(PC) Rodriguez v. Pfeiffer

• Court: District Court, E.D. California
• Decided: October 11, 2024
• Docket: 1:21-cv-00572
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MANUEL RODRIGUEZ, Case No. 1:21-cv-00572-JLT-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS’ 12 v. MOTION FOR SUMMARY JUDGMENT BE GRANTED, IN PART, AND DENIED, IN 13 PFEIFFER, et al., PART 14 Defendants. (ECF No. 84) 15 OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS 16 17 Plaintiff Manuel Rodriguez (“Plaintiff”) is proceeding through counsel in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. This case proceeds on Plaintiff’s claim that Defendants 19 Elva Vitto, Harpreet Singh, and Lawrence Aflague1, Jr. (“Defendants”) were deliberately 20 indifferent to his serious medical needs in violation of the Eighth Amendment. (ECF No. 43). 21 More specifically, Plaintiff alleges that Defendants delayed Plaintiff’s ability to be examined by a medical doctor following a neck injury, which ultimately resulted in an epidural abscess 22 rendering Plaintiff quadriplegic. (Id. at 62). 23 Defendants now move for summary judgment, arguing that the evidence shows that they 24 were not deliberately indifferent to Plaintiff’s serious medical needs and that they are entitled to 25

26 1 The docket and record contain several inconsistent spellings of Defendant’s name. The Court refers to this defendant using the spelling “Aflague,” consistent with Defendant counsel’s briefings. 27 2 Unless otherwise indicated, page numbers refer to the pagination appearing at the bottom of each document, not the blue page numbers generated by the CM/ECF system. When referring to the CM/ECF 28 system’s page numbers, they are preceded by “ECF p.” 1 qualified immunity. (ECF No. 84-1). For the reasons explained below, it is recommended that 2 Defendants’ motion for summary judgment be granted as to Plaintiff’s deliberate indifference 3 claims against Defendant Vitto. However, it is recommended that the motion be denied as to 4 Plaintiff’s deliberate indifference claim against Defendants Singh and Aflague, Jr. I. BACKGROUND 5 Plaintiff, proceeding through counsel, filed the initial complaint commencing this action 6 on April 5, 2021, alleging multiple employees at Kern Valley State Prison (KVSP) deprived him 7 of adequate medical care for a known serious medical need in violation of the Eighth 8 Amendment. (ECF No. 1 at 9). 9 The complaint alleged that in May 2019, while incarcerated at KVSP, Plaintiff suffered a 10 neck injury. (Id. at 3). Plaintiff began having progressive pain and disability and was seen by 11 nursing staff who did not possess the training, experience, or knowledge to properly evaluate 12 Plaintiff’s injury, diagnose his condition, or recommend diagnostic testing. (Id.). Medical staff 13 refused to refer Plaintiff to a doctor and acted as “gatekeepers” to minimize the involvement of 14 doctors to keep healthcare costs down. (Id. at 3, 7, 10). Plaintiff finally saw a doctor on July 9, 15 2019, because he collapsed, could not ambulate, and suffered sensory changes. (Id. at 3-4). The 16 doctor determined Plaintiff had a sensory deficit below his chest at the thoracic T8/9 level, and 17 Plaintiff was transferred to an outside facility to rule out an epidural abscess. (Id. at 6). Plaintiff 18 was subsequently diagnosed with an epidural abscess and operated upon. (Id.). Due to the delay 19 in diagnosis and treatment, the abscess caused severe, catastrophic, and disabling damage, 20 rendering Plaintiff quadriplegic. (Id. at 6-7). 21 After several amendments and motions to dismiss, this case now proceeds on Plaintiff’s 22 Second Amended Complaint (SAC) filed on May 5, 2022, (ECF No. 43), on Plaintiff’s claim for 23 deliberate indifference to serious medical needs against defendants Vitto, Singh, and Aflague. II. Defendants’ Motion for Summary Judgment 24 A. Defendants’ Motion 25 On December 29, 2023, Defendants filed a motion for summary judgment. (ECF No. 84). 26 The motion is made on the grounds that Defendants were not deliberately indifferent to Plaintiff’s 27 serious medical needs and Defendants are entitled to qualified immunity. (Id. at 1). In addition to 28 1 Defendants’ Statement of Undisputed Facts, declarations by Defendants, and excerpts of 2 Plaintiff’s medical records, Defendants support their motion for summary judgment with 3 declarations and reports by medical experts Dr. Venkatasubramanian and Chief Nurse Executive 4 Susana Ramirez. (ECF Nos. 84-6 through 84-11). Defendants argue that Defendant Vitto was not deliberately indifferent to Plaintiff’s 5 serious medical needs, “[b]ecause [Plaintiff] lacks any evidence to demonstrate an affirmative 6 causal link between Defendant Vitto’s actions and the claimed deprivation[:]the alleged failure to 7 appropriately treat or diagnose his epidural abscess that ultimately caused his incomplete 8 paraplegia[.]” (Id. at 17-18). Additionally, Defendants assert that Plaintiff has not demonstrated 9 that Defendant Vitto had the requisite mental state necessary for deliberate indifference. (Id. at 10 18). As to Defendants Singh and Aflague, Defendants argue they were not deliberately indifferent 11 to Plaintiff’s serious medical needs because: (1) the actions by Defendants Singh and Aflague in 12 responding to Plaintiff’s concerns were objectively reasonable under the circumstances, and (2) 13 Plaintiff has not demonstrated that Defendants Singh or Aflague had the requisite mental state 14 necessary for deliberate indifference. (Id. at 19-24). 15 Defendants also argue that they are entitled to qualified immunity. 16 B. Plaintiff’s Opposition 17 Plaintiff filed his Opposition to Defendants’ motion for summary judgment on January 12, 18 2024. (ECF No. 88). Plaintiff supports his Opposition with his response to Defendants’ Statement 19 of Undisputed Facts, a Statement of Further Disputed Facts, a memorandum of objection to 20 evidence with a declaration from Plaintiff’s counsel, the transcripts of the depositions of 21 Defendants and Plaintiff, Plaintiff’s medical records, and a report from the Office of the Inspector 22 General. Plaintiff contends that Defendants were deliberately indifferent to his serious medical 23 needs by “knowingly acting blindly” to his complaints. (ECF No. 88 at 15). Plaintiff alleges that Defendant Vitto “blindly” refilled Plaintiff’s ibuprofen prescription; Defendant Singh dismissed 24 Plaintiff’s complaints and, rather than referring Plaintiff to a doctor, consulted a doctor who 25 ordered an x-ray; Defendant Aflague, with knowledge of Plaintiff’s serious complaints of pain, 26 provided no treatment and “unilaterally” made the decision to refer Plaintiff to a medical doctor 27 within 14 days; and Defendants Singh and Aflague acted as “gatekeepers” with the sole authority 28 1 to refer patients to doctors. (Id.). Plaintiff also alleges that Defendants Singh and Aflague 2 improperly made diagnoses with “no professional or educational background whatsoever.” (Id.). 3 Plaintiff claims Defendants Singh and Aflague violated the California Nursing Practices Act 4 because no evidence has been presented of any standardized procedures by which patients are referred to doctors. (ECF No. 88 at 18). Plaintiff further argues that the Court should disregard the 5 expert opinions offered by Defendants because expert testimony is not required to establish 6 deliberate indifference, the evidence is irrelevant, and the experts are unqualified. (ECF No. 88 at 7 12-13, 18-19). 8 As to qualified immunity, Plaintiff argues it does not apply because the Eighth 9 Amendment prohibition against cruel and unusual punishment is clear, and Defendants would 10 have known Plaintiff’s rights would be violated by their failing to provide him with treatment or 11 access to medical care. (Id. at 21-22). 12 C. Defendants’ Reply 13 On February 21, 2024, Defendants filed their Reply to Plaintiff’s Opposition. (ECF No. 14 93). Defendants support the Reply with additional declarations from their experts, including 15 excerpts from CDCR’s nursing protocols, and their response to Plaintiff’s Further Disputed Facts. 16 In addition to reiterating their original arguments, Defendants contend that Plaintiff’s argument 17 that Defendants Singh and Aflague violated the California Nursing Practices Act was raised for 18 the first time in Plaintiff’s Opposition, and thus should be disregarded. (ECF No. 93 at 3-4). 19 Defendants contend, however, that should the Court consider this argument, that Defendants did 20 act according to standardized procedures. (Id. at 4-5). Defendants contend their expert evidence is 21 relevant and both experts are qualified. (Id. at 11-14). 22 III. LEGAL STANDARDS 23 A. Summary Judgment Summary judgment in favor of a party is appropriate when there “is no genuine dispute as 24 to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 25 56(a); Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (“If there is a genuine 26 dispute about material facts, summary judgment will not be granted.”). A party asserting that a 27 fact cannot be disputed must support the assertion by “citing to particular parts of materials in the 28 1 record, including depositions, documents, electronically stored information, affidavits or 2 declarations, stipulations (including those made for purposes of the motion only), admissions, 3 interrogatory answers, or other materials, or showing that the materials cited do not establish the 4 absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). 5 A party moving for summary judgment “bears the initial responsibility of informing the 6 district court of the basis for its motion, and identifying those portions of ‘the pleadings, 7 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 8 any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 9 Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). “Where the non- 10 moving party bears the burden of proof at trial, the moving party need only prove that there is an 11 absence of evidence to support the non-moving party’s case.” In re Oracle Corp. Sec. Litig., 627 12 F.3d 376, 387 (9th Cir. 2010). If the moving party does so, “the burden then shifts to the non- 13 moving party to designate specific facts demonstrating the existence of genuine issues for trial,” 14 which is not a light burden, and the non-moving party “must come forth with evidence from 15 which a jury could reasonably render a verdict in the non-moving party’s favor.” Id.; see 16 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla of 17 evidence in support of the plaintiff’s position will be insufficient; there must be evidence on 18 which the jury could reasonably find for the plaintiff.”). “[A] complete failure of proof 19 concerning an essential element of the nonmoving party’s case necessarily renders all other facts 20 immaterial.” Celotex, 477 U.S. at 322. Additionally, “[a] summary judgment motion cannot be 21 defeated by relying solely on conclusory allegations unsupported by factual data.” Taylor v. List, 22 880 F.2d 1040, 1045 (9th Cir. 1989). 23 In reviewing the evidence at the summary judgment stage, the Court “must draw all reasonable inferences in the light most favorable to the nonmoving party.” Comite de Jornaleros 24 de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). The Court need 25 only draw inferences, however, where there is “evidence in the record . . . from which a 26 reasonable inference . . . may be drawn”; the Court need not entertain inferences that are 27 unsupported by fact. Celotex, 477 U.S. at 330 n. 2 (citation omitted). And “[t]he evidence of the 28 1 non-movant is to be believed.” Anderson, 477 U.S. at 255. In reviewing a summary judgment 2 motion, the Court may consider other materials in the record not cited to by the parties but is not 3 required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified School Dist., 237 4 F.3d 1026, 1031 (9th Cir. 2001). B. Deliberate Indifference 5 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 6 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 7 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires Plaintiff 8 to show (1) “a serious medical need by demonstrating that failure to treat a prisoner’s condition 9 could result in further significant injury or the unnecessary and wanton infliction of pain,” and (2) 10 that “the defendant’s response to the need was deliberately indifferent.” Id. (quoting McGuckin v. 11 Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)) (citation and internal quotation marks omitted), 12 overruled on other grounds by WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en 13 banc). 14 Deliberate indifference is established only where the defendant subjectively “knows of and 15 disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057 16 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). Deliberate 17 indifference can be established “by showing (a) a purposeful act or failure to respond to a 18 prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Jett, 439 F.3d 19 at 1096 (citation omitted). Civil recklessness (failure “to act in the face of an unjustifiably high 20 risk of harm that is either known or so obvious that it should be known”) is insufficient to 21 establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 836-37 & n.5 22 (1994) (citations omitted). 23 Additionally, a difference of opinion between an inmate and prison medical personnel—or between medical professionals—regarding appropriate medical diagnosis and treatment is not 24 enough to establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 25 1989); Toguchi, 391 F.3d at 1058. Additionally, “a complaint that a physician has been negligent 26 in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment 27 under the Eighth Amendment. Medical malpractice does not become a constitutional violation 28 1 merely because the victim is a prisoner.” Estelle, 429 U.S. at 106. To establish a difference of 2 opinion rising to the level of deliberate indifference, a “plaintiff must show that the course of 3 treatment the doctors chose was medically unacceptable under the circumstances.” Jackson v. 4 McIntosh, 90 F.3d 330, 332 (9th Cir. 1996), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc). 5 IV. DISCUSSION3 6 A. Undisputed Facts4 7 Although the parties dispute many facts related to the events at issue, the Court finds that 8 the following relevant facts are undisputed. 9 Between May 2019 and July 9, 2019, Plaintiff was an incarcerated and convicted prisoner 10 at Kern Valley State Prison (KVSP). (SFDF5 1). On June 6, 2019, Plaintiff submitted his first 11 health care request form, which stated, “shoulder injury; it’s been over a month and getting 12 worse.” (DSUF6 1). On June 7, 2019, Plaintiff was seen by a nurse (who is not a defendant in this 13 case). (DSUF 2). Plaintiff complained of pain in his right shoulder. (DSUF 2, DSUF 86). Plaintiff 14 was prescribed NSAIDs and told to refrain from exercises involving his shoulder or overuse and 15 to seek care if his symptoms changed or got worse. (DSUF 4). 16 On July 1, 2019, Plaintiff submitted a refill request for his ibuprofen prescription and on 17 July 2, 2019, it was reviewed by a registered nurse who authorized the refill. (DSUF 10). On July 18 2, 2019, Defendant Vitto, a Licensed Vocational Nurse (LVN), entered the refill order and 19 emailed the pharmacy. (DSUF 10). Six minutes later, the pharmacy completed the refill and noted 20 that Plaintiff would require a doctor’s order to continue the prescription past July 7, 2019. (DSUF 21 10). 22 On July 4, 2019, Defendant Singh, a Registered Nurse, was assigned to the Treatment and 23 Triage Area (TTA) on first watch. (DSUF 14). Shortly after midnight, Defendant Singh responded to a medical emergency call when Plaintiff complained of chest pain. (DSUF 15). 24

25 3 The parties have included voluminous objections to evidence submitted by each other. The Court will not rule on these objections, unless needed to address evidence the Court deems necessary to resolve this 26 motion, set forth below. Nothing in this order precludes a party from moving to exclude evidence at trial. 4 For readability, minor alterations to some quoted excerpts have been made, such as to spelling and 27 punctuation, without noting each alteration. 5 “SFDF” refers to Plaintiff’s Statement of Further Disputed Facts. 28 6 “DSUF” refers to Defendants’ Statement of Undisputed Facts. 1 Defendant Singh arrived within one minute of the call. (Id.). An electrocardiogram (EKG) was 2 performed to determine if Plaintiff was in cardiac distress. (DSUF 21). The EKG showed a 3 normal sinus rhythm with sinus arrhythmia suggesting Plaintiff was not suffering from cardiac 4 issues. (Id.). Defendant Singh consulted with the on-call physician. (DSUF 25). Defendant Singh discharged Plaintiff and instructed Plaintiff to notify medical staff or submit a health care request 5 form if he had increased pain or other concerns. (DSUF 26). Defendant Singh entered the order 6 for a follow up the next day, and emailed nursing staff about the appointment, describing 7 Plaintiff’s then-perceived condition as “muscle skeletal right side chest pain.” (DSUF 28, 79). 8 Defendant Singh did not refer Plaintiff for any appointment with a doctor in the future. 9 On July 8, 2019, Plaintiff was seen by Defendant Aflague who was working as a relief 10 nurse. (DSUF 36). Defendant Aflague discussed with Plaintiff the report from a cervical spine x- 11 ray taken on July 5, 2019. (DSUF 44). Defendant Aflague told Plaintiff that he might be 12 experiencing a nerve-related issue. (DSUF 45). Defendant Aflague entered a referral for a follow- 13 up appointment with a physician within two weeks. (DSUF 47). 14 The next day, on July 9, 2019, Plaintiff’s legs “gave out on him.” (DSUF 102). Medical 15 staff responded to an alarm when Plaintiff complained of back pain and could not move his lower 16 extremities. (DSUF 52). Plaintiff was brought to the TTA and examined by Dr. Sao. (DSUF 53). 17 This was the first time Plaintiff was seen by a doctor since the commencement of his symptoms. 18 (FDF 7). Dr. Sao ordered that Plaintiff be emergently transported to an outside hospital for labs 19 and an MRI. (DSUF 53). 20 Plaintiff was admitted to Adventist Health, where it was determined that Plaintiff had 21 methicillin-susceptible Staphylococcus aureus (MSSA) sepsis with an epidural abscess at C6-7, 22 and Plaintiff underwent a laminectomy on July 10, 2019. (DSUF 54, 55). Doctors opined that the 23 MSSA sepsis caused an epidural abscess from C6 through C7, resulting in spinal cord compression and leading to dense paraplegia and sensory deficit. (DSUF 57). 24 B. Defendant Vitto 25 The Court first addresses Defendants’ argument regarding Defendant Vitto. Defendants 26 argue that summary judgment is appropriate because Defendant Vitto’s role was limited to 27 entering a refill order for ibuprofen and emailing the pharmacy to ensure that the refill was 28 1 completed. Defendants argue that such limited involvement does not rise to the level of 2 deliberate indifference to serious medical needs. 3 Plaintiff’s opposition does little to address Plaintiff’s claim against Defendant Vitto, 4 besides asserting that Defendant Vitto “blindly refilled the ibuprofen prescription of Plaintiff.” ECF No. 88 at 15. 5 As to Defendant Vitto, the Court finds that Defendants have submitted sufficient evidence 6 that no reasonable jury could find for Plaintiff as to his claim for deliberate indifference to serious 7 medical needs against Defendant Vitto. It is undisputed that Defendant Vitto’s sole involvement 8 in the care of Plaintiff’s medical issue was limited to refilling his prescription for ibuprofen. It is 9 undisputed that Defendant Vitto did so promptly. Plaintiff has presented no evidence that 10 Defendant Vitto had information that would have warranted additional medical care, nor that 11 Defendant Vitto had the responsibility to assess and direct such care. 12 Accordingly, Plaintiff has failed to submit evidence that a jury could find that Defendant 13 Vitto acted with deliberate indifference to Plaintiff’s serious medical needs. Therefore, the Court 14 recommends granting Defendants’ motion for summary judgment as to Plaintiff’s claim for 15 deliberate indifference to serious medical needs as to Defendant Vitto. 16 C. Defendant Singh 17 Defendants next argue that Defendant Singh is entitled to summary judgment because his 18 actions were objectively reasonable under the circumstances, and he did not possess the requisite 19 mental state for deliberate indifference. ECF No. 84-1 at 18-21. Defendants rely extensively on 20 expert evidence opining, among things, that spinal epidural abscesses are extremely rare; Plaintiff 21 lacked the classic triad of symptoms of focal back pain, fever, and neurological deficit; it is not 22 uncommon for a delayed diagnosis of spinal epidural abscess; Plaintiff was younger than the 23 average age of onset; and Plaintiff failed to disclose his intravenous drug use. Defendants also argue that Defendant Singh’s treatment shows that he acted reasonably according to Defendant 24 Singh’s own belief that Plaintiff suffered from a muscular-skeletal issue. 25 Plaintiff’s opposition argues that Defendant Singh should not have made any diagnosis of 26 Plaintiff’s condition because Defendant Singh was a nurse and not a doctor. Rather than argue 27 that Defendant Singh should have appropriately diagnosed and treated Plaintiff for a spinal 28 1 epidural abscess, Plaintiff argues that Defendant Singh (and Defendant Aflague, as discussed 2 below) should have referred Plaintiff on an emergency basis to a physician. After all, when 3 Plaintiff was seen for the first time by a doctor (Dr. Sao), the doctor immediately diagnosed him 4 as having signs and symptoms of an epidural abscess and facilitated Plaintiff’s care on an emergency basis. Plaintiff argues that Singh’s improper diagnosis of a muscular-skeletal issue 5 was outside Defendant Singh’s professional role and ability. According to Plaintiff, making such 6 a diagnosis violated the California Nurses Practices Act, which sets the scope of practice for 7 nurses, and which does not include medical diagnosis. For example, nurses are tasked with the 8 following: 9 Observation of signs and symptoms of illness, reactions to treatment, general 10 behavior, or general physical condition, and (A) determination of whether the signs, symptoms, reactions, behavior or general appearance exhibits abnormal 11 characteristics; and (B) implementation, based on observed abnormalities, of appropriate reporting, or referral or standardized procedures, or changes in 12 treatment in accordance with standardized procedures, or the initiation of 13 emergency procedures. 14 ECF No. 88 at 17.7 Plaintiff argues that there are no standardized procedures for referring inmates to doctors, and that Defendant Singh violated his responsibilities by failing to refer Plaintiff 15 immediately to a doctor. 16 Plaintiff also argues that Defendants’ expert opinions of Chitra Venkatasubramanian and 17 Susana Ramirez should be disregarded because Venkatasubramanian has never written or spoken 18 on the area of epidural abscess, and Ramirez is not a licensed nurse in California. 19 In reply, Defendants argue that Plaintiff may not raise a separate claim for violation of the 20 California Nursing Practices Act. Moreover, Defendants point to the Health Care Department 21 Operations Manual for standardized procedures and protocols. According to those procedures: 22 When inmates request health care services via written forms (also known as 23 CDCR 7362 Health Care Services Request Forms), RNs triage the forms and “determine whether the patient requires urgency/emergency or routine care.” If 24 there is an urgent/emergency medical need, the RN must “immediately refer” such needs to the appropriate clinician for evaluation. . . . If the Primary Care RN 25 determines that a physician referral is necessary, the following timeframes are 26 7 To the extent Plaintiff’s opposition attempts to assert an independent claim for violation of the California 27 Nursing Practices Act, the Court declines to do so. Plaintiff’s Second Amended Complaint did not assert such a claim. 28 1 relevant: (1) Emergency – immediately; (2) Urgent – within twenty-four hours; and (3) Routine—within fourteen calendar days. 2 ECF No. 93 at 5 (internal citations omitted). Defendants argue that Plaintiff “did not exhibit any 3 symptoms consistent with chest pain, aside from his subjective statements.” ECF No. 93 at 7. 4 Defendants then argue that “[d]espite the fact that Nurse Singh could not substantiate Plaintiff’s 5 subjective complaints of pain,” Defendant Singh notified a doctor of Plaintiff’s symptoms, 6 scheduled Plaintiff for a follow-up with another RN and an x-ray the next day, and sent an email 7 to staff about the next day’s appointment. Defendants argue that Defendant Singh’s actions were 8 consistent with applicable protocols. 9 As Plaintiff focuses on Defendant Singh’s failure to send Plaintiff to a physician, rather 10 than to accurately diagnose Plaintiff’s condition himself, the Court looks to the evidence 11 regarding when Defendant Singh was required to refer Plaintiff to a physician and compares that 12 with the evidence regarding what Defendant Singh learned during the medical evaluation of 13 Plaintiff. 14 According to Defendants’ own evidence regarding the procedures and protocols for 15 musculoskeletal complaints, RNs should “refer patient to physician on a STAT, Urgent, or Routine basis,” if the following conditions are present: 16 - “Extremity pain or stiffness: If alteration in circulation or sensation, new 17 deformity or discoloration, or patient appears ill or has history of fever, chills, 18 headache, nausea, vomiting, or diarrhea.” ECF No. 93-2 at ECF p. 5. 19 - “Acute low back pain.” ECF No. 93-2 at ECF p. 6. 20 Moreover, in cases of chest pain, RNs should refer the patient to a physician in the 21 following situations: 22 - “Chest pain accompanied by lightheadedness, nausea, sweating, or shortness of breath; 23 pain spreading to shoulders, neck, arms, jaw; pain in back between shoulder blades; 24 uncomfortable pressure, or pain in the center of the chest lasting more than 15 25 minutes. Chest pain, associated with palpitations or arrhythmias, tachycardia or 26 bradycardia, or hypotension.” ECF No. 93-2 at ECF p. 10. 27 The Court next compares these procedures with the evidence regarding Plaintiff’s 28 1 symptoms at the time of consulting with Defendant Singh to determine if Plaintiff has presented 2 evidence that he presented with symptoms that warranted a referral to a physician at the time. 3 According to Defendant Singh’s declaration, on July 4, 2019, “Mr. Rodriguez complained 4 of pain in the right side of his chest and stated the area was tender to the touch and sore.” ECF No. 84-4 at 2. Additionally, “Mr. Rodriguez stated that the pain started back around his 5 should[er] and neck after an altercation with another inmate, ‘I was in a headlock, after that my 6 back and kind of my neck area started hurting, now my right side chest hurts; when I touch it the 7 pain is there when I touch it, so I thought I [would] go see a doctor right now.’” Id. at 2-3. “Mr. 8 Rodriguez denied nausea, vomiting, fever, sweats, or night chills.” Id. at 3. Based on these and 9 other observations, Defendant Singh ordered a follow-up visit “for r[igh]t side chest pain (no[t]] 10 cardiac), muscle skeletal pain.” Id. 11 According to the medical progress note authored by Defendant Singh at the time: 12 - “I/p states in Chest pain in the right side of chest. I/p states pain 6/10 pain, area tender 13 to touch, soreness.” ECF No. 84-14 at ECF p. 29. 14 - “Enroute I/p remained stable with Complain of pain 6/10 to right Chest.” Id. 15 - “I/p states pain in right middle ‘my back is hurting me when I lay down and chest 16 when I press on it.’” Id. at ECF p. 30. 17 Moreover, Plaintiff gave the following testimony at his deposition: 18 - “I went man down to try to get medical attention.” ECF No. 88-6 at 83. 19 - “I told them there’s something going on with my neck, that I couldn’t feel my right 20 hand.” Id. at 85. 21 - “I told them the pain was getting so bad that it was hurting my chest.” Id. 22 - “Told them I was having unbearable pain, chest pain.” Id. at 87. 23 - “I told him, I go—I gave him the—basically what was going on with me, everything—all the symptoms I was having, as far as not being able to feel my right 24 hand. It told him that the pain was getting so bad that it was starting to hurt my chest. 25 But I also told him, like that’s –although my chest is hurting, I know there’s 26 something going on over here.” Id. 27 - “I told them I was having bad pain in my neck and it was getting so bad it was hurting 28 1 my chest.” Id. at 88. 2 - “I told him I was in a lot of pain. I know that I told him I was like over a ten in pain, 3 and I know that if you look at the papers, he tried to put that I was a four or something 4 like that.” Id. at 93. - “I told him it was months [since the pain started]. I told him I’ve been going through 5 this since May.” Id. at 94. 6 Construing all disputes of fact in favor of the non-moving party, the Court finds that a 7 reasonable jury could find based on this evidence that Defendant Singh was deliberately 8 indifferent to Plaintiff’s serious medical needs by not referring Plaintiff to a doctor. By 9 Defendants’ own documents, Defendant Singh was required to refer Plaintiff to a physician if (1) 10 he experienced extremity pain, along with alteration in sensation, or if (2) he experienced chest 11 pain accompanied by pain spreading to shoulders or neck, pain in back between shoulder blades, 12 or pain in the center of the chest lasting more than 15 minutes. The evidence cited above shows 13 that there is evidence that Defendant was aware that Plaintiff was experiencing extremity pain, 14 alteration in sensation in his hands, and chest pain spreading to his shoulders and neck, and yet 15 that Singh nevertheless failed to refer Plaintiff to a physician. 16 Indeed, Defendants appear to concede that Plaintiff complained of symptoms warranting 17 referral to a physician. Again, Defendants argue that Plaintiff “did not exhibit any symptoms 18 consistent with chest pain, aside from his subjective statements.” ECF No. 93 at 7 (emphasis 19 added). Thus, even Defendants appear to acknowledge that Plaintiff told Defendant Singh that he 20 was experiencing symptoms of chest pain that warranted referral to a physician. But there is no 21 evidence to support Defendants’ suggestion that Defendant Singh was permitted to ignore 22 Plaintiff’s subjective statements of his own symptoms. There is also nothing in the protocols and 23 procedures requiring a nurse to objectively verify chest pain, or any other pain, before referring an inmate to a physician. Rather, when Plaintiff’s own description of his symptoms is considered, 24 there is sufficient evidence that Plaintiff was suffering symptoms that warranted a physician 25 referral. 26 Defendants’ motion for summary judgment also repeatedly mentions that Defendant 27 Singh consulted with a doctor, who apparently informed him that Plaintiff only needed ibuprofen 28 1 and a follow-up with another nurse. However, discussing Plaintiff’s situation with a doctor is not 2 the same as referring Plaintiff to see a doctor. Indeed, Defendants’ own protocols, cited above, 3 concern when a nurse should refer someone to see a physician—not when a nurse should consult 4 with a physician. Moreover, Defendants do not present any evidence as to what Defendant Singh told the doctor, such as whether Defendant Singh told the doctor that Plaintiff was experiencing 5 extreme pain, numbness in his hands, chest pain combined with shoulder pain, or other 6 indications that Plaintiff was experiencing an emergent situation. Thus, while Defendant Singh’s 7 decision to talk to a doctor might be relevant to a jury’s assessment of Defendant Singh’s state of 8 mind, it alone does not warrant summary judgment on behalf of Defendant Singh. 9 Defendants also ask the Court to completely disregard Plaintiff’s deposition testimony 10 because it is self-serving. ECF No. 93 at 8. However, as even Defendants concede, a Court may 11 only disregard self-serving testimony where “it states only conclusions and not facts that would 12 be admissible evidence.” Id. at 9, citing Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 2017). 13 Plaintiff’s deposition testimony, given under oath, is not conclusory. It is admissible evidence 14 concerning what Plaintiff felt, observed, and told Defendant Singh. The Court cannot disregard 15 such testimony solely because it supports Plaintiff’s case. 16 Defendants also repeatedly suggest that Defendant Singh’s conduct was reasonable 17 because Plaintiff failed to disclose his intravenous drug use. ECF No. 84-1 at 18. However, there 18 is nothing in the practices and protocols above that refer to the reason for an inmates’ symptoms 19 or warrant declining to refer an inmate to a physician if the inmate’s description of how he was 20 injured changes. Again, Plaintiff’s claim against Defendant Singh is based on a failure to refer 21 Plaintiff to a physician—not that Singh failed to diagnose the ultimate cause of the symptoms. 22 Moreover, there is nothing in Defendant Singh’s own declaration that suggests that Defendant 23 Singh’s decision was based on Plaintiff’s account of how he was injured, or that Defendant Singh would have made a different decision if he was aware of Plaintiff’s drug use. Thus, no evidence 24 supports Defendants’ argument that Singh is entitled to summary judgment on the ground that 25 Plaintiff failed to disclosure his intravenous drug use or presented differing accounts of how his 26 symptoms started. 27 Defendants also argue that there is no evidence of deliberate indifference because 28 1 Defendant Singh performed many medical tests and referred Plaintiff to an appointment with 2 another nurse the following day. However, those actions do not change the fact that Defendant 3 Singh failed to refer Plaintiff to a physician. Indeed, Defendant Singh’s own tests and decisions 4 based on those tests support Plaintiff’s argument that Defendant Singh was improperly, and inaccurately, trying to diagnose Plaintiff’s illness himself rather than sending Plaintiff to a doctor. 5 Additionally, Plaintiff has presented some evidence that Defendant Singh purposefully 6 disregarded Plaintiff’s symptoms, including by repeatedly recording Plaintiff’s pain as a 6/10 7 despite Plaintiff’s own account of telling Defendant Singh he was in extreme pain. Further, 8 Plaintiff has submitted his own testimony that Defendant Singh did not take his condition 9 seriously because, “it was the Fourth of July, and you could tell he’s wanting me to get out of 10 there, like he was smirking.” ECF No. 88-6 at 104. 11 Accordingly, the Court recommends denying summary judgment as to Plaintiff’s claim of 12 deliberate indifference to serious medical needs against Defendant Singh because, construing 13 disputes of fact in favor of the Plaintiff, a reasonable jury could find that Defendant Singh was 14 deliberately indifferent to Plaintiff’s serious medical needs by failing to refer Plaintiff to a 15 physician. 16 D. Defendant Aflague 17 As with Defendant Singh, Defendants argue that Defendant Aflague was not deliberately 18 indifferent because his actions were objectively reasonable under the circumstances, and he did 19 not possess the requisite mental state for deliberate indifference. ECF No. 84-1 at 21-24. 20 Defendants again rely heavily on their expert evidence regarding the rarity of epidural abscesses, 21 Plaintiff’s lack of presenting with the “classic triad of symptoms,” and Plaintiff’s failure to 22 disclose his intravenous drug use. Id. at 21-22. Defendants argue that Plaintiff presented no signs 23 or symptoms suggesting to Defendant Aflague that he was suffering from an epidural abscess or other infection, and it was therefore appropriate to routinely refer him for what he thought was 24 musculoskeletal in nature. 25 Plaintiff’s Opposition argues that, despite knowing of Plaintiff’s serious complaints of 26 pain, Defendant Aflague provided no treatment and unilaterally decided to refer Plaintiff to a 27 doctor within 14 days. As with Defendant Singh, Plaintiff further argues that Defendant Aflague 28 1 improperly diagnosed his condition in violation of the California Nursing Practices Act, and that 2 there were no standardized procedures mandating the circumstances under which a referral to a 3 physician would be made. Further, Plaintiff states that Defendant Aflague’s testimony makes it 4 clear that “it is within a nurse’s total discretion as to when an inmate is to be referred.” ECF No. 88 at 18. 5 In reply, Defendants argue that Plaintiff cannot bring a claim under the California Nursing 6 Practices Act for the first time in his Opposition. They further argue that “Defendant Aflague’s 7 own examination of Plaintiff revealed no objectively-verifiable symptoms that, consistent with 8 the RN protocols, required an immediate referral to a doctor.” ECF No. 93 at 10. 9 Thus, as it did for Defendant Singh, the Court again looks to the evidence presented by the 10 parties regarding when Defendant Aflague was supposed to send Plaintiff to a physician on an 11 emergency basis and compares that with the evidence regarding what Defendant Aflague learned 12 during his medical examination of Plaintiff. 13 According to Defendants’ submitted evidence regarding the procedures and protocols for 14 musculoskeletal complaints, RNs should refer patient to a physician if the following conditions 15 are present: 16 - “Extremity pain or stiffness: If alteration in circulation or sensation, new 17 deformity or discoloration, or patient appears ill or has history of fever, chills, 18 headache, nausea, vomiting, or diarrhea, notify physician STAT.” ECF No. 93- 19 2 at ECF p. 5. 20 - “Acute low back pain: Refer patient to physician on a STAT, Urgent, or 21 Routine basis as appropriate.” ECF No. 93-2 at ECF p. 6. 22 The Court next compares these procedures with the evidence regarding Plaintiff’s 23 symptoms at the time he was examined by Defendant Aflague to determine if Plaintiff has produced evidence that he presented with these symptoms. 24 Defendant Aflague’s declaration describes the following symptoms and observations of 25 Plaintiff during their encounter: 26 - Mr. Rodriguez stated that pain radiated down the back of his neck to his upper 27 back and that he had numbness, tingling, and weakness to his right upper 28 1 extremity and weakness gripping with his right hand; 2 - During physical examination, I noted that Mr. Rodriguez had difficulty with 3 his range of motion turning his head to the right side and tilting his head 4 forward and backward, but appreciated no weakness with his right hand and noted that he had equal strength to his bilateral upper extremities; 5 - Mr. Rodriguez complained of no issues to his lower extremities and I noted 6 that he ambulated with a steady gait 7 - Mr. Rodriguez denied any cough, fever, chest pain, shortness of breath, nausea, 8 vomiting, diarrhea, or constipation; 9 - Mr. Rodriguez was without fever and his temperature was 96.7 degrees 10 Fahrenheit; 11 ECF No. 84-5 at 2-3 (internal citations omitted). Additionally, Defendant Aflague’s progress note 12 in the medical record further stated: 13 - “IP stated 9/10 to upper back, and neck pain.” ECF No. 84-14 at ECF p. 28. 14 - “IP has difficulty with range of motion in turning his head to the right side. Tilting his 15 head forward, and especially backward. He stated that pain radiates down the back of 16 his neck to his upper back. He also stated numbness, tingling, and weakness to his 17 upper right extremity. Stating weakness with gripping on his right hand. No weakness 18 was noted during my examination. He had equal strength to his bilateral upper 19 extremities . . . He was informed though that nerves can cause the symptoms of 20 numbness, tingling, and weakness to radiate down his right arm. However, he will 21 require further evaluation to determine treatment by the physician.” Id. at ECF pp. 28- 22 29. 23 Defendant Aflague also testified during his deposition (ECF No. 88-9) follows: - Plaintiff “had pain to his upper back and neck pain that was 9 out of 10, and that he 24 had radiating pain.” Id. at 50. 25 - “[Plaintiff] stated that he had a physical injury which resulted in his neck pain and 26 upper back pain. And then now, he was also stating to me that he had numbness and 27 tingling coming down into his right arm.” Id. 28 1 - “When he stated nine out of ten, I thought that he was in a lot of pain, yes.” Id. at 51- 2 52. 3 Furthermore, Plaintiff testified during his deposition that he told Defendant Aflague the 4 following: - “I had told them – I seen them and I have them the rundown – well, I told them 5 everything that had happened to me and why I was there, and that I was having really, 6 really bad pain and it got worse after I had altercation and I couldn’t feel my right 7 hand. It was – they told me it was a pinched nerve and sent me home.” ECF No. 88-6 8 at 107. 9 - “I told them that this started in May – like it had been a couple months, a few months 10 that I was experiencing this. And I told them how it was getting worse and how they 11 were just delaying, like kept giving medical appointments and they weren’t doing 12 nothing for me but giving me ibuprofen.” Id. at 108. 13 - “I told [Defendant Aflague] that [the neck pain] started getting worse.” Id. 14 Construing all disputes of fact in favor of the non-moving party, a reasonable jury could 15 find that Defendant Aflague was aware of symptoms that warranted referring Plaintiff to a doctor 16 on an emergency basis. Again, according to relevant protocols, Defendant Aflague was supposed 17 to refer Plaintiff to a physician on an emergency basis if Plaintiff had signs of “[e]xtremity pain or 18 stiffness,” including “alteration in circulation or sensation, new deformity or discoloration, or 19 patient appears ill or has history of fever, chills, headache, nausea, vomiting, or diarrhea.” ECF 20 No. 93-2 at ECF p. 5 (“notify physician STAT”). Here, Plaintiff has presented evidence that he 21 showed symptoms of extreme pain in his back and upper neck, numbness, tingling, and weakness 22 to his right upper extremity and weakness gripping with his right hand, which would indicate 23 alteration in sensation. Thus, construing disputed facts in favor of Plaintiff, Defendant Aflague was required to refer Plaintiff to a doctor on an emergency basis yet failed to do so. 24 As they did with Defendant Singh, Defendants argue that Defendant Aflague also lacked 25 the requisite mental state required for deliberate indifference because he went above and beyond 26 by testing Plaintiff’s grip strength, educating him about cervical strains, and conducting a 27 “thorough physical examination.” ECF No. 84-1 at 23. But again, Plaintiff’s complaint is that 28 1 Defendant Aflague failed to refer him to a physician on a more urgent basis. While Defendant 2 Aflague’s various testing may be relevant to a jury determining his state of mind, it does not 3 alleviate Defendant’s Aflague’s requirement to refer Plaintiff to a doctor more urgently. Indeed, 4 Defendant Aflague’s decision to do testing and provide Plaintiff wish his assessment of Plaintiff’s symptoms suggests that Defendant Aflague improperly attempted to diagnose Plaintiff’s 5 condition himself, rather than assess whether Plaintiff had symptoms that warranted an urgent 6 referral to a doctor. 7 As they did regarding Defendant Singh, Defendants also argue that Plaintiff gave contrary 8 accounts of how he was injured and did not disclose his intravenous drug use to Aflague. 9 However, again, the protocols for referral to a physician say nothing about the cause of the 10 supposed injury, or permit nurses to withhold a referral to a physician based on differing accounts 11 of the injury. Plaintiff’s failure to disclose his drug use does not alter the symptoms he presented 12 to Aflague or whether those symptoms warrant an urgent physician referral. 13 Accordingly, the Court recommends denying summary judgment as to Defendant Aflague 14 because, construing disputes of fact in favor of the Plaintiff, the non-moving party, a reasonable 15 jury could find that Defendant Aflague was deliberately indifferent to Plaintiff’s serious medical 16 needs by failing to refer Plaintiff to a physician on an urgent basis. 17 E. Qualified Immunity 18 Finally, Defendants argue that they are entitled to qualified immunity because “[g]iven the 19 extreme rarity of spinal epidural abscesses and the tremendous difficulty in diagnosing the same, 20 coupled with Rodriguez’s symptoms, or lack thereof (e.g., fever), and report of onset following 21 working out or being placed in a headlock, it would not have been clear to a reasonable medical 22 provider that Rodriguez was suffering from a spinal epidural abscess.” ECF No. 84-1 at 29. 23 However, Plaintiff’s claim is not that Defendants failed to diagnose him with an epidural abscess. Rather, Plaintiff claims that they were required to refer him to a doctor for further diagnosis and 24 treatment, or, in Defendant Aflague’s case, to refer him more urgently. Defendants make no 25 argument that their decision to diagnose Plaintiff themselves, and fail to refer Plaintiff to a 26 physician on an urgent basis, was entitled to qualified immunity. And it is well-settled that 27 delaying an inmate’s access to medical care may constitute deliberate indifference to serious 28 1 medical needs. See, e.g., Estelle, 429 U.S. at 104–05 (“We therefore conclude that deliberate 2 indifference to serious medical needs of prisoners constitutes the “unnecessary and wanton 3 infliction of pain,” proscribed by the Eighth Amendment. This is true whether the indifference is 4 manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the 5 treatment once prescribed.”) (internal citations and footnotes omitted, emphasis added); Clement 6 v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002) (the law was clearly established that officers cannot 7 intentionally deny or delay access to medical care); Hunt v. Dental Dept., 865 F.2d 198, 200-01 8 (9th Cir. 1989) (plaintiff alleged sufficient facts from which it could reasonably be concluded that 9 prison officials knew of dental condition but denied request for prompt treatment). 10 Accordingly, the Court recommends denying summary judgment on this basis as well. 11 V. CONCLUSION AND RECOMMENDATIONS 12 Based on the foregoing, IT IS RECOMMENDED that: 13 1. Defendants’ motion for summary judgment (ECF No. 84) be granted, in part, and denied, 14 in part, as follows: 15 a. Defendants be GRANTED summary judgment as to Plaintiff’s deliberate 16 indifference claim against Defendant Vitto. 17 b. Defendants be DENIED summary judgment as to Plaintiff’s deliberate 18 indifference claims against Defendants Singh and Aflague. 19 2. The case proceed only on Plaintiff’s claim that Defendants Singh and Aflague were 20 deliberately indifferent to Plaintiff’s serious medical needs. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 23 days after being served with these findings and recommendations, any party may file written objections with the Court. Such a document should be captioned “Objections to Magistrate 24 Judge’s Findings and Recommendations.” The objections shall not exceed more than fifteen (15) 25 pages, including exhibits. Any reply to the objections shall be served and filed within thirty (30) 26 days after service of the objections. 27 \\\ 28 1 The parties are advised that failure to file objections within the specified time may result 2 | in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 3 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 ; IT IS SO ORDERED.

6 | Dated: _ October 11, 2024 [spe ey 7 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21