Bynum v. Sweet

[7] 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA [10] JIM CARTER BYNUM, 11 Case No. 21-cv-05833 BLF (PR) Plaintiff, 12 ORDER GRANTING DEFENDANT SWEET’S MOTION TO DISMISS; v. 13 GRANTING DEFENDANT LAUFIK’S MOTION FOR 14 SUMMARY JUDGMENT; M. K. SWEET, et al., DENYING MOTION TO DISMISS 15 AND DISCOVERY MOTIONS AS Defendants. MOOT [16] (Docket Nos. 13, 30, 33, 40, 42, 43) [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 the Correctional Training Facility in [20] Soledad (“CTF”). Dkt. No. 1. The Court found the complaint stated a cognizable claim [21] for deliberate indifference to serious medical needs against Defendant Dr. Mary K. Sweet [22] and exercised supplemental jurisdiction over a negligence claim against Defendant Dr. [23] Martin Laufik. Dkt. No. 9. [24] Defendant Sweet filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules [25] of Civil Procedure on the grounds that Plaintiff has failed to state a claim for relief based [26] on his pleading and supporting papers and that she is entitled to qualified immunity. Dkt. [27] 1 No. 19. 2 Defendant Laufik filed a separate motion to dismiss for failure to state a claim for 3 relief. Dkt. No. 33. While this motion was still pending, Defendant Laufik filed a motion 4 for summary judgment on the grounds that there is no dispute of material fact and he is 5 entitled to judgment as a matter of law. Dkt. No. 42. Plaintiff filed opposition, Dkt. No. 6 45, and Defendant filed a reply, Dkt. No. 48. 7 The Court will first discuss Defendant Sweet’s motion to dismiss and then 8 Defendant Laufik’s summary judgment motion. 9 For the reasons set forth below, Defendant Sweet’s motion to dismiss is 10 GRANTED, and Defendant Laufik’s motion for summary judgment is GRANTED. 11 Defendant Laufik’s motion to dismiss is DENIED as moot. [12] 13 DISCUSSION 14 I. Plaintiff’s Claims 15 The following are the allegations set forth in Plaintiff’s complaint and information 16 from the medical records attached thereto as exhibits on which he relies. 17 Plaintiff claims that on or about January 31, 2020, he fell and injured his elbow 18 while exiting the shower. Dkt. No. 1 at ¶ 1. On February 3, 2020, he complained about 19 pain in his arm at the medical clinic, where he was instructed to put in a health care 20 services request. Id. at ¶ 2 . He did so on February 6, 2020, complaining of pain in his arm 21 and shoulder. Id. at ¶ 3 , Ex. A.1 He filed subsequent requests on February 7 and 18, 2020, 22 complaining of severe pain in his right arm. Id. at ¶¶ 4, 5 , Exs. B, C. 23 On February 25, 2020, Plaintiff was examined by Dr. Chen, his primary care 24 physician (PCP). Id. at ¶ 6 , Ex. D. Plaintiff complained of “increasing pain to right arm 25 and right shoulder.” Id. According to the progress notes, Plaintiff informed her that based [26] 1 on his own research, he believed he had suffered a “torn distal biceps tendon”; it appears 2 Dr. Chen tentatively agreed. Ex. D, Dkt. No. 1-1 at 8. Dr. Chen indicated that since the 3 acute injury had likely occurred over three weeks ago, the injury “may not respond as 4 nicely to surgical correction.” Id. at 9 . Dr. Chen’s plan was to order an ultrasound of the 5 right upper extremity (“RUE”) to verify the injury, request an orthopedic surgery consult, 6 which if approved “needs appt relatively quickly,” order radiology, and have Plaintiff take 7 ibuprofen for pain management. Id.; Ex. E. The request for orthopedic surgery was 8 entered as “routine priority (46-90 days).” Ex. E, Dkt. No. 1-1 at 11. 9 On February 26, 2020, Defendant Dr. Sweet, as the physician manager, denied the 10 request for orthopedic evaluation based on the following: “Have not done conservative 11 treatment of condition, such as rest, NSAIDs, and later PT. Condition not requiring surgery 12 as functional loss not significant impairment (up to 25% only) of ADL per literature 13 review/up to date review.” Id. at ¶ 8 , Ex. F. 14 On February 27, 2020, Defendant Sweet approved the request for an ultrasound. Id. 15 at ¶ 9, Ex. G. The order noted, “Please do ASAP as potential surgical correction is time16 sensitive.” Id. On March 12, 2020, the result of the ultrasound was inconclusive due to a 17 hematoma blocking the view; Dr. Chen noted that she would request an MRI. Id. at ¶ 10 , 18 Ex. H. 19 On March 18, 2020, Dr. Chen made a request for an MRI of Plaintiff’s elbow, 20 which was approved by Defendant Sweet on March 19, 2020. Id. at ¶ 11 , Ex. I. On March 21 20, 2020, the MRI was done and evaluated by Defendant Dr. M. Laufik. Id. at ¶ 12 . 22 Defendant Laufik concluded that there was “[n]o significant abnormality.” Ex. I, Dkt. No. 23 1-1 at 21. This conclusion was based on the following observations: “There is no acute 24 fracture or dislocation. No significant arthropathy. No significant chondromalacia. The 25 visualized ligament and tendons are intact…. No significant joint effusion. No significant 26 soft tissue edema, mass or collection identified.” Id. 1 ligaments and tendons were all normal and no provider follow-up was required. Id. at ¶ 2 14, Ex. L. 3 Meanwhile, on March 30, 2020, Plaintiff submitted another health care request 4 complaining of extreme pain in his right arm. Dkt. No. 1 at ¶ 13, Ex. K. He submitted 5 another health care request with the same complaint on April 7, 2020, after Dr. Chen 6 informed him of the MRI results.2 Id. at ¶ 15 , Ex. M. 7 On April 15, 2020, Plaintiff submitted another health care request complaining of 8 pain in his right arm. Dkt. No. 1 at ¶ 17, Ex. O. On April 17, 2020, Plaintiff saw Dr. 9 Chen, whom he alleges informed him that her “hands were tied” regarding Plaintiff’s distal 10 arm injury “due to upper management inaction.” Id. at ¶ 18 . She stated she would submit 11 another request for orthopedic evaluation. Id. She did so on April 20, 2020, which was 12 approved by Dr. Posson. Id. at ¶ 19 , Ex. P. The request was submitted as “routine priority 13 (46-90) days.” Ex. P, Dkt. No. 1-1 at 41. 14 On April 21, 2020, Plaintiff submitted another health care request complaining of 15 severe pain in his arm. Id. at ¶ 20 , Ex. Q. On the same day, Dr. Chen submitted a request 16 for an MRI of his right shoulder, which was approved by Dr. Posson the following day. [17] Id. at ¶ 21 , Ex. R. 18 On April 29, 2020, Plaintiff submitted a health care request complaining of pain in 19 his biceps and cramping in the forearm of his right arm. Id. at ¶ 22 , Ex. S. Two days later 20 on May 1, 2020, he had an “in[-]person clinic appointment” that resulted in a patient 21 discharge information.” Id. at ¶ 23 , Ex. T. He was provided with educational document [23] 2 Also on April 7, 2020, Plaintiff submitted a medical grievance, asserting that the prison was providing inadequate medical care and preventing him from seeing a specialist. Id. at [24] ¶ 16, Ex. N; Dkt. No. 1-1 at 33-34. Plaintiff provided a copy of the institutional level response by Chief Medical Executive (“CME”) Dr. Posson to the complaint. Ex. N, Dkt. [25] No. 1-1 at 29-30. Dr. Posson summarized the treatment for Plaintiff’s injury and concluded he had received continuing and appropriate care. Id. The headquarters’ level [26] response also found Plaintiff received appropriate treatment for his injury, and that his 1 entitled “Biceps Tendon Disruption (Distal) With Rehab,” which discussed distal biceps 2 tendon symptoms, causes, and treatment options. Id., Dkt. No. 1-1 at 50-51. 3 Also on May 1, 2020, the MRI was completed by Defendant Laufik, who found 4 “partial rotator cuff tearing.” Id. at ¶ 24 , Ex. U. The results also showed “[n]o acute 5 fracture,” in-place and intact long-head biceps, intact labrum, and no significant muscle 6 atrophy (diminution). Ex. U, Dkt. No. 1-1 at 53. The results also showed mild to 7 moderate acromioclavicular joint disease. Id. 8 On May 4, 2020, Dr. Chen submitted a request for an orthopedic surgery evaluation 9 based on the MRI, which was approved by a non-party. Dkt. No. 1 at ¶ 25, Ex. V. The 10 request was again submitted as “routine priority (46-90) days.” Ex. V, Dkt. No. 1-1 at 55. 11 During May and June 2020, Plaintiff submitted numerous health care requests 12 complaining of severe pain, bicep disfigurement, and cramping in his right arm. Id. at ¶¶ 13 26, 27, 28, 29, 30, 31, 32, Exs. W, X, Y, Z, AA, BB, CC. He filed another request on July 14 15, 2020. Id. at ¶ 33 , Ex. DD. 15 On July 29, 2020, Plaintiff saw orthopedic surgeon Dr. Kowall via telemedicine. [16] Id. at ¶ 34 , Ex. EE. Dr. Kowall noted that Plaintiff had full active range of motion in his 17 right shoulder and elbow. Ex. EE, Dkt. No. 1-1 at 74. Dr. Kowall found that Plaintiff’s 18 clinical exam was consistent with a “distal biceps tendon avulsion,” i.e., pulling or tearing. [19] Id. at 75 . Dr. Kowall discussed treatment options with Plaintiff, including both 20 conservative and operative treatment. Id. Dr. Kowall’s recommendation was 21 reconstructive surgery with allograph tissue to remedy the pain and regain strength. Id. 22 On July 31, 2020, Dr. Chen submitted a request for orthopedic surgery repair 23 tendon extremity, which was approved by Defendant Sweet on the same day. Dkt. No. 1 at 24 ¶ 35, Ex. FF. The surgery took place on August 3, 2020. Id. According to the progress 25 notes from a subsequent follow-up, the surgery “went very well, without any apparent 26 complications.” Ex. GG, Dkt. No. 1-1 at 79. 1 with Dr. Kowall. Ex. HH, Dkt. No. 1-1 at 81. The exam showed the surgical incision was 2 healing well, the allograft tendon was intact, and Plaintiff had good range of motion. Id. 3 Based on his allegations, Plaintiff claims that Defendant Sweet acted with deliberate 4 indifference when she denied Dr. Chen’s first request for an orthopedic evaluation on 5 February 27, 2020, based on her reasoning: “injury does not require surgery, functional 6 loss is minimal.” Id. at ¶¶ 40-42 . Plaintiff claims that Defendant Sweet’s chosen course of 7 treatment was unacceptable under the circumstances and was chosen in conscious 8 disregard of an excessive risk to his health. Id. at ¶ 43 . Plaintiff claims Dr. Kowall stated 9 that primary repair was not possible due to the time interval between injury and seeing 10 him, and that chronic cramping and weakness is common. Id. at ¶ 44 . Plaintiff claims 11 Defendant Sweet is liable for delaying access to a specialist, which was the proximate 12 cause of further pain and irreparable injury. Id. 13 II. Motion to Dismiss 14 Failure to state a claim is grounds for dismissal under Rule 12(b)(6). Dismissal for 15 failure to state a claim is a ruling on a question of law. See Parks School of Business, Inc., 16 v. Symington, 51 F.3d 1480, 1483 (9th Cir. 1995). “The issue is not whether plaintiff will 17 ultimately prevail, but whether he is entitled to offer evidence to support his claim.” Usher 18 v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). 19 “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need 20 detailed factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds of his 21 ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic 22 recitation of the elements of a cause of action will not do.... Factual allegations must be 23 enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. 24 Twombly, 550 U.S. 544, 553-56 (2007) (citations omitted). A motion to dismiss should be 25 granted if the complaint does not proffer “enough facts to state a claim for relief that is 26 plausible on its face.” Id. at 570 . To state a claim that is plausible on its face, a plaintiff 1 is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). From 2 these decisions, the following “two principles” arise: “First to be entitled to the 3 presumption of truth, allegations in a complaint or counterclaim may not simply recite the 4 elements of a cause of action but must contain sufficient allegations of underlying facts to 5 give fair notice and to enable the opposing party to defend itself effectively. Second, the 6 factual allegations that are taken as true must plausibly suggest an entitlement to relief, 7 such that it is not unfair to require the opposing party to be subjected to the expense of 8 discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 9 Review is limited to the contents of the complaint, see Clegg v. Cult Awareness 10 Network, 18 F.3d 752, 754-55 (9th Cir. 1994), including documents physically attached to 11 the complaint or documents the complaint necessarily relies on and whose authenticity is 12 not contested. See Lee v. County of Los Angeles, 250 F.3d 668 , 688 (9th Cir. 2001). In 13 addition, the court may take judicial notice of facts that are not subject to reasonable 14 dispute. See id. at 688 (discussing Fed. R. Evid. 201(b)). Allegations of fact in the 15 complaint must be taken as true and construed in the light most favorable to the non16 moving party. See Symington, 51 F.3d at 1484 . 17 On the other hand, a plaintiff may plead himself out of a claim by including 18 unnecessary details contrary to his claims. Sprewell v. Golden State Warriors, 266 F.3d 19 979, 988 (9th Cir. 2001). A court, for example, is not required to accept as true conclusory 20 allegations which are contradicted by documents referred to in the complaint. Atlantic 21 Corp., 550 U.S. at 555 ; Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 22 1998). After all, “conclusory allegations without more are insufficient to defeat a motion 23 to dismiss for failure to state a claim.” McGlinchy v. Shell Chemical Co., 845 F.2d 802 , 24 810 (9th Cir. 1988). A court “is not required to accept legal conclusions cast in the form of 25 factual allegations if those conclusions cannot reasonably be drawn from the facts 26 alleged.” Clegg, 18 F.3d at 754-55 . 1 A. Deliberate Indifference to Serious Medical Needs 2 Deliberate indifference to a prisoner’s serious medical needs violates the Eighth 3 Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 4 1050, 1059 (9th Cir. 1992), overruled in part on other grounds by WMX Technologies, Inc. 5 v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A prison official violates the 6 Eighth Amendment only when two requirements are met: (1) the deprivation alleged is, 7 objectively, sufficiently serious, and (2) the official is, subjectively, deliberately indifferent 8 to the inmate’s health or safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). 9 With regard to the first prong, a “serious” medical need exists if the failure to treat a 10 prisoner’s condition could result in further significant injury or the “unnecessary and 11 wanton infliction of pain.” Id. With regard to the second prong, a prison official is 12 deliberately indifferent if he knows that a prisoner faces a substantial risk of serious harm 13 and disregards that risk by failing to take reasonable steps to abate it. Id. at 837 . The 14 official must both know of “facts from which the inference could be drawn” that an 15 excessive risk of harm exists, and he must actually draw that inference. Id. If a prison 16 official should have been aware of the risk, but was not, then the official has not violated 17 the Eighth Amendment, no matter how severe the risk. Gibson v. County of Washoe, 290 18 F.3d 1175, 1188 (9th Cir. 2002). In order for deliberate indifference to be established, 19 therefore, there must be a purposeful act or failure to act on the part of the defendant and 20 resulting harm. See McGuckin, 974 F.2d at 1060 ; Shapley v. Nevada Bd. of State Prison 21 Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). 22 “A difference of opinion between a prisoner-patient and prison medical authorities 23 regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 24 1337, 1344 (9th Cir. 1981). Similarly, a showing of nothing more than a difference of 25 medical opinion as to the need to pursue one course of treatment over another is 26 insufficient, as a matter of law, to establish deliberate indifference, see Toguchi v. Chung, 1 1989); Mayfield v. Craven, 433 F.2d 873, 874 (9th Cir. 1970). In order to prevail on a 2 claim involving choices between alternative courses of treatment, a plaintiff must show 3 that the course of treatment the doctors chose was medically unacceptable under the 4 circumstances and that he or she chose this course in conscious disregard of an excessive 5 risk to plaintiff’s health. Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330 , 6 332 (9th Cir. 1996) (citing Farmer, 511 U.S. at 837 ). 7 Defendant argues that Plaintiff fails to state a claim for deliberate indifference to 8 serious medical needs against Defendant Sweet because: (1) a difference of medical 9 opinion between Defendant Sweet and the PCP regarding the course of treatment does not 10 amount to deliberate indifference; (2) the medical records attached to the complaint show 11 that Plaintiff cannot prove that Defendant Sweet possessed a “sufficiently culpable state of 12 mind”; and (3) the delay in Plaintiff’s examination by an orthopedic surgeon does not 13 objectively amount to an Eighth Amendment violation. Dkt. No. 13 at 10. 14 With regard to the first argument, Defendant asserts that the medical records 15 provided with the complaint shows that Defendant Sweet disagreed with Dr. Chen’s first 16 request for an orthopedic evaluation because she believed that Plaintiff should explore a 17 non-operative treatment first, before referring him for an evaluation for orthopedic surgery. 18 Id. at 12, citing Dkt. No. 1-1 at 13. To that end, Defendant Sweet approved the requests 19 for an ultrasound and MRIs for Plaintiff’s RUE soft tissues. Id., citing Dkt. No. 1-1 at 13, 20 15, 19. Defendant asserts that moreover, Defendant Sweet did not believe that there was 21 any emergent need to refer Plaintiff for an orthopedic surgery evaluation because her 22 review of his medical records showed that his functional loss was not a significant 23 impairment of his activities of daily living. Id., citing Dkt. No. 1-1 at 13. The subsequent 24 MRI on March 20, 2020, confirmed Defendant Sweet’s medical opinion about the proper 25 course of treatment for Plaintiff’s injury. Id., citing Dkt. No. 1-1 at 13, 21, 14. The MRI 26 showed that his elbow, ligaments, and tendons were all normal, and that surgery was not 1 surgical intervention. Id. Defendant concludes that she is entitled to dismissal because the 2 difference of medical opinion does not amount to deliberate indifference. Id. 3 With regard to her second argument, Defendant asserts that the medical records 4 attached to the complaint show that Defendant Sweet responded promptly to each of Dr. 5 Chen’s requests for services. Dkt. No. 13 at 13. Although Defendant Sweet denied the 6 February 25, 2020 request for an orthopedic surgical evaluation, she granted the requests 7 for an ultrasound, an MRI, and orthopedic surgery. Id. Defendant asserts that the first 8 denial for an evaluation does not evidence that Defendant Sweet sought to intentionally 9 deny Plaintiff’s treatment, but rather that she continued to diagnose and treat his condition 10 in what she believed was an appropriate manner. Id. Defendant asserts, therefore, that 11 Plaintiff cannot satisfy the subjective component of his deliberate indifference claim 12 against Defendant Sweet. Id. at 14. 13 Lastly, with respect to her third argument, Defendant Sweet asserts that when an 14 inmate alleges delay in receiving medical treatment, he cannot state a deliberate 15 indifference claim unless the delay led to further injury or harm. Id. A “serious medical 16 need” is one where the failure to treat the medical condition could result in “further 17 significant injury or the unnecessary and wanton infliction of pain.” Id. Defendant asserts 18 that Plaintiff cannot meet this objective threshold because the medical records show that 19 his symptoms and conditions were not so serous as to require immediate surgical 20 intervention by an orthopedic surgeon when the request was first made. Id., citing Dkt. 21 No. 1-1 at 8-11. Defendant Sweet’s review of Plaintiff’s records on February 27, 2020, 22 showed that his functional loss was not a significant impairment of his activities of daily 23 living. Id. at 15, citing Dkt. No. 1-1 at 13. Furthermore, Dr. Chen’s assessment of 24 Plaintiff’s injury two days earlier showed that Plaintiff did not require immediate surgical 25 intervention as she categorized the request as merely “routine.” Id. Defendant also asserts 26 that the medical records indicate that the denial of an orthopedic evaluation on February 1 successful surgery. Id. 2 In opposition, Plaintiff asserts that his medical records show “rampant professional 3 negligence,” and that Defendant Sweet’s denial and the surgery were “a painful and 4 irreparable costly journey, that rose to a constitutional deprivation actionable under § 5 1983.” Dkt. No. 17 at 11. First, Plaintiff asserts that contrary to Defendant’s 6 characterization, Dr. Chen had expressed the “urgency” of his condition because she noted 7 the following in the ultrasound request: “Please do ASAP as potential surgical correction is 8 time sensitive.” Dkt. No. 17 at 8, citing Ex. G. Plaintiff asserts that Defendant Sweet’s 9 denial of the request on February 27, 2020 was therefore “decided recklessly.” Id. 10 Plaintiff argues that Defendant Sweet was put on notice of his serious medical injury by 11 Dr. Chen’s first order for an orthopedic evaluation. Id. at 14. He also asserts that the 12 medical records demonstrate Defendant Sweet’s culpable state of mind, i.e., “when she 13 gave her physician manager authoritative reason” for denying Dr. Chen’s request. Id. 14 Furthermore, Plaintiff asserts that Defendant Sweet’s chosen course of treatment 15 was medically unacceptable under the circumstances, and that she chose this course in 16 conscious disregard of an excessive risk to his health. Id. at 15. In this respect, he asserts 17 that the first part of her stated reason, “[h]ave not done conservative treatment of 18 condition, such as rest, NSAIDs, and later PT,” means “essentially to do nothing but take 19 pain relievers and later do physical therapy.” Id. at 17. Plaintiff also alleges that the 20 second half of Defendant Sweet’s reasoning, “[c]ondition not requiring surgery as 21 functional loss not significant impairment (up to 25% only) of ADL,” indicates “her 22 acknowledgment of the apparent risk of inaction and her blatant disregard for the resulting 23 functional loss and ultimate maiming of plaintiff as a[n] acceptable result of inaction.” Id. 24 He asserts that Defendant Sweet “did not appreciate that there was an emergency need.” 25 Id. at 15. Plaintiff asserts that Defendant Laufik’s interpretation of the MRI on March 20, 26 2020, was inaccurate, and that furthermore, since this MRI was performed 23 days after 1 deny the referral. Id. at 16. Lastly, Plaintiff asserts that the resulting delay in getting a 2 consult resulted in “irreparable damage and prolonged pain and suffering.” Id. at 14. 3 In reply, Defendant asserts that the complaint and its attachments do not support 4 Plaintiff’s assertions that Defendant Sweet provided “medically unacceptable” and 5 “cursory” treatment, or that she delayed his surgery by five months. Dkt. No. 19 at 1. 6 Defendant asserts that Plaintiff does not explain why Defendant Sweet’s recommendations 7 to treat his injury with non-operative procedures, NSAIDs, and physical therapy was 8 medically unacceptable, and that he does not profess to have the training, education, or 9 experience to make such an assessment. Id. at 2. Defendant asserts that neither the 10 complaint nor the attached medical records sets forth facts from which one could plausibly 11 infer that Defendant Sweet acted with a “sufficiently culpable state of mind” to establish 12 deliberate indifference. Id. at 3. Lastly, Defendant asserts that the medical records do not 13 show that Defendant Sweet’s denial caused a five-month delay in surgery because there 14 was no emergent need at the time she denied the first request for a referral, and that any 15 delay that her decision caused was only for a little more than a month as it was later 16 granted. Id. at 4. 17 After carefully reviewing the complaint, the supporting documents, and the 18 pleadings, the Court finds Plaintiff has failed to state an Eighth Amendment claim for 19 deliberate indifference to serious medical needs against Defendant Sweet. In support of 20 his claim, Plaintiff has relied on copies of relevant portions of his medical record, the 21 authenticity of which is not contested. See Lee, 250 F.3d at 688. In relying on these 22 documents, Plaintiff has included unnecessary details which contradict his claim because 23 the documents contain information which do not support his allegations. Sprewell, 266 24 F.3d at 988. As a result, Plaintiff has made legal conclusions which cannot reasonably be 25 drawn from the facts alleged. Clegg, 18 F.3d at 754-55 . 26 First of all, the medical records attached to the complaint contradict Plaintiff’s 1 immediately approved the referral for a surgery consultation in accordance with his PCP’s 2 orders. Rather, the papers show that by the time Plaintiff was first seen by Dr. Chen on 3 February 25, 2020, over three weeks had passed since he had allegedly injured his right 4 arm on January 31, 2020. See supra at 2. Dr. Chen opined that since such a length of time 5 had passed, the injury “may not respond as nicely to surgical correction.” Id. at 3. But the 6 fact that Dr. Chen was willing to submit a request for an orthopedic surgery consult at that 7 time does not establish that it was her only course of treatment for Plaintiff. Rather, the 8 same papers show that Dr. Chen also ordered diagnostic testing, i.e., the ultrasound and 9 radiology, to “verify” the injury, which indicates another course of treatment. Id. 10 Moreover, she made the request for an orthopedic surgery evaluation as “routine priority 11 (46-90 days),” not “urgent” as Plaintiff alleges. Id. Accordingly, Plaintiff’s allegation that 12 Defendant Sweet ignored a “serious and time sensitive injury” in denying the referral on 13 February 27, 2020, is contradicted by the record. 14 Secondly, the papers do not support Plaintiff’s allegation that when Defendant 15 Sweet denied the initial request for an orthopedic referral, she did so with deliberate 16 indifference to his serious medical needs, the second requirement for an Eighth 17 Amendment claim. Specifically, the papers do not support a claim that Defendant Sweet 18 knew that Plaintiff faced a substantial risk of serious harm and disregarded that risk by 19 failing to take reasonable steps to abate it. See Farmer, 511 U.S. at 837 . Defendant Sweet 20 must both know of facts from which the inference could be drawn that an excessive risk of 21 harm exists, and she must actually draw that inference. Id. The medical records on which 22 Plaintiff relies do not support such a claim. Defendant Sweet clearly stated her reasons for 23 denying the request: (1) she believed that conservative treatment should first be exhausted, 24 and (2) she did not believe that Plaintiff’s condition required surgery because his 25 functional loss did not amount to significant impairment. See supra at 3. The first reason 26 indicates that she believed Plaintiff still had other treatment options open to him, which is 1 indicates Defendant Sweet did not believe Plaintiff’s condition was so serious as to 2 warrant surgery. In sum, her explanation shows that Defendant Sweet was not aware of 3 “facts from which the inference could be drawn” that there was an excessive risk of harm 4 to Plaintiff if she did not grant the referral for a surgical evaluation at that time. In 5 opposition, Plaintiff merely makes conclusory arguments which fail to show that 6 Defendant Sweet’s decision was unreasonable under the circumstances. See supra at 11. 7 Moreover, Plaintiff asserts in opposition that Defendant Sweet “did not appreciate that 8 there was an emergency need.” Id. In other words, Plaintiff admits that Defendant Sweet 9 did not understand or recognize that his condition was an emergency. Even if Defendant 10 Sweet should have been aware of a serious risk but was not, as Plaintiff indicates, then 11 Defendant Sweet has not violated the Eighth Amendment, no matter how severe the risk. 12 See Gibson, 290 F.3d at 1188. 13 In addition, the medical records on which Plaintiff relies do not indicate that 14 Defendant Sweet deliberately chose to do nothing. These papers show that Defendant 15 Sweet took reasonable steps to abate any existing risk to Plaintiff, i.e., approving Dr. 16 Chen’s requests for an ultrasound and then an MRI, as alternatives to an immediate referral 17 for surgery consult. See supra at 3. She also promptly granted these requests within a day 18 or two of them being made. Id. Accordingly, her actions in this regard do not indicate that 19 Defendant Sweet disregarded a known risk of serious harm to Plaintiff and failed to take 20 reasonable steps to abate it. 21 With regard to Plaintiff’s claim that Defendant Sweet’s chosen course of treatment 22 was medically unacceptable under the circumstances, that claim is also contradicted by the 23 attached papers. First, Defendant Sweet’s approval of Dr. Chen’s requests for diagnostic 24 tests show that she was not in complete disagreement with Dr. Chen’s chosen course of 25 treatment. Secondly, even if it were true that Dr. Chen also chose surgery as a course of 26 treatment when she first examined Plaintiff on February 25, 2020, the papers indicate that 1 significant abnormality.” See supra at 3. Dr. Chen informed Plaintiff on April 7, 2020, 2 that the visualized ligaments and tendons were all normal and that no provider follow-up 3 was required. See supra at 3-4. Dr. Chen made no mention of a need for surgical consult. 4 Therefore, it can be inferred that she no longer believed that surgery was medically 5 necessary. Accordingly, the papers do not support Plaintiff’s allegation that Defendant 6 Sweet’s chosen course of treatment, i.e., to initially deny orthopedic consult and proceed 7 with diagnostic tests to verify injury, was unreasonable where even his PCP changed the 8 course of treatment after diagnostic tests showed normal results. 9 Lastly, the medical records contradict Plaintiff’s allegation that Defendant Sweet 10 was responsible for the five-month delay in seeing a specialist which resulted in further 11 pain and irreparable injury. As discussed above, Plaintiff’s MRI results on March 20, 12 2020, were normal. Accordingly, the medical records contradict Plaintiff’s allegation that 13 Defendant Sweet’s denial of the referral on February 27, 2020, resulted in further harm 14 because an MRI of his arm nearly a month later showed no abnormalities. See McGuckin, [15] 974 F.2d at 1060 . Plaintiff next saw Dr. Chen on April 17, 2020, when he continued to 16 complain of pain in his right arm even after the normal MRI results. Id. at 4 . Even if it 17 were true that she advised Plaintiff that her hands were “tied,” Dr. Chen nevertheless was 18 able to submit another referral for an orthopedic evaluation, which was granted by Dr. 19 Posson on April 20, 2020. Id. That request was again submitted as “routine priority (4620 90 days).” Id. There is no indication in the papers, nor does Plaintiff allege, that 21 Defendant Sweet was involved in Plaintiff’s treatment at this time. While this referral was 22 pending, Dr. Chen submitted a request for another MRI on April 21, 2020, approximately a 23 month after the first normal MRI, because Plaintiff continued to complain of severe pain. [24] Id. Because this second MRI showed a “partial rotator cuff tearing,” Dr. Chen submitted 25 another request for an orthopedic surgery evaluation on May 4, 2020, which was approved 26 by a non-party. Id. That request was also submitted as “routine priority (46-90 days).” Id. 1 August 2, 2020, Plaintiff saw Dr. Kowall on July 29, 2020. Id. Again, there is no 2 indication in the papers, nor does Plaintiff allege, that Defendant Sweet was involved in 3 Plaintiff’s treatment during this time. Moreover, after Dr. Kowall’s consult on July 29, 4 2020, Defendant Sweet promptly granted Dr. Chen’s request for orthopedic surgery repair 5 on the same day it was submitted. See supra at 5. Her prompt action does not indicate 6 deliberate indifference or an intent to delay necessary treatment for a serious condition. 7 Accordingly, the medical records contradict Plaintiff’s allegations that Defendant Sweet’s 8 initial denial on February 27, 2020, caused him further pain and irreparable injury or that 9 she was responsible for the delay in seeing a specialist over the subsequent months until 10 his surgery on August 3, 2020. 11 Based on the foregoing, the Court finds that the complaint fails to state a claim of 12 deliberate indifference to serious medical needs against Defendant Sweet because the 13 attached papers contradict Plaintiff’s claim. See Sprewell, 266 F.3d at 988; Clegg, 18 F.3d 14 at 754-55. Accordingly, Defendant Sweet’s motion to dismiss the Eighth Amendment 15 claim for failure to state a claim should be granted. Because the facts have been construed 16 in the light most favorable to Plaintiff and he has made no argument that an amendment 17 could cure these deficiencies, nor does it appear that he could do so, the dismissal is 18 without leave to amend.3 19 IV. Summary Judgment 20 Plaintiff claims Defendant Laufik was “professionally negligent” because his 21 diagnosis of Plaintiff’s right elbow tendon as “normal” was a “breach of duty as a 22 professional of the healing arts.” Dkt. No. 1 at ¶¶ 46-47. Plaintiff claims that months after 23 Defendant Laufik’s diagnosis, Dr. Kowall diagnosed a “distal bicep tendon rupture” which 24 required urgent surgery. Id. at ¶ 47 . He claims Defendant Laufik’s misdiagnosis extended 25 the time interval between his injury and seeing an orthopedic specialist, which created [26] 1 irreparable damage and needless pain and suffering. Id. This is essentially a claim of 2 medical malpractice. Plaintiff also generally claims that Defendant Laufik’s actions 3 violated his rights and constitutes cruel and unusual punishment under the Eighth 4 Amendment. Id. at ¶ 47 . The Court exercised supplemental jurisdiction over the state law 5 claim. Dkt. No. 9 at 2. Although the Court did not recognize a cognizable deliberate 6 indifference claim against Defendant Laufik in its initial screening order, the Court will 7 decide this issue as well since the claim has been briefed. 8 Defendant Laufik moves for summary judgment on the grounds that there is no 9 dispute of material fact and he entitled to judgment as a matter of law. Dkt. No. 42 at 1. 10 In support, he submits the declaration of counsel Patrick C. Stokes with exhibits, Dkt. No. 11 42-2, his own declaration with exhibits, Dkt. No. 42-3, and the declaration of Dr. Erik 12 Gaensler with exhibits, Dkt. No. 42-4. 13 Shortly after Defendant Laufik filed a summary judgment motion, Plaintiff filed a 14 motion to appoint counsel and an independent expert. Dkt. No. 43. The Court first 15 addresses Plaintiff’s motion below. 16 A. Motion for Appointment of Counsel and Independent Expert 17 Plaintiff asserts that he is unable to afford counsel, imprisonment greatly limits his 18 ability to litigate, the issues are complex, and he has limited access to the law library and 19 limited knowledge of the law. Id. at 1-2 . There is no constitutional right to counsel in a 20 civil case unless an indigent litigant may lose his physical liberty if he loses the litigation. 21 See Lassiter v. Dep’t of Social Services, 452 U.S. 18, 25 (1981); Rand v. Rowland, 113 22 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional right to counsel in § 1983 action), 23 withdrawn in part on other grounds on reh’g en banc, 154 F.3d 952 (9th Cir. 1998) (en 24 banc). The decision to request counsel to represent an indigent litigant under § 1915 is 25 within “the sound discretion of the trial court and is granted only in exceptional 26 circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). The grounds 1 to constitute exceptional circumstances. Accordingly, the motion is DENIED without 2 prejudice for lack of exceptional circumstances. See Agyeman v. Corrections Corp. of 3 America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 1525 (9th Cir. 1997); 4 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 5 1328, 1331 (9th Cir. 1986). 6 Plaintiff requests the Court to appoint an independent expert to certify the alleged 7 authenticity of the data CD submitted by Defendant Laufik that contains MRI images, and 8 to “render an opinion to the interpretation of its graphics.” Dkt. No. 43 at 2-3. Both 9 Defendants oppose the motion. Dkt. Nos. 44, 47. 10 Federal Rule of Evidence 706 authorizes the appointment of a neutral expert 11 witness, with expenses shared by the parties. The appointment of an independent expert 12 witness pursuant to Rule 706 is within the court's discretion, Walker v. American Home 13 Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999), and may be 14 appropriate when “scientific, technical, or other specialized knowledge will assist the trier15 of-fact to understand the evidence or decide a fact in issue,” Ledford v. Sullivan, 105 F.3d 16 354, 358-59 (7th Cir. 1997). However, the statute authorizing plaintiff’s in forma pauperis 17 status does not authorize the expenditure of public funds for expert witnesses. See 28 18 U.S.C. § 1915 ; Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989) (expenditure of 19 public funds on behalf of indigent litigant is proper only when authorized by Congress). 20 The federal courts have uniformly held that an indigent prisoner litigant must bear his own 21 costs of litigation, including witnesses. Id. at 211 (in forma pauperis statute does not 22 authorize waiver of fees for an indigent’s witnesses). 23 To the extent that Plaintiff is seeking to have the Court appoint an expert witness to 24 aid his case, that request is denied pursuant to the authority cited above because of his 25 pauper status. To the extent Plaintiff is seeking a neutral expert, the Court does not find 26 that the issues in this case are so complicated such that the testimony of a neutral expert is 1 involved are overly complex. Accordingly, the motion for an independent expert is 2 DENIED. Dkt. No. 43. 3 The Court notes that notwithstanding the absence of counsel or an independent 4 expert, Plaintiff filed opposition to Defendant Laufik’s summary judgment motion. Dkt. 5 No. 45. The Court will therefore proceed with Defendant’s summary judgment motion. 6 B. Standard of Review 7 Summary judgment is proper where the pleadings, discovery and affidavits show 8 that there is “no genuine dispute as to any material fact and the movant is entitled to 9 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment 10 “against a party who fails to make a showing sufficient to establish the existence of an 11 element essential to that party’s case, and on which that party will bear the burden of proof 12 at trial . . . since a complete failure of proof concerning an essential element of the 13 nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. 14 Cattrett, 477 U.S. 317, 322-23 (1986). A fact is material if it might affect the outcome of 15 the lawsuit under governing law, and a dispute about such a material fact is genuine “if the 16 evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 17 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 18 Generally, the moving party bears the initial burden of identifying those portions of 19 the record which demonstrate the absence of a genuine issue of material fact. See Celotex 20 Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on an issue 21 at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other 22 than for the moving party. But on an issue for which the opposing party will have the 23 burden of proof at trial, the moving party need only point out “that there is an absence of 24 evidence to support the nonmoving party’s case.” Id. at 325. If the evidence in opposition 25 to the motion is merely colorable, or is not significantly probative, summary judgment may 26 be granted. See Liberty Lobby, 477 U.S. at 249-50 . 1 her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on 2 file,’ designate specific facts showing that there is a genuine issue for trial.’” Celotex 3 Corp., 477 U.S. at 324 (citations omitted). If the nonmoving party fails to make this 4 showing, “the moving party is entitled to judgment as a matter of law.” Id. at 323. 5 The Court’s function on a summary judgment motion is not to make credibility 6 determinations or weigh conflicting evidence with respect to a material fact. See T.W. 7 Elec. Serv., Inc. V. Pacific Elec. Contractors Ass’n, 809 F.2d 626 , 630 (9th Cir. 1987). 8 The evidence must be viewed in the light most favorable to the nonmoving party, and the 9 inferences to be drawn from the facts must be viewed in a light most favorable to the 10 nonmoving party. See id. at 631. It is not the task of the district court to scour the record 11 in search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275 , 1279 (9th Cir. 12 1996). The nonmoving party has the burden of identifying with reasonable particularity 13 the evidence that precludes summary judgment. Id. If the nonmoving party fails to do so, 14 the district court may properly grant summary judgment in favor of the moving party. See 15 id.; see, e.g., Carmen v. San Francisco Unified School District, 237 F.3d 1026 , 1028-29 16 (9th Cir. 2001). 17 C. Statement of Facts 18 The following facts are undisputed unless otherwise indicated. 19 At the time of the relevant events, Defendant Laufik was actively licensed to 20 practice medicine as a physician and surgeon in the State of California, and board certified 21 in Diagnostic Radiology by the American Board of Radiology. Laufik Decl. ¶¶ 2-4, Ex. 22 A.4 Defendant Laufik is a radiologist, and in this role, his sole involvement in Plaintiff’s 23 medical care was to review and report on radiology studies. Id. at ¶ 5. 24 On March 20, 2020, Plaintiff underwent an MRI (magnetic resonance imaging) of 25 the right elbow. Id. at ¶ 6, Ex. B; Dkt. No. 1 at ¶ 12. Defendant Laufik reviewed the [26] 1 images and found no significant abnormality in the images. Laufik Decl. ¶ 6. He prepared 2 a report of his findings the same day. Id. The MRI images contained no indication that 3 Plaintiff had suffered a right distal biceps tendon rupture. Laufik Decl. ¶ 7; Gaensler Decl. 4 ¶ 8a. 5 On May 1, 2020, Plaintiff underwent an MRI of the right shoulder. Laufik Decl. ¶ 6 8, Ex. C. Defendant Laufik reviewed the images and identified significant abnormalities, 7 including partial thickness rotator cuff tear with focal full-thickness or near full thickness 8 component at insertion, findings consistent with impingement, and additional nonemergent 9 findings. Id. Defendant Laufik prepared a report of his findings the same day the MRI 10 was performed. Id. This MRI contained no indication that Plaintiff had suffered a right 11 distal biceps tendon rupture. Id. at ¶ 9; Gaensler Decl. ¶ 8b. 12 On July 29, 2020, orthopedic surgeon Dr. Kowall diagnosed Plaintiff with right 13 distal biceps avulsion. Dr. Kowall’s records indicate that the images from the March 20, 14 2020 MRI were not available to him, noting “Radiographic Findings: Right elbow 15 ultrasound and MRI not available for review.” Gaensler Decl. ¶ 9. 16 According to Plaintiff, his PCP diagnosed him with a rupture in his right distal 17 bicep tendon on February 25, 2020, and submitted a request for an orthopedic surgical 18 evaluation. Dkt. No. 45-1 at ¶ 4. Plaintiff states that Dr. Kowall informed him at the July 19 29, 2020 consult, that the previous clinical findings reported by Defendant Laufik were 20 inaccurate and [Plaintiff] suffered an obvious rupture in [his] right distal bicep tendon and 21 needed surgery. Id. at ¶ 29. 22 D. Medical Malpractice 23 In his summary judgment motion, Defendant asserts that Plaintiff’s medical 24 malpractice claim fails because the undisputed material facts establish that Defendant 25 Laufik complied with the standard of care at all times and in all aspects of his care and 26 treatment of Plaintiff. Dkt. No. 42 at 4. 1 the duty of the professional to use such skill, prudence, and diligence as other members of 2 his profession commonly prosses and exercise; (2) breach of that duty; (3) a proximate 3 causal connection between the negligent conduct and the resulting injury; and (4) actual 4 loss or damage resulting from the professional’s negligence.” Hanson v. Grode, 76 5 Cal.App.4th 601, 606 (1999) (internal citations and quotation marks omitted). 6 “The standard of care against which the acts of a physician are to be measured is a 7 matter peculiarly within the knowledge of experts; it presents the basic issues in a 8 malpractice action and can only be proved by their testimony.” Id. at 606-607 (internal 9 quotations omitted). California courts have incorporated the expert evidence requirement 10 into their standard for summary judgment in medical malpractice cases, such that when a 11 defendant moves for summary judgment which is supported by expert declarations that his 12 conduct fell within the community standard of care, he is entitled to summary judgment 13 “unless the plaintiff comes forward with conflicting expert testimony.” Id. at 607 ; see also 14 Vandi v. Permanente Medical Group, Inc., Cal.App.4th 1064, 1071 (1992). 15 Rule 702 of the Federal Rules of Evidence provides that a “witness who is qualified 16 as an expert by knowledge, skill, experience, training, or education may testify in the form 17 of an opinion or otherwise if: [18] (a) the expert’s scientific, technical, or other specialized knowledge will 19 help the trier of fact to understand the evidence or to determine a fact in issue; 20 (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and [21] (d) the expert has reliably applied the principles and methods to the facts of 22 the case.” 23 Fed. R. Evid. 702. 24 In support of his motion, Defendant submits the declaration of Erik Gaensler, M.D., 25 who gives expert testimony regarding whether Defendant Laufik met the standard of care 26 with respect to Plaintiff’s MRIs. Dkt. No. 42-4. The Court finds this expert opinion is 1 Defendant asserts that Plaintiff’s allegations against him are based entirely on his 2 personal belief that Defendant Laufik should have diagnosed right distal biceps tendon 3 rupture based on the MRI taken on March 20, 2020. Dkt. No. 42 at 3. Defendant asserts 4 that Plaintiff’s claims are groundless because those MRI images, as well as the MRIs taken 5 on May 1, 2020, contain no indication that Plaintiff had suffered a right distal biceps 6 tendon rupture. Id. Defendant asserts his findings are supported by Dr. Gaensler’s 7 opinions, which are based on: (1) his education, training, and experience; and (2) his 8 review of the declarations of Mr. Stokes and Defendant Laufik in support of this motion 9 and the exhibits thereto. Id. at 7-8. 10 In opposition, Plaintiff asserts there are material facts in dispute. Dkt. No. 45 at 1. 11 He first asserts that it is “common knowledge that a MRI reveals more detail than a ultra 12 sound.” Id. at 12. Plaintiff asserts that his PCP diagnosed him with a rupture in his right 13 distal bicep tendon and requested an orthopedic surgical evaluation on February 25, 2020. 14 Id. Dr. Kowall later confirmed this diagnosis and stated Defendant Laufik’s reading was 15 inaccurate. Id. at 13. Accordingly, Plaintiff asserts that it is unlikely that the MRI on 16 March 20, 2020, “would not reveal the source of the March 12, 2020 hematoma which was 17 discovered during the ultra sound.” Id. He concludes that based on the inaccurate 18 information Defendant provided, the urgent treatment he needed to repair the injury to his 19 arm was unnecessarily delayed. Id. at 14. 20 In reply, Defendant asserts that he is entitled to prevail because Plaintiff has failed 21 to present an expert declaration specifying that Defendant Laufik breached the standard of 22 care. Dkt. No. 48 at 3. He asserts that Plaintiff’s attempt to manufacture a triable issue by 23 offering his own medical opinion and alleging a disagreement by Dr. Kowall with 24 Defendant Laufik’s findings also fails. Id. at 4. Defendant also objects to the following 25 portions of Plaintiff’s declaration: (1) his allegation that Dr. Kowal informed him that 26 Defendant Laufik’s findings were inaccurate, Dkt. No. 45-1, ¶ 29, and (2) it is “common 1 Defendant objects to the first as hearsay under Federal Rule of Evidence 801(c), which is 2 inadmissible under Rule 802, with no exceptions cited under Rules 803, 804, and 807. Id. 3 Defendant asserts the second as inadmissible lay opinion under Federal Rule of Evidence 4 701, which requires specialized knowledge within the scope of Rule 702 and Plaintiff has 5 failed to establish that he is qualified to give such expert opinion. Id. 6 Defendant’s first objection to the admission of Dr. Kowall’s statement as hearsay 7 must be sustained. It is clearly hearsay because Plaintiff’s recitation of what he recalls Dr. 8 Kowall telling him cannot be offered for the truth of the matter asserted, i.e., that 9 Defendant Laufik’s findings were inaccurate. See Fed. R. Evid. 801(c). Furthermore, it 10 cannot be said that the exception under Rule 803(4) (statement made for medical diagnosis 11 or treatment) applies, particularly since the contemporaneous record shows that the MRI in 12 question was not available for Dr. Kowall to review at that time and the progress notes do 13 not indicate that Dr. Kowall made such a statement. There is also no indication that any of 14 the other exceptions under Rule 803 applies, nor under Rules 804 (declarant available) and 15 807 (residual exception). It is therefore inadmissible under Rule 802. 16 With regard to Defendant’s second objection to Plaintiff’s opinion, it is sustained in 17 so far as Plaintiff is clearly not qualified to offer expert testimony under Rule 702. On the 18 other hand, it may be admissible as opinion testimony by a lay witness under Rule 701. 19 However, Plaintiff’s opinion on whether it is common knowledge that an MRI reveals 20 more than an ultrasound is ultimately irrelevant on the issue of whether Defendant Laufik 21 acted with professional negligence in reading Plaintiff’s MRIs. 22 After a careful review of the evidence, the Court finds there are no genuine issues of 23 material fact as to whether Defendant Laufik breached the standard of care with respect to 24 his treatment of Plaintiff. Defendant has satisfied his initial burden of demonstrating the 25 absence of a genuine issue of material fact with the expert opinion of Dr. Gaensler. Dr. 26 Gaensler attests that he has been a licensed physician in the State of California since 1986, 1 Radiology by the American Board of Radiology in 1989. Gaensler Decl. ¶ 1. He is also 2 qualified in neuroradiology and interventional radiology since 1996. Id., Ex. A. Dr. 3 Gaensler attests that he is familiar with the community standard of care applicable to the 4 practice of radiology and the particular radiological procedures and particular condition 5 involved in Plaintiff’s case, i.e., the MRI of the elbow and shoulder and distal biceps 6 tendon rupture. Id. at ¶ 2. Dr. Gaensler has reviewed the materials pertaining to the 7 involvement of Defendant Laufik in the medical care of Plaintiff, which includes the 8 following: the MRI images of Plaintiff’s right shoulder taken on March 20, 2020, and 9 Defendant Laufik’s report of those images; the MRI images of Plaintiff’s right shoulder 10 taken on May 1, 2020, and Defendant Laufik’s report of those images; and the records of 11 Dr. Kowall’s consultation with Plaintiff on July 29, 2020. Id. at ¶¶ 3, 4. 12 Dr. Gaensler found that the MRI images from March 20 and May 1, 2020, “contain 13 no indication that [Plaintiff] had suffered a right distal biceps tendon rupture.” Gaensler 14 Decl. ¶ 8. Dr. Gaensler opines that the fact Dr. Kowall later diagnosed Plaintiff with right 15 distal biceps avulsion on July 29, 2020, does not mean Defendant Laufik was negligent in 16 his interpretation and reporting of Plaintiff’s MRIs. Id. at ¶ 9. Dr. Gaensler opines that 17 Defendant Laufik met the standard of care in his interpretation and reporting of the MRI 18 studies of Plaintiff from March 20, 2020, and May 1, 2020. Id. at ¶ 10. He opines that 19 Defendant Laufik’s reports of those studies “adequately reflect all clinically significant 20 abnormalities apparent in the images” as well as “accurately reflect that the images of the 21 studies contain no indication of distal biceps tendon rupture.” Id. Dr. Gaensler concludes 22 that Defendant Laufik’s interpretation of the MRIs and his reports “are consistent with the 23 care and skill ordinarily exercised by reputable and reasonably prudent radiologists 24 practicing in like cases and under similar circumstances.” Id. Dr. Gaensler’s testimony is 25 sufficient to show that there is no evidence to support Plaintiff’s medical malpractice 26 claim. See Celotex Corp., 477 U.S. at 325 . 1 324. He has failed to meet this burden. Under California law, Plaintiff can only prevail 2 against Defendant Laufik’s summary judgment motion if he comes forward with 3 conflicting expert testimony. Hanson, 76 Cal.App.4th at 607. He has not done so. His 4 allegation that Dr. Kowall disagreed with Defendant Laufik’s findings is not sufficient to 5 satisfy this requirement. Even if the Court were to consider the hearsay opinion of Dr. 6 Kowall on the presumption that Plaintiff could produce the witness at trial, the offered 7 opinion remains inadmissible because there is no evidence that Dr. Kowall has the 8 requisite expertise in radiology to render an expert opinion on MRI images to present a 9 valid conflicting expert opinion. Furthermore, even if he did, the undisputed evidence 10 shows that Dr. Kowall never saw the MRI from March 20, 2020. See supra at 21. 11 Accordingly, Dr. Kowall was not in any position to express an informed disagreement with 12 Defendant Laufik’s interpretation of those images, if indeed he did express such a 13 disagreement. The Court notes that the medical records do not contain any such opinion 14 by Dr. Kowall, as Plaintiff alleges. But even if he had, such a disagreement was based 15 purely on speculation that Plaintiff had no intervening change in his condition between 16 March 20, 2020 and July 29, 2020. Lastly, as Defendant asserts, a mere difference of 17 opinion between health care providers is insufficient to establish medical malpractice. Id., 18 citing Clemens v. Regents of University of Cal., 8 Cal.App.3d 1, 13 (1970) (citing Meier v. 19 Ross General Hospital, 69 Cal.2d 420, 434 (1968)). Lastly, Plaintiff’s lay opinion 20 regarding ultrasounds and MRIs does not amount to expert testimony under Rule 702, and 21 fails to satisfy his burden of producing conflicting expert testimony to overcome 22 Defendant’s summary judgment motion. 23 Based on the evidence presented, Defendant Laufik has demonstrated the absence 24 of a genuine issue of material fact with respect to Plaintiff’s medical malpractice claim 25 against him. See Celotex Corp., 477 U.S. at 323 . In response, Plaintiff has failed to 26 designate specific facts showing that there is a genuine issue for trial, id. at 324 , or identify 1 F.3d at 1279. Because no reasonable fact finder could conclude that Defendant’s conduct 2 amounted to medical malpractice, Defendant Laufik is entitled to judgment on his claim. 3 See Celotex Corp., 477 U.S. at 323 ; Hanson, 76 Cal.App.4th at 607. 4 E. Deliberate Indifference – Eighth Amendment 5 Plaintiff generally alleges that Defendant Laufik’s actions violated his rights and 6 constitutes cruel and unusual punishment under the Eighth Amendment. Dkt. No. 1 at ¶ 7 47. 8 Defendant asserts that this claim is invalid on its face because Plaintiff fails to 9 satisfy the elements under Farmer v. Brennan, 511 U.S. 825, 837-838 (1994). Dkt. No. 42 10 at 9. Defendant also asserts that medical malpractice or negligence in diagnosing or 11 treating a medical condition does not constitute deliberate indifference to serious medical 12 needs. Id., citing Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002). Accordingly, even 13 if Plaintiff’s allegations of negligence were accepted as true, they would be insufficient to 14 establish deliberate indifferent by Defendant Laufik. Id. Plaintiff’s opposition is silent 15 with respect to this Eighth Amendment claim against Defendant Laufik. Dkt. No. 45. 16 Defendant asserts in reply that he is therefore entitled to prevail on the motion as to this 17 claim. Dkt. No. 48 at 3. 18 A prison official violates the Eighth Amendment only when two requirements are 19 met: (1) the deprivation alleged is, objectively, sufficiently serious, and (2) the official is, 20 subjectively, deliberately indifferent to the inmate’s health or safety. See Farmer v. 21 Brennan, 511 U.S. 825, 834 (1994). As discussed above, the Court has found there are no 22 genuine disputes of material fact that Defendant Laufik was negligent with respect to his 23 treatment of Plaintiff. Other than his allegations that Defendant Laufik acted with 24 negligence, the complaint contains no facts indicating that Defendant Laufik acted with 25 deliberate indifference to Plaintiff’s serious medical needs, i.e., he knew that Plaintiff 26 faced a substantial risk of serious harm and disregarded that risk by failing to take 1 || Defendant Laufik acted promptly in reviewing and issuing reports the same day that the 2 || MRIs were taken on March 20, 2020, and May 1, 2020. See supra at 20-21. These MRIs 3 were the full extent of Defendant Laufik’s involvement in Plaintiff’s medical care. The 4 || undisputed evidence shows that he did not act with deliberate indifference in this regard. 5 || Because no reasonable fact finder could conclude that Defendant’s conduct amounted to 6 || deliberate indifferent, Defendant Laufik is entitled to summary judgment on this claim. 7 || See Celotex Corp., 477 U.S. at 323 . [8] 9 CONCLUSION 10 For the foregoing reasons, the Court orders as follow: 11 1. Defendant Dr. Mary K. Sweet’s motion to dismiss the claim against her for 2 failure to state a claim is GRANTED. Dkt. No. 13. The Eighth Amendment claim against E 13. || Defendant Sweet is DISMISSED with prejudice for failure to state a claim under Rule | 120V0) 8 15 2. In light of this dismissal, Defendant’s motions to stay discovery and 16 || Plaintiffs motion to resolve a discovery dispute are DENIED as moot. Dkt. Nos. 30, 40. 5 17 3. Plaintiff's motion for appointment of counsel and independent medical 5 18 expert is DENIED. Dkt. No. 43. 19 4. Defendant Laufik’s motion for summary judgment is GRANTED. Dkt. No. 20 || 42. The medical malpractice and Eighth Amendment claims against him are DISMISSED 71 with prejudice. Defendant Laufik’s motion to dismiss is DENIED as moot. Dkt. No. 33. 2 This order terminates Docket Nos. 13, 30, 33 40, 42, and 43. 23 IT ISSO ORDERED. 24 || Dated: January 4, 2023 fdinlhacicen BETH LABSON FREEMAN 25 United States District Judge [26] 97 || □□□□□□□□□□□□□□□□□□□□□□ wenemdsny