Morris v. State of California

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TAIRAY TAQWAIN MORRIS, Case No. 19-cv-02620-HSG

8 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY 9 v. JUDGMENT

10 NANCY ADAMS, et al., Re: Dkt. No. 40 11 Defendants.

12 13 Plaintiff filed this pro se civil rights action under 42 U.S.C. § 1983 alleging that Pelican 14 Bay State Prison (“PBSP”) nurse Risenhoover and doctor Adam were deliberately indifferent to 15 his serious medical needs, in violation of the Eighth Amendment. Defendants have filed a 16 summary judgment motion. Dkt. No. 40. Plaintiff has filed an opposition, and Defendants have 17 filed a reply. Dkt. Nos. 43, 44. For the reasons set forth below, the Court GRANTS Defendants’ 18 summary judgment motion. 19 FACTUAL BACKGROUND 20 I. Defendant Risenhoover (Medical Treatment from October 2015 – October 2016) 21 Plaintiff alleges that between October 15, 2015 and October 22, 2016, he complained to 22 defendant Risenhoover about pain in his right knee, but she completely failed to provide 23 treatment. Dkt. No. 29 (“Am. Compl.”) at 5; Dkt. No. 43-1 at 4. Plaintiff does not provide any 24 specifics regarding this allegation. 25 In response, defendant Risenhoover contends that between October 2015 and October 26 2016, Plaintiff received “extensive” medical attention, and that Plaintiff did not inform defendant 27 Risenhoover of any issues with his right leg. Defendant Adams details the following medical 1 and October 22, 2016. 2 On October 1, 2015, defendant Risenhoover sent Plaintiff a notification letter regarding lab 3 results and indicated that the results would be discussed with him at his next regularly scheduled 4 chronic case visit. Adam Decl. ¶ 4. 5 On October 5, 2015, defendant Risenhoover reviewed Plaintiff’s medications and adjusted 6 his hypertension and seizure medications. Adam Decl. ¶ 4. 7 On October 13, 2015, Plaintiff was seen by a nurse for cold symptoms. Adam Decl. ¶ 4. 8 On October 16, 2015, Plaintiff had a chronic care visit with defendant Risenhoover for his 9 seizure disorder and hypertension. During this appointment, Plaintiff reported that he exercised 10 “five days per week,” which included three or four laps in the yard and 1,000 pushups each day. 11 Plaintiff also referenced the CDCR-7410 form/notice in his file which required that he be housed 12 in a low bunk and low tier due to his seizure disorder and the consequent danger of falls. Plaintiff 13 stated that he did not know why he had this notice because he felt “fine.” Adam Decl. ¶ 4. 14 On November 24, 2015, Plaintiff was seen by a nurse and requested “some kind of cream 15 to make the calluses between [his] toes go away.” Adam Decl. ¶ 5. The nurse found that Plaintiff 16 had dry, cracked skin between his toes, and instructed Plaintiff to keep his feet clean and dry. 17 Adam Decl. ¶ 5. 18 On December 22, 2015, Plaintiff was seen by a nurse after complaining that his right foot 19 was swollen. Adam Decl. ¶ 6. Plaintiff refused to walk to the clinic and was examined 20 in the housing unit rotunda with his permission. Plaintiff reported that his foot was swollen and 21 painful but that he was continuing his exercise routine. Plaintiff refused antifungal cream and 22 requested a blood test. Defendant Risenhoover was consulted and she denied the request, stating 23 that the blood test sought was not required. Plaintiff regularly received other routine blood tests 24 due to his other health conditions. Plaintiff was observed walking back to his cell with a normal 25 gait. Adam Decl. ¶ 6. 26 On February 2, 2016, Plaintiff was seen by a nurse for a rash on his neck and was given 27 hydrocortisone cream. Adam Decl. ¶ 7. 1 disorder. He reported that he still exercised five days per week, but had quit doing burpees. The 2 notes from that visit did not refer to any leg swelling. Adam Decl. ¶ 8. 3 On March 9, 2016, Plaintiff complained that his rash had spread to both sides of his neck 4 and that the hydrocortisone cream prescribed was ineffective. Adam Decl. ¶ 8. 5 On March 15, 2016, Plaintiff was seen by defendant Risenhoover about his neck rash and 6 diagnosed with contact dermatitis. Defendant Risenhoover instructed him to rinse soap off after 7 washing, and to avoid scratching the affected area. Adam Decl. ¶ 9. 8 On March 23, 2016, Plaintiff was seen by a nurse for the ongoing neck rash. Adam Decl. ¶ 9 9. 10 On March 24, 2016, Plaintiff had an annual EKG screening, which was normal. Plaintiff 11 also had labs drawn for cholesterol and thyroid, and these labs also came back normal. Adam 12 Decl. ¶ 9. 13 In April 2016, Plaintiff had labs drawn for a comprehensive metabolic panel and 14 urinalysis, and these labs came back normal. Adam Decl. ¶ 10. 15 On April 20, 2016, Plaintiff was seen by a nurse and given another bottle of ointment for 16 his neck rash. Adam Decl. ¶ 10. 17 In August 2016, labs were drawn to measure Plaintiff’s carbamazepine level, to get a 18 complete blood count, and for a urinalysis. These labs came back normal. Adam Decl. ¶ 11. 19 On August 25, 2016, Plaintiff had a chronic care visit with defendant Risenhoover for his 20 hypertension and seizure disorder. Plaintiff reported that he was still engaging in the same 21 exercise routine and avoiding burpees. The notes from this appointment indicated that Plaintiff 22 had good muscle development. Adam Decl. ¶ 12. 23 On September 1, 2016, labs were again drawn for Plaintiff’s complete blood count and 24 carbamazepine level, and they came back normal. Adam Decl. ¶ 13. 25 On October 23, 2016, Plaintiff submitted another request for care, stating that his knee was 26 swelling when he ran. Adam Decl. ¶ 14. 27 On October 24, 2016, Plaintiff was seen by a nurse in response to this request. The 1 but did have some mild swelling present in his right knee. The appointment notes reported that 2 Plaintiff stated that he had no pain. Plaintiff was returned to his housing with no new orders. 3 Adam Decl. ¶ 14. 4 II. Defendant Adam (Medical Treatment from May 2017 – November 2018) 5 Plaintiff alleges that between May 2017 and November 2018, he complained to defendant 6 Adam about pain in his right knee, but she completely failed to provide treatment. Plaintiff does 7 not provide any specifics regarding this allegation. 8 In response, defendant Adam contends that Plaintiff received extensive medical attention, 9 and that between May 2017 and November 2018 Plaintiff had moderate osteoarthritis that did not 10 require either surgery or a pre-surgical MRI, because Plaintiff was very active and was able to 11 engage in normal daily activities. Adam Decl. ¶ 30. 12 Defendant Adam details the following medical care for Plaintiff between February 2017, 13 when defendant Adam first started addressing the right knee issue, and November 2018. 14 On February 8, 2017, Plaintiff was seen by a nurse for right knee pain and a follow-up visit 15 with defendant Adam was scheduled for February 14, 2017. Adam Decl. ¶ 15. 16 On February 14, 2017, Plaintiff met with defendant Adam regarding his knee, and also 17 received routine care for his hypertension and seizure disorder. Plaintiff informed defendant 18 Adam that he believed that his knee had been injured in a fight two years ago and that the injury 19 had been exacerbated since then by playing basketball. Defendant Adam examined Plaintiff’s 20 right knee and found it to be “normal.” Plaintiff informed defendant Adam that he exercised five 21 days per week for about ninety minutes per session, which included twenty laps around the yard 22 over a thirty-minute period. Defendant Adam counseled Plaintiff to avoid high impact exercise, 23 elevate the leg if swollen, and take an occasional non-steroidal anti-inflammatory (NSAID), such 24 as ibuprofen, if the knee was painful. Defendant Adam instructed Plaintiff to put in another sick 25 call request if he did not feel better within two months because physical therapy could be 26 considered at that time. Adam Decl. ¶ 15. 27 On March 16, 2017, Plaintiff was seen by a nurse in response to a complaint of knee 1 last visit. Defendant Adam asked the nurse to tell him to continue the plan for another month, as 2 previously instructed. Adam Decl. ¶ 16. 3 In April 2017, Plaintiff was seen by nurses twice, the first time for a cold and the second 4 time for his knee. The nurse reported a near normal exam of the knee, based on Plaintiff’s ability 5 to do deep knee bends, even though he needed to hold onto the table to rise back up to a standing 6 posture. Adam Decl. ¶ 16. 7 On May 1, 2017, Plaintiff had a follow-up appointment with defendant Adam. In response 8 to Plaintiff’s complaint of intermittent swelling of his right knee with associated pain, defendant 9 Adam ordered a knee x-ray of Plaintiff’s right knee. The knee x-ray, performed on May 4, 2017, 10 showed a small effusion and moderate patellofemoral and medial compartment osteoarthritis. 11 Defendant Adam explains the x-ray results as follows. The effusion indicated that Plaintiff 12 had mild swelling and inflammation of the knee. Osteoarthritis is a common type of “wear and 13 tear” joint damage that occurs with age. Overuse or misuse would not be an uncommon finding in 14 a 40-year-old man such as Plaintiff, who had engaged in years of repetitive high impact exercise 15 during incarceration. Adam Decl. ¶ 16. Moderate osteoarthritis is usually treated conservatively 16 with appropriate exercise, i.e. decreasing high impact exercise while maintaining strength 17 exercises; weight loss; and possibly NSAIDs. The extent of intervention prescribed is based on 18 the patient’s disability. Plaintiff would be considered to have a high level of functioning with the 19 osteoarthritis because he reported regularly engaging in a vigorous exercise routine, including 20 running. Adam Decl. ¶ 17. 21 A letter was written to Plaintiff to inform him of the x-ray results, and a follow up 22 appointment with defendant Adam was scheduled. Adam Decl. ¶ 16. 23 On May 22, 2017, Plaintiff was seen by a nurse concerning the x-ray results and in 24 response to his complaints of knee pain and intermittent swelling. Adam Decl. ¶ 19. The nurse 25 explained to Plaintiff that he had arthritis and educated him regarding that condition. The nurse 26 noted swelling on the medial side of the knee, but noted no clicking or popping in the knee. The 27 nurse also noted that Plaintiff had good muscle strength in his legs, was not limping, had no 1 On June 6, 2017, defendant Adam met with Plaintiff to review the x-ray results and 2 examine his knee. Adam Decl. ¶ 20. Plaintiff had previously declined physical therapy, and 3 defendant Adam informed him that an MRI was not required. According to defendant Adam, 4 although Plaintiff’s knee had mild crepitus, a typical symptom of osteoarthritis, Plaintiff had full 5 motion and his knee did not have any redness or swelling. Defendant Adam recommended that 6 Plaintiff engage in healthy knee exercises, and instructed Plaintiff how to care for his knee when it 7 was swollen. Adam Decl. ¶ 20. 8 On August 7, 2017, November 1, 2017 and February 1, 2018, defendant Adam saw 9 Plaintiff for routine care of his hypertension and seizure disorder. During these visits, Plaintiff 10 reported that he was continuing to engage in frequent vigorous exercise, three to five times per 11 week, but avoiding high impact burpees. Adam Decl. ¶ 22. 12 On April 16, 2018, Plaintiff was seen by a nurse in response to his complaint of an ongoing 13 rash on his neck. He requested an ointment refill, but the refill had already been requested from 14 the pharmacy. Adam Decl. ¶ 23. 15 On April 26, 2018, Plaintiff had a follow-up appointment with defendant Adam regarding 16 his hypertension medicine changes and his rash. Plaintiff reported that his blood pressure was 17 high that morning because he had just finished exercising. Adam Decl. ¶ 24. 18 On July 11, 2018, Plaintiff was notified of lab results showing that he had high cholesterol, 19 and was counseled regarding lifestyle changes. 20 On July 24, 2018, Plaintiff was seen for chronic care of his hypertension and seizure 21 disorder. An EKG was done and his medications were adjusted. During his appointment, he 22 stated that he was exercising three to four times per week, for two hours per session. Adam Decl. 23 ¶ 26. 24 On August 1, 2018, Plaintiff was seen by a nurse for pain in his pubic bone. Plaintiff told 25 the nurse that the discomfort began after he started doing a new Navy seal workout, and that the 26 pain recently occurred when he ran and did squats. Adam Dec. ¶ 27. 27 On November 21, 2018, Plaintiff was seen by a nurse because a routine blood pressure 1 On November 26, 2018, Plaintiff was seen by a nurse in response to a complaint of toe 2 pain from a “cut on toe” that hurt every time he showered and to a separate request for care due to 3 knee pain. The nurse was very concerned about the condition of Plaintiff’s toes and ordered an 4 urgent follow up by a primary care physician. Defendant Adam saw Plaintiff the next day, on 5 November 27, 2018, and examined an open wound on Plaintiff’s foot. Defendant Adam observed 6 deep ulcers in that area and referred Plaintiff to general surgery for debridement. Defendant Adam 7 also ordered further follow-up as to Plaintiff’s knee pain and anterior hip pain. At that time, 8 Plaintiff told defendant Adam that he had cut back on running during the previous year, but that 9 his knee pain had returned two months earlier after running ten laps in “too flat” shoes. Adam 10 Decl. ¶¶ 28-29. 11 DISCUSSION 12 I. Summary Judgment Standard 13 Summary judgment is proper where the pleadings, discovery and affidavits show there is 14 “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 15 law.” See Fed. R. Civ. P. 56(a) (2014). Material facts are those that may affect the outcome of the 16 case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material 17 fact is genuine if the evidence is such that a reasonable jury could return a verdict for the 18 nonmoving party. See id. 19 A court shall grant summary judgment “against a party who fails to make a showing 20 sufficient to establish the existence of an element essential to that party’s case, and on which that 21 party will bear the burden of proof at trial [,] . . . since a complete failure of proof concerning an 22 essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” 23 See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The moving party bears the initial 24 burden of identifying those portions of the record that demonstrate the absence of a genuine issue 25 of material fact. Id. at 323. The burden then shifts to the nonmoving party to “go beyond the 26 pleadings and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and 27 admissions on file, ‘designate ‘specific facts showing that there is a genuine issue for trial.’” See 1 For purposes of summary judgment, the court must view the evidence in the light most 2 favorable to the nonmoving party; if the evidence produced by the moving party conflicts with 3 evidence produced by the nonmoving party, the court must assume the truth of the evidence 4 submitted by the nonmoving party. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). 5 The court’s function on a summary judgment motion is not to make credibility determinations or 6 weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv., Inc., v. 7 Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 8 II. Deliberate Indifference to Serious Medical Needs 9 A prison official’s deliberate indifference to a prisoner’s serious medical needs violates the 10 Eighth Amendment’s proscription against cruel and unusual punishment. See Estelle v. Gamble, 11 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled in 12 part on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). 13 A determination of “deliberate indifference” involves an examination of two elements: the 14 seriousness of the prisoner’s medical need and the nature of the defendant’s response to that need. 15 See McGuckin, 974 F.2d at 1059. A “serious” medical need exists if the failure to treat a 16 prisoner's condition could result in further significant injury or the “unnecessary and wanton 17 infliction of pain.” McGuckin, 974 F.2d at 1059 (citing Estelle, 429 U.S. at 104). The existence 18 of an injury that a reasonable doctor or patient would find important and worthy of comment or 19 treatment; the presence of a medical condition that significantly affects an individual’s daily 20 activities; or the existence of chronic and substantial pain are examples of indications that a 21 prisoner has a serious need for medical treatment. Id. at 1059-60 (citing Wood v. Housewright, 22 900 F.2d 1332, 1337-41 (9th Cir. 1990)). A prison official is deliberately indifferent if he knows 23 that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take 24 reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official 25 must not only “be aware of facts from which the inference could be drawn that a substantial risk of 26 serious harm exists,” but he “must also draw the inference.” Id. If a prison official should have 27 been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no 1 established, therefore, there must be a purposeful act or failure to act on the part of the defendant 2 and resulting harm. See McGuckin, 974 F.2d at 1060. 3 III. Analysis 4 A. RN Risenhoover (October 15, 2015 to October 22, 2016) 5 Defendant Risenhoover argues that she is entitled to summary judgment because she 6 provided Plaintiff with extensive medical attention during the relevant time period and because 7 Plaintiff never complained of any right leg issues during that period. Defendants have presented 8 evidence that between October 15, 2015 and October 22, 2016, Plaintiff did not inform defendant 9 Risenhoover of any concerns regarding swelling in his right knee, and that to the extent that she 10 was informed of any other medical concerns Plaintiff had during that time period, she provided 11 reasonably appropriate medical care. According to defendant Adam’s summary of Plaintiff’s 12 medical care, between October 15, 2015 and October 22, 2016, Plaintiff was seen at least thirteen 13 times, either for regular care for his ongoing hypertension and seizure disorder or in response to 14 his requests for medical care. During that time period, Plaintiff had blood tests and labs done to 15 monitor his health, as well as an EKG screening. Nothing in the record indicates that Plaintiff 16 reported pain in his right knee during any of these thirteen visits. Plaintiff reported engaging in a 17 vigorous exercise routine at least five days a week. The exercise routine consisted of three or four 18 laps in the yard and 1,000 pushups, though Plaintiff reported avoiding burpees starting in August 19 2016. Only five of these thirteen visits involved interaction with defendant Risenhoover. Three of 20 these visits were chronic care follow-up visits with defendant Risenhoover. Another visit was the 21 December 22, 2015 exam to address Plaintiff’s complaint that his right foot was swollen and 22 painful, and involved defendant Risenhoover denying Plaintiff’s request for a blood test as not 23 required. The other visit was the March 15, 2016 exam in response to Plaintiff’s complaint that 24 his neck rash had spread to both sides of his neck and that the hydrocortisone cream did not work. 25 Defendant Risenhoover diagnosed him with contact dermatitis, and instructed him to rinse off 26 soap after washing and avoid scratching the affected area. 27 Plaintiff does not directly dispute the above description of his medical care between 1 in his amended complaint: “I made several request to defendant Risenhoover from October 16, 2 2015 to October 22, 2016 complaint about the swelling in my right leg, but Risenhoover did not 3 treat my injuries which result[ed] in further serious injuries.” Dkt. No. 43-1 at 1 (emphasis in 4 original). Plaintiff provides no details to support this allegation and does not address the medical 5 treatment that was provided to him during the relevant time period. 6 Plaintiff was clearly instructed and cautioned as to the burden of proof necessary to oppose 7 a motion for summary judgment in both the Court’s November 26, 2019 order screening the 8 complaint, and in the October 27, 2020 Rand warning provided by Defendants. Specifically, 9 Plaintiff was told:

10 When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your 11 complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(c), that 12 contradict the facts shown in the defendants’ declarations and documents and show that there is a genuine issue of material fact for trial. If you do not submit your own evidence in 13 opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no trial. 14 15 Dkt. No. 16 at 11-12; Dkt. No. 40-1 at 2. 16 Despite these instructions, Plaintiff has not pointed to any specific facts that show that 17 there is a genuine issue as to whether defendant Risenhoover was aware of a serious medical need 18 with respect to the swelling in his right knee. Plaintiff has not pointed to specific facts or evidence 19 in the record that contradict defendant Adam’s detailed account of Plaintiff’s medical treatment 20 during the relevant time period, including the allegation that the medical records show no 21 indication that Plaintiff complained of pain in his right leg until after the relevant time period, 22 other than the December 22, 2015 complaint about a swollen right foot. The only treatment 23 denied with respect to Plaintiff’s right leg was the denial of the blood test requested during the 24 December 22, 2015 appointment regarding his swollen right foot. However, Plaintiff has not 25 explained how denial of this blood test disregarded serious risk of substantial harm to his right leg. 26 Although the Court may not engage in credibility determinations or a weighing of the evidence, 27 “[a] conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is 1 F.3d 1168, 1171 (9th Cir. 1997)). 2 Accordingly, the Court GRANTS summary judgment in favor of defendant Risenhoover. 3 See, e.g., Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007) (finding that prisoner failed to 4 demonstrate that there were any genuine issues of material fact in dispute when she did not submit 5 any documents opposing summary judgment other than the pleadings). 6 B. Dr. Adam (May 8, 2017 through November 26, 2018) 7 Defendant Adam argues that she is entitled to summary judgment because she provided 8 Plaintiff with extensive medical attention during the relevant time period and that, given that 9 Plaintiff was very active and able to engage in normal daily activities during the relevant time 10 period, his moderate osteoarthritis did not require either a presurgical MRI or surgery. Defendants 11 have presented evidence that between May 8, 2017 and November 26, 2018, defendant Adam 12 examined Plaintiff in response to his complaints of right knee pain and determined that a pre- 13 surgical MRI and surgery were not necessary because Plaintiff was very active and able to engage 14 in normal daily activities. According to the record, between May 8, 2017 and November 26, 2018, 15 Plaintiff was seen approximately fourteen times by medical staff and the following actions were 16 taken with respect to his complaint of swelling in the right knee and associated pain: on May 1, 17 2017, an x-ray was ordered; on May 4, 2017, an x-ray was taken which showed moderate 18 osteoarthritis; on May 22, 2017, he was examined by a nurse; on June 6, 2017, he was examined 19 by defendant Adam who informed him that an MRI was not required for his knee and 20 recommended that he engage in health knee exercises; and on November 27, 2018, he was again 21 examined by defendant Adam. In Plaintiff’s medical appointments during this time period, 22 Plaintiff reported exercising three to five times a week, and that his exercise routine included 23 running and squats. Physical examinations indicated that Plaintiff had good muscle strength in his 24 legs, was not limping, had no trouble getting on and off the exam table, and was able to do deep 25 knee bends. Although Plaintiff had redness and swelling in the knee at the May 22, 2017 visit, the 26 knee was no longer swollen by the June 6, 2017 visit. 27 Plaintiff does not directly dispute the above description of his medical care between May 1 amended complaint: “I made numerous sick call request from May 8th, 2017 to November 26, 2 2018 regarding my knee osteoarthritis but defendant Adams (sic) failed to treat my serious 3 medical condition which results in further degradation of my serious medical condition, contrary 4 to defendant Dr. Adam’s declaration dated October 23, 2020.” Dkt. No. 43-1 at 1 (emphasis in 5 original). Plaintiff provides no details to support this allegation and does not address the medical 6 treatment that was provided to him during the relevant time period. 7 As discussed above, although the Court may not engage in credibility determinations or a 8 weighing of the evidence, a conclusory, self-serving statement that lacks detailed facts and any 9 supporting evidence is insufficient to create a genuine issue of material fact. F.T.C., 104 F.3d at 10 1171. Plaintiff has not pointed to any specific facts in the record that raise a triable issue as to 11 whether defendant Adam’s course of treatment violated the Eighth Amendment, and has only 12 made a conclusory statement in opposition to defendant Adam’s description of the medical care 13 provided. “A difference of opinion between a prisoner-patient and prison medical authorities 14 regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 15 1344 (9th Cir. 1981). In order to prevail on a claim involving choices between alternative courses 16 of treatment, a plaintiff must show that the course of treatment the doctors chose was medically 17 unacceptable under the circumstances and that he or she chose this course in conscious disregard 18 of an excessive risk to plaintiff’s health. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004); 19 see also Floyd v. Dang, 577 F. App’x 696, 697 (9th Cir. 2014) (affirming summary judgment for 20 doctors on claim that they failed to test for hepatitis C because, although plaintiff had several risk 21 factors for hepatitis C, he presented no evidence “that shows what level of risk that a prisoner is 22 infected with [h]epatitis C would be medically unacceptable to ignore” and therefore did not 23 present evidence that would allow jury to find that choice made was medically unacceptable under 24 circumstances). Accordingly, the Court GRANTS summary judgment in favor of defendant 25 Adam. 26 IV. Qualified Immunity and Punitive Damages 27 Because the Court has granted summary judgment in favor of Defendants, the Court 1 CONCLUSION 2 For the reasons set forth above, the Court GRANTS Defendants’ motion for summary 3 || judgment. The Clerk shall enter judgment in favor of Defendants and against Plaintiff, and close 4 || the case. 5 IT IS SO ORDERED. 6 Dated: 5/26/2021

HAYWOOD S. GILLIAM, JR. 8 United States District Judge 9 10 11 12

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