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Ricky W. James v. J. Wilber

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 10, 2010

RICKY W. JAMES,
PLAINTIFF,
v.
J. WILBER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. 59)

CLERK OF COURT IS DIRECTED TO ENTER JUDGMENT AND CLOSE ACTION

Order

I. Procedural History

Plaintiff Ricky W. James ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's complaint against Defendants M. Saenz, E. Johnson, and J. Wilbur for violation of the Eighth Amendment. On March 5, 2010, Defendants filed a motion for summary judgment. Defs.' Mot. Summ. J., Doc. 59. On March 29, 2010, Plaintiff filed his opposition. Pl.'s Opp'n, Docs. 63, 64. *fn1 No reply was timely filed. The matter is submitted pursuant to Local Rule 230(l).

II. Summary Judgment Legal Standard

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a Summary Judgment Motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986).

In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ. P. 56(e); Matsushita , 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986); Thifty Oil Co. v. Bank of Am. Nat'l Trust & Sav. Ass'n , 322 F.3d 1039, 1046 (9th Cir. 2002); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n , 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Long v. County of Los Angeles , 442 F.3d 1178, 1185 (9th Cir. 2006); Wool v. Tandem Computers, Inc. , 818 F.2d 1433, 1436 (9th Cir. 1987).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv. , 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita , 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).

In resolving a motion for summary judgment, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, Anderson , 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, Matsushita , 475 U.S. at 587 (citing United States v. Diebold, Inc. , 369 U.S. 654, 655 (1962) (per curiam)). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which an inference may be drawn. Richards v. Nielsen Freight Lines , 602 F. Supp. 1224, 1244-45 (E. D. Cal. 1985), aff'd , 810 F.2d 898, 902 (9th Cir. 1987).

Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . .Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita , 475 U.S. at 586-87 (citations omitted).

III. Undisputed Facts *fn2

Plaintiff was incarcerated at California State Prison-Corcoran ("CSP-COR") during the relevant time in this action.

A. Defendant Saenz

Defendant Saenz is a Licensed Vocational Nurse ("LVN") employed by the CDCR at CSP-COR. An LVN is an entry level health professional. Part of her training as an LVN includes training in emergency medical treatment. She is not qualified to perform medical examinations or prescribe medications. She is not qualified to evaluate dental conditions, including what may be a dental emergency. On June 11, 2006, in accordance with her emergency medical training, Defendant Saenz evaluated whether Plaintiff had a medical emergency based on his claims that he had an abscessed tooth. *fn3 Based on Defendant Saenz's training, she determined that an abscessed tooth is not a life threatening emergency. Therefore, she did not provide Plaintiff with emergency medical treatment or call for emergency medical treatment on June 11, 2006. She therefore did not examine Plaintiff's mouth. She did contact the dental department and passed along Plaintiff's request for emergency dental treatment. *fn4 Based on her request, the dental department made an appointment for Plaintiff for June 21, 2006. Plaintiff did not appear for that appointment, and he was rescheduled for the next available appointment. *fn5 Defendant Saenz contends that she provided Plaintiff with appropriate care under the standard of care for a LVN in her position. Plaintiff contends that he was unaware of his appointment with the dental office, and that Defendant Saenz was incompetent in evaluating and reporting Plaintiff's dental issues. Plaintiff contends he was not seen by a dentist until after he filed an inmate grievance.

B. Defendant Wilbur

Defendant Wilbur is a Doctor of Dental Surgery ("DDS"). As a DDS he is qualified to prescribe medication. As a DDS working for CDCR, Defendant Wilbur contends that he may not prescribe nutritional supplements. Defendant Wilbur contends that at CDCR institutions, nutritional supplements must be prescribed by medical staff. *fn6 Defendant Wilbur saw Plaintiff a total of three times. Each time Defendant Wilbur saw Plaintiff, Defendant contends that he treated him to the best of his ability and provided him with appropriate dental care within the standard of care of a dentist in his position. *fn7 On the first visit with Plaintiff on July 17, 2006, Defendant Wilbur contends that Plaintiff did not have an abscessed tooth, only a loose tooth caused by chronic periodontal disease. *fn8 His mouth was not infected. The visit was not a dental emergency. Plaintiff contends that Defendant Wilbur confirmed that the tooth was abscessed. (Pl.'s P. &. A. Support Opp'n 2, Doc. 64.).

Defendant Wilbur extracted Plaintiff's tooth on July 17, 2006. Defendant Wilbur contends that Plaintiff did not have a dental emergency, while Plaintiff contends it was. Defendant Wilbur contends that normally, pain is immediately relieved by the removal of a loose tooth caused by periodontal disease. Defendant Wilbur did not believe that Plaintiff needed pain medication because pain from a loose tooth should subside once the sore tooth is removed. Defendant Wilbur reviewed Plaintiff's medical records and found that Plaintiff was taking Hydrocodone, an opiate-based pain medication, three times a day at 500 mg. *fn9 Plaintiff was actually taking a hydrocodone/APAP pain medication at 5/500 mg, respectively. Defendant Wilbur contends that even if the extraction of his tooth did not immediately relieve Plaintiff's tooth ache, Defendant Wilbur found that 500 mg of hydrocodone three times per day should have been more than sufficient to relieve any periodontal pain - even if Plaintiff was taking the pain medication for another condition.

Because Plaintiff was already receiving significant pain medication, Defendant Wilbur did not believe it would be appropriate to prescribe him more. *fn10 Defendant Wilbur did not repair Plaintiff's broken dentures because they were beyond repair. Instead, he had Plaintiff sign a dental agreement and began the process for obtaining new dentures for Plaintiff. *fn11

Defendant Wilbur believed that Plaintiff's dental condition should not have prevented him from being able to eat the mechanically soft food served at CSP-COR. *fn12 Moreover, Defendant Wilbur contends that he could not prescribe a soft food diet or liquid nutritional supplement because he could not under CDCR policy. *fn13 Defendant Wilbur did not prescribe him antibiotics because Plaintiff did not have an infection, and did not, therefore, need antibiotics. *fn14

On August 9, 2006, Plaintiff saw Dr. Buenafe in the dental clinic. She extracted his lower tooth, number 18. Dr. Buenafe saw Plaintiff again on August 16, 2006, and extracted his lower tooth, number 31. She noted that Plaintiff's previous extractions appeared to be healing normally, with no facial swelling.

On September 9, 2006, Plaintiff's hydrocodone/APAP prescription was increased to four times per day by a medical doctor due to a back condition. On October 11, 2006, Defendant Wilbur saw Plaintiff for a second time in the dental department. Defendant Wilbur took an impression of his teeth for a wax model in the process of making new dentures. He ordered the bite block.

Defendant Wilbur did not prescribe him pain medication because he was already receiving hydrocodone four times a day, and more pain medication would not be appropriate. Defendant Wilbur contends that any periodontal pain should have been controlled by the prescribed pain medication, even if he was taking it for a different condition.

Plaintiff saw Defendant Wilbur for a third and final time on November 22, 2006. Defendant Wilbur continued the process for making him new dentures by taking measurements of his teeth, and ordering acrylic full upper dentures and partial lower dentures. The prison received the wax model of the dentures (bite block) on October 24, 2006. On November 22, 2006, Defendant Wilbur used the bite block to take measurements of Plaintiff's mouth for a wax set-up, which is a more finalized version of the wax model, and ordered acrylic dentures. Defendant Wilbur did not see Plaintiff again after November 22, 2006.

On January 24, 2007, Plaintiff returned to the dental clinic for a "try in" of the final wax model of his dentures. Plaintiff accepted the dentures as they appeared in the model.

C. Defendant Johnson

Defendant Johnson is an RN, working for CDCR at CSP-COR. Defendant Johnson's main function as an RN is to take care of patients in the absence of a physician. He also coordinates care approved by a physician. He may not prescribe soft food diets or nutritional supplements. He is not qualified to examine dental conditions. An RN may not prescribe medications, but may continue the care ordered by a physician.

On August 9, 2006, Plaintiff requested a soft food diet from the medical department because of his recent tooth extractions. Defendant Johnson reviewed this request on August 10, 2006, and scheduled him for an appointment the following day. On August 11, 2006, Defendant Johnson took Plaintiff's medical history, his vital signs, and his weight. Plaintiff weighed 132 pounds. Defendant Johnson noted that Plaintiff was taking hydrocodone, and he counseled Plaintiff on the use of pain medications.

Defendant Johnson contends that the food at CSP-COR is mechanically soft, meaning that it can be eaten by someone without teeth. Defendant Johnson believed that Plaintiff could eat the food at CSP-COR, although it may take him longer to eat than if he had teeth. *fn15

Defendant Johnson reviewed his records to make sure that Plaintiff was not losing a significant amount of weight, making his request an emergency. Defendant Johnson found that Plaintiff's weight fluctuated. Plaintiff weighed 133 pounds on April 26, 2006; 134 pounds on May 8, 2006; 135 pounds on May 22, 2006.

Based on Defendant Johnson's review of Plaintiff's medical records, Plaintiff's weight was within his normal weight fluctuations, showing that Plaintiff was receiving appropriate nutrition. Defendant Johnson did not believe Plaintiff's request was an emergency. Therefore, he scheduled him for a routine medical line appointment for August 25, 2006, so he could see a nurse practitioner or doctor regarding his request for a nutritional supplement. Defendant Johnson provided Plaintiff with the care that he believed to be appropriate. On August 16, 2006, Plaintiff composed a request for medical treatment noting the following: "On 8/11 I seen R.N. Johnson upon his request who was very rude. And put me in to see doctor (I am afraid he did not.) I am in a lot of pain and unable to eat with 3 teeth and numerous extractions in preparation for dentures - both on left & right sides. I need to see doctor ASAP."

Defendant Johnson received Plaintiff's request on August 17, 2006, and noted that an appointment had already been made for him for August 25, 2006. Defendant Johnson did not see Plaintiff again concerning his request for a soft food diet.

D. Additional Facts

On August 25, 2006, Plaintiff saw Nurse Practitioner Lu. Plaintiff requested a liquid diet supplement and an increase in his hydrocodone prescription. Nurse Lu denied his request for an increase in hydrocodone, but prescribed him a liquid diet supplement, which he began receiving four days later. Plaintiff received a liquid diet supplement three times a day from August 29, 2006 through September 30, 2006.

On October 10, 2006, a dietician saw Plaintiff concerning his general health and nutrition. The dietician noted that Plaintiff's ideal body weight for a 5'5", adult male ranges from 122-149 lbs. The dietician noted that he was in this range. *fn16

Plaintiff received a liquid diet supplement three times a day from October 11, 2006 through October 13, 2006. Between October 14, 2006 and November 30, 2006, Plaintiff received a liquid diet supplement two times a day.

A blood panel diagnostic test can check for malnutrition. The blood panel consists of an Albium reading. Albium is a gross measure of blood proteins. Normal Albium levels are between 3.3 and 5.2. On May 9, 2006 and October 31, 2006, Plaintiff had a blood panel completed showing that his Albium levels were 4.1 and 4.3, respectively. The May 9, 2006 and October 31, 2006 panels showed that Plaintiff was not suffering from malnutrition.

Between April 2006 and April 2007, Plaintiff fluctuated in weight between 131 and 136 pounds. At no point in time did he gain or lose more than three pounds between weighings. He was at a healthy weight the entire time between April 2006 and April 2007. Based on his blood protein levels and his weight, Plaintiff received appropriate nutrition.

On June 15, 2006, Plaintiff was prescribed 5/500 mg of hydrocodone/APAP three times per day. He continued to receive this medication until September 6, 2006. On September 7, 2006, he began receiving 5/500 mg of hydrocodone/APAP four times per day. He continued this regimen until March 2007. *fn17

Defendant Wilbur contends that if Plaintiff had received dental treatment on June 11, 2006, Plaintiff's course of dental treatment would have been the same. Defendant Wilbur contends that Plaintiff's teeth would still have been extracted, the dental department still would not have provided liquid diet supplements or pain medication, and he still would have required dentures.

Between August 11, 2006 and August 25, 2006, Plaintiff lost one pound. Between April 2006 and April 2007, Plaintiff's weight fluctuated normally.

III. Analysis

A. Deliberate Indifference To A Serious Medical Need

The Eighth Amendment prohibits cruel and unusual punishment. "The Constitution does not mandate comfortable prisons." Farmer v. Brennan , 511 U.S. 825, 832 (1994) (quotation and citation omitted). A prisoner's claim of inadequate medical care does not rise to the level of an Eighth Amendment violation unless (1) "the prison official deprived the prisoner of the 'minimal civilized measure of life's necessities,'" and (2) "the prison official 'acted with deliberate indifference in doing so.'" Toguchi v. Chung , 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan , 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). The deliberate indifference standard involves an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious . . . ." Farmer , 511 U.S. at 834 (citing Wilson v. Seiter , 501 U.S. 294, 298 (1991)). Second, the prison official must "know[] of and disregard[] an excessive risk to inmate health or safety . . . ." Id. at 837.

"Deliberate indifference is a high legal standard." Toguchi , 391 F.3d at 1060. "Under this standard, the prison official must not only 'be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists,' but that person 'must also draw the inference.'" Id. at 1057 (quoting Farmer , 511 U.S. at 837). "'If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk.'" Id. (quoting Gibson v. County of Washoe, Nevada , 290 F.3d 1175, 1188 (9th Cir. 2002)).

B. Defendant Saenz

Defendant Saenz contends that she acted appropriately under the Eighth Amendment. Defs.' P. & A. Support Mot. Summ. J. 8:2-13. Defendants contend that as an LVN, she is qualified only to make determinations regarding life-threatening emergencies, not dental emergencies. Id. When Plaintiff informed Defendant Saenz of his dental issues, Defendant Saenz informed the dental department of Plaintiff's request. Id. It was the dental department who made the appointment. Id. Defendant Saenz determined that Plaintiff did not have a medical emergency. Id. Defendant Saenz contends that she could not prescribe him pain medication or antibiotics. Id. Defendant contends that even if he had received immediate dental treatment on June 11, 2006, Plaintiff would have received the same treatment.

Plaintiff contends that Defendant Saenz could have done more to assist Plaintiff. Pl.'s P. & A. Support Opp'n 5-6. Plaintiff contends that there is 24 hour dental care on call, citing section 3354, Title 15 of the California Code of Regulations. *fn18 Id. Plaintiff contends that Defendant Saenz watched Plaintiff suffer in pain for 30 days and did nothing. Id.

Based on the undisputed facts, Defendant Saenz did act by informing the dental department of Plaintiff's dental issues, and the department arranged for the appointment. Defendant Saenz made the determination that Plaintiff's dental issues did not qualify as an emergency. Thus, there is evidence that Defendant Saenz did not disregard Plaintiff's health issues. Whether or not she was accurate in her assessment is a different matter, but would rise at most to the level of medical negligence, which is not a violation of the Eighth Amendment. Toguchi , 391 F.3d at 1057 ("Mere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth Amendment rights.") (citation omitted). Construing the submitted evidence in light most favorable to the non-moving party, the Court does not find a disputed issue of material fact. Defendant Saenz is entitled to summary judgment as to Plaintiff's Eighth Amendment claim.

C. Defendant Johnson

Defendant Johnson contends that he did not cause Plaintiff a serious injury by failing to provide Plaintiff with nutritional supplements. Defs.' P. & A. Support Mot. Summ. J. 9:3-13. Plaintiff requested nutritional supplements from Defendant Johnson on August 9, 2006. ( Id. ) Plaintiff received nutritional supplements on August 25, 2006. Id. Defendants contend that Plaintiff suffered no injury over this two-week period, as he lost only one pound, and he did not suffer from malnutrition. Id.

Plaintiff contends that Defendant Johnson knew of Plaintiff's dental issues and should have notified a physician on call regarding Plaintiff's request for nutritional supplements, like nurse practitioner Lu did. Pl. P. & A. Support Opp'n 6-7. Plaintiff further contends that food at CSP-COR is not mechanically soft. Id.

As stated previously, Plaintiff has not presented sufficient evidence that food at CSPCOR is not mechanically soft. Even if it was not, Defendant Johnson believed that it was, and that Plaintiff would be able to eat the food. Additionally, there does not appear to be harm to Plaintiff for this two-week delay in receiving liquid supplements. Plaintiff lost only a pound of weight, and did not suffer from malnutrition. At worst, Defendant Johnson was negligent in failing to prescribe a nutritional supplement for Plaintiff, which is not sufficient for a cognizable Eighth Amendment claim for deliberate indifference. Toguchi , 391 F.3d at 1057. Even construing the facts in light most favorable to Plaintiff, the Court does not find a disputed issue of material fact. Accordingly, Defendant Johnson is entitled to summary judgment as to Plaintiff's Eighth Amendment claim.

D. Defendant Wilbur

Defendant Wilbur contends that he gave appropriate care regarding the fixture of his dentures, not providing a liquid treatment, and not prescribing antibiotics or pain medication. (Defs.' P. & A. Support Mot. Summ. J. 9:16-10:5. Defendants contend that Plaintiff's dentures were beyond repair, and Defendant Wilbur began the process of obtaining new dentures for Plaintiff. Id. Defendants contend that Defendant Wilbur did not prescribe a nutritional supplement pursuant to CDCR policy. Id. Defendants contend that Defendant Wilbur did not prescribe antibiotics because Plaintiff did not have an infection. Id. Defendants contend that Defendant Wilbur did not prescribe pain medication because 1) removal of the tooth should have resolved the residual pain and 2) further pain medication was unnecessary because Plaintiff was already taking 500 mg of hydrocodone. Id.

Plaintiff contends that Defendant Wilbur failed to repair Plaintiff's dentures. Pl.'s P. & A. Support Opp'n 8-9. *fn19 Plaintiff contends that Defendant Wilbur was fully capable of ordering nutritional supplements, but failed to do so. Id. Plaintiff again contends that CSP-COR's food is not mechanically soft. Id. Plaintiff contends that he informed Defendant Wilbur that he was on a low dose of pain medication for a spinal injury that did not also encompass Plaintiff's dental pain. Id.

Defendant Wilbur began the process of obtaining new dentures for Plaintiff on July 17, 2006. The process was not completed until January 24, 2007. It does not appear that Plaintiff suffered any ill effects while he awaited new dentures. Plaintiff's weight was within the ideal body weight range for an adult male of his height, and Plaintiff did not suffer from malnutrition. Defendant Wilbur did not disregard a serious risk to Plaintiff's health. See Toguchi , 391 F.3d at 1057. Thus, there is no dispute of material fact regarding Plaintiff's dentures, and Defendant Wilbur is entitled to summary judgment as to this claim.

Defendant Wilbur believed that the food at CSP-COR was mechanically soft. Plaintiff did not present sufficient evidence to demonstrate that the food at CSP-COR was not mechanically soft. Even if it was not, Defendant Wilbur did not believe he could provide Plaintiff with the requested nutritional supplements. Though it appears that Defendant Wilbur may be able to, he did not believe he could. Thus, his action in referring Plaintiff to the medical office demonstrates that he did not disregard a serious risk to Plaintiff's health. See id. There is thus no dispute of material fact regarding nutritional supplements, and Defendant Wilbur is entitled to summary judgment as to this claim.

Defendant Wilbur also did not find that Plaintiff had a bacterial infection, and thus did not prescribe antibiotics. Plaintiff contends that he did have an infection, but provides insufficient evidence to support this contention. There is thus no dispute of material fact regarding antibiotics, and Defendant Wilbur is entitled to summary judgment as to this claim.

Plaintiff declared that he continued to suffer pain after the removal of the tooth and requested further pain medication. Defendant declared that he believed 500 mg of hydrocodone to be sufficient pain medication and did not prescribe any additional medication. However, Plaintiff was not prescribed 500 mg of hydrocodone, but rather was prescribed 5/500 mg of hydrocone/APAP. Defendant Wilbur's declaration that he believed Plaintiff's pain medication to be sufficient is incorrect as to the amount of medication.

Even with this discrepancy, Defendant Wilbur is entitled to summary judgment as to the claim regarding pain medication. Whether the pain medication was 5/500 mg of hydrocodone/APAP or 500 mg of hydrocodone, Defendant Wilbur found that Plaintiff was already receiving more than sufficient pain medication and decided to not prescribe more. Plaintiff had at most a difference of opinion with Defendant Wilbur as to the proper amount of pain medication, which is not a cognizable Eighth Amendment claim. Toguchi. 391 F.3d at 1059-60. Thus, Defendant Wilbur did not know of and disregard a serious harm to Plaintiff.

E. Qualified Immunity

Defendants contend that they are entitled to qualified immunity. Government officials enjoy qualified immunity from civil damages unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). In ruling upon the issue of qualified immunity, one inquiry is whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the defendant's conduct violated a constitutional right. Saucier v. Katz , 533 U.S. 194, 201 (2001), overruled in part by Pearson v. Callahan , 129 S. Ct. 808, 813 (2009) (" Saucier procedure should not be regarded as an inflexible requirement"). The other inquiry is whether the right was clearly established. Saucier , 533 U.S. at 201. The inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition . . . ." Id. "[T]he right the official is alleged to have violated must have been 'clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Saucier , 533 U.S. at 202 (citation omitted). In resolving these issues, the court must view the evidence in the light most favorable to plaintiff and resolve all material factual disputes in favor of plaintiff. Martinez v. Stanford , 323 F.3d 1178, 1184 (9th Cir. 2003). Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs , 475 U.S. 335, 341 (1986).

Because all Defendants are entitled to summary judgment, the Court declines to address Defendants' arguments regarding qualified immunity.

IV. Conclusion and Order

Based on the foregoing, it is HEREBY ORDERED that

1. Defendants' motion for summary judgment, filed March 5, 2010, is GRANTED in full;

2. The Clerk of Court is directed to enter judgment in favor of Defendants and against Plaintiff; and

3. The Clerk of Court is directed to close this action.

IT IS SO ORDERED.

3b142a


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