United States District Court, S.D. California
ORDER (1) GRANTING DEFENDANTS' MOTIONS FOR
SUMMARY JUDGMENT; AND [DOC. NOS. 104, 120, 149.] (2) SUA
SPONTE DISMISSING DEFENDANT WILLIAMS
MARILYN L. HUFF, District Judge.
October 13, 2016, Defendant Gregory J. Duncan filed a motion
for summary judgment. (Doc. No. 104.) On December 8, 2016,
Defendants Cheryl Malo-Clines, Barbara Fellows, Lansdale J.
Peters, Bondoc, Jonathon E. Akanno, Goyal, and P. Karan also
filed a motion for summary judgment. (Doc. No. 120.) On March
21, 2017, Defendant M. Dhah also filed a motion for summary
judgment. (Doc. No. 149.) Plaintiff filed oppositions to the
respective motions for summary judgment. (Doc. Nos. 140, 143,
156.) Defendants filed replies. (Doc. Nos. 141, 148, 157.)
The Court has taken the matters under submission, and the
Court has provided Plaintiff with notice pursuant to Rand
v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc) and
Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988)
as to each of the motions for summary judgment. (Doc. Nos.
108, 133, 153.) For the reasons below, the Court grants
Defendants' motions for summary judgment.
18, 2005, while playing football at Pelican Bay State Prison,
Plaintiff injured his left shoulder. (Doc. No. 104-2, Peabody
Decl. Ex. A.) That same day, Plaintiff was brought to the
emergency room at Sutter Coast Hospital and was seen by Dr.
Larry R. Schatz. (Id.) Dr. Schatz diagnosed
Plaintiff as having a left shoulder dislocation and suffering
a Bankart lesion,  and noted that Plaintiff may require
surgery in the future. (Id.)
thereafter, Plaintiff was seen by Dr. Gregory J. Duncan on
May 25, 2005 and June 8, 2005. (Doc. No. 104-2, Peabody Decl.
Exs. B-C.) During the visits, Dr. Duncan examined
Plaintiff's shoulder, reviewed x-rays, and diagnosed
Plaintiff as suffering a left shoulder dislocation.
(Id. Ex. B) Dr. Duncan recommended that
Plaintiff's shoulder be immobilized for 3-4 weeks and
that Plaintiff begin physical therapy after about 2 weeks.
Plaintiff suffered further dislocations of his shoulder and
was evaluated by other practitioners, Plaintiff was again
seen by Dr. Duncan on November 15, 2006. (Doc. No. 104-2,
Peabody Decl. Ex. G.) Dr. Duncan recommended performing
surgery on the shoulder, and Plaintiff consented to the
surgery. (Id.) Dr. Duncan performed the surgery, a
left shoulder capsular shift procedure, on February 20, 2007.
(Id. Ex. I.) There were no reported complications.
(Id.) Plaintiff was seen by Dr. Duncan on March 7,
2007 and May 2, 2007 for postoperative visits. (Id.
Exs. J, K.) At the second visit, Dr. Duncan noted that
Plaintiff was doing very well with no further episodes of
instability and that his range of motion was improving.
(Id. Ex. K.) Plaintiff was subsequently seen by two
other practitioners on May 16, 2007 and June 19, 2007 and
reported experiencing no pain. (Id. Exs. L, M.)
Despite this, Plaintiff contends that the capsular shift
procedure that Duncan performed may have failed and that his
labrum was reinjured a few days later. (Doc. No. 140 at 1.)
the surgery, Plaintiff began to complain of pain again in his
left shoulder and was given pain medication by various
practitioners over a period of several years. (Doc. No.
104-2, Peabody Decl. Exs. N-W; Doc. No. 12, FAC ¶¶
8-14, Ex. A at 22-66.) Plaintiff contends that the
medications these Defendants prescribed were ineffective and
did not alleviate his pain. (Doc. No. 143 at 4-8; Doc. No.
156 at 2.)
on January 9, 2014, Plaintiff was seen by an Orthopedist, Dr.
Roman B. Cham, who ordered an MRI. (Doc. No. 104-2, Peabody
Decl. Ex. Y.) Following his MRI, Plaintiff was seen again by
Dr. Cham on April 10, 2014. (Id. Ex. X.) Dr. Cham
noted that the interpretation of the MRI was a tear of the
anterior inferior glenoid labrum and recommended surgery to
repair Plaintiff's labrum and Plaintiff consented.
(Id.) Dr. Cham performed the surgery on January 14,
2015. (Id. Exs. Z, AA.) Plaintiff asserts that the
surgery Dr. Cham performed substantially alleviated his
pain. (Doc. No. 140 at 3; Doc. No. 143 at 10;
Doc. No. 156 at 3.)
February 18, 2015, Plaintiff filed a complaint against
Defendants, alleging that the Defendants failed to provide
Plaintiff with adequate medical care in violation of his
constitutional rights. (Doc. No. 1.) Plaintiff also filed a
motion to proceed in forma pauperis. (Doc. No. 3.)
On May 29, 2015, the Court granted Plaintiff's IFP
motion, declined to screen Plaintiff's complaint, and
ordered the U.S. Marshal Service to effect service of the
complaint. (Doc. No. 6.)
26, 2015, Plaintiff filed a first amended complaint against
Defendants Gregory J. Duncan M.D., Barbara Fellows, RN,
Cheryl Malo-Clines, FNP, Claire Williams, M.D., Linda Rowe,
M.D., Lansdale J. Peters, PA-C, Jonathon E. Akanno, M.D., P.
Karan, M.D., Goyal PTS, Dhah, NP, and Bondoc, NP, alleging
causes of action pursuant to 42 U.S.C. § 1983 for: (1)
deliberate indifference to serious medical needs in violation
of the Eighth Amendment; (2) violation of the due process
clause of the Fourteenth Amendment; (3) failure to provide
adequate medical care in violation of the Eighth Amendment;
(4) failure to provide adequate medical care resulting in
emotional distress in violation of the Eighth
Amendment; and (5) a claim that Defendants are not
entitled to qualified immunity. (Doc. No. 12, FAC.) Shortly
thereafter, Defendants Duncan, Dhah, Malo-Clines, Fellows,
Peters, Bondoc, Akanno, and Karan filed motions to dismiss
Plaintiff's first amended complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). (Doc. Nos. 14, 16, 35.) On
January 15, 2016, the Court issued an order granting in part
and denying in part Defendants' motions to dismiss. (Doc.
No. 37.) In the order, the Court dismissed with prejudice
Plaintiff's fifth cause of action of no qualified
immunity, and declined to dismiss the remainder of the claims
in the FAC. (Id. at 13-14.) The Defendants
subsequently filed answers to Plaintiff's first amended
complaint. (Doc. Nos. 41, 42, 43.)
21, 2016, after reviewing the sufficiency of Plaintiff's
claims in the FAC against Defendant Rowe, the Court sua
sponte dismissed Defendant Rowe from the action with
prejudice pursuant to 28 U.S.C. § 1915(e)(2). (Doc. No.
82.) On October 11, 2016, the Court denied Plaintiff's
motion for reconsideration of the Court's July 21, 2016
order dismissing Defendant Rowe with prejudice. (Doc. No.
103.) By the present motions, Defendants Duncan, Malo-Clines,
Fellows, Dhah, Peters, Bondoc, Akanno, Goyal, and Karan move
for summary judgment of Plaintiff's remaining claims.
(Doc. Nos. 104-1, 120-1, 149-1.)
Legal Standard for a Motion for Summary Judgment
judgment is appropriate under Rule 56 of the Federal Rules of
Civil Procedure if the moving party demonstrates that there
is no genuine issue of material fact and that it is entitled
to judgment as a matter of law. Fed.R.Civ.P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material when, under the governing substantive law,
it could affect the outcome of the case. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Fortune Dynamic, Inc. v. Victoria's Secret Stores
Brand Mgmt., Inc., 618 F.3d 1025, 1031 (9th Cir. 2010).
“A genuine issue of material fact exists when the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Fortune
Dynamic, 618 F.3d at 1031 (internal quotation marks and
citations omitted); accord Anderson, 477 U.S. at
248. “Disputes over irrelevant or unnecessary facts
will not preclude a grant of summary judgment.”
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
seeking summary judgment always bears the initial burden of
establishing the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323. The moving party can
satisfy this burden in two ways: (1) by presenting evidence
that negates an essential element of the nonmoving
party's case; or (2) by demonstrating that the nonmoving
party failed to establish an essential element of the
nonmoving party's case that the nonmoving party bears the
burden of proving at trial. Id. at 322-23; Jones
v. Williams, 791 F.3d 1023, 1030 (9th Cir. 2015). Once
the moving party establishes the absence of a genuine issue
of material fact, the burden shifts to the nonmoving party to
“set forth, by affidavit or as otherwise provided in
Rule 56, ‘specific facts showing that there is a
genuine issue for trial.'” T.W. Elec.
Serv., 809 F.2d at 630 (quoting former Fed.R.Civ.P.
56(e)); accord Horphag Research Ltd. v. Garcia, 475
F.3d 1029, 1035 (9th Cir. 2007). To carry this burden, the
non-moving party “may not rest upon mere allegation or
denials of his pleadings.” Anderson, 477 U.S.
at 256; see also Behrens v. Pelletier, 516 U.S. 299,
309 (1996) (“On summary judgment, . . . the plaintiff
can no longer rest on the pleadings.”). Rather, the
nonmoving party “must present affirmative evidence . .
. from which a jury might return a verdict in his
favor.” Anderson, 477 U.S. at 256.
ruling on a summary judgment motion, the court must view the
facts and draw all reasonable inferences in the light most
favorable to the non-moving party. Scott v. Harris,
550 U.S. 372, 378 (2007). The court should not weigh the
evidence or make credibility determinations. See
Anderson, 477 U.S. at 255. “The evidence of the
non-movant is to be believed.” Id. Further,
the Court may consider other materials in the record not
cited to by the parties, but it is not required to do so.
See Fed.R.Civ.P. 56(c)(3); Simmons v. Navajo
Cnty., 609 F.3d 1011, 1017 (9th Cir. 2010).
Plaintiff's Eighth Amendment Claims
FAC, Plaintiff alleges claims for violation of the Eighth
Amendment against all of the Defendants. (Doc. No. 12, FAC
¶¶ 48-59, 72-95.) Defendants Duncan, Malo-Clines,
Fellows, Dhah, Peters, Bondoc, Akanno, Goyal, and Karan move
for summary judgment in their favor on Plaintiff's Eighth
Amendment claims. (Doc. Nos. 104-1, 120-1, 149-1 at 5-14.)
Legal Standards for Eight Amendment Claims Based on Prison
government has an ‘obligation to provide medical care
for those whom it is punishing by incarceration, ' and
failure to meet that obligation can constitute an Eighth
Amendment violation cognizable under § 1983.”
Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir.
2014) (quoting Estelle v. Gamble, 429 U.S. 97,
103-05 (1976)). “In order to prevail on an Eighth
Amendment claim for inadequate ...