United States District Court, E.D. California
COLIN M. RANDOLPH, Plaintiff,
R. LOZOVOY, et al., Defendants.
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE GRANTED AS TO
PLAINTIFF'S CLAIMS AGAINST DEFENDANTS GREWAL AND CHEN BUT
DENIED AS TO PLAINTIFF'S CLAIM AGAINST DEFENDANT LOZOVOY
(ECF NO. 49) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN
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).
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).
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).
filed their reply on February 15, 2019. (ECF No. 54).
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
Summary of Plaintiff's First Amended Complaint
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.
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.
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
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.
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.
submitted several emergency sick call slips.
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.
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.
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.
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.
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
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).
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Legal Standards for Summary Judgment
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.
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) (“The 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.”). “[A] complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”