United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANT
CHEN'S MOTION FOR SUMMARY JUDGMENT BE GRANTED [ECF NO.
Everett Lee Meyers is appearing pro se and in forma pauperis
in this civil rights action pursuant to 42 U.S.C. §
before the Court is Defendant Chen's motion for summary
judgment, filed December 6, 2016.
action is proceeding against Defendant C.K. Chen for
deliberate indifference to a serious medical need.
Chen filed the instant motion for summary judgment on
December 6, 2016. Plaintiff did not file an opposition.
Indeed, on January 26, 2017, defense counsel filed a
declaration in lieu of a formal reply because no opposition
was filed. (ECF No. 30.) Therefore, pursuant to Local Rule
230(1), the motion is deemed submitted for review without
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 Mut. 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 Sch.
Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord
Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th
judging the evidence at the summary judgment stage, the Court
does not make credibility determinations or weigh conflicting
evidence, Soremekun, 509 F.3d at 984 (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 at 942 (quotation
marks and citation omitted).
Summary of Plaintiff's Complaint
to the allegations of the first amended complaint, Plaintiff
was in a physical altercation on the Delta yard at Kern
Valley State Prison (KVSP) on September 14, 2013. Plaintiff
was seriously injured during the altercation and sustained
extensive damages to his shoulder. Plaintiff was immediately
taken to an outside hospital emergency room at Delano
Regional Medical Center in Delano, California.
hospitalized, Plaintiff was in excruciating pain and
discomfort, and x-rays were performed. Plaintiff contends the
x-rays were inadequately misread, and medical staff at KVSP
deliberately denied him adequate medical treatment for his
subsequently filed an appeal complaining of the severe pain
which deprived him from sleep for several weeks because Dr.
Chen denied Plaintiff pain medication and medical treatment.
December 2, 2013, Plaintiff received a new x-ray of his right
January 15, 2014, Plaintiff was examined by a qualified
orthopedic surgeon, Dr. David Smith, who examined the x-rays
and discovered that Plaintiff had a third degree AC
separation on his right shoulder and had been suffering from
untreated excruciating pain caused by Dr. Chen's
Smith informed Plaintiff that he was recommending that
Plaintiff undergo repair of the acromioclavicular separation
and would schedule surgery and pain management.
April 3, 2014, Plaintiff was interviewed by Dr. Chen, and
Plaintiff was informed that Dr. Chen was denying surgery
because “he didn't care for the special orthopedic
surgeon, ” despite Dr. Chen's agreement that
Plaintiff was in need of surgery. Dr. Chen indicated that
pursuant to policy, he could not grant Plaintiff surgery to
repair acromioclavicular separation. Plaintiff contends that
Dr. Chen had no authority to deny such surgery. Dr. Chen also
denied Plaintiff stronger pain medication, despite the
recommendation for pain management.
Defendant's Statement of Undisputed
Plaintiff Everett Myers (P-34039) is an inmate in the custody
of the California Department of Corrections and
Rehabilitation (CDCR) who is currently incarcerated at Kern
Valley State Prison (KVSP) in Delano, California. (ECF No.
all times relevant to the allegations in this case, Plaintiff
was housed at ...