1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARK E. DORSEY, Case No.: 17cv1123-CAB-KSC

12 Plaintiff,

ORDER RE MOTIONS FOR

13 v. SUMMARY JUDGMENT 14 DANIEL PARAMO, et al., 15 Defendant. [Doc. Nos. 65, 68] 16 17 Plaintiff Mark E. Dorsey, a state prisoner proceeding pro se, filed this civil rights 18 action pursuant to Title 42, United States Code, Section 1983, alleging prison officials at 19 R.J. Donovan Correctional Facility violated his rights under the United States Constitution. 20 [Doc. No. 3.] The matter is now before the Court on the parties’ cross-motions for 21 summary judgment. All Defendants jointly move for summary judgment against Plaintiff, 22 while Plaintiff only moves for summary judgment against the remaining correctional 23 officer defendants and not against Dr. Shakiba. The motions have been opposed, and 24 Plaintiff, but not Defendants, filed a reply brief. The Court deems the motions suitable for 25 submission without oral argument and that no report and recommendation from Magistrate 26 Judge Crawford is necessary. As discussed below, Defendants’ motion is granted with 27 respect to Dr. Shakiba and denied with respect to the remaining Defendants, and Plaintiff’s 28 motion is denied. 1 I. Background 2 The complaint in this case purported to state three claims against a host of 3 defendants, but on August 29, 2018, the Court granted a motion to dismiss counts 2 and 3 4 and dismissed those claims without prejudice. [Doc. No. 40.] Plaintiff then declined to 5 file an amended complaint. [Doc. No. 42.] Thus, only count 1 for violation of Plaintiff’s 6 Eighth Amendment right to be free from cruel and unusual punishment remains in this 7 lawsuit. The only remaining defendants are Dr. Shakiba, who examined Plaintiff at 8 Donovan, and five correctional officers: Jackson, Lay, Cho, Ruelas, and Sigala. The 9 remaining claim arises out Defendants’ alleged failure to accommodate Plaintiff’s shoulder 10 injury by assigning him to a lower bunk before October 24, 2016. As a result, Plaintiff 11 injured himself on October 23, 2016, while trying to get into his top bunk and slept on his 12 mattress on the floor of his cell for three nights because he feared further injury from trying 13 to get into a top bunk until finally being assigned a lower bunk on October 24, 2016. 14 Specific evidence relevant to the claims against each individual defendant is discussed in 15 greater detail below 16 II. Legal Standards 17 Rule 56(a) provides that a court “shall grant summary judgment if the movant shows 18 that there is no genuine dispute as to any material fact and the movant is entitled to 19 judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party moving for summary 20 judgment always bears the initial responsibility of informing the district court of the basis 21 for its motion, and identifying those portions of “the pleadings, depositions, answers to 22 interrogatories, and admissions on file, together with the affidavits, if any,” which it 23 believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. 24 Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). If the moving party meets 25 its initial responsibility, the burden then shifts to the nonmoving party to establish, beyond 26 the pleadings, that there is a genuine issue for trial. Id. at 324. 27 To avoid summary judgment, the non-moving party is “required to present 28 significant, probative evidence tending to support h[is] allegations,” Bias v. Moynihan, 1 508 F.3d 1212, 1218 (9th Cir. 2007) (citations omitted), and “must point to some facts in 2 the record that demonstrate a genuine issue of material fact and, with all reasonable 3 inferences made in the plaintiff[‘s] favor, could convince a reasonable jury to find for the 4 plaintiff[].” Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000) 5 (citing Fed.R.Civ.P. 56; Celotex, 477 U.S. at 323). The opposing party cannot rest solely 6 on conclusory allegations of fact or law. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 7 1986). 8 III. Discussion 9 The relevant inquiry here is whether Plaintiff has provided evidence that 10 demonstrates a violation of his Eight Amendment right to be free from cruel and unusual 11 punishment. To maintain an Eighth Amendment claim based on prison medical treatment 12 under 42 U.S.C. § 1983, an inmate must show “deliberate indifference to serious medical 13 needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 14 429 U.S. 97, 104 (1976)). “[T]here is a two-pronged test for evaluating a claim for 15 deliberate indifference to a serious medical need: 16 First, the plaintiff must show a serious medical need by demonstrating that failure to treat a prisoner’s condition could result in further significant injury 17 or the unnecessary and wanton infliction of pain. Second, the plaintiff must 18 show the defendant’s response to the need was deliberately indifferent. This second prong ... is satisfied by showing (a) a purposeful act or failure to 19 respond to a prisoner’s pain or possible medical need and (b) harm caused by 20 the indifference.[”] 21 Akhtar v. Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096). 22 A prison official exhibits deliberate indifference when he knows of and disregards a 23 substantial risk of serious harm to inmate health. Farmer v. Brennan, 511 U.S. 825, 837 24 (1970). The official must both know of “facts from which the inference could be drawn” 25 that an excessive risk of harm exists, and he must actually draw that inference. Id. “A 26 determination of ‘deliberate indifference’ involves an examination of two elements: the 27 seriousness of the prisoner’s medical need and the nature of the defendant’s response to 28 1 that need.” See McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on 2 other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). 3 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 4 1060 (9th Cir. 2004). Even gross negligence is insufficient to establish deliberate 5 indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th 6 Cir. 1990). “A defendant must purposefully ignore or fail to respond to a prisoner’s pain 7 or possible medical need in order for deliberate indifference to be established.” McGuckin, 8 974 F.2d at 1060. Thus, neither an inadvertent failure to provide adequate medical care, 9 nor mere negligence or medical malpractice, nor a mere delay in medical care (without 10 more), nor a difference of opinion over proper medical treatment, is sufficient to constitute 11 an Eighth Amendment violation. See Estelle, 429 U.S. at 105–06; Sanchez v. Vild, 891 12 F.2d 240, 242 (9th Cir.1989); Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 13 407 (9th Cir. 1984). 14 A. Dr. Shakiba 15 There is no dispute that Dr. Shakiba issued a comprehensive accommodation chrono 16 that Plaintiff be assigned to a lower bunk on October 21, 2016. Thus, Plaintiff’s claim 17 against Dr. Shakiba is premised on his contention that Dr. Shakiba should have issued a 18 chrono sooner based Dr. Shakiba’s evaluation of Plaintiff on October 18, 2016, and review 19 of Dr. Foerster’s report of his evaluation of Plaintiff on October 6, 2016. Dr. Shakiba, 20 however, declares that Plaintiff never requested a lower bunk chrono before October 21, 21 2016, and that Dr. Shakiba did not believe one was warranted. In response, Plaintiff does 22 not offer any evidence that he actually requested a lower bunk chrono before October 21, 23 2016. Instead, Plaintiff simply argues that Dr. Shakiba should have offered or suggested a 24 lower bunk chrono to Plaintiff sooner. Regardless of whether Dr. Shakiba could have 25 offered or issued a lower bunk chrono before October 21, 2016, his failure to do so does 26 not constitute deliberate indifference when Plaintiff did not even specifically request such 27 an accommodation. Indeed, there is no evidence that Dr. Shakiba was even aware that 28 Plaintiff was not already in a lower bunk before October 21, 2016, when he issued the 1 comprehensive accommodation chrono. Accordingly, Dr. Shakiba is entitled to summary 2 judgment on Plaintiff’s claim against him. 3 B. Correctional Officers Lay, Cho, Ruelas and Sigala, and 4 Correctional Sergeant Jackson 5 According to Plaintiff, Officers Lay, Cho, Ruelas, and Sigala, and Sergeant Jackson 6 each at various times between October 21 and 23, 2016, ignored Plaintiff’s serious pain 7 and medical needs by refusing to assign him to a lower bunk. Plaintiff has presented 8 evidence that he was scheduled for surgery on his shoulder and that Dr. Shakiba had issued 9 a comprehensive accommodation chrono that Plaintiff be assigned to a lower bunk on 10 October 21, 2016. This evidence is sufficient to create an issue of fact as to whether 11 Plaintiff had a serious medical need. 12 Although Dr. Shakiba had issued a lower bunk chrono on October 21, 2016, there 13 does not appear to be any dispute that none of the correctional officer defendants were 14 aware of that chrono until October 24, 2016. At the same time, however, there is also no 15 dispute that Plaintiff complained of shoulder and back pain and asked these defendants for 16 a lower bunk between October 21 and 23, and that they did not assign him a lower bunk 17 until October 24, 2016. 18 Defendants declare that there is an overwhelming demand for low-bunk assignments 19 and that an inmate must have a comprehensive accommodation chrono ordering showing 20 that a doctor ordered that the inmate be assigned to a lower bunk. Yet Defendants do not 21 cite to any caselaw stating that the lack of a lower bunk chrono or other medical 22 authorization for a lower bunk is dispositive of a section 1983 Eighth Amendment claim 23 against a correctional officer for refusing to assign an inmate complaining of serious pain 24 to a lower bunk. But see McDonald v. Yates, No. 1:09-CV-00730-LJO, 2012 WL 6514658, 25 at *7 (E.D. Cal. Dec. 13, 2012) (“[W]hether Plaintiff's intake informational chrono was 26 still valid or not, and even if he did not show them a chrono and only placed them on verbal 27 notice, Defendants were required to take reasonable action once they were placed on notice 28 that Plaintiff had a medical condition which required a lower bunk.”), report and 1 recommendation adopted, No. 1:09-CV-00730-LJO, 2013 WL 238904 (E.D. Cal. Jan. 22, 2 2013). Nor do Defendants: (1) identify any prison policies preventing them from assigning 3 a lower bunk absent a lower bunk chrono; (2) contend that no lower bunks were available 4 for Plaintiff between October 21 and 23; or (3) contradict Plaintiff’s assertion that he could 5 have been transferred to the unoccupied lower bunk in cell 227, which was where Plaintiff 6 ended up being placed on October 24. 7 In sum, Plaintiff has presented uncontradicted evidence that he complained to these 8 officers of serious pain that made him unable to get into a top bunk, and that despite these 9 complaints, the officers did not assign him to a lower bunk, even after Plaintiff had fallen 10 and injured himself trying to get into a top bunk. Defendants do not contend that no lower 11 bunks were available or that they lacked authority to move Plaintiff to a lower bunk. 12 Rather, Defendants simply contend, as they told Plaintiff at the time and argue here, that 13 they would not move Plaintiff to a low bunk absent a comprehensive accommodation 14 chrono. As a result of Defendants refusal to assign Plaintiff to a lower bunk, Plaintiff slept 15 on the floor for three nights to avoid injuring himself trying to get into a top bunk and then 16 actually injured himself on October 23, 2019, attempting to get into a top bunk. Taking 17 these facts in the light most favorable to Plaintiff, he has raised a material factual dispute 18 as to whether these correctional officer defendants acted with deliberate indifference 19 toward his serious medical needs when they failed to remedy his complaints about being 20 unable to sleep in top bunk due to his shoulder pain. See, e.g., Lucas v. Silva, No. C 07- 21 1673 CW PR, 2011 WL 1196920, at *7 (N.D. Cal. Mar. 30, 2011) (denying summary 22 judgment on deliberate indifference claim where the defendants did not assign inmate to 23 lower bunk despite complaints of back and neck pain resulting from upper bunk 24 assignment); Cf. McGuckin, 974 F.2d at 1060 (“[T]he fact that an individual sat idly by as 25 another human being was seriously injured despite the defendant’s ability to prevent the 26 injury is a strong indicium of callousness and deliberate indifference to the prisoner’s 27 suffering.”). Accordingly, Defendants Lay, Cho, Ruelas, Sigala, and Jackson are not 28 entitled to summary judgment. 1 At the same time, Plaintiff is not entitled to summary judgment in his favor. Because 2 Defendants Lay, Cho, Ruelas, Sigala, and Jackson have offered evidence that they did not 3 with deliberate indifference to Plaintiff's serious medical needs, Plaintiff's motion for 4 ||summary judgment against these defendants is likewise denied. 5 IV. Disposition 6 In light of the foregoing, Defendants’ motion for summary judgment is GRANTED 7 || with respect to Plaintiff's claim against Dr. Shakiba, and DENIED with respect to 8 || Plaintiff's claims against Defendants Lay, Cho, Ruelas, Sigala, and Jackson. □□□□□□□□□□□ 9 || motion for summary judgment is DENIED. 10 It is SO ORDERED. 11 | Dated: November 13, 2019 4 & Hon. Cathy Ann Bencivengo 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28