1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 BRIAN BEINLICK., No. 2:17-CV-0824-WBS-DMC 11 Plaintiff, 12 v. FINDINGS AND RECOMMENDATIONS 13 ADAM PACE, et al., 14 Defendants. 15 16 Plaintiff, who is proceeding with retained counsel, brings this civil action. Pending 17 before the Court is Defendant Mulligan-Pfile’s unopposed motion for summary judgment. See 18 ECF No. 75. 19 Plaintiff claims that Defendant was deliberately indifferent to his serious medical 20 needs when she prescribed him fiber tables, sodium docusate, and lactulose instead of psyllium 21 seed powder to treat his irritable bowel syndrome (“IBS”) symptoms. See ECF No. 1, pg. 5, 11. 22 Defendant filed a motion for summary judgment, arguing: (1) she cannot be held liable as an 23 administrative reviewer; (2) she was not deliberately indifferent to Plaintiff’s medical needs; and 24 (3) she is entitled to qualified immunity. See ECF No. 75. For the reasons discussed below, the 25 undersigned finds no genuine dispute as to any material facts and recommends that Defendant’s 26 motion for summary judgment be granted. 27 / / / 28 / / / 1 The Federal Rules of Civil Procedure provide for summary judgment or summary 2 adjudication when “the pleadings, depositions, answers to interrogatories, and admissions on file, 3 together with affidavits, if any, show that there is no genuine issue as to any material fact and that 4 the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The 5 standard for summary judgment and summary adjudication is the same. See Fed. R. Civ. P. 6 56(a), 56(c); see also Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). One of 7 the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. See 8 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under summary judgment practice, the 9 moving party

10 . . . always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, 11 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a 12 genuine issue of material fact.

13 Id., at 323 (quoting former Fed. R. Civ. P. 56(c)); see also Fed. R. Civ. P. 56(c)(1). 14 If the moving party meets its initial responsibility, the burden then shifts to the 15 opposing party to establish that a genuine issue as to any material fact actually does exist. See 16 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 17 establish the existence of this factual dispute, the opposing party may not rely upon the 18 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 19 form of affidavits, and/or admissible discovery material, in support of its contention that the 20 dispute exists. See Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 n.11. The 21 opposing party must demonstrate that the fact in contention is material, i.e., a fact that might 22 affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 23 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th 24 Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could 25 return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 26 (9th Cir. 1987). To demonstrate that an issue is genuine, the opposing party “must do more than 27 simply show that there is some metaphysical doubt as to the material facts . . . . Where the record 28 taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 1 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). It is sufficient that “the 2 claimed factual dispute be shown to require a trier of fact to resolve the parties’ differing versions 3 of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. 4 In resolving the summary judgment motion, the court examines the pleadings, 5 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. 6 See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, see Anderson, 7 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the 8 court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587. 9 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 10 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 11 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 12 1987). Ultimately, “[b]efore the evidence is left to the jury, there is a preliminary question for the 13 judge, not whether there is literally no evidence, but whether there is any upon which a jury could 14 properly proceed to find a verdict for the party producing it, upon whom the onus of proof is 15 imposed.” Anderson, 477 U.S. at 251. 16 17 I. BACKGROUND 18 A. Procedural History 19 Plaintiff Brian Beinlick (“Plaintiff”), a state prisoner, initiated this action by filing 20 a pro se civil rights complaint under 42 U.S.C. § 1983 on April 19, 2017. See ECF No. 1. In his 21 original complaint, Plaintiff alleges that the conduct of five physician defendants violated his 22 right to adequate medical care under the Eighth Amendment. See generally id. On January 5, 23 2022, the Court issued findings and recommendations that summary judgment be granted as to 24 four of the named Defendants based upon the Plaintiff’s failure to exhaust administrative 25 remedies. See ECF No. 61. The Court recommended that the action proceed on Plaintiff's original 26 complaint against Defendant Mulligan-Pfile (“Defendant”). See ECF No. 61. The District Judge 27 adopted the January 5, 2022, findings and recommendations on February 15, 2022. See ECF No. 28 66. On February 28, 2022, Defendant filed the pending motion for summary judgment. See ECF 1 No. 75. Plaintiff did not file an opposition to Defendant’s motion. 2 B. Plaintiff’s Allegations 3 Plaintiff alleges that he was diagnosed with irritable bowel syndrome (“IBS”) in 4 1996 and prescribed psyllium seed powder by a gastroenterologist to manage and prevent his 5 symptoms. See ECF No. 1, pg. 9. On February 22, 2013, Plaintiff alleges that the CDCR refused 6 to refill his prescription for psyllium seed power. See id., pg. 10. According to Plaintiff, on 7 February 27th, 2013, Defendant Mulligan-Pfile reviewed Plaintiff’s administrative grievance and 8 denied his prescription for psyllium powder, instead prescribing sodium docusate, lactulose, and 9 fiber pills to manage his symptoms. See id. According to Plaintiff, Defendant Mulligan-Pfile 10 “refused to treat his irritable bowel syndrome with a medical that was effective despite their 11 knowledge that the emdication [sic] was the only one effective in treating his condition.” Id. 12 Plaintiff claims Defendant’s conduct violated his right to adequate medical care under the Eighth 13 Amendment. See id., pg. 5. 14 15 II. THE PARTIES’ EVIDENCE 16 Defendant's unopposed motion for summary judgment is supported by a statement 17 of Defendant’s Undisputed Facts (“DUF”), and the declarations of Defendant Mulligan-Pfile, 18 Luke Bi, M.D., and James Mathison. See ECF Nos. 75-2, 75-3, 75-4, 75-5. Defendant also relies 19 on the following exhibits: Exhibit 1, an excerpt from the deposition of Plaintiff Brian Beinlick; 20 Exhibit 2, a copy of Plaintiff Brian Beinlick’s Strategic Offender Management System (“SOMS”) 21 inmate records; and Exhibit 3, a printed copy of the Declaration of S. Gates with Exhibit C. See 22 ECF No. 75-3. 23 Plaintiff has not filed an opposition to Defendant’s motion, nor does he otherwise 24 dispute any of Defendant’s evidence. The docket reflects no filings by Plaintiff after Defendant’s 25 motion for summary judgment was filed. 26 / / / 27 / / / 28 / / / 1 Given that Defendant’s motion is unopposed, the facts asserted by Defendant are 2 necessarily undisputed and the Court accepts Defendant’s summary of the relevant facts as 3 follows:

4 Defendant Dr. Mulligan-Pfile has been a state licensed and board- certified physician since 2008. (Defendant’s Undisputed Fact (DUF) 1.) 5 From 2009 to 2015, Defendant worked as a physician at CSP-SOL. (DUF 2.) On February 15, 2013, Defendant was assigned to conduct the first 6 level institutional review of Plaintiff’s inmate health care appeal no. SOL HC 13037467. In this appeal, Plaintiff requested renewal of a prescription 7 for psyllium seed powder. (DUF 3.) As part of her assignment as the appeal reviewer, Defendant carefully reviewed Plaintiff’s medical file, 8 interviewed Plaintiff regarding the appeal on February 27, 2013, and issued the first level institutional response to the appeal on March 27, 9 2013. (DUF 4.) At the time Defendant reviewed Plaintiff’s health care appeal, 10 psyllium seed powder was a non-formulary medication, and as such the prison’s health care policies called for an inmate/patient to have tried 11 formulary alternative medications, and have had these effectively fail before the inmate/patient was prescribed non-formulary medication. (DUF 12 5.) Docusate Sodium Caplets, Fiber Tablets and Lactulose were formulary medications, which in Defendant’s medical opinion may be effective 13 medications in treating symptoms of constipation and IBS, such as those Plaintiff was experiencing. (DUF 6.) It was Defendant’s medical opinion 14 that a course of treatment for Mr. Beinlick to try these medications to manage his symptoms was reasonable and appropriate medical care. (DUF 15 7.) Based on Defendant’s review of Plaintiff’s medical file as the reviewer of his inmate health care appeal, Defendant concluded that Plaintiff had 16 not undergone a course of treatment utilizing these medications and with them having failed in effectively treating his symptoms. (DUF 8.) 17 Defendant’s response to Plaintiff’s appeal was to have him take these medications to help manage his symptoms. (DUF 9.) Defendant’s 18 response to the appeal also stated that although psyllium seed powder was no longer being prescribed, it was available for Plaintiff to purchase in the 19 prison canteen. (DUF 10.) Other than serving as the first level reviewer of Plaintiff’s inmate 20 health care appeal SOL HC 13037467, Defendant had no medical encounters with Plaintiff and no involvement with his medical care or 21 treatment. (DUF 11.) Plaintiff transferred from CSP-SOL to another prison on April 25, 2013. (DUF 12.) 22 Luke C. Bi, M.D. is a state licensed physician who is board certified in gastroenterology. Dr. Bi has been in clinical practice since 23 2006 treating patients for diseases and conditions that affect the esophagus, stomach, small intestine, large intestine (colon), and biliary 24 system, including IBS and constipation. (DUF 13.) Dr. Bi has reviewed Plaintiff’s medical records and the records of the inmate health care appeal 25 for which Dr. Mulligan-Pfile was the first level institutional response reviewer. (DUF 14.) Having done so, it is Dr. Bi’s professional medical 26 opinion that Dr. Mulligan-Pfile’s actions in her response to the appeal were reasonable and appropriate. (DUF 15.) 27 ECF No. 75-1, pgs. 2-4. 28 1 III. DISCUSSION 2 Defendant argues she is entitled to summary judgment because the undisputed 3 facts demonstrate that she did not violate Plaintiff’s rights under the Eighth Amendment. See ECF 4 No. 75-1, pg. 4. Specifically, Defendant argues (1) she cannot be liable for medical deliberate 5 indifference because she acted in an administrative review capacity; (2) she was not deliberately 6 indifferent to Plaintiff’s serious medical needs because Plaintiff’s disagreement with a course of 7 treatment is merely a difference of opinion that does not rise to the level of a constitutional 8 violation; and (3) she is entitled to qualified immunity. See generally ECF No. 75-1. Because the 9 Court finds that the Defendant was not deliberately indifferent to Plaintiff’s medical needs, the 10 Court does not address Defendant’s qualified immunity argument. 11 A. Liability of Administrative Reviewers 12 Defendant argues that she cannot be liable for medical deliberate indifference 13 under Section 1983 because she acted in an administrative review capacity and not as Plaintiff’s 14 care physician. See ECF No, 75-1, pg. 7. Defendant states and Plaintiff does not dispute that 15 Defendant served as the first level reviewer of Plaintiff’s inmate heath care appeal. See ECF No. 16 75-2, pg. 3. However, Defendant’s assertion that a physician acting in an administrative review 17 capacity cannot be held liable for Eighth Amendment violations under 1983 is misguided. 18 Defendant relies on two1 Ninth Circuit cases in support of her proposition that the 19 processing of administrative grievances cannot form the basis of a claim for relief under Section 20 1983. In Mann v. Adams, 855 F.2d 639 (9th Cir.1988), the Ninth Circuit held that a state's 21 unpublished policy statements establishing a grievance procedure did not create a constitutionally 22 protected liberty interest. Further, in Ramirez v. Galaza, the Ninth Circuit held that “inmates lack 23 a separate constitutional entitlement to a specific prison grievance procedure.” 334 F.3d 850, 860 24 (9th Cir.2003) (citing Mann, 855 F.2d at 640). 25 / / / 26 / / / 27 1 While Defendant cites Buckley v. Barlow, 997 F.2d 494 (8th Cir. 1993) as a Ninth 28 Circuit case, it is an Eighth Circuit case. 1 Mann and Ramirez simply held that a Plaintiff has no substantive right to a prison 2 grievance system and that due process claims based on the denial of or interference with a 3 prisoner's access to a prison grievance system are not cognizable. Here, Plaintiff does not state a 4 claim against Defendant solely regarding deficiencies in the grievance process. Plaintiff claims 5 Defendant’s conduct in denying his psyllium seed prescription and prescribing alternative 6 medications violated his Eighth Amendment right to adequate medical care. See ECF No. 1, pg. 7 5, 11. Defendant does not cite any authority suggesting that medical care provided through the 8 administrative appeal process is not subject to the protections afforded by the Eighth Amendment. 9 Accordingly, as a matter of law, Defendant’s status as the first level reviewer of Plaintiff’s inmate 10 health care appeal does not shield her from liability for medical deliberate indifference under 11 Section 1983. 12 B. Deliberate Indifference 13 The treatment a prisoner receives in prison and the conditions under which the 14 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 15 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 16 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts of 17 dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). 18 Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. Chapman, 452 19 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with “food, clothing, 20 shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 21 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when two 22 requirements are met: (1) objectively, the official’s act or omission must be so serious such that it 23 results in the denial of the minimal civilized measure of life’s necessities; and (2) subjectively, 24 the prison official must have acted unnecessarily and wantonly for the purpose of inflicting harm. 25 See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison official must have 26 a “sufficiently culpable mind.” See id. 27 / / / 28 / / / 1 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious 2 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105; 3 see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health 4 needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982). An injury or illness is 5 sufficiently serious if the failure to treat a prisoner’s condition could result in further significant 6 injury or the “. . . unnecessary and wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 7 1059 (9th Cir. 1992); see also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). 8 Factors indicating seriousness are: (1) whether a reasonable doctor would think that the condition 9 is worthy of comment; (2) whether the condition significantly impacts the prisoner’s daily 10 activities; and (3) whether the condition is chronic and accompanied by substantial pain. See 11 Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc). 12 The requirement of deliberate indifference is less stringent in medical needs cases 13 than in other Eighth Amendment contexts because the responsibility to provide inmates with 14 medical care does not generally conflict with competing penological concerns. See McGuckin, 15 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to 16 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989). 17 The complete denial of medical attention may constitute deliberate indifference. See Toussaint v. 18 McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical treatment, or 19 interference with medical treatment, may also constitute deliberate indifference. See Lopez, 203 20 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate that the delay 21 led to further injury. See McGuckin, 974 F.2d at 1060. 22 Negligence in diagnosing or treating a medical condition does not, however, give 23 rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a difference 24 of opinion between the prisoner and medical providers concerning the appropriate course of 25 treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, 90 F.3d 26 330, 332 (9th Cir. 1996). 27 / / / 28 / / / 1 In the instant case, the undisputed facts do not support Plaintiff's claim that 2 Defendant was deliberately indifferent to his serious medical needs. It is undisputed that 3 Defendant chose to prescribe fiber tables, sodium docusate, and lactulose to treat Plaintiff’s IBS 4 and constipation, despite Plaintiff’s request for psyllium seed powder. See ECF No. 75-4, pg. 3. 5 However, “a mere difference of medical opinion...[is] insufficient, as a matter of law, to establish 6 deliberate indifference.” Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (citing Jackson 7 v. McIntosh, 90 F.3d 330, 332 (9th Cir.1996)). Simply showing that a course of treatment proves 8 to be ineffective, without showing that the medical professional's conduct was medically 9 unacceptable under the circumstances and chosen in conscious disregard to Plaintiff's health, does 10 not establish a claim for deliberate indifference. See Nicholson v. Finander, 2014 WL 1407828 11 (C.D. Cal. Apr. 11, 2014) (citing Estelle, 429 U.S. at 105, and Toguchi, 391 F.3d at 1058). 12 Defendant argues, and Plaintiff does not dispute, that it was Defendant Mulligan- 13 Pfile’s medical opinion that prescribing fiber tables, sodium docusate, and lactulose to manage 14 Plaintiff’s symptoms was reasonable and appropriate medical care. See ECF No. 75-4, pg. 3. In 15 support of her argument, Defendant puts forth a written declaration by gastroenterology expert 16 Luke C. Bi, M.D., who indicates that Defendant's decisions were within the range of acceptable 17 treatment options for Plaintiff's condition. See generally ECF No. 75-5. In the declaration, Dr. Bi 18 states that “Docusate Sodium Caplets, Fiber Tablets and Lactulose have been shown to be 19 effective in treatment of constipation and other symptoms of IBS.” Id., pg. 2. Further, Dr. Bi 20 states that “it was not inappropriate for Dr. Mulligan-Pfile to have directed Mr. Beinlick to a trial 21 of the alternative medications, and there subsequently being an effectiveness assessment, before 22 Mr. Beinlick received psyllium seed powder where it was a non-formulary medication under the 23 prison’s health care administration policies.” Id., pg. 3. Plaintiff has not put forth evidence 24 disputing Dr. Bi’s statements in his declaration. 25 Furthermore, the undisputed facts do not support a finding that Defendant 26 prescribed fiber tables, sodium docusate, and lactulose in conscious disregard of an excessive risk 27 to Plaintiff's health. To the contrary, the undisputed evidence establishes that Defendant chose to 28 prescribe alternative medications because Plaintiff’s medical records reflected that he had not 1 taken those medications before, psyllium seed powder was classified as a non-formulary 2 medication, and prison health care policy requires physicians to prescribe alternative formulary 3 medications before prescribing non-formulary medications. See ECF Nos. 75-5, pg. 3; 75-3, pg. 4 38; 75-4, pg. 3. To the extent Plaintiff disagrees with the treatment protocols, such a difference of 5 medical opinion does not give rise to a claim under § 1983. See Sanchez v.Vild, 891 F. 2d 240, 6 242 (9th Cir 1989); see also Jackson, 90 F.3d at 332. 7 Plaintiff fails to provide evidence establishing a genuine dispute of fact as to 8 whether Defendant’s course of treatment was unreasonable, and in conscious disregard of an 9 excessive risk to his health. While Plaintiff himself may be of the opinion that psyllium seed 10 powder was the best treatment option for his condition, the Eighth Amendment does not provide a 11 right to specific treatment. See Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997) (“[The 12 plaintiff] is not entitled to demand specific care). 13 Construing the undisputed evidence in the light most favorable to Plaintiff, the 14 undersigned finds no evidence to raise a triable issue of fact as to whether Defendant was 15 deliberately indifferent to Plaintiff’s medical need when she prescribed fiber tables, sodium 16 docusate, and lactulose instead of psyllium seed powder. Accordingly, the undersigned 17 recommends that Defendant’s motion for summary judgment be granted. 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 IV. CONCLUSION 2 Based on the foregoing, the undersigned recommends that Defendant’s unopposed 3 || motion for summary judgment, ECF No. 75, be granted. 4 These findings and recommendations are submitted to the United States District 5 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 6 || after being served with these findings and recommendations, any party may file written objections 7 || with the court. Responses to objections shall be filed within 14 days after service of objections. 8 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 9 || Ylst, 951 F.2d 1153 (9th Cir. 1991). 10 11 | Dated: June 22, 2023 Ss..c0_,

DENNIS M. COTA

13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1]