1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HANIF S. ABDULLAH, No. 2:19-cv-0804 TLN DB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 DACUYCUY, et al., 15 Defendants. 16

17 18 Plaintiff Hanif S. Abdullah, a former state prisoner, proceeds through counsel with a civil 19 rights action under 42 U.S.C. § 1983. Defendants’ motion for summary judgment is before the 20 court. (ECF No. 52.) This matter was previously taken under submission pursuant to Local Rule 21 230(g). For the following reasons, the undersigned recommends the motion be granted as to 22 plaintiff’s claims against defendant Mutopo and denied as to plaintiff’s claims against defendants 23 Hortizuela and Dacuycuy. 24 I. BACKGROUND 25 Proceeding pro se, plaintiff filed the operative first amended complaint on April 26, 2021. 26 (ECF No. 25.) On June 11, 2021, the court screened the amended complaint pursuant to 28 U.S.C. 27 § 1915A and found it stated cognizable claims under the Eighth Amendment against defendants 28 Dacuycuy, Mutopo, and Hortizuela. (ECF No. 26.) 1 On July 22, 2022, defendants filed the motion for summary judgment presently before the 2 court. (ECF No. 52.) The motion is fully briefed with plaintiff’s opposition and the defendants’ 3 reply. (ECF Nos. 56, 57.) For the following reasons, the undersigned recommends the motion be 4 granted in part and denied in part. 5 II. LEGAL STANDARD 6 Summary judgment is appropriate when the moving party shows there is “no genuine 7 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 8 Civ. P. 56(a). In order to obtain summary judgment, “[t]he moving party initially bears the burden 9 of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 10 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The 11 moving party may accomplish this by “citing to particular parts of materials in the record, 12 including depositions, documents, electronically stored information, affidavits or declarations, 13 stipulations (including those made for purposes of the motion only), admission, interrogatory 14 answers, or other materials” or by showing that such materials “do not establish the absence or 15 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 16 support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). 17 “Where the non-moving party bears the burden of proof at trial, the moving party need 18 only prove that there is an absence of evidence to support the non-moving party’s case.” Oracle 19 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 20 Summary judgment should be entered “after adequate time for discovery and upon motion, 21 against a party who fails to make a showing sufficient to establish the existence of an element 22 essential to that party’s case, and on which that party will bear the burden of proof at trial.” 23 Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the 24 nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. 25 If the moving party meets its initial responsibility, the burden then shifts to the opposing 26 party to establish that a genuine issue as to any material fact does exist. Matsushita Elec. Indus. 27 Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the existence 28 of this factual dispute, the opposing party may not rely upon the allegations or denials of its 1 pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 2 admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ. P. 3 56(c)(1); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in 4 contention is material, i.e., a fact “that might affect the outcome of the suit under the governing 5 law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific 6 Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., 7 “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” 8 Anderson, 447 U.S. at 248. 9 In the endeavor to establish the existence of a factual dispute, the opposing party need not 10 establish a material issue of fact conclusively in its favor. It is sufficient that “‘the claimed factual 11 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 12 trial.’” T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 13 253, 288-89 (1968)). Thus, the “purpose of summary judgment is to pierce the pleadings and to 14 assess the proof in order to see whether there is a genuine need for trial.” Matsushita, 475 U.S. at 15 587 (citation and internal quotation marks omitted). 16 “In evaluating the evidence to determine whether there is a genuine issue of fact, [the 17 court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls 18 v. Central Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is 19 the opposing party’s obligation to produce a factual predicate from which the inference may be 20 drawn. Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to 21 demonstrate a genuine issue, the opposing party “must do more than simply show that there is 22 some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations 23 omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the 24 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank, 391 25 U.S. at 289). 26 III. RELEVANT FACTS 27 Plaintiff was discharged from Sonoma Valley Hospital (“SVH”) on July 18, 2018, having 28 had a right knee replacement surgery two days prior. (ECF No. 56-3, Statement of Undisputed 1 Facts (“SUF”) 1.) Dr. Brown’s discharge orders stated, “patient may shower with a 2 waterproof bandage on.” (Id.) Dr. Brown’s discharge orders additionally stated, “Leave bandage 3 on for two weeks and it may be removed.” (Id.) 4 At all relevant times, defendants were employed by the California Department of 5 Corrections and Rehabilitation, working as registered nurses at California Health Care Facility 6 (“CHCF”). (ECF No. 56-3, SUF 47.) 7 When plaintiff returned to CHCF from SVH on July 18, 2018, defendant Mutopo 8 completed plaintiff’s admission assessment. (ECF No. 56-3, SUF 2.) Mutopo took plaintiff’s vital 9 signs and noted the dressing on the incision site was clean, dry, and intact. (Id.) 10 On July 19, 2018, plaintiff was seen by defendants Hortizuela and Mutopo, who noted 11 plaintiff’s dressing was clean, dry, and intact, with swelling at the surgical site. (ECF No. 56-3, 12 SUF 3, 5.) CHCR physician, A. Dredar, noted plaintiff’s knee showed moderate swelling with 13 generalized mild tenderness, a large vertical incision scar, and that the dressing clean, dry, and 14 intact. (Id., SUF 4.) 15 From July 19, 2018, to July 30, 2018, defendants provided post-operative care for 16 plaintiff’s knee, noting on each occasion that plaintiff’s original dressing was clean, dry, and 17 intact. (ECF No. 56-3, SUF 6-21.) According to plaintiff’s sworn declaration, from July 19, 2018, 18 to July 30, 2018, defendant Hortizuela used plastic garbage bags and tape to cover the original 19 surgical dressing that Dr. Brown put on plaintiff’s right knee before plaintiff showered.1 (ECF 20 No. 56-2, ¶¶ 4, 7-9, 11, 12, 15.) 21 According to plaintiff’s sworn declaration, Dr. Son removed Dr. Brown’s original surgical 22 dressing on July 30, 2018. (ECF No. 56-3, SUF 22.) This was approximately two weeks after the 23 date of Dr. Brown’s discharge orders, which had stated “Leave bandage on for two weeks and it 24 may be removed.” (Id.) Plaintiff expressed concern about the pain he was having in his right knee 25

1 Paragraph 4 of plaintiff’s sworn declaration indicates that from July 19, 2018, to July 30, 2018, 26 “Defendants” used plastic garbage bags and tape to cover the original surgical dressing that Dr. 27 Brown had put on plaintiff’s right knee before he showered. (ECF No. 56-2, ¶ 4.) However, plaintiff offers specific evidence for this claim only as to defendant Hortizuela. (See id., ¶¶ 7-9, 28 11, 12, 15.) 1 and that it was red in color; Dr. Son responded that this was part of the healing process. (Id.) 2 According to plaintiff, one of the defendants put a new dressing on plaintiff’s right knee after the 3 visit with Dr. Son. (Id.) 4 Also on July 30, 2018, plaintiff was seen by CHCF physician Dr. Monivirin. (ECF No. 5 56-3, SUF 22.) According to the medical records, which are disputed in part by plaintiff, Dr. 6 Monivirin assessed plaintiff’s dressing as in place, no redness of skin, no discharge, and no leg 7 swelling. (Id.) Under plaintiff’s evidence, as set forth above, the original dressing had already 8 been removed by Dr. Son. (Id.) 9 On July 31, 2018, defendant Dacuycuy provided post-operative care for plaintiff’s knee. 10 Under defendants’ evidence, disputed in part by plaintiff, Dacuycuy noted plaintiff’s dressing was 11 clean, dry, and intact. (ECF No. 56-3, SUF 24.) According to plaintiff’s sworn declaration, 12 defendant Dacuycuy removed plaintiff’s dressing prior to plaintiff taking a shower and 13 photographed and measured the surgical incision on plaintiff’s right knee. (Id.) Plaintiff expressed 14 concern about pain in his right knee and that the surgical incision had dehisced (split open). (Id.) 15 Dacuycuy told plaintiff to wash his right knee with soap and water to keep it clean. (Id.) After 16 plaintiff finished showering, Dacuycuy put a new dressing on plaintiff’s right knee. (Id.) 17 On August 1, 2018, defendant Hortizuela provided post-operative care for plaintiff’s knee. 18 Under defendants’ evidence, Hortizuela noted plaintiff’s dressing was clean, dry, and intact, with 19 no exudate. (ECF No. 56-3, SUF 25.) According to plaintiff’s sworn declaration, Hortizuela 20 removed the dressing prior to plaintiff taking a shower and covered the right knee with a garbage 21 bag and tape in a manner such that the garbage bag made contact with the dehisced surgical 22 wound. (Id.) Hortizuela put a new dressing on plaintiff’s right knee after plaintiff finished 23 showering. (Id.) 24 Also on August 1, 2018, defendant Mutopo noted plaintiff’s dressing was clean, dry, and 25 intact, with no exudate. (ECF No. 56-3, SUF 26.) According to plaintiff, this was after the 26 dressing was changed by defendant Hortizuela in the morning after plaintiff took his shower. (Id.) 27 On August 2, 2018, defendant Hortizuela provided post-operative care for plaintiff’s knee. 28 Under defendants’ evidence, Hortizuela noted plaintiff’s dressing was clean, dry, and intact, with 1 no exudate. (ECF No. 56-2, SUF 27.) According to plaintiff, he expressed concern about the pain 2 he was having in his right knee and that the surgical incision had dehisced. (Id.) Hortizuela 3 removed the dressing prior to plaintiff taking a shower and covered plaintiff’s right knee with a 4 garbage bag and tape for his shower, such that the garbage bag made contact with the dehisced 5 surgical wound. (Id.) Hortizuela put a new dressing on plaintiff’s right knee after plaintiff 6 finished showering. (Id.) 7 On August 3, 2018, defendant Mutopo provided post-operative care for plaintiff’s knee. 8 (ECF No. 56-3, SUF 28.) According to plaintiff’s sworn declaration, Mutopo removed the 9 dressing, photographed and measured the surgical incision on plaintiff’s right knee, and put a new 10 dressing on plaintiff’s right knee after photographing and measuring it. (Id.) Under plaintiff’s 11 evidence, he expressed concern to Mutopo about the pain he was having in his right knee and that 12 the surgical incision had dehisced. (Id.) 13 On August 4, August 5, August 6, August 7, and August 8, 2018, according to plaintiff’s 14 sworn declaration, plaintiff received post-operative knee care from defendants Hortizuela and 15 Dacuycuy which is not reflected in the medical records. (ECF No. 56-3, SUF 38.) Specifically, on 16 August 4, August 5, and August 8, plaintiff expressed concern to defendant Hortizuela that the 17 surgical incision had dehisced, that there was yellow drainage and blood on the dressings, and 18 that he was experiencing increased pain in his right knee. (Id.; see also ECF No. 56-2, ¶¶ 11-15.) 19 On August 6 and August 7, plaintiff expressed the same concerns to defendant Dacuycuy. (Id.) 20 Plaintiff’s medical records contain do not contain records of these interactions. 21 According to plaintiff’s sworn declaration, on August 3, August 4, August 5, and August 22 8, 2018, defendant Hortizuela removed the dressing on plaintiff’s right knee before he took a 23 shower and covered his right knee with a plastic garbage bag and tape in such a manner that the 24 garbage bag made contact with the dehisced surgical wound. (ECF No. 56-2, ¶¶ 7-9, 11, 12, 15.) 25 After plaintiff finished showering, Hortizuela put a new dressing on his right knee. (Id.) 26 On August 8, 2018, CHCR physician Dr. Dredar saw plaintiff. (ECF No. 56-2, SUF 29.) 27 Under defendant’s evidence, which is disputed by plaintiff, Dr. Dredar noted plaintiff’s incision 28 was healing well and approved removal of the original dressing. (Id.) Dr. Dredar noted plaintiff 1 denied any drainage or redness and said he was feeling well with no concerns. (Id.) Dr. Dredar 2 noted the dressing looked clean and no yellow drainage on the dressing. (Id.) According to 3 plaintiff’s sworn declaration, in contrast, plaintiff expressed concern to Dr. Dredar about (1) the 4 increased pain he was having in his right knee, (2) the yellow drainage and blood on the dressing 5 before it had been changed in the morning by defendant Hortizuela, and (3) the surgical incision 6 having dehisced. (Id.) 7 On August 9, August 10, and August 11, 2018, according to plaintiff’s sworn declaration, 8 plaintiff received post-operative knee care from defendant Hortizuela not reflected in the medical 9 records. (ECF No. 56-3, SUF 38; see also ECF No. 56-2, ¶¶ 17-19.) On each of these occasions, 10 plaintiff expressed concern to Hortizuela about (1) the increased pain he was having in his right 11 knee, (2) the yellow drainage and blood on the dressing, and (3) that the surgical incision had 12 dehisced. (ECF No. 56-2, ¶¶ 17-19.) On August 10, 2018, according to plaintiff, Hortizuela 13 photographed and measured the surgical incision on his right knee. (ECF No. 56-2, ¶ 18.) No 14 medical records exist of the August 9, August 10, or August 11, 2018 interactions between 15 plaintiff and defendant Hortizuela. 16 On August 11, 2018, plaintiff was seen by defendant Mutopo, who noted plaintiff’s 17 surgical incision site had dehisced at the upper part and had serosanguinous drainage. (ECF No. 18 56-3, SUF 30.) Mutopo sent a message to Dr. Dredar noting the conditions and indicating that 19 nursing had been cleaning up the site and applying sterile dressing. (Id.) 20 On August 12, 2018, plaintiff was seen by nurse S. Cuevas, who saw plaintiff and noted 21 seosanguinous drainage at the incision site, skin warm to the touch, swelling, and slight 22 dehiscence. (ECF No. 56-3, SUF 31.) Plaintiff reported increasing pain. (Id.) The incision was 23 cleaned and a dressing was applied. (Id.) 24 Also on August 12, 2018, plaintiff reported knee pain and drainage to defendant 25 Hortizuela. (ECF No. 56-3, SUF 32.) Hortizuela noted swelling and drainage, cleaned the site 26 with sterile water, and applied a dressing. (Id.) 27 Also on August 12, 2018, plaintiff was seen by CHCF physician Dr. Atienza, who noted 28 the right knee incision scar having dehiscence, not septic-looking, a yellowish stain on the gauze, 1 swelling, skin warm to the touch, and no effusion. (ECF No. 56-3, SUF 33.) With a treatment 2 plan to rule out a post-operative wound infection, Dr. Atienza ordered an antibiotic, wound 3 culture, blood culture, knee x-ray and other lab work. (Id.) 4 On August 13, 2018, defendant Dacuycuy and another nurse changed plaintiff’s dressing. 5 (ECF No. 56-3, SUF 35.) They noted the dehisced area of the incision site with yellowish tissue 6 and yellowish drainage on the old dressing, no foul odor, skin warm to touch, swelling, but no 7 redness. (Id.) They cleaned the wound with an antibiotic soap and covered it with a dry dressing. 8 (Id.) 9 Also on August 13, 2018, plaintiff was seen via “telemed” video conferencing by Dr. 10 Brown, the surgeon at SVH who had performed the knee replacement. (ECF No. 56-3, SUF 36.) 11 Dr. Brown recommended that plaintiff be seen by his CHCF physician and for the physician to 12 call him. (Id.) Dr. Brown expected that plaintiff would be transferred to SVH for further 13 evaluation and treatment. (Id.) A consultation note indicates the dehiscence in the wound, 14 opening, and drainage had been going on for a week in plaintiff’s knee. (ECF No. 56-1 at 29, 15 Consultation Note dated August 14, 2018.) 16 Also on August 13, 2018, plaintiff was seen by CHCF physician, Dr. Son. (ECF No. 56-3, 17 SUF 37.) Dr. Son called Dr. Brown, and plaintiff was transferred to SVH due to fever, low blood 18 pressure, tachycardia and dehiscence of his incision site with drainage. (Id.) 19 IV. DISCUSSION 20 Defendants move for summary judgment, arguing (1) they were not deliberately different 21 to plaintiff’s serious medical needs; (2) they are not liable for negligence; (3) there is no showing 22 of causation; and (4) they are entitled to qualified immunity for the deliberate indifference claim. 23 (ECF No. 52-1 at 2.)2 Under the evidence and argument in defendants’ motion, plaintiff’s knee 24 bandage was noted to be clean, dry, and intact each time they saw him, through the time that Dr. 25 Dredar ordered that the hospital-applied bandage could be removed on August 8, 2018. (ECF No. 26 57 at 2.) According to defendants, they had no interactions with plaintiff from August 3, 2018, 27 2 The court references the page numbers assigned by the CM/ECF system where different from 28 the original pagination. 1 until August 11, 2018, when defendant Mutopo noted in plaintiff’s medical records that the 2 surgical incision had dehisced. (ECF No. 52-1 at 8.) 3 In opposition to the motion for summary judgment, plaintiff argues the use of plastic 4 garbage bags to cover his surgical wound before he took a shower, instead of sterile medical 5 grade bandages, likely caused or increased his risk of developing a post-surgical infection. (ECF 6 No. 56 at 11.) Plaintiff argues defendants deliberately ignored his concerns about the pain, yellow 7 drainage, blood, and that his surgical incision had dehisced when his right knee became infected. 8 (Id.) Plaintiff argues defendants failed to maintain timely and accurate patient records, including 9 digital images and measurements of his wound between August 3 and August 10, 2018. (Id. at 10 12.) Plaintiff argues defendants violated the standard of care for nurses at CHCF, and were 11 deliberately indifferent, when they stopped taking medical notes, or, in the alternative, when they 12 subsequently concealed the records. (Id. at 11.) 13 A. Objections to Evidence 14 1. Plaintiff’s Declaration 15 Defendants argue plaintiff’s declaration asserts matters not supported by, or contrary to, 16 his medical records. (ECF No. 57 at 3.) Defendants contend the matters stated are also contrary to 17 plaintiff’s deposition testimony in which he did not describe all the matters presented in his 18 declaration when asked to identify all interactions with defendants. (Id.) Defendants argue the 19 court should disregard the matters stated in plaintiff’s self-serving declaration where his account 20 contradicts the medical records and his deposition testimony. (Id. at 3-4.) 21 The court may disregard a self-serving declaration or portion thereof if, for example, it is 22 based only on speculation or conclusions. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 23 984 (9th Cir. 2007). Here, plaintiff’s declaration contains factual statements based on his claimed 24 personal knowledge about what he informed the defendants. Plaintiff’s declaration is competent 25 evidence of what he informed the defendants, and when. See Nigro v. Sears, Roebuck and Co., 26 784 F.3d 495, 497 (9th Cir. 2015) (district court may not disregard evidence at the summary 27 judgment stage solely based on its self-serving nature). 28 //// 1 2. Defendant’s Use of Expert Opinion 2 Plaintiff argues the court should strike or disregard the defendants’ use of expert opinion 3 in the motion for summary judgment because defendants objected to production of expert reports 4 in discovery as premature. (ECF No. 56 at 13.) Specifically, defendants objected that plaintiff’s 5 request prematurely sought expert discovery before the deadline for expert disclosures. (Id.; see 6 also 56-1 at 67.) 7 The court has not issued an order setting a trial date or setting a date for the disclosure of 8 expert witnesses. Unless the court orders otherwise, disclosures must be made 90 days before the 9 date set for trial. Fed. R. Civ. P. 26(a)(2)(D)(i). Defendants had no obligation to obtain and 10 produce the requested reports. See, e.g., PacifiCorp v. Nw. Pipeline GP, No. 3:10-CV-00099-PK, 11 2013 WL 12433263, at *5 (D. Or. Feb. 8, 2013) (denying motion to compel premature production 12 of expert reports). Accordingly, there is no basis to strike or disregard defendants’ use of expert 13 opinion. 14 B. Eighth Amendment Deliberate Indifference 15 1. Applicable Law 16 The Eighth Amendment prohibits prison officials from “intentionally denying or delaying 17 access to medical care or intentionally interfering with the treatment once prescribed.” Estelle v. 18 Gamble, 429 U.S. 97, 104-05 (1976). To prove that any defendant violated this Eighth 19 Amendment right, plaintiff must show that (1) he had an objectively serious medical need, (2) 20 defendant was deliberately indifferent to that need, and (3) defendant’s purposeful act (or failure 21 to act) was the actual and proximate cause of plaintiff’s claimed injuries. See Farmer v. Brennan, 22 511 U.S. 825, 834 (1994); Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 & 1081 23 (9th Cir. 2013); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Plaintiff must be able to 24 show that a defendant was subjectively aware of the risk of serious harm. Toguchi v. Chung, 391 25 F.3d 1051, 1057 (9th Cir. 2004). Subjective awareness “may be shown by circumstantial evidence 26 where the facts are sufficient to demonstrate that a defendant actually knew of a risk of harm.” 27 Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir. 2003). 28 //// 1 2. Discussion 2 It is undisputed that plaintiff had a serious medical issue during the relevant time under 3 the first prong of Farmer, 511 U.S. at 825. The focus of the court’s inquiry is whether there is 4 triable issue of material fact that any defendant was deliberately indifferent. The court takes an 5 individualized approach in determining whether any defendant’s alleged conduct caused a 6 constitutional deprivation. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). 7 In Jett, 439 F.3d 1091, the Ninth Circuit held that a failure to send an inmate back to the 8 specialist for follow-up appointment constituted deliberate indifference. Citing Jett, plaintiff 9 argues the defendants unconstitutionally delayed medically necessary and urgent care. (ECF No. 10 56 at 17-18.) Specifically, defendants “ignored plaintiff’s concerns and complaints concerning the 11 pain he was experiencing in his right knee, the yellow drainage and blood that was saturating his 12 dressing, and his concern that the surgical incision had dehisced.” (Id. at 18.) 13 a. Defendant Dacuycuy 14 Under plaintiff’s evidence, he first expressed concern to defendant Dacuycuy that his 15 surgical incision had dehisced on July 31, 2018. Plaintiff had further interactions with defendant 16 Dacuycuy on August 6 and August 7, 2018, again informing Dacuycuy on both occasions he was 17 concerned because the surgical incision wad dehisced. 18 A mere difference of opinion between plaintiff and a defendant does not, by itself, create a 19 genuine issue of fact as to whether immediate treatment was required. Toguchi, 391 F.3d at 1058- 20 60. However, the court draws all reasonable inferences supported by the evidence in favor of 21 plaintiff, the non-moving party. T.W. Elec. Serv., Inc., 809 F.2d at 631. Plaintiff’s consultation 22 notes dated August 14, 2018 indicates dehiscence in the wound, opening, and drainage had been 23 going on for a week in plaintiff’s knee. Plaintiff’s declaration is competent evidence that he 24 expressed concern that his surgical wound was dehisced to defendant Dacuycuy on July 31, 25 August 6, and August 7, 2018. Plaintiff also reported increasing pain and yellow drainage and 26 blood on the dressings on August 6 and August 7. There are no medical records of these 27 interactions. 28 //// 1 The parties’ factual disputes about the July 31, August 6, and August 7 encounters 2 between defendant Dacuycuy and plaintiff prevent summary judgment. A reasonable jury 3 crediting plaintiff’s version of the events could find that Dacuycuy knew of the harm to plaintiff 4 in delaying proper treatment for plaintiff’s dehisced surgical wound and deliberately failed to 5 consider plaintiff’s complaints or acted intentionally to delay or deny access to necessary medical 6 care, causing the harm suffered. Therefore, defendant Dacuycuy is not entitled to summary 7 judgment. See Estelle, 429 U.S. at 104. 8 b. Defendant Hortizuela 9 Defendant Hortizuela is also not entitled to summary judgment. Under plaintiff’s 10 evidence, Hortizuela provided plaintiff post-operative care on multiple occasions between August 11 1 and August 12, 2018. On August 2, August 4, August 5, August 8, August 9, August 10, and 12 August 11, plaintiff informed Hortizuela he was concerned about pain in his knee and that his 13 surgical incision had dehisced. On August 4, August 5, August 8, August 9, August 10, and 14 August 11, 2018, plaintiff also informed Hortizuela he was experiencing increasing pain and that 15 there was yellow drainage and blood on the dressings. On August 3, 2018, and multiple 16 subsequent occasions during this time, Hortizuela applied a garbage bag and tape to plaintiff’s 17 knee for his shower, such that the garbage bag made direct contact with the dehisced surgical 18 wound. A reasonable jury crediting plaintiff’s version of the events could find Hortizuela’s 19 alleged acts and omissions demonstrate deliberated indifference to a risk of harm of which 20 Hortizuela was subjectively aware. See McGuckin v. Smith, 974 F.2d 1050, 1060-61 (noting a 21 repeated failure to treat an inmate properly or a single, egregious failure may strongly suggest a 22 defendant’s actions were motivated by deliberate indifference). 23 c. Defendant Mutopo 24 The parties agree that defendant Mutopo assessed plaintiff’s knee on August 1, August 3, 25 and August 11, 2018. Plaintiff’s medical records reflect these interactions. 26 On August 1, 2018, defendant Mutopo noted plaintiff’s dressing was clean, dry, and 27 intact, with no exudate. According to plaintiff, this was after the dressing was changed by 28 defendant Hortizuela in the morning after plaintiff took his shower. (Id.) Plaintiff does not claim 1 to have informed defendant Mutopo of any pain, dehiscence, or other issues with his knee on 2 August 1. On August 11, 2018, Mutopo noted the surgical incision had dehisced and sent a 3 message to Dr. Dredar regarding the conditions. Plaintiff was seen by a doctor the next day, on 4 August 12, 2018. There is nothing about the August 1 or August 12 interactions from which the 5 court could infer that Mutopo chose a course of treatment that “medically unacceptable under the 6 circumstances” and which was chosen in “conscious disregard of an excessive risk to [plaintiff’s] 7 health.” Toguchi, 391 F.3d at 1058 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 8 1996)). 9 Under plaintiff’s evidence, he also informed defendant Mutopo he was concerned about 10 pain in his knee and that his surgical incision had dehisced on August 3, 2018. The record of the 11 August 3 encounter does not reflect this concern. Under plaintiff’s evidence, this interaction took 12 place three days after plaintiff expressed concern expressed concern for the first time that the 13 wound had dehisced, and about 11 days prior to the date of a consultation note indicating 14 dehiscence in the wound, opening, and drainage had been going on for a week in plaintiff’s knee. 15 Under plaintiff’s evidence, Mutopo photographed and measured the wound on August 3, 2018, 16 but the photographs were not later found in the medical records.3 17 In light of plaintiff’s declaration, the court will not assume that no sign of dehiscence was 18 present on August 3, 2018. However, plaintiff does not claim he notified Mutopo of yellow 19 drainage or blood, or that there were any other circumstances present making it sufficiently 20 obvious that he needed medical care for his surgical wound that was not provided. Plaintiff’s 21 evidence pertaining to the August 3, 2018, encounter falls short of plausibly suggesting Mutopo 22 deliberately chose a course of treatment that was medically unacceptable under the circumstances 23 and that the choice was made in conscious disregard of an excessive risk to plaintiff’s health. See 24 Toguchi, 391 F.3d at 1058. Instead, plaintiff’s evidence plausibly supports a conclusion that 25 Mutopo might have provided, at most, negligent care on August 3, which does not support a 26 claim under the Eighth Amendment. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 27 3 Neither were the photographs allegedly taken by defendant Dacuycuy on July, 31, 2018, or by 28 defendant Hortizuela on August 10, 2018, found in plaintiff’s medical records. 1 1990) (mere malpractice, or even gross negligence, does not rise to the level of a constitutional 2 violation). Summary judgment on the Eighth Amendment claim should be entered in defendant 3 Mutopo’s favor. 4 C. Qualified Immunity 5 Defendants argue they are entitled to qualified immunity because the actions they took 6 were not clearly unconstitutional. (ECF No. 52-1 at 21.) They argue no judicial case decision 7 clearly establishes that the Eighth Amendment is violated when a medical professional acts as 8 defendants did in caring for plaintiff under the events that are the subject of this action. (Id.) 9 Qualified immunity applies when an official’s conduct does not violate clearly established 10 statutory or constitutional rights of which a reasonable person would have known. District of 11 Columbia v. Wesby, 138 S. Ct. 577, 589 (2018); White v. Pauly, 137 S. Ct. 548, 551 (2017). 12 “Clearly established” means the statutory or constitutional question was “beyond debate” such 13 that every reasonable official would understand that what he is doing is unlawful. See Wesby, 138 14 S. Ct. at 589; Vos v. City of Newport Beach, 892 F.3d 1024, 1035 (9th Cir. 2018). Whether a 15 constitutional right was violated is generally a question of fact for the jury, but whether a right 16 was clearly established is a question of law for the court. Morales v. Fry, 873 F.3d 817, 823 (9th 17 Cir. 2017). 18 To be “clearly established,” a rule must be dictated by controlling authority or a robust 19 consensus of cases of persuasive authority. Wesby, 138 S. Ct. at 577; Vos, 892 F.3d at 1035; see 20 also Perez v. City of Roseville, 882 F.3d 843, 856-57 (9th Cir. 2018) (Ninth Circuit precedent is 21 sufficient to meet the “clearly established” prong of qualified immunity). A case “directly on 22 point” is not required. Wesby, 138 S. Ct. at 577; Vos, 892 F.3d at 1035. Nonetheless, courts must 23 define the law with a “high degree of specificity” when applying qualified immunity. Wesby, 138 24 S. Ct. at 590. The key question is “whether the violative nature of particular conduct is clearly 25 established” in the specific context of the case. Vos, 892 F.3d at 1035. 26 Defendants’ qualified immunity arguments are unavailing in light of the disputed issues of 27 material fact as to whether defendants Hortizuela and Dacuycuy violated plaintiff’s rights under 28 the Eighth Amendment. These disputed issues of fact preclude granting summary judgment on an 1 assertion of qualified immunity. Tennison v. City and Cnty. of S.F., 570 F.3d 1078, 1095 (9th 2 Cir. 2009). Defendants’ argument for qualified immunity relies on their own version of the facts, 3 some of which are both material and disputed by plaintiff. The court cannot at this time conclude 4 as a matter of law that defendants are entitled to qualified immunity. See Wilkins v. City of 5 Oakland, 350 F.3d 949, 956 (9th Cir. 2003) (“[w]here the officers’ entitlement to qualified 6 immunity depends on the resolution of disputed issues of fact in their favor, and against the non- 7 moving party, summary judgment is not appropriate”). 8 At the relevant time, it was clearly established that prisoners have a right to medical care. 9 Estelle, 429 U.S. at 104-05. The law prohibiting an intentional denial or delay in medical 10 treatment was also clearly established. Id.; Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002) 11 (by 1995 it was “clearly established that the officers could not intentionally deny or delay access 12 to medical care”). Drawing all reasonable inferences in favor of the non-movant, as the court is 13 required to do at this stage, T.W. Elec. Serv., Inc., 809 F.2d at 631, defendants Hortizuela and 14 Dacuycuy have not established as a matter of law that they did not violate clearly established law. 15 D. State Law Claims 16 1. Negligence and the Standard of Care 17 Under California law, to succeed on a medical malpractice claim, a plaintiff must 18 establish: “(1) the duty of the professional to use such skill, prudence, and diligence as other 19 members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a 20 proximate causal connection between the negligent conduct and the resulting injury; and (4) 21 actual loss or damage resulting from the professional’s negligence.” Hanson v. Grode, 76 22 Cal.App.4th 601, 606 (1999) (quoting Budd v. Nixen, 6 Cal.3d 195, 200 (1971)). “The standard 23 of care in a medical malpractice case requires that medical service providers exercise that degree 24 of skill, knowledge and care ordinarily possessed and exercised by members of their profession 25 under similar circumstances.” Barris v. County of Los Angeles, 20 Cal.4th 101, 108 n. 1 (1999). 26 Except where the type of conduct required by the particular circumstances is within the 27 common knowledge of laymen, the standard of care can only be proven by expert testimony. 28 Hutchinson v. U.S., 838 F.2d 390, 392 (9th Cir. 1988). Thus, “[w]hen a defendant moves for 1 summary judgment and supports his motion with expert declarations that his conduct fell within 2 the community standard of care, he is entitled to summary judgment unless the plaintiff comes 3 forward with conflicting expert evidence.” Id. 4 Here, defendants’ expert reviewed plaintiff’s medical records and opined that defendants 5 Dacuycuy, Hortizuela, and Mutopo acted within the nursing standards of care in their care of 6 plaintiff from July 18, 2018, through August 13, 2018. (ECF No. 52-6, ¶ 45.) However, 7 defendants’ expert bases the relevant opinions on defendants’ construction of the facts which has 8 been disputed by plaintiff. Specifically, defendants’ expert opinion does not consider plaintiff’s 9 evidence that he received daily post-operative surgical care from defendants Hortizuela and 10 Dacuycuy between August 3, 2018, and August 10, 2108, informing the defendant providing care 11 each time that he was concerned that his surgical wound had dehisced, and informing them of 12 increasing pain, yellow drainage and blood on the dressing. These material disputes of fact are 13 capable of resolution through lay testimony. See Washington v. Yaplee, No. 1:20-CV-01356- 14 EPG-PC, 2022 WL 7690478, at *9 (E.D. Cal. Oct. 13, 2022) (“[T]he relevant dispute is one of 15 fact that can be resolved with lay testimony—i.e., whether Plaintiff had an infection that 16 Defendant in fact recognized—rather than with expert testimony.”). On the present record, 17 plaintiff’s negligence claims against defendants Dacuycuy and Hortizuela do not fail as a matter 18 of law for lack of expert testimony regarding the standard of care. 19 As to defendant Mutopo, the material disputes of fact are not capable of resolution 20 through lay testimony. Unless the situation is one in which common knowledge affords a basis 21 for finding negligence, medical malpractice cases require expert testimony to establish the 22 standard of care. See Hutchinson, 838 F.2d at 392. Plaintiff has not submitted expert testimony 23 establishing the standard of care for defendant Mutopo’s interactions with plaintiff. To the extent 24 plaintiff had the burden to show Mutopo’s treatment decision was “such a substantial departure 25 from accepted professional judgment, practice, or standards as to demonstrate that the person 26 responsible actually did not base the decision on such a judgment,” Youngberg v. Romeo, 457 27 U.S. 307, 321–23 (1982), he has not met that burden. Accordingly, defendant Mutopo is entitled 28 to summary judgment as to plaintiff’s negligence claim. 1 2. California Government Code § 845.6 2 Defendants argue they are immune from liability for any negligent failure to furnish or 3 obtain medical care for plaintiff under California Government Code Section 845.6.4 (ECF No. 52- 4 1 at 17.) That section provides: 5 Neither a public entity nor a public employee is liable for injury proximately caused by the failure of the employee to furnish or 6 obtain medical care for a prisoner in his custody; but, except as otherwise provided by Sections 855.8 and 856, a public employee… 7 is liable if the employee knows or has reason to know that the prisoner is in need of immediate medical care and he fails to take 8 reasonable action to summon such medical care. Nothing in this section exonerates a public employee who is lawfully engaged in the 9 practice of one of the healing arts under any law of this state from liability for injury proximately caused by malpractice…. 10 11 Cal. Gov’t. Code § 845.6. 12 Defendants argue they were already furnishing plaintiff medical care and therefore cannot 13 be liable for failing to summon care. (ECF No. 57 at 7.) However, defendants provide no 14 authority or further argument to support their claim that nurses providing medical care cannot be 15 liable for failing to summon other necessary medical care. At least one other district court has 16 rejected such an argument. See Washington v. Cnty. of San Diego, No. 02-CV-0143-LAB (JMA), 17 2006 WL 8455463, at *7 (S.D. Cal. Sept. 12, 2006) (denying motion for summary judgment to 18 nurse defendants for alleged delay in summoning outside medical assistance and rejecting 19 argument that nurses could not be held liable for failing to summon medical assistance because 20 they were providing the medical care). Defendants do not meet their burden to show they are 21 entitled to summary judgment based on their asserted immunity as set forth in California 22 Government Code Section 845.6. 23

24 4 A failure to summon medical care claim under California Government Code Section 845.6 is distinct from a claim that a practitioner failed to meet the appropriate standard of care. Nelson v. 25 State of California, 139 Cal. App. 3d 72, 81 (4th Dist. 1982). Under a such a theory, defendants could be found liable if they knew or had reason to know that plaintiff was in need of immediate 26 medical care other than what they were providing and failed to take reasonable action to summon 27 it. See Cal. Gov’t. Code § 845.6; Cal. Evid. Code § 669 (providing for a presumption of negligence if four elements are established, including that a person “violated a statute, ordinance, 28 or regulation of a public entity”). 1 D. Causation 2 Defendants argue plaintiff failed to present argument or evidence on the element of 3 causation for the complaint’s allegations that defendants’ acts or omissions caused the bandage to 4 get wet, thereby causing the infection. (ECF No. 52-1 at 18-19.) Defendants also argue causation 5 for the state law medical malpractice claims requires a medical expert’s opinion, which plaintiff 6 has not presented. 5 (Id. at 19.) 7 Setting aside the complaint’s allegations that defendants’ acts or omissions caused the 8 wound to get wet, thereby causing the infection, disputes of triable fact on the issue of causation 9 exist as to defendants’ acts or omissions in response to plaintiff’s expressed concerns of pain, 10 yellow drainage, blood, and that his surgical wound had dehisced. As determined, these material 11 disputes of fact are capable of resolution through lay testimony. In light of the existing factual 12 disputes, the court need not, at this time, resolve defendants’ causation argument directed 13 specifically to the complaint’s allegations that defendants’ acts or omissions caused the wound to 14 get wet, thereby causing the infection. 15 V. CONCLUSION AND RECOMMENDATION 16 In accordance with the above, IT IS RECOMMENDED that defendants’ motion for 17 summary judgment be granted in part, as to plaintiff’s claims against defendant Mutopo, and 18 denied on all grounds asserted as to defendants Dacuycuy and Hortizuela. 19 These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 21 days after being served with these findings and recommendations, any party may file written 22 objections with the court and serve a copy on all parties. Such a document should be captioned 23 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 24 objections shall be filed and served within seven (7) days after service of the objections. The 25

5 Defendants also argue their nursing expert has opined that the infection is likely to have been 26 caused by trauma due to plaintiff’s religious practice of kneeling in prayer five times daily. (ECF 27 No. 52-1 at 18-19.) But plaintiff disputes this evidence and denies that he kneeled or attempted to kneel in prayer at any time while he was receiving post-operative care at CHCF. (ECF No. 56-2, ¶ 28 25.) 1 | parties are advised that failure to file objections within the specified time may waive the right to 2 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 3 | Dated: June 27, 2023 4 5 6 ORAH BARNES

UNITED STATES MAGISTRATE JUDGE

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