(PC) Tran v. Smith

• Court: District Court, E.D. California
• Decided: February 14, 2023
• Docket: 1:19-cv-00148
• Status: Unknown

Opinion

7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 BINH CUONG TRAN, Case No. 1:19-cv-00148-SAB (PC)

11 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 12 v. AND DIRECTING THE CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF 13 S. SMITH, et al., DEFENDANTS

14 Defendants. (ECF No. 103.)

15 16 Plaintiff Binh Cuong Tran is proceeding pro se in this civil rights action filed pursuant to 17 42 U.S.C. § 1983. The parties consented to Magistrate Judge jurisdiction. (ECF No. 105.) 18 Currently before the Court is Defendants’ motion for summary judgment, filed December 19 1, 2022. 20 I. 21 RELEVANT HISTORY 22 This action is proceeding against Defendants Munsel, Jericoff, Garcia, and Brown for 23 deliberate indifference to a serious medical need in violation of the Eighth Amendment. 24 Defendants Munsel and Jericoff filed an answer to the complaint on March 19, 2020. 25 (ECF No. 25.) 26 On July 29, 2020, the Court issued the discovery and scheduling order. (ECF No. 34.) 27 On March 10, 2021, the Court granted, in part, Plaintiff’s motion to amend the complaint. (ECF No. 49.) 1 Plaintiff filed a first amended complaint on April 9, 2021. (ECF No. 54.) 2 On July 22, 2021, Defendants filed an answer to the first amended complaint. (ECF No. 3 79.) 4 On July 23, 2021, the Court issued an amended discovery and scheduling order. (ECF 5 No. 80.) 6 On December 1, 2022, Defendants filed a timely motion for summary judgment. (ECF 7 No. 103.) Plaintiff filed an opposition on January 13, 2023, and Defendants filed a reply on 8 January 27, 2023. (ECF Nos. 108, 109.) 9 II. 10 LEGAL STANDARD 11 A. Summary Judgment Standard 12 Any party may move for summary judgment, and the Court shall grant summary 13 judgment if the movant shows that there is no genuine dispute as to any material fact and the 14 movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks 15 omitted); Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s 16 position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to 17 particular parts of materials in the record, including but not limited to depositions, documents, 18 declarations, or discovery; or (2) showing that the materials cited do not establish the presence or 19 absence of a genuine dispute or that the opposing party cannot produce admissible evidence to 20 support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The Court may consider 21 other materials in the record not cited to by the parties, but it is not required to do so. Fed. R. 22 Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 23 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 24 In judging the evidence at the summary judgment stage, the Court does not make 25 credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 26 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all 27 inferences in the light most favorable to the nonmoving party and determine whether a genuine 1 City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation 2 omitted). 3 In issuing this order, the Court carefully reviewed and considered all arguments, points 4 and authorities, declarations, exhibits, statements of undisputed facts and responses thereto, if 5 any, objections, and other papers filed by the parties. Omission of reference to an argument, 6 document, paper, or objection is not to be construed to the effect that this Court did not consider 7 the argument, document, paper, or objection. This Court thoroughly reviewed and considered the 8 evidence it deemed admissible, material, and appropriate. 9 III. 10 DISCUSSION 11 A. Summary of Plaintiff’s Complaint 12 On April 13, 2018, Plaintiff was diagnosed with a broken rib and was provided with a 13 medical chrono for a lower bunk. On April 25, 2018, Correctional Officers E. Munsel and M. 14 Jericoff informed Plaintiff that he would be moving to the second tier because his cell was 15 needed for another inmate. Plaintiff informed them of his broken rib, that he had a medical 16 chrono, and that he could not move cells. Plaintiff could barely talk due to the pain from the 17 broken rib. The officers ignored Plaintiff’s medical needs and told him that he would have to 18 move cells. Plaintiff refused to move and informed Officer Jericoff that he could not carry his 19 stuff up the fourteen stairs to the second tier. Officer Jericoff told Plaintiff to find someone to 20 help him carry his stuff up the stairs. Plaintiff asked Officer Munsel to stop the cell move, and 21 he responded, “it is prison, and you have to deal with it.” Plaintiff refused to move several more 22 times before Officer Jericoff made an ultimatum that Plaintiff had to either move to the second 23 tier or he would be moved out of building 5. Officer Jericoff told Plaintiff that an inmate was 24 returning from court and needed to be housed on the lower tier. Plaintiff had to move to the 25 second tier. Sergeants Brown and Garcia reviewed and approved the bed move. 26 /// 27 /// 1 B. Statement of Undisputed Facts1 2 1. Plaintiff Tran is an inmate of the California Department of Corrections and 3 Rehabilitation (CDCR) and was an inmate housed at Sierra Conservation Center (SCC) from 4 August 18, 2017, to June 12, 2019. 5 2. Defendant Jericoff has been employed as a correctional officer with CDCR for 6 over twenty years and has worked at SCC since 2014. (Declaration of Jericoff (Jericoff Decl.) ¶ 7 1.) 8 3. Defendant Munsel has been employed as a correctional officer with CDCR for 9 about sixteen years and has worked at SCC his entire career. (Declaration of Munsel (Munsel 10 Decl.) ¶ 1.) 11 4. Defendant J. Garcia worked for CDCR for thirty-two years and is now retired. In 12 2018, he was a correctional sergeant assigned to SCC. (Declaration of J. Garcia (Garcia Decl.) ¶ 13 1.) 14 5. Defendant A. Brown has worked for CDCR for almost twenty-six years and is 15 currently a correctional sergeant assigned to SCC. (Declaration of A. Brown (Brown Decl.) ¶ 1.) 16 6. On April 12, 2018, Plaintiff sought medical treatment at SCC complaining that, 17 for about a month, his chest hurt when he coughed. (Pl. Dep. at 87:20-89:6 & Ex. B; Declaration 18 of S. Smith (Smith Decl.) ¶ 3 & Ex. A.) 19 7. On April 13, 2018, Plaintiff was diagnosed with a non-displaced rib fracture via 20 an x-ray taken that same day. (Smith Decl. ¶ 4 & Ex. B.) 21 8. A non-displaced rib fracture is one where the bone is cracked, but properly 22 aligned. (Smith Decl. ¶ 4.) 23 9. Plaintiff sought no medical treatment between April 14 and 18, 2018. (Pl.’s Dep. 24 at 92:10-17.) 25 10. Plaintiff saw Dr. Smith on April 19, 2018 for his complaint of rib pain. (Smith 26 27 1 Decl. ¶ 6.) Plaintiff reported that the nonproductive coughing had improved. (Pl.’s Opp’n, Ex. 2 C. ECF No. 108.) 3 11. Dr. Smith gave Plaintiff a lower bunk chrono on April 19, 2018, and did not 4 provide a restriction to the ground floor or lower tier. (Pl.’s Dep. at 95:6-8; Smith Decl. ¶ 7.) 5 12. Plaintiff walked to and from his visit with Dr. Smith on April 19, 2018. (Pl. Dep. 6 at 96:1-8.) 7 8 13. Dr. Smith did not provide any kind of order excusing Plaintiff from his education 9 program or any other activities. (Pl.’s Dep. at 96:13-14.) 10 14. Plaintiff was in unit C-5 at SCC from October 1, 2017, until he left SCC on June 11 12, 2019. (Jericoff Decl. ¶ 4; Pl.’s Dep. at 31:7-13, 36:6-20, 40:11-14.) 12 15. On April 25, 2018, Plaintiff was housed in cell 101, which is on the lower tier of 13 unit C-5. (Jericoff Decl. ¶ 6; Pl.’s Dep. at 50:16-51:7.) 14 16. On the morning of April 25, 2018, Plaintiff was told by officer Jericoff that he 15 would be moving to cell 226, which is on the upper tier of unit C-5. (Pl.’s Dep. at 97:4-24; 16 Jericoff Decl. ¶ 6.) 17 17. Plaintiff claims he told Defendants Munsel and Jericoff on April 25, 2018, that he 18 could not move to cell 226 because he had a broken rib and claimed it would be painful and 19 dangerous to climb stairs. (Pl.’s Dep. at 97:4-14, 100:10-18.) 20 18. After officer Jericoff initiated the bed move on April 25, 2018, it was reviewed 21 and approved by sergeant Garcia and then by sergeant Brown. (Garcia Decl. ¶¶ 3-5; Brown 22 Decl. ¶¶ 3-5.) 23 19. Plaintiff has never had any communications with sergeant Garcia or Brown 24 regarding his April 25, 2018 bed move. (Pl.’s Dep. at 118:17-09; Garcia Decl. ¶ 6; Brown Decl. 25 ¶ 6.) 26 20. After officer Jericoff told Plaintiff about the move, Plaintiff got out of bed, got 27 dressed by putting on his shirt, pants, and shoes. (Pl.’s Dep. at 97:25-99:9.) 1 and walked to the office in his housing unit to ask Defendants Munsel and Jericoff about the 2 move to cell 226. (Pl.’s Dep. at 99:14-100:2.) 3 22. On April 25, 2018, Plaintiff moved from cell 101 to cell 226 and was assigned the 4 bottom bunk. (Pl.’s Dep. at 51:16-52:15, 53:7-9.) 5 23. Defendant Jericoff used no physical force on Plaintiff and did not physically 6 touch him in any way on April 25, 2018. (Pl.’s Dep. at 117:15-23.) 7 24. Defendant Munsel used no physical force on Plaintiff and did not physically touch 8 him in any way on April 25, 2018. (Pl.’s Dep. at 117:24-118:1.) 9 25. Plaintiff had an education assignment five days a week from November or 10 December 2017 until October 2018. (Pl.’s Dep. at 62:17-63:18.) 11 26. The education assignment was three hours long, five days a week. (Pl.’s Dep. at 12 64:11-13, 66:3-7.) 13 27. The education assignment was in a different building than Plaintiff’s housing unit 14 and it took at least ten minutes to walk there. (Pl.’s Dep. at 64:5-10, 67:1-13.) 15 28. Plaintiff would stand up and sit down throughout his education class. (Pl.’s Dep. 16 at 67:14-68:2.) 17 29. Plaintiff would walk to chow during the time he had his rib injury in April 2018, 18 twice a day. (Pl.’s Dep. at 69:25-70:13.) 19 30. Plaintiff would go up and down fourteen steps each time he went to chow. (Pl.’s 20 Dep. at 70:14-71:13.) 21 31. Plaintiff also attended guitar classes from September 2017 to June 2019 once a 22 week for one hour fifty-minutes. (Pl.’s Dep. at 75:12-77:5.) 23 32. Plaintiff would sit in a chair and hold a guitar and sometimes stand and walk 24 during the guitar class. (Pl.’s Dep. at 77:8-78:11.) 25 33. Plaintiff walked to chow on April 13, 2018. (Pl.’s Dep. at 92:3-6.) 26 34. Plaintiff attended his education assignment and chow line between April 14 and 27 18, 2018. (Pl.’s Dep. at 92:3-93:1.) 1 regularly and did not take the Tylenol with codeine prescribed by Dr. Smith. (Pl.’s Dep. at 93:5- 2 24, 94:17-95:1.) 3 36. Plaintiff claims he saw a nurse for rib pain on April 25, 2018, but he has no 4 records reflecting a visit on that date as it was a walk-in. (Pl.’s Dep. at 103:12-104:24.) 5 37. Plaintiff sought no medical treatment on April 26, 2018. (Pl.’s Dep. at 104:25- 6 105:2.) 7 38. Plaintiff submitted a request for medical services on April 27, 2018, seeking a 8 lower-level restriction. (Smith Decl. ¶ 8 & Ex. D.) 9 39. Plaintiff was evaluated on May 1, 2018, and Dr. Smith determined Plaintiff did 10 not require the lower lever restriction. (Smith Decl. ¶ 8 & Ex. D.) 11 40. Plaintiff submitted a grievance concerning Dr. Smith’s denial of the lower tier 12 restriction and the doctor who considered the grievance and California Correctional Health Care 13 Services (CCHCS) headquarters agreed that Plaintiff did not need a lower tier accommodation. 14 (Pl.’s Dep. at 106:23-109:14 & Ex. 3.) 15 41. After Plaintiff moved to the upper tier on April 25, 2018, he walked to all his 16 activities and went up and down the stairs to those activities ten times a day. (Pl.’s Dep. at 17 132:16-133:8.) 18 42. Plaintiff never tripped or fell going up or down the stairs after he moved to the 19 upper tier. (Pl.’s Dep. at 134:16-18.) 20 43. On May 1, 2018, Plaintiff was moved to cell 220 at his request and on officer 21 Jericoff’s direction due to Plaintiff’s discomfort with his cellmate. (Pl.’s Dep. at 53:10-57:16; 22 Jericoff Decl. ¶ 12.) 23 44. Plaintiff was housed in cell 220 on the top tier for over a year. (Pl.’s Dep. at 24 53:20-54:1.) 25 45. After Plaintiff moved to cell 220 on May 1, 2018, he did not complain about 26 being on the upper tier and he never asked to move back to the lower tier. (Pl.’s Dep. at 139:16- 27 140:12.) 1 at 101:21-23.) 2 47. No doctor ever gave Plaintiff a prescription for bed rest after he was diagnosed 3 with a fractured rib. (Pl.’s Dep. at 134:19-21.) 4 48. Plaintiff does not have access to SOMS and does not know what information 5 would appear on the lower bunk chrono in SOMS. (Pl.’s Dep. at 95:9-11.) 6 49. Plaintiff has no training in medicine. (Pl.’s Dep. at 19:25-20:6.) 7 C. Analysis of Defendants’ Motion 8 Defendants initially argue that Plaintiff’s fractured rib was not an obvious and serious 9 medical need on April 25, 2018. Defendants further argue that the undisputed evidence shows 10 that no reasonable jury could conclude that Defendants were deliberately indifferent to a known 11 medical need on April 25, 2018. In the alternative, Defendants argue they are entitled to 12 qualified immunity. 13 In opposition, Plaintiff argues Defendants Jericoff and Munsel acted with deliberate 14 indifference and outside the scope of their authority by moving Plaintiff from cell 101 to cell 226 15 on April 25, 2018. Defendants Garcia and Brown knew that Plaintiff had recently received a 16 serious medical chrono, yet they authorized and approved the transfer. 17 The Eighth Amendment’s prohibition against cruel and unusual punishment protects 18 convicted prisoners. Bell v. Wolfish, 441 U.S. 520, 535 (1979); Graham v. Connor, 490 U.S. 19 386, 395 n.10 (1989). While the Eighth Amendment of the United States Constitution entitles 20 Plaintiff to medical care, the Eighth Amendment is violated only when a prison official acts with 21 deliberate indifference to an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 22 985 (9th Cir. 2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082- 23 83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 24 F.3d 1091, 1096 (9th Cir. 2006). To state a claim a plaintiff “must show (1) a serious medical 25 need by demonstrating that failure to treat [his] condition could result in further significant injury 26 or the unnecessary and wanton infliction of pain,” and (2) that “the defendant’s response to the 27 need was deliberately indifferent.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). 1 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is 2 shown by “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical 3 need, and (b) harm caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d 4 at 1096). The requisite state of mind is one of subjective recklessness, which entails more than 5 ordinary lack of due care. Snow, 681 F.3d at 985 (citation and quotation marks omitted); 6 Wilhelm, 680 F.3d at 1122. 7 Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of 8 action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle v. 9 Gamble, 429 U.S. 97, 105-06 (1976)). “Medical malpractice does not become a constitutional 10 violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106; Snow, 681 F.3d at 11 987-88; Wilhelm, 680 F.3d at 1122 (“The deliberate indifference doctrine is limited in scope.”). 12 A. Objectively Serious Medical Need 13 Defendants argue that Plaintiff’s previously fractured and healing rib was not an obvious 14 and serious medical need on April 25, 2028. 15 Accordingly, the Court must first consider whether Defendants, as the moving parties, 16 have met their initial burden of showing prima facie entitlement to summary judgment on the 17 issue of Plaintiff's medical deliberate indifference claim. Celotex Corp. v. Catrett, 477 U.S 317, 18 323 (1986). 19 The prima facie elements of medical deliberate indifference are (1) a “serious medical 20 need by demonstrating that failure to treat a prisoner’s condition could result in further 21 significant injury or the unnecessary and wanton infliction of pain” and (2) that the defendant's 22 “response to the need was deliberately indifference.” Wilhelm, 680 F.3d at 1122 (internal 23 quotation marks and citation omitted). The second prong is satisfied by showing “(a) a 24 purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) harm 25 caused by the indifference.” Jett, 439 F.3d at 1096 (internal citations omitted). 26 The undisputed facts, when viewed in the light most favorable to Plaintiff, indicate that 27 he had a serious medical need. A serious medical need is evidenced by “the existence of an 1 treatment; the presence of a medical condition that significantly affects an individual's daily 2 activities; or the existence of chronic and substantial pain are examples of indications that 3 a prisoner has a ‘serious’ need for medical treatment.” McGuckin v. Smith, 974 F.2d 1050, 4 1059-60 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 5 1133 (9th Cir. 1997) (en banc). 6 Here, the record amply supports a finding that Plaintiff suffered substantial pain as a 7 result of the rib fracture, given the undisputed evidence reflects that on April 13, 2018, Plaintiff 8 was diagnosed with a non-displaced rib fracture via an x-ray taken that same day. (UF 7.) When 9 Plaintiff complained of rib pain, Dr. Smith gave him a lower bunk chrono on April 19, 2018. 10 (UF 10-11.) Dr. Smith declares that “[t]he lower bunk chrono was a reasonable accommodation 11 for [Plaintiff], because it may have been difficult for him to climb to the upper bunk with a rib 12 fracture.” (Smith Decl. ¶ 7.) Dr. Smith prescribed Tylenol with Codeine to use along with 13 ibuprofen. (Smith Decl. ¶ 6, Ex. C.) Plaintiff alleges that on April 25, 2018, when he was 14 advised to move to cell 226, he experienced pain from having to pack up and carry his property 15 up the stairs. (Pl.’s Opp’n at 3 ¶ 16.) ) Thus, taken together, Plaintiff’s allegations regarding the 16 pain he experienced, and Dr. Smith’s accommodations and treatment are sufficient to meet the 17 objective prong. 18 B. Defendants Garcia and Brown 19 Defendants Garcia and Brown declare that they were not aware Plaintiff had a rib injury 20 when they approved the bed move on April 25, 2018. (Garcia Decl. ¶ 7; Brown Decl. ¶ 7.) It is 21 undisputed that Plaintiff had no communication with Garcia or Brown on April 25, 2018. (UF 22 19.) Defendants further declare that they reviewed and approved the bed move in SOMS, which 23 does not contain medical conditions or diagnoses or medical records. (Garcia Decl. ¶¶ 3-5; 24 Brown Decl. ¶¶ 3-5.) The SOMS did list a medical restriction for a lower bunk, which did not 25 prevent Plaintiff from being housed on an upper tier. (Garcia Decl. ¶ 5; Brown Decl. ¶ 5.) 26 It is undisputed that Plaintiff does not have access to SOMS and does not know what 27 information would appear on the lower bunk chrono in SOMS. (UF 48.) Plaintiff has failed to 1 present any admissible evidence to demonstrate that either Defendant Garcia or Brown had any 2 knowledge that Plaintiff had a rib injury when they approved the bed move on April 25, 2018. 3 Rather, Plaintiff argues that Garcia and Brown were “grossly negligent in supervising 4 subordinates” and “exhibited deliberate indifference,” but there is no evidence to demonstrate 5 they were aware he had a rib fracture when they approved the bed move. In fact, the evidence 6 demonstrates otherwise. 7 Plaintiff has presented no evidence to refute that Garcia and Brown approved the bed 8 move in SOMS and there was no restriction preventing Plaintiff from moving to an upper tier. 9 (Garcia Decl. ¶ 4; Brown Decl. ¶ 4.) Further, there is no evidence to contradict Garcia and 10 Brown’s evidence that they were unaware of and did not have access to records documenting his 11 medical conditions. (Garcia Decl. ¶¶ 4, 7; Brown Decl. ¶¶ 4, 7.) In addition, Plaintiff’s 12 argument that as sergeants Defendants Garcia and Brown were “high-ranking officials” who “set 13 in motion” a constitutional violation is devoid of any evidentiary support and does not form a 14 basis for liability. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (“[s]weeping 15 conclusory allegations will not suffice to prevent summary judgment.”); see also Iqbal, 556 U.S. 16 at 676 (a supervisory official cannot be held liable under a theory of respondeat superior or 17 vicarious liability). Plaintiff’s simple belief that Defendants Garcia and Brown knew or should 18 have known does not demonstrate deliberate indifference. Farmer v. Brennan, 511 U.S. 825, 842 19 (1994); Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (a prison official acts 20 with deliberate indifference only if he subjectively knows of and disregards an excessive risk to 21 inmate health and safety). Accordingly, summary judgment shall be granted in favor of 22 Defendants Garcia and Brown. 23 C. Defendants Jericoff and Munsel 24 Non-medical personnel, including the Defendants in this case, do not have access to 25 inmate medical records and are entitled to rely upon the judgment of medical staff, such reliance 26 defeats the subjective intent element of a deliberate indifference claim. Peralta v. Dillard, 744 27 F.3d 1076, 1086-87 (9th Cir. 2014). As discussed in Peralta, where the defendant is not a doctor, 1 unnecessary pain. Id. at 1087; see also Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010) (a 2 nonmedical administrator is entitled to defer to the judgment of jail health professionals so long 3 as inmate was not ignored); Lemire v. California Dep't of Corr. & Rehab., 726 F.3d 1062, 1084 4 (9th Cir. 2013) (non-medical prison staff “did not act with deliberate indifference toward 5 [plaintiff] as they reasonably relied on the expertise of the prison's medical staff”) 6 (citing Johnson v. Doughty, 433 F.3d 1001, 1010-11 (7th Cir. 2006)). 7 Here, Defendants Jericoff and Munsel relied on the medical determinations by Dr. Smith. 8 It is undisputed that Dr. Smith examined Plaintiff for his fractured rib on April 12 and 19, 2018, 9 including review of his x-rays. (UF 6-7; 10-11.) Dr. Smith gave Plaintiff a lower bunk chrono 10 on April 19, 2018, and did not provide a restriction to the ground floor or lower tier. (UF 5.) 11 Plaintiff submitted a request for medical services on April 27, 2018, seeking a lower-level 12 restriction. (UF 38.) Plaintiff was evaluated on May 1, 2018, and Dr. Smith determined Plaintiff 13 did not require the lower lever restriction. (UF 39.) Plaintiff’s mere disagreement with Dr. 14 Smith’s medical opinion that a lower-tier restriction was not necessary does not demonstrate 15 deliberate indifference. Toguchi, 391 F.3d at 1058 (disagreement over the necessity or extent of 16 medical treatment does not show deliberate indifference); Sanchez v. Vild, 891 F.2d 240, 242 17 (9th Cir. 1989) (“A difference of opinion does not amount to a deliberate indifference to 18 [plaintiff]’s serious medical needs.”); Mayfield v. Craven, 433 F.2d 873, 874 (9th Cir. 19 1970) (“[A] difference of opinion between a prisoner patient and prison medical authorities as to 20 what treatment is proper and necessary does not give rise to a claim under [§ 1983].) Plaintiff 21 submitted a grievance concerning Dr. Smith’s denial of the lower tier restriction and the doctor 22 who considered the grievance and California Correctional Health Care Services (CCHCS) 23 headquarters agreed that Plaintiff did not need a lower tier accommodation. (UF 40.) No doctor 24 told Plaintiff he could not climb stairs with a fractured rib. And he had no prescription for bed 25 rest after he was diagnosed with a fractured rib. (UF 46-47.) 26 When Defendant Jericoff initiated Plaintiff’s bed move on April 25, 2018, and when it 27 was approved by Defendants Garcia and Brown, the evidence demonstrates that the only housing 1 Plaintiff to upper tier cell or on him climbing stairs. (Garcia Decl. ¶¶ 3-5; Brown Decl. ¶¶ 3-5; 2 Jericoff Decl. ¶ 7.) Defendant Munsel declares that he had no involvement in approving the bed 3 move or initiating it as he did not regularly work in Plaintiff’s building. (Munsel Decl. ¶¶ 2, 5.) 4 The SOMS does not contain medical conditions or diagnoses or medical records. (Garcia Decl. 5 ¶¶ 3-5; Brown Decl. ¶¶ 3-5; Jericoff Decl. ¶ 5.) While Plaintiff contends that he told Defendants 6 Jericoff and Munsel he had a broken rib, it was reasonable for them to rely on the DPP/Disability 7 Accommodation in SOMS to determine any housing restrictions as officers cannot rely on 8 inmates’ statements to medical conditions, restrictions, or expressed preferences. (Jericoff Decl. 9 ¶¶ 5, 8-9, 11; Munsel Decl. ¶ 3.) Plaintiff cannot submit his own opinion as to his medical 10 condition and the need for a lower-tier restriction. Fed. R. Evid. 702. 11 Further, the undisputed evidence demonstrates that after Plaintiff was advised of the cell 12 move, he got out of bed, got dressed by putting on his shirt, pants, and shoes. (UF 20.) He then 13 walked to the officer where Defendants Munsel and Jericoff were and spoke with them regarding 14 the move. (UF 21.) On April 25, 2018, Plaintiff moved from cell 101 to cell 226 and was 15 assigned the bottom bunk. (UF 22.) Neither Defendant used no physical force on Plaintiff and 16 did not physically touch him in any way on April 25, 2018. (UF 23-24.) 17 Even if Plaintiff did not agree with the bed move on April 25, 2018, Plaintiff was moved 18 to a different upper tier cell on May 1, 2018 (just 6 days thereafter), and lived on the upper tier 19 for over a year without complaint, climbing stairs ten times per day to attend chow and other 20 activities and never tripping or falling. (UF 42-45.) Although Plaintiff argues that non-party Dr. 21 Smith “failed to issue a chrono for Plaintiff to be excused from education,” there is no evidence 22 that he even asked for such chrono or that he wanted to be excused from the activities. (Pl.’s 23 Opp’n at 23.) Nor did Plaintiff allege that Dr. Smith failed to provide such accommodations in 24 the grievance he filed against him. (Pl.’s Dep. Ex. 3.) Likewise, during his deposition, Plaintiff 25 did not express his belief that he should have been medical excused from the activities. (UF 25- 26 34.) Further, Plaintiff admits that he chose not to take prescribed pain medication, indicating that 27 he was able to attend his activities—involving substantial movement-despite his rib fracture and 1 upper tier on May 1, 2018, he never complained about being on the upper tier or asked to move 2 back to a lower tier. (UF 45.) 3 Plaintiff’s contention that none of the Defendants were not assigned to “Receiving and 4 Release building, so they acted completely outside the scope of their authority[,]” is irrelevant as 5 this case does not involve the Receiving and Release building. Further, there is simply no 6 evidence to support Plaintiff’s contention that any Defendant acted outside the scope of his/her 7 authority when he was moved to an upper tier. 8 Plaintiff’s contention that Defendants Jericoff and Munsel acted “outside of scope of their 9 authority[,] is not supported by an admissible evidence. In support of his contention, Plaintiff 10 cites to his claim that inmate Perez did not have any safety concerns or medical needs to be 11 housed in a lower tier and Defendants Jericoff and Munsel “lied in discovery” about why Perez 12 needed to go back to cell 101. However, the determination of whether inmate Perez needed to be 13 housed in cell 101 is not relevant to whether Defendants’ were deliberately indifference to 14 Plaintiff’s serious medical needs. In addition, Plaintiff’s contention that inmate Perez could have 15 been housed in any cell within the facility, is not supported by competent evidence as Plaintiff is 16 not competent to provide such opinion. Plaintiff points to a group appeal submitted in 2019, 17 which inmate Perez allegedly signed (Pl.’s Opp’n Ex. O), but the appeal is not evidence which 18 would support a finding as to where Perez should have been housed in April 2018. 19 In sum, Dr. Smith examined Plaintiff for his rib fracture and reviewed the x-rays and 20 determined on April 19, 2018—seven days before the bed move—that Plaintiff’s condition did 21 not require restriction to a lower tier. Dr. Smith’s determination was reviewed by another 22 physician and CCHCS headquarters who agreed that Plaintiff did not need a lower tier 23 accommodation. (UF 40.) Based on the evidence presented, Defendants relied on medical 24 staff’s determination that Plaintiff did not need a lower tier restriction when they made the bed 25 move on April 25, 2018, and summary judgment shall be granted. Peralta v. Dillard, 744 F.3d at 26 1086-87. 27 /// 1 IV. 2 ORDER 3 Based on the foregoing, it is HEREBY ORDERED that: 4 1. Defendants’ motion for summary judgment (ECF No. 103), filed on December 1, 5 2022, is GRANTED; and 6 2. The Clerk of Court shall enter judgment in favor of Defendants and terminate this 7 action. 8 9 10 IT IS SO ORDERED. DAM Le 11 | Dated: _February 13, 2023 _ ef UNITED STATES MAGISTRATE JUDGE

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