United States District Court, S.D. California
MARK E. DORSEY, Plaintiff,
DANIEL PARAMO, et al., Defendant.
ORDER RE MOTIONS FOR SUMMARY JUDGMENT [DOC. NOS. 65,
Cathy Ann Bencivengo, United States District Judge.
Mark E. Dorsey, a state prisoner proceeding pro se,
filed this civil rights action pursuant to Title 42, United
States Code, Section 1983, alleging prison officials at R.J.
Donovan Correctional Facility violated his rights under the
United States Constitution. [Doc. No. 3.] The matter is now
before the Court on the parties' cross-motions for
summary judgment. All Defendants jointly move for summary
judgment against Plaintiff, while Plaintiff only moves for
summary judgment against the remaining correctional officer
defendants and not against Dr. Shakiba. The motions have been
opposed, and Plaintiff, but not Defendants, filed a reply
brief. The Court deems the motions suitable for submission
without oral argument and that no report and recommendation
from Magistrate Judge Crawford is necessary. As discussed
below, Defendants' motion is granted with respect to Dr.
Shakiba and denied with respect to the remaining Defendants,
and Plaintiff's motion is denied.
complaint in this case purported to state three claims
against a host of defendants, but on August 29, 2018, the
Court granted a motion to dismiss counts 2 and 3 and
dismissed those claims without prejudice. [Doc. No. 40.]
Plaintiff then declined to file an amended complaint. [Doc.
No. 42.] Thus, only count 1 for violation of Plaintiff's
Eighth Amendment right to be free from cruel and unusual
punishment remains in this lawsuit. The only remaining
defendants are Dr. Shakiba, who examined Plaintiff at
Donovan, and five correctional officers: Jackson, Lay, Cho,
Ruelas, and Sigala. The remaining claim arises out
Defendants' alleged failure to accommodate
Plaintiff's shoulder injury by assigning him to a lower
bunk before October 24, 2016. As a result, Plaintiff injured
himself on October 23, 2016, while trying to get into his top
bunk and slept on his mattress on the floor of his cell for
three nights because he feared further injury from trying to
get into a top bunk until finally being assigned a lower bunk
on October 24, 2016. Specific evidence relevant to the claims
against each individual defendant is discussed in greater
56(a) provides that a 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). The
party moving for summary judgment always 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 meets its initial responsibility,
the burden then shifts to the nonmoving party to establish,
beyond the pleadings, that there is a genuine issue for
trial. Id. at 324.
avoid summary judgment, the non-moving party is
“required to present significant, probative evidence
tending to support h[is] allegations, ” Bias v.
Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007) (citations
omitted), and “must point to some facts in the record
that demonstrate a genuine issue of material fact and, with
all reasonable inferences made in the plaintiff[‘s]
favor, could convince a reasonable jury to find for the
plaintiff.” Reese v. Jefferson School Dist. No.
14J, 208 F.3d 736, 738 (9th Cir. 2000) (citing
Fed.R.Civ.P. 56; Celotex, 477 U.S. at 323). The
opposing party cannot rest solely on conclusory allegations
of fact or law. Berg v. Kincheloe, 794 F.2d 457, 459
(9th Cir. 1986).
relevant inquiry here is whether Plaintiff has provided
evidence that demonstrates a violation of his Eight Amendment
right to be free from cruel and unusual punishment. To
maintain an Eighth Amendment claim based on prison medical
treatment under 42 U.S.C. § 1983, an inmate must show
“deliberate indifference to serious medical
needs.” Jett v. Penner, 439 F.3d 1091, 1096
(9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S.
97, 104 (1976)). “[T]here is a two-pronged test for
evaluating a claim for deliberate indifference to a serious
First, the plaintiff must show a serious medical need by
demonstrating that failure to treat a prisoner's
condition could result in further significant injury or the
unnecessary and wanton infliction of pain. Second, the
plaintiff must show the defendant's response to the need
was deliberately indifferent. This second prong ... is
satisfied by showing (a) a purposeful act or failure to
respond to a prisoner's pain or possible medical need and
(b) harm caused by the indifference.[”]
Akhtar v. Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012)
(quoting Jett, 439 F.3d at 1096).
prison official exhibits deliberate indifference when he
knows of and disregards a substantial risk of serious harm to
inmate health. Farmer v. Brennan, 511 U.S. 825, 837
(1970). The official must both know of “facts from
which the inference could be drawn” that an excessive
risk of harm exists, and he must actually draw that
inference. Id. “A determination of
‘deliberate indifference' involves an examination
of two elements: the seriousness of the prisoner's
medical need and the nature of the defendant's response
to that need.” See McGuckin v. Smith, 974 F.2d
1050, 1059 (9th Cir. 1992), overruled on other grounds by
WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir.
1997) (en banc).
indifference is a high legal standard.” Toguchi v.
Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). Even gross
negligence is insufficient to establish deliberate
indifference to serious medical needs. See Wood v.
Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).
“A defendant must purposefully ignore or fail to
respond to a prisoner's pain or possible medical need in
order for deliberate indifference to be established.”
McGuckin, 974 F.2d at 1060. Thus, neither an
inadvertent failure to provide adequate medical care, nor
mere negligence or medical malpractice, nor a mere delay in
medical care (without more), nor a difference of opinion over
proper medical treatment, is sufficient to constitute an
Eighth Amendment violation. See Estelle, 429 U.S. at
105-06; Sanchez v. Vild, 891 F.2d 240, 242 (9th
Cir.1989); Shapley v. Nev. Bd. of State Prison
Comm'rs, 766 F.2d 404, 407 (9th Cir. 1984).