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Randolph v. Lozovoy

United States District Court, E.D. California

August 28, 2019

R. LOZOVOY, et al., Defendants.


         Colin Randolph (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. “This action now proceeds on plaintiff's first amended complaint on plaintiff's claims against defendants Lozovoy, Grewal, and Chen, for deliberate indifference to serious medical needs in violation of the Eighth Amendment.” (ECF No. 14, p. 3).

         On January 15, 2019, Defendants filed a motion for summary judgment. (ECF No. 49). Defendants move for summary judgment on the grounds that “(1) Plaintiff failed to exhaust administrative remedies with respect to Defendants Grewal and Chen, because the only appeal he filed concerning the issues raised in the complaint was filed before he saw them; (2) each Defendant provided proper medical care to Plaintiff at the time of treating him; and (3) Defendants are entitled to qualified immunity because they acted reasonably in providing medical care to Plaintiff.” (ECF No. 49-1, p. 6).

         On February 4, 2019, Plaintiff filed his opposition. (ECF No. 51). Plaintiff admits that he failed to exhaust his administrative remedies as to defendants Chen and Grewal, but argues that the Court should not grant summary judgment to defendant Lozovoy. (Id. at 1-2).

         Defendants filed their reply on February 15, 2019. (ECF No. 54).

         Defendants' motion for summary judgment is now before the Court. For the reasons that follow, the Court will recommend that Defendants' motion for summary judgment be granted as to defendants Grewal and Chen, but denied as to defendant Lozovoy.


         a. Summary of Plaintiff's First Amended Complaint

         On or about March 1, 2015, Plaintiff injured his left knee coming down from his assigned upper bunk “where no safely designed way to do so existed or was clearly posted in or out of cell on how to do so.” Plaintiff submitted a medical sick call slip requesting medical attention.

         On or about March 3, 2015, Correctional Officer Buyard arrived at Plaintiff's cell with a wheelchair and pushed Plaintiff to the doctor's office. While at the doctor's office, Plaintiff met with defendant Nurse Practitioner Lozovoy. Plaintiff described his symptoms. Defendant Lozovoy did not evaluate Plaintiff's injury. Plaintiff asked him for a temporary lower bunk accommodation and wheelchair access for showers as well as adequate pain medication and an X-ray. Defendant Lozovoy denied all the requests, and stated that he had removed Plaintiff's lower bunk accommodation for exercising and since Plaintiff has gout, Plaintiff's joints are prone to flare ups from any trauma. Defendant Lozovoy also told Plaintiff that Plaintiff was already receiving medication for gout and pain, and that Plaintiff had to figure out how to get off his bunk without stressing his joints. When Plaintiff protested that there was no way to get out of the upper bunk without trauma to the joints, defendant Lozovoy told Plaintiff that other inmates are not complaining, and that Plaintiff needed to figure it out.

         On or about March 4, 2015, Plaintiff went “man down” and was taken to triage/emergency in a wheelchair, where he was seen by a nurse who evaluated Plaintiff's knee and scheduled an immediate X-ray. The X-ray came back negative, showing no signs of breaks or fractures. The person who conducted the X-ray told Plaintiff that an MRI would be helpful due to the severe swelling and possible tissue damage. The nurse who evaluated Plaintiff's knee told Plaintiff that he would be seen later by defendant Doctor Chen.

         Plaintiff was taken back to his cell and given 400 mg of ibuprofen, which did not reduce the swelling or pain. Because Plaintiff could not get on or off the assigned bunk without assistance, he urinated and defecated on himself.

         During daily pill rounds, Plaintiff told Licensed Vocational Nurse Rodriguez that the medication was not working, that Plaintiff needed help getting off his bunk, and that Plaintiff needed her help to get off the bed to use the restroom and shower. Rodriguez refused to give Plaintiff any medical assistance. Plaintiff again urinated and defecated on himself.

         Plaintiff submitted several emergency sick call slips.

         On or about March 5, 2015, Plaintiff was seen by defendant Grewal, a registered nurse. Plaintiff described his symptoms and his difficulty getting to the bathroom and requested assistance. Defendant Grewal acknowledged Plaintiff's medical history of gout, refused to help Plaintiff access the shower, and denied temporary accommodations.

         On March 8, 2015, defendant Grewal changed Plaintiff's medication from ibuprofen to 500mg of naproxen. The swelling on Plaintiff's left knee had increased and the pain was excruciating. Plaintiff told defendant Grewal that naproxen did not work in the past during gout flare ups and he doubted it would work now. Plaintiff told defendant Grewal that he needed help to get off his bed and to a shower. Plaintiff was told that he would be given a walker, an ACE bandage, and ice, so that he could shower and get around the cell to the toilet. Plaintiff again asked for a lower bunk accommodation, but defendant Grewal refused.

         Plaintiff continued to suffer excruciating pain and swelling trying to get on and off his bed, and he was not given the walker. Plaintiff was forced to urinate and defecate on himself because defendant Grewal did not issue Plaintiff a walker.

         On or about March 10, 2015, Plaintiff saw defendant Chen at the medical clinic. Plaintiff reiterated all of his complaints and asked about an MRI. Defendant Chen refused to order an MRI. Dr. Chen acknowledged the treatment that Plaintiff was receiving for gout, and told Plaintiff to figure out a way to live with the upper bunk. Plaintiff asked for a permanent lower bed to aide in not causing trauma to his joints, but defendant Chen refused.

         Plaintiff filed prison grievances. As a result of the grievances, on March 19, 2015, Dr. Chen ordered that Plaintiff be given a temporary lower bunk. Plaintiff received a lower bunk on March 20, 2015. On or about March 27, 2015, Plaintiff was provided a wheelchair to be used to get to showers, yard, and visiting.

         b. Screening Order

         The Court screened Plaintiff's First Amended Complaint. (ECF Nos. 12 & 14). The Court ordered that on this case proceed on “plaintiff's first amended complaint on plaintiff's claims against defendants Lozovoy, Grewal, and Chen, for deliberate indifference to serious medical needs in violation of the Eighth Amendment, ” and dismissed all other claims. (ECF No. 14, p. 3).


         a. Legal Standards for Summary Judgment

         Summary judgment in favor of a party is appropriate when 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); Albino v. Baca (“Albino II”), 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (“If there is a genuine dispute about material facts, summary judgment will not be granted.”). A party asserting that a fact cannot be disputed must support the assertion by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials, or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

         A party moving for summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). If the moving party moves for summary judgment on the basis that a material fact lacks any proof, the Court must determine whether a fair-minded jury could reasonably find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (β€œThe mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”). β€œ[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” ...

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