United States District Court, N.D. California, San Francisco Division
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
RICHARD SEEBORG United States District Judge.
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. (“MSJ”; Docket No. 41.) For
the reasons stated herein, defendant’s motion for
summary judgment is GRANTED in favor of defendant as to all
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.)
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.)
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.)
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.
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.
Standard of Review
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.
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.
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 ...