United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1Plaintiff is currently housed in the Pitchess Detention Center in Los Angeles, California.

(MSJ at 2.) 

No. C 09-2373 RS (PR)

ORDER GRANTING SUMMARY JUDGMENT

United States District Court

For the Northern District of California

*E-Filed 8/23/10*

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

JOE VERNON HAY,

Plaintiff,

v.

ROBERT SILLEN, et al., 

Defendants. /

No. C 09-2373 RS (PR)

AMENDED ORDER GRANTING

DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT;

DENYING MOTION FOR

REHEARING ON MOTION TO

DISMISS

INTRODUCTION

Plaintiff Joe Vernon Hay is a state prisoner who is proceeding pro se in this civil

rights action brought under 42 U.S.C. § 1983, in which he alleges that defendants, employees

of Soledad State Prison, were deliberately indifferent to his medical needs in violation of the

Eighth Amendment.1

 Defendants move for summary judgment. For the reasons stated

herein, defendants’ motion for summary judgment is GRANTED as to all claims against all

defendants. 

Case 3:09-cv-02373-RS Document 139 Filed 08/23/10 Page 1 of 8
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2The parties agree that plaintiff asked a nurse for eyeglasses soon after arriving, but failed

to receive them for reasons unknown. The nurse is not named as a defendant, and therefore the

Court cannot rule on any claims made against him or her, which are hereby dismissed. 

3

 Piero’s motion for summary judgment was granted (Docket No. 122) and he has been

terminated from this action. 

No. C 09-2373 RS (PR)

2 ORDER GRANTING SUMMARY JUDGMENT

BACKGROUND

The following facts are undisputed unless specifically noted otherwise. Plaintiff’s

medical claims arise from defendants’ treatment of his (I) eye condition, (II) neck and

shoulder problems; and (III) Hepatitis C condition. 

I. History of Eye Treatment

Plaintiff suffers from injuries caused to his right eye by a long-ago car accident. In

1984, plaintiff underwent surgery to reattach the retina of the right eye. In 2007, he arrived

at Soledad, and soon after sought treatment for his eye problems.2

 

On November 15, 2007, plaintiff complained of acute on-set of cloudy vision in his

right eye, and was seen in the medical clinic that day. He was referred to the ophthalmology

clinic for follow up, where he saw Dr. Ulanday on November 16, who referred plaintiff to

Dr. Eric Del Piero. On November 26, defendant Dr. Eric Del Piero3

 examined plaintiff, and

found a dense vitreous hemorrhage in his right eye. Piero recommended laser surgery to treat

the hemorrhage. Surgery was scheduled, but plaintiff refused treatment at least twice, then

later demanded treatment, at which point Piero refused to treat him further. 

On December 10, 2007, plaintiff was seen by defendant Dr. Ulanday, who was 

awaiting confirmation of Piero’s schedule. On January 9, 2008, plaintiff was referred to

ophthalmology, which in turn referred him to UCSF for a second opinion regarding his

retinal tear. Plaintiff was seen in the ophthalmology clinic on January 14, 2008 to test his

vision impairment. On January 23, 2008 plaintiff had an appointment at UCSF with Dr.

Robert Bhisitkul, an ophthalmologist, who, upon seeing the hemorrhage but no retinal

detachment, recommended no further treatment. On February 15, plaintiff was sent to the

hospital for eye treatment and stayed over night. On April 13, 2008, plaintiff returned to the

Case 3:09-cv-02373-RS Document 139 Filed 08/23/10 Page 2 of 8
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

No. C 09-2373 RS (PR)

3 ORDER GRANTING SUMMARY JUDGMENT

optometry clinic. On May 1, 2008, defendant Chudy referred plaintiff to UCSF, where he

was seen on May 5 by Dr. Bhisitkul, who again recommended no treatment, this time on

grounds that the hemorrhage was resolving on its own, and that there was no evidence of

retinal breaks or other problems. 

Throughout 2008, plaintiff continued to complain of problems with his right eye. He

was seen in the optometry clinic on May 19, June 2, June 29, July 7, July 14, and July 22. 

On September 12, plaintiff complained of night blindness, whereupon he was referred to

defendant Rasheed, also an ophthalmologist, who examined plaintiff on September 15. Dr.

Rahseed diagnosed plaintiff with left eye cataract, for which he recommended refractive

cataract surgery as treatment. On September 25, plaintiff was referred to UCSF for a second

opinion with Dr. Stewart, who observed a resolved right eye vitreous hemorrhage and mild

cataracts. Stewart recommended no treatment beyond eyeglasses. On October 15, plaintiff

returned to the optometry clinic where he advised that he was postponing his cataract surgery

until after he received new glasses and could be evaluated further. On December 9, plaintiff

underwent the cataract surgery recommended by Rasheed in September. On December 10,

plaintiff returned to Soledad, where his condition was monitored, and where he was given

eye drops. Plaintiff was seen again by Soledad physicians on December 11, and was

scheduled for a follow up appointment, which was to occur on December 22. Rasheed saw

plaintiff on January 5, 2009. Plaintiff received his requested eyeglasses in January 2009.

II. History of Neck and Shoulder Treatment

Plaintiff started asking for pain medication and an MRI scan of his left shoulder in the

summer of 2007. Medical staff believed that an MRI was not required, but plaintiff was

referred to an orthopedist after he filed an inmate grievance. The orthopedist ordered an

MRI scan, which was reviewed by Dr. Pompan, who concluded that surgery was not needed

on the rotator cuff. Plaintiff received physical therapy, pain medication — which plaintiff

lists as Tylenol with codeine and Vicodin — and an evaluation for steroidal injection

treatment, and he continued to request surgical intervention. In February 2009, surgery was

Case 3:09-cv-02373-RS Document 139 Filed 08/23/10 Page 3 of 8
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

No. C 09-2373 RS (PR)

4 ORDER GRANTING SUMMARY JUDGMENT

performed on plaintiff’s shoulder. 

III. History of Hepatitis Related Complaints

Plaintiff alleges that defendants have provided constitutionally inadequate medical

treatment for his Hepatitis C condition. The record is unclear on the medical history of

plaintiff’s treatment for this condition. Plaintiff contends that he needs certain treatments

and has asked for them, some of which have been ordered. Defendants assert that plaintiff

has not provided any evidence of being diagnosed with, or requiring treatment for, Hepatitis

C. 

DISCUSSION

Summary judgment is proper where the pleadings, discovery and affidavits

demonstrate that there is “no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Material facts are those

which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a

reasonable jury to return a verdict for the nonmoving party. Id.

The party moving for summary judgment bears the initial burden of identifying those

portions of the pleadings, discovery and affidavits which demonstrate the absence of a

genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Where

the moving party will have the burden of proof on an issue at trial, it must affirmatively

demonstrate that no reasonable trier of fact could find other than for the moving party. On an

issue for which the opposing party by contrast will have the burden of proof at trial, as is the

case here, the moving party need only point out “that there is an absence of evidence to

support the nonmoving party’s case.” Id. at 325. 

Once the moving party meets its initial burden, the nonmoving party must go beyond

the pleadings and, by its own affidavits or discovery, “set forth specific facts showing that

there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). The court is only concerned with

disputes over material facts and “factual disputes that are irrelevant or unnecessary will not

Case 3:09-cv-02373-RS Document 139 Filed 08/23/10 Page 4 of 8
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

No. C 09-2373 RS (PR)

5 ORDER GRANTING SUMMARY JUDGMENT

be counted.” Anderson, 477 U.S. at 248. It is not the task of the court to scour the record in

search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir.

1996). The nonmoving party has the burden of identifying, with reasonable particularity, the

evidence that precludes summary judgment. Id. If the nonmoving party fails to make this

showing, “the moving party is entitled to judgment as a matter of law.” Celotex, 477 U.S. at

323.

Deliberate indifference to a prisoner’s serious medical needs violates the Eighth

Amendment’s proscription against cruel and unusual punishment. See Estelle v. Gamble,

429 U.S. 97, 104 (1976). A determination of “deliberate indifference” involves an

examination of two elements: the seriousness of the prisoner’s medical need and the nature

of the defendant’s response to that need. McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.

1992) (overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136

(9th Cir. 1997) (en banc)). 

A prison official is deliberately indifferent if he knows that a prisoner faces a

substantial risk of serious harm and disregards that risk by failing to take reasonable steps to

abate it. Farmer v. Brennan, 511 U. S. 825, 837 (1994) (equating standard with that of

criminal recklessness). The prison official must not only “be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists,” but “must also draw

the inference.” Id. Consequently, in order for deliberate indifference to be established, there

must exist both a purposeful act or failure to act on the part of the defendant and harm

resulting therefrom. See McGuckin, 974 F.2d at 1060. In order to prevail on a claim of

deliberate indifference to medical needs, a plaintiff must establish that the course of

treatment the doctors chose was “medically unacceptable under the circumstances” and that

they embarked on this course in “conscious disregard of an excessive risk to plaintiff’s

health.” See Toguchi v. Chung, 391 F.3d 1051, 1058–60 (9th Cir. 2004). A claim of mere

negligence related to medical problems, or a difference of opinion between a prisoner patient

and a medical doctor, is not enough to make out a violation of the Eighth Amendment. Id.;

Case 3:09-cv-02373-RS Document 139 Filed 08/23/10 Page 5 of 8
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

No. C 09-2373 RS (PR)

6 ORDER GRANTING SUMMARY JUDGMENT

Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). 

I. Eye Treatment Claims

Defendants have met their initial burden to demonstrate the absence of a genuine issue

of material fact. Reading the facts in the light most favorable to plaintiff, he has not pointed

to evidence precluding summary judgment. More specifically, plaintiff concedes that

defendants examined him, recommended various courses of treatment which in some

instances he refused, performed surgery and provided medications, and referred him to

specialists and to other doctors when he asked for second opinions. Such a willingness to

treat plaintiff, followed by actual treatment, reflects that defendants were not deliberately

indifferent to plaintiff’s legitimate medical needs. Rather, the undisputed record of multiple

appointments, examinations, prescribed medications and eyeglasses, check up appointments,

referrals to specialists, and the performance of surgery, directs a conclusion that defendants

were aware of plaintiff’s medical needs, and sought to treat them. Plaintiff may not have

received medical care as promptly as he would have preferred, but the record reflects that he

was examined and treated for his medical conditions. Furthermore, plaintiff’s disagreement

with the use of various courses of treatment does not establish an Eighth Amendment

violation. See Toguchi, 391 F.3d at 1059–60 (a difference of medical opinion as to the need

to pursue one course of treatment over another is insufficient, as a matter of law, to establish

deliberate indifference). Based on these undisputed facts, plaintiff has not presented

evidence to withstand summary judgment. Accordingly, the Court will grant defendants’

motion for summary judgment as to all claims related to the treatment of plaintiff’s eye

conditions. 

II. Neck and Shoulder Treatment

Defendants have met their initial burden to demonstrate the absence of a genuine issue

of material fact. Reading the facts in the light most favorable to plaintiff, he has not pointed

to evidence precluding summary judgment. Specifically, plaintiff concedes that defendants

examined him, recommended various courses of treatment, performed surgery and provided 

Case 3:09-cv-02373-RS Document 139 Filed 08/23/10 Page 6 of 8
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

No. C 09-2373 RS (PR)

7 ORDER GRANTING SUMMARY JUDGMENT

medications. Such a willingness to treat plaintiff, followed by actual treatment, reflects that

defendants were not deliberately indifferent to plaintiff’s legitimate medical needs. Rather,

the undisputed record of providing surgery and pain medications demonstrates that

defendants were aware of plaintiff’s medical needs, and sought to treat them. Plaintiff may

not have received medical care as promptly as he would have preferred, but the record

reflects that he was examined and treated for his medical conditions. Furthermore, as noted

above, plaintiff’s disagreement with the use of various courses of treatment does not

establish an Eighth Amendment violation. See Toguchi, 391 F.3d at 1059–60 (a difference of

medical opinion as to the need to pursue one course of treatment over another is insufficient,

as a matter of law, to establish deliberate indifference). Based on these undisputed facts,

plaintiff has not presented evidence to withstand summary judgment. Accordingly, the Court

will grant defendants’ motion for summary judgment as to all claims related to the treatment

of plaintiff’s neck and should pain. 

II. Hepatitis Treatment

Defendants have met their initial burden to demonstrate the absence of a genuine issue

of material fact. Reading the facts in the light most favorable to plaintiff, he has not pointed

to evidence precluding summary judgment. In particular, plaintiff concedes that defendants

examined him, recommended various courses of treatment, and have attempted to provide

him with such treatment, however delayed. That record reflects defendants were not

deliberately indifferent to plaintiff’s legitimate medical needs. Once again, plaintiff’s

disagreement with the use of various courses of treatment does not establish an Eighth

Amendment violation. See Toguchi, 391 F.3d at 1059–60 (a difference of medical opinion as

to the need to pursue one course of treatment over another is insufficient, as a matter of law,

to establish deliberate indifference). Based on these undisputed facts, defendants are entitled

to summary judgment. Accordingly, the Court will grant defendants’ motion for summary

judgment as to all claims related to the treatment of plaintiff’s Hepatitis C condition.

Case 3:09-cv-02373-RS Document 139 Filed 08/23/10 Page 7 of 8
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

No. C 09-2373 RS (PR)

8 ORDER GRANTING SUMMARY JUDGMENT

CONCLUSION

Plaintiff having failed to show that there are triable issues of material fact as to any of

his claims, defendants’ motion for summary judgment is GRANTED as to all claims against

the following defendants: Joseph Chudy, Registered Nurse Flynn, Cruz, R. Samet, L.

Doehing, Robert Bhisikul, Y. Olivas, Buckner, Pompan, Jay Stewart, R. Ahmed, Teofilo

Ulanday, V. M. Shelton, and Rasheed Kareem. Judgment also will be entered in favor of

defendant Eric J. Del Piero, whose motion for summary judgment was granted in a previous

order. 

Plaintiff’s claims against Robert Sillen and J. Clark Kelso are DISMISSED on

grounds that plaintiff failed to state claims against them for relief. Judgment will be entered

in their favor. 

Plaintiff’s motion for a rehearing on the Court’s order granting summary judgment in

favor of defendant Piero (Docket No. 128) is DENIED. Plaintiff’s motion for an extension

of time to conduct discovery (Docket No. 123) is DENIED. 

This order terminates Docket Nos. 108, 123 & 128. 

The Clerk shall enter judgment in favor of all defendants, terminate the pending

motions, and close the file. Plaintiff shall take nothing by way of his complaint. 

IT IS SO ORDERED.

DATED: August 23, 2010 

 RICHARD SEEBORG

United States District Judge

Case 3:09-cv-02373-RS Document 139 Filed 08/23/10 Page 8 of 8