Opinion
21-55327
11-15-2022
PUNAOFO TSUGITO TILEI, Plaintiff-Appellant, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION; DAVID CLAYTON, Doctor; Physician at RJD; PEYMAN SHAKIBA, Doctor; Physician at RJD; SAHA, Doctor; Physician at RJD; JASHUA N. DOROS, Physician at Alvarado Medical Center Hospital (AH); DOES, 1-10, Defendants-Appellees.
NOT FOR PUBLICATION
Submitted November 10, 2022 [**] San Francisco, California
Appeal from the United States District Court for the Southern District of California Todd W. Robinson, District Judge, Presiding D.C. No. 3:19-cv-01708-TWR-KSC
Before: WALLACE, O'SCANNLAIN, and FERNANDEZ, Circuit Judges.
MEMORANDUM [*]
Punaofo Tsugito Tilei appeals the district court's grant of defendants' motion for summary judgment, dismissal of defendant Doros from the action, denial of plaintiff's motion to strike defendant Saha's affidavit, and denial of plaintiff's motion to appoint counsel. As the facts are known to the parties, we repeat them only as necessary to explain our decision.
Tilei also appeals the district court's denial of his motion for preliminary injunction. Because the appeal of that issue was filed more than 30 days after the order, this court cannot entertain it. Fed. R. App. P. 4(a)(1).
I A
First, Tilei's claims that the defendants acted with deliberate indifference fail because, at most, the three doctors did not provide the treatment Tilei desired. To prevail on a deliberate indifference claim under the Eighth Amendment, a plaintiff must establish two facts: (1) the existence of a "serious medical need," and (2) that the defendants' "response to the need was deliberately indifferent." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). The second prong requires a showing that the defendants "[knew] of and disregard[ed] an excessive risk to inmate health and safety." Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). A mere "'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." Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc). Instead, to prevail, the plaintiff must show that the treatment "was medically unacceptable under the circumstances" and was chosen "in conscious disregard of an excessive risk" to the plaintiff's health. Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016).
The undisputed evidence shows that all three defendants offered adequate medical treatment. Dr. Saha examined Tilei and ordered antacids and anti-nausea medication, in addition to referring Tilei for follow-up appointments. Similarly, Dr. Shakiba prescribed medication to treat Tilei's nausea and took steps to address plaintiff's hepatitis C. Finally, Dr. Clayton adequately treated Tilei's back pain with Toradol. To the extent Tilei was not satisfied with the defendants' services, his opinion is a mere disagreement on the proper medical treatment, which is not enough, as a matter of law, to establish an Eighth Amendment violation. See Jackson, 90 F.3d at 332. Tilei's allegations that the doctors were rude and dismissive are similarly irrelevant because they do not show that the treatment was inadequate. See Hamby, 821 F.3d at 1092.
Tilei's arguments that the district court erred when it concluded, contrary to his position, that the defendants' actions did not violate the Eighth Amendment, are unpersuasive because the district court was not bound by Tilei's legal conclusions. See Kilroy v. Ruckelshaus, 738 F.2d 1448, 1452-53 (9th Cir. 1984).
B
Second, Tilei's claim under California Government Code § 845.6 falls short because, as discussed above, the undisputed record shows that the defendants provided adequate medical care. See Jett, 439 F.3d at 1099 (quoting Watson v. State, 21 Cal.App.4th 836 (1993)).
The district court had supplemental jurisdiction to hear the state law claims because they are related to Tilei's federal claims. 28 U.S.C. § 1367(a). In turn, we have jurisdiction to review this appeal of a final decision under 28 U.S.C. § 1291.
C
Finally, mere petty oppressions and other trivialities do not amount to "extreme and outrageous conduct." Hughes v. Pair, 46 Cal.4th 1035, 1050 (2009). Thus, the defendants' alleged dismissive and disparaging statements are not sufficient for Tilei to prevail on his claim of intentional infliction of emotional distress.
II
As to the other issues that Tilei appeals, the district court did not err in dismissing defendant Doros because Tilei failed to serve him timely. The Marshals were not able to serve Dr. Doros at the address Tilei originally provided because the doctor no longer worked at Alvarado Hospital. After Tilei provided an alternative New York City address, the Marshals mailed a summons, a copy of the Complaint, and a waiver of in-person service to Doros. Although the summons was received, Doros never returned the executed waiver and Tilei did not serve Doros in person within the 90 days allotted by Rule 4(m). Fed.R.Civ.P. 4(m). Thus, because Tilei did not timely serve Dr. Doros, the district court was correct to dismiss this defendant from the suit.
Next, Tilei's claim that defendant Saha's declaration is inaccurate is irrelevant because the affidavit is admissible and made on personal knowledge. Tilei states that Dr. Saha's declaration is "perjured" and "inaccurate." Whatever the merits of this claim, Tilei's objections are misplaced because the district court may not opine on Dr. Saha's credibility on a motion for summary judgment. Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027, 1036 (9th Cir. 2005). The declaration was based on Dr. Saha's personal knowledge of his treatment of Tilei, and it thus may be considered on summary judgment. See Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003); Fed.R.Civ.P. 56(c)(4).
For much of the same reasons, Tilei's argument that the district court erred in considering the medical reports submitted by the defendants fails. Tilei also claims that the evidence of his positive drug test is not in the record. That is not so. The drug test was introduced in the record as Exhibit B to Dr. Bennett's August 10, 2020, declaration.
Finally, the district court did not abuse its discretion in denying Tilei's request for counsel. The district court may appoint counsel if the defendant is likely to succeed on the merits and he is unable to sufficiently articulate his claims considering their complexities. See Cano v. Taylor, 739 F.3d 1214, 1218-19 (9th Cir. 2014). As discussed above, Tilei failed to present any facts that would allow him to succeed on the merits. In addition, Tilei has demonstrated his ability to litigate his claims effectively and persistently. He has filed numerous lengthy motions and briefs in the district court, and previously litigated six appeals in this court.
AFFIRMED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).