Opinion
No. 2:12-cv-1337 GEB DAD P
02-05-2014
JESSIE LIPSCOMB, Plaintiff, v. J. RYNERSON et al., Defendants.
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. This matter is now before the court on the parties' cross-motions for summary judgment.
BACKGROUND
Plaintiff is proceeding on his original complaint. Therein, he alleges as follows. After defendant correctional officers Rynerson and Berry searched plaintiff's cell, officer Rynerson instructed plaintiff to go back into the cell and lock up. When plaintiff got half way into his cell, he slipped on water on the floor and injured his hip. Plaintiff has had a hip replacement. After plaintiff's fall, he made his way to the Building 12 dayroom and asked the defendants to call in a medical code, but they refused and left him lying on the floor for fifteen to twenty minutes in extreme pain. Defendants Rynerson and Berry told plaintiff that he was faking the injury. Ultimately, Sergeant Major ordered defendant Berry to execute the medical code. (Compl. 5-6 & Ex. A.)
SUMMARY JUDGMENT STANDARDS UNDER RULE 56
Summary judgment is appropriate when the moving party "shows that 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).
Under summary judgment practice, the moving party "initially bears the burden of proving the absence of a genuine issue of material fact." In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by "citing to particular parts of materials in the record, including depositions, documents, electronically store information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admission, interrogatory answers, or other materials" or by showing that such materials "do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at trial, "the moving party need only prove that there is an absence of evidence to support the nonmoving party's case." Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325.). See also Fed. R. Civ. P. 56(c)(1)(B). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, . . ., is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (citations omitted).
"In evaluating the evidence to determine whether there is a genuine issue of fact," the court draws "all reasonable inferences supported by the evidence in favor of the non-moving party." Walls v. Central Costa County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011). It is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . 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, 475 U.S. at 587 (citation omitted).
OTHER APPLICABLE LEGAL STANDARDS
I. Civil Rights Act Pursuant to 42 U.S.C. § 1983
The Civil Rights Act under which this action was filed provides as follows:
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
II. The Eighth Amendment and Inadequate Medical Care
The unnecessary and wanton infliction of pain constitutes cruel and unusual punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). In order to prevail on a claim of cruel and unusual punishment, a prisoner must allege and prove that objectively he suffered a sufficiently serious deprivation and that subjectively prison officials acted with deliberate indifference in allowing or causing the deprivation to occur. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991).
Where a prisoner's Eighth Amendment claims arise in the context of medical care, the prisoner must allege and prove "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle, 429 U.S. at 106. An Eighth Amendment medical claim has two elements: "the seriousness of the prisoner's medical need and the nature of the defendant's response to that need." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).
A medical need is serious "if the failure to treat the prisoner's condition could result in further significant injury or the 'unnecessary and wanton infliction of pain.'" McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include "the presence of a medical condition that significantly affects an individual's daily activities." Id. at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
If a prisoner establishes the existence of a serious medical need, he must then show that prison officials responded to the serious medical need with deliberate indifference. See Farmer, 511 U.S. at 834. In general, deliberate indifference may be shown when prison officials deny, delay, or intentionally interfere with medical treatment, or may be shown by the way in which prison officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988). Before it can be said that a prisoner's civil rights have been abridged with regard to medical care, however, "the indifference to his medical needs must be substantial. Mere 'indifference,' 'negligence,' or 'medical malpractice' will not support this cause of action." Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06). See also Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) ("Mere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth Amendment rights."); McGuckin, 974 F.2d at 1059 (same). Deliberate indifference is "a state of mind more blameworthy than negligence" and "requires 'more than ordinary lack of due care for the prisoner's interests or safety.'" Farmer, 511 U.S. at 835 (quoting Whitley, 475 U.S. at 319).
Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S. at 104-05. To establish a claim of deliberate indifference arising from delay in providing care, a plaintiff must show that the delay was harmful. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002); Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at 1059; Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989); Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). In this regard, "[a] prisoner need not show his harm was substantial; however, such would provide additional support for the inmate's claim that the defendant was deliberately indifferent to his needs." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). See also McGuckin, 974 F.2d at 1060.
Finally, mere differences of opinion between a prisoner and prison medical staff or between medical professionals as to the proper course of treatment for a medical condition do not give rise to a § 1983 claim. See Snow v. McDaniel, 681 F.3d 978, 988 (9th Cir. 2012); Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).
PLAINTIFF'S STATEMENT OF UNDISPUTED FACTS
The evidence submitted by plaintiff in support of his motion for summary judgment appears to establish the following.
1. Defendant Rynerson witnessed plaintiff laying on the floor of the dayroom on November 26, 2010. (Pl.'s SUDF 1, Ex. D.)
2. Plaintiff asked defendant Rynerson to summon medical staff. (Pl.'s SUDF 2, Ex. D.)
3. Defendant Rynerson failed to summon medical staff when plaintiff asked him to place a medical code. (Pl.'s SUDF 3, Ex. D.)
4. Prior to plaintiff asking defendant Rynerson to call medical staff, plaintiff told defendant Rynerson that he had fallen. (Pl.'s SUDF 4, Ex. D.)
5. Defendant Berry witnessed plaintiff lying on the floor of the dayroom. (Pl.'s SUDF 5, Ex. F.)
6. Plaintiff asked defendant Berry to summon medical staff via medical code. (Pl.'s SUDF 6, Ex. F.)
DEFENDANTS' STATEMENT OF UNDIPUTED FACTS
The evidence submitted by defendants in support of their cross-motion for summary judgment appears to establish the following.
1. Defendant Rynerson observed Sergeant Major direct defendant Berry to contact prison medical staff and request a medical evaluation for plaintiff. Consequently, defendant Rynerson did not personally contact prison medical staff. (Defs.' Resp. to Pl.'s SUDF 3, Ex. D.)
2. After plaintiff requested a medical code, he said "I'm going man down. I slipped from the water y'all left in my cell. I'm gonna sue you. I can't move. I'm gonna tear your ass up. I got me a lawsuit." (Defs.' Resp. to Pl.'s SUDF 4, Ex. D.)
3. After plaintiff requested a medical code, defendant Berry contacted the prison medical staff by telephone and requested a medical evaluation for plaintiff. (Defs.' Resp. to Pl.'s SUDF 7, Ex. F.)
4. Plaintiff alleges that fifteen to twenty minutes passed from the time he reported his injury to defendant Rynerson to the time he was taken for medical treatment. (Defs.' Add'l SUDF 9, Pl.'s Dep. at 29-30.)
5. Plaintiff has no medical evidence to show that this fifteen to twenty minute delay caused him further injury. (Defs.' Add'l SUDF 10.)
6. Plaintiff also does not allege that his injury was exacerbated by having to wait on the floor for medical personnel to arrive. (Defs.' Add'l SUDF 11.)
7. Plaintiff returned to his cell the same day and did not have long-term or lingering effects from the fall in his cell. (Defs.' Add'l SUDF 12, Pl.'s Dep. at 36-37.)
8. Plaintiff's hip replacement was not displaced. (Defs.' Add'l SUDF 13, Pl.'s Dep. at 34.)
ANALYSIS
In resolving cross-motions for summary judgment, the court must consider each party's evidence. See Johnson v. Poway Unified School District, 658 F.3d 954, 960 (9th Cir. 2011). Because plaintiff will bear the burden of proof at trial, to prevail on summary judgment he must affirmatively demonstrate that based upon the undisputed facts no reasonable trier of fact could find other than for him. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Because defendants do not bear the burden of proof at trial, in moving for summary judgment they need only prove an absence of evidence to support plaintiff's case. See Oracle Corp., 627 F.3d at 387. Below, the court will address each party's motion in turn.
I. Plaintiff's Motion for Summary Judgment
First, the court finds that plaintiff has failed to meet his initial burden of demonstrating on summary judgment that the defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment when they delayed summoning medical care for him after his fall. The parties do not dispute that, at most, fifteen to twenty minutes passed from the time plaintiff reported his injury to defendant Rynerson to the time he was taken for medical treatment for his fall. As noted above, delays in providing medical care may manifest deliberate indifference. See Estelle, 429 U.S. at 104-05. However, where, as here, plaintiff has not submitted any competent evidence to show that the relatively brief delay he experienced in receiving attention caused him further harm, he has failed to establish a claim of deliberate indifference arising from delay in providing medical care. See Hallett, 296 F.3d at 745-46 (delay in providing care does not constitute deliberate indifference unless inmate suffers significant harm as a result of the delay); Jett, 439 F.3d at 1096 (record included evidence, including doctor's notes, radiology summaries and the like, indicating that failure to timely set and cast fractured thumb resulted in deformity); Berry, 39 F.3d at 1057 (to establish deliberate indifference based on a delay in medical treatment, plaintiff must show the delay itself caused harm); Shapley, 766 F.2d at 407 (a delay in medical treatment must lead to further injury to support a claim of deliberate indifference); Velasquez v. Barrios, No. 08-56634, 2012 WL 2060660 at *1 (9th Cir. 2012) ("[W]hen, as here, a claim is based on a delay in treatment, such a delay only rises to a constitutional violation if it caused the prisoner 'substantial harm.'") (quoting Wood, 900 F.2d at 1335); Cramer v. Target Corp., No. 1:08-cv-01693-SKO, 2011 WL 5873401 at *18 (E.D. Cal. Nov. 22, 2011) ("The question for purposes of Plaintiff's claim, however, is not whether the injuries he sustained on March 3, 2008, have caused him any further harm, but whether the delay in treatment caused him any further harm. It is the delay in treatment that is the essence of Plaintiff's civil rights claim for deliberate indifference, not the harm he suffered as a result of his injury in and of itself.").
Citation to this unpublished decision is appropriate pursuant to Ninth Circuit Rule 36-3(b).
Moreover, in considering plaintiff's motion for summary judgment, the court is required to believe defendants' evidence and draw all reasonable inferences from the facts before the court in defendants' favor. Drawing all reasonable inferences from the evidence presented in defendants' favor, the court finds that the defendants have submitted evidence sufficient to create a genuine issue of material fact with respect to plaintiff's claim that they responded to his serious medical needs with deliberate indifference. Specifically, according to defendants' version of the facts, after plaintiff requested a medical code, he said "I'm going man down. I slipped from the water y'all left in my cell. I'm gonna sue you. I can't move. I'm gonna tear your ass up. I got me a lawsuit." Sergeant Major directed defendant Berry to contact prison medical staff by telephone and request a medical evaluation for plaintiff. Defendant Berry summoned medical attention. Accordingly, defendant Rynerson having observed as much, did not need to also call medical attention for plaintiff. At most, fifteen to twenty minutes passed from the time plaintiff reported his injury to defendant Rynerson to the time plaintiff was taken for medical treatment. Plaintiff has submitted no evidence suggesting that this brief delay caused him further injury.
Based on defendants' evidence, the court finds that a jury could conclude that defendants acted reasonably under the circumstances. See Farmer, 511 U.S. at 825 (even where a prison official knows of a substantial risk to an inmate's health but responds reasonably to the risk, he or she cannot be found liable under the Cruel and Unusual Punishment Clause, even if harm is ultimately not averted). Indeed, defendants' evidence establishes that defendant Berry contacted medical staff on plaintiff's behalf, thereby indicating that the defendants did not purposefully ignore or fail to respond to plaintiff's possible medical needs. See McGuckin, 974 F.2d at 1059-60 ("A defendant must purposefully ignore or fail to respond to a prisoner's pain or possible medical need in order for deliberate indifference to be established.").
In short, based on the evidence presented in connection with the pending cross-motions for summary judgment, a reasonable juror could conclude that defendants were not deliberately indifferent to plaintiff's serious medical needs and therefore did not violate his rights under the Eighth Amendment. Accordingly, plaintiff's motion for summary judgment in his favor with respect to his Eighth Amendment claims should be denied.
II. Defendants' Motion for Summary Judgment
Turning to defendants' motion for summary judgment, the court finds that defendants have borne their initial burden of demonstrating that there is no genuine issue of material fact with respect to the adequacy of the medical care provided to plaintiff. Specifically, the evidence submitted by the defendants in support of their motion for summary judgment establishes that after plaintiff fell, defendant Berry contacted the prison medical staff by telephone and requested a medical evaluation for plaintiff. No more than fifteen to twenty minutes passed from the time plaintiff reported his injury to defendant Rynerson to the time plaintiff was taken for medical treatment. Plaintiff has submitted no evidence suggesting that this brief delay caused him further injury. Rather, the evidence on summary judgment establishes that plaintiff returned to his cell the same day and did not suffer any long-term or lingering effects from the fall in his cell. Moreover, the evidence is undisputed that plaintiff's hip replacement was not displaced as a result of his fall.
Given the evidence submitted by defendants in support of the pending cross-motion for summary judgment, the burden shifts to plaintiff to establish the existence of a genuine issue of material fact with respect to his inadequate medical care claims. On defendants' motion for summary judgment, the court is required to believe plaintiff's evidence and draw all reasonable inferences from the evidence before the court in plaintiff's favor. The court has reviewed plaintiff's verified complaint and his opposition to defendants' motion. Drawing all reasonable inferences in plaintiff's favor, the court concludes that plaintiff has not submitted sufficient evidence on summary judgment to create a genuine issue of material fact with respect to his claim that defendants violated his rights under the Eighth Amendment.
Specifically, plaintiff has not come forward with any competent evidence to show that the minor delay he experienced before receiving medical care caused him any further harm. At most, plaintiff has submitted to the court a medical record from four days after his fall that indicates he reported his pain level was 7/10 at that time. However, this medical record does not show that the fifteen to twenty minute delay in receiving care about which he complains caused this alleged harm as is required to defeat defendants' motion for summary judgment. See Matsushita, 475 U.S. at 587 ("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.'"); Coreas v. Miller, No. 12-17538, 536 Fed.Appx. 708 (9th Cir. Aug. 2, 2013) ("district court properly granted summary judgment because Coreas failed to raise a genuine dispute of material fact as to whether a one-day delay in changing Coreas's bandages following knee surgery caused him to contract cellulitis or to suffer further injury and undue pain."); Gray v. Ulit, No. 12-16119, 2013 WL 226686 at *1 (9th Cir. Jan. 15, 2013) ("district court properly granted summary judgment in favor of Dr. Ulit because Gray failed to raise a genuine dispute of material fact as to whether the delay in treatment of his retinal tear was harmful or led to further injury."); Torrence v. Hsueh, No. 2:10-cv-1222 KJM KJN P, 2013 WL 322155 at *26 (E.D. Cal. Jan. 28, 2013) (defendants entitled to summary judgment because plaintiff tendered no evidence suggesting that any delay in his medical treatment ultimately caused him harm or that any remaining symptoms, including pain, were caused by the delay).
The court observes that at plaintiff's deposition, defense counsel asked him "how long did the pain from the fall last?" and plaintiff responded, "I'm going to say about a day or two." Defense counsel also asked plaintiff if he had "any lingering affect [sic] of the fall," and plaintiff responded, "No. Not that I know of." (Pl.'s Dep. at 36-67.)
See fn. 1, above.
Moreover, although plaintiff believes that the defendants should have summoned medical care for him more quickly, and that the fifteen to twenty minute delay in doing so caused him harm, plaintiff's opinion in and of itself does not create a triable issue of fact. See Fleming v. Lefevere, 423 F.Supp.2d 1064, 1070 (C.D.Cal.2006) ("Plaintiff's own opinion as to the appropriate course of care does not create a triable issue of fact because he has not shown that he has any medical training or expertise upon which to base such an opinion."); Farmer v. Alavi, No. EDCV 08-38 CJC (JC), 2010 WL 2164033 at *10 (C.D. Cal. Mar. 9, 2010) ("Plaintiff fails to present evidence from which a reasonable jury could conclude that any delay in treatment, even if it was due to a defendant's purposeful actions, caused additional harm to plaintiff . . . Although plaintiff attests that defendant Alavi's delay caused plaintiff continuing physical pain and suffering as well as mental harm, this lay opinion is conclusory, is lacking in foundation, is otherwise unsupported, and is insufficient to defeat summary judgment."); Tyler v. Davis, No. 1:06-cv-00092-AWI-SMS PC, 2009 WL 4057882 at *7 (E.D. Cal. Nov. 19, 2009) ("Plaintiff is not a medical expert and may not offer his own opinion that the delay led to additional, severe injury to both of Plaintiff's knees and to a general deterioration in his health.").
Finally, the court observes that it is true that a delay in treating pain may at some point rise to the level of a constitutional violation. See McGuckin, 974 F.3d at 1060. However, the facts in this case involving a fifteen or twenty minute delay, in light of the evidence presented here at the summary judgment stage of the litigation, do not meet that constitutional threshold. See Heilman v. Lyons, No. 2:09-cv-2721 JAM KJN, 2013 WL 3772471 at *16 (E.D. Cal July 16, 2013) ("The needless suffering of pain may be sufficient to demonstrate further harm . . . [but] the court cannot find that the, at most, three day delay in treatment - a period of time a reasonable person might wait to seek medical treatment for a virus causing flu-like symptoms - was sufficiently long that it requires a jury's resolution of plaintiff's Eighth Amendment claim."); Quiroz v. California Dept. of Corrections and Rehabilitation, No. 1:06-CV-01426-OWW-DLB PC, 2010 WL 3260132 at *10 (E.D. Cal. Aug. 18, 2010) ("It is also unclear what harm would occur for the delay in receiving a corneal transplant. Vague claims of "pain and suffering" are insufficient at the summary judgment stage to demonstrate a triable issue of material fact.").
In short, the undersigned finds that based on the evidence presented in connection with the pending cross-motions for summary judgment, no reasonable juror could conclude that defendants were deliberately indifferent to plaintiff's serious medical needs and therefore violated his rights under the Eighth Amendment. Accordingly, defendants' motion for summary judgment in their favor should be granted with respect to plaintiff's Eighth Amendment claims.
In light of these findings and recommendations, the court declines to address defendants' alternative argument that they are entitled to summary judgment in their favor based on the affirmative defense of qualified immunity.
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CONCLUSION
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Plaintiff's motion for summary judgment (Doc. No. 41) be denied;
2. Defendants' cross-motion for summary judgment (Doc. No. 46) be granted; and
3. This action be closed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within seven days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DALE A. DROZD
UNITED STATES MAGISTRATE JUDGE