The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding without counsel, seeks relief pursuant to 42 U.S.C. § 1983. This case is proceeding on the amended complaint, filed March 21, 2011. Plaintiff alleges that defendants Turner-Gamberg, Cheney, Mitchell and Swingle*fn1 were deliberately indifferent to plaintiff's medical needs, defendants were negligent, and defendant Turner-Gamberg violated plaintiff's First and Fourth Amendment rights. On March 23, 2012, defendants filed a motion for summary judgment. As explained below, the court recommends that defendants' motion for summary judgment be granted. ////
II. Plaintiff's Allegations
Plaintiff is proceeding on the verified amended complaint filed March 21, 2011.
(Dkt. No. 13.) Plaintiff alleges that on December 23, 2008, he informed Correctional Officer Ngard, while Ngard was picking up dinner trays, that plaintiff needed a breathing treatment. Plaintiff alleges that defendant Mitchell denied plaintiff medical treatment for over two and a half hours on December 23, 2008. (Id. at 5.)
On May 19, 2009, plaintiff alleges that defendant Cheney brought plaintiff a used inhaler. (Id., at 6.) Plaintiff alleges that defendant J. Turner-Gamberg, who was working the control tower, refused to call medical staff to replace plaintiff's inhaler. Plaintiff contends that defendant Cheney refused to return to plaintiff's cell to get the used inhaler. Plaintiff alleges defendant Cheney left plaintiff with no inhaler, and plaintiff had an asthma attack, which required a breathing treatment. (Id. at 7.) Plaintiff states that LVN Garcia ordered plaintiff a new inhaler and gave plaintiff a breathing treatment. (Id. at 6.) Plaintiff alleges that defendant Dr. Swingle, Chief Medical Officer, is supposed to make sure that medical staff does not pass out used medication by checking it out before delivery to the inmates' building. (Id. at 7.)
Plaintiff alleges that defendant Turner-Gamberg also turned off the hot water to the day room in section A, allegedly stating that A section C-5 has nothing coming. On May 19, 2009, plaintiff alleges that defendant Turner-Gamberg told plaintiff that if he didn't "kiss her ass" he "got nothing coming," which plaintiff states meant that plaintiff would not get medical attention because plaintiff was asking for a breathing treatment and had been given a used inhaler. (Id.) Plaintiff claims that defendant Turner-Gamberg searched his cell in retaliation for plaintiff filing grievances, that she refused to allow him to shower, and that she told plaintiff she would tell a correctional officer to spit in plaintiff's food if he did not stop kicking the door. (Dkt. No. 13 at 42.) Finally, plaintiff contends that when he and other inmates are being strip-searched for yard, defendant Turner-Gamberg, a female correctional officer, is monitoring male inmates from the control tower while they are naked. (Id. at 8.)
III. Defendants' Motion for Summary Judgment
On March 23, 2012, defendants moved for summary judgment on the grounds that there is no evidence that they were deliberately indifferent to plaintiff's medical needs; there is no evidence that defendant Turner-Gamberg violated any of plaintiff's constitutional rights; and plaintiff failed to comply with the Government Claims Act. In the alternative, defendants contend that they are entitled to qualified immunity. (Dkt. No. 47.) Plaintiff filed an opposition. (Dkt. No. 54.) Defendants filed a reply. (Dkt. No. 57.) On November 2, 2012, plaintiff was advised of the requirements for filing an opposition to a motion for summary judgment under Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998), and granted an additional thirty days in which to file an opposition. (Dkt. No. 69.) On November 29, 2012, plaintiff filed a statement that he relies on his prior opposition. (Dkt. No. 72.)
A. Legal Standard for Summary Judgment
Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil procedure 56 is met. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).*fn2
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) (quoting then-numbered Fed. R. Civ. P. 56(c).) "Where the nonmoving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 Advisory Committee Notes to 2010 Amendments (recognizing that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact"). 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. Celotex Corp., 477 U.S. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.
Consequently, 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 exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such a factual dispute, the opposing party may not rely upon the allegations or 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 such a dispute exists. See Fed. R. Civ. P. 56(c); 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, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); 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, see 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 630. 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 summary judgment motion, 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. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See 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 (citation omitted).
The Civil Rights Act under which this action was filed provides as follows: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658, 692 (1978) ("Congress did not intend § 1983 liability to attach where . . . causation [is] absent."); Rizzo v. Goode, 423 U.S. 362 (1976) (no affirmative link between the incidents of police misconduct and the adoption of any plan or policy demonstrating their authorization or approval of such misconduct). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) (no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979) (no liability where there is no evidence of personal participation). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal participation is insufficient).
At all times relevant to this action, plaintiff was an inmate in the custody and control of the California Department of Corrections and Rehabilitation ("CDCR") confined at High Desert State Prison ("HDSP"); and defendant Mitchell was a licensed vocational nurse ("LVN"), defendant Cheney was an LVN, defendant Dr. Swingle was the Chief Medical Officer, and defendant Turner-Gamberg was a correctional officer, all working at HDSP.
It is undisputed that plaintiff suffers from asthma.*fn4
Whether plaintiff's asthma constituted a serious medical need
on the relevant dates appears to be at issue.
On December 23, 2008, plaintiff alleges that during dinner cell feeding on third watch, he informed the control booth officer and floor officer Ngard that he needed a breathing treatment because he was having an asthma attack. Plaintiff alleges he was kicking his cell door and talking to the officers to request a breathing treatment, all while having an asthma attack. In his deposition, plaintiff confirmed that he was wheezing, but he was able to talk, and it was painful. (Pl.'s Depo at 35, 48-49.)
Plaintiff alleges that the control booth officer called defendant Mitchell, but that defendant Mitchell told the control booth officer that plaintiff would have to wait to receive a breathing treatment until pill call was over. Plaintiff alleges that Officer Ngard made two phone calls to defendant Mitchell. In all, plaintiff alleges three phone calls were made to defendant Mitchell, but plaintiff had to wait approximately two and one half hours to walk over to the C Facility Clinic and receive a breathing treatment.
On December 23, 2008, during third watch, Control Booth Officer Lysiak noted that cell feeding began at 1610 hours (4:10 p.m.), and Floor Officers Maroccia and Farias noted that cell feeding began at 1615 hours and cell feeding and clean up was complete at 1720 hours (5:20 p.m.). Defendant Mitchell was working at the C Facility Clinic on third watch and among her duties was working at the C Facility clinic window passing out medications to inmates during pill call.
As an LVN, defendant Mitchell is familiar with the signs and symptoms of respiratory distress and asthma attacks. Signs and symptoms may include: shortness of breath; rapid breathing rate; color changes around the mouth, on inside of lips, or skin color; nose flaring; chest retractions; sweating; grunting sounds; inability to speak; wheezing; and difficulty walking. A patient is not normally capable of yelling, screaming, kicking a cell door, or walking if he is under respiratory distress and having an asthma attack.
Defendant Mitchell does not recall having any telephone conversations with any correctional officers regarding plaintiff on December 23, 2008, nor does she recall any incident involving plaintiff or providing plaintiff with any treatment on December 23, 2008. Both the control booth officer's log book and the floor officer's log book show no documentation regarding plaintiff or any officer calling medical on December 23, 2008, regarding plaintiff.
If defendant Mitchell had been called by a correctional officer on December 23, 2008, her response to the officer would have been dependent on the information provided. If defendant Mitchell was informed that plaintiff was having an acute asthma attack and the correctional officer believed that plaintiff needed urgent/emergent medical attention, defendant Mitchell's standard practice and procedure would have been to immediately stop the pill line and respond to plaintiff's cell. Upon arrival to his cell, defendant Mitchell would physically assess plaintiff for symptoms of respiratory distress, and if plaintiff showed physical signs and symptoms of respiratory distress, defendant Mitchell would take diagnostic tests, including oxygen saturation and peak flow tests, to determine the severity of plaintiff's symptoms.
By contrast, if defendant Mitchell was informed by a correctional officer that plaintiff was kicking his cell door and able to converse normally to request a breathing treatment, it is likely that defendant Mitchell would have told the officer that plaintiff needed to wait until pill call was over to receive a breathing treatment, because the ability to kick a cell door and converse normally to ask for a breathing treatment are not signs of respiratory distress, an acute asthma attack, or any urgent, emergent, or emergency medical situation. Also, because defendant Mitchell knew plaintiff was an asthmatic, she also knew that plaintiff would have an inhaler in his cell that he could use which would achieve the same result as a breathing treatment. In fact, plaintiff had two inhalers in his cell on December 23, 2008, and used the Albuterol (Ventolin) inhaler twice during the delay.
On December 23, 2008, had any correctional officer in plaintiff's building considered plaintiff's medical condition to be an emergency, the correctional officers would have immediately notified medical emergency responders by alarm, two-way radio, or telephone upon discovery of plaintiff's condition. Thus, if defendant Mitchell had been notified via alarm, two-way radio, or telephone that it was an emergency situation, she would have immediately responded to plaintiff's cell. On December 28, 2008, plaintiff did not personally speak to defendant Mitchell, and defendant Mitchell did not go to plaintiff's cell.
Plaintiff received a breathing treatment on December 23, 2008, around 7:00 p.m., in the C Facility Clinic after walking from his cell in C Facility, Building 5. If plaintiff was able to walk from his cell across the yard to receive a breathing treatment, he was not in respiratory distress or in any urgent/emergent/emergency need of a breathing treatment. After receiving the breathing treatment, plaintiff was fine.
Defendant Swingle played no role in plaintiff's medical care, treatment, or medication issues on December 23, 2008. (Dkt. No. 47-7 at 3.) The only involvement defendant Swingle had with respect to the December 23, 2008 incident was providing the Second Level Appeal Response to plaintiff's inmate grievance, Log No. HDSP-31-08-17348 on March 11, 2009. (Dkt. No. 47-7 at 2.) Defendant Swingle noted that at the first level interview with Family Nurse Practitioner ("FNP") Wrigley, plaintiff had asthma medications in his possession, and had a standing order for breathing treatments as needed. (Id.) Defendant Swingle further noted that records showed that plaintiff was given a breathing treatment on December 23, 2008. (Id.) Defendant Swingle partially granted plaintiff's appeal at the second level because plaintiff had been seen for his chronic care issues including asthma and hypertension, but his appeal had not been accepted as a staff complaint, and plaintiff had not shown proof of misconduct or adverse action for somebody to be fired for medical neglect. (Id. at 2-3.)
Plaintiff alleges that on May 19, 2009, defendant Cheney gave plaintiff a used inhaler at 1:00 p.m. while she was passing out medications to inmates in his housing unit. (Dkt. No. 13 at 6.) One duty of an LVN in Facility C is passing out medications to inmates in the eight buildings in Facility C. (Dkt. No. 47-5 at 4-5.)
Prior to passing out the medications to inmates in the housing units, the pharmacy delivers a large plastic bag of medications to the C Facility Clinic generally between 1200 and 1330 hours (12:00 p.m. and 1:30 p.m.). (Id. at 5.) Contained within the large plastic bag are individual medications for different inmates. For example, if an inmate is prescribed an inhaler, the inhaler will have a label on it identifying the inmate, the inmate's building and cell number, and the type of inhaler. (Id.) The duty of the LVN is taking the medications out of the large plastic bag delivered by pharmacy, and sorting the medications by building number. (Id.) Another duty is comparing the medication label to each inmate's Medication Administration Record ("MAR") to ensure that the five R's are followed: the right patient is given the right medication, the right dose, the right route, at the right time. (Id.) While an LVN's duties include sorting the medications and ensuring that the five R's are followed, the Pharmacist in Charge ("PIC") is responsible for all medication procurement, dispensing, and labeling. (Id.; Dkt. No. 47-7 at 2.) An LVN cannot place medication labels on medications or remove medication labels from medications. (Dkt. No. 47-5 at 5.) Thus, if there was an error in labeling a medication, the error would be the responsibility of the pharmacy, not the LVN. (Id.; Dkt. No. 47-7 at 2.)
Plaintiff is suing defendant Cheney because he alleges that she was negligent for passing out an allegedly used inhaler to him. (Pl.'s Depo at 64, 72 & 74.) Plaintiff was not having any breathing problems prior to defendant Cheney passing out the inhaler to him, but he alleges that he had an asthma attack trying to get her attention after she passed out the inhaler to him. (Id. at 68.) Plaintiff has admitted, however, that he has no evidence that defendant Cheney was aware of his alleged need for a breathing treatment, or any alleged breathing problems on May 19, 2009. (Id. at 74.) Moreover, defendant Cheney ordered a new Albuterol (Ventolin) inhaler for plaintiff on May 19, 2009. (Dkt. No. 47-6 at 7.)
Plaintiff filed an inmate grievance, Log No. HDSP-31-09-12053, on May 19, 2009, regarding defendant Cheney giving plaintiff a used inhaler. (Dkt. No. 13 at 30.) In his grievance, plaintiff wanted to know whether defendant Cheney or pharmacy was responsible for giving him a used inhaler. (Id.) At the informal level, plaintiff's appeal was granted and the response stated: "Per pharmacy, an error was made in labeling your medication. This is a training issue and has been addressed with the appropriate staff." (Id.) Even though his appeal was granted, plaintiff completed Section D of his appeal by stating: "All right then I understand. Just make sure it doesn't happen again alright." (Id.)
With respect to defendant Dr. Swingle and May 19, 2009, plaintiff is suing her because defendant Dr. Swingle, as the Chief Medical Officer (CMO), is supposed to make sure that her medical staff does not pass out used medication by checking it out before bringing the medication to the buildings to pass out. (Dkt. No. 13 at 7.) Plaintiff is also suing defendant Dr. Swingle because she was the supervisor. (Pl.'s Depo at 67, 72.) During all relevant times, as the CMO at HDSP, defendant Dr. Swingle's duties included supervision and management of the overall clinical medical program in the institution. (Dkt. No. 47-7 at 2.) Defendant Dr. Swingle did not have any authority over nursing, mental health, or dental services. (Id.)
As the CMO at HDSP, defendant Dr. Swingle did not supervise the pharmacist or the pharmacy staff. (Id.) The Pharmacist in Charge (PIC) was responsible for all medication procurement and dispensing. The Supervising Registered Nurse III (SRNIII) and other nursing supervisory staff were responsible to oversee all medication distribution. The Registered Nurse (RN) staff in each clinic was responsible to oversee distribution of medications. (Id.)
While plaintiff alleges that defendant Dr. Swingle was supposed to make sure that the nursing staff did not pass out used medications, as the CMO, defendant Dr. Swingle did not have authority or supervision over nursing staff, and did not have authority over the pharmacist or the pharmacy staff. (Id.) Defendant Dr. Swingle played no role in plaintiff receiving a used inhaler on May 19, 2009. (Id. at 3.) Defendant Dr. Swingle had no knowledge that plaintiff received a used inhaler, and she did not have any reason to suspect that an alleged used inhaler would be passed out to plaintiff.
Defendant Dr. Swingle played no role in plaintiff's medical care, treatment, or medication issues on May 19, 2009. (Id.) While plaintiff was at HDSP, defendant Dr. Swingle never met plaintiff, examined plaintiff, treated plaintiff, or prescribed medication for plaintiff. (Id.)
With respect to defendant Turner-Gamberg on May 19, 2009, plaintiff is suing her because she allegedly refused to call medical to inform them that plaintiff had received a used inhaler, and needed medical attention even though plaintiff was yelling for over an hour and kicking his cell door. (Pl.'s Depo at 69-70.) Defendant Turner-Gamberg was on duty as the C5 control booth officer on May 19, 2009. (Dkt. No. 47-9 at 2.) On each watch as a control booth officer, it was defendant Turner-Gamberg's duty to document in a log book the activities and occurrences which took place throughout her watch. (Id.) It was also defendant Turner-Gamberg's responsibility to document odd or unusual occurrences, such as emergencies, assaults, or inmate medical emergencies. (Id.)
Despite plaintiff's claim that defendant Turner-Gamberg did not call medical staff, the control booth log book reflects that on May 19, 2009, at 1:10 p.m. (1310), defendant Turner-Gamberg contacted the medical staff because plaintiff claimed that he had received a used asthma pump, or something to that effect. She documented the log as follows:
Contacted medical -- [plaintiff] claiming they gave him a used asthma "pump' or something -- They said they gave him a brand new one. [Plaintiff] screaming about something [Turner-Gamberg] didn't understand -- [Turner-Gamberg] told [plaintiff] [she] spoke to the nurse and that [she is] not a "medical" employee. [Plaintiff] kicking the door and throwing a fit.
(Dkt. No. 47-10 at 5.) Medical informed defendant Turner-Gamberg that they had given plaintiff a brand new asthma pump or inhaler. Defendant Turner-Gamberg informed plaintiff that she had spoken with the nurse and that she was not a medical employee. Neither medical nor defendant Turner-Gamberg considered plaintiff to be in any sort of emergency situation. (Dkt. No. 47-9 at 3.) Defendant Turner-Gamberg denies telling plaintiff that he had to "kiss her ass" in order to get medical attention.
Based on defendant Turner-Gamberg's experience, training, and observations, because plaintiff was able to scream, kick his door and throw a fit, she did not consider plaintiff to be having an asthma attack, or to be in any sort of emergency. Had plaintiff been in any sort of emergency, defendant Turner-Gamberg would have immediately notified the floor officers from her location in the control booth to check on plaintiff and evaluate his condition. (Id.)
Shortly after 2:00 p.m., plaintiff walked over to medical and received a breathing treatment and also received a new inhaler that day which defendant Cheney had ordered for him. (Dkt. Nos. 47-6 at 7; 48-1 at 19.) Since this May 19, 2009 incident, plaintiff did not receive another used inhaler while he was incarcerated at HDSP. (Pl.'s Depo at 74.)
Once in June of 2009, and on another unspecified date, plaintiff alleges that defendant Turner-Gamberg would turn off the hot water in the day room in the mornings. Plaintiff alleges this is a violation of Title 15 and that defendant Turner-Gamberg was abusing her power. (Pl.'s Depo at 92.) As a control booth officer, defendant Turner-Gamberg's primary job duties and objectives were to ensure the safety and security of the two floor officers as well as the safety and security of the inmates. (Dkt. No. 47-9 at 2.) Other job duties included, but were not limited to, maintaining the orderly administration and functioning of inmate movement and programming, opening cell doors electronically, and informing inmates of appointments via the public address system (PA system) or through verbal communication without the PA system. It was defendant Turner-Gamberg's responsibility to ensure that the daily activities, movement and programming of inmates went smoothly. (Id.)
While plaintiff alleges no specific dates that defendant Turner-Gamberg turned off the hot water in the day room, defendant Turner-Gamberg admits that she would occasionally turn off the hot water in the dayroom. (Dkt. No. 47-9 at 3.) Defendant Turner-Gamberg turned off the hot water in the dayroom because inmates would congregate around the hot water sink in the dayroom on their way back from chow to their cells, and the congregation of inmates not only presents a safety and security threat for the inmates and floor staff, but it also interferes with the orderly administration and movement of the inmates. (Id. at 3-4.) Until all the inmates in A, B and C Sections were safely secured back in their cells, no sections would be released for yard or to program. (Id. at 4.) By turning off the hot water in the dayroom, which she claims is a common practice among control booth officers, defendant Turner-Gamberg was able to ensure that all the inmates in A Section would not delay the administration, movement and programming of all other inmates in C5. (Id.) Turning off the hot water in the day room affected all inmates, not just plaintiff. ...