United States District Court, E.D. California
MICHAEL E. SCHERFFIUS, Plaintiff,
CHRISTOPHER SMITH, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se and in forma pauperis
with a civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff alleges defendants were deliberately indifferent to
his serious medical needs. Before the court is
defendants' motion for summary judgment. For the reasons
set forth below, this court will recommend defendants'
motion be granted.
case is proceeding on plaintiff's second amended
complaint (“SAC”) filed here on July 20, 2015.
(ECF No. 25.) He alleges conduct by defendants from 2009 to
2012 when he was incarcerated at Mule Creek State Prison
(“MCSP”). On screening, the court found plaintiff
stated cognizable claims for relief against the following
defendants: (1) Christopher Smith, the Chief Physician and
Surgeon at MCSP; (2) Dr. Stephen Tseng; (3) Physician's
Assistant (“PA”) Karen Todd; (4) Dr. B.
Barnett; (5) Dr. Parnell Galloway; (6) Dr. Jalal
Soltanian-Zadeh; and (7) Dr. G. Williams. (ECF No. 27.)
states that he currently suffers from, or during the relevant
time period suffered from, the following conditions:
fibromyalgia, cervical spinal stenosis, lumbar radiculopathy,
scoliosis, degenerative disc disease, hypertension,
hyperlipidemia, urinary problems, edema, migraine headaches,
and folliculitis. As a result, he suffers, among other
things, severe pain in his back and neck. Plaintiff alleges
defendants either acted or failed to act to treat his pain
properly. (ECF No. 25 at 10-40.)
filed an answer in November 2016. (ECF No. 36.) On June 2,
2017, defendants filed the present motion for summary
judgment. (ECF No. 42.)
receiving several extensions of time to oppose
defendants' motion, plaintiff sought a stay of these
proceedings based on an anticipated surgery and his many
health problems. Defendants did not object to the stay and
the court granted it on October 18, 2017. (ECF No. 55.)
Plaintiff sought, and was granted, two additional stays. (ECF
Nos. 61, 67.) The court denied plaintiff's fourth request
for a stay and ordered plaintiff to file an opposition to the
motion for summary judgment. (ECF No. 74.) On August 30,
2019, plaintiff filed his opposition documents. (ECF Nos. 77,
78, 79, 80.) Defendants did not file a reply.
FOR SUMMARY JUDGMENT
move for summary judgment on the following grounds: (1)
plaintiff failed to exhaust his administrative remedies with
respect to most of his claims; (2) plaintiff fails to state a
cognizable claim under the Eighth Amendment for the denial of
his appeals; (3) the undisputed facts show that defendants
were not deliberately indifferent to plaintiff's medical
needs and his Eighth Amendment claims are otherwise
meritless; and (4) defendants are entitled to qualified
Applicable Legal Standards
Summary Judgment Standards under Rule 56
judgment is appropriate when the moving party “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). Under summary judgment practice, the
moving party “initially bears the burden of proving the
absence of a genuine issue of material fact.” In re
Oracle Corp. Sec. Litigation, 627 F.3d 376, 387 (9th
Cir. 2010) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). The moving party may accomplish this
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 by showing that such materials “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), (B).
the non-moving party bears the burden of proof at trial,
“the moving party need only prove that there is an
absence of evidence to support the nonmoving party's
case.” Oracle Corp., 627 F.3d at 387 (citing
Celotex, 477 U.S. at 325.); see also
Fed.R.Civ.P. 56(c)(1)(B). Indeed, summary judgment should be
entered, after adequate time for discovery and upon motion,
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. See Celotex, 477 U.S. at
322. “[A] complete failure of proof concerning an
essential element of the nonmoving party's case
necessarily renders all other facts immaterial.”
Id. In such a circumstance, summary judgment should
be granted, “so long as whatever is before the district
court demonstrates that the standard for entry of summary
judgment . . . is satisfied.” Id. at 323.
moving party meets its initial responsibility, the burden
then shifts to the opposing party to establish that a genuine
issue as to any material fact actually does exist. See
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). In attempting to
establish the existence of this factual dispute, the opposing
party typically may not rely upon the allegations or denials
of its pleadings but is required to tender evidence of
specific facts in the form of affidavits, and/or admissible
discovery material, in support of its contention that the
dispute exists. See Fed.R.Civ.P. 56(c)(1);
Matsushita, 475 U.S. at 586 n.11. However, a
complaint that is submitted in substantial compliance with
the form prescribed in 28 U.S.C. § 1746 is a
“verified complaint” and may serve as an opposing
affidavit under Rule 56 as long as its allegations arise from
personal knowledge and contain specific facts admissible into
evidence. See Jones v. Blanas, 393 F.3d 918, 923
(9th Cir. 2004); Schroeder v. McDonald, 55 F.3d 454,
460 (9th Cir. 1995) (accepting the verified complaint as an
opposing affidavit because the plaintiff “demonstrated
his personal knowledge by citing two specific instances where
correctional staff members . . . made statements from which a
jury could reasonably infer a retaliatory motive”);
McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir.
1987); see also El Bey v. Roop, 530 F.3d 407, 414
(6th Cir. 2008) (Court reversed the district court's
grant of summary judgment because it “fail[ed] to
account for the fact that El Bey signed his complaint under
penalty of perjury pursuant to 28 U.S.C. § 1746. His
verified complaint therefore carries the same weight as would
an affidavit for the purposes of summary judgment.”).
The opposing party must demonstrate that the fact in
contention is material, i.e., a fact that might affect the
outcome of the suit under the governing law, and that the
dispute is genuine, i.e., the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
the existence of a factual dispute, the opposing party need
not establish a material issue of fact conclusively in its
favor. It is sufficient that “the claimed factual
dispute be shown to require a jury or judge to resolve the
parties' differing versions of the truth at trial.”
T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors
Ass'n, 809 F.2d 626, 631 (9th Cir. 1987). Thus, the
“purpose of summary judgment is to ‘pierce the
pleadings and to assess the proof in order to see whether
there is a genuine need for trial.'”
Matsushita, 475 U.S. at 587 (citations omitted).
evaluating the evidence to determine whether there is a
genuine issue of fact, ” the court draws “all
reasonable inferences supported by the evidence in favor of
the non-moving party.” Walls v. Central Contra
Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011).
It is the opposing party's obligation to produce a
factual predicate from which the inference may be drawn.
See Richards v. Nielsen Freight Lines, 602 F.Supp.
1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d
898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine
issue, the opposing party “must do more than simply
show that there is some metaphysical doubt as to the material
facts. . . . Where the record taken as a whole could not lead
a rational trier of fact to find for the nonmoving party,
there is no ‘genuine issue for trial.'”
Matsushita, 475 U.S. at 587 (citation omitted).
Civil Rights Act Pursuant to 42 U.S.C. § 1983
Civil Rights Act under which this action was filed provides
Every person who, under color of [state law] . . . subjects,
or causes to be subjected, any citizen of the United States .
. . to the deprivation of any rights, privileges, or
immunities secured by the Constitution . . . shall be liable
to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
42 U.S.C. § 1983. The statute requires that there be an
actual connection or link between the actions of the
defendants and the deprivation alleged to have been suffered
by the plaintiff. See Monell v. Dept. of Social
Servs., 436 U.S. 658 (1978); Rizzo v. Goode,
423 U.S. 362 (1976). “A person ‘subjects'
another to the deprivation of a constitutional right, within
the meaning of §1983, if he does an affirmative act,
participates in another's affirmative acts or omits to
perform an act which he is legally required to do that causes
the deprivation of which complaint is made.”
Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Legal Standards for Exhaustion of Administrative
allege plaintiff failed to exhaust any of his claims against
defendants Todd, Barnett, Williams, and Soltanian-Zadeh, and
failed to exhaust many of his claims against defendants Tseng
PLRA Exhaustion Requirement
Prison Litigation Reform Act of 1995 (PLRA) mandates that
“[n]o action shall be brought with respect to prison
conditions under section 1983 . . . or any other Federal law,
by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as
are available are exhausted.” 42 U.S.C. §
1997e(a). Compliance with deadlines and other critical prison
grievance rules is required to exhaust. Woodford v.
Ngo, 548 U.S. 81, 90 (2006) (exhaustion of
administrative remedies requires “using all steps that
the agency holds out, and doing so properly”).
“[T]o properly exhaust administrative remedies
prisoners ‘must complete the administrative review
process in accordance with the applicable procedural rules,
'- rules that are defined not by the PLRA, but by the
prison grievance process itself.” Jones v.
Bock, 549 U.S. 199, 218 (2007) (quoting
Woodford, 548 U.S. at 88); see also Marella v.
Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (“The
California prison system's requirements ‘define the
boundaries of proper exhaustion.'”) (quoting
Jones, 549 U.S. at 218).
“the PLRA's exhaustion requirement applies to all
inmate suits about prison life, ” Porter v.
Nussle, 534 U.S. 516, 532 (2002), the requirement for
exhaustion under the PLRA is not absolute, Albino v.
Baca, 747 F.3d 1162, 1172-72 (9th Cir. 2014) (en banc).
As explicitly stated in the statute, “[t]he PLRA
requires that an inmate exhaust only those administrative
remedies ‘as are available.'” Sapp v.
Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (quoting 42
U.S.C. § 1997e(a)) (administrative remedies plainly
unavailable if grievance was screened out for improper
reasons); see also Nunez v. Duncan, 591 F.3d 1217,
1224 (9th Cir. 2010) (“Remedies that rational inmates
cannot be expected to use are not capable of accomplishing
their purposes and so are not available.”). “We
have recognized that the PLRA therefore does not require
exhaustion when circumstances render administrative remedies
‘effectively unavailable.'” Sapp,
623 F.3d at 822 (citing Nunez, 591 F.3d at 1226);
accord Brown v. Valoff, 422 F.3d 926, 935 (9th Cir.
2005) (“The obligation to exhaust ‘available'
remedies persists as long as some remedy remains
‘available.' Once that is no longer the case, then
there are no ‘remedies . . . available,' and the
prisoner need not further pursue the grievance.”).
of a prisoner civil rights action for failure to exhaust
administrative remedies must generally be brought and decided
pursuant to a motion for summary judgment under Rule 56,
Federal Rules of Civil Procedure. Albino, 747 F.3d
at 1168. “Nonexhaustion” is “an affirmative
defense” and defendants have the burden of
“prov[ing] that there was an available administrative
remedy, and that the prisoner did not exhaust that available
remedy.” Id. at 1171-72. A remedy is
“available” where it is “capable of use; at
hand.” Williams v. Paramo, 775 F.3d 1182, 1191
(9th Cir. 2015) (quoting Albino, 747 F.3d at 1171).
Grievance procedures that do not allow for all types of
relief sought are still “available” as long as
the procedures may afford “some relief.”
Booth v. Churner, 532 U.S. 731, 738 (2001). If a
defendant meets the initial burden, a plaintiff then must
“come forward with evidence showing that there is
something in his particular case that made the existing and
generally available administrative remedies effectively
unavailable to him.” Albino, 747 F.3d at 1172.
Remedies are “effectively unavailable” where they
are “ineffective, unobtainable, unduly prolonged,
inadequate, or obviously futile.” Id. (quoting
Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.5
(9th Cir. 1996)). “[T]he ultimate burden of proof,
” however, never leaves the defendant. Id.
California's Inmate Appeal Process
California, prisoners may appeal “any policy, decision,
action, condition, or omission by the department or its staff
that the inmate or parolee can demonstrate as having a
material adverse effect upon his or her health, safety, or
welfare.” Cal. Code Regs. tit. 15, § 3084.1(a).
Inmates in California proceed through three levels of appeal
to exhaust the appeal process: (1) formal written appeal on a
CDC 602 inmate appeal form; (2) second level appeal to the
institution head or designee; and (3) third level appeal to
the Director of the California Department of Corrections and
Rehabilitation (“CDCR”). Cal. Code Regs. tit. 15,
§ 3084.7. Under specific circumstances, the first level
review may be bypassed. Id. The third level of
review constitutes the decision of the Secretary of the CDCR
and exhausts a prisoner's administrative remedies.
See id. § 3084.7(d)(3). However, a cancellation
or rejection decision does not exhaust administrative
remedies. Id. § 3084.1(b).
California prisoner is required to submit an inmate appeal at
the appropriate level and proceed to the highest level of
review available to him. Butler v. Adams, 397 F.3d
1181, 1183 (9th Cir. 2005); Bennett v. King, 293
F.3d 1096, 1098 (9th Cir. 2002). In submitting a grievance,
an inmate is required to “list all staff members
involved and shall describe their involvement in the
issue.” Cal. Code Regs. tit. 15, § 3084.2(3).
Further, the inmate must “state all facts known and
available to him/her regarding the issue being appealed at
the time, ” and he or she must “describe the
specific issue under appeal and the relief requested.”
Id. §§ 3084.2(a)(4). The appeal should not
involve multiple issues that do not derive from a single
event. Id. § 3084.6(b)(8).
inmate has thirty calendar days to submit his or her appeal
from the occurrence of the event or decision being appealed,
or “upon first having knowledge of the action or
decision being appealed.” Cal. Code Regs. tit. 15,
Legal Standards for Eighth Amendment Deliberate
Eighth Amendment prohibits the infliction of “cruel and
unusual punishments.” U.S. Const. amend. VIII. The
unnecessary and wanton infliction of pain constitutes cruel
and unusual punishment prohibited by the Eighth Amendment.
Whitley v. Albers, 475 U.S. 312, 319 (1986);
Ingraham v. Wright, 430 U.S. 651, 670 (1977);
Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).
Neither accident nor negligence constitutes cruel and unusual
punishment, as “[i]t is obduracy and wantonness, not
inadvertence or error in good faith, that characterize the
conduct prohibited by the Cruel and Unusual Punishments
Clause.” Whitley, 475 U.S. at 319.
needed to show unnecessary and wanton infliction of pain
“varies according to the nature of the alleged
constitutional violation.” Hudson v.
McMillian, 503 U.S. 1, 5 (1992) (citing
Whitley, 475 U.S. at 320). In order to prevail on a
claim of cruel and unusual punishment, however, a prisoner
must allege and prove that objectively he suffered a
sufficiently serious deprivation and that subjectively prison
officials acted with deliberate indifference in allowing or
causing the deprivation to occur. Wilson, 501 U.S.
Eighth Amendment claim arising in the context of medical
care, the prisoner must allege and prove “acts or
omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs.”
Estelle, 429 U.S. at 106. An Eighth Amendment
medical claim has two elements: “the seriousness of the
prisoner's medical need and the nature of the
defendant's response to that need.” 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).
medical need is serious “if the failure to treat the
prisoner's condition could result in further significant
injury or the ‘unnecessary and wanton infliction of
pain.'” McGuckin, 974 F.2d at 1059
(quoting Estelle, 429 U.S. at 104). Indications of a
serious medical need include “the presence of a medical
condition that significantly affects an individual's
daily activities.” Id. at 1059-60. By
establishing the existence of a serious medical need, a
prisoner satisfies the objective requirement for proving an
Eighth Amendment violation. Farmer v. Brennan, 511
U.S. 825, 834 (1994).
prisoner establishes the existence of a serious medical need,
he must then show that prison officials responded to the
serious medical need with deliberate indifference. See
Farmer, 511 U.S. at 834. In general, deliberate
indifference may be shown when prison officials deny, delay,
or intentionally interfere with medical treatment, or may be
shown by the way in which prison officials provide medical
care. Hutchinson v. United States, 838 F.2d 390,
393-94 (9th Cir. 1988).
it can be said that a prisoner's civil rights have been
abridged with regard to medical care, “the indifference
to his medical needs must be substantial. Mere
‘indifference,' ‘negligence,' or
‘medical malpractice' will not support this cause
of action.” Broughton v. Cutter Laboratories,
622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle,
429 U.S. at 105-06); see also Toguchi v. Soon Hwang
Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere
negligence in diagnosing or treating a medical condition,
without more, does not violate a prisoner's Eighth
Amendment rights.”); McGuckin, 974 F.2d at
1059 (same). Deliberate indifference is “a state of
mind more blameworthy than negligence” and
“requires ‘more than ordinary lack of due care
for the prisoner's interests or safety.'”
Farmer, 511 U.S. at 835.
in providing medical care may manifest deliberate
indifference. Estelle, 429 U.S. at 104-05. To
establish a claim of deliberate indifference arising from
delay in providing care, a plaintiff must show that the delay
was harmful. See Hallett v. Morgan, 296 F.3d 732,
745-46 (9th Cir. 2002); Berry v. Bunnell, 39 F.3d
1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at
1059; Wood v. Housewright, 900 F.2d 1332, 1335 (9th
Cir. 1990); Hunt v. Dental Dep't, 865 F.2d 198,
200 (9th Cir. 1989); Shapley v. Nevada Bd. of State
Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985).
In this regard, “[a] prisoner need not show his harm
was substantial; however, such would provide additional
support for the inmate's claim that the defendant was
deliberately indifferent to his needs.” Jett v.
Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
mere differences of opinion between a prisoner and prison
medical staff or between medical professionals as to the
proper course of treatment for a medical condition do not
give rise to a § 1983 claim. See Toguchi, 391
F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 332
(9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242
(9th Cir. 1989); Franklin v. Oregon, 662 F.2d 1337,
1344 (9th Cir. 1981).
Legal Standards for First Amendment Retaliation
the prison context, a viable claim of First Amendment
retaliation entails five basic elements: (1) An assertion
that a state actor took some adverse action against an inmate
(2) because of (3) that prisoner's protected conduct, and
that such action (4) chilled the inmate's exercise of his
First Amendment rights, and (5) the action did not reasonably
advance a legitimate correctional goal.” Rhodes v.
Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote
and citations omitted). The filing of an appeal or staff
complaint qualifies as protected conduct under the First
Amendment. Id. at 568.
SAC, plaintiff primarily complains that each defendant failed
to properly treat his pain and failed to properly record his
symptoms. Below, this court examines plaintiff's claims
against each defendant, determines whether plaintiff has
exhausted each claim, and, for those exhausted claims,
determines whether there are disputed issues of material fact
regarding the issue of deliberate indifference.
also mentions in his SAC, and frequently argues in his
opposition to the summary judgment motion, that defendants
should have known he required surgery. To the extent
plaintiff is contending defendants violated his Eighth
Amendment rights when they delayed surgical intervention,
that issue is unexhausted. Plaintiff did not raise the issue
in his prison appeals. Moreover, even if plaintiff properly
raised the surgery issue, this court finds no material
disputed issues of fact regarding it.
while plaintiff complains that defendants did not consider
surgery for him, the record shows otherwise. Plaintiff was
sent out for a surgical consultation twice and saw a
neurologist in between those visits. On November 10, 2009,
plaintiff was seen by neurosurgeon Karl Gregorious, M.D.
Gregorious found “no signs of myelopathy” and did
not feel plaintiff had lumbar radiculopathy. He opined that
plaintiff was not at that time “a candidate for a
lumbar spine procedure.” However, if plaintiff's
symptoms progressed, Gregorious felt he should be
“referred back for consideration of an extensive
decompressive operation.” (ECF No. 42-6 at 14-15.)
2010, plaintiff was seen by neurologist Donald Van Fossan,
M.D. Dr. Fossan concluded that “[c]onservative
management would certainly be preferable, however should this
be intolerable, the next step would be an EMG of the upper
extremities and possibly repeating MRI of the C-spine and
referral back to Dr. Gregorious” (ECF No. 42-19 at 32.)
saw plaintiff for a second time on February 7, 2012. He again
found no evidence of myelopathy and again felt that plaintiff
was not a candidate for lumbar spine surgery. (ECF No. 42-6
at 45-46.) Plaintiff was transferred to Valley State Prison
in early 2013. Six months later, he was seen by a
neurosurgeon who diagnosed cervical radiculopathy and
myelopathy and recommended surgery. Plaintiff had surgery in
August 2013. (See ECF No. 42-4 at 27.)
argues that defendants should have known Dr. Gregorious
misdiagnosed him as not having lumbar radiculopathy or
myelopathy. However, he provides little basis for this
argument. Plaintiff points to an impression listed by
defendant Tseng on March 25, 2010 that plaintiff had, among
other things, lumbar radiculopathy. (See ECF No.
25-1 at 50.) However, it does not appear from plaintiff's
medical records that this diagnosis was repeated. Further,
Dr. Gregorious's 2012 examination of plaintiff did not
reveal lumbar radiculopathy or other bases to advise surgery
at that time. Therefore, plaintiff fails to show that
Tseng's 2010 diagnosis would have expedited his surgery.
had a right to rely on the opinion of the specialist, a
neurosurgeon, regarding plaintiff's need for surgery.
See Watkins v. Singh, No. 2:13-cv-0416 KJM CKD, 2015
WL 136015, at *3 (E.D. Cal. Jan. 9, 2015) (“It is
generally not deliberate indifference to defer to a
specialist.”), aff'd sub nom. Watkins v.
Bick, 668 Fed.Appx. 220 (9th Cir. 2016). Plaintiff
provides no authority or factual basis for this court to
conclude that any defendant acted improperly in relying on
Dr. Gregorious's opinion that plaintiff was not a
surgical candidate. Defendants are entitled to summary
judgment on any claim that they were deliberately indifferent
to plaintiff's need for surgery.
SAC, plaintiff claims the following actions or inactions of
defendant Todd violated his Eighth Amendment rights to
(1) At plaintiff's appointment with Todd on October 19,
2007, Todd failed to tell ...