1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY CRAIG HUCKABEE, Case No. 1:09-cv-0749-DAD-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT DEFENDANT McGUINNESS’ 13 v. MOTION FOR SUMMARY JUDGMENT BE

GRANTED

14 MEDICAL STAFF AT CSATF, et al., ECF No. 277 15 Defendants.

FOURTEEN (14) DAY DEADLINE

16 17 I. Background 18 Plaintiff Anthony Craig Huckabee (“Plaintiff”) is a state prisoner proceeding pro se and in 19 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 20 Plaintiff’s fifth amended complaint against Defendants Wu, Jimenez, and McGuinness for 21 deliberate indifference to Plaintiff’s serious medical needs in violation of the Eighth Amendment. 22 Specifically, Plaintiff’s claims are against: (1) Defendant Wu for reducing the strength of 23 Plaintiff’s prescription eye drops on December 21, 2004; (2) Defendant Jimenez for assuring 24 Plaintiff that he would personally handle Plaintiff’s refill request for his eye drops on July 12, 14, 25 and 18, 2005, but the medication was not refilled; and (3) Defendant McGuinness, who was 26 aware of the delay in Plaintiff’s glaucoma Timolol medication in May 2005 and February 2006.1 27 1 Findings and recommendations were issued on February 5, 2020 that summary judgment should be granted as to 28 Defendants Wu and Jimenez. (ECF No. 288.) 1 (ECF Nos. 272, 274.) 2 On March 22, 2019, Defendant McGuinness filed a motion for summary judgment on the 3 grounds that Defendant is entitled to judgment as a matter of law because there are no genuine 4 issues of material fact, and Defendant is entitled to qualified immunity.2 (ECF No. 277.) On 5 April 8, 2019, Plaintiff filed his opposition to Defendant’s motion for summary judgment. (ECF 6 No. 282.) Defendant filed a reply on April 19, 2019. (ECF No. 283.) The motion is deemed 7 submitted. Local Rule 230(l). 8 II. Legal Standard 9 Summary judgment is appropriate when the pleadings, disclosure materials, discovery, 10 and any affidavits provided establish that “there is no genuine dispute as to any material fact and 11 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is 12 one that may affect the outcome of the case under the applicable law. See Anderson v. Liberty 13 Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if the evidence is such that a 14 reasonable [trier of fact] could return a verdict for the nonmoving party.” Id. 15 The party seeking summary judgment “always bears the initial responsibility of informing 16 the district court of the basis for its motion, and identifying those portions of the pleadings, 17 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 18 which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. 19 Catrett, 477 U.S. 317, 323 (1986). The exact nature of this responsibility, however, varies 20 depending on whether the issue on which summary judgment is sought is one in which the 21 movant or the nonmoving party carries the ultimate burden of proof. See Soremekun v. Thrifty 22 Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). If the movant will have the burden of proof at 23 trial, it must “affirmatively demonstrate that no reasonable trier of fact could find other than for 24 the moving party.” Id. (citing Celotex, 477 U.S. at 323). In contrast, if the nonmoving party will 25 have the burden of proof at trial, “the movant can prevail merely by pointing out that there is an 26

27 2 Concurrent with this motion, Plaintiff was provided with notice of the requirements for opposing a motion for summary judgment. ECF No. 277; See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 28 952, 957 (9th Cir. 1988); Klingele v. Eikenberry, 849 F.2d 409, 411–12 (9th Cir. 1988). 1 absence of evidence to support the nonmoving party’s case.” Id. 2 If the movant satisfies its initial burden, the nonmoving party must go beyond the 3 allegations in its pleadings to “show a genuine issue of material fact by presenting affirmative 4 evidence from which a jury could find in [its] favor.” F.T.C. v. Stefanchik, 559 F.3d 924, 929 5 (9th Cir. 2009) (emphasis omitted). “[B]ald assertions or a mere scintilla of evidence” will not 6 suffice in this regard. Id. at 929; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 7 U.S. 574, 586 (1986) (“When the moving party has carried its burden under Rule 56[], its 8 opponent must do more than simply show that there is some metaphysical doubt as to the material 9 facts.”) (citation omitted). “Where the record taken as a whole could not lead a rational trier of 10 fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. 11 at 587 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). 12 In resolving a summary judgment motion, “the court does not make credibility 13 determinations or weigh conflicting evidence.” Soremekun, 509 F.3d at 984. Instead, “[t]he 14 evidence of the [nonmoving party] is to be believed, and all justifiable inferences are to be drawn 15 in [its] favor.” Anderson, 477 U.S. at 255. Inferences, however, are not drawn out of the air; the 16 nonmoving party must produce a factual predicate from which the inference may reasonably be 17 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), 18 aff’d, 810 F.2d 898 (9th Cir. 1987). Further, the Court may consider other materials in the record 19 not cited to by the parties, although it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. 20 S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cty., 21 Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 22 In arriving at these findings and recommendations, the Court carefully reviewed and 23 considered all arguments, points and authorities, declarations, exhibits, statements of undisputed 24 facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of 25 reference to an argument, document, paper, or objection is not to be construed to the effect that 26 this Court did not consider the argument, document, paper, or objection. This Court thoroughly 27 reviewed and considered the evidence it deemed admissible, material, and appropriate. 28 /// 1 III. Discussion 2 A. Undisputed Material Facts3 3 1. Plaintiff, Craig Huckabee, a prisoner of the State of California. (ECF No. 277-1; 4 Defendants’ Separate Statement of Undisputed (SSUF) 1.) 5 2. At all times relevant to the allegations against her, Dr. McGuinness was employed 6 by the California Department of Corrections and Rehabilitation (CDCR) as the 7 Chief Medical Officer (CMO) for the California Substance Abuse Treatment 8 Facility and State Prison at Corcoran (SATF). (SSUF 2.) 9 3. As the CMO, Dr. McGuinness was responsible for overseeing the prison’s medical 10 program for approximately 7,000 inmates. The position involved responding to audits, coordinating Medical Care with custody concerns and resources, attending various 11 committee meetings both at the institution and at Headquarters, handling personnel 12 issues and evaluations, budgeting, and scheduling. The Primary Care Providers in the 13 clinics were responsible for the everyday issues of patient care and management. Dr. 14 McGuinness did not provide direct medical care to any inmate/patient when she was 15 the CMO. (SSUF 3.) 16 4. In her position as CMO, Dr. McGuinness was also responsible for responding to 17 certain inmate appeals concerning medical treatment. (SSUF 4.) 18 5. Prior to January 28, 2011, there were four levels of appeal review (one informal level 19 review and three formal level reviews). The informal level of review required the 20 involved inmate and involved staff member(s) to attempt to resolve the grievance 21 informally between themselves. If the inmate was not satisfied with the informal level 22 response, he could submit the appeal for a formal review. The first formal level of 23 review was conducted by the division head or his/her designee. If the inmate was not 24 satisfied with the first formal level response, he could submit the appeal for a second 25 3 These facts are taken from a combination of Defendants’ Statement of Undisputed Material Facts (Doc. 277-1), 26 Plaintiff’s fifth amended complaint, and Plaintiff’s opposition to Defendant’s summary judgment motion. However, the Court notes that neither the fifth amended complaint nor Plaintiff’s opposition is verified. ECF No. 193, 282, 27 respectively. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (verified pleadings and motions may be used as an opposing affidavit if it is based on pleader’s personal knowledge of specific facts which are admissible in 28 evidence). Unless otherwise indicated, disputed and immaterial facts are omitted from this statement. 1 level of review. The second level of review was conducted by the institution head or 2 his/her designee, such as Dr. McGuinness. If the inmate was not satisfied with the 3 second level response, he could elevate the appeal to the third level of review, which 4 was conducted by the Chief of the Office of Third Level Appeal - Health Care or 5 Chief of the Inmate Appeals Branch in Sacramento, California. This constituted the CDCR Director’s decision on an appeal, and completed the exhaustion process. 6 (SSUF 5.) 7 6. In her supervisory role as CMO, Dr. McGuinness was not Plaintiff’s Primary Care 8 Provider, nor did she ever provide direct medical care to Plaintiff during this time 9 period. To the best of her knowledge, she has never met Plaintiff, and her only 10 involvement with him was responding to his appeals at the second level of review. 11 7. On or about July 21, 2005, Plaintiff submitted an inmate appeal that was assigned 12 Log No. SATF-E-05-03102. Plaintiff’s appeal stated that beginning on May 26, 13 2005, he had attempted to renew his medication several times, but that his 14 prescription had not been refilled. Plaintiff requested that his medication be 15 renewed, or that he be given a reason why it had not been renewed. (SSUF 7.) 16 8. On or around August 5, 2005, Plaintiff’s appeal was partially granted at the 17 informal level. Plaintiff was informed that medications can only be ordered by a 18 physician, and nursing staff can only bring to a physician’s attention medical 19 problems. Plaintiff was also informed that if he had not received his medication, he 20 could come to the RN Sick Call line to bring the issue to medical staff’s attention. 21 (SSUF 8.) 22 9. On or around August 11, 2005, Plaintiff appealed to the first level of review. He 23 added that he continued to have problems getting his medication renewed. 24 10. On August 16, 2005, Plaintiff’s appeal was granted at the first level of review. The 25 response stated that pharmacy records showed that Plaintiff’s medications were 26 renewed by Dr. Bhatt on August 12, 2005. The appeal advised Plaintiff to review 27 the refill request slip with helpful information for the next time refills were 28 1 needed. 2 11. Around August 23, 2005, Plaintiff appealed to the second level. Plaintiff’s appeal 3 stated, “I would like to delay time on this 602 until I go to CTC for an eye 4 examination to check exactly how much damage was done thru the 3 month denial of 5 my meds. (eye drops-Timolol.)”. (SSUF 11.) 6 12. As the CMO, Dr. McGuinness was provided Plaintiff’s appeal at the second level to review. On or around September 18, 2005, she responded to Plaintiff’s appeal to the 7 second level. Her response informed Plaintiff that she had reviewed his Unit Health 8 Record and first level of review response. Dr. McGuinness observed that Plaintiff had 9 received his medication. Dr. McGuinness therefore granted the appeal on the grounds 10 that his request to receive medication renewals had been approved. Attached to her 11 response was a copy of Plaintiff’s patient profile, showing that he had received his 12 medication. It was unclear if Plaintiff was seeking any further relief. To the extent that 13 he was, Dr. McGuinness informed him that the appeal process does not allow inmates 14 to add to the “Acts Requested” in the original appeal, and any additional actions 15 requested cannot be considered at this time and must be addressed on a separate 16 CDCR 602 Form. (SSUF 12.) 17 13. Upon reviewing Plaintiff’s medical records, Dr. McGuinness did not have reason to 18 believe that Plaintiff would have further issues receiving refills with his medication. It 19 appeared that Plaintiff had not used the correct procedure to refill his medication; 20 however, once Plaintiff saw Dr. Bhatt, he had his prescription renewed and he 21 received his medication. (SSUF 13.) 14. On or around February 28, 2006, Plaintiff submitted an inmate appeal that was 22 assigned Log No. SATF-E-06-01218. Plaintiff’s appeal stated that he saw Dr. Nguyen 23 on February 8, 2006, and he believed that Dr. Nguyen did not treat him respectfully 24 and ignored pain Plaintiff was feeling in his ribs and chest. Plaintiff’s appeal requested 25 that his medication be renewed and that he sees a doctor to discuss all his medical 26 problems. (SSUF 14.) 27 15. On or around March 26, 2006, Plaintiff’s appeal was partially granted at the informal 28 1 level. Plaintiff was informed that he needed to bring a list up to the clinic window of 2 all of his expired medication. It also indicated that Plaintiff would be seeing a doctor 3 on March 30, 2006, to address any further problems. (SSUF 15.) 4 16. On or around March 30, 2006, Plaintiff appealed to the first level of review. Plaintiff 5 acknowledged that he saw a doctor on March 30, 2006, but he did not have the time or information to discuss all his issues with the doctor. He also stated that it took 4 6 working days to return the appeal after the informal level answer. Finally, Plaintiff 7 stated that his current medication list was sent with the 602 Form, and that his medical 8 needs had not been met (SSUF 16.) 9 17. Around May 9, 2006, Plaintiff’s appeal was granted at the first level of review. The 10 response stated that Plaintiff’s medical file and appeal had been reviewed and given 11 careful consideration. Plaintiff’s Unit Health Record (UHR) showed that Plaintiff’s 12 medical condition was evaluated by Dr. Greene on March 30, 2006, and appropriate 13 treatment was provided including prescription medications. The response noted that 14 pharmacy records showed prescription medications were renewed and dispensed for 15 Plaintiff on April 28, 2006, and May 1, 2006, including: Timolol .25% Opth. Solution 16 5 ml., Artificial Tears 5 ml., Mintox Plus Tabs, and Ibuprofen (Motrin) 800 mg. 17 (SSUF 17.) 18 18. On or around May 11, 2006, Plaintiff appealed to the second level. Plaintiff’s appeal 19 stated that not all of his medical problems were addressed by Dr. Greene, that he 20 wanted to see a specialist for his back, and that he wanted to be re-evaluated to obtain pain medications for his back. (SSUF 18.) 21 19. Dr. McGuinness was provided Plaintiff’s appeal at the second level to review. On 22 or around June 17, 2006, she responded to Plaintiff’s appeal to the second level. 23 Her response informed Plaintiff that she had reviewed his Unit Health Record and 24 first level of review response. Dr. McGuinness observed that Plaintiff had been 25 seen and examined by the Optometry clinic, including Dr. Nguyen, Dr. Schuster, 26 Dr. Greene, and Dr. Salmi. With specific reference to his medication, Plaintiff’s 27 records indicated that his prescription for Timolol .25% Opth. Solution 5 ml., 28 1 Artificial Tears 5 ml., Mintox Plus Tabs, and Ibuprofen (Motrin) 800 mg had been 2 renewed by Dr. Greene. Dr. McGuinness therefore granted the appeal on the 3 grounds that his request to receive medication renewals had been approved and his 4 request to see a doctor to discuss medical issues had been granted. 5 20. Prior to receiving the second level appeals for Appeal Log No. SATFE-06-01218 and 6 Appeal Log No. SATF-E-06-01218, Dr. McGuinness was unaware that Plaintiff had 7 delays with renewing his glaucoma medication in May 2005 or February 2006. 8 21. Dr. McGuinness was not involved in addressing Plaintiff’s appeals at the lower level. 9 22. By the time that Dr. McGuinness received Plaintiff’s appeals at the second level, 10 Plaintiff’s glaucoma medications had already been renewed. Dr. McGuinness 11 therefore believed that Plaintiff’s issue had been resolved. (SSUF 22.) 12 23. Dr. McGuinness has never intended to ignore Plaintiff, and never intended that 13 Plaintiff suffer any undue or unnecessary pain. Her intentions throughout were to 14 ensure that Plaintiff’s inmate appeals were processed within CDCR’s rules and 15 California Code of Regulations title 15, and that Plaintiff received appropriate 16 treatment for his condition. 17 24. Plaintiff does not believe that Dr. McGuinness was his primary care provider and 18 does not know if he ever saw Dr. McGuinness in any capacity, would not 19 recognize her or swear that he had any interaction with her. His only 20 communication with Dr. McGuinness was through the 602 appeal process. (SSUF 21 24-26, 29-30.) 22 25. Plaintiff admits that at the time he submitted Appeal number 05-03102 to the 23 Second Level Appeal on August 23, 2005, he was receiving eye drops. (SSUF 24 32.) 25 26. Plaintiff admits his eye medication Timolol was refilled on or around April 28, 26 2006. (SSUF 33.) 27 27. Plaintiff admits that at the time he submitted Appeal number 06-01218 to the 28 1 Second Level Appeal on May 11, 2006, he was receiving his eye drops. (SSUF 2 34.) 3 B. Deliberate Indifference to Serious Medical Needs 4 1. Standard for Deliberate Indifference to Serious Medical Needs 5 While the Eighth Amendment of the United States Constitution entitles Plaintiff to 6 medical care, the Eighth Amendment is violated only when a prison official acts with deliberate 7 indifference to an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th 8 Cir. 2012), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076, 1082–83 (9th 9 Cir. 2014); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). The two-part test for deliberate 10 indifference requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure 11 to treat a prisoner's condition could result in further significant injury or the ‘unnecessary and 12 wanton infliction of pain,’” and (2) “the defendant's response to the need was deliberately 13 indifferent.” Jett, 439 F.3d at 1096 (citation omitted). 14 A defendant does not act in a deliberately indifferent manner unless the defendant “knows 15 of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 16 837 (1994). The requisite state of mind is one of subjective recklessness, which entails more than 17 ordinary lack of due care. Snow, 681 F.3d at 985. Deliberate indifference may be shown by the 18 denial, delay, or intentional interference with medical treatment or by the way in which medical 19 care is provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). “Deliberate 20 indifference is a high legal standard,” Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1019 (9th 21 Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown where there 22 was “a purposeful act or failure to respond to a prisoner’s pain or possible medical need” and the 23 indifference caused harm. Jett, 439 F.3d at 1096. “Mere delay of medical treatment, without 24 more, is insufficient to state a claim of deliberate medical indifference.” Robinson v. Catlett, 725 25 F.Supp.2d 1203, 1208 (S.D. Cal. July 19, 2012) (quoting Shapley v. Nevada Bd. of State Prison 26 Comm’rs, 766 F.2d 404, 407 (9th Cir.1985)). To state a claim for deliberate indifference arising 27 from a delay in treatment, a prisoner must allege that the delay was harmful, although an 28 1 allegation of substantial harm is not required. McGuckin v. Smith, 974 F.2d 1050, 1060 (9th 2 Cir.1991), overruled on other grounds by, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 3 Cir.1997). 4 In applying this standard, the Ninth Circuit has held that before it can be said that a 5 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be 6 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this 7 cause of action.” Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 8 429 U.S. at 105–06).) “[A] complaint that a physician has been negligent in diagnosing or 9 treating a medical condition does not state a valid claim of medical mistreatment under the Eighth 10 Amendment. Medical malpractice does not become a constitutional violation merely because the 11 victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. Cty. of Kern, 45 F.3d 1310, 12 1316 (9th Cir. 1995). Even gross negligence is insufficient to establish deliberate indifference to 13 serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). 14 “A difference of opinion between a physician and the prisoner—or between medical 15 professionals—concerning what medical care is appropriate does not amount to deliberate 16 indifference.” Snow, 681 F.3d at 987. “To show deliberate indifference, the plaintiff must show 17 that the course of treatment the doctors chose was medically unacceptable under the 18 circumstances and that the defendants chose this course in conscious disregard of an excessive 19 risk to plaintiff’s health.” Id. 20 2. Serious Medical Need 21 Defendant does not dispute that Plaintiff has a serious need. It is undisputed that Plaintiff 22 was diagnosed with glaucoma. “Examples of serious medical needs include [t]he existence of an 23 injury that a reasonable doctor or patient would find important and worthy of comment or 24 treatment; the presence of a medical condition that significantly affects an individual's daily 25 activities; or the existence of chronic and substantial pain.” Lopez v. Smith, 203 F.3d 1122, 1131 26 (9th Cir. 2000) (alteration in original) (citation and internal quotation marks omitted). The 27 evidence shows that Plaintiff was receiving medication to treat glaucoma. Thus, viewing the 28 evidence in the light most favorable to Plaintiff and drawing all reasonable inferences in his 1 favor, a reasonable juror could find that glaucoma is a serious medical need. 2 3. Defendant McGuinness’ Handling of Appeals did not Delay Plaintiff Glaucoma 3 Medication 4 Plaintiff has failed to raise a disputed issue of material fact that Dr. McGuinness was 5 aware of a substantial risk of serious harm from a purported delay in receiving the Timolol 6 medication and that Dr. McGuinness drew that inference. 7 No Direct Care 8 It is undisputed that Dr. McGuinness did not treat Plaintiff. Dr. McGuinness was not 9 Plaintiff’s primary care physician and never saw Plaintiff in that capacity as a physician. (SSUF 10 24.) Plaintiff did not have any direct communication with Dr. McGuinness, and the only 11 communication he had with her was through the 602 appeals process. (SSUF 29, 30.) Thus, 12 Plaintiff’s claim does not arise out of any direct care provided by Dr. McGuinness. Indeed, it is 13 undisputed the Defendant McGuinness’ only involvement with Plaintiff was responding to 14 Plaintiff’s two inmate 602 appeals, and Plaintiff contends that these appeals are how Dr. 15 McGuinness knew of the delay in Plaintiff’s medication. 16 Dr. McGuinness is not liable based upon Supervisor liability 17 In his opposition, Plaintiff argues that Defendant “knew or should have known” the 18 difficulties Plaintiff was experiencing with obtaining his medications. Plaintiff attempts to raise 19 an issue of fact by submitting a Memo dated March 14, 2006 from the Secretary Woodford of 20 California Department of Corrections and Rehabilitation showing that there are systematic 21 problems in CDCR’s medical department and Defendant McGuinness should have known 22 Plaintiff was not receiving his medication. (ECF No. 282 p.3 and p. 9.) Plaintiff also attaches a 23 purported copy of Dr. McGuinness’ “duty statement” setting forth the job responsibilities for the 24 Chief Medical Executive. (ECF No. 282, p. 7.) 25 As a threshold matter, a supervisor is not responsible merely because a grievance/appeal 26 has been submitted for consideration. In order to state a claim against such individuals, plaintiff 27 must demonstrate such supervisor’s own culpable action or inaction in the alleged violation, not 28 simply an awareness of the alleged violation. Green v. Link, No. 219CV1324JAMKJNP, 2019 1 WL 4033884, at *4 (E.D. Cal. Aug. 27, 2019). Plaintiff must demonstrate that each defendant 2 personally participated in the deprivation of their rights. Jones v. Williams, 297 F.3d 930, 934 3 (9th Cir.2002). A supervisor may be held liable only if he or she “participated in or directed the 4 violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 5 1040, 1045 (9th Cir. 1989). 6 Plaintiff’s argument that Defendant McGuinness “should have known” of his medications 7 delay does not raise an issue of fact. Dr. McGuinness cannot be liable solely based on her role as 8 a supervisor of other physicians who were directly caring for Plaintiff. Moreover, Plaintiff does 9 not raise an issue of fact merely by offering the “duty statement” of the Chief Medical Executive 10 or “systematic” medical problems at the institution. Again, Defendant McGuinness cannot be 11 held liable solely for her role as a supervisor of other physicians, and Plaintiff must present facts 12 that Defendant “participated in or directed the violations, or knew of the violations and failed to 13 act to prevent them.” Taylor, 880 F.2d at 1045. 14 Defendant’s “Knowledge” through Plaintiff’s Appeals 15 Plaintiff contends that the grievance/appeals process put Defendant McGuinness on notice 16 that Plaintiff was not timely receiving his medication. 17 Plaintiff filed two appeals that his Timolol medication was not being provided. Defendant 18 McGuinness reviewed both appeals at the second level of review. Plaintiff’s first inmate appeal, 19 filed on July 21, 2005, was assigned Log No. SATF-E-05-03102 in which Plaintiff wanted to 20 renew his medications. Following a response at the first level, Plaintiff appealed on August 23, 21 2005 to the second level, and on September 18, 2005, Defendant McGuinness responded to 22 Plaintiff’s appeal at the second level. By the time the appeal had reached the second level and 23 Defendant McGuinness responded, Plaintiff’s medication had been renewed by Dr. Bhatt, before 24 reaching the second level appeal on August 12, 2005. Dr. Bhatt had refilled Plaintiff’s 25 medication prior to Defendant McGuinness’ involvement. (ECF No. 277-3 p. 15 of 68.) Thus, 26 by the time the appeal reached the second level for Defendant McGuinness’ review, the 27 medication Plaintiff sought to be refilled had already been refilled. 28 Plaintiff’s second appeal, filed on February 28, 2006, was assigned Log No. SATF-E-06- 1 01218, and requested among other things that his medication be renewed. Plaintiff’s second 2 appeal was submitted to the second level around May 11, 2006 to which Defendant McGuinness 3 responded on June 17, 2006. (SSUF 18, 19.) Defendant’s evidence shows that Plaintiff’s 4 medication had been renewed before the second level appeal, on April 28, 2006 by Dr. Greene. 5 The evidence shows that Dr. Greene refilled Plaintiff’s medication prior to Defendant 6 McGuinness’ involvement. (ECF No. 277-3, p.30 of 68.) Thus, by the time the appeal reached 7 the second level for Defendant McGuinness’ review, the medication Plaintiff sought to be refilled 8 had already been refilled. 9 The undisputed evidence shows that in each appeal, Defendant McGuinness reviewed 10 Plaintiff’s health records, the first level response to each appeal, the treating physician’s renewal 11 of medication and verified that his glaucoma medication had been refilled. (SSUF 12, 19.) Once 12 Plaintiff saw Dr. Greene and Dr. Bhatt, Plaintiff’s prescriptions were renewed and he received his 13 medication. Thus, the medication Plaintiff sought had already been refilled by the time 14 McGuiness reviewed the appeals. Accordingly, there is no evidence that Defendant McGuinness 15 delayed his medication. 16 Plaintiff argues that both appeals were in Defendant McGuinness’ possession for 25-30 17 days which gave her plenty of time to investigate Plaintiff’s problems and the “fact that plaintiff 18 filed two (2) appeals, 6 (six) months apart about the same issues, shows that the defendant did 19 nothing to resolve plaintiff’s issues after the first appeal.” (ECF No. 282 p. 3.) 20 Plaintiff, however, cannot hold Defendant McGuinness liable for her supervision of 21 physicians responsible for Plaintiff’s care and for not rectifying those physician’s lapses in his 22 medication. As discussed above, Defendant McGuinness is responsible only for her own conduct. 23 Defendant McGuinness did not cause the lapse in medication or delay refilling the medication. 24 The undisputed evidence shows that upon reviewing Plaintiff’s two appeals and Plaintiff’s 25 medical records, Defendant McGuinness determined the medication had been refilled. 26 Plaintiff has failed to raise a triable issue of fact that defendant “knows of and disregards 27 an excessive risk to inmate health or safety.” See Farmer. By the time Dr. McGuinness knew of 28 Plaintiff’s medication lapse, which was when she reviewed the appeals at the second level, she 1 knew that Plaintiff’s medication had already been refilled. Plaintiff has failed to raise a disputed 2 issue of material fact that Dr. McGuinness was aware of a substantial risk of serious harm from 3 the purported delay/lapse in medication and that Dr. McGuiness drew that inference. 4 C. Qualified Immunity 5 Defendant argues even if she committed constitutional violations, she is entitled to 6 qualified immunity. The defense of qualified immunity protects “government officials...from 7 liability for civil damages insofar as their conduct does not violate clearly established statutory or 8 constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 9 U.S. 800, 818 (1982). A court considering a claim of qualified immunity must determine whether 10 the plaintiff has alleged the deprivation of an actual constitutional right and whether the right was 11 clearly established, such that it would be clear to a reasonable officer that his conduct was 12 unlawful in the situation he confronted. Pearson v. Callahan, 555 U.S. 223, 236 (2009); Saucier v. 13 Katz, 533 U.S. 194, 201 (2001). The evidence must be viewed in the light most favorable to the 14 non-moving party. Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014). 15 Because this Court finds Defendant McGuinness is entitled to summary judgment on the 16 merits of the Eighth Amendment claim, there is no reason to reach the qualified immunity issue in 17 this case. Thus, this is not a case where qualified immunity need be determined. 18 IV. Conclusion and Recommendation 19 Based on the foregoing, IT IS HEREBY RECOMMENDED that: 20 1. Defendant McGuinness’ motion for summary judgment, (ECF No. 277), be 21 GRANTED, and 22 2. Judgment be entered in favor of Defendant and against Plaintiff. 23 These Findings and Recommendations will be submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 25 fourteen (14) days after being served with these Findings and Recommendations, the parties may 26 file written objections with the court. The document should be captioned “Objections to 27 Magistrate Judge's Findings and Recommendations.” The parties are advised that failure to file 28 objections within the specified time may result in the waiver of the “right to challenge the 1 magistrate's factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) ). 3

IT IS SO ORDERED.

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5 Dated: February 18, 2020 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

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