1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANIEL RAMSEY, Case No.: 20cv1076-AJB (RBB)

CDCR #K-99536

12

ORDER:

Plaintiff, 13 v. (1) DENYING PLAINTIFF’S MOTION 14

FOR SUMMARY JUDGMENT

RONALD ZHANG, MD,

15 Defendant. (2) GRANTING DEFENDANT’S 16

MOTION FOR SUMMARY

17 JUDGMENT, and

18 (3) DENYING PLAINTIFF’S MOTION 19 FOR APPOINTMENT OF COUNSEL

20 21 Plaintiff Daniel Ramsey is a state prisoner proceeding pro se and in forma pauperis 22 in this 42 U.S.C. § 1983 civil rights action claiming deliberate indifference to his serious 23 medical needs in violation of the Eighth Amendment. (ECF No. 35.) Plaintiff alleges he 24 was recommended for surgery on his back, neck and shoulder at Kern Valley State Prison 25 in 2012, but after he was transferred to the Richard J. Donovan Correctional Facility 26 (“RJD”) in 2014 surgery was delayed six years because his treating physician Defendant 27 Dr. Zhang repeatedly refused to order an MRI to determine whether surgery was necessary 28 or otherwise follow-up on the 2012 surgical recommendation. (Id. at 2-4.) 1 Currently pending are cross-motions for summary judgment. (ECF Nos. 51, 56.) 2 Plaintiff contends: (1) his administrative remedies were exhausted when he received a final 3 response to his August 1, 2019, healthcare grievance, and (2) it is undisputed that he had a 4 serious medical need for surgery which Dr. Zhang knew of and repeatedly failed to address. 5 (ECF No. 51 at 1-7.) Dr. Zhang contends: (1) Plaintiff failed to exhaust administrative 6 remedies because his healthcare grievance involved reduction of pain medication and did 7 not include a request for an MRI, surgery or follow-up to the 2012 surgical 8 recommendation, (2) there is no triable issue that Dr. Zhang was deliberately indifferent to 9 a serious need for surgery because Plaintiff’s claim merely involves a difference of opinion 10 regarding the proper course of medical care, and (3) he is entitled to qualified immunity. 11 (ECF No. 56 at 14-20.) Plaintiff has filed an Opposition (ECF No. 60) to which Defendant 12 has filed a Reply. (ECF No. 63.) 13 Plaintiff has also filed a motion for appointment of counsel. (ECF No. 59.) He states 14 he had surgery on July 13, 2021, and is recovering at RJD but unable to effectively use his 15 right hand to write or type and unable to draft any necessary legal documents without the 16 assistance of counsel. (Id. at 1, 3.) 17 For the following reasons, the Court DENIES Plaintiff’s motion for summary 18 judgment, DENIES his motion for appointment of counsel, GRANTS Defendant’s motion 19 for summary judgment, and enters judgment in favor of Defendant Dr. Zhang.1 20 I. Procedural Background 21 Plaintiff initiated this action by filing a Complaint on June 11, 2020, naming as 22 Defendants his RJD primary care physician Dr. Zhang and S. Gates, Chief of the California 23 Department of Corrections and Rehabilitation (“CDCR”) Office of Medical Appeals. 24 (ECF No. 1.) Plaintiff alleged Dr. Zhang discontinued his daily morphine prescription he 25

26 1 Although this motion was referred to United States Magistrate Judge Ruben B. Brooks 27 pursuant to 28 U.S.C. § 636(b)(1)(B), the Court has determined that neither a Report and Recommendation nor oral argument is necessary for the disposition of this matter. See 28 1 had for five years based on his belief Plaintiff had stopped taking it after none was found 2 in his system but without determining the severity of his pain, Chief Gates wrongfully 3 denied his medical appeal of that decision, and both Defendants delayed his 2012 surgical 4 order. (Id. at 2-4.) On June 23, 2020, the Court granted Plaintiff leave to proceed in forma 5 pauperis and screened the Complaint pursuant to the provisions of 28 U.S.C. §§ 1915(e)(2) 6 & 1915A(b). (ECF No. 4.) The Court found the Complaint failed to state an Eighth 7 Amendment claim for deliberate indifference to Plaintiff’s serious medical needs because 8 he alleged he was informed by Dr. Zhang when his morphine was replaced that he should 9 immediately inform him during their next visit if the new medication was not effective, 10 and when Plaintiff returned for his next visit he was informed that Dr. Zhang was no longer 11 his primary care physician and to take his request up with his new primary care physician. 12 (Id. at 8-9.) The Court found the allegation that Chief Gates denied Plaintiff’s medical 13 appeal, without more, did not state a claim. (Id. at 10.) Plaintiff was granted leave to 14 amend and cautioned that any claims not re-alleged and any Defendants not re-named 15 would be considered waived. (Id. at 11.) 16 Plaintiff filed a First Amended Complaint on July 7, 2020. (ECF No. 11.) The First 17 Amended Complaint contained few specific factual allegations but claimed Plaintiff had 18 been “promised and assured medical surgery for neck, spine and left shoulder for the past 19 eight (8) years” by Dr. Zhang “and his successors,” that his condition had become 20 progressively worse in that time, and that other inmates of other races with similar medical 21 problems had received surgery within six months. (Id. at 3.) The Court screened the First 22 Amended Complaint and dismissed it with leave to amend for failure to state a claim due 23 to the lack of specific factual allegations. (ECF No. 12 at 7-9.) 24 Plaintiff filed a Second Amended Complaint on October 8, 2020, naming Dr. Zhang 25 as the only Defendant and alleging he “failed to follow up on my Spinal, Neck Surgery 26 upon my arrival to RJD-State Prison by refusing to order me a MRI which caused my 27 medical condition to become progressively worse over a five year time period without 28 surgery.” (ECF No. 13 at 2.) The Court screened the Second Amended Complaint, found 1 that Chief Gates had been abandoned as a Defendant and dismissed him from this action, 2 found the Eighth Amendment deliberate indifference claim against Dr. Zhang survived 3 screening, and ordered service as to Dr. Zhang. (ECF No. 14 at 4.) Dr. Zhang filed an 4 Answer to the Second Amended Complaint on January 19, 2021. (ECF No. 18.) 5 On March 3, 2021, Plaintiff sought to add as an exhibit to the Second Amended 6 Complaint a copy of CDCR 602 Health Care Grievance No. 19001192 to allege exhaustion 7 of administrative remedies. (ECF No. 31.) Defendant did not object to the exhibit but 8 requested it be attached to an amended pleading. (ECF No. 33.) The Court directed the 9 Clerk to merge the Second Amended Complaint with CDCR Form 602 Health Care 10 Grievance No. 19001192 attached as exhibit F, and for the merged document to serve as a 11 Third Amended Complaint, the operative pleading in this action. (ECF Nos. 34-35.) 12 Plaintiff filed the instant motion for summary judgment on June 25, 2021. (ECF No. 13 51.) Defendant filed an opposition and a cross-motion for summary judgment on August 14 19, 2021. (ECF No. 56.) Plaintiff filed a motion for appointment of counsel on September 15 8, 2021, and an opposition to Defendant’s cross-motion on September 13, 2021. (ECF 16 Nos. 59-60.) Defendant filed a Reply on October 7, 2021. (ECF No. 63.) 17 II. Plaintiff’s Allegations Against Defendant Dr. Zhang 18 Plaintiff alleges in the Third Amended Complaint that Defendant Dr. Zhang “failed 19 to follow up on my Spinal, Neck Surgery upon my arrival to RJD-State Prison by refusing 20 to order me a MRI which caused my medical condition to become progressively worse 21 over a five year time period without surgery!” (ECF No. 35 at 2.) He contends that in 22 2012 surgery was recommended to correct a condition “which has kept me confined in a 23 wheelchair . . . [but] no surgery has ever been performed on me to correct my painful 24 medical condition as promised!” (Id. at 3.) He alleges: 25 Between 2014 through 2019, the defendant Dr. Zhang-MD verbally informed me on countless occasions that he personally felt that I didn’t need any surgery 26 to correct my neck, spine, and shoulder [as] opposed to Dr. Goyal, Dr. Casian, 27 Dr. Santos, Dr. Waters, and the Chief Medical Doctor named Dr. Steven Roberts who all five strongly believed that I did in fact need corrective surgery 28 1 tfiolr 2 m02y0 n ewcikth, osupti nme ea nedv esrh oauctlduearll.y Srueccehi vreincgo manmye nsudragtieornys walhli lbee greinm iani n(i2n0g1 2in) 2 excruciating pain for the past (7) years awaiting such surgery. 3 (Id.) 4 Plaintiff states he exhausted his administrative remedies by filing a prison medical 5 appeal “on this very same issue,” which was denied at the final level without any action 6 taken. (Id.) Attached as exhibits A and B are orders from Drs. Casian, Santos and Roberts 7 “all concurring that [I] need surgery for my neck, spine, and shoulder that should have been 8 done by Defendant Dr. Zhang six years ago!” (Id.) He attaches as exhibit C “my MRI X- 9 Ray Report dated August 4, 2020 from Dr. R. Waters who concluded in his medical 10 findings that my injur[y] has a Mass Effect Upon My Spinal Cord which is causing me 11 daily excruciating pain and suffering as well as limited movement!” (Id. at 3-4.) Attached 12 as exhibit D is “my medical examination report dated May 5, 2020 by Medical Surgeon 13 named Dr. Frank Yoo from Tri-city Medical Center in Oceanside California who 14 recommended that I undergo an MRI before conducting surgery on my spinal cord.” (Id. 15 at 4.) Attached as exhibits E and F are copies of his CDCR 602 Health Care Grievance 16 No. 19001192 and its final level response. (Id. at 20-24.) Finally, Plaintiff alleges: 17 Had the defendant Dr. Ronald Zhang-MD referred me for a MRI six years ago back in (2014), then I could have long since had my surgery completed and 18 on my way to full recovery without having to endure six years of pain and 19 suffering. However, Dr. Zhang repeatedly ignored, delayed, and denied me the right to medical care to have a MRI performed on me for six full years 20 which forced me to endure physical and emotional pain till this very day in 21 which I am now finally scheduled for surgery within the next few weeks! If called upon to testify in the court [of] law in this civil case, then Dr. Casian, 22 Dr. Roberts, Dr. Silva, Dr. Goyal, Dr. Yoo, and Dr. Waters will all be willing 23 to testify under oath that I the plaintiff Daniel Ramsey should have been medically properly examined by Dr. Zhang-MD for an MRI upon my arrival 24 to the RJD-Correctional Facility 6 years ago! 25 (Id.) 26 Plaintiff requests money damages and an injunction for “proper medical treatment 27 in the future including pain medication as originally prescribed to me.” (Id. at 7.) As 28 noted, he had surgery on July 13, 2021. (ECF No. 59 at 1.) 1 III. Exhaustion of Administrative Remedies 2 Plaintiff and Defendant both move for summary judgment with respect to exhaustion 3 of administrative remedies. Plaintiff contends he exhausted administrative remedies when 4 he filed CDCR 602 Health Care Grievance No. 19001192 on August 1, 2019, which states: 5 On 7-31-19 I seen my PCP for evaluation as standard practices for ADA DPW Chronic Pain Management Inmates. However, the PCP told me that he 6 was lowering my pain medication due to the Medical Board expense. By these 7 actions of reducing my pain medication it impairs my mobility and limited me on liberty. This misdiagnosis, under prescribing, negligent treatment is a 8 unlicensed practice and unprofessional conduct. Theirs [sic] no justification 9 for removing or reducing medication when I have permanent spine injuries that cause excruciating pain as well as a shoulder injury that is also painful. I 10 have problems sleeping and thinking straight due to his actions. This violates 11 my Eighth Amendment rights. I would like my medication to be return[ed] to its original dosage (30mx2day) A.S.A.P. 12

13 (ECF No. 56-1 at 125-26.) 14 Defendant argues that because the grievance involved the tapering and eventual 15 discontinuation of Plaintiff’s morphine prescription by Dr. Zhang it adequately exhausted 16 a claim raised in the original Complaint regarding discontinuation of morphine, but that 17 claim has been abandoned because it was not raised in any further version of the Complaint. 18 (ECF No. 56 at 14-15.) Defendant argues that because the grievance lacks any reference 19 to a request for an MRI or surgery, it did not exhaust administrative remedies with respect 20 to Plaintiff’s claim that Dr. Zhang failed to timely order an MRI, refer him for surgery or 21 otherwise follow-up on the 2012 surgical recommendation. (Id.) 22 Plaintiff replies that although his health care grievance only challenged his pain 23 medication when it was submitted, it was amended to include the need for surgery when it 24 was addressed at the final level of review, thereby exhausting that claim as well. (ECF No. 25 60 at 1-2, 8.) Defendant replies that a when final level disposition addresses a new issue 26 not raised in the original grievance the exhaustion requirement is satisfied for the new issue, 27 but any newly exhausted issue in the final level disposition here involved actions taken 28 after Dr. Zhang was no longer Plaintiff’s primary care physician. (ECF No. 63 at 2.) 1 A. Legal Standards 2 “The Prison Litigation Reform Act of 1995 (PLRA) mandates that an inmate exhaust 3 ‘such administrative remedies as are available’ before bringing suit to challenge prison 4 conditions.” Ross v. Blake, 578 U.S. 632, 635 (2016), quoting 42 U.S.C. § 1997e(a). 5 “[T]he PLRA’s exhaustion requirement does not allow a prisoner to file a complaint 6 addressing non-exhausted claims.” Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 7 2010). “[P]roper exhaustion improves the quality of those prisoner suits that are eventually 8 filed because proper exhaustion often results in the creation of an administrative record 9 that is helpful to the court. When a grievance is filed shortly after the event giving rise to 10 the grievance, witnesses can be identified and questioned while memories are still fresh, 11 and evidence can be gathered and preserved.” Woodford v. Ngo, 548 U.S. 81, 94-95 (2006). 12 The exhaustion requirement is based on an important policy concern which “allows prison 13 officials an opportunity to resolve disputes concerning the exercise of their responsibilities 14 before being haled into court. This has the potential to reduce the number of inmate suits, 15 and also to improve the quality of suits that are filed by producing a useful administrative 16 record.” Jones v. Bock, 549 U.S. 199, 204 (2007). 17 “[P]risoners are obligated to navigate all a prison’s administrative review process 18 ‘regardless of the fit between a prisoner’s prayer for relief and the administrative remedies 19 possible.’” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005), quoting Booth v. Churner, 20 532 U.S. 731, 739 (2001). Inmates are not required to exhaust administrative remedies 21 when circumstances render administrative remedies effectively unavailable. Nunez v. 22 Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010); see also Ross, 578 U.S. at 648 (“The only 23 limit to § 1997e(a)’s mandate is the one baked into its text: An inmate need exhaust only 24 such administrative remedies as are ‘available.’”) There are “three kinds of circumstances 25 in which an administrative remedy, although officially on the books, is not capable of use 26 to obtain relief.” Ross, 578 U.S. at 643. They arise when: (1) the procedure “operates as 27 a simple dead end – with officers unable or consistently unwilling to provide any relief to 28 aggrieved inmates;” (2) the process is “so opaque that it becomes, practically speaking, 1 incapable of use . . . so that no ordinary prisoner can make sense of what it demands;” and 2 (3) “prison administrators thwart inmates from taking advantage of a grievance process 3 through machination, misrepresentation, or intimidation.” Id. at 643-44. 4 Once a defendant shows “there was an available administrative remedy, and that the 5 prisoner did not exhaust that available remedy . . . the burden shifts to the prisoner to come 6 forward with evidence showing that there is something in his particular case that made the 7 existing and generally available administrative remedies effectively unavailable to him.” 8 Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc). Any justifiable inferences 9 drawn from the facts in the record are viewed in the light most favorable to Plaintiff. 10 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 11 “Grievance issues [within the CDCR system] are separated into two categories: 12 custody issues and healthcare issues.” Calderon v. Koenig, No. 19cv7949-HSG, 2021 WL 13 3675210, at *1 (N.D. Cal. Aug. 19, 2021). To grieve a healthcare issue, a prisoner is 14 required to submit a CDCR 602 HC form, referred to as a health care grievance, that 15 “describe[s] the specific complaint that relates to their health care which they believe has 16 a material adverse effect upon their health and welfare.” Cal. Code Regs., tit. 15 17 § 3999.227(a) (2019). Healthcare grievances are subject to two levels of review: an 18 institutional level of review and a headquarters’ level of review. Cal. Code Regs., tit. 15 19 § 3999.226(a)(1) (2019). “Healthcare grievances are subject to a headquarters’ level 20 disposition before administrative remedies are deemed exhausted.” Cal. Code Regs., tit. 21 15 § 3999.226(g) (2019). 22 B. Analysis 23 Defendant presents the declaration of R. Hart, the Chief of the Health Care 24 Correspondence and Appeals Branch of the Policy and Risk Management Services 25 Division of California Correctional Health Care Services, which provides oversight for 26 medical, dental and mental health care appeals and grievances for inmates of the CDCR. 27 (Hart Decl. ¶ 1, ECF No. 56-4 at 1.) According to CDCR records, the only grievances 28 Plaintiff filed which requested back surgery were numbered 12033358 and 12033359 filed 1 in July 2012, while he was housed at Kern Valley State Prison (Hart Decl. ¶ 8(a), ECF No. 2 56-4 at 3), referenced in the Hart declaration as exhibits 3-4. (ECF No. 56-1 at 99-120.) 3 No grievance requesting an MRI was ever filed, although Plaintiff filed grievance number 4 13027151 in April 2013 while incarcerated at High Desert State Prison requesting a copy 5 of his 2012 MRI results. (Hart Decl. ¶ 8(b), ECF No. 56-4 at 4.) 6 Hart states that while at RJD Plaintiff filed grievance number 19001192 stating he 7 had a disagreement with his medical provider over medication for pain management. (Hart 8 Decl. ¶ 8(c), ECF No. 56-4 at 4.) That grievance received an institutional level response 9 on September 30, 2019, indicating no intervention would be taken, and was denied at the 10 headquarters’ level of review on December 17, 2019, also with an indication no 11 intervention would be taken. (ECF No. 56-1 at 122-32.) Plaintiff filed grievance number 12 20000404 on March 13, 2020, complaining that the discontinuation of his morphine was 13 an arbitrary response to the opioid crisis in the United States, which was rejected as 14 duplicative of 19001192 and never resubmitted. (Hart Decl. ¶ 8(d), ECF No. 56-4 at 4; 15 ECF No. 56-1 at 134-43.) Finally, Plaintiff submitted grievance number 20000490 16 complaining that morphine prescriptions had been unfairly discontinued for many inmates, 17 including himself, which was denied at the institutional and headquarters’ levels. (Hart 18 Decl. ¶ 8(e), ECF No. 56-4 at 4; ECF No. 56-2 at 3-22.) 19 Thus, Defendant has presented evidence in support of summary judgment that 20 Plaintiff did not file a healthcare grievance objecting to Dr. Zhang’s failure to order an 21 MRI or refer him for surgery. Plaintiff argues in opposition that although his CDCR 602 22 Health Care Grievance No. 19001192 only complained about the tapering of morphine, his 23 claim against Dr. Zhang in the Third Amended Complaint was exhausted by the 24 headquarters’ level disposition, which states, with underlining by Plaintiff: 25 Your health care grievance package and health record, and all pertinent departmental policies and procedures were reviewed. These records indicate: 26

27 Health care staff, utilizing clinical expertise within the scope of their licensure, is responsible for determining if a health care grievance 28 1 gwraierrvaanntcse ewxapse diditeendt ifpierodc beys sliincgen, sneodt c ltihneic aglr isetavfafn tto. n oYt omuere th tehael tchr itcearriae 2 for expedited processing per California Code of Regulations, Title 15. 3 Section 3999.228(b)(2) and/or 3999.230(b)(1)(B).

4 You alleged negligent care; however, your allegation is refuted by 5 professional health care staff familiar with your health care history, as well as a review of your health record. Though you may not have 6 received the treatment(s) of your choice, there is no indication you were 7 not provided medically or clinically necessary health care services due to any budgetary or financial constraints as you alleged. 8

9 You are enrolled in the Chronic Care Program, where your medical conditions and medication needs are closely monitored. Progress notes 10 indicate there is a plan of care in place and the primary care provider has 11 discussed the plan of care with you.

12 On October 15, 2019, the primary care provider documented you were 13 informed morphine was discontinued due to an abnormal drug screening; you agreed to a trial of Mobic for pain management. 14

15 On November 7, 2019, the primary care provider documented your pain was not affecting your activities of daily living; you indicated you were 16 self-medicating; you were not a candidate for chronic opioid therapy; a 17 referral for physical therapy (PT) was submitted; you were advised an electromyography or neurosurgery consultation would be considered 18 after PT evaluation. 19 Your medical condition will continue to be monitored with care provided as 20 determined medically or clinically indicated by the primary care provider. If 21 you have additional health care needs, you may access health care services by utilizing the approved processes in accordance with California Correctional 22 Health Care Services policy. 23 California Correctional Health Care Services health care providers are trained 24 to treat multiple types of pain in a systematic, step-wise approach based on 25 comprehensive assessment and planning, as outlined in the CCHCS Care Guide: Pain Management. Complete pain relief is not a realistic goal. The 26 goal is to reduce pain and improve function while avoiding significant side 27 effects and risks associated with stronger pain medications or surgery. The assessment and monitoring of your pain is an ongoing process. 28 1 mMeadniyc aptiaotniesn atsn dw ciathn fcuhnrcotnioicn apta ain n eaarer- naobrlme atlo l emvealn. a gPea tiaednetq-supaetceilfyi cw faitchtoourst 2 such as comorbidities, co-medications, previous history, and risk/benefit 3 assessment are considered when making drug selection. Opioids are not the preferred treatment for chronic pain. Non-pharmacologic therapies and non- 4 opioid therapies are preferred treatment for chronic pain. The guidelines for 5 opioid therapy outlined in the CCHCS Care Guide: Pain Management Part 3- Opioid Therapy, are based on the 2016 Centers for Disease Control and 6 Prevention (CDC) Guidelines for Prescribing Opioids. 7 Per the Health Care Department Operations Manual, Section 3.1.1, Complete 8 Care Model, California Correctional Health Care Services “. . . shall manage 9 and deliver medically necessary health care services to the patient population.” The Complete Care Model is based on the industry standard 10 known as the Patient-Centered Health Home. The Complete Care Model 11 “shall serve as the foundation for California Correctional Health Care Services health care services delivery.” All California Correctional Health 12 Care Services policies and procedures are designed to meet the minimum level 13 of care necessary to provide constitutionally adequate medical care to patients in the California Department of Corrections and Rehabilitation. 14

15 There is no indication your care has not been provided pursuant to the rules and regulations governing the management and delivery of medically or 16 clinically necessary health care services. Patients shall be accorded impartial 17 (equal, unbiased) access to treatment or accommodations that are determined to be medically or clinically indicated, based on the patient’s individual 18 presentation, history, and exam findings, in accordance with appropriate 19 policies and procedures. Treatment determined to be medically or clinically indicated for another patient may not be determined to be appropriate for you; 20 the does not constitute a violation of your right to impartial access to 21 medically or clinically necessary health care.

22 It is not in the purview of grievants to dictate administrative actions in regard 23 to the health care grievance process. Your health care grievance was processed per California Code of Regulations, Title 15, Chapter 2, Subchapter 24 2, Article 5. 25 While the heath care grievance process is a means of setting forth your health 26 care concerns, it is not a substitute for direct communication about your health with your health care providers. You are encouraged to continue your care 27 with your assigned health care providers and share with them new or 28 additional clinical information about your conditions that you believe may 1 atoff oefcfte yr oaunrd cparroev. i dHeo ownelyv etrh,e C caalriefo trhneiya dlaewte rdmiriencet st oy boeu rc huerraelnthtl yca mree dpircoavlildye orsr 2 clinically necessary for you, in accordance with appropriate policies and 3 procedures. Previous orders from other health care facilities or staff, input from health care consultants, and/or your own personal preferences may be 4 considered, but do not control the professional judgment of your current 5 health care providers. 6 This decision exhausts your administrative remedies. 7 (ECF No. 60 at 7-9.) 8 Plaintiff argues the underlined sections show that the headquarters’ level decision 9 amended his grievance “by addressing a whole new issue that neurosurgery would be 10 considered on treating neck, spine, and shoulder after he received PT evaluation.” (Id. at 11 1.) Defendant replies that the underlined reference is to Dr. Goyal’s November 7, 2019, 12 instruction for Plaintiff to complete physical therapy before reconsidering whether an 13 electromyography and/or a neurosurgery consultation is necessary. (ECF No. 63 at 2.) Dr. 14 Goyal’s November 7, 2019, progress notes state that although the 2012 surgery evaluation 15 generated a recommendation for surgery, surgery was denied, and “it would be possible to 16 maybe repeat request for NSGY eval once patient completes PT course or consider EMG 17 to document neuropathic effects on the UE.” (ECF No. 56-2 at 80.) Prior to that visit, on 18 October 15, 2019, Dr. Goyal’s progress notes state: 19 MRI from 2012 showed herniated disks from C6-C7 at the time the patient was evaluated by neurosurgery who recommended anterior 20 discectomy and possible fusion at C5-C6 and C6-C7. The patient was lost to 21 follow-up because he reports that he had been controlled on pain medication. The patient was discontinued off his chronic opioid therapy this July. He 22 reports an increase in pain and would like to be reevaluated for possible 23 surgery. He has confounding factors of shoulder pain that correlates to also shoulder pathology. The patient should be valid [sic] by neurosurgery to see 24 if he is a candidate for neck surgery. 25 26 (Id. at 82.) 27 Dr. Zhang states in his declaration that he was Plaintiff’s primary care physician 28 from October 17, 2014, until September 1, 2019, when he was assigned to a different 1 facility at RJD. (See Zhang Decl. ¶¶ 1, 4; ECF No. 56-5 at 1.) He argues he stopped being 2 Plaintiff’s primary care physician over two months before Dr. Goyal’s November 7, 2019, 3 recommendation that an EMG or a neurosurgery consultation would be considered after 4 physical therapy due to a report of increased pain from the discontinuation of morphine. 5 (ECF No. 63 at 2.) Dr. Zhang contends that because he was not involved in Dr. Goyal’s 6 evaluation, any newly exhausted issue involving the need for a follow-up on the 2012 7 surgical referral has nothing to do with any claim against him and does not constitute 8 exhaustion of administrative remedies as to the claim in the Third Amended Complaint he 9 failed to order an MRI or refer Plaintiff for surgery. (Id.) 10 Accordingly, a prison administrative record was made regarding the fact that there 11 was a dispute between Plaintiff and Dr. Zhang whether Plaintiff’s morphine prescription 12 was properly discontinued, but there is no administrative record addressing allegations that 13 Dr. Zhang refused to refer Plaintiff for an MRI or surgery or otherwise follow-up on the 14 2012 surgical recommendation. To the extent Plaintiff argues that the references in the 15 headquarters’ level response to his medical history and records should have placed the 16 CDCR on notice he was complaining that he should have been referred for surgery or an 17 MRI by Dr. Zhang while he was his primary care physician from 2014 to 2019, there is no 18 triable issue of fact that Plaintiff failed to submit a grievance which, at any level of review, 19 included or addressed his allegations in the Third Amended Complaint that Dr. Zhang 20 failed to refer him for an MRI or surgery or otherwise follow-up on the 2012 surgical 21 recommendation. At best, a new issue was exhausted by the headquarters’ level disposition 22 regarding whether Plaintiff should be reevaluated for surgery in light of his report of 23 increased pain following the discontinuation of morphine. Plaintiff’s failure to file a 24 grievance containing his allegations that Dr. Zhang failed to follow-up on the 2012 surgical 25 recommendation while he was Plaintiff’s primary care physician from 2014-2019 has 26 resulted in no administrative record regarding that claim. See Woodford, 548 U.S. at 94- 27 95 (administrative law creates “a fair and full opportunity to adjudicate [a prisoner’s] 28 claims . . . by requiring proper exhaustion of administrative remedies, which means using 1 all steps that the agency holds out, and doing so properly (so that the agency addresses the 2 issues on the merits.)”) (quote marks omitted); Marella v. Terhune, 568 F.3d 1024, 1027 3 (9th Cir. 2009) (“The California prison system’s requirements ‘define the boundaries of 4 proper exhaustion.’”), quoting Jones, 549 U.S. at 218. 5 Defendant has carried his burden on summary judgment by coming forward with 6 evidence showing there is no genuine issue of material fact in dispute that Plaintiff failed 7 to file a healthcare grievance which included his allegations against Dr. Zhang raised in the 8 Third Amended Complaint. The burden has now shifted to Plaintiff “to come forward with 9 evidence showing there is something in his particular case that made the existing and 10 generally available administrative remedies effectively unavailable to him.” Albino, 747 11 F.3d at 1172. Any justifiable inferences drawn from the facts in the record in this regard 12 will be viewed in the light most favorable to Plaintiff. Anderson, 477 U.S. at 255. 13 Plaintiff stated in his deposition testimony that the August 1, 2019, CDCR 602 14 Health Care Grievance No. 19001192 was the first grievance he filed against Dr. Zhang. 15 (ECF No. 56-1 at 68.) It is undisputed that Dr. Zhang stopped being Plaintiff’s primary 16 care physician one month later, on September 1, 2019, when he was assigned to a new 17 facility at RJD. (Zhang Decl. ¶ 4; ECF No. 56-5 at 2-3.) Plaintiff states in his summary 18 judgment motion that: “On many occasion[s], during medical exams (as required from 19 chronic pain management program) the plaintiff been [sic] informed by the defendant, that 20 he did not need surgery.” (ECF No. 51 at 4.) He states in his declaration that during their 21 July 31, 2019, visit, in response to Dr. Zhang informing him that his morphine dosage 22 would be lowered: “I ask him can I at least get a follow-up with the neurosurgeon for my 23 spine because it’s a known fact that a person with bulging disk could have a degenerative 24 disk disease over time. And it’s been to long I’ve been waiting on surgery. He told me I 25 was ok and didn’t need it. I then said to him, I will be writing you up for negligent treatment 26 (for not giving me treatment/misdiagnosis).” (Id. at 22.) Plaintiff submitted a Health Care 27 Services Request form on August 6, 2019, stating that since the adjustment of his pain 28 medication “my pain level has increased and I am not getting sleep nor am I able to move 1 or get out [of] my bed without a paralyzing feeling in my spine, neck, and shoulder with 2 stiffness and muscle weakness. Hard time sleeping.” (Id. at 27.) Plaintiff has come 3 forward with no evidence that he made good on his threat to write Dr. Zhang up following 4 his denial of surgery during their July 31, 2019, visit, other than to complain about the 5 reduction in morphine, and has failed to show he filed any inmate healthcare grievance 6 against Dr. Zhang alleging a failure to refer him for surgery, order an MRI, or otherwise 7 follow-up on the 2012 surgery recommendation. Plaintiff has not shown the grievance 8 procedure was effectively unavailable to him because he had the opportunity to include his 9 allegations against Dr. Zhang in his August 1, 2019, grievance as he threatened to do, which 10 is further supported by his deposition testimony that he is familiar with the healthcare 11 grievance process in the CDCR and has filed “quite a few” grievances. (ECF No. 56-1 at 12 29-30.) 13 In sum, Plaintiff’s admission that he did not file a 602-inmate healthcare grievance 14 containing the allegations against Dr. Zhang upon which his Third Amended Complaint is 15 based, despite having an opportunity to do so, knowledge of how to do so and a stated 16 intention of doing so, coupled with the lack of evidence in the record that the headquarters’ 17 level response addressed those allegations, shows a lack of exhaustion of available 18 administrative remedies. Defendant is entitled to summary judgment with respect to 19 exhaustion of administrative remedies and Plaintiff is not entitled to summary judgment on 20 that issue. See Fed.R.Civ.P. 56(c) (a party is entitled to summary judgment when they 21 show “there is no genuine issue as to any material fact and the movant is entitled to 22 judgment as a matter of law.”); Rhodes, 621 F.3d at 1004 (“[T]he PLRA’s exhaustion 23 requirement does not allow a prisoner to file a complaint addressing non-exhausted 24 claims.”) Furthermore, even if the headquarters’ level response addressed and exhausted 25 a claim that the discontinuation of morphine revealed an overlooked or overdue need for 26 surgery attributable to Dr. Zhang’s failure to order an MRI or a surgical consultation while 27 he was Plaintiff’s primary care physician, as discussed below, Defendant is also entitled to 28 summary judgment on the merits of that claim. 1 Defendant Dr. Zhang’s motion for summary judgment based on Plaintiff’s failure to 2 exhaust available administrative remedies is GRANTED and Plaintiff’s motion for 3 summary judgment on that issue is DENIED. 4 IV. Merits 5 Both parties also seek summary judgment on the merits of Plaintiff’s Eighth 6 Amendment claim that Dr. Zhang was deliberately indifferent to his serious medical need 7 for surgery by failing to order an MRI, refer him for surgery, or otherwise follow-up on the 8 surgical recommendation Plaintiff received while incarcerated at Kern Valley State Prison 9 in 2012. Dr. Zhang contends the undisputed evidence shows his treatment of Plaintiff was 10 reasonable and in accordance with prison guidelines, and Plaintiff has at most shown a 11 difference of medical opinion regarding whether surgery was necessary. (ECF No. 56 at 12 16-18.) Dr. Zhang argues that while he was Plaintiff’s primary care physician from 2014 13 to 2019, Plaintiff reported feeling well, did not have complaints, and only requested 14 occasional appointments because his prescribed morphine was controlling his pain. (Id. at 15 16.) He states that on the one occasion Plaintiff reported pain he prescribed nighttime pain 16 medication, ordered x-rays, and told him to follow-up as needed, and there is no evidence 17 Plaintiff ever requested an MRI, a neurological consultation, or surgery. (Id. at 16-17.) 18 Plaintiff addresses only the exhaustion issue in his opposition to Defendant’s 19 summary judgment motion (ECF No. 60) and Defendant argues in reply that Plaintiff does 20 not dispute Dr. Zhang was not deliberately indifferent. (ECF No. 63 at 1.) In his summary 21 judgment motion, however, Plaintiff argues that on June 26, 2012, it was recommended he 22 have surgery within two weeks, but he “was moved from prison to prison and was never 23 able to receive surgery.” (ECF No. 51 at 2.) He contends that when he arrived at RJD in 24 April 2014, a nurse reviewed his records, noted that he had arm and shoulder pain, and 25 indicated he would receive a follow-up. (Id.) He contends Dr. Zhang was aware he needed 26 surgery as far back as July 22, 2014, when he prescribed Ibuprofen for pain, because: “It’s 27 CDCR/RJD policy for any and all physician[s] before examining or prescribing pain 28 medication to review the inmate/patient record.” (Id. at 3.) He alleges in his unverified 1 Third Amended Complaint that “Dr. Zhang-MD verbally informed me on countless of 2 occasions that he personally felt that I didn’t need any surgery to correct my neck, spine, 3 and shoulder as opposed to Dr. Goyal, Dr. Casian, Dr. Santos, Dr. Waters, and the Chief 4 Medical Doctor named Dr. Steven Roberts who all five strongly believed that I did in fact 5 need corrective surgery for my neck, spine, and shoulder.”2 (ECF No. 35 at 3.) 6 Plaintiff argues that although he was approved for surgery in 2012: “On many 7 occasions, during medical exams (as required from chronic pain management program) the 8 plaintiff [was] informed by the defendant, that he did not need surgery.” (ECF No. 51 at 9 4.) The only occasion Plaintiff identifies as having asked Dr. Zhang for a follow-up to the 10 2012 surgical recommendation is during their July 31, 2019, visit, where Plaintiff “verbally 11 asked the defendant would he reconsider the surgery since he was denying plaintiff the 12 return of his pain medication (morphine) (15mg back to 30mg).” (ECF No. 51 at 4.) The 13 progress notes for that visit state Plaintiff “appeared comfortable throughout the interview 14 today without any signs of pain,” but does not indicate he made a request for a surgical 15 referral. (ECF No. 56-2 at 64-67.) 16 A. Legal Standards 17 A defendant is entitled to summary judgment if he or she shows “there is no genuine 18 issue as to any material fact and the movant is entitled to judgment as a matter of law.” 19 Fed.R.Civ.P. 56(c). The moving party has the initial burden of showing summary 20

21 2 Because Plaintiff did not sign his Third Amended Complaint under penalty of perjury 22 the Court is unable to consider any statements contained therein as evidence in opposition 23 to the summary judgment motion. However, because he signed his summary judgment motion under penalty of perjury to which he attached two declarations signed under penalty 24 of perjury, to the extent the statements therein are within his personal knowledge they will 25 be considered as evidence in opposition to Defendant’s summary judgment motion. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (“[B]ecause Jones is pro se, we must 26 consider as evidence in his opposition to summary judgment all of Jones’s contentions 27 offered in motions and pleadings, where such contentions are based on personal knowledge and set forth facts that would be admissible in evidence, and where Jones attested under 28 1 judgment is proper by “showing the absence of a genuine issue as to any material fact.” 2 Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Entry of summary judgment is 3 appropriate “against a party who fails to make a showing sufficient to establish the 4 existence of an element essential to that party’s case, and on which that party will bear the 5 burden of proof at trial. In such a situation, there can be ‘no genuine issue as to any material 6 fact,’ since a complete failure of proof concerning an essential element of the nonmoving 7 party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 8 U.S. 317, 322-23 (1986). 9 To avoid summary judgment, the nonmovant “must set forth specific facts showing 10 that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The Court may not 11 weigh evidence or make credibility determinations, and any justifiable inferences drawn 12 from the underlying facts must be viewed in the light most favorable to the nonmoving 13 party. Id. at 255. The nonmovant’s evidence need only be such that a “jury might return 14 a verdict in his favor.” Id. at 257. 15 Prisoner medical care may amount to cruel and unusual punishment in violation of 16 the Eighth Amendment when medical professionals are “deliberately indifferent” to an 17 inmate’s “serious” medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). “Deliberate 18 indifference ‘may appear when prison officials deny, delay or intentionally interfere with 19 medical treatment, or it may be shown by the way in which prison physicians provide 20 medical care.’” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014), quoting 21 Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). 22 “[A] prison official violates the Eighth Amendment when two requirements are met. 23 First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer v. 24 Brennan, 511 U.S. 825, 834 (1994), quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991). 25 Second, Plaintiff must allege the prison official he seeks to hold liable had a “sufficiently 26 culpable state of mind,” that is, “one of ‘deliberate indifference’ to inmate health or safety.” 27 Id., quoting Wilson, 501 U.S. at 302-03. A prison official can be held liable only if he 28 “knows of and disregards an excessive risk to inmate health or safety; the official must 1 both be aware of facts from which the inference could be drawn that a substantial risk of 2 serious harm exists, and he must also draw the inference.” Id. at 837. 3 B. Analysis 4 With respect to the serious medical need prong of an Eighth Amendment claim, 5 Plaintiff’s surgery, which a doctor recommended and he eventually received, is sufficient 6 to demonstrate a serious medical need. See Doty v. County of Lassen, 37 F.3d 540, 546 7 n.3 (9th Cir. 1994) (“[I]ndicia of a ‘serious’ medical need include (1) the existence of an 8 injury that a reasonable doctor would find important and worthy of comment or treatment, 9 (2) the presence of a medical condition that significantly affects an individual’s daily 10 activities, and (3) the existence of chronic or substantial pain.”) 11 “Th[e] second prong - defendant’s response to the need was deliberately indifferent 12 - is satisfied by showing (a) a purposeful act or failure to respond to a prisoner’s pain or 13 possible medical need and (b) harm caused by the indifference.” Jett v. Penner, 439 F.3d 14 1091, 1096 (9th Cir. 2006). Plaintiff is required to prove that Dr. Zhang was “aware of 15 facts from which the inference could be drawn that a substantial risk of serious harm exists” 16 by delaying or denying surgery or failing to order an MRI or follow-up on the 2012 surgical 17 recommendation, and that Dr. Zhang actually “drew that inference.” Farmer, 511 U.S. at 18 837; see also Wood v. Housewright, 900 F.2d 1332, 1334-35 (9th Cir. 1990) (a defendant 19 must purposefully ignore or fail to respond to pain or medical needs which “caused 20 substantial harm.”) Medical malpractice fails to rise to the level of an Eighth Amendment 21 violation. See Estelle, 429 U.S. at 105 (inadvertent failure to provide medical care, mere 22 negligence or medical malpractice and differences of opinion over what medical treatment 23 is proper, do not state an Eighth Amendment claim). “A difference of opinion between a 24 physician and the prisoner - or between medical professionals - concerning what medical 25 care is appropriate does not amount to deliberate indifference.” Colwell, 763 F.3d at 1068. 26 Dr. Zhang states in his declaration that Plaintiff’s medical records, in particular the 27 portions attached to Dr. Zhang’s declaration as exhibits 8 and 9, indicate that in 2012 a 28 request for surgery was submitted on his behalf by his primary care physician at Kern 1 Valley State Prison, but surgery was not approved. (Zhang Decl. ¶ 2, ECF No. 56-5 at 2; 2 Exhs. 8-9, ECF No. 56-2 at 24-115.) The medical notes indicate that Dr. Zhang first saw 3 Plaintiff on October 17, 2014, that Plaintiff was a 34-year-old male with a history of spinal 4 cord injury due to a 2006 motor vehicle accident which left him a paraplegic, that he was 5 in a wheelchair due to an inability to use his legs, he reported feeling well, and “is currently 6 taking morphine ER 30 m.g. b.i.d. for his chronic pain.” (ECF No. 56-2 at 25.) Dr. Zhang 7 states that on July 31, 2019, he began tapering Plaintiff’s morphine prescription down to 8 15 mg twice a day because the risk of continuing the prescription outweighed the benefits, 9 as Plaintiff had been taking 30 mg of morphine twice a day for about five years which 10 placed him at a risk of addiction but he was clinically stable and did not appear to be in any 11 pain or discomfort. (Zhang Decl. ¶ 3, ECF No. 56-5 at 2.) Dr. Zhang’s final visit with 12 Plaintiff was on August 22, 2019, at which he ordered a routine drug serum test which 13 showed no morphine in Plaintiff’s system, and he immediately discontinued the morphine 14 prescription. (Id. ¶ 4, ECF No. 56-5 at 2-3.) Dr. Zhang states that he was assigned to a 15 new facility at RJD on September 1, 2019, and as of that date was no longer Plaintiff’s 16 primary care physician. (Id.) He states that: “I do not recall, and the medical records do 17 not reflect, Plaintiff ever asking me for a surgical referral, MRI, or neurosurgical 18 consultation.” (Id.) 19 Plaintiff contends that in addition to his August 1, 2019, healthcare grievance 20 complaining that Dr. Zhang had the day before ordered a reduction in his morphine, he 21 submitted a Health Care Services Request form on August 6, 2019, stating that since the 22 adjustment of his pain medication “my pain level has increased and I am not getting sleep 23 nor am I able to move or get out [of] my bed without a paralyzing feeling in my spine, 24 neck, and shoulder with stiffness and muscle weakness. Hard time sleeping.” (ECF No. 25 51 at 27.) He attaches to the Third Amended Complaint an order dated October 15, 2019, 26 by Dr. Goyal titled Request for Neurosurgery which states he “would like neurosurgical 27 recommendation to determine if surgery would be indicated in patient who has 28 multifactorial pain of the LUE and L. side of neck. Pain is significantly worsened since 1 about one month when patient’s chronic opioid therapy was discontinued.” (ECF No. 35 2 at 9.) Plaintiff presents an order dated January 17, 2020, by Dr. Casian titled Referral to 3 Neurosurgery Evaluation containing the same determination that Plaintiff needed a follow- 4 up on his past neurosurgical recommendation for surgery including anterior discectomy 5 and cervical fusion. (Id. at 11.) Plaintiff presents an order dated January 23, 2020, by Dr. 6 Casian, titled Request for Neurosurgery, which states: “pain not improved with NSAIDs 7 and Tylenol; patient only attended 1 session of physical therapy. Morphine was 8 discontinued after abnormal urine drug screen. . . . In the past, the patient was seen by 9 neurosurgery that recommended anterior discectomy and cervical fusion. He needs follow- 10 up for reevaluation.” (Id. at 9.) Plaintiff also attaches the results of an MRI from August 11 4, 2020, which indicated: “C6-7 disc herniation with effacement the left lateral recess, 12 spinal stenosis, neural foraminal stenosis, mass effect upon the spinal cord.” (Id. at 14-16.) 13 The only time he identifies as having requested surgery from Dr. Zhang was during their 14 July 31, 2019, visit when his morphine prescription was reduced, but the progress notes for 15 that visit state that he “appeared comfortable throughout the interview today without any 16 signs of pain,” and there is no indication in the notes that he asked for a surgical referral. 17 (ECF No. 56-2 at 64-67.) Plaintiff states that Dr. Zhang told him on many occasions he 18 did not need surgery, and states in a declaration attached to his summary judgment motion 19 that when he asked Dr. Zhang on July 31, 2019, why he was cutting his morphine dose in 20 half, he said it was “due to opiate crisis and Medical Board (CDCR) expenses.” (ECF No. 21 51 at 22.) When Plaintiff asked him on August 22, 2019, why he was ignoring the 2012 22 surgical recommendation, “He told me that it was a long time ago and that I didn’t need 23 the surgery or a MRI.” (Id. at 25.) 24 Plaintiff’s contention that Dr. Zhang’s determination that he did not need surgery 25 even though other doctors thought he should have surgery does not support an Eighth 26 Amendment deliberate indifference claim because it alleges a difference of opinion on the 27 proper course of medical care or, perhaps, medical malpractice arising from Dr. Zhang’s 28 determination that surgery was unnecessary without ordering an MRI. See Colwell, 763 1 F.3d at 1068 (“A difference of opinion between a physician and the prisoner - or between 2 medical professionals - concerning what medical care is appropriate does not amount to 3 deliberate indifference.”); Jett, 439 F.3d at 1096 (allegations of inadequate medical 4 treatment, medical malpractice, or even gross negligence by themselves do not rise to the 5 level of an Eighth Amendment violation); Estelle, 429 U.S. at 105 (inadvertent failure to 6 provide medical care, mere negligence or medical malpractice and differences of opinion 7 over what medical treatment is proper, do not state an Eighth Amendment claim). 8 Rather, to avoid summary judgment, Plaintiff must show there is a triable issue 9 showing Dr. Zhang was “aware of facts from which the inference could be drawn that a 10 substantial risk of serious harm” existed from not ordering an MRI or a surgical 11 consultation or otherwise following-up on the 2012 surgical recommendation, and that he 12 actually “drew that inference.” Farmer, 511 U.S. at 837; Wood, 900 F.2d at 1334-35 (a 13 defendant must purposefully ignore or fail to respond to pain or medical needs and the 14 delay must have “caused substantial harm.”) Plaintiff’s medical records indicate surgery 15 was denied after his 2012 surgical recommendation, and he comes forward with no 16 evidence that he would have been provided surgery had Dr. Zhang followed-up with that 17 recommendation while he was his primary care physician at RJD. Rather, the evidence 18 shows Plaintiff was only reevaluated for surgery after his morphine prescription was 19 terminated. According to Dr. Goyal’s October 15, 2019, note, Plaintiff “was lost to follow- 20 up [of the 2012 surgical recommendation] because he reports that he had been controlled 21 on pain medication.” (ECF No. 56-2 at 82.) The only time Plaintiff states he asked Dr. 22 Zhang for a surgical referral is their July 31, 2019, visit when, in response to Dr. Zhang 23 informing him his morphine was to be discontinued, Plaintiff asked, “can I at least get a 24 follow-up with the neurosurgeon for my spine,” to which he received a reply that: “He told 25 me, I was ok and didn’t need it.” (ECF No. 51 at 22.) And when he asked Dr. Zhang on 26 August 22, 2019, why he was ignoring the 2012 surgical recommendation: “He told me 27 that it was a long time ago and that I didn’t need the surgery or a MRI.” (ECF No. 51 at 28 25.) Although a valid inference that Plaintiff repeatedly asked for surgery can be drawn 1 from Plaintiff’s statement that Dr. Zhang told him on numerous occasions that he did not 2 need surgery, that evidence shows Plaintiff and Dr. Zhang disagreed whether an MRI or a 3 surgical consultation was necessary. The evidence that surgery was denied after a prison 4 doctor recommended it in 2012, and that Plaintiff was not reevaluated for surgery until 5 2019 after Dr. Zhang stopped being his primary care physician and in response to the 6 discontinuation of morphine, does not support a finding Dr. Zhang was aware from 2014- 7 2019 that Plaintiff had a need for surgery or that he actually drew an inference Plaintiff 8 faced a substantial risk of serious harm from not having surgery. Even if that evidence 9 supports a claim that Dr. Zhang conceivably committed malpractice by deciding Plaintiff 10 did not need surgery without ordering an MRI, or by controlling his pain with morphine 11 for years while he was his primary care physician rather than determining if he needed 12 surgery, it does not support an Eighth Amendment deliberate indifference claim. See 13 Estelle, 429 U.S. at 107 (holding that failure by prisoner’s treating physician to adequately 14 diagnose or treat disabling back injury and incapacitating pain by failing to order x-rays or 15 additional diagnostic techniques or other forms of treatment “is a classic example of a 16 matter for medical judgment” which does not constitute cruel and unusual punishment but 17 is at most medical malpractice). 18 In sum, the undisputed evidence shows that in 2012 a prison doctor recommended 19 Plaintiff have surgery but surgery was denied, he was transferred to RJD in 2014 where 20 Dr. Zhang repeatedly told him he did not need surgery, he was not provided a follow-up 21 on the 2012 recommendation until his morphine prescription was discontinued in 2019 and 22 he reported his pain was no longer manageable, and he finally received a new surgical 23 evaluation, and surgery, as a result of the discontinuation of his morphine prescription. 24 Defendant has carried his initial burden on summary judgment by showing there is the 25 absence of a genuine issue of material fact that Dr. Zhang was actually aware there was a 26 substantial risk of serious harm to Plaintiff from not ordering an MRI or a surgical 27 consultation or to otherwise follow-up on the 2012 surgery recommendation while he was 28 Plaintiff’s primary care physician from October 17, 2014, to September 1, 2019. 1 Plaintiff has not identified a triable issue that Dr. Zhang was aware that his failure 2 to order an MRI, a surgical consultation or otherwise follow-up on the 2012 surgical 3 recommendation while he was Plaintiff’s primary care physician presented a substantial 4 risk of serious harm to Plaintiff or that Dr. Zhang deliberately and knowingly disregarded 5 such a risk. Rather, Plaintiff relies on a 2012 recommendation for surgery which was 6 denied, and recommendations for surgical evaluation made after Dr. Zhang stopped being 7 his primary care physician and after the discontinuation of his morphine prescription 8 revealed a need for surgery to address pain which had been controlled by morphine while 9 Dr. Zhang was his primary care physician. Plaintiff has failed to carry his burden on his 10 summary judgment motion or in opposing Defendant’s summary judgment motion. 11 Accordingly, Plaintiff’s motion for summary judgment on the merits of his Eighth 12 Amendment claim for deliberate indifference to his serious medical needs against Dr. 13 Zhang presented in the Third Amended Complaint is DENIED and Defendant’s cross- 14 motion for summary judgment on the merits of that claim is GRANTED. 15 D. Qualified immunity 16 Defendant claims entitlement to qualified immunity on the basis that Plaintiff does 17 not have a clearly established right to his preferred treatment option, and prison doctors are 18 immune from liability arising from a difference of medical opinion with an inmate. (ECF 19 No. 56 at 19-20.) Because Defendant is entitled to summary judgment on other grounds, 20 the Court declines to address qualified immunity. See Saucier v. Katz, 533 U.S. 194, 201 21 (2001) (“If no constitutional right would have been violated were the allegations 22 established, there is no necessity for further inquiries concerning qualified immunity.”); 23 County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998) (“[The better approach to 24 resolving cases in which the defense of qualified immunity is raised is to determine first 25 whether the plaintiff has alleged the deprivation of a constitutional right at all.”) 26 III. Plaintiff’s Motion for Appointment of Counsel 27 Plaintiff states he is recovering from surgery and unable to effectively use his right 28 hand to write or type documents, and without the assistance of counsel he will be unable 1 draft any necessary legal documents. (ECF No. 59 at 1, 3.) There is no constitutional 2 ||right to counsel in a civil case, and the decision to appoint counsel under 28 U.S.C. 3 ||§ 1915(e)(1) is within “the sound discretion of the trial court and is granted only in 4 exception circumstances.” Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th 5 2004); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (noting that only 6 || “exceptional circumstances” support such a discretionary appointment). Such exceptional 7 || circumstances exist where there is cumulative showing of both a likelihood of success on 8 merits and an inability of the pro se litigant to articulate his claims in light of their legal 9 ||complexity. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). 10 Plaintiff has demonstrated he is capable of articulating the facts and circumstances 11 |/relevant to his claims. Agyeman, 390 F.3d at 1103. In addition, as is clear from the 12 discussion of the merits of his claim, there 1s no indication he would benefit from the 13 |/assistance of counsel. Plaintiffs motion for appointment of counsel is DENIED. 14 Conclusion and Orders 15 Based on the foregoing, IT IS ORDERED that: 16 1. Plaintiff's motion for appointment of counsel [ECF No. 59] is DENIED. 17 2. Plaintiff's motion for summary judgment [ECF No. 51] is DENIED. 18 3. Defendant Dr. Zhang’s Motion for summary judgment [ECF No. 56] 1s 19 || GRANTED. The Clerk of Court is directed to enter judgment in favor of Defendant Dr. 20 || Zhang. 21 IT IS SO ORDERED. 22 |!Dated: February 10, 2022 Q 1 er : 2 23 Hon. Anthony J.Battaglia 24 United States District Judge 25 26 27 28