1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDRE RAMON CRAVER, No. 2:20-cv-2327 WBS DB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 C. FLOYD, 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Plaintiff claims defendant was deliberately indifferent to his medical needs 19 when she refused to recommend that he receive double portions of food while he received 20 chemotherapy. Presently before the court is defendant’s fully briefed motion for summary 21 judgment. (ECF No. 39.) For the reasons set forth below, the undersigned will recommend 22 that the motion for summary judgment be granted. 23 //// 24 //// 25 //// 26 //// 27 ////

28 //// 1 BACKGROUND 2 I. Relevant Procedural History 3 Plaintiff initiated this action on November 11, 2020.1 (ECF No. 1.) His complaint names 4 C. Floyd, and alleges a single Eighth Amendment claim for failure to provide him with adequate 5 food. (Id.) Upon screening, the court found that plaintiff’s complaint stated a cognizable Eighth 6 Amendment claim. (ECF No. 5.) Defendant served an answer on December 3, 2021. (ECF No. 7 20.) 8 After discovery, defendant moved for summary judgment on January 30, 2023. (ECF No. 9 39.) Plaintiff opposed, and defendant replied on April 7, 2023. (ECF Nos. 44, 47.) 10 II. Allegations in the Complaint 11 Plaintiff states that at all relevant times he was an inmate at Mule Creek State Prison 12 (“MCSP”). (ECF No. 1 at 5.) Plaintiff names C. Floyd, a dietitian at MCSP, as the sole 13 defendant. (ECF No. 1 at 1, 5.)2 14 Plaintiff alleges that, during his incarceration at MCSP, he was diagnosed with multiple 15 myeloma cancer. (Id. at 5.) He was subsequently admitted to MCSP’s Correctional Treatment 16 Center (“CTC”), and medical staff determined that he required between 2,000 and 2,600 calories 17 per day. (Id.) 18 Plaintiff began chemotherapy on March 30, 2020. (Id.) As part of his treatment, he was 19 administered dexamethasone, which can cause an increased sense of appetite. (Id.) He 20 subsequently developed taste aversions to certain foods, which caused him to regurgitate them. 21 (Id.) These food items included peanut butter sandwiches, celery, peanut butter crackers, and 22 “pancake breakfast meals with the cured slice turkey.” (Id.) Plaintiff told defendant about these 23 aversions, but she allegedly told him, “Eat it anyway, you need the strength.” (Id.) Plaintiff also 24 told her that he felt “extremely hungry after breakfast, lunch, and dinner everyday,” that he was 25 1 Under the prison mailbox rule, a document is deemed served or filed on the date a prisoner signs 26 the document and gives it to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing the prison mailbox rule); Campbell v. Henry, 614 F.3d 105, 1059 (9th Cir. 27 2010) (applying the mailbox rule to both state and federal filings by incarcerated inmates).

28 2 C. Floyd is referred to as “her” in various pleadings, including the plaintiff’s disputed facts. 1 experiencing headaches and substantial hunger pains, and that he had lost thirty-nine pounds. (Id. 2 at 5–6.) Defendant denied his request for extra food portions. (Id. at 6.) 3 Plaintiff continued to experience these symptoms throughout May 2020, and continued to 4 report them to defendant. (Id.) Nonetheless, defendant allegedly told plaintiff to continue eating 5 the food items in question and offered him a supplement, Boost. (Id.) Plaintiff developed an 6 aversion to the Boost as well and reported it to defendant, but she continued to offer plaintiff 7 Boost. (Id.) 8 In late May 2020, plaintiff filed a medical grievance alleging that he was receiving an 9 “inadequate medical diet.” (Id.) During the subsequent interview, which defendant conducted, 10 plaintiff again informed defendant that he was “in substantial pain from the hunger” and 11 “experiencing chronic headaches from the hunger pains.” (Id. at 7.) He requested “an adequate 12 medical diet to fit his needs.” (Id.) Defendant again denied his request for extra food. (Id.) 13 Defendant told plaintiff that his meal plan provided him with 2,400 calories per day, and 14 that she accounted for his cancer diagnosis when determining his dietary needs. (Id.) In June 15 2020, plaintiff began to save the nutrition labels from some of the food items in his meal plan. 16 (Id.) According to his calculations, he was not receiving 2,400 calories per day. (Id.) On July 17 21, 2020, he submitted an inmate request for interview form to defendant, in which he asked her 18 to verify the number of calories he was supposed to be receiving per day, and for the “calorie 19 count” of specific food items that came with his meals. (Id. at 8.) He also told her that he did not 20 believe he was receiving 2,400 calories per day from his meal plan, and gave her the nutrition 21 labels he had been saving. (Id.) According to plaintiff, defendant “was shocked” and “knew that 22 [plaintiff] was not receiving [an] adequate medical diet.” (Id.) Defendant again offered him 23 Boost, and plaintiff again informed her that he could not tolerate Boost. (Id. at 9.) Defendant 24 denied his request for extra food portions. (Id.) 25 Plaintiff submitted another inmate request for interview form to defendant on July 29, 26 2020, asking that she substitute milk products in his meal plan because he was lactose intolerant, 27 as well as the items to which he had developed an aversion. (Id. at 10.) Defendant replied, “We 28 do not make substitutions for meals in CTC.” (Id.) 1 On September 15, 2020, plaintiff told defendant he was still “starving” and again asked 2 for increased portions. (Id. at 14.) Defendant allegedly told him that his weight “looked good” 3 and denied his request. (Id.) 4 Plaintiff accuses defendant of violating his Eighth Amendment rights by denying him 5 adequate food. (Id. at 12.) He believes that she knew of his serious medical need for more 6 calories, based on his communications with her and his decline in weight, but that she deliberately 7 ignored this risk to plaintiff by refusing to recommend additional portions and to substitute the 8 items he could not eat. (Id. at 12–13.) 9 MOTION FOR SUMMARY JUDGMENT 10 I. Summary Judgment Standards 11 Summary judgment is appropriate when the moving party “shows that there is no 12 genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 13 law.” Fed. R. Civ. P. 56(a). Under summary judgment practice, “[t]he moving party bears the 14 burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. 15 Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 16 (1986)). The moving party may accomplish this by “citing to particular parts of materials in 17 the record, including depositions, documents, electronically stored information, affidavits or 18 declarations, stipulations (including those made for purposes of the motion only), admissions, 19 interrogatory answers, or other materials” or by showing that such materials “do not establish 20 the absence or presence of a genuine dispute, or that an adverse party cannot produce 21 admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). 22 “Where the non-moving party bears the burden of proof at trial, the moving party need 23 only prove there is an absence of evidence to support the non-moving party’s case.” Oracle 24 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 25 Indeed, summary judgment should be entered “after adequate time for discovery and upon 26 motion, against a party who fails to make a showing sufficient to establish the existence of an 27 element essential to that party’s case, and on which that party will bear the burden of proof at 28 trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential 1 element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 2 323. In such a circumstance, summary judgment should “be granted so long as whatever is 3 before the district court demonstrates that the standard for the entry of summary judgment, as 4 set forth in Rule 56(c), is satisfied.” Id. 5 If the moving party meets its initial responsibility, the burden shifts to the opposing 6 party to establish that a genuine issue as to any material fact actually does exist. Matsushita 7 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to 8 establish the existence of this factual dispute, the opposing party may not rely upon the 9 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 10 form of affidavits, and/or admissible discovery material, in support of its contention that the 11 dispute exists. See Fed. R. Civ. P. 56(c). The opposing party must demonstrate that the fact 12 in contention is material, i.e., a fact “that might affect the outcome of the suit under the 13 governing law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., 14 Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is 15 genuine, i.e., “the evidence is such that a reasonable jury could return a verdict for the 16 nonmoving party,” Anderson, 477 U.S. at 248. 17 “In evaluating the evidence to determine whether there is a genuine issue of fact, [the 18 court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” 19 Walls v. Cent. Costa Cnty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (per curiam) 20 (citation omitted). It is the opposing party’s obligation to produce a factual predicate from 21 which the inference may be drawn. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 22 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more 23 than simply show that there is some metaphysical doubt as to the material facts.” Matsushita 24 Elec. Indus. Co., 475 U.S. at 586 (citations omitted). “Where the record is taken as a whole 25 could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine 26 issue for trial.’” Id. at 587 (quoting First Nat’l Bank of Ariz. v. Cities Servs. Co., 391 U.S. 27 253, 289 (1986)). 28 //// 1 On a motion for summary judgment, it is inappropriate for the court to weigh evidence 2 or resolve competing inferences. “In ruling on a motion for summary judgment, the court 3 must leave ‘[c]redibility determinations, the weighing of the evidence, and the drawing of 4 legitimate inferences from the facts’ to the jury.” Foster v. Metropolitan Life Ins. Co., 243 F. 5 App’x 208, 210 (9th Cir. 2007) (quoting Anderson, 477 U.S. at 255). 6 II. Undisputed Material Facts 7 Defendant filed a Statement of Undisputed Facts (“DSUF”) as required by Local Rule 8 260(a) along with her motion for summary judgment. (ECF No. 32-2.) Plaintiff’s filing in 9 opposition to defendant’s motion for summary judgment complies with Rule 260(b), which 10 requires that a party opposing a motion for summary judgment “shall reproduce the itemized 11 facts in the Statement of Undisputed Facts and admit those facts that are undisputed and deny 12 those that are disputed, including with each denial a citation to the particular portions of any 13 pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon 14 in support of that denial.” (See ECF No. 44 at 10–14.) 15 The court is mindful of the Ninth Circuit’s instruction that district courts are to 16 “construe liberally motion papers and pleadings filed by pro se inmates and should avoid 17 applying summary judgment rules strictly.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 18 2010). Accordingly, the court considers the record before it in its entirety. However, only 19 those assertions in the opposition that have evidentiary support in the record will be 20 considered. 21 A. MCSP’s Dietary Policy 22 Pursuant to MCSP policy, MCSP provides inmate-patients with meals based on a 23 standardized master menu consistent with a “heart healthy” diet. The Heart Healthy or 24 “regular” diet at the CTC is restricted in sodium and fat, while supplying adequate calories, 25 fiber, and all essential nutrients. This regular diet consists of approximately 2,400 daily 26 calories. (DSUF (ECF No. 39-2) at ¶ 8.) 27 //// 28 //// 1 An inmate patient who experiences a weight loss of greater than five percent of his 2 body weight during the prior six months may be referred by his primary care physician to a 3 dietitian for diet consultation and instruction. (DSUF (ECF No. 39-2) at ¶ 10.) 4 For those inmate-patients exhibiting moderate to severe protein or calorie malnutrition 5 due to metabolic deficiency or metabolic response to injury or illness, evidenced by 6 significant weight loss of five percent or more of the inmate-patient’s body weight over the 7 prior six months, a primary care physician may prescribe a Liquid Nutritional Supplement 8 (LNS) after consulting with the inmate-patient’s dietitian. (DSUF (ECF No. 39-2) at ¶ 11.) 9 MCSP CTC offers a variety of “Boost” to those inmate-patients with a prescription for 10 LNS, including Boost Original (regular) and Boost Breeze (clear). Boost Original and Boost 11 Breeze each come in an eight-fluid-ounce container and contain about 250 calories. 12 According to defendant, Boost Breeze tastes like juice and is suitable for individuals with 13 lactose intolerance. (DSUF (ECF No. 39-2) at ¶ 12.) 14 If, and only if, an inmate-patient is not able to tolerate the LNS and weight loss 15 continues, there are rare instances in which more food may be needed, with the approval of 16 the primary care physician. (DSUF (ECF No. 39-2) at ¶ 13; ECF No. 39-4 at 5.) 17 An inmate-patient who requests a special diet due to a claimed food intolerance or 18 allergy will be evaluated by his primary care physician or a designee. If the primary care 19 physician determines that the patient is allergic or intolerant to a readily identified food item, 20 such as lactose intolerance or peanuts, the primary care physician, with assistance from the 21 dietitian and food administrator, will educate the inmate-patient to avoid the offending food. 22 However, no food substitution will be given. (DSUF (ECF No. 39-2) at ¶ 14; ECF No. 39-4 23 at 5–6.) 24 MCSP policy identifies three examples of “extreme cases” in which an inmate-patient 25 does not tolerate a LNS: (1) multiple food-allergy related hospitalizations; (2) an abnormal 26 food allergy lab profile; and (3) verified food-specific allergen signs and symptoms, 27 including, but not limited to, anaphylaxis, eosinophilic esophagitis, hives, and enterocolitis. 28 (ECF No. 39-4 at 5.) 1 B. Plaintiff’s Cancer Diagnosis and Treatment 2 Plaintiff was diagnosed with multiple myeloma in January 2020. (DSUF (ECF No. 3 39-2) at ¶ 17.) 4 Plaintiff was admitted to CTC for cancer treatment on March 17, 2020. Upon 5 admission, plaintiff weighed 199 pounds, and had lost approximately 7.2 percent of his body 6 weight in the previous six months. (DSUF (ECF No. 39-2) at ¶¶ 17–18; ECF No. 39-4 at 20.) 7 On or about March 17, 2020, plaintiff was placed on the Heart Healthy Diet and was 8 referred to a registered dietitian, defendant Floyd, for a consultation regarding his weight loss. 9 (DSUF (ECF No. 39-2) at ¶ 20.) 10 Plaintiff met with defendant Floyd on March 19, 2020 for his initial consultation. At 11 the consultation, plaintiff told defendant that he had been eating 100 percent of his food but 12 felt like he was “starving.” He also told defendant that he was lactose intolerant. Because 13 plaintiff had lost over five percent of his body weight in the last six months and informed 14 defendant that he was lactose intolerant, defendant recommended he take one LNS of Boost 15 Breeze per day. Defendant notified plaintiff’s primary care physician about her 16 recommendation regarding Boost Breeze. (DSUF (ECF No. 39-2) at ¶ 22; ECF No. 39-4 at 17 20.) 18 On March 26, 2020, defendant met with plaintiff for a consultation regarding his 19 weight loss. Plaintiff’s weight was taken and determined to be 192 pounds. (DSUF (ECF No. 20 39-2) at ¶ 24; ECF No. 39-8 at 27.) 21 Plaintiff began chemotherapy on March 30, 2020. (ECF No. 1 at 5; DSUF (ECF No. 22 39-2) at ¶ 19.) 23 On March 30, 2020, plaintiff’s primary care physician, Dr. Snook, met with plaintiff 24 following his first injection of chemotherapy and prescribed him Zofran, an anti-nausea 25 medication. (DSUF (ECF No. 39-2) at ¶ 26.) 26 C. Plaintiff’s consultations with defendant during his chemotherapy 27 On April 3, 2020, defendant met with plaintiff for a dietary follow up. Plaintiff 28 weighed in at 195.6 pounds and defendant noted that plaintiff had gained 3.74 pounds in one 1 week. Plaintiff told defendant that he had been drinking two Boosts daily, but complained 2 that the food was not enough and asked to have his food portions doubled. Defendant 3 informed plaintiff that double portions were against policy and noted he had been gaining 4 weight with Boost. When defendant asked him about his appetite, plaintiff told her that his 5 medication had “shut his system down” and that he did not have an appetite. Nonetheless, 6 medical records indicated that plaintiff had been eating 100 percent of his meals. Defendant 7 recommended to plaintiff that he continue with Boost and the Heart Healthy diet. (DSUF 8 (ECF No. 39-2) at ¶ 27; ECF No. 39-8 at 33.) 9 Defendant met with plaintiff on April 13, 2020. Plaintiff told defendant that he was 10 tolerating chemotherapy well and was not experiencing nausea or vomiting. Plaintiff also 11 informed defendant that he was still drinking Boost each day. Defendant noted that plaintiff 12 was still consuming 100 percent of his meals and that his weight was 194.3 pounds. (DSUF 13 (ECF No. 39-2) at ¶ 28; ECF No. 39-8 at 38.) 14 On April 23, 2020, defendant met with plaintiff, who told her that he was drinking two 15 Boosts a day and not experiencing any nausea or vomiting. Plaintiff’s weight was stable at 16 194 pounds. During this visit, plaintiff asked defendant to change Boost Breeze to regular 17 Boost, believing that the regular Boost would help with digestive issues he had been 18 experiencing. Defendant e-mailed Dr. Snook on April 23, 2020 regarding plaintiff’s request 19 to change his LNS from clear Boost to regular Boost. (DSUF (ECF No. 39-2) at ¶¶ 29, 30; 20 ECF No. 39-8 at 43.) 21 Defendant conducted a dietary follow up with plaintiff on May 1, 2020. Plaintiff 22 weighed in at 197.1 pounds, having gained three pounds since the last assessment. Plaintiff 23 had recently stopped taking Boost, telling Dr. Snook that he did not like it. Defendant asked 24 plaintiff about stopping Boost, to which he responded that he was “starving” and that Boost 25 did not fill him up. Defendant informed plaintiff that his weight gain was a sign he was 26 meeting his calorie needs and was therefore well nourished. Defendant also told plaintiff that 27 LNS was the only option CTC was able to offer him. (DSUF (ECF No. 39-2) at ¶ 31; ECF 28 No. 39-8 at 48.) 1 Defendant met with plaintiff on May 15, 2020, at which time he weighed in at 192.9 2 pounds. Defendant did not note signs or symptoms of malnutrition. Plaintiff’s activities of 3 daily living (“ADL”) reports showed he was eating 100 percent of meals. Defendant pointed 4 out to plaintiff that he had gained weight while on Boost and she suggested that he start Boost 5 again to prevent further weight loss. Plaintiff told defendant that he did not like the taste of 6 Boost and declined to restart it. Plaintiff also told defendant that he had been feeling nauseous 7 and that he had taste aversions to food. (DSUF (ECF No. 39-2) at ¶ 32; ECF No. 39-8 at 52.) 8 After the May 15, 2020 consultation, defendant e-mailed Dr. Snook and informed him 9 that plaintiff had lost four pounds in the previous two weeks and refused to start Boost again. 10 (ECF No. 39-7 at ¶ 22.) 11 On May 21, 2020, defendant met with plaintiff, who again told her that he was 12 “starving.” Defendant pointed out to plaintiff that he had gained about 1.76 pounds in the last 13 five days and that his current weight was well within ideal body weight, indicating that he was 14 currently well nourished. Defendant informed plaintiff that the option for extra nourishment 15 was Boost, not double food portions. Defendant offered Boost to plaintiff again, but he 16 declined, claiming that it made him vomit. (DSUF (ECF No. 39-2) at ¶ 33; ECF No. 39-8 at 17 57–58). 18 On May 29, 2020, defendant interviewed plaintiff regarding a healthcare grievance 19 claiming an intolerance to Boost, peanut butter sandwiches, celery, and crackers, and 20 requesting double portions of meals. During the interview, defendant told plaintiff that the 21 protocol for treating weight loss is to provide LNS and that he continually refused to take 22 Boost. Defendant suggested that plaintiff increase his anti-nausea medication, Zofran, to help 23 with taste aversions, but plaintiff refused defendant’s suggestion. Defendant informed 24 plaintiff that he had no signs of muscle or fat wasting, his weight trends were steady with no 25 major weight loss or signs of malnutrition, and that double food portions were not an option. 26 Plaintiff did not agree with the outcome of the grievance interview. (DSUF (ECF No. 39-2) at 27 ¶ 34; ECF No. 39-8 at 61–62.) 28 //// 1 That same day, following the healthcare grievance interview, defendant met with 2 plaintiff for his weekly dietary follow up. Defendant again suggested Boost to plaintiff, 3 noting that clear Boost is similar to juice and perhaps would be better tolerated than regular 4 Boost. Plaintiff declined. Plaintiff continued to state that he was starving, but defendant 5 pointed out to him that he had no major weight loss since arriving to CTC. Plaintiff’s ADL 6 reports showed he was eating 100 percent of meals. (DSUF (ECF No. 39-2) at ¶ 35; ECF No. 7 39-8 at 61–62.) 8 On June 4, 2020, Defendant met with plaintiff for a dietary follow up. Plaintiff 9 claimed he was feeling nauseous from chemotherapy that day and had vomited after eating 10 lunch. He also claimed he still had aversions to peanut butter and was concerned about his 11 weight. Plaintiff’s weight as of June 3, 2020 was 190.3 pounds. Plaintiff’s ADL reports 12 showed that plaintiff was usually consuming 100 percent of his daily meals. (DSUF (ECF 13 No. 39-2) at ¶ 36; ECF No. 39-8 at 71.) 14 On June 12, 2020, defendant met with plaintiff, who again told her that he had taste 15 aversions and was vomiting, especially from peanut butter. Defendant told plaintiff that she 16 did not have the authority to allow for deviation from the authorized menu and suggested that 17 plaintiff submit a healthcare services request form to Food Administrator K. Barnes. 18 Defendant also spoke to plaintiff about his refusing Zofran for the previous few days. 19 Plaintiff alleged that it tasted bad when he let it dissolve on his tongue. Defendant then 20 suggested to plaintiff that he only swallow Zofran and encouraged him to take it in the 21 morning and evening, as it would help with nausea and vomiting. Defendant again offered 22 two Boost options to plaintiff, and mentioned that the clear Boost, in combination with taking 23 Zofran regularly, might help plaintiff tolerate Boost. Plaintiff declined and signed a refusal 24 form. On the day of this dietary follow up, plaintiff weighed 193.4 pounds and his weight 25 loss since admittance to CTC was 2.8 percent of his body weight. Defendant confirmed with 26 nursing staff that plaintiff’s daily meal consumption was normally at 100 percent and that he 27 had not complained of vomiting to nursing staff and that staff had not observed plaintiff 28 vomiting. (DSUF (ECF No. 39-2) at ¶ 37; ECF No. 39-8 at 75–76.) 1 On June 23, 2020, defendant met with plaintiff, who had complained about being 2 served pancakes several days in a row, alleging an intolerance to pancakes. Defendant told 3 plaintiff that CTC was following the approved menu from headquarters and that she was 4 unable to provide substitutions for food items. Defendant also informed plaintiff that she had 5 several conversations with Food Administrator Barnes and Dr. Snook to confirm that they had 6 exhausted all nutritional interventions. Defendant again offered plaintiff two choices of 7 Boost, but he declined again and signed a refusal form. To defendant, plaintiff appeared well 8 nourished with no signs of muscle or fat wasting. (DSUF (ECF No. 39-2) at ¶ 38; ECF No. 9 39-8 at 80–81.) 10 On June 25, 2020, Food Administrator Barnes met with plaintiff in response to a 11 request for interview form he submitted. Plaintiff told Barnes that he had an increased 12 appetite due to chemotherapy and wanted more food, but could not tolerate pancakes, peanut 13 butter, or LNS, as these food items allegedly made him vomit. Barnes explained to plaintiff 14 that the Food and Nutrition Services staff at MCSP CTC was following the menu established 15 by headquarters and that they could not modify it to accommodate his preferences. Barnes 16 confirmed with nursing and custody staff that no one had observed plaintiff vomiting. (DSUF 17 (ECF No. 39-2) at ¶ 40.) 18 On July 8, 2020, defendant met with plaintiff for a dietary follow up. Plaintiff asked 19 how many calories he was receiving, as opposed to how many he needed. Defendant 20 responded that the Heart Healthy diet provides 2,400 calories per day on average, which was 21 within the range of his estimated need. Defendant also told plaintiff that when CTC estimates 22 nutritional needs, they take a patient’s medical diagnosis into consideration. Defendant 23 weighed in at 188.5 pounds that morning. (DSUF (ECF No. 39-2) at ¶ 41; ECF No. 39-8 at 24 85–86.) 25 On July 21, 2020, defendant met with plaintiff, who was not undergoing a cycle of 26 chemotherapy at that time. Plaintiff stated that he was not experiencing any nausea, vomiting, 27 or food aversions. Defendant recommended that plaintiff try Boost again between rounds of 28 chemotherapy, as he claimed he was not experiencing any food aversions at that time. 1 Defendant offered him two types of Boost, regular and clear. Plaintiff declined and signed a 2 refusal form. According to defendant, plaintiff appeared well nourished and weighed in at 3 187 pounds that morning. (DSUF (ECF No. 39-2) at ¶ 42; ECF No. 39-8 at 90.) 4 Defendant met with plaintiff on July 29, 2020 for a dietary follow up. Plaintiff told 5 defendant that he had a chemotherapy session the prior day and was experiencing nausea and 6 vomiting. Defendant suggested to plaintiff that he report his nausea and vomiting to Dr. 7 Snook and request Zofran if needed. Plaintiff provided defendant an inmate interview request 8 form to discuss replacing milk, pancakes, and peanut butter with other food items. Defendant 9 again informed plaintiff that CTC does not provide food substitutions and pointed out that this 10 had already been addressed by Food Administrator Barnes. Plaintiff’s ADL reports indicated 11 his daily consumption of meals was at 100 percent and there was no record that plaintiff 12 reported nausea or vomiting to Dr. Snook or nursing staff. Plaintiff weighed in at 189.2 13 pounds. (DSUF (ECF No. 39-2) at ¶ 43; ECF No. 39-8 at 96.) 14 On August 5, 2020, defendant met with plaintiff for a dietary follow up. His ADL 15 reports showed that his daily meal consumption was at 100 percent, and weight trends 16 indicated his weight remained steady with no significant changes. Plaintiff weighed in at 17 188.76 pounds that morning. (DSUF (ECF No. 39-2) at ¶ 44; ECF No. 39-8 at 101.) 18 Between October 5 and October 19, 2020, plaintiff lost fourteen pounds. Defendant 19 reviewed Dr. Snook’s notes and attributed plaintiff’s weight loss to edema resulting from his 20 chemotherapy. She also noted that he had been reported as eating 100 percent of his meals. 21 (ECF No. 39-7, ¶ 37.) 22 Plaintiff’s lowest recorded weight between March 19 and November 11, 2020 was 23 185.46 pounds on October 19, 2020. (ECF No. 39-7, ¶ 37.) 24 During one of his dietary follow ups in December 2020, plaintiff claimed that he had 25 been collecting nutrition labels from his daily meals. Based on these labels, he determined he 26 had been receiving 700 calories per day. Defendant informed plaintiff that CTC kitchen staff 27 follow a menu written by headquarters and that he was receiving an average of 2,400 calories 28 //// 1 daily. Not all of the food inmate-patients receive have a nutrition label with a calorie count 2 affixed to the food item. (DSUF (ECF No. 39-2) at ¶¶ 46–47.) 3 III. Discussion 4 A. Legal Standards – Eighth Amendment 5 The Eighth Amendment prohibits “cruel and unusual punishments.” Farmer v. Brennan, 6 511 U.S. 825, 832 (1994). Where a prisoner’s Eighth Amendment claims arise in the context of 7 medical care, the prisoner must allege and prove “acts or omissions sufficiently harmful to 8 evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 9 (1976). An Eighth Amendment medical claim has two elements: “the seriousness of the 10 prisoner’s medical need and the nature of the defendant’s response to that need.” McGuckin v. 11 Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. 12 Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). 13 1. Deliberate Indifference to Medical Needs 14 A serious medical need exists if the failure to treat the condition could result in further 15 significant injury or the unnecessary and wanton infliction of pain. Jett v. Penner, 439 F.3d 1091, 16 1096 (9th Cir. 2006). To act with deliberate indifference, a prison official “must both be aware of 17 facts from which the inference could be drawn that a substantial risk of serious harm exists, and 18 he must also draw the inference.” Farmer, 511 U.S. at 837. Thus, a defendant is liable if he 19 knows that plaintiff faces “a substantial risk of serious harm and disregards that risk by failing to 20 take reasonable measures to abate it.” Id. at 847. “It is enough that the official acted or failed to 21 act despite his knowledge of a substantial risk of harm.” Id. at 842. 22 “Indifference ‘may appear when prison officials deny, delay or intentionally interfere with 23 medical treatment, or it may be shown by the way in which prison physicians provide medical 24 care.’” Jett, 439 F.3d at 1096 (quoting Estelle, 429 U.S. at 1059). To establish a claim of 25 deliberate indifference arising from a delay in providing care, a plaintiff must show that the delay 26 was harmful. See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at 27 1059; Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Shapley v. Nevada Bd. of 28 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). In this regard, “[a] prisoner need not 1 show his harm was substantial; however, such would provide additional support for the inmate’s 2 claim that the defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096; see 3 also McGuckin, 974 F.2d at 1060. 4 2. Denial of Adequate Food 5 “The sustained deprivation of food can be cruel and unusual punishment when it results in 6 pain without any penological purpose.” Foster v. Runnels, 554 F.3d 807, 814 (9th Cir. 2009). 7 However, the Eighth Amendment “only requires the prison to provide food that is adequate to 8 maintain health.” Wilson v. Kernan, 369 F. App’x 831, 833 (9th Cir. 2010) (citing LeMaire v. 9 Maass, 12 F.3d 1444, 1456 (9th Cir. 1993)). 10 To succeed on a claim alleging inadequate food, a prisoner “must show his health was in 11 immediate danger or his health suffered as a result of the lack of food.” Guillory v. Tilton, No. 12 CV–07–0775 ROS (PC), 2011 WL 4500847, at *6 (E.D. Cal. Sep. 27, 2011) (citing Wishon v. 13 Gammon, 978 F.2d 446, 449 (8th Cir. 1992)). Allegations of feeling hungry, without more, do 14 not establish an Eighth Amendment violation. See Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 15 1260 (9th Cir. 2016). 16 B. Analysis 17 Plaintiff appears to agree with defendant that the Eighth Amendment’s medical 18 indifference standard applies to his claim, but he also cites case law addressing the right to 19 adequate food. (See ECF No. 44 at 15–16.) Under either standard, plaintiff’s claim fails because 20 no reasonable jury could find that defendant subjectively recognized and ignored a threat to 21 plaintiff’s health. 22 1. Whether defendant deliberately ignored plaintiff’s alleged medical need 23 a. Subjective knowledge 24 Defendant argues that she did not believe plaintiff faced a substantial risk of serious harm 25 due to inadequate food. (ECF No. 39-1 at 15.) According to defendant, plaintiff’s “weight 26 remained relatively stable” during the period in question and medical staff reported that he 27 typically consumed 100 percent of his meals. (Id.) There was no evidence to corroborate 28 //// 1 plaintiff’s claims of vomiting. (Id. at 19.) Based on this information, defendant subjectively 2 believed that plaintiff was receiving enough food and meeting his nutritional needs. 3 Plaintiff contends that defendant knew plaintiff was not receiving sufficient food because 4 he told her about his vomiting and food aversions, including his aversion to Boost, and because 5 he repeatedly expressed feeling hungry to her. (ECF No. 44 at 19.) Additionally, in 2020, 6 plaintiff gave defendant nutrition labels from some of the food items provided with his meals, 7 which he believed showed that his meal plan did not provide the requisite number of calories. 8 (Id. at 17.) Based on these communications, plaintiff believes defendant knew that he was not 9 receiving enough food. 10 Plaintiff’s argument fails. The deliberate indifference standard requires a showing that 11 defendant was “aware of facts from which the inference could be drawn that a substantial risk of 12 serious harm exist[ed]” and that she “also dr[ew] the inference.” Farmer, 511 U.S. at 837. Here, 13 the undisputed evidence shows that defendant did not recognize a substantial risk of serious harm 14 to plaintiff from inadequate nutrition. Based on her investigations and conversations with 15 medical staff, defendant concluded that plaintiff was not vomiting or having issues finishing his 16 meals and was therefore receiving adequate food. (ECF No. 39-1 at 15.) She also noted that his 17 weight had held “steady” during this period. (ECF No. 39-7, ¶¶ 16, 24, 26, 34.) Regarding the 18 nutrition labels, defendant advised plaintiff that not all the food items in his meals came with 19 nutrition labels, and plaintiff admits that he did not acquire labels for some food items until after 20 he brought this action and served defendant with discovery requests. (DSUF (ECF No. 39-2) at 21 ¶¶ 46–47; ECF No. 44 at 33.) Defendant therefore could not have known in 2020 that plaintiff 22 was receiving inadequate food, based on the nutrition labels he gave her. 23 For these reasons, no reasonable jury could find that defendant recognized a threat to 24 plaintiff’s health from inadequate nutrition. 25 b. Defendant’s response to plaintiff’s alleged medical need 26 Defendant lists several actions she took to address plaintiff’s claims that he was not 27 receiving sufficient food, demonstrating she did not deliberately ignore his concerns. For 28 example, she communicated with plaintiff’s primary care physician, Dr. Snook, when plaintiff 1 lost weight in May 2020, and again in June 2020 when plaintiff requested double portions. (ECF 2 No. 39-1 at 19.) She also regularly coordinated with medical staff to determine if plaintiff was 3 vomiting and how much of his meals he was consuming. (Id. at 19–20.) 4 Plaintiff interprets the applicable MCSP policy as requiring defendant to provide him 5 extra food if he could not tolerate the prescribed LNS. (ECF No. 44 at 26, 27.) He also accuses 6 defendant of coercing Dr. Snook and Food Administrator Barnes into denying his request for 7 double portions, out of a dislike for plaintiff. (Id. at 26, 29–30, 40.) However, he has not offered 8 any evidence to corroborate this accusation or refute defendant’s account of her actions. 9 Where, as here, a prisoner’s medical indifference claim is based on a disagreement over 10 the proper course of treatment, the prisoner “must show that the chosen course of treatment ‘was 11 medically unacceptable under the circumstances,’ and was chosen ‘in conscious disregard of an 12 excessive risk to [the prisoner’s] health.’” Toguchi, 391 F.3d at 1058 (alteration in original). 13 Defendant did not consciously disregard plaintiff’s complaints. For instance, on May 19, 2020, 14 defendant investigated whether plaintiff could receive double portions after plaintiff filed a 15 healthcare grievance requesting more food. (ECF No. 39-7, ¶ 24.) On multiple occasions, when 16 plaintiff told her that he was nauseous and unable to tolerate many of the food items provided 17 through his meal plan, she consulted with nursing staff to confirm whether he was vomiting and 18 therefore not getting the nutrition he needed. (Id., ¶¶ 25, 27, 29, 30, 37.) When he told her he 19 could not tolerate peanut butter, she contacted the kitchen staff to ascertain how many of his 20 meals contained peanut butter and in what proportions, in order to determine its potential impact 21 on his “nutritional status.” (Id., ¶ 28.) Throughout this time, defendant continued to offer 22 plaintiff Boost to meet his nutritional needs and recommended he take his Zofran more regularly 23 to combat nausea and food aversions. (DSUF (ECF No. 39-2) at ¶¶ 32, 33, 34, 35, 37, 38, 42, 24 43.) Each time, plaintiff refused. (Id.) 25 Plaintiff does not state how these actions were medically unacceptable or what actions he 26 believes defendant should have taken, other than grant his request for double portions. (See 27 generally ECF No. 44.) Defendant could not recommend increased portions or substitutions. The 28 applicable MCSP policy recognizes a narrow set of instances in which a prisoner’s adverse 1 reaction to specific food items constitutes a food intolerance, none which includes aversions 2 caused by chemotherapy. (ECF No. 39-4 at 5–6.) Even if medical staff agreed that plaintiff 3 could not tolerate the LNS, peanut butter, and pancakes, the policy does not permit prison 4 officials to substitute the food items in question. (Id. at 6.) Specifically, it states: “If a patient is 5 allergic or intolerant to a readily identified food(s) . . . he/she will be educated to avoid the 6 offending food, but no food substitution will be given.” (Id.) As a result, defendant lacked the 7 power to give plaintiff more food or substitute items. 8 In July 2021, plaintiff was transferred to the CTC at the Richard J. Donovan Correctional 9 Facility (RJD). (ECF No. 44 at 49.) His dietician at that facility “ordered [plaintiff a] regular 10 diet” with double portions, eliminated peanut butter from plaintiff’s meals, and substituted milk 11 with juice. (Id.) Plaintiff provides documentation verifying this claim. (ECF No. 44-1 at 217.) 12 According to plaintiff, the RJD dietician’s actions prove that defendant could recommend double 13 portions and deliberately ignored his nutritional needs when she did not. (ECF No. 44 at 49.) 14 However, the policy that barred defendant from offering plaintiff additional portions 15 appears to have been specific to MCSP, and it is not clear whether the RJD dietician was subject 16 to an identical or similar policy at RJD. (See ECF No. 39-4 at 2; DSUF (ECF No. 39-2) at ¶¶ 7– 17 9.) Consequently, the RJD dietician’s recommendations do not indicate that defendant’s course 18 of action was medically unacceptable, especially in light of evidence showing that plaintiff’s 19 weight had stabilized, that he was finishing his meals, and that he was not vomiting. 20 For these reasons, no reasonable jury could find that defendant deliberately ignored 21 plaintiff’s serious medical needs. 22 2. Denial of Adequate Food 23 Plaintiff’s denial of adequate food claim also fails because he cannot show that he 24 received inadequate food. Plaintiff cites feelings of hunger, vomiting and food intolerance, 25 significant weight loss, and calorie calculations based on nutrition labels as evidence that he did 26 not receive enough food. However, plaintiff’s sense of hunger, weight loss, and calculations do 27 not prove that he received insufficient food, and any loss of calories due to nausea cannot be 28 traced to defendant’s alleged inaction. 1 First, it is not clear that plaintiff’s hunger pains were the result of insufficient food. 2 During plaintiff’s first consultation with defendant on March 19, 2020, eleven days before he 3 began chemotherapy, plaintiff told defendant that he had been eating all his food but felt like he 4 was “starving.” (ECF No. 39-4 at 20.) In a grievance filed on May 17, 2020, he told prison 5 officials that one of his medications, dexamethasone, increased his appetite, and he told Food 6 Administrator Barnes that “he had an increased appetite due to chemotherapy.” (ECF No. 44-1 at 7 49; DSUF (ECF No. 39-2) at ¶ 40.) His complaint also attributes his increased appetite to 8 dexamethasone. (ECF No. 1 at 5.) It is therefore not established that plaintiff felt hungry due to 9 inadequate food, as opposed to other causes like medication. 10 Second, plaintiff emphasizes throughout his filings that the myeloma caused him to lose 11 thirty-nine pounds between October 2018 and the start of his chemotherapy on March 30, 2020. 12 (ECF No. 1 at 5; ECF No. 44 at 7.) However, this issue predates his consultations with defendant 13 and does not speak to whether he received inadequate food while under her care between March 14 19 and November 11, 2020. His medical records show that his weight loss slowed during this 15 period. According these records, he was 192 pounds on March 26, 2020, four days before he 16 began chemotherapy, and his lowest weight during treatment was 185 pounds. (ECF No. 39-4 at 17 21; ECF No. 39-8 at 119.) Although he did experience some periods of extreme weight loss, 18 including fourteen pounds in two weeks in October 2020, plaintiff has not linked this weight loss 19 to defendant’s alleged inaction. (ECF No. 39-7, ¶ 37.) Defendant attributed this fluctuation to 20 edema caused by chemotherapy, and plaintiff repeatedly rejected her advice for maintaining his 21 weight. (Id.; DSUF (ECF No. 39-2) at ¶¶ 34, 37, 43, 54.) 22 Third, plaintiff’s calorie calculations do not appear to account for ingredients for which he 23 does not have nutrition labels, such as condiments or sauces, or for the possibility that he received 24 more than the indicated serving size of a particular item. They therefore do not establish that his 25 meal plan did not meet his nutritional needs. 26 Finally, plaintiff’s medical records capture his complaints about vomiting and food 27 aversions, but also show that he was finishing most of his meals and that medical staff did not 28 encounter evidence of vomiting. To the extent he experienced these symptoms, he rejected 1 defendant’s suggestion that he take his anti-nausea medication regularly; he did not tell Dr. Snook 2 that the anti-nausea medication was making him ill or request an alternative anti-nausea 3 prescription; and defendant could not increase his portions to counteract any calorie loss due to 4 nausea. (DSUF (ECF No. 39-2) at ¶¶ 34, 37, 43, 54; ECF No. 39-4 at 5–6.) Thus, any calorie 5 deficiencies plaintiff experienced from nausea are not attributable to defendant’s alleged inaction. 6 See Spokeo v. Robins, 578 U.S. 330, 338 (2016) (“The plaintiff must have (1) suffered an injury 7 in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely 8 to be redressed by a favorable judicial decision.”). 9 For these reasons, plaintiff cannot succeed on his inadequate food claim and defendant is 10 entitled to summary judgment. 11 3. Qualified Immunity 12 Defendant also asserts qualified immunity. She argues that no reasonable prison official 13 in her position would have known her actions violated plaintiff’s constitutional rights, because 14 she took appropriate action in response to plaintiff’s complaints, had no evidence that plaintiff 15 was receiving inadequate food, and complied with applicable MCSP policy. (ECF No. 39-1 at 16 26–27.) Because defendant is entitled to summary judgment on the merits of plaintiff’s claim, 17 the court need not decide whether she is also entitled to qualified immunity. See O’Brien v. 18 Welty, 818 F.3d 920, 936 (9th Cir. 2016); Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 19 365, 371 n.4 (9th Cir. 1998). 20 //// 21 //// 22 //// 23 //// 24 //// 25 //// 26 //// 27 //// 28 //// 1 CONCLUSION 2 For the reasons set forth above, IT IS RECOMMENDED that: 3 1. Defendant’s motion for summary judgment (ECF No. 39) be granted; and 4 2. The Clerk of the Court be directed to close this case. 5 These findings and recommendations will be submitted to the United States District Judge 6 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days 7 | after being served with these findings and recommendations, either party may file written 8 | objections with the court. The document should be captioned “Objections to Magistrate Judge’s 9 | Findings and Recommendations.” The parties are advised that failure to file objections within the 10 | specified time may result in waiver of the right to appeal the district court’s order. Martinez v. 11 Yist, 951 F.2d 1153 (9th Cir. 1991). 12 | Dated: September 1, 2023 13 14 15 ORAH BARNES

DB:15 UNITED STATES MAGISTRATE JUDGE

16 | DB/DB Prisoner Inbox/Civil Rights/S/erav2327.msj.f 17 18 19 20 21 22 23 24 25 26 27 28