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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

MARVIN GLENN HOLLIS,

Plaintiff, 

v. 

RISENHOOVER, et al., 

 Defendants. 

Case No. 17-00326 BLF (PR) 

ORDER GRANTING MOTION FOR 

SUMMARY JUDGMENT WITH 

RESPECT TO CLAIMS AGAINST 

DEFENDANTS RISENHOOVER 

AND ADAM; SETTING BRIEFING 

SCHEDULE FOR REMAINING 

DEFENDANTS TO FILE RENEWED 

SUMMARY JUDGMENT MOTION 

(Docket No. 76) 

Plaintiff, a California state prisoner, filed a pro se civil rights complaint under 42 

U.S.C. § 1983 against medical personnel at Pelican Bay State Prison (“PBSP”), where 

Plaintiff was formerly housed. Finding the complaint stated a cognizable Eighth 

Amendment claim for deliberate indifference to serious medical needs, the Court issued an 

order of service and directed Defendants to file a motion for summary judgment or other 

dispositive motion. (Docket No. 53.) Defendants S. Risenhoover, N. Adam, M. McCall, 

and J. Afdahl1

 filed a motion for summary judgment on the grounds that there is no 

genuine dispute of material facts that Defendants acted with deliberate indifference to 

 

1

 Defendant J. Afdahl was sued as “Aldafe.” (Compl. at 2.) 
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serious medical needs.2 (Docket No. 76, hereafter “Mot.”3) Plaintiff filed opposition, 

(Docket No. 86), and Defendants filed a reply, (Docket No. 87). For the reasons stated 

below, Defendants’ motion for summary judgment is GRANTED IN PART. 

DISCUSSION 

I. Background 

The underlying actions which are the basis of this action occurred while Plaintiff 

was formerly incarcerated at PBSP where Defendants were employed. At the time, 

Defendant S. Risenshoover was a nurse practitioner (now retired), Defendant N. Adam 

was a physician, Defendant M. McCall was a psychiatrist, and Defendant J. Afdahl was a 

psychiatric technician. 

A. Plaintiff’s Claims 

Plaintiff claims that when he arrived at PBSP on January 21, 2016, he had several 

prescriptions to treat his chest pain, “borderline” diabetes, hypertension, and mental health. 

(Compl. at 5.) After Defendant Risenhoover examined him, she discontinued several of 

the prescriptions, stating that PBSP does not prescribe such medication. (Id. at 6-7.) After 

Plaintiff notified Defendants that he was having chest pain, problems with his heart, and 

extreme pain in his lower back and shoulder, they failed to respond. (Id. at 7.) Plaintiff 

also claims that Defendant McCall and Afdahl discontinued his mental health medication 

which has caused him to suffer psychologically, including depression, anxiety, and 

 

2

 Defendants also asserted failure to exhaust administrative remedies with respect to the 

claims against Defendants McCall and Afdahl but withdrew the argument in their Reply 

after Plaintiff successfully showed in opposition that he had exhausted claims against them 

in a separate inmate grievance. (Reply at 2.) 

3 In support of the motion, Defendants provide the declaration of Defendant A. Adam, 

(Docket No. 76-2), along with exhibits, (Docket Nos. 76-3, 76-4). Defendants also 

provide the declaration of Deputy Attorney General Harry T. Gower, (Docket No. 76-5), 

with exhibits, (Docket Nos. 76-6, 76-7), but these were only relevant with respect to their 

exhaustion of administrative remedies argument which has been withdraw. See supra, fn. 

2. 
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symptoms associated with bipolar. (Id. at 9-10.) 

Based on the foregoing allegations, the Court found the complaint, liberally 

construed, stated a cognizable claim under the Eighth Amendment. (Docket No. 53 at 2.) 

B. Statement of Facts4

Plaintiff arrived at PBSP on January 21, 2016. During intake that day, Nurse C. 

Timoshenko, not a party to this action, conducted a review of Plaintiff’s medical records 

and an initial health screening, and found that Plaintiff had the following medical 

conditions: hypertension (high blood pressure), pure hyperglyceridemia (elevated 

triglycerides), history of chest pain, cataracts, lumbar degenerative disk disease, bilateral 

flat feet, shoulder impingement, and gastroesophageal reflux disease (GERD). (Adam 

Decl. ¶ 3, Ex. A, AG 073-074.) Because of his shoulder problems, Plaintiff had a chrono 

[order] for an extra pillow and a lower/bottom bunk assignment. (Id., Ex. A, AG 157.) 

 Plaintiff’s previously prescribed medications, which did not arrive with him at 

PBSP, were Buspirone (for anxiety), aspirin (for shoulder pain), clotrimazone cream (for 

foot fungus), lamotrigine (for bipolar disorder), Mintox (for excess stomach acid), 

metformin (for pre-diabetes), metropol (for high blood pressure), nitroglycerin (for acute 

angina), omeprazole (i.e., Prilosec, for ulcers/heartburn), simvastatin (to lower cholesterol 

levels) and tramadol (for acute or severe pain). (Adam Decl. ¶ 4, Ex. A, AG 073-074.) 

 When Plaintiff complained of chest pain at the urgent care clinic on January 21, 

2016, Dr. Andrew Dorfman, not a party to this action, ordered him metoprolol 25 mg. and 

sublingual nitroglycerin over the telephone. (Adam Decl. ¶ 5, Ex. A, AG 075, 077-081.) 

Dr. Dorfman noted that the EKG taken at the urgent care clinic by the RN that same day 

showed no change from an EKG taken on October 14, 2015, three months before. (Id.) 

 The same day (January 21, 2016), Physician’s Assistant Laurie Thomas, not a party 

to this action, renewed Plaintiff’s previous prescription for the pain medication tramadol, 

 

4 The following facts are undisputed unless otherwise indicated. 
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but only for seven days until Plaintiff could be evaluated by his Primary Care Provider 

(“PCP”). (Adam Decl. ¶ 6, Ex. A, AG 098.) 

 According to Defendants, tramadol is a synthetic opioid analgesic drug that is 

highly addictive. (Adam Decl. ¶ 7.) Addition to opioid medications like tramadol results 

in the need for stronger and stronger doses to alleviate the pain, and also affects patients’ 

respiration. (Id.) Moreover, because of tramadol’s stimulant effects, it can allow people to 

feel themselves to be high-functioning while taking dangerously high doses. (Id.) This 

combination is dangerous. (Id.) Withdrawal from tramadol is similar to withdrawing from 

an opiate medication, with symptoms such as depression, anxiety, fatigue, GI distress, etc. 

(Id.) 

 According to Defendants, at the time of these events, the medical community was 

becoming increasingly aware of the epidemic problems of opioid use. (Id.) In addition, 

recent studies showed that long term opioid treatment does not provide medical benefits 

for chronic pain such as Plaintiff reported. (Id.) As a result, the California Correctional 

Health Care Services began to discontinue use of opioids for chronic pain, instead 

reserving opioid prescription only for cancer patients and for those in acute pain for short 

periods of time. (Id.) 

 On January 27, 2016, Defendant Risenhoover reviewed Plaintiff’s past medical 

records with him and discussed with Defendant Dr. Adam by telephone the plan to taper 

off Plaintiff’s tramadol medication. (Adam Decl. ¶ 8, Ex. A, AG -82-086.) In Defendant 

Adam’s medical judgment, tramadol was not medically indicated for Plaintiff at the time 

because he was not in severe pain, his pain was chronic and not acute, and the risks of 

prescribing highly addictive tramadol far outweighed the benefits. (Id.) Defendant 

Risenhoover needed Defendant Adam’s approval to begin tapering Plaintiff off tramadol 

because in the state of California, a nurse practitioner like Defendant Risenhoover cannot 

independently prescribe or otherwise manage a patient’s medication but must be 

supervised by a medical doctor. (Id.) Defendants Risenhoover and Adam also agreed to 
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discontinue nitroglycerin, metformin, aspirin, simvastatin, and anti-fungal cream because 

they also were not medically indicated according to Plaintiff’s latest physical examination 

and laboratory results. (Id.) Plaintiff did not have angina, diabetes, muscle or joint pain, 

high cholesterol or foot fungus. Plaintiff agreed to this plan of care. (Id.) 

 Defendant Dr. McCall was assigned as Plaintiff’s psychiatrist. (Adam Decl. ¶ 9, 

Ex. A, AG 099.) On February 2, 2016, Defendant McCall ordered prescriptions of the 

psychotropic medications Buspirone and Lamotrigine for 90 days, for Plaintiff’s anxiety 

and bipolar disorders. (Id.) 

 According to Defendants, on February 9, 2016, psychiatric technician Defendant 

Afdahl, who was assigned to dispense medication to inmates and to inspect their mouths to 

make sure they swallow the medication, indicated that Plaintiff refused to show her his 

mouth. (Adam Decl. ¶ 10, Ex. A, AG 101-102.) According to Plaintiff, this report was 

“untrue” and a “false allegation” by Defendant Afdahl. (Opp. at 30.) This incident was 

reported to Defendant Adam. (Adam Decl. ¶ 10, Ex. A, AG 103.) These types of 

incidents are a concern for several reasons. (Adam Decl. ¶ 10.) There are custody and 

safety concerns; in prisons it is common for inmates to “cheek” (i.e., not swallow) their 

medications, and then save the medications for later sale to other inmates. Sometimes 

inmates save up their medications in this way and then take them all at once, which can 

result in overdoes. (Id.) Finally, and most importantly, there is a medical concern, 

because if an inmate is not swallowing his medication, then he is not receiving the 

treatment he needs. (Id.) 

 As a result of the above incident, on February 10, 2016, Defendant McCall 

prescribed that Plaintiff’s medication was to be crushed and floated in a cup of water when 

given. (Adam Decl. ¶ 11, Ex. A, AG 105.) 

 Plaintiff complained of chest pain on February 26, 2016, and again on March 1, 

2016, but did not appear to be in distress. (Adam Decl. ¶ 12, Ex. A, AG 107-109, 111-

119.) An EKG performed on March 1, 2016, showed normal sinus rhythm, which means a 
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normal heart beat, both with respect to the heart rate and rhythm. (Id.) 

 The only time Defendant Adam saw Plaintiff was on April 5, 2016, at which time 

she explained to Plaintiff why his medications were discontinued. (Adam Decl. ¶ 13, Ex. 

A, AG 123, 125-130.) Plaintiff’s lipids were within normal limits after he had been off 

simvastatin for two months. (Id.) He was not on metaformin because he was not diabetic. 

(Id.) He was not on nitroglycerin because his chest pain did not appear related to 

cardiovascular disease. (Id.) 

 On the following day, April 6, 2016, Defendant Adam ordered that Plaintiff 

undergo lab tests in a month to monitor any changes in his condition, and also that he 

receive blood pressure checks every week. (Adam Decl. ¶ 14, Ex. A, AG 130-131.) 

 On April 26, 2016, Plaintiff was admitted to the MHCB (Mental Health Crisis 

Beds) alternative housing. (Adam Decl. ¶ 15, Ex. A., AG 143-144.) Plaintiff’s regular 

medications were discontinued, because the MHCB unit would now be prescribing for 

him. (Id.) 

 On June 3, 2016, Plaintiff was transferred to the Department of State Hospitals and 

was no longer under the jurisdiction of California Correctional Health Care Services. 

(Adam Decl. ¶ 16.) 

 On October 26, 2016, Plaintiff was returned to PBSP, and on November 6, 2016, he 

requested that his lower bunk chrono to be discontinued. (Adam Decl. ¶ 17, Ex. A, AG 

153, 156.) Plaintiff stated that he did not need a lower bunk: “I play basketball, I don’t 

have any difficulties doing my activities of daily living”; “I am very active, and I’m feeling 

very good now.” (Id.) He was looking into being housed with another inmate/patient who 

has a lower bunk assignment and he was willing to take an upper bunk so he could be 

housed with the inmate who needed a lower bunk. (Id., Ex. A, AG 149, 157.) 

II. Summary Judgment 

Summary judgment is proper where the pleadings, discovery and affidavits show 

that there is “no genuine dispute as to any material fact and the movant is entitled to 
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judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment 

“against a party who fails to make a showing sufficient to establish the existence of an 

element essential to that party’s case, and on which that party will bear the burden of proof 

at trial . . . since a complete failure of proof concerning an essential element of the 

nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. 

Cattrett, 477 U.S. 317, 322-23 (1986). A fact is material if it might affect the outcome of 

the lawsuit under governing law, and a dispute about such a material fact is genuine “if the 

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

Generally, the moving party bears the initial burden of identifying those portions of 

the record which demonstrate the absence of a genuine issue of material fact. See Celotex 

Corp., 477 U.S. at 323. 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. But on an issue for which the opposing party will have the 

burden of proof at trial, the moving party need only point out “that there is an absence of 

evidence to support the nonmoving party’s case.” Id. at 325. If the evidence in opposition 

to the motion is merely colorable, or is not significantly probative, summary judgment may 

be granted. See Liberty Lobby, 477 U.S. at 249-50. 

The burden then shifts to the nonmoving party to “go beyond the pleadings and by 

her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on 

file,’ designate specific facts showing that there is a genuine issue for trial.’” Celotex 

Corp., 477 U.S. at 324 (citations omitted). If the nonmoving party fails to make this 

showing, “the moving party is entitled to judgment as a matter of law.” Id. at 323. 

The Court’s function on a summary judgment motion is not to make credibility 

determinations or weigh conflicting evidence with respect to a material fact. See T.W. 

Elec. Serv., Inc. V. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 

The evidence must be viewed in the light most favorable to the nonmoving party, and the 
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inferences to be drawn from the facts must be viewed in a light most favorable to the 

nonmoving party. See id. at 631. It is not the task of the district 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 do so, 

the district court may properly grant summary judgment in favor of the moving party. See 

id.; see, e.g., Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1028-29 

(9th Cir. 2001). 

A. Deliberate Indifference 

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

Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A prison official violates the 

Eighth Amendment only when two requirements are met: (1) the deprivation alleged is, 

objectively, sufficiently serious, and (2) the official is, subjectively, deliberately indifferent 

to the inmate’s health or safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). A 

“serious” medical need exists if the failure to treat a prisoner’s condition could result in 

further significant injury or the “unnecessary and wanton infliction of pain.” Id. 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. See 

Farmer, 511 U.S. at 837. The official must both know of “facts from which the inference 

could be drawn” that an excessive risk of harm exists, and he must actually draw that 

inference. Id. If a prison official should have been aware of the risk, but was not, then the 

official has not violated the Eighth Amendment, no matter how severe the risk. Gibson v. 

County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002). 

“A difference of opinion between a prisoner-patient and prison medical authorities 

regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 

1337, 1344 (9th Cir. 1981). Similarly, a showing of nothing more than a difference of 

medical opinion as to the need to pursue one course of treatment over another is 
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insufficient, as a matter of law, to establish deliberate indifference, Toguchi v. Chung, 391 

F.3d 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 

Mayfield v. Craven, 433 F.2d 873, 874 (9th Cir. 1970). In order to prevail on a claim 

involving choices between alternative courses of treatment, a plaintiff must show that the 

course of treatment the doctors chose was medically unacceptable under the circumstances 

and that he or she chose this course in conscious disregard of an excessive risk to 

plaintiff’s health. Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 332 (9th 

Cir. 1996) (citing Farmer, 511 U.S. at 837). 

Defendants state that for the purpose of this motion, they will not dispute that 

Plaintiff had a serious medical need. (Mot. at 9.) Instead, they assert that Plaintiff cannot 

show the second prong, i.e., that they subjectively, were deliberately indifferent to his 

medical needs. (Id. at 9, 11.) 

1. Defendants Risenhoover and Adam 

Plaintiff claims that shortly after he arrived at PBSP, Defendant Risenhoover 

discontinued several of his prescriptions, including tramadol and narcotic pain 

medications, (Compl. at 6), and that later when he complained of various ailments due to 

the loss of these medications, she and Defendant Adam failed to respond, (id. at 7-8). 

The evidence presented does not show a genuine dispute as to any material fact 

relating to Plaintiff’s claim of deliberate indifference against Defendants Risenhoover and 

Adam because he fails to satisfy the second prong, i.e., that Defendants were subjectively, 

deliberately indifferent to Plaintiff’s medical needs because they failed to take reasonable 

steps to abate a substantial risk of serious harm. See Farmer, 511 U.S. at 834, 837. The 

undisputed evidence shows that on January 27, 2016, Defendant Risenhoover examined 

Plaintiff’s past medical records and discussed with Defendant Adam a plan to taper 

Plaintiff off tramadol. See supra at 4. In Defendant Adam’s medical opinion, tramadol 

was not medically indicated for Plaintiff at the time because he was not in severe pain, his 

pain was chronic rather than acute, and the risks of prescribing tramadol, a highly addictive 
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opioid, far outweighed the benefits. Id. They also agreed to discontinue several other of 

Plaintiff’s medications because they were not medically indicated based on Plaintiff’s 

latest physical examination and laboratory results: he did not have angina and therefore did 

not need nitroglycerin; he did not have diabetes and therefore did not metformin; he did 

not have muscle or joint pain and therefore did not aspirin; he did not have high cholesterol 

and therefore did not need simvastatin; and he did not have foot fungus and therefore did 

not need clotrimazone cream. Id. at 4-5. According to Plaintiff’s allegations, Defendant 

Risenhoover told him that “she didn’t see a need for plaintiff to be prescribed tramadol, 

pain medication, metformin, nitroglycerin.” (Compl. at 6.) Because Defendants believed 

that these medications were not medically indicated, it cannot be said that they acted with 

deliberate indifference by discontinuing unnecessary medications. In other words, it 

cannot be said that Defendants knew that Plaintiff faced a substantial risk of serious harm 

and disregarded that risk by failing to take reasonable steps to abate it. See Farmer, 511 

U.S. at 837. 

In opposition, Plaintiff asserts that his previous doctors and health care providers 

had prescribed him the several medications due to several risk factors. (Opp. at 7.) 

Plaintiff also asserts that Dr. Joseph Walker had written an assessment plan on October 1, 

2008, to put him back on tramadol with which medical staff had agreed. (Id. at 11, Exs. C, 

D.) Plaintiff asserts that Defendants Risenhoover and Adam’s decision, in contrast to this 

specialist’s recommendations, was therefore clearly unreasonable. (Id. at 20.) Plaintiff 

also asserts that Defendants were aware that he had complained of chest pain and 

extremely high blood pressure on the day of his arrival (January 21, 2016), and that Dr. 

Dorfman’s prescriptions had immediately relieved his symptoms. (Id. at 15.) Plaintiff 

asserts that Defendants’ decision to discontinue his medication was unreasonable because 

the “treatment for all the reasons my care providers prescribed me the medications was not 

yet completed consistent with my medical treatment plan which was to continue taking all 

my medications as prescribed.” (Id. at 24.) 
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Plaintiff’s assertion that Defendants Risenhoover and Adam’s treatment plan was 

unreasonable because it was different from his previous medical providers’ treatment plan 

is unavailing. First of all, the specialist Dr. Walker’s assessment plan was made nearly 

eight years ago. Even if other medical providers agreed with this plan, there is no evidence 

that this treatment plan was still appropriate eight years later, when Plaintiff arrived at 

PBSP in 2016. Furthermore, even it was, a showing of nothing more than 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. See Toguchi v. Chung, 

391 F.3d 1051, 1058 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). 

As such, the fact that Dr. Dorfman decided it was medically appropriate to prescribe 

certain medications on January 21, 2016, which were later discontinued by Defendants, is 

not sufficient to establish a § 1983 claim against Defendants on the grounds that their 

chosen course of treatment deviated from that of other medical providers. Id. 

Furthermore, Plaintiff submits no evidence indicating that Defendants consciously chose to 

discontinue specific medications knowing their decision would cause an excessive risk of 

harm to Plaintiff. (Reply at 3.) Rather, the evidence shows that Defendants found the 

medications were no longer medically indicated as Plaintiff did not suffer from any the 

conditions which warranted the medication, and that they believed that the long-term risks 

of tramadol far outweighed the benefits. See supra at 4-5. Plaintiff points to no evidence 

in opposition to refute the fact that tramadol is an addictive opioid and that it was not the 

only appropriate treatment for his chronic pain. Rather, he simply asserts that tramadol 

was effective to treat his pain, and that without it his severe pain increased. (Opp., Ex. E at 

2.) However, this assertion merely states a difference of opinion between Plaintiff and 

Defendants with regards to treatment and is insufficient to state a § 1983 claim. See

Franklin, 662 F.2d at 1344. Nor is the fact that tramadol was later re-prescribed evidence 

that Defendants’ actions were deliberately indifferent in light of their belief that weaning 

Plaintiff off tramadol was the best course of action at the time. (Opp., Ex. E at 3.) 
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With respect to Plaintiff’s allegation that Defendants did not respond to his 

complaints of chest plain, the undisputed facts show that when he complained on February 

26, 2016, and March 1, 2016, Plaintiff was seen and evaluated by medical staff. See supra 

at 5; (Adam Decl. ¶ 12, Ex. A, AG 107-109, 111-119). Plaintiff’s medical records indicate 

that he did not appear to be in distress and his EKG showed normal sinus rhythm. Id. 

Accordingly, it cannot be said Defendants acted with deliberate indifference when Plaintiff 

was immediately seen and evaluated for his chest pain complaints, and after an 

examination and testing, there was no indication that Plaintiff was suffering from any 

distress to warrant a change in treatment plan. The notes from Defendant Adam’s meeting 

with Plaintiff on April 5, 2016, indicate that she discussed in detail with him about her 

chosen course of treatment; there is no indication in these notes that she was aware that her 

treatment plan would expose Plaintiff to an excessive risk of harm. (Adam Decl., Ex. A, 

AG 126-128.) In conclusion, Plaintiff has failed to point to “facts from which the 

inference could be drawn” that an excessive risk of harm exists, nor has he shown that 

Defendants in fact drew that inference. See Farmer, 511 U.S. at 837. Even if Defendants 

should have been aware of the risk but were not actually aware of it, then they have not 

violated the Eighth Amendment, no matter how severe the risk. Gibson, 290 F.3d at 1188. 

Based on the evidence presented, Defendants have shown that there is no genuine 

issue of material fact with respect to Plaintiff’s deliberate indifference claim. See Celotex 

Corp., 477 U.S. at 323. In response, Plaintiff has failed to point to specific facts showing 

that there is a genuine issue for trial, id. at 324, or identify with reasonable particularity the 

evidence that precludes summary judgment, Keenan, 91 F.3d at 1279. Accordingly, 

Defendants are entitled to judgment as a matter of law. Id.; Celotex Corp., 477 U.S. at 

323. 

2. Defendants McCall and Afdahl 

Plaintiff claims that Defendants McCall and Afdahl “conspired” to have his mental 

health medication discontinued, causing him to suffer psychologically, including 
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depression, anxiety, and symptoms associated with bipolar. (Compl. at 8-9.) More 

specifically, Defendants ended up reducing one of Plaintiff’s mental health medications to 

a lower dosage. (Id. at 9.) Plaintiff claims that when he notified Defendants about his 

anxiety, increased depression, mood swings, and bipolar symptoms, they failed to respond. 

(Id. at 10.) 

Defendants do not dispute that Plaintiff suffers from serious mental conditions. 

Defendants’ only response on the merits of this claim was presented in their reply as they 

withdrew their original argument that Plaintiff failed to administratively exhaust the claims 

against them. See supra at 2, fn. 2. Defendants assert that based on the inmate grievances, 

there is no evidence that they acted with deliberate indifference to Plaintiff’s medical 

needs. (Reply at 2-3.) However, their arguments in reply are not sufficient to show the 

absence of a genuine dispute as to any material fact because the second prong is still in 

dispute, i.e., that Defendants were subjectively, deliberately indifferent to Plaintiff’s 

medical needs because they failed to take reasonable steps to abate a substantial risk of 

serious harm. See Farmer, 511 U.S. at 834, 837. Plaintiff alleges that Defendant Afdahl 

made a “false claim” that Plaintiff was “cheek[ing]” his medication, which resulted in the 

reduction of that medication and further harm. (Compl. at 9.) The evidence must be 

viewed in the light most favorable to the nonmoving party, and the inferences to be drawn 

from the facts must be viewed in a light most favorable to the nonmoving party. See T.W. 

Elec. Serv., Inc., 809 F.2d at 631. In their reply, Defendants only rely on the prison’s 

response to Plaintiff’s inmate grievances to assert that the prison was being responsive to 

Plaintiff’s concerns. (Reply at 3.) They make no assertions with respect to Defendant 

McCall and Afdahl’s state of mind in taking the alleged actions. Accordingly, Defendants 

McCall and Afdahl have failed to meet their initial burden of identifying those portions of 

the record that demonstrate the absence of a genuine issue of material fact with respect to 

the claim that they acted with deliberate indifference when they allegedly interfered with 

Plaintiff’s mental health medication for no justifiable reason. See Celotex Corp., 477 U.S. 
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at 323. Because the Court finds no bad faith in Defendants’ failure to answer on the merits 

in the instant summary judgment motion, Defendants McCall and Afdahl shall be granted 

another opportunity to file a renewed summary judgment on the merits that is supported 

with the appropriate affidavits and evidence. 

 

CONCLUSION 

For the reasons stated above, the Court orders as follows: 

1. Defendants S. Risenhoover and N. Adam’s motion for summary judgment is 

GRANTED. The Eighth Amendment claims against them are DISMISSED with 

prejudice. See Celotex Corp., 477 U.S. at 323. The Clerk shall terminate these 

Defendants from this action. 

2. The summary judgment motion with respect to Defendants M. McCall, and 

J. Afdahl is DENIED without prejudice. 

3. No later than forty-two (42) days from the date this order is filed, 

Defendants McCall and Afdahl shall file a motion for summary judgment or other 

dispositive motion with respect to the Eighth Amendment claim against them. 

a. Any motion for summary judgment shall be supported by adequate 

factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of 

Civil Procedure. Defendants are advised that summary judgment cannot be granted, nor 

qualified immunity found, if material facts are in dispute. If any Defendant is of the 

opinion that this case cannot be resolved by summary judgment, he shall so inform the 

Court prior to the date the summary judgment motion is due. 

b. In the event Defendants file a motion for summary judgment, the 

Ninth Circuit has held that Plaintiff must be concurrently provided the appropriate 

warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See

Woods v. Carey, 684 F.3d 934, 940 (9th Cir. 2012). 

4. Plaintiff’s opposition to the dispositive motion shall be filed with the Court 
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and served on Defendants no later than twenty-eight (28) days from the date Defendants’ 

motion is filed. 

5. Plaintiff is also advised to read Rule 56 of the Federal Rules of Civil 

Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing 

summary judgment must come forward with evidence showing triable issues of material 

fact on every essential element of his claim). Plaintiff is cautioned that failure to file an 

opposition to Defendants’ motion for summary judgment may be deemed to be a consent 

by Plaintiff to the granting of the motion, and granting of judgment against Plaintiff 

without a trial. See Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (per curiam); 

Brydges v. Lewis, 18 F.3d 651, 653 (9th Cir. 1994). 

6. Defendants shall file a reply brief no later than fourteen (14) days after 

Plaintiff’s opposition is filed. 

7. Plaintiff may also file a cross-motion for summary judgment in the same 

time provided. Defendants’ opposition to Plaintiff’s cross-motion shall be filed no later 

than twenty-eight (28) days from the date Plaintiff’s motion is filed. Plaintiff’s reply shall 

be filed no later than fourteen (14) days after Defendants’ opposition is filed. 

8. The summary judgment motions shall be deemed submitted as of the date the 

reply brief is due. No hearing will be held on the motions unless the Court so orders at a 

later date. 

9. All communications by the Plaintiff with the Court must be served on 

Defendants, or Defendants’ counsel once counsel has been designated, by mailing a true 

copy of the document to Defendants or Defendants’ counsel. 

10. Discovery may be taken in accordance with the Federal Rules of Civil 

Procedure. No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local 

Rule 16-1 is required before the parties may conduct discovery. 

11. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 

court informed of any change of address and must comply with the court’s orders in a 
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timely fashion. Failure to do so may result in the dismissal of this action for failure to 

prosecute pursuant to Federal Rule of Civil Procedure 41(b). 

12. Extensions of time must be filed no later than the deadline sought to be 

extended and must be accompanied by a showing of good cause. 

This order terminates Docket No. 76. 

IT IS SO ORDERED. 

Dated: _____________________ ________________________ 

BETH LABSON FREEMAN 

United States District Judge 

Order Granting MSJ In Part; Briefing MSJ for Remaining Defs. 

PRO-SE\BLF\CR.17\00326Hollis_partialgrant.msj&brief