Arellano v. Jones

• Court: District Court, S.D. California
• Decided: June 28, 2023
• Docket: 3:20-cv-00228
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAUL ARELLANO, Case No.: 3:20-cv-00228-RBM-LR CDCR #AH-1995, 12 ORDER: 13 Plaintiff, (1) GRANTING DEFENDANTS’ vs. 14 MOTION FOR SUMMARY JONES, LVN Nurse; SIHOTANG, LVN JUDGMENT PURSUANT TO Fed. R. 15 Nurse; DR. MARTIN; SANTILLAN, Civ. P. 56; AND 16 LVN; CDCR; (2) SUA SPONTE DISMISSING 17 Defendants. FOURTEENTH AMENDMENT CLAIM PURSUANT TO 28 U.S.C. 18 § 1915(e)(2) AND § 1915A 19 [Doc. 53] 20

21 Plaintiff Raul Arellano (“Plaintiff” or “Arellano”), currently incarcerated at Richard 22 J. Donovan Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, 23 filed this civil rights action pursuant to 42 U.S.C. § 1983, on February 6, 2020. See Compl., 24 Doc. 1.1 Arellano claims Defendants, RJD medical personnel, violated his Eighth and 25

26 27 1 Throughout this Order and for ease of consistency and reference, the Court will cite to each document in the record using both the number assigned to the document and the page 28 1 Fourteenth Amendment rights, along with violations of state law claims, by failing to 2 provide him with adequate medical care. See generally id. 3 I. Procedural History 4 Defendants R. Santillan, B. Martin, O. Sihotang, and F. Jones have filed a Motion 5 for Summary Judgment pursuant to Fed. R. Civ. P. 56. See Doc. 53. The Court has 6 provided Arellano with notice of the requirements for opposing summary judgment as 7 required by Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 8 154 F.3d 952 (9th Cir. 1998) (en banc). See Doc. 55. After Arellano was granted three 9 extensions of time to file an Opposition, see Docs. 57, 61, 63, he filed his Opposition on 10 March 24, 2023. See Doc. 64. 11 Defendants filed their Reply on April 28, 2023. See Doc. 68. Arellano later filed a 12 “Motion for Leave to File Sur-Reply” which the Court granted and gave Arellano until 13 June 2, 2023, to file his Sur-Reply. See Docs. 70, 71. That time passed, and Arellano filed 14 a “Motion for Extension of Time to File a Sur-Reply.” See Doc. 73. The Court again 15 granted Arellano’s request and gave him until June 23, 2023 to file his Sur Reply. See 16 Doc. 74. However, once again, that time has passed and Arellano has not complied with 17 the Court’s Order. 18 Having now carefully considered the full record as submitted, the Court finds 19 Defendants are entitled to judgment as a matter of law with respect to Arellano’s Eighth 20 Amendment claims, GRANTS Defendants’ Motion for Summary Judgment pursuant to 21 Fed. R. Civ. P. 56 (Doc. 53). 22 II. Judicial Notice 23 As an initial matter, the Court takes judicial notice of the several lawsuits Plaintiff 24 has filed previously involving claims that he was not provided with adequate medical care 25 while housed at RJD. A court may take judicial notice of its own records, see Molus v. 26 Swan, No. 3:05-cv-00452-MMA-WMc, 2009 WL 160937, at *2 (S.D. Cal. Jan. 22, 2009) 27 (citing United States v. Author Servs., 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. 28 Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take 1 notice of proceedings in other courts, both within and without the federal judicial system, 2 if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 3 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 4 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council v. 5 Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). 6 Arellano had filed ten other civil rights actions in the Southern District of California 7 between March 13, 2014, and the filing of this case on February 6, 2020. See 8 https://pcl.uscourts.gov/pcl/pages/search/results/parties (last visited June 23, 2023). At 9 least six of these matters contain Eighth Amendment inadequate medical care allegations 10 related to pain medication. Cf. Arellano v. Hodge, et al., S.D. Cal. Civil Case No. 3:14- 11 cv-00590-JLS-JLB; Arellano v. Sedighi, et al., S.D. Cal. Civil Case No. 3:15-cv-02059- 12 AJB-BGS; Arellano v. Melton, et al., 3:15-cv-02069-JAH-NLS; Arellano v. Dean, et al., 13 3:15-cv-02247-BEN-JLB; Arellano v. Santos, 3:18-cv-02391-BTM-WVG (hereinafter 14 “Santos”); Arellano v. Guldseth, et al., 3:20-cv-1633-RBM-DDL (hereinafter 15 “Guldseth”). 16 In Guldseth, Plaintiff’s claims included allegations that Dr. Guldseth “improperly 17 discontinued a medication, gabapentin, necessary to control Arellano’s seizures and pain.” 18 Guldseth, Order to Relate Cases, Doc. 5 at 1. United States District Judge Larry Alan 19 Burns found that the claims raised in the action currently before this Court by Arellano 20 involve the allegations that “his seizures and pain increased immediately following Dr. 21 Guldseth’s discontinuation of the gabapentin and that he suffered injuries from one such 22 seizure.” Id. at 2 citing Arellano v. Jones, et al., S.D. Cal. Civil Case No. 3:20-cv-00228- 23 LAB-RBM (“Jones”). In Jones, Arellano brought claims against Defendants, who were 24 RJD nurses and a doctor, for “among other things, failure to address the symptoms he 25 experienced once he was no longer receiving gabapentin” as ordered by Dr. Guldseth. Id. 26 Based on these allegations, District Judge Burns determined that the “two cases involve 27 some of the same parties (Arellano and CDCR), are based on similar claims, and involved 28 1 the same event” and deemed the cases related. Id. Therefore, this matter was reassigned 2 to this Court on October 13, 2020 as this Court was also presiding over Guldseth. See id. 3 In Guldseth, this Court granted Defendant Dr. Guldseth’s Motion for Summary 4 Judgment and found Dr. Guldseth was entitled to summary judgment of Plaintiff’s Eighth 5 Amendment claims finding that there was no evidence that Dr. Guldseth was deliberately 6 indifferent to Arellano’s serious medical needs when he discontinued Arellano’s 7 gabapentin prescription. See Guldseth, Order Granting Defs.’ Mtn. for Summ. J., Doc. 74 8 at 20, 26. 9 III. Defendants’ Motion for Summary Judgment 10 A. Standard of Review 11 A court may grant summary judgment when it is demonstrated that there exists no 12 genuine dispute as to any material fact, and that the moving party is entitled to judgment 13 as a matter of law. See FED. R. CIV. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 14 157 (1970). The party seeking summary judgment bears the initial burden of informing a 15 court of the basis for its motion and of identifying the portions of the declarations, 16 pleadings, and discovery that demonstrate an absence of a genuine dispute of material fact. 17 See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is “material” if it might 18 affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, 19 Inc., 477 U.S. 242, 248–49 (1986). A dispute is “genuine” as to a material fact if there is 20 sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See 21 Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). 22 Where the moving party will have the burden of proof on an issue at trial, the movant 23 must affirmatively demonstrate that no reasonable trier of fact could find other than for the 24 movant. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Where 25 the non-moving party will have the burden of proof on an issue at trial, the movant may 26 prevail by presenting evidence that negates an essential element of the non-moving party’s 27 claim or by merely pointing out that there is an absence of evidence to support an essential 28 1 element of the non-moving party’s claim. See Nissan Fire & Marine Ins. Co. v. Fritz 2 Companies, 210 F.3d 1099, 1102–03 (9th Cir. 2000). 3 If a moving party fails to carry its burden of production, then “the non-moving party 4 has no obligation to produce anything, even if the non-moving party would have the 5 ultimate burden of persuasion.” Id. But if the moving party meets its initial burden, the 6 burden then shifts to the opposing party to establish that a genuine dispute as to any material 7 fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 8 586 (1986). The opposing party cannot “rest upon the mere allegations or denials of [its] 9 pleading but must instead produce evidence that sets forth specific facts showing that there 10 is a genuine issue for trial.” See Estate of Tucker, 515 F.3d 1019, 1030 (9th Cir. 2008) 11 (internal quotation marks and citation omitted). 12 The evidence of the opposing party is to be believed, and all reasonable inferences 13 that may be drawn from the facts placed before a court must be drawn in favor of the 14 opposing party. See Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). 15 However, “[b]ald assertions that genuine issues of material fact exist are insufficient.” See 16 Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); see also Day v. Sears 17 Holdings Corp., No. 11–09068, 2013 WL 1010547, *4 (C.D. Cal. Mar. 13, 2013) 18 (“Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise 19 genuine issues of fact and defeat summary judgment.”). A “motion for summary judgment 20 may not be defeated . . . by evidence that is ‘merely colorable’ or ‘is not significantly 21 probative.’” Anderson, 477 U.S. at 249–50 (citation omitted); see also Hardage v. CBS 22 Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). If the nonmoving party fails to produce 23 evidence sufficient to create a genuine dispute of material fact, the moving party is entitled 24 to summary judgment. See Nissan Fire & Marine, 210 F.3d at 1103. 25 / / / 26 / / / 27 / / / 28 / / / 1 B. Arellano’s Medical History & Treatment Record 2 1. Arellano v. Guldseth, et al.3 3 Arellano claims to suffer from seizures, diabetes, and ongoing chronic pain due to 4 neuropathy and nerve damage caused by an excessive force incident in 2010, a fall from 5 his bunk in 2012, and a suicide attempt in April 2018. See Guldseth, Compl., Doc. 1 at 3. 6 The parties did not dispute that Arellano suffers from “diabetic neuropathy and has 7 complained of seizures since 2010, but the type of seizure has not been diagnosed.” Defs.’ 8 Memo of Ps & As in Supp. of Mtn. for Summ. J. (hereinafter “Defs. Ps & As”), Doc. 49 at 9 11. 10 In December of 2015, Arellano’s primary care physician Dr. Luu prescribed him 11 Lyrica but due to the side effects Arellano experienced, he later switched him to 12 Gabapentin. Initially, Arellano began receiving 900 mg of Gabapentin per day, along with 13 Depakote4. See Doc. 49-6 at 2010-2011, Pl.’s Dep. at 43:10-13. Arellano testified that the 14 Gabapentin was prescribed to “get more control of [his] seizures and [his] pain, nerve 15 damage pain.” Id. at 43:13-15. By September of 2017, Arellano’s RJD primary care 16 17 18 2 For a portion of Arellano’s medical history, Defendants have incorporated by reference 19 the facts in the record found in Guldseth. See Defs.’ Memo of Ps & As in Supp. of Mtn. for Summ. J. (hereinafter “Defs. Ps & As”), Doc. 53 at 11. Because the claims in this case 20 relate, in part, to the medical history set forth in Guldseth, the Court takes judicial notice 21 of the Order Granting Defendants’ Motion for Summary Judgment in Guldseth and will summarize the most relevant facts from that Order. 22 3 Every citation and reference to the record in this section are from the Court’s docket in 23 Guldseth. 4 Depakote® is the brand named for divalproex sodium. It is an “anti-epileptic drug” 24 indicated for “[m]onotherapy and adjunctive therapy of complex partial seizures and 25 simple and complex absence seizures.” “Patients treated with [Depakote] for any indication should be monitored for the emergence or worsening of depression, suicidal 26 thoughts or behavior, and/or unusual changes in mood or behavior.” See 27 https://www.pdr.net/full-prescribing-information/Depakote-Tablets-divalproex-sodium- 1075 (last visited Mar. 23, 2023.) 28 1 physicians increased his Gabapentin dose to 900 milligrams three times a day. See id. at 2 2012, Pl.’s Dep. at 44:11-13. When his Gabapentin dosage was increased to 2700 3 milligrams a day in 2017, Arellano believed that his “partial seizures were basically almost 4 gone” and his pain was “less severe.” Id. at 2014, Pl.’s Dep. at 46:22-25 to 47:1-2. 5 However, two months later, in November of 2017, Arellano was seen by Dr. Messler 6 and Arellano informed her that he was in a “severe level of pain.” Id. at 2012, Pl.’s Dep. 7 at 44:15-20. Dr. Messler ordered an “EMG5 and x-rays” which “came back normal.” Id. 8 at 44:19-22. Arellano testified that when he was taking 2700 milligrams of Gabapentin his 9 “partial seizures were basically almost gone.” Id. at 2014, 46:21-23. 10 However, in January of 2018, Arellano reported that his “chronic pain had 11 increased” and the “effectiveness of the pain medication had decreased.” Id. at 2016; 48:8- 12 9; 48:14-16. In February of 2018, Arellano reported that he was experiencing “pain and 13 seizures” and his pain was at “level 10.” Id. at 2017; 49:17-20. In addition, Arellano was 14 “losing balance and having bladder problems,” and as a result, he sought an increase in the 15 dosage of Gabapentin he was receiving. Id. 16 In March of 2018, Dr. Santos became Arellano’s primary care physician. Id. at 2020; 17 52:18-25. During this same time frame, Arellano was placed in a mental health crisis bed 18 for approximately thirty days for attempting suicide. Id. at 2023; 50:7-10. However, 19 Arellano attests that he was “discharged too soon” because he was still in “intense pain.” 20 Id. at 2024; 56:14-17. Arellano saw Dr. Santos for the first time on May 7, 2018. See id. 21 at 56:24-25. 22 On June 14, 2018, Dr. Santos reduced Arellano’s Gabapentin prescription from 2700 23 milligrams per day to 2400 milligrams per day. See id. at 2028; 61:1-7. Arellano found 24 this to be “unreasonable” and he “got mad.” Id. In October of 2018, Arellano filed a civil 25

26 27 5 EMG is an acronym for electromyography which is a test that “measures the electrical activity of muscles and nerves.” See https://medlineplus.gov/lab-tests/electromyography- 28 1 rights action against Dr. Santos, in part alleging that Dr. Santos violated his Eighth 2 Amendment rights when he tapered Arellano’s dosage of Gabapentin. See generally 3 Arellano v. Santos, S.D. Cal. Civil Case No. 3:18-cv-02391-BTM-WVG, Doc. 1, Compl. 4 In this matter, District Judge Barry Ted Moskowitz found that the “medical records before 5 the Court, offered both by Dr. Santos in support [of Dr. Santos’ Motion for Summary 6 Judgment] and by Arellano in opposition, establish that the medications and overall course 7 of treatment Dr. Santos provided to Arellano from March 2018 through October 2018 was 8 medically appropriate under the circumstances.” Id., Doc. 91, Order Granting Defendant’s 9 Motion for Summary Judgment at 25. 10 On December 12, 2018, Dr. Guldseth became Arellano’s primary care physician. 11 See Guldseth Decl., Doc. 49-3 at ¶ 2. At this time, Arellano was “prescribed 1800 mg of 12 Gabapentin, 1950 mg of acetaminophen, and 1000 mg naproxen daily to address his 13 complaints of neuropathic pain.” Id. at ¶ 3. Arellano continued to complain of “intense 14 pain” that was preventing him from eating and sleeping. See Doc. 49-6 at 2110-11; 48:12 15 – 49:1. 16 Dr. Guldseth examined Arellano for the first time on January 3, 2019. See Guldseth 17 Decl., Doc. 49-3 at ¶ 4. Dr. Guldseth attests that he raised with Arellano his purported 18 refusal to submit to having lab work done on December 28, 2018 “intended to measure the 19 Gabapentin levels” in his bloodstream for an upcoming “elective hernia repair surgery.” 20 Id. However, Arellano informed Dr. Guldseth that he had “completed his labs” that 21 morning. Id. 22 One week later, Dr. Guldseth saw Arellano on January 10, 2019. Id. at ¶ 5. He 23 determined that Arellano was still taking his prescribed medication, but Dr. Guldseth 24 advised Arellano to temporarily stop taking naproxen in preparation for his upcoming 25 hernia surgery. Id. He explained to Arellano that this is a common practice in the medical 26 community to temporarily stop all “non-steroid anti-inflammatory medications” before 27 surgery to prevent excessive bleeding. Id. In response, Arellano sought to increase his 28 Gabapentin “due to nighttime pain” but Dr. Guldseth refused. Id. In Dr. Guldseth’s 1 opinion, Arellano’s practice of taking “several doses of Gabapentin before a blood draw” 2 would indicate “abuse of medication” and a review of his medical history indicates that 3 even when Arellano had been prescribed 2700 milligrams of Gabapentin daily, he still had 4 “severe complaints of pain” which indicates that the medication was ineffective. Id. 5 Arellano disputes this and testified that he was having blood drawn every week and 6 he had no knowledge that purpose of these blood draws were to determine the levels of 7 Gabapentin. See Doc. 49-6 at 2104; 14:18-23. One day, Arellano “went to the line” but 8 they would not give him the Gabapentin. Id. at 2104-05; 14:25 -15:1-2. Arellano went to 9 speak to Dr. Guldseth who told him that he discontinued his prescription because he missed 10 his weekly blood draw. See id. at 2105; 15:3-6. 11 Dr. Guldseth attests that he examined Arellano on January 30, 2019 in response to 12 Arellano’s healthcare requests where he indicated that he was suffering from “severe pain 13 triggering seizures” and he had fallen down some stairs. Guldseth Decl., Doc. 49-3 at ¶ 6. 14 Dr. Guldseth learned that Arellano had declined the hernia surgery. See id. They discussed 15 his medication and Arellano “reported the Naproxen and Depakote was helpful but he 16 wanted 2700 mg of Gabapentin.” Id. Dr. Guldseth told Arellano to report to the “Triage 17 and Treatment Area (TTA)” because Arellano’s seizures were “unwitnessed” and a 18 “prolactin test done shortly thereafter could confirm that a seizure occurred.” Id. Dr. 19 Guldseth was willing to “titrate his Gabapentin dosage up to 2700 mg because recent 20 records demonstrated compliance” but he told Arellano that he would discontinue this 21 medication if he “was not compliant with his medications or refused to submit for lab 22 work.” Id. 23 On February 1, 2019, it was documented that Arellano refused to submit to a 24 “Gabapentin level” blood draw. See Doc. 49-6 at 1189, Progress Notes dated Feb. 1, 2019. 25 As a result, Arellano’s Gabapentin dosage was reverted back to 1800 milligrams pursuant 26 to the “previous agreement” with Dr. Guldseth that if he was not “compliant with levels 27 labs and agreed upon plan, Gabapentin dose would be decreased.” Id. Arellano maintains 28 that he did not refuse to have his blood drawn on this day, instead he claims he did not 1 show up for his appointment because he was being seen by the neurologist instead causing 2 him to miss the time he was supposed to be at the lab. See Pl.’s Opp’n to MSJ (“Opp’n”), 3 Doc. 66 at 4-5. 4 Arellano was seen by Neurologist, Chandler P. Malhotra (“hereinafter Dr. 5 Malhotra”) on February 1, 2019. See Doc. 49-6 at 571, Progress Record dated Feb. 1, 6 2019. Dr. Malhotra recommended that Arellano have an EMG for both of his legs for 7 “assessment of neuropathy.” Id. at 573. Following those tests, Arellano was to return to 8 Dr. Malholtra for a “face [to] face” evaluation. Id. Dr. Malholtra did not make any 9 recommendations with regard to medication. See Guldseth Decl., Doc. 49-3 at ¶ 8. 10 Arellano then submitted “requests for healthcare services on February 3 and 5 stating 11 he wanted 2700 mg of Gabapentin, custody staff caused him to be non-compliant and the 12 Depakote should be discontinued because of stomach pain, dark urine, confusion, tiredness, 13 nausea, vomiting, increase in depression, panic attacks, anxiety, trouble sleeping, 14 drowsiness, blurred vision, balance issues, headaches, weakness, mouth sores, hives, 15 difficulty breathing, irritability, and restlessness.” Id. at ¶ 9; Doc. 49-6 at 528-529, (Health 16 Care Services Request form dated Feb. 3, 2019); Doc. 49-6 at 546, (Health Care Services 17 Request form dated Feb. 5, 2019). 18 Dr. Guldseth attests that he was concerned that Arellano was “either abusing or 19 diverting Gabapentin” and ordered “weekly lab tests to monitor [Arellano’s] compliance.” 20 Guldseth Decl., at ¶ 13. He further told Arellano that if he continued to fail to comply with 21 the blood draws, Dr. Guldseth would “taper the Gabapentin prescription.” Id. 22 Dr. Guldseth next examined Arellano on March 26, 2019, in response to Arellano 23 filing a grievance requesting that the “Depakote to be discontinued and Gabapentin to be 24 increased.” Id. at ¶ 15. Dr. Guldseth informed Arellano that he would wait for the results 25 from his EMG and a follow up with Dr. Malholtra “before changing medications.” Id. Dr. 26 Guldseth agreed to taper Arellano’s Depakote prescription, but his Gabapentin prescription 27 remained the same. See id. 28 / / / 1 However, the following day on March 27, 2019, Arellano filed another grievance 2 claiming he had seizures on March 1, 5, 16, and 27 and again sought an increase in his 3 Gabapentin to 2700 milligrams. See Doc. 49-6 at 525, Healthcare Services Request Form 4 dated Mar. 27, 2019. 5 Arellano had an EMG on his “upper extremities” on April 23, 2019, but refused to 6 allow the test to be performed on his “lower extremities” and thus, the study was 7 “incomplete” but did not “demonstrate any evidence of carpal tunnel syndrome or sensory 8 neuropathy.” Id. at 570, Electromyography and Nerve Conduction Study report prepared 9 by Dr. Malhotra. 10 Arellano was seen by Dr. Guldseth on May 2, 2019, and Dr. Guldseth noted that 11 Arellano reported having a “seizure most recently 2 nights ago” which was purportedly 12 witnessed by his cellmate but he did not seek medical treatment. Guldseth Decl. at ¶ 19. 13 Doc. 49-6 at 1184-85, Progress Notes dated May 2, 2019. Dr. Guldseth “performed a 14 review of symptoms” and indicated that “[n]eurology follow up is scheduled and would 15 like recommendations if seizure medications are indicated at this point or if Gabapentin is 16 indicated based on normal EMG results (though incomplete).” Id. ¶ 19, 1186. 17 On June 3, 2019, Arellano purportedly refused his “Gabapentin drug test.” Doc. 49- 18 6 at 1182, Progress Notes dated June 3, 2019. Based on his third missed blood draw, Dr. 19 Guldseth decided to discontinue Arellano’s Gabapentin and ordered that it be tapered off 20 over a period of two weeks. See Guldseth Decl. at ¶ 22. Dr. Guldseth attests he made this 21 medical decision based on a number of factors. See id. First, his decision was based on 22 Arellano’s history of drug abuse and Gabapentin’s “potential to be a habit-forming 23 addictive medication.” Id. Second, Gabapentin is a “drug prone to diversion” in the 24 correctional setting and Arellano’s failure to comply with lab testing, his comments 25 regarding the cost of morphine on the yard, and a threat to sue a nurse if she did not increase 26 his prescription “are all signs of diversion.” Id. Third, Arellano had “ongoing complaints 27 of alleged vision loss” which could be “complicated by Gabapentin” as the side effects of 28 Gabapentin include “dizziness, ataxia, nystagmus, somnolence, and amnesia.” Id. Finally, 1 it was “not clear that Mr. Arellano benefited from Gabapentin” as his partial EMG “did not 2 indicate neuropathy, for which Gabapentin is clinically indicated.” Id. 3 2. Arellano v. Jones, et al.6 4 On June 4, 2019, the day following Dr. Guldseth’s decision to discontinue 5 Arellano’s Gabapentin prescription, Arellano missed his morning dose of Gabapentin. See 6 Defs. Ex. in Supp. Mtn. Summ. J. (hereinafter “Defs.’ Ex.”), Doc. 53-7 at 200, Medication 7 Administration Record (“Per pill line officer, HU cell door opened however IP refused to 8 come out.”) Arellano submitted a health care services request form that same day claiming 9 that his “pain is so severe it feels like needles” and he is putting RJD officials on notice 10 that his “seizures are control[led] by Gabapentin” and the stopping of this medication is 11 “putting [his] life in danger.” Id. at 522 (Health Care Services Request Form dated June 12 4, 2019.) 13 On June 5, 2019, Arellano submitted another health care services request form 14 claiming that he missed his lab testing required in order to receive Gabapentin because he 15 “never received any notice of lab testing.” Id. at 521 (Health Care Services Request Form 16 dated June 5, 2019.) He further indicated that he went to the Triage and Treatment Area 17 (“TTA”) the previous day due to “severe pain” because he was concerned that the pain 18 would trigger more seizures and he believes that only Gabapentin can control his seizures. 19 See id. 20 On that same day, Arellano was transported to the urgent care and his “chief 21 complaint” was noted as complaining of severe pain that felt like “needles that interferes 22 with breathing” and seizure issues. See id. at 1513 (Assessment form dated June 5, 2019.) 23 Arellano also complained of “chest pain.” Id. Arellano was examined by Defendant Dr. 24 Martin who noted that Arellano informed him that he had “head trauma in 2010” which 25 causes him to “get shooting pain in the back of [his] head.” Id. at 1197 (Progress Notes 26

27 6 This factual summary will cite to the record in this matter, Arellano v. Jones, et al., S.D. 28 1 dated June 5, 2019.) Arellano further told Dr. Martin that his Gabapentin was being tapered 2 off which is causing “more pain, it’s an emergency.” Id. However, after conducting an 3 exam, Dr. Martin wrote “clinical findings did not support an emergency medical condition 4 at this time and the disposition is to return to housing.” Id. at 1198-99. Dr. Martin further 5 wrote that “[d]uring the medical decision-making process, I have considered [] differential 6 diagnoses including, but not limited to: malingering, musculoskeletal or psychological 7 manifestations of anxiety and/or withdrawal.” Id. at 1199. Arellano was instructed to see 8 his primary care physician (“PCP”) “to have the treatment plan discussed with him.” Id. 9 Dr. Martin was not Arellano’s PCP, his PCP during this timeframe was Dr. Guldseth. See 10 id. at 2121, Pl.’s Depo. at 33:21-23. 11 Arellano attests that Dr. Martin told him during this examination that he was 12 “bullshitting.” Id. at 2122, Pl.’s Depo. at 34:17. He further attests that Dr. Martin “twisted 13 [his] neck left to right” causing him pain and told him he was just like every other “Hispanic 14 or Mexican” inmate who is “basically making up stuff trying to get pain medication to get 15 high.” Id. at 34:21-25. Because Arellano told him that he had pain in the back of his head, 16 Dr. Martin “performed a physical exam which included by was not limited to inspection 17 and palpation [of] Mr. Arellano’s neck looking for signs of trauma, infection, or other 18 concern.” Martin Decl., Doc. 53-2 at ¶ 8. However, Dr. Martin determined that Arellano’s 19 neck examination was “unremarkable.” Id. Accordingly, Dr. Martin determined that 20 “[p]ursuant to CCHCS policy and standards commonly followed in the medical 21 community, it would not have been appropriate to deviate from Dr. Guldseth’s plan of care 22 by reinstating Arellano’s Gabapentin prescription at an emergency medical appointment 23 like the one on June 5.” Id. at ¶ 9. 24 Two days later, Arellano was examined by Dr. Guldseth. See Doc. 53-7 at 917. Dr. 25 Guldseth noted that Arellano “reports recurring seizures that were unwitnessed” and 26 requested that his Gabapentin “be increased to 2700mg daily to address” these seizures. 27 Id. at 920. Dr. Guldseth referred Arellano to “Neurology for follow up [with] Dr. 28 Malhotra” and opted to continue with the taper of the Gabapentin. Id. at 1188. 1 On June 9, Arellano submitted a request for health care services claiming that the 2 tapering of Gabapentin ordered by Dr. Guldseth resulted in “severe” pain which resulted 3 in chest pain and difficulty breathing. See Doc. 53-7 at 536 (Health Care Services Request 4 Form dated June 9, 2019.) He also claims that he needs an increased dosage of Gabapentin 5 “to control pain/seizure.” Id. The following day, on June 10, he filed a second request 6 claiming that he had a seizure in his cell and seeking an increase in his Gabapentin dosage 7 because it is the only medication that is “effective” in treating his seizures “without severe 8 side effects.” Id. at 519 (Health Care Services Request Form dated June 10, 2019.) 9 Arellano was seen in the TTA by Nurse Beltran7 on June 11, 2019 at approximately 10 noon. See Doc. 1497-1512 (Assessment Forms dated June 11, 2019.) In this form, Nurse 11 Beltran documents that Arellano “presented to clinic smiling, laughing [and] telling jokes” 12 and admitted “noncompliance with Prozac [and] Cymbalta but offered no explanation for 13 his noncompliance.” Id. at 1503. Beltran also noted that Arellano complained of “severe 14 pain” that interfered with his breathing and claimed that his “seizure issues” were the result 15 of the “reduction of Gabapentin.” Id. at 1513. Beltran informed Arellano that he should 16 take “his ordered Acetaminophen and his Capsaicin Cream for his pain” and returned him 17 to his housing unit. Id. at 1512. 18 Arellano alleges that later that night, at 9:00 p.m., he went to the medical clinic in 19 his yard and told Defendant Licensed Vocational Nurse Jones that he had recently been 20 taken off his “seizure and neuropathy pain medication, recently had a seizure that caused 21 him to fall and led to nerve damage and was in severe pain.” FAC, Doc. 6 at 7. Arellano 22 purportedly told Jones that he needed to go to the TTA but she denied his request and sent 23 him back to his cell. See id. Arellano claims to have had a seizure “hours after their 24 denial.” Id. 25 / / / 26 27 28 7 1 Jones attests that she was “working third-watch shift (2:00 p.m. to 10:00 p.m.) on C- 2 Yard in window three” passing medication to inmates on June 11, 2019. Jones Decl., Doc. 3 53-3 at ¶¶ 3, 5. On that date, Arellano was given his medication by LVN Bascal8 at 8:17 4 p.m. See Doc. 53-7 at 190. Jones further attests that she does not “recall Mr. Arellano 5 informing me of a medical emergency, requesting to be seen in the TTA, or even talking 6 to me that day.” Jones Decl., at ¶ 5. 7 On June 11, 2019, Defendant Licensed Vocational Nurse Sihotang was also working 8 “third-watch shift (2:00 p.m. to 10:00 p.m.) on C-Yard in window four,” Sihotang Decl., 9 Doc. 53-4 at ¶ 5. Sihotang, like Jones, attests that she does “not recall Mr. Arellano 10 informing me of a medical emergency, requesting to be seen in the TTA, or even talking 11 to me that day.” Id. 12 Both Jones and Sihotang declare that if Arellano believed he was being ignored by 13 medical staff as to a medical need, he had the option to go “man down” which involves 14 “either laying down or informing any staff member of a medical emergency.” Jones Decl., 15 at ¶ 6, Sihotang Decl. at ¶ 6. When this happens, “immediate staff trained in basic life 16 support respond” and have the authority to send Arellano to a “higher level of care, like 17 the TTA.” Id. Neither Jones nor Sihotang would have the “ability to override” such a 18 decision. Id. 19 There is no documentation that Arellano used the “man down” procedure that 20 evening but he did use the procedure the following day on June 12, 2019. See Doc. 53-7 21 at 1264 (Assessment form dated June 12, 2019.) In this assessment, LVN Rochelle 22 Johnson9 notes that Arellano arrived at the TTA at 7:58 p.m. and reported an “unwitnessed 23 seizure” that occurred the prior day. Id. LVN Johnson gave Plaintiff a “ketorolac injection 24 for pain” and Dr. Silva10 was contacted in order to be informed of Plaintiff’s symptoms and 25

26 27 8 Bascal is not a named Defendant in this action. 9 Johnson is not a named Defendant in this action. 28 10 1 complaints. See id. at 1206, 1264. Specifically, Dr. Silva was informed that Arellano 2 claimed to have a seizure the night before and had “back [and] neck pain radiating to chest 3 since last night.” Id. at 1206 (Provider Telephone/Consultation Note dated June 12, 2019 4 at 8:25 p.m.) In the section on this form titled “clinical findings by informant to provider” 5 it is noted that Arellano was “laughing [and] giggling in TTA” and there was no finding of 6 “bruises or swelling” on Arellano’s body. Id. Dr. Silva ordered Arellano to be sent back 7 to his housing and to follow up with his PCP, Dr. Guldseth, in five days. See id. 8 On June 26, 2019, Arellano alleges that he told Jones that he woke up to a seizure 9 with intense pain in his chest near his heart. See FAC at 7. He further alleges he informed 10 Jones that Dr. Guldseth had previously told him to go to the “TTA to get a prolactin blood 11 drawn right after a seizure.” Id. However, Arellano maintains Jones told him to go back 12 to his cell or “otherwise get a disciplinary action” rather than follow Dr. Guldseth’s 13 instructions. Id. 14 On that day, Jones attests that she was “working third-watch shift (2:00 p.m. to 10:00 15 p.m.) on C-Yard in window three.” Jones Decl. at ¶ 9. Also, on that day Arellano received 16 medication from Nurse Johnson at 4:02 p.m. See Doc. 53-7 at 173 (Medication 17 Administration Record dated June 26, 2019.) Arellano went “man down” at approximately 18 4:20 p.m. and was transported to the TTA where he was examined by Dr. Zhang11. See id. 19 at 1195-97 (Progress Notes dated June 26, 2019.) Dr. Zhang indicated that Arellano’s 20 “chief complaint” was that he gets “shooting pain in the back of [his] head” and “they’re 21 tapering my Gabapentin so I’m having more pain.” Id. at 1197. Dr. Zhang determined that 22 Arellano had “chronic neck pain” that had been “worsened by physical therapy today.” Id. 23 Dr. Zhang ordered x-rays and a ketorolac injection for pain and discharged him from the 24 TTA at 5:07 p.m. Id. Arellano returned to his housing and claims that he told Jones around 25 6:40 p.m. that he had a seizure but she would not let him return to the TTA. See FAC at 8. 26 27 28 11 1 Less than two hours later, Arellano received his evening medication from Nurse Johnson 2 at 8:17 p.m. but does not allege that he asked her to go to the TTA. See Doc. 53-7 at 173 3 (Medication Administration dated June 26, 2019.) 4 On July 14, 2019, Arellano alleges that he was in the pill line when he told Defendant 5 Nurse Santillan that his chest pain was “so severe it was interfering with [his] breathing” 6 and he needed “immediate medical care” and requested to see a doctor to get “proper course 7 of treatment for symptoms.” FAC at 9. Defendant Santillan purportedly told Arellano that 8 he was “bullshitting” and to “go away from his window.” Id. Arellano claims he 9 approached Officer Plaza12 to seek medical attention, but Defendant Santillan told Officer 10 Plaza Arellano was “bullshitting” and did not require medical attention. Id. Officer Plaza 11 allegedly told Arellano to go back to his cell because “medical would not help [him],” and 12 that he could do nothing other than send Plaintiff “back to [his] cell or get a disciplinary 13 action.” Id. 14 Arellano’s medical records indicate that Defendant Santillan provided Arellano with 15 medication at 3:47 p.m. that day. See Doc. 53-7 at 158 (Medication Administration Record 16 dated July 14, 2019.) Santillan attests that he does not “recall Mr. Arellano requesting 17 medical care on July 14, 2019.” Santillan Decl. at ¶ 7. In his Opposition, Arellano claims 18 that he suffered three hours of “intense pain” before he “manage[d] to go to TTA through 19 another venue.” Pl.’s Opp’n, Doc. 64 at 20. He further claims, “by the time I got to [the] 20 TTA my pain had reduce[d].” Id. Arellano was seen at the TTA around 7:00 p.m. where 21 he claimed that “his seizures started acting up when he was taken off his gabapentin.” Doc. 22 57-3 at 1435 (Assessment records dated July 14, 2019.) Arellano also told Nurse 23 Washburn13 at 7:26 p.m. that his “pain comes and goes and that he currently doesn’t have 24 any pain.” Id. at 1434. Nurse Washburn administered naproxen to Arellano and returned 25 him to his housing with the direction to see his PCP within fourteen days. See id. 26

27 12 Plaza is not a named Defendant in this action. 28 13 1 Defendant Santillan provided Arellano with his last medication of the day at 9:27 p.m. See 2 id. at 158 (Medication Administration Record dated July 14, 2019.) 3 C. Arguments 4 Dr. Martin first seeks summary judgment with respect to Arellano’s Eighth 5 Amendment inadequate medical care claims because evidence in the record demonstrates 6 his medical decisions to deny his request for Gabapentin and the examination he conducted 7 of Arellano’s neck does not constitute deliberate indifference to a serious medical need. 8 See Defs.’ Mem. of P&As at 18-22. Specifically, Dr. Martin argues there is no genuine 9 dispute with respect to any deliberate indifference on his part because his diagnosis of 10 “possible malingering, and decision to return Arellano to his housing unit with naproxen, 11 in addition to the Cymbalta and capsaicin cream he had already prescribed, was 12 reasonable.” Id. at 20. 13 Defendants Jones, Sihotang, and Santillan also seek summary judgment on the 14 grounds that Arellano did not have an objectively serious medical need, there is no 15 evidence of subjective deliberate indifference on the part of these Defendants, and Arellano 16 has shown that no “additional harm was caused by his delayed access to the urgent care.” 17 Id. at 27-32. 18 All Defendants seek summary judgment with respect to Arellano’s Bane Act cause 19 of action on the grounds that without a violation of Arellano’s constitutional right or “some 20 other statutory right, there can be no cause of action under the Bane Act.” Id. at 24, 33. In 21 addition, Defendants seeks summary judgment as to all of Arellano’s state law claims or 22 in the alternative, they argue the Court should decline to exercise supplemental jurisdiction 23 over the state law claims. See id. at 35. 24 Finally, all Defendants claim that because Arellano does not have a clearly 25 established right to dictate any specific course of treatment, they are entitled to qualified 26 immunity with respect to Arellano’s Eighth Amendment claims for damages. Id. at 34-35. 27 / / / 28 / / / 1 D. Discussion 2 1. Eighth Amendment Inadequate Medical Care Claims 3 a. Standard of Review 4 The government has an “obligation to provide medical care for those whom it is 5 punishing by incarceration,” and a failure to meet that obligation can violate the Eighth 6 Amendment. Estelle v. Gamble, 429 U.S. 97, 103–05 (1976). In order to prevail on an 7 Eighth Amendment claim for inadequate medical care, however, a prisoner must show 8 “deliberate indifference” to his “serious medical needs.” Id. at 104. This includes “both 9 an objective standard—that the deprivation was serious enough to constitute cruel and 10 unusual punishment—and a subjective standard—deliberate indifference.” Snow v. 11 McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled in part on other grounds by 12 Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc). 13 To meet the Eighth Amendment’s objective requirements, the prisoner must 14 demonstrate the existence of a serious medical need. Estelle, 429 U.S. at 104. A 15 sufficiently serious need exists if failure to treat his injury or condition “could result in 16 further significant injury” or cause “the unnecessary and wanton infliction of pain.” Jett v. 17 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotation marks omitted) (citing 18 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled in part on other 19 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). 20 To meet the Eighth Amendment’s subjective requirement of deliberate indifference, 21 a “high legal standard,” a prisoner must demonstrate the defendant “kn[e]w[] of and 22 disregard[ed] an excessive risk to [his] health and safety.” Toguchi v. Chung, 391 F.3d 23 1051, 1057, 1060 (9th Cir. 2004) (internal quotation marks and citation omitted). This 24 “requires more than ordinary lack of due care.” Farmer v. Brennan, 511 U.S. 825, 835, 25 (1994) (internal quotation marks omitted) (citing Whitley v. Albers, 475 U.S. 312, 319 26 (1986)). “[T]he official must both be aware of facts from which the inference could be 27 drawn that a substantial risk of serious harm exists, and he must also draw the inference.” 28 Id. at 837. Deliberate indifference “may appear when prison officials deny, delay or 1 intentionally interfere with medical treatment, or it may be shown by the way in which 2 prison physicians provide medical care.” Hutchinson v. United States, 838 F.2d 390, 394 3 (9th Cir. 1988). 4 “In deciding whether there has been deliberate indifference to a prisoner’s serious 5 medical needs, [courts] need not defer to the judgment of prison doctors or administrators.” 6 Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989). However, “[a] difference of 7 opinion between a physician and the prisoner—or between medical professionals— 8 concerning what medical care is appropriate does not amount to deliberate indifference.” 9 Snow, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)). Rather, 10 “to prevail on a claim involving choices between alternative courses of treatment, a 11 prisoner must show that the chosen course of treatment ‘was medically unacceptable under 12 the circumstances,’ and was chosen ‘in conscious disregard of an excessive risk to [the 13 prisoner’s] health.’” Toguchi, 391 F.3d at 1058 (quoting Jackson v. McIntosh, 90 F.3d 14 330, 332 (9th Cir. 1996), overruled in part on other grounds by Peralta, 744 F.3d at 1076)); 15 accord Gordon v. Cty. of Orange, 6 F.4th 961, 970 (9th Cir. 2021). 16 b. Analysis 17 Based on the record before it, this Court finds no jury could reasonably conclude 18 that any named Defendant acted with deliberate indifference to Arellano’s claims of severe 19 pain or his reported seizures. 20 c. Claims against Dr. Martin 21 Specifically, Arellano claims that when he informed Dr. Martin he had a seizure and 22 was in pain, Dr. Martin called him a “liar” and “forcefully twisted” his neck “left and right,” 23 called him a “Mexican prisoner and a drug addict just like all the other ones,” and said that 24 “all [Arellano] wants is drugs.” FAC at 4. 25 However, the undisputed evidence in the record shows Arellano has an extensive 26 medical history dating back to 2011 of chronic neuropathic pain for which he was 27 continually treated by prison doctors, nurses, psychologists, and neurologists before he was 28 examined, on only one occasion, by Dr. Martin on June 5, 2019. As noted above, during 1 the same time frame that Arellano sought treatment from the Defendants in this matter, he 2 was under the care of Dr. Guldseth, his primary care physician and was being treated by a 3 neurologist, Dr. Malhotra. In addition, Arellano’s medical history, which has been 4 documented in many of the cases Arellano has filed since 2015 and set forth above, shows 5 that he was prescribed Depakote, Gabapentin, Cymbalta, acetaminophen, naproxen, 6 capsaicin cream, along with several other medications and has undergone several 7 diagnostic tests such as X-rays, a CT scan, and a nerve conduction study. He was also 8 referred to a neurologist multiple times and offered physical therapy, nursing appointments, 9 and chronic pain appointments. 10 This Court has already found that the medications, including the tapering of 11 Gabapentin, and overall course of treatment Dr. Guldseth provided to Arellano from 12 January 2019 through October 2019 were medically appropriate under the circumstances14. 13 The claims against Dr. Martin arise from the one examination he conducted on Arellano 14 on June 5, 2019 which fell during the time that Arellano was being treated for his chronic 15 pain issues and alleged seizures by Dr. Guldseth, his PCP. 16 Dr. Martin attests that Arellano told him that his “Gabapentin was tapered so it was 17 ‘an emergency.’” Martin Decl. at ¶ 8. He acknowledges that he “performed a physical 18 exam which included but was not limited to inspection and palpation [of] Mr. Arellano’s 19 neck looking for signs of trauma, infection, or other concern.” Id. He declares “it would 20 have been [his] customary practice to test range of motion by turning his head left and right 21 in order to assess the potential for injury,” but at “no time did [he] intentionally cause Mr. 22 Arellano pain.” Id. Finally, he opines “it would not have been appropriate to deviate from 23 Dr. Guldseth’s plan of care by reinstating Arellano’s Gabapentin prescription at an 24 emergency medical appointment like the one on June 5, 2019.” Id. at ¶ 9. 25 / / / 26 27 28 14 1 Arellano argues in his Opposition that there is no evidence in the record to support 2 the claim that he was “specifically requesting Gabapentin.” Pl.’s Opp’n at 2. However, 3 there is ample evidence in the record that he was seeking Gabapentin on multiple occasions. 4 On June 4, 2019, the day before Arellano was examined by Dr. Martin, Arellano noted that 5 his Gabapentin had been discontinued the day before causing his pain to “be severe” and 6 his seizures are only “control[led] by Gabapentin.” Doc. 57-3 at 522 (Health Care Services 7 Request Form dated June 4, 2019.) Arellano stated that the refusal to reinstate his 8 Gabapentin was “putting [his] life in danger” and he would hold “liable whoever reads this 9 and don’t take proper steps (emergency) to be put where I was at on Gabapentin.” Id. One 10 day later, on the day Arellano was examined by Dr. Martin on June 5, 2019, he filed another 11 grievance noting that he had gone to the TTA the day prior as well due to “severe pain” 12 and “pain triggers [his] seizures.” Doc. 57-3 at 521 (Health Care Services Request Form 13 dated June 5, 2019.) Accordingly, Arellano demanded “so put me back on my meds” which 14 he claims is Gabapentin as it is the only medication that “controls [his] seizures.” Id. 15 Arellano does not dispute or object to any of the medical records submitted by 16 Defendants nor does he dispute any of the numerous Health Care Services Request Forms 17 submitted by him to prison officials. Arellano complained of neuropathic pain and 18 seizures, and each time various medical personnel continued his prescription medication, 19 sometimes prescribed different medication, sometimes increased dosages while other times 20 decreasing dosages, as well as suggesting non medication type intervention or suggesting 21 alternative pain medication based on Arellano’s medical care record, mental health, and 22 documented history of noncompliance with both his Gabapentin and Depakote 23 prescriptions. While Arellano argues in his Opposition that Dr. Martin’s refusal to reinstate 24 his Gabapentin prescription and his examination of Arellano’s neck which allegedly caused 25 him pain was based on “personal bias decision of race,” there is no evidence in the record 26 to support this argument but there is overwhelming evidence that Arellano was seeking 27 reinstatement of his Gabapentin. 28 / / / 1 Moreover, while the record also shows Arellano’s repeatedly insisted that only 2 increased levels of Gabapentin were appropriate to treat both his pain and his seizures, 3 Arellano is not a medical expert, and his unsupported lay opinion as to the efficacy or 4 superiority of Gabapentin over any alternate medication is insufficient as a matter of law 5 to establish a genuine factual dispute. See Estelle, 429 U.S. at 93 (stating that the question 6 whether “additional diagnostic techniques or forms of treatment is indicated is a classic 7 example of a matter for medical judgment”); Toguchi, 391 F.3d at 1058 (finding arguments 8 that “Seroquel is superior to Triafon and therefore should not have been discontinued” 9 insufficient to establish deliberate indifference); see also Valdez v. Zhang, No. 20-cv-0736- 10 JLS-WVG, 2023 WL 2657626, at *7 (S.D. Cal. Mar. 27, 2023) (Plaintiff failing to “offer 11 any evidence whatsoever that [his doctor’s] clinical assessments and recommendations 12 deviated from prevailing standards of care” defeats any finding of deliberate indifference 13 to an “excessive risk to plaintiff’s health.”); O’Brien v. Saha, No. 19-CV-1957-JLS-JLB, 14 2021 WL 960693, at *6 (S.D. Cal. Mar. 15, 2021) (concluding that “no reasonable juror 15 could find that Defendants were deliberately indifferent to Plaintiff’s pain in tapering him 16 off morphine and gabapentin and pursuing a variety of other pain treatment options over a 17 period of many months.”); Peacock v. Horowitz, No. 13-cv-2506-TLN-AC, 2016 WL 18 3940346, at *7 (E.D. Cal. July 21, 2016) (“While plaintiff is certainly free to refuse specific 19 medications or types of medications, he does not have a right to dictate what medications 20 he will be prescribed.”) 21 Here, the medical records before the Court establish that treatment provided to 22 Arellano on the one occasion he was treated by Dr. Martin was medically appropriate under 23 the circumstances. See Toguchi, 391 F.3d at 1058; Jackson, 90 F.3d at 332. Arellano 24 disagrees, but his lay opinion alone, unsupported by any “particular parts of materials in 25 the record, including depositions, documents, . . . affidavits or declarations, stipulations, . 26 . . admissions, interrogatory answers,” or other admissible evidence which corroborates his 27 conclusion or reasonably tends to show Dr. Martin chose any particular course of treatment 28 with conscious disregard of his needs, is insufficient to establish a genuine dispute. FED. 1 R. CIV. P. 56(c)(1)(A); Rivera v. Nat’l R.R. Passenger Corp., 331 F.3d 1074, 1078 (9th Cir. 2 2003) (“Conclusory allegations unsupported by factual data cannot defeat summary 3 judgment.”); Schultz v. Leighton, 325 F. Supp. 3d 1069, 1077–78 (N.D. Cal. 2017) (finding 4 prisoner failed to “show any unmet medical need, much less deliberate indifference” and 5 granting summary judgment where prisoner’s “claim of a need for morphine, or any 6 treatment other than the treatment he received, [wa]s based entirely on self-diagnosis and 7 [without] medical support.”). 8 For these reasons, the Court holds that Dr. Martin is entitled to summary judgment 9 with respect to Arellano’s Eighth Amendment inadequate medical care claims. 10 d. Claims against Jones, Sihotang, and Santillan 11 Arellano is seeking to hold Defendants Jones, Sihotang, and Santillan, all LVNS, 12 held liable for allegedly denying him access to the TTA on June 11, June 26, and July 14 13 in 2019. These Defendants move for summary judgment on the grounds that there is no 14 evidence that Arellano had a serious medical need, they did not act with deliberate 15 indifference, “no additional injury was caused by the alleged delay in access the urgent 16 care, and Arellano had ample access to medical care at all times.” Defs.’ Memo of P&As 17 at 27. 18 To meet the Eighth Amendment’s objective requirements, the prisoner must 19 demonstrate the existence of a serious medical need. Estelle, 429 U.S. at 104. A 20 sufficiently serious need exists if failure to treat his injury or condition “could result in 21 further significant injury” or cause “the unnecessary and wanton infliction of pain.” Jett, 22 439 F.3d at 1096. These Defendants argue that on the dates in question, Arellano was 23 “ambulating normally, had no outward appearance of pain, had physical exams both before 24 and after the incidents that were normal, [and] was receiving a comprehensive course of 25 treatment supervised by his treating physician Dr. Guldseth and neurologist Dr. Malhotra.” 26 Defs. Memo P&As at 27. 27 The first date that is the subject of this litigation relating to these Defendants involve 28 the events that occurred on June 11, 2019. On that date, Arellano was seen at the TTA at 1 11:46 a.m. where he was examined by LVN Beltran who noted that his physical exam was 2 normal and he “ambulated to clinic with steady brisk gait with no difficulty, facial 3 grimacing, or guarding.” Doc. 53-7 at 1497-1512. LVN Beltran prescribed capsaicin 4 cream and acetaminophen and discharged him at 12:25 p.m. See id. On this date, the 5 record is undisputed that Arellano received his medication from LVN Bascal at 8:17 p.m. 6 but had no documented medical complaints at that time. See Doc. 53-7 at 2220. Arellano 7 alleges that approximately forty-five minutes later, he told Sihotang that he was in “severe 8 pain” but Sihotang refused to allow him to go to the TTA. FAC at 7. He claims to have 9 suffered a seizure hours later but there is no evidence in the record to support that claim. 10 Instead, Arellano went to the TTA the following day where the nurse on duty 11 reported to Doctor Silva that Arellano was “laughing [and] giggling” and there was no 12 “signs of injury” to Arellano. Doc. 53-7 at 1206. Arellano was returned to his housing. 13 See id. In his Opposition, Arellano points to no evidence in the record that he suffered 14 from a serious medical need when he allegedly told Defendant Sihotang that he needed to 15 go to the TTA on June 11, 2019 and thus, has not met the objective requirements to find 16 an Eighth Amendment violation. 17 The second day that is the subject of this litigation are the events that occurred on 18 June 26, 2019. In his FAC, Arellano alleges that he told Defendant Jones on June 26, 2019 19 that he had woken up that day to a seizure with intense pain in his chest near his heart. See 20 FAC at 7. He also claims to have told Jones that Dr. Guldseth had previously told him to 21 go to the “TTA to get a prolactin blood drawn right after a seizure.” Id. However, Arellano 22 claims Jones told him to go back to his cell or “otherwise get a disciplinary action” rather 23 than follow Dr. Guldseth’s instructions. Id. 24 However, the record actually reflects that Arellano was seen at the TTA at 11:02 25 a.m. on June 26, 2019 even though he claims he was denied access by Defendant Jones. 26 See Doc. 53-7 at 1461. Arellano was examined by Nurse Beltran who found Arellano 27 “presented to clinic ambulating with a brisk steady gait with no limping, no difficulty, no 28 1 facial grimacing, or guarding” while he was also “smiling, laughing, [and] telling jokes.” 2 Id. at 1464. 3 Jones was not working that morning, instead he was working the “third-watch shift” 4 which was from 2:00 p.m. to 10:00 p.m. Jones Decl. at ¶ 9. Arellano did call “man down” 5 again that day and was transported back to the TTA at 4:20 p.m. See Doc. 53-7 at 1195- 6 1197. Dr. Zhang15 noted in the medical record that Arellano “appeared in no pain and 7 moved his neck freely as he walked out of [the] TTA” when he was discharged at 5:07 p.m. 8 Arellano appears to claim in his Opposition that his interaction with Jones occurred 9 approximately one hour later when he “had a seizure at 6:20 p.m.” but Jones purportedly 10 denied his request to return to the TTA for the third time that day. However, Arellano also 11 received medication from LVN Johnson later that evening at 8:17 p.m. but does not appear 12 to have sought any additional medical attention for his claimed seizure. See Doc. 53-7 at 13 171. Based on the undisputed evidence in the record, neither Jones, nor any other RJD 14 medical personnel, were deliberately indifferent to any of his serious medical needs on 15 June 26, 2019. 16 The third day that is the subject of this litigation are the events that occurred on July 17 14, 2019. On July 14, 2019, Arellano alleges he was in the pill line when he told Defendant 18 Santillan that his chest pain was “so severe that it was interfering with [his] breathing” and 19 he needed “immediate medical care” and requested to see a doctor to get “proper course of 20 treatment for symptoms.” FAC at 9. However, he claims Santillan told him he was 21 “bullshitting” and “to go away from his window.” Id. 22 The record shows that Santillan administered medicine to Arellano on this day at 23 3:47 p.m. See Doc. 53-7 at 158. At 6:55 p.m., just three hours later, Arellano did go to the 24 TTA where he was seen by Nurse Washburn. See id. at 1435-1446. Arellano claimed 25 again that he was having seizures due to the discontinuation of Gabapentin. See id. at 1446. 26 27 28 15 1 However, Nurse Washburn found that his vitals were normal and provided him with 2 naproxen. Arellano was discharged at 7:15 p.m. with instructions to follow up with his 3 PCP in fourteen days. See id. Santillan gave Arellano his last dose of medication for the 4 day at 9:47 p.m. See Santillan Decl. at ¶ 5. The following day, Arellano had an 5 appointment with Nurse Beltran who found his vitals and physical exam to be normal. See 6 Doc. 53-7 at 1422. 7 Arellano’s sole response to Santillan’s showing that Arellano was provided medical 8 care on that day, and the following day, is his claim “Santillan not doing nothing when I 9 claim man down with chest pain is deliberate indifference.” Pl.’s Opp’n. at 5. However, 10 Arellano points to no evidence in the record to dispute Santillan’s showing that there was 11 no deliberate indifference to Arellano’s serious medical needs on July 14, 2019. 12 Based on this record, and even drawing all facts and inferences in Arellano’s favor, 13 the Court finds no jury could find Defendant Dr. Martin’s course of care and treatment 14 decisions, or that the actions taken by Defendants Sihotang, Santillan, and Jones, were 15 deliberately indifferent to Arellano’s medical needs. Accordingly, the Court GRANTS 16 Defendants Martin, Sihotang, Santillan, and Jones’ Motion for Summary Judgment as to 17 Arellano’s Eighth Amendment claims. 18 e. Qualified Immunity 19 Finally, Defendants claim that they are entitled to qualified immunity with respect 20 to Arellano’s Eighth Amendment claims. See Defs.’ P&As at 34-35. 21 On summary judgment, courts generally resolve questions of qualified immunity 22 through a two-pronged inquiry. Tolan v. Cotton, 572 U.S. 650, 655 (2014). The first prong 23 “asks whether the facts, ‘[t]aken in light most favorable to the party asserting the injury, . 24 . . show the officer’s conduct violated a [federal] right[.]’” Id. (quoting Saucier v. Katz, 25 533 U.S. 194, 201 (2001)). The second prong “asks whether the right in question was 26 ‘clearly established’ at the time of the violation.” Tolan, 572 U.S. at 656 (quoting Hope v. 27 Pelzer, 536 U.S. 730, 739 (2002)); see also Sharp v. Cnty. of Orange, 871 F.3d 901, 909 28 (9th Cir. 2016). The court is not required to address the prongs in any particular order. See 1 Pearson v. Callahan, 555 U.S. 223, 236 (2009) (“[T]he judges of the district courts and the 2 courts of appeals should be permitted to exercise their sound discretion in deciding which 3 of the two prongs of the qualified immunity analysis should be addressed first in light of 4 the circumstances in the particular case at hand.”). 5 However, where, as is the case here with respect to Arellano’s Eighth Amendment 6 claims, “no constitutional right would have been violated were the allegations established, 7 there is no necessity for further inquiries concerning qualified immunity.” Saucier, 533 8 U.S. at 201; County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998) (“[The better 9 approach to resolving cases in which the defense of qualified immunity is raised is to 10 determine first whether the Arellano has alleged the deprivation of a constitutional right at 11 all.”). Because the Court has found no genuine dispute with regard to Arellano’s Eighth 12 Amendment deliberate indifference to serious medical needs against Defendants, it need 13 not also decide whether they would be entitled to qualified immunity. 14 IV. Sua Sponte Dismissal Fourteenth Amendment Equal Protection claims 15 In the May 24, 2021, Order Granting in part, and Denying in part, Defendants’ 16 Motion to Dismiss, the Court indicated that “this matter will proceed with an equal 17 protection claim under the Fourteenth Amendment against Defendant Dr. Martin.” Doc. 18 30 at 9. While Defendant Dr. Martin does not address this claim in the pending Motion for 19 Summary Judgment, the Court finds that sua sponte dismissal of this claim pursuant to 28 20 U.S.C. § 1915(e)(2) and § 1915A is appropriate. 21 In his FAC, Arellano alleges that Dr. Martin called him a “Mexican prisoner and a 22 drug addict just like all the other ones,” and said that “all [Arellano] wants is drugs.” FAC 23 at 4. 24 The Equal Protection Clause of the Fourteenth Amendment “is essentially a 25 direction that all persons similarly situated should be treated alike.” See City of Cleburne, 26 Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); see also Vacco v. Quill, 521 U.S. 27 793, 799, (1997) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982) and Tigner v. Texas, 310 28 U.S. 141, 147 (1940); Fraley v. Bureau of Prisons, 1 F.3d 924, 926 (9th Cir. 1993) (per 1 curiam). To establish an equal protection violation, Plaintiff must demonstrate “that the 2 [challenged action], either on its face or in the manner of its enforcement, results in 3 members of a certain group being treated differently from other persons based on 4 membership in that group.” McLean v. Crabtree, 173 F.3d 1176, 1185 (9th Cir. 1999). 5 “Second, if it is demonstrated that a cognizable class is treated differently, the court must 6 analyze under the appropriate level of scrutiny whether the distinction made between the 7 two groups is justified.” Id. (citation and quotations omitted). If the aggrieved party is a 8 member of a protected or suspect class, or otherwise suffers the unequal burdening of a 9 fundamental right, the court applies strict scrutiny. City of Cleburne, 473 U.S. at 439-40. 10 “Government actions that do not . . . involve suspect classifications will be upheld if [they] 11 are rationally related to a legitimate state interest.” Fields v. Palmdale Sch. Dist., 427 F.3d 12 1197, 1208 (9th Cir. 2005). 13 “Intentional discrimination means that a defendant acted at least in part because of 14 a plaintiff’s protected status.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) 15 (emphasis in original) (quoting Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 16 1994)). 17 While Arellano claims in his Opposition that Dr. Martin “refused to give me 18 anything because I was Mexican,” the evidence in the record shows that Dr. Martin was 19 following Arellano’s PCP’s decision to taper his Gabapentin. See Pl.’s Oppn., Doc. 64 at 20 6, Doc. 53-7 at 1198-1199 (Progress Notes dated June 5, 2019.) The medical records 21 before Dr. Martin when he treated Arellano on that date show that Arellano’s “active” 22 medications included, but were not limited to, acetaminophen, capsaicin, Gabapentin,” and 23 anxiety medication. See Doc. 53-7 at 1198. Dr. Martin also told Arellano to follow up 24 with his PCP. See id. Here, based on the entire record, the Court could only find that 25 Arellano’s claims that Dr. Martin “refused to give [him] anything” are based on Arellano’s 26 belief that Dr. Martin should have increased his Gabapentin dosage. 27 “The standard for determining whether a plaintiff has failed to state a claim upon 28 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 1 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 2 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 3 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 4 contest of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule 5 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 6 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 7 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 8 Here, the undisputed evidence in the record indicates that Dr. Martin deferred to the 9 treatment plan established by Arellano’s PCP who had been treating him for several months 10 and Arellano’s claim he was denied treatment because of his ethnicity is not plausible. 11 Iqbal, 556 U.S. at 678. Accordingly, the Court sua sponte DISMISSES Arellano’s 12 Fourteenth Amendment equal protection claims pursuant to 28 U.S.C. § 1915(e)(2) and § 13 1915A without leave to amend as the Court finds that amendment would be futile. 14 V. State Law Claims 15 To the extent that Arellano is seeking to bring claims under California state law, the 16 Court declines to exercise supplemental jurisdiction over these pendent state claims 17 because there are no remaining federal claims in this action. See 28 U.S.C. § 1367(c)(3) 18 (“The district court may decline to exercise supplemental jurisdiction over a claim under 19 subsection (a) if . . . the district court has dismissed all claims over which it has original 20 jurisdiction.”); United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966) (“if 21 the federal claims are dismissed before trial, . . . the state claims should be dismissed as 22 well.”); Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997) (“[O]nce judicial 23 power exists under § 1367(a), retention of supplemental jurisdiction over state law claims 24 under 1367(c) is discretionary.”) 25 VI. Conclusion and Order 26 For all the reasons discussed, the Court: 27 (1) GRANTS Defendants Motion for Summary Judgment pursuant to Fed. R. Civ. 28 P. 56 (Doc. 53); (2) DISMISSES Plaintiff’s Fourteenth Amendment equal protection 1 |/claims pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A without leave to amend; (3) 2 || DECLINES to exercise supplemental jurisdiction over Plaintiffs state law claims and 3 || DIRECTS the Clerk of the Court to enter a final judgment in favor of Defendants on all 4 ||claims and to close the file. 5 IT IS SO ORDERED. 6 ||DATE: June 28, 2023 Fath acids, Mitrgps HON. RUTH BERMUDEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31