Orcasitas v. Ko

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOE TOMAS ORCASITAS, JR., Case No. 21-cv-143-MMA (RBB) CDCR #J-36909, 12 ORDER GRANTING DEFENDANT’S Plaintiff, 13 MOTION FOR SUMMARY vs. JUDGMENT; AND 14

15 [Doc. No. 41] DOCTOR KO, M.D.,

16 Defendant. DENYING PLAINTIFF’S MOTION 17 TO APPOINT COUNSEL

18 [Doc. No. 38] 19 20 21 Joe Tomas Orcasitas, Jr. (“Plaintiff”), a California inmate proceeding pro se, 22 brings this civil rights action pursuant to 42 U.S.C. § 1983, asserting that Dr. Ko 23 (“Defendant” or “Dr. Ko”) violated his Eighth Amendment right to adequate medical 24 care. See Doc. No. 1. Defendant now moves for summary judgment. See Doc. No. 41. 25 Plaintiff filed an opposition, to which Defendant replied. Doc. Nos. 49, 52. The Court 26 took the matter under submission without oral argument pursuant to Civil Local Rule 27 7.1.d.1 and Federal Rule of Civil Procedure 78(b). For the reasons set forth below, the 28 Court GRANTS Defendant’s motion. 1 I. BACKGROUND 2 Defendant is a physician at Centinela State Prison (“CSP”), see Doc. No. 41-1 3 (“Ko Decl.”) ¶ 2, and was Plaintiff’s Primary Care Physician (“PCP”) while Plaintiff was 4 housed at CSP, see id. ¶ 5. On February 22, 2019, Plaintiff saw Defendant to address an 5 injury to his right knee. Doc. No. 41-3 (“Defendant’s Separate Statement” or “DSS”) 6 No. 1. At the appointment, Plaintiff reported to Defendant that he had twisted his knee 7 two weeks prior while playing handball. DSS No. 2. Plaintiff reported that swelling of 8 his knee began approximately six hours after the injury but went away after two days. 9 DSS No. 3. Plaintiff also reported that since injuring his knee he had been walking and 10 stretching and avoiding certain exercises. DSS No. 4. Plaintiff described feeling stiff in 11 the morning and that it hurt when he tried to pivot on his right knee. Id. 12 Defendant examined Plaintiff’s knee, including: looking for swelling, redness, and 13 tenderness; administering four medically accepted tests to determine possible damage to 14 various ligaments and cartilage of the knee; requesting that Plaintiff both squat and raise 15 thighs to 90 degree; and having Plaintiff perform a pivot test on his right knee. DSS 16 No. 5. Defendant concluded that Plaintiff had “no appreciable swelling,” “[n]o redness,” 17 and “[n]o patellar or fibular head tenderness.” DSS No. 6. Defendant did not order an 18 MRI, believing that it was “neither medically indicated nor medically necessary” as 19 Plaintiff had “no detectable pathologies,” and was able to function independently. DSS 20 No. 7. Instead, Defendant provided Plaintiff with an assessment and plan: limit certain 21 exercises/movements, take Naproxen twice a day, give the knee time to heal, and follow- 22 up as needed. DSS No. 8. Plaintiff never saw Defendant again regarding his knee injury 23 or pain. DSS No. 9. 24 25 26 27 1 These material facts are taken from Defendant’s Separate Statement of Undisputed Facts, Doc. No. 41- 3, together with the parties’ supporting declarations and exhibits. Particular material facts that are not 28 1 Around April 27, 2021, Plaintiff was transferred from CSP to California State 2 Prison, Los Angeles County (“LAC”). Ko Decl. ¶ 22. On June 21, 2021, Plaintiff had an 3 X-ray performed on his right knee. Def. Ex. HH. Plaintiff was informed that the X-ray 4 revealed “minimal degenerative changes” “incident to prior ACL,” and that there was 5 “[n]o acute osseous abnormality or joint effusion.” Id. 6 On September 9, 2021, Plaintiff was seen by his PCP at LAC to address his knee. 7 See Def. Ex. II. At that time, Plaintiff’s LAC PCP prescribed him a knee brace. See id. 8 On February 28, 2022, Plaintiff had an MRI performed on his right knee. See Pl. 9 Ex. A-2. Plaintiff met with Orthopedic specialist Dr. Alon Antebi on April 18, 2022 to 10 review the MRI results. See id. The MRI revealed a “lateral meniscus tear, 11 chondromalacia osteoarthritis,” specifically, “M23.261 Derangement of other lateral 12 meniscus due to old tear or injury, right knee [and] M17.11 Unilateral primary 13 osteoarthritis, right knee.” Id. At that time, Plaintiff received a cortisone injection. See 14 id. 15 On June 29, 2022, Plaintiff attended a follow-up visit with Dr. Antebi regarding his 16 knee. See id. He again received a cortisone injection, which Dr. Antebi recorded was 17 “20-30% effective.” Id. At the June 29, 2022 appointment, Dr. Antebi informed Plaintiff 18 that the “next step would be surgery,” and so Plaintiff was to “proceed with right knee 19 arthroscopy lateral meniscectomy.” Id. The surgery was performed on October 24, 20 2022. See Doc. No. 60. 21 II. OBJECTIONS AND SUR-REPLY 22 As an initial matter, Defendant submitted new evidence with his reply: declaration 23 of K. Martin, Doc. No. 52 at 10–12 (“Martin Decl.”) along with two exhibits regarding 24 Plaintiff’s healthcare grievance history, id. at 14–15 (“Martin Ex. A”), id. at 16–25 25 (“Martin Ex. B”); declaration of Dr. Soleimani, id. at 26–28 (“Soleimani Decl.”); and 26 declaration of Dr. Sekhon, id. at 29–31 (“Sekhon Decl.”). Plaintiff has filed a response 27 and objects to the three declarations submitted in reply. Doc. No. 53. Plaintiff does not 28 specifically raise any evidentiary grounds for why the declarations are improper. 1 However, he asserts that these declarations should have been included with Defendant’s 2 motion for summary judgment and argues that they were submitted in bad faith and as a 3 delay tactic. Id. at 1. The remainder of Plaintiff’s filing responds to Defendant’s reply 4 memorandum and thus is a sur-reply. 5 “[T]he district court may decline to consider new evidence or arguments raised in 6 reply, and generally ‘should not consider the new evidence without giving the non- 7 movant an opportunity to respond.’” Townsend v. Monster Bev. Corp., 303 F. Supp. 3d 8 1010, 1027 (C.D. Cal. 2018) (first quoting Provenz v. Miller, 102 F.3d 1478, 1483 (9th 9 Cir. 1996); and then citing Deirmenjian v. Deutsche Bank, A.G., No. CV 06-00774 10 MMM (CWx), 2006 U.S. Dist. LEXIS 96772, at *19 n.52 (C.D. Cal. Sep. 11, 2006)). 11 Relatedly, a decision to grant or deny leave to file a sur-reply is committed to the “sound 12 discretion” of the court. De Souza v. Dawson Tech., Inc., No. 21-CV-1103 JLS (MSB), 13 2021 U.S. Dist. LEXIS 136089, at *2 (S.D. Cal. July 21, 2021) (quoting Brady v. 14 Grendene USA, Inc., No. 3:12-cv-0604-GPC-KSC, 2015 U.S. Dist. LEXIS 151879, at *8 15 (S.D. Cal. Nov. 6, 2015) (internal quotation marks omitted)). Such discretion “should be 16 exercised in favor of allowing a surreply only when a valid reason for such additional 17 briefing exists, . . .” Hill v. England, No. CV-F-05-869 REC/TAG, 2005 U.S. Dist. 18 LEXIS 29357, at *2 (E.D. Cal. Nov. 8, 2005). For example, “[d]iscretion to grant leave 19 to file a surreply is proper when a party has submitted new evidence with its reply brief.” 20 Citizens for Quality Educ. San Diego v. San Diego Unified Sch. Dist., No. 17-cv-1054- 21 BAS-JMA, 2018 U.S. Dist. LEXIS 77695, at *3 (S.D. Cal. May 7, 2018). 22 There is no evidence that Defendant’s submission of the new declarations and 23 exhibits in reply was done either in bad faith or as a delay tactic. Here, the Court will 24 consider Defendant’s new evidence because Plaintiff had the opportunity to and did in 25 fact respond. To that end, the Court finds that Plaintiff’s sur-reply is properly before the 26 Court given that Defendant submitted three new declarations and two new exhibits in 27 reply. Accordingly, the Court OVERRULES Plaintiff’s objections. 28 // 1 III. LEGAL STANDARD 2 “A party may move for summary judgment, identifying each claim or defense—or 3 the part of each claim or defense—on which summary judgment is sought. The court 4 shall grant summary judgment if the movant shows that there is no genuine dispute as to 5 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 6 P. 56(a). The party seeking summary judgment bears the initial burden of establishing 7 the basis of its motion and of identifying the portions of the declarations, pleadings, and 8 discovery that demonstrate absence of a genuine issue of material fact. See Celotex Corp. 9 v. Catrett, 477 U.S. 317, 323 (1986). The moving party has “the burden of showing the 10 absence of a genuine issue as to any material fact, and for these purposes the material it 11 lodged must be viewed in the light most favorable to the opposing party.” Adickes v. S. 12 H. Kress & Co., 398 U.S. 144, 157 (1970). A fact is material if it could affect the 13 “outcome of the suit” under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 14 242, 248 (1986). A dispute about a material fact is genuine if there is sufficient evidence 15 for a reasonable jury to return a verdict for the non-moving party. See id. 16 If the moving party meets its burden, the nonmoving party must go beyond the 17 pleadings and, by its own evidence or by citing appropriate materials in the record, show 18 by sufficient evidence that there is a genuine dispute for trial. See Celotex, 477 U.S. at 19 324. The nonmoving party “must do more than simply show that there is some 20 metaphysical doubt as to the material facts . . ..” Matsushita Elec. Indus. Co. v. Zenith 21 Radio Corp., 475 U.S. 574, 587 (1986). A “scintilla of evidence” in support of the 22 nonmoving party’s position is insufficient; rather, “there must be evidence on which the 23 jury could reasonably find for the [nonmoving party].” Anderson, 477 U.S. at 252. 24 Moreover, “a party cannot manufacture a genuine issue of material fact merely by 25 making assertions in its legal memoranda.” S.A. Empresa de Viacao Aerea Rio 26 Grandense v. Walter Kidde & Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1982). 27 Federal Rule of Civil Procedure 56(e) compels the non-moving party to “set out 28 specific facts showing a genuine issue for trial” and not to “rely merely on allegations or 1 denials in its own pleading.” Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co., Ltd, 475 2 U.S. at 586–87. Rule 56(c) mandates the entry of summary judgment against a party 3 who, after adequate time for discovery, fails to make a showing sufficient to establish the 4 existence of an element essential to that party’s case and on which the party will bear the 5 burden of proof at trial. See Celotex, 477 U.S. at 322–23. 6 The Ninth Circuit has “held consistently that courts should construe liberally 7 motion papers and pleadings filed by pro se inmates and should avoid applying summary 8 judgment rules strictly.” Soto v. Sweetman, 882 F.3d 865, 872 (9th Cir. 2018) (quoting 9 Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010)). While prisoners are relieved 10 from strict compliance, they still must “identify or submit some competent evidence” to 11 support their claims. Soto, 882 F.3d at 872. 12 IV. DISCUSSION 13 Plaintiff alleges he had undiagnosed “torn, or partially torn ligaments in [his] right 14 knee” and that Defendant denied his request for an MRI due to the cost. See Compl. at 15 3–4; see also Doc. No. 5 at 7. Defendant now moves for summary judgment, arguing 16 that Plaintiff is not entitled to injunctive relief. Doc. No. 41 at 22. Defendant also asserts 17 that he was not deliberately indifferent to Plaintiff’s medical needs, or alternatively, that 18 he is entitled to qualified immunity. Id. at 14, 23. 19 A. Injunctive Relief 20 Defendant argues that Plaintiff’s request for injunctive relief is both vague and 21 moot. See Doc. No. 41 at 22–23. According to the Complaint, Plaintiff seeks to enjoin 22 Defendant “from denying [him] proper medical care.” Compl. at 7. However, Plaintiff 23 has since been transferred from CSP to LAC and Defendant still works at CSP. See Ko 24 Decl. ¶¶ 2, 22. As such, Plaintiff’s request for injunctive relief against Defendant is 25 moot. See, e.g., Gilbert v. Fernald, No. CV 20-1269-SVW (KS), 2021 U.S. Dist. LEXIS 26 78079, at *9 (C.D. Cal. Mar. 4, 2021) (citing Cockcroft v. Kirkland, 548 F. Supp. 2d 767, 27 778 (N.D. Cal. 2008) (“Cockcroft’s transfer to another prison make his injunctive relief 28 requests moot.”)). Moreover, as Dr. Ko is the only named defendant, the Court lacks the 1 authority to issue any injunctive relief as to any other doctors or prison officials at LAC. 2 Accordingly, the Court GRANTS Defendant’s motion on this basis and DISMISSES 3 Plaintiff’s request for injunctive relief. 4 B. Scope of the Complaint 5 At the outset, the Court begins by addressing certain evidence and allegations that 6 the Court finds are outside the scope of the Complaint. In opposition to Defendant’s 7 motion, Plaintiff has come forth with evidence that he told various persons at CSP that he 8 was in extreme knee pain after the February 22, 2019 appointment with Defendant. See, 9 e.g., Doc. No. 49-3 (“Pl. Decl.”) ¶ 9 (“I notified R.N. Alina Martinez at least (2) different 10 times that is a minimum of (1) times medical staff was notified.”). He also contends that 11 he told Defendant some 4–6 times following the initial appointment: “My knee is killing 12 me! I have pain so bad I cannot sleep!” Pl. Decl. ¶ 6. Plaintiff later avers that he 13 reported his severe pain and lack of sleep to Defendant “at least 5–6 times.” Pl. Decl. ¶ 9. 14 Plaintiff asserts that each time Defendant stated: “You are not here about your knee sir, 15 you already 602’d me we are here for other matters!” Pl. Decl. ¶ 7. Defendant, on the 16 other hand, contends that Plaintiff never raised the issue of his knee after the initial 17 appointment. Ko Decl. ¶ 14. To that end, Plaintiff asserts that “[a]ll of these 18 [complaints] were ignored by Primary care Physician Dr. Ko.” Pl. Decl. ¶ 9. Plaintiff 19 vigorously argues that Defendant failed to provide follow-up care out of 20 “vindictiveness”—because Plaintiff “dared to 602 Defendant.” Doc. No. 49 at 13, 16. 21 Plaintiff also contends in his sur-reply that this case is not limited to one day or one 22 appointment but is based upon “a pattern of deliberate indifference by Defendant and 23 staff.” See Doc. No. 53 at 2. 24 True, this evidence may reveal a triable issue of fact as to whether Defendant knew 25 Plaintiff was in continuous pain following the February 22, 2019 appointment. This 26 evidence might also raise a triable issue of fact as to whether Defendant retaliated against 27 Plaintiff for filing a grievance as a result of that appointment. However, the Complaint 28 contains no allegations regarding a pattern of deliberate indifference or any subsequent 1 failure to provide adequate medical care and therefore the Court agrees with Defendant 2 that these contentions are outside the scope of the Complaint. See Doc. No. 52 at 7. 3 The Complaint is limited to one alleged act of deliberate indifference: Defendant’s 4 decision to not order an MRI at the February 22, 2019 appointment. See Compl. While 5 Plaintiff contends in his Complaint that he is in ongoing pain, see id. at 4, he does not 6 allege that Defendant knew the pain was ongoing or that he knew Plaintiff needed 7 additional care. Further, there are no allegations that Defendant disregarded this 8 information (for retaliatory reasons or otherwise) and instead continued with an allegedly 9 ineffective treatment plan. Instead, as the Court noted in its Screening Order, Plaintiff 10 pleads a claim against Defendant based upon the allegations that “he has undiagnosed 11 ‘torn, or partially torn ligaments in [his] right knee,’ and that the only reason those 12 conditions have not been diagnosed is Defendant Ko’s concerns about the costs of 13 ordering an MRI,” Doc. No. 5 at 7 (quoting Compl. at 4), and only those allegations 14 survived screening. 15 Although pro se prisoner pleadings are to be read and construed liberally, the 16 Court cannot say that the Complaint put Defendant on notice that Plaintiff was 17 challenging any care other than the initial denial of an MRI. In order to bring these 18 allegations within the scope of the Complaint, the Court would need to supply essential, 19 missing elements, such as that Plaintiff told Defendant he was in pain and that Defendant 20 chose to do nothing and/or that Defendant chose to do nothing in retaliation for the 21 grievance. The Court cannot read these essential allegations into the Complaint and to do 22 so would be to expand this case beyond Defendant’s notice. See Ivey v. Bd. of Regents of 23 the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) (stating that a liberal interpretation 24 of a civil rights complaint may not supply essential elements of the claim that were not 25 initially pleaded); see also Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968–69 26 (9th Cir. 2006) (holding that a plaintiff may not raise new allegations in opposition to a 27 motion for summary judgment where the complaint does not give a defendant proper 28 notice of those allegations). Moreover, the grievance Plaintiff exhausted prior to bringing 1 this case, transcribed in full below, was filed five days after the February 22, 2019 2 appointment and similarly makes no mention of any alleged subsequent failure to provide 3 care. See Martin Ex. B (dated 2/27/2019). Therefore, even assuming the Court was 4 inclined to read these allegations into the Complaint, they would not be exhausted. 5 Accordingly, the Court declines to consider these new allegations. See Singh v. 6 Nicolas, No. 2: 19-cv-2048 KJN P, 2022 U.S. Dist. LEXIS 177427, at *39 (E.D. Cal. 7 Sep. 28, 2022) (declining to consider new claims regarding the failure to prescribe a 8 cotton ball and retaliation for filing a grievance, raised for the first time in opposition to 9 summary judgment). The Court therefore proceeds by assessing solely whether 10 Defendant’s decision to not order an MRI on February 22, 2019 violated Plaintiff’s 11 Eighth Amendment right to adequate medical care. 12 C. Eighth Amendment Deliberate Indifference 13 The Eighth Amendment prohibits punishment that involves the “unnecessary and 14 wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 103 (1976) (quoting Gregg 15 v. Georgia, 428 U.S. 153, 173 (1976)); Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 16 2004). The Eighth Amendment’s Cruel and Unusual Punishment Clause is violated when 17 prison officials provide inadequate medical care in a manner that is deliberately 18 indifferent to a prisoner’s serious medical needs. See Estelle, 429 U.S. at 105. Medical 19 needs include a prisoner’s “physical, dental, and mental health.” Hoptowit v. Ray, 682 20 F.2d 1237, 1253 (9th Cir. 1982). 21 To show “cruel and unusual” punishment under the Eighth Amendment, Plaintiff 22 must point to evidence in the record from which a trier of fact might reasonably conclude 23 that Defendant’s medical treatment placed him at risk of “objectively, sufficiently 24 serious” harm and that Defendant had “sufficiently culpable state[s] of mind” when he 25 either provided or denied him medical care. Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th 26 Cir. 1995) (internal quotations omitted). Thus, there is both an objective and a subjective 27 component to an actionable Eighth Amendment violation. Clement v. Gomez, 298 F.3d 28 898, 904 (9th Cir. 2002); Toguchi, 391 F.3d at 1057 (“To establish an Eighth Amendment 1 violation, a prisoner ‘must satisfy both the objective and subjective components of a two- 2 part test.’”) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002)). 3 The objective component is generally satisfied so long as the prisoner alleges facts 4 to show that his medical need is sufficiently “serious” such that the “failure to treat [that] 5 condition could result in further significant injury or the unnecessary and wanton 6 infliction of pain.” Clement, 298 F.3d at 904 (quotations omitted); see also Doty v. 7 County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994) (“serious” medical conditions are 8 those a reasonable doctor would think worthy of comment, those which significantly 9 affect the prisoner’s daily activities, and those which are chronic and accompanied by 10 substantial pain). 11 The subjective component requires Plaintiff to demonstrate that Defendant had the 12 culpable mental state: “‘deliberate indifference’ to a substantial risk of serious harm.” 13 Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) (quoting Farmer v. Brennan, 511 14 U.S. 825, 835 (1994)). Deliberate indifference is evidenced only when “the official 15 knows of and disregards an excessive risk to inmate health or safety; the official must 16 both be aware of the facts from which the inference could be drawn that a substantial risk 17 of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837; 18 Toguchi, 391 F.3d at 1057. Deliberate indifference “may appear when prison officials 19 deny, delay or intentionally interfere with medical treatment, or it may be shown by the 20 way in which prison physicians provide medical care.” Hutchinson v. United States, 838 21 F.2d 390, 394 (9th Cir. 1988). 22 1. Objectively Serious Injury 23 Defendant first argues that Plaintiff did not present with a serious medical need at 24 the February 22, 2019 appointment. See Doc. No. 41 at 15. Plaintiff argues that his 25 injury was sufficiently serious because he “has/had” a torn lateral meniscus, which causes 26 daily, constant pain that is so severe it causes lack of sleep. See Doc. No. 49 at 3. 27 It is undisputed that on February 6, 2019, while at CSP, Plaintiff sustained an 28 injury to his right knee while playing handball. Def. Ex. D. On February 9, 2019, 1 Plaintiff requested medical treatment, Def. Ex. JJ, and was seen by Nurse Manaig on 2 February 11, 2019. Def. Ex. D. In his request, Plaintiff reported “EXTREME 3 PAIN/DUE TO POSSIBLY RE-TEARING LIGAMENTS, PER PATIENT.” Id. Nurse 4 Manaig recorded “Yes actual or suspected pain” to the question of “Pain Present.” Id. 5 Nurse Manaig commented that Plaintiff had “torn [his] ACL with repair [in] 1986.” Id. 6 Plaintiff reported that his pain was a level 7 on the one to 10 numeric pain scale. Id. 7 Nurse Manaig recorded that Plaintiff’s right knee had an old surgical scar, and that 8 Plaintiff had “tenderness when fully flexing left knee.”2 Id. Nurse Manaig also recorded 9 that there was no swelling, discoloration, or dislocation of the right knee. Id. At this 10 time, Nurse Manaig “deferred” assessing a treatment plan to Plaintiff’s PCP. Id. 11 Defendant, as Plaintiff’s PCP, see Koh Decl. ¶ 5, saw Plaintiff eleven days later on 12 February 22, 2019 to address the knee injury. Def. Ex. C. Plaintiff explicitly requested 13 magnetic resonance imaging (“MRI”) and/or a knee brace. Id. 14 At the appointment, Defendant recorded in full:

15 16 History of Present Illness 45-year-old man being seen Centinela State prison Charlie clinic because 2 17 weeks ago while he was playing handball he twisted his right knee. He was 18 able to walk off the court. He tried stretching his knee out but did not keep playing at that point. It was about 6 hours later that the swelling started that 19 evening. The swelling was gone after 2 days. He states that since then his right 20 knee has been feeling stiff in the morning. He took a little bit of naproxen that the nurse gave him and feels like it did not help. The main motion that hurts 21 is when he tries to pivot on his right knee. Keeping his knee straight is the 22 most comfortable position. In the meantime he has been walking and trying to do some stretches but has not done any exercises such as squats or lunges 23 because he feels his right knee could not handle it at this point. No obvious 24 history of locking or buckling while walking. Significantly he had right knee 25 26 27 2 It is unclear if Plaintiff’s left knee, of which he did not complain, was examined. However, it appears this reference to Plaintiff’s left knee is in error. This description is in the box below “Knee, right” and is 28 1 ACL repair in 1986 without any complications after. He is asking about possible MRI or getting a knee brace. 2

3 Def. Ex. C. 4 Following this initial intake, Defendant conduct various tests. In particular, a 5 visible examination of Plaintiff’s knee, as well as Lachman’s Test, Valgus Stress Test, 6 Varus Stress Test, and McMurray’s Test. Koh Decl. ¶ 10. Based upon the physical 7 examination of Plaintiff, Defendant concluded: 8 In general he is alert and in no distress, walks and talks without any significant 9 difficulty although he seems to favor his right leg as he is walking. Focused 10 exam of his right knee shows there is no appreciable swelling. No redness. No patellar or fibular head tenderness. He is somewhat apprehensive on exam but 11 after coaching him and trying to get him to relax, Lachman’s test, valgus and 12 varus stress testing and McMurray’s test are negative. With the patient standing he is able to squat about 80% of the way. Able to raise either thigh 13 to 90 degrees while standing although he supports himself somewhat while 14 standing on his right leg. Pivot shift test overall negative on right knee although he is supporting himself as he does it. 15

16 Def. Ex. C. 17 As a result, Defendant declined to order an MRI or prescribe Plaintiff a knee 18 brace,3 explaining that he “d[id] not detect any obvious pathology” and “d[id] not see any 19 indication for MRI nor does this meet[] medical necessity or criteria for a knee brace. He 20 is functional.” Id. Defendant instead directed Plaintiff to limit “exacerbatory exercises,” 21 take 500 mg of Naproxen twice each day, and “[f]ollow-up as needed.” Id. 22 Dr. Soleimani reviewed the medical records from the February 22, 2019 23 appointment and similarly concludes that the examination “did not reveal sufficient, 24 25

26 3 The Court notes that Plaintiff did not make any allegations regarding his request for a knee brace in the 27 Complaint, nor does he address the request and denial in opposition to the present motion. Accordingly, the Court confines its analysis to whether Defendant’s decision to not order an MRI violated the Eighth 28 1 objective indicia of present injury” and that the findings were “unremarkable.” 2 Soleimani Decl. ¶ 7. 3 Thereafter, Plaintiff sought and received medical treatment some twenty-nine (29) 4 times at CSP between the February 22, 2019 appointment with Defendant and his transfer 5 to LAC on April 27, 2021. Koh Decl. ¶ 20; Def. Exs. E–GG. Plaintiff’s knee was not the 6 subject of any of these appointments. DSS No. 12. The record is replete with medical 7 records from staff who recorded that Plaintiff presented with no “actual or suspected” 8 knee pain during more than twenty (20) of those medical appointments for unrelated 9 ailments and treatments. However, the record appears to also reflect that Plaintiff 10 reported level 7 knee pain twice to prison staff after the February 2019 appointment with 11 Defendant, see Pl. Ex. A-10; Def. Exs. AA, I, and that at six of Plaintiff’s appointments 12 with Defendant, “Pain in knee” was recorded as an “Ongoing” ailment. Def. Exs. E, F, 13 L, G, H, AA. 14 Plaintiff has also put forth evidence that he continued to experience significant 15 pain and difficulty walking for some two years before ultimately receiving treatment at 16 LAC. See Doc. No. 49-3 at 4–5 (“Castillo Decl.”), 6–7 (“Panameno Decl.”). One fellow 17 inmate states that he witnessed Plaintiff “walking in favor of his right leg/knee” and that 18 Plaintiff “told [him] on several occasions he was in constant and consistent pain due to an 19 injury on hand ball court.” Castillo Decl. ¶¶ 2–3. Another inmate explains that while he 20 was in medical holding with Plaintiff at CSP, Plaintiff relayed to him 21 on several occasions that he was in EXTREME PAIN due to sports injury on 22 handball court. He also told me he was being refused proper medical care. 23 While I was in company of [Plaintiff] I could see he was in severe pain and favoring his right knee. I observed on multiple occasions while housed at 24 [CSP], [Plaintiff] limping, favoring, and also complaining of right knee pain. 25 26 Panameno Decl. ¶ 3. The evidence also reveals that Plaintiff submitted two requests for 27 his pain medication refills, complaining that he was still in severe pain from his knee 28 injury. See Def. Ex. JJ. 1 As noted, once at LAC, Plaintiff saw his PCP on September 9, 2021, who 2 prescribed him a knee brace. Def. Ex. II. Plaintiff ultimately received an MRI, 3 which revealed a torn meniscus. Pl. Ex. A-2. 4 Defendant asserts that Plaintiff injured his knee on the yard at LAC in 2021, 5 see Ko Decl. ¶ 23, seemingly arguing that Plaintiff did not present with a torn 6 meniscus in February 2019. According to the September 9, 2021 medical record, 7 Plaintiff’s “pain is exacerbated when he twisted his knee on the [LAC] yard a few 8 weeks” prior. Def. Ex. II. However, Dr. Antebi recorded at the April 18, 2022 9 MRI appointment that Plaintiff reported “hav[ing] injured the right knee while 10 playing handball in 2019.” Pl. Ex. A-2. Dr. Antebi also recorded that Plaintiff 11 reported his knee pain had been “gradually increasing” since 2019. Id. 12 As the Ninth Circuit has explained, “[i]ndications that a plaintiff has a serious 13 medical need include ‘[t]he existence of an injury that a reasonable doctor or patient 14 would find important and worthy of comment or treatment; the presence of a medical 15 condition that significantly affects an individual’s daily activities; or the existence of 16 chronic and substantial pain.’” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) 17 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059–60 (9th Cir. 1992), overruled on other 18 grounds by WMX Tecs. V. Miller, 104 F.3d 1133 (9th Cir. 1997)). Plaintiff had 19 previously torn his ACL and reported that he felt the tear had re-occurred. The 20 reasonable patient under these circumstances would believe they had been seriously 21 injured and needed treatment. 22 Further, because the Court views the evidence in Plaintiff’s favor at this juncture, 23 he is entitled to the inference that some of the damage that resulted in a tear discovered at 24 LAC in 2021 occurred while he was at CSP in 2019. Cf. Egberto v. Nev. Dep’t of Corr., 25 678 F. App’x 500, 504 (9th Cir. 2017) (finding on summary judgment that the plaintiff 26 was entitled to the “inference that at least some of the additional disc involvement 27 occurred while he was waiting to receive the MRI”). Additionally, as discussed above, 28 Plaintiff has put forth evidence that he was in chronic and substantial pain. Evidence of a 1 knee injury, resulting in chronic and severe knee pain lasting years, ultimately resulting 2 in a torn meniscus, suffices to permit a jury to find the existence of an objectively serious 3 medical need. See Jackson v. Pompan, No. C 12-6049 SI (pr), 2014 U.S. Dist. LEXIS 4 68656, at *8 (N.D. Cal. May 19, 2014) (finding that evidence of “chronic knee pain that 5 turned out to include an ACL tear” is sufficient to overcome summary judgment as to the 6 objectively serious prong). For these reasons, the Court cannot say that Plaintiff’s knee 7 injury was not objectively serious. Consequently, the Court DENIES Defendant’s 8 motion for summary judgment on this basis. 9 2. Subjectively Culpable Mental State 10 Next, Defendant argues that even assuming Plaintiff’s medical need was 11 sufficiently serious, he did not act with deliberate indifference. See Doc. No. 41 at 18. 12 Deliberate indifference to serious medical needs of prisoners “may be manifested 13 in two ways. It may appear when prison officials deny, delay or intentionally interfere 14 with medical treatment, or it may be shown by the way in which prison physicians 15 provide medical care.” Hutchinson, 838 F.2d at 394 (citing Estelle, 429 U.S. at 104–05). 16 In the medical care context, the standard requires more than mere misdiagnosis, 17 medical malpractice, or even gross negligence. See Wood v. Housewright, 900 F.2d 18 1332, 1334 (9th Cir. 1990). An “inadvertent [or negligent] failure to provide adequate 19 medical care” alone does not state a claim under § 1983. Hutchinson, 838 F.2d at 394 20 (citing Estelle, 429 U.S. at 105). 21 The Supreme Court has noted that the decision of whether to order diagnostic tests 22 is a “matter for medical judgment.” Estelle, 429 U.S. at 107. Moreover, “[a] difference 23 of opinion between a physician and the prisoner—or between medical professionals— 24 concerning what medical care is appropriate does not amount to deliberate indifference.” 25 Colwell, 763 F.3d at 1068. Instead, “to prevail on a claim involving choices between 26 alternative courses of treatment, a prisoner must show that the chosen course of treatment 27 ‘was medically unacceptable under the circumstances’ and was chosen ‘in conscious 28 disregard of an excessive risk to the prisoner’s health.’” Toguchi, 391 F.3d at 1058 1 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). 2 The evidence, even viewed in Plaintiff’s favor, shows that Defendant’s decision to 3 not order an MRI was neither medically unacceptable under the circumstances nor in 4 conscious disregard of a substantial risk of serious injury. Plaintiff reported the following 5 to Defendant at the February 22, 2019 appointment: he twisted his right knee play 6 handball two (2) weeks prior, he was able to walk off the court but did not continue 7 playing, swelling began six (6) hours later but was gone after two (2) days, his knee felt 8 stiff in the mornings, he felt that Naproxen did not help, the main motion that hurt was 9 pivoting on his right knee, keeping his knee straight was the most comfortable, and he 10 had been walking and stretching but not doing certain exercises such as squatting or 11 lunging because he felt his knee could not handle it. Def. Ex. C. Defendant was aware of 12 Plaintiff’s 1986 ACL repair surgery, but also noted that there was no “obvious history of 13 locking or buckling while walking.” Id. 14 Plaintiff’s knee was not swollen, red, or tender. Id. Plaintiff passed all four of 15 Defendant’s pathological tests, which specifically assess possible damage to ligaments 16 and cartilage of the knee. Id.; Ko Decl. ¶ 10. Additionally, Plaintiff was “able to squat 17 about 80% of the way” and “raise either thigh to 90 degrees while standing although he 18 support[ed] himself somewhat while standing on his right leg.” Def. Ex. C. Plaintiff’s 19 pivot shift test was “overall negative on right knee” although he supported himself 20 somewhat as he did it. Id. Plaintiff was able to walk without any significant difficulty, 21 although again he seemed to favor his right leg. Id. Plaintiff was not in distress at the 22 appointment. Id. Defendant did not detect any obvious pathology. Id. Defendant 23 diagnosed Plaintiff with a knee sprain. Id. He did not order an MRI, but instead 24 prescribed Plaintiff Naproxen, and directed him to limit “activities as he could easily 25 reinjure his knee during the healing process” and follow-up as needed.4 Id. 26

27 4 It is undisputed that Plaintiff never saw Defendant again for an appointment specifically regarding his 28 1 Defendant explains that his determination that Plaintiff did not qualify for an MRI 2 was guided by the California Department of Corrections and Rehabilitation (“CDCR”) 3 regulations and policies. Ko Decl. ¶ 7. Pursuant to the CDCR, “[t]he department shall 4 only provide medical services for inmates, which are based on medical necessity and 5 supported by outcome data as effective medical care.” Def. Ex. A; see also Cal. Code 6 Regs. tit. 15, § 3350(a). “Medically Necessary means health care services that are 7 determined by the attending physician to be reasonable and necessary to protect life, 8 prevent significant illness or disability, or alleviate severe pain, . . . .” Def. Ex. A; see 9 also Cal. Code Regs. tit. 15, § 3350(b)(1). “Severe pain means a degree of discomfort 10 that significantly disables the patient from reasonable independent function.” Def. Ex. A; 11 see also Cal. Code Regs. tit. 15, § 3350(b)(4). “Significant illness and disability means 12 any medical condition that causes or may cause if left untreated a severe limitation of 13 function or ability to perform the daily activities of life or that may cause premature 14 death.” Def. Ex. A; see also Cal. Code Regs. tit. 15, § 3350(b)(5). The CDCR’s Health 15 Care Department Operations Manual similarly provides that medical imaging services are 16 to be made available if “medically necessary in order to establish diagnoses, make 17 recommendations for additional diagnostic workup, and establish treatment plans.” Def. 18 Ex. B. 19 Bearing on whether an MRI was medically necessary, Defendant notes that “all 20 four tests were negative for signs of a significant knee pathology.” Ko Decl. ¶ 10. 21 Defendant asserts that “Plaintiff’s ability to complete most of a squat, and flex his injured 22 knee to 90 degrees, further indicated a lack of significant pathology requiring medical 23 imaging.” Ko Decl. ¶ 11. Additionally, Defendant explains that “[p]ivoting is one of the 24 most difficult motions for the knee to handle” and this “test also came back negative— 25

26 to Plaintiff’s failure to seek follow-up care or Defendant’s refusal is immaterial. The question before the 27 Court is whether Defendant’s decision to not order an MRI on February 22, 2019 was medically unacceptable under the circumstances present at that time and deliberately indifferent to Plaintiff’s 28 1 while Plaintiff supported himself somewhat, the ability of his right knee to pivot 2 supported my belief that, with rest, the knee would continue its healing trajectory.” Id. 3 Therefore, according to Defendant: 4 5 At the time of our first visit, my examination revealed that the Plaintiff was able to function independently and perform the daily activities of life. While 6 Plaintiff indicated he was in pain, he could walk unassisted, perform knee 7 functions, and his knee was no longer swollen. Nothing indicated that Plaintiff was unable to eat on his own, sleep, ambulate, use the restroom, etc. Nor did 8 anything indicate that Plaintiff’s condition, which was improving, would soon 9 cause severe limitation of function or ability to perform the daily activities of life. Consequently, I determined that, on February 22, 2019, Plaintiff’s MRI 10 and knee brace requests did not meet the definition of medical necessity. 11 12 Ko Decl. ¶ 14. 13 Drs. Soleimani and Sekhon both agree that an MRI was not warranted based upon 14 the record of this examination. In particular, Dr. Soleimani explains: 15 16 Based on my review of Plaintiff’s medical record, Plaintiff was not eligible to receive an MRI for his right knee injury on February 22, 2019. Dr. Ko’s 17 examination did not reveal sufficient, objective indicia of present injury that 18 would have justified ordering an MRI at that time. In addition to the fact that Mr. Orcasitas’ knee finding were unremarkable he wouldn’t get qualified for 19 MRI request based on CDCR policies which follows Interqual criteria. Based 20 on my assessment of Dr. Ko’s examination and treatment plan of Plaintiff’s knee on February 22, 2019, and CDCR referral policies, I do not believe that 21 Dr. Ko provided unacceptable care. 22 23 Soleimani Decl. ¶ 7. 24 Additionally, Dr. Sokhon, Plaintiff’s current PCP at LAC who did ultimately order 25 an MRI, states the following: 26 Based on my review of Plaintiff’s medical record, Plaintiff was not eligible to 27 receive an MRI per CDCR Policy for his right knee injury on February 22, 28 2019, and I would have been unlikely to authorize one. When I did authorize 1 an MRI for Plaintiff’s right knee in 2021, a number of factors were present that met CDCR Interqual Criteria that were absent when Dr. Ko assessed 2 Plaintiff’s injury on February 22, 2019. Among other things, Plaintiff had 3 been suffering knee pain for years; Plaintiff reported joint locking; Plaintiff had attempted to use a knee brace and rub that were not resolving his pain 4 issues; and Plaintiff had, after his knee treatment from Dr. Ko, been diagnosed 5 with conditions that rendered over-the-counter pain medicine contraindicated here. Based on my assessment of Dr. Ko’s examination and treatment plan of 6 Plaintiff’s knee on February 22, 2019, I do not believe that dr. Ko provided 7 unacceptable care.

8 9 Sekhon Decl. ¶ 7. 10 This strongly if not conclusively demonstrates that Defendant’s course of treatment 11 was medically acceptable under the circumstances. However, according to Plaintiff, 12 when he asked Defendant for an MRI at the February 22, 2019 appointment, Defendant 13 responded that “M.R.I.’s are too expensive as long as I can walk to eat that’s the only 14 care he is required to give me.” Pl. Decl. ¶ 1. Plaintiff asserts that he then told 15 Defendant, “This is America, I am a citizen of the [U]nited [S]tates sir! I am in 16 EXTREME PAIN I NEED HELP” and Defendant responded: “I am Doctor you are 17 NOT, I detect no injury!” Id. ¶ 2. Plaintiff then questioned where Defendant went to 18 medical school, id ¶ 3, and Defendant asked Plaintiff to leave, id. ¶ 4. Plaintiff then told 19 Defendant that he would write him up, and Defendant said “Fine!” Id. ¶ 5. 20 Five days later, on February 27, 2019, Plaintiff submitted a Form 602 grievance. 21 In full: 22 I do not go to Dr. ever. I recently injured my right knee aggr[a]vating a[n] old 23 injury in which I tore my ACL ligament in my right knee. I had major knee 24 surgery [to] repair that years ago. Playing hand ball I twisted & felt like I retore some ligament. I’m in severe pain day & night. Dr. Here will not order 25 a MRI to see damage to my knee because in his words “a MRI is really 26 expensive.” I am currently in severe pain day & night. This Dr. Basically gave me generic pain-killers & said the pain will stop after 4 or 5 months? After 27 my original injury & surgery I was given [ ] knee brace in order to prevent[] 28 aggr[a]vating or even reinjuring my knee. Dr. here says CDCR will not 1 provide it unless ordered by a Dr? And he’s refusing to do so. I’m in severe pain, not being properly examined (with MRI or orthopedic specialist) nor is 2 my pain being helped [ ] by generic pain meds “Tylenol.” I am suffering daily 3 in severe pain – I am not properly being examined or being provided adequate medical care. I humbly but urgently ask that this situation be corrected 4 immediately! Thank you for your time. 5 6 Pl. Ex. 7. 7 Although Plaintiff has raised a question of fact as to whether Defendant considered 8 the cost of an MRI in making his decision, this dispute is insufficient to overcome 9 summary judgment on this record. For one, the argument assumes that an MRI was 10 medically necessary, and the record reveals that it was not. Second, other courts have 11 held that consideration of medical costs alone does not amount to deliberate indifference. 12 See Nava v. Velardi, No. 15cv1156-AJB(BLM), 2018 U.S. Dist. LEXIS 134766, at *40– 13 41 (S.D. Cal. Aug. 9, 2018) (first citing Peralta v. Dillard, 744 F.3d 1076, 1084 (9th Cir. 14 2014) (en banc) (“A prison medical official who fails to provide needed treatment 15 because he lacks the necessary resources can hardly be said to have intended to punish 16 the inmate.”); then citing Patterson v. Lilley, No. 02 Civ. 6056 (NRB), 2003 U.S. Dist. 17 LEXIS 11097, at *19 (S.D.N.Y. June 20, 2003) (granting defendants’ motion to dismiss 18 and “not[ing] that consideration of cost factors in choosing a course of treatment of a 19 prisoner is, in and of itself, no more violative of a prisoner’s constitutional rights than is, 20 for example, the consideration of the cost of providing prescription drug coverage to non- 21 incarcerated recipients of Medicare”); then citing Caines v. Hendricks, No. 05-1701 22 (JAP), 2007 U.S. Dist. LEXIS 9453, at *21 (D.N.J. Feb. 8, 2007) (granting defendants’ 23 motion for summary judgment and noting that “it is not a constitutional violation for 24 prison authorities to consider the cost implications of various procedures, which 25 inevitably may result in various tests or procedures being deferred unless absolutely 26 necessary. The deliberate indifference standard ‘does not guarantee prisoners the right to 27 be entirely free from the cost considerations that figure in the medical-care decisions 28 made by most non-prisoners in our society.’”) (first quoting Reynolds v. Wagner, 128 1 F.3d 166, 175 (3d Cir. 1997); and then citing Brightwell v. Lehman, No. 03-205J, 2005 2 U.S. Dist. LEXIS 48050, at *23 (W.D. Pa. Dec. 5, 2005) (“Resources are not infinite and 3 reasonable allocation of those resources, taking into account cost, does not amount to 4 deliberate indifference even if a prisoner does not receive the most costly treatments or 5 his treatment of choice.”), report and recommendation adopted by Brightwell v. Lehman, 6 Civil Action No. 03 - 205J, 2006 U.S. Dist. LEXIS 98862, at *4 (W.D. Pa. Apr. 10, 7 2006)); and then citing Winslow v. Prison Health Servs., 406 F. App’x 671, 674 (3d Cir. 8 2011) (determining allegation that a doctor treated plaintiff with a hernia belt rather than 9 surgery based on the cost of surgery was insufficient to state a claim of deliberate 10 indifference because “the naked assertion that Defendants considered cost in treating 11 [plaintiff’s] hernia does not suffice to state a claim for deliberate indifference as prisoners 12 do not have a constitutional right to limitless medical care, free of the cost constraints 13 under which law-abiding citizens receive treatment”)). Here, the record reveals that 14 Plaintiff was not denied an MRI solely because of its cost but because Defendant found 15 that it was not medically necessary. Accordingly, Plaintiff’s disagreement with 16 Defendant’s decision to not order an MRI on February 22, 2019 is merely a difference of 17 opinion that does not amount to deliberate indifference. 18 In sum, there is a question of fact as to when Plaintiff tore his meniscus, for 19 example, whether the tear occurred at CSP on February 6, 2019, at LAC in August 2021, 20 or sometime in between. However, the record reveals no factual issues regarding 21 Defendant’s alleged deliberate indifference: Defendant’s chosen treatment—including to 22 not order an MRI—was not medically unacceptable under the circumstances. That 23 Defendant may have commented on or considered the cost of ordering an MRI does not 24 raise a triable issue sufficient to overcome the overwhelming evidence demonstrating that 25 Defendant came to the medically sound decision on February 22, 2019 that Plaintiff did 26 not qualify for an MRI under CDCR policy. Further, even assuming Plaintiff presented 27 with a torn meniscus on February 22, 2019, Defendant’s failure to detect the injury would 28 at most support a finding of negligence or malpractice, both of which are insufficient to 1 ||succeed on an Eighth Amendment medical care claim. There is no evidence in the record 2 Defendant subjectively knew on February 22, 2019 that if he did not order an MRI 3 there was a substantial risk that Plaintiff would suffer serious harm and that Defendant 4 || consciously disregarded that risk.> Accordingly, the Court GRANTS summary judgment 5 ||in Defendant’s favor. 6 Because the Court finds that Defendant 1s entitled to summary judgment as to the 7 merits of Plaintiff's claim, it need not reach Defendant’s alternative request for qualified 8 |}immunity. See Saucier v. Katz, 533 U.S. 194, 201 (2001) (‘If no constitutional night 9 || would have been violated were the allegations established, there is no necessity for 10 || further inquiries concerning qualified immunity.”); County of Sacramento v. Lewis, 523 11 || U.S. 833, 841 n.5 (1998) (“[The better approach to resolving cases in which the defense 12 || of qualified immunity is raised is to determine first whether the plaintiff has alleged the 13 || deprivation of a constitutional right at all.”’). 14 V. CONCLUSION 15 Based on the foregoing, the Court GRANTS Defendant’s motion for summary 16 ||/judgment. Consequently, the Court DENIES Plaintiff's motion for appointment of 17 ||counsel. The Clerk of Court is directed to enter judgment in Defendant’s favor and close 18 || this case. 19 IT IS SO ORDERED. 20 || Dated: December 7, 2022 21 BWMiidel UU - / hipllr 22 HON. MICHAEL M. ANELLO 23 United States District Judge 24 25 26 5 To the extent Plaintiff seeks to demonstrate Defendant’s alleged deliberate indifference by pointing to 27 || evidence of Defendant’s knowledge of Plaintiff's continued pain and failure to provide follow-up care 3g the appointment, these allegations are beyond the scope of the Complaint and this evidence does not bear on Defendant’s culpability and state of mind on February 22, 2019.