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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LEWIS DOMINIC SHAW,

Plaintiff,

v.

L. THOMAS, et al.,

Defendants.

Case No. 17-cv-00462-YGR (PR)

ORDER DENYING PLAINTIFF’S 

REQUEST FOR A CONTINUANCE 

PURSUANT TO FEDERAL RULE OF 

CIVIL PROCEDURE 56(D); AND 

GRANTING DEFENDANTS’ MOTION 

FOR SUMMARY JUDGMENT

I. INTRODUCTION

This is a pro se civil rights complaint under 42 U.S.C. § 1983 filed by Plaintiff, a state 

prisoner currently incarcerated at Pelican Bay State Prison (“PBSP”). He alleges a claim of 

deliberate indifference to medical needs against PBSP employees stemming from inadequate 

treatment for a compound fracture and subsequent infection in his right thumb. Dkt. 1 at 6, 8.1 He 

also claims that he was retaliated against for submitting a related inmate 602 appeal (“602 

appeal”). Id. at 26-27. He has named the following Defendants: PBSP Physicians N. Ikegbu, 

Dorfman, Adam, C. Sayre, Venes; PBSP Registered Nurses M. Hansen, B. Fellows, Alpaugh; 

PBSP Physician’s Assistant L. Thomas; PBSP Family Nurse Practitioner Risenhoover; PBSP 

Chief Executive Officer D. Jacobsen; PBSP Chief Medical Officer M. McLean; and PBSP

Correctional Officer C. George. Plaintiff seeks injunctive relief as well as declaratory and 

monetary damages.

In an Order dated July 18, 2017, the Court screened Plaintiff’s complaint and determined 

that he stated a cognizable Eighth Amendment claim relating to Defendants. Dkt. 9 at 2-3. The 

Court also found that Plaintiff had alleged a First Amendment retaliation claim against Defendant 

Thomas for a previous grievance Plaintiff filed against that Defendant. Id. at 4. The Court then 

directed the Clerk of the Court to serve the complaint and issued a briefing schedule for the served 

 

1 Page number citations refer to those assigned by the Court’s electronic case management 

filing system and not those assigned by the parties.
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Defendants to file a dispositive motion. See id. at 4-8.

On December 26, 2017, Plaintiff filed a notice of voluntary dismissal without prejudice as 

to the claims against Defendants Dorfman and Hansen. Dkt. 47. In an Order dated April 23, 

2018, the Court pointed out that the notice of voluntary dismissal without prejudice as to the 

claims against these Defendants was effective upon filing. Dkt. 54 at 1 (citing Fed. R. Civ. P. 

41(a)). Thus, the Court directed the Clerk to update the docket to show that all claims against 

Defendants Dorfman and Hansen had been dismissed from this action. Id.

The parties are presently before the Court on the dispositive motion filed by the remaining 

Defendants (hereinafter “Defendants”). Dkt. 52. Defendants move for summary judgment: (1) on 

Plaintiff’s Eighth Amendment claim against them on the ground that they did not violate his 

constitutional rights because he received proper care for his fractured thumb; (2) on his First 

Amendment claim against Defendant Thomas on the grounds that Plaintiff has failed to exhaust 

administrative remedies, as required by the Prison Litigation Reform Act (“PLRA”), and even if 

he did exhaust the undisputed evidence shows Defendant Thomas did not retaliate against 

Plaintiff; (3) based on qualified immunity; and (4) on his claims for equitable relief because he is 

not entitled to injunctive relief because they are barred by the pending class action Plata v. Brown. 

Id. Plaintiff has filed an opposition to Defendants’ motion for summary judgment. Dkts. 61, 61-1, 

62. Defendants have filed a reply to Plaintiff’s opposition. Dkt. 64. 

Also on July 18, 2018, Plaintiff filed a request for a continuance under Rule 56(d)2of the 

Federal Rules of Civil Procedure, which involves a procedure by which a party may avoid 

summary judgment when such party has not had sufficient opportunity to discover affirmative 

evidence necessary to oppose the motion. See Garrett v. San Francisco, 818 F. 2d 1515, 1518 

(9th Cir. 1987). In particular, Rule 56(d) provides that a court may deny a summary judgment 

motion and permit the opposing party to conduct discovery where it appears that the opposing 

party, in the absence of such discovery, is unable to present facts essential to opposing the motion. 

 

2 Plaintiff cites to Rule 56(f), the subsection in which the provisions pertaining to a party’s 

inability to present facts essential to justify its opposition formerly were set forth; as of December 

1, 2010, the applicable provision is Rule 56(d). See Fed. R. Civ. P. 56.
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See Fed. R. Civ. P. 56(d). Defendants oppose Plaintiff’s request under Rule 56(d), as further 

explained below. Dkt. 65. Plaintiff has filed a reply to Defendants’ opposition. Dkt. 67.

Having read and considered the papers submitted in connection with this matter, the Court 

hereby DENIES Plaintiff’s request for a continuance pursuant to Rule 56(d) and GRANTS 

Defendants’ motion for summary judgment.

II. PLAINTIFF’S REQUEST FOR A CONTINUANCE UNDER RULE 56(D)

As mentioned above, in his filing entitled, “Plaintiff’s Notice of Opposition to Defendants’ 

Summary Judgment Motion,” Plaintiff makes a conclusory argument that the pending motion for 

summary judgment must be “denied or stayed for a[n] unspecified period of time, to be 

de[ter]mined by the Court, allowing more time for Plaintiff to complete his discovery.” Dkt. 61 at 

1. Defendants oppose the motion stating that Plaintiff “has had ample opportunities to conduct 

discovery and fails to show how any additional discovery would preclude summary judgment in 

favor of Defendants.” Dkt. 65 at 1.

Specifically, Plaintiff states that his request for a continuance under Rule 56(d) was made 

on the grounds that:

(1) Plaintiff has been diligently pursuing discovery[;]

(2) Plaintiff has already began receiving discovery from two of the 

Defendants[;]

(3) The objections Defendant[s] L. Thomas and B. Fellows asserted 

in their responses to Plaintiff’s Request for Admissions, 

Interrogatories, and Production of Documents are meritless and 

an attempt to impede full and free discovery of the truth[;]

(4) A number of Defendants in this matter are in possession of 

discovery Plaintiff is entitled to that will help him defeat their 

attemp[t] to have this suit dismissed on summary judgment; 

(5) This notice of motion; 

(6) The declaration of [Plaintiff] attached; and

(7) Plaintiff’s Memorandum of Points and Authorities.

Dkt. 61 at 1-2 (brackets added).

Rule 56(d) allows the Court to defer consideration of a motion where “a nonmovant shows 
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by affidavit or declaration that, for specified reasons, it cannot represent facts essential to justify 

its opposition.” To obtain relief under Rule 56(d), “[t]he requesting party must show: (1) it has set 

forth in affidavit form the specific facts it hopes to elicit from further discovery; (2) the facts 

sought exist; and (3) the sought-after facts are essential to oppose summary judgment.” Family 

Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008). 

Here, the record shows that Plaintiff filed a document entitled, “Declaration of Lewis 

Dominic Shaw in Opposition to Defendants’ motion for summary judgment; pursuant to FED. R. 

C. P. Rule 56([d]).” Dkt. 61 at 2-20 (brackets added). However, in this declaration, Plaintiff does 

not mention “the specific facts [he] hopes to elicit from further discovery” or explain how “the 

sought-after facts are essential to oppose summary judgment.” See Family Home & Fin. Ctr., Inc., 

525 F.3d at 827. Thus, Plaintiff’s declaration does not fulfill his obligation to file the required 

affidavit. See id. Instead, Plaintiff’s aforementioned declaration contains arguments in support of 

his opposition to Defendants’ motion for summary judgment. See Dkt. 61 at 3-20. As such, the 

Court finds that Plaintiff failed to file the required affidavit, a deficiency that itself justifies 

denying the instant Rule 56(d) request. In addition, as mentioned above, Plaintiff’s declaration

fails to describe the specific facts that would be revealed or why this discovery would preclude 

summary judgment. Moreover, Defendants argue that “Plaintiff cannot deny that he was given a 

copy of all the medical and hospital records related to this case and the incident in question,” and 

they further state as follows:

[Plaintiff] has propounded 64 requests for production of documents, 

112 requests for admission, and 46 requests for interrogatories. 

Defendants have responded to all of his discovery requests, although 

Plaintiff now finds the responses inadequate. Defendants have also 

produced 515 documents in response to Plaintiff’s discovery requests, 

and included all the relevant documentation in support of their motion 

for summary judgment.

Dkt. 65 at 2. Defendants also point out that Plaintiff has filed a lengthy opposition, stating as 

follows:

In support of his opposition to Defendants’ motion for summary 

judgment, Plaintiff has also filed a 20-page notice of opposition and 

declaration in support of opposition (ECF No. 61); a 34-page notice 

of opposition and memorandum of points and authorities (ECF No. 

61-1), a 14-page response to Defendants’ undisputed facts (ECF No. 

62), and 257-pages of supporting exhibits—including medical 
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records and Defendants’ discovery responses (ECF No. 63). Plaintiff 

was clearly able to prepare a lengthy opposition to the summaryjudgment motion without needing additional discovery, and it is 

unclear why a stay is necessary at this point.

Id.

“Failure to comply with the requirements of Rule [56(d)] is a proper ground for denying 

discovery and proceeding to summary judgment.” Brae Transp., Inc. v. Coopers & Lybrand, 790 

F.2d 1439, 1443 (9th Cir. 1986). Therefore, Plaintiff’s request for a continuance pursuant to Rule 

56(d) is DENIED. Moreover, in his reply to the opposition, Plaintiff concedes that he “has made 

no request for discovery.” Dkt. 67 at 3. Because the parties agree that no pending discovery 

matters need to be resolved, it then follows that any request to stay this matter for Plaintiff to 

complete discovery would have been unnecessary.

III. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

One of the issues presented in Defendants’ summary judgment motion is whether Plaintiff 

properly exhausted his administrative remedies as to his retaliation claim against Defendant 

Thomas. Before turning to the facts of this case, the Court briefly reviews the requirements of the 

PLRA and administrative review process applicable to California prisoners.

A. Legal Framework for Exhaustion of Available Administrative Remedies

The PLRA requires a prisoner to exhaust all available administrative remedies before 

bringing an action with respect to prison conditions. 42 U.S.C. § 1997e(a). “[T]he PLRA’s 

exhaustion requirement applies to all inmate suits about prison life, whether they involve general 

circumstances or particular episodes, and whether they allege excessive force or some other 

wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).

Exhaustion of all “available” remedies is mandatory; those remedies neither need to meet 

federal standards, nor must they be “plain, speedy, and effective.” Booth v. Churner, 532 U.S. 

731, 739-40 (2001). The PLRA requires proper exhaustion of administrative remedies. Woodford 

v. Ngo, 548 U.S. 81, 83 (2006). “Proper exhaustion demands compliance with an agency’s 

deadlines and other critical procedural rules because no adjudicative system can function 

effectively without imposing some orderly structure on the course of its proceedings.” Id. at 90-

91. Thus, compliance with prison grievance procedures is required by the PLRA to exhaust
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properly. Id. 

The CDCR provides its inmates and parolees the right to appeal administratively “any 

departmental decision, action, condition, or policy which they can demonstrate as having an 

adverse effect upon their welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). It also provides its 

inmates the right to file administrative appeals alleging misconduct by correctional officers. Cal. 

Code Regs. tit. 15, § 3084.1(e). Healthcare appeals are handled separately from grievances 

concerning the actions of custody staff. Voong Decl. ¶ 2.

On January 28, 2011, certain revisions to the California prison regulations governing 

inmate grievances became operative. See History, Note 11, Cal. Code Regs. tit. 15, § 3084.2. In 

order to exhaust all available administrative remedies within this system, a prisoner must submit 

his complaint on CDCR Form 602 (“602 appeal”) and proceed through three levels of appeal: 

(1) first formal level appeal filed with one of the institution’s appeal coordinators, (2) second 

formal level appeal filed with the institution head or designee, and (3) third formal level appeal 

filed with the CDCR director or designee (i.e., “Director’s level”). Cal. Code Regs. tit. 15, 

§§ 3084.1(b), 3084.7. Under specific circumstances, the first level review may be bypassed. Id. 

The third level of review constitutes the decision of the Secretary of the CDCR and exhausts a 

prisoner’s administrative remedies. Id. § 3084.7(d)(3). A California prisoner is required to submit 

an inmate appeal at the appropriate level and proceed to the highest level of review available to 

him. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005); Bennett v. King, 293 F.3d 1096, 1098 

(9th Cir. 2002). 

The level of detail in an administrative grievance necessary to exhaust a claim properly is 

determined by the prison’s applicable grievance procedures. Jones v. Bock, 549 U.S. 199, 218 

(2007). The level of specificity required in the appeal is described in the California Code of 

Regulations as follows:

The inmate or parolee shall list all staff member(s) involved and shall 

describe their involvement in the issue. To assist in the identification 

of staff members, the inmate or parolee shall include the staff 

member’s last name, first initial, title or position, if known, and the 

dates of the staff member’s involvement in the issue under appeal. 

Cal. Code Regs. tit. 15, § 3084.2(a)(3) (emphasis added). 
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B. Factual Background3

1. The Parties

At the time of the events set forth in his complaint, Plaintiff was a state prisoner who was 

incarcerated at PBSP. See Dkt. 1 at 1. Also during the time frame at issue, the following 

Defendants were employed by PBSP: Chief Medical Executive Jacobsen; former California 

Correctional Health Care Services (“CCHCS”) Chief Executive Officer (“CEO”) McLean; 

Physicians Adam, Espinoza, Ikegbu, Sayre and Venes; Registered Nurses (“RNs”) Alpaugh, and

Fellows; Family Nurse Practitioner (“FNP”) Risenhoover; Physician’s Assistant (“PA”) Thomas; 

and Correctional Officer George.

2. Plaintiff’s Version

The following background relating to Plaintiff’s Eighth Amendment claim is taken from 

the Court’s July 18, 2017 Order:

Plaintiff claims that on December 5, 2014, he was “targeted during a 

prison riot on B-Facility, and viciously attacked by several inmates.” 

Dkt. 1 at 6. Soon thereafter, Plaintiff was “transported to an outside 

medical facility—Sutter Coast Hospital.” Id. Plaintiff claims that Dr. 

Helmuth F. Vollger “re-set the fracture in plaintiff[’]s thumb.” Id. 

Plaintiff alleges that from December 6, 2014 through mid-April 2015, 

he suffered “unnecessary pain and suffering” in his fractured right

thumb. Id. at 6, 7-8, 12, 15-16. His injured right thumb initially 

 

3 This Order contains many acronyms. Here, in one place, they are:

ASU Administrative Segregation Unit

CDCR California Department of Corrections and Rehabilitation

CEO Chief Executive Officer

CME Chief Medical Executive

CCHCS California Correctional Health Care Services

FNP Family Nurse Practitioner

HCARTS Health Care Appeals and Risk Tracking System 

HCCAB Health Care Correspondence and Appeals Branch 

IATS Inmate Appeals Tracking System

ICAB Inmate Correspondence and Appeals Branch

IUMC Institutional Utilization Management Committee

OOA Office of Appeals 

PBSP Pelican Bay State Prison

PA Physician’s Assistant

PCP Primary Care Provider

RN Registered Nurse

UHR Unified Heath Record

UTA Urgent Treatment Area
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required re-setting as well as a spica splint4and, subsequently, 

Plaintiff had to take antibiotics to treat an infection. Id. Extensive 

physical therapy is now necessary in order to get the full range of 

motion in his thumb back. Id. The aforementioned allegations 

support an inference that Plaintiff has serious medical needs. 

Liberally construed, Plaintiff’s allegations that PBSP medical staff 

failed to provide adequate medical treatment for the compound 

fracture in his right thumb and subsequent infection state cognizable 

Eighth Amendment claims of deliberate indifference to his serious 

medical needs against Defendants Hansen, George, Fellows, 

Risenhoover, Ikegbu, Dorfman, Adam, Thomas, Sayre, Venes, 

Alpaugh, Jacobsen, and Mclean. Specifically, Plaintiff claims he was 

denied the following requests: (1) to have his wound cleansed by 

Defendants Hansen, George, and Fellows; (2) to be treated in a timely 

manner with an effective course of antibiotics by Defendants 

Risenhoover, Ikegbu, Dorfman, Adam, Thomas, Sayre, Venes, and 

Alpaugh; (3) to be transported to a medical appointment, with or 

without having to remove his arm sling so that he could be double 

cuffed, by Defendants George and Fellows; (4) to have the blood 

work done (as ordered by Defendant Ikegbu) by Defendants George 

and Fellows; (5) to retain possession of the arm sling and spica splint 

as part of his ongoing medical treatment plan by Defendants Ikegbu, 

Thomas, Jacobsen, and Mclean; (6) to place back on the spica splint 

after x-rays showed his thumb was still in the infancy stages of 

healing by Defendants Thomas and Jacobsen; (7) to be provided 

effective follow-up care by Defendant Thomas and extensive physical 

therapy by Defendants Jacobsen and Thomas; and (8) to have his 

request for a surgical intervention taken seriously, if not otherwise 

granted, by Defendant Ikegbu. See id. at 6-16. 

Dkt. 9 at 2-3 (footnote renumbered). In his complaint, Plaintiff also alleged a First Amendment 

retaliation claim against Defendant Thomas, stating as follows:

Plaintiff also claims that Defendant Thomas retaliated against him for 

submitting a 602 appeal “complaining of the many arbitrary and 

capri[ci]ous medical decisions [Defendant Thomas] had subjected 

[Plaintiff] to.” Id. at 13-14; 26-27. Plaintiff claims that after he filed 

the aforementioned appeal against Defendant Thomas, Plaintiff had 

an appointment with Defendant Thomas on February 24, 2015. Id. at 

14. Prior to turning her attention to Plaintiff, Defendant Thomas first 

told the prison guards who escorted him to the appointment that 

“. . . these guys wanting to come in here are just a bunch of whiners 

and complainers with little else to do than put in sick call slips and 

file 602s.” Id. Defendant Thomas then told Plaintiff that his thumb 

“had healed fine, and she did not think he needed any physical 

therapy.” Id. Plaintiff claims that he attempted to explain why he 

disagreed with her, but that she instructed the prison guards to take 

him back to his cell, thereby “discontinuing [his] health care 

appointment prematurely in retaliation for the submission” of his 602 

appeal against her. Id. Plaintiff claims that as a “pretext to justifying 

 

4 According to the internet encyclopedia, Wikipedia, a “spica splint” is a type of orthopedic 

splint used to immobilize the thumb and/or wrist while allowing other digits freedom to move. 

See https://en.wikipedia.org/wiki/Spica_splint (last accessed on February 20, 2017).
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denying [him] his medical treatment, [D]efendant Thomas knowingly 

lied by claiming [Plaintiff] had bec[o]me ‘uncooperative, 

argumentative and loud.’” Id. at 14.

Id. at 4. 

To elaborate on his version of the factual background, Plaintiff has submitted a sword 

declaration in which he outlines the following series of events explaining how Defendants were 

deliberately indifferent in their actions or failure to act in response to his thumb injury. See Pl. 

Decl.; Dkt. 61 at 3-20. The Court includes the following summary below outlining the relevant

events, which pertain only to the alleged actions and/or failure to act by the named Defendants:

a. December 5-14, 2014 - Initial Treatment of Thumb Injury

As mentioned, on December 5, 2014, Plaintiff injured his thumb during a “prison riot.” Pl. 

Decl. ¶ 4. He claims that the “bone in [his] thumb was pat[e]ntly fractured and exposed.” Id. 

Defendant Ikegbu was present at the prison’s clinic when Plaintiff arrived with “blood, dirt, and 

other unknown properties from the ground attached to, and around [his] open thump fracture.” Id.

¶ 5. Plaintiff claims that prior being sent to the Urgent Treatment Area (“UTA”), medical staff 

“poured a water-like substance on the exposed flesh and bone in [his] thumb, and applied a sterile 

dressing to [his] thumb.” Id. Plaintiff was then taken to the UTA where Defendant Sayre ordered 

for Plaintiff to be transported via ambulance to Sutter Coast Hospital. Id. ¶ 7. Plaintiff claims that 

while he was waiting at UTA to be transported, no medical staff acted to “clean [his] thumb with 

normal saline.” Id. Plaintiff was then transported to Sutter Coast Hospital where medical 

personnel (none of whom are named Defendants) treated his thumb injury by taking an x-ray of 

the thumb to reveal the fracture, numbing the thumb area, treating the wound with “a water-like 

substance, in addition with a reddish looking substance,” stitching the wound closed, using an 

antibiotic dressing, and immobilizing it with a metal foam splint. Id.

After Plaintiff returned to PBSP from the hospital on December 5, 2014, Defendant 

Thomas ordered a prescription for Cephalexin, the generic antibiotic equivalent of Keflex, 500 mg 

four times a day for ten days, as well as both Ibuprofen and Tylenol #3 (Tylenol with codeine) for 

pain. Feinberg Decl. ¶ 31. However, Plaintiff claims that he did not receive the aforementioned 

medication until December 8, 2014. Pl. Decl. ¶ 14. Plaintiff also alleges that the dressing placed 
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by hospital staff on his thumb on December 5, 2008 was not replaced with clean dressing until 

December 9, 2014 when Defendant Venes “cleaned away the blood and infectious maladies that 

had been festering in and around the sight of my compound fracture since December 5, 2014 . . . .” 

Id. ¶ 17. Thus, Plaintiff claims by that time “an infection had already begun to take effect.” Id. 

Finally, Plaintiff claims that the “temporary spica ‘like’ splint that [Defendant] Venes created to 

replace the metal foam thumb splint [Plaintiff] had been wearing was not sufficient enough to 

keep the set in my fractured thumb stabilized.” Id. On December 12, 2014, Defendant Venes 

created a “new spica like splint,” but Plaintiff claims that “it was not an adequate substitute 

capable of keeping [his] recently set fracture stabilized.” Id. ¶ 19.

On December 14, 2014, Plaintiff was discharged from the UTA, and Defendant Ikegbu 

instructed him to “wear the arm sling she issued [him] whenever [he] was being escorted out of 

[his] cell, as well as when [he] wanted to walk around in [his] cell.” Id. ¶ 24.

b. December 15, 2014 - Defendant George’s Refusal to Escort Plaintiff to 

Medical Appointment

Plaintiff claims that on December 15, 2014, he was “scheduled to receive nursing care 

which included having [his] thumb cleaned and dressing changed, as well as a blood draw.” Id.

¶ 26; Ex. K; Dkt. 63 at 35-37. According to the attached discharge instructions dated December 

14, 2014, prison medical personnel would “obtain CBC,5 ESR,6 CRP7[from Plaintiff] on 

12/15/14.” Dkt. 63 at 36. 

Plaintiff claims that on December 15, 2014, Defendant George came to Plaintiff’s cell and 

noticed that Plaintiff was wearing his arm sling. Pl. Decl. ¶ 27. Plaintiff claims that Defendant 

 

5 A complete blood count (CBC) is a test that measures the cells that make up your blood: 

red blood cells, white blood cells, and platelets. See https://www.webmd.com/a-to-zguides/qa/what-is-a-complete-blood-count-cbc (last visited December 3, 2018).

6 The erythrocyte sedimentation rate (ESR) reflects the degree of inflammation in the body. 

See https://www.webmd.com/osteoarthritis/qa/what-tests-are-used-to-determine-inflammation-forrheumatoid-arthritis (last visited December 3, 2018).

7 C-reactive protein (CRP) is a sign of inflammation, and a high CRP could mean someone 

has an inflammatory disease such as rheumatoid arthritis. See 

https://www.webmd.com/rheumatoid-arthritis/qa/what-is-a-creactive-protein-crp (last visited 

December 3, 2018).
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George told Plaintiff that he had to check if there was a chrono8authorizing Plaintiff to be 

escorted with an arm inside and arm sling. Id. Defendant George returned with Defendant 

Fellows, who asked Plaintiff to sign “two CDCR 7225 medical refusal waivers,” but Plaintiff 

refused to do so. Id. Instead, Plaintiff claims that he told Defendants George and Fellows that he 

would “take the arm sling off if that is what [he] had to do to be allowed to come out for [his] 

scheduled nursing care.” Id. ¶ 29. However, Plaintiff claims that Defendants George and Fellows 

“persisted in their fabricated accusation that [he] refused to cuff up when [Defendant] George 

initially came to my cell door, insisting that because I did not come out then, [his] actions were 

deemed a medical refusal.” Id. Plaintiff claims that Defendants George and Fellows “told [him] 

that no matter what [he] said to them, [he] was not coming out of [his] cell for any medical 

treatment that day.” Id. 

c. December 16, 2014 - Rescinding of Arm Sling Chrono by Defendant 

Thomas

On December 16, 2014, Plaintiff had a follow-up appointment with Defendant Thomas, 

during which she rescinded Plaintiff’s arm sling chrono because “she did not think that ASU 

officers should have to be required to go through the extra hassle imposed by [Plaintiff] having 

a[n] armsling, or placing [him] in cuffs everytime [he] ha[s] to be escorted out of [his] cell.” Pl. 

Decl. ¶ 32. Plaintiff claims that Defendant Thomas “never stated she did not think the arm sling 

served a legitimate medical purpose . . . .” Id. Plaintiff also claims that Defendant Thomas 

“blatantly lied’ in her progress notes about seeing Plaintiff “actively and passively moving the 

joints in [his] right thumb.” Id. ¶ 33. Plaintiff claims that since his thumb injury, “it is impossible 

for [him] to tuck [his] thumb into a closed fist.” Id. ¶ 34.

d. December 20-30, 2014 - After Rescinding of Arm Sling Plaintiff 

Complained of Thumb Pain

On December 20, 2014, Plaintiff was examined by Defendant Fellows for his daily 

dressing change and wound cleansing, and he claims that, contrary to Defendant Fellows’s 

progress notes, he complained of pain. Id. ¶ 35. Plaintiff claims that from December 20 through 

 

8 A “chrono” is a form that allows prisoners to request certain medical accommodations as 

deemed necessary by medical staff.
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30, “after the removal of the arm sling, [he] complained everyday about the increased pain [he] 

was experiencing in [his] right thumb.” Id. But to no avail. Id. Plaintiff adds that the “Ibuprofen 

pain pills” failed to alleviate his pain. Id. 

On December 30, 2014, Plaintiff was examined by Defendants Thomas and Fellows, and 

he complained that his right thumb “throbbed and ached, and that the pain and throbbing worsened 

as the day progressed.” Id. ¶ 36.

e. January 2015 - Defendant Thomas’s Removal of Spica Splint

On January 2, 2015, Plaintiff learned that Defendant Thomas instructed Defendant Fellows 

to remove Plaintiff’s spica splint. Id. ¶ 37. However, Plaintiff claims that the “7410 special 

accom[m]odation chrono, which [he] had, g[ave] [him] the authorization to wear a spica splint on 

[his] right thumb, was not set to expire until January 30, 2015.” Id. During his January 2, 2015 

appointment, Plaintiff refused to relinquish his spica splint even though Defendant Thomas 

“discontinued the 7410 accom[m]odation chrono on December 30, 2014.” Id. ¶ 41. Defendant 

Fellows allowed Plaintiff to continue wearing his spica splint until he was able to speak with 

Defendant Thomas about it. Id.

On January 2, 2015, Plaintiff complained to Defendants Jacobsen and McLean to “put 

[them] on notice that [Defendant] Thomas[’s] medical decisions regarding [his] medical needs 

showed a pattern of deliberate indifference . . . .” Id. ¶ 38. However, he did not receive a 

response for the aforementioned Defendants. Id. ¶ 40.

On January 9, 2015, Plaintiff’s x-rays of his thumb were taken. Id. ¶ 42. After completion 

of the x-rays, Plaintiff’s spica splint was “immediately tossed in the trash.” Id. ¶ 43. Plaintiff 

claims that “[n]otwithstanding the fact [that] the x-ray slides revealed that [his] right thumb was 

still fractured, a 7410 chrono for a spica splint was not reissued. Id. ¶ 44. Plaintiff claims that 

from January 9, 2015 through April 2015 when he was released into general population, his right 

thumb was “repeated[ly] jammed and banged against the food slot.” Id. ¶ 45. Plaintiff claims he 

was also “subjected to correctional officers maliciously pulling [his] thumb and causing [him] 

unnecessary pain and suffering.” Id. Plaintiff claims that he submitted a 602 appeal, log no. 

PBSP HC 15028879, complaining about “the numerous arbitrary and capricious medical decisions 
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[Defendant] Thomas had subjected [him] to.” Id. ¶ 46.

f. February 11, 2015 - Follow-Up TeleMedicine Orthopedic Visit With Dr. 

Cross

As a result of the aforementioned 602 appeal, Defendant Jacobsen and the IUMC members 

“approved a follow-up Telemed Ortho visit with Dr. Cross.” Id. ¶ 48. Dr. Cross ordered “repeat 

x-rays of [Plaintiff’s] thumb,” and “physical therapy two times a week for a month, until [Dr. 

Cross] had a chance to look over [Plaintiff’s] latest x-rays.” Id.

On February 11, 2015, Plaintiff had x-rays of his right thumb, which showed that the 

“fracture in his right thumb was still visible.” Id.; Ex. W.

g. February 24, 2015 - Appointment With Defendant Thomas and 

Limitation of Physical Therapy Sessions 

Plaintiff claims that during his February 24, 2015 appointment with Defendant Thomas, 

she told him that “she thought [his] thumb had healed fine, and that she was not going to order any 

more physical therapy sessions for [him].” Id. ¶¶ 49, 51. Plaintiff attempted to “participate in 

[his] treatment plan by sharing what [he] had been told by the physical therapist and Dr. Cross,” 

i.e., that he would need “extensive amount of hours with a physical therapist to get a reasonable 

range of motion in [his] right thumb,” but Defendant Thomas accused him of lying and ordered 

the officers to take him back to his cell. Id. ¶¶ 51, 53. Plaintiff claims he “did not get loud, nor 

was [his] demeanor aggressive.” Id. ¶ 52. 

Plaintiff claims that Defendants Jacobsen and Thomas “only approved for [him] to have 

two physical therapy sessions.” Id. ¶ 54. By April 12, 2015, Plaintiff “only received two physical 

therapy sessions, with each one only lasting thirty minutes.” Id. Plaintiff claims that Defendant 

Fellows informed him that “the reason he wasn’t being approved for any more physical therapy 

sessions was because they cost the state too much money.” Id. ¶ 56.

h. April 24, 2015 - Appointment With Defendant Ikegbu

On April 24, 2015. Plaintiff was examined by Defendant Ikegbu during which Plaintiff 

complained that he was “still experiencing pain and total stiffness in the distal proximal 

phalangeal base of [his] right thumb,” that he “could not pick up items with [his] right thumb and 

index finger,” and that he could not fully grasp items with [his] right hand.” Id. ¶ 58. Defendant 
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Ikegbu acknowledged that she “reviewed the previous x-rays that had been taken of [Plaintiff’s] 

right thumb.” Id. ¶ 59. Plaintiff claims that Defendant Ikegbu “even acknowledged that there was 

some swelling in [his] right thumb.” Id. However, Defendant Ikegbu “refused [Plaintiff’s] 

request to work with a physical therapist.” Id.

3. Defendants’ Version

a. Defendants’ Involvement With Plaintiff’s Thumb Care and Treatment

In their motion for summary judgment, Defendants have outlined each Defendant’s 

involvement with Plaintiff’s thumb care and treatment. See Dkt. 52 at 10-17. The Court notes 

that Defendants have supported their motion for summary judgment with expert testimony. See

Feinberg Decl. Specifically, Defendants present a declaration from a medical expert, CCHCS 

Office of Legal Affairs Chief Medical Consultant Dr. Bennett Feinberg, who obtained his B.A. in 

molecular biology at University of California - Berkeley, obtained his medical degree at 

University of California - San Francisco, and now is a board-certified internal medicine physician. 

Dkt. 52-6 at 30. In his position as Chief Medical Consultant, which he has held since February 

2017, he “[p]rovide[s] expert review and analysis to CCHCS and [U.S. Department of Justice] 

attorneys for their response to court inquiries, lawsuits filed by patients, inquiries by patient 

advocates, medical board inquiries, and other matters involving claims regarding the medical 

condition of patients.” Id. Dr. Feinberg states that “[Plaintiff’s] medical records documenting 

care provided to him while incarcerated in California prisons are maintained in what is called the 

UHR (unified health record), identified by his CDC# V71030.” Feinberg Decl. ¶ 8, fn. 2. He 

states that portions of these records have been provided to him by defense counsel, and that he also 

accessed Plaintiff’s UHR from July 31, 2012 to present that are stored electronically, which was 

available to him as a practicing CCHCS physician. Id. Lastly, Dr. Feinberg states that, 

“[a]lthough [he has] reviewed his entire record, [he] describe[d] only those portions pertinent to 

[his] opinion,” and he certifies that the documents attached to his declaration are true and correct 

copies of original documents from Plaintiff’s health record. Feinberg Decl. ¶ 6, Ex. B at Shaw 

001-100; Dkt. 52-6 at 32-137. Thus, Defendants’ outline is taken from Dr. Feinberg’s summary of 

Plaintiff’s medical records, and the Court includes the aforementioned outline as Defendants’ 
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version of the factual background below. 

Doctor N. Adam.

Defendant Dr. Adam is a physician and surgeon at PBSP. Dr. Adam 

participated in three Institutional Utilization Management 

Committees (IUMC) that met to evaluate Plaintiff’s Primary Care 

Provider’s (PCP) requests for specialty services, and that granted 

each request for services. ([Feinberg Decl.] ¶ 66-67.) According to

medical records, Dr. Adam did not examine Plaintiff during the 

relevant time frame, but did examine him in May 2017 when 

Plaintiff complained about severe right shoulder and neck pain after 

doing pull-ups three to four weeks prior. (Id. ¶ 33.) On exam, she 

noted Plaintiff as being a “well-built male with hypertrophic muscles

. . . . (Id.) She also noted that he was able to pull his shirts off 

overhead smoothly, using both arms equally. (Id.) She ordered pain 

medications and xrays. (Id.)

Registered Nurse D. Alpaugh.

Defendant Alpaugh’s only relevant participation in this case was her 

documentation of the IUMC meetings and recommendations. (Id. 

¶ 66-67.)

Registered Nurse B. Fellows.

When Plaintiff returned from the hospital, he did not see Defendant 

Fellows until December 8, 2014, when she responded to his request 

for “stronger pain medication.” (Id. ¶ 13.) That day, noting Plaintiff 

was taking ibuprofen and antibiotics, she discussed Plaintiff’s 

request with Dr. Venes and he ordered Tylenol #3 for his pain. (Id.; 

Ex. B: Shaw 021.) On December 9, 2014, she and Dr. Venes 

removed Plaintiff’s old dressing, cleansed his skin, removed dried 

blood, and applied a new dressing and the temporary spica splint, 

molded to better fit his thumb. (Id. ¶ 14.) Before this date, there 

was no dressing change performed or ordered, and none would have 

been indicated at that time. (Id. ¶ 36.)

On December 15, 2014, Plaintiff was scheduled for unrelated lab 

work and a check of his vital signs. (Id. ¶ 21.) Fellows explained to 

Plaintiff that he could go without the sling to and from doctor’s visits 

in order to cuff up, and if Plaintiff refused to be cuffed-up, that act 

qualified as a refusal of his healthcare services. (Id.) There is no 

evidence that Fellows dishonored an existing accommodation for a 

sling to deny Plaintiff treatment or care on December 15, 2014. (Id. 

¶ 45.)

When Fellows attempted to get Plaintiff to sign the required refusal 
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forms, Plaintiff refused to sign, so Fellows noted his refusal on the 

forms. (Id. ¶ 44.) On January 2, 2015, Fellows attempted to enforce 

Thomas’s order to discontinue Plaintiff’s spica splint and replace it 

with an Ace wrap, but Plaintiff did not understand, so Fellows 

allowed him to retain the spica-splint wraps until Plaintiff could 

discuss it with Plaintiff’s PCP the following week. (Id. ¶ 26.) On

January 15, 2015, Fellows delivered medication to Plaintiff’s cell 

front. (Id. ¶ 28.) On February 2, 2015, she interviewed Plaintiff for 

his appeal, Log No. HC 15028879, and noted that his request for an 

orthopedic follow-up had already been approved by the [Utilization 

Management] committee. (Id. ¶ 29.)

Correctional Officer D. George.

Defendant George was assigned as a correctional officer in the 

Administrative Segregation Unit (ASU). Inmates housed in the ASU 

are required to be escorted throughout the institution in the most 

secured manner possible. George’s only actions in this case took 

place on December 15, 2014, when he attempted to escort Plaintiff, 

housed in ASU, to his scheduled medical appointment for lab work 

and a check of vital signs. (Id. ¶ 43.) When George approached

Plaintiff’s cell, Plaintiff was not wearing the sling.(Id.) Because 

there was no chrono or evidence indicating that Plaintiff had any 

special medical needs that would qualify him for an exemption from 

being placed in restraints, George was not permitted to take Plaintiff 

to his appointment when Plaintiff refused to be restrained for the 

escort. (Id. ¶¶ 45, 56; M. Voong Decl. in Support of Defs.’ Mot. 

Summ. J., Ex. A, Inmate Appeal, Log No. PBSP 14-03523.)

Doctor N. Ikegbu.

Defendant Ikegbu was present when Plaintiff was initially brought in 

for his fractured thumb on December 5, 2014. (Feinberg Decl. ¶ 9.) 

She ordered the application a sterile dressing and urgent transport to 

the Urgent Treatment Area for further assessment and treatment, 

including IV antibiotics, wound exploration, possible debridement, 

reduction and fixation, immobilization and pain management. (Id.)

She saw Plaintiff again on December 13, 2014, when he was 

admitted to the Urgent Treatment Area (UTA) for further evaluation 

of his wound.(Id. ¶ 18.) On exam, Dr. Ikegbu noted that Plaintiff 

had no fever but appeared to be in pain, and his thumb was swollen 

and tender to the touch. (Id.) Dr. Ikegbu removed the sutures, 

placed eight days earlier, consistent with the recommendation for 

seven-to-ten-day suture removal. (Id.) To rule out any infection, Dr.

Ikegbu’s plan included a wound exploration, and the administration 

of intravenous antibiotics, which required temporary admission to 

the correctional treatment center (CTC) for a higher level of nursing 

care. (Id.) She then performed the wound exploration, with no 
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finding supporting a complicating infection, she applied sterile 

dressing, and replaced the spice splint held in place with ace 

bandages. (Id.) Dr. Ikegbu also provided a short course of 

intravenous antibiotics, broadening Plaintiff’s oral antibiotic 

regimen, and ordered additional pain medications (Tylenol #3 and 

Ibuprofen). (Id. ¶ 19.) When Plaintiff was discharged the next day, 

Dr. Ikegbu issued orders to keep the dressing dry and intact for three 

days, and continued the prescribed pain medications, additional lab 

work, and provision of a temporary arm sling and spica splint. (Id.) 

Dr. Ikegbu also participated in three IUMCs that met to evaluate 

Plaintiff’s PCP’s requests for specialty services and that granted each 

request for services. (Id. ¶¶ 66-67.) She also ordered unrelated 

diagnostic tests in December 2014, January, and April, 2015. (Id. 

¶¶ 19, 21, 32.) Dr. Ikegbu’s final evaluation of Plaintiff occurred on 

April 22, 2015. (Id. ¶ 32.) While Plaintiff stated he had pain at the 

visit, Ikegbu noted he did not show signs of being in pain 

documenting he was “able to make a fist” and Plaintiff “states he is 

able to eat, write, clothe, and bathe himself, and do all other ADLs 

(Activities of Daily Living).” (Id.)

Doctor D. Jacobsen.

Defendant Jacobsen is the Chief Medical Executive (CME) at PBSP. 

Dr. Jacobsen participated in three IUMCs that met to evaluate 

Plaintiff’s PCP’s requests for specialty services and that granted each 

request for services. (Id. ¶¶ 66-67.) Dr. Jacobsen also approved PA

Thomas’s discontinuation of the spica splint on December 31, 2014, 

approved Thomas’s request to reschedule Plaintiff’s x-ray to an 

earlier date, reviewed Plaintiff’s x-ray results with Thomas on

January 14, 2015, ordered additional x-rays for Dr. Cross on 

February 15, 2015 (completed the same day), and approved 

Thomas’s request for two physical-therapy sessions on February 25,

2015. (Id. ¶¶ 27,54-57, 63.)

Dr. Jacobsen was also the first-level reviewer on two of Plaintiff’s 

health care appeals (PBSP HC 140[2]8835 & PBPS HC 15028879). (Id. ¶¶ 54-56.) She partially granted and partially denied his first 

health care appeal (PBSP HC 140[2]8835) on January 30, 2015, 

noting that Plaintiff’s accommodation chrono was only for the 

temporary use of an arm sling, and medical staff could only 

recommend physical/movement limitations—the use of waist chains 

is a custody decision. (Id. ¶ 55.) On February 12, 2015, Dr. 

Jacobsen partially granted Plaintiff’s second appeal (PBPS HC 

15028879) and noted that there was nothing medically inappropriate 

about the discontinuation of the sling or the splint. (Id. ¶ 56.)

Chief Executive Officer M. McLean.

Defendant M. McLean was the Chief Executive Officer (CEO) for 
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the California Correctional Health Care Services (CCHCS) at PBSP. 

(McLean Decl. ¶ 1.) In this position, she reviewed health care 

appeals to determine if the inmate/patient’s medical issue was 

adequately addressed, including determining whether the PCP 

addressed the issue, made a medical determination, and 

appropriately documented the basis of the decision. (Id. ¶ 3.) 

McLean’s knowledge of Plaintiff’s medical condition was limited to 

her second-level review of Plaintiff’s health care appeals, PBSP HC 

140[2]8835 & PBPS HC 15028879. (Id. ¶ 4.) McLean partially

deni[ed] Plaintiff’s first health care at the second level of review on 

March 9, 2015. (Id. ¶ 5, Ex. [B]9.) On April 9, 2015, McLean 

partially granted Plaintiff’s second appeal, asking that his grievance 

be processed without delay. (Id. ¶ 6, Ex. [C]10.)

McLean did not provide Plaintiff with medical care and had no 

authority to provide him with appliances or accommodations that 

had been determined medically unnecessary by Plaintiff’s Primary 

Care Provider. (Id. ¶ 3; Feinberg Decl. ¶ 55.) McLean’s meaningful

assessment of Plaintiff’s treatment included a report on Dr. Cross’s 

x-ray comparisons—noting evidence of healing of the fractured 

thumb joint, no change in alignment or position, and finding

Plaintiff’s thumb was going to heal with an acceptable alignment 

that did not required surgical intervention. (Id.)

Family Nurse Practi[ti]oner S. Risenhoover.

Defendant Risenhoover is a registered nurse and certified family 

nurse practitioner at PBSP, and her only relevant participation in this 

case was as a member of the three IUMCs that met to evaluate 

Plaintiff’s PCP’s requests for specialty services, wherein the 

committee granted each request for services. (Id. ¶¶ 66-67.)

Doctor M. Sayre.

Defendant Sayre was a physician and surgeon at PBSP. On 

December 5, 2014, Dr. Sayre ordered pain medication (Toradol), an 

IV drip, and transported Plaintiff via ambulance to Sutter Coast 

Hospital for a higher level of care. (Id. ¶ 10.) Dr. Sayre also 

participated in the three IUMCs that met to evaluate Plaintiff’s 

PCP’s requests for specialty services, wherein the committee granted 

each request for services. (Id. ¶¶ 66-67.)

 

9 Defendants incorrected cited to Exhibit A, which is list of Plaintiff’s appeals history, 

instead of Exhibit B, which includes the decisions pertaining to log no. PBSP HC 14028835. 

Compare McLean Decl., Ex A with Ex. B.

10 Defendants incorrected cited to Exhibit B, which includes the decisions pertaining to log 

no. PBSP HC 14028835, instead of Exhibit C, which includes the decisions pertaining to log no. 

PBSP HC 15028879. Compare McLean Decl., Ex B with Ex. C.
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Physician’s Assistant L. Thomas.

Defendant Thomas is a Physician’s Assistant [(“PA”)] at PBSP. 

Thomas actively participated in Plaintiff’s care and treatment on six 

separate dates, and was a member of the three IUMCs that met to 

evaluate Plaintiff’s PCP’s requests for specialty services, wherein the 

committee granted each request for services.(Id. ¶¶ 12, 22, 26-27, 

31, 66-67). Thomas also actively participated in Plaintiff’s care and 

treatment on six days, described below.

When Plaintiff returned from the hospital, on December 5, 2014, PA 

Thomas documented a telephone note that Plaintiff “had wound 

cleansed and re-set with recommendation for follow-up next week.”

(Id. ¶ 12.) PA Thomas then gave verbal orders for Cephalexin, the 

generic antibiotic equivalent of Keflex, 500 mg four times a day for 

ten days, as well as both Ibuprofen and Tylenol #3 (Tylenol with 

codeine) for pain. PA Thomas also requested an order for an 

orthopedic consult. (Id. ¶ 31.) (Id.) [sic] According to Plaintiff’s 

Medication Administration Record, Plaintiff received an initial 

supply of the Cephalexin on Friday, December 5, 2014, to last him 

over the weekend, with a remaining eight days dispensed on 

Monday, December 8, 2014. (Id.)

On December 16, 2014, PA Thomas’s follow-up examination of 

Plaintiff noted that there was no muscle atrophy, and Plaintiff could 

actively and passively move the thumb joints. (Id. ¶ 22.) With no 

signs of infection, PA Thomas discontinued the arm sling because it 

was not medically necessary, continued the spica splint, redressed 

the wound, and wrote orders for nursing wound care and for every-

other-day dressing changes. (Id.) Thomas noted that both staff and 

patient education were performed. (Id.) PA Thomas updated the 

7410 form to include discontinuing the arm sling and her plan based 

upon that visit was to continue the spica splint through January 30, 

2015. (Id.) The expectation was that Plaintiff would continue to 

heal well and no longer required narcotics for pain, so the Tylenol # 

3 was allowed to expire on December 19, 2014. (Id.)

On December 30, 2014, PA Thomas reviewed the RN dressing 

change notes, as his last ordered dressing change had been 

completed that day. (Id. ¶ 26.) Thomas noted, “Per the RN the

wound is closed and healing well.” (Id.) Thomas was in the same 

exam room that day during the dressing change. (Id.) She noted that 

Plaintiff denied any pain and ordered the discontinuation of the 

dressing changes completely, removal of the thumb spica [splint], 

and ordered an Ace wrap only to support the thumb. (Id.) She also 

noted that the nurse can show Plaintiff how to wrap. (Id.) Plaintiff 

had a repeat x-ray ordered. (Id.) PA Thomas updated the 7410 form 

to remove the spica splint. (Id.)
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On January 6, 2015, PA Thomas reviewed the chart including x-ray 

results from December and the prior ortho consult dated December 

10, 2014. (Id.) Noting that Plaintiff did not relinquish the thumb 

spica splint, she documented it was to be removed per the previous 

order and replaced with an Ace wrap. (Id.) She also moved the next 

x-ray up to January 9, 2015. (Id.)

On January 14, 2015, Thomas reviewed Plaintiff’s follow-up x-rays 

of the right thumb, which were performed on January 9, 2015, and 

compared with films taken about four weeks earlier, documenting 

her review and report with Dr. Jacobsen. (Id. ¶ 27.) Thomas also 

requested a repeat TeleMedicine11 consult with Dr. Cross for further 

plan of care. (Id.) 

On February 24, 2015, Plaintiff was seen by PA Thomas for a 

follow-up of his recent TeleMedicine Ortho visit and x-ray results. 

(Id. ¶ 31.) During this visit, Thomas read aloud to Plaintiff Dr. 

Cross’s consult note from February 11, 2015, x-ray review and 

recommendations from February 19, 2015. (Id.) Dr. Cross’s 

recommendation stated, “There is no change in alignment or position 

and in my opinion looks like this is going to go on to healing with an

acceptable alignment that cannot be improved with surgical 

intervention.” (Id.) PA Thomas noted “No close-up exam of thumb 

as visit cut short due to patient’s demeanor. (Id.) Patient can

actively and passively move the PIP thumb joint although somewhat 

stiff, seen from three feet across computer desk . . . . Visit cut short 

as patient had to be excused due to his loud, argumentative 

demeanor. (Id.) Sargent [sic] and two custody [officers] in exam 

room at time of patient’s outburst and escorted out of cell. Patient 

stating, “man, this woman is just stupid.” (Id.) PA Thomas 

documented requesting two physical therapy visits, but “no followup with Ortho ordered as there is no surgical intervention indicated.” 

(Id.)

Doctor D. Venes.

Defendant Venes was a physician and surgeon at PBSP until his 

retirement in December 2015. Dr. Venes was as a member of the 

three IUMCs that met to evaluate his PCP’s requests for specialty 

services, wherein the committee granted each request for services. 

(Id. ¶¶ 66-67.) On December 8, 2014, Dr. Venes renewed Plaintiff’s 

order for Tylenol #3. (Id. ¶ 13.) On December 9, Dr. Venes 

removed the old dressing on his wound, cleaned the wound, and 

 

11 The CCHCS maintains a “TeleMedicine Program” which coordinates with private health 

care entities to provide specialty care services using audio-visual technologies to California 

inmates. 
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applied a new dressing and the temporary spica splint, molded to 

better fit his thumb. (Id. ¶ 14.) During a follow-up exam on 

December 11, 2014, Dr. Venes complied with Plaintiff’s request for

additional days of narcotic analgesic, and after consulting with Dr. 

Cross on December 12, Dr. Venes created a spica splint and applied 

it to Plaintiff’s thumb. (Id. ¶ 16.)

On December 23, 2014, Dr. Venes addressed Plaintiff’s reported 

concern that the thumb felt “numb at times with tingling at the 

affected joint, especially after taking the ibuprofen in the

evening,”—by noting in his chart that “Numbness and tingling are 

not unexpected sensations after relief of pain (with non-steroidal 

anti-inflammatory drug (NSAIDS)) because in a compound fracture 

some superficial nerves in the skin were likely disrupted, and may 

take many months to regrow.” (Id. ¶ 23.) And after reviewing Dr. 

Cross’s notes, Dr. Venes ordered a new x-ray for January 21, 2015. 

(Id. ¶ 24.)

Dkt. 52 at 10-17 (brackets and footnote added).

b. IUMC Meetings and Recommendations 

As shown above, Defendants refer to the “Utilization Management Committee,” “UM 

Committee,” “Institutional Utilization Committee,” and the “IUMC” throughout their statement of 

facts, see Dkt. 52 at 10-17, which is a committee in which members (who are physicians) “review 

policy guidelines and discuss requests for specialty services,” see Feinberg Decl. ¶ 66. It appears 

these names refer to the same committee established by Title 15 of the California Code of 

Regulations § 3352, which states in part as follows:

(a) An [IUMC] shall be established within each facility. The 

committee shall meet as often as necessary to approve or disapprove 

requests for medical services otherwise excluded by these regulations, 

review and manage referrals for specialty medical services, review 

and manage institutional and community hospital bed usage, review 

other available utilization management data, and report requested 

utilization management data to the Headquarters Utilization 

Management (HUM) committee. Committee decisions concerning 

the approval or disapproval of requests for medical services shall be 

rendered within 21 calendar days of the request of the treating 

physician.

Cal. Code Regs. tit. 15, § 3352 (a). 

During the relevant time in this case—December 2014 through April 2015—the

IUMC met three times relating to Plaintiff’s medical care—on December 16, 2014, January 21, 

2015, and March 4, 2015. Feinberg Decl. ¶ 66. The members of the IUMC were Defendants 
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Risenhoover, Adam, Jacobsen, Ikegbu, Sayre, and Venes. Id. Defendant Alpaugh documented 

the IUMC meetings and recommendations. Id. During each of the three IUMC meetings, 

Plaintiff’s treatments were evaluated and unanimously approved by the members of the 

committee. Id. ¶ 67. Specifically, the IUMC meetings and recommendations have been 

summarized by Dr. Feinberg as follows:

On December 16, 2014, the IUMC met to review Plaintiff’s Sutter 

Coast Hospital Emergency Room records and the orthopedic 

surgeon’s evaluation of Plaintiff’s thumb. ([Feinberg Decl., Ex. B at 

Shaw] 101-102[.]) All members of the committee approved the 

request for an additional orthopedic evaluation of Plaintiff’s thumb.

(Id.) The IUMC met a second time at the request of PA Thomas, on

January 21, 2015, and the committee again unanimously approved an 

additional orthopedic evaluation. (Id. [at] 103-104.) At the third 

IUMC, on March 4, 2015, after further review of Plaintiff’s x-ray, the 

orthopedic surgeon’s determination that Plaintiff was not a surgical

candidate, and noting Plaintiff was uncooperative with his PCP, the 

committee approved PA Thomas’s request for Plaintiff to be

evaluated by a physical therapist. (Id. [at] 105-106.) During each of 

the three IUMC meetings, Plaintiff’s treatments were evaluated and 

approved by the members of the committee. (Id. [at] 101-106.)

Id.

c. Plaintiff’s 602 Appeals

As mentioned above, the State of California provides its inmates and parolees the right to 

appeal administratively “any departmental decision, action, condition or policy perceived by those 

individuals as adversely affecting their welfare.” See Cal. Code Regs. tit. 15, § 3084.1(a). The 

Office of Appeals (“OOA”) receives, reviews, and maintains non-healthcare inmate grievances 

accepted for a Third Level Review, which is the final review in CDCR’s inmate grievance 

process. Voong Decl. ¶ 2. Before August 1, 2008, the Office of Appeals received, reviewed, and 

maintained all final-level reviews of inmate grievances. Id. Effective August 1, 2008, healthcare

appeals involving inmate medical, dental, and mental healthcare issues have been processed by 

CCHCS. Id. 

Upon receipt by the OOA, non-healthcare inmate grievances concerning the actions of 

custody staff are logged into a computer database known as the Inmate Appeals Tracking System 

(“IATS”). Id. ¶ 3. The IATS tracks inmate appeals that have been accepted by the OOA and 

adjudicated at the third level of review, as well as all appeals that were received and screened out, 
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and the reasons the appeals were screened out. Id.

Meanwhile, as mentioned above, healthcare appeals are handled separately from 

grievances concerning the actions of custody staff. Id. ¶ 2. The Health Care Correspondence and 

Appeals Branch (“HCCAB”), formerly the Inmate Correspondence and Appeals Branch 

(“ICAB”), is the section of the CCHCS that receives and maintains all healthcare appeals accepted 

for third-level review and renders decisions on such appeals. Gates Decl. ¶¶ 1-3. All levels of 

healthcare appeals are tracked through a computer database known as the Health Care Appeals and 

Risk Tracking System (“HCARTS”). Id. ¶ 4. This system tracks inmate healthcare appeals that 

are processed by the institutions at the first and second levels of review, as well as those processed 

by the ICAB and adjudicated at the third level. Id. HCARTS also tracks healthcare appeals that 

were received and ultimately rejected, and the reason for the rejection. Id. The HCARTS is kept 

as a regularly conducted activity, and the computer entries are made at or near the time of the 

occurrence by the employee who processes the healthcare appeal. Id.

Again, as explained above, in order to exhaust available administrative remedies within 

this system, a prisoner must proceed through three levels of appeal. See Cal. Code Regs. tit. 15, 

§ 3084.5; Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). If an inmate pursues his 

claims through the third-level review, the inmate has satisfied the administrative remedies 

exhaustion requirement under § 1997e(a). See id. at 1237-38. 

According to OOA Chief M. Voong, OOA personnel searched Plaintiff’s appeal file for 

“any third level inmate appeals properly submitted by [Plaintiff] . . . between December 5, 2014 

and April 20, 2015, at [PBSP].” Voong Decl. ¶ 4. Meanwhile, HHCAB Chief S. Gates stated that 

he conducted a review of Plaintiff’s health care appeal history for “any health care 

appeals/grievances originating from [PBSP] for the period of December 5, 2014 through January 

31, 2017.” Gates Decl. ¶¶ 8-9. That aforementioned reviews revealed that during the relevant 

time frames Plaintiff submitted one non-healthcare appeal, log no. PBSP A 1403523, see Voong 

Decl. ¶ 6, and two healthcare appeals/grievances, log nos. PBSP HC 14028835 and PBSP HC 

15028879 (originally submitted as PBSP SC 15000714), Gates Decl. ¶ 9. The Court elaborates on 

these aforementioned relevant appeals/grievances below by including the following summary
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provided by Defendants, as follows:

[(1)] Plaintiff’s First Appeal Log No. PBSP A 1403523

This non-health care appeal only dealt with Defendant Correctional 

Officer George’s actions. (Voong Decl. Ex. B.) Here, Plaintiff 

requested that correctional staff honor his medical chrono because he 

claimed that medical staff had provided him with a chrono, instructing 

him to utilize his arm sling whenever leaving his cell. (Id.) Plaintiff 

asserted that Officer George denied him medical treatment because 

Plaintiff would not take off the sling so he could be placed in waist 

chains for his escort to a medical appointment. (Id.) Plaintiff’s 

request to have his appeal processed without delay was granted but 

his requests for a special escort and monetary damages were denied 

at the first, second, and third levels of review. (Id.) The denials 

clearly stated that Plaintiff was housed in [the ASU], his escort 

required waist restraints, and they observed he had been successfully 

escorted in waist restraints with the cast currently on his thumb. (Id.) 

As Plaintiff refused to be restrained properly, he did not attend his 

medical appointment, and his request for officers to escort him with

his arm sling on was denied. (Id.) Plaintiff[’s] appeal was exhausted 

on June 15, 2015. (Id.) 

[(2)] Plaintiff’s First Healthcare Appeal Log No. PBSP HC 140[2]8835

In log number PBSP HC 140[2]8835, Plaintiff alleged:

1) substandard medical care and a serious infection in or around his 

compound fracture because Dr. Ikegbu removed his sutures, and 

2) Officer George and RN Fellows’s refusal to honor his alleged 

accommodation for using an arm sling during an escort on December 

15, 2014. (Gates Decl. Ex. B.) Plaintiff requested 1) his appeal be 

processed without delay, 2) that ASU officers on second watch honor 

the chrono that he wear his arm sling when being escorted in waist 

chains, and 3) he receive monetary compensation ($100,000). (Id.) 

The appeal was partially granted at the first level, noting that 

Plaintiff’s appeal process had been carried out without delay. (Id.) 

The appeal was denied as to Plaintiff’s chrono (CDCR 7410) for the 

temporary use of an arm sling during escorts because waist chains are 

a custody decision, and medical staff could only recommend 

physical/movement limitations. (Id.) Plaintiff’s request for monetary 

compensation was also denied as beyond the scope of the

appeals/grievances process. (Id.) Dissatisfied with the responses at 

the first and second levels of review, Plaintiff appealed this grievance 

to the third level of review, which was also denied on June 10, 2015. 

(Id.) The Director’s level noted that Plaintiff’s request concerning the 

use of waist chains was a custody issue and would not be addressed 

in that appeal. (Id.) Additionally, the Director’s decision noted that 

Plaintiff was routinely evaluated and treated by the PCP, orthopedic 

specialist, and nursing staff for an open compound fracture of his right 

thumb, and there was no documentation to indicate that medical staff 

refused to honor a medical chrono for his right-arm sling or waist 

chains. (Id.) 
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[(3)] Plaintiff’s [Second] Healthcare Appeals, Log Nos. PBSP-SC 1500714

[Original] and PBSP HC 15028879 [Re-Submitted]

Plaintiff’s second health care appeal was originally logged as staff 

complaint, log number PBSP-SC 1500714, but resubmitted as PBSP 

HC 15028879, with identical requests and facts. (Id. Ex. C.) 

Plaintiff’s appeal requested: 1) a bone specialist assessment of 

damage to thumb, 2) reconstruction surgery if needed, 3) claimed that 

Thomas was deliberately indifferent by discontinuing dressing 

changes and a spica splint against Dr. Cross’s orders, 4) $100,000, 

and 5) consolidation of this matter with PBPS-A-14-03523. (Id.) On 

February 12, 2015, a first level response was issued, noting that Shaw 

was interviewed by RN Fellows on February 2, 2015. (Id.) The 

appeal was partially granted, noting that the Institutional Utilization 

Management Committee (IUMC) had approved a follow-up 

TeleMedicine Orthopedic visit, which was completed on February 11, 

2015. (Id.) Shaw’s other requests were denied because: 1) 

reconstructive surgery was not recommended by the orthopedic 

specialist, 2) the appeal was reviewed and evaluated by the Hiring 

Authority and the issues were not deemed to meet the staff complaint 

criteria, 3) there was no evidence to support his claim that health care 

staff were deliberately indifferent to his medical needs, 4) monetary 

compensation was beyond the scope of the appeals/grievances

process, and 5) PBPS-A-14-03523 was a custody appeal and cannot 

therefore be combined with a health care appeal. (Id.) Dissatisfied 

with the first and second level responses, Plaintiff appealed to the 

third level of review, which was also denied on June 10, 2015. (Id.) 

The Director’s level decision found no documentation to support 

Plaintiff’s claim regarding substandard medical care and further 

concluded that Plaintiff was receiving all treatment deemed medically 

necessary. (Id.) 

Dkt. 52 at 18-20 (brackets added).

C. Discussion

1. Legal Standard for Summary Judgment

Federal Rule of Civil Procedure 56 provides that a party may move for summary judgment 

on some or all of the claims or defenses presented in an action. Fed. R. Civ. P. 56(a)(1). “The 

court shall grant summary judgment if the movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” Id.; see Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party has the burden of 

establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 

317, 323 (1986); Fed. R. Civ. P. 56(c)(1)(A) (requiring citation to “particular parts of materials in 

the record”). The court is only concerned with disputes over material facts and “[f]actual disputes 

that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. It is not the 
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task of the court to scour the record in search of a genuine issue of triable fact. Keenan v. Allan, 

91 F.3d 1275, 1279 (9th Cir. 1996). If the moving party meets this initial burden, the burden then 

shifts to the non-moving party to present specific facts showing that there is a genuine issue for 

trial. See Celotex, 477 U.S. at 324; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 

U.S. 574, 586-87 (1986). If the nonmoving party fails to make this showing, “the moving party is 

entitled to a judgment as a matter of law.” Celotex, 477 U.S. at 323.

The failure to exhaust administrative remedies is an affirmative defense that must be raised 

in a motion for summary judgment. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en 

banc). The defendants have the initial burden to prove “that there was an available administrative 

remedy, and that the prisoner did not exhaust that available remedy.” Id. at 1172. If the 

defendants carry that burden, “the burden shifts to the prisoner to come forward with evidence 

showing that there is something in his particular case that made the existing and generally 

available administrative remedies effectively unavailable to him.” Id. The ultimate burden of 

proof remains with defendants, however. Id. “If material facts are disputed, summary judgment 

should be denied, and the district judge rather than a jury should determine the facts.” Id. at 1166. 

A district court may consider only admissible evidence in ruling on a motion for summary 

judgment. See Fed. R. Civ. P. 56(e); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). 

In support of their motion for summary judgment, Defendants have submitted declarations 

from: OOA Chief Voong; Defendant McLean (former CEO for medical care at PBSP); HCCAB 

Chief Gates; and Chief Medical Consultant Dr. Feinberg. Dkts. 52-3, 52-4, 52-5, 52-6. As 

mentioned above, Dr. Feinberg certifies that the documents attached to his declaration are true and 

correct copies of original documents from Plaintiff’s health record. Feinberg Decl. ¶ 6, Ex. B at 

Shaw 001-100; Dkt. 52-6 at 32-137. Also attached to Dr. Feinberg’s declaration are the responses 

at all three levels of appeal to Plaintiff’s healthcare appeal, log no. PBSP HC 15028879. Feinberg 

Decl. ¶ 60, Ex. C. Meanwhile, the same documents relating to log no. PBSP HC 15028879 are 

attached to Chief Gates’s declaration, along with the responses at all three levels of appeal to 

Plaintiff’s other healthcare appeal, log no. PBSP HC 14028835. Gates Decl. ¶¶ 12, 15, Exs. B-C. 

Chief Gates states that a review of the inmate health care appeals records in the HCARTS database 
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was conducted for Plaintiff and attached to his declaration is a copy of the HCARTS health care 

appeal history printout for Plaintiff. Id. ¶ 8, Ex. A. Chief Gates certifies that the aforementioned 

documents are true and correct copies of the original documents.12 See id.; Gates Decl. ¶¶ 12, 15, 

Exs. B-C. Chief Voong states that he conducted a review of the OOA system files to locate any 

third level inmate appeals between December 5, 2014 and April 20, 2015 properly submitted by 

Plaintiff, and attached to his declaration is a true and accurate copy of the IATS Printout for 

Plaintiff. Voong Decl. ¶¶ 4-5, Ex. A. Also attached to his declaration is a true and correct copy of 

the responses at all three levels of appeal to Plaintiff’s other non-healthcare appeal, log no. PBSP

A 1403523. Id. ¶ 6, Ex. B. Because the aforementioned documents have been properly 

authenticated pursuant to Federal Rule of Evidence 803(6), the Court will consider these 

documents in connection with Defendants’ motion for summary judgment.

Plaintiff has verified his complaint and declaration13 in support of his opposition by 

signing them under penalty of perjury. Dkt. 1 at 1-30; Dkt. 61 at 3-20. However, Plaintiff has not 

verified his opposition or his “Response to Defendants’ Statement of Undisputed Material Facts In 

Support of Summary Judgment” because he failed to sign either under penalty of perjury. See 

Dkts. 61-1, 62. The Court may treat the allegations in the verified complaint and declaration as 

opposing affidavits to the extent such allegations are based on Plaintiff’s personal knowledge and 

set forth specific facts admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 & 

nn.10-11 (9th Cir. 1995) (treating a plaintiff’s verified complaint as opposing affidavit where, 

even though verification not in conformity with 28 U.S.C. § 1746, he stated under penalty of 

perjury that contents were true and correct, and allegations were not based purely on his belief but 

 

12 Defendant McLean, who conducted the second level review of Plaintiff’s healthcare 

appeals, has attached the same exact documents as Chief Gates. McLean Decl. ¶¶ 5-6, Exs. A-C.

13 Defendants have filed a separate objection to Plaintiff’s declaration supporting his 

opposition based on several grounds, including that “affidavits like Plaintiff’s that set forth 

ultimate facts and conclusions of law based upon hearsay and conclusory, self-serving, 

unsubstantiated or irrelevant allegations, cannot defeat a motion for summary judgment.” Dkt. 64 

at 8. The Court notes Defendants’ objection and stresses that it only considers Plaintiff’s 

allegations in his declaration to the extent such allegations are based on his personal knowledge 

and set forth specific facts admissible in evidence. See Schroeder, 55 F.3d at 460 & nn.10-11. 

Further, the Court may, in this Order, refer to Plaintiff’s verified declaration in support of his 

opposition as his “declaration/opposition” or cite to it as “Pl. Decl.”
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on his personal knowledge). Also attached to Plaintiff’s complaint and opposition are medical 

records and appeal responses that are mostly similar to those attached to the declarations of Chief 

Voong, Chief Gates, and Dr. Feinberg. See Dkt. 63. As these documents are evidence already 

considered in connection with the summary judgment motion, the Court will also consider the 

same documents submitted by Plaintiff.

2. Analysis

a. Retaliation Claim Against Defendant Thomas

Plaintiff claims that Defendant Thomas’s actions of discontinuing his February 24, 2015 

medical follow-up were retaliatory because Plaintiff filed an administrative grievance against her. 

Dkt. 1 at 14, 26. Defendants claim that the prison has no record of this First Amendment claim 

showing that it has been exhausted at the final level of review. Dkt. 52 at 26. Defendants argue 

that Plaintiff’s claim remains unexhausted because he never submitted it to, nor received a 

substantive decision by the final level of review as required by prison regulations. Id. Therefore, 

Defendants argue that they are entitled to summary judgment based on Plaintiff’s failure to 

exhaust his administrative remedies. Id.

In support of Defendants’ argument that Plaintiff’s First Amendment claim is unexhausted, 

Defendants submit evidence that the non-healthcare appeal submitted by Plaintiff does not grieve 

the First Amendment claim against Defendant Thomas. Specifically, during the time frame at 

issue, Plaintiff submitted one non-healthcare appeal to the OOA that was accepted by and received 

a decision from the OOA—log no. PBSP A 1403523. Voong Decl. ¶¶ 6-7; Exs. A, B. Also 

during the relevant time frame, Plaintiff submitted two healthcare appeals/grievances, log nos. 

PBSP HC 14028835 and PBSP HC 15028879 (originally PBSP SC 15000714). Gates Decl. ¶ 9. 

But Defendants argue that none of these appeals concerned allegations relating to Plaintiff’s claim 

that Defendant Thomas allegedly retaliated against him for filing grievances. See Dkt. 52 at 26; 

see also Voong Decl. ¶¶ 5-7, Exs. A-B; Gates Decl. ¶¶ 9-17, Exs. A-C. 

The Court has reviewed the aforementioned appeals—log nos. PBSP A 1403523, PBSP 

HC 14028835, PBSP HC 15028879—and agrees with Defendants’ assessment that Plaintiff failed 

to mention anything about Defendant Thomas’s allegedly retaliatory conduct. See id. Nowhere 
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does the Director’s level reviewer in any of the aforementioned appeals handle Plaintiff’s

retaliation claim against Defendant Thomas. Id. A grievant must utilize all steps of the grievance 

process made available by the prison so that it can reach the merits of the complaint. Woodford, 

548 U.S. at 90. Here, the record shows that Plaintiff failed to exhaust his administrative remedies 

as to his retaliation claim against Defendant Thomas. See Griffin v. Arpaio, 557 F.3d 1117, 1120 

(9th Cir. 2009) (no exhaustion where grievance complaining of upper bunk assignment failed to 

allege, as the complaint had, that nurse had ordered lower bunk but officials disregarded that 

order).

Meanwhile, in his sworn declaration, Plaintiff argues that he “did not fail to exhaust [his] 

first amendment retaliation claim against [Defendant] Thomas.” Dkt. 61; Pl. Decl. ¶ 47. Plaintiff 

points out that in one of his healthcare appeals, log no. PBSP HC 15028879, he presented the 

claim that “the numerous and capricious medical decisions regarding [Plaintiff’s] healthcare 

treatment were vindictive, unprofessional, and illustrate a showing [of] deliberate indifference.” 

Id. He further points out that when he submitted his appeal to the third level of review after being 

dissatisfied with the conclusions reached at the second level of review, he stated as follows: “For 

all the reason[s] listed herein, [b]ut not limited to, every allegation and complaint that I have raised 

throughout the appeals process is being re-stated here.” Id. 

The healthcare appeal that Plaintiff seems to be relying on, log no. PBSP HC 15028879, 

was submitted on January 12, 2015. Gates Decl. ¶ 13. It was originally logged as a staff 

complaint, log no. PBSP SC 1500714, but it was resubmitted as a healthcare appeal, log no. PBSP 

HC 15028879, with identical requests and facts. Id. In this healthcare appeal, Plaintiff stated that 

the purpose of his appeal was “poor medical treatment and negligence,” and he requested: 1) a

bone specialist to assess the permanent damage to his thumb; 2) reconstruction surgery if needed; 

3) monetary compensation in the amount of $100,000 for the “pain [he has] been made to suffer 

due to [Defendant] Thomas[’s] negligence and deliberate indifference to [his] treatment needs; 

(4) consolidation of this matter with his other non-healthcare appeal, log no. PBSP-A-14-03523. 

Id., Ex. B; Dkt. 52-5 at 26-27. On February 12, 2015, at the first level of review, the reviewer 

determined that it was a healthcare appeal and it could not be combined with log no. PBSP-A-14-
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03523 because log no. PBSP-A-14-0352314 was a “custody [or non-healthcare] appeal.” Gates 

Decl., Ex. B; Dkt. 52-5 at 29. In addition, “the appeal was reviewed and evaluated by the Hiring 

Authority and the issues were deemed not to meet the Staff Complaint criteria.” Id. Furthermore, 

the reviewer found “no evidence to support [Plaintiff’s] claim that health care staff [was] being 

deliberately indifferent to [his] medical needs.” Id. The reviewer “partially granted” the appeal 

because the IUMC “approved a follow-up TeleMedicine Orthopedic visit which was completed on

February 11, 2015,” and “Dr. Cross requested an X-ray of [Plaintiff’s] right thumb, which was 

completed the same day.” Id. Finally, Plaintiff’s requests for reconstructive surgery and monetary 

compensation were denied. Id. 

As the Court has found above, the record does not show that there were any retaliation 

claims or allegations of retaliation against Defendant Thomas in log no. PBSP HC 15028879. 

Gates Decl., Ex. B. Moreover, even if Plaintiff claims in a conclusory fashion that he raised such 

a claim in the upper levels of review, a new claim not previously presented at the first level of 

appeal is improper. See Cal Code Regs., tit. 15 § 3084.6(b)(16) (An appeal may be rejected if 

“[t]he appeal issue or complaint emphasis has been changed at some point in the process to the 

extent that the issue is entirely new, and the required lower levels of review and assessment have 

thereby been circumvented.”) Thus, the Court finds that Plaintiff’s reliance on vague statements 

made after the appeal was filed (in response to his dissatisfaction of the second level of review)

are not sufficient to show that his retaliation claim was exhausted. 

The Court further notes that even if Plaintiff had raised his retaliation claim as an 

additional issue in log no. PBSP HC 15028879, such a retaliation claim would have been likely 

screened out as a separate issue from his claim relating to alleged “poor medical treatment.” 

According to state regulations, each inmate appeal is limited to one issue or related set of issues. 

Cal. Code Regs. tit. 15, § 3084.2(a)(1). “The inmate . . . shall not combine unrelated issues on a 

single appeal form for the purpose of circumventing appeal filing requirements. Filings of appeals 

combining unrelated issues shall be rejected and returned to the appellant by the appeals 

 

14 As explained above, log no. PBSP A 1403523 concerned a grievance against Defendant 

George for allegedly denying Plaintiff medical treatment. Voong Decl. ¶ 6; Ex. B. 
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coordinator with an explanation that the issues are deemed unrelated and may only be submitted 

separately.” Id. Nevertheless, the Court notes that the prison did not even acknowledge that such 

an issue was brought up log no. PBSP HC 15028879; therefore, there were no issues to screen out. 

See Gates Decl., Ex. B. 

In sum, Defendants met their initial burden as the moving party by setting forth evidence 

to demonstrate Plaintiff’s non-exhaustion, specifically by conducting a search of the CDCR’s 

records and finding no grievances submitted to the Director’s level by Plaintiff concerning his 

retaliation claim. See Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). Defendants, 

relying on declarations of OOA Chief Voong and HCCAB Chief Gates, argue that none of the 

appeals Plaintiff submitted at the third level of review (during the relevant time frame) claim that 

Defendant Thomas retaliated against Plaintiff for filing grievances. See Voong Decl. ¶¶ 6-7; 

Gates Decl. ¶ 17. Under Albino, Defendants have therefore proven that there was an available 

administrative remedy and that Plaintiff did not exhaust that available remedy. See Paramo, 775 

F.3d at 1191. 

Upon the burden shifting to Plaintiff, in regards to his retaliation claim, he has failed to

show that “there is something particular in his case that made the existing and generally available 

administrative remedies effectively unavailable to him by ‘showing that the local remedies were 

ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.’” Id. As mentioned 

above, Plaintiff merely relies on log no. PBSP HC 15028879 as proof of exhaustion, but his 

reliance is unwarranted because the retaliation issue was not presented in that appeal. Thus, the 

aforementioned evidence presented by Plaintiff is insufficient to defeat Defendants’ motion for 

summary judgment as to his retaliation claim. Meanwhile, the evidence produced by the 

Defendants is sufficient to carry their ultimate burden of proof in light of Plaintiff’s verified 

factual allegations. 

The record in this case demonstrates that Plaintiff had the opportunity and ability to 

properly exhaust the aforementioned retaliation claim but failed to do so. Accordingly, the Court 

GRANTS Defendants’ motion for summary judgment as to the retaliation claim against Defendant 
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Thomas, which is subject to dismissal without prejudice.15 See McKinney v. Carey, 311 F.3d 

1198, 1200-01 (9th Cir. 2002) (proper course in claims dismissed due to failure to exhaust 

administrative remedies is dismissal without prejudice to refiling).

b. Deliberate Indifference to Medical Needs Claim

The Eighth Amendment protects prisoners from inhumane conditions of confinement. 

Farmer v. Brennan, 511 U.S. 825, 832 (1994). The government has an “obligation to provide 

medical care for those whom it is punishing by incarceration,” and failure to meet that obligation 

can constitute an Eighth Amendment violation cognizable under section 1983. Estelle v. Gamble, 

429 U.S. 97, 103-105 (1976). 

In order to prevail on an Eighth Amendment claim for inadequate medical care, a plaintiff 

must show “deliberate indifference” to his “serious medical needs.” Estelle, 429 U.S. at 104. 

“This includes ‘both an objective standard—that the deprivation was serious enough to constitute 

cruel and unusual punishment—and a subjective standard—deliberate indifference.’” Colwell v. 

Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation omitted). 

To meet the objective element of the standard, a plaintiff must demonstrate the existence of 

a serious medical need. Estelle, 429 U.S. at 104. A “serious medical need[]” exists if the failure 

to treat a prisoner’s condition could result in further significant injury or the “[u]nnecessary and 

wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (citing 

Estelle, 429 U.S. at 104), overruled in part on other grounds by WMX Techs., Inc. v. Miller, 104 

F.3d 1133, 1136 (9th Cir. 1997) (en banc). The existence of an injury that a reasonable doctor or 

patient would find important and worthy of comment or treatment; the presence of a medical 

condition that significantly affects an individual’s daily activities; or the existence of chronic and 

substantial pain are examples of indications that a prisoner has a “serious” need for medical 

treatment. McGuckin, 974 F.2d at 1059-60 (citing Wood v. Housewright, 900 F.2d 1332, 1337-41 

(9th Cir. 1990)). 

 

15 The Court’s decision to grant Defendants’ motion for summary judgment as to the

retaliation claim against Defendant Thomas on the grounds that it is unexhausted obviates the 

need to consider any of their alternative arguments as to this claim. 
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To satisfy the subjective element, the plaintiff must show that “the official knows of and 

disregards an excessive risk to inmate health or safety; the 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, 511 U.S. at 837. 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 [the plaintiff’s] health.” 

See Toguchi v. Chung, 391 F.3d 1051, 1058-60 (9th Cir. 2004) (citing Jackson v. McIntosh, 90 

F.3d 330, 332 (9th Cir. 1996)). 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. 

Here, as mentioned above, Plaintiff alleges that from December 6, 2014 through mid-April 

2015, he suffered “unnecessary pain and suffering” in his fractured right thumb due to 

Defendants’ failure to properly treat it. Dkt. 1 at 6, 7-8, 12, 15-16. Plaintiff claims that his injured 

right thumb initially required re-setting as well as a spica splint and, subsequently, he had to take 

because his thumb became infected. Id. Finally, he alleges that extensive physical therapy is now 

necessary in order to get the full range of motion in his thumb back. Id. Thus, Plaintiff claims 

that Defendants failed to provide adequate medical treatment for the compound fracture in his 

right thumb and subsequent infection. Dkt. 1 at 6-16. Specifically, Plaintiff claims he was denied 

the following requests: (1) to have his wound cleansed by Defendants Hansen, George, and 

Fellows; (2) to be treated in a timely manner with an effective course of antibiotics by Defendants 

Risenhoover, Ikegbu, Dorfman, Adam, Thomas, Sayre, Venes, and Alpaugh; (3) to be transported 

to a medical appointment, with or without having to remove his arm sling so that he could be 

double cuffed, by Defendants George and Fellows; (4) to have the blood work done (as ordered by 

Defendant Ikegbu) by Defendants George and Fellows; (5) to retain possession of the arm sling 

and spica splint as part of his ongoing medical treatment plan by Defendants Ikegbu, Thomas, 

Jacobsen, and Mclean; (6) to place back on the spica splint after x-rays showed his thumb was still 

in the infancy stages of healing by Defendants Thomas and Jacobsen; (7) to be provided effective 

follow-up care by Defendant Thomas and extensive physical therapy by Defendants Jacobsen and 
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Thomas; and (8) to have his request for a surgical intervention taken seriously, if not otherwise 

granted, by Defendant Ikegbu. See id.

While Defendants seem to concede that, as alleged, Plaintiff’s injuries to his thumb may 

rise to the level of a serious medical need, they argue that no evidence exists to show that 

Defendants acted with “deliberate indifference” to that need. Dkt. 52 at 21-25. Defendants argue 

that Plaintiff cannot establish that any Defendant was deliberately indifferent to his serious 

medical needs because, for those Defendants who treated and evaluated Plaintiff or reviewed his 

PCP’s recommendations and orders, the evidence shows that their decisions were properly based 

on their evaluation and treatment of Plaintiff, his medical records and diagnostic tests, and 

applicable prison healthcare guidelines. Id. at 22 (citing Feinberg Decl. ¶ 68). Specifically, 

Defendants argue that the “undisputed admissible evidence shows” as follows: 

1) Plaintiff received appropriate antibiotics and pain medications; 

2) there is no evidence of Plaintiff’s thumb being infected; 3) the 

discontinuation of Plaintiff’s arm-sling and spica splint were 

medically justifiable and there is no evidence Plaintiff suffered any 

additional injury as a result of their discontinuations; 4) Defendants 

were not deliberately indifferent to his medical needs on December 

15, 2014 when Plaintiff refused to cuff-up for his escort to medical;

5) Defendant PA Thomas was not deliberately indifferent or 

retaliatory in her actions on February 24, 2015; and 6) it was not 

medically necessary for Plaintiff to obtain further specialty

evaluations, reconstructive surgery on his thumb, or hundreds of 

hours of physical therapy because his thumb injury had healed with 

an appropriate and acceptable alignment. 

Id.

As mentioned above, a prison official is deliberately indifferent if he or she 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, 511 U.S. at 837. In order to establish deliberate indifference, 

a plaintiff must show a purposeful act or failure to act on the part of the defendant and a resulting 

harm. McGuckin, 974 F.2d at 1060. Such indifference may appear when prison officials deny, 

delay, or intentionally interfere with medical treatment, or it may be shown in the way in which 

prison officials provided medical care. See id. at 1062. 

To the extent that Plaintiff’s claim amounts to medical malpractice or an allegation that 

Defendants were negligent in providing treatment, his allegations do not support an Eighth 
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Amendment claim. See Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 

1981); Toguchi, 391 F.3d at 1060; McGuckin, 974 F.2d at 1059 (mere negligence in diagnosing or 

treating a medical condition, without more, does not violate a prisoner’s Eighth Amendment 

rights); O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (repeatedly failing to satisfy 

requests for aspirins and antacids to alleviate headaches, nausea, and pains is not constitutional 

violation; isolated occurrences of neglect may constitute grounds for medical malpractice but do 

not rise to level of unnecessary and wanton infliction of pain). Despite Plaintiff’s claim that 

Defendants failed to provide adequate medical treatment for the compound fracture in his right 

thumb and subsequent infection, Defendants have submitted a verified declaration from their 

medical expert, Dr. Feinberg, indicating that Plaintiff’s conditions and complaints were treated 

continuously based upon the medical evidence as well as the judgment of the medical providers. 

See Feinberg Decl. ¶¶ 5-67. 

The Court will now analyze each stage of the treatment of Plaintiff’s thumb injury, 

beginning with claims against Defendants who provided the initial treatment immediately after his 

thumb injury and ending with the claims related to the IUMC, which reviewed the requests for 

services pertaining to Plaintiff’s medical care. At each stage, the Court will determine whether or 

not a reasonable trier of fact could find that Defendants’ decisions were “‘medically unacceptable 

under the circumstances’” and done “‘in conscious disregard of an excessive risk to [Plaintiff’s] 

health.’” Toguchi, 391 F.3d at 1058. 

Defendants argue that the medical records show that they acted in accordance with their 

professional duties to prescribe timely and appropriate antibiotics, as well as wound care and 

dressing changes. Dkt. 52 at 22-23; Feinberg Decl. ¶¶ 38, 41. Defendants further argue that, 

contrary to Plaintiff’s allegations, there is no medical evidence that his thumb was infected. Id. 

¶ 42. Defendants have relied on their medical expert, Dr. Feinberg, who opined that it was a 

testament to the coordinated and effective healthcare Plaintiff received in the often unhygienic 

environment of a prison that an infection was successfully prevented. Id. Soon after the incident 

occurred, Plaintiff was sent to an outside hospital, and his wound was properly cleaned by the 

emergency room personnel. Id. ¶ 37. Following surgery, the splint and sterile dressing could not 
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be removed and had to be kept dry for several days to protect the incision and the surgical 

reconstruction. Id. Moreover, Defendants point out that nurses cannot perform wound care 

without orders from a physician to do so. Id. ¶ 42. Defendants argue that there is extensive 

nursing documentation of wound care once physician’s orders were issued. Id. They add that all 

of Plaintiff’s thumb x-rays after Defendant Ikegbu’s wound exploration were noted by the 

radiologists to show alignment unchanged when compared with prior post-reduction films, and to 

show acceptable alignment per Orthopedic Specialist Dr. Cross. Id. ¶ 41.

In this case, the Court has outlined both Plaintiff’s and Defendants’ versions of the facts 

above. Viewing the evidence in the light most favorable to Plaintiff, the Court finds no genuine 

dispute exists as to any material fact relating to Plaintiff’s claim of deliberate indifference against 

Defendants, as explained below.

1) Claims Relating to Initial Treatment of Thumb Injury

Defendant Ikegbu, who was the first medical provider Plaintiff saw at the clinic 

immediately following his injury on December 5, 2014, ordered the application a sterile dressing 

and urgent transport to the UTA for further assessment and treatment. Pl. Decl. ¶ 7. While 

Plaintiff claims that medical staff did not clean his thumb with “normal saline,” he acknowledges 

that medical staff “poured a water-like substance on the exposed flesh and bone in [his] thumb” 

prior to dressing it. Id. ¶ 5. Meanwhile, Plaintiff does not dispute that he was immediately rushed 

to UTA and then Sutter Coast Hospital (as ordered by Defendant Sayre) to treat his injured thumb. 

Id. ¶ 7. Thus, no reasonable trier of fact could find that Defendants Ikegbu and Sayre acted with 

deliberate indifference to Plaintiff’s medical needs during their initial encounter after Plaintiff’s

thumb injury.

After Plaintiff returned to PBSP from the hospital on December 5, 2014, Plaintiff claims 

that Defendants Thomas’s and Fellows’ actions or failure to act led to a three-day delay in 

receiving his antibiotics and pain medication and a four-day delay in having his dressing replaced. 

Pl. Decl. ¶¶ 14, 17. As a result, Plaintiff claims his thumb became infected. Id. ¶ 17. Plaintiff 

also claims that the temporary “spica ‘like’ splint” that [Defendant] Venes created to replace the 

metal foam thumb splint “was not sufficient enough to keep the set in my fractured thumb 
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stabilized.” Id. First, as mentioned above, Plaintiff seems to take issue with the fact that medical 

personnel did not clean the “filth on [his] right hand and near the si[te] of [his] compound 

fracture.” Id. ¶ 10. However, even if Defendants Thomas and Fellows delayed giving Plaintiff his 

medication and failed to clean the “filth” around his wound and even if Defendant Venes’s 

temporary splint was “not sufficient,” such claims amount only to negligence in providing 

treatment and does not support a claim of deliberate indifference. See Farmer, 511 U.S. at 835.

Negligence and even gross negligence are not enough to amount to an Eighth Amendment 

violation. See id. Furthermore, even if Plaintiff suffered an infection as a result of the failure to 

clean the area around his wound, his medical records indicate that his complaints were not 

unheeded by Defendants, who continued to give him follow-up care according to his medical 

needs by giving him antibiotics and eventually cleaning the “filth” and covering his would with 

clean dressing. The medical records also show that on December 9, 2014, Defendant Venes 

attempted to create the temporary spica splint to better fit his thumb, and that three days later, on 

December 12, 2014, Dr. Venes created a spica splint and applied it to Plaintiff’s thumb. Feinberg 

Decl. ¶¶ 14, 16. Even though Plaintiff takes issue with the inadequacy of the new spica splint, see 

Pl. Decl. ¶ 19, Plaintiff’s difference of opinion with respect to treatment, without more, is not 

sufficient to state a § 1983 claim, see Franklin, 662 F.2d at 1344. Therefore, the Court finds that 

no reasonable jury could conclude that Defendants Thomas, Fellows and Venes were deliberately 

indifferent because while their actions delayed treatment (amounting to negligence), they did not 

deny treatment of Plaintiff’s serious medical needs. Cf. Ortiz v. City of Imperial, 884 F.2d 1312, 

1314 (9th Cir. 1989) (summary judgment reversed where medical staff and doctor knew of head 

injury, disregarded evidence of complications to which they had been specifically alerted and, 

without examination, prescribed contraindicated sedatives).

2) Claim Relating to Refusal to Transport Plaintiff to December 15, 

2014 Medical Appointment Due to Failure to Remove Arm Sling

Plaintiff claims that Defendants George and Fellows acted with deliberate indifference by 

denying him the opportunity to be transported to a December 15, 2014 medical appointment

because they would not escort him without his arm sling. Pl. Decl. ¶¶ 27-29. As a result, Plaintiff 
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could not have certain blood work done on December 15, 2014, as ordered by Defendant Ikegbu. 

Id., Ex. K; Dkt. 63 at 36. It seems that Plaintiff initially claimed that the December 15, 2014 was 

an appointment related to his thumb. See Pl. Decl. ¶ 26. However, according to the December 14, 

2014 discharge instructions, he was scheduled only for a blood draw on December 15, 2014. Id., 

Ex. K; Dkt. 63 at 36; Feinberg Decl. ¶ 43; Ex. B at Shaw 047.

Defendants argue that Defendant George’s reaction of refusing to transport Plaintiff on 

December 15, 2014—after Plaintiff allegedly insisted that he could not be escorted without his 

arm sling—was not a denial of medical treatment or care. Dkt. 52 at 23 (citing Feinberg Decl.

¶¶ 43-45). Defendants point out that according to the chrono issued by Defendant Ikegbu, she did 

not intend for Plaintiff to wear the arm sling at all times because the chrono also included a 

requirement for Plaintiff to have “increased cuffing distance between his hands and behind his 

back, which is incompatible with wearing a sling during escorts.” Id. at 23 (citing Feinberg Decl. 

¶ 44; Ex. B at Shaw 050). Defendants further argue that no evidence exists showing that Plaintiff 

needed to be in a sling during the escort to his scheduled treatments. Id. Moreover, Defendants 

clarify that Plaintiff’s allegation that Defendants George and Fellows were deliberately indifferent 

on December 15, 2014 was based on Plaintiff’s misbelief that the appointment was for a wound 

cleaning and dressing change, “but in fact, the follow-up appointment was for unrelated lab work 

and a check of his vital signs.” See Feinberg Decl. ¶ 43. Defendants argue that “Defendant 

George was not deliberately indifferent when he informed Plaintiff, who was housed in the ASU, 

that he would not be escorted unless he agreed to remove his sling and be properly restrained.” 

Dkt. 52 at 23 (citing Feinberg Decl. ¶ 45). They also argue that Defendant Fellows did not act 

with deliberate indifference when she informed Plaintiff that “he did not need his sling during the 

escort and then documented Plaintiff’s refusals to attend his scheduled treatments because he 

refused to be properly restrained during the escort.” Id. at 23-24.

The Court notes that Defendant George’s only involvement in this action is his alleged 

refusal to transport Plaintiff to his December 15, 2014 appointment. And it seems that Plaintiff’s 

related allegation against Defendant Fellows involves her refusal to allow Plaintiff to be 

transported to that appointment and her alleged fabricated accusations that Plaintiff’s actions were 
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deemed a medical refusal. However, the record shows that the appointment was not related to 

Plaintiff’s need for a dressing change, but instead it was for routine blood work. See Dkt. 63 at 

36; Feinberg Decl. ¶ 43; Ex. B at Shaw 047. Even if Defendants George’s and Fellows’s actions 

specifically caused Plaintiff some harm, no reasonable trier of fact could conclude that these 

Defendants purposefully acted with deliberate indifference to Plaintiff's serious medical needs. 

Plaintiff’s allegations amount at most to negligence. Again, as mentioned above, negligence and 

even gross negligence are not enough to amount to an Eighth Amendment violation. See Farmer, 

511 U.S. at 835. 

3) Claims Relating to Defendant Thomas’s Discontinuation of Plaintiff’s

Arm Sling and Spica Splint

Plaintiff claims that Defendant Thomas’s “discontinuation of [his] arm sling and spica 

splint were not medically justifiable and there is evidence that [he] suffered additional injury as a 

result of their discontinuations.” Pl. Decl. ¶ 63. Plaintiff argues that Defendant Thomas’s 

decision to discontinue the arm sling was not “because the defendant sincerely believed Plaintiff 

no longer needed it for medical reasons, but to appease custodial edict.” Dkt. 1 at 11. He also 

claims that Defendant Thomas’s order to discontinue his spica splint “one month ahead of the 

recommended date” was “based on Plaintiff’s race.” Id. at 12.

Defendants argue that “Plaintiff’s arm sling was not medically necessary, and there is no 

medical evidence to suggest [Defendant] Thomas’s decision to remove the spica splint was 

medically inappropriate, deliberately indifferent, or caused Plaintiff any further injury.” Dkt. 52 at 

23 (citing Feinberg Decl. ¶¶ 46, 54). As mentioned above, Defendants point out that the chrono 

issued by Defendant Ikegbu also indicated the Plaintiff needed to have “an increased cuffing 

distance between his hands and behind his back,” which means that she did not intend for Plaintiff 

to wear the arm sling at all times.” Id. at 23 (citing Feinberg Decl. ¶ 44; Ex. B at Shaw 050). 

Furthermore, Defendants argue that under section 3354 of Title 15 of the California Code of 

Regulations, inmates may not demand particular medication, diagnostic evaluation, or course of 

treatment. Id. at 24. Section 3354 specifically states, “Only facility-employed health care staff, 

contractors paid to perform health services for the facility, or persons employed as health care 
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consultants shall be permitted within the scope of their licensures, to diagnose illness or prescribe 

medication and health care treatment for inmates. No other personnel or inmate may do so.” Cal. 

Code Regs., tit. 15 § 3354(a). Thus, Defendant contend that “[w]ithout evidence to show the 

discontinuation of the sling or the splint were medically inappropriate, Defendants could not have 

been deliberately indifferent to Plaintiff’s care.” Dkt. 52 at 24. Finally, Defendants point out that 

“[o]ne of the primary purposes of follow-up visits is for a clinician to reassess a patient’s current 

condition and make adjustments to the treatment plan accordingly,” see Feinberg Decl. ¶ 46, and 

they claim that is “precisely what Defendant Thomas did when she discontinued the arm sling on 

December 16 and spica splint on December 30, 2014.” Id., Feinberg Decl. ¶¶ 46, 52.

Plaintiff has not established a triable issue of fact that Defendant Thomas was deliberately 

indifferent to Plaintiff’s thumb injury when she discontinued the arm sling and spica splint. 

According to Defendant Thomas’s physician’s progress notes dated December 16, 2014, 

Plaintiff’s “7410 [chrono] [was] updated to discontinue the [arm] sling” because “[t]his is not 

indicated for a thumb fx [fracture].” Feinberg Decl. ¶ 46, Ex. B at Shaw 055. The Court notes 

that a few weeks later, Defendant Thomas drafted physician’s progress notes dated December 30, 

2014, which indicated that there was no medical need for the spica splint, stating as follows:

No [inmate] encounter. [Plaintiff]has his last dressing change to right 

thumb s/p [status post] compound fx [fracture] scheduled for 

12/30/14. Per the RN wound is closed & healing well. I was in the 

same exam room today during the dressing change. Pt [patient] 

denied any pain. Will dc [discontinue] the dressing changes 

completely. Remove the Thumb spica and order ACE wrap only to 

support the thumb. RN can show pt [patient] how to wrap. He has 

repeat xray ordered and pending.

Feinberg Decl. ¶ 52, Ex. B at Shaw 073. While Plaintiff argues that his spica splint was discarded 

on January 9, 2015 when his repeat x-rays of his thumb were taken. Pl. Decl. ¶ 43. Plaintiff 

argues the “decision to prematurely remove [his] spica splint evinces a blatant showing of 

deliberate indifference to [his] medical needs and treatment pla[]n.” Dkt. 1 at 12. 

Plaintiff’s personal disagreement with the Defendant Thomas’s decisions to discontinue 

the arm sling and spica splint is insufficient to establish deliberate indifference for an Eighth 

Amendment claim. Plaintiff’s subjective belief—that the discontinuation of the arm sling was at 
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the request of custody staff or that the discontinuation of the spica splint was based on his race—

does not prove that Defendant Thomas acted with deliberate indifference. Plaintiff has not met his 

burden of providing evidence from which a reasonable jury could conclude that “medically 

unacceptable under the circumstances” and that they embarked on this course in “conscious 

disregard of an excessive risk to [his] health.” See Toguchi, 391 F.3d at 1058-60. Plaintiff has not 

provided any evidence that all thumb injuries require the use of arm slings or spica splints for 

periods longer that he was allowed. He has not indicated that he has any medical training or that 

he is competent to speak to the proper care for an injured thumb. And even if Plaintiff could have 

provided the necessary evidence to show the need for the arm sling and spica splint, any claims of 

their premature discontinuation would amount only to negligence in providing treatment and does 

not support a claim of deliberate indifference. See Farmer, 511 U.S. at 835. Therefore, the Court 

finds that no reasonable trier of fact could conclude that Defendant Thomas purposefully acted 

with deliberate indifference to Plaintiff’s serious medical needs when he discontinued the arm 

sling and spica splint. 

4) Claim Relating to Denial of Medical Care by Defendant Thomas on 

February 24, 2015

Plaintiff claims that Defendant Thomas denied him medical care on February 24, 2015 

when she ended the appointment abruptly and prevented him from “receiv[ing] adequate 

instructions on how to care for his fractured thumb.” Dkt. 1 at 26. Plaintiff adds that Defendant 

Thomas’s “assertion that [Plaintiff] was uncooperative, argumentative and loud during [the 

February 24, 2015] follow-up visit was a mere pretext to cover up the fact that she never intended 

to make sure Plaintiff received” the necessary instructions. Id. As mentioned above, Plaintiff also 

originally argued that Defendant Thomas “discontinued [Plaintiff’s] health care appointment 

prematurely in retaliation for the submission of Appeal [log no.] [PBSP] HC 15028879.” Dkt. 1 at 

14. However, the Court need not further address Plaintiff’s retaliation claim because it has been 

found to be unexhausted above.

Defendants argue that, contrary to Plaintiff’s allegation, “the facts show that [Defendant] 

Thomas detailed her medical evaluation of Plaintiff, and she ordered additional treatment,
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including two physical-therapy evaluations, and advised Plaintiff to continue active range of

motion exercises.” Dkt. 52 at 27 (citing Feinberg Decl. ¶ 62, Ex. B at Shaw 092-094). 

The Court finds that Plaintiff’s self-serving and conclusory statements may be disregarded 

if not supported by any other evidence. See Rivera v. Nat’l R.R. Passenger Corp., 331 F.3d 1074, 

1078 (9th Cir. 2003) (“Conclusory allegations unsupported by factual data cannot defeat summary 

judgment.”). And conclusory allegations are insufficient to defeat summary judgment. Leer v. 

Murphy, 844 F.2d 628, 634 (9th Cir. 1988). Furthermore, Plaintiff has not established a triable 

issue of fact that Defendant Thomas acted with deliberately indifference during the February 24, 

2015 appointment. As mentioned above, Plaintiff argues that Defendant Thomas failed to give 

him adequate instructions on how to care for his fractured thumb. Dkt. 1 at 26. However, the 

record contradicts this because according to Defendant Thomas’s physician’s progress notes dated 

February 24, 2015, she did the following: 

(1) she read aloud Dr. Cross’s February 11, 2015 notes to Plaintiff explaining that repeat xrays were ordered and physical therapy sessions were recommended until Dr. Cross reviewed the 

x-rays (Dkt. 52-6 at 123); 

(2) she explained to Plaintiff that Dr. Cross reviewed the x-rays on February 19, 2015 and 

wrote a report, stating in part as follows:

There is evidence of healing of fracture in this middle phalanx at the 

IP [interphalangeal] joint. There is no change in alignment or position 

and in my opinion looks like this is going to go on to healing with an 

acceptable alignment that cannot be improved with surgical 

intervention. He is to continue active range of motion with a repeat 

x-ray in approximately one month. (Id. at 122-23);

(3) she advised Plaintiff to “continue active ROM [range of motion]” (Id. at 124); and

(4) she requested two “PT [physical therapy] visits” (Id.).

Thus, Plaintiff cannot create a triable issue of fact by simply misrepresenting what took place 

during a medical examination, as the Court need not credit a party’s version of the facts that is 

“blatantly contradicted by the record.” See Scott v. Harris, 550 U.S. 372, 380 (2007) (“When 

opposing parties tell two different stories, one of which is blatantly contradicted by the record, so 

that no reasonable jury could believe it, a court should not adopt that version of the facts for 
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purposes of ruling on a motion for summary judgment.”). 

Plaintiff cannot establish a triable issue of material fact that Defendant Thomas’s actions or 

plan of treatment did not advance a legitimate medical goal. Instead, as seen in the 

aforementioned summary of Defendant Thomas’s progress notes from Plaintiff’s February 24, 

2015 appointment, Defendant Thomas was working to address Plaintiff’s medical issue by 

relaying the latest findings by Dr. Cross pertaining to Plaintiff’s thumb and ordering the two 

physical therapy appointments. Therefore, Plaintiff has failed to provide evidence regarding an 

essential element of his Eighth Amendment claim against Defendant Thomas relating to and 

alleged denial of medical care during the February 24, 2015 appointment. 

5) Claims Relating to the Denial of Physical Therapy Sessions, Further 

Specialty Evaluations, or Reconstructive Surgery on His Thumb

Plaintiff claims that Defendants acted with deliberate indifference to his medical needs 

because he claims they denied him more physical therapy sessions (in addition to the two that 

were ordered), further specialty evaluations, and reconstructive surgery on his thumb. Pl. Decl. 

¶ 63. 

Defendants argue that the undisputed admissible evidence shows “it was not medically 

necessary for Plaintiff to obtain further specialty evaluations, reconstructive surgery on his thumb, 

or hundreds of hours of physical therapy because his thumb injury had healed with an appropriate 

and acceptable alignment.” Dkt. 52 at 22. Specifically, Defendants argue that the medical care 

provided to Plaintiff included “four x-rays of [his] thumb (Feinberg Decl. ¶¶ 11, 15, 27, 30), three 

orthopedic specialist consults and assessments (Id. ¶¶ 30, 31, 39), and two physical therapy visits 

(Id. ¶ 32). Id. at 24. Thus, Defendants contend that “[c]ontrary to Plaintiff’s assertions, the 

undisputed medical records show that none of the medical professionals have ever recommended 

‘hundreds of hours of intense physical therapy.’” Id. Defendants argue that their prescriptions, 

wound care, and treatments were proper and necessary to allow Plaintiff’s thumb to heal with an 

appropriate and acceptable alignment that could not be improved with surgical intervention. Dkt. 

52 at 25 (citing Feinberg Decl. ¶ 68). Thus, in response to any need for more physical therapy, 

further specialty evaluations, and reconstructive surgery, Defendants contend that Plaintiff’s 
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“disagreement with [their] medical decisions,” which “is nothing more than a difference of 

opinion and does not amount to a constitutional violation.” Id. (citing Franklin, 662 F.2d at 1344). 

The Court finds that Plaintiff’s subjective belief that it was “medically necessary” to grant 

his requests for more physical therapy sessions, further specialty evaluations, and reconstructive 

surgery on his thumb, see Pl. Decl. ¶ 63, does not prove that Defendants acted with deliberate 

indifference. Again, Plaintiff has not met his burden of providing evidence from which a 

reasonable jury could conclude that the treatment Defendants provided him was “medically 

unacceptable under the circumstances,” or that they chose this course in “conscious disregard of 

an excessive risk” to Plaintiff’s health. See Toguchi, 391 F.3d at 1058-60. For example, Plaintiff 

has not provided any evidence that all thumb injuries similar to his require extensive physical 

therapy sessions, further specialty evaluations, and reconstructive surgery. As mentioned above, 

he has not indicated that he has any medical training to make such a recommendation. Instead, the 

record shows no medical necessity for Plaintiff to obtain further specialty evaluations or 

reconstructive surgery on his thumb because the radiologists and Dr. Cross (the orthopedic 

specialist) concluded that Plaintiff’s x-rays indicated that his thumb injury had healed with an 

appropriate and acceptable alignment. See Feinberg Decl., Ex. B at Shaw 089-091. As to 

Plaintiff’s alleged need for “over one hundred hours of intense physical therapy sessions,” Dkt. 1 

at 15, he only bases such an allegation on “information and belief,” which is insufficient to raise 

an issue of material fact. See Taylor v. List, 880 F.2d 1040, 1045 n.3 (9th Cir. 1989) (To raise an 

issue of material fact, a statement must be made on personal knowledge, not on information and 

belief.). Therefore, the Court finds that no reasonable trier of fact could conclude that Defendants 

purposefully acted with deliberate indifference to Plaintiff’s serious medical needs when they 

denied his requests for more physical therapy sessions, further specialty evaluations, and 

reconstructive surgery on his thumb.

6) Claims Against Defendants Jacobsen and McLean

Viewing the evidence in the light most favorable to Plaintiff, the Court finds there is no 

genuine dispute as to any material fact relating to Plaintiff’s claim of deliberate indifference 
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against Defendants Jacobsen16 and McLean based on their individual actions. These Defendants 

involvement with Plaintiff’s medical care was in reviewing two of Plaintiff’s health care appeals 

(log nos. PBSP HC 14028835 and PBPS HC 15028879) at the first level of review (Defendants

Jacobsen) and at the second level of review (Defendant McLean). See Feinberg Decl. ¶¶ 54-56; 

McLean Decl. ¶ 4. As mentioned above, Defendant Jacobsen partially granted and partially 

denied Plaintiff’s first health care appeal (log no. PBSP HC 14028835) on January 30, 2015, 

noting that it was granted as to his request that the appeals process be completed without delay and 

denied as to his request for custody staff to honor the chrono that he wear his arm sling when 

being escorted in waist chains. McLean Decl, Ex. B. Specifically, Defendant Jacobsen explained 

that the chrono was only for the temporary use of an arm sling, and medical staff could only 

recommend physical/movement limitations—the use of waist chains was a custody decision. See 

id. Defendant McLean partially denied Plaintiff’s first health care at the second level of review on 

March 9, 2015. Id. 

On February 12, 2015, Defendant Jacobsen partially granted Plaintiff’s second appeal 

(PBPS HC 15028879) because the IUMC had approved a follow-up TeleMedicine Orthopedic 

visit, which was completed on February 11, 2015. McLean Decl., Ex. C. Defendant Jacobsen 

partially denied the appeal as to all other requests were denied upon noting, in part, that 

reconstructive surgery was not recommended by the orthopedic visit and that there was nothing 

medically inappropriate about the discontinuation of the sling or the splint. Id. On April 9, 2015, 

McLean partially granted Plaintiff’s second appeal as to the request that his grievance be 

processed without delay and denied it as to all other requests. Id.

The record shows that Defendants Jacobsen and McLean did not provide Plaintiff with 

medical care and had no authority to provide him with appliances or accommodations that had 

been determined medically unnecessary by Plaintiff’s Primary Care Provider. McLean Decl. ¶ 3, 

 

16 Defendant Jacobsen was also a member of the IUMC which reviewed requests for 

services related to Plaintiff’s thumb injury. See Feinberg Decl., Ex. B at Shaw 101-106. 

Defendant Jacobsen’s involvement in the IUMC decisions will be discussed separately below. See 

infra Part III.C. “Claims Against Members of IUMC.”
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Exs. B, C; Feinberg Decl. ¶ 55. Defendant McLean’s meaningful assessment of Plaintiff’s 

treatment included a report on Dr. Cross’s x-ray comparisons—noting evidence of healing of the 

fractured thumb joint, no change in alignment or position, and finding Plaintiff’s thumb was going 

to heal with an acceptable alignment that did not required surgical intervention. Id.

None of the aforementioned actions by Defendants Jacobsen and McLean would lead a 

reasonable jury to find deliberate indifference to Plaintiff’s medical needs. In opposition, Plaintiff 

has failed to identify with reasonable particularity the evidence that precludes summary judgment. 

See Keenan, 91 F.3d at 1279. Therefore, Defendants Jacobsen and McLean are entitled to 

summary judgment on the deliberate indifference claim against them based on their involvement 

in the aforementioned grievance process.

7) Claims Related to the IUMC

As mentioned above, during the relevant time frame—December 2014 through April 

2015—the IUMC met three times relating to Plaintiff’s medical care: on December 16, 2014, 

January 21, 2015, and March 4, 2015. Feinberg Decl. ¶ 66. The members of the IUMC were 

Defendants Risenhoover, Adam, Jacobsen, Ikegbu, Sayre, and Venes. Id. The record shows that 

Defendant Alpaugh documented the IUMC meetings and recommendations. Id. Plaintiff claims 

that the “actions and conduct of [the aforementioned Defendants] demonstrate deliberate 

indifference . . . .” Dkt. 1 at 23-24.

First, Plaintiff’s aforementioned conclusory allegation against Defendant Alpaugh is that 

her actions “demonstrate deliberate indifference.” Id. However, the record indicates that this 

Defendant did not take part in any decisions making process and instead documented the IUMC 

meetings and recommendations. Feinberg Decl. ¶ 66. Plaintiff does not dispute this fact, and he

makes no specific allegations against Defendant Alpaugh. Accordingly, it cannot be said that 

Defendant Alpaugh acted with deliberate indifference to Plaintiff’s medical needs when she

documented the IUMC meetings and recommendations. 

Even if Defendant Alpaugh took part in the decision-making process and could be sued in 

the same capacity as the other aforementioned Defendants (based on their participation in the 

IUMC which reviewed the requests for services for Plaintiff’s medical care), Defendants argue 
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that such a claim is without merit. Dkt. 52 at 24-25. Defendants point out that the undisputed 

facts show that the members of the IUMC review policy guidelines and discuss requests for 

specialty services. Id. at 24. They argue that the record shows that during each of the three

relevant IUMC meetings, Plaintiff’s treatments were evaluated and approved by the members of 

the committee. Id. (citing Feinberg Decl. ¶ 67, Ex. B at Shaw 101-106). Defendants contend that

no evidence exists showing that the IUMC denied Plaintiff care or treatment. Id. at 24-25.

Instead, as mentioned above, Defendants argue that their prescriptions, wound care, and treatments

were proper and necessary to allow Plaintiff’s thumb to heal with an appropriate and acceptable

alignment that could not be improved with surgical intervention. Id. (citing Feinberg Decl. ¶ 68).

Viewing the evidence in the light most favorable to Plaintiff, the Court finds there is no 

genuine dispute as to any material fact relating to his claim of deliberate indifference against the 

IUMC or any of the specific members named from the three relevant meetings on the December 

16, 2014, January 21, 2015, and March 4, 2015. See Feinberg Decl., Ex. B at Shaw 101-106. 

During the first two meetings on December 16, 2014 and January 21, 2015, the IUMC met to 

review Plaintiff’s medical records and approved the request of a total of two orthopedic 

evaluations of Plaintiff’s thumb. Id. at Shaw 101-104. At the third IUMC, on March 4, 2015, 

after further review of Plaintiff’s x-ray, the orthopedic surgeon’s determination that Plaintiff was 

not a surgical candidate, and noting Plaintiff was uncooperative with his PCP, the committee 

approved Defendant Thomas’s request for two visits to be evaluated by a physical therapist, who 

can teach her correct ROM [range of motion] [and] stretching post-injury.” Id. at 105-106. 

During each of the three IUMC meetings, Plaintiff’s treatments were evaluated and approved by 

the members of the committee. Id. at 101-106. There is no indication that the IUMC was 

otherwise aware that Plaintiff was facing a substantial risk of serious harm and disregarded that 

risk when they made any of their recommendations. Id.; see Farmer, 511 U.S. at 837. To the 

extent that Plaintiff’s claim could be construed to be that Defendants purposefully acted with 

deliberate indifference to Plaintiff’s serious medical needs when they denied his requests for more 

physical therapy sessions by only recommending two during the March 4, 2015 meeting, the Court 

has already found that no reasonable trier of fact could conclude that such a decision amounted to 
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deliberate indifference. See supra Part II.C.b.5 “Claims Relating to the Denial of Physical 

Therapy Sessions, Further Specialty Evaluations, or Reconstructive Surgery on His Thumb.”

Furthermore, even if the IUMC agreed with the opinions and recommendations based on the 

Sutter Coast Hospital Emergency Room records and the orthopedic surgeon’s evaluation (at the 

December 16, 2014) or those of Defendant Thomas (at the January 21, 2015 and March 4, 2015

meetings), it does not establish deliberate indifference because 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, 391 F.3d at 1058.

Therefore, Defendants Risenhoover, Adam, Jacobsen, Ikegbu, Sayre, and Venes, and 

Alpaugh are entitled to summary judgment on the deliberate indifference claim against them based 

on their participation in the IUMC. 

8) Summary

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 against them. 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 as to Plaintiff’s Eighth Amendment claim against them. Id.; 

Celotex Corp., 477 U.S. at 323. 

c. Qualified Immunity Defense

As an alternative basis for summary judgment, Defendants contend that they are entitled to 

qualified immunity. Dkt. 52 at 28. Because the Court has found above that Plaintiff’s retaliation 

claim is unexhausted, it need not address Defendants’ alternative argument that they are entitled to 

qualified immunity as to that claim. Thus, the Court will only analyze Defendants’ alternative 

basis for summary judgment in relation to Plaintiff’s Eighth Amendment claim of deliberate 

indifference to his serious medical needs.

“Qualified immunity shields an officer from suit when she makes a decision that, even if 
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constitutionally deficient, reasonably misapprehends the law governing the circumstances she 

confronted.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004). The issue of qualified immunity 

generally entails a two-step process, which requires the court to determine first whether the 

defendant violated a constitutional right, and then to determine whether that right was clearly 

established. Saucier v. Katz, 533 U.S. 194, 201-02 (2001). 

In Pearson v. Callahan, 555 U.S. 223 (2009), the Supreme Court modified the Saucier test 

and “gave courts discretion to grant qualified immunity on the basis of the ‘clearly established’ 

prong alone, without deciding in the first instance whether any right had been violated.” James v. 

Rowlands, 606 F.3d 646, 650-51 (9th Cir. 2010) (discussing Saucier standard after Pearson). The 

relevant, dispositive inquiry in determining whether a right is clearly established is whether it 

would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. 

Saucier, 533 U.S. at 202; see, e.g., Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1049-50 

(9th Cir. 2002) (court may grant qualified immunity by viewing all of the facts most favorably to 

plaintiff and then finding that under those facts the defendants could reasonably believe they were 

not violating the law). In the instant case, the Court has concluded that Plaintiff’s constitutional 

rights were not violated. Thus, viewing the record in the light most favorable to Plaintiff, 

Defendants prevail as a matter of law on their qualified immunity defense because the record 

establishes no Eighth Amendment violation. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 

However, even if a constitutional violation occurred, these Defendants also remain entitled to 

qualified immunity as to each claim. 

While Plaintiff’s right to be free from deliberate indifference to his serious medical needs 

was clearly established in 2012, because it would not be clear to a reasonable prison health care 

provider or correctional officer that Plaintiff should have been received any different medical care 

or treatment to address his thumb, which healed appropriately. Again, differences in medical 

opinions do not amount to constitutional violations. See Toguchi v. Chung, 391 F.3d at 1058, 

1059-60. Accordingly, Defendants are entitled, as an alternative matter, to qualified immunity 

with respect to Plaintiff’s aforementioned deliberate indifference claim.
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d. Request for Declaratory or Injunctive Relief

In his relief requested section, Plaintiff requests: (1) for injunctive relief to have his thumb 

examined by a qualified physician; (2) to receive extensive physical therapy or “other follow-up 

medical treatment to be evaluated by a medical practitioner with expertise in the treatment and 

restoration of function of the interphalangeal [thumb] joint, and (3) to “carry out without delay the 

treatment directed by such medical practitioner.” Dkt. 1 at 28.

Defendants argue Plaintiff’s request is barred by a pending class action, Plata v. 

Schwarzenegger, No. C-01-1351-THE (N.D. Cal., filed April 5, 2001). See Dkt. 52 at 29-30. In 

Plata, by stipulation filed June 13, 2002 and order dated the same date, the class therein was 

defined as “consist[ing] of all prisoners in the custody of the CDC with serious medical needs, 

except those incarcerated at [PBSP].” See Dkt. 68 at 5 in Case No. C 01-01351 TEH (N.D. Cal. 

June 13, 2002) (Stipulation and Order for Injunctive Relief).17 However, the parties in Plata 

stipulated that prisoners at PBSP would be included within the Plata class, by stipulation filed 

June 6, 2008 and order dated the same date. See Dkt. 1228 at 1 and Dkt. 1237 at 1 in Case No. C01-01351 TEH (N.D. Cal. June 6, 2008) (Stipulation and Order Re Merger of Medical Health Care 

at Pelican Bay State Prison).18 

Separate individual suits may not be maintained for equitable relief from alleged 

unconstitutional prison conditions where a class action lawsuit involving the same subject matter 

is pending. See Crawford v. Bell, 599 F.2d 890, 892-93 (9th Cir. 1979); McNeil v. Guthrie, 945 

F.2d 1163, 1165-66 (10th Cir. 1991); Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th Cir. 1988) 

(en banc). “Individual members of the class and other prisoners may assert any equitable or 

declaratory claims they have, but they must do so by urging further action through the class 

representative and attorney, including contempt proceedings, or by intervention in the class

action.” Gillespie, 858 F.2d at 1103. Because Plaintiff’s request for injunctive relief falls within 

the subject matter of Plata, specifically, adequacy of medical care, it may not be maintained in the 

 

17 A court may take judicial notice of public records. See Lee v. City of Los Angeles, 250 

F.3d 668, 689 (9th Cir. 2001).

18 See supra footnote 17.
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instant action. Accordingly, Plaintiff’s request for a preliminary injunction is DENIED.

19

IV. CONCLUSION

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

1. Plaintiff’s request for a continuance in order to oppose summary judgment under 

Rule 56(d) is DENIED. Dkt. 61.

2. Defendants’ motion for summary judgment is GRANTED as to all claims, and 

judgment will be entered in their favor. Dkt. 52. Specifically, Defendants’ motion for summary 

judgment is GRANTED on the merits of Plaintiff’s Eighth Amendment claim. And Defendants’ 

motion for summary judgment is also GRANTED based on Plaintiff’s failure to exhaust 

administrative remedies as to his retaliation claim against Defendant Thomas. Thus, his retaliation

claim is DISMISSED without prejudice to refiling after exhausting California’s prison 

administrative process. See McKinney, 311 F.3d at 1200-01.

3. The Clerk shall enter judgment, close the file, and terminate as moot any remaining 

pending motions.

4. This Order terminates Docket Nos. 52 and 61.

IT IS SO ORDERED.

Dated:

______________________________________

YVONNE GONZALEZ ROGERS

United States District Judge

 

19 The Court’s determination that Plaintiff’s requests for injunctive relief is barred by the 

pending class action in Plata obviates the need for the Court to address Defendants’ alternative 

argument that such a request should be denied substantively. See Dkt. 52 at 29.

January 10, 2019