United States District Court, E.D. California
CHRISTOPHER I. SIMMONS, Plaintiff,
GRISSOM, et al., Defendants.
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANT
DR. AKANNO'S MOTION FOR SUMMARY JUDGMENT BE GRANTED [ECF
Christopher I. Simmons is appearing pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C.
before the Court is Defendant Dr. Akanno's motion for
summary judgment, filed May 18, 2016.
action is proceeding against Defendants This action is
proceeding against Defendants Grissom, Keiley and St. Lucia
for deliberate indifference toward Plaintiff's
“heat risk” condition, in violation of the Eighth
Amendment, against Defendants Rients and Akanno for
deliberate indifference arising from the deprivation of
Plaintiff's pain medication, in violation of the Eighth
Amendment, and against Defendants Rients and Akanno for
retaliation, in violation of the First
18, 2016, Defendant Dr. Akanno filed a motion for summary
judgment.,  Plaintiff filed an opposition on August
31, 2016,  and Dr. Akanno filed a reply on September
15, 2016. Accordingly, pursuant to Local Rule 230(1), this
motion is deemed submitted for review without oral argument.
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
resolving cross-motions for summary judgment, the Court must
consider each party's evidence. Johnson v. Poway
Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir. 2011).
Plaintiff bears the burden of proof at trial, and to prevail
on summary judgment, he must affirmatively demonstrate that
no reasonable trier of fact could find other than for him.
Soremekun v. Thrifty Payless, Inc., 509 F.3d 978,
984 (9th Cir. 2007). Defendants do not bear the burden of
proof at trial and in moving for summary judgment, they need
only prove an absence of evidence to support Plaintiff's
case. In re Oracle Corp. Sec. Litig., 627 F.3d 376,
387 (9th Cir. 2010).
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 936, 942 (9th Cir.
2011) (quotation marks and citation omitted).
arriving at this recommendation, the Court has carefully
reviewed and considered all arguments, points and
authorities, declarations, exhibits, statements of undisputed
facts and responses thereto, if any, objections, and other
papers filed by the parties. Omission of reference to an
argument, document, paper, or objection is not to be
construed to the effect that this Court did not consider the
argument, document, paper, or objection. This Court
thoroughly reviewed and considered the evidence it deemed
admissible, material, and appropriate.
Summary of Plaintiff's Complaint 
28, 2006, Defendant Akanno violated Plaintiff's Eighth
Amendment rights when he “denied the benefits of hot
packs for PLAINTIFF's serious medical needs, and based
that decision on PLAINTIFF not being granted an “extra
privilege.” (First Am. Compl. ¶ 20.)
August 22, 2007, Defendant Akanno “conspired to
cover-up the illegal actions of Sauceda when Defendant Akanno
changed the medical order from every eight hours to BID or
every 12 hours ... despite PLAINTIFF's specific requested
action not to change the medical order as a reprisal,
violating PLAINTIFF's 1st Amendment right.” (Compl.
¶ 32.) Plaintiff filed a grievance regarding his
medication. (Compl. ¶ 33.)
Defendant's Statement of Undisputed Facts
all relevant times to his claims, Plaintiff was incarcerated
in Facility A at Kern Valley State Prison
(“KVSP”) in Delano, California. (Compl. ¶ 2,
ECF No. 45; Jeffery Decl., ¶ 2, Ex. A, Dep.
Plaintiff claims he suffers from chronic severe debilitating
pain due to congenital failure segmentation at ¶ 2-3 and
his lumbar spine. (Compl. ¶ 27, ECF No. 45.)
Plaintiff admits that narcotics have effectively treated his
chronic pain. (Compl. ¶ 27, ECF No. 45.)
December 30, 2005, Dr. Akanno treated Plaintiff regarding his
chronic care needs. During the visit, Plaintiff reported
adhering to his pain regimen. At the conclusion of the exam,
Dr. Akanno prescribed a 30 day prescription for Vicodin and
continued Plaintiff's medications for his other
conditions. (Akanno Decl., ¶ 4, Ex. A.)
January 26, 2006, Dr. Akanno again treated Plaintiff. During
the exam, Plaintiff requested a change in analgesics. Dr.
Akanno prescribed a 30 day prescription for Hydrocodone.
(Akanno Decl., ¶ 5, Ex. B.)
February 9, 2006, Dr. Akanno examined Plaintiff. During this
visit, Plaintiff reported having back pain due to his back
surgery and specifically complained of discomfort when
utilizing his lower back. Dr. Akanno adjusted the medication
regimen by prescribing a daily double dose of Roxicet, a
narcotic commonly used for moderate to severe pain. Dr.
Akanno also discontinued the Vicodin. (Akanno Decl., ¶
6, Ex. C.)
July 28, 2006, Plaintiff again met with Dr. Akanno. Plaintiff
requested a medical order for a hot pot. Plaintiff claimed he
needed the hot pot to make heat packs in his cell at night to
help alleviate back pain. (Jeffery Decl., ¶ 2. Ex. A,