1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 ISRAEL BUSTAMONTE, Case No. 22-cv-04725-VKD
9 Plaintiff, ORDER GRANTING DEFENDANT MOELLER'S MOTION FOR 10 v. SUMMARY JUDGMENT
11 T. CASTILLON, et al., 12 Defendants. Re: Dkt. No. 54
13 14 Pro se plaintiff Israel Bustamonte, a state prisoner, asserts claims under 42 U.S.C. § 1983 15 against Correctional Officer T. Castillo, Nurse F. Ssempewa, Nurse Phuc Le, Nurse F. 16 Montegrande, Nurse L. Muriith, and Dr. Michael Moeller, for use of excessive force and 17 deliberate indifference to serious medical needs. Dkt. No. 11. Mr. Bustamonte seeks declaratory 18 relief and damages. Id. at 23-24. The Court found the amended complaint, liberally construed, 19 stated a deliberate indifference claim under the Eighth Amendment against Dr. Moeller and other 20 named medical staff. Dkt. No. 14 at 5-6. 21 All parties have consented to magistrate judge jurisdiction. Dkt. Nos. 4, 24, 38. 22 Defendant Dr. Michael Moeller moves for summary judgment on the grounds that the 23 claims against him fail as a matter of law.1 Dkt. No. 54 at 2. Mr. Bustamonte did not file any 24 opposition in the time provided. See Dkt. No. 58. However, the amended complaint is verified 25 and therefore may be treated as an opposing affidavit.2 Dkt. No. 11 at 23. 26 1 The other defendants filed a separate motion for summary judgment which is not yet fully 27 briefed. Dkt. No. 70. 1 The Court finds this matter suitable for resolution without oral argument. See Civil L.R. 7- 2 1(b). For the reasons explained below, the Court grants Dr. Moeller’s motion for summary 3 judgment. 4 I. BACKGROUND 5 The following facts are undisputed unless otherwise noted: 6 A. Parties 7 Mr. Bustamonte is a state prisoner currently incarcerated at Salinas Valley State Prison 8 (“SVSP”) in Soledad, California, where the underlying events at issue in this action took place. 9 Dr. Michael Moeller is a physician. Dkt. No. 11 ¶ 15. Mr. Bustamonte alleges that Dr. 10 Moeller was employed by the California Department of Corrections and Rehabilitation (“CDCR”) 11 at SVSP as a “medical provider to all inmates” and was Mr. Bustamonte’s primary care physician. 12 Id. ¶¶ 15, 49. 13 Dr. Moeller attests that he was never employed at SVSP and never served as Mr. 14 Bustamonte’s primary care physician. Rather, he attests that he was the attending Emergency 15 Physician at Natividad Medical Center (“Natividad”) on September 28, 2021, and treated Mr. 16 Bustamonte in the Emergency Department on that date. Dkt. No. 54 at 5-6; Dkt. No. 54-3 ¶¶ 6-7, 17 10-12. 18 B. Mr. Bustamonte’s Medical Care 19 For purposes of this motion, Dr. Moeller does not dispute that Mr. Bustamonte was 20 involved in an incident at SVSP on September 28, 2021, during which Mr. Bustamonte was 21 allegedly shot in the face with a rubber bullet by defendant Officer Castillon. Dkt. No. 11 ¶¶ 20- 22 26; see Dkt. No. 54 at 4. Mr. Bustamonte was transported to Natividad to receive emergency care 23 and treatment for his injuries. Dkt. No. 11 ¶¶ 29-34. 24 As stated above, Dr. Moeller attests that he was the attending Emergency Physician at 25 Natividad. He further attests that he treated Mr. Bustamonte for “R sided facial pain.” Dkt. No. 26 statements of fact in the amended complaint that he is competent to assert as if they were made by 27 declaration. Schroeder v. McDonald, 55 F.3d 545, 460 (9th Cir. 1995) (“A verified complaint 1 54 at 5; Dkt. No. 54-3 ¶¶ 6-7. According to his declaration, Dr. Moeller reviewed Mr. 2 Bustamonte’s vital signs and laboratory results, took a verbal history, and physically examined 3 him. Dkt. No. 54-3 ¶ 7. After ordering a maxillofacial CT scan, Dr. Moeller determined that Mr. 4 Bustamonte had suffered right-sided facial laceration, facial fractures, orbital fracture, and soft 5 tissue hematoma. Id. ¶ 8. He ordered antibiotics for infection prophylaxis and decadron injection 6 to reduce swelling. Id. He also arranged for an evaluation by an ear, nose, throat (ENT) 7 specialist, who sutured the laceration to Mr. Bustamonte’s face and recommended surgery on an 8 outpatient basis. Id. Based on his own assessment and the ENT’s recommendation, Dr. Moeller 9 concluded it was appropriate to discharge Mr. Bustmonate back to SVSP with outpatient antibiotic 10 prophylaxis and possible surgery on an outpatient basis. Id. ¶ 9. Mr. Bustamonte does not contest 11 any of these assertions.3 Nor does he challenge the quality of care he received at Natividad during 12 the several hours he was there. Dkt. No. 11 ¶¶ 32-34. 13 After being seen at in the Emergency Department at Natividad, Mr. Bustamonte was 14 transported back to SVSP on the same day and returned to his cell. Id. ¶¶ 35-36. In the days that 15 followed, Mr. Bustamonte experienced severe pain, vomiting, dizziness, and disorientation. Id. 16 ¶ 36. He was seen by several nurses, including those named as defendants, from October 1 17 through October 6, 2021, and repeatedly requested pain medication and soft food diet. Id. ¶¶ 37- 18 48. 19 On or about October 6, 2021, a few days after he was seen by defendant Nurse Muriith, 20 Mr. Bustamonte alleges he saw his primary care physician, or PCP, whom he identifies as Dr. 21 Moeller. Id. ¶ 49. Mr. Bustamonte alleges he informed Dr. Moeller that he was in severe pain, 22 losing vision and hearing on his right side, and had dizzy periods and severe headaches. Id. He 23 alleges he also informed Dr. Moeller that he had not yet received a soft food diet and had been 24
25 3 The Court notes that when service was attempted on Dr. Moeller at SVSP, the Litigation Coordinator at SVSP, G. Lopez, filed a declaration stating that he was unable to find anyone 26 named Michael Moeller previously or currently employed by the CDCR at SVSP. Dkt. No. 28 at 2, ¶ 6. Mr. Lopez also provides a copy of a letter addressed to Mr. Bustamonte from Natividad 27 that indicates he was seen in the “Emergency Department” by “Physician: Moeller, Michel G. 1 eating two slices of bread soaked in water each day. Id. Mr. Bustamonte alleges Dr. Moeller 2 informed him that a soft food diet had been recommended and that Dr. Moeller would approve 3 surgery for Mr. Bustamonte, after which, he would consider whether other medical procedures 4 were needed. Id. ¶ 50. Mr. Bustamonte was returned to his cell. Id. 5 Mr. Bustamonte alleges that he was denied surgery for over a year and was never given a 6 soft food diet, even after he received surgery. Id. ¶ 51. He alleges that he continues to suffer due 7 to Dr. Moeller’s refusal to provide him with adequate medical care. Id. ¶ 52. 8 II. LEGAL STANDARD 9 A motion for summary judgment should be granted if there is no genuine issue of material 10 fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); 11 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party bears the initial 12 burden of informing the court of the basis for the motion, and identifying portions of the 13 pleadings, depositions, answers to interrogatories, admissions, or affidavits which demonstrate the 14 absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 ISRAEL BUSTAMONTE, Case No. 22-cv-04725-VKD
9 Plaintiff, ORDER GRANTING DEFENDANT MOELLER'S MOTION FOR 10 v. SUMMARY JUDGMENT
11 T. CASTILLON, et al., 12 Defendants. Re: Dkt. No. 54
13 14 Pro se plaintiff Israel Bustamonte, a state prisoner, asserts claims under 42 U.S.C. § 1983 15 against Correctional Officer T. Castillo, Nurse F. Ssempewa, Nurse Phuc Le, Nurse F. 16 Montegrande, Nurse L. Muriith, and Dr. Michael Moeller, for use of excessive force and 17 deliberate indifference to serious medical needs. Dkt. No. 11. Mr. Bustamonte seeks declaratory 18 relief and damages. Id. at 23-24. The Court found the amended complaint, liberally construed, 19 stated a deliberate indifference claim under the Eighth Amendment against Dr. Moeller and other 20 named medical staff. Dkt. No. 14 at 5-6. 21 All parties have consented to magistrate judge jurisdiction. Dkt. Nos. 4, 24, 38. 22 Defendant Dr. Michael Moeller moves for summary judgment on the grounds that the 23 claims against him fail as a matter of law.1 Dkt. No. 54 at 2. Mr. Bustamonte did not file any 24 opposition in the time provided. See Dkt. No. 58. However, the amended complaint is verified 25 and therefore may be treated as an opposing affidavit.2 Dkt. No. 11 at 23. 26 1 The other defendants filed a separate motion for summary judgment which is not yet fully 27 briefed. Dkt. No. 70. 1 The Court finds this matter suitable for resolution without oral argument. See Civil L.R. 7- 2 1(b). For the reasons explained below, the Court grants Dr. Moeller’s motion for summary 3 judgment. 4 I. BACKGROUND 5 The following facts are undisputed unless otherwise noted: 6 A. Parties 7 Mr. Bustamonte is a state prisoner currently incarcerated at Salinas Valley State Prison 8 (“SVSP”) in Soledad, California, where the underlying events at issue in this action took place. 9 Dr. Michael Moeller is a physician. Dkt. No. 11 ¶ 15. Mr. Bustamonte alleges that Dr. 10 Moeller was employed by the California Department of Corrections and Rehabilitation (“CDCR”) 11 at SVSP as a “medical provider to all inmates” and was Mr. Bustamonte’s primary care physician. 12 Id. ¶¶ 15, 49. 13 Dr. Moeller attests that he was never employed at SVSP and never served as Mr. 14 Bustamonte’s primary care physician. Rather, he attests that he was the attending Emergency 15 Physician at Natividad Medical Center (“Natividad”) on September 28, 2021, and treated Mr. 16 Bustamonte in the Emergency Department on that date. Dkt. No. 54 at 5-6; Dkt. No. 54-3 ¶¶ 6-7, 17 10-12. 18 B. Mr. Bustamonte’s Medical Care 19 For purposes of this motion, Dr. Moeller does not dispute that Mr. Bustamonte was 20 involved in an incident at SVSP on September 28, 2021, during which Mr. Bustamonte was 21 allegedly shot in the face with a rubber bullet by defendant Officer Castillon. Dkt. No. 11 ¶¶ 20- 22 26; see Dkt. No. 54 at 4. Mr. Bustamonte was transported to Natividad to receive emergency care 23 and treatment for his injuries. Dkt. No. 11 ¶¶ 29-34. 24 As stated above, Dr. Moeller attests that he was the attending Emergency Physician at 25 Natividad. He further attests that he treated Mr. Bustamonte for “R sided facial pain.” Dkt. No. 26 statements of fact in the amended complaint that he is competent to assert as if they were made by 27 declaration. Schroeder v. McDonald, 55 F.3d 545, 460 (9th Cir. 1995) (“A verified complaint 1 54 at 5; Dkt. No. 54-3 ¶¶ 6-7. According to his declaration, Dr. Moeller reviewed Mr. 2 Bustamonte’s vital signs and laboratory results, took a verbal history, and physically examined 3 him. Dkt. No. 54-3 ¶ 7. After ordering a maxillofacial CT scan, Dr. Moeller determined that Mr. 4 Bustamonte had suffered right-sided facial laceration, facial fractures, orbital fracture, and soft 5 tissue hematoma. Id. ¶ 8. He ordered antibiotics for infection prophylaxis and decadron injection 6 to reduce swelling. Id. He also arranged for an evaluation by an ear, nose, throat (ENT) 7 specialist, who sutured the laceration to Mr. Bustamonte’s face and recommended surgery on an 8 outpatient basis. Id. Based on his own assessment and the ENT’s recommendation, Dr. Moeller 9 concluded it was appropriate to discharge Mr. Bustmonate back to SVSP with outpatient antibiotic 10 prophylaxis and possible surgery on an outpatient basis. Id. ¶ 9. Mr. Bustamonte does not contest 11 any of these assertions.3 Nor does he challenge the quality of care he received at Natividad during 12 the several hours he was there. Dkt. No. 11 ¶¶ 32-34. 13 After being seen at in the Emergency Department at Natividad, Mr. Bustamonte was 14 transported back to SVSP on the same day and returned to his cell. Id. ¶¶ 35-36. In the days that 15 followed, Mr. Bustamonte experienced severe pain, vomiting, dizziness, and disorientation. Id. 16 ¶ 36. He was seen by several nurses, including those named as defendants, from October 1 17 through October 6, 2021, and repeatedly requested pain medication and soft food diet. Id. ¶¶ 37- 18 48. 19 On or about October 6, 2021, a few days after he was seen by defendant Nurse Muriith, 20 Mr. Bustamonte alleges he saw his primary care physician, or PCP, whom he identifies as Dr. 21 Moeller. Id. ¶ 49. Mr. Bustamonte alleges he informed Dr. Moeller that he was in severe pain, 22 losing vision and hearing on his right side, and had dizzy periods and severe headaches. Id. He 23 alleges he also informed Dr. Moeller that he had not yet received a soft food diet and had been 24
25 3 The Court notes that when service was attempted on Dr. Moeller at SVSP, the Litigation Coordinator at SVSP, G. Lopez, filed a declaration stating that he was unable to find anyone 26 named Michael Moeller previously or currently employed by the CDCR at SVSP. Dkt. No. 28 at 2, ¶ 6. Mr. Lopez also provides a copy of a letter addressed to Mr. Bustamonte from Natividad 27 that indicates he was seen in the “Emergency Department” by “Physician: Moeller, Michel G. 1 eating two slices of bread soaked in water each day. Id. Mr. Bustamonte alleges Dr. Moeller 2 informed him that a soft food diet had been recommended and that Dr. Moeller would approve 3 surgery for Mr. Bustamonte, after which, he would consider whether other medical procedures 4 were needed. Id. ¶ 50. Mr. Bustamonte was returned to his cell. Id. 5 Mr. Bustamonte alleges that he was denied surgery for over a year and was never given a 6 soft food diet, even after he received surgery. Id. ¶ 51. He alleges that he continues to suffer due 7 to Dr. Moeller’s refusal to provide him with adequate medical care. Id. ¶ 52. 8 II. LEGAL STANDARD 9 A motion for summary judgment should be granted if there is no genuine issue of material 10 fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); 11 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party bears the initial 12 burden of informing the court of the basis for the motion, and identifying portions of the 13 pleadings, depositions, answers to interrogatories, admissions, or affidavits which demonstrate the 14 absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In 15 order to meet its burden, “the moving party must either produce evidence negating an essential 16 element of the nonmoving party’s claim or defense or show that the nonmoving party does not 17 have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” 18 Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). 19 If the moving party meets its initial burden, the burden shifts to the non-moving party to 20 produce evidence supporting its claims or defenses. See id. at 1102. The non-moving party may 21 not rest upon mere allegations or denials of the adverse party’s evidence, but instead must produce 22 admissible evidence that shows there is a genuine issue of material fact for trial. See id. A 23 genuine issue of fact is one that could reasonably be resolved in favor of either party. A dispute is 24 “material” only if it could affect the outcome of the suit under the governing law. Anderson, 477 25 U.S. at 248-49. 26 III. DISCUSSION 27 Deliberate indifference to a prisoner’s serious medical needs violates the Eighth 1 Amendment only when two requirements are met: (1) the deprivation alleged is, objectively, 2 sufficiently serious, and (2) the official is, subjectively, deliberately indifferent to the prisoner’s 3 health or safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). 4 A “serious” medical need exists if the failure to treat a prisoner’s condition could result in 5 further significant injury or the “unnecessary and wanton infliction of pain.” Id. A prison official 6 is deliberately indifferent to a prisoner’s health and safety if he knows that the prisoner faces a 7 substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate 8 it. Id. at 837. The official must both know of “facts from which the inference could be drawn” 9 that an excessive risk of harm exists, and he must actually draw that inference. Id. If a prison 10 official should have been aware of the risk, but was not, then the official has not violated the 11 Eighth Amendment, no matter how severe the risk. Gibson v. County of Washoe, 290 F.3d 1175, 12 1188 (9th Cir. 2002). 13 Mr. Bustamonte bears the burden of proof on his Eighth Amendment claim against Dr. 14 Moeller. Dr. Moeller contends that Mr. Bustamonte is mistaken in identifying him as the primary 15 care physician who treated him at SVSP in October 2021 and thereafter. Dkt. No. 54 at 8. He 16 observes that Mr. Bustamonte alleges no deficiencies in the care and treatment provided to him at 17 Natividad, and instead relies exclusively on the lack of adequate medical care provided by his 18 primary care physician and others at SVSP in early October 2021. Id. Dr. Moeller provides 19 evidence that he has never been Mr. Bustamonte’s primary care physician and has never practiced 20 medicine at SVSP. Dkt. No. 54-3 ¶¶ 11, 12. Mr. Bustamonte has not responded to Dr. Moeller’s 21 motion, and does not contest Dr. Moeller’s evidence. 22 After a careful review of the evidence, the Court finds that there are no genuine issues of 23 material fact as to whether Dr. Moeller was responsible for the allegedly deficient medical care 24 Mr. Bustamonte received at SVSP during October 2021. The undisputed facts are that Dr. 25 Moeller treated Mr. Bustamonte at Natividad on September 28, 2021, immediately following the 26 riot incident at SVSP. It is also undisputed that Dr. Moeller was never Mr. Bustamonte’s primary 27 care physician and did not practice medicine at SVSP. Accordingly, the Court finds that Dr. 1 || the amended complaint.* 2 || IV. CONCLUSION 3 For the foregoing reasons, defendant Dr. Michael Moeller’s motion for summary judgment 4 || is granted. Dkt. No. 54. The Eighth Amendment claim against Dr. Moeller is dismissed with 5 || prejudice. Dr. Moeller shall be terminated from this action. 6 This order terminates Docket No. 54. 7 IT IS SO ORDERED. 8 Dated: November 26, 2024 9
Virginia K. DeMarchi United States Magistrate Judge 12
15 16
= 17
Z 18 19 20 21 22 23 24 25 26 27 * The Court does not reach the question of whether Mr. Bustamonte could assert a claim for 2g || medical malpractice under California state law against Dr. Moeller (see Dkt. No. 54 at 9), as no such allegations are made in the amended complaint.