1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALBERTO SANDOVAL, Case No.: 3:19-cv-1584-JO-RBB CDCR #AM-0186, 12 ORDER: (1) GRANTING Plaintiff, 13 DEFENDANT GULDSETH’S vs. MOTION FOR SUMMARY 14 JUDGMENT [ECF No. 46]

15 PURSUANT TO FED. R. CIV. P. 56 DAVID GULDSETH, M.D, AND 16

Defendant. 17 (2) DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION 18 [ECF No. 55] 19

20 On August 23, 2019, Plaintiff Alberto Sandoval (“Plaintiff” or “Sandoval”), 21 currently proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 22

. See Compl., ECF No. 1. In his complaint, Sandoval claims that Dr. 23 David Guldseth violated his constitutional right to adequate medical care while he was 24 housed at R.J. Donovan Correctional Facility (“RJD”).1 See

25

26 1 On February 11, 2022, Sandoval filed a motion which indicated he had changed addresses. See ECF No. 27 49. According to the California Department of Corrections and Rehabilitation (“CDCR”) Inmate Locator, there is no longer an “Alberto Sandoval” with inmate number AM-0186 in CDCR custody. 28 1 I. 2 BACKGROUND 3 A. Plaintiff’s Allegations Against Dr. Guldseth2 4 In his First Amended Complaint, Sandoval alleges he suffers from a “significant 5 joint degenerative disease” and a loss of cartilage in his right knee. Am. Compl., ECF No. 6 8, (hereafter “FAC”) ¶ 1. As a result, Sandoval suffers from “persistent pain and swelling” 7 in his right knee that hinders his ability to stand or walk.

at ¶¶ 3–5. 8 Plaintiff alleges that in January 2016, Dr. Casey, an orthopedic surgeon, 9 recommended total right knee replacement surgery to treat his condition.

. After 10 Sandoval transferred to RJD, however, Dr. Guldseth became his primary care physician. 11

. Ignoring Dr. Casey’s surgery recommendation, Dr. Guldseth treated Sandoval’s 12 knee with pain medication.

. Sandoval complained that the pain medications were 13 ineffective and asked to be referred to an orthopedic specialist.

. Dr. Guldseth 14 ultimately referred Sandoval to an outside specialist, Dr. Cham, who recommended total 15 right knee replacement.

. Dr. Cham counseled Plaintiff that in order to be a good 16 surgical candidate, he would need to stop his Morphine treatment and lose weight before 17 the surgery.

. The surgery was scheduled for May 9, 2018.

. When 18 Sandoval saw Dr. Guldseth two weeks before the scheduled surgery, Dr. Guldseth told 19 Sandoval he would not be cleared for surgery until he lost 50 pounds and was weaned off 20 Morphine.

. The surgery was canceled and Dr. Guldseth refused to refer Sandoval 21 back to a specialist for reassessment until he lost the weight.

. 22 B. Undisputed Facts Regarding Plaintiff’s Medical Care3 23 Sandoval began seeing Dr. Guldseth as his primary care physician on February 8, 24

25 26 2 On May 13, 2022, the Court dismissed Sandoval’s claims against Dr. Roman Cham for failure to effect service pursuant to Federal Rule of Civil Procedure 4(m). See ECF No. 58. 27 3 Plaintiff’s FAC is not verified and he did not file an opposition to Defendant’s motion for summary 28 1 2017, after Sandoval was transferred to RJD. See Def.’s Decl., ECF No. 46-2 (hereafter 2 “Def.’s Decl.”) ¶ 2; Def.’s Ex. A at 1; FAC ¶ 16. During this first appointment, Dr. 3 Guldseth reviewed Sandoval’s history, medications and current complaints and noted that 4 Sandoval suffered from several other health issues in addition to the severe joint 5 degeneration of his right knee, including hypertension, glaucoma, sleep apnea, right 6 shoulder derangement, peptic ulcer disease, prediabetes, benign prostatic hypertrophy, 7 gout and morbid obesity. Def.’s Decl. ¶ 2; Def.’s Ex. A. at 1. Dr. Guldseth’s notes indicate 8 that Sandoval told Dr. Guldseth that “he was denied right knee surgery recently.” Def.’s 9 Ex. A at 1. Based on the above, Dr. Guldseth embarked on a treatment plan of managing 10 Sandoval’s knee pain with medication and physical therapy. See Def.’s Ex. A at 2; Def.’s 11 Decl. ¶ 2. He also recommended Sandoval try to lose weight. Def.’s Decl. ¶ 2. At that time, 12 Sandoval, who is five feet, eight inches tall, weighed 279 pounds. Def.’s Ex. A at 2. 13 During their next appointment, Plaintiff raised the question of knee surgery but Dr. 14 Guldseth kept him on his pain medication treatment plan. Def.’s Ex. B at 4. Medical records 15 indicate Sandoval asked Dr. Guldseth “when he [could] have knee surgery” at his next 16 appointment on February 23, 2018. Id.; Def.’s Decl. ¶ 3. Sandoval said he had been told 17 previously that he “would have to lose weight before he could have his surgery” and asked 18 “how much weight he would need to lose.” Def.’s Ex. B at 4. Dr. Guldseth told Sandoval 19 that ideally his Body Mass Index (“BMI”) should be “normal or near normal” for the best 20 surgical outcome. Id; see also Def.’s Decl. ¶ 3. At the time, Plaintiff weighed 268 pounds 21 and his BMI was 40.7. Def.’s Ex. B at 4. (A BMI over 30 indicates obesity. Def.’s Decl. ¶ 22 3.) Dr. Guldseth kept Sandoval on a pain management regimen but adjusted it by adding 23 Gabapentin4 as a pain reliever and taking Plaintiff off Elavil because Plaintiff complained 24 of its side effects.

; see also Def.’s Ex. B at 4. 25 26 27 4 Gabapentin is commonly prescribed for seizure conditions but can also be used to treat pain. See Def.’s Decl. ¶ 4. 28 1 When Sandoval saw Dr. Guldseth again on March 23, 2017 for his knee pain, the 2 doctor discussed surgery as an option and advised Sandoval that he would need to lose 3 weight to be a good surgical candidate.5 Def.’s Ex. D at 8. Dr. Guldseth reviewed Plaintiff’s 4 treatment history with Dr. Casey, an orthopedic specialist, and noted that Dr. Casey had 5 recommended surgery for total right knee replacement.

at 8–9; see also Def.’s Decl. ¶ 6 7–8. Dr. Guldseth explained to Plaintiff that, while Dr. Casey had previously recommended 7 surgery, Sandoval was ultimately denied the surgery because of his weight.6 Def.’s Ex. D 8 at 8; Def.’s Decl. ¶¶ 6, 9. Given that Sandoval weighed 123.8 kilograms and had a BMI of 9 41.4 at that time, Dr. Guldseth informed Sandoval would have to lose some weight before 10 any surgery, to ensure a positive outcome. Def.’s Ex. D at 8. Dr. Guldseth advised him to 11 “exercise, drink plenty of fluids and decrease carbohydrate intake by 50%.”

; see 12 also Def.’s Decl. ¶ 9. Dr. Guldseth noted he would “refer Sandoval to Physical Therapy 13 and Pain Management Group.” Def.’s Ex. D at 9. He also continued Sandoval’s 14 prescriptions for Tylenol No. 3 with Codeine and Gabapentin.

15 Sandoval saw Dr. Guldseth and other health care professionals at least four more 16 times between April and September 2017 for his knee pain. See Def.’s Exs. E–H. On April 17 26, 2017, Dr. Guldseth ordered a “[r]epeat x-ray of the right knee” and noted that a request 18 for Sandoval to receive physical therapy was “pending.” Def.’s Ex. E at 11. Plaintiff 19 ultimately refused the knee x-rays, which had been scheduled for May 4, 2017.7 Def.’s Ex. 20 F at 12. On May 31, 2017, Sandoval had another appointment during which he complained 21 of uncontrolled knee pain. Def.’s Ex. G at 13. Dr. Guldseth noted that the Tylenol No. 3 22 23 24 5 Plaintiff also saw Dr. Guldseth for stomach pain on March 16, 2017. Notes from that appointment do 25 not reflect any discussion of Sandoval’s knee pain. Def.’s. Ex. C. At the time, Sandoval weighed 122.9 kilograms (approximately 271 pounds) and had a BMI of 41.1.

. 26 6 It is unclear from the record who specifically made the ultimate decision to deny Sandoval knee 27 replacement surgery in 2016. See e.g., Def.’s Ex. D at 8; see also Def.’s Ex. B at 4.

28 1 with Codeine did not appear to be managing Sandoval’s pain, so he discontinued the 2 Tylenol No. 3 and put Sandoval back on Morphine, twice a day. Id.; see also Def.’s Decl. 3 ¶¶ 12–13. On August 24, 2017, Sandoval had a follow-up appointment, this time with Dr. 4 Luzbiminda Saidro, regarding his knee pain and desire to have surgery. Def.’s Ex. H at 15. 5 Dr. Saidro noted that Sandoval had been “seen by Orthopedics in January 2017” and a 6 referral to Orthopedics for knee surgery was recommended “if his body mass index is less 7 than 40.”

Sandoval’s weight at the time was 129 kilograms and his BMI was 43.1.

8 Dr. Saidro continued Sandoval’s pain medications and advised him to eat healthy and 9 exercise to lose weight.

On September 13, 2017, Sandoval saw a nurse about knee pain. 10 See Def.’s Ex. I at 17. 11 Despite Plaintiff’s failure to lose weight, Dr. Guldseth referred to him to an 12 orthopedic specialist on September 22, 2017. Id.; see also Def.’s Decl. ¶ 16. Dr. Guldseth 13 submitted a Request for Services (“RFS”) for an orthopedic specialist to reevaluate 14 Sandoval’s right knee. Def.’s Ex. I at 17; Def.’s Ex. J at 19. While Sandoval waited for his 15 orthopedic appointment, he saw Dr. Guldseth at least three more times, during which Dr. 16 Guldseth ordered physical therapy, continued Sandoval’s Morphine, increased his 17 Gabapentin dose, added Tylenol for additional pain control, and ordered a wedge pillow 18 so Sandoval could elevate his knee at night. Def.’s Exs. K–M; see also Def.’s Decl. ¶ 18– 19 20. On January 23, 2018, Sandoval had a tele-med appointment with orthopedic specialist, 20 Dr. Cham, during which they discussed possible surgery. Def.’s Ex. N. 21 Dr. Cham told Sandoval that “the only treatment likely to provide him with any 22 significant pain relief would be a knee replacement.”

. Dr. Cham also noted, 23 however, that due to his other health issues, Sandoval would need to “have a medical 24 evaluation and then clearance before a major procedure such as arthroplasty.”

At his 25 February 1, 2018 appointment with Dr. Guldseth, Sandoval indicated he wanted to go 26 forward with the surgery. Def.’s Ex. O at 29; Def.’s Decl. ¶ 22. On February 7, 2018, Dr. 27 28 1 Guldseth submitted an RFS seeking authorization for total right knee replacement surgery 2 based on Dr. Cham’s recommendation.9 Def.’s Ex. P at 32; Ex. O at 29; Def.’s Decl. ¶ 23. 3 While it is unclear when exactly surgery was put on the schedule, it is undisputed it 4 was initially set for May 9, 2018. FAC ¶ 61; Def.’s Ex. R at 34; Def.’s Decl. ¶ 27. On April 5 26, 2018, Sandoval saw Dr. Cham for a face-to-face pre-operative visit.10 Def.’s Ex. Q at 6 33. Dr. Cham cautioned that due to Sandoval’s diabetes, obesity and previous history of 7 serious infection, he was at “significant risk for complications” with total knee 8 replacement.

Dr. Cham instructed Sandoval to stop taking Morphine to help control 9 post-operative pain.

He also noted Sandoval “needs to lose weight.”

Ultimately, Dr. 10 Cham noted he would “request authorization and bring [Sandoval] back once we have 11 authorization and medical clearance.”

12 The next day, April 27, 2018, an RJD nurse received word from Dr. Cham that he 13 was canceling Sandoval’s surgery. Dr. Cham indicated Sandoval was “high risk” and he 14 wanted “[Sandoval] off morphine and [to] lose weight before rescheduling.” Def.’s Ex. R 15 at 34. Dr. Cham further stated that because “it’s elective surgery he wants to give 16 [Sandoval] time to be more healthy before going through the surgery.” Id.; see also Def.’s 17 Decl. ¶ 25. Dr. Guldseth relayed the information to Sandoval at an appointment later that 18 day. Def.’s Ex. S at 35; Def.’s Decl. ¶ 26. On May 21, 2018, Dr. Cham sent an addendum 19 to his April 26, 2018 report, stating that he canceled Sandoval’s surgery “until pre-op 20 clearance goals are met: weight reduction (50lb) and weaned off daily Morphine.” Def.’s 21 Ex. T at 39. 22 // 23

24 25 8 The request was “routine” which typically suggests the service should occur within the next 90 days. Def.’s Decl. ¶¶ 17, 22–23; see also Def.’s Ex. P at 32. 26 9 It is unclear if or when the surgery was authorized by CDCR officials. See Def.’s Ex. P at 32. 27 10 Medical records indicate Sandoval also saw Dr. Cham on April 7, 2018 for a face-to-face evaluation 28 1 After the surgery was canceled, Dr. Guldesth resumed treating Sandoval’s knee pain 2 non-surgically, while encouraging Sandoval to the 50 pounds required by Dr. Cham. See 3 Def.’s Exs. U–Z. But Sandoval had difficulty losing weight. On the day he learned Dr. 4 Cham had canceled the surgery, Sandoval weighed 138.6 kilograms. Def.’s Ex. S. at 35. 5 During the six months that followed, his weight fluctuated,11 but never dropped below 6 135.5 kilograms––a loss of only 6.8 pounds. Def.’s Ex. Z at 56. During the same period, 7 Dr. Guldseth continued to treat Sandoval’s pain with medications, including Morphine, 8 Gabapentin, Tylenol, and physical therapy. See Def.’s Ex. U at 40–41, Ex. V at 44, ex. W 9 at 47. At Sandoval’s October 8, 2018 appointment, the last visit with Dr. Guldseth for 10 which this Court has records, Dr. Guldseth encouraged him to continue his weight loss, 11 recommending he walk with a cane when possible. Def.’s Ex. Z at 58. When Sandoval 12 complained that exercise hurt his knee, Dr. Guldseth ordered him a knee brace for added 13 support.

Sandoval never reached his goal weight during the time that Dr. Guldseth 14 treated him. Def.’s Decl. ¶ 39. 15 B. Procedural Background 16 On February 1, 2022, Dr. Guldseth filed a motion for summary judgment. Def.’s 17 Mot. Summ. J., ECF No. 46. On February 2, 2022, the Court notified Plaintiff of the 18 requirements for opposing summary judgment pursuant to Rand v. Rowland,

(9th Cir. 1998) (en banc), and Albino v. Baca,

(9th Cir. 2014) (en banc). 20 ECF No. 47. Sandoval failed to file an opposition to the summary judgment motion by the 21 February 15, 2022 deadline.12 The Court issued an order again notifying Sandoval of the 22 requirements for opposing summary judgment and giving him additional time––until 23 March 25, 2022––to file an opposition. ECF No. 52. The Court also directed Dr. Guldseth 24 25 11 Sandoval weight dropped slightly to 137 kilograms on May 31, 2018 (Ex. U. at 41) but his weight then 26 began to rise, peaking at 143.5 kilograms on July 31, 2018. Ex. W at 46.

27 12 On February 11, 2022, Sandoval filed a Motion for Appointment of Counsel in which he stated he needed assistance from a lawyer to prepare his opposition. See ECF No. 49. The Court denied his motion 28 1 to re-notice and re-serve his summary judgment motion to ensure Plaintiff had received it 2 after his change of address. Id. at 2. On March 24, 2022, Sandoval filed a motion for 3 reconsideration of the Court’s February 17, 2022 order denying motion for appointment of 4 Counsel. ECF No. 55. He did not, however, file an opposition to the summary judgment 5 motion by the March 25, 2002 deadline or after that date. 6 For the reasons discussed below, the Court denies Plaintiff’s motion for 7 reconsideration, grants Defendant’s motion for summary judgment, and directs the Clerk 8 of the Court to enter judgment in favor of Dr. Guldseth. 9 II. 10 SUMMARY JUDGMENT STANDARD 11 Summary judgment is proper where the pleadings, discovery and affidavits show 12 that there is “no genuine dispute as to any material fact and the movant is entitled to 13 judgment as a matter of law.” Fed. R. Civ. P. 56(a). While Sandoval bears the burden of 14 proof at trial, Dr. Guldseth, as the moving party, bears the initial burden of informing a 15 court of the basis for his motion and of identifying the portions of the record that 16 demonstrate an absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 17

(1986). A fact is material if it might affect the outcome of the lawsuit 18 under governing law, and a dispute about such a material fact is genuine “if the evidence 19 is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. 20 Liberty Lobby, Inc.,

(1986). 21 If Defendant meets his initial responsibility, the burden then shifts to Sandoval to 22 establish a genuine dispute as to any material facts that exist. Matsushita Elec. Indus. Co. 23 v. Zenith Radio Corp.,

(1986). To establish the existence of this factual 24 dispute, Sandoval must present evidence in the form of affidavits and/or admissible 25 discovery material to support his contention that a genuine dispute of material fact exists. 26 See Fed. R. Civ. P. 56(c)(1); Matsushita,

n.11. “A [p]laintiff’s verified 27 complaint may be considered as an affidavit in opposition to summary judgment if it is 28 // 1 based on personal knowledge and sets forth specific facts admissible in evidence.” Lopez 2 v. Smith,

, 1132 n.14. (9th Cir. 2000). 3 Finally, district courts must “construe liberally motion papers and pleadings filed by 4 pro se inmates and . . . avoid applying summary judgment rules strictly.” Thomas v. Ponder, 5

(9th Cir. 2010). However, if Plaintiff “fails to properly support an 6 assertion of fact or fails to properly address [Defendant’s] assertion of fact, as required by 7 Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion . . ..” 8 Fed. R. Civ. P. 56(e)(2). Plaintiff, as the opposing party, may not rest solely on conclusory 9 allegations of fact or law. Berg v. Kincheloe,

(9th Cir. 1986). A “motion 10 for summary judgment may not be defeated . . . by evidence that is ‘merely colorable’ or 11 ‘is not significantly probative.’” Anderson, 477 U.S. at 249–50; Hardage v. CBS Broad. 12 Inc.,

, 1183 (9th Cir. 2006). 13 When the nonmoving party does not file an opposition to a motion for summary 14 judgment, the Court must still consider the motion on the merits. See Heinemann v. 15 Satterberg,

(9th Cir. 2013); see also Martinez v. Stanford,

(9th Cir. 2003). 17 III. 18 PLAINTIFF’S MOTION FOR RECONSIDERATION 19 Before discussing Defendant’s summary judgment motion, the Court will first 20 address Sandoval’s motion for reconsideration of the Court’s February 27, 2022 order 21 denying his motion for appointment of counsel. See ECF Nos. 55 & 50. While the Federal 22 Rules of Civil Procedure do not expressly provide for motions for reconsideration, this 23 court has “inherent jurisdiction to modify, alter or revoke” any non-final orders. United 24 States v. Martin,

, 1048–49 (9th Cir. 2000). The Local Rules for the Southern 25 District of California explicitly permit motions for reconsideration but require that the party 26 seeking reconsideration show what “new or different facts and circumstances are claimed 27 to exist which did not exist, or were not shown, upon such prior application.” S.D. Cal. 28 Civil Local Rule 7.1(i). The Court will therefore consider whether either new or different 1 facts or other equitable considerations favor reconsideration of its prior denial of 2 appointment of counsel. 3 After reviewing the request for reconsideration, the Court concludes again13 that 4 Plaintiff has not met the standard required for appointment of counsel. As the Court stated 5 in its February 22, 2022 order, the Constitution provides no right to appointment of counsel 6 in a civil case. Lassiter v. Dep’t of Soc. Servs.,

(1981). Appointment of 7 counsel is only appropriate in “exceptional circumstances” based on “the likelihood of 8 success on the merits” and the difficulty of “the petitioner to articulate his claims pro se in 9 light of the complexity of the legal issues involved.” Wilborn v. Escalderon,

, 10 1331 (9th Cir. 1986); Agyeman v. Corr. Corp. of Am.,

, 1103 (9th Cir. 2004); 11 see also

(e)(1). In denying the original motion, the Court found Plaintiff 12 had demonstrated neither a likelihood of success on the merits nor a level of complexity 13 warranting appointment of counsel. ECF No. 50 at 2. In seeking reconsideration, 14 Sandoval’s fails to present “new or different facts and circumstances” that would alter this 15 analysis. S.D. Cal. Civil Local Rule 7.1(i). For the most part, Plaintiff repeats his previous 16 arguments that he is unversed in the law and cannot afford to hire an attorney. Compare 17 ECF Nos. 49, 55. He also adds that he is not fluent in English. See ECF No. 55. The Court 18 finds however, based on this current and previous submissions, that Plaintiff has 19 demonstrated an ability to articulate his claims with sufficient clarity.

Without more, 20 the Court concludes that Plaintiff has not established the requisite “exceptional 21 circumstances” for it to grant appointment of counsel. See Valdez v. Zhang, No. 20-cv- 22 0736-JLS-WVG,

, at *1 (S.D. Cal. Apr. 6, 2021) (finding Plaintiff’s 23 limited English proficiency was “not an exceptional circumstance” sufficient to warrant 24 appointment of counsel); Jongpil Park v. Kitt, No. 19-cv-1551-AWI-HBK,

1103032, at *2 (E.D. Cal. Mar. 22, 2021); Garces v. Degadeo, No. 06-cv-1038-LJO-SMS, 26

27 13 On February 17, 2022, the Magistrate Judge assigned to this case denied Plaintiff’s original motion for 28 1

, at *1 (E.D. Cal. May 22, 2007). Accordingly, Sandoval’s motion for 2 reconsideration is denied. 3 IV. 4 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 5 Dr. Guldesth argues that he is entitled to summary judgment because the undisputed 6 facts establish that he provided adequate medical care consistent with Sandoval’s Eighth 7 Amendment rights. See Def.’s Mem. of P. & A. Supp. Mot. for Summ. J., ECF No. 46 8 (hereafter “Def.’s P. & A.”) at 18–24. Guldseth further argues that, even assuming that 9 Plaintiff had raised a triable issue on the constitutional violation issue, he is entitled to 10 qualified immunity for his actions.

at 24–25. 11 A. Eighth Amendment Medical Claims 12 Plaintiff argues that Dr. Guldseth acted with deliberate indifference to his serious 13 medical needs by (1) delaying his referral to an orthopedic surgeon in the time period prior 14 to January 23, 2018; (2) canceling Sandoval’s surgery despite Dr. Cham’s 15 recommendation; and (3) failing to refer Sandoval to another orthopedic surgeon after his 16 surgery was canceled. FAC ¶¶ 31, 35, 47, 51. The Court will examine the evidence 17 surrounding each of these alleged treatment failures in turn to determine whether there are 18 triable issues of fact regarding constitutionally inadequate medical treatment. 19 For this Court to find that Sandoval’s Eighth Amendment rights were violated by 20 Dr. Guldseth, Sandoval must establish (1) a “serious medical need by demonstrating that 21 [the] failure to treat [his] condition could result in further significant injury or the 22 unnecessary and wanton infliction of pain” and (2) that Dr. Guldseth’s response to his 23 objectively serious medical need was deliberately indifferent. Jett v. Penner,

(9th Cir. 2006) (citation omitted). The standard for deliberate indifference is 25 subjective, requiring Sandoval show Dr. Guldseth had a “sufficiently culpable state of 26 mind.” See Wilson v. Seiter,

(1991). That is, Sandoval must show that 27 the course of treatment Dr. Guldseth chose was “medically unacceptable under the 28 circumstances” and that Dr. Guldseth acted “in conscious disregard of an excessive risk” 1 to Sandoval’s health. See Toguchi v. Chung,

(9th Cir. 2004). To do 2 so, Plaintiff must prove Dr. Guldseth knew that Plaintiff faced a substantial risk of serious 3 harm and disregarded that risk by failing to take reasonable steps to abate it. Farmer v. 4 Brennan,

(1994). Put another way, the evidence must show (1) Dr. 5 Guldseth was aware of facts from which the inference could be drawn that a substantial 6 risk of serious harm existed if Sandoval was not promptly referred to a specialist for knee 7 replacement surgery, and (2) Dr. Guldseth actually drew that inference.

If the evidence 8 merely shows Dr. Guldseth should have been aware of the risk but was not, he has not 9 violated the Eighth Amendment, no matter how severe the risk. Gibson v. County of 10 Washoe,

(9th Cir. 2002) (overruled on other grounds by Castro v. 11 County of Los Angeles,

(9th Cir. 2016)). 12 1. Plaintiff Fails to Rise a Triable Issue that Dr. Guldseth Violated his 13 Constitutional Rights by Delaying his Referral to Surgery 14 The parties do not dispute that Sandoval’s “significant degenerative joint disease,” 15 and “cartilage loss” in his right knee constituted a “serious medical need” under the Eighth 16 Amendment. See generally, Def.’s P. & A. at 19. Thus, the question before the Court is 17 whether a genuine dispute of material fact exists as to whether Dr. Guldseth was 18 deliberately indifferent to that need in his actions. After reviewing the record in the light 19 most favorable to Plaintiff, the Court concludes that no evidence raises a triable issue that 20 Dr. Guldseth delayed Plaintiff’s referral to an orthopedic surgeon “in conscious disregard 21 of an excessive risk” to this health. See Colwell v. Bannister,

(9th Cir. 22 2014); see also Celotex,

. 23 Uncontroverted evidence shows Dr. Guldseth did not disregard Sandoval’s knee 24 pain or Dr. Casey’s surgery recommendation in his treatment decisions prior to referring 25 Sandoval to a specialist. From the outset of their relationship, Dr. Guldseth was responsive 26 to Plaintiff’s request for surgery and mindful of Dr. Casey’s surgery recommendation 27 throughout this course of treatment. After Sandoval first requested surgery on February 23, 28 2017, Dr. Guldseth reviewed Dr. Casey’s previous surgery recommendation. Noting that 1 this recommended surgery had ultimately been denied due to Plaintiff’s morbid obesity, 2 Dr. Guldseth responded with actions to place Plaintiff on a course where he could receive 3 and benefit from this recommended surgery. See Def.’s Ex. D at 9; Def.’s Ex. G at 13; 4 Def.’s Decl. ¶ 9. Because Sandoval continued to have a BMI that made him a poor 5 candidate for this surgery, Dr. Guldseth treated him with pain medication, while counseling 6 him on the weight loss required to proceed with surgery. Over the next five visits, from 7 March 23, 2017 to September 22, 2017, Dr. Guldseth made diet and exercise 8 recommendations and explained that if Sandoval could start losing weight, he would refer 9 him to a specialist again. See Def.’s Exs. D–H. 10 The Court will next examine whether Dr. Guldseth acted with deliberate indifference 11 in maintaining his original treatment plan as Sandoval continued to complain of knee pain 12 and request a surgical treatment over the course of five more visits over nearly six months, 13 before ultimately referring Sandoval to a specialist in September of 2018. The Ninth Circuit 14 has held that “denying, delaying or intentionally interfering with medical treatment can 15 violate the constitution.” Stewart v. Aranas,

(9th Cir. 2022) (quoting 16 Colwell,

). While “[m]ere disagreement with a medical treatment plan is 17 not deliberate indifference, . . . continuation of the same treatment in the face of obvious 18 failure is.” Stewart,

. 19 Based on the evidence in the record, the Court disagrees with Sandoval’s allegations 20 that Dr. Guldseth’s treatment plan was tantamount to a denial of treatment through delay. 21 In Stewart, medical staff did nothing to alter the plaintiff’s treatment for two years, despite 22 increasingly alarming symptoms.

. Unlike the defendants in Stewart, however, 23 Dr. Guldseth did not take a “wait and see” approach to a worsening situation but rather 24 elected to treat Sandoval’s knee pain with medication and therapy while Sandoval 25 attempted to lose weight. In the meantime, Dr. Guldseth took several actions to adjust the 26 treatment based on Sandoval’s complaints. First, after Plaintiff complained about the side 27 effects of Elavil, Dr. Guldseth took him off it and added Gabapentin for additional pain 28 relief. Def.’s Decl. at ¶ 4, see also Def.’s Ex. B at 4. When Sandoval indicated that Tylenol 1 No. 3 with Codeine was not effective for his pain, Dr. Guldseth put him back on Morphine. 2 Def.’s Ex. G at 13. When Sandoval complained of pain at night Dr. Guldseth ordered 3 Sandoval a wedge pillow so that he could keep his knee elevated when he slept. Def.’s Ex. 4 L at 23. Finally, even though Sandoval failed to lose weight14 and refused x-rays, Dr. 5 Guldseth nonetheless submitted an RFS on September 22, 2017 for Sandoval to see an 6 orthopedic specialist to be re-evaluated for possible knee surgery. Def.’s Ex. J at 19; Def.’s 7 Decl. ¶ 19. Thus, while Sandoval disagrees with Dr. Guldseth’s chosen course of treatment, 8 he has failed to point to any admissible evidence which creates a genuine dispute of 9 material fact that Dr. Guldseth’s actions were medically unacceptable or amounted to a 10 conscious disregard for his pain. See Franklin v. Oregon,

(9th Cir. 11 1981) (“[A] difference of opinion between a prisoner patient and prison medical authorities 12 regarding treatment” does not amount to deliberate indifference.) Therefore, Sandoval has 13 failed to raise a triable issue that Dr. Guldseth violated his Eighth Amendment rights in the 14 time period prior to his referral to a specialist on January 23, 2018. 15 2. Plaintiff Fails to Raise a Triable Issue that Dr. Guldseth Violated His 16 Eighth Amendment Rights by Canceling His Surgery 17 Next, the Court examines whether there is a triable issue on fact regarding whether 18 Dr. Guldseth canceled the surgery recommend by Dr. Cham in deliberate indifference to 19 Plaintiff’s serious medical needs. Def.’s P.&A. at 22–23. 20 The uncontroverted evidence in the record shows that Dr. Cham, the orthopedic 21 surgeon, canceled Sandoval’s surgery, not Dr. Guldseth. During Plaintiff’s first tele- 22 medicine appointment with Dr. Cham, the doctor indicated that total knee replacement 23 surgery would “likely provide [Sandoval] with . . . pain relief.” Def.’s Ex. Q at 33. At a 24 later appointment, Dr. Cham informed Sandoval that his morbid obesity, diabetes and 25 history of infection increased his risk for complications during and after the surgery. Def.’s 26 27 28 1 Ex. Q at 33. Dr. Cham canceled the surgery the next day. Def.’s Ex. T at 39. Plaintiff offers 2 no admissible evidence to support his own speculation that Dr. Cham took responsibility 3 for canceling the surgery at Dr. Guldseth’s behest. Loomis v. Cornish,

, 997 4 (9th Cir. 2016) (quoting Nelson v. Pima Cmty. Coll.,

, 1081 (9th Cir. 1996) 5 (“[M]ere allegation and speculation do not create a factual dispute for purposes of summary 6 judgment”). 7 Sandoval further alleges in his complaint that Dr. Lee, another RJD doctor, cleared 8 him for surgery on May 3, 2018, superseding Dr. Guldseth’s decision to cancel it. FAC ¶ 9 40. Sandoval has produced no admissible evidence regarding his appointment with Dr. Lee 10 and the clearance for surgery that he purportedly received. In any case, such evidence 11 would not undermine the evidence demonstrating it was Dr. Cham who canceled the 12 surgery, not Dr. Guldseth. Def.’s Ex. T at 39; see also Def.’s Ex. R. at 34. Finally, even 13 assuming Dr. Guldseth was responsible for canceling the surgery, Sandoval has failed to 14 present any evidence that the choice to delay his surgery until he lost weight, and therefore 15 became a better candidate for surgery, was taken in conscious disregard for his pain. See 16 Franklin,

; Jackson v. McIntosh,

(9th Cir. 1996). 17 Dr. Guldseth has met his burden of showing a lack of evidence that he was 18 responsible for canceling Sandoval’s surgery. Because Sandoval has filed no opposition 19 and submitted no evidentiary support for his claim, he has failed raise a triable issue that 20 Dr. Guldseth violated his Eighth Amendment rights by canceling his surgery. 21 3. Sandoval Fails to Raise a Triable Issue That His Eighth Amendment 22 Rights Were Violated After His Surgery Was Canceled 23 Lastly, the Court turns to whether there is a triable issue of fact as to whether Dr. 24 Guldseth was deliberately indifferent to Sandoval’s serious medical needs after his knee 25 surgery was canceled. Def.’s P. & A. at 23–24. 26 After reviewing the record in the light most favorable to Plaintiff, the Court 27 concludes that no evidence raises no such a triable issue. See Colwell,

; 28 see also Celotex,

. The evidence submitted by Defendants indicates that Dr. 1 Guldseth acted according to his understanding that Plaintiff would not be a safe candidate 2 for surgery until he lost significant weight. On April 27, 2018, Dr. Guldseth explained to 3 Sandoval why his surgery was canceled and counseled him that he would need to lose 50 4 pounds to become a viable surgery candidate. Def.’s Decl. ¶ 25. Over the course of the next 5 six months while Plaintiff remained in his care, Dr. Guldseth continued to manage 6 Plaintiff’s pain while also monitoring him for weight loss.

at ¶¶ 32–37. Because Plaintiff 7 never approached his weight loss goals, never losing more than 6.8 pounds, see Def.’s Ex. 8 Z at 56, Dr. Guldseth never referred him to another specialist. While Sandoval alleges in 9 his FAC that Dr. Guldseth was deliberately indifferent when he refused to refer him to 10 another specialist for a second opinion after his surgery was canceled, see FAC ¶¶ 47, 49, 11 he offers no admissible evidence that Dr. Guldseth’s decision to wait for Plaintiff to lose 12 weight before referring him again for surgery was “medically unacceptable under the 13 circumstances.” See Colwell,

. Indeed, another doctor who saw Sandoval 14 on March 26, 201915 noted that “any surgeon is going to be extremely reluctant to do 15 surgery if [Sandoval’s] weight is not reduced.” Def.’s Ex. AA at 60. Therefore, the Court 16 finds Sandoval has failed to raise a triable issue as to whether Dr. Guldseth was deliberately 17 indifferent in failing to refer Sandoval to another specialist in the months after the surgery 18 was canceled. 19 For the reasons discussed above, the Court finds Dr. Guldseth is entitled to summary 20 judgment as to Plaintiff’s Eighth Amendment claims that he was deliberately indifferent to 21 his serious medical needs and GRANTS his motion pursuant to Fed. R. Civ. P. 56. Because 22 Sandoval has failed to raise a triable issue as to whether Dr. Guldseth violated his Eighth 23 Amendment rights, the Court finds it is unnecessary to determine whether Dr. Guldseth is 24 entitled to qualified immunity based on clearly established law. See Saucier v. Katz, 533

, 201 (2001). 26 27 28 1 IV. 2 CONCLUSION AND ORDER 3 For the above reasons, the Court DENIES Plaintiff's motion for reconsideration 4 ||(ECF No. 55) and GRANTS Defendant Guldseth’s motion for summary judgment (ECF 5 46) pursuant to Fed. R. Civ. P. 56(a) and DIRECTS the Clerk of the Court to enter 6 || judgment in favor of Defendant Guldseth. 7 || IT IS SO ORDERED. 8 ||Dated: August 4, 2022 9 ook Ohta 10 nited States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17