Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Bond v. Knoll

United States District Court, C.D. California

November 18, 2014

MARK BOND, Plaintiff,
v.
LT. KNOLL, et al., Defendants

Mark Bond, Plaintiff, Pro se, Mendota, CA.

For Mr Brown, (Pharmacist), Ms Valenzuela, Defendants: Donald W Yoo, United States Attorney's Office, Civil Division, Los Angeles, CA.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE [DOCKET NOS. 100, 103]

Honorable Jacqueline Chooljian, UNITED STATES MAGISTRATE JUDGE.

This Report and Recommendation is submitted to the Honorable Philip S. Gutierrez, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

I. BACKGROUND AND SUMMARY

On January 11, 2013, Mark Bond (" plaintiff"), who is in custody, is proceeding pro se, and has been granted leave to proceed in forma pauperis, filed the operative unverified First Amended Complaint (" First Amended Complaint" or " FAC") pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (" Bivens"), 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), which remains pending against Matthew Brown (" Brown") and Tiana Valenzuela-Lechuga (" Lechuga") (collectively " defendants") -- two officials with the Victorville Federal Correctional Institution I (" FCI Victorville" or " FCI") where plaintiff was previously incarcerated.[1](FAC at 3; Docket No. 70). Plaintiff sues defendants in their individual capacities only, and seeks monetary and injunctive relief. (FAC at 3, 6).

On June 3, 2014, plaintiff filed a Request for Summary Judgment (" Plaintiff's Motion") with attached exhibits (" PMSJ Ex.").

On June 18, 2014, defendants filed a consolidated Opposition to Plaintiff's Motion and Cross-Motion for Summary Judgment (" Defendants' Motion").[2] On the same date, this Court issued a notice explaining to plaintiff the requirements for opposing a motion for summary judgment in accordance with Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035, 119 S.Ct. 2392, 144 L.Ed.2d 793 (1999).

On July 7, 2014, plaintiff filed a consolidated Reply in support of Plaintiff's Motion and Opposition to Defendants' Motion (" Plaintiff's Reply") with exhibits (" P. Reply Ex.").[3]

On August 15, 2014, defendants filed a Reply in support of Defendants' Motion (" Defendants' Reply").[4]

Based upon the record and the applicable law, and as further discussed below, Plaintiff's Motion should be denied and Defendants' Motion should be granted.

II. FACTS[5]

A. Overview

FCI Victorville is a medium security federal correctional institution located within the Federal Correctional Complex (" Federal Correctional Complex" or " FCC") in Victorville, California. (Byrd Decl. ¶ ¶ 1, 4). Plaintiff was an inmate at FCI Victorville from August 28, 2008 to March 31, 2014. (D. SUF ¶ 2; Guth Decl. ¶ 5; Guth Ex. B at 15). In October 2010, plaintiff was segregated in the FCI Victorville Special Housing Unit (" SHU") for slightly over five weeks. (D. SUF ¶ ¶ 3, 8-9; Guth Decl. ¶ ¶ 5, 7; Guth Exs. B at 15; Byrd Decl. ¶ 4). Plaintiff arrived in the SHU on October 11, 2010, and was placed in a " dry cell" after FCI officials suspected plaintiff of ingesting narcotics during visiting hours. (D. SUF ¶ 3; Guth Decl. ¶ ¶ 5A, 7; Guth Exs. B at 15, E at 33; Bond Depo. at 100-01). Plaintiff was moved to a standard SHU cell on October 13, 2010, and later returned to the general inmate population on November 17, 2010. (D. SUF ¶ ¶ 8-9; Guth Decl. ¶ 5B; Sibanda Decl. ¶ 4; Guth Ex. B at 15; Byrd Decl. ¶ 4).

In 2010, FCI Nurse Practitioner (" NP") Hilengiwe Sibanda was plaintiff's primary care provider and treated plaintiff primarily for hypertension. (Sibanda Decl. ¶ 3). Throughout October 2010, plaintiff took one 10-milligram tablet of prescription Lisinopril per day to control his high blood pressure. (D. SUF ¶ 10; Byrd Decl. ¶ 7C; Byrd Ex. A at 65-67; Bond Depo. at 91-92). During that time plaintiff also purchased non-prescription ibuprofen directly from the commissary, which he took to relieve headaches. (Bond Depo. at 92-95). On October 11, 2010, plaintiff took his daily dose of Lisinopril in the morning, but did not bring his supply of Lisinopril with him when he was transferred to the SHU that afternoon. (Bond Depo. at 91-92, 100-01).

Plaintiff's Eighth Amendment claims stem from allegations that the defendants deliberately ignored or denied multiple requests by plaintiff to have his missing blood pressure medication replaced and to be given ibuprofen in the SHU. Plaintiff asserts that for a two to three week period after he arrived in the SHU, he made repeated ( i.e., " daily, " " on many different occasions, " " on a daily basis") requests for medication which defendants ignored and/or denied. (FAC at 5; Plaintiff's Motion at 4; Plaintiff's Reply at 2, 12; P. Reply Ex. Q).

B. Defendant Brown

Defendant Brown was employed as a paramedic at FCI Victorville in 2010. (Brown Decl. ¶ 1). Defendant Brown's duties included conducting the SHU " pill line" ( i.e., the twice daily time when BOP Health Services personnel would distribute medication to inmates). (D. SUF ¶ ¶ 15-16; Brown Decl. ¶ 2). Defendant Brown was not a physician, and was not authorized to prescribe medication. (D. SUF ¶ 15; Brown Decl. ¶ 2). In advance of each pill line he was to conduct, defendant Brown would obtain the prescription medication for each inmate prepackaged from the FCC Pharmacy. (D. SUF ¶ 17; Brown Decl. ¶ 3). Defendant Brown could distribute only the medication he received directly from the FCC Pharmacy. (D. SUF ¶ 17; Brown Decl. ¶ 3). If an inmate had a request or complaint about his medication during pill line, defendant Brown's custom and practice was to notify the inmate's primary care provider, or to direct the inmate to submit a " cop-out" request ( i.e., an inmate's informal written request to staff) to Health Services. (D. SUF ¶ 18; Brown Decl. ¶ 4). In October 2010, defendant Brown worked in the SHU on October 10-11, 13, 17-20, 24-25, 27, 29, and 31. (D. SUF ¶ 20; Brown Decl. ¶ ¶ 1, 6; Guth Ex. G at 46-52).

During plaintiff's 2010 segregation in the SHU, defendant Brown was not aware that plaintiff had high blood pressure. (PMSJ Ex. B at 1-3 [Defendant Brown's Responses To Plaintiff's First Set of Interrogatories]). During that time plaintiff did not complain to defendant Brown about migraine headaches, nosebleeds, or any other medical symptom. (Brown Decl. ¶ 7). Defendant Brown knew there were " certain consequences of not taking high blood pressure medication, " but believed that such consequences " would vary greatly depending on a particular inmate's circumstances of each case." (PMSJ Ex. B at 1-3).

C. Defendant Lechuga

In 2010, defendant Lechuga was a Certified Medical Technician at FCI. (Lechuga Decl. ¶ ¶ 1, 8). Defendant Lechuga would also conduct pill line in the SHU. (D. SUF ¶ 15; Lechuga Decl. ¶ 2). In October 2010 specifically, defendant Lechuga worked in the SHU on October 12-15, 19, 20-23, and 25-29. (Lechuga Decl. ¶ 8; Guth Ex. G).

Like defendant Brown, defendant Lechuga would obtain the prescription medication to be delivered during pill line directly from the FCC Pharmacy. (D. SUF ¶ 17; Lechuga Decl. ¶ 3). Lechuga was not a physician, and was permitted to deliver only the prepackaged medication she obtained for each inmate directly from the FCC Pharmacy. (D. SUF ¶ ¶ 15, 17; Lechuga Decl. ¶ ¶ 2-3). If an inmate had a request or complaint about medication during pill line, defendant Lechuga's custom and practice was to instruct the inmate to submit a cop-out to Health Services. (D. SUF ¶ 19; Lechuga Decl. ¶ 4).

D. Plaintiff's Medication Requests

On October 13, 2010, NP Sibanda learned that plaintiff was missing his medication in the SHU. (D. SUF ¶ 30; P. SUF ¶ 2; Sibanda Decl. ¶ 5; Sibanda Ex. A at 86; P. Reply Ex. B). Consequently, at approximately 7:47 a.m. that morning, NP Sibanda placed a refill order for plaintiff's Lisinopril prescription. (D. SUF ¶ 31; P. SUF ¶ 2; Sibanda Decl. ¶ 5; Sibanda Ex. A at 86; Byrd Decl. ¶ 8; Byrd Ex. A at 59; P. Reply Ex. B). NP Sibanda documented the foregoing in a BOP Health Services Clinical Encounter Administrative Note that was prepared between 7:47 a.m. to 7:49 a.m. on October 13, 2010 (" October 13 Medical Note"). (P. SUF ¶ 2; P. Reply Ex. B; Sibanda Decl. ¶ 5; Sibanda Ex. A at 86; Byrd Decl. ¶ 8; Byrd Ex. A at 59).

At approximately 7:53 a.m. the same day, defendants Brown and Lechuga entered the SHU to dispense medication to inmates. (D. SUF ¶ ¶ 21-22; PMSJ Ex. F; P. Reply Ex. C; Brown Decl. ¶ ¶ 6-7; Lechuga Decl. ¶ 8; Guth Decl. ¶ 9; Guth Ex. G at 46; see Bond Depo. at 98-100). At one point, plaintiff informed defendant Brown that he was missing his medication. (P. SUF ¶ 1; PMSJ Ex. B at 2-3; D. SUF ¶ 22; Brown Decl. ¶ 7; Bond Depo. at 96). Defendant Brown attests that plaintiff did not specify the type of medication he was missing. (PMSJ Ex. B at 2-3; D. SUF ¶ 27; Brown Decl. ¶ 7). Plaintiff testified at his deposition that he requested both " [his] high blood pressure medication and some ibuprofen, " and also that defendant Brown simply responded by saying " You [plaintiff] shouldn't have come to the SHU." (Bond Depo. at 96-97). Defendant Lechuga was standing approximately four feet away at the time. (D. SUF ¶ 23; Bond Depo. at 111). Plaintiff says he was " sure" defendant Lechuga overheard his conversation with Brown. (D. SUF ¶ 23; P. SUF ¶ 18; Bond Depo. at 111). Defendant Lechuga attests that she did not. (D. SUF ¶ 24; Lechuga Decl. ¶ 8).

Defendants Brown and Lechuga left the SHU the morning of October 13, 2010, at 8:15 a.m. (D. SUF ¶ 21; P. SUF ¶ 3; PMSJ Ex. F; P. Reply Ex. C; Guth Ex. G at 46). Defendant Brown attests that he then returned to Health Services and informed NP Sibanda that plaintiff " was asking for his medication . . . [but defendant Brown] was unaware what specific medication plaintiff was requesting." (D. SUF ¶ 26; Brown Decl. ¶ 8; P. SUF ¶ 1; PMSJ Ex. B at 2-3; P. Reply Ex. A at 2-3).

Plaintiff says he did not receive any medication from Health Services until two to three weeks later, and that he was under such " tremendous strain from [] headaches" in the interim that plaintiff " took it upon himself to order Ibuprofen and Aspirin from the SHU commisary [sic]." (Plaintiff's Motion at 2, 4-5, 10-11; FAC at 5; PMSJ Ex. L; Plaintiff's Reply at 2, 12; P. Reply Ex. Q; Bond Depo. at 102-03).

Medical records reflect that a 15-day supply of Lisinopril was dispensed to plaintiff on October 14, 2010. (D. SUF ¶ 32; Sibanda Decl. ¶ 5; Byrd Decl. ¶ ¶ 8-9; Byrd Ex. A at 64, 68).

III. LEGAL STANDARDS

A. Summary Judgment

Federal Rule of Civil Procedure 56(a) provides that a " 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). An issue of fact is genuinely disputed and material if it cannot be reasonably resolved in favor of either party and may affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted); In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citation omitted).

The party moving for summary judgment bears the initial burden of showing that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A party asserting that a fact cannot be genuinely disputed must support that assertion by citing to " materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials[.]" Fed.R.Civ.P. 56(c)(1)(A).

Where the moving party will have the burden of proof at trial on a particular issue, " the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). If the non-movant will bear the burden of proof on an issue, however, the moving party can satisfy its summary judgment burden by " 'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325. If the moving party meets its initial burden, the non-moving party must then " come forth with evidence from which a jury could reasonably render a verdict in the non-moving party's favor." In re Oracle Corporation Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010); Soremekun, 509 F.3d at 984. The non-moving party may not rest upon the allegations or denials in his or her pleadings, but instead " must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. " The mere existence of a 'scintilla' of evidence is not enough to create a 'genuine issue of material fact' in order to preclude summary judgment." Nelson v. Pima Community College, 83 F.3d 1075, 1081 (9th Cir. 1996) (citations omitted). " Likewise, mere allegation and speculation do not create a factual dispute for purposes of summary judgment." Id. at 1081-82 (citation omitted).

On summary judgment, the Court may not weigh conflicting evidence or make credibility determinations. Soremekun, 509 F.3d at 984. It must draw all reasonable inferences in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255 (citation omitted); Soremekun, 509 F.3d at 984 (citation omitted).

When presented with cross-motions for summary judgment, the Court must consider each motion separately, giving the nonmoving party for each motion the benefit of all reasonable inferences. Ctr. for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Dep't, 533 F.3d 780, 786 (9th Cir. 2008) (citation omitted), cert. denied, 555 U.S. 1098, 129 S.Ct. 903, 173 L.Ed.2d 108 (2009).

B. Bivens Claims

To establish a damages claim under Bivens, a plaintiff must prove that " a federal officer deprived him of his constitutional rights." Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (citation omitted); see also West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (citations omitted).[6] A plaintiff must specifically establish that the defendant was both the cause in fact and the proximate ( i.e., legal) cause of the constitutional deprivation alleged. See Arnold v. International Business Machines, Corp., 637 F.2d 1350, 1355 (9th Cir. 1981) (citation omitted). A defendant " causes" a constitutional deprivation when he or she " 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" or " set[s] in motion a series of acts by others which the [defendant] knows or reasonably should know would cause others to inflict the constitutional injury." Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978) (citations omitted). " The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citations omitted).

C. Eighth Amendment -- Deliberate Indifference to Serious Medical Need

The Eighth Amendment prohibits cruel and unusual punishment of an individual convicted of a crime. U.S. Const. amend. VIII; see generally Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (Eighth Amendment forbids the " unnecessary and wanton infliction of pain") (citations and internal quotation marks omitted). Prison officials are required to provide inmates with adequate medical care, and the failure to do so can constitute an Eighth Amendment violation cognizable under Bivens. See Estelle v. Gamble, 429 U.S. 97, 103-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (citations and footnotes omitted); Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation omitted). A claim for inadequate medical care requires proof of both an objective component ( i.e., the existence of a " serious medical need") and a subjective component (a prison official's " deliberate indifference" thereto). See Colwell, 763 F.3d at 1066.

An inmate's medical need is " serious" if failure to treat his or her medical condition " could result in further significant injury" or could cause " the unnecessary and wanton infliction of pain." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citations and internal quotation marks omitted). Sufficiently " serious" needs include " [t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain. . . ." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991) (citations omitted), overruled on other grounds by WMX Technologies, Inc., v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997).

A prison official is deliberately indifferent if the official knows of, and disregards an excessive risk to inmate health and safety. Colwell, 763 F.3d at 1066 (quotation marks and citations omitted). 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, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Colwell, 763 F.3d at 1066 (citation omitted). Deliberate indifference can occur when " officials deny, delay, or intentionally interfere with medical treatment, " or it may appear in the manner in which a prison physician provides medical care to an inmate. Jett, 439 F.3d at 1096 (citation and quotation marks omitted). In any case, a defendant's actions must be purposeful and substantial; mere negligence or inadvertence, or a difference in medical judgment or opinion does not amount to deliberate indifference. See Estelle, 429 U.S. at 105-06; see also McGuckin, 974 F.2d at 1060 (" A defendant must purposefully ignore or fail to respond to a prisoner's pain or possible medical need in order for deliberate indifference to be established."). A prison official does not violate the Eighth Amendment if he or she responds reasonably to an inmate's serious medical need -- " even if [] harm ultimately was not averted." Farmer, 511 U.S. at 844.

A deliberate indifference claim based on delay in providing needed medical treatment requires proof that the alleged delay caused the plaintiff additional harm. See Shapley v. Nevada Board Of State Prison Commissioners, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam) (citing Estelle, 429 U.S. at 106); see, e.g., McGuckin, 974 F.2d at 1062 (unnecessary continuation of prisoner's " pain and anguish" was sufficient " harm" to support Section 1983 claim predicated on delay in medical treatment).

Where a plaintiff seeks to hold a prison official personally liable for damages, the plaintiff must establish a causal link between the particular defendant's deliberate indifference and the constitutional deprivation alleged. Leer v. Murphy, 844 F.2d 628, 633-34 (9th Cir. 1988). Proper evaluation of causation requires " a very individualized approach which accounts for the duties, discretion, and means of each defendant." Id. " Sweeping conclusory allegations [regarding causation] will not suffice to prevent summary judgment." Id. at 634 (citation omitted).

IV. DEFENDANTS' MOTION

Plaintiff essentially contends that defendants violated the Eighth Amendment because they were deliberately indifferent to plaintiff's repeated requests for medication in the SHU. (FAC at 5; Plaintiff's Motion at 2, 4-5; Plaintiff's Reply at 1-2). Defendants say they are entitled to summary judgment because plaintiff fails to offer evidentiary support for his claims and, in any event, they are entitled to qualified immunity. (Defendants' Motion at 13-19; Defendants' Reply at 2-9). This Court agrees with defendants.

A. Plaintiff Fails to Raise a Genuine Dispute of Material Fact Which Suggests That Defendant Brown Was Deliberately Indifferent to Plaintiff's Serious Medical Needs

Plaintiff essentially claims that defendant Brown violated the Eighth Amendment because (i) defendant Brown denied or ignored numerous requests from plaintiff for high blood pressure medication and for ibuprofen after plaintiff was first placed in the SHU; (ii) despite such repeated requests, plaintiff did not receive his high blood pressure medication from Health Services for two to three weeks, and plaintiff was forced to purchase ibuprofen on his own from the SHU commissary; and (iii) during that time plaintiff was " immobilized by [] pain" and had migraine headaches and several bloody noses. (FAC at 5; Plaintiff's Motion at 1-5, 10-11; Plaintiff's Reply at 1-2).

Preliminarily, since defendants do not contest that plaintiff had a serious medical need in the SHU (Defendants' Motion at 15-17; Defendants' Reply at 2-8), this Court addresses only whether any deliberate indifference on the part of defendant Brown caused plaintiff's alleged injuries. In addition, this Court considers only specific factual assertions regarding defendant Brown's alleged deliberate indifference on particular dates plaintiff has identified, specifically: (1) October 11, 2010 (plaintiff allegedly asked " whether [he] could get [his] high blood pressure medication" while defendant Brown was " dispensing pills to other inmates, " and defendant Brown " looked at [plaintiff] but said nothing"); (2) October 12, 2010 (plaintiff " thought" he asked defendant Brown " once again about [his high blood pressure] medication" but " [t]here was no response"); and (3) October 13, 2010 (plaintiff allegedly " inquired once again about [his] high blood pressure medication, " but Brown responded " you shouldn't have come to the SHU"). (Plaintiff's Motion at 2; Plaintiff's Reply at 1-2). Plaintiff's conclusory assertions that defendant Brown acted with deliberate indifference on multiple, unspecified other occasions ( i.e., " daily, " " on many different occasions, " " on a daily basis") (Plaintiff's Motion at 4; Plaintiff's Reply at 2, 12; P. Reply Ex. Q), without more, are insufficient to raise a genuine issue of material fact that would require a trial. See Arpin v. Santa Clara Valley Transportation Agency, 261 F.3d 912, 922 (9th Cir. 2001) (Section 1983 plaintiff's " conclusory allegations unsupported by factual data [] insufficient to defeat . . . summary judgment").

For the reasons discussed below, defendant Brown is entitled to summary judgment on plaintiff's Eighth Amendment claim against him.

First, plaintiff presents no evidence from which a reasonable juror could conclude that defendant Brown acted with deliberate indifference to plaintiff's serious medical needs on October 11, 2010. Allegations that defendant Brown said nothing when plaintiff asked for medication on that date, even if true, do not raise a genuine dispute of material fact which suggests that defendant Brown heard plaintiff's request in the first instance, or if he did, that the defendant subjectively knew plaintiff faced a substantial risk of serious harm to his health at that moment much less purposefully ignored such risk.

Second, plaintiff presents no evidence from which a reasonable juror could conclude that defendant Brown had any interaction with plaintiff in the SHU on October 12, 2010. Defendant Brown attests that he did not work in the SHU on that date. (D. SUF ¶ 20; Brown Decl. ¶ 6). Official SHU Sign-In Logs for that date -- evidence plaintiff does not properly controvert -- reflect the same. (D. SUF ¶ 20; Guth Ex. G at 46; PMSJ Ex. F; P. Reply Ex. C). Equivocal deposition testimony that plaintiff " believe[d] [the first time he asked defendant Brown for medication] was on the 12th [of October]" (Bond Depo. at 96), and an unsworn assertion in briefing that plaintiff " thought that [he] had spoken to defendant Brown [on October 12, 2010] . . . about [his] medication" (Plaintiff's Motion at 2) are insufficient to raise a genuine dispute of material fact which suggests otherwise. See, e.g., Olvera v. County of Sacramento, 932 F.Supp.2d 1123, 1150 (E.D. Cal. 2013) (equivocal deposition testimony, without more, did not create a genuine issue of material fact to defeat summary judgment); D'Alzina v. Lausell, 702 F.Supp. 377, 387 (D.P.R. 1988) (" self-serving affidavit" and " equivocal deposition statement" insufficient to raise genuine issue of fact on summary judgment); see also Thornhill Publishing Co. v. General Telephone & Electronics Corp., 594 F.2d 730, 738 (9th Cir. 1979) (conclusory, speculative testimony in affidavits and moving papers insufficient to raise genuine issues of fact and to defeat summary judgment).

Third, plaintiff presents no evidence from which a reasonable juror could conclude that defendant Brown acted with deliberate indifference to plaintiff's serious medical needs on October 13, 2010. In short, defendant Brown attests that after he left the SHU the morning of October 13, he " returned to Health Services" and conveyed plaintiff's medication request to NP Sibanda -- i.e., the primary care provider who had the authority to write a prescription for plaintiff's blood pressure medication. (Brown Decl. ¶ 8; P. SUF ¶ 1; PMSJ Ex. B at 3; Sibanda Decl. ¶ 2). The uncontroverted evidence reflects that this was the most defendant Brown could do within the scope of his authority and duties as an FCI paramedic. (D. SUF ¶ ¶ 15-18; Brown Decl. ¶ ¶ 1-4; Bond Depo. at 113). A prison official may not be held liable for deliberate indifference where, like here, he responded reasonably to the inmate's serious medical need. Farmer, 511 U.S. at 844.

To the extent plaintiff suggests that defendant Brown lied (Plaintiff's Motion at 6-8; Plaintiff' Reply at 2-4, 12), plaintiff presents no evidence from which a reasonable jury could conclude as much. Evidence that NP Sibanda apparently learned about plaintiff's need for blood pressure medication in the SHU before defendant Brown had left the SHU on October 13 does not, as plaintiff suggests, impugn defendant Brown's sworn statement that he ultimately did convey plaintiff's request to NP Sibanda. Plaintiff's unsworn assertion in briefing that he " had not spoken to anyone else concerning [his] medication" (Plaintiff's Motion at 8) does not raise a dispute of material fact which suggests that NP Sibanda could not have learned about plaintiff's medication need from a source other than defendant Brown. See, e.g., British Airways Board v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978) (" [L]egal memoranda . . . are not evidence, and they cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion where no dispute otherwise exists.") (citation omitted), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979). In addition, plaintiff's speculation that defendants fabricated all of their evidence (including the October 13 Medical Note) (Plaintiff's Motion at 7-10), is insufficient to raise a genuine dispute of material fact to defeat summary judgment. See Nelson, 83 F.3d at 1081-82 (citation omitted); see also Arpin, 261 F.3d at 922.

Fourth, plaintiff presents no evidence from which a reasonable juror could conclude that any deliberate indifference on the part of defendant Brown caused plaintiff's alleged injuries. Even if defendant Brown deliberately failed to address plaintiff's October 13, 2010 request for blood pressure medication, medical records show that other FCI officials did. BOP Health Services records reflect that NP Sibanda renewed plaintiff's Lisinopril prescription that same day, and that fifteen (15) tablets of Lisinopril 10MG were dispensed and delivered to plaintiff the following day ( i.e., October 14, 2010). (D. SUF ¶ ¶ 30-32; Sibanda Decl. ¶ 5; Byrd Decl. ¶ 8; Byrd Ex. A at 59, 64, 68; Sibanda Ex. A at 86; Byrd Supp. Decl.¶ 5; P. Reply Ex. J). Plaintiff's unsworn and/or conclusory allegations that he did not receive medication until two to three weeks later (FAC at 5; Plaintiff's Motion at 2; Plaintiff's Reply at 12; Bond Depo. at 103) are insufficient to raise a genuine dispute of material fact which suggests as much.[7] See Moran v. Selig, 447 F.3d 748, 759 & n.16 (9th Cir. 2006) (unverified complaint " cannot be considered as evidence at the summary judgment stage") (citations omitted); Arpin, 261 F.3d at 922; Thornhill Publishing Co., 594 F.2d at 738; British Airways Board, 585 F.2d at 952. Similarly, evidence that Lisinopril was delivered to plaintiff on November 2, 2010 (as suggested by the prescription bottle label plaintiff submitted as an exhibit) (Plaintiff's Reply at 12; P. Reply Ex. Q), does not raise a genuine dispute of material fact which suggests that the same medication was not also delivered to plaintiff on October 14, 2010. Indeed, the evidence in the record reflects that plaintiff received his medication on both such dates. (Byrd Ex. A at 64; Byrd Supp. Decl. ¶ 5).

In addition, plaintiff's speculation that defendants' declarations and exhibits were fabricated, is insufficient to defeat summary judgment. (Plaintiff's Motion at 8-10; Plaintiff's Reply at 7-8). Plaintiff's argument requires inferences not only that defendant Brown lied, but also that NP Sibanda falsified medical records, and Dr. Byrd, the FCC Victorville Chief Pharmacist (and/or the subordinate who ultimately filled plaintiff's prescription) did so as well. Plaintiff presents no evidence from which any reasonable juror could make such inferences.

Even if plaintiff's blood pressure medication was not delivered on October 14, 2010, plaintiff points to nothing in the record that would justify holding defendant Brown liable for plaintiff's alleged injuries. The uncontroverted evidence reflects that defendant Brown did not work in the SHU on October 14. (D. SUF ¶ 36; Brown Decl. ¶ 6; Guth Ex. G at 46; PMSJ Ex. F; P. Reply Ex. C). Moreover, there is no support in the record for plaintiff's suggestion that defendant Brown was responsible for making sure that plaintiff received his medication thereafter. (Plaintiff's Reply at 8). The uncontroverted evidence reflects that defendant Brown was only permitted to deliver the medication he obtained from the FCC Pharmacy in advance of each pill line. (D. SUF ¶ 17; Brown Decl. ¶ 3). Plaintiff points to no evidence from which a reasonable juror could conclude that defendant Brown had obtained medication for plaintiff at some other point which he failed to deliver, or that defendant Brown could be held liable for any failure to deliver medication to plaintiff during a pill line defendant Brown himself did not conduct.

Finally, plaintiff argues that defendant Brown was also deliberately indifferent because he refused to convey plaintiff's requests for ibuprofen to Health Services. (Plaintiff's Motion at 2; Plaintiff's Reply at 9-10; P. Reply Ex. Q; Bond Depo. at 96-97, 113). Assuming, for the sake of argument, that defendant Brown knew ibuprofen was a serious medical need for plaintiff, plaintiff presents no evidence from which a reasonable juror could conclude that defendant Brown denied, delayed, or interfered with plaintiff's access to such medication. The uncontroverted evidence reflects that defendant Brown had no authority to prescribe ibuprofen, that Brown did not carry ibuprofen with him during pill line, and that he could not distribute ibuprofen from Health Services without a prescription (which plaintiff essentially concedes he did not have). (Bond Depo. at 92, 112-13; D. SUF ¶ ¶ 15-17; Brown Decl. ¶ ¶ 2-3). In addition, FCI Victorville inmates were able to obtain ibuprofen without a prescription directly from the commissary -- which plaintiff said he had done " a lot." (Bond Depo. at 92-95, 103). Inmates could also request a prescription for ibuprofen by submitting a " cop out" request to Health Services or by asking their primary care provider directly. (D. SUF ¶ 18; Brown Decl. ¶ 4; see Bond Depo. at 92-95, 103-07, 112). There is no evidence in the record from which a reasonable juror could conclude that defendant Brown materially interfered with plaintiff's ability to pursue either option. While plaintiff suggests that he had hoped defendant Brown would convey his request for ibuprofen to Health Services (Plaintiff's Reply at 9-10; Bond Depo. at 113), plaintiff does not raise a genuine dispute of material fact which suggests that defendant Brown had any authority or obligation to comply with such an informal request, much less that any deliberate indifference in failing to do so in any way prevented plaintiff from obtaining ibuprofen.

Accordingly, summary judgment should be granted in favor of defendant Brown on plaintiff's Eighth Amendment, deliberate indifference claim.

B. Plaintiff Fails to Raise a Genuine Dispute of Material Fact Which Suggests That Defendant Lechuga Was Deliberately Indifferent to Plaintiff's Serious Medical Need

Plaintiff essentially contends that defendant Lechuga was deliberately indifferent to his serious medical needs because plaintiff asked defendant Lechuga for high blood pressure medication and ibuprofen on multiple occasions when defendant Lechuga was in the SHU with defendant Brown -- including October 13, 2010 and possibly October 12, 2010 -- but Lechuga ignored plaintiff's requests and/or failed to deliver any medication. (FAC at 5; Plaintiff's Motion at 2, 4-5; Plaintiff's Reply at 1-2). Plaintiff fails to raise a genuine issue of material fact which suggests that defendant Lechuga violated the Eighth Amendment.

First, plaintiff's equivocal assertion in briefing that he " thought" he had spoken to defendant Lechuga on October 12, 2010 about his medication (Plaintiff's Motion at 2), and plaintiff's conclusory assertions that he had spoken with defendant Lechuga in the SHU on multiple other, unspecified occasions, are insufficient to establish a Bivens claim. See Arpin, 261 F.3d at 922; British Airways Board, 585 F.2d at 952.

Second, plaintiff presents no evidence from which a reasonable juror could conclude that defendant Lechuga subjectively knew that plaintiff faced a substantial risk of serious harm to his health when defendant Lechuga was with defendant Brown in the SHU on October 13, 2010, or if so, that she responded to that risk with deliberate indifference. Plaintiff's allegations that defendant Lechuga overheard plaintiff ask defendant Brown for his high blood pressure medication and ibuprofen on October 13, even if true, do not raise a genuine dispute of material fact which suggests that defendant Lechuga actually inferred from such conversation that plaintiff had a " serious medical need."

Finally, even so, plaintiff presents no evidence from which a reasonable juror could conclude that defendant Lechuga responded to any such need with deliberate indifference -- i.e., that defendant Lechuga was obligated to address plaintiff's request to defendant Brown, and deliberately failed to do so. To the contrary, just like Brown, defendant Lechuga was not permitted to prescribe medication, and could not distribute medication to an inmate unless it was prescribed by a primary care provider and dispensed by the FCC Victorville pharmacy. (P. SUF ¶ ¶ 15, 17; Lechuga Decl. ¶ ¶ 2-3). Evidence that defendant Lechuga was simply in earshot when plaintiff made a medication request to defendant Brown does not reasonably show that defendant Lechuga deliberately failed to address plaintiff's serious medical need. To the extent plaintiff claims that defendant Lechuga was negligent in not advising plaintiff that he could also obtain medication from Health Services by submitting a cop out form, and/or in failing to ensure that defendant Brown conveyed plaintiff's medication requests to Health Services such a claim is insufficient to establish a Bivens claim. See Estelle, 429 U.S. at 106 (negligence in diagnosing or treating medical condition, without more, does not violation Eighth Amendment); McGuckin, 974 F.2d at 1059 (same) (citation omitted).

Accordingly, summary judgment should be granted in favor of defendant Lechuga on plaintiff's Eighth Amendment claim.

C. Defendants Are Entitled to Qualified Immunity

Defendants contend that they are also entitled to summary judgment based on qualified immunity. (MSJ at 14-16). This Court agrees.

" Qualified immunity is 'an entitlement not to stand trial or face the other burdens of litigation.'" Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). On summary judgment, to determine whether a government official is entitled to qualified immunity, a court must decide (1) whether the plaintiff's facts " make out a violation of a constitutional right"; and if so (2) " whether the right at issue was 'clearly established' at the time of defendant's alleged misconduct." Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (citing id. at 201). The Court has discretion to decide which of the two prongs to address first " in light of the circumstances in the particular case at hand." Id. at 236.

Here, the Court need not reach the second prong of the qualified immunity analysis since, as discussed above, plaintiff fails to present facts from which a reasonable juror could find that either defendant violated plaintiff's Eighth Amendment rights. Accordingly, defendants Brown and Lechuga are entitled to qualified immunity.

V. PLAINTIFF'S MOTION[8]

Plaintiff essentially argues that he is entitled to summary judgment because (i) during the first three days after plaintiff arrived in the SHU he asked defendant Brown for his high blood pressure medication and for ibuprofen but defendant Brown ignored or denied plaintiff's requests; (ii) defendant Lechuga was with defendant Brown one or two such times but also did nothing to address plaintiff's medication needs; (iii) thereafter plaintiff saw and spoke to defendant Brown or defendant Lechuga on a daily basis, but plaintiff's requests for medication continued to be ignored; (iv) defendant Brown's assertion that he conveyed plaintiff's medication requests to ND Sibanda was false and based on fabricated medical records; (v) plaintiff did not receive his blood pressure medication until two to three weeks after he entered the SHU and had to purchase ibuprofen on his own from the commissary; and (vi) during that time, plaintiff experienced migraine headaches and several bloody noses. (Plaintiff's Motion at 1-11; Plaintiff's Reply at 1-15). Again, defendants respond that plaintiff fails to offer evidentiary support for his Eighth Amendment claim and, in any event, defendants are entitled to qualified immunity. (Defendants' Motion at 1-20; Defendants' Reply at 2-10).

The Court has thoroughly addressed each of the foregoing issues in its discussion of Defendants' Motion. In short, for the reasons discussed in Part IV, supra, plaintiff fails affirmatively to demonstrate that no reasonable trier of fact could find other than in plaintiff's favor.

Accordingly, Plaintiff's Motion should be denied.

VI. RECOMMENDATION

IT THEREFORE IS RECOMMENDED that the District Judge issue an Order: (1) approving and accepting this Report and Recommendation; (2) denying Plaintiff's Motion; (3) granting Defendants' Motion; and (4) directing that Judgment be entered accordingly.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.