1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHELDON RAY NEWSOME, Case No. 2:19-cv-0307-DAD-JDP (P) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 M. LOTERSZTAIN, 15 Defendant. 16 17 18 Plaintiff, a state prisoner, brought this action under section 1983 alleging that defendant 19 M. Lotersztain violated his Eighth Amendment rights by removing him from the Out-Patient 20 Housing Unit (“OHU”), and his First Amendment rights by doing so in retaliation for his reports 21 about another provider’s misconduct. ECF No. 18 at 5, 14-15. Plaintiff has filed a motion for 22 summary judgment, ECF No. 165, and defendant Lotersztain has filed a cross motion for 23 summary judgment, ECF No. 173. Defendant’s motion should be granted and plaintiff’s denied. 24 Legal Standards 25 Summary judgment is appropriate where there is “no genuine dispute as to any material 26 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington 27 Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine 28 1 only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, 2 while a fact is material if it “might affect the outcome of the suit under the governing law.” 3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 4 F.2d 1422, 1436 (9th Cir. 1987). 5 Rule 56 allows a court to grant summary adjudication, also known as partial summary 6 judgment, when there is no genuine issue of material fact as to a claim or a portion of that claim. 7 See Fed. R. Civ. P. 56(a); Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) (“Rule 8 56 authorizes a summary adjudication that will often fall short of a final determination, even of a 9 single claim . . . .”) (internal quotation marks and citation omitted). The standards that apply on a 10 motion for summary judgment and a motion for summary adjudication are the same. See Fed. R. 11 Civ. P. 56 (a), (c); Mora v. Chem-Tronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998). 12 Each party’s position must be supported by (1) citations to particular portions of materials 13 in the record, including but not limited to depositions, documents, declarations, or discovery; or 14 (2) argument showing that the materials cited do not establish the presence or absence of a 15 genuine factual dispute or that the opposing party cannot produce admissible evidence to support 16 its position. See Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The court may consider 17 other materials in the record not cited to by the parties, but it is not required to do so. See Fed. R. 18 Civ. P. 56(c)(3); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 19 2001); see also Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 20 “The moving party initially bears the burden of proving the absence of a genuine issue of 21 material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the 22 moving party must either produce evidence negating an essential element of the nonmoving 23 party’s claim or defense or show that the nonmoving party does not have enough evidence of an 24 essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. 25 Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this 26 initial burden, the burden then shifts to the non-moving party “to designate specific facts 27 demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d 28 376, 387 (citing Celotex Corp., 477 U.S. at 323). The non-moving party must “show more than 1 the mere existence of a scintilla of evidence.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 2 U.S. 242, 252 (1986)). However, the non-moving party is not required to establish a material 3 issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be shown to 4 require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. 5 Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). 6 The court must apply standards consistent with Rule 56 to determine whether the moving 7 party has demonstrated there to be no genuine issue of material fact and that judgment is 8 appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). 9 “[A] court ruling on a motion for summary judgment may not engage in credibility 10 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 11 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the 12 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party. 13 Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002); Addisu v. Fred Meyer, Inc., 14 198 F.3d 1130, 1134 (9th Cir. 2000). 15 Background 16 Plaintiff alleges that in 2017, while plaintiff was incarcerated at the California Medical 17 Facility (“CMF”), defendant Lotersztain, a physician, removed him from the OHU in retaliation 18 for complaints he had filed against another provider. ECF No. 18 at 3-10. He further alleges that 19 Lotersztain removed him from the care of specialists in the University of California San 20 Francisco (“UCSF”) neurology department.1 Id. at 10-11. 21 Between July and December 2017, defendant Lotersztain was a physician and surgeon at 22 CMF. ECF No. 173-3 at 2, ¶ 3. She was plaintiff’s primary care provider between August 10 23 and September 28, 2017. Id. at 2, ¶ 4. At the outset of that period, plaintiff was housed in the 24 OHU, an area similar to an assisted living facility, where patients received assistance with basic 25 activities of living like dressing, bathing, and eating. Id. Defendant states that space in the OHU 26 is always in high demand, and discharges occur when and if a patient’s required level of care 27 1 The second amended complaint also brought other claims, but those were previously 28 dismissed. ECF Nos. 90 & 109. 1 changes. Id. at 2-3, ¶¶ 4-5. 2 Plaintiff suffers from three conditions: Benign Prostatic Hyperplasia, Syringomyelia with 3 Chiari I Malformation, and Chronic Myelopathy. Id. at 3 ¶ 6. His Syringomyelia, a condition in 4 which cysts form in the spinal cord, worsened in 2014 and led to his placement in the OHU. Id. 5 at 3 ¶ 8. Plaintiff had surgery for the condition in 2015. He had annual appointments with UCSF 6 in 2016 and 2017 so that he could receive imaging of the shunt that was placed during that 7 procedure. Id. at 3-4 ¶ 8. 8 Plaintiff alleges that in July 2017, while he was still in the OHU, a nursing assistant 9 named Dirisu developed an antagonism towards him and sought to have him removed from the 10 unit. ECF No. 18 at 3-4. 2 Dirisu allegedly became verbally abusive of plaintiff, causing the 11 latter to file a grievance against him. Id. After the grievance was filed, plaintiff alleges that 12 Lotersztain used her authority on Dirisu’s behalf and had plaintiff removed from the OHU. Id. at 13 4-5. Lotersztain also allegedly terminated the care he had been prescribed by the UCSF 14 neurology department, including future follow-up care at that institution. Id. at 12. Days after 15 his removal from the OHU, plaintiff was transferred to the RJ Donovan Correctional Facility. Id. 16 at 19. He claims that, as a result of removal of OHU and Lotersztain’s discontinuation of the 17 UCSF-recommended care, he suffered headaches, pain to his neck and hands, and psychological 18 problems. Id. at 7, 20. 19 Analysis 20 Defendant’s motion for summary judgment should be granted because the evidence 21 establishes that defendant was not deliberately indifferent to plaintiff’s serious medical needs. 22 The retaliation claim against defendant also fails because the evidence shows that her actions 23 were motivated by a legitimate penological purpose. 24 I. Deliberate Indifference 25 Defendant argues that plaintiff’s removal from the OHU was medically justified. I agree. 26 She notes that by April 2016, following his Syringomyelia surgery in 2015 and his ensuing 27 2 Dirisu was previously a defendant in this action but was dismissed based on plaintiff’s 28 failure to exhaust administrative remedies against him. ECF Nos. 90 & 109. 1 physical therapy, he made a substantial recovery. ECF No. 173-4 at 18. A letter dated April 21, 2 2016, from Dr. Jacques at the UCSF department of neurology noted that “[plaintiff] has made an 3 excellent recovery and may be discharged from physical therapy.” Id. at 19. Plaintiff saw Dr. 4 Jacques again in May 2017, and the record reflects that his balance was improved, he had a 5 normal walking pattern, good strength in most of his muscles, and was “doing well” overall. Id. 6 at 24. Plaintiff was discharged from physical therapy on August 3, 2017. Id. at 29. He saw 7 defendant for the first time on August 17, 2017, and she noted that he was independent in the 8 activities of daily life and able to exercise vigorously. Id. at 30-32. At a follow-up in September 9 2017, defendant determined that transfer to Specialized Outpatient housing was appropriate. Id. 10 That level of housing still provided plaintiff with supportive nursing care, ground floor housing, 11 and a lower bunk. ECF No. 173-3 at 5 ¶¶ 14, 22. The transfer also provided for yearly follow- 12 ups at UCSF. Id. at 22. 13 Based on the evidence, no reasonable finder of fact could find that defendant acted with 14 deliberate indifference. It bears emphasis that deliberate indifference is more than negligence or 15 medical malpractice; it requires a showing that the treatment defendant chose was medically 16 unacceptable under the circumstances and undertaken in conscious disregard of an excessive risk 17 to the patient’s health. See Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1081-82 (9th 18 Cir. 2013) (“[T]he indifference to [a prisoner’s] medical needs must be substantial. Mere 19 ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this [claim].” Even gross 20 negligence is insufficient to establish deliberate indifference to serious medical needs.”) (internal 21 citations omitted); Hamby v. Hammond, 821 F.3d 1085, 1092, 2016 (9th Cir. 2016) (“[T]o show 22 deliberate indifference, the plaintiff must show that the course of treatment the doctors chose was 23 medically unacceptable under the circumstances and that the defendants chose this course in 24 conscious disregard of an excessive risk to the plaintiff’s health.”) (internal quotation marks 25 omitted) (quoting Snow v. McDaniel, 681 F.3d 978, 988 (9th Cir. 2012)). Here, there was 26 substantial medical evidence that plaintiff did not require the higher level of care offered in the 27 OHU. That assessment was based not only defendant’s observations and review of the data, but 28 also that of the providers at UCSF. And plaintiff’s transfer to Specialized Outpatient housing 1 recognized that he still had limitations that necessitated a level of care beyond that which was 2 afforded to inmates in the general population. 3 Further, the evidence shows that defendant did not restrict or curtail plaintiff’s access to 4 care at UCSF. As noted above, her decision to transfer him from the OHU still allowed for an 5 annual follow-up at UCSF. ECF No. 173-3 at 22. The discontinuation of that care in 2018 came 6 after defendant was no longer plaintiff’s provider and after the contract between UCSF and the 7 California Medical Facility had ended. Id. at 6 ¶ 17; ECF No. 173-4 at 11-12 ¶ 45. 8 Plaintiff argues that almost immediately after defendant removed him from OHU, a fall 9 necessitated re-entry to that level of care. ECF No. 180 at 2-3. This is not necessarily indicative 10 of deliberate indifference, however. At the time of the alleged fall, plaintiff was no longer in 11 defendant’s care, having been transferred from the California Medical Facility to another 12 institution. ECF No. 173-4 at 7 ¶¶ 27-29. At most, this occurrence might indicate that defendant 13 erred in her medical judgment, but that is not sufficient to sustain a finding of deliberate 14 indifference. 15 Plaintiff also argues that his condition was insidious, that his hands were useless, and his 16 legs were getting progressively weaker at the time defendant transferred him from the OHU. 17 ECF No. 180 at 2. As noted above, the medical evidence, both from defendant’s observations 18 and from physicians at UCSF, suggests that, while plaintiff may have had issues with his grip, he 19 was otherwise doing well. 20 Based on the foregoing, I find that defendant is entitled to summary judgment on 21 plaintiff’s Eighth Amendment claims against her. 22 II. Retaliation 23 Plaintiff’s retaliation claim also fails. In order to succeed on a retaliation claim, a prisoner 24 must establish five elements: “(1) [a]n assertion that a state actor took some adverse action 25 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action 26 (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not 27 reasonably advance a legitimate correctional goal.” Brodheim v. Cry, 584 F.3d 1262, 1269 (9th 28 Cir. 2009). Here, plaintiff’s transfer from the OHU reasonably advanced a legitimate correctional 1 goal. As noted above, the medical evidence indicated that plaintiff did not require the higher 2 | level of care provided by the OHU. That level of care is limited to those patients who require it, 3 | because it is staff-intensive and expensive. ECF No. 173-3 at 2-3 §/ 4. Courts have held that a 4 | prison’s regulation of healthcare is a legitimate penological goal. See Hicks v. Dotson, 73 F. 5 | Supp. 3d 1296, 1303 (E.D. Wash. Dec. 22, 2014). Accordingly, defendant is entitled to summary 6 | judgment on this claim as well. 7 Conclusion 8 Accordingly, it is RECOMMENDED that defendant’s motion for summary judgment, ECF 9 | No. 173, be GRANTED, judgment entered in her favor, and plaintiff's motion for summary 10 | judgment, ECF No. 165, be necessarily DENIED. 11 These findings and recommendations are submitted to the United States District Judge 12 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days of 13 | service of these findings and recommendations, any party may file written objections with the 14 | court and serve a copy on all parties. Any such document should be captioned “Objections to 15 | Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed 16 | within fourteen days of service of the objections. The parties are advised that failure to file 17 | objections within the specified time may waive the right to appeal the District Court’s order. See 18 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 19 | 1991). 20

IT IS SO ORDERED.

22 ( q Sty - Dated: _ December 19, 2024 q——— 23 JEREMY D,. PETERSON

UNITED STATES MAGISTRATE JUDGE

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