 attributable to Dr. Kumar based thereon. Id. at 21. Defendants also assert that Dr. Kumar 23 reasonably relied on Plaintiff’s medical records and Dr. Nguyen’s informed opinion [24] 7 The right of meaningful access to the courts extends to established prison grievance [25] procedures. See Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). This right is subsumed under the First Amendment right to petition the government for redress of [26] grievances, see id. at 333, and protects both the filing, see id., and content, see Bradley, 64 1 regarding the appropriate pain medication. Id. at 22. 2 A supervisor may be liable under section 1983 upon a showing of (1) personal 3 involvement in the constitutional deprivation or (2) a sufficient causal connection between 4 the supervisor’s wrongful conduct and the constitutional violation. Henry A. v. Willden, [5] 678 F.3d 991, 1003-04 (9th Cir. 2012). Even if a supervisory official is not directly 6 involved in the allegedly unconstitutional conduct, “[a] supervisor can be liable in this 7 individual capacity for his own culpable action or inaction in the training, supervision, or 8 control of his subordinates; for his acquiescence in the constitutional deprivation; or for 9 conduct that showed a reckless or callous indifference to the rights of others.” Starr v. 10 Baca, 652 F.3d 1202, 1208 (9th Cir. 2011) (citation omitted). The claim that a supervisory 11 official “knew of unconstitutional conditions and ‘culpable actions of his subordinates’ but 12 failed to act amounts to ‘acquiescence in the unconstitutional conduct of his subordinates’ 13 and is ‘sufficient to state a claim of supervisory liability.’” Keates v. Koile, 883 F.3d 1228 , 14 1243 (9th Cir. 2018) (quoting Starr, 652 F.3d at 1208 ) (finding that conclusory allegations 15 that supervisor promulgated unconstitutional policies and procedures which authorized 16 unconstitutional conduct of subordinates do not suffice to state a claim of supervisory 17 liability). 18 After a careful review of the submitted papers and evidence, construed in the light 19 most favorable to Plaintiff, the Court finds there is no genuine dispute of material fact with 20 respect to the Eighth Amendment claim against Dr. Kumar based on supervisor liability. 21 First of all, Plaintiff does not allege that Dr. Kumar was personally involved in the 22 constitutional deprivation, i.e., the changes to his pain medication, nor is there evidence 23 supporting such a conclusion. See Henry A., 678 F.3d at 1003-04 . The undisputed 24 evidence submitted by Defendants shows that Plaintiff submitted his first inmate appeal, 25 No. SVSP-HC-17057289, complaining that Oxcarbazepine was ineffective before he was 26 seen by Dr. Nguyen on May 11, 2017. See supra at 6-7. By the time the matter came to 1 the Oxcarbazepine. Id. The same is true with respect to Plaintiff’s second inmate appeal, 2 No. SVSP-HC-17057694, in which Plaintiff specifically complained of Dr. Nguyen’s 3 treatment; Dr. Kumar could not have been personally involved in the decision to 4 discontinue the pain medication since the matter was brought to her attention after the fact. 5 Secondly, Plaintiff fails to establish the second factor under Henry A., i.e., a causal 6 connection between Dr. Kumar’s allegedly wrongful conduct and the constitutional 7 violation. 678 F.3d at 1003-04 . As discussed above, the Court has determined that Dr. 8 Nguyen did not act with deliberate indifference towards Plaintiff’s serious medical needs. 9 See supra at 13-14. Accordingly, Plaintiff cannot establish that Dr. Kumar is culpable as a 10 supervisor based on his knowledge and acquiescence where there was no underlying 11 unconstitutional conduct by a subordinate. See Keates, 883 F.3d at 1243 . 12 Alternatively, Plaintiff could establish supervisor liability under the factors 13 described in Starr, 652 F.3d at 1208 . However, the first factor – action or inaction in the 14 training, supervision, or control of the subordinate – does not apply since Plaintiff nowhere 15 alleges that Dr. Kumar’s wrongful conduct was based on inadequate training, supervision, 16 or control, but rather, only in her involvement in the inmate appeals process. With respect 17 to the second factor, “acquiescence in the constitutional deprivation,” the Court has already 18 discussed in the previous paragraph that there was no underlying unconstitutional conduct 19 by Dr. Nguyen as a subordinate and therefore no supervisor liability on the part of Dr. 20 Kumar. Lastly, there is no evidence that Dr. Kumar acted with reckless or callous 21 indifference to Plaintiff’s rights, the third factor under Starr, 652 F.3d at 1208 . The 22 evidence submitted by Defendants shows that Dr. Kumar reviewed the pertinent medical 23 records for Plaintiff’s treatment, and the scope of his complaint as defined by his 602 24 health care appeals. See supra at 6-8. Dr. Kumar states in her declaration that at no time 25 when treating Plaintiff on May 11, 2017, did it appear that Dr. Nguyen consciously 26 disregard any risk of serious harm to Plaintiff. Kumar Decl. ¶ 18. Dr. Kumar states that 1 Nguyen responded with a reasonable and medically appropriate prescription of Ibuprofen 2 for Plaintiff’s vague, generalized, and questionable complaints of pain. Id. Based on Dr. 3 Kumar’s belief of the reasonableness of Dr. Nguyen’s treatment and the lack of any risk of 4 serious harm to Plaintiff, it cannot be said that Dr. Kumar acted with reckless or callous 5 indifference to Plaintiff’s Eighth Amendment rights in the manner of her response to his 6 appeal. 7 In response, Plaintiff has failed to show that there is a genuine issue for trial or 8 identify any evidence that precludes summary judgment, having made no mention of Dr. 9 Kumar in his opposition papers. Celotex Corp., 477 U.S. at 324 . Accordingly, based on 10 the foregoing, the Court finds summary judgment is appropriate because there are no 11 genuine issues of material facts with respect to the deliberate indifference claim against Dr. 12 Kumar based on supervisor liability. See Celotex Corp., 477 U.S. at 323 . Accordingly, 13 Dr. Kumar is entitled to summary judgment on this claim. 14 3. Claim against Defendant Dr. Brizendine 15 Lastly, Defendants assert that Dr. Brizendine was not involved with Plaintiff’s 16 medical care at SVSP, and she did not work there at the time he was treated by Dr. 17 Nguyen. Dkt. No. 33 at 20. 18 After a careful review of the submitted papers and evidence, construed in the light 19 most favorable to Plaintiff, the Court finds there is no genuine dispute of material fact with 20 respect to the Eighth Amendment claim against Dr. Brizendine. Plaintiff’s claim is based 21 on the single allegation that Dr. Brizendine had notice of his extreme pain from “the 22 inmate request process, correspondence, and 602 process” and failed to respond. Dkt. No. 23 15 at 8. However, Dr. Brizendine’s name does not appear on any of the supporting 24 documents attached to Plaintiff’s amended complaint, Dkt. No. 15 at 17-23, nor on any of 25 the inmate appeal records submitted by Defendants. Dkt. No. 33-3 at 6-24. Accordingly, 26 aside from Plaintiff’s conclusory allegation, there is no evidence of any causal connection 1 rights in connection with his pain medication. Moreover, Plaintiff has failed to dispute 2 || Defendants’ assertion in opposition, having made no mention of Dr. Brizendine therein. 3 || Celotex Corp., 477 U.S. at 324 . Accordingly, based on the foregoing, the Court finds 4 || summary judgment is appropriate because there are no genuine issues of material facts 5 || with respect to the deliberate indifference claim against Dr. Brizendine on any grounds. 6 See Celotex Corp., 477 U.S. at 323 . Accordingly, Dr. Brizendine is entitled to summary 7 || judgment on this claim. [8] 9 CONCLUSION 10 For the reasons stated above, Defendants Dr. T. Nguyen, Dr. K. Kumar, and Dr. B. 11 || Brizendine’s motion for summary judgment, Dkt. No. 33, is GRANTED.® The Eighth 12 || Amendment deliberate indifference claims against them are DISMISSED with prejudice. E 13 This order terminates Docket No. 33. IT IS SO ORDERED. 15 || Dated: _ October 17, 2022_ BETH LABSON FREEMAN A 6 United States District Judge Z 18 [24] Order Granting MSJ 25 PRO-SE\BLF\CR.18\07221Fox_grant-MSJ(2) [26] 8 Because the Court finds that no constitutional violation occurred, it is not necessary to reach Defendants’ qualified immunity argument.