United States District Court, E.D. California
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Doc. Nos. 54, 57
Janice Sugita ("Sugita") is incarcerated and
appearing pro se in this 42 U.S.C. § 1983 matter. There
is one remaining claim against one remaining defendant in
this case. Sugita alleges a First Amendment retaliation claim
against Defendant Dr. H. Longia ("Dr. Longia"). Dr.
Longia now moves for summary judgment. For the reasons
that follow, Dr. Longia's motion will be granted and this
case will be closed.
judgment is proper 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; Adickes v. S.H. Kress & Co., 398
U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema,
Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party
seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of
identifying the portions of the declarations (if any),
pleadings, and discovery that demonstrate an absence of a
genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986); Soremekun v. Thrifty Payless, Inc., 509
F.3d 978, 984 (9th Cir. 2007). A fact is "material"
if it might affect the outcome of the suit under the
governing law. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248-49 (1986); United States v. Kapp,
564 F.3d 1103, 1114 (9th Cir. 2009). A dispute is
"genuine" as to a material fact if there is
sufficient evidence for a reasonable jury to return a verdict
for the non-moving party. Anderson, 477 U.S. at 248;
Freecycle Sunnyvale v. Freecycle Network, 626 F.3d
509, 514 (9th Cir. 2010).
moving party meets its initial burden, 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); Nissan Fire & Marine Ins. Co. v. Fritz Cos.,
210 F.3d 1099, 1103 (9th Cir. 2000). The opposing party
cannot "‘rest upon the mere allegations or denials
of [its] pleading' but must instead produce evidence that
‘sets forth specific facts showing that there is a
genuine issue for trial.'" Estate of Tucker v.
Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008).
"A genuine issue of material fact does not spring into
being simply because a litigant claims that one exists or
promises to produce admissible evidence at trial."
Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st
Cir. 2002); see Bryant v. Adventist Health
System/West, 289 F.3d 1162, 1167 (9th Cir. 2002).
opposing party's evidence is to be believed, and all
justifiable inferences that may be drawn from the facts
placed before the court must be drawn in favor of the
opposing party. See Anderson, 477 U.S. at 255;
Matsushita, 475 U.S. at 587; Narayan v. EGL,
Inc., 616 F.3d 895, 899 (9th Cir. 2010). While a
"justifiable inference" need not be the most likely
or the most persuasive inference, a "justifiable
inference" must still be rational or reasonable. See
Narayan, 616 F.3d at 899. 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 Fitzgerald v. El Dorado Cnty., 94
F.Supp.3d 1155, 1163 (E.D. Cal. 2015); Sanders v. City of
Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008).
Summary judgment may not be granted "where divergent
ultimate inferences may reasonably be drawn from the
undisputed facts." Fresno Motors, LLC v. Mercedes
Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2015).
Further, a "motion for summary judgment may not be
defeated . . . by evidence that is ‘merely
colorable' or ‘is not significantly
probative.'" Anderson, 477 U.S. at 249-50;
Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th
Longia is a licensed physician/surgeon and has been employed
by the California Department of Corrections and
Rehabilitation ("CDCR") since April 2008. DUMF 1.
Dr. Longia has been licensed to practice medicine in
California since July 2005, and his primary area of practice
is internal medicine. See DUMF's 2, 3. At all
relevant times, Dr. Longia's primary duty was to provide
medical care and treatment to inmates at the Central
California Women's Facility ("CCWF") in
Chowchilla, California. See DUMF 4.
Longia was Sugita's treating physician at CCWF from
August 2012 to December 2012. See DUMF 5. In
addition to personally treating Sugita, Dr. Longia reviewed
Sugita's pertinent medical records. DUMF 6.
September 27, 2012, Dr. Longia denied Sugita's request
for additional physical therapy. See Doc. No. 9 at
5:12-23. Sugita explained that the specialized
treatment of a therapist was needed and qualifies as a
medical diagnosis and treatment. See id. Sugita
filed an internal grievance ("CDC 602") against Dr.
Longia that complained about the decision to discontinue
physical therapy. See Doc. No. 9 at 5:12-23. This
CDC 602 grievance was denied on October 28, 2012. See
id. at § II(C).
records indicate that on November 21, 2012, Dr. Longia denied
Sugita's request for a renewal of the prescription pain
reliever Indomethacin. See Longia Dec. Ex. A.
However, Sugita declares that Dr. Longia "removed
[Sugita's] Indomethacin on September 27, 2012." Doc.
No. 59 at 2:16-17. Sugita filed a separate CDC 602 grievance
regarding Dr. Longia's decision to not refill or
prescribe Indomethacin. See Doc. No. 9 at 5:24-6:4.
This grievance was denied on November 28, 2012. See
id. at § II(C). Indomethacin had been prescribed to
Sugita by three prior physicians, and Indomethacin had proven
to be the only effective pain medication. See Doc.
No. 9 at 5:24-6:2; Doc. No. 59 at 2:1-5. Instead of
Indomethacin, it appears that Dr. Longia prescribed naproxen.
See id. at 6:12-20.
January 10, 2013, Sugita declares that Dr. Okereke (a
physician at CCWF) told her, "Dr. Longia told me not to
give you Indomethacin because you 602'd him." Doc.
No. 59 at 1:18-20.
Longia declares that he never retaliated against Sugita for
filing a CDC 602 against him, and he never instructed Dr.
Okereke (or any other physician or medical staff at CCWF) to
deny Sugita Indomethacin or any other medication or medical
care, or knowingly prescribed Sugita ineffective and
endangering pain medication, because Plaintiff filed a CDC
602 against him or because of any other reason. See
DUMF's 13, 14; Longia Dec. ¶¶ 9, 10. Dr. Longia
declares that he denied Sugita's request for Indomethacin
because it was his medical opinion that other medications
would be as effective, or more effective, without the adverse
side effects caused by Indomethacin (such as ulcers and
kidney damage). See DUMF 7; Longia Dec. ¶ 6.
Indomethacin had recently caused the death of an inmate at
Valley State Prison in Chowchilla, California. DUMF 8. That
death caused Dr. Longia and other physicians at CCWF to
prescribe medications other than Indomethacin for pain when,
as in Sugita's case, other medications would be as
effective or more effective for treating pain. See
id. Dr. Longia declares that his medical notes confirm
his opinion that Plaintiff did not need Indomethacin, and
show that, rather than ignoring her need for pain medication,
Dr. Longia explained to Sugita the adverse side effects of
Indomethacin, explained that Indomethacin is an NSAID
(non-steroidal anti-inflammatory drug) that should not be
used long-term, and told her that if she needed long-term
pain medication then Tylenol would be much safer than
Indomethacin. See DUMF 10; Longia Dec. ¶ 7. As
of August 1, 2013, Indomethacin was no longer on the list of
permitted medications prescribed by physicians to inmates in
California prisons. See DUMF 9; Doc. No. 59 at
of a prior motion for summary judgment, this Court adopted
the conclusions and reasoning of a Findings and
Recommendation by the Magistrate Judge. See Doc.
Nos. 34, 36. In pertinent part, the Court held that Dr.
Longia's decision to deny further physical therapy and
Indomethacin did not amount to deliberate indifference and
thus, did not violate the Eighth Amendment. See id.;
see also DUMF 15.
Longia argues that summary judgment is appropriate for
several reasons. First, the order on the prior summary
judgment motion defeats Sugita's First Amendment claim.
When the finding was made that there was not deliberate
indifference to Sugita's medical needs, there could be no
adverse action against Sugita. The Indomethacin was denied
because another inmate had recently died due to complications
with Indomethacin, and other medicines would be as effective
or more effective without the same potential side effects to
Sugita. That is, Sugita did not need Indomethacin. Second,
the evidence shows that Sugita's First Amendment rights
have been fully exercised, and her rights have not been
chilled. She complained through the prison grievance system,
and continued to pursue the matter to this Court. Third,
there is no causation because no ...