Plaintiff, a federal prisoner, proceeds pro se. He seeks relief against Defendants pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for alleged violations of his constitutional rights. On January 13, 2005, Plaintiff filed a Complaint, which was screened, twice, pursuant to 28 U.S.C. § 1915A, and dismissed for failure to state a claim, with leave to amend. The case proceeded upon the filing of the Second Amended Complaint on August 14, 2006.
Plaintiff alleged that Defendants Schultz, Gant, Booth, and Moorhead deprived him of his protected liberty interest in remaining free from segregation in violation of the Fourth Amendment and the Due Process Clause of the Fifth Amendment. He alleged that Defendants Willis, Shojaei, Sielicki and Mettry violated the Eighth Amendment by acting with deliberate indifference to his medical needs.
On October 16, 2007, the Court granted Defendants' Motion to Dismiss all defendants named in their official capacity. Plaintiff failed to file a Response and dismissal was entered pursuant to Local Rule 78-230(m), which provides that the failure to oppose a motion "may be deemed a waiver of any opposition to the granting of the motion. . . ."
On January 1, 2008, Defendants filed a Motion to Dismiss the Plaintiff's Fourth and Fifth Amendment claims because he failed to administratively exhaust them. The Plaintiff filed a Response on February 25, 2008. A magistrate judge issued a Report and Recommendation that the Motion to Dismiss be granted. The Plaintiff filed an Objection, over which the Court adopted the Report and Recommendation and granted Defendants' Motion to Dismiss Plaintiff's Fourth and Fifth Amendment claims.
Only Count III remains, which is Plaintiff's allegation that Defendants Willis, Mettry, Shojaei, and Sielicki violated the Eighth Amendment to the United States Constitution by acting with deliberate indifference to his serious medical needs. He alleges that a needed surgical procedure to repair a hernia was delayed for six months. After finally receiving surgery at a local community hospital, he was returned to prison in less than three hours. He was housed in "S.H.U.," (Special Housing Unit), where post surgical care was inadequate or nonexistent. Specifically, he alleges that post surgery he had bleeding and leakage of body fluids from the incision and the medical care in S.H.U. was on a schedule for bandage and bedding changes and laundry that was inadequate to ensure cleanliness. He alleges he was not provided with adequate antibiotic or pain medication. (Second Amended Complaint at 3.)
On September 23, 2008, the Defendants filed a Motion for Summary Judgment. Defendants submit that Plaintiff has admitted his bedding was changed upon his request and, therefore, his claim of soiled bedding does not rise to the level of a constitutional violation. Overall, his allegations of inadequate medical care do not rise to the level of an Eighth Amendment claim of deliberate indifference. Defendants argue that Plaintiff's claims are barred by the doctrine of qualified immunity. To the extent that the Plaintiff seeks mental or emotional injury, his claims fail because he has not shown a physical injury as required under 42 U.S.C. § 1997e(e). To the extent the Plaintiff seeks to hold Defendants liable based on the doctrine of respondeat superior, such claims fail as a matter of law under Bivens. Plaintiff has failed to file a Response to Defendants' Motion for Summary Judgment.
Plaintiff has been given notice of LR 78-230(m), which makes the failure to oppose a motion "a waiver of any opposition to the granting of the motion. . . ." (Second Informational Order at 2.)*fn1 Plaintiff was subject to the operation of Rule 78-230(m) when the Court dismissed all claims brought against Defendants in their official capacity. Plaintiff has exhibited his understanding of the Rule and his ability to file responsive pleadings as he did respond to the Report and Recommendation. Additionally, the Defendants reminded the Plaintiff of LR 78-230(m) with the filing of the Motion for Summary Judgment. (Notice of Motion for Summary Judgment.) Plaintiff was given notice regarding the requirements for opposing a motion for summary judgment made pursuant to Fed. R. Civ. P. 56. (Second Information Order at 3 (citing Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988); Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998)). Accordingly, the Court reviews the Defendants' arguments for summary judgment, pursuant to LR 78-230(m).
"A motion for summary judgment cannot be granted simply because the opposing party violated a local rule." Marshall v. Gates, 44 F.3d 722, 725 (9th Cir. 1995) (citing Henry v. Gill Industries Inc., 983 F.2d 943, 950 (9th Cir. 1993). This is so because a party may oppose a motion for summary judgment without offering affidavits or any other materials in support of its opposition. "'Summary judgment may be resisted and must be denied on no other grounds than that the movant has failed to meet its burden of demonstrating the absence of triable issues.'" Id. at 106 (quoting Henry, 983 F.2d at 950).
The Court finds that the Defendants have carried their evidentiary burden and summary judgment is warranted in this case. The allegations in the Second Amended Complaint are insufficient to overcome the arguments and evidence provided by the Defendants that the Plaintiff was NOT treated with deliberate indifference regarding his medical needs.
The medical records reflect that he reported problems with his hernia on September 26, 2003, (MSJ, SOF at ¶ 5), and was given a referral for a medical consult and a prescription for Motrin, id. at ¶ 6. On December 19, Plaintiff inquired about surgery, and on January 5, 2004, he was referred to Dr. Lawrence Mueller, M.D., an outside specialist. Id. at ¶¶ 7-8. Plaintiff was seen by Dr. Mueller on January 16, 2004, and underwent surgery on March 9, 2004. Id. at ¶¶ 9-10. After the surgery, he was "totally medicated and had no pain." (MSJ at 3 (citing Pl's Depo. at 85)). He was ambulating and able to return to his cell to sleep. (MSJ, SOF at ¶12-13, 17.)
At his deposition, the Plaintiff testified that he woke around 7:00 p.m. on the 9th and was in pain. He alleged that when he asked for pain medication, he was told that he would have to wait until the next day for pain medication because the physician's assistant had already made the rounds. He also alleged that Defendant Mettry did not check his surgical dressing on the 9th. (MSJ at 5 (citing Pl's Depo. at 92)).
The medical records reflect, however, that she did check the dressing, found it to be clean and dry, and advised him to not remove it until he was evaluated by the physician's assistant. She advised him to avoid heavy lifting and vigorous activity. (MSJ, SOF at ¶¶13-17; Ex. H.)
At his deposition the Plaintiff alleged that on the 10,th the physician's assistant, Defendant Shojaei, was unaware he had surgery on the 9th, looked at his dressing from outside the cell, and provided him with "some pills" by throwing them into the cell on the floor and walking away. Plaintiff alleges he did not take the medication because he was in too much pain to retrieve them. (MSJ at 5 (citing Pl's Depo. at 92-96, 102-103)).
It is undisputed that on March, 11, 2004, Defendant Shojaei changed Plaintiff's dressing, instructed him to keep the area dry and clean, and provided Tylenol #3 for pain. (MSJ, SOF at ¶ 18.) On March 18, 2004, at his follow-up evaluation, Plaintiff's only complaint was of constipation. He was prescribed fiber tablets. Id. at ¶ 20. On April 5, Plaintiff requested and was seen by medical staff in ...