1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TYRONE THOMPSON, Case No. 2:19-cv-01651-JDP (PC) 12 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 13 v. ECF No. 26 14 BICK, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding without counsel in this action brought under 42 18 U.S.C. § 1983, alleges that defendants Petras and Bick violated his Eighth Amendment rights by 19 terminating his methadone prescription. ECF No. 10. Defendants move for summary judgment, 20 arguing that plaintiff cannot show that they were deliberately indifferent to his medical needs. 21 ECF No. 26. The court grants summary judgment in defendants’ favor. 22 Background 23 Plaintiff has experienced chronic low back pain for more than two decades and has 24 periodically been treated with opioid pain medications. See ECF No. 26-5 at 13. Following his 25 2014 transfer to California Medical Facility (“CMF”), a medical provider not named in this suit 26 prescribed him methadone, which he claims both reduced his urinary and fecal incontinence and 27 also reduced his pain to a level that allowed him to walk, attend classes, and perform daily 28 activities. ECF No. 30 at 3. 1 Plaintiff attests that, in October 2018, his primary care provider—then Dr. Ota—explained 2 that because of guidelines promulgated by defendant Bick, CMF’s Chief Medical Officer, she had 3 been instructed “to taper [plaintiff] off of [his] pain medication (methadone).” Id. at 4-5. Ota 4 wrote in plaintiff’s medical record that she had decided to taper his methadone “because he [wa]s 5 on an unsafe level [of] over 90 morphine milligram equivalents.” Id. at 240. She further 6 explained that there was “a lack of evidence of long-term improvement in the amount of pain,” 7 and that his methadone use “places him at a risk for physical and psychological dependence, drug 8 overdose, and death.” Id. In a November 2018 response to a health care grievance, defendant 9 Bick stated that “[t]he department is reviewing all patients across the state to ensure that the 10 benefits of opiates outweighs the risk.” Id. at 72. On December 18, 2018, plaintiff signed a form 11 titled “Informed Consent for Treatment with Opioid Medication,” noting his acknowledgement of 12 the major health risks associated with opioid medications, including overdose and dependence, 13 and consenting to “strict rules for the use of opioid medications.” ECF No. 26-5 at 12. 14 In February 2019, Ota informed plaintiff that Petras would be taking over as his primary 15 care provider and on March 4, 2019, Petras had his first visit with plaintiff in this role. ECF 16 No. 30 at 10-11, 246. According to his progress notes from that visit, plaintiff had been tapered 17 to a daily dose of approximately 45 morphine milligram equivalents of methadone and placed on 18 a trial of gabapentin. Id. at 246. He reported to Petras that both his pain and mobility had 19 worsened since beginning to taper off of methadone. Id. He attests that Petras nevertheless told 20 him that he would be tapered entirely off methadone pursuant to defendant Bick’s new guidelines. 21 Id. at 10. Under a section of the March 4 progress note entitled “Assessment/Plan,” Petras wrote 22 that he discussed with plaintiff “the utility of tapering him off opioids entirely . . . [and] explained 23 to him that [an] MRI from 2016 did not explain the severity of his pain or disability.” ECF 24 No. 26-5 at 25. Additional notes from that visit state that the MRI showed only “mild 25 degenerative changes, nothing that would cause him to be [wheelchair] bound most of the time or 26 [to] have severe debilitating lumbar spinal stenosis symptoms”; that plaintiff “will be referred to 27 [physical therapy] for remobilization”; and, that an “interventional pain specialist is needed once 28 1 opioids have been washed out completely.” Id.1 2 Plaintiff saw Petras again on March 29, 2019, id. at 21, at which visit he reported, “I am in 3 serious pain, urinating and defecating on myself a lot, I can hardly walk or stand, I am having 4 problems with going to get my insulin that I really need,” id.; ECF No. 30 at 11. At that visit, 5 Petras asked him to provide a urine sample to test whether he had been taking his methadone as 6 prescribed. Id. Petras wrote, “I have reconsidered stoppage of methadone at this moment due to 7 legitimate functional complaints by the patient. [H]e is also on a much safer dosage than 8 previously. [I]f [his urine toxicology screening] is normal I will request [an] eval[uation] by 9 [CMF] pain[] [committee].” ECF No. 26-5 at 22. 10 On April 11, 2019, plaintiff received a note from Petras regarding his urine toxicology 11 screening: 12 Dear Mr. Thompson, your recent urine toxicology screen is negative for any substances including the methadone you have been prescribed. It is 13 reasonable to conclude you are diverting all your prescribed methadone or that you substituted water or someone else’s urine for the urine sample 14 you submitted. In either case, I am required to taper and stop your 15 methadone under these circumstances. 16 Id. at 10. In his declaration, Petras attests that “terminating plaintiff’s methadone prescription 17 following a urine toxicology drug screen with a negative result for methadone was not only 18 appropriate[] but was required and medically necessary.” Id. at 2. He also attests that “[u]pon 19 review of [plaintiff’s] medical records, including the result of an MRI, there did not appear to be 20 an objective medical reason for the level of pain and level of disability of plaintiff.” Id. 21 For at least a year following the discontinuation of his methadone, plaintiff complained of 22 pain in his back, decreased mobility, worsening sleep, and a lack of control over urination and 23 defecation, without receiving methadone or other opioid pain medications. Id. at 12-17. His 24 1 Plaintiff also claims that around this time he requested pain medication to treat his 25 diabetic foot pain, although he does not appear to base his deliberate indifference claim on these facts. See ECF No. 30 at 8 & 25. He appears to claim that Ota requested approval from Bick to 26 prescribe gabapentin for his diabetic foot pain. Id. at 8. Although he does not state whether he 27 received gabapentin, Petras wrote in the progress notes from the March 4 visit that he was “stopp[ing] gabapentin” after a one-month trial because plaintiff had stated that it “did nothing for 28 his pain.” Id. at 246. 1 medical records show that Petras conducted additional X-ray and MRI examinations of his 2 lumbar spine in April and June 2019, and that he provided alternative pain medications, such as 3 acetaminophen and topical cream. Id. at 16. Plaintiff maintains that these treatments were 4 ineffective and that the deprivation of methadone constituted deliberate indifference to his serious 5 medical needs. 6 Legal Standards 7 A. Summary Judgment Standard 8 Summary judgment is appropriate where there is “no genuine dispute as to any material 9 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington 10 Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine 11 only if there is sufficient evidence for a reasonable factfinder to find for the non-moving party, 12 while a fact is material if it “might affect the outcome of the suit under the governing law.” 13 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 14 F.2d 1422, 1436 (9th Cir. 1987).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TYRONE THOMPSON, Case No. 2:19-cv-01651-JDP (PC) 12 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 13 v. ECF No. 26 14 BICK, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding without counsel in this action brought under 42 18 U.S.C. § 1983, alleges that defendants Petras and Bick violated his Eighth Amendment rights by 19 terminating his methadone prescription. ECF No. 10. Defendants move for summary judgment, 20 arguing that plaintiff cannot show that they were deliberately indifferent to his medical needs. 21 ECF No. 26. The court grants summary judgment in defendants’ favor. 22 Background 23 Plaintiff has experienced chronic low back pain for more than two decades and has 24 periodically been treated with opioid pain medications. See ECF No. 26-5 at 13. Following his 25 2014 transfer to California Medical Facility (“CMF”), a medical provider not named in this suit 26 prescribed him methadone, which he claims both reduced his urinary and fecal incontinence and 27 also reduced his pain to a level that allowed him to walk, attend classes, and perform daily 28 activities. ECF No. 30 at 3. 1 Plaintiff attests that, in October 2018, his primary care provider—then Dr. Ota—explained 2 that because of guidelines promulgated by defendant Bick, CMF’s Chief Medical Officer, she had 3 been instructed “to taper [plaintiff] off of [his] pain medication (methadone).” Id. at 4-5. Ota 4 wrote in plaintiff’s medical record that she had decided to taper his methadone “because he [wa]s 5 on an unsafe level [of] over 90 morphine milligram equivalents.” Id. at 240. She further 6 explained that there was “a lack of evidence of long-term improvement in the amount of pain,” 7 and that his methadone use “places him at a risk for physical and psychological dependence, drug 8 overdose, and death.” Id. In a November 2018 response to a health care grievance, defendant 9 Bick stated that “[t]he department is reviewing all patients across the state to ensure that the 10 benefits of opiates outweighs the risk.” Id. at 72. On December 18, 2018, plaintiff signed a form 11 titled “Informed Consent for Treatment with Opioid Medication,” noting his acknowledgement of 12 the major health risks associated with opioid medications, including overdose and dependence, 13 and consenting to “strict rules for the use of opioid medications.” ECF No. 26-5 at 12. 14 In February 2019, Ota informed plaintiff that Petras would be taking over as his primary 15 care provider and on March 4, 2019, Petras had his first visit with plaintiff in this role. ECF 16 No. 30 at 10-11, 246. According to his progress notes from that visit, plaintiff had been tapered 17 to a daily dose of approximately 45 morphine milligram equivalents of methadone and placed on 18 a trial of gabapentin. Id. at 246. He reported to Petras that both his pain and mobility had 19 worsened since beginning to taper off of methadone. Id. He attests that Petras nevertheless told 20 him that he would be tapered entirely off methadone pursuant to defendant Bick’s new guidelines. 21 Id. at 10. Under a section of the March 4 progress note entitled “Assessment/Plan,” Petras wrote 22 that he discussed with plaintiff “the utility of tapering him off opioids entirely . . . [and] explained 23 to him that [an] MRI from 2016 did not explain the severity of his pain or disability.” ECF 24 No. 26-5 at 25. Additional notes from that visit state that the MRI showed only “mild 25 degenerative changes, nothing that would cause him to be [wheelchair] bound most of the time or 26 [to] have severe debilitating lumbar spinal stenosis symptoms”; that plaintiff “will be referred to 27 [physical therapy] for remobilization”; and, that an “interventional pain specialist is needed once 28 1 opioids have been washed out completely.” Id.1 2 Plaintiff saw Petras again on March 29, 2019, id. at 21, at which visit he reported, “I am in 3 serious pain, urinating and defecating on myself a lot, I can hardly walk or stand, I am having 4 problems with going to get my insulin that I really need,” id.; ECF No. 30 at 11. At that visit, 5 Petras asked him to provide a urine sample to test whether he had been taking his methadone as 6 prescribed. Id. Petras wrote, “I have reconsidered stoppage of methadone at this moment due to 7 legitimate functional complaints by the patient. [H]e is also on a much safer dosage than 8 previously. [I]f [his urine toxicology screening] is normal I will request [an] eval[uation] by 9 [CMF] pain[] [committee].” ECF No. 26-5 at 22. 10 On April 11, 2019, plaintiff received a note from Petras regarding his urine toxicology 11 screening: 12 Dear Mr. Thompson, your recent urine toxicology screen is negative for any substances including the methadone you have been prescribed. It is 13 reasonable to conclude you are diverting all your prescribed methadone or that you substituted water or someone else’s urine for the urine sample 14 you submitted. In either case, I am required to taper and stop your 15 methadone under these circumstances. 16 Id. at 10. In his declaration, Petras attests that “terminating plaintiff’s methadone prescription 17 following a urine toxicology drug screen with a negative result for methadone was not only 18 appropriate[] but was required and medically necessary.” Id. at 2. He also attests that “[u]pon 19 review of [plaintiff’s] medical records, including the result of an MRI, there did not appear to be 20 an objective medical reason for the level of pain and level of disability of plaintiff.” Id. 21 For at least a year following the discontinuation of his methadone, plaintiff complained of 22 pain in his back, decreased mobility, worsening sleep, and a lack of control over urination and 23 defecation, without receiving methadone or other opioid pain medications. Id. at 12-17. His 24 1 Plaintiff also claims that around this time he requested pain medication to treat his 25 diabetic foot pain, although he does not appear to base his deliberate indifference claim on these facts. See ECF No. 30 at 8 & 25. He appears to claim that Ota requested approval from Bick to 26 prescribe gabapentin for his diabetic foot pain. Id. at 8. Although he does not state whether he 27 received gabapentin, Petras wrote in the progress notes from the March 4 visit that he was “stopp[ing] gabapentin” after a one-month trial because plaintiff had stated that it “did nothing for 28 his pain.” Id. at 246. 1 medical records show that Petras conducted additional X-ray and MRI examinations of his 2 lumbar spine in April and June 2019, and that he provided alternative pain medications, such as 3 acetaminophen and topical cream. Id. at 16. Plaintiff maintains that these treatments were 4 ineffective and that the deprivation of methadone constituted deliberate indifference to his serious 5 medical needs. 6 Legal Standards 7 A. Summary Judgment Standard 8 Summary judgment is appropriate where there is “no genuine dispute as to any material 9 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington 10 Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine 11 only if there is sufficient evidence for a reasonable factfinder to find for the non-moving party, 12 while a fact is material if it “might affect the outcome of the suit under the governing law.” 13 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 14 F.2d 1422, 1436 (9th Cir. 1987). Each party’s position must be supported by (1) citations to 15 particular portions of materials in the record, including but not limited to portions of depositions, 16 documents, declarations, or discovery; or (2) argument showing that the materials cited do not 17 establish the presence or absence of a genuine factual dispute or that the opposing party cannot 18 produce admissible evidence to support its position. See Fed. R. Civ. P. 56(c)(1) (quotation 19 marks omitted). The court may consider material in the record beyond that cited by the parties, 20 but it is not required to do so. See Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified 21 Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); see also Simmons v. Navajo Cnty., Ariz., 609 22 F.3d 1011, 1017 (9th Cir. 2010). Given the liberal standard afforded pro se litigants and the 23 prohibition against granting summary judgment by default, I will take the whole record into 24 consideration in evaluating whether defendants are entitled to summary judgement. 25 “The moving party initially bears the burden of proving the absence of a genuine issue of 26 material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the 27 moving party must either produce evidence negating an essential element of the nonmoving 28 party’s claim or defense or show that the nonmoving party does not have enough evidence of an 1 essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. 2 Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this 3 initial burden, the burden shifts to the non-moving party “to designate specific facts 4 demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d 5 376, 387 (citing Celotex Corp., 477 U.S. at 323). While the non-moving party is not required to 6 establish a material issue of fact conclusively in its favor, it must at least produce “evidence from 7 which a jury could reasonably render a verdict in [its] favor.” Id. (citing Anderson, 477 U.S. at 8 252). The evidence must be viewed “in the light most favorable to the nonmoving party” and “all 9 justifiable inferences” must be drawn in favor of the non-moving party. Orr v. Bank of America, 10 NT & SA, 285 F.3d 764, 772 (9th Cir. 2002). 11 B. Eighth Amendment Standard 12 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 13 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 14 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-prong test 15 for deliberate indifference requires a plaintiff to show (1) “‘a serious medical need’ by 16 demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury 17 or the unnecessary and wanton infliction of pain,’” and (2) that “the defendant’s response to the 18 need was deliberately indifferent.” Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th 19 Cir. 1992)). “This second prong—defendant’s response to the need was deliberately 20 indifferent—is satisfied by showing (a) a purposeful act or failure to respond to a prisoner’s pain 21 or possible medical need and (b) harm caused by the indifference.” Id. (citing McGuckin, 974 22 F.2d at 1060). Indifference may be manifest “when prison officials deny, delay or intentionally 23 interfere with medical treatment, or it may be shown by the way in which prison physicians 24 provide medical care.” Id. When a prisoner alleges a delay in receiving medical treatment, the 25 delay must have led to further harm for the prisoner to make a claim of deliberate indifference to 26 serious medical needs. See McGuckin, 974 F.2d at 1060 (citing Shapely v. Nevada Bd. of State 27 Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)). 28 1 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 2 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the facts 3 from which the inference could be drawn that a substantial risk of serious harm exists,’ but that 4 person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 U.S. 825, 5 837 (1994)). “If a prison official should have been aware of the risk, but was not, then the official 6 has not violated the Eighth Amendment, no matter how severe the risk.” Id. (quoting Gibson v. 7 Cnty. of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A showing of medical malpractice or 8 negligence is insufficient to establish a constitutional deprivation under the Eighth Amendment.” 9 Id. at 1060. “[E]ven gross negligence is insufficient to establish a constitutional violation.” Id. 10 (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)). Additionally, a difference of 11 opinion between an inmate and prison medical personnel about a medical diagnosis or course of 12 treatment is insufficient to support a deliberate indifference claim. See Id. at 1058; Wilhelm v. 13 Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012. 14 Discussion 15 As an initial matter, a reasonable juror could conclude that plaintiff’s chronic pain 16 constitutes an objectively “serious medical need.” See McGuckin, 974 F.2d at 1059 (holding that 17 “[t]he existence of chronic and substantial pain” is an “indication[] that a prisoner has a serious 18 need for medical treatment”). The dispute centers on the “second prong—[whether] defendant’s 19 response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096. 20 Plaintiff argues that the decision to taper and eventually discontinue his methadone 21 treatment constituted deliberate indifference because it was based solely on administrative 22 policies, rather than on Ota or Petras’ professional medical judgment. See ECF No. 30 at 19-21. 23 Defendants argue that “plaintiff was regularly examined for his claims of chronic back pain,” 24 ECF No. 26-1 at 13, and that both Ota and Petras exercised professional “medical judgment in 25 treating him,” id. at 12. Thus, they contend, the record shows “nothing more than a difference of 26 medical opinion as to the need to pursue one course of treatment over another.” Wilhelm, 680 27 F.3d at 1122; see ECF No. 26-1. 28 1 Deliberate indifference is manifested when a medical provider relies solely on 2 administrative policy to terminate treatment or to provide less-effective treatment. See Colwell v. 3 Bannister, 743 F.3d 1060, 1063 (9th Cir. 2014) (“[T]he blanket, categorical denial of medically 4 indicated surgery solely on the basis of an administrative policy . . . is the paradigm of deliberate 5 indifference.”). In such cases, a prisoner need not prove a complete denial of pain medication; 6 where a provider substitutes the application of administrative policy for their own medical 7 judgment, it is enough that the alternative treatments were ineffective or substantially inferior. 8 See Franklin v. Dudley, 2:07-CV-2259-FCD-KJN, 2010 WL 5477693, at *6 (E.D. Cal. Dec. 29, 9 2010) (holding that a reasonable jury could find deliberate indifference where plaintiff’s narcotic 10 pain medication was substituted for over-the-counter medications pursuant to the prison’s no- 11 narcotics policy); Chess v. Dovey, CVS-07-1767-LKK-DAD, 2011 WL 567375, at *21 (E.D. Cal. 12 Feb. 15, 2011) (finding deliberate indifference where a prisoner’s methadone was substituted for 13 “Tylenol and aspirin . . . [,] not because any one of them determined that it was medically 14 unnecessary, but solely because [prison] policy prohibits general population inmates from 15 receiving methadone”). 16 Nevertheless, the record reflects that defendant Petras exercised acceptable medical 17 judgment in deciding whether to discontinue plaintiff’s methadone prescription. Plaintiff’s 18 medical records show that Petras conducted an independent evaluation of plaintiff’s need for 19 narcotic pain medication: for instance, he observed that a 2016 MRI showed only mild 20 degeneration in his spine and concluded that “there did not appear to be an objective medical 21 reason for the level of pain and level of disability reported by plaintiff.” ECF No. 26-5 at 2 & 24. 22 Even after making this determination, he considered plaintiff’s “legitimate functional complaints” 23 following the first phase of tapering his methadone—plaintiff had reported serious pain, difficulty 24 walking and standing, and fecal and urinary incontinence—and delayed the tapering process until 25 he could review the results of plaintiff’s drug screening. See id. at 22. When the drug screening 26 returned negative, Petras determined that “it [was] reasonable to conclude [plaintiff was] 27 diverting all [his] prescribed methadone,” id. at 10, and that “terminating [hi]s methadone 28 prescription . . . was not only appropriate[] but was required and medically necessary,” id. at 2. 1 Plaintiff argues that, because Petras wrote that he was “required to taper and stop [hi]s 2 methadone” after a negative urine test, the denial of medical care constituted “a form of 3 punishment.” ECF No. 30 at 21 (quoting Sullivant v. Spectrum Med. Servs., CV 11-00119-M- 4 JCL, 2013 WL 265992, at *7 (D. Mont. Jan. 23, 2013)). In Sullivant, a nurse practitioner 5 terminated the plaintiff’s access to medications for major depression and major anxiety 6 disorders—forcing him to withdraw “cold-turkey”—solely because an officer had observed him 7 “trying to hide the medication . . . in his pants.” 2013 WL 265992, at *2-3. The court explained 8 that “[d]enial of medical care as a form of punishment” constitutes deliberate indifference “if 9 there is not some evidence that medical consequences were considered” and stressed that “[t]he 10 only explanation . . . for the discontinuation of [the plaintiff’s] medications [was] that he was 11 hoarding the medications.” Id. at *7. 12 Here, in contrast, the record indicates that Petras did not terminate plaintiff’s methadone 13 solely due to suspicion that plaintiff was diverting medication, but because the negative urine test 14 supported his conclusion that there was no “objective medical reason for the level of pain and 15 level of disability reported by plaintiff.” ECF No. 26-5 at 2. Courts in this circuit have held that 16 similar determinations constitute acceptable medical judgments. See, e.g., Paredez v. Hedgpeth, 17 C 11-3351 SI PR, 2013 WL 269086, at *6 (N.D. Cal. Jan. 24, 2013) (holding that a doctor’s 18 decision to taper a prisoner-plaintiff off morphine after he “was reported to have abused 19 narcotics” did not constitute deliberate indifference because the decision was made “pursuant to a 20 medical policy that was separate from any disciplinary charge that may have been made”). 21 Rather than stopping plaintiff’s medication cold turkey, as in Sullivant, Petras tapered plaintiff off 22 methadone and provided follow-up treatment for his chronic pain issues, including providing non- 23 opioid pain medication, conducting additional examinations, and by referring plaintiff to outside 24 specialists. In light of these undisputed facts, plaintiff has not shown that there is a genuine issue 25 of material fact as to whether Petras acted with deliberate indifference. 26 Next, plaintiff claims that defendant Bick is liable as a policymaker for implementing the 27 opioid guidelines. ECF No. 30 at 33. To establish supervisory liability for an unconstitutional 28 policy, a plaintiff must show that a supervisory official “promulgated, implemented, or in some 1 | other way possessed responsibility for the continued operation of . . . a policy that instructs its 2 || adherents to violate constitutional rights” and that a constitutional violation “occurred pursuant to 3 | that policy.” OSU Student All. v. Ray, 699 F.3d 1053, 1076 (9th Cir. 2012) (citing Dodds v. 4 | Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010) (internal marks omitted)). Plaintiff has shown 5 || neither that the guidelines required a categorical denial of narcotic medication regardless of 6 || need—like the policies at issue in Chess, 2011 WL 567375 at *21, and Franklin, 2010 WL 7 || 5477693 at *6—nor that anybody violated his rights pursuant to Bick’s policy. To the contrary, 8 | defendant Bick described the implementation of the new guidelines as a process of “reviewing all 9 || patients across the state to ensure that the benefits of opiates outweigh the risk,” ECF No. 30 at 10 || 72; and the record reflects that, like Petras, Ota weighed benefits and risks to plaintiff’s health in 11 || the course of rendering a medical decision, see ECF No. 26-5 at 26 (stating that plaintiffs 12 || methadone was at “an unsafe level [of] over 90 morphine milligram equivalents,” and that “there 13 || is alack of evidence that long-term narcotic pain medications are safe or effective”). 14 | Accordingly, on the evidence in the record, a reasonable juror could not conclude that Bick acted 15 || with deliberate indifference. 16 Accordingly, it is hereby ORDERED that: 17 1. Defendants’ motion for summary judgment, ECF No. 26, is granted; 18 2. plaintiff's claims against all defendants are dismissed; and 19 3. the Clerk of Court is directed to close the case. 20 21 | ITISSO ORDERED. 22 si 23 || Dated: _ August 9, 2022 Jessa (etow 7 JEREMY D. PETERSON 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28