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Blanco v. Duncan

United States District Court, S.D. California

June 2, 2017

MICHAEL BLANCO, Plaintiff,
v.
GREGORY J. DUNCAN, MD; Defendants.

          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.

         On 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.

         Background

         On May 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, [1] and noted that Plaintiff may require surgery in the future. (Id.)

         Shortly 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. (Id.)

         After 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.)

         Following 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.)

         Eventually, 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.[2] (Doc. No. 140 at 3; Doc. No. 143 at 10; Doc. No. 156 at 3.)

         On 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.)

         On July 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] (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;[4] 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.[5] (Id. at 13-14.) The Defendants subsequently filed answers to Plaintiff's first amended complaint. (Doc. Nos. 41, 42, 43.)

         On July 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.)

         Discussion

         I. Legal Standard for a Motion for Summary Judgment

         Summary 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).

         A party 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.

         When 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).

         II. Plaintiff's Eighth Amendment Claims

         In the 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.)

         A. Legal Standards for Eight Amendment Claims Based on Prison Medical Care

         “The 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 ...


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