United States District Court, E.D. California
KENNETH L. STANSBERY, Plaintiff,
J. BENAK, et al., Defendants.
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BE GRANTED [ECF No. 41]
DENNIS L. BECK, Magistrate Judge.
Plaintiff Kenneth L. Stansbery ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action in Tuolumne County Superior Court on July 26, 2011. Defendant Cate removed this action on September 20, 2011, pursuant to 28 U.S.C. § 1441(a), as this Court has original jurisdiction under 28 U.S.C. § 1331. The other Defendants joined in the removal on October 13, 2011. The action is proceeding on Plaintiff's First Amended Complaint filed on August 17, 2012, against Defendant Benak for acting with deliberate indifference to a serious medical need in violation of the Eighth Amendment to the United States Constitution.
On March 13, 2014, Defendant filed a motion for summary judgment. (ECF No. 41.) Four months later on July 2, 2014, without having been granted an extension of time, Plaintiff filed an opposition. (ECF No. 46.) Defendant filed a reply on July 3, 2014. (ECF No. 47). This motion has been submitted upon the record without oral argument. Local Rule 230( l ). For the reasons set forth below, the Court recommends that Defendant's motion be granted on the ground that he did not act with deliberate indifference against Plaintiff.
II. Legal Standard
Any party may move for summary judgment, and 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) (quotation marks omitted); Washington Mutual Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to by the parties, but it is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).
Defendant does not bear the burden of proof at trial and in moving for summary judgment, he need only prove an absence of evidence to support Plaintiff's case. In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986)). If Defendant meets his initial burden, the burden then shifts to Plaintiff "to designate specific facts demonstrating the existence of genuine issues for trial." In re Oracle Corp., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 323). This requires Plaintiff to "show more than the mere existence of a scintilla of evidence." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505 (1986)).
However, in judging the evidence at the summary judgment stage, the Court may not make credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all inferences in the light most favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted), cert. denied, 132 S.Ct. 1566 (2012). The Court determines only whether there is a genuine issue for trial and in doing so, it must liberally construe Plaintiff's filings because he is a pro se prisoner. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted).
III. Plaintiff's Claim
Plaintiff is incarcerated at Sierra Conservation Center ("SCC") in Jamestown, California, where the events giving rise to this action occurred.
Plaintiff alleges the following. On December 16, 2009, Plaintiff met with Defendant J. Benak. Defendant Benak discontinued his prescription for Zovirax. Plaintiff told Defendant Benak that he had been on this medication for three years and without the medication he would break out in lesions that cause pain and discomfort. Plaintiff informed Defendant Benak that he had previously been taken off the medication and that he had broken out in lesions, all of which was recorded in his medical file. Defendant Benak did not review the files, finding that the medication was not medically noted and taking Plaintiff off the medication.
On January 12, 2010, Defendant Bangi evaluated Plaintiff. Defendant Bangi re-prescribed Zovirax. Defendant Bangi however did not document lesions and sores.
On January 28, 2010, and February 28, 2010, Plaintiff was seen by Defendant Muehldorf. Defendant Muehldorf examined Plaintiff, but failed to document any sores or lesions. Defendant Muehldorf prescribed rinsing Plaintiff's mouth with salt water, to which Plaintiff did not have access.
On February 9, 2010, Plaintiff was again seen by Defendant Bangi, who prescribed medication. On February 12, 2010, Plaintiff signed for and received a 30-day supply of Zovirax. On March 13, 2010, Plaintiff ran out of medication. Defendant Bangi prescribed Famvir, for seven days. Plaintiff found that using Famvir was more effective for treatment of Plaintiff's lesions and sores in his mouth. On April 23, 2010, Plaintiff received a prescription for Acyclovir for 90 days. Plaintiff filed an appeal complaining of improper medical care and was seen by Defendant Curtis Allen, acting as Chief Medical Officer on July 13, 2010. Plaintiff complained about why it took so long for Plaintiff to receive his medication. Defendant Allen told Plaintiff that it was an unfortunate delay. Defendant Allen also suggested that Defendant Benak had caused unnecessary harm. Defendant Jack St. Clair answered Plaintiff's appeals, but denied that Plaintiff had suffered harm.
Plaintiff alleges deliberate indifference to a serious medical need in violation of the Eighth Amendment. Plaintiff requests as relief monetary damages.
IV. Undisputed Facts
1. In October of 2006, Plaintiff was diagnosed with the Herpes Simplex Virus (HSV). Medical staff educated Plaintiff on the disease, but Plaintiff was not prescribed any medication.
2. On December 15, 2006, Plaintiff complained of a lesion near his penis shaft, and he was prescribed 600 mg of Acyclovir five times a day for a week. This prescription was consistent with the treatment for a herpes-related outbreak.
3. On January 29, 2007, Plaintiff complained of an outbreak, and medical staff noted that he had a red rash about two inches long on his right buttocks. Staff placed him on another week-long regimen of Acyclovir.
4. In February of 2007, Plaintiff complained of another herpes outbreak, but no mention is made in the records of the appearance of the skin, the location of the outbreak, or the severity of the ...