United States District Court, S.D. California
ANTONIO J. BARRAGAN, CDCR #BA-2038, Plaintiff,
CAPTAIN D. FLYNN, et al., Defendants.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT [DOC. NO. 25]
MICHAEL M. ANELLO United States District Judge
Antonio J. Barragan, previously detained at San Diego County
Jail and proceeding pro se, has filed a civil rights
complaint pursuant to 42 U.S.C. § 1983, alleging
Defendant San Diego Sheriff's Department Captain D.
Flynn denied him proper medical attention by
“ignoring” his pain and need for shoulder surgery
in violation of the Eighth and Fourteenth Amendments.
See Doc. No. 1. Defendant Flynn moves for summary
judgment as to Plaintiff's claim. See Doc. No.
25. To date, Plaintiff has not filed a response to
Defendant's motion. The Court took the motion under
submission on the moving papers and without oral argument
pursuant to Civil Local Rule 7.1.d.1. For the reasons set
forth below, the Court GRANTS Defendant's motion.
claims that on April 26, 2015, he was involved in a physical
altercation with a fellow inmate at San Diego County Jail.
See Doc. No. 1-2 at 6. Plaintiff suffered injuries
during the altercation. Id. Plaintiff testified that
he was taken to the jail medical unit after the altercation,
where he was treated for cuts and abrasions, and examined for
a possible concussion. See Doc. No. 25-3 at 2.
Several days later, Plaintiff requested medical attention due
to pain in his shoulders. See Doc. No. 25-4 at
11-12. Plaintiff was offered pain medication, but at various
times he declined to take the recommended medication.
Id. at 27. Plaintiff saw a doctor, who placed
Plaintiff on the “ortho list” based on a
suspected torn rotator cuff. Id. at 16. Plaintiff
received cortisone injections and physical therapy several
times. Id. Six or seven months later, Plaintiff saw
a surgeon who ordered an MRI scan of Plaintiff's
shoulder. Id. at 20. Plaintiff ultimately advised
the surgeon that a previously administered steroid injection
was not sufficient for the pain, and surgery was necessary.
Id. Plaintiff's surgery was scheduled, however,
Plaintiff was transferred to another institution and he never
received the surgery. Id. During his time at San
Diego County Jail, Plaintiff's only contact with
Defendant Flynn was when he asked Flynn a question about
something unrelated to his injuries. Id. at 10.
party may move for summary judgment, identifying each claim
or defense - or the part of each claim or defense - on which
summary judgment is sought. 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). A
fact is material if it could affect the outcome of the suit
under applicable law. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248-49 (1986). A dispute about a
material fact is genuine if there is sufficient evidence for
a reasonable jury to return a verdict for the non-moving
party. Id. at 248.
party seeking summary judgment bears the initial burden of
establishing the basis of its motion and of identifying the
portions of the declarations, pleadings, and discovery that
demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party does not bear the burden of proof at
trial, he may discharge his burden of showing no genuine
issue of material fact remains by demonstrating that
“there is an absence of evidence to support the
nonmoving party's case.” Id. at 325. The
burden then shifts to the opposing party to provide
admissible evidence beyond the pleadings to show that summary
judgment is not appropriate. Id. at 324. The party
opposing summary judgment cannot “rest upon the mere
allegations or denials of [its] pleading but must instead
produce evidence that sets forth specific facts showing that
there is a genuine issue for trial.” Estate of
Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th
Cir.), cert. denied, 555 U.S. 827 (2008) (internal quotation
applying the standard set forth under Rule 56, district
courts must “construe liberally motion papers and
pleadings filed by pro se inmates and . . . avoid
applying summary judgment rules strictly.” Thomas
v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). A court
must consider as evidence in opposition to summary judgment
all contentions “offered in motions and pleadings,
where such contentions are based on personal knowledge and
set forth facts that would be admissible in evidence, and
where [the party appearing pro se] attested under
penalty of perjury that the contents of the motions or
pleadings are true and correct.” Jones v.
Blanas, 393 F.3d 918, 923 (9th Cir. 2004). However,
neither an unverified complaint nor unsworn statements made
in the parties' briefs can be considered as evidence at
this stage. Moran v. Selig, 447 F.3d 748, 759 &
n. 16 (9th Cir. 2006) (unverified complaint cannot be
considered as evidence on motion for summary judgment).
Flynn moves for summary judgment based on the lack of any
evidence to demonstrate that he personally participated in
the allegedly unlawful acts at issue in this case. As such,
Defendant argues that no reasonable trier of fact could find
that he was deliberately indifferent to Plaintiff's
medical needs in violation of Plaintiff's constitutional
succeed on a claim for deficient medical care, a plaintiff
must show “deliberate indifference” to his or her
“serious medical needs.” Estelle v.
Gamble, 429 U.S. 97, 104 (1976) (setting forth legal
standard under the Eighth Amendment). This includes “both an
objective standard - that the deprivation was serious enough
to constitute cruel and unusual punishment - and a subjective
standard - deliberate indifference.” Snow v.
McDaniel, 681 F.3d 978, 985 (9th Cir. 2012)
(overruled in part on other grounds by Peralta v.
Dillard, 744 F.3d 1076 (9th Cir. 2014).
indifference “may appear when prison officials deny,
delay or intentionally interfere with medical treatment, or
it may be shown by the way in which prison physicians provide
medical care.” Hutchinson v. United States,
838 F.2d 390, 394 (9th Cir. 1988). A prison official is
deliberately indifferent whenever the official “knows
of and disregards an excessive risk to inmate health and
safety.” Toguchi v. Chung, 391 F.3d 1051, 1057
(9th Cir. 2004) (quoting Gibson v. Cnty. of Washoe,
290 F.3d 1175, 1187 (9th Cir. 2002)) (internal quotation
marks omitted). This requires more than mere misdiagnosis,
medical malpractice, or even gross negligence. Wood v.
Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).
Serious Medical Need
testified during his deposition that he suffered some serious
injury to at least one of his shoulders while incarcerated at
San Diego County Jail. Defendant Flynn offers no evidence to
the contrary. ...