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Ellis v. Corizon, Inc.

United States District Court, D. Idaho

November 30, 2018

KENT RICHARD ELLIS, Plaintiff,
v.
CORIZON, INC.; DR. YOUNG; NP SEIGERT; P.A. TAKAGI; N.P. GELOK; NP SHAFFER, Defendants.

          MEMORANDUM DECISION AND ORDER

          B. LYNN WINMILL CHIEF JUDGE

         INTRODUCTION

         Before the Court is Defendant Rona Siegert's[1] (“Siegert”) Motion for Summary Judgment. Dkt. 97. The Court will also consider Kent Richard Ellis' (“Ellis”) Motion for Leave to File Under Seal Plaintiff's Response to Defendant Siegert's Motion for Summary Judgment. Dkt. 101. The Court GRANTS Siegert's Motion for Summary Judgment (Dkt. 97) and DENIES IN PART and GRANTS IN PART Ellis' Motion for Leave to File Under Seal Plaintiff's Response to Defendant Siegert's Motion for Summary Judgment (Dkt. 101).

         Also before the Court is an Amended Motion for Summary Judgment of Defendants Corizon, LLC, Dr. Murray Young, Nurse Practitioner Christian Gelok, Nurse Practitioner Scott Schaffer[2], and Physician's Assistant Michael Takagi (collectively, “Corizon Defendants”). Dkt. 99. The Court will also consider Ellis' Motion for Leave to File Plaintiff's Response to Defendant Corizon, Et. Als' [sic] Motion for Summar [sic] Judgment Under Seal. Dkt. 104. For the reasons set forth below, the Court GRANTS the Corizon Defendants' Amended Motion for Summary Judgment (Dkt. 99) and DENIES IN PART and GRANTS IN PART Ellis' Motion for Leave to File Plaintiff's Response to Defendant Corizon, Et. Als' [sic] Motion for Summar [sic] Judgment Under Seal. Dkt. 104.

         BACKGROUND

         This section includes facts that are undisputed and material to the resolution of the issues in this case. Pursuant to District of Idaho Local Civil Rule 7.1(b)(1), Siegert filed a Statement of Undisputed Material Facts (“Siegert Statement”). Dkt. No. 97-2. The Corizon Defendants also filed an Amended Statement of Undisputed Facts (“Corizon Statement”). Dkt. No. 99-2. In response to the Siegert Statement, Ellis filed a Disputed Statement of Material Facts. Dkt. No. 102-12. And, in response to the Corizon Statement, Ellis filed a separate Disputed Statement of Material Facts. Dkt. No. 105-10. The Court will note the areas where Ellis disputes facts appearing in the Siegert Statement and the Corizon Statement. It will accept as true Ellis' version of the disputed facts for purposes of this decision.

         1. Ellis' Patient History

         Ellis complains that Siegert and the Corizon Defendants consistently ignored and misdiagnosed an injury to his lower back and right hip. Ellis was injured during a game of pick-up basketball in late November or early December of 2006, while he was an inmate at the Bill Clayton Detention Center in Texas. Dkt. 102-11 at ¶ 5; Dkt. 105-10 at ¶ 2. Ellis was transported to the medical unit at the time of his injury and was prescribed crutches, which he used for a couple of weeks. Dkt. 99-4 at 18, Deposition Transcript of Kent Ellis (“Ellis Depo.”), p. 66:8-17. Ellis also received an x-ray. Dkt. 99-4 at 18, Ellis Depo., p. 66:18-67:23.

         Roughly 20 months later, on August 27, 2008, Ellis complained to the medical staff in Texas about pain in his hip related to his basketball injury. Dkt. 99-9 at 17. The medical staff member noted that Mr. Ellis had tenderness along his right hip and pain associated with his full range of motion. Dkt. 99-9 at 17. The staff member ordered that Ellis be referred to a doctor[3] for further evaluation and prescribed Tylenol for ten days. Dkt. 99-9 at 17. Ellis was transferred back to Idaho on September 30, 2008. Dkt. 99-8 at 35. No. injury or issues related to Ellis' lower back or hip were noted on his Medical Information Transfer Form. Dkt. 99-9 at 39.

         On October 15, 2008, just fifteen days after arriving in Idaho from Texas, Ellis complained to medical personnel about lower back pain related to his basketball injury. Dkt. 99-8 at 34. He was prescribed ibuprofen along with a muscle relaxer (Dkt. 99-8 at 34) and told to follow up in thirty days (Dkt. 99-8 at 34). Sixty-one days later, on December 2, 2008, Ellis was seen by Nurse Practitioner David Foss for complaints about lower back and right hip pain. Dkt. 99-8 at 33. N.P. Foss physically examined Ellis but did not find any abnormalities with Ellis' spine or reflexes. Dkt. 99-8 at 33. Nevertheless, N.P. Foss ordered an x-ray of Ellis' lumbar, spine, right hip, sacrum, and coccyx. Dkt. 99-8 at 33; Dkt. 99-9 at 12. Examining the x-ray, the radiologist found evidence of early degenerative articular cartilage loss, minimal disc space narrowing at ¶ 5-S1, and marginal osteophytosis at ¶ 4-5. Dkt. 99-9 at 12. The sacrum, pubic symphysis, and SI joints appeared normal. Dkt. 99-9 at 12.[4]

         On August 2, 2009, roughly nine months after Ellis was examined by N.P. Foss, he filled out a health service request form asking for medication for his back pain. Dkt. 99-7 at 22. Eleven days later, on August 13, 2009, Ellis was seen by P.A. Michael Takagi. Dkt. 99-8 at 32. During that visit, Ellis complained about back pain arising from a fall on the basketball court. Dkt. 99-8 at 32. P.A. Takagi examined Ellis and prescribed ibuprofen, after finding that Ellis had normal reflexes and appeared to be well functioning. Dkt. 99-8 at 32; Dkt. 99-9 at 10. P.A. Takagi offered to have Ellis relieved from work duty, but Ellis declined. Dkt. 99-8 at 32; Dkt. 97-5 at 30, Ellis Depo., p. 95:10-16.

         From August 13, 2009 to October 21, 2011, the only specific complaint made by Ellis regarding pain in his lower back or hip came on September 21, 2010 when he reported on a facility transfer form that he had chronic pain in his back, which he rated as 6/10. Dkt. 99-6 at 5. During that period, he attempted to continue to “play several sports [after] the injury” even though his ability to do so was “diminished in a lot of ways.” Dkt. 97-5 at 30, Ellis Dep. 96:23-97:13. During a softball game in June 2011, Ellis tore his rotator cuff, for which he underwent surgery on October 3, 2012. Dkt. 99-7 at 43.

         At the same time he was receiving treatment for his shoulder, Ellis completed a health service request regarding pain in his lower back and hip on October 21, 2013. Dkt. 99-7 at 15. After being seen by a nurse practitioner on November 4, 2013, an x-ray of Ellis' pelvis and right hip was ordered, along with physical therapy. Dkt. 99-8 at 22. Ellis continued to receive physical therapy, and on December 13, 2013, N.P. Schaffer followed up with Ellis about his x-ray results, which showed mild degenerative change in Ellis' right hip, but little interval change compared to the x-ray performed on Ellis in 2008. Dkt. 99-6 at 6; Dkt. 99-8 at 20.

         Ellis subsequently complained on March 2, 2014 that he was continuing to experience pain in the right side of his back and right hip despite physical therapy and the medications he had been prescribed. Dkt. 99-7 at 13-14. Ellis received a steroid injection on March 21, 2014, Dkt. 99-8 at 16, and, despite reporting some initial relief, subsequently complained again on May 19, 2014 that he was still in pain. Dkt. 99-6 at 46. On May 30, 2014, Ellis saw N.P. Schaffer, who referred Ellis for an appointment with Regional Medical Director Dr. Murray Young. Dkt. 99-8 at 14-15.

         Dr. Young examined Ellis on June 11, 2014. Dkt. 99-8 at 13. Noting that Ellis was experiencing pain in his hip area, Dr. Young referred Ellis to Dr. Roman Schwartsman, an offsite orthopedic surgeon. Dkt. 99-8 at 13. Dr. Schwartsman examined Ellis on June 30, 2014. Dkt. 99-7 at 38. After noting that the x-rays in Ellis' right hip and pelvis showed moderate degenerative changes, Dr. Schwartsman recommended an MRI. Dkt. 99-7 at 38. The MRI was subsequently requested by N.P. Gelok after a follow-up appointment with Ellis on July 11, 2014. Dkt. 99-7 at 36-37. Initially, Dr. Young denied the request for an MRI on July 24, 2014. Dkt. 99-7 at 36. But, the MRI was approved less than a month later (Dkt. 99-2 at ¶ 30) and was completed on September 18, 2014. According to Dr. Dallas Peck, the first radiologist to review the MRI, the MRI revealed “moderate right hip joint degenerative change” but no evidence of a ligament tear. Dkt. 99-7 at 35.

         Ellis subsequently met with N.P. Gelok on October 1 and December 4, 2014. Dkt. 99-8 at 9, 11. On February 5, 2015, Dr. Schwartsman wrote a note indicating that he disagreed with Dr. Peck's assessment of the damage in Ellis' hip as “moderate.” Dkt. 99-7 at 26. In Dr. Schwartsman's opinion, the degenerative change was severe, and a labral tear was present. Dkt. 99-7 at 26. Dr. Schwartsman subsequently spoke with a different radiologist, Dr. Shane McGonegle, who agreed with Dr. Schwartsman's diagnosis. Dkt. 99-7 at 28-29. On February 5, 2015, Dr. McGonegle prepared an addendum to the original MRI report stating that the MRI showed severe degeneration in the right hip and a significantly torn labrum. Dkt. 99-7 at 28-29. On April 30, 2015, N.P. Gelok met with Ellis to inform him about the addendum and ordered a total right hip arthroplasty, which Dr. Schwartsman performed on June 8, 2015. Dkt. 99-6 at 34; Dkt. 99-8 at 7.

         2. Siegert's Job Responsibilities And Oversight Of The Corizon Defendants' Treatment Of Mr. Ellis

         Siegert is a registered nurse with over 40 years of experience. Dkt. 97-6 at ¶ 2. For the last ten years Siegert has been employed as the Health Services Director by the Idaho Department of Corrections (“IDOC”). Dkt. 97-6 at ¶ 2, 3. As Health Services Director for IDOC, Siegert does not provide direct medical care to inmates (Dkt. 97-6 at ¶ 4, 9), except in the event of “fire, riot, or similar disturbances” in which case she is responsible for “direct[ing] and coordinat[ing]” emergency medical services. Dkt. 102-2. Instead, Siegert oversees and assesses the effectiveness of IDOC's delivery of healthcare services to inmates. Dkt. 102-12 at ¶ 3; Dkt. 102-2. The majority of medical care provided to inmates by IDOC is delivered through Corizon. Dkt. 97-6 at ¶ 3.

         As part of her supervision of the health care delivered by Corizon on IDOC's behalf, Siegert serves as the Level 3 appellate authority for grievances filed by inmates. Dkt. 97-6 at ¶ 3. As Level 3 appellate authority, Siegert researches concerns raised by inmates. Dkt. 97-6 at ¶ 4. This investigation includes a review of the aggrieved inmate's medical records. Dkt. 97-6 at ¶ 4. After reviewing an inmate's medical records, Siegert may follow up with Corizon's administrative and medical staff. Dkt. 97-6 at ¶ 4.

         Siegert's first meeting with Ellis occurred around June 14, 2014.[5] Dkt. 97-5 at 50, Ellis Depo., p. 177:13-16. Siegert and Ellis met regarding the MRI that Dr. Schwartzman had requested but that, as of that time, had not been completed. Dkt. 97-4 at 10, Deposition Transcript of Rona Siegert (hereinafter, “Siegert Depo.”), p. 32:10-33:13. After their discussion, Siegert met with either Dr. Young or Corizon Regional Director of Nursing Connie Smock regarding Ellis. Dkt. 97-4 at 11-12, Siegert Depo., p. 40:1-42:13. The exact contents of that discussion are unknown, but Ellis' MRI was subsequently performed on September 18, 2014. Dkt. 99-7 at 35.

         According to Ellis' testimony, Siegert first learned that his hip injury had been misdiagnosed between February 9, 2015 (the date Dr. McGonegle signed the addendum to the MRI report) and April 30, 2015 (the date Ellis' surgery was initially scheduled). Dkt. 97-5 at 51, Ellis Depo., p. 178:25-180-16. After learning about Ellis' misdiagnosis, Siegert's next interaction with Ellis occurred on May 28, 2015, when Siegert received, in her capacity as the Level 3 appellate authority for medical grievances, a grievance from Ellis regarding the scheduling of his hip surgery. Dkt. 97-7 at 2-3. Siegert reviewed Ellis' medical record and, despite the fact that her response was not due until June 13, 2015, informed Ellis in her June 2, 2015 response that surgery had been scheduled for June of 2015; Siegert noted that there had been “some issues in you receiving a timely work up for hip pain.” Dkt. 97-7 at 3. Dr. Schwartsman performed Ellis' hip surgery on June 8, 2015. Dkt. 99-6 at 34.

         LEGAL STANDARD

         1. “Motion To Strike” Inadmissible Evidence At Summary Judgment Phase

          In her Reply Memorandum in Support of Defendant Rona Siegert's Motion for Summary Judgment, Siegert asks this Court to “strike all inadmissible evidence offered by” Ellis in his opposition to Siegert's Motion for Summary Judgment. Dkt. 106 at 2-4. Similarly, Ellis has lodged objections to evidence put forth by the Corizon Defendants in support of their Amended Motion for Summary Judgment. Dkt. 105 at 2-3.

         Federal Rule 56(c) governs the procedures that the parties must comply with to support or dispute a motion for summary judgment. See Fed. R. Civ. P. 56(c). Under Rule 56(c)(2), a party “may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Id. An affidavit is an acceptable form in which to present evidence in the summary judgment context. However, “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). Affidavits submitted by the non-moving party cannot be disregarded solely due to self-interest, S.E.C. v. Phan, 500 F.3d 895, 909-10 (9th Cir. 2007), but a “conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material fact.” F.T.C. v. Publ'g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997), as amended (Apr. 11, 1997).

         Rule 56 makes clear then that only admissible evidence may be considered in ruling on a motion for summary judgment. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002); see also Fed. R. Civ. P. 56(c). However, in determining admissibility for summary judgment purposes, it is the contents of the evidence rather than its form that must be considered. Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003). If the contents of the evidence could be presented in an admissible form at trial, those contents may be considered on summary judgment. Id.

         As to the parties filing motions to strike as a means of objecting to the evidence submitted in support of or against a pending motion for summary judgment, the Advisory Committee Notes to the most recent amendments to Rule 56 provide that a Rule 56(c)(2) objection “functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. There is no need to make a separate motion to strike.” Fed.R.Civ.P. 56 advisory committee's note (2010 Amendments). Motions to strike are limited to pleadings, which are defined by Federal Rule 7(a); affidavits and exhibits filed in support of, or in opposition to, a motion for summary judgment are not pleadings. See Albertson v. Fremont County, Idaho, 834 F.Supp.2d 1117, 1123 n.3 (D. Idaho 2011). Thus, the motions to strike filed in this case will be construed as objections to the materials filed by the opposing party.

         2. Summary Judgment Standard

         Summary judgment is appropriate where a party can show that, as to any claim or defense, “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). One of the principal purposes of the summary judgment rule “is to isolate and dispose of factually unsupported claims or defenses.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is not “a disfavored procedural shortcut, ” but is instead the “principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources.” Id. at 327.

         “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment....” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis omitted). Rather, there must be no genuine dispute as to any material fact in order for a case to survive summary judgment. Material facts are those “that might affect the outcome of the suit.” Id. at 248. “Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

         The moving party is entitled to summary judgment if that party shows that each material fact cannot be disputed. To show that the material facts are not in dispute, a party may cite to particular parts of materials in the record or show that the adverse party is unable to produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(A) & (B). The Court must consider “the cited materials, ” but it may also consider “other materials in the record.” Fed.R.Civ.P. 56(c)(3). The Court is “not required to comb [through] the record to find some reason to deny a motion for summary judgment.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (internal quotation marks omitted). Instead, the “party opposing summary judgment must direct [the Court's] attention to specific, triable facts.” So. Ca. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003).

         If the moving party meets its initial responsibility, then the burden shifts to the opposing party to establish that a genuine dispute as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The existence of a scintilla of evidence in support of the non-moving party's position is insufficient. British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978). Rather, “there must be evidence on which [a] jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.

         If a party “fails to properly support an assertion of fact or fails to properly address another party's assertion of fact, ” the Court may consider that fact to be undisputed. Fed.R.Civ.P. 56(e)(2). The Court may grant summary judgment for the moving party “if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it.” Fed.R.Civ.P. 56(e)(3).

         The Court does not determine the credibility of affiants or weigh the evidence set forth by the non-moving party. Although all reasonable inferences which can be drawn from the evidence must be drawn in a light most favorable to the non-moving party, T.W. Elec. Serv., Inc., 809 F.2d at 630-31, the Court is not required to adopt unreasonable inferences from circumstantial evidence, McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).

         3. Deliberate Indifference Standard

         The Eighth Amendment to the United States Constitution protects prisoners against cruel and unusual punishment. To state a claim under the Eighth Amendment, a prisoner must show that he is “incarcerated under conditions posing a substantial risk of serious harm, ” or that he has been deprived of “the minimal civilized measure of life's necessities” because of a defendants' actions. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks omitted). An Eighth Amendment claim requires a plaintiff to satisfy “both an objective standard-that the deprivation was serious enough to constitute cruel and unusual punishment-and a subjective standard-deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc). The Eighth Amendment includes the right to adequate medical care in prison, and prison officials or prison medical providers can be held liable if their “acts or omissions [were] sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976).

         Regarding the objective standard for prisoners' medical care claims, the Supreme Court of the United States has explained that “[b]ecause society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are ‘serious.'” Hudson v. McMillian, 503 U.S. 1, 9 (1992). The Ninth Circuit has defined a “serious medical need” in the following ways:

failure to treat a prisoner's condition [that] could result in further significant injury or the unnecessary and wanton infliction of pain [;] ... [t]he 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 ....

McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (internal citations omitted), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

         As to the subjective standard, “deliberate indifference entails something more than mere negligence, [but] is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.” Farmer, 511 U.S. at 835. A prison official or prison medical provider acts with “deliberate indifference ... only if the [prison official] knows of and disregards an excessive risk to inmate health and safety.” Gibson v. Cnty. of Washoe, Nevada, 290 F.3d 1175, 1187 (9th Cir. 2002) (citation and internal quotation marks omitted). “Under this standard, the prison official must not only ‘be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists,' but that person ‘must also draw the inference.'” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Farmer, 511 U.S. at 837).

         “If a [prison official] should have been aware of the risk, but was not, then the [official] has not violated the Eighth Amendment, no matter how severe the risk.” Gibson, 290 F.3d at 1188. However, “[w]hether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, ... and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842; see also Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir. 2003) (“[D]eliberate indifference to medical needs may be shown by circumstantial evidence when the facts are sufficient to demonstrate that a defendant actually knew of a risk of harm.”).

         In the medical context, a conclusion that a defendant acted with deliberate indifference requires that the plaintiff show “a purposeful act or failure to respond to a prisoner's pain or possible medical need and ... harm caused by the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Deliberate indifference can be “manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Estelle, 429 U.S. at 104-05 (footnotes omitted).

         Differences in judgment between an inmate and prison medical providers regarding appropriate medical diagnosis and treatment are not enough to establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). “[T]o prevail on a claim involving choices between alternative courses of treatment, a prisoner must show that the chosen course of treatment ‘was medically unacceptable under the circumstances,' and was chosen ‘in conscious disregard of an excessive risk' to the prisoner's health.” Toguchi, 391 F.3d at 1058 (alteration omitted) (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)); see also Collignon v. Milwaukee County, 163 F.3d 982, 989 (7th Cir. 1998) (“A plaintiff can show that the [medical] professional disregarded the need only if the professional's subjective response was so inadequate that it demonstrated an absence of professional judgment, that is, that no minimally competent professional would have so responded under those circumstances.”).

         Mere indifference, medical malpractice, or negligence will not support a cause of action under the Eighth Amendment. Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (per curiam). A delay in treatment does not violate the Eighth Amendment unless the delay causes further harm. McGuckin, 974 F.2d at 1059. If medical personnel have been “consistently responsive to [the inmate's] medical needs, ” and there has been no showing that the medical personnel had “subjective knowledge and conscious disregard of a substantial risk of serious injury, ” there has been no Eighth Amendment violation. Toguchi, 391 F.3d at 1061.

         4. Qualified ...


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