United States District Court, N.D. California
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT; DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
RE: DKT. NOS. 45, 49, 60
HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE
an inmate at California State Prison, Sacramento
(“CSP-SAC”) filed this pro se civil
rights action under 42 U.S.C. § 1983 alleging that
prison officials at Salinas Valley State Prison
(“SVSP”) where he was previously incarcerated
were deliberately indifferent to his serious medical needs
when they failed to provide him with diabetic snacks. Now
before the Court are plaintiff's and defendants'
cross-motions for summary judgment. For the reasons set forth
below, defendants' motion for summary judgment is GRANTED
and plaintiff's motion for summary judgment is DENIED.
following factual allegations are undisputed unless stated
otherwise. Plaintiff is diabetic and takes insulin for his
diabetes. He was incarcerated at SVSP from May 27, 2016 to
January 12, 2017. While at SVSP his blood sugar levels were
checked twice per day, and he was prescribed glucose pills to
take if he felt symptoms of hypoglycemia (low blood sugar).
Plaintiff requested that he be given a daily diabetic snack
(two packages of cheese and crackers or peanut butter and
crackers plus one fresh fruit) in order to eat the snack if
he felt signs of hypoglycemia. This request was denied as not
was seen by medical provider Dr. Tuvera three times while he
was at SVSP: on June 1, 2016; July 1, 2016; and September 30,
2016. (Defendants' Mot. For Summary Judgment
(“MSJ”), Tuvera Decl., ¶ 2.) At each
appointment, Dr. Tuvera noted that plaintiff had, among other
conditions, type 2 diabetes and obesity. (Id. at
¶ 3; Ex. A.) At the first appointment, Dr. Tuvera
discussed with plaintiff the importance of taking glucose gel
(also referred to as glucose tablets) if he experienced
symptoms of hypoglycemia. (Id. at ¶ 6; Ex. A.)
At the second and third appointments Dr. Tuvera noted that
plaintiff had no hypoglycemia. (Id. at Exs. B and
1, 2016, plaintiff submitted health care appeal
SVSP-HC-16055478. (MSJ, Gamboa Decl., Ex. A.) In this appeal
plaintiff requested that he be given a diabetic snack,
arguing that it was mandatory under Plata and that
SVSP was withholding the snack from insulin-dependent
diabetics as a form of punishment. (Id.) He
requested that SVSP acknowledge his previous prescribed
treatment of a daily snack which began in 2005, and declare
that the policy of not issuing diabetic snacks violated
first level response, issued by Dr. Fu and defendant Gamboa,
partially granted plaintiff's request, referring him to
the dietician for an assessment regarding diabetic snacks and
to his primary care provider for a diabetes assessment.
(Defendants' MSJ, Gamboa Decl., Ex. B.) Plaintiff
appealed to the second level of administrative review,
stating he was dissatisfied and still not receiving a
diabetic snack, and that SVSP was in breach of
Plata. (Id. at Ex. A.)
second level response issued by defendant Kumar states that
plaintiff's second level appeal indicated that he was
still waiting to be seen for his diabetic assessment.
(Defendants' MSJ, Kumar Decl., Ex. D.) Because records
showed that he was seen for the assessment on July 1, 2016,
Kumar ultimately granted the second level appeal.
appealed to the third level of review stating that despite
the second level decision granting his appeal, he was still
not receiving a diabetic snack, and stating that under
Plata CDCR doctors and dieticians have no discretion
in determining a course of action concerning nourishment for
inmates treated with insulin. (Defendants' MSJ, Gamboa
Decl., Ex. A.) The appeal was denied at the third level of
review. (Defendants' MSJ, Lewis Decl., Ex. 1.) The third
level decision was signed by S. Gates for Lewis and stated
that plaintiff had been seen by both his primary care
provider and a dietician and that neither recommended a
diabetic snack. (Id.)
second health care appeal, SVSP-HC-16056045, submitted on
August 10, 2016 stated that a nurse named
“Rodriqez” was denying him diabetic snacks and
saying that it did not matter that his appeal was granted.
(Defendants' MSJ, Gamboa Decl., Ex. C.) Plaintiff
requested that SVSP recognize Volume 4 Medical Services,
Chapter 20A and 20B, which he asserted required that all
inmates treated with insulin receive diabetic snacks.
first level of review Dr. Fu and Gamboa partially granted the
appeal as to recognizing Chapter 20 of Volume 4 Medical
Services, but denied plaintiff's request for a diabetic
snack. (Id. at Ex. D). The decision notes that
plaintiff was assessed by a primary care physician and
dietician, neither of whom recommended a snack; that
plaintiff had not received a snack for several months; and
that the dietician was not able to successfully discuss the
matter with him and had to terminate the appointment.
appealed to the second level of review, stating that his
interview with dietician Watson had ended without incident,
and that SVSP's refusal to give diabetic inmates a snack
was deliberate indifference to a serious medical need.
(Id. at Ex. B.) Plaintiff asserted that SVSP was in
violation of Plata and had implemented a
discretionary policy in place of Plata's
second level of review, Kumar and another reviewer, B.
Brizendine, denied the request for a diabetic snack and
granted the request to recognize Volume 4, Chapters 20A and
20B. (Defendants' MSJ, Kumar Decl., Ex. F.) Plaintiff
appealed the second level decision, arguing that his blood
sugar was not well controlled, that prior prisons had always
honored his standing order for a diabetic snack, and that
SVSP's policy to deny diabetic snacks was not an
individual diagnosis but rather a policy that was applied to
all diabetic inmates as a form of punishment.
(Defendants' MSJ, Gamboa Decl., Ex. B.)
third level of review this appeal was denied, again by S.
Gates for Lewis. (Defendants' MSJ, Lewis Decl., Ex. 2.)
The decision states that that the policies in Volume 4
Chapter 20.2 are that a diabetic snack may be issued to
patients with juvenile onset type 1 diabetes mellitus or
brittle diabetes with indication, but that diabetic snacks
are not indicated as mandatory. (Id.) Further, the
decision states that the request for a snack is duplicative
of plaintiff's request in his other administrative appeal
which was already decided at the third level, and therefore
would not be addressed again in the appeal response.
Standard of Review
judgment is proper where the pleadings, discovery and
affidavits show there is “no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” See Fed. R. Civ. P. 56(a).
Material facts are those that may affect the outcome of the
case. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute as to a material fact is genuine
if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party. See id.
shall grant summary judgment “against a party who fails
to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial[, ] . . . since
a complete failure of proof concerning an essential element
of the nonmoving party's case necessarily renders all
other facts immaterial.” See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The moving party
bears the initial burden of identifying those portions of the
record that demonstrate the absence of a genuine issue of
material fact. Id. The burden then shifts to the
nonmoving party to “go beyond the pleadings and by
[his] own affidavits, or by the ‘depositions, answers
to interrogatories, and admissions on file,' designate
‘specific facts showing that there is a genuine issue
for trial.'” See Id. at 324 (citing
Fed.R.Civ.P. 56(e) (amended 2010)). The nonmoving party must
show more than “the mere existence of a scintilla of
evidence.” In re Oracle Corp. Sec.
Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing
Liberty Lobby, 477 U.S. at 252). “In fact, the
non-moving party must come forth with evidence from which a
jury could reasonably render a verdict in the non-moving
party's favor.” Id. (citing Liberty
Lobby, 477 U.S. at 252). If the nonmoving party fails to
make this showing, “the moving party is entitled to
judgment as a matter of law.” Celotex Corp.,
477 U.S. at 323.
purposes of summary judgment, the court must view the
evidence in the light most favorable to the nonmoving party;
if the evidence produced by the moving party conflicts with
evidence produced by the nonmoving party, the court must
assume the truth of the evidence submitted by the nonmoving
party. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158
(9th Cir. 1999). The court's function on a summary
judgment motion is not to make credibility determinations or
weigh conflicting evidence with respect to a disputed
material fact. See T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.
1987). When, however, “opposing parties tell two
different stories, one of which is blatantly contradicted by
the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.” Scott
v. Harris, 550 U.S. 372, 380 (2007). When the parties
file cross-motions for summary judgment, the court must
consider all of the evidence submitted in support of both
motions to evaluate whether a genuine issue of material fact
exists precluding summary judgment for either party. The
Fair Housing Council of Riverside County, Inc. v. Riverside
Two, 249 F.3d 1132, 1135 (9th Cir. 2001).