United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [ECF,
Librado Solano, Jr. is appearing pro se and in forma pauperis
in this civil rights action pursuant to 42 U.S.C. §
before the Court is Defendants' motion for summary
judgment, filed April 13, 2017.
action is proceeding against Defendants Dr. Tate and Dr. Yin
for deliberate indifference to a serious medical need in
violation of the Eighth Amendment.
filed an answer to the complaint on November 3, 2015.
previously stated, Defendants filed a motion for summary
judgment on April 13, 2017. Plaintiff filed an opposition on
July 24, 2017, and Defendants filed a reply on July 31, 2017.
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.
Drs. Tate and Yin move for summary judgment, or in the
alternative, summary adjudication, on the grounds that (1)
they were not deliberately indifferent to Plaintiff's
serious medical needs; and (2) Plaintiff did not sustain an
injury that can be attributed to the doctors' alleged
of Plaintiff's Complaint
11, 2013, Plaintiff was transferred to the California
Correctional Facility Special Housing Unit in Tehachapi.
(Compl. 4,  ECF No. 1.) During the intake examination,
Plaintiff informed the medical staff that he had a hernia
injury on the left side and testicular pain. (Id.)
Plaintiff was advised that he would need to bring the issues
to the attention of medical staff. (Id.)
13, 2013, Plaintiff told a nurse at the clinic that he had a
hernia injury and lump that were causing testicular pain and
he had been prescribed medication and referred for surgery
while housed at Folsom State Prison. (Id. at 4-5.)
Plaintiff was advised that he would receive pain medication
that evening. (Id. at 5.) Plaintiff did not receive
any pain medication and submitted a Health Care Request.
being informed that he would not receive any pain medication
until he was seen by a doctor, Plaintiff was seen by Dr.
Thomas Bingamon on June 27, 2013. (Id. at 5.) Dr.
Bingamon informed Plaintiff that his hernia surgery had been
approved and that an appointment had to be made with the
surgeon. (Id.) Plaintiff asked if he could receive a
different pain medication because the Naproxen was not
helping. (Id.) Dr. Bingamon refused to change
Plaintiff's medication and told him to “hang in
30, 2013, Plaintiff filed an inmate appeal seeking a change
in his pain medication. (Id. at 5.) Plaintiff saw
the surgeon on July 2, 2013 and was advised that his surgery
would take place within two months. (Id.)
9, 2013, Dr. Tate interviewed Plaintiff in regards to his
inmate appeal. (Id. at 5.) Plaintiff told Dr. Tate
that the pain medication was not helping the severe pain from
the hernia and testicle; and he needed better pain control
while he waited for surgery. (Id.) Dr. Tate refused
to change the medication and informed Plaintiff that he would
be okay. (Id.)
October 4, 2013, Plaintiff had still not received surgery and
submitted a Health Care Request to discover the status of his
surgery and complain about the hernia and testicular pain.
(Id. at 5.) Plaintiff saw Dr. Tate on October 21,
2013. (Id.) Dr. Tate threatened to take Plaintiff
off his Naproxen for abusing pain medications. (Id.)
Plaintiff alleges that Dr. Tate refused to allow him to
discuss his medical condition which was getting worse and
causing more pain. (Id.)
underwent surgery on December 6, 2013 and was discharged that
same day. (Id. at 6.) On December 14, 2013,
Plaintiff had a sneezing attack and the incision site began
to swell up and cause severe pain. (Id.) Several
hours later, Plaintiff was taken to the Medical Clinic and
was seen by Dr. Allan J. Yin. (Id.) Dr. Yin informed
Plaintiff that his sneezing had caused the mesh to come apart
causing internal bleeding and surgery would be needed.
(Id.) Plaintiff asked to be sent to the hospital
because the pain and swelling was increasing. (Id.)
Dr. Yin refused to send Plaintiff to the hospital, but
prescribed two Ibuprofen for pain and sent Plaintiff back to
his cell stating that he would check on Plaintiff later.
(Id.) Five hours later, Plaintiff woke up soaked in
blood from the incision site. (Id.) Plaintiff was
taken to the hospital by ambulance. (Id.)
December 17, 2013, Plaintiff returned from the hospital.
(Id. at 6.) The following morning Plaintiff was to
be seen by Dr. Tate and told correctional officers that he
was not able to walk and needed a wheelchair. (Id.)
The officers told Plaintiff that they would check on a
wheelchair, but never returned. (Id.) On December
19, 2013, Plaintiff was escorted to the medical clinic for an
appointment. (Id.) Plaintiff saw Dr. Tate who
informed Plaintiff that the only reason the incision would
have reopened was if Plaintiff cut it open himself.
(Id.) Dr. Tate examined the incision and told
Plaintiff that the appointment was over. (Id.)
Plaintiff told Dr. Tate that he was afraid to walk back to
the housing unit because he had been on bed rest and could
fall. (Id.) Dr. Tate told Plaintiff that if he fell
the correctional officers would pick him up. (Id.)
Plaintiff had to walk back to his cell “in severe agony
and pain.” (Id.)
Defendants' Objections to Plaintiff's
object to Plaintiff's declaration submitted in response
to their declarations. “[O]bjections to evidence on the
ground that it is irrelevant, speculative, and/or
argumentative, or that it constitutes an improper legal
conclusion are all duplicative of the summary judgment
standard itself, and are thus “redundant” and
unnecessary to consider here. Burch v. Regents of Univ.
of California, 433 F.Supp.2d 1110, 1119 (E.D. Cal.
2006); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986) (“Factual disputes that are
irrelevant or unnecessary will not be counted.”). Thus,
the Court does not consider such objections, and will only
address the objections that are considered relevant and
material to resolving the instant motion.
Statement of Undisputed Facts
all times relevant to his claims, Plaintiff was incarcerated
at California Correctional Institution (“CCI”).
(ECF No. 1, Compl. at pg. 4-7; Jeffery Decl., ¶ 2, Ex.
A, Dep. at 8:6-11.)
May 20, 2013, Plaintiff's primary care physician at
Folsom State Prison (“Folsom”) diagnosed
Plaintiff with a left inguinal hernia. Plaintiff's
physician advised him to use a hernia belt and to avoid heavy
lifting. (Feinberg Decl. ¶ 10, Ex. C.)
Plaintiff's doctor at Folsom also submitted a referral
for Plaintiff to consult with a surgeon to schedule a
“routine” hernia repair surgery. On May 23, 2013,
the referral for the routine surgery consult was approved at
Folsom. (Feinberg Decl. ¶ 10, Ex. D.)
referral that is characterized as “routine” is
one in which the service is provided within 90 calendar days
of an order. (Feinberg Decl. ¶ 10, fn. 2.)
June 11, 2013, Plaintiff transferred from Folsom to CCI.
(Compl. at pg. 4; Feinberg Decl. ¶ 10, Ex. E.)
his arrival at CCI, Plaintiff was first examined by a
physician assistant on June 27, 2013. The physician assistant
(“PA”) noted Plaintiff's left-sided hernia
and described it as slightly tender. The PA also provided
Plaintiff with a prescription for Naproxen, an
anti-inflammatory. The exam note also documented that prior
to his transfer to CCI, Plaintiff had been approved for a
left hernia repair. The PA indicated that Specialty Services
would be contacted regarding the approval. (Feinberg Decl.
¶ 10, Ex. G.)
July 2, 2013, Plaintiff consulted with off-site surgeon
Michael A. Michael regarding the hernia procedure. Dr.
Michael agreed to perform the surgery and issued an order for
a “left inguinal hernia repair with mesh.” In his
notes, Dr. Michael made no indication of surgical urgency.
Nor did he recommend additional pain medication. (Feinberg
Decl. ¶ 10, Exs. H, I, J; Tate Decl. ¶ 5.)
Tate first examined Plaintiff on July 9, 2013. Plaintiff
complained of left-sided inguinal hernia pain and pain in his
right testicle. He requested morphine to replace the Naproxen
he was taking and sought the status of the hernia procedure.
(Feinberg Decl. ¶ 10, Ex. K; Tate Decl. ¶¶
6-7, Ex. A.)
Prior to the July 9, 2013 examination, Dr. Tate reviewed
Plaintiff's medical records and learned that Plaintiff
had recently been diagnosed with a left-sided hernia and that
he met with a surgeon regarding an approved routine surgery
repair. Dr. Tate also reviewed Plaintiff's medication
profile. (Tate Decl. ¶¶ 4-5.)
During the July 9, 2013 exam, Dr. Tate noted Plaintiff's
abdomen was flat and normally active. He also measured the
hernia and noted that it was mild to moderately tender upon
palpitation. Dr. Tate also saw that Plaintiff had a small
hydrocele on his right testicle. Plaintiff denied having
fever, nausea, vomiting or blood in his stool. (Feinberg
Decl. ¶ 10, Ex. K; Tate Decl. ¶¶ 6-7, Ex. A.)
July 9, 2013, Dr. Tate concluded that Plaintiff's
condition did not medically indicate a prescription for
morphine. (Tate Decl. ¶¶ 4-7, Ex. A.)
the July 9, 2013 exam, Dr. Tate told Plaintiff that he would
not prescribe morphine and recommended that Plaintiff
continue to take Naproxen twice a day in conjunction with the
Docusate Sodium. (Feinberg Decl. ¶ 10, Ex. K; Tate Decl.
¶ 7, Ex. A.)
the July 9, 2013 consult, Dr. Tate also updated Plaintiff on
the status of the hernia procedure. Dr. Tate explained that
Dr. Michael had agreed to perform the hernia surgery that had
been approved at Folsom and he advised Plaintiff that routine
referrals may take up to three months just to schedule.
(Feinberg Decl. ¶ 10, Ex. K; Tate Decl. ¶¶
7-8, Ex. A.)
Tate concluded that he had no reason to recommend upgrading
the procedure from routine to priority. (Tate Decl.
¶¶ 4-8, Ex. A.)
Tate next examined Plaintiff on September 6, 2013. Plaintiff
requested stronger medication for hernia pain and a stool
softener. During the exam, Plaintiff reported escalating pain
and painful bowel movements. He also said that he had run out
of the Naproxen and ...