ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
Pursuant to 28 U.S.C. section 636, the Court has reviewed the Third Amended Complaint, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that: (1) the Report and Recommendation of the Magistrate Judge is accepted and adopted; (2) summary judgment is granted in favor of Defendant; and (3) Judgment shall be entered dismissing the action with prejudice.
IT IS FURTHER ORDERED that the Clerk serve forthwith a copy of this Order, the Magistrate Judge's Report and Recommendation and the Judgment of this date on Plaintiff and counsel for Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Dolly M. Gee, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
BACKGROUND
Plaintiff, a state prisoner at the Chuckawalla Valley State Prison, filed this pro se civil rights action on September 14, 2016. The original Complaint concerned medical treatment within the prison and named as Defendants physician's assistant Orry Marciano and licensed vocational nurse Beatres. Plaintiff generally complained that inmates assertedly did not receive proper medical treatment. Plaintiff also alleged that Defendant Marciano prescribed "strange medicine" and that Defendant Beatres showed no compassion and "is always mad at you even yelling sometimes."
On September 26, 2016, the Court issued an "Order Dismissing Complaint With Leave to Amend." On October 24, 2016, Plaintiff filed a First Amended Complaint. The First Amended Complaint concerned Plaintiff's alleged foot problems, but the pleading did not name any Defendant or assert any specific claims for relief.
On December 15, 2016, the Court issued an "Order Dismissing First Amended Complaint With Leave to Amend." On January 5, 2017, Plaintiff filed a Second Amended Complaint. The Second Amended Complaint alleged, in conclusory fashion, that Defendant Marciano subjected Plaintiff to disability discrimination, delayed treatment and prescribed medicine that assertedly caused Plaintiff's body to deteriorate. Plaintiff further alleged that Defendant Beatres "had the same opinion" as Marciano, delayed Plaintiff's treatment, yelled at Plaintiff and told Plaintiff to stop complaining. Plaintiff purported to assert claims for violation of the Americans With Disabilities Act, 42 U.S.C. section 12321 et seq., unspecified state prison regulations and the "Armstrong v. Davis ordered Remedial Plan." Plaintiff also asserted a negligence claim and a claim for delay of Plaintiff's medical care due to overcrowding.
On January 19, 2017, the Magistrate Judge filed a Report and Recommendation recommending dismissal of the Second Amended Complaint without leave to amend, with prejudice with respect to Plaintiff's federal claims and without prejudice with respect to any state law claims.
Plaintiff filed objections to the Report and Recommendation on February 10, 2017, suggesting that Plaintiff might be able to state a cognizable claim for relief against Defendant Marciano. Accordingly, on February 13, 2017, the Magistrate Judge issued a Minute Order withdrawing the Report and Recommendation and granting Plaintiff leave to file a Third Amended Complaint.
On March 21, 2017, Plaintiff filed a Third Amended Complaint, alleging claims of unconstitutionally inadequate medical care against Defendants Orry Marciano and Beatrice Imakando. On August 22, 2017, Defendants filed a motion for summary judgment alleging that Plaintiff had not exhausted available administrative remedies as required by 42 U.S.C. § 1997e(a). Plaintiff filed oppositions to that motion for summary judgment on September 25, 2017 and October 30, 2017.
On November 13, 2017, the Magistrate Judge filed a Report and Recommendation recommending that the Court issue an order: (1) denying Defendant Marciano's motion for summary judgment; (2) granting summary judgment in favor of Defendant Imakando and dismissing the claims against Imakando without prejudice; and (3) ordering Defendant Marciano to file a Answer to the Third Amended Complaint. On December 29, 2017, the District Judge issued an Order Adopting Findings, Conclusions and Recommendations of United States Magistrate Judge.
On January 25, 2018, Defendant Marciano, the sole remaining Defendant, filed an Answer to the Third Amended Complaint. On July 18, 2018, Defendant Marciano filed a "Motion for Summary Judgment, etc." Also on July 18, 2018, Defendant Marciano filed an application to file certain documents related to the Motion for Summary Judgment under seal, which the Magistrate Judge granted on that date.
On July 19, 2018, the Magistrate Judge issued a Minute Order inter alia advising Plaintiff of the requirements of Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952 (9th Cir. 1997) (en banc), cert. denied, 527 U.S. 1035 (1999). The Minute Order also advised Plaintiff that failure to file timely opposition to the Motion for Summary Judgment might result in dismissal of the action for failure to prosecute.
Plaintiff did not file any timely opposition to the Motion for Summary Judgment. Accordingly, on August 30, 2018, the Magistrate Judge filed a Report and Recommendation recommending dismissal of the action for failure to prosecute.
On September 24, 2018, the Magistrate Judge received Plaintiff's "Motion to Opposed [sic] Notice of Motion for Summary Judgement [sic]." On September 25, 2018, the Magistrate Judge issued a Minute Order construing this document as Plaintiff's belated opposition to the Motion for Summary Judgment ("Opposition") and withdrawing the August 30, 2018 Report and Recommendation.
SUMMARY OF PLAINTIFF'S ALLEGATIONS
In the unverified Third Amended Complaint, Plaintiff alleges the following:
Plaintiff suffers from a rare abnormal foot disease called "Ledderhose disease," as a result of which Plaintiff has excessive redness and large "bumps/tumors" on the tendons of his feet. The disease impairs normal walking functioning. At a hospital in October of 2015, Plaintiff saw a specialist who made the diagnosis after reviewing an MRI.
At all times, Defendant Marciano, who is a prison physician's assistant, knew that Plaintiff had been diagnosed with Ledderhose disease, and knew that the disease caused Plaintiff to suffer extreme pain and difficulty walking. After Plaintiff made numerous attempts to see the attending physician, Defendant agreed to see Plaintiff. Defendant determined that Plaintiff's feet were excessively red and had large scale bumps on the tendons. "This was actually his reading the reports from the specialist and his viewing of [Plaintiff's] feet even though he had months in advance notice by this finding but would not see me until months later (February [sic] 2016)."
Defendant prescribed Tylenol and therapy. Defendant told Plaintiff "to seek out a hammer and smash the bumps down with said hammer [¶] . . . all the while laughing at me in the presents [sic] of Nurse Beatres [sic]" [footnote omitted]. Smashing the bumps with a hammer is not a treatment for Ledderhose disease. After this "complete shame and medical mockery" of Plaintiff, Defendant ordered Plaintiff to leave.
Plaintiff thereafter submitted a number of medical request forms, but was mocked with sarcasm and never given any type of relief. Defendant Marciano discarded Plaintiff's requests to see the attending physician and denied Plaintiff entry to the medical facility. Former Defendant Ms. Beatres mocked and laughed at Plaintiff and refused or delayed Plaintiff's efforts to obtain medical treatment.
Plaintiff seeks compensatory, nominal and punitive damages and unspecified declaratory relief.
STANDARDS GOVERNING MOTION FOR SUMMARY JUDGMENT
Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The party moving for summary judgment bears the initial burden of offering proof of the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where a plaintiff bears the burden of proof with respect to the merits of the plaintiff's claims, the defendants may meet their initial burden on summary judgment either by producing evidence negating an essential element of the plaintiff's claim or by showing that the plaintiff does not have enough evidence of an essential element to carry his ultimate burden of persuasion. See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001); Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).
Once the moving party's burden is met, the party opposing the motion is required to go beyond the pleadings and, by the party's own affidavits or by other evidence, designate "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Miller v. Glenn Miller Productions, Inc., 454 F.3d 975, 987 (9th Cir. 2006). The party opposing the motion must submit evidence sufficient to establish the elements that are essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. at 322.
The Court must "view the facts in the light most favorable to the non-moving party and draw reasonable inferences in favor of that party." Scheuring v. Traylor Bros., Inc., 476 F.3d 781, 784 (9th Cir. 2007). However, "inferences are not drawn out of thin air, but from evidence." Richards v. Nielson Freight Lines, 602 F.Supp. 1224, 1247 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th cir. 1987). Where different ultimate inferences reasonably can be drawn, summary judgment is inappropriate. Miller v. Glenn Miller Productions, Inc., 454 F.3d at 988.
A factual dispute is "genuine" only if there is a sufficient evidentiary basis upon which a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" only if it might affect the outcome of the lawsuit under governing law. Id. "At the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence." Porter v. California Dep't of Corrections, 419 F.3d 885, 891 (9th Cir. 2005) (citation omitted).
"Evidence may be offered `to support or dispute a fact' on summary judgment only if it could be presented in an admissible form at trial." Southern California Darts Ass'n v. Zaffina, 762 F.3d 921, 925-26 (9th Cir. 2014) (citing Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003), cert. denied, 541 U.S. 937 (2004)) (internal quotations omitted); see also Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 846 (9th Cir. 2004). Conclusory statements are insufficient to defeat summary judgment, however. Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 950 n.9 (9th Cir. 2011) (en banc), cert. denied, 565 U.S. 1200 (2012); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) ("Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment.").
Here, Plaintiff bears the burden of proof on his deliberate indifference claim. See Smith v. Green, 2016 WL 4721480, at *8 (E.D. Cal. Sept. 8, 2016). To defeat summary judgment on claims as to which Plaintiff bears the burden of proof at trial, Plaintiff "`must produce at least some significant probative evidence tending to support the complaint.'" Smolen v. Deloitte, Haskins & Sells, 921 F.2d 959, 963 (9th Cir. 1990) (citation omitted).
SUMMARY OF EVIDENCE
I. Defendant's Evidence
Defendant has submitted his own declaration, the declaration of Beatrice Imakando, the declaration of Brenda Milke, and exhibits. Defendant also relies on portions of Plaintiff's deposition.
A. Declarations; Medical Evidence
The declarations and the medical evidence submitted by Defendant show the following:
Since April 2, 2014, Defendant has been employed as a Physician Assistant with the California Department of Corrections and Rehabilitation at the Chuckawalla State Prison (Declaration of Orry Marciano in Support of Motion for Summary Judgment [unredacted], ¶¶ 1-2).1 Defendant first saw Plaintiff on November 4, 2015 (id., ¶ 3). Defendant also examined Plaintiff on December 14, 2015, January 27, 2016, February 10, 2016, March 17, 2016, April 6, 2016, May 6, 2016, June 6, 2016, July 5, 2016, August 8, 2016 and August 31, 2016 (id., ¶¶ 4-11, 12-14). The progress notes reflecting these visits do not show that Plaintiff complained of any foot problem or that Plaintiff received treatment for any foot problem (id., ¶¶ A-F, J-K).
On July 10, 2016, Plaintiff submitted a Health Care Service Request Form complaining of pain in his foot ("Declaration of Brenda Milke, etc.," ¶ 2 & Ex. 1). On July 12, 2016, Registered Nurse Brenda Milke, a Hispanic, examined Plaintiff (id.). Plaintiff complained of pain in his feet which had worsened because Plaintiff had been running (id., ¶ 3). Milke noticed small, firm bumps on both of Plaintiff's feet that measured approximately one centimeter by one centimeter (id.). Milke did not notice any swelling, redness or broken skin on Plaintiff's feet (id.).
According to Milke, the primary care provider for the yard that day examined Plaintiff's feet and informed Plaintiff that the bumps were calcium deposits (id., ¶ 4 & Ex. 1). Plaintiff was instructed to take pain medication, apply warm compresses and limit activity (id.).
On July 14, 2016, Registered Nurse Beatrice Imakando examined Plaintiff in response to a Health Care Services Form Plaintiff had submitted ("Declaration of Beatrice Imakando, etc.," ¶ 2 & Ex. 1). Plaintiff said that for a week he had been experiencing pain in his feet while walking (id., ¶ 3 & Ex. 1). Plaintiff said a doctor previously had diagnosed calcium deposits (id., Ex. 1). Imakando noticed small, hard bumps on both of Plaintiff's feet measuring one centimeter by one centimeter, but did not notice any swelling or redness (id., ¶ 3 & Ex. 1). Plaintiff was provided a renewal of his Tylenol prescription (id., p. 4).
On July 15, 2016, Defendant renewed Plaintiff's prescription for acetaminophen for pain (Declaration of Orry Marciano in Support of Motion for Summary Judgment [redacted], ¶ 12 & Ex. L).2 It appears this was the prescription renewal to which Milke referred (see Declaration of Orry Marciano in Support of Motion for Summary Judgment [redacted], ¶ 12 & Ex. L).
Defendant ordered x-rays of Plaintiff's foot, and received a report concerning the x-rays on September 22, 2016, (id., ¶ 15 & Ex. O). Defendant understood the report to mean that there was either a bone fragment in Plaintiff's foot or that the sesamoid bone in the tendon had a fracture (id.).3
On the same day, September 22, 2016, Defendant signed a Physician Request for Services to have Plaintiff evaluated by a podiatrist and Defendant submitted the form to a physician (id., ¶ 16 & Ex. P). The physician did not approve the form (id., ¶ 17). Instead, on September 26, 2016, the physician instructed Defendant to refer Plaintiff to an orthopedist (id., p. 17). That day, September 26, 2016, Defendant signed a Physician Request for Services to have Plaintiff examined by an orthopedist (id. & Ex. Q). The physician approved this request the same day (id.).
On September 29, 2016, an orthopedist examined Plaintiff, diagnosed Plaintiff's foot condition as Ledderhose disease and recommended that Plaintiff be referred to a podiatrist (id., ¶ 18). On the same day, Defendant signed a Physician Request for Services form for an evaluation by a podiatrist, which the physician approved (id., ¶ 19, & S).
On October 11, 2016, a podiatrist examined Plaintiff via a "telemedicine" audio/visual connection (id., ¶ 20). The podiatrist agreed with the diagnosis of Ledderhose disease, although he called the condition "Plantar Fibromatosis" (id. & Ex. T). The podiatrist recommended that Plaintiff come to the office for an injection of corticosteroid and lidocaine and that Plaintiff receive soft tennis shoes and a soft insert (id.).
Defendant examined Plaintiff two days later, on October 13, 2016 (id., ¶ 21). Defendant noted the podiatrist's recommendation that Plaintiff wear soft shoes and come to the office to receive an injection (id., ¶ U).
Defendant arranged to have Plaintiff taken to the podiatrist's office on November 4, 2016 (id., ¶ 22, & Ex. V). On that date, Plaintiff received an injection of corticosteroid and lidocaine in his foot (id.). The podiatrist recommended soft shoes with a soft arch support (id.).
Defendant examined Plaintiff on November 9, 2016 (id., ¶ 23 & Ex. W). On that day, Defendant signed a Physician Request for Services to have Plaintiff fitted for orthotic shoes in accordance with the podiatrist's recommendation (id. & Ex. X). Plaintiff subsequently was fitted for and received the shoes (id.).
Plaintiff continues to receive treatment for Ledderhose disease (id., ¶ 24). He has been seen periodically by a podiatrist, he has been shown stretching exercises to perform, he has received additional cortisteroid injections in his feet, and he continues to receive acetaminophen (id.).
B. Plaintiff's Deposition
In his deposition, Plaintiff testified as follows:
Plaintiff arrived at the prison in October of 2015 and was transferred to the C yard two weeks later (Deposition of George Karas, Ex. 1 to "Declaration of Benjamin Barnouw, etc.," ECF Dkt. No. 54-1, pp. 26-27).4 At that time, Plaintiff's feet were not hurting very much, but the pain worsened as Plaintiff continued walking and running (id., p. 25; Deposition of George Karas, Ex. 2 to "Declaration of Benjamin Barnouw, etc.," ECF Dkt. No. 58, p. 8). Shortly after Plaintiff arrived at the yard, Plaintiff saw Defendant for hearing problems and blood pressure problems (Deposition of George Karas, Ex. 2 to "Declaration of Benjamin Barnouw, etc.," ECF Dkt. No. 58, pp. 7-8, 10). At that time, Plaintiff mentioned his foot pain, but the pain was not excruciating and was not the main focus at the time (id., pp. 8-10). Plaintiff testified that he did not feel that Defendant unfairly dismissed Plaintiff's complaint concerning foot pain (id., p. 10).
In 2016, Plaintiff told a Hispanic nurse of the pain in Plaintiff's feet (Deposition of George Karas, Ex. 1 to "Declaration of Benjamin Barnouw, etc.," ECF Dkt. No. 54-1, pp. 14-16).5 The nurse called in Defendant, who told Plaintiff that Plaintiff's feet had calcium deposits (id., p. 15). Defendant "showed [Plaintiff] one [a calcium deposit] on his [Defendant's] arm" and said: `Yeah, I got one right here too. You can pound them or smash them with a hammer and they'll dissolve'" (id.).
Plaintiff did not feel that Defendant was making fun of Plaintiff, but felt "more like put down, like [Plaintiff's] needs weren't important to him at that time" (id.). Plaintiff was not sure what Defendant thought (id.). Plaintiff did not think Defendant knew Plaintiff had Ledderhose disease, but only knew that Plaintiff had bumps on his feet and pain from walking (id., p. 17). Plaintiff believed Defendant "did not know what was wrong with [Plaintiff]" (id., p. 13). Plaintiff said he did not know if Defendant had ever "seen that on feet" before (id.). Defendant gave Plaintiff Tylenol for the pain in his feet (id.).
Plaintiff assumed it was Defendant who had arranged for Plaintiff to see an orthopedist in September of 2016 (id., p. 12). Defendant implemented all of the podiatrist's recommendations (id., p. 12). Plaintiff testified that, in this lawsuit, Plaintiff is not complaining about anything Defendant did after Plaintiff was diagnosed with Ledderhose disease (id., pp. 19-20). Plaintiff said Defendant had "conformed [sic] and helped me with everything" after that diagnosis (id.). Although there were delays when Plaintiff attempted to see Defendant, Plaintiff did not "believe it was intentional" (id., p. 30). Plaintiff did not know whether the delays in seeing Defendant were attributable to Defendant or to "some other reason" (id.).
Plaintiff testified that, in his Third Amended Complaint, Plaintiff incorrectly stated that he saw a specialist who performed an MRI in October of 2015 (id., p. 17). The correct date was October of 2016 (id., pp. 17-18).
Plaintiff said he had no animosity towards Defendant, who assertedly treated Plaintiff "like a human being" (id., pp. 12-13).
II. Plaintiff's Opposition
Although Plaintiff has submitted only an unverified opposition to the Motion for Summary Judgment, the Court will consider the contents of this document. See Southern California Darts Ass'n v. Zaffina, 762 F.3d 921, 925-26 (9th Cir. 2014); Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003), cert. denied, 541 U.S. 937 (2004); but see Soto v. Unknown Sweetman, 882 F.3d 865, 873-74 (9th Cir. 2018), pet. for. cert. filed (No. 18-5487) (Aug. 1, 2018).
Plaintiff contends the medical record submitted by Defendant is "frivolous and overshadowed with plausible declaratory statements" (Opposition, p. 3). Otherwise, the Opposition addresses Plaintiff's treatment for alleged conditions other than his foot condition. Plaintiff contends Defendant was required to treat Plaintiff's hearing problem because this problem assertedly was a security issue (id., pp. 3-4). Plaintiff asserts that Defendant did not treat Plaintiff weekly for high blood pressure (id., p. 4). Plaintiff allegedly was never called in weekly or monthly "for anything." Plaintiff alleges he asked for an "Olsen review" of his medical file a little over two years ago, and the review found that the file did not contain records of the "numerous weekly checkups" Defendant assertedly provided (id., pp. 4-5). Defendant purportedly did not treat Plaintiff "with any type of continuality [sic]," and allegedly only began to take Plaintiff seriously after Plaintiff filed this action (id., p. 5). Defendant allegedly only cared about saving the State money (id.). Defendant allegedly was rude and made Plaintiff wait in the waiting room (id.). Defendant's actions assertedly are "beyond malpractice" and "unethical" (id., pp. 5-6).
The Opposition also alleges that Plaintiff purportedly encountered difficulties in filing a timely opposition to the present Motion for Summary Judgment. These difficulties related to the purported demands of Plaintiff's college courses, programming and employment, as well as allegedly limited law library access.
DISCUSSION
Prison officials can violate the Constitution if they are "deliberately indifferent" to an inmate's serious medical needs. See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Estelle v. Gamble, 429 U.S. 97, 104 (1976). Defendant does not dispute that Plaintiff's Ledderhose disease presented a serious medical need. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (examples of "serious medical needs" include "a medical condition that significantly affects an individual's daily activities," and "the existence of chronic and substantial pain"; citation and internal quotations omitted).
To be liable for "deliberate indifference," a jail official must "both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. at 837. "[A]n official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot . . . be condemned as the infliction of punishment." Id. at 838. Allegations of negligence do not suffice. Estelle v. Gamble, 429 U.S. at 105-06; Lopez v. Smith, 203 F.3d at 1131. Thus, inadequate treatment due to accident, mistake, inadvertence, or even gross negligence does not amount to a constitutional violation. Estelle v. Gamble, 429 U.S. at 105-06; Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). "[A]n official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot . . . be condemned as the infliction of punishment." Farmer v. Brennan, 511 U.S. at 838.
Prison officials may demonstrate deliberate indifference when they "deny, delay, or intentionally interfere with medical treatment." Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation omitted). However, negligent delays do not violate the Constitution. Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1988) (negligent delays in administering pain medication do not violate the Constitution). Furthermore, a deliberate indifference claim based on alleged delay in medical treatment is not cognizable unless the delay caused harm to the plaintiff. See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); Shapley v. Nevada Bd. of State Prison Commissioners, 766 F.2d 404, 407 (9th Cir. 1985). Furthermore, Plaintiff must show that Defendant's act or omission caused the alleged constitutional deprivation. See Redman v. County of San Diego, 942 F.2d 1435, 1454 (9th Cir. 1991) (en banc), cert. denied, 502 U.S. 1074 (1992), abrogated in part on other grounds, Farmer v. Brennan, 511 U.S. 825 (1994); Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988).
In the present case, Plaintiff's wholly conclusory allegation that the medical records submitted by Defendant are "frivolous" is insufficient to create a triable issue of material fact. See Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 950 n.9 (9th Cir. 2011) (en banc), cert. denied, 565 U.S. 1200 (2012). The uncontroverted evidence shows that Defendant was not aware that Plaintiff suffered from Ledderhose disease until late September of 2016. Although there is evidence to show that Defendant initially may have misdiagnosed Plaintiff's foot condition as calcium deposits, it is uncontroverted that Defendant nevertheless requested an x-ray. The record does not show when Defendant made this request, but Plaintiff has produced no evidence showing that any delay purportedly was attributable to Defendant. The uncontroverted evidence also shows that on September 30, 2016, the day Defendant received the x-ray report, Defendant submitted a request to a physician for a podiatrist to evaluate Plaintiff. The record does not show that the delay in obtaining an evaluation by a podiatrist was attributable to Defendant. To the contrary, such delay appears to have resulted, at least in part, from the initial refusal of the physician to approve a podiatric evaluation and the physician's referral to an orthopedist. The uncontroverted evidence shows that Defendant provided pain medication to Plaintiff, ordered an x-ray, referred Plaintiff to a podiatrist, and provided the treatment the podiatrist later recommended. Plaintiff testified at his deposition that he believed Defendant was unaware of Plaintiff's Ledderhose disease until after the doctor's diagnosis, and that after the diagnosis Defendant provided appropriate treatment to Plaintiff.
To the extent the record suggests Defendant initially misdiagnosed Plaintiff's foot condition as calcium deposits, any such misdiagnosis would amount to no more than medical negligence, which is not a constitutional violation. See Estelle v. Gamble, 429 U.S. at 105-06; Toguchi v. Chung, 391 F.3d at 1057. Although Plaintiff contends that Defendant told Plaintiff to hit the bumps on Plaintiff's feet with a hammer to dissolve them, Plaintiff also states that Defendant told Plaintiff that Defendant himself supposedly had used this method on Defendant's own calcium deposits. Regardless of whether Defendant made this suggestion jokingly or seriously, Plaintiff has produced no evidence from which a trier of fact plausibly might infer under the circumstances presented that the suggestion betrayed deliberate indifference. See Estelle v. Gamble, 429 U.S. at 105-06 (allegations of negligence insufficient); see also Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (verbal harassment insufficient to state a constitutional claim); Farmer v. Alavi, 2010 WL 2164033, at *13 (C.D. Cal. Mar. 9, 2010), adopted, 2010 WL 2164022 (C.D. Cal. May 25, 2010) (allegations of prison physician's poor bedside manner insufficient). In any event, the uncontroverted evidence is that, at the time of the suggestion, Defendant was ignorant of the actual nature of Plaintiff's serious medical need, i.e., a need for treatment for Ledderhose disease.
In his Opposition, Plaintiff apparently attempts to assert new claims not contained in the Third Amended Complaint, including claims concerning Defendant's alleged treatment of Plaintiff's blood pressure problems and/or purported deficiencies in Plaintiff's file. The Court will not consider Plaintiff's new claims at this late date. "It is well-settled that the "issues on summary judgment are framed by the Complaint." Cole v. CRST, Inc., 150 F.Supp.3d 1163, 1169 (C.D. Cal. 2015) (citation and internal quotations omitted). "Since the issues in the complaint guide the parties during discovery and put the defendant on notice of what evidence is necessary to defend against the allegations, courts routinely hold that a plaintiff cannot oppose summary judgment based on a new theory of liability because it would essentially blindside the defendant with a new legal issue after the bulk of discovery has likely been completed." Id. (citations and internal quotations omitted); see also Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (party cannot raise new claim in opposition to motion for summary judgment).
To the extent Plaintiff's Opposition may request a continuance to conduct additional discovery, any such request is insufficient. A party requesting a continuance pursuant to Rule 56(f) must identify by affidavit the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment. See Tatum v. City & County of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006); Fed. R. Civ. P. 56(f). Plaintiff's Opposition does not satisfy these requirements.
In sum, because Plaintiff, who bears the burden of proof, has failed to produce evidence sufficient to raise a genuine issue of material fact with respect to his claim of deliberate indifference to Plaintiff's serious medical needs, Defendant is entitled to summary judgment.
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) granting summary judgment in favor of Defendant; and (3) dismissing the action with prejudice.
DATED: October 3, 2018.
/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
