United States District Court, N.D. California
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT DOCKET NO. 36
J. VADAS UNITED STATES MAGISTRATE JUDGE
a state prisoner, proceeds with a pro se civil rights
complaint under 42 U.S.C. § 1983. Plaintiff alleges that
defendants, Dr. Ikegbu and Dr. Adam, provided inadequate
medical care for his shoulder and back pain. On January 13,
2017, Defendants filed a motion for summary judgment. (Doc.
36.) Defendants had previously filed a motion for summary
judgment on November 10, 2015. (Doc. 22.) Plaintiff did not
file an opposition to the first motion for summary judgment
and instead sought additional discovery. On July 5, 2016, the
court ordered additional discovery to be provided to
plaintiff. (Doc. 32.) On August 15, 2016, plaintiff sought an
additional 30 days to file an opposition after receiving the
additional discovery. (Doc. 33.) Because plaintiff had
received additional discovery, the court terminated the
motion for summary judgment without prejudice and ordered
defendants to refile it after several months so that
plaintiff would have sufficient time to prepare his
opposition. (Docs. 34, 35.) It was refiled on January 13,
2017. (Doc. 36.) On February 9, 2017, plaintiff requested an
additional 90 days to file an opposition because he had
approaching deadlines in other cases. (Doc. 43.) The court
denied the extension in part and provided plaintiff an
additional 28 days to file an opposition. (Doc. 44.) The
court noted that plaintiff had had more than 14 months to
review the motion for summary judgment. Several months
have passed since plaintiff was provided the extension, and
he has not filled an opposition or otherwise communicated
with the court. The court will still look to the merits of
the motion for summary judgment and for the reasons set forth
below the motion is granted.
judgment is proper where the pleadings, discovery, and
affidavits show there is “no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” See Fed. R. Civ. P. 56(a).
Material facts are those that may affect the outcome of the
case. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute as to a material fact is genuine
if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party. See id.
shall grant summary judgment “against a party who fails
to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial[, ] . . . since
a complete failure of proof concerning an essential element
of the nonmoving party's case necessarily renders all
other facts immaterial.” See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The moving party
bears the initial burden of identifying those portions of the
record that demonstrate the absence of a genuine issue of
material fact. Id. The burden then shifts to the
nonmoving party to “go beyond the pleadings and by
[his] own affidavits, or by the ‘depositions, answers
to interrogatories, and admissions on file, ' designate
‘specific facts showing that there is a genuine issue
for trial.'” See id. at 324 (citing
Fed.R.Civ.P. 56(e) (amended 2010)).
purposes of summary judgment, the court must view the
evidence in the light most favorable to the nonmoving party;
if the evidence produced by the moving party conflicts with
evidence produced by the nonmoving party, the court must
assume the truth of the evidence submitted by the nonmoving
party. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158
(9th Cir. 1999). The court's function on a summary
judgment motion is not to make credibility determinations or
weigh conflicting evidence with respect to a disputed
material fact. See T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.
indifference to serious medical needs violates the Eighth
Amendment's proscription against cruel and unusual
punishment. Estelle v. Gamble, 429 U.S. 97, 104
(1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th
Cir. 1992), overruled on other grounds, WMX
Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th
Cir. 1997) (en banc). A determination of “deliberate
indifference” involves an examination of two elements:
the seriousness of the prisoner's medical need and the
nature of the defendant's response to that need.
Id. at 1059. A “serious” medical need
exists if the failure to treat a prisoner's condition
could result in further significant injury or the
“unnecessary and wanton infliction of pain.”
Id. The existence of an injury that a reasonable
doctor or patient would find important and worthy of comment
or treatment; the presence of a medical condition that
significantly affects an individual's daily activities;
or the existence of chronic and substantial pain are examples
of indications that a prisoner has a “serious”
need for medical treatment. Id. at 1059-60.
prison official is deliberately indifferent if he or she
knows that a prisoner faces a substantial risk of serious
harm and disregards that risk by failing to take reasonable
steps to abate it. Farmer v. Brennan, 511 U.S. 825,
837 (1994). The prison official must not only “be aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists, ” but he
“must also draw the inference.” Id. If a
prison official should have been aware of the risk, but was
not, then the official has not violated the Eighth Amendment,
no matter how severe the risk. Gibson v. County of
Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). “A
difference of opinion between a prisoner-patient and prison
medical authorities regarding treatment does not give rise to
a § 1983 claim.” Franklin v. Oregon, 662
F.2d 1337, 1344 (9th Cir. 1981).
plaintiff's failure to file an opposition, the court has
looked to plaintiff's verified amended complaint. The
following facts are undisputed, unless otherwise noted.
Ikegbu first treated plaintiff on July 18, 2011. Motion for
Summary Judgment (“MSJ”) Ikegbu Decl. at 2. She
diagnosed plaintiff with chronic left shoulder pain, most
likely due to rotator cuff strains, and found a full range of
motion without tenderness. Id. Plaintiff did not
complain of chronic back pain. Id.
28, 2011, another doctor provided a cardiology consultation
for plaintiff, who did not complain of shoulder or back pain.
Id. On August 9, 2011, a nurse treated plaintiff for
shoulder and hip pain, prescribing Ibuprofen, 600 mg, for 60
days. Id. On September 14, 2011, Dr. Ikegbu
administered a steroid injection of Lidocaine to
plaintiff's right hip to address hip ...