(PC) Gutierrez v. Tucker

District Court, E.D. California·Decided August 3, 2023·No. 2:19-cv-00878·Unknown

Opinion

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRUNO GUTIERREZ, as Successor-In- No. 2:19-CV-0878-DAD-DMC-P Interest to Gerardo J. Gutierrez, 12 Plaintiff, 13 FINDINGS AND RECOMMENDATIONS v. 14 V. TUCKER, 15 Defendant. 16

17 18 Plaintiff is proceeding pro se as successor-in-interest in this civil rights action 19 pursuant to 42 U.S.C. § 1983. Pending before the Court is Defendant’s motion for summary 20 judgment, ECF No. 48. Plaintiff has filed an opposition, ECF No. 57. Defendant filed a reply, 21 ECF No. 59. 22 The Federal Rules of Civil Procedure provide for summary judgment or summary 23 adjudication when “the pleadings, depositions, answers to interrogatories, and admissions on file, 24 together with affidavits, if any, show that there is no genuine issue as to any material fact and that 25 the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The 26 standard for summary judgment and summary adjudication is the same. See Fed. R. Civ. P. 27 56(a), 56(c); see also Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). One of 28 the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. See 1 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under summary judgment practice, the 2 moving party

3 . . . always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, 4 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a 5 genuine issue of material fact.

6 Id., at 323 (quoting former Fed. R. Civ. P. 56(c)); see also Fed. R. Civ. P. 56(c)(1). 7 If the moving party meets its initial responsibility, the burden then shifts to the 8 opposing party to establish that a genuine issue as to any material fact actually does exist. See 9 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 10 establish the existence of this factual dispute, the opposing party may not rely upon the 11 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 12 form of affidavits, and/or admissible discovery material, in support of its contention that the 13 dispute exists. See Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 n.11. The 14 opposing party must demonstrate that the fact in contention is material, i.e., a fact that might 15 affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 16 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th 17 Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could 18 return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 19 (9th Cir. 1987). To demonstrate that an issue is genuine, the opposing party “must do more than 20 simply show that there is some metaphysical doubt as to the material facts. . . . Where the record 21 taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 22 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). It is sufficient that “the 23 claimed factual dispute be shown to require a trier of fact to resolve the parties’ differing versions 24 of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. 25 In resolving the summary judgment motion, the court examines the pleadings, 26 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. 27 See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, see Anderson, 28 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the 1 court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587. 2 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 3 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 4 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 5 1987). Ultimately, “[b]efore the evidence is left to the jury, there is a preliminary question for the 6 judge, not whether there is literally no evidence, but whether there is any upon which a jury could 7 properly proceed to find a verdict for the party producing it, upon whom the onus of proof is 8 imposed.” Anderson, 477 U.S. at 251. 9 10 I. BACKGROUND 11 A. Plaintiff’s Allegations 12 Plaintiff is the father and successor in interest to Gerard J. Gutierrez, who was an 13 inmate at the California Health Care Facility (CHCF)and has deceased. See ECF No. 35 (order 14 substituting parties). This action proceeds on the original pro se complaint filed by Gerard J. 15 Gutierrez (Mr. Gutierrez). See ECF No. 1. 16 V. Tucker, a nurse at CHCF, is named as the only defendant. See id. at 2. In the 17 complaint, Mr. Gutierrez stated that he was a cancer patient and was first diagnosed while at 18 CHCF. See id. at 7. Mr. Gutierrez further stated in the complaint that he was scheduled for a 19 catheter change by to be performed by Defendant Tucker, whom Mr. Gutierrez claimed had a 20 “vendetta” against him. See id. Upon learning that Tucker was assigned to perform the catheter 21 change procedure, Mr. Gutierrez requested a different nurse. See id. According to Mr. Gutierrez, 22 Tucker had a personal vendetta against him because Mr. Gutierrez had filed multiple “CDCR 602 23 HCs,” referring to health care grievances, against security and medical personnel. Id. Mr. 24 Gutierrez further alleged that Tucker mad made it known to him and other prisoners that she 25 [Tucker] did not like prisoner and hated touching prisoners. See id. at 7-8. 26 / / / 27 / / / 28 / / / 1 According to Mr. Gutierrez, Tucker expressed to him Tucker’s dissatisfaction of 2 him [Mr. Gutierrez] complaining and asking for another nurse. See id. at 8. Mr. Gutierrez stated 3 in the complaint that Tucker said: “You can’t pick and choose who changes your catheter” and 4 “Who do you think you are?” and “Do you think I want your stench in my hair and on my 5 clothes?” Id. Mr. Gutierrez responded by telling Tucker “I’ll be writing this up,” to which 6 Tucker responded: “I haven’t done anything to you yet.” Id. Mr. Gutierrez then requested a 7 “Refusal of Examination and/or Treatment” form and was informed by Tucker that he could only 8 sign the form and would not be allowed to include the reasons for refusing treatment by Tucker. 9 See id. 10 Mr.

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9 1. Gerard, who was diagnosed with multiple myeloma and a neurogenic bladder which required a suprapubic catheter, alleged in his 10 complaint that Tucker was deliberately indifferent to Gerard’s serious medical needs by improperly changing his suprapubic catheter, and that 11 Tucker was deliberately indifferent in retaliation for Gerard’s having filed grievances against her. (Complaint at 7-12; Tucker Decl. ¶¶ 5, 8-9.) 12 2. Defendant V. Tucker was employed as a registered nurse at 13 CHCF during the relevant time frame, and Tucker’s relevant duties included providing routine medical care to inmates, consulting with 14 physicians regarding patient care issues, and sending patients directly to physicians to address urgent care issues; Defendant Tucker has experience 15 and is trained in changing suprapubic catheters, including providing wound care and dressing changes. (Complaint at 2, 6; Tucker Decl. ¶¶ 1- 16 3.)

17 3. Tucker never made any disrespectful or inappropriate comments to Gerard. (Tucker Decl. ¶¶ 7-10.) 18 4. Tucker never harbored any ill-will towards Gerard, never 19 retaliated against Gerard, and, until being served with this lawsuit, Tucker was never aware of any complaint or grievance Gerard had ever made 20 against her. (Tucker Decl. ¶¶ 15-17.)

21 5. Gerard died from unrelated causes on September 27, 2020, before he could be deposed or any other discovery could be conducted, 22 and Bruno was substituted into the case as successor in interest on April 20, 2021. (Mot. for Subst. of Parties at 3-5, ECF No. 32; Order Granting 23 Mot. for Subst. of Parties at 7, ECF No. 35; Bruno Dep. 9:25-10:4, 36:2- 15; Kuchinsky Decl. ¶¶ 5-6.) 24 6. Bruno has no personal knowledge of any of the allegations 25 in Gerard’s complaint, was not present for any of Gerard’s medical appointments, was not present during any interactions between Tucker and 26 Gerard, has never met or spoken to Tucker, and has no evidence to refute the information contained in Gerard’s medical records. (Tucker Decl. ¶ 4; 27 Bruno Dep. 14:6-16, 47:8-9, 47:19-21, 47:24-48:23, 51:17-22, 53:10- 54:12, 55:10-57:17, 58:1-15, 62:9-17, 63:17-21, 64:11-66:1, 66:17-67:17, 28 67:24-68:23, 71:7-23, 73:2-13, 75:13-18, 77:15-20, 78:17-79:12.) 1 7. Bruno is not a doctor, is not qualified or licensed to practice medicine, is not familiar with suprapubic catheters, and has no information 2 about the standard of care for changing catheters. (Bruno Dep. 11:8-12:7, 13:13-16, 47:24-48:19.) 3 8. On October 12, 2017, Tucker was scheduled to provide a 4 regular dressing change and wound care to Gerard for his suprapubic catheter, but he refused despite Tucker reminding him about potential 5 complications such as infection, sepsis, or death, telling Tucker, “I don’t want it today” and refusing to sign a refusal form. (Tucker Decl. ¶ 7 & Ex. 6 A.)

7 9. On October 13, 2017, at approximately 9:30 p.m., Tucker and another nurse met with Gerard to address complaints of no urine 8 output from his catheter and abdominal pain. (Tucker Decl. ¶ 8 & Ex. B.)

9 10. During the October 13, 2017, appointment, Gerard demanded that Tucker change his catheter, despite Tucker explaining the 10 risks involved with changing the catheter and instead suggesting a placement check. (Tucker Decl. ¶ 8 & Ex. B.) 11 11. At Gerard’s insistence, Tucker took the catheter out slowly 12 and, seeing no signs of distress from Gerard, attempted to insert the catheter slowly, but she felt resistance and stopped immediately, notified 13 the on-duty doctor, and then sent Gerard to the Standby Emergency Medical Services (SEMS) for further evaluation. (Tucker Decl. ¶¶ 8-9 & 14 Exs. B, C.)

15 12. From SEMS, Gerard was sent to an outside emergency department where his catheter was successfully replaced the following 16 morning; however the following day Gerard still had issues with his suprapubic catheter and was sent back to the hospital on October 15, 2017 17 and a new catheter was replaced without further complications. (Sarthou Decl. Ex. A (San Joaquin General Hospital Records).) 18 13. Tucker next saw Gerard on October 19, 2017, and again on 19 October 20, 2017, and noted that Gerard was stable and comfortable and his suprapubic catheter was intact and draining clear urine without Gerard 20 exhibiting any signs of acute distress. (Tucker Decl. ¶¶ 11 & Ex. D.)

21 14. During a follow up examination on January 22, 2018, Gerard reported no urinary issues and there were no reported 22 complications or problems with his suprapubic catheter. (Sarthou Decl. Ex. B (Progress Note) 23 15. The treatment Tucker provided to Gerard was within the 24 standard of care and medically reasonable and appropriate. (Tucker Decl. ¶¶ 12-14.) 25 16. Tucker was not deliberately indifferent to Gerard’s serious 26 medical need, but instead attempted to change his catheter, experienced complications, and took immediate action to refer him to the on-duty 27 doctor as she was required to do. (Tucker Decl. ¶¶ 12-14.)

28 ECF No. 48-3. 1 B. Plaintiff’s Opposition 2 Plaintiff’s opposition is supported by the declaration of Bruno Gutierrez and 3 Exhibit A attached thereto, ECF No. 57-1, a statement in response to Defendant’s Separate 4 Statement of Undisputed Facts, ECF No. 57-3, a Separate Statement of Disputed Facts, ECF No. 5 57-4, and lodged Exhibits A through D, ECF No. 57-5. 6 In his declaration, Plaintiff (who is Mr. Gutierrez’s father and successor in interest 7 in this case) states that there is a video showing what he characterizes as mistreatment by Tucker. 8 See ECF No. 57-1, pg. 1. Plaintiff also states that Mr. Gutierrez’s sister, Marion Carroll, was 9 responsible for Mr. Gutierrez’s medical issues and was often told of Tucker’s conduct towards 10 Mr. Gutierrez. See id. at 3. Plaintiff does not provide the Court with either the video or a 11 declaration from Ms. Carroll. Attached as Exhibit A to Plaintiff’s declaration are various email 12 exchanges between Plaintiff, the Court Reporter, and defense counsel regarding Plaintiff’s 13 deposition. See id. at 7-10. 14 In his statement in response to Defendant’s Separate Statement of Undisputed 15 facts, Plaintiff largely repeats the factual allegations related by Mr. Gutierrez in his pro se 16 complaint. See ECF No. 57-3. Plaintiff also specifically denies Tucker’s statements in her 17 declaration, specifically that she did not harbor ill-will towards Mr. Gutierrez and that she did not 18 mistreat him or violate his rights. See id. at 2. Plaintiff does not attach any evidence to this 19 filing. 20 Plaintiff also submitted a Separate Statement of Disputed Facts. See ECF No. 57- 21 4. According to Plaintiff, the following issues are in dispute:

22 1. Whether Mr. Gutierrez notified members of his family that he requested medical care be provided by a physician or other qualified 23 person other than Tucker.

24 2. Whether Mr. Gutierrez was in pain on October 13, 2017, and requested to be treated by a physician. 25 3. Whether Tucker denied that request and told Mr. Gutierrez 26 “You can’t pick and choose who changes your catheter.”

27 4. Whether Tucker only notified the physician after she had jabbed in a new catheter into a bleeding and injured site. 28 1 5. Whether Tucker was wearing long fingernails when she injured Mr. Gutierrez. 2 6. Whether Tucker caused the insertion site to be injured 3 when she yanked out the catheter.

4 7. And whether Tucker then told Mr. Gutierrez “Now you have something to complain about.” 5 Id. at 2-3. 6 7 Finally, Plaintiff filed Exhibits A through D. See ECF No. 57-5. These exhibits 8 are summarized below:

9 Exhibit A The first two pages of Mr. Gutierrez’s pro se verified complaint in this case, with documents attached thereto. See id. at 3-4. 10 Exhibit B Declaration of Plaintiff Bruno Gutierrez (Mr. Gutierrez’s father 11 and success in interest). See id. at 5-7.

12 Exhibit C Plaintiff describes this exhibit as the declaration of Marion Carroll. See id. at 2. The exhibit, however, is not included. 13 Exhibit D Order findings service appropriate in Gutierrez v. Gutierrez, E. 14 Dist. Cal. case no. 1:13-CV-0421-GSA-PC (Fresno Division). See id. at 7-9. 15 16 Also attached to ECF No. 57-5 is a two-page form “CDCR 602” inmate appeal 17 submitted by Mr. Gutierrez and alleging prison guards retaliated against him on February 22, 18 2020. See id. at 10-12. 19 C. Defendant’s Evidentiary Objection 20 In her brief in support of summary judgment, Defendant asserts that the Court 21 cannot consider Mr. Gutierrez’s pro se complaint in this case as an affidavit to defeat summary 22 judgment. See ECF No. 48-2, pgs. 17-19. Defendant’s argument is severalfold. First, Defendant 23 contends the complaint cannot be treated as an affidavit because Mr. Gutierrez has died and thus 24 cannot now testify as to its contents. See id. at 17. Second, Defendant argues that Mr. 25 Gutierrez’s statements set forth in his pro se complaint are inadmissible hearsay. See id. Third, 26 Defendant maintains that, even if the pro se complaint is an admissible affidavit, it fails to 27 establish a dispute of material fact. See id. at 17-18. 28 / / / 1 A verified complaint may be used as an opposing affidavit to defeat a motion for 2 summary judgement. See Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995). To qualify, 3 the complaint must be based on personal knowledge and set forth facts that would be admissible 4 in evidence. See id.; see also Fed. R. Civ. P. 56(c)(4). The complaint must also “show that the 5 [complainant] is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). 6 Defendant argues that because Mr. Gutierrez is not competent to testify at trial, his 7 complaint may not be considered. ECF No. 48-2, pg. 17. Defendant states Mr. Gutierrez is not 8 competent because he is not available for trial. Id. This argument is not persuasive. Rule 56 9 does not demand that the affiant be available to testify at trial to be considered competent as to 10 the matters stated in the affidavit. See Fed. R. Civ. P. 56(c)(4). Because Defendant has not 11 shown that Mr. Gutierrez was not competent as to the matters stated in the complaint, the 12 complaint cannot be set aside on grounds of competency. 13 Defendant also argues that because Mr. Gutierrez is deceased, the facts set forth in 14 the complaint cannot be admitted at trial and so the complaint may not be considered. See ECF 15 No. 48-2, pg. 17. Although this Court agrees that the central facts in the complaint are not 16 admissible at trial, as discussed below, whether the complaint may be considered at the summary 17 judgement stage turns on if the complaint “set out facts that would be admissible in evidence.” 18 Fed. R. Civ. P. 56(c)(4). The question is not whether the complaint currently contains admissible 19 evidence, but whether at the time it was created it set out admissible evidence. See id. While 20 currently the central facts are barred by foundational and hearsay evidentiary objections, at the 21 time the complaint was written those objections would not have barred admission — at the time 22 the complaint was created, it “set out facts that would be admissible in evidence.” See id. The 23 complaint cannot be set aside for failing to set out facts that would be admissible in evidence. 24 However, a motion for summary judgement may be granted by a showing that “an 25 adverse party cannot produce admissible evidence to support [a] fact.” Fed. R. Civ. P. 26 56(c)(1)(b). “A party may object that the material cited to support or dispute a fact cannot be 27 presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). While the 28 complaint as a whole may not be set aside, certain information in the complaint may be if it 1 cannot be presented in a form that would be admissible at trial. See id. 2 Summary judgement in this case thus turns on whether Plaintiff can introduce the 3 central facts discussed in Mr. Gutierrez’s pro se complaint at trial. The complaint is an out-of- 4 court statement that would be offered for the truth asserted, and so it would be barred from being 5 introduced into evidence at trial by the hearsay rule. Fed. R. Evid. 801, 802. Similarly, anything 6 told to Plaintiff by Mr. Gutierrez about his alleged ordeal would not be usable at trial to prove the 7 ordeal happened. Id. The pro se complaint also does not fall under the exception to the hearsay 8 rule set forth in Federal Rule of Evidence 804 for witnesses who are unavailable due to death. 9 Under Rule 804, an unavailable witness includes one who cannot be present to testify because of 10 death. See Fed. R. Evid. 804(a)(4). Hearsay evidence from such a witness may only be 11 introduced, however, is such evidence “was given as a witness at a trial, hearing, or lawful 12 deposition. . . .” Fed. R. Evid. 804(b)(1)(A). The pro se complaint at issue here does not fall 13 within this exception and is inadmissible hearsay. 14 Defendant’s objection to consideration of Mr. Gutierrez’s pro se complaint is 15 sustained. 16 17 III. DISCUSSION 18 In the pending motion for summary judgment, Defendant argues: (1) the 19 undisputed evidence establishes that she was not deliberately indifferent to Mr. Gutierrez’s 20 serious medical needs; and (2) the undisputed evidence shows that Defendant did not retaliate 21 against Mr. Gutierrez. See ECF No. 48-2. 22 A. Deliberate Indifference 23 The treatment a prisoner receives in prison and the conditions under which the 24 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 25 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 26 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts 27 of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 28 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. 1 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with 2 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 3 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when 4 two requirements are met: (1) objectively, the official’s act or omission must be so serious such 5 that it results in the denial of the minimal civilized measure of life’s necessities; and (2) 6 subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of 7 inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison 8 official must have a “sufficiently culpable mind.” See id. 9 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious 10 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105; 11 see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health 12 needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), abrogated on other grounds by 13 Sandin v. Conner, 515 U.S. 472 (1995). An injury or illness is sufficiently serious if the failure to 14 treat a prisoner’s condition could result in further significant injury or the “. . . unnecessary and 15 wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled 16 on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); see 17 also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). Factors indicating seriousness 18 are: (1) whether a reasonable doctor would think that the condition is worthy of comment; (2) 19 whether the condition significantly impacts the prisoner’s daily activities; and (3) whether the 20 condition is chronic and accompanied by substantial pain. See Lopez v. Smith, 203 F.3d 1122, 21 1131-32 (9th Cir. 2000) (en banc). 22 The requirement of deliberate indifference is less stringent in medical needs cases 23 than in other Eighth Amendment contexts because the responsibility to provide inmates with 24 medical care does not generally conflict with competing penological concerns. See McGuckin, 25 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to 26 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 27 1989). The complete denial of medical attention may constitute deliberate indifference. See 28 Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical 1 treatment, or interference with medical treatment, may also constitute deliberate indifference. See 2 Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate 3 that the delay led to further injury. See McGuckin, 974 F.2d at 1060. 4 Negligence in diagnosing or treating a medical condition does not, however, give 5 rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a 6 difference of opinion between the prisoner and medical providers concerning the appropriate 7 course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, 8 90 F.3d 330, 332 (9th Cir. 1996). 9 Defendant argues that she provided medically acceptable treatment under the 10 circumstances and did not consciously disregard an excessive risk to Mr. Gutierrez’s health. See 11 ECF No. 48-2, pgs. 12-13. Defendant’s argument is based on the following version of events:

12 . . .Tucker saw Gerard on October 13, 2017, to address Gerard’s complaints that he was not getting any urine output from his catheter. 13 Tucker assessed the complaints and Gerard’s request to replace the catheter, informed Gerard of the risks of replacing the catheter, and then 14 attempted to change Gerard’s catheter. Tucker slowly removed the catheter with no signs of distress from Gerard. Then, while attempting to 15 insert the replacement catheter, Tucker felt resistance and stopped, immediately notifying the on-duty doctor and sending Gerard to SEMS. 16 Gerard was then treated at an outside hospital where his catheter was successfully replaced. 17 Far from consciously disregarding an excessive risk to Gerard’s health or ignoring his complaints, the undisputed evidence shows that 18 Defendant Tucker received and acknowledged Gerard’s complaints of low urine output from his catheter, discussed treatment options and associated 19 risks, and attempted to change Gerard’s catheter to address Gerard’s complaints. Tucker actively provided medical treatment to Gerard and 20 appropriately referred him to the on-duty doctor when complications arose. 21 ECF No. 48-2, pg. 12 (citations to Defendant’s Separate Statement of 22 Undisputed Facts omitted). 23 The Court finds that Defendant has met her burden on summary judgment of 24 demonstrating the non-existence of a genuine dispute of material fact. Defendant’s evidence 25 naturally supports Defendant’s version of events. The burden thus shifts to Plaintiff to provide 26 evidence to put this version of events in dispute. Plaintiff’s only evidence is Mr. Gutierrez’s pro 27 se complaint which, as discussed above, is inadmissible hearsay which does not fall within the 28 exception for declarants who are unavailable due to death. Plaintiff cannot meet his burden and 1 the Court recommends summary judgment in favor of Defendant on Plaintiff’s Eighth 2 Amendment deliberate indifference claim. 3 B. Retaliation 4 In order to state a claim under 42 U.S.C. § 1983 for retaliation, the prisoner must 5 establish that he was retaliated against for exercising a constitutional right, and that the retaliatory 6 action was not related to a legitimate penological purpose, such as preserving institutional 7 security. See Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). In meeting 8 this standard, the prisoner must demonstrate a specific link between the alleged retaliation and the 9 exercise of a constitutional right. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995); 10 Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989). The prisoner must also 11 show that the exercise of First Amendment rights was chilled, though not necessarily silenced, by 12 the alleged retaliatory conduct. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000), see also 13 Rhodes v. Robinson, 408 F.3d 559, 569 (9th Cir. 2005). Thus, the prisoner plaintiff must 14 establish the following in order to state a claim for retaliation: (1) prison officials took adverse 15 action against the inmate; (2) the adverse action was taken because the inmate engaged in 16 protected conduct; (3) the adverse action chilled the inmate’s First Amendment rights; and (4) the 17 adverse action did not serve a legitimate penological purpose. See Rhodes, 408 F.3d at 568. 18 Defendant argues that she did not subject Mr. Gutierrez to any adverse action and 19 did not act with any retaliatory motive. See ECF No. 48-2, pgs. 15-16. First, Defendant contends 20 that, because the allegations in Mr. Gutierrez’s pro se complaint cannot be considered, and 21 because Mr. Gutierrez died before he could be deposed, there is no evidence of an adverse action. 22 See id. at 15. Second, Defendant asserts that she did not act with retaliatory intent for the simple 23 reason that she was unaware Mr. Gutierrez had engaged in protected conduct. See id. at 15-16. 24 Plaintiff’s retaliation claim is necessarily linked to Plaintiff’s deliberate 25 indifference claim. Specifically, Plaintiff claims that Defendant acted in the way Mr. Gutierrez 26 alleged in the pro se complaint out of a desire to retaliate because Mr. Gutierrez’ filed an inmate 27 grievance. Thus, the adverse action element is the alleged medical deliberate indifference. As 28 discussed above, the Court finds that Defendant’s evidence relating to medical deliberate 1 | indifference is undisputed and that her version of events must thus be accepted. Accepting 2 || Defendant’s version of events, the retaliation claim necessarily fails on the first element because 3 || there was no adverse action against Mr. Gutierrez. 4 5 IV. CONCLUSION 6 Based on the foregoing, the undersigned recommends that Defendant’s motion for 7 || summary judgment, ECF No. 48, be GRANTED. 8 These findings and recommendations are submitted to the United States District 9 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 10 || after being served with these findings and recommendations, any party may file written objections 11 || with the Court. Responses to objections shall be filed within 14 days after service of objections. 12 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 13 Yist, 951 F.2d 1153 (9th Cir. 1991). 14 15 | Dated: August 3, 2023 Ss..c0_, 16 DENNIS M. COTA 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 14