(PC) Sharpe v. Sherman

District Court, E.D. California·Decided September 1, 2021·No. 1:19-cv-00711·Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ADAM SHARPE, No. 1:19-cv-00711-DAD-EPG (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANTS’ 13 v. MOTION FOR SUMMARY JUDGMENT BE 14 C. CRYER, et al., DENIED

15 Defendants. (ECF No. 65)

16 OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS 17 18

19 I. INTRODUCTION 20 Plaintiff Adam Sharpe is a state prisoner proceeding pro se and in forma pauperis in this 21 civil rights action filed pursuant to 42 U.S.C. § 1983. This case proceeds on Plaintiff’s remaining 22 claims from his complaint alleging that Defendants C. Cryer, J. Lewis, and S. Gates were 23 deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. (See 24 ECF Nos. 1, 33, 66). 25 On May 24, 2021, Defendants filed a motion for summary judgment, arguing that, 26 because they were only involved in Plaintiff’s appeals for medical care at the administrative level, 27 lacked medical training or the authority to obtain medical care for him, and never denied him 28 care, they could not be considered deliberately indifferent to his serious medical needs. (ECF No. 1 65). Defendants also argue that they are entitled to qualified immunity. (Id.). Plaintiff filed his 2 opposition on June 21, 2021, and Defendants filed their reply on June 25, 2021. (ECF Nos. 67, 3 68). 4 For the reasons given below, the Court recommends denying Defendants’ motion for 5 summary judgment. 6 II. BACKGROUND 7 A. The Complaint 8 In relevant part, Plaintiff’s complaint alleges that he suffers from keratoconus, an eye 9 disease that deteriorates his vision. (ECF No. 1, p. 3). Accordingly, he has been prescribed 10 SynergEyes Hybrid Contact Lenses. (Id.). Without the contact lenses, Plaintiff’s natural vision is 11 20/200 in the left eye and 20/400 in the right eye. (Id.). The lenses are to be replaced every 6 12 months. (Id.). Plaintiff received lenses on October 4, 2016, at Kern Valley State Prison. (Id.). 13 Plaintiff then transferred to Substance Abuse Treatment Facility (SATF) in December of 2016. 14 (Id.). Plaintiff let SATF medical know that Plaintiff’s lenses would need to be replaced. (Id.). 15 On April 27, 2017, Plaintiff was told he would be referred to see an ophthalmologist. 16 (Id.). Plaintiff did not see an ophthalmologist, so he filed a healthcare appeal (SATF HC- 17 17065076) concerning his need for vision care. (Id. at 3-4). Plaintiff saw an ophthalmologist on 18 June 4, 2018, who recommended that his contact lenses be replaced. (Id. at 4). After failing to 19 receive his contacts, he filed another healthcare appeal (SATF HC-18001512). (Id.). On January 20 14, 2019, Plaintiff still had not received his contact lenses and was assaulted by a cellmate.1 (Id.). 21 Plaintiff’s attachments show that his healthcare appeals were addressed by Defendants 22 Cryer, Lewis, and Gates. 23 B. The Screening Order 24 The Court entered a screening order on November 7, 2019. (ECF No. 11). Based on the 25 complaint’s allegations, the Court concluded that Plaintiff sufficiently alleged that he had a 26

27 1 While not relevant to the issues presented in this motion for summary judgment, Plaintiff had previously filed a request for “single cell status,” stating that his vision problems, when he removed his contact lenses 28 to sleep or rest his eyes, left him vulnerable to an attack from another inmate. (ECF No. 1, p. 9). 1 serious need for contact lenses and did not receive them, despite prison officials being aware of 2 that need. (Id. at 7). And the Court concluded that Plaintiff stated cognizable claims that 3 Defendants Cryer, Lewis, and Gates were deliberately indifferent to Plaintiff’s serious medical 4 needs because each of these individuals was involved in the response to Plaintiff’s healthcare 5 appeals. (Id. at 8). The Court found that the complaint did not state a deliberate-indifference claim 6 against any other Defendant that Plaintiff had named because he had not sufficiently alleged their 7 involvement with his medical treatment. (Id.). The Court also found cognizable a claim for failure 8 to protect against Defendant S. Smith relating to Plaintiff’s allegation of being assaulted by a 9 cellmate. (Id.). 10 After Plaintiff filed a notice to proceed only on the cognizable claims, the Court entered 11 findings and recommendations to proceed only on those claims, which were adopted by the 12 district judge. (ECF Nos. 12, 14, 33). The Court later issued findings and recommendations 13 regarding a motion for summary judgment filed by Defendant Smith, recommending that 14 summary judgment be granted because Plaintiff failed to exhaust his administrative remedies as 15 to Defendant Smith. (ECF No. 63, see ECF No. 50). The district judge adopted the findings and 16 recommendations. (ECF No. 66). Thereafter, Defendants Cryer, Lewis, and Gates filed their 17 motion for summary judgment on the remaining claims that they were deliberately indifferent to 18 Plaintiff’s serious medical needs. (ECF No. 65). 19 On August 19, 2021, Defendants filed a notice of errata, stating that defense counsel 20 inadvertently failed to include “deposition excerpts relied upon in Defendants’ motion for 21 summary judgment.” (ECF No. 69, p. 1). The notice attaches the relevant excerpts, represents that 22 Plaintiff already possesses a full copy of his deposition transcript, and asks that the Court 23 consider the excerpts as part of the record. (Id. at 2). The Court will consider the excerpts as part 24 of the record and concludes that it need not allow Plaintiff to file any supplemental response 25 given Defendants’ representation that he possesses a full copy of his transcript.2 26 2 Defendants also included an amended statement of facts, stating that “[t]he only difference between the 27 original separate statement and the amended statement is the inclusion of Plaintiff’s deposition excerpts which match the citations in the separate statement.” (ECF No. 69). Because there is no substantive 28 difference between the original and separate statement, the Court cites to the original statement (ECF No. 1 III. SUMMARY OF THE PARTIES’ ARGUMENTS 2 Defendants argue that they were not deliberately indifferent to Plaintiff’s serious medical 3 needs for the following reasons: 4 (1) Defendants’ involvement in Plaintiff’s claims were limited to the administrative review of appeals; (2) Defendants are not medical professionals and 5 did not have the authority to contract with outside medical professionals or schedule appointments; (3) Plaintiff’s treatment for his [keratoconus] was on- 6 going throughout all times relevant to his lawsuit, and Defendants did not refuse treatment for Plaintiff. 7 (ECF No. 65, p. 1). Defendants also argue that they are entitled to qualified immunity because 8 “there is no indication that Defendants’ purely administrative review of Plaintiff’s appeals 9 violated clearly established law” and that “they could not violate Plaintiff’s Constitutional rights 10 for not performing actions that were not within their control.” (ECF No. 65-1, p. 21, 23). 11 Plaintiff’s opposition asserts that Defendants downplay their involvement in his medical 12 care and states that they had the authority “to rule for or against intervention in medical 13 treatment.” (ECF No. 67, p. 2). And Plaintiff states that “[i]f this case goes to trial, [he] intends to 14 prove that Defendants knew of delays in his medical treatment, knew that further delay would 15 inevitably occur due to their ‘no intervention’ rulings and cause harm to [him] and still knowingly 16 and deliberately decided not to intervene in their authority.” (Id.).

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15 Defendants. (ECF No. 65)

16 OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS 17 18

28 65-2) throughout these findings and recommendations. 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 5 evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). 6 A party moving for summary judgment “bears the initial responsibility of informing the 7 district court of the basis for its motion, and identifying those portions of ‘the pleadings, 8 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 9 any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 10 Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). If the moving party 11 moves for summary judgment on the basis that a material fact lacks any proof, the Court must 12 determine whether a fair-minded jury could reasonably find for the non-moving party. Anderson 13 v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla of evidence in 14 support of the plaintiff’s position will be insufficient; there must be evidence on which the jury 15 could reasonably find for the plaintiff.”). “[A] complete failure of proof concerning an essential 16 element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 17 477 U.S. at 322. Additionally, “[a] summary judgment motion cannot be defeated by relying 18 solely on conclusory allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 19 1045 (9th Cir. 1989). 20 In reviewing the evidence at the summary judgment stage, the Court “must draw all 21 reasonable inferences in the light most favorable to the nonmoving party.” Comite de Jornaleros 22 de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). Additionally, 23 “[t]he evidence of the non-movant is to be believed.” Anderson, 477 U.S. at 255. 24 In reviewing a summary judgment motion, the Court may consider other materials in the 25 record not cited to by the parties but is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. 26 San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). 27 B. Legal Standards for Undisputed Facts 28 Under this Court’s local rules, “[e]ach motion for summary judgment or summary 1 adjudication shall be accompanied by a ‘Statement of Undisputed Facts’ that shall enumerate 2 discretely each of the specific material facts relied upon in support of the motion and cite the 3 particular portions of any . . . document relied upon to establish that fact.” Local Rule 260(a). 4 Further, responses to motions for summary judgment have certain requirements: 5 Any party opposing a motion for summary judgment or summary adjudication shall reproduce the itemized facts in the Statement of Undisputed Facts and admit 6 those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any . . . document relied upon in 7 support of that denial. . . . The opposing party shall be responsible for the filing of all evidentiary documents cited in the opposing papers. 8 Local Rule 260(b) (citation omitted). “If a party fails to properly support an assertion of fact or 9 fails to properly address another party’s assertion of fact as required by Rule 56(c), the court 10 may . . . consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e)(2). 11 Here, Plaintiff was provided with a Rand warning,3 which informed him of the summary 12 judgment requirements: 13 When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply 14 rely on what your complaint says. Instead, you must set out specific facts in 15 declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule [56(c)], that contradict the facts shown in the defendant's 16 declarations and documents and show that there is a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, summary 17 judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no trial. 18 ECF No. 65-6, p. 2). 19 Plaintiff was also notified of Local Rule 260 and about how that Rule required Plaintiff to 20 “reproduce the itemized facts in the Statement of Undisputed Facts and admit those facts that are 21 undisputed and deny those that are disputed, including with each denial a citation to the particular 22 portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other 23 document relied upon in support of that denial.” (Id. at 2) (quoting Local Rule 260(b)). 24 Despite this, Plaintiff has failed to reproduce Defendants’ itemized statement of facts. 25 Because of this failure, Defendants argue that their “motion, should, therefore, be granted.” (ECF 26 No. 68, p. 2). 27

28 3 See Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). 1 However, Defendants are not entitled to summary judgment merely because Plaintiff 2 failed to file a counter statement of facts. The Ninth Circuit has “held consistently that courts 3 should construe liberally motion papers and pleadings filed by pro se inmates and should avoid 4 applying summary judgment rules strictly.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 5 2010). Moreover, Defendants, as the moving party, still “ha[ve] both the initial burden of 6 production and the ultimate burden of persuasion on a motion for summary judgment.” Nissan 7 Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). “If 8 [Defendants] fail[] to carry [their] initial burden of production, the [Plaintiff] has no obligation to 9 produce anything, even if [he] would have the ultimate burden of persuasion at trial.” Id. at 1102- 10 03. 11 In evaluating Defendants’ motion for summary judgment, the Court has taken facts set 12 forth in Defendants’ statement of facts as undisputed. However, the Court also notes that 13 Plaintiff’s complaint is verified, and thus may also be considered in determining the facts at issue 14 to the extent that it sets forth facts within the Plaintiff's personal knowledge that are admissible 15 into evidence. See Jones v. Blanas, 393 F.3d 918, 922–23 (9th Cir. 2004) (noting that because 16 plaintiff was proceeding pro se, the Court was required to “consider as evidence in his opposition 17 to summary judgment all of [his] contentions offered in motions and pleadings, where such 18 contentions are based on personal knowledge and set forth facts that would be admissible in 19 evidence, and where [he] attested under penalty of perjury that the contents of the motions or 20 pleadings are true and correct”). Moreover, the Court has also evaluated facts set forth by 21 Plaintiff as confirmed by the healthcare appeals, which are contained in the record. The Court has 22 then evaluated whether these facts entitle Defendants to summary judgment using the applicable 23 legal standards. 24 C. Deliberate Indifference to Serious Medical Needs 25 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 26 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 27 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires Plaintiff 28 to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a prisoner’s condition 1 could result in further significant injury or the unnecessary and wanton infliction of pain,’” and 2 (2) that “the defendant’s response to the need was deliberately indifferent.” Id. (quoting 3 McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (citation and internal quotations 4 marks omitted), overruled on other grounds by WMX Technologies v. Miller, 104 F.3d 1133 (9th 5 Cir. 1997) (en banc)). “This second prong—defendant’s response to the need was deliberately 6 indifferent—is satisfied by showing (a) a purposeful act or failure to respond to a prisoner’s pain 7 or possible medical need and (b) harm caused by the indifference.” Jett v. Penner, 439 F.3d 1091, 8 1096 (9th Cir. 2006). Delay in medical treatment generally only constitutes deliberate 9 indifference if it causes further harm. See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 10 F.2d 404, 407 (9th Cir. 1985). 11 V. UNDISPUTED FACTS 12 The Court finds the following facts material and undisputed for purposes of summary 13 judgment: 14 A. Defendant Cryer 15 According to Plaintiff’s verified complaint, he received contact lenses on October 4, 2016, 16 at Kern Valley State Prison. (ECF No. 1, p. 3). The lenses are to be replaced every 6 months. 17 (Id.). After Plaintiff transferred to SATF in December of 2016, he told SATF medical that his 18 lenses would need to be replaced. (Id.). Plaintiff was told that he would be referred to see an 19 ophthalmologist, but when this failed to happen, he filed healthcare appeal SATF HC-17065076 20 in June 2017. (Id.). 21 Defendant Cryer was formerly the Chief Executive Officer at SATF and provided the 22 initial response to both of Plaintiff’s healthcare appeals. (ECF No. 65-3, pp. 1, 3, 4). For 23 healthcare appeal SATF HC-17065076, Plaintiff requested “to see optometry and 24 ophthalmology . . . to receive replacement lenses” and asked for a renewal of his contact lens 25 solution. (Id. at 10). Plaintiff stated that he had “informed medical at two separate doctor’s 26 appointments that [he] need[ed] to use optometry because [his] contacts need[ed] to be replaced.” 27 (Id. at 12). As to the contact lens solution, Plaintiff stated that he had been receiving only one 4 28 oz bottle every two weeks instead of the two 4 oz bottles he was prescribed for every two weeks. 1 (Id.). And due to an apparent error by prison medical staff, his 12-month prescription ran out in 2 12 weeks. (Id.). Although he informed “medical” multiple times, he achieved “no positive 3 results.” (Id.). Without the solution, Plaintiff stated that he was “subject to eye infections.” (Id.). 4 In August 2017, Defendant Cryer responded to this healthcare appeal. (Id. at 6). The 5 response noted that Plaintiff had been interviewed by a health care appeals registered nurse 6 (HCARN) regarding his appeal. As for the referral to see optometry and ophthalmology, 7 Defendant Cryer noted as follows: 8 Review of your record revealed that your Primary Care Provider (PCP) authored a CDCR 7243 Request for Service (RFS) on 4/27/2017 for referral to the 9 ophthalmologist. Unfortunately the compliance date for 7/26/2017 appointment has since passed. The HCARN noted that the off-site schedulers would be 10 contacted to inquire about the late appointment. During the interview you were explained that you would see the ophthalmologist who would then recommend you 11 to the see the optometrist [a]s medically indicated. (Id.). As for the contact lens solution, the HCARN learned that the solution was a drug request 12 that “was approved until June 2018” and Plaintiff “would need to request a refill through the 13 CDCR 7362 Health Care Services Request Form just as with other medications.” (Id.). In 14 concluding, Defendant Cryer stated that the appeal was “partially granted in that you have a valid 15 order for contact lens solution, and a pending appointment with the ophthalmologist. Referral to 16 the optometrist is dependent on the recommendation of the ophthalmologist.” (Id.). 17 Plaintiff was “transferred to Los Angles County Jail from approximately February 20, 18 2018, to May 15, 2018.” (ECF No. 65-2, p. 2 – undisputed fact #4). “This transfer interrupted 19 referrals to outside care providers, but shortly after Plaintiff transferred back to SATF, his 20 Primary Care Physician started the referral process again for Plaintiff to see a keratoconus 21 specialist for new lenses.” (Id. – undisputed fact #5). 22 Plaintiff’s complaint states that he “finally [saw] an ophthalmologist on June 4, 2018, who 23 recommended contact lens replacement.” (ECF No. 1, p. 4); (see also 65-2, p. 9 - undisputed fact 24 # 49) (noting that “Plaintiff had been seen by the ophthalmologist on June 4, 2018,” with the 25 ophthalmologist stating “that Plaintiff needed to be seen by an optometrist that specializes in 26 contact lens fitting for keratoconus control, vision health, and visual function optimization”). 27 However, after Plaintiff did not receive his lenses, he filed healthcare appeal SATF HC- 28 1 18001512. (ECF No. 1, p. 4). 2 For healthcare appeal SATF HC-18001512, which Plaintiff submitted in July 2018, 3 Plaintiff stated that he had seen a specialist in June 2018 and his contact lenses had been ordered; 4 however, he still had not received them. (Id. at 20). He requested that they be provided to him as 5 soon as possible. (Id.). 6 In September 2018, Defendant Cryer provided the response to this healthcare appeal. (Id. 7 at 22). The response noted that health care records revealed that Plaintiff was seen by an 8 ophthalmologist on June 4, 2018, who noted that Plaintiff “needed to be seen by an optometrist 9 that specializes in contact lens fitting for keratoconus control.” (Id.). Plaintiff saw his primary 10 care provider on June 6, 2018, and “referral to optometry [was] completed.” (Id.). Moreover, 11 Plaintiff was “advised not to use old contact lenses.” (Id.). 12 “[O]n 6/8/18, a routine request for services was submitted for ophthalmology for 13 keratoconus, keratopathy, dry eyes. The appointment is currently pending because the onsite 14 optometrist does not provide[] services for keratoconus. Your [primary care provider] was 15 contacted to initiate a referral for off-site optometry. The referral is pending.” (Id. at 22-23). 16 Defendant Cryer’s institutional level disposition checked a box for “no intervention,” stating that 17 Plaintiff was “encouraged to continue [his] care with [his] assigned health care providers and 18 share with them new or additional clinical information about [his] conditions that [he] believe[d] 19 may affect [his] care.” (Id.). 20 At an unspecified date in September 2018, which is around the time that Defendant Cryer 21 declined to intervene in Plaintiff’s healthcare appeal SATF HC-18001512, “Plaintiff was 22 scheduled to see a specialist at Natural Vision, but the specialist could not see Plaintiff until the 23 specialized contacts they ordered for him arrived.” (ECF No. 65-2, p. 2 – undisputed fact # 6). 24 Plaintiff saw the specialist at Natural Vision for his contacts “on or about October 22, 2018.” (Id. 25 – undisputed fact # 7). Around March 14, 2019, Plaintiff saw someone at Natural Vision for a 26 fitting for his lenses. (Id. – undisputed fact # 8). “Plaintiff had multiple appointments with Natural 27 Vision throughout 2019, when they continued to try and find the right fitting contact lenses for his 28 particularized issues.” (Id. at 3 – undisputed fact # 10). When Plaintiff received lenses that did not 1 fit him properly, Natural Vision still permitted Plaintiff to take the lenses back to SATF to try to 2 wear them. (Id. – undisputed fact # 9). “Sometime between February and June 2020, Natural 3 Vision was finally able to find a set of contacts that properly fit Plaintiff.” (Id. – undisputed fact # 4 10). 5 In his declaration attached to the motion for summary judgment, Defendant Cryer 6 addresses his role regarding healthcare appeals: “Appeals analysists [who worked under 7 Defendant Cryer] reviewed appeals, then the appeals would come to me for secondary review. 8 When appeals are elevated to my level, I check the response, as a second pair of administrative 9 eyes, to make sure that the issue was addressed and the response completed within the applicable 10 time frames.” (ECF No. 65-3, p. 3). “I was not directly responsible for insuring timeliness for 11 appointments or following up for medical appointments. Issues regarding medical services and 12 delays were handled by the institution’s contracting and scheduling staff and/or through CDCR 13 headquarters.” (Id.). He “was not authorized to contract with outside medical providers or 14 schedule inmate appointments with outside medical providers.” (Id.). “In cases where 15 appointments are delayed, the appeals analysts preparing the decision would contact the 16 scheduling and or contracts department as needed to ascertain status updates on contracts and 17 appointments, but they likewise have no power to enter into contracts or schedule appointments.” 18 (Id. at 2). Further, he is “not a medical professional” and in responding to Plaintiff’s appeals he 19 “relied on the findings of the . . . primary care providers and other qualified treating medical 20 professionals.” (Id. at 2). 21 B. Defendant Lewis 22 Defendant Lewis was formerly the Deputy Director of Policy Risk Management Services, 23 which oversees the Health Care Correspondence and Appeals Branch. (ECF No. 65-4, p. 1). After 24 Plaintiff appealed SATF HC-17065076 regarding his need for contact lens solution, replacement 25 contact lenses, and medical consultation, Defendant Lewis provided the headquarters’ level 26 decision in December 2017. (Id. at 6). Defendant Lewis noted the following regarding Plaintiff’s 27 care since filing the healthcare appeal in June 2017: 28 1 On September 11, 2017, you were seen and evaluated by an optometrist. The optometrist noted that your lenses were in good condition and that there was no 2 corneal or conjunctival inflammation. 3 On October 20, 2017, you were seen and evaluated by a primary care provider. The provider reviewed your diagnosis of keratoconus and noted that you would be 4 referred for new contact lenses. 5 Documentation indicates a referral to ophthalmology was approved on November 15, 2017, and is currently pending scheduling. If the 6 appointment does not take place within the time frames outlined in Inmate Medical Services Policies and Procedures, Volume 4, Chapter 8, you may 7 submit a CDC 7362, Health Care Services Request Form, to discuss your 8 concern with health care staff. You continue to be enrolled in the Chronic Care Program, and primary care 9 provider follow-up is pending scheduling for the ongoing evaluation of your 10 chronic health care concerns. Review of your pharmacy profile indicates you [] have an active order for contact lens solution. 11 (Id.). Defendant Lewis determined that “no intervention at the Headquarters’ Level of Review is 12 necessary as your medical condition has been evaluated and you are receiving treatment deemed 13 medically necessary.” (Id. at 7). 14 In her declaration attached to the motion for summary judgment, Defendant Lewis 15 addresses her role regarding healthcare appeals: 16 For appeals that were escalated to my direct review, I looked at the inmates’ health records to verify that the information the inmates provided in their 602 HC appeals 17 was accurate. Further, I looked at the inmates’ medical records to verify that the information staff provided in the first and/or second level responses was accurate. 18 At times, I would also review the applicable regulations and policies and procedures to verify that the decisions in the first and/or second level responses 19 complied with the applicable regulations and policies and procedures. Staff service managers working under me pursuant to California Code of Regulations, title 15, 20 section 3999.225(x)(4) also took similar steps in their administrative HC appeal review. 21 (Id. at 2). She “was not authorized to contract with outside medical providers or schedule inmate 22 appointments with outside medical providers.” (Id.). Nor was she “responsible for insuring 23 timeliness for appointments or following up for medical appointments. Issues regarding medical 24 services and delays were handled by the institution’s contracting and scheduling staff and/or 25 through CDCR headquarters.” (Id. at 3). If “appointments are delayed, the staff service managers 26 [who worked under her] (or above) preparing the CCHCS decision would contact the institution 27 and headquarters as needed to ascertain status updates on contracts and appointments, but they 28 1 likewise have no power to enter into contracts or schedule appointments.” (Id. at 2). Further, she 2 is “not a medical professional” and in responding to Plaintiff’s appeal she “relied on the findings 3 of the . . . primary care providers and other qualified treating medical professionals.” (Id.). 4 C. Defendant Gates 5 Defendant Gates is the Chief of the Health Care Correspondence and Appeals Branch. 6 (ECF No. 65-5, p. 1). After Plaintiff appealed healthcare appeal SATF HC-18001512 regarding 7 his need for contact lenses, Defendant Gates provided the headquarters’ level decision in 8 December 2018. (Id. at 6). Defendant Gates noted the following regarding Plaintiff’s medical care 9 since filing the healthcare appeal in July 2018: 10 Records indicate you were seen by a primary care provider on September 4, 2018. The provider noted that you have not been seen by the optometrist for new contact 11 lens. The provider documented that the routine referral was approved, but the appointment has not been made. You were informed that utilization management 12 would reschedule you for an appointment. On October 22, 2018, you received ophthalmology consultation for contact lens 13 fitting. On November 5, 2018, you received primary care provider follow-up. The provider noted you completed a fitting consultation with an ophthalmologist and 14 that you were awaiting the delivery of your contact lenses. The provider documented you have already received ocular lubricants and lens solution. 15 Subsequent to this appointment, there is no documentation that you have attempted to access health care services utilizing approved processes for concerns related to 16 the issuance of contact lens. Review of your medication list indicates you have active orders for ocular lubricant eye drops and contact lens solution. 17 (Id. at 6-7). 18 Based on this information, Defendant Gates determined that “no intervention” was 19 necessary. (Id. at 6). 20 In her declaration attached to the motion for summary judgment, Defendant Gates 21 addresses her role in reviewing healthcare appeals: 22 For grievances that were escalated to my direct review, I looked at the inmates’ 23 health records to verify that the information the inmate provided in their 602 HC grievance was accurate. Further, I looked at the inmates’ medical records to verify 24 that the information staff provided in the institutional level responses was accurate. At times, I would also review the applicable regulations and policies and 25 procedures to verify that the decisions in the first and/or second level responses complied with the applicable regulations and policies and procedures. Staff service 26 managers working under me pursuant to California Code of Regulations, title 15, section 3999.225(x)(4) also took similar steps in their administrative HC grievance 27 review. (Id. at 2). She “was not authorized to contract with outside medical providers or schedule inmate 28 1 appointments with outside medical providers.” (Id.). Nor was she “responsible for insuring 2 timeliness for appointments or following up for medical appointments. Issues regarding medical 3 services and delays were handled by the contracting and scheduling staff at Plaintiff’s institution 4 and/or through CDCR headquarters.” (Id. at 3). If “appointments are delayed, the staff service 5 managers [who worked under her] (or above) preparing the CCHCS decision would contact the 6 institution and headquarters as needed to ascertain status updates on contracts and appointments, 7 but they likewise have no power to enter into contracts or schedule appointments.” (Id. at 2). 8 Further, she is “not a medical professional” and in responding to Plaintiff’s appeal she “relied on 9 the findings of the . . . primary care providers and other qualified treating medical professionals.” 10 (Id.). 11 VI. ANALYSIS 12 In light of these facts, the Court now considers Defendants’ arguments for summary 13 judgment. Specifically, the Defendants argue that they could not be considered deliberately 14 indifferent to Plaintiff’s serious medical needs because each of them was involved with Plaintiff’s 15 claimed medical needs only to the extent that they reviewed his administrative appeals, they 16 lacked medical training and the authority to provide him with medical care, and they never denied 17 him medical care. (ECF No. 65, p. 1). The Court addresses each argument in turn. 18 A. Involvement in Plaintiff’s Medical Care 19 Defendants first argue that they are entitled to summary judgment because they were only 20 involved with Plaintiff’s healthcare to the extent that they reviewed his healthcare appeals. (ECF 21 No. 65-1, pp. 15-16). As legal support, Defendants rely on the following cases: Quinn v. Merritt, 22 No. 1:18-cv-00547-DAD-BAM (PC), 2018 WL 3854017, at *4 (E.D. Cal. Aug. 10, 2018); Neale 23 v. Sherman, No. 1:18-cv-00342-DAD-BAM (PC), 2019 WL 462763, at *6 (E.D. Cal. Feb. 6, 24 2019), report and recommendation adopted, 2020 WL 1332843 (E.D. Cal. Mar. 23, 2020), 25 appeal dismissed, No. 20-16082, 2020 WL 5237314 (9th Cir. Aug. 24, 2020); Battensby v. 26 Zhang, No. 3:20-cv-0001-BAS-MDD, 2020 WL 2614856, at *5 (S.D. Cal. May 22, 2020). 27 In Quinn, the court concluded that the plaintiff failed to state a claim for deliberate 28 indifference against Defendant Cryer because plaintiff received treatment in accordance with the 1 direction of a medical professional, and, although plaintiff and the medical professional had a 2 difference of opinion regarding the appropriate course of treatment, such difference of opinion 3 did not amount to deliberate indifference regarding the medical professional or Defendant Cryer, 4 who simply reviewed plaintiff’s appeal regarding the medical professional’s treatment of 5 plaintiff. Quinn, 2018 WL 3854017, at *3-4. Similarly, in Neale, the court concluded that the 6 plaintiff failed to state a claim for deliberate indifference against Defendants Cryer and Lewis in 7 their role in reviewing his healthcare appeals complaining about medical providers not providing 8 him the treatment that he thought was warranted. Neale, 2019 WL 462763, at *3-4. Likewise, in 9 Battensby, the court dismissed a deliberate-indifference claim against Defendant Gates that was 10 premised only on her administrative review of a medical provider’s decision to deny the plaintiff 11 medical care. Battensby, 2020 WL 2614856, at *2-5. 12 These cases are distinguishable from this case. While it is true that “inmates lack a 13 separate constitutional entitlement to a specific prison grievance procedure,” Ramirez v. Galaza, 14 334 F.3d 850, 860 (9th Cir. 2003), the instant case does not involve the Defendants’ failure to 15 overturn a medical provider’s decision to deny treatment. Rather, as Plaintiff points out, medical 16 professionals had repeatedly concluded that Plaintiff needed medical treatment. (See ECF No. 67, 17 p. 3 (noting that Gates knew that Plaintiff had yet to see the optometrist for new contact lenses 18 and “still Gates admittedly contacted no one”). Defendants’ liability is not premised on any 19 failure to reverse a medical decision, or indeed any medical decision at all. Instead, as the Court 20 found in its screening order, “Plaintiff’s complaint sufficiently alleges that he had a serious need 21 for contact lenses and did not receive them, despite prison officials being aware of that need.” 22 (ECF No. 11, p. 7). In other words, Defendants’ potential liability stems from their failure to take 23 any action when repeatedly told that the directions of medical providers were not being followed. 24 Importantly, “if there is an ongoing constitutional violation and the appeals coordinator 25 had the authority and opportunity to prevent the ongoing violation, a plaintiff may be able to 26 establish liability by alleging that the appeals coordinator knew about an impending violation and 27 failed to prevent it.” Herrera v. Hall, No. 1:08-CV-01882-LJO, 2010 WL 2791586, at *4 (E.D. 28 Cal. July 14, 2010), report and recommendation adopted, 2010 WL 3430412 (E.D. Cal. Aug. 30, 1 2010). 2 Here, it is undisputed that Defendants knew that Plaintiff was not receiving medical care. 3 As to Defendant Cryer, he was aware from his review of healthcare appeal SATF HC-17065076, 4 which Plaintiff submitted in June 2017, that Plaintiff requested a renewal of his contact lens 5 solution “and to see optometry and ophthalmology . . . to receive replacement lenses.” (ECF No. 6 65-3, p. 10). Regarding the contact lens solution, by the time that Defendant Cryer provided the 7 initial response to this appeal in August 2017, he knew that Plaintiff’s appeal complained of 8 running out of the solution and not receiving any assistance to obtain more solution through 9 “medical.” (Id. at 12). Defendant Cryer learned from the HCARN that the contacts lens solution 10 was in fact approved although Plaintiff was not receiving it. Although this appeal was “partially 11 granted,” (id. at 6), Defendant Cryer actually took no action to ensure that Plaintiff received his 12 contacts lens solution and simply instructed Plaintiff to request a refill, although Plaintiff had 13 been requesting his contact lens solution from medical “with no positive results,” which is what 14 led to the filing of the healthcare appeal, (id. at 12). 15 Likewise, Defendant Cryer knew that Plaintiff’s primary care provider had referred him to 16 an ophthalmologist on April 17, 2017, but the compliance date of July 26, 2017, had already 17 expired. However, despite knowing that Plaintiff had had a referral to an ophthalmologist in April 18 2017, which had expired in July 2017, Defendant Cryer took no action to ensure that the 19 appointment occurred, instead observing that “the HCARN noted that the off-site schedulers 20 would be contacted to inquire about the late appointment.” (Id. at 10). 21 From Defendant Cryer’s review of healthcare appeal SATF HC-18001512, which Plaintiff 22 submitted in July 2018, he was aware that, in June 2018, an ophthalmologist had determined that 23 Plaintiff “need[ed] to be seen by an optometrist that specializes in contact lens fitting” and that 24 Plaintiff had been “advised not to use old contact lenses.” (Id. at 22). Yet, Defendant Cryer failed 25 to intervene in September 2018 despite knowing that approximately three months before 26 rendering his decision that Plaintiff’s medical provider directed him “not to use old contact 27 lenses.” (Id. at 23). Rather than intervene, Defendant Cryer simply responded that an appointment 28 was pending for an off-site referral to optometry and checked a box for “no intervention,” and 1 “encouraged [Plaintiff] to continue [his] care with [his] assigned health care providers and share 2 with them new or additional clinical information about [his] conditions that [he] believe[d] may 3 affect [his] care.” (Id.). 4 As to Defendant Lewis, who denied Plaintiff’s appeal of SATF HC-17065076 in 5 December 2017, she would have known from review of Defendant’s Cryer decision of the history 6 of Plaintiff’s delayed issuance of contacts lens solution and his delays in seeing an 7 ophthalmologist. (ECF No. 65-4, p. 6). Moreover, she noted that Plaintiff had since seen his 8 primary care provider in October 2017 and “would be referred for new contact lenses” and that a 9 referral to ophthalmology was approved in November 2017 but remained pending. (ECF No. 65- 10 4, p. 6). However, despite knowing of Plaintiff’s general history of delays, that Plaintiff had been 11 referred for contact lenses approximately two months before her decision, and that Plaintiff had 12 not even been scheduled to see ophthalmology (which referral was made approximately a month 13 before her decision) Defendant Lewis determined that “no intervention at the Headquarters’ Level 14 of Review is necessary as your medical condition has been evaluated and you are receiving 15 treatment deemed medically necessary.” (Id. at 7). 16 As to Defendant Gates, who determined in December 2018 that “no intervention” was 17 needed in SATF HC-18001512 regarding Plaintiff’s need for contact lenses, she would have 18 known from Defendant Cryer’s decision of Plaintiff’s history of delays concerning his contact 19 lenses. (ECF No. 65-5, p. 6). Notably, she would have known that, since June 4, 2018, an 20 ophthalmologist had determined that “Plaintiff needed to be seen by an optometrist that 21 specializes in contact lens fitting for keratoconus control, vision health, and visual function 22 optimization.” (ECF No. 65-2 – undisputed fact # 49). Moreover, she specifically noted Plaintiff’s 23 appointment with his primary healthcare provider in September 2018 and that Plaintiff had not 24 seen the optometrist for new contact lenses yet. (ECF No. 65-5, p. 6). And she knew that Plaintiff 25 had a fitting consultation with ophthalmology in October 2018 and that Plaintiff was awaiting the 26 delivery of his contact lenses. 27 However, despite knowing of the general history of delays with Plaintiff’s medical care 28 and that a medical provider had determined that Plaintiff needed to be seen for a contact lens 1 fitting approximately six months beforehand and still had yet to receive his lenses, Defendant 2 Gates declined to intervene and in fact indicated that Plaintiff had not appropriately followed up 3 regarding his lenses: “Subsequent to [a November 2018 follow-up with Plaintiff’s primary care 4 provider] there is no documentation that you have attempted to access health care services 5 utilizing approved processes for concerns related to the issuance of contact lens.” (Id. at 6-7). 6 Accordingly, given Defendants’ knowledge of delays in medical care that medical 7 providers had determined was necessary, Defendants’ argument on this point does not warrant 8 summary judgment. 9 B. Medical Training and Authority to Intervene 10 Defendants next argue that they lacked the medical training or the authority to intervene in 11 Plaintiff’s medical treatment. (ECF No. 65-1, pp. 16-17). Plaintiff argues that Defendants place 12 all the “emphasis on the authority they don’t have, yet little to none in acknowledging the 13 authority they do have, which is to rule for or against intervention in medical treatment.” (ECF 14 No. 67, pp. 1-2). 15 Defendants’ declarations focus on their lack of medical training and the lack of their 16 authority to contract with outside medical providers or schedule inmate appointments. However, 17 they do not disclaim any ability to do anything at all to facilitate Plaintiff’s medical care. For 18 example, they do not disclaim the ability to contact someone who does schedule appointments to 19 ensure that they are handling the scheduling. As to Defendant Cryer, he reviewed appeals as “a 20 second pair of administrative eyes” after they went to appeals analysists that worked under him. 21 (ECF No. 65-3, p. 3). When delays occurred, the analyst who prepared the decision was able to 22 “contact the scheduling and or contracts department as needed to ascertain status updates on 23 contract and appointments.” (Id. at 2). Likewise, with Defendants Lewis and Gates, when delays 24 occurred, staff services managers working under them would contact the institution and 25 headquarters as needed to ascertain status updates on contracts and appointments. (ECF No. 65-4, 26 p. 2; 65-5, p. 2). Moreover, Defendants’ ability to take some action is supported by the healthcare 27 appeals themselves, which allowed the Defendants to intervene. (See ECF No. 65-3, pp. 6, 16). 28 /// 1 Nor do they disclaim the ability to investigate, at the administrative level, why Plaintiff 2 was experiencing multiple delays. Fittingly, the Supreme Court’s has noted that the purpose of 3 requiring exhaustion through internal prison appeals, like those filed by Plaintiff, is because 4 “corrective action taken in response to an inmate’s grievance might improve prison 5 administration and satisfy the inmate, thereby obviating the need for litigation.” Porter v. Nussle, 6 534 U.S. 516, 525 (2002). However, in this case, Defendants took no action to improve prison 7 administration of Plaintiff’s healthcare appeals; rather, they simply continued to decline to 8 intervene in any manner despite knowing of delays in Plaintiff receiving medical care. 9 The Court notes that Defendants also argue that Natural Vision, an outside provider, was 10 responsible for delays: “Plaintiff’s care and the timeliness of his care was at the hands of the 11 outside provider – Natural Vision. Plaintiff can offer no evidence that Defendants had any 12 authority to order, manufacture, or ship his specialty contacts. This was all in Natural Visions’ 13 hands.” (ECF No. 65-1, p. 19). At the outset, the undisputed facts concerning the delays from 14 Natural Vision never explain the specific cause behind the delays in Plaintiff receiving properly 15 fitting lenses. (See ECF NO. 65-2, p. 2-3 – undisputed facts # 6-11). Defendants provide no 16 declaration or similar evidence of anyone from Natural Vision identifying the underlying cause of 17 the delays. Rather, Defendants cite to Plaintiff’s deposition, and his understanding of the care he 18 obtained through Natural Vision. Delay in Natural Vision’s care does not lead to the conclusion 19 that Defendants could not have done anything to facilitate more timely care. 20 Regardless of the cause of the delays, however, the record indicates that most Natural 21 Vision’s involvement, and resulting delay, occurred after Defendants’ involvement with 22 Plaintiff’s healthcare appeals ended. For example, Defendants allege (again, based on Plaintiff’s 23 deposition testimony) “[i]n September 2018, Plaintiff was scheduled to see a specialist at Natural 24 Vision, but the specialist could not see Plaintiff until the specialized contacts they ordered for him 25 arrived.” (ECF No. 65-2, p. 2 – undisputed fact # 6). Plaintiff then saw a specialist at Natural 26 Vision in October 22, 2018, concerning his contact lenses. (Id. at undisputed fact # 7). However, 27 by September and October 2018, Defendant Cryer no longer had any involvement with Plaintiff’s 28 first healthcare appeal and in September 2018 he issued the decision declining to intervene in 1 Plaintiff’s second healthcare appeal, ending his involvement with Plaintiff’s medical care. 2 Likewise, Defendant Lewis had no involvement during this time frame, as she issued her decision 3 in December 2017. 4 While Defendant Gates was aware of some delays by Natural Vision by the time she 5 reviewed Plaintiff’s second healthcare appeal in December 2018, as noted above, she also knew 6 of a history of delays in Plaintiff’s medical care, absent involvement by Natural Vision, going 7 back to Plaintiff’s first appeal in June 2017. Further, most of the delays involving Natural Vision 8 occurred after Defendant Gates’ involvement, with Natural Vision seeing Plaintiff for a fitting in 9 March 2019, multiple other appointments occurring in 2019, and issuing lenses that fit finally 10 being sometime between February and June 2020. (Id. at undisputed facts # 8, 10, 11). 11 Moreover, as discussed, there remains a genuine issue of material fact regarding whether 12 Defendants, including Gates, had the authority to facilitate the process of Plaintiff obtaining his 13 contact lenses. Thus, even if Natural Vision was responsible for some delays, the Court concludes 14 that there remains a genuine dispute of material fact as to whether Defendant Gates could have 15 taken steps to ensure that Plaintiff received prompt care, for example, by directing staff working 16 under her to follow up on the status of Plaintiff receiving his contact lenses. 17 Drawing all reasonable inferences in Plaintiff’s favor, while neither the Defendants nor 18 employees working under them had the authority to contract for medical services or directly 19 schedule them, there remains a genuine issue of material fact as to whether Defendants could 20 have taken any steps to ensure that Plaintiff’s medical treatment was not unnecessarily delayed, 21 for example, by directing staff workers to follow up on the status of Plaintiff’s medical care. 22 Moreover, although none of the Defendants are medically trained, that ultimately is not 23 dispositive here because Defendants were informed by medical providers that Plaintiff needed 24 treatment and yet did not take any steps to intervene in his delayed care. Accordingly, 25 Defendants’ argument on this point does not warrant summary judgment. 26 C. Delay in Medical Care 27 Lastly, Defendants argue that they cannot be considered deliberately indifferent to 28 Plaintiff’s serious medical needs because they never denied him care; his care was merely 1 pending, albeit delayed, when they acted on his healthcare appeals. (ECF No. 65-1, pp. 17-20). 2 Plaintiff counters that the extensive delays in his treatment creates a genuine issue of material fact 3 as to whether Defendants were deliberately indifferent to his medical needs. (ECF No. 67, p. 5 4 (“Cryer was aware of extensive delays in Plaintiff’s prescribed medical treatment and still called 5 no one and decided (in his authority) that no intervention was necessary.”) 6 Here, the undisputed facts establish that Defendants knew of past delays and failed to take 7 action to prevent future delays. See Estelle, 429 U.S. at 104-05 (noting that deliberate indifference 8 may be manifested by “delaying access to medical care”). For example, when Cryer initially 9 reviewed healthcare appeal SATF HC-17065076 in August 2017, he knew that Plaintiff’s primary 10 care provider had referred Plaintiff to an ophthalmologist in April 2017, that “the compliance date 11 for 7/26/2017 appointment had since passed,” and that the HCARN had noted that off-site 12 schedulers would be contacted to inquire about the late appointment. (ECF No. 65-3, p. 6). While 13 the appointment to see the ophthalmologist was indeed pending, there is no indication that Cryer 14 followed up himself to ensure that Plaintiff’s medical consultation occurred after “the compliance 15 date” had already expired once with Plaintiff not getting medical care. 16 Likewise, by the time that Defendant Lewis reviewed this appeal in December 2017, the 17 ophthalmology appointment was still pending scheduling. Lewis, however, declined to intervene, 18 instead simply telling Plaintiff that “[i]f the appointment does not take place within the time 19 frames outlined in Inmate Medical Services Policies and Procedures, Volume 4, Chapter 8, you 20 may submit a CDC 7362, Health Care Services Request Form, to discuss your concern with 21 health care staff.” (ECF No. 65-4, p. 6). Notably, it does not appear that Plaintiff saw an 22 ophthalmologist until June 4, 2018, more than six months later. (ECF No. 65-2, p. 9 (undisputed 23 fact # 49)). 24 Additionally, in December 2018, when Defendant Gates was reviewing Plaintiff’s appeal 25 of SATF HC-18001512, filed in July 2018, regarding the need for contact lenses, Defendant 26 Gates noted that, by November 2018, Plaintiff had since “received ophthalmology consultation 27 for contact lens fitting” and met with his primary care provider for a follow-up, with the provider 28 noting that Plaintiff was “awaiting the delivery of [his] contact lenses.” (ECF No. 65-5, p. 6). 1 Although Defendants point to a delay by Natural Vision regarding the fitting of the lenses, 2 Natural Vision did not see Plaintiff until October 22, 2018. Moreover, there is no evidence that 3 Defendant Gates attempted in any way to accelerate Natural Vision’s fitting of the contact lenses. 4 Finally, Defendants briefly assert that they cannot be considered deliberately indifferent to 5 Plaintiff’s medical needs because he failed to show that he was harmed by the delays: “Plaintiff 6 has not provided any evidence to support that his [keratoconus] worsened, or that his vision 7 worsened in any way, due to any delays in the receipt of his new contacts.” (ECF No. 68, p. 8). 8 However, at this stage of the proceedings, even without evidence that Plaintiff’s keratoconus 9 worsened, it is sufficient that Plaintiff suffered “an unnecessary continuation of his condition” to 10 raise a genuine issue of material fact on this issue. McGuckin v. Smith, 974 F.2d 1050, 1062 (9th 11 Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 12 1997). Notably, Plaintiff’s complaint states that “without these contact lenses, [his] natural vision 13 is 20/200 in the left eye and 20/400 in the right eye.” (ECF No. 1, p. 3). Thus, regardless of the 14 effect on his keratoconus, there is sufficient evidence that his vision was impaired without the 15 contact lenses. Accordingly, Defendants’ argument on this point does not warrant summary 16 judgment. 17 D. Qualified Immunity 18 Lastly, the Defendants argue that they are entitled to qualified immunity. (ECF No. 65-1, 19 p. 20-23). Government officials enjoy qualified immunity from civil damages unless their 20 conduct violates “clearly established statutory or constitutional rights of which a reasonable 21 person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. 22 Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity balances two important interests— 23 the need to hold public officials accountable when they exercise power irresponsibly and the need 24 to shield officials from harassment, distraction, and liability when they perform their duties 25 reasonably.” Pearson, 555 U.S. at 231. 26 In determining whether an officer is entitled to qualified immunity, the Court must decide 27 (1) whether facts alleged or shown by plaintiff make out a violation of constitutional right; and 28 (2) whether that right was clearly established at the time of the officer’s alleged misconduct. 1 Pearson, 555 U.S. at 232 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Courts are 2 “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified 3 immunity analysis should be addressed first in light of the circumstances in the particular case at 4 hand.” Pearson, 555 U.S. at 236. In resolving these issues, the Court must view the evidence in 5 the light most favorable to the plaintiff and resolve all material factual disputes in favor of the 6 plaintiff. Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003). 7 As set forth above, the Court has found that the evidence, taken in the light most favorable 8 to Plaintiff, presents genuine issues of material fact regarding whether Defendants were 9 deliberately indifferent to his medical needs. Therefore, the Court will turn to whether the right at 10 issue was clearly established at the time of the Defendants’ alleged misconduct, which began in 11 2017. On this point, Defendants argue that “there is no indication that Defendants’ purely 12 administrative review of Plaintiff’s appeals violated clearly established law” and say that the case 13 law is, in fact, “contrary to this position.” (ECF No. 65-1, p. 21). In support, Defendants cite 14 Quinn, Neal, and Battensby, the same cases that the Court earlier found to be factually distinct 15 from the circumstances of the present case because Defendants did not simply affirm a medical 16 provider’s decision to deny care; rather, they knew from medical providers that Plaintiff needed 17 care. In summary, Defendants’ argument amounts again to the contention that “they could not 18 violate Plaintiff’s Constitutional rights for not performing actions that were not within their 19 control.” (Id. at 23). However, as described above, there is a dispute of fact regarding whether 20 Defendants could have taken actions within their control to address Plaintiff’s serious medical 21 needs. 22 Defendants also cite to Mann v. Adams, 855 F.2d 639 (9th Cir. 1988) but make no specific 23 argument about how this case applies in the clearly-established context. (ECF No. 65-1, p. 21). 24 Presumably, Defendants cite this case for the same proposition that it is cited earlier in their 25 motion for summary judgment in discussing the merits of Plaintiff’s claim: “The existence of an 26 inmate appeals process does not create a protected liberty interest upon which Plaintiff may base 27 a claim that he was denied a particular result or that the appeals process was deficient.” (Id. at 28 15). However, Plaintiff is not claiming a liberty interest in the prison grievance process; for 1 example, he does not assert a claim based on the Defendants’ failure to process his grievances. 2 Rather, his claim is that Defendants were deliberate deliberately indifference to his serious 3 medical needs by declining to intervene to help him obtain medical care that was repeatedly 4 delayed. 5 In support of qualified immunity, Defendants rely on a district court case from 2012, 6 Pogue v. Igbinosa, which surveyed district court opinions at that time and concluded: 7 The emerging consensus, therefore, is that a medically-trained official who reviews and denies an appeal is liable under the Eighth Amendment when a 8 plaintiff can show that the official knew, at least in part, from reading the appeal that the plaintiff had a serious medical issue and nevertheless chose not to offer 9 treatment. . . . Plaintiff cites no court within the circuit, however, that has extended this liability to non-medical prison staff tasked with reviewing appeals. Instead, 10 non-medical reviewers who confirm that a prisoner is receiving some medical 11 treatment “will generally be justified in believing that the prisoner is in capable hands.” 12 2012 WL 603230, at *8-9; (ECF No. 65-1, p. 21) (internal citations omitted). Certainly, many 13 district courts after that date have extended liability to reviewers of healthcare appeals who learn 14 of an unconstitutional condition that can be remedied and yet take no action. See, e.g., Govea v. 15 Lee, No. CV 20-5443-JFW (KS), 2020 WL 6083436, at *4 n.3 (C.D. Cal. July 1, 2020) (“The 16 Court acknowledges that some district courts have found that a grievance appeal reviewer who 17 fails to remedy an ongoing denial of adequate medical care personally participates in an Eighth 18 Amendment violation.”); Sosa v. Foulk, No. 2:14-cv-0727 DB P, 2020 WL 1820736, at *8 (E.D. 19 Cal. Apr. 10, 2020) (“[T]he court presumes that defendant Cornelison’s rejection of plaintiff’s 20 appeal was substantive in nature and that at minimum, review of the appeal put him on notice 21 with respect to plaintiff's assertions that his personal safety was at risk. These facts would make 22 this claim against defendant Cornelison cognizable at this stage in the proceedings.”); Norsworthy 23 v. Beard, No. 14-cv-00695JST, 2015 WL 1478264, at *7-9 (N.D. Cal. March 31, 2015) (finding 24 that the plaintiff stated a valid claim for deliberate indifference against administrators who 25 reviewed and denied the plaintiff’s grievance reports requesting sex reassignment 26 surgery); Nicholson v. Finander, No. CV 12–9993–FMO (JEM), 2014 WL 1407828, at *7 (C.D. 27 Cal. Apr. 11, 2014) (“[A] supervisor who learns about an unconstitutional denial of adequate 28 1 medical care from a prisoner’s grievance and fails to intervene may be found to have personally 2 participated in the Eighth Amendment violation.”); Johnson v. Valdez, No. 1:11-cv-00053–BLW, 3 2013 WL 4494992, at *6 (D. Idaho Aug.16, 2013) (finding that the plaintiff stated a valid claim 4 against administrators who failed to “rectify the delays” in his medical). Moreover, the Supreme 5 Court recognized in 1976 in Estelle that delays in medical treatment may manifest deliberate 6 indifference: 7 We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the “unnecessary and wanton infliction of pain,” proscribed 8 by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in 9 intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, 10 deliberate indifference to a prisoner’s serious illness or injury states a cause of 11 action under § 1983. 12 429 U.S. at 104–05 (internal citation omitted). Notably, the Court in Estelle recognizes that 13 “prison guards,” who one would expect often not to be medically trained, can be held liable for 14 healthcare delays. 15 In any event, the dispute of fact here concerns whether defendants truly concluded that the 16 “prisoner is receiving some medical treatment,” and “is in capable hands,” in light of the repeated 17 delays. Based on the foregoing, it was clearly established in 2017 that Defendants could be liable 18 for deliberate indifference to serious medical needs if they meet the standards for that claim, 19 regardless of whether their involvement came through the administrative exhaustion process. 20 Therefore, the Court recommends finding that Defendants are not entitled to qualified immunity. 21 VII. CONCLUSION AND RECOMMENDATION 22 For the above reasons, there remains a genuine dispute of material fact and Defendants are 23 not entitled to judgment as a matter of law. 24 Accordingly, IT IS RECOMMENDED that the motion for summary judgment (ECF No. 25 65) filed by Defendants C. Cryer, J. Lewis, and S. Gates be denied; 26 These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) 27 days after being served with these findings and recommendations, any party may file written 28 1 | objections with the court. Such a document should be captioned “Objections to Magistrate Judge's 2 | Findings and Recommendations.” Any reply to the objections shall be served and filed within 3 | fourteen (14) days after service of the objections. The parties are advised that failure to file 4 | objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 5 | Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 6 (9th Cir. 1991)).