(PC) Underwood v. Tan

• Court: District Court, E.D. California
• Decided: September 23, 2020
• Docket: 2:17-cv-00174
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERROL LOVELL UNDERWOOD, No. 2:17-CV-0174-KJM-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 R. TAN, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court are Defendants’ motions for summary judgment and 19 to dismiss.1 See ECF Nos. 26 and 35. Defendants’ motion for summary judgment was filed on 20 October 28, 2019, and their motion to dismiss was filed on March 3, 2020. Despite being granted 21 numerous extensions of time, both motions are unopposed. 22 / / / 23 / / / 24 / / / 25 / / / 26

27 1 Defendants state that Plaintiff has misspelled various names; “Egipto as Eqipto, Kuersten as Knersten, and Ko as Cole.” ECF No. 26-1, fn. 1. The Court shall address Defendants 28 by the names offered in their motions. 1 I. PLAINTIFF’S ALLEGATIONS 2 This action proceeds on Plaintiff’s civil rights complaint, filed on January 26, 3 2017. See ECF No. 1. Plaintiff names the following as Defendants: (1) Nurse Egipto; (2) Dr. Tan; 4 (3) Dr. Largoza; (4) Dr. Kuersten; and (5) Dr. Ko. 5 Plaintiff Errol Underwood is an inmate in the custody of the California 6 Department of Corrections and Rehabilitation (CDCR), and at all times relevant to this lawsuit 7 was housed at California State Prison - Solano (SOL or prison) in Vacaville, CA. Plaintiff alleges 8 that on February 1, 2016, he was shot by a 40 millimeter weapon2 in his right calf and right elbow 9 during a physical altercation at the prison. See ECF No. 1, pg. 5. After the incident, Plaintiff was 10 transported to the prison infirmary and was seen by Nurse Egipto. Plaintiff told Egipto that he felt 11 that he had broken his arm, but Egipto dismissed the injury as swelling which would subside. 12 Plaintiff was subsequently escorted to administrative segregation. Plaintiff 13 continued to suffer pain due to his injury and, after four days, pleaded for additional medical 14 assistance. On February 4, 2016, Plaintiff was seen by Nurse Lahara inside administrative 15 segregation. Lahara allegedly acknowledged the poor condition of his injury and asked why 16 Plaintiff did not contact the medical staff sooner. Lahara then sent Plaintiff to have x-rays taken 17 and a soft cast was subsequently placed on his arm. Plaintiff was then scheduled to see a 18 physician at San Joaquin General Hospital who stated that Plaintiff suffered from fractures in his 19 arm. 20 On February 18, 2016, and March 1, 2016, Plaintiff had medical appointments 21 with Dr. Tan. Plaintiff requested a change in his prescription medication, but Dr. Tan refused. 22 Plaintiff claims that Dr. Tan submitted false reports stating that Plaintiff had no family and was 23 exercising regularly. At some later date, Nurse Lahara informed plaintiff that Dr. Tan had placed 24 a request for an MRI scan for Plaintiff; however, that request was denied. 25 / / / 26

27 2 Plaintiff’s complaint does not specify what sort of weapon caused the injury, but Defendants state that “he was shot in his right calf and right arm by a 40 mm foam round.” 28 Plaintiff offers no opposition to this assertion. 1 Defendants Largoza and Kuersten were both members of the Institutional 2 Utilization Management Committee (Committee) and allegedly denied Plaintiff MRI access 3 despite being aware of the gunshot wound to his elbow. 4 On October 3, 2016, Plaintiff was seen by Dr. Ko. Plaintiff claims that Dr. Ko 5 recognized the severity of his condition and told Plaintiff that he would place a request for an 6 MRI scan. On November 8, 2016, Plaintiff did in fact receive an MRI scan; however, he was 7 never given the results of that scan. Plaintiff’s condition deteriorated and he was eventually 8 admitted to San Joaquin General Hospital for four days. 9 Upon his return to the prison, Plaintiff had a subsequent appointment with Dr. Ko 10 on December 7, 2016. Plaintiff told Dr. Ko about the extreme pain in Plaintiff’s elbow. However, 11 Dr. Ko simply told Plaintiff to be patient. Dr. Ko allegedly failed to provide Plaintiff with 12 adequate pain medication. 13 Plaintiff claims that the Defendants violated his Eighth Amendment rights due to 14 their indifference to his medical needs. Plaintiff requested medical treatment for his arm injury, 15 but was refused by Defendant Egipto. Plaintiff alleges defendants Tan and Ko refused to provide 16 him with necessary medical treatment, specifically an MRI, and denied him adequate pain 17 medication. He further alleges defendants Largoza and Kuersten also denied Plaintiff an MRI, 18 even though it was requested by another doctor. 19 20 II. PROCEDURAL HISTORY 21 Plaintiff filed his complaint on January 26, 2017, alleging constitutional violations 22 against Defendant Dr. Tan, Dr. Ko, Dr. Largoza, Dr. Kuersten, and Nurse Egipto. See ECF No. 1. 23 On July 3, 2018, Magistrate Judge Craig M. Kellison screened the complaint under 28 U.S.C. 24 § 1915A and found that Plaintiff stated a cognizable Eighth Amendment claim for deliberate 25 indifference to his serious medical needs, specifically that Egipto refused medical treatment, Tan 26 and Ko refused to provide an MRI and denied adequate pain medication, and that Largoza and 27 Kuersten denied him an MRI. See ECF No. 10, at 1-2. Defendants answered the complaint, and 28 the Court issued a Discovery and Scheduling Order on March 26, 2019. See ECF No. 22. 1 Discovery was open until July 29, 2019, and is now closed. See ECF No. 22. On 2 October 28, 2019, Defendants filed their motion for summary judgment. See ECF No. 26. On 3 November 14, 2019, Plaintiff filed multiple requests for additional time to submit an opposition, 4 which the Court granted. See ECF Nos. 32 and 34. Pursuant to the Court’s most recent time 5 extension, opposition to the pending motion for summary judgment was due by June 3, 2020. See 6 ECF No. 34. To date, Plaintiff has failed to submit an opposition to the pending motion for 7 summary judgment. 8 Additionally, Defendants note that Defendant Egipto has recently died and have 9 submitted a motion to dismiss Defendant Egipto pursuant to Federal Rule of Civil Procedure 10 25(a). See ECF No. 35. This motion is also unopposed and should be granted.3 11 12 III. STANDARD FOR SUMMARY JUDGEMENT 13 The Federal Rules of Civil Procedure provide for summary judgment or summary 14 adjudication when “the pleadings, depositions, answers to interrogatories, and admissions on file, 15 together with affidavits, if any, show that there is no genuine issue as to any material fact and that 16 the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The 17 standard for summary judgment and summary adjudication is the same. See Fed. R. Civ. P. 18 56(a), 56(c); see also Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). One of 19 the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. See 20 / / / 21 / / / 22 3 On March 3, 2020, Defendants filed a motion to dismiss deceased Defendant 23 Egipto because Plaintiff failed to file a motion for substitution. See ECF No. 35. Under Federal Rule of Civil Procedure 25(a)(1), a civil suit against a deceased party must be dismissed unless a 24 party moves for substitution within 90 days of a service noting death. See Fed. R. Civ. P. 25. After the deceased party is dismissed, the action proceeds with the remaining parties. See Fed. R. 25 Civ. P. 25(a)(2). On October 30, 2019, Defendants submitted an amended notice of suggestion of 26 death of Defendant Egipto, notifying Plaintiff of Defendant Egipto’s death. See ECF No. 30. To date, and despite having been granted an extension of time to respond to Defendants’ motion to 27 dismiss, no motion for substitution has been filed. Because no motion for substitution has been filed, Defendants’ motion to dismiss should be granted and Defendant Egipto should be dismissed 28 pursuant to Rule 25(a)(1). 1 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under summary judgment practice, the 2 moving party

3 . . . always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, 4 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a 5 genuine issue of material fact.

6 Id., at 323 (quoting former Fed. R. Civ. P. 56(c)); see also Fed. R. Civ. P. 56(c)(1). 7 If the moving party meets its initial responsibility, the burden then shifts to the 8 opposing party to establish that a genuine issue as to any material fact actually does exist. See 9 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 10 establish the existence of this factual dispute, the opposing party may not rely upon the 11 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 12 form of affidavits, and/or admissible discovery material, in support of its contention that the 13 dispute exists. See Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 n.11. The 14 opposing party must demonstrate that the fact in contention is material, i.e., a fact that might 15 affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 16 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th 17 Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could 18 return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 19 (9th Cir. 1987). To demonstrate that an issue is genuine, the opposing party “must do more than 20 simply show that there is some metaphysical doubt as to the material facts . . . . Where the record 21 taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 22 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). It is sufficient that “the 23 claimed factual dispute be shown to require a trier of fact to resolve the parties’ differing versions 24 of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. 25 In resolving the summary judgment motion, the court examines the pleadings, 26 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. 27 See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, see Anderson, 28 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the 1 court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587. 2 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 3 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 4 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 5 1987). Ultimately, “[b]efore the evidence is left to the jury, there is a preliminary question for the 6 judge, not whether there is literally no evidence, but whether there is any upon which a jury could 7 properly proceed to find a verdict for the party producing it, upon whom the onus of proof is 8 imposed.” Anderson, 477 U.S. at 251. 9 10 IV. THE EVIDENCE 11 Defendants’ motion for summary judgment is supported by their statement of 12 undisputed facts, see ECF No. 26-2, as well as the sworn declarations of: (1) R. Tan, (2) N. 13 Largoza, (3) N. Kuersten, (4) F. Ko, (5) M. Kwaye, (6) Feinberg, and (7) Steven E. Vong. 14 Defendants state that the following facts are undisputed: 15 16 Defendants’ Undisputed Material Facts Evidentiary Support 17 I. THE PARTIES AND BACKGROUND INFORMATION. 18 1. Plaintiff Errol Underwood (V-20128) is an 1. Pl.’s Complaint (Compl.), ECF No. 1 at 1- inmate in the custody of the California 2. [footnote omitted] 19 Department of Corrections and Rehabilitation (CDCR), and at all times relevant to this 20 lawsuit was housed at California State Prison - Solano (SOL) in Vacaville, CA. 21 2. Plaintiff has not received any medical 2. Deposition of Errol Underwood, Vol. I at 22 training. 26:16-18 (Underwood Dep.) (Exhibit A to the Declaration of Steven E. Vong in Support of 23 Defendants’ Motion for Summary Judgment 24 (Vong Dec.). 25 3. Defendant, Nurse Egipto, worked with 3. Declaration of Kwaye (Kwaye Decl.) at ¶ 4. CDCR at SOL at all times relevant to this 26 lawsuit. 27 4. Defendant, Dr. Tan, worked with CDCR at 4. Declaration of Tan (Tan Decl.) at ¶ 2. SOL at all times relevant to this complaint. 28 1 5. Dr. Tan was Plaintiff’s primary care 5. Tan Decl. at ¶ 2. physician at SOL from February 18, 2016, 2 through April 29, 2016. 3 6. At all relevant times to this lawsuit, 6. Declaration of Largoza (Largoza Decl.) at Defendant Dr. Largoza was the Chief ¶¶ 1-3. 4 Physician & Surgeon (CP&S) at SOL, and reviewed and signed off on Plaintiff’s health 5 care appeal log number SOL HC 16041256. 6 7. At all relevant times to this lawsuit, 7. Declaration of Kuersten (Kuersten Decl.) at 7 Defendant Dr. Kuersten was the Chief ¶¶ 1-4. Medical Executive at SOL. 8 8. Defendant, Dr. Ko, worked with CDCR at 8. Declaration of Ko (Ko Decl.) at ¶¶ 1-4. 9 SOL at all times relevant to this complaint, and was Plaintiff’s primary care physician at 10 SOL from May 2016 to January 2017. 11 II. PLAINTIFF’S PAIN TREATMENT 12 9. On February 1, 2016, Plaintiff was involved 9. Underwood Dep., at 45:12-47:4, Exhibit B 13 in a fight at SOL where he picked up an to Underwood Dep. inmate and slammed the inmate to the ground. 14 10. Later that day, Plaintiff was involved in 10. Compl., ECF No. 1 at 5-6; Underwood 15 another fight, where he was shot in his right Dep. at 47:11-48:25, Exhibit H to Underwood calf and right arm by a 40 mm foam round. Dep. 16 11. Plaintiff sustained a laceration to his neck, 11. Exhibit A of Appx of Exh.[footnote 17 left ear, and right elbow on February 1, 2016, omitted]; Declaration of Feinberg (Feinberg and he also had pain and a protrusion to his Decl.) at ¶ 9. 18 right elbow. 19 12. At 3:45 p.m. on February 1, 2016, Officer 12. Exhibit A of Appx of Exh.; Feinberg Decl. Hilton escorted Plaintiff to the Triage and at ¶ 9; Tan Decl. at ¶ 3a. 20 Treatment Area (TTA), where he was treated for an ear laceration, and Registered Nurse 21 (RN) Page noted “RTC” in stable condition. 22 13. Nurse Egipto was not at SOL, out sick, 13. Kwaye Decl. at ¶¶ 1-4; Feinberg Decl. at ¶ and did not see Plaintiff on February 1, 2016. 32. 23 14. On or around February 2, 2016, Plaintiff 14. Exhibit B of Appx of Exh; Tan Decl. at ¶ 24 submitted a Health Care Services Request 3b; Feinberg Decl. at ¶ 10. (CDCR form 7362) complaining of pain. 25

28 1 15. Plaintiff was seen for this Request on 15. Exhibit C of Appx of Exh; Tan Decl. at ¶ February 4, 2016, by RN Lahara who noted 3c; Feinberg Decl. at ¶ 10. 2 “involved in altercation 3 days ago - slammed

opponent - opponent landed on right arm, 3 sustained big bruise and redness and swelling from inferior area of right upper arm past 4 elbow to half of forearm. Unable to straighten right arm, with deformed right thumb.” 5 16. RN Lahara had Plaintiff transferred to the 16. Exhibit C of Appx of Exh.; Feinberg Decl. 6 TTA for further evaluation. at ¶ 10. 7 17. On February 4, 2016, Dr. Kohler saw 17. Exhibit C of Appx of Ex.h; Tan Decl. at ¶ 8 Plaintiff in the TTA, noting that Plaintiff was 3c; Feinberg Decl. at ¶ 11; Kuersten Decl. at ¶ attacked 3 days ago on February 1, 2016, 5a; Ko Decl. at ¶ 6a. 9 someone fell on his right arm and shoulder, and that he reported pain. 10 18. Dr. Kohler ordered x-rays of Plaintiff’s 18. Exhibit C of Appx of Exh.; Tan Decl. at ¶ 11 right shoulder, right humerus, right elbow, 3c; Feinberg Decl. at ¶ 11; Kuersten Decl. at ¶ right forearm, right wrist, and right hand, 5a; Ko Decl. at ¶ 6a. 12 finding mild arthritis but no fracture in the shoulder, no fracture of the humerus, and an 13 olecranon avulsion fracture around the right elbow. 14 19. Plaintiff was prescribed Tylenol 3 (T3) 19. Exhibit C of Appx of Exh.; Tan Decl. at ¶ 15 with Codeine, an opioid pain medication, and 3c; Feinberg Decl. at ¶ 11; Kuersten Decl. at ¶ Toradol for pain 5a; Ko Decl. at ¶ 6a. 16 20. Dr. Kohler applied a splint to Plaintiff's 20. Exhibit C of Appx of Exh.; Tan Decl. at ¶ 17 elbow, ordered follow-up with Plaintiff’s 3c; Feinberg Decl. at ¶¶ 11-12; Largoza Decl. Primary Care Provider (PCP), and submitted a at ¶ 4; Kuersten Decl. at ¶ 5a; Ko Decl. at ¶ 18 request for referral to orthopedic surgery, 6a. which was approved by Dr. Largoza on 19 February 5, 2016. 20 21. On February 5, 2016, Plaintiff went to the 21. Exhibit D of Appx of Exh.; Tan Decl. at ¶ TTA again and was seen by RN Ogunleye 3d; Feinberg Decl. at ¶ 12. 21 because he was complaining of pain. 22 22. RN Ogunleye noted that Plaintiff’s state 22. Exhibit D of Appx of Exh.; Tan Decl. at ¶ was “Calm, no apparent distress” as he was 3d. 23 awaiting to see the doctor at 12:15 that same day. 24 25

27 28 1 23. Dr. Tarrar examined Plaintiff on February 23. Exhibit D of Appx of Exh.; Tan Decl. at ¶ 5, 2016, noting that Plaintiff has pain from an 3d; Feinberg Decl. at ¶ 12. 2 altercation when someone fell on him, there was bruising around the elbow area, but the 3 exam was otherwise unremarkable, Plaintiff was taking T3, and Plaintiff was “talking with 4 officer and laughing and moving arm when distracted.” 5 24. Plaintiff was provided a sling, had pain 24. Exhibit D of Appx of Exh.; Tan Decl. at ¶ 6 medication ordered, and was instructed about 3d; Feinberg Decl. at ¶ 12. his medication and sling. 7 8 25. On February 8, 2016, Plaintiff was 25. Exhibit E of Appx of Exh.; Tan Decl. at ¶ prescribed Sulindac, a nonsteroidal anti- 3e; Feinberg Decl. at ¶ 13. 9 inflammatory drug (NSAID) and capsaicin cream for his pain. 10 26. On February 12, 2016, Plaintiff went to 26. Exhibit F of Appx of Exh.; Tan Decl. at ¶ 11 San Joaquin General Hospital (SJGH), where 3f; Feinberg Decl. at ¶ 14; Kuersten Decl. at ¶ Dr. William J. Holmes diagnosed an elbow 5b; Ko Decl. at ¶ 6b. 12 contusion, did not believe the patient’s avulsion fracture was new, discontinued the 13 splint, and recommended an MRI of the elbow if Plaintiff continued to have significant pain 14 with no improvement over the next two to four weeks. 15 27. On February 14, 2016, Plaintiff was seen 27. Feinberg Decl. at ¶ 15. 16 by Dr. Lotersztain in the TTA for pain, and after examining Plaintiff, Dr. Lotersztain felt 17 he was “already on adequate treatment: Sulindac, Tylenol #3, sling to immobilize (not 18 wearing it). Explained: No indication for stronger narcotics. Follow-up with PCP as 19 scheduled.” 20 28. On February 18, 2016, Plaintiff saw Dr. 28. Exhibit G of Appx of Exh.; Tan Decl. at ¶ Tan, and Plaintiff complained about extreme 3g; Feinberg Decl. at ¶ 16; Ko Decl. at ¶ 6c. 21 pain in his elbow, and requested stronger pain medication than his current T3 and Sulindac. 22 29. Dr. Tan reviewed history of trauma and 29. Exhibit G of Appx of Exh.; Feinberg Decl. 23 recent orthopedic surgery consultation at ¶ 16. recommendations, and on exam, saw that 24 Plaintiff's right elbow had no redness, was able to fully extend to 180 degrees and fully 25 flex, with a small, less than 1 cm, lump on the back of the elbow. 26 27

28 1 30. Dr. Tan noted that Plaintiff “was sitting in 30. Exhibit G of Appx of Exh.; Tan Decl. at ¶ waiting area comfortable and move[s] his 3g; Feinberg Decl. at ¶ 16. 2 arm/elbow normally when he walks out of office.” 3 31. In his assessment, Dr. Tan felt there was 31. Exhibit G of Appx of Exh.; Tan Decl. at ¶ 4 "no indication for stronger narcotics such as 3g; Feinberg Decl. at ¶ 16; Ko Decl. at ¶ 6c. morphine or methadone at this time,” 5 recommended conservative treatment, continue T3, Sulindac, capsaicin cream, warm 6 compresses as well as an elbow sling, re- evaluating in 4 weeks, and to consider an MRI 7 as advised by Ortho[pedics] if significant pain continues. 8 9 32. On or around February 26, 2016, 32. Exhibit H of Appx of Exh.; Largoza Decl. California Correctional Health Care Services at ¶ 5. 10 received Plaintiff’s 602 grievance, SOL HC 16041256, requesting an MRI and stronger 11 pain medication. 12 33. On March 1, 2016, Dr. Tan examined the 33. Exhibit I of Appx of Exh.; Tan Decl. at ¶ Plaintiff again as a follow up to the February 3h; Feinberg Decl. at ¶ 17; Largoza Decl. at ¶ 13 18, 2016 visit, and Plaintiff complained that 7b. his pain was not getting better. 14 34. Dr. Tan conducted a physical examination 34. Exhibit I of Appx of Exh.; Tan Decl. at ¶ 15 of Plaintiff, noting that there was no swelling 3h; Feinberg Decl. at ¶ 17; Largoza Decl. at ¶ and no redness of Plaintiff’s right elbow, and 7b. 16 that there was a small cyst like lump on the dorsal side of his elbow/upper forearm. 17 35. Dr. Tan recommended continuing T3 and 35. Exhibit I of Appx of Exh.; Tan Decl. at ¶ 18 Sulindac, Capsaicin, and warm compression, 3h; Feinberg Decl. at ¶ 17; Largoza Decl. at ¶ as there was “No indication for stronger 7b. 19 narcotics [such as] morphine or methadone at this time.” 20 36. Dr. Tan also noted that he would submit a 36. Exhibit I of Appx of Exh.; Tan Decl. at ¶ 21 request for services (RFS) for MRI of right 3h; Feinberg Decl. at ¶ 17; Largoza Decl. at ¶ elbow because Plaintiff was having significant 7b. 22 pain.

24 25

27 28 1 37. On March 9, 2016, Dr. Largoza referred 37. Exhibit I of Appx of Exh.; Tan Decl. at ¶ Dr. Tan’s RFS to discussion with the 3h; Feinberg Decl. at ¶ 18; Largoza Decl. at ¶ 2 Institutional Utilization Management 7c. Committee (IUMC), a group of physicians at 3 SOL, as the RN of the Institution Utilization Management (IUM) noted that there was “no 4 subset for above” on the RFS, referring to InterQual criteria, a well-respected and widely 5 used medical decision making tool that is utilized to assist with making approval 6 decisions for medical procedures and studies. 7 38. On March 16, 2016, Plaintiff submitted a 38. Exhibit J of Appx of Exh.; Tan Decl. at ¶ CDCR form 7362 complaining of pain. 3i. 8 9 39. On March 18, 2016, RN Gardner assessed 39. Exhibit J of Appx of Exh.; Tan Decl. at ¶ Plaintiff, and noted that medical staff would 3i. 10 follow-up when the MRI would be scheduled, and that his condition on release was “stable.” 11 40. On March 29, 2016, the IUMC considered 40. Tan Decl. at ¶ 3j; Feinberg Decl. at ¶ 18; 12 and denied Dr. Tan’s RFS for an MRI for Largoza Decl. at ¶¶ 6-10; Ko Decl. at ¶ 6d. Plaintiff, as Plaintiff had not yet exhausted 13 conservative management and did not have an imminent need for surgery, and recommended 14 to continue conservative treatment for Plaintiff. 15 41. Dr. Largoza was on the IUMC, and Dr. 41. Tan Decl. at ¶ 3j; Largoza Decl. at ¶ 8. 16 Tan was also at the meeting to present Plaintiff’s case. 17 42. Dr. Kuersten was not present for this 42. Kuersten Decl. at ¶ 6. 18 IUMC meeting and did not participate in any decision to deny Plaintiff an MRI. 19 43. On April 6, 2016, Plaintiff submitted 43. Exhibit L of Appx of Exh. 20 another CDCR form 7362 complaining of pain. 21 44. On April 8, 2016, RN Lajara assessed 44. Exhibit L of Appx of Exh. 22 Plaintiff, noting that Plaintiff already submitted a 602 for increased pain 23 medications, which was denied by his PCP, and that the IUMC denied his MRI. 24 45. RN Lajara also noted that Plaintiff’s 45. Exhibit L of Appx of Exh. 25 Sulindac was refilled, she would schedule [a] PCP [appointment], and that Plaintiff 26 verbalized understanding and was in stable condition on release. 27 28 1 46. On April 29, 2016, Dr. Largoza issued the 46. Exhibit H of Appx of Exh. Institutional level response for Plaintiff’s 602 2 SOL HC 16041256, denying Plaintiff’s request for stronger pain medication because it 3 was not medically indicated to prescribe Plaintiff with stronger pain medication, and 4 denying his request for an MRI in that the RFS was already denied by the IUMC. 5 47. Dr. Largoza noted that it was 47. Exhibit H of Appx of Exh. 6 recommended to continue monitoring Plaintiff’s arm and to treat it conservatively. 7 8 48. On May 9, 2016, Dr. Kuersten was 48. Exhibit M of Appx of Exh; Feinberg Decl. covering for the TTA doctor and examined at ¶ 19; Kuersten Decl. at ¶ 5c; Ko Decl. at ¶ 9 Plaintiff for Plaintiff’s complaint of pain. 6e. 10 49. Dr. Kuersten noted that there was “No 49. Exhibit M of Appx of Exh.; Feinberg swelling or deformity” in the right elbow, that Decl. at ¶ 19; Kuersten Decl. at ¶ 5c; Ko Decl. 11 he “observed [Plaintiff] undressing sweatshirt at ¶ 6e. w/o difficulties” and that Plaintiff was 12 “presenting right elbow pain with conflicting presentation,” and “possesses secondary gain 13 issues (reported pain level not compatible with presentation and exam.).” 14 50. Dr. Kuersten placed a medication order for 50. Exhibit M of Appx of Exh.; Feinberg 15 Toradol for pain relief, prescribed a neoprene Decl. at ¶ 19; Kuersten Decl. at ¶ 5c; Ko Decl. elbow sleeve, ordered a follow up at ¶ 6e. 16 appointment with Plaintiff’s PCP in 14 days, and placed a RFS for a Physical Therapy (PT) 17 evaluation. 18 51. On May 16, 2016, Plaintiff was seen for 51. Feinberg Decl. at ¶ 20. initial PT consultation, where Plaintiff was 19 instructed in stretches and exercises to improve range of motion, decrease pain, and 20 improve strength. 21 52. The records indicate that “Patient tolerated 52. Feinberg Decl. at ¶ 20. treatment well,” and follow-up was scheduled. 22 53. At a PT follow-up on May 23, 2016, 53. Feinberg Decl. at ¶ 21. 23 Plaintiff reported that he felt more pain when doing the exercises, and was discharged from 24 PT and referred back to his PCP. 25 54. On May 23, 2016, Dr. Ko examined 54. Exhibit N of Appx of Exh.; Feinberg Decl. Plaintiff as a follow up to the May 9, 2016 at ¶ 22; Ko Decl. at ¶ 6f. 26 appointment.

28 1 55. Dr. Ko’s exam of Plaintiff's right elbow 55. Exhibit N of Appx of Exh.; Feinberg Decl. showed that it was essentially normal, with no at ¶ 22; Ko Decl. at ¶ 6f. 2 swelling, no effusion, no heat, and no deformity. 3 56. Dr. Ko noted that Plaintiff completed his 56. Exhibit N of Appx of Exh.; Feinberg Decl. 4 last session of PT, recommended to repeat x- at ¶ 22; Ko Decl. at ¶ 6f. rays and to continue treating with T3 and 5 Sulindac, and that the RFS for a MRI was denied by the IUMC on March 9, 2016. 6 7 57. On June 1, 2016, Plaintiff received an x- 57. Exhibit O of Appx of Exh.; Feinberg Decl. ray of his right elbow, as referred by Dr. Ko. at ¶ 23; Ko Decl. at ¶ 6g. 8 58. The x-ray showed a chronic avulsion 58. Exhibit O of Appx of Exh.; Feinberg Decl. 9 fracture of the olecranon present with at ¶ 23; Ko Decl. at ¶ 6g. retraction of the fragments, which appeared 10 stable, no acute fracture or dislocation, well- preserved joint spaces, and the visual soft 11 tissues were unremarkable. 12 59. On August 10, 2016, and August 16, 2016, 59. Exhibit P of Appx of Exh.; Ko Decl. at ¶ Plaintiff did not appear to take his pain 6h. 13 medication. 14 60. On September 5, 2016, Plaintiff submitted 60. Exhibit Q of Appx of Exh.; Ko Decl. at ¶ another CDCR form 7362 complaining of 6i. 15 pain. 16 61. On September 7, 2016, RN Lajara 61. Exhibit Q of Appx of Exh.; Ko Decl. at ¶ assessed Plaintiff, noting that Plaintiff had not 6i. 17 been taking Sulindac, but that she informed him that Sulindac was current and would help 18 his pain, and that the IUMC denied his MRI. 19 62. RN Lajara also noted that she requested a 62. Exhibit Q of Appx of Exh.; Ko Decl. at ¶ refill of Plaintiff’s Sulindac submitted it to the 6i. 20 pharmacy, and she would request a follow up with his PCP. 21 63. On October 3, 2016, Dr. Ko saw Plaintiff, 63. Exhibit R of Appx of Exh.; Feinberg Decl. 22 felt that Plaintiff had a small bursitis of the at ¶ 24; Ko Decl. at ¶ 6j. olecranon, told Plaintiff that he would speak 23 to the Utilization Committee again about seeking an MRI, and submitted a RFS for a 24 MRI. 25 64. On October 4, 2016, Plaintiff’s MRI was 64. Exhibit R of Appx of Exh., Exhibit S of approved. Appx of Exh.; Largoza Decl. at ¶ 11; Ko Decl. 26 at ¶ 6j.

28 1 65. On October 30, 2016, Plaintiff submitted 65. Exhibit S of Appx of Exh.; Ko Decl. at ¶ another CDCR form 7362 complaining of 6k. 2 pain. 3 66. On November 1, 2016, RN Lajara 66. Exhibit S of Appx of Exh.; Ko Decl. at ¶ assessed Plaintiff, noting that he was taking 6k. 4 Sulindac and T3, and discharged him, noting that he returned to housing and was 5 ambulatory. 6 67. On November 8, 2016, Plaintiff received 67. Exhibit T of Appx of Exh.; Feinberg Decl. 7 an MRI of his right elbow, which suggested at ¶ 25; Ko Decl. at ¶ 6l. there was ongoing triceps tendinosis, intact 8 ligaments, and no osseous or articular abnormalities. 9 68. The MRI did not reveal any nerve damage. 68. Exhibit T of Appx of Exh.; Ko Decl. at ¶ 10 6l. 11 69. Plaintiff was at SJGH from December 2, 69. Exhibit U of Appx of Exh.; Feinberg Decl. 2016, to December 5, 2016 for hip pain, and at ¶ 26; Ko Decl. at ¶ 6m. 12 after an orthopedic consultation with Dr. Dowbak, Plaintiff’s “physical findings were 13 not consistent with any orthopedic problems.” 14 70. The SJGH team recommended “no change 70. Exhibit U of Appx of Exh.; Feinberg Decl. in his home medication regime,” starting with at ¶ 26; Ko Decl. at ¶ 6m. 15 T3 for chronic pain management, and following up with PCP for chronic pain 16 management. 17 71. On December 7, 2016, Dr. Ko saw 71. Exhibit V of Appx of Exh.; Feinberg Decl. Plaintiff for a follow-up appointment after at ¶ 27; Ko Decl. at ¶ 6n. 18 Plaintiff was discharged from SJGH. 19 72. Dr. Ko examined Plaintiff’s right elbow 72. Exhibit V of Appx of Exh; Feinberg Decl. and found that the swelling of olecranon bursa at ¶ 27; Ko Decl. at ¶ 6n. 20 had completely resolved, and there were no gross abnormalities. 21 73. Dr. Ko also found that there were minimal 73. Exhibit V of Appx of Exh.; Feinberg Decl. 22 findings on imaging and physical exam not at ¶ 27; Ko Decl. at ¶ 6n. consistent with the degree of pain claimed. 23 74. Dr. Ko ordered T3s at a standard dose for 74. Exhibit V of Appx of Exh.; Ko Decl. at ¶ 24 14 days. 6n. 25 75. On December 21, 2016, Dr. Ko saw 75. Exhibit V of Appx of Exh.; Ko Decl. at ¶ Plaintiff, noting that Plaintiff went to TTA 6o. 26 twice, and that Plaintiff was ordered ibuprofen. 27

28 1 76. Dr. Ko noted that an orthopedic consult in 76. Exhibit V of Appx of Exh.; Ko Decl. at ¶ hospital stated “physical findings were not 6o. 2 consistent with any orthopedic problems.” 3 77. Dr. Ko also noted that 77. Exhibit V of Appx of Exh.; Ko Decl. at ¶ “moaning/crying/complaint” of pain is 6o. 4 exaggerated and NOT consistent with minimal findings on imaging and exam. 5 6 78. Dr. Ko noted that T3s would expire, but he 78. Exhibit V of Appx of Exh.; Ko Decl. at ¶ would renew them one more week at a lower 6o. 7 dose. 8 79. On December 28, 2016, Plaintiff was 79. Exhibit W of Appx of Exh.; Ko Decl. at ¶ administered T3 for his pain per an order from 6p. 9 Dr. Ko. 10 80. On December 29, 2016, the Pain 80. Largoza Decl. at ¶ 12; Kuersten Decl. at ¶ Management Committee, including Dr. 5d; Ko Decl. at ¶ 6q. 11 Kuersten, Dr. Largoza, and Dr. Ko, reviewed Plaintiff’s case for ongoing T3s, and they 12 determined T3s and opiates were not indicated for Plaintiff. 13 81. No pain contract was formed, and Plaintiff 81. Largoza Decl. at ¶ 12; Kuersten Decl. at ¶ 14 would continue to be on a plan to receive pain 5d; Ko Decl. at ¶ 6q. medication. 15 82. On December 30, 2016, Dr. Ko saw 82. Exhibit V of Appx of Exh.; Ko Decl. at ¶ 16 Plaintiff, noted that Plaintiff had exaggerated 6r. moaning of pain, and planned to allow the 17 prescription for T3s to expire. 18 83. On January 9, 2017, Plaintiff submitted a 83. Exhibit X of Appx of Exh.; Ko Decl. at ¶ CDCR form 7362 complaining of pain. 6s. 19 84. On January 10, 2017, Plaintiff went to 84. Exhibit X of Appx of Exh.; Feinberg Decl. 20 SJGH for a consultation with Dr. J. Pettegrew, at ¶ 28; Kuersten Decl. at ¶ 5e.; Ko Decl. at ¶ an orthopedist. 6s. 21 85. Dr. Pettegrew conducted a physical 85. Exhibit X of Appx of Exh.; Feinberg Decl. 22 examination of Plaintiff’s right elbow, and at ¶ 28; Kuersten Decl. at ¶ 5e; Ko Decl. at ¶ also reviewed the MRI of the right elbow. 6s. 23 86. Dr. Pettegrew recommended no surgical 86. Exhibit X of Appx of Exh.; Feinberg Decl. 24 intervention, but conservative treatment with at ¶ 28; Kuersten Decl. at ¶ 5e; Ko Decl. at ¶ physical therapy and oral anti-inflammatories. 6s. 25 87. On January 12, 2017, Plaintiff submitted a 87. Exhibit Y of Appx of Exh.; Ko Decl. at ¶ 26 CDCR form 7362 complaining of pain. 6t.

28 1 88. On January 17, 2017, Plaintiff was seen by 88. Exhibit Y of Appx of Exh.; Ko Decl. at ¶ RN Lajara, who noted that he would agree to 6t. 2 take Capsaicin for pain.

3 89. On January 18, 2017, Plaintiff was 89. Exhibit W of Appx of Exh.; Ko Decl. at ¶ 4 administered capsaicin topical cream for his 6t. pain per an Order from Dr. Ko. 5 90. On March 21, 2019, Plaintiff was seen by 90. Feinberg Decl. at ¶ 29. 6 a new PCP, Dr. Mo, for a complaint of right Achilles tendinitis secondary to jumping while 7 playing basketball. 8 91. Dr. Mo also noted that "[Plaintiff] He has 91. Feinberg Decl. at ¶ 29. also had problems with his elbows which are 9 relatively stable at this time," and Plaintiff’s only current pain medication is over-the- 10 counter Tylenol. 11 92. T3 with codeine was the strongest 92. Feinberg Decl. at ¶ 30. recommended pain medication by Dr. Kohler 12 on February 4, 2016, by Dr. Tarrar on February 5, 2016, by Dr. Rohrer on February 13 8, 2016, by Dr. Lotersztain on February 14, 2016, by Dr. Sweeney on December 2, 2016, 14 as well as on the discharge instructions by the emergency room physician at SJGH after 15 Plaintiff was sent there by Dr. Sweeney that day. 16 93. The opinion that Plaintiff's medical 93. Feinberg Decl. at ¶ 30. 17 conditions did not medically justify the prescription of pain medications stronger than 18 T3 with codeine was shared by all physicians treating Plaintiff from February 2016 to 19 January 2017. 20 94. Chronic pain is a common complaint in 94. Tan Decl. at ¶ 4; Kuersten Decl. at ¶¶ 7, 9. prison, and it is the medically accepted 21 standard of care to treat chronic pain with pain medication, physical therapy, exercises, and 22 stretching. 23 95. Medical research shows weak evidence for 95. Kuersten Decl. at ¶ 8. the effectiveness of long-term opioid therapy 24 for chronic non-cancer pain, as tolerance to opioids develops with repeated administration, 25 which means that a higher dosage will be required to achieve the same effect. 26 96. Adverse outcomes for opioid pain 96. Kuersten Decl. at ¶¶ 13-14; Ko Decl. at ¶ 27 medication include risks of addiction, 7. overdose, and death. 28 1 97. An MRI is generally indicated when a 97. Tan Decl. at ¶ 6; Kuersten Decl. at ¶ 10. patient has failed an adequate trial of 2 conservative management and/or has symptoms or findings that suggest an 3 imminent need for surgical management. 4 98. No doctor ever told Plaintiff that he 98. Underwood Dep. at 77:5-7; Feinberg Decl. needed surgery for his elbow. at ¶ 31. 5 6 99. Dr. Tan did not believe that his treatment 99. Tan Decl. at ¶¶ 4-12. of Plaintiff would endanger Plaintiff or put 7 him at risk of serious harm. 8 100. Dr. Kuersten never intentionally 100. Kuersten Decl. at ¶¶ 14-15. disregarded any significant risk to Plaintiff’s 9 health or pain management, and did not believe that Plaintiff had a substantially 10 serious medical need for a different course of treatment than he was provided. 11 101. Dr. Largoza did not believe that denying 101. Largoza Decl. at ¶ 13. 12 Plaintiff an MRI or stronger narcotic pain management would endanger Plaintiff or put 13 him at risk of serious harm. 14 102. Dr. Ko provided Plaintiff appropriate 102. Ko Decl. at ¶¶ 7-10. medical care within the community standard 15 of care and at no time intentionally or knowingly caused Plaintiff any harm. 16 103. Plaintiff has not required an orthopedic 103. Feinberg Decl. at ¶ 31. 17 surgery follow-up, and currently appears to have no significant issues with his elbows in 18 that he is able to actively play basketball and is on no stronger pain medication than over- 19 the-counter strength Tylenol.

21 ECF No. 26-2. 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 V. DISUCSSION 2 In their motion for summary judgment, Defendants argue: (1) Defendants are 3 immune from suit for damages to the extent they are sued in their official capacities; 4 (2) Plaintiff’s claim for injunctive relief is moot; (3) Plaintiff cannot prevail against Defendants 5 Tan, Kuersten, Largoza, and Ko on the merits of his Eighth Amendments claims for medical 6 indifference because they acted appropriately under the circumstances and did not disregard an 7 excessive risk to Plaintiff’s health; and (4) Defendants Tan, Kuersten, Largoza, and Ko are 8 entitled to qualified immunity because their conduct did not violate a clearly established right and 9 was reasonable. 10 A. Immunity 11 Defendants argue they are immune from suit to the extent plaintiff seeks damages 12 against them in their official capacities. The Court agrees. The Eleventh Amendment prohibits 13 federal courts from hearing suits brought against a state both by its own citizens, as well as by 14 citizens of other states. See Brooks v. Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 15 (9th Cir. 1991). The Eleventh Amendment also bars actions seeking damages from state officials 16 acting in their official capacities. See Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir. 1995); Pena 17 v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992) (per curiam). 18 B. Injunctive Relief 19 In his complaint, Plaintiff seeks permanent injunctive relief in the form of an order 20 that Dr. Ko “remove himself” as Plaintiff’s primary care physician. See ECF No. 1, pg. 11. 21 Citing their undisputed statement of fact no. 90, Defendants argue Plaintiff’s claim for injunctive 22 relief is moot because Plaintiff’s has been switched to a new primary care physician, Dr. Mo. 23 The Court agrees that the undisputed evidence establishes that Plaintiff’s claim for injunctive 24 relief is moot because the relief he has been provided the relief he seeks. See Murphy v. Hunt, 25 455 U.S. 478, 481 (1982). 26 / / / 27 / / / 28 / / / 1 C. Eighth Amendment Claims 2 Defendants argue the undisputed evidence establishes that they were not 3 deliberately indifferent to Plaintiff’s serious medical needs because they responded appropriately 4 to Plaintiff’s medical condition and did not disregard an excessive risk to plaintiff’s health. 5 Defendants conclude that plaintiff cannot establish these essential elements and, therefore, are 6 entitled to judgment as a matter of law. The Court agrees. 7 The treatment a prisoner receives in prison and the conditions under which the 8 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 9 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 10 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts 11 of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 12 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. 13 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with 14 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 15 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when 16 two requirements are met: (1) objectively, the official’s act or omission must be so serious such 17 that it results in the denial of the minimal civilized measure of life’s necessities; and (2) 18 subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of 19 inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison 20 official must have a “sufficiently culpable mind.” See id. 21 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious 22 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105; 23 see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health 24 needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), abrogated on other grounds by 25 Sandin v. Conner, 515 U.S. 472 (1995). An injury or illness is sufficiently serious if the failure to 26 treat a prisoner’s condition could result in further significant injury or the “. . . unnecessary and 27 wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled 28 on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); see 1 also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). Factors indicating seriousness 2 are: (1) whether a reasonable doctor would think that the condition is worthy of comment; (2) 3 whether the condition significantly impacts the prisoner’s daily activities; and (3) whether the 4 condition is chronic and accompanied by substantial pain. See Lopez v. Smith, 203 F.3d 1122, 5 1131-32 (9th Cir. 2000) (en banc). 6 The requirement of deliberate indifference is less stringent in medical needs cases 7 than in other Eighth Amendment contexts because the responsibility to provide inmates with 8 medical care does not generally conflict with competing penological concerns. See McGuckin, 9 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to 10 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 11 1989). The complete denial of medical attention may constitute deliberate indifference. See 12 Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical 13 treatment, or interference with medical treatment, may also constitute deliberate indifference. See 14 Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate 15 that the delay led to further injury. See McGuckin, 974 F.2d at 1060. 16 Negligence in diagnosing or treating a medical condition does not, however, give 17 rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a 18 difference of opinion between the prisoner and medical providers concerning the appropriate 19 course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, 20 90 F.3d 330, 332 (9th Cir. 1996). 21 The Court observes at the outset that the analysis in this case is necessarily 22 narrowed by Plaintiff’s failure to oppose Defendants’ motion. Because Plaintiff has not 23 submitted any response to Defendants’ motion, the evidence presented by Defendants is 24 necessarily undisputed. Moreover, by not opposing the motion, Plaintiff cannot meet his burden 25 on summary judgment of presenting to the Court evidence to indicate a genuine dispute of 26 material fact exists. In this case, Defendants prevail if they meet their initial burden of 27 demonstrating that Plaintiff cannot establish an essential element of his claims. As discussed 28 below, Defendants have established that, as a matter of law, Plaintiff cannot prevail. 1 1. Defendant Tan 2 Defendants argue that Dr. Tan did not deliberately disregard Plaintiff’s medical 3 needs and responded appropriately to Plaintiff’s medical condition. Specifically, Defendants 4 state:

5 Dr. Tan treated Plaintiff by reviewing his history of trauma and recent orthopedic surgery consultation recommendations, physically 6 examining him, and ordering T3, Sulindac, capsaicin cream, warm compresses as well as an elbow sling to treat Plaintiff’s pain. (UMF Nos. 7 28-29.) There was "no indication for stronger narcotics such as morphine or methadone.” (UMF No. 31.) 8 Dr. Tan also submitted a RFS for MRI of right elbow within four 9 weeks of Plaintiff’s February 12, 2016 appointment at SJGH with Dr. Holmes. (UMF No. 36.) Dr. Tan’s decision to treat Plaintiff’s pain with 10 medication such as T3, Sulindac, and Capsaicin was medically acceptable and consistent with treatment of Plaintiff by other medical professionals. 11 (UMF Nos. 28-35, 92-94.) Use of conservative pain treatment protocols is medically appropriate. See, e.g., Hamby v. Hammond, 821 F.3d 1085, 12 1094 (9th Cir. 2016); Reyes v. Smith, No. 2:12-cv-0652-KJM-DMC, 2019 WL 250573, at *8 (E.D. Cal. Jan. 17, 2019). 13 ECF No. 26-1, pgs. 19-20. 14 15 The Court agrees with Defendants that Dr. Tan’s conduct did not constitute a 16 violation of Plaintiff’s Eighth Amendment rights. The record, as presented by Defendants, clearly 17 demonstrates that Dr. Tan reviewed Plaintiff’s medical condition, performed physical 18 examinations, prescribed medication, and requested an MRI scan of Plaintiff’s arm. The 19 undisputed evidence establishes that Defendant Tan provided treatment and, therefore, was not 20 deliberately indifferent. 21 2. Defendant Kuersten 22 Defendants argue that Dr. Kuersten did not deliberately disregard Plaintiff’s 23 medical needs and responded appropriately to Plaintiff’s medical condition. Specifically, 24 Defendants state that:

25 Dr. Kuersten treated Plaintiff at the TTA, physically examined him, and ordered medication for pain relief, an elbow sleeve, and 26 submitted a RFS for physical therapy. (UMF Nos. 48-50.) Dr. Kuersten also reviewed Plaintiff’s case for ongoing T3s on December 29, 2016, and 27 decided that there was insufficient medical indication to treat Plaintiff’s pain with narcotics. (UMF Nos. 80-81.) Dr. Kuersten’s treatment of 28 Plaintiff’s pain was consistent with recommendations from other doctors, 1 medically acceptable, and complied with medical standards. (UMF Nos. 48-50, 92-94.) See, e.g., Hamby, 821 F.3d at 1094; Reyes, No. 2:12-cv- 2 0652-KJM-DMC, 2019 WL 250573, at *8.

3 ECF No. 26-1, pg. 20. 4 The Court agrees with Defendants that Dr. Kuersten’s conduct did not constitute a 5 violation of Plaintiff’s Eighth Amendment rights. According to the evidentiary record before the 6 Court, Dr. Kuersten treated plaintiff’s injury by providing him with a physical examination, an 7 elbow sleeve, and an order for pain medication. As is evident from his complaint, Plaintiff 8 believes that the pain medication he received was inadequate. However, a difference of opinion as 9 to the proper course of treatment is not proper grounds for finding Eighth Amendment deliberate 10 indifference. See Jackson, 90 F.3d at 332. As with Dr. Tan, the undisputed evidence establishes 11 that Dr. Kuersten provided treatment and, for this reason, was not deliberately indifferent. 12 3. Defendant Largoza 13 Defendants argue that Dr. Largoza did not deliberately disregard plaintiff’s 14 medical needs and responded appropriately to plaintiff’s medical condition. Specifically, 15 Defendants state that:

16 Dr. Largoza approved a referral for Plaintiff to orthopedic surgery on February 5, 2016, reviewed Plaintiff’s medical records and treatment plan in 17 issuing a response to 602 grievance SOL HC 16041256, and reviewed Plaintiff’s case for ongoing T3s on December 29, 2016, as part of the Pain 18 Management Committee. (UMF Nos. 20, 46, 80-81.) Dr. Largoza’s decisions to deny Plaintiff’s request for stronger pain medication and an MRI complied 19 with medical standards because the IUMC committee considered the request and discussed it as a group, none of Plaintiff’s requests were medically 20 indicated, as Plaintiff had not yet exhausted conservative treatment and did not have symptoms or findings that suggested an imminent need for surgical 21 management, and Plaintiff’s health care was being managed and reviewed and evaluated on a continuous basis. (UMF Nos. 37, 46-47.) 22 ECF No. 26-1, pg. 20. 23 24 The Court agrees with Defendants that Dr. Largoza’s conduct did not constitute a 25 violation of Plaintiff’s Eighth Amendment rights. Dr. Largoza was responsible for reviewing 26 Plaintiff’s administrative grievance and requests for stronger pain medication and an MRI scan. 27 According to Largoza, the request for stronger pain medication was denied because it was not 28 medically indicated to prescribe Plaintiff with stronger medication. See ECF No. 26-2, pg. 48. 1 Also, Plaintiff’s request for an MRI scan was denied because the request Dr. Tan placed for the 2 scan (the RFS) was denied by the Institutional Utilization Management Committee. Thus, 3 Largoza’s denial of Plaintiff’s requests was not motivated by deliberate indifference to Plaintiff’s 4 medical needs but instead an adherence to the decisions of prior physicians and committees. To 5 the extent Plaintiff disagrees with the denial of medication, disagreement with a course of 6 treatment does not give rise to a claim under the Eighth Amendment. 7 4. Defendant Ko 8 Defendants argue that Dr. Ko did not deliberately disregard plaintiff’s medical 9 needs and responded appropriately to plaintiff’s medical condition. Specifically, Defendants state 10 that: Dr. Ko treated Plaintiff by physically examining him, continuing 11 pain medication, ordering x-rays, and submitting a RFS when Plaintiff had a small bursitis of the olecranon. (UMF Nos. 54-58, 63-65, 67-89.) Dr. 12 Ko’s treatment was consistent with the community standard of care, as it is the medical standard to avoid narcotics that could result in risks of 13 addiction, overdose, and death. (UMF Nos. 92-96, 102.) See, e.g., Hamby, 821 F.3d at 1094; Reyes, No. 2:12-cv-0652-KJM-DMC, 2019 WL 250573, 14 at *8.

15 ECF No. 26-1, pg. 21. 16 The Court agrees with Defendants that Dr. Ko’s conduct did not constitute a 17 violation of Plaintiff’s Eighth Amendment rights. Defendants provide evidence that Dr. Ko 18 examined Plaintiff’s medical condition, ordered or requested further examinations, and continued 19 Plaintiff’s pain medication. To the extent Plaintiff argues that Dr. Ko’s failure to secure him 20 either an MRI scan or stronger pain medication violated his constitutional rights, the Court 21 disagrees. As discussed above, a difference of opinion as to the proper course of treatment does 22 not constitute an Eighth Amendment violation. As with the other Defendants, Plaintiff here, by 23 virtue of his non-opposition, does not offer evidentiary support for the assertion that Dr. Ko 24 deliberately disregarded a risk to Plaintiff’s health. Therefore, no genuine dispute of fact exists as 25 to whether Dr. Ko’s conduct constituted an Eighth Amendment violation. 26 / / / 27 / / / 28 / / / 1 D. Qualified Immunity 2 Defendants argue that Drs. Tan, Kuersten, Largoza, and Ko are entitled to 3 qualified immunity. The Court agrees. 4 Government officials enjoy qualified immunity from civil damages unless their 5 conduct violates “clearly established statutory or constitutional rights of which a reasonable 6 person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In general, 7 qualified immunity protects “all but the plainly incompetent or those who knowingly violate the 8 law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). In ruling upon the issue of qualified 9 immunity, the initial inquiry is whether, taken in the light most favorable to the party asserting the 10 injury, the facts alleged show the defendant’s conduct violated a constitutional right. See Saucier 11 v. Katz, 533 U.S. 194, 201 (2001). If a violation can be made out, the next step is to ask whether 12 the right was clearly established. See id. This inquiry “must be undertaken in light of the specific 13 context of the case, not as a broad general proposition . . . .” Id. “[T]he right the official is 14 alleged to have violated must have been ‘clearly established’ in a more particularized, and hence 15 more relevant, sense: The contours of the right must be sufficiently clear that a reasonable 16 official would understand that what he is doing violates that right.” Id. at 202 (citation omitted). 17 Thus, the final step in the analysis is to determine whether a reasonable officer in similar 18 circumstances would have thought his conduct violated the alleged right. See id. at 205. 19 When identifying the right allegedly violated, the court must define the right more 20 narrowly than the constitutional provision guaranteeing the right, but more broadly than the 21 factual circumstances surrounding the alleged violation. See Kelly v. Borg, 60 F.3d 664, 667 (9th 22 Cir. 1995). For a right to be clearly established, “[t]he contours of the right must be sufficiently 23 clear that a reasonable official would understand [that] what [the official] is doing violates the 24 right.” See Anderson v. Creighton, 483 U.S. 635, 640 (1987). Ordinarily, once the court 25 concludes that a right was clearly established, an officer is not entitled to qualified immunity 26 because a reasonably competent public official is charged with knowing the law governing his 27 conduct. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). However, even if the plaintiff 28 has alleged a violation of a clearly established right, the government official is entitled to 1 qualified immunity if he could have “. . . reasonably but mistakenly believed that his . . . conduct 2 did not violate the right.” Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001); see 3 also Saucier, 533 U.S. at 205. 4 The first factors in the qualified immunity analysis involve purely legal questions. 5 See Trevino v. Gates, 99 F.3d 911, 917 (9th Cir. 1996). The third inquiry involves a legal 6 determination based on a prior factual finding as to the reasonableness of the government 7 official’s conduct. See Neely v. Feinstein, 50 F.3d 1502, 1509 (9th Cir. 1995). The district court 8 has discretion to determine which of the Saucier factors to analyze first. See Pearson v. Callahan, 9 555 U.S. 223, 236 (2009). In resolving these issues, the court must view the evidence in the light 10 most favorable to plaintiff and resolve all material factual disputes in favor of plaintiff. See 11 Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003). 12 Defendants argue that all factors indicate that they are entitled to qualified 13 immunity. Specifically, Defendants state that:

14 The undisputed evidence establishes that there are no issues of material fact concerning Dr. Tan’s, Dr. Kuersten’s, Dr. Largoza’s, and Dr. 15 Ko’s treatment of Plaintiff’s pain and request for an MRI. See supra, III. Here, Plaintiff’s claim regarding the treatment and decisions of Dr. Tan, 16 Dr. Kuersten, Dr. Largoza, and Dr. Ko regarding pain medication and an MRI amounts to a difference of opinion as to his medical treatment, which 17 does not rise to the level of a constitutional violation. See Sanchez, 891 F.2d at 242; Hamby, 821 F.3d at 1092; Miller v. California Dep't of Corr. 18 & Rehab., No. 16-CV-02431-EMC, 2018 WL 534306, at *19 (N.D. Cal. Jan. 24, 2018) (granting qualified immunity and finding no constitutional 19 violation for decision to prescribe non-narcotic pain medications even where the patient continued to complain of pain while on morphine). 20 Furthermore, there is no clearly established constitutional right to stronger narcotic pain medication, as case law demonstrates that use of 21 conservative pain treatment protocols is medically appropriate. See, e.g., Hamby, 821 F.3d at 1094; Reyes, No. 2:12-cv-0652-KJM-DMC, 2019 22 WL 250573, at *8. Nor is there a clearly established right for an incarcerated Plaintiff to dictate their medical treatment. See Vaught v. 23 Ugwueze, No. 1:11-CV-00623-GBC PC, 2012 WL 6570998, at *5 (E.D. Cal. Dec. 17, 2012), aff'd, 542 F. App'x 569 (9th Cir. 2013) (citing 24 Bowring v. Godwin, 551 F.3d 44, 47-48 (4th Cir. 1977). Because Plaintiff’s allegations do not constitute deliberate indifference, Dr. Tan, 25 Dr. Kuersten, Dr. Largoza, and Dr. Ko cannot be held liable for violating his Eighth Amendment rights. 26 Additionally, based on the state of the law in 2016, it is not readily apparent that Dr. Tan, Dr. Kuersten, Dr. Largoza, and Dr. Ko pursued a 27 clearly unconstitutional course of treatment concerning Plaintiff’s pain and need for an MRI, when medical providers prescribed T3s with Codeine 28 and surgery was not required. Dr. Tan, Dr. Kuersten, Dr. Largoza, and Dr. 1 Ko assessed Plaintiff as receiving treatment deemed medically necessary. (UMF Nos. 9-89, 92-102.) There is no evidence showing that Dr. Tan, Dr. 2 Kuersten, Dr. Largoza, and Dr. Ko consciously disregarded an excessive risk to Plaintiff. See UMF Nos. 99-102; cf. Toguchi, 391 F.3d at 1058. 3 Not only did the Defendants lack the mindset necessary to sustain an Eighth Amendment violation, but the testimony of expert Dr. Feinberg 4 conclusively establishes that a reasonable doctor could believe the treatment provided was competent. (UMF Nos. 92-93, 99-102.) 5 Additionally, the decision to deny Plaintiff an MRI was considered with the IUMC, a group of medical professionals, and Dr. Largoza acted 6 reasonably and would have no reason to believe that his decision would violate the Constitution. (UMF Nos. 37, 40.) At a minimum, Dr. Tan, Dr. 7 Kuersten, Dr. Largoza, and Dr. Ko, are entitled to qualified immunity from damages because a reasonable doctor could have believed that their 8 treatment and conduct were lawful under the circumstances.

9 ECF No. 26-1, pgs. 27-28. 10 The Court agrees that Defendants are entitled to qualified immunity. It is initially 11 the plaintiff’s burden to allege a violation has been clearly established such that the officers 12 should have been on notice. Luna v. Ridge, 436 F. Supp. 2d 1163, 1173 (S.D. Cal. 2006) 13 (“[b]road generalities in the articulation of the constitutional right at issue . . . are insufficient to 14 identify a clearly established right . . .”). "Except in the rare case of an 'obvious' instance of 15 constitutional misconduct . . . [p]laintiffs must identify a case where an officer acting under 16 similar circumstances as [defendants] was held to have violated the Fourth Amendment." 17 Sharp v. Cty. of Orange, 871 F.3d 901, 911 (9th Cir. 2017) (emphasis in original) (quoting White 18 v. Pauly, 137 S.Ct. at 552). 19 As discussed above, Plaintiff cannot prevail on his Eighth Amendment claims 20 against the Defendants. Because Plaintiff cannot demonstrate that any constitutional violation 21 occurred, he cannot, as a matter of law, show that Defendants’ conduct violated a clearly 22 established right. Therefore, Defendants are entitled to qualified immunity. 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / Get POV OING INE IVINS RAMU oe POO Vee OY Oo Vee

1 V. CONCLUSION 2 Based on the foregoing, the undersigned recommends that: 3 1. Defendants’ motion to dismiss Defendant Egipto, ECF No. 35, be granted; 4 2. Defendant Egipto be dismissed; 5 3. Defendants’ motion for summary judgment, ECF No. 26, be granted; and 6 4. Judgement as a matter of law be entered in favor of Defendants Tan, 7 Kuersten, Largoza, and Ko. 8 These findings and recommendations are submitted to the United States District 9 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 10 | after being served with these findings and recommendations, any party may file written objections 11 | with the court. Responses to objections shall be filed within 14 days after service of objections. 12 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 13 | Yist, 951 F.2d 1153 (9th Cir. 1991). 14 15 | Dated: September 23, 2020 Ssvcqo_ 16 DENNIS M. COTA 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 27