Opinion
No. C 01-1021 SI (pr)
March 3, 2003
ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT RUISI
INTRODUCTION
Stephen J. Nelson, an inmate at the California State Prison in Corcoran, filed this pro se civil rights action under 42 U.S.C. § 1983 in which he alleged that the California Department of Corrections and various personnel of the CDC and the Salinas Valley State Prison intentionally delayed a medical test ordered by a doctor. All defendants except defendant Ruisi have been dismissed. Defendant Ruisi now moves for summary judgment on the grounds that the undisputed facts show she did not violate Nelson's rights under the Eighth Amendment and that she is entitled to qualified immunity. For the reasons discussed below, the court will grant the motion for summary judgment.
BACKGROUND
The claim against the remaining defendant concerns her responses to Nelson's inmate appeals that he had not received a diagnostic test ordered months earlier. The following facts are undisputed unless otherwise noted:
At the relevant time, Nelson was a prisoner at Salinas Valley State Prison ("SVSP"). Nelson, who had been in and out of various California prisons since the mid-1980s, arrived at SVSP from another prison on or about October 4, 1999. He was prescribed an albuterol inhaler, a bronchodilator, before his arrival at SVSP and continued to receive this medication after his arrival and at least throughout 2001. Nelson had pneumonia which was resolved in October 1999. An October 8, 1999 radiology report showed that there was evidence of old scarring but otherwise his "lungs are clear. There is no evidence of any active pulmonary pathology." Thor Decl., ¶ 3; Hill Decl., Exh. D (10/8/99 report).
At the relevant time, Deborah Ruisi was the medical appeals coordinator at SVSP and had been the coordinator since June 28, 2000. She drafted responses to and reviewed inmate appeals relating to medical issues and handled approximately 1,000 formal appeals in 2001. Ruisi was not a doctor and could not independently determine the medical needs of an inmate. Ruisi described her limits in her declaration:
I cannot and do not prescribe treatments or diagnostic procedures to or perform any medical examinations of any inmate. Nor can I independently determine the medical needs of an inmate. When an inmate makes such a request in his inmate appeal, I ask the treating physician to decide whether tests, treatments, assistive devices, medication or any other service should be provided. I draft my responses to an inmate appeal based upon determinations made by a licensed physician. I cannot and do not grant or deny an inmate's request for a articular medical test or treatment without first consulting a treating physician. practice refer an inmate to a medical doctor for a determination relating to his needs.
I cannot decide when and where a medical test or diagnostic procedure will be performed and who will perform the test or procedure. As a Medical Appeals Coordinator, my assigned responsibilities usually do not include scheduling and following up a test or treatment ordered by a physician to ensure its performance or completion. The routine practice is that the physician completes a referral and forwards it to the Utilization Review Nurse. I don't believe that the Utilization Review Nurse position was filled in February 2000. Sometimes in response to an appeal issue, a physician may ask me to review an inmate's file to see whether a test result is available, to call the lab to verify whether a test has been done, to confirm whether if [sic] a patient is scheduled for an outside appointment, or to check whether the inmate is on a waiting list for a specialty clinic.
Nelson argues that there is a genuine dispute as to what Ruisi's job description included. Nelson repeatedly asserts that Ruisi's job description "plainly states once she grants a 602 it is her job requirement to insure it is full filled [sic]. Opposition, p. 7:24-25;see e.g., Opposition, p. 4:26-27; 5:24-25; 6:7-9; 8:18-23. The evidence he points to does not include such a description. The job description for Ruisi's job stated that one of the assignments (10% of the job) for the job was: COORDINATION WITH THE QUALITY MANAGEMENT AUDIT TEAM: Provide information to the Quality Management Audit Team, on the appeals filed their disposition and trends at each institution. Ensure there is a process at the institution for following up on those appeals that are granted." Nelson Decl., Exh.F(emphasis added). Nelson has not shown a genuine issue that one of Ruisi's duties was to ensure that any 602 she granted was fulfilled.
Nelson was seen by a prison doctor on February 22, 2000. The treating physician noted that Nelson complained that he had a cold and wheezed every time he laid down and that he "run [sic] out of inhaler after expir. date, `they would not refill it.'" The doctor observed "clear lung, no wheezes, no ronchy," and "good pulm. function, possible COPD." Hill Decl., Exh. E. The doctor ordered a pulmonary function test ("PFT") and continued the albuterol inhaler. Hill Decl., Exh. E. No urgency or emergency was indicated on the PFT ordered. A PFT is used to measure how well one's lungs take in and exhale air and is usually for assessing asthma and chronic obstructive pulmonary disease ("COPD").
Nelson filed a grievance in or about July 2000 complaining that he had not received his PET. Dr. Taylor — the same doctor who had examined him on February 22, 2000 and ordered the PFT — responded to the appeal on July 28, 2000, stating that Nelson's request had been granted and wrote "PFT will be part of chronic clinic as soon as they get started." Ruisi Decl., Exh. A. Ruisi was not involved in responding to Nelson's appeal at the informal level.
Ruisi first became aware of Nelson's inmate appeal that the PFT had been delayed sometime after August 10, 2000. By the time Ruisi even became aware of Nelson's problem, six months had passed since the PFT had been ordered. Ruisi handled Nelson's appeal as a routine appeal; there was no indication of urgency on the appeal and Ruisi was not told that the PFT was an urgent or emergent matter or that it would pose a substantial risk to Nelson's health if not performed promptly. Ruisi was not responsible for determining which appeal would be designated emergent or urgent. Ruisi responded to Nelson's appeal on or about September 21, 2000, due to the high volume of appeals pending at the time. Ruisi wrote in her response that "As of this week we have a pulmonary specialist on staff. You will be ducated to see him during the next 2 weeks. He will determine if a PFT (or other tests) are necessary in this instance." Ruisi Decl., Exh. A. Ruisi wrote her response at the direction of a physician at the prison.
On September 29, 2000, Dr. Taylor wrote in Nelson's record "Pulmonary eval. by Dr. Halversen." Hill Decl., Exh. E.
Nelson was unsatisfied with the first level response to his inmate appeal because he thought the need for the PFT had already been determined. He appealed to the second level. Ruisi interviewed Nelson on November 8, 2000 in connection with the second level review. Nelson told Ruisi that he had COPD, but Ruisi had no specific, detailed knowledge about Nelson's medical condition. Although Ruisi states that she did not notice heavy breathing or coughing or shortness of breath from Nelson during the interview, Nelson states that the interview was by telephone which would have precluded any assessment of him. Ruisi invited Nelson to follow up with her if the test was not completed within the next few weeks. Ruisi communicated with a physician about Nelson's PFT thereafter.
The response to the second level appeal was signed by Dr. Thor (the chief medical officer at SVSP) and Dr. Brown (the health care manager). The response dated November 16, 2000, stated that "It has been determined that the available medical staff will perform the PFT on site within the next few weeks. The Medical Appeals Coordinator will be inquiring on a weekly basis to ensure that this test is performed." Hill Decl., Exh. J. The parties disagree as to how often Ruisi communicated with any physician after the second level appeal response, but the appeal response did not state that Ruisi was to communicate with a physician.
Nelson wrote an inmate request for an interview on December 11, 2000 in which he noted that the medical appeals coordinator was supposed to monitor and make sure he had his PFT done, but a month had passed and he had not received the test. Ruisi responded on December 13, 2000, thanking Nelson for the reminder and indicating she would check into the matter.
The PFT equipment at SVSP was broken at some time during 2000, but defendant's inability to pin down when or for how long the equipment was broken makes its inoperability of little use in considering her motion for summary judgment.
Near the end of December 2000 or in early 2001, Ruisi received a letter from a CDC inmate appeals worker who told her to expedite the Nelson matter. After receiving the letter, Ruisi talked to medical personnel regarding Nelson's PFT. It was determined that Nelson would be transported to an outside facility to receive the PFT "because the machine at the institution's clinic was broken and Nelson had waited for so long. The decision to refer an inmate to an outside clinic had to be made by a medical doctor." Ruisi Decl., ¶ 11. Ruisi informed Nelson of the decision on February 7, 2001. She was not responsible for scheduling the transportation or the examination at the outside facility. Sometime around February 22, 2001, Ruisi followed up on the matter and learned that Nelson was supposed to be taken to the outside facility on February 22 for the PFT. She sent a note to Nelson to that effect. The test scheduled in February 2001 had to be cancelled due to a custody/transportation problem, over which Ruisi had no control. After receiving a note from Nelson in March 2001 that the PFT was postponed, Ruisi spoke with the transportation officer and utilization nurse and reported her conversation to Nelson on March 14, 2001.
The PFT was performed on March 13, 2001. The PFT result included the following interpretation for the results: "There is a mild obstructive lung defect. The airway obstruction is confirmed by the decrease in flow rate at peak flow and flow at 50% and 75% of the flow volume curve. On the basis of this study, more detailed pulmonary function testing may be useful if clinically indicated. FEF 25-75 changed by 21%. This is interpreted as a mild response to bronchodilator." Nelson Decl., Exh. E.
Plaintiff mischaracterizes this piece of evidence when he states that the "interpretation at the bottom of [the PFT results] . . . which was done by a pulmonary specialist, states there is an obstruction and `more tests are required' which is not `fairly good lung function' as stated by defendants." Opposition Brief, p. 9. There is no statement in the PFT interpretation that "more tests are required" — the document actually made quite a different point when it stated that "More detailed pulmonary function testing may be useful if clinically indicated."
Nelson was seen by a consultant in the prison's internal medicine group who wrote a consultant's report on October 18, 2001, stating "Pt. also has a reported hx of COPD, however, his PFT done in March 2001 show fairly good lung function albeit with mild evidence for obstruction." Hill Decl., Exh. I; Thor Decl., ¶ 8.
Although there was a thirteen month gap between the date when the PFT was first ordered and when it was finally conducted, Nelson sought and received medical care and medicine for respiratory complaints on numerous occasions during that period. In other words, the focus here is solely on the PFT and is not on the other medical care he received.
VENUE AND JURISDICTION
Venue is proper in the Northern District of California because the events or omissions giving rise to the claims occurred at Salinas Valley State Prison in Monterey County, which is located within the Northern District. See 28 U.S.C. § 84, 1391(b). This court has federal question jurisdiction over this action brought under 42 U.S.C. § 1983.See 28 U.S.C. § 1331.
LEGAL STANDARD FOR SUMMARY JUDGMENT
The court will grant summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (a fact is material if it might affect the outcome of the suit under governing law, and a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.")
Generally, as is the situation with defendant's challenge to the Eighth Amendment claim, the moving party bears the initial burden of identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. The burden then shifts to the nonmoving party to "go beyond the pleadings, and by his own affidavits, or by the `depositions, answers to interrogatories, or admissions on file, designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (citations omitted).
Where, as is the situation with defendant's qualified immunity defense, the moving party bears the burden of proof at trial, she must come forward with evidence which would entitle her to a directed verdict if the evidence went uncontroverted at trial. See Houghton v. Smith, 965 E.2d 1532, 1536 (9th Cir. 1992). She must establish the absence of a genuine issue of fact on each issue material to the affirmative defense.Id. at 1537; see also Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. When the defendant-movant has come forward with this evidence, the burden shifts to the non-movant to set forth specific facts showing the existence of a genuine issue of fact on the defense.
A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 nn. 10-11 (9th Cir. 1995) (treating plaintiffs verified complaint as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746, plaintiff stated under penalty of perjury that contents were true and correct, and allegations were not based purely on his belief but on his personal knowledge).
The court's function on a summary judgment motion is not to make credibility determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence must be viewed in the light most favorable to the nonmoving party, and the inferences to be drawn from the facts must be viewed in a light most favorable to the nonmoving party. See id. at 631.
DISCUSSION
A. Deliberate Indifference Claim
Deliberate indifference to serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To prove that the response of prison officials to a prisoner's medical needs was constitutionally deficient, the prisoner must establish (1) a serious medical need and (2) deliberate indifference to that need by prison officials. McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A medical need is serious if the failure to treat the prisoner's condition could result in further significant injury or the "`unnecessary and wanton infliction of pain.'" Id. at 1059 (quoting Estelle v. Gamble, 429 U.S. at 104). A prison official is deliberately indifferent if he knows that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.Farmer v. Brennan, 511 U.S. 825, 847 (1994).
When, as here, the prisoner seeks only damages against a defendant, the "inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Leer explained that "it is important to distinguish the causal connection required when a plaintiff seeks injunctive or declaratory relief as opposed to damages." Id. In the former case, a broader and more generalized approach to causation is taken. See id.
When plaintiffs, such as the inmates, seek to hold an individual defendant personally liable for damages, the causation inquiry between the deliberate indifference and the eighth amendment deprivation must be more refined. We must focus on whether the individual defendant was in a position to take steps to avert the [harm], but failed to do so intentionally or with deliberate indifference. In order to resolve this causation issue, we must take a very individualized approach which accounts for the duties, discretion, and means of each defendant. . . . Sweeping conclusory allegations will not suffice to prevent summary judgment. . . . The prisoner must set forth specific facts as to each individual defendant's deliberate indifference.Id. at 633-34 (citations omitted).
Nelson has failed to raise a triable issue of fact that Ruisi was deliberately indifferent to his medical needs. Nelson needed to raise a triable issue of fact that Ruisi knew that not rushing/expediting the PR' would result in a substantial risk of medical harm to him. He did not. There is no evidence that Ruisi knew that Nelson had a serious medical need for an immediate PFT. In fact, Nelson urges that Ruisi "has no knowledge" of COPD. Opposition, p. 2. The facts are undisputed that Ruisi knew in August 2000 that a PFT ordered six months earlier had not been done, but it also is undisputed that Ruisi communicated with doctors in formulating her response to the grievance and there is no evidence that any of those doctors felt any urgency about the PFT test. Although Nelson's entire claim turns on the fact that Dr. Taylor ordered a PFT (because Nelson has no other evidence that the PFT was thought medically necessary), the record shows that Dr. Taylor did not seem to be alarmed when he learned in July that the test he ordered in February had not been completed. Dr. Taylor — the same doctor who had examined Nelson on February 22, 2000 and ordered the PFT — wasn't concerned about the delay, as he responded to the Nelson's grievance on July 28, 2000, stating that Nelson's request had been granted and wrote "PFT will be part of chronic clinic as soon as they get started." Ruisi Decl., Exh. A. In light of the absence of any indication of urgency on the PFT order, on the inmate grievance, on the informal response thereto, or on the first level appeal, Ruisi's processing of the inmate appeal in the ordinary course of business and (following doctors' directions) responding that Nelson would be referred to the pulmonary specialist did not evidence deliberate indifference. There is no evidence that Ruisi knew that processing the appeal as a routine appeal or responding that he would be referred to a pulmonary specialist would pose a substantial risk of Nelson's health. Nelson also has not shown a triable issue of fact that Ruisi was deliberately indifferent in failing to follow up on the second level response to the inmate appeal on a weekly basis: the only evidence before the court is that she did make some inquiries and any failure to make weekly inquiries was an oversight but that is not deliberate indifference.
The undisputed evidence shows that Ruisi did not intentionally or purposefully interfere with or delay Nelson's medical care. Her job was slightly more involved than that of a scribe for doctors' decisions, but it is undisputed that she was required to and did in fact rely on prison doctors' information to formulate her responses to the inmate grievances.
It took far too many months for the diagnostic test to be done. Ruisi was part of the system, and the system was slow to provide the PFT, but Nelson has to do more than show these two facts: He had to (but did not) show that she caused the delay. Cf. Leer v. Murphy, 844 F.2d at 633-34. Nelson hasn't met his burden of raising a triable issue of fact that Ruisi knew that the failure to have the test performed immediately caused a serious risk of harm to Nelson and ignored that risk. And he has not shown that Ruisi deliberately acted to slow down the process of him getting a PFT. Cf. Walker v. Benjamin, 293 F.3d 1030, 1038 (7th Cir. 2002) (doctor entitled to summary judgment where plaintiff claimed to have not received antibiotics the doctor prescribed for him but failed to produce any evidence showing that the failure was in any way within that doctor's control).
Finally, the record shows that Nelson was not denied medical care during the 13-month gap between the ordering of the diagnostic test and the provision of it. He was seen by doctors on numerous occasions for his respiratory complaints.
Even viewing the evidence and the inferences drawn therefrom in the light most favorable to Nelson, no reasonable jury could return a verdict for him and against defendant Ruisi. Ruisi is entitled to judgment as a matter of law on the deliberate indifference claim.
B. Qualified Immunity
The defense of qualified immunity protects "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The rule of qualified immunity "`provides ample protection to all but the plainly incompetent or those who knowingly violate the law.'"Burns v. Reed, 500 U.S. 478, 495 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court set forth a particular sequence of questions to be considered in determining whether qualified immunity exists. The court must consider this threshold question: "Taken in the light moist favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Id. at 201. If no constitutional right was violated if the facts were as alleged, the inquiry ends and defendants prevail. See id. If, however, "a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established. . . . `The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.' . . . 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." Id. at 201-02 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
The first step under Saucier is to determine whether a constitutional violation was alleged. The court previously determined that the allegations of the complaint stated a claim for relief against Ruisi for an Eighth Amendment violation. May 17, 2002 Order Granting In Part And Denying In Part Defendants' Motion To Dismiss, p. 10. As a matter of pleading, plaintiffs complaint sufficed to allege an Eighth Amendment claim even if it would not suffice to prove such an injury.
The next step under Saucier is to consider whether the contours of the right were clearly established, an inquiry that "must be undertaken in light of the specific context of the case, not as a broad general proposition." Saucier, 533 U.S. at 201. The law was clearly established that a correctional officer who knows that a prisoner faces a substantial risk of serious harm from a delay or interference with the treatment of a medical condition may not delay or interfere with that treatment. See McGuckin v. Smith, 974 F.2d at 1062; Farmer v. Brennan, 511 U.S. at 837. It also is important here to note that there is no clearly established right for a prisoner to have a medical appeals coordinator grant his inmate appeal without investigating it or clearly established law that a medical appeals coordinator could not consider doctors' input in formulating her response to an inmate appeal.
The court earlier decided that "the law was clearly established that a medical professional directly involved in a prisoner's need for treatment, aware of the ongoing delay in his receipt of such, and not qualified to make medical decisions regarding his care, could be found constitutionally liable for resulting injury." See May 17, 2002 Order, p. 10 (collecting cases on deliberate indifference). But that statement was made based on assumptions flowing from the allegations in the complaint and has limited use under the facts now in the record. For example, the statement refers to a "medical professional," which both parties agree Ruisi was not — she was an appeals coordinator, and had to rely on doctors for medical decisions. Also, the statement refers to one "directly involved in a prisoner's need for treatment," but here the need was for a diagnostic test, not treatment, and the parties agree that Ruisi did not know much about COPD or PFTs. And the statement refers to one "aware of the ongoing delay in his receipt of such" treatment, but here the immediate issue was a diagnostic test rather than treatment. And the statement was made before evidence was introduced about Ruisi's limited authority and how Ruisi formulated responses to inmate appeals. A statement of law better tailored to the record now is in the main text.
The Ninth Circuit clarified the qualified immunity analysis for a deliberate indifference claim in Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1049-50 (9th Cir. 2002). The court explained that, for an Eighth Amendment violation based on a condition of confinement (such as the safety risk in Estate of Ford or the health risk in Nelson's case), the prison official must subjectively have a sufficiently culpable state of mind, i.e., "`a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless 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 inferences.' . . . Thus, a reasonable prison official understanding that he cannot recklessly disregard a substantial risk of serious harm, could know all of the facts yet mistakenly, but reasonably, perceive that the exposure in any given situation was not that high. In these circumstances, he would be entitled to qualified immunity. Saucier, 533 U.S. at 205." Estate of Ford, 301 F.3d at 1050 (quoting Farmer v. Brennan, 511 U.S. at 834). In Estate of Ford, the court explained that even though the general rule of deliberate indifference had been expressed in Farmer, no authorities had "fleshed out `at what point a risk of inmate assault becomes sufficiently substantial for Eighth Amendment purposes.'" Estate of Ford, 301 F.3d at 1051 (quoting Farmer, 511 U.S. at 834 n. 3). Because it hadn't been fleshed out, "it would not be clear to a reasonable prison official when the risk of harm from double-celling psychiatric inmates with one another changes from being a risk of some harm to a substantial risk of serious harm. Farmer left that an open issue. This necessarily informs `the dispositive question' of whether it would be clear to reasonable correctional officers that their conduct was unlawful in the circumstances that [they] confronted." Estate of Ford, 301 F.3d at 1051 (emphasis in original).
Applying Estate of Ford here, it would not have been clear to a reasonable prison official when the risk of harm from not having a diagnostic test done immediately changed from being a risk of some (or even any) harm, to a substantial risk of serious harm to the inmate's health. Although the law was clearly established that delay and interference with medical care can violate an inmate's Eighth Amendment rights, the law wasn't very well fleshed out on amount of delay that would rise to the level of an Eighth Amendment violation. After all, any gap in time of even a few minutes or a few days between the ordering a test and its performance technically is a delay, but that does not mean that every such "delay" rises to the level of an Eighth Amendment violation. And though it is not necessary to find a case with the exact same fact pattern (e.g., 13 months to perform a PFT) to hold that the official breached a clearly established duty, more specificity than now exists in the law is necessary, both as to the amount of the delay and as to the amount of the delay for a diagnostic test that can pass before the risk becomes substantial, must exist before the court could find that Ruisi violated clearly established law.
A reasonable prison official understanding that she could not recklessly disregard a serious risk to inmate health could know that Nelson's PFT had been ordered in February 2000 but reasonably perceive that Nelson's exposure to any harm was not that high when (1) she processed the inmate appeal as a routine appeal (rather than as an emergency) 6-7 months later, when the doctor's order for the PFT did not indicate any urgency in the need for the test, when the inmate appeal did not indicate any urgency in the need for the test, and when the correctional officer followed a doctor's directions in formulating her response to the inmate appeal, (2) when she responded to the inmate that he would be ducated to see a pulmonary specialist for an evaluation of his need for a PFT, (3) when she did not personally ensure that her response to the inmate appeals had been implemented, (4) when she asked Nelson to follow up with her if the test wasn't performed after it was ordered at the second level appeal, and (5) when she did the other acts described in the "Background" section above. Because the law did not put Ruisi on notice that her conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate. See Saucier, 533 U.S. at 202. Ruisi met her burden of proof in her moving papers. Nelson did not introduce evidence to show the existence of a genuine issue of fact on the defense. Ruisi is entitled to judgment as a matter of law on her qualified immunity defense.
CONCLUSION
For the foregoing reasons, defendant Ruisi's motion for summary judgment is GRANTED. (Docket # 54.) Judgment now will be entered in favor of all defendants and against plaintiff. The clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT
Judgment is entered in favor of all defendants and against plaintiff.
IT IS SO ORDERED AND ADJUDGED.