1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH MATTHEW MENDEZ, No. 2:16-cv-0477 DJC AC P 12 Plaintiff, 13 v. FINDINGS & RECOMMENDATIONS 14 B. LEE, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Currently before the court is defendants’ motion for summary judgment. ECF 19 No. 31. 20 I. Procedural History 21 This case proceeds on the first amended complaint, which was screened and found to state 22 claims for deliberate indifference against defendants Lee, Murray, and Lewis. ECF No. 9. After 23 the close of discovery, defendants filed a motion for summary judgment, which plaintiff opposes. 24 ECF Nos. 31, 36. 25 II. Plaintiff’s Allegations 26 The first amended complaint alleges that plaintiff was seen by an audiologist/ENT 27 specialist who referred him for immediate treatment of his “vastly deteriorating” hearing, 28 including a cochlear implant to restore his hearing or at least maintain it at the current level. ECF 1 No. 8 at 3. Defendant Lee denied plaintiff’s first-level appeal seeking surgery, while Murray and 2 Lewis denied his second- and third-level appeals, respectively. Id. at 3-4. As a result of the 3 failure to approve plaintiff’s treatment he has suffered from total hearing loss and is more at risk 4 of being victimized. Id. at 3. 5 III. Motion for Summary Judgment 6 A. Defendants’ Arguments 7 Defendants argue that they are entitled to summary judgment because they responded 8 appropriately to plaintiff’s medical condition and therefore were not deliberately indifferent to his 9 serious medical need, and their review of plaintiff’s appeal does not give rise to a cause of action. 10 ECF No. 31-2 at 17-27. Alternatively, they argue that they are entitled to qualified immunity. Id. 11 at 27-29. 12 B. Plaintiff’s Response 13 At the outset, the court notes that plaintiff has failed to comply with Federal Rule of Civil 14 Procedure 56(c)(1)(A), which requires that “[a] party asserting that a fact . . . is genuinely 15 disputed must support the assertion by . . . citing to particular parts of materials in the record.” 16 Plaintiff has also failed to file a separate document in response to defendants’ statement of 17 undisputed facts that identifies which facts are admitted and which are disputed, as required by 18 Local Rule 260(b). 19 “Pro se litigants must follow the same rules of procedure that govern other litigants.” 20 King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citation omitted), overruled on other grounds, 21 Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). However, it is well- 22 established that district courts are to “construe liberally motion papers and pleadings filed by pro 23 se inmates and should avoid applying summary judgment rules strictly.” Thomas v. Ponder, 611 24 F.3d 1144, 1150 (9th Cir. 2010). The unrepresented prisoner’s choice to proceed without counsel 25 “is less than voluntary” and they are subject to “the handicaps . . . detention necessarily imposes 26 upon a litigant,” such as “limited access to legal materials” as well as “sources of proof.” 27 Jacobsen v. Filler, 790 F.2d 1362, 1364 n.4 (9th Cir. 1986) (alteration in original) (citations and 28 internal quotation marks omitted). Inmate litigants, therefore, should not be held to a standard of 1 “strict literalness” with respect to the requirements of the summary judgment rule. Id. (citation 2 omitted). 3 Accordingly, the court considers the record before it in its entirety despite plaintiff’s 4 failure to be in strict compliance with the applicable rules. However, only those assertions in the 5 opposition which have evidentiary support in the record will be considered. 6 Plaintiff argues that defendants are not entitled to summary judgment because they were 7 deliberately indifferent in denying his request for a cochlear implant and because their 8 involvement went beyond reviewing his appeal. ECF No. 36 at 18-21. He asserts that they also 9 reviewed all of his medical records, which documented his clear need for an implant. Id. 10 Plaintiff also argues that defendants are not entitled to qualified immunity. Id. at 1-2, 21. 11 IV. Legal Standards for Summary Judgment 12 Summary judgment is appropriate when the moving party “shows that there is no genuine 13 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 14 Civ. P. 56(a). Under summary judgment practice, “[t]he moving party initially bears the burden 15 of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 16 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The 17 moving party may accomplish this by “citing to particular parts of materials in the record, 18 including depositions, documents, electronically stored information, affidavits or declarations, 19 stipulations (including those made for purposes of the motion only), admissions, interrogatory 20 answers, or other materials” or by showing that such materials “do not establish the absence or 21 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 22 support the fact.” Fed. R. Civ. P. 56(c)(1). 23 “Where the non-moving party bears the burden of proof at trial, the moving party need 24 only prove that there is an absence of evidence to support the non-moving party’s case.” Oracle 25 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 26 Indeed, summary judgment should be entered, “after adequate time for discovery and upon 27 motion, against a party who fails to make a showing sufficient to establish the existence of an 28 element essential to that party’s case, and on which that party will bear the burden of proof at 1 trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element 2 of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. In such 3 a circumstance, summary judgment should “be granted so long as whatever is before the district 4 court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 5 56(c), is satisfied.” Id. 6 If the moving party meets its initial responsibility, the burden then shifts to the opposing 7 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 8 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the 9 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 10 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 11 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 12 Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a 13 fact “that might affect the outcome of the suit under the governing law,” and that the dispute is 14 genuine, i.e., “the evidence is such that a reasonable jury could return a verdict for the nonmoving 15 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 16 In the endeavor to establish the existence of a factual dispute, the opposing party need not 17 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 18 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 19 trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) 20 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). Thus, the 21 “purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see 22 whether there is a genuine need for trial.” Matsushita, 475 U.S. at 587 (citation and internal 23 quotation marks omitted). 24 “In evaluating the evidence to determine whether there is a genuine issue of fact, [the 25 court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls 26 v. Cent. Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is the 27 opposing party’s obligation to produce a factual predicate from which the inference may be 28 drawn. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to 1 demonstrate a genuine issue, the opposing party “must do more than simply show that there is 2 some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations 3 omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the 4 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank, 391 5 U.S. at 289). 6 Defendants simultaneously served plaintiff with notice of the requirements for opposing a 7 motion pursuant to Rule 56 of the Federal Rules of Civil Procedure along with their motion for 8 summary judgment. ECF No. 31-1; see Klingele v. Eikenberry, 849 F.2d 409, 411 (9th Cir. 9 1988) (pro se prisoners must be provided with notice of the requirements for summary judgment); 10 Rand v. Rowland, 154 F.3d 952, 960 (9th Cir. 1998) (en banc) (movant may provide notice). 11 V. Undisputed Material Facts 12 Plaintiff did not separately respond to defendant’s Statement of Undisputed Facts (DSUF), 13 and the facts are therefore deemed undisputed except as otherwise discussed.1 Additional facts 14 have been taken from plaintiff’s medical records and grievances as appropriate. 15 At all times relevant to the complaint, plaintiff was an inmate in the custody of the 16 California Department of Corrections and Rehabilitation (CDCR) and housed at High Desert 17 State Prison (HDSP). DSUF ¶¶ 1-2; ECF No. 36 at 2. He has not received medical training. 18 DSUF ¶ 3. During the relevant times, defendant Lee was employed by the CDCR as a Chief 19 Physician and Surgeon at HDSP, while Murray and Lewis were employed by California 20 Correctional Health Care Services (CCHCS) as the Chief Executive Officer of CCHCS at HDSP 21 and the Deputy Director of Policy and Risk Management Services, respectively. DSUF ¶¶ 4-5, 8, 22 11; ECF No. 36 at 2-3. 23 On May 19, 2014, plaintiff informed physician assistant Miranda that he was “a bit hard 24 of hearing” and plaintiff was referred to audiology for an initial evaluation. DSUF ¶ 14; ECF No. 25 36 at 4. One month later, plaintiff was seen for a follow-up and Miranda noted that audiology 26 1 The court notes that plaintiff’s opposition includes a facts section that largely parallels 27 defendants’ statement of facts, though he does not cite to any evidence on the record. ECF No. 36 at 2-11. Plaintiff’s recitation of facts will be considered in determining whether a fact is 28 undisputed, as appropriate. 1 recommended an ear lavage prior to plaintiff’s next visit. DSUF ¶ 15; ECF No. 36 at 4. Miranda 2 also noted “will get hearing aids soon?” and that he would follow up with audiology. ECF No. 3 31-5 at 34. 4 In October 2014, plaintiff was evaluated by Dr. Greenleaf as a follow-up to audiology and 5 it was noted that plaintiff had an audiogram in August 2014 and was given a hearing aid to wear 6 in his right ear. DSUF ¶ 16; ECF No. 36 at 4. Plaintiff reported that “[h]e was told the left ear 7 hearing is nearly completely gone, and it is not necessary to have a hearing aid in his left ear as it 8 will not help; it is essentially completely deaf.” ECF No. 31-5 at 36. Greenleaf assessed plaintiff 9 as having deafness in his left ear, partial deafness in his right ear, and noted that plaintiff was 10 wearing his new hearing aid which seemed to be working “quite well.” DSUF ¶ 17; ECF No. 36 11 at 4. It was further noted that effective communication was reached and plaintiff understood all 12 of Greenleaf’s questions and answered them appropriately, was classified as Disability Not 13 Impacting Placement Hearing (DNH), and used accommodations successfully. DSUF ¶ 18; ECF 14 No. 31-5 at 37. A request was put in for a consultation with an ear, nose, and throat (ENT) 15 specialist to determine the etiology of plaintiff’s deafness. DSUF ¶ 19; ECF No. 36 at 4. 16 On January 6, 2015, plaintiff saw ENT specialist Dr. Ludlow for evaluation of his hearing. 17 DSUF ¶ 20; ECF No. 36 at 4. Plaintiff reported that he began losing his hearing at least five 18 years ago, had no useful hearing in his left hear, and had just gotten a hearing aid for his right ear. 19 DSUF ¶ 21; ECF No. 31-5 at 39. Ludlow noted that plaintiff’s hearing was “obviously impaired” 20 and that plaintiff’s communication and speech were “good.” DSUF ¶ 22; ECF No. 36 at 4. 21 Plaintiff’s ears were “[p]erfectly clear with no fluid, inflammation or retraction” with hearing 22 “subjectively decreased severely on the right, no response on the left.” DSUF ¶ 23; ECF No. 36 23 at 4. The report also states that Ludlow reviewed a hearing test and that plaintiff “has no 24 discrimination in the left ear, he has moderately good discrimination in the right ear at 105 25 decibels” and his impression was that plaintiff had “[s]evere to profound hearing loss.” DSUF 26 ¶¶ 24-25; ECF No. 31-5 at 39; ECF No. 36 at 4-5. Ludlow recommended that plaintiff “be 27 referred to Dr. Hilary Brodie in the department of otolaryngology at UC Davis” and that plaintiff 28 be evaluated for a cochlear implant. DSUF ¶ 25; ECF No. 36 at 5. 1 On February 12, 2015,2 plaintiff was seen by Mirada for a follow-up to his ENT 2 appointment and it was noted that he was wearing a hearing aid, could “hear [him] well at 6 feet 3 away. Answers appropriately,” and effective communication was reached. DSUF ¶ 27; ECF No. 4 31-5 at 41. During the appointment plaintiff reported that he continued to have decreased hearing 5 with a hearing aid and agreed to an ENT visit. ECF No. 31-5 at 41. Miranda further noted the 6 recommendation for a cochlear implant and completed a request for service on a routine basis. 7 Id.; ECF No. 31-7 at 16. Defendant Lee denied the request for service on February 17, 2015, and 8 referred the referral to the Headquarters Utilization Management Committee (HUMC) for 9 evaluation. ECF No. 31-7 at 16; DSUF ¶ 28. 10 On May 21, 2015, plaintiff was examined by Dr. Bannister, who noted the January 6, 11 2015 consultant note for a consideration of a cochlear implant and that plaintiff was not wearing 12 hearing aids and asked for his hearing aids to be repaired. DSUF ¶ 29; ECF No. 31-5 at 43. 13 Bannister noted that plaintiff’s hearing was “Not At Goal,” he was putting in a request to 14 audiology to have plaintiff’s hearing aid repaired, and effective communication was achieved. 15 ECF No. 31-5 at 43. 16 On June 10, 2015, plaintiff submitted a health care services request claiming that he 17 needed to be “reassessed by an audiologist immediately,” that his hearing was “rapidly becoming 18 obsolete,” and his hearing aid was “ineffective.” DSUF ¶ 39; ECF No. 31-5 at 45. The same day 19 he also submitted appeal log HDSP HC 15029247 in which he stated that he was “being denied 20 urgent medical care,” was “on the brink of becoming deaf,” and had seen two specialists that had 21 recommended a cochlear implant. DSUF ¶ 38; ECF No. 31-5 at 11. The following day, RN 22 Hubbard reviewed the health care request and noted that plaintiff had been seen by audiology on 23 June 9, 2015, issued new hearing aids, and would be scheduled for a routine audiogram.” DSUF 24 ¶ 40; ECF No. 31-5 at 45. 25 On June 18, 2015, plaintiff was seen by Dr. Lankford on a follow-up from his June 9, 26
27 2 Defendants state that the appointment occurred on February 2, 2015, but the record appears to be dated February 12, 2015. See DSUF ¶ 27; ECF No. 31-5 at 41. In either event, the difference 28 in date is not material. 1 2015 audiology appointment and for decreased hearing and a broken hearing aid. DSUF ¶ 41; 2 ECF No. 31-5 at 47. Lankford noted that the audiologist replaced plaintiff’s broken hearing aid, 3 plaintiff had no problem hearing him at normal speech, he was able to achieve effective 4 communication, and plaintiff’s hearing loss was “At Goal.” DSUF ¶ 42; ECF No. 31-5 at 47. 5 On June 24, 2015, the reasonable accommodation panel responded to plaintiff’s request 6 for a cochlear implant, which he claimed was being denied by defendant Lee. ECF No. 31-5 at 7 50. The panel determined that no interim accommodations were required and that plaintiff was in 8 the process of being treated and evaluated by medical staff. Id. Specifically, they found that he 9 had recently been seen by audiology, had his hearing aids replaced, and was scheduled for a 10 follow-up testing with an audiologist in a month. Id. The disability verification process 11 worksheet was completed by defendant Lee and noted that the HUMC had denied approval for a 12 cochlear implant on June 10, 2015 and that there was “no medical indication for cochlear implant 13 emergently.” Id. at 49. 14 On July 21, 2015, plaintiff was seen by audiology for an audiogram, the results of which 15 showed zero word-recognition and no response to any sound impulse to 120 decibels. DSUF 16 ¶ 49; ECF No. 36 at 7. Defendants assert that the accuracy of the results was “very unlikely” 17 since plaintiff had been previously noted to be able to converse with functioning hearing aids. 18 DSUF ¶ 49. Plaintiff asserts the results were accurate. ECF No. 36 at 7. 19 On August 6, 2015, plaintiff was interviewed by Lankford, who noted that he could hear 20 conversational levels of speech but still wanted a referral to a cochlear transplant specialist. 21 DSUF ¶ 50; ECF No. 31-5 at 56. Lankford further noted that plaintiff’s hearing loss was being 22 treated at goal, that plaintiff’s hearing aids were functioning, and that plaintiff could hear normal 23 conversations at normal decibels. DSUF ¶ 51; ECF No. 31-5 at 56. A request for service to UC 24 Davis was submitted. DSUF ¶ 52; ECF No. 31-5 at 56; ECF No. 31-7 at 26. 25 On August 21, 2015, defendant Lee responded to plaintiff’s first-level appeal. DSUF ¶ 26 54; ECF No. 31-5 at 15. The appeal was partially granted because plaintiff was referred to 27 audiology and the response stated that plaintiff was seen by audiology on July 21, 2015, and that 28 Lankford had put in a request for services on August 6, 2015, that was currently pending. ECF 1 No. 31-5 at 15. In preparing the response, Lee reviewed plaintiff’s appeal, notes from plaintiff’s 2 interview with Lankford on August 6, 2015, plaintiff’s unit health record, and all pertinent 3 departmental policies and procedures. DSUF ¶ 53; ECF No. 31-5 at 15. She conducted a full 4 evaluation of plaintiff’s medical record and found that plaintiff was in the process of being treated 5 and evaluated by medical staff and was able to communicate effectively with various healthcare 6 providers on numerous occasions using working hearing aids. DSUF ¶ 55; ECF No. 31-5 at 15. 7 Lee ultimately determined that there was no need for a cochlear implant based on her findings 8 and her medical opinion. DSUF ¶ 58. A cochlear implant is not a medical necessity if a patient 9 has working hearing aids, which plaintiff had, and the HUMC’s decision from June 2015 10 confirmed. DSUF ¶ 56. Plaintiff submitted his dissatisfaction with the appeal response on or 11 around September 9, 2015. DSUF ¶ 59; ECF No. 36 at 8. 12 On September 16, 2015, the Institutional Utilization Management Committee (IUMC) 13 denied the request for service for consultation at UC Davis on the ground that plaintiff’s case did 14 not meet Interqual criteria and there was no medical necessity for a cochlear implant because 15 plaintiff’s hearing aids worked and he could converse. DSUF ¶ 61; ECF No. 31-5 at 58-59. 16 Interqual is a well-respected and widely used evidence-based clinical decision support solution to 17 help payers, providers, and government agencies make clinically appropriate medical utilization 18 decisions. DSUF ¶ 60. 19 On September 30, 2015, plaintiff was interviewed by RN Carter, who noted that he had a 20 hearing aid in his right ear, was able to understand the RN and summarize the information 21 provided in his own words, able to read lips, and had no complaints. DSUF ¶¶ 31, 64; ECF No. 22 31-5 at 63. The same day, defendant Lee issued a response to plaintiff’s second-level appeal. 23 DSUF ¶ 66; ECF No. 36 at 8. The response reiterated the appeal and response at the first level 24 and stated that plaintiff continued to claim he needed a cochlear implant and that it was an 25 emergency. ECF No. 31-5 at 16. The request further summarized plaintiff’s treatment, noting 26 that he was seen by an ENT specialist on January 6, 2015, at which time it was “recommended 27 that [he] be referred to otolaryngology at UC Davis for evaluation for a cochlear implant.” Id. 28 (emphasis in original). It noted that a request for referral to UC Davis was put in on August 6, 1 2015, and was denied by the IUMC on September 16, 2015, because his case did not meet 2 Interqual criteria, and that “some treatment, specialist referral and diagnostic studies must meet 3 Interqual criteria.” Id. at 16-17. The response further stated that “[t]here is no medical need for 4 you to be evaluated at UCD for a cochlear implant at this time as you currently would not qualify 5 for an implant.” Id. at 16. The plan for plaintiff’s treatment at the time was for periodic 6 audiograms to monitor his hearing needs. Id. at 17. 7 In preparing the second-level response, Lee reviewed plaintiff’s appeal, notes from 8 plaintiff’s interview with Lankford on August 6, 2015, plaintiff’s unit health record, and all 9 pertinent departmental policies and procedures. DSUF ¶ 65; ECF No. 31-5 at 16-17. She 10 conducted a full re-evaluation of plaintiff’s medical records and found that, after the previous 11 denial of a cochlear implant, plaintiff was still being treated and evaluated by medical staff, was 12 able to communicate effectively with an RN, and had working hearing aids, which meant a 13 cochlear implant was still not a medical necessity. DSUF ¶ 69. 14 On October 8, 2015, defendant Murray reviewed plaintiff’s second-level appeal. DSUF 15 ¶ 73; ECF No. 36 at 9. It was his responsibility to review decisions of the Chief Physician and 16 Surgeon, in this case defendant Lee, at the second level of appeal. DSUF ¶ 74. Murray’s role 17 was primarily administrative, and he was not required to routinely review all medical charts and 18 records. DSUF ¶ 76. In reviewing appeals, Murray would review the completed forms to ensure 19 they were internally consistent and correctly filled out and that the patient’s needs were 20 addressed. DSUF ¶ 75. In this case, all documents were correctly filled out, plaintiff’s needs 21 were addressed, and the decisions were consistent with the objective findings by the doctors and 22 plaintiff’s complaints. DSUF ¶ 77. Murray found no reason to reject Lee’s decision as it was 23 medically reasonable, appropriate under the standards of care and departmental policies, and was 24 consistent with other healthcare professionals’ medical opinions. DSUF ¶¶ 78-79. Plaintiff 25 submitted his dissatisfaction with the second-level response on November 23, 2015. DSUF ¶ 81. 26 On January 25, 2016, defendant Lewis was assigned to review the third-level appeal. 27 DSUF ¶ 82; ECF No. 36 at 10. Her duties as deputy director included overseeing and managing 28 the Health Care Correspondence and Appeals Branch, which receives, reviews, and maintains all 1 health care appeals accepted for the final level of review and renders decisions on those appeals. 2 DSUF ¶¶ 83-84; ECF No. 36 at 10. Lewis relies on findings by inmates’ primary care providers 3 to verify information provided by the inmates and her involvement in plaintiff’s case was limited 4 to delegating authority to prepare and sign the third-level response to plaintiff’s appeal. DSUF 5 ¶¶ 85-86. Her denial of plaintiff’s third-level appeal was based on licensed clinical staff’s review 6 of plaintiff’s appeal and documents in his unit health record and consideration of the IUMC and 7 HUMC’s denials of plaintiff’s request for a cochlear implant because he did not meet Interqual 8 criteria. DSUF ¶¶ 87-88; ECF No. 31-4 at 6-7. The response further noted that plaintiff had a 9 plan of care that included periodic audiograms to monitor his hearing needs, that he currently had 10 functioning hearing aids, and that records reflected he received two hearing aid batteries on 11 December 21, 2015. DSUF ¶ 90; ECF No. 31-4 at 7. CCHCS provides medical services for 12 patients that are based on medical necessity and supported by outcome data as effective medical 13 care, and there was no medical need for plaintiff to be evaluated at UC Davis for a cochlear 14 implant or medical indication for cochlear surgery. DSUF ¶¶ 89, 92. It was ultimately 15 determined at the third level of review that no intervention was necessary because plaintiff’s 16 medical condition was evaluated and he was receiving treatment deemed medically necessary. 17 DSUF ¶¶ 94-95. 18 On June 24, 2016, plaintiff was seen by Dr. Reisman, an ENT at ENT Associates Medical 19 Group. DSUF ¶ 32; ECF No. 36 at 5. Reisman noted that plaintiff had severe to profound 20 hearing loss and that they had attempted a telemedicine consultation but had arranged an in- 21 person visit and audiogram after plaintiff was unable to understand him over video. ECF No. 31- 22 3 at 19. Plaintiff reported that he was able to get by with a hearing aid and face-to-face 23 communication but was not able to understand without the face-to-face component. Id. Reisman 24 stated that “there were many individual factors that evidenced poor validity for this particular 25 audiogram and likely malingering” and the results of the audiogram were “suspect and possibly 26 invalid.” Reisman further noted that he had a suspicion that plaintiff had hearing loss and that 27 plaintiff appeared to have difficulty using his current hearing aid set up, but that “we cannot be 28 sure that his thresholds are truly this bad and that there is no other secondary gain issues at hand 1 regarding the level of hearing loss that he presents.” Id. at 19-20. In light of the invalid 2 audiogram, Reisman found plaintiff needed an “auditory brainstem response test with thresholds 3 to help determine the true nature of his hearing threshold” and that he was referring plaintiff to 4 UCSD otology to try and establish plaintiff’s hearing threshold and for their opinion regarding 5 eligibility for a cochlear implant. Id. at 20. 6 On November 7, 2016, plaintiff was seen at Riverside University Health System by 7 outside expert audiologist Dr. LeClair. DSUF ¶ 34; ECF No. 36 at 6. LeClair conducted several 8 tests and concluded that plaintiff’s “objective and subjective tests results do not correspond” and 9 that while plaintiff “likely has some degree of hearing loss . . . objective test results indicate that it 10 is far less than was supposed based on his behavioral responses.” ECF No. 31-3 at 25-26. 11 LeClair concluded that “[p]atient is NOT a candidate for cochlear implantation in either ear” and 12 recommended repair or replacement of plaintiff’s haring aid and audiologic re-evaluation as 13 needed. Id. at 26. 14 VI. Discussion 15 A. Deliberate Indifference 16 i. Legal Standard 17 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 18 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 19 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires plaintiff 20 to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a prisoner’s condition 21 could result in further significant injury or the unnecessary and wanton infliction of pain,’” and 22 (2) “the defendant’s response to the need was deliberately indifferent.” Id. (some internal 23 quotation marks omitted) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)). 24 A plaintiff can establish deliberate indifference “by showing (a) a purposeful act or failure to 25 respond to a prisoner’s pain or possible medical need and (b) harm caused by the 26 indifference.” Id. (citing McGuckin, 974 F.2d at 1060). 27 A difference of opinion between an inmate and prison medical personnel—or between 28 medical professionals—regarding the appropriate course of treatment does not by itself amount to 1 deliberate indifference to serious medical needs. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th 2 Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). To establish that a difference of 3 opinion rises to the level of deliberate indifference, plaintiff “must show that the chosen course of 4 treatment ‘was medically unacceptable under the circumstances,’ and was chosen ‘in conscious 5 disregard of an excessive risk to [the prisoner’s] health.’” Toguchi, 391 F.3d at 1058 (alteration 6 in original) (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). 7 ii. Analysis 8 The facts in this case are largely undisputed, and it is undisputed that, with the exception 9 of defendant Lee who also denied the initial referral to UC Davis and prepared the disability 10 verification worksheet, defendants’ conduct was limited to reviewing plaintiff’s appeal and 11 medical records and determining whether intervention was warranted based upon the information 12 contained in those records. Plaintiff’s opposition to the motion relies almost exclusively on the 13 January 6, 2015 evaluation and recommendation by Dr. Ludlow. ECF No. 36 at 5, 7-8. Plaintiff 14 argues that Ludlow’s notation that his hearing loss was severe and profound is a “clear indication 15 of severe and urgent” medical need, that Ludlow “indicated a sense of urgency,” and that this 16 notation establishes that delay would cause worsening or progression of plaintiff’s hearing loss. 17 ECF No. 36 at 5. However, the evidence does not support plaintiff’s interpretation of Ludlow’s 18 recommendation. The fact that plaintiff’s hearing loss was severe does not equate to a finding 19 that it was actively degrading and in need of immediate intervention, and it is clear from review 20 of Ludlow’s notes that he did not state the recommendation for evaluation was urgent or indicate 21 there was a risk that plaintiff’s hearing would continue to degrade if there was a delay in plaintiff 22 receiving a cochlear implant. ECF No. 31-5 at 39. Furthermore, contrary to plaintiff’s 23 arguments, Ludlow did not recommend that plaintiff receive a cochlear implant, only that he be 24 evaluated for one. Id. 25 Plaintiff’s dissatisfaction with the treatment he received and belief that he should have 26 received different treatment based upon Ludlow’s recommendation that he be referred for 27 evaluation for a cochlear implant amounts to no more than a difference of opinion as to the 28 appropriate treatment. This is insufficient to establish deliberate indifference. See Toguchi, 391 1 F.3d at 1058 (difference of opinion between inmate and prison medical personnel—or between 2 medical professionals—regarding appropriate course of treatment does not by itself amount to 3 deliberate indifference). There are no facts on the record demonstrating that plaintiff ever met the 4 criteria for a cochlear implant, that failure to provide one resulted in further hearing loss, or that 5 the treatment he received “‘was medically unacceptable under the circumstances,’ and was 6 chosen ‘in conscious disregard of an excessive risk to [his] health.’” Toguchi, 391 F.3d at 1058 7 (quoting Jackson, 90 F.3d at 332). 8 Nor is there evidence that plaintiff’s records revealed an ongoing constitutional violation 9 that would have obligated defendants to intervene. Although Lee denied the initial request for 10 referral to UC Davis, she also forwarded it to the HUMC for further consideration. Moreover, 11 plaintiff’s records indicated that he was receiving appropriate treatment, was able to communicate 12 with the use of a hearing aid, and a cochlear implant was not medically necessary. Accordingly, 13 defendants’ denial of plaintiff’s request for a cochlear implant based upon their review of his 14 records as part of the appeals process does not establish deliberate indifference. See Peralta v. 15 Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) (reliance on medical opinions of staff dentists who 16 had investigated claims and signed off on treatment plan to deny second-level grievance did not 17 constitute deliberate indifference). 18 Finally, even if the court assumes that defendants should have sent plaintiff to be 19 evaluated for a cochlear implant at the time they reviewed his grievances, there is no evidence 20 that the delay in having plaintiff evaluated caused him additional injury. See Shapley v. Nev. Bd. 21 of State Prison Comm’rs., 766 F.2d 404, 407 (9th Cir. 1985) (delay of surgery did not constitute 22 deliberate indifference unless delay was harmful); Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 23 2002) (delaying treatment does not establish deliberate indifference unless plaintiff proves delay 24 led to further injury); Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990) (delay in 25 treatment does not constitute Eighth Amendment violation unless it causes “substantial harm”). 26 Although plaintiff argues that his hearing has continued to degrade, this assertion is not supported 27 by the evidence. The subsequent evaluation by Dr. LeClair included objective test results that 28 showed plaintiff’s results “were consistent with normal hearing to at most a moderate hearing 1 loss” and a determination that plaintiff was not a candidate for cochlear implantation in either ear. 2 ECF No. 31-3 at 25-26. This evidence indicates that plaintiff’s hearing did not degrade further 3 and that there was no need for a cochlear implant; there is no evidence that an earlier evaluation 4 would have resulted in a different outcome. 5 B. Qualified Immunity 6 “[G]overnment officials performing discretionary functions generally are shielded from 7 liability for civil damages insofar as their conduct does not violate clearly established statutory or 8 constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 9 U.S. 800, 818 (1982) (citations omitted). In analyzing a qualified immunity defense, the court 10 must consider the following: (1) whether the alleged facts, taken in the light most favorable to the 11 plaintiff, demonstrate that defendant's conduct violated a statutory or constitutional right; and (2) 12 whether the right at issue was clearly established at the time of the incident. Saucier v. Katz, 533 13 U.S. 194, 201 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223, 236 (2009) 14 (overruling Saucier’s requirement that the two prongs be decided sequentially). Since the facts 15 taken in the light most favorable to plaintiff do not show the violation of a constitutional right, it 16 is not necessary for the court to address defendants’ qualified immunity argument and the court 17 declines to do so. 18 C. Conclusion 19 For the reasons set forth above, defendants’ motion for summary judgment should be 20 granted on the ground that defendants did not violate plaintiff’s Eighth Amendment rights and the 21 court declines to address defendants’ qualified immunity argument. 22 VII. Plain Language Summary of this Order for a Pro Se Litigant 23 The undisputed evidence shows that defendants were not deliberately indifferent to your 24 medical needs when they denied your appeals requesting a cochlear implant. Although your 25 medical records showed that a doctor recommended you be evaluated for a cochlear implant, 26 there was no indication that the recommended referral was urgent or that your hearing would 27 continue to diminish. Also, your medical records indicated that your hearing was being 28 monitored and you were able to communicate with the use of a hearing aid. Your disagreement 1 | with defendants about whether you need a cochlear implant is not enough to show a constitutional 2 | violation. 3 CONCLUSION 4 Accordingly, IT IS HEREBY RECOMMENDED that: 5 1. Defendants’ motion for summary judgment (ECF No. 31) be GRANTED; 6 2. Judgment be entered for defendants; and 7 3. The Clerk of the Court be directed to close this case. 8 These findings and recommendations are submitted to the United States District Judge 9 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 10 || after being served with these findings and recommendations, any party may file written 11 || objections with the court and serve a copy on all parties. Such a document should be captioned 12 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 13 || objections shall be served and filed within fourteen days after service of the objections. The 14 | parties are advised that failure to file objections within the specified time may waive the right to 15 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 16 | DATED: October 30, 2023 * 17 Htttenr— Lhor—e_ ALLISON CLAIRE 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 16