1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM BARKER, No. 2:16-cv-3008 CKD P 12 Plaintiff, 13 v. ORDER 14 OSEMWINGIE, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding through counsel with a civil rights action pursuant 18 to 42 U.S.C. § 1983. The parties have consented to the jurisdiction of the undersigned magistrate 19 judge for all purposes pursuant to 28 U.S.C. § 636(c) and Local Rule 305(a). ECF Nos. 39, 60. 20 Currently before the court is defendants’ fully briefed motion for summary judgment. ECF No. 21 63. 22 I. Plaintiff’s Allegations 23 This case proceeds on the second amended complaint, which alleges that defendants 24 Osemwingie and Ramiscal were deliberately indifferent to plaintiff’s serious medical needs. 25 (ECF No. 47.) Specifically, plaintiff alleges that he requires the use of a wheelchair and that he is 26 unable to transfer to and from his wheelchair without assistance. (Id. at 2, ¶ 2.) On March 2, 27 2015, he requested assistance transferring from his wheelchair to the toilet, and Osemwingie and 28 Ramiscal responded to the request. (Id. at 4, ¶ 12.) Plaintiff is a large man, weighing over 250 1 pounds, and defendants used a Hoyer lift to effectuate the transfer. (Id. at 2, 4, ¶¶ 2, 13.) A 2 Hoyer lift “is designed to move patients that are unable to stand on their own and/or whose 3 weight makes it unsafe to move or lift them manually.” (Id. at 4, ¶ 14.) Plaintiff asserts that 4 instead of using the lift in the way it was intended, by placing the straps underneath his body, 5 defendants instead placed the straps underneath his arms and attempted to lift him, causing injury 6 to his back. (Id., ¶¶ 14-16.) 7 II. Motion for Summary Judgment 8 A. Defendants’ Arguments 9 Defendants argue that they were not deliberately indifferent to plaintiff’s serious medical 10 needs because they were unaware that he had a chronic back condition or that the Hoyer lift 11 should not have been used. (ECF No. 63-1 at 5-8.) Alternatively, they argue that they are 12 entitled to qualified immunity. (Id. at 8-11.) 13 B. Plaintiff’s Response 14 Plaintiff opposes defendants’ motion and argues that they knew both that he had a chronic 15 back condition and that improperly using the lift would cause him pain. (ECF No. 67 at 5-7.) He 16 also argues that defendants are not entitled to qualified immunity because the constitutional 17 standard for medical care has long been established. (Id. at 7-8.) 18 III. Legal Standards for Summary Judgment 19 Summary judgment is appropriate when the moving party “shows that there is no genuine 20 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 21 Civ. P. 56(a). Under summary judgment practice, “[t]he moving party initially bears the burden 22 of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 23 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The 24 moving party may accomplish this by “citing to particular parts of materials in the record, 25 including depositions, documents, electronically stored information, affidavits or declarations, 26 stipulations (including those made for purposes of the motion only), admissions, interrogatory 27 answers, or other materials” or by showing that such materials “do not establish the absence or 28 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 1 support the fact.” Fed. R. Civ. P. 56(c)(1). 2 “Where the non-moving party bears the burden of proof at trial, the moving party need 3 only prove that there is an absence of evidence to support the non-moving party’s case.” Oracle 4 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 5 Indeed, summary judgment should be entered, “after adequate time for discovery and upon 6 motion, against a party who fails to make a showing sufficient to establish the existence of an 7 element essential to that party’s case, and on which that party will bear the burden of proof at 8 trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element 9 of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. In such 10 a circumstance, summary judgment should “be granted so long as whatever is before the district 11 court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 12 56(c), is satisfied.” Id. 13 If the moving party meets its initial responsibility, the burden then shifts to the opposing 14 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 15 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the 16 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 17 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 18 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 19 Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a 20 fact “that might affect the outcome of the suit under the governing law,” Anderson v. Liberty 21 Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 22 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., “the evidence is such that a 23 reasonable jury could return a verdict for the nonmoving party,” Anderson, 447 U.S. at 248. 24 In the endeavor to establish the existence of a factual dispute, the opposing party need not 25 establish a material issue of fact conclusively in its favor. It is sufficient that “‘the claimed 26 factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the 27 truth at trial.’” T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat’l Bank of Ariz. V. Cities 28 Serv. Co., 391 U.S. 253, 288-89 (1968). Thus, the “purpose of summary judgment is to pierce the 1 pleadings and to assess the proof in order to see whether there is a genuine need for trial.” 2 Matsushita, 475 U.S. at 587 (citation and internal quotation marks omitted). 3 “In evaluating the evidence to determine whether there is a genuine issue of fact, [the 4 court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls 5 v. Central Costa Cnty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is 6 the opposing party’s obligation to produce a factual predicate from which the inference may be 7 drawn. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM BARKER, No. 2:16-cv-3008 CKD P 12 Plaintiff, 13 v. ORDER 14 OSEMWINGIE, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding through counsel with a civil rights action pursuant 18 to 42 U.S.C. § 1983. The parties have consented to the jurisdiction of the undersigned magistrate 19 judge for all purposes pursuant to 28 U.S.C. § 636(c) and Local Rule 305(a). ECF Nos. 39, 60. 20 Currently before the court is defendants’ fully briefed motion for summary judgment. ECF No. 21 63. 22 I. Plaintiff’s Allegations 23 This case proceeds on the second amended complaint, which alleges that defendants 24 Osemwingie and Ramiscal were deliberately indifferent to plaintiff’s serious medical needs. 25 (ECF No. 47.) Specifically, plaintiff alleges that he requires the use of a wheelchair and that he is 26 unable to transfer to and from his wheelchair without assistance. (Id. at 2, ¶ 2.) On March 2, 27 2015, he requested assistance transferring from his wheelchair to the toilet, and Osemwingie and 28 Ramiscal responded to the request. (Id. at 4, ¶ 12.) Plaintiff is a large man, weighing over 250 1 pounds, and defendants used a Hoyer lift to effectuate the transfer. (Id. at 2, 4, ¶¶ 2, 13.) A 2 Hoyer lift “is designed to move patients that are unable to stand on their own and/or whose 3 weight makes it unsafe to move or lift them manually.” (Id. at 4, ¶ 14.) Plaintiff asserts that 4 instead of using the lift in the way it was intended, by placing the straps underneath his body, 5 defendants instead placed the straps underneath his arms and attempted to lift him, causing injury 6 to his back. (Id., ¶¶ 14-16.) 7 II. Motion for Summary Judgment 8 A. Defendants’ Arguments 9 Defendants argue that they were not deliberately indifferent to plaintiff’s serious medical 10 needs because they were unaware that he had a chronic back condition or that the Hoyer lift 11 should not have been used. (ECF No. 63-1 at 5-8.) Alternatively, they argue that they are 12 entitled to qualified immunity. (Id. at 8-11.) 13 B. Plaintiff’s Response 14 Plaintiff opposes defendants’ motion and argues that they knew both that he had a chronic 15 back condition and that improperly using the lift would cause him pain. (ECF No. 67 at 5-7.) He 16 also argues that defendants are not entitled to qualified immunity because the constitutional 17 standard for medical care has long been established. (Id. at 7-8.) 18 III. Legal Standards for Summary Judgment 19 Summary judgment is appropriate when the moving party “shows that there is no genuine 20 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 21 Civ. P. 56(a). Under summary judgment practice, “[t]he moving party initially bears the burden 22 of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 23 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The 24 moving party may accomplish this by “citing to particular parts of materials in the record, 25 including depositions, documents, electronically stored information, affidavits or declarations, 26 stipulations (including those made for purposes of the motion only), admissions, interrogatory 27 answers, or other materials” or by showing that such materials “do not establish the absence or 28 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 1 support the fact.” Fed. R. Civ. P. 56(c)(1). 2 “Where the non-moving party bears the burden of proof at trial, the moving party need 3 only prove that there is an absence of evidence to support the non-moving party’s case.” Oracle 4 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 5 Indeed, summary judgment should be entered, “after adequate time for discovery and upon 6 motion, against a party who fails to make a showing sufficient to establish the existence of an 7 element essential to that party’s case, and on which that party will bear the burden of proof at 8 trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element 9 of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. In such 10 a circumstance, summary judgment should “be granted so long as whatever is before the district 11 court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 12 56(c), is satisfied.” Id. 13 If the moving party meets its initial responsibility, the burden then shifts to the opposing 14 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 15 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the 16 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 17 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 18 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 19 Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a 20 fact “that might affect the outcome of the suit under the governing law,” Anderson v. Liberty 21 Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 22 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., “the evidence is such that a 23 reasonable jury could return a verdict for the nonmoving party,” Anderson, 447 U.S. at 248. 24 In the endeavor to establish the existence of a factual dispute, the opposing party need not 25 establish a material issue of fact conclusively in its favor. It is sufficient that “‘the claimed 26 factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the 27 truth at trial.’” T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat’l Bank of Ariz. V. Cities 28 Serv. Co., 391 U.S. 253, 288-89 (1968). Thus, the “purpose of summary judgment is to pierce the 1 pleadings and to assess the proof in order to see whether there is a genuine need for trial.” 2 Matsushita, 475 U.S. at 587 (citation and internal quotation marks omitted). 3 “In evaluating the evidence to determine whether there is a genuine issue of fact, [the 4 court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls 5 v. Central Costa Cnty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is 6 the opposing party’s obligation to produce a factual predicate from which the inference may be 7 drawn. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to 8 demonstrate a genuine issue, the opposing party “must do more than simply show that there is 9 some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations 10 omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the 11 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank, 391 12 U.S. at 289). 13 IV. Legal Standard for Deliberate Indifference 14 To maintain an Eighth Amendment claim based on inadequate medical treatment, plaintiff 15 must show “‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 16 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires plaintiff 17 to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a prisoner’s condition 18 could result in further significant injury or the unnecessary and wanton infliction of pain,’” and 19 (2) “the defendant’s response to the need was deliberately indifferent.” Id. (some internal 20 quotation marks omitted) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)). 21 Deliberate indifference is a very strict standard. It is more than “mere negligence.” 22 Farmer v. Brennan, 511 U.S. 825, 835, (1994). Even civil recklessness—failure “to act in the 23 face of an unjustifiably high risk of harm that is either known or so obvious that it should be 24 known”—is insufficient to establish an Eighth Amendment claim. Id. at 836-37 & n.5 (citation 25 omitted). A prison official will be found liable under the Eighth Amendment when “the official 26 knows of and disregards an excessive risk to inmate health or safety; the official must both be 27 aware of facts from which the inference could be drawn that a substantial risk of serious harm 28 exists, and he must also draw the inference.” Id. at 837. A plaintiff can establish deliberate 1 indifference “by showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible 2 medical need and (b) harm caused by the indifference.” Jett, 439 F.3d at 1096 (citing McGuckin, 3 974 F.2d at 1060). 4 Deliberate indifference “may appear when prison officials deny, delay or intentionally 5 interfere with medical treatment, or it may be shown by the way in which prison physicians 6 provide medical care.” Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988) (citing 7 Estelle, 429 U.S. at 104-05). A difference of opinion between an inmate and prison medical 8 personnel—or between medical professionals—regarding the appropriate course of treatment 9 does not amount to deliberate indifference to serious medical needs. Toguchi v. Chung, 391 F.3d 10 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). To establish a 11 difference of opinion rises to the level of deliberate indifference, plaintiff “must show that the 12 course of treatment the doctors chose was medically unacceptable under the circumstances.” 13 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (citation omitted). 14 V. Undisputed Material Facts 15 At all times relevant to the complaint, plaintiff was incarcerated at the California Health 16 Care Facility (CHCF) where defendants Osemwingie and Ramiscal were employed as Certified 17 Nurse Assistants. Defendants’ Statement of Undisputed Facts (DSUF) (ECF No. 63-2) ¶¶ 4, 8; 18 Response to DSUF (ECF No. 67-2) ¶¶ 4, 8. Plaintiff is confined to a wheelchair and requires 19 assistance to get in and out of the wheelchair. DSUF ¶ 2; Response to DSUF ¶ 2. 20 On the evening of March 3, 2015, plaintiff requested assistance using the toilet, and 21 defendants and a correctional officer reported to his cell to assist him with transferring to the 22 toilet. DSUF ¶ 13; Response to DUSF ¶¶ 13a, 13b. When they arrived, plaintiff was already in 23 his wheelchair. DSUF ¶ 14; Response to DSUF ¶ 14. Ramiscal retrieved the Hoyer lift and 24 Osemwingie told plaintiff that they would be using the lift to transfer him to the toilet. DSUF 25 ¶ 15; Response to DSUF ¶ 15a. Plaintiff responded by complaining that he did not want to use 26 the lift because it hurt his scrotum and claims that he also advised defendants that his back was 27 “messed up.” DSUF ¶¶ 15-16; Response to DSUF ¶¶ 15b, 16. He further insisted that defendants 28 not use the lift and manually lift him instead, and repeatedly mentioned the bullet in his scrotum 1 and the pain the lift caused to that part of his body. DSUF ¶ 18; Response to DSUF ¶¶ 18a, 18b. 2 In response to plaintiff’s complaints, Osemwingie suggested that the sling for the lift be 3 put under plaintiff’s arms, without placing the sling under his legs and scrotum. DSUF ¶ 20; 4 Response to DSUF ¶ 20b. Osemwingie then placed the sling around plaintiff’s back and under 5 his arms while Ramiscal brought the lift closer to Osemwingie’s position and Osemwingie 6 hooked both ends of the sling to the lift. DSUF ¶ 22; Response to DSUF ¶¶ 22a, 22b. As soon as 7 Osemwingie started the lift, plaintiff screamed out in pain and complained that it would not work 8 for him and that his back hurt. DSUF ¶ 23; Response to DSUF ¶ 23a; Plaintiff’s Statement of 9 Facts (PSOF) (ECF No. 67-3) ¶ 57; Response to PSOF (ECF No. 69-1) ¶ 57. Defendants 10 immediately stopped the lift and set plaintiff back in his wheelchair. DSUF ¶ 23; Response to 11 DSUF ¶ 23a, 23b. Defendants then removed the sling and left plaintiff’s cell to report the 12 incident to their supervisor. DSUF ¶ 25; Response to DSUF ¶ 25a. Defendants were directed to 13 other tasks and told that a nurse would attend to plaintiff, and neither had any further contact with 14 plaintiff that evening. DSUF ¶ 25; Response to DSUF ¶¶ 25b, 25c. 15 Prior to plaintiff’s transfer to CHCF on February 27, 2015, no doctor or healthcare 16 provider had issued an order barring the use of the Hoyer lift or other mechanical lift to move or 17 transfer plaintiff. DSUF ¶¶ 3-4; Response to DSUF ¶¶ 3-4. Additionally, on the morning of 18 March 3, 2015, plaintiff was seen by a nursing supervisor to discuss his concerns about using the 19 Hoyer lift. DSUF ¶ 12; Response to DSUF ¶¶ 12a. The nursing supervisor noted in his chart that 20 the Hoyer lift was to be used to transfer him “to ensure inmate/patient’s and staff safety,” and at 21 the time of the incident later that evening, defendants were not aware of any doctor’s orders 22 prohibiting or discontinuing the use of the Hoyer lift on plaintiff. DSUF ¶¶ 12, 27; Response to 23 DSUF ¶¶ 12d, 27. 24 VI. Discussion 25 The parties are largely in agreement as to what occurred on the evening of March 3, 2015, 26 and their potentially material disputes center primarily on the content of the verbal 27 communications between the parties, whether defendants were aware of plaintiff’s chronic back 28 condition, and whether defendants’ use of the Hoyer lift was appropriate given plaintiff’s 1 condition. See DSUF ¶¶ 17, 19, 20, 21, 26, 28-30; Response to DSUF ¶¶ 17a, 17b, 19b, 19c, 20c, 2 21a, 21b, 26a, 28-30; PSOF ¶¶ 44, 51, 54; Response to PSOF ¶¶ 44, 51, 54. However, as 3 discussed below, these disputes are either ultimately immaterial or are not properly supported by 4 evidence to create a genuine dispute of fact. 5 As an initial matter, the court will assume for purposes of the motion that defendants were 6 aware of plaintiff’s chronic back problems, rendering any disputes as to that fact immaterial. The 7 disputes as to whether Osemwingie explained that the lift had to be used for safety reasons and 8 unless there was a doctor’s order to the contrary and whether he explained how the lift would 9 work are also immaterial. Even if Osemwingie did not tell plaintiff these things, it would not 10 demonstrate deliberate indifference, and plaintiff does not assert that Osemwingie instead made 11 comments indicating that he knew the proposed use of the Hoyer lift would cause plaintiff harm. 12 In support of their motion, defendants submit the expert report of registered nurse 13 Michelle Camicia. (ECF No. 63-5 at 162-67.) Camicia opines that the way in which the lift was 14 used to transfer plaintiff “act[ed] in a similar manner to that of a stand-assist lifting device or an 15 appropriate manual lift with the assistance of two people.” (Id. at 166.) She further opines that 16 both the use of the Hoyer lift and the manner in which it was used to transfer plaintiff were 17 appropriate and met the standard of care and that use of the lift was not contraindicated by 18 plaintiff’s chronic back condition. (Id. at 164-66.) Finally, Camicia did not see “any evidence 19 that [plaintiff’s] back would not have been injured had the Defendants performed a manual lift 20 instead.” (Id. at 166.) Although plaintiff disputes Camicia’s findings, the evidence he presents to 21 support his disputes is insufficient to create a genuine dispute of fact. 22 As evidence that the use of the lift was not appropriate, plaintiff relies on the instruction 23 guide for the Golvo 707 ES, which he asserts is the model of lift used. Response to DSUF ¶¶ 28- 24 30. Defendants’ object to the admissibility of the guide, but even assuming that plaintiff could 25 present the guide in a manner that would be admissible at trial, it does nothing to support his 26 position. (See ECF No. 67-4 at 47-62.) As defendants accurately point out, “[n]othing in the 27 instructions addresses the proper manner in which the lift is to be used when transferring a patient 28 from a sitting position to a sitting position. Only bed transfers are addressed in the instructions.” 1 (ECF No. 69 at 3-4.) Furthermore, to the extent plaintiff attempts to establish through his own 2 testimony that it was improper to use the Hoyer lift by putting the sling under only his arms, these 3 assertions are not properly supported by competent evidence. Though plaintiff is competent to 4 testify to the methods in which the lift had been used on him in the past, he has not established 5 that he is competent to testify as to what constitutes proper or improper use of the lift.1 This lack 6 of evidentiary foundation similarly renders immaterial any disputes the parties have regarding 7 whether plaintiff made statements about the propriety of using the Hoyer lift in the manner 8 suggested. Even if plaintiff made such statements, absent some evidence that he advised 9 defendants that the lift had been used in a similar manner in the past with adverse consequences, 10 his disagreement with defendants’ chosen course of action shows only a difference of opinion. 11 Finally, plaintiff’s claim that a manual lift would not have injured him because previous manual 12 lifts had not (Response to DSUF ¶ 30), even if true, does not establish that use of the Hoyer lift 13 was medically unacceptable. 14 Plaintiff has failed to demonstrate that a material dispute of fact exists as to defendants’ 15 knowledge that using the Hoyer lift would cause him harm or as to the appropriateness of using 16 the lift in the manner in which it was used, even considering his chronic back condition. 17 Therefore, even if plaintiff did suffer extreme and prolonged pain as a result of the attempt to 18 move him with the Hoyer lift as he claims, he cannot show that his injury was the result of 19 defendants’ deliberate indifference and defendants’ motion for summary judgment must be 20 granted. 21 //// 22
23 1 Plaintiff’s statements that non-parties CO Gonzales and RN Coloma also disagreed with the proposed use of the Hoyer lift will be disregarded. PSOF ¶¶ 40-41. These purported statements 24 of fact are supported by only plaintiff’s deposition testimony and defendants argue that they are therefore inadmissible hearsay. (ECF No. 69 at 6; ECF No. 69-1 at 3.) Federal Rule of Civil 25 Procedure 56(c)(2) provides that “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Plaintiff has not 26 shown that he could make these statements admissible, but even if the court were to assume that 27 he could do so, the alleged comments are too vague to implicate more than a difference of opinion as to how the lift should be used and are wholly inadequate to establish a material issue 28 of fact as to whether the way the lift was used was medically unacceptable. 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Defendants’ motion for summary judgment (ECF No. 63) is granted. 3 2. This action is dismissed with prejudice. 4 3. Judgement is entered for defendants. 5 | Dated: March 19, 2020 fro / / /, CAN fu fl. ay 6 CAROLYN K. DELANEY 7 UNITED STATES MAGISTRATE JUDGE 8 9 | 13:bark3008.msj 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28