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Marcus Bovarie, et al v. Arnold Schwarzenegger

March 6, 2012

MARCUS BOVARIE, ET AL.,
PLAINTIFFS,
v.
ARNOLD SCHWARZENEGGER, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING DEFENDANTS' JUDGMENT MOTIONS FOR SUMMARY

Two Defendants remain in this case - Dr. Summer Aymar and Nurse Manaig. On March 14 of last year, each filed a summary judgment motion. Magistrate Judge Stormes, in a Report and Recommendation that she issued on September 21, recommends that the motions be granted. Bovarie filed objections to Judge Stormes' R&R just after Christmas, and in early January of this year the Defendants each filed a reply. The Court "must review [Judge Stormes'] findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

I. Legal Standard

Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). As the moving party, it is the Defendants' burden to show there is no factual issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet this burden, they must show that Bovarie lacks evidence to support his claims. Id. at 325. If they make that showing, Bovarie must set forth "specific facts" to show there is a genuine issue for trial. Id. at 324.

The Court considers the record as a whole and draws all reasonable inferences in the light most favorable to Bovarie. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000). The Court may not make credibility determinations or weigh conflicting evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Rather, the Court determines whether the record "presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251--52. Not all alleged factual disputes will serve to forestall summary judgment; they must be both material and genuine. Id. at 247--49. "If conflicting inferences may be drawn from the facts, the case must go to the jury." LaLonde v. County of Riverside, 204 F.3d 947, 959 (9th Cir. 2000) (citations omitted).

II. Bovarie's 8th Amendment Claim

The first claim that Judge Stormes considers is Bovarie's § 1983 claim. Here, Bovarie alleges that Aymar and Manaig were deliberately indifferent to his medical needs in violation of the Eighth Amendment's ban on cruel and unusual punishment. The law here isn't in dispute. It is a violation of the Eigth Amendment to be deliberately indifferent to a prisoner's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976). A "serious medical need is one that if left untreated could result in further significant injury or the unnecessary and wanton infliction of pain." Id. at 104. Deliberate indifference arises only where a prison official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference, in this sense, is something worse than malpractice, or even gross negligence. Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). Indeed, a deliberate indifference claim necessarily fails if a prisoner can register nothing more than a difference of opinion regarding his diagnosis and treatment. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).

A. Aymar

Judge Stormes concludes that Aymar is entitled to summary judgment on Bovarie's § 1983 claim because "the uncontradicted evidence does not contain any evidence indicating that Defendant Aymar had drawn an inference of substantial risk of harm." (R&R at 18.) That is, even if Bovarie can establish that he had a serious medical need, he cannot establish that Aymar was indifferent to it. The Court will consider Bovarie's objections to this conclusion in sequence.

1. Objection 4

Bovarie first takes issue with the R&R's statement that "when Plaintiff saw Nurse Manaig on September 12, 2007, he indicated that he did not have any flank pain at that visit." (R&R at 17.) According to Bovarie, that's not true. He claims he explained to Manaig that he'd been experiencing severe pain for three months. The record of the visit, however, suggests that Bovarie was seenfor pain in his right flank that he'd been experiencing for three months, but that he reported no pain at the time of the visit. (Dkt. No. 91-3, AGO 149.) Now, Bovarie offers no evidence to the contrary.*fn1 Objection 4 is OVERRULED.

2. Objection 5

Bovarie was treated twice by Aymar, first on September 19, 2007 and then on October 25 as a follow-up. The R&R notes that "[o]n the September 19, 2007 visit with Dr. Aymar, Plaintiff indicated that his fatigue had resolved." The record supports this. (See Dkt. No. 92-5, Ex. 15.) Bovarie objects, referencing an affidavit he submitted in his opposition to Aymar's summary judgment motion.

On 9/19/2007, I saw Summar Aymar, D.O. for a doctor appointment. I explained to her my original illness which had me bed ridden for 10 days and had symptoms of severe kidney pain, exhaustion, weakness and loss of equilibrium and that I was still suffering from severe stabbing pain in my right kidney, fatigue and weakness and that the fatigue had improved slightly. (Dkt. No. 102-1, Plaintiff's affidavit 6.) This is simply contradicted by the evidentiary record. Bovarie's objection is therefore OVERRULED.

3. Objection 6

Looking at the record, Judge Stormes concluded that "Plaintiff made no medical requests relating to kidney pain between September 12, 2007 and December 12, 2007, although he did make two requests relating to other health issues." (R&R at 17.) The medical records support this conclusion, but citing the same affidavit that he submitted along with his objections, see supra n.1, Bovarie argues that the records are wrong. He references an inmate grievance form in which he did complain of kidney pain, but a grievance is not necessarily a request for medical treatment.*fn2 Moreover, one grievance was filed on June 21, 2007 and made its way through two levels of review before Aymar met with Bovarie for the first time. (Dkt. No. 6-1, Ex. D.) There is also no evidence that this grievance was provided to Aymar so that it could inform her diagnosis and treatment of Bovarie. The second grievance Bovarie mentions was filed on October 28, 2007 after his second appointment with Aymar. It couldn't possibly have been available to Aymar, then, at the time she saw Bovarie. Objection 6 is OVERRULED.

4. Objection 7

Bovarie argued in opposition to summary judgment that Aymar was deliberately indifferent to his serious medical needs because she didn't palpitate the areas of his kidney and liver. The R&R suggests that this "does not establish that Dr. Aymar either 1) was aware of facts from which an inference could be drawn that a substantial risk of harm exists or 2) that she drew such an inference, or 3) that she nonetheless disregarded the harm." (R&R at 17.) Bovarie disagrees with this. He ...


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