Opinion
2:21-cv-00757-JR
11-30-2022
JOE CUMMINGS BONNER, JR., Plaintiff, v. GLORIA DAUM, Defendant.
AMENDED FINDINGS AND RECOMMENDATION
Jolie A. Russo United States Magistrate Judge
Pro se plaintiff Joe Cummings Bonner, Jr., filed this action under 42 U.S.C. § 1983 against defendant Gloria Daum alleging violations of his Eighth Amendment rights. Defendant now moves for summary judgement (ECF 56) pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, defendant's motion should be granted.
BACKGROUND
Plaintiff is a former adult in custody (“AIC”) who was housed in Umatilla County Jail (“UCJ”) on post-prison supervision from April 7, 2021, to May 10, 2021. See Compl. 2-4, ECF 2; Def.'s Mot. 4-6, ECF 56. Defendant is a nurse and was part of the UCJ medical staff while plaintiff was housed in UCJ. Compl. 2. Plaintiff filed this action on May 8, 2021, alleging that he “ran out of [his] insulin (Trulicity)” on or around April 20, 2021, and was not given “[his] insulin in over two to three weeks.” Id. at 4. Plaintiff further alleges he cracked a tooth on April 23, 2021 and was denied adequate medical care for that condition. Id. Based on these allegations, the Court construes the Complaint as an Eighth Amendment claim for deliberate indifference.
Defendant filed a Motion for Summary Judgment on August 5, 2022. See Def.'s Mot. On August 8, 2022, the Court issued a Summary Judgment Advice Notice (ECF 59) and instructed plaintiff to file a response by September 7, 2022. Because plaintiff did not file a response, the Court instructed plaintiff on September 27, 2022, to file a response by October 12, 2022. ECF 60. To date, plaintiff has not filed a response.
LEGAL STANDARDS
Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). On a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005). The court does not assess the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv.Co., 391 U.S. 253, 289 (1968)).
Because plaintiff is proceeding pro se, the Court construes his pleadings liberally and affords him the benefit of any doubt. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Thomas v.Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (stating that district courts are to “construe liberally motion papers and pleadings filed by pro se inmates and should avoid applying summary judgment rules strictly”).
DISCUSSION
I. Deliberate Indifference
It is well-settled that “prison officials' ‘deliberate indifference to serious medical needs of [AIC]s' violates the Cruel and Unusual Clause of the Eighth Amendment.” Gordon v. Cnty. ofOrange, 888 F.3d 1118, 1122 (9th Cir. 2018), cert. denied sub nom.Cnty. of Orange, Cal. v.Gordon, 139 S.Ct. 794 (2019). In the Ninth Circuit, a deliberate indifference claim consists of two parts. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds byWMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997)). First, a plaintiff must show a “serious medical need” by demonstrating that “failure to treat a[n] [AIC]'s condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain.'” Id. (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Second, a plaintiff must show the defendants were “deliberately indifferent” to his or her serious medical need. Jett, 439 F.3d at 1096. A plaintiff satisfies the deliberate indifference prong by showing: “(a) a purposeful act or failure to respond to a[n] [AIC]'s pain or possible medical need and (b) harm caused by the indifference.” Id. “Indifference ‘may appear when prison officials deny, delay, or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care.'” Id. (quoting Hutchinson v.United States, 838 F.2d 390, 392 (9th Cir. 1988)).
Here, defendant argues she is entitled to summary judgment on plaintiff's deliberate indifference claim because plaintiff cannot show that he suffered a serious medical need regarding his diabetes medication or the care he received for his damaged tooth. See Def.'s Mot. 11-13. Defendant argues that, even if plaintiff suffered a serious medical need, there is no evidence that defendant or anyone intentionally denied or delayed medical treatment to plaintiff or caused him further harm or injury as a result of allegedly doing so. Id. at 12-13.
A. Diabetes Medication
Plaintiff alleges his diabetes was “out of control” while he was housed in UCJ in early May 2021 because he “[had] not been given [his] (Trulicity) insulin” for “over two to three weeks”. Compl. 4. Defendant asserts that UCJ medical staff took “significant treatment steps . . . for the management of [plaintiff's] type 2 diabetes” and argues that plaintiff cannot show he “had a serious medical need for Trulicity brand medication.” Id. at 11. Considering the record in the light most favorable to plaintiff, the Court finds there is no evidence that plaintiff was denied insulin at UCJ, or that he experienced harmful symptoms related to type 2 diabetes, or that UCJ medical staff failed to provide him with adequate treatment for his type 2 diabetes.
Defendant clarifies that Trulicity is not insulin. Def.'s Mot. 5 n. 4. It is a medication that is sometimes used to treat type 2 diabetes, but it is not insulin. See id. Defendant further notes that plaintiff had been prescribed Trulicity outside of the UCJ and plaintiff's wife “agreed to bring adequate quantities of the Trulicity medication” to the UCJ. Id. at 11. According to defendant, plaintiff's Trulicity supply ran out in April 2021 because “his wife failed to bring adequate quantities of the Trulicity medication.” Id. Plaintiff does not dispute defendant's assertions.
To start, there is no question UCJ medical staff provided plaintiff with insulin through the duration of plaintiff's stay in UCJ in April and May of 2021, in addition to other medications and protocols to treat his type 2 diabetes. While plaintiff describes his claim as, “denial of insulin 4/16/21-4/20/2021”, Compl. 5, his medical records show UCJ medical staff provided him with U-100 insulin once or twice per day while he was housed in UCJ-including on those particular dates-and plaintiff does not dispute the accuracy of that evidence. Eckhardt Decl. Ex. A at 30, ECF 58. In addition to U-100 insulin, plaintiff was prescribed and provided with metformin and Jardiance, two medication that also treat type 2 diabetes. Id. at 29; Def.'s Mot. 11. Starting on plaintiff's first day in UCJ, UCJ medical staff also ordered a diabetic diet for plaintiff and routine monitoring of plaintiff's blood sugar levels. Id. at 22, 29. Plaintiff alleges he needed Trulicity, but there is no evidence that the diabetic diet, medications, and protocols provided by UCJ medical staff were inadequate to treat his type 2 diabetes, and plaintiff does not claim UCJ's treatment plan “result[ed] in further significant injury or the ‘unnecessary and wanton infliction of pain.'” Jett, 439 F.3d at 1096. Put differently, the evidence before the Court does not show that plaintiff had a serious medical need for Trulicity-or any need at all.
The Court acknowledges plaintiff's claim that his blood sugar levels, or glucose numbers, were adversely affected when he was not taking Trulicity. Plaintiff specifically alleges that “[his] glucose meter numbers [were] . . . not under #250[,] w[h]ich is high for an insulin dependent diabetic.” Compl. 5. The evidence, however, shows that plaintiff's blood sugar levels were either below 250 on the dates he was tested in April 2021, or not recorded because plaintiff refused to have his blood test administered-which plaintiff does not contest or explain. See Eckhardt Decl. Ex. A at 30-31 (noting plaintiff's blood sugar levels as below 250 on April 8, 10, 11, 14, 16, 21, 22, and 24; also noting that plaintiff “refused” his blood test twice on April 12 and again on April 15 and 18). In addition to refusing blood sugar tests, plaintiff refused two of his diabetes medications on a regular basis between April 11, 2021, and May 10, 2021. See id. (noting that plaintiff refused insulin on the following dates in 2021 at UCJ: April 11-13, April 15, April 1820, April 25, April 26, and May 10; and noting that plaintiff refused metformin on April 12, April 15, April 17-28, and April 30-May 10). Thus, even if plaintiff's glucose numbers were “high” and plaintiff could show that his diabetes worsened at UCJ-which he has not done-any such decline would be difficult to attribute to UCJ medical staff given plaintiff's undisputed failure to follow the medical protocols UCJ medical staff established to treat his type 2 diabetes. SeeSpencer v. Sharp, No. CV100249PHXSMMJRI, 2011 WL 13190170, at *12 (D. Ariz. Mar. 31, 2011), aff'd, 487 Fed.Appx. 424 (9th Cir. 2012) (noting the plaintiff's claim based on his medical treatment for diabetes and finding, “even assuming, arguendo, that Plaintiff could establish some specific harm, there is no showing that any harm resulted from [the defendant's] conduct or treatment rather than [the] [plaintiff's own noncompliance with his diabetic protocol.”).
In sum, there is no evidence defendant or UCJ medical staff failed to adequately treat plaintiff's type 2 diabetes, or that plaintiff had a serious medical need for Trulicity. Thus, on the record before the Court, no reasonable jury could find that UCJ medical staff were deliberately indifferent regarding the medication and protocols needed to treat plaintiff's type 2 diabetes. See Ramirez v. Swingle, No. 2:11-CV-0045 LKK KJN, 2012 WL 5828549, at *27 (E.D. Cal. Nov. 15, 2012) (finding “no evidence demonstrating that [the] defendant . . . mismanaged [the] plaintiff's insulin or other diabetes medications”).
B. Cracked Tooth
Plaintiff alleges he was denied “emergency room access or to see a dentist to extract or repair [sic] broken tooth.” Compl. 4. Defendant argues plaintiff did not suffer a serious medical need regarding his cracked tooth and, even if he did, UCJ staff provided timely and reasonable medical care. Def.'s Mot. 12-13.
The evidence indicates that plaintiff's tooth injury constituted a serious medical need. Plaintiff requested medical attention for a “broken tooth” on April 24, 2021, and reported pain that he described as “unbearable”. Eckhardt Decl. Ex. A at 40. Medical staff responded to plaintiff on the same day with an exam, id. at 42, and they followed up four days later. Id. at 4349. During both visits, a staff person discussed pain management with plaintiff. Id. at 42, 48. During the second visit, on April 28, 2021, plaintiff was also instructed to chew on the opposite side of his mouth and was informed that medical staff “would get him into a dentist as soon as it was possible.” Id. at 48. Given plaintiff's reports of significant pain, the impacts on his ability to eat, and UCJ's provider referral, a reasonable jury could find that plaintiff's cracked tooth constituted a serious medical need. SeeLopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc) (noting that a serious medical need can “include the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain”).
However, no reasonable jury could find that UCJ medical staff denied plaintiff care for his injured tooth, intentionally delayed his referral to a dentist, or caused him any harm in relation to his dental needs. The evidence shows that medical staff met plaintiff on the same day he reported his cracked tooth, April 24, 2021, and followed up four days later to inform him that a nurse practitioner “will be contacted for further treatment” and “[staff] would get him into a dentist as soon as it was possible.” Eckhard Decl. Ex. A at 48. Although plaintiff did not see a dentist before he was released from UCJ on May 10, 2021, only twelve days or so had transpired since staff had told plaintiff they were referring him to a dentist, and there is no evidence that plaintiff was harmed by not receiving dental care before he was released. SeeBanks v. UmatillaCnty. Jail, No. 2:16-CV-00284-TC, 2018 WL 2376751, at *3 (D. Or. Mar. 26, 2018), report and recommendation adopted, 2018 WL 2376092 (D. Or. May 24, 2018) (acknowledging the plaintiff's seven-week wait for dental treatment and emphasizing that the plaintiff must “establish ‘significant harm' arising from the delay”). Indeed, even where an AIC experiences a waiting period to see a provider that may “seem[] excessive”, id., a “‘delay in providing a[n] [AIC] with dental treatment, standing alone, does not constitute an eighth amendment violation.'” Hallett v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002). Rather, the evidence must show “that delays occurred to [a plaintiff] with problems so severe that delays would cause significant harm and that Defendants should have known this to be the case” Id. at 746.
Here, there is no evidence from which a jury could infer that UCJ medical staff delayed dental treatment to plaintiff or caused plaintiff additional injury by not providing him with a dental appointment before he was released on May 10, 2021. Although plaintiff claims he needed emergency dental care, he did not request such services when he met with UCJ medical staff on April 24 and 28, and there is no evidence that defendant or any medical staff person was aware that plaintiff was experiencing symptoms that would indicate a need for emergency care. In fact, UCJ medical staff took steps during both visits to help plaintiff anticipate and manage symptoms that might be related to a cracked tooth. See Eckhardt Decl. Ex. A at 42, 48. They discussed over-the-counter pain medication with plaintiff, gave him care instructions for his cracked tooth, explained how to avoid pain while eating, and asked plaintiff to contact medical staff if he experienced worsening symptoms. See id. Moreover, the medical notes state, “[p]atient was ok with his treatment plan” id. at 48, and plaintiff does not claim that he either protested the plan or experienced worsening conditions while awaiting his dental appointment.
Again, there is no evidence UCJ disregarded plaintiff's cracked tooth, intentionally delayed his referral to a dentist, or that his conditioned worsened because of their conduct. Thus, no reasonable jury could find defendant or any UCJ medical staff person was deliberately indifferent to plaintiff's tooth injury. SeeShelton v. Minev, No. 319CV00420MMDWGC, 2022 WL 1110239, at *7 (D. Nev. Jan. 12, 2022), report and recommendation adopted, 2022 WL 833168 (D. Nev. Mar. 21, 2022) (finding the defendants were not deliberately indifferent to the plaintiff's dental needs where the plaintiff received “ample, adequate dental care” and there was “no evidence of any significant delay” or that plaintiff's wait for dental services “caused any harm”). Defendant is therefore entitled to summary judgment on plaintiff's claim alleging inadequate dental care. Seeid. (granting the defendants' summary judgment where there was no evidence the defendants intentionally delayed treatment to the plaintiff or harmed the plaintiff in allegedly doing so).
CONCLUSION
Plaintiff cannot succeed on his deliberate indifference claim because there is no evidence he was denied insulin during his time in UCJ or suffered harm because he was not provided with the medication Trulicity. SeeSpencer, 2011 WL 13190170, at *12 (granting the defendant summary judgment on the plaintiff's deliberate indifference claim where there was no evidence the defendant's diabetes treatment plan caused the plaintiff “to suffer further harm”). Summary judgment is also proper on plaintiff's broken tooth claim because there no evidence that any UCJ medical staff person, including defendant, intentionally denied or delayed plaintiff's dental treatment for his cracked tooth or that he suffered significant harm because of any such delay. See Proctor v. Horn, 95 F.Supp.3d 1242, 1265 (D. Nev. 2015) (granting the defendant summary judgment on the plaintiff's deliberate indifference claim where there was no evidence the defendant intentionally delayed the plaintiff's dental procedure and “no evidence of harm as a result of the delay”).
RECOMMENDATION
For the reasons stated herein, defendant's Motion for Summary Judgment (ECF 56) should be GRANTED. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order.
The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.