United States District Court, N.D. California
ORDER GRANTING DEFENDANT SOKOLOFF'S MOTION FOR
SUMMARY JUDGMENT; AND DISMISSING WITHOUT PREJUDICE REMAINING
CLAIM AGAINST DEFENDANT JOHN DOE #2
GONZALEZ ROGERS United States District Judge.
Eric Zachary Anderson, a state prisoner, brought this pro
se civil rights action under 42 U.S.C. § 1983,
concerning prison staff's responses to his medical needs
on a “layover” at San Quentin State Prison
(“SQSP”) during his transfer to Pelican Bay State
Prison (“PBSP”) in November of 2013. On October
6, 2015, the Court dismissed the complaint with leave to
amend in order to give Plaintiff the opportunity to correct
certain deficiencies. Dkt. 15. Thereafter, Plaintiff filed an
amended complaint, which is the operative complaint in this
action. Dkt. 16.
April 20, 2016, the Court found that Plaintiff's amended
complaint adequately alleged a cognizable Eighth Amendment
claim of deliberate indifference to his serious medical needs
against Defendants SQSP Registered Nurse M. Sokoloff and John
Doe #2, who Plaintiff describes as “M. Sokoloff['s]
co-worker on 11-12-13 in R&R.” Dkt. 19 at 3-5
(citing Dkt. 16 at 3). The Court dismissed Plaintiff's
supervisory liability claim against Defendant John Doe #1
(described as “Medical Supervisor of M.
Sokoloff”), because there is no vicarious liability
under section 1983 and Plaintiff failed to include
allegations showing that Defendant John Doe #1 personally was
involved in the constitutional deprivation. Id. at
5-6 (citing Taylor v. List, 880 F.2d 1040, 1045 (9th
Cir. 1989)). Finally, the Court dismissed Plaintiff's
claims against the remaining Defendants who were listed in
his original complaint, because Plaintiff failed to amend his
claims against them in his amended complaint. Id. at
3. The Court then served the complaint upon Defendant
Sokoloff and issued a briefing schedule for filing a
dispositive motion. Id. at 6-9. The Court directed
Plaintiff to provide the name of Defendant John Doe #2 by the
date scheduled for Defendant Sokoloff to file a dispositive
motion. Id. at 6. The Court warned Plaintiff that
the failure to do so would result in the dismissal of any
claims against Defendant John Doe #2 without prejudice to
Plaintiff filing a new action against him or her.
date, Plaintiff has not provided the name of Defendant John
Doe #2, and the deadline to do so has passed. Therefore,
Plaintiff's Eighth Amendment claim against Defendant John
Doe #2 is DISMISSED without prejudice. The only remaining
Defendant in this action is Defendant Sokoloff (hereinafter
the Court notes that the parties have presented an issue
relating to Defendant's gender. Plaintiff explains in his
amended complaint and at his deposition how Defendant
participated in the alleged acts of deliberate indifference
to serious medical needs during the layover at SQSP, albeit
Plaintiff referred this Defendant by the wrong gender
(she/her). Dkt. 16 at 7-10; Dkt. 43-2, Ex. A, Pl.'s Dep.
32:13-15, 74-10-14; Dkt. 53, Pl.'s Dep. 34:22-25,
35:6-10. Meanwhile, in his declaration, Defendant, who is a
male, concedes to being the medical staff member who examined
Plaintiff during the layover in SQSP. Sokoloff Decl.
¶¶ 4-21. Therefore, the Court need not further
address the issue of Plaintiff using the wrong gender.
January 20, 2017, Defendant filed the present motion for
summary judgment on the grounds that he did not act with
deliberate indifference to Plaintiff's serious medical
needs, that he did not cause Plaintiff any deprivation of his
constitutional rights, and that he is entitled to qualified
immunity because a reasonable registered nurse in his
position could have believed his conduct was lawful. Dkt. 43.
On March 31, 2017, Plaintiff filed an opposition to
Defendant's motion. Dkt. 48. On April 20, 2017, Defendant
filed a reply to the opposition and evidentiary objections to
Plaintiff's evidence submitted in support of the
opposition. Dkts. 51, 52. For the reasons discussed below,
Defendant's motion for summary judgment is GRANTED.
otherwise noted, the following facts are not disputed by the
Stabbing Incident at California State Prison-Sacramento
November 11, 2013, Plaintiff was stabbed by fellow inmates
sometime between 11:30 a.m. and 12:00 p.m. at CSP-SAC, where
Plaintiff previously was incarcerated. Dkt. 43-2, Ex. A,
Pl.'s Dep. 14:8-15. Plaintiff alleges he was jumped from
behind by multiple inmates while he was on the yard
exercising. Id. 14:16-25. Plaintiff also alleges
that an officer in the tower shot and hit his upper right
shoulder with a 40 millimeter rubber bullet. Id.
17:6-14. After the incident, Plaintiff was wheeled to the
Correctional Treatment Center (“CTC”) at CSP-SAC
and received Tylenol-3, two shots of morphine, and eight
stitches in his right arm and abdomen. Id.
17:17-18:12. Plaintiff was not taken to an outside medical
facility. Id. 18:13-14. Plaintiff received a
prescription for Tylenol-3. Id. at 19:1-3. He was
given one dose of Tylenol-3 on-site, but he could not receive
any other doses because this medication had to be
administered by a nurse, as inmates are not permitted to
possess narcotic medication. Id. 19:1-3, 19:16 -
following morning, on November 12, 2013 at 7:30 a.m.,
Plaintiff left CSP-SAC to be transferred to PBSP.
Id. 20:10-21. A nurse at CSP-SAC administered
Tylenol-3 before he was transported. Dkt. 54, Ex. A,
Pl.'s Dep. 21:17-24. Plaintiff did not ask to be seen by
medical staff before leaving CSP-SAC. Dkt. 43-2, Ex. A,
Pl.'s Dep. 23:15-17.
Layover at SQSP
November 12, 2013, while en route to PBSP, the bus Plaintiff
was riding made an overnight stop at SQSP. Id.
date, Defendant was assigned to the Reception Center at SQSP.
Sokoloff Decl. ¶ 3. His primary responsibility that
evening was to assess the medical condition of newly
convicted inmate/patients who were to remain at SQSP.
approximately 5:35 p.m., Defendant was informed that a
“layover” patient (Plaintiff) was complaining of
pain. Id. ¶ 4. At 5:45 p.m., after Defendant
completed his duties with another patient he had been
examining/treating, he attended to Plaintiff. Id.
Defendant normally would call an officer to open an
inmate's cell door to examine him, pursuant to California
Department of Corrections and Rehabilitation
(“CDCR”) policy. Id. ¶ 6. However,
Plaintiff “appeared impatient and aggravated” and
insisted that Defendant examine him immediately. Id.
Before Defendant could call an officer to open his holding
cell door, Plaintiff proceeded to display the wounds he
received during an altercation in which he was involved at
CSP-SAC. Id. Defendant asked if any of
Plaintiff's wounds resulted from an injury during
transportation, but Plaintiff “made it clear that they
were not.” Id. ¶ 7. Defendant then
completed a CDCR form 7219, Medical Report of Injury or
Unusual Occurrence and, under “Brief Statement in
Subject's Words of the Circumstances of the Injury or
Unusual Occurrence, ” Defendant indicated the
following: “ø Unusual Occurrence, ” which
means “No Unusual Occurrence.” Id.; Dkt.
43-2, Ex. C. Defendant claims that the reason for documenting
“No Unusual Occurrence” on Plaintiff's CDCR
form 7219 “was to indicate that it did not appear that
there were any issues during transport.” Sokoloff Decl.
¶ 28. Defendant claims that he “was not trying to
conceal the fact that [Plaintiff] had pre-existing
injuries.” Id. Defendant claims that
“[t]here would be no reason for [him] to do this, since
[he] did document all of [Plaintiff's] pre-existing
injuries on his progress note . . . .” Id.
Based on Defendant's observation and Plaintiff's
narrative, it appeared that Plaintiff “had various
puncture wounds, contusions, abrasions and lacerations
affecting his torso and upper and lower extremities.”
Id. ¶ 8. Defendant claims that all of
Plaintiff's wounds, “[a]lthough numerous, ”
appeared “superficial with no evident drainage and no
signs or symptoms of infection.” Id. Defendant
observed that Plaintiff had one laceration that had been
treated recently with eight sutures. Id. However,
Defendant “did not see any active bleeding,
blood-soaked bandages, or any other physical signs of injury
subsequent to the sutures which would necessitate further
medical care.” Id. ¶ 9. Defendant
believed Plaintiff's wounds had “obviously been
well attended to, ” and Defendant asked Plaintiff what
type of treatment he was seeking. Id.
“rapid and lengthy narrative, ” Plaintiff
responded that he needed pain medication. Id. ¶
10. Plaintiff claimed that Tylenol-3 with codeine
(“Tylenol-3” or “T3”) had been
prescribed by a physician at CSP-SAC. Id. Plaintiff
was insistent that Defendant administer this medication
immediately. Id. Defendant informed Plaintiff that
the passing of prescription medication was not part of his
job duties that evening, but he would look into the matter
and see that Plaintiff received any medication for which SQSP
had an order. Id. Plaintiff did not ask Defendant
Sokoloff for any medical care or treatment other than pain
medication. Id. ¶ 12. Plaintiff indicated that
“he had no need of wound care or bandage/dressing
changes” and that “his only concern was pain
medication.” Id. Defendant claims that after
Plaintiff requested Tylenol-3, Defendant “wrote t3 on
[Plaintiff's] 7219 as a memo to [himself] to look
specifically for that medication for [Plaintiff] based on his
request.” Id. ¶ 30.
Plaintiff's Request for Pain Medication and
amended complaint, Plaintiff claims that Defendant failed to
provide him with pain management treatment for his injuries
from the stabbing incident, stating:
I asked for my medication that the [doctor] in C.S.P. SAC
prescribed me after getting my stitches Tylenol Three with
Cod[e]ine. I was to get six a day and hadn[']t received
anything. [Defendant] seemed irritated with my pleas for
medical help. After approx. 2 and a half hours of pleading
for medical attention, [Defendant] came to my holding cell
and said “O Rite [sic] already I get it your [sic] in
pain and need your T3's.” And [Defendant] wrote T3
on my body chart in order to make me think [Defendant] was
going to get my meds. However, what [Defendant] really did
was falsify my CDCR 7219 body chart to say I had no wounds at
all in order for [Defendant] to not have to tend to my
Dkt. 16 at 8-9.
Defendant's version is significantly different than
Plaintiff's version. Defendant claims he had worked in
the Inmate/Patient Transfers Department for approximately two
years. Sokoloff Decl. ¶ 13. He was familiar with all the
methods by which the medication Plaintiff was seeking would
have been documented. Id. Defendant checked
Plaintiff's transfer paperwork. Id. If a
narcotic had been ordered at another institution, a
Medication Administration Record (“MAR”) should
have been included. Id. It was not. Id.
Furthermore, a Physicians' Order and a progress note
documenting recent treatment should also have been present,
but no such order or note was included in Plaintiff's
paperwork. Id. Defendant checked CDCR's online
Pharmacy System, MAXOR. Id. No orders for narcotics
were documented for Plaintiff in MAXOR. Id.
Defendant checked the electronic Unit Health Record
(“eUHR”). Id. There was no evidence of
emergency medical treatment or a prescription for a narcotic.
Id. It was well after hours, but Defendant called
CSP-SAC to see if anyone had a record of this medication
order. Id. There was no answer at the CSP-SAC
Pharmacy. Id. Defendant spoke with the “third
watch nursing supervisor, ” who could not provide
useful information regarding whether Plaintiff had a
prescription for Tylenol-3. Id. She told Defendant
that the “Transfer Nurse” had left for the day.
“spent well over two hours researching
[Plaintiff's] claim of a prescription for a narcotic, but
found no record in any resource [he] accessed.”
Id. ¶ 14. Defendant “performed a check of
all available resources.” Id.
(emphasis in original). Therefore, Defendant returned to
speak with Plaintiff at that point. Id. ¶ 15.
Defendant explained that he could find no record of an order
for a narcotic having been written for Plaintiff and,
therefore, he could not administer Tylenol-3. Id.
Plaintiff would not accept the fact that Defendant could not
administer the narcotic without a doctor's order and
insisted that Defendant “reexamine his wounds and,
based on [Defendant's] assessment, administer the
narcotic accordingly.” Id. ¶¶ 15-16.
to state approved nursing protocols, Defendant offered
Plaintiff the choice of “Tylenol, Naproxsyn [sic],
Ibuprofen, ” which were within Defendant's scope of
practice to administer. Id. ¶ 16. Defendant
advised Plaintiff that the care he was requesting was beyond
what he was licensed to provide due to the fact that the
request was for narcotics. Id. ¶ 18. Defendant
advised Plaintiff that, if his pain persisted or increased,
he could choose another option: “call man down.”
Id. In using the “Man Down” protocol,
Plaintiff would be alerting custody that he had an
Urgent/Emergent medical condition requiring immediate medical
attention. Id. ¶ 19. He then would be taken to
the Treatment and Triage Area (“TTA”) (CDCR's
equivalent of an Emergency Room), where his condition could
be assessed more thoroughly and, if appropriate, a narcotic
then could be administered under the supervision of a doctor.
Id. Plaintiff declined to use this protocol.
explaining to Plaintiff the “Man Down”
procedures, Defendant did not have any further interaction
with Plaintiff for the remainder of the evening. Id.
p.m. on November 12, 2013, Defendant drafted a progress note
documenting the aforementioned events and filed it with the
Medical Records Department. Id; Dkt. 43-2, Ex. D. In
Plaintiffs declaration in support of his opposition, he
argues that the progress note was fabricated by Defendant.
Pl.'s Decl. ¶¶ 13-14. As explained below,
Plaintiff does not support his contention with any admissible
evidence. Plaintiff also attempts to submit evidence that
Defendant violated a department policy because he was found
“guilty” of certain claims related to
“falsifying [Plaintiffs] [CDCR form] 7219.”
Id. ¶ 20, Ex. E. However, the Court also finds
below that such a contention is not supported by admissible
evidence and lacks foundation.
progress note on the record is handwritten, and, to the best
the Court can decipher Defendant's handwriting, it
- I/P [Inmate/Patient] arrived as layover from CSP-SAC c/o
[complaining of] [undecipherable] pain secondary to
altercation <24 [hours] ago.
- I/P presents [with] mult. puncture wounds (?), contusions
and lacerations on [both] U&L [upper and lower]
extremities and torso. Lacerations appear clean &
well-scabbed superficial in nature excepting one laceration
on right FA [forearm] receiving eight sutures. ø [No]
Bandage Dressing Present. Area appears moist [with] some
swelling but ø [no] sg [serosanguanous or
purulentdrainage. Sutures intact [with] good
approximation. ø [No] redness or S/S [signs or
symptoms of] infection. I/P c/o [complaining of] pain 10/10.
- Alteration in comfort [secondary] to pain assoc. with
recent altercation. [Undecipherable] Pain medication not on
file in eUHR, MAXOR or transfer paperwork.
- I/P offered Tyl[enol], Ibu[profen] or Naproxsyn [sic] . . .
via Nursing Protocols. I/P refused [undecipherable]. I/P
refused TX [treatment]. I/P advised to go ...