(PC) Randolph v. Lozovoy

• Court: District Court, E.D. California
• Decided: August 29, 2019
• Docket: 1:16-cv-01528
• Status: Unknown

Opinion

5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7

8 COLIN M. RANDOLPH, Case No. 1:16-cv-01528-DAD-EPG (PC) 9 Plaintiff, FINDINGS AND RECOMMENDATIONS, 10 RECOMMENDING THAT DEFENDANTS’ v. MOTION FOR SUMMARY JUDGMENT 11 BE GRANTED AS TO PLAINTIFF’S R. LOZOVOY, et al., CLAIMS AGAINST DEFENDANTS 12 GREWAL AND CHEN BUT DENIED AS Defendants. TO PLAINTIFF’S CLAIM AGAINST 13 DEFENDANT LOZOVOY

14 (ECF NO. 49) 15 OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN DAYS

17 18 Colin Randolph (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 19 with this civil rights action filed pursuant to 42 U.S.C. § 1983. “This action now proceeds on 20 plaintiff’s first amended complaint on plaintiff’s claims against defendants Lozovoy, Grewal, 21 and Chen, for deliberate indifference to serious medical needs in violation of the Eighth 22 Amendment.” (ECF No. 14, p. 3). 23 On January 15, 2019, Defendants filed a motion for summary judgment. (ECF No. 49). 24 Defendants move for summary judgment on the grounds that “(1) Plaintiff failed to exhaust 25 administrative remedies with respect to Defendants Grewal and Chen, because the only appeal 26 he filed concerning the issues raised in the complaint was filed before he saw them; (2) each 27 Defendant provided proper medical care to Plaintiff at the time of treating him; and (3) 28 Defendants are entitled to qualified immunity because they acted reasonably in providing 1 medical care to Plaintiff.” (ECF No. 49-1, p. 6). 2 On February 4, 2019, Plaintiff filed his opposition. (ECF No. 51). Plaintiff admits that 3 he failed to exhaust his administrative remedies as to defendants Chen and Grewal, but argues 4 that the Court should not grant summary judgment to defendant Lozovoy. (Id. at 1-2). 5 Defendants filed their reply on February 15, 2019. (ECF No. 54). 6 Defendants’ motion for summary judgment is now before the Court. For the reasons 7 that follow, the Court will recommend that Defendants’ motion for summary judgment be 8 granted as to defendants Grewal and Chen, but denied as to defendant Lozovoy. 9 I. PLAINTIFF’S CLAIMS 10 a. Summary of Plaintiff’s First Amended Complaint 11 On or about March 1, 2015, Plaintiff injured his left knee coming down from his 12 assigned upper bunk “where no safely designed way to do so existed or was clearly posted in or 13 out of cell on how to do so.” Plaintiff submitted a medical sick call slip requesting medical 14 attention. 15 On or about March 3, 2015, Correctional Officer Buyard arrived at Plaintiff’s cell with 16 a wheelchair and pushed Plaintiff to the doctor’s office. While at the doctor’s office, Plaintiff 17 met with defendant Nurse Practitioner Lozovoy. Plaintiff described his symptoms. Defendant 18 Lozovoy did not evaluate Plaintiff’s injury. Plaintiff asked him for a temporary lower bunk 19 accommodation and wheelchair access for showers as well as adequate pain medication and an 20 X-ray. Defendant Lozovoy denied all the requests, and stated that he had removed Plaintiff’s 21 lower bunk accommodation for exercising and since Plaintiff has gout, Plaintiff’s joints are 22 prone to flare ups from any trauma. Defendant Lozovoy also told Plaintiff that Plaintiff was 23 already receiving medication for gout and pain, and that Plaintiff had to figure out how to get 24 off his bunk without stressing his joints. When Plaintiff protested that there was no way to get 25 out of the upper bunk without trauma to the joints, defendant Lozovoy told Plaintiff that other 26 inmates are not complaining, and that Plaintiff needed to figure it out. 27 On or about March 4, 2015, Plaintiff went “man down” and was taken to 28 triage/emergency in a wheelchair, where he was seen by a nurse who evaluated Plaintiff’s knee 1 and scheduled an immediate X-ray. The X-ray came back negative, showing no signs of breaks 2 or fractures. The person who conducted the X-ray told Plaintiff that an MRI would be helpful 3 due to the severe swelling and possible tissue damage. The nurse who evaluated Plaintiff’s 4 knee told Plaintiff that he would be seen later by defendant Doctor Chen. 5 Plaintiff was taken back to his cell and given 400 mg of ibuprofen, which did not reduce 6 the swelling or pain. Because Plaintiff could not get on or off the assigned bunk without 7 assistance, he urinated and defecated on himself. 8 During daily pill rounds, Plaintiff told Licensed Vocational Nurse Rodriguez that the 9 medication was not working, that Plaintiff needed help getting off his bunk, and that Plaintiff 10 needed her help to get off the bed to use the restroom and shower. Rodriguez refused to give 11 Plaintiff any medical assistance. Plaintiff again urinated and defecated on himself. 12 Plaintiff submitted several emergency sick call slips. 13 On or about March 5, 2015, Plaintiff was seen by defendant Grewal, a registered nurse. 14 Plaintiff described his symptoms and his difficulty getting to the bathroom and requested 15 assistance. Defendant Grewal acknowledged Plaintiff’s medical history of gout, refused to help 16 Plaintiff access the shower, and denied temporary accommodations. 17 On March 8, 2015, defendant Grewal changed Plaintiff’s medication from ibuprofen to 18 500mg of naproxen. The swelling on Plaintiff’s left knee had increased and the pain was 19 excruciating. Plaintiff told defendant Grewal that naproxen did not work in the past during 20 gout flare ups and he doubted it would work now. Plaintiff told defendant Grewal that he 21 needed help to get off his bed and to a shower. Plaintiff was told that he would be given a 22 walker, an ACE bandage, and ice, so that he could shower and get around the cell to the toilet. 23 Plaintiff again asked for a lower bunk accommodation, but defendant Grewal refused. 24 Plaintiff continued to suffer excruciating pain and swelling trying to get on and off his 25 bed, and he was not given the walker. Plaintiff was forced to urinate and defecate on himself 26 because defendant Grewal did not issue Plaintiff a walker. 27 On or about March 10, 2015, Plaintiff saw defendant Chen at the medical clinic. 28 Plaintiff reiterated all of his complaints and asked about an MRI. Defendant Chen refused to 1 order an MRI. Dr. Chen acknowledged the treatment that Plaintiff was receiving for gout, and 2 told Plaintiff to figure out a way to live with the upper bunk. Plaintiff asked for a permanent 3 lower bed to aide in not causing trauma to his joints, but defendant Chen refused. 4 Plaintiff filed prison grievances. As a result of the grievances, on March 19, 2015, Dr. 5 Chen ordered that Plaintiff be given a temporary lower bunk. Plaintiff received a lower bunk 6 on March 20, 2015. On or about March 27, 2015, Plaintiff was provided a wheelchair to be 7 used to get to showers, yard, and visiting. 8 b. Screening Order 9 The Court screened Plaintiff’s First Amended Complaint. (ECF Nos. 12 & 14). The 10 Court ordered that on this case proceed on “plaintiff’s first amended complaint on plaintiff’s 11 claims against defendants Lozovoy, Grewal, and Chen, for deliberate indifference to serious 12 medical needs in violation of the Eighth Amendment,” and dismissed all other claims. (ECF 13 No. 14, p. 3). 14 II. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 15 a. Legal Standards for Summary Judgment 16 Summary judgment in favor of a party is appropriate when there “is no genuine dispute 17 as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 18 P. 56(a); Albino v. Baca (“Albino II”), 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (“If there 19 is a genuine dispute about material facts, summary judgment will not be granted.”). A party 20 asserting that a fact cannot be disputed must support the assertion by “citing to particular parts 21 of materials in the record, including depositions, documents, electronically stored information, 22 affidavits or declarations, stipulations (including those made for purposes of the motion only), 23 admissions, interrogatory answers, or other materials, or showing that the materials cited do not 24 establish the absence or presence of a genuine dispute, or that an adverse party cannot produce 25 admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). 26 A party moving for summary judgment “bears the initial responsibility of informing the 27 district court of the basis for its motion, and identifying those portions of ‘the pleadings, 28 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 1 any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 2 Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). If the moving party 3 moves for summary judgment on the basis that a material fact lacks any proof, the Court must 4 determine whether a fair-minded jury could reasonably find for the non-moving party. 5 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla 6 of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on 7 which the jury could reasonably find for the plaintiff.”). “[A] complete failure of proof 8 concerning an essential element of the nonmoving party’s case necessarily renders all other 9 facts immaterial.” Celotex, 477 U.S. at 322. “[C]onclusory allegations unsupported by factual 10 data” are not enough to rebut a summary judgment motion. Taylor v. List, 880 F.2d 1040, 11 1045 (9th Cir. 1989), citing Angel v. Seattle-First Nat’l Bank, 653 F.2d 1293, 1299 (9th Cir. 12 1981). 13 In reviewing the evidence at the summary judgment stage, the Court “must draw all 14 reasonable inferences in the light most favorable to the nonmoving party.” Comite de 15 Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). It 16 need only draw inferences, however, where there is “evidence in the record… from which a 17 reasonable inference… may be drawn…”; the court need not entertain inferences that are 18 unsupported by fact. Celotex, 477 U.S. at 330 n. 2 (citation omitted). Additionally, “[t]he 19 evidence of the non-movant is to be believed….” Anderson, 477 U.S. at 255. Moreover, the 20 Court must liberally construe Plaintiff’s filings because he is a prisoner proceeding pro se in 21 this action. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). 22 In reviewing a summary judgment motion, the Court may consider other materials in 23 the record not cited to by the parties, but is not required to do so. Fed. R. Civ. P. 56(c)(3); 24 Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). 25 a. Plaintiff’s Claims Against Defendants Grewal and Chen 26 Defendants argue that “Plaintiff failed to exhaust administrative remedies with respect 27 to Defendants Grewal and Chen, because the only appeal he filed concerning the issues raised 28 in the complaint was filed before he saw them.” (ECF No. 49-1, p. 6). 1 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that 2 “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. ' 1983], or any 3 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 4 such administrative remedies as are available are exhausted.” 42 U.S.C. ' 1997e(a). 5 Prisoners are required to exhaust the available administrative remedies prior to filing 6 suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 7 (9th Cir. 2002) (per curiam). The exhaustion requirement applies to all prisoner suits relating 8 to prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required regardless of 9 the relief sought by the prisoner and regardless of the relief offered by the process, unless “the 10 relevant administrative procedure lacks authority to provide any relief or to take any action 11 whatsoever in response to a complaint.” Booth v. Churner, 532 U.S. 731, 736, 741 (2001); 12 Ross v. Blake, 136 S.Ct. 1850, 1857, 1859 (2016). If the Court concludes that Plaintiff has 13 failed to exhaust, the proper remedy is dismissal without prejudice of the portions of the 14 complaint barred by section 1997e(a). Jones, 549 U.S. at 223–24; Lira v. Herrera, 427 F.3d 15 1164, 1175–76 (9th Cir. 2005). 16 As Plaintiff admits that he “did fail to properly exhaust his administrative remedies in 17 regards to Defendant[s] Chen and Grewal” (ECF No. 51, p. 1), the Court will recommend that 18 Defendants’ motion for summary judgment be granted as to defendants Chen and Grewal. 19 b. Plaintiff’s Claim Against Defendant Lozovoy 20 A. Defendants’ Position 21 Defendants argue that “[t]he undisputed evidence shows that Nurse Practitioner 22 Lozovoy provided Plaintiff with appropriate medical care at the time he saw him on March 3, 23 2015. It is undisputed that Lozovoy saw Plaintiff two days after he allegedly injured his knee, 24 the very morning his request was received by the triage nurse. Lozovoy noted Plaintiff’s left 25 knee appeared normal, had full range of motion, and that Plaintiff had full strength of his left 26 leg. Based on this evaluation, Nurse Practitioner Lozovoy did not determine Plaintiff had a 27 medical need for a low bunk chrono at that time. Lozovoy advised Plaintiff to avoid triggers 28 and to take Motrin for pain as needed.” (ECF No. 49-1, p. 17) (citations omitted). 1 “Plaintiff’s disagreement with Lozovoy regarding his need for a low bunk is insufficient 2 to establish deliberate indifference. In order to prevail on his deliberate indifference claim 3 against Lovozoy, Plaintiff must show that Lozovoy chose [a] course of treatment that was 4 medically unacceptable under the circumstances.” (Id.) (citations omitted). 5 Additionally, Defendants argue that defendant Lozovoy is entitled to summary 6 judgment because Plaintiff cannot show that defendant Lozovoy’s actions or inactions caused 7 Plaintiff to suffer any harm. (ECF No. 54, p. 4). 8 Finally, Defendants argue that defendant Lozovoy is entitled to qualified immunity. 9 (ECF No. 49-1, p. 19). Plaintiff cannot establish that defendant Lozovoy violated his 10 constitutional rights. (Id.). Moreover, defendant Lozovoy acted reasonably. (Id.). “Lozovoy 11 did not prescribe Plaintiff a lower bunk chrono given his assessment that Plaintiff’s knee 12 appeared normal and had full range of motion at the time he saw him.” (Id.). 13 B. Plaintiff’s Position 14 On or about March 1, 2015, Plaintiff submitted a sick call slip stating that he injured his 15 left knee coming down off his bed. (ECF No. 51, p. 4). He was seen by defendant Lozovoy on 16 March 3, 2015. (Id. at 5). 17 Plaintiff arrived at his March 3 appointment with defendant Lozovoy in a wheelchair. 18 (Id. at 14). At the appointment, Plaintiff requested temporary lower bunk accommodations, 19 an x-ray, and a change in medication for pain. (Id. at 14-15). However, Plaintiff was not 20 evaluated to determine whether his claim of a blown-out knee was true. (Id. at 15). Instead, 21 defendant Lozovoy fabricated an evaluation that did not take place. (Id. at 16). Plaintiff was 22 unable to stand or walk (which is why he arrived to the appointment in a wheelchair), yet 23 defendant Lozovoy wrote that Plaintiff’s left knee appeared normal, had a full range of motion, 24 and had full strength. (Id.). 25 Additionally, defendant Lozovoy knew Plaintiff had medical issues because Plaintiff 26 previously had a lower bed accommodation, which defendant Lozovoy claimed was no longer 27 needed four years earlier. (Id. at 15-16). 28 1 While defendant Lozovoy did not evaluate Plaintiff, other medical professionals did. 2 (Id.). The x-ray technician noted joint effusion. (Id.). Nurse Grewal noted swelling and 3 tenderness, and ordered accommodations. (Id. at 16). Doctor Chen issued Plaintiff a lower 4 bunk accommodation. (Id.). 5 Finally, Plaintiff argues that defendant Lozovoy is not entitled to qualified immunity. 6 Plaintiff’s right to be free of deliberate indifference to his medical needs was clearly 7 established. (Id. at 18). Moreover, defendant Lozovoy was deliberately indifferent to 8 Plaintiff’s medical needs. (Id.). 9 C. Legal Standards 10 1. Deliberate Indifference to Serious Medical Needs 11 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 12 inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 13 1091, 1096 (9th Cir. 2006), (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This 14 requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a 15 prisoner’s condition could result in further significant injury or the unnecessary and wanton 16 infliction of pain,’” and (2) that “the defendant's response to the need was deliberately 17 indifferent.” Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (citation 18 and internal quotations marks omitted), overruled on other grounds by WMX Technologies v. 19 Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). 20 Deliberate indifference is established only where the defendant subjectively “knows of 21 and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 22 1051, 1057 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). 23 Deliberate indifference can be established “by showing (a) a purposeful act or failure to 24 respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” 25 Jett, 439 F.3d at 1096 (citation omitted). Civil recklessness (failure “to act in the face of an 26 unjustifiably high risk of harm that is either known or so obvious that it should be known”) is 27 insufficient to establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 28 836-37 & n.5 (1994) (citations omitted). 1 A difference of opinion between an inmate and prison medical personnel—or between 2 medical professionals—regarding appropriate medical diagnosis and treatment is not enough to 3 establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 4 Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). Additionally, “a complaint that a 5 physician has been negligent in diagnosing or treating a medical condition does not state a valid 6 claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not 7 become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 8 106. To establish a difference of opinion rising to the level of deliberate indifference, a 9 “plaintiff must show that the course of treatment the doctors chose was medically unacceptable 10 under the circumstances.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). 11 2. Qualified Immunity 12 “The doctrine of qualified immunity protects government officials ‘from liability for 13 civil damages insofar as their conduct does not violate clearly established statutory or 14 constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 15 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). 16 In determining whether a defendant is entitled to qualified immunity, the Court must 17 decide (1) whether the facts shown by Plaintiff make out a violation of a constitutional right; 18 and (2) whether that right was clearly established at the time of the officer's alleged 19 misconduct. Pearson, 555 U.S. at 232. 20 To be clearly established, a right must be sufficiently clear “that every ‘reasonable 21 official would [have understood] that what he is doing violates that right.’” Reichle v. 22 Howards, 132 S. Ct. 2088, 2090 (2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 23 (2011)) (alteration in original). This immunity protects “all but the plainly incompetent or 24 those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). 25 D. Undisputed and Disputed Facts 26 Many of the relevant facts are undisputed. On or about March 1, 2015, “Plaintiff 27 submitted a health care services request, in which he stated that he injured his knee getting 28 down off of the top bunk and requested a bottom bunk assignment.” (Defendants’ Statement of 1 Undisputed Fact (“DSUF”) 7; ECF No. 51, p. 4). Plaintiff was seen by defendant Lozovoy on 2 March 3, 2015. (DSUF 8; ECF No. 51, p. 5). 3 What happened at this appointment is disputed. Defendant Lozovoy states, under 4 penalty of perjury, that “I noted that Randolph stated he has pain in his left knee from jumping 5 up and down from the upper bunk and that he asked for a lower bunk chrono. I further noted 6 that Randolph’s left knee was normal in appearance, had full range of motion, and ‘strength 7 5/5,’ meaning he had full strength of his leg. Based on my evaluation, I did not determine 8 Randolph had a medical need for a lower bunk at this time. I advised Randolph to avoid 9 triggers and to take Motrin for pain, as needed.” (ECF No. 49-8, p. 2). 10 Plaintiff alleges that no evaluation took place at the appointment. Plaintiff states, under 11 penalty of perjury, that Defendant Lozovoy never touched Plaintiff’s leg or asked him what his 12 pain level was. (ECF No. 51, p. 8). Defendant Lozovoy also did not ask Plaintiff to move his 13 leg or stand (Plaintiff arrived at the appointment in a wheelchair). (Id.). 14 On March 4, 2015, after submitting a health care services request Plaintiff saw Nurse 15 Gant. (SSUF 10; ECF No. 51, p. 5). Nurse Gant noted that Plaintiff had been seen by 16 defendant Lozovoy the day before for the same issue. (Id.). Nurse Gant also noted that 17 Plaintiff’s left knee appeared swollen as compared to his right knee. (Id.). 18 On March 5, 2015, Plaintiff was seen by nurse Grewal. (SSUF 11; ECF No. 51, p. 5). 19 Nurse Grewal noted that Plaintiff had been seen by defendant Lozovoy regarding the issue. 20 (Id.). 21 On March 10, 2015, after additional health care services requests and appointments, 22 Plaintiff was seen by his primary care provider, Dr. Chen (SSUF 14; ECF No. 51, p. 6). “On 23 March 10, 2015, Dr. Chen wrote an order prescribing Plaintiff a temporary lower bunk chrono 24 for three months.” (SSUF 15; ECF No. 51, p. 6). “On March 19, 2015, Dr. Chen completed a 25 Comprehensive Accommodation Chrono (CDCR 7410) for a lower bunk until June 15, 2015.” 26 (SSUF 16; ECF No. 51, p. 6). “On March 20, 2015, Plaintiff was moved to a lower bunk.” 27 (SSUF 17; ECF No. 51, p. 6). 28 /// 1 E. Analysis 2 Based on the disputed facts,1 the Court will recommend that summary judgment be 3 denied as to defendant Lozovoy. 4 Plaintiff has submitted evidence that he had a serious medical need. “Examples of 5 serious medical needs include [t]he existence of an injury that a reasonable doctor or patient 6 would find important and worthy of comment or treatment; the presence of a medical condition 7 that significantly affects an individual's daily activities; or the existence of chronic and 8 substantial pain.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (alteration in original) 9 (citation and internal quotation marks omitted). Here, Plaintiff has stated, under penalty of 10 perjury, that he injured his knee coming down off his upper bunk. (ECF No. 11, p. 3). Plaintiff 11 explained to defendant Lozovoy that he was unable to get on or off his upper bunk, and thus 12 needed a temporary bottom bunk assignment. (Id. at 4). Because Plaintiff was unable to get 13 down from his bunk, he defecated and urinated on himself. (Id. at 6-7). This evidence is 14 enough to create a genuine dispute of material fact regarding whether Plaintiff’s injury 15 significantly affected his daily activities. 16 Plaintiff has also submitted evidence that defendant Lozovoy was deliberately 17 indifferent to his serious medical needs. As described above, it is undisputed that Plaintiff saw 18 defendant Lozovoy on March 3, 2015. Taking Plaintiff’s evidence as true, as the Court must 19 when analyzing Defendants’ motion for summary judgment, Plaintiff came to his appointment 20 in a wheelchair. He then told defendant Lozovoy that he was unable to get on or off his upper 21 bunk, and thus needed a temporary bottom bunk assignment. However, defendant Lozovoy did 22 not examine Plaintiff’s knee. Instead, defendant Lozovoy fabricated a medical record stating 23 that Plaintiff’s knee was normal in appearance, had a full range of motion, and “strength 5/5.” 24 Given the evidence that, instead of examining Plaintiff’s alleged knee injury, defendant 25 Lozovoy fabricated a medical record that, in essence, stated that Plaintiff’s knee was fine, the 26

27 1 Plaintiff’s First Amended Complaint is verified and his allegations constitute evidence where they are 28 based on his personal knowledge of facts admissible in evidence. Jones v. Blanas, 393 F.3d 918, 922-23 (9th Cir. 2004). 1 Court finds that there is a genuine dispute of material fact regarding whether defendant 2 Lozovoy was deliberately indifferent to Plaintiff’s serious medical needs. 3 While in this case Plaintiff’s declaration alone is enough to create a genuine dispute of 4 material fact, the Court notes that it is undisputed that, one day later, a nurse noted that 5 Plaintiff’s left knee appeared swollen. This is some evidence that Plaintiff’s version of events 6 is true. 7 Next, the Court turns to Defendants’ argument that Plaintiff cannot show that defendant 8 Lozovoy’s actions or inactions caused harm. It appears that Defendants raised this argument 9 for the first time in their reply. Accordingly, the Court need not address this argument. Zamani 10 v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“[A] district court need not consider arguments 11 raised for the first time in a reply brief”). Moreover, while Defendants are correct that Plaintiff 12 was given medical treatment, and eventually a bottom bunk assignment, it is undisputed that 13 defendant Lozovoy did not provide Plaintiff with a bottom bunk assignment. And, Plaintiff has 14 submitted evidence that, after his appointment with defendant Lozovoy but before receiving a 15 bottom bunk assignment, he was forced to urinate and defecate on himself because he could not 16 get off of his top bunk. Thus, even if the Court were to consider this argument, there is a 17 genuine dispute of material fact regarding whether defendant Lozovoy’s failure to provide 18 Plaintiff with a bottom bunk assignment caused Plaintiff harm. 19 Based on the foregoing, the Court finds that there is a genuine dispute of material fact 20 regarding whether defendant Lozovoy was deliberately indifferent to Plaintiff’s serious medical 21 needs. 22 Thus, the Court turns to Defendants’ argument that defendant Lozovoy is entitled to 23 qualified immunity. In determining whether a defendant is entitled to qualified immunity, the 24 Court must decide (1) whether the facts shown by plaintiff make out a violation of a 25 constitutional right; and (2) whether that right was clearly established at the time of the officer's 26 alleged misconduct. Pearson, 555 U.S. at 232. As to the second prong, the dispositive inquiry 27 is whether it would have been clear to a reasonable medical professional in defendant 28 1 Lozovoy’s position that his conduct was unlawful in the situation he confronted. Wood v. 2 Moss, 572 U.S. 744, 758 (2014). 3 As analyzed above, the facts shown by Plaintiff make out a violation of a constitutional 4 right. Additionally, the right was clearly established at the time of defendant Lozovoy’s 5 alleged misconduct. 6 “The general law regarding the medical treatment of prisoners was clearly established at 7 the time of the incident. See Hamilton v. Endell, 981 F.2d 1062, 1066 (9th Cir.1992). 8 Furthermore, it was also clearly established that the officers could not intentionally deny or 9 delay access to medical care. See Estelle, 429 U.S. at 104–05, 97 S.Ct. 285.” Clement v. 10 Gomez, 298 F.3d 898, 906 (9th Cir. 2002). 11 Here, taking Plaintiff’s evidence as true, Plaintiff had a serious medical need when he 12 saw defendant Lozovoy. However, defendant Lozovoy did not examine Plaintiff. While this 13 alone might not show that defendant Lozovoy intentionally denied or delayed access to care, 14 Plaintiff’s evidence also suggests that, after failing to examine Plaintiff, defendant Lozovoy 15 fabricated a medical record stating that Plaintiff’s knee was fine. Based on the case law 16 described above, the Court finds that it would have been clear to a reasonable prison medical 17 professional in Defendant’s position that fabricating a medical record to state that a prisoner 18 was fine, even though the medical professional never examined the prisoner (who was 19 complaining about a serious medical issue), violates that prisoner’s constitutional rights. 20 Accordingly, the Court finds that defendant Lozovoy is not entitled to qualified 21 immunity. 22 As the Court finds that there is a genuine dispute of material fact regarding whether 23 defendant Lozovoy was deliberately indifferent to Plaintiff’s serious medical needs, and that 24 defendant Lozovoy is not entitled to qualified immunity, the Court will recommend that 25 Defendants’ motion for summary judgment be denied as to defendant Lozovoy. 26 /// 27 /// 28 /// 1 I. RECOMMENDATIONS 2 Based on the foregoing, IT IS HEREBY RECOMMENDED that: 3 1. Defendants’ motion for summary judgment be GRANTED as to Plaintiff's claims 4 against defendants Grewal and Chen; and 5 2. Defendants’ motion for summary judgment be DENIED as to Plaintiffs claim 6 against defendant Lozovoy. 7 These findings and recommendations are submitted to the United States district judge 8 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 9 || (14) days after being served with these findings and recommendations, any party may file 10 || written objections with the court. Such a document should be captioned “Objections to 11 || Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be 12 || served and filed within seven (7) days after service of the objections. The parties are advised 13 || that failure to file objections within the specified time may result in the waiver of rights on 14 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 15 F.2d 1391, 1394 (9th Cir. 1991)). 16 4 IT IS SO ORDERED. |! Dated: _ August 28, 2019 [sf ey 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28