1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Case No.: 3:23-cv-00479-CSD 4 MARKIECE PALMER, Order 5 Plaintiff Re: ECF Nos. 48, 49, 51, 54 6 v.
7 TIM GARRETT, et al.,
8 Defendants
9 Before the court are cross-motions for summary judgment filed by Plaintiff and 10 Defendants. (ECF Nos. 48, 49, 51, 54.) The parties have filed their responses and replies. (ECF 11 Nos. 55, 58, 63, 64.) 12 For the reasons set forth below, Defendants’ motion is granted, and Plaintiff’s motion is 13 denied. 14 I. BACKGROUND 15 Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC), 16 proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. The events giving 17 rise to this action took place while Plaintiff was housed at Lovelock Correctional Facility. 18 The court screened Plaintiff’s complaint and allowed Plaintiff to proceed with the 19 following claims: (1) an Eighth Amendment claim for deliberate indifference to a serious 20 medical need against Defendants Dr. Dana Marks, Dr. David Rivas, Director of Nursing (DON) 21 Erin Parks, and former Warden Tim Garrett; and (2) a Fourteenth Amendment equal protection 22 claim against Dr. Marks. The parties now move for summary judgment. 23 1 The record reflects the following undisputed facts. In January 2019, Plaintiff was referred 2 to an ophthalmologist for evaluation of suspected glaucoma. (ECF No. 48-1 at 2-3, 5.) Following 3 testing, Plaintiff was diagnosed with mild glaucoma and started on Latanoprost, artificial tears, 4 and fish oil. (ECF No. 48-2 at 45; ECF No. 51-1 at 76-80.) In January 2020, the optometrist who
5 examined Plaintiff described his glaucoma as “mild stable,” and continued Plaintiff on the same 6 medication regime. (ECF No. 48-2 at 46-47.) 7 On January 28, 2020, Plaintiff was transferred to LCC. (ECF No. 49-1 at 2.) Following 8 his transfer, Plaintiff continued to receive Latanoprost, artificial tears, and fish oil. (See ECF No. 9 51-1.) 10 On September 13, 2021, Plaintiff submitted a medical kite stating: “Currently [I’m] 11 receiving Artificial tears but they burn my eyes really bad to the point it’s hard to keep using. I 12 would like to change my prescription to Xiidra or any other drops that don’t burn when applied.” 13 (ECF No. 48-1 at 11; ECF No. 51-1 at 218.) Defendant Marks responded: “It’s from the smoke, 14 and the other medication won’t help.” (ECF No. 48-1 at 11; ECF No. 51-1 at 218.)
15 On September 23, 2021, Plaintiff submitted another medical kite, this one stating: “I need 16 to see an optometrist, my eyes hurt and I have glaucoma. I have not seen an eye doctor in almost 17 two years.” (ECF No. 48-1 at 12; ECF No. 51-1 at 215.) The response to this grievance was: 18 “We do not have an eye dr [at] this time. You’ve been added to the list to be seen.” (ECF No. 48- 19 1 at 12; ECF No. 51-1 at 215.) 20 On May 13, 2022, Plaintiff submitted a medical kite stating: “I need to see an 21 optometrist, my eyes burn and hurt. I have glaucoma and haven’t seen an eye doctor in over two 22 years. Also the artificial tears [I’m] currently receiving burn when applied from the last five 23 years.” (ECF No. 51-1 at 199.) Apparently in response, Plaintiff was seen by an optometrist on 1 July 9, 2022. The optometrist recommended preservative-free artificial tears and Latanoprost and 2 a referral for glaucoma testing. (ECF No. 48-1 at 9; ECF No. 51-1 at 65-68.) After this exam, 3 Marks began prescribing preservative-free artificial tears for Plaintiff. (ECF No. 51-1 at 28, 62.) 4 Marks also requested the outside consult for glaucoma testing, which was scheduled for April 22,
5 2023, with an ophthalmologist. (See id. at 64, 67-68.) 6 In December 2022, Marks discontinued Plaintiff’s fish oil prescription, to which Plaintiff 7 objected. (ECF No. 48-1 at 13; ECF No. 51-1 at 6, 9.) 8 On January 23, 2023, Plaintiff submitted a grievance complaining that he had seen an 9 optometrist only once in the last three years, that the artificial tears burned his eyes to the point it 10 was difficult to keep using them, and about the denial of fish oil. (ECF No. 48-1 at 16-18.) The 11 grievance was denied at the informal level in September 2023 with a response that “fish oil was 12 not approved due to it is a nonformulary medication.” (Id. at 15-16.) The final denial, in April 13 2024, was on similar grounds and further pointed out that Plaintiff was receiving the necessary 14 treatment for his condition, which was the Latanoprost drops. (Id. at 20.)
15 On April 22, 2023, Plaintiff missed his ophthalmology testing appointment when he was 16 transported to the wrong location. (ECF No. 48-1 at 24; ECF No. 51-1 at 54.) At some point after 17 that, the ophthalmologist Plaintiff was supposed to have seen stopped accepting glaucoma 18 patients from LCC. (ECF No. 49-4 at 2, 13, 38.) 19 On August 3, 2023, and August 4, 2023, Plaintiff submitted two medical kites requesting 20 to be seen by an ophthalmologist for his glaucoma. (ECF No. 48-1 at 31, 33.) The response 21 indicated that medical was aware of Plaintiff’s situation and working on getting a provider. (Id. 22 at 33.) 23 1 On September 5, 2023, Plaintiff underwent testing for his glaucoma (ECF No. 51-1 at 67, 2 69-71.) 3 On February 18, 2024, Plaintiff was examined by an optometrist; his glaucoma was 4 classified as mild, and the doctor recommended continuing Latanoprost and annual testing. (ECF
5 No. 51-1 at 64.) 6 II. LEGAL STANDARD 7 The legal standard governing this motion is well settled: a party is entitled to summary 8 judgment when “the movant shows that there is no genuine issue as to any material fact and the 9 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. 10 v. Cartrett, 477 U.S. 317, 330 (1986) (citing Fed. R. Civ. P. 56(c)). An issue is “genuine” if the 11 evidence would permit a reasonable jury to return a verdict for the nonmoving party. Anderson v. 12 Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A fact is “material” if it could affect the outcome 13 of the case. Id. at 248 (disputes over facts that might affect the outcome will preclude summary 14 judgment, but factual disputes which are irrelevant or unnecessary are not considered). On the
15 other hand, where reasonable minds could differ on the material facts at issue, summary 16 judgment is not appropriate. Anderson, 477 U.S. at 250. 17 “The purpose of summary judgment is to avoid unnecessary trials when there is no 18 dispute as to the facts before the court.” Northwest Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 19 F.3d 1468, 1471 (9th Cir. 1994) (citation omitted); see also Celotex, 477 U.S. at 323-24 (purpose 20 of summary judgment is “to isolate and dispose of factually unsupported claims”); Anderson, 21 477 U.S. at 252 (purpose of summary judgment is to determine whether a case “is so one-sided 22 that one party must prevail as a matter of law”). 23 1 In considering a motion for summary judgment, all reasonable inferences are drawn in 2 the light most favorable to the non-moving party. In re Slatkin, 525 F.3d 805, 810 (9th Cir. 2008) 3 (citation omitted); Kaiser Cement Corp. v. Fischbach & Moore Inc., 793 F.2d 1100, 1103 (9th 4 Cir. 1986). That being said, “if the evidence of the nonmoving party “is not significantly
5 probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-250 (citations 6 omitted). The court’s function is not to weigh the evidence and determine the truth or to make 7 credibility determinations. Celotex, 477 U.S. at 249, 255; Anderson, 477 U.S. at 249. 8 In deciding a motion for summary judgment, the court applies a burden-shifting analysis. 9 “When the party moving for summary judgment would bear the burden of proof at trial, ‘it must 10 come forward with evidence which would entitle it to a directed verdict if the evidence went 11 uncontroverted at trial.’… In such a case, the moving party has the initial burden of establishing 12 the absence of a genuine [dispute] of fact on each issue material to its case.” C.A.R. Transp. 13 Brokerage Co. v. Darden Rest., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (internal citations 14 omitted).
15 In contrast, when the nonmoving party bears the burden of proving the claim or defense, 16 the moving party can meet its burden in two ways: (1) by presenting evidence to negate an 17 essential element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving 18 party cannot establish an element essential to that party’s case on which that party will have the 19 burden of proof at trial. See Celotex Corp. v. Cartrett, 477 U.S. 317, 323-25 (1986). 20 If the moving party satisfies its initial burden, the burden shifts to the opposing party to 21 establish that a genuine dispute exists as to a material fact. See Matsushita Elec. Indus. Co. v. 22 Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party need not establish a genuine 23 dispute of material fact conclusively in its favor. It is sufficient that “the claimed factual dispute 1 be shown to require a jury or judge to resolve the parties’ differing versions of truth at trial.” 2 T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) 3 (quotation marks and citation omitted). The nonmoving party cannot avoid summary judgment 4 by relying solely on conclusory allegations that are unsupported by factual data. Matsushita, 475
5 U.S. at 587. Instead, the opposition must go beyond the assertions and allegations of the 6 pleadings and set forth specific facts by producing competent evidence that shows a genuine 7 dispute of material fact for trial. Celotex, 477 U.S. at 324. 8 III. DISCUSSION 9 A. Eighth Amendment Deliberate Indifference 10 “The government has an ‘obligation to provide medical care for those whom it is 11 punishing by incarceration,’ and failure to meet that obligation can constitute an Eighth 12 Amendment violation cognizable under § 1983.” Colwell v. Bannister, 753 F.3d 1060, 1066 (9th 13 Cir. 2014) (citing Estelle v. Gamble, 429 U.S. 97, 103-05 (1976)). 14 A prisoner can establish an Eighth Amendment violation arising from deficient medical
15 care if he can prove that prison officials were deliberately indifferent to a serious medical need. 16 Estelle, 429 U.S. at 104. A claim for deliberate indifference involves the examination of two 17 elements: “the seriousness of the prisoner’s medical need and the nature of the defendant’s 18 response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), rev’d on other 19 grounds, WMX Tech, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). “A ‘serious’ medical need 20 exists if the failure to treat a prisoner’s condition could result in further significant injury or the 21 ‘unnecessary and wanton infliction of pain.’” McGuckin, 974 F.2d at 1059 (citing Estelle, 429 22 U.S. at 104). 23 1 Examples of conditions that are “serious” in nature include “an injury that a reasonable 2 doctor or patient would find important and worthy of comment or treatment; the presence of a 3 medical condition that significantly affects an individual’s daily activities; or the existence of 4 chronic and substantial pain.” Id. at 1059-60; see also Lopez v. Smith, 203 F.3d 1122, 1131 (9th
5 Cir. 2000) (citation omitted) (finding that inmate whose jaw was broken and mouth was wired 6 shut for several months demonstrated a serious medical need). 7 If the medical need is “serious,” the plaintiff must show that the defendant acted with 8 deliberate indifference to that need. Estelle, 429 U.S. at 104. “Deliberate indifference is a high 9 legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). Deliberate indifference 10 entails something more than medical malpractice or even gross negligence. Id. Inadvertence, by 11 itself, is insufficient to establish a cause of action under section 1983. McGuckin, 974 F.2d at 12 1060. Instead, deliberate indifference is only present when a prison official “knows of and 13 disregards an excessive risk to inmate health or safety; the official must both be aware of the 14 facts from which the inference could be drawn that a substantial risk of serious harm exists, and
15 he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 16 Deliberate indifference exists when a prison official “den[ies], delay[s] or intentionally 17 interfere[s] with medical treatment, or it may be shown by the way in which prison officials 18 provide medical care.” Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir. 2013) (internal 19 quotation marks and citation omitted). “‘[A] prisoner need not prove that he was completely 20 denied medical care’ in order to prevail” on a claim of deliberate indifference. Snow v. 21 McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (quoting Lopez, 203 F.3d at 1132), overruled on 22 other grounds, Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014). Where delay in receiving 23 medical treatment is alleged, a prisoner must demonstrate that the delay led to further injury. 1 Stewart v. Aranas, 32 F.4th 1192, 1195 (9th Cir. 2022) (citing Shapley v. Nev. Bd. of State 2 Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)); McGuckin, 974 F.2d at 1060. 3 “A difference of opinion between a physician and the prisoner—or between medical 4 professionals—concerning what medical care is appropriate does not amount to deliberate
5 indifference.” Snow, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). 6 Instead, to establish deliberate indifference in the context of a difference of opinion between a 7 physician and the prisoner or between medical providers, the prisoner “‘must show that the 8 course of treatment the doctors chose was medically unacceptable under the circumstances’ and 9 that the defendants ‘chose this course in conscious disregard of an excessive risk to plaintiff’s 10 health.’“ Snow, 681 F.3d at 988 (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). 11 “The provision of some medical treatment, even extensive treatment over a period of 12 years, does not immunize officials from the Eighth Amendment’s requirements.” Edmo v. 13 Corizon 935 F.3d 757, 793 (9th Cir. 2019) (citation omitted). 14 As Defendants point out, Plaintiff has received treatment for his glaucoma – Latanoprost
15 -- since being diagnosed in 2019, and he does not claim to have ever been denied Latanoprost. 16 (See ECF No. 49-5 at 65.) Rather, what Plaintiff alleges Defendants failed to do was: (1) provide 17 different artificial tears after he complained about their burning; (2) continue providing him with 18 fish oil; and (3) allow him to see an ophthalmologist for treatment of his dry eye and glaucoma.1 19 i. Artificial Tears 20 Plaintiff claims he was prescribed and used artificial tears for eight years and made 21 complaints about the burning they caused throughout that time. However, the record does not 22
23 1 Plaintiff also alleges Defendants interfered with his treatment plan, but this claim is based on Defendants’ other alleged failures and so it will not be analyzed separately. 1 support this claim. The earliest grievance submitted into evidence is from September 2021, and 2 there are three complaints during the relevant time period in total: the September 2021 kite, the 3 May 2022 kite, and the grievance commenced in January 2023. Aside from those three 4 documents, the record is full of requests from Plaintiff requesting a refill of his artificial tears --
5 in some cases going so far as to emphasize how much he needed them. (See ECF No. 51-1 at 7, 6 8, 14, 20, 153, 154, 155, 156, 158, 163, 166, 167, 170, 171, 172, 173, 176, 177, 181, 182, 191, 7 196, 198; id. at 173 (“I am almost out of artificial tears and would like a refill because my eyes 8 are really dry and causing head aches.”); id. at 5 (kite dated January 4, 2023, stating: “[T]his is 9 my 3rd requesting my artificial tears. I have chronic “Dry Eyes” and failure to lubricate 10 consistently causes blood spots to appear on my eyes. And they burn and feel like sand is being 11 rubbed in my eyes.”). 12 Plaintiff does not provide any evidence that use of the drops resulted in “unnecessary and 13 wanton infliction of pain” or further significant injury. Rather, the evidence before the court is 14 that the drops burned “when applied.” Other courts have considered similar types of complaints
15 and have concluded that this type of temporary eye irritation does not rise to the level of a 16 serious medical need for purposes of the Eighth Amendment. See Heard v. Gregg County Med. 17 Staff, No. 6:24CV387, 2024 WL 5278868, at *4 (E.D. Tex. Nov. 20, 2024), report and 18 recommendation adopted, No. 6:24-CV-387-JDK-JDL, 2025 WL 28249 (E.D. Tex. Jan. 3, 2025) 19 (“[T]his Court has previously held that temporary burning[,] swelling and irritation in an 20 inmate’s eyes did not constitute the substantial risk of serious harm required by the objective 21 prong.”) (internal punctuation omitted); Kimble v. Lexus of New Orleans, No. CV 18-7918, 2019 22 WL 1472869, at *6 (E.D. La. Jan. 11, 2019), supplemented, No. CV 18-7918, 2019 WL 1474328 23 (E.D. La. Feb. 28, 2019), and report and recommendation adopted, No. CV 18-7918, 2019 WL 1 1469442 (E.D. La. Apr. 3, 2019), and report and recommendation adopted, No. CV 18-7918, 2 2019 WL 1469442 (E.D. La. Apr. 3, 2019) (“[I]t cannot be concluded that the periodic burning, 3 eye dryness and vision problems that plaintiff described presented a serious medical need that 4 posed a substantial risk of harm for purposes of constitutional analysis.”). Further, when Plaintiff
5 was examined in May 2024 following more complaints of burning, no eye injury, redness or 6 drainage was noted. (ECF No. 48-1 at 38-40.) Accordingly, the court concludes the burning 7 caused by Plaintiff’s artificial tears was not a serious medical need within the meaning of the 8 Eighth Amendment. 9 Even if the burning did rise to the level of a serious medical need, however, the evidence 10 does not support a conclusion that Defendants acted with deliberate indifference. Plaintiff argues 11 that Defendants were or should have been aware of a substantial risk to Plaintiff’s safety because 12 Plaintiff had been complaining about the burning for years. As already noted, the record lacks 13 any complaints about burning prior to September 2021. The evidence establishes that Defendant 14 Marks learned of Plaintiff’s complaint in September 2021, at a time when it is undisputed
15 significant wildfires were burning in the area. Marks concluded that a burning sensation reported 16 for the first time during significant wildfires was likely attributable to the wildfire smoke. Given 17 these facts, and Marks’ reasonable professional medical opinion that the smoke was to blame, 18 there is no evidence to support a conclusion that Marks knew of and disregarded an excessive 19 risk to Plaintiff’s health or safety when he denied Plaintiff’s September 2021 kite. 20 When Plaintiff complained for the second time, he was scheduled for an eye exam shortly 21 thereafter, and at that time he was switched to “preservative free” drops. Plaintiff’s request for 22 different artificial tears was at that point granted, and he cannot demonstrate that Defendants 23 ignored a substantial risk to his health or safety in doing so. 1 By January 2023, Plaintiff was again complaining that the artificial tears were burning his 2 eyes, and there is no apparent response to this complaint on the record. However, Plaintiff has 3 not offered any evidence to support a claim that the burning caused by the artificial tears was a 4 substantial risk of serious harm, nor is there evidence in the record that the Defendants should
5 have known that. Accordingly, Plaintiff has not established that Defendants were deliberately 6 indifferent in the face of his complaints about the artificial tears. 7 2. Fish oil 8 Plaintiff contends Defendants were deliberately indifferent when they stopped 9 prescribing him fish oil, which had been recommended by the doctor who had diagnosed his 10 glaucoma in 2019. However, the record reflects that Marks discontinued the fish oil prescription 11 in December 2022, after the Plaintiff’s July 2022 eye exam report did not include a 12 recommendation for fish oil. The doctor who saw Plaintiff in July 2022 was not the same doctor 13 who saw him in 2019 and 2020. This difference of opinion between Plaintiff’s doctors, and more 14 generally between Plaintiff and Defendants, does not amount to deliberate indifference, and
15 Plaintiff has not shown that the refusal to prescribe him fish oil was “medically unacceptable 16 under the circumstances.” See Snow, 681 F.3d at 987-88. 17 Furthermore, Plaintiff admits that fish oil was available for him to purchase through the 18 commissary, and the record reflects he was aware of this fact no later than May 2023, when he 19 was advised as much by Federal Public Defender counsel. (ECF No. 49-5 at 4-5; ECF No. 48-1 20 at 25.) Plaintiff thus has not established that Defendants refusal to prescribe him fish oil after 21 December 2022 amounted to deliberate indifference. 22 / / / 23 / / / 1 3. Ophthalmologist v. Optometrist 2 Plaintiff contends that Defendants’ refusal to schedule him to see an ophthalmologist for 3 his eye conditions amounted to deliberate indifference. The record reflects that Plaintiff was 4 examined by an optometrist in January 2020 and July 2022, and then scheduled for a referral out
5 to an ophthalmologist on April 22, 2023, for testing of his glaucoma. As noted, the April 2023 6 appointment was missed because Plaintiff was mistakenly taken to the wrong location, and after 7 that the ophthalmologist would no longer see LCC glaucoma patients. Plaintiff’s glaucoma 8 testing ultimately took place on September 5, 2023, after which Plaintiff was evaluated again by 9 an optometrist in February 2024, and his glaucoma was determined to still be mild. 10 Plaintiff’s kites up until August 2023 requested to be seen by an optometrist. In his kites 11 dated August 3, 2023, and August 4, 2023, Plaintiff changed this request to be seen specifically 12 by an ophthalmologist. Whatever Plaintiff may have requested, he has not established that the 13 treatment and monitoring of his glaucoma condition was required to be done by an 14 ophthalmologist as opposed to an optometrist such that the failure to have Plaintiff seen by an
15 ophthalmologist amounted to deliberate indifference. 16 Moreover, Defendants attempted to have Plaintiff evaluated by an ophthalmologist, but 17 the treatment was thwarted by forces outside their individual control. And while there were 18 certainly some delays in having Plaintiff seen and treated by an optometrist throughout the 19 relevant time period,2 Plaintiff has not established that these delays led to further injury. Plaintiff 20 continued throughout this time to receive the Latanoprost eye drops that treated his glaucoma 21 condition, and the record does not reflect any deterioration in Plaintiff’s condition due to the 22
23 2 The timing suggests, as Defendants argue, that at least some of this delay is attributable to the COVID-19 epidemic, which began shortly after Plaintiff’s transfer to LCC. 1 delays in monitoring the progression of his disease. This is especially so as, even after follow-up 2 testing, his treatment plan remained the same. Accordingly, Plaintiff has not established 3 Defendants were deliberately indifferent to his medical needs because he was not seen by an 4 ophthalmologist and his appointments with optometrists were otherwise delayed.
5 As there is no genuine issue of material fact and the evidence otherwise establishes that 6 Defendants were not deliberately indifferent to Plaintiff’s serious medical needs, summary 7 judgment will be granted in Defendants’ favor. 8 B. Equal Protection 9 The Fourteenth Amendment prohibits the denial of “the equal protection of the laws.” 10 U.S. Const. amend XIV, § 1. This “is essentially a direction that all persons similarly situated 11 should be treated alike.” Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (quoting 12 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). “This does not mean, 13 however, that all prisoners must receive identical treatment and resources." Hartmann v. 14 California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013) (citations omitted).
15 “To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of 16 the Fourteenth Amendment a plaintiff must show that the defendants acted with an intent or 17 purpose to discriminate against the plaintiff based upon membership in a protected class.” 18 Furnace, 705 F.3d at 1030 (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). 19 Where state action does not implicate a protected class, a plaintiff can establish a “class of one” 20 equal protection claim by demonstrating that he or she “has been intentionally treated differently 21 from others similarly situated and that there is no rational basis for the difference in treatment.” 22 Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Squaw Valley Dev. Co. v. Goldberg, 23 1 375 F.3d 936, 944 (9th Cir. 2004), overruled on other grounds by Shanks v. Dressel, 540 F.3d 2 1082, 1087 (9th Cir. 2008). 3 Plaintiff asserts that Defendant Marks violated his right to Equal Protection by denying 4 him fish oil and by not providing a different brand of artificial tears. While he claims that several
5 other inmates similarly situated to him have been treated differently, he provides only one 6 declaration for each situation. 7 Inmate Tommie Turner states that he has received and continues to receive fish oil since 8 the beginning of COVID-19 and that they help. (ECF No. 48-1 at 92.) Turner does not, however, 9 state what he receives fish oil for or what doctor recommended it, and Plaintiff does not 10 otherwise establish how he and Turner are similarly situated. Plaintiff has not therefore come 11 forward with evidence showing that he was treated differently from other similarly situated 12 inmates with regard to the failure to prescribe fish oil. 13 Inmate Dushon Green states that he was on artificial tears that were burning his eyes, so 14 “the eye doctor” prescribed him Thera Tears. (Id. at 101.) Green does not state when this
15 occurred, what he was being treated for, or whether any of the named defendants were involved. 16 Plaintiff has not therefore presented any evidence showing that he was treated differently from 17 other similarly situated inmates with regard to the failure to change his artificial tears. 18 Plaintiff has not established a genuine issue of material fact on his equal protection claim, 19 and summary judgment in Defendant Marks’ favor will therefore be granted. 20 / / / 21 / / / 22 / / / 23 1 IV. CONCLUSION 2 (1) Defendants’ motion for summary judgment (ECF No. 49) is therefore GRANTED. 3 (2) Plaintiff's motion for summary judgment (ECF No. 48) is therefore DENIED. 4 (3) The Clerk of Court shall enter final judgment accordingly. IS SO ORDERED. Dated: July 28, 2025 CS oy Craig S. Denney 8 United States Magistrate Judge 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23