Alexander v. J. Dunlap

          ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

          RICHARD SEEBORG United States District Judge.

         INTRODUCTION

         This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state prisoner. Plaintiff alleges that defendant, J. Dunlap, a physician and Chief of Medical Services at Salinas Valley State Prison, violated his Eighth Amendment rights by refusing plaintiff’s requests for a transfer and physical therapy. Defendant moves for summary judgment.^[1] (“MSJ”; Docket No. 41.) For the reasons stated herein, defendant’s motion for summary judgment is GRANTED in favor of defendant as to all claims.

         BACKGROUND

         The following factual allegations are undisputed, unless specifically noted otherwise. Plaintiff is a paraplegic who arrived at Salinas Valley State Prison in May 2013. In 2014, he applied to his jailors for compassionate release. In consequence, in May, plaintiff was admitted to Salinas Valley’s Correctional Treatment Center (“CTC”) for a week for evaluation of his application. The next day plaintiff was examined by physical therapist C. Nordstrom, who reported that plaintiff “will benefit from transfer to medical facility” but “will not benefit from [physical therapy] services.” (MSJ, Dunlap Decl., Ex. C at 10; Compl. at 3.) Nordstrom even recommended that Salinas Valley should discontinue physical therapy because it gave no benefit to plaintiff. (MSJ, Dunlap Decl., Ex. C at 11, 12.)

         In the days following Nordstrom’s exam, plaintiff was observed in the CTC performing all the activities of daily living including showering, shaving, and dressing. (MSJ, Dunlap Decl. ¶ 5, Ex. A at 2, 6, 10, 14-17, 19-23.) In June, despite Nordstrom’s opinion that plaintiff would not benefit from physical therapy, staff physician Dr. Birdsong requested additional on-site physical therapy. (Id. at 8, 12.)

         Finding his treatment insufficient, plaintiff filed grievances through which he requested 24-hour care and more physical therapy, or a transfer to a medical facility where he could obtain physical therapy. (Id., Dunlap Decl., Ex. C. at 3.) Although he did not specify in his grievance whether he was receiving physical therapy at Salinas Valley, plaintiff claimed that “the physical therap[y] I need is in a medical facility.” (Id.)

         His grievances came before defendant Dunlap for second-level review. Dunlap denied the request for 24-hour care and physical therapy. Constant care was unnecessary because plaintiff was able to perform daily living activities, as was observed during his week in the CTC. He denied the request for physical therapy because Birdsong already had ordered such treatment, and, as Nordstrom had noted, plaintiff would not benefit from such therapy. Defendant’s only contact with plaintiff was through the grievance procedure. He never met or treated plaintiff. (Id., Ex. C at 9-10; Ex. D at 9-10.) Plaintiff appealed defendant’s denials. Other reviewers denied the grievances at the last stage of review.

         In his suit, plaintiff claims Dunlap was deliberately indifferent by failing to grant his request for a transfer to a facility that could provide better physical therapy, which includes, according to plaintiff, the use of a whirlpool bath.

         DISCUSSION

         I. Standard of Review

         Summary judgment is proper where the pleadings, discovery and affidavits demonstrate 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). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.

         The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue for which the opposing party by contrast will have the burden of proof at trial the moving party need only point out “that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325.

         The Court is only concerned with disputes over material facts and “factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. It is not the task of the court to scour the record in search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party has the burden of identifying, with reasonable particularity, the evidence that precludes summary judgment. Id. If the nonmoving ...