Mark A. McFadzean v. Harley Lappin, Et Al.

Filing 88

ORDER signed by District Judge David C. Bury on 1/6/2009 GRANTING Defendants' 85 Motion for Summary Judgment. CASE CLOSED. (Jessen, A)

1 2 3 4 5 6 7 8 M AR K McFADZEAN, 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) Plaintiff, ) v. ) ) R IC A R D O WILLIS, MASOUD SHOJAEI, ) ST A N ISLA W SIELICKI, and L. METTRY, ) ) D e fe n d a n t. ) ______ _ _ _ _ _ _ _ _ _ _ _ _ _____________________ ) C A SE NO. 1:05-CV-00056-DCB (P C ) U N IT E D STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA

ORDER

P l a i n t i f f , a federal prisoner, proceeds pro se. He seeks relief against Defendants p u rsu a n t to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 3 8 8 (1971), for alleged violations of his constitutional rights. On January 13, 2005, Plaintiff file d a Complaint, which was screened, twice, pursuant to 28 U.S.C. § 1915A, and dismissed fo r failure to state a claim, with leave to amend. The case proceeded upon the filing of the Seco n d Amended Complaint on August 14, 2006. Plaintiff alleged that Defendants Schultz, Gant, Booth, and Moorhead deprived him o f his protected liberty interest in remaining free from segregation in violation of the Fourth A m e n d m e n t and the Due Process Clause of the Fifth Amendment. He alleged that

D e fe n d a n ts Willis, Shojaei, Sielicki and Mettry violated the Eighth Amendment by acting w ith deliberate indifference to his medical needs. O n October 16, 2007, the Court granted Defendants' Motion to Dismiss all d e fe n d a n ts named in their official capacity. Plaintiff failed to file a Response and dismissal w a s entered pursuant to Local Rule 78-230(m), which provides that the failure to oppose a m o tio n "may be deemed a waiver of any opposition to the granting of the motion. . . ."

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O n January 1, 2008, Defendants filed a Motion to Dismiss the Plaintiff's Fourth and F ifth Amendment claims because he failed to administratively exhaust them. The Plaintiff file d a Response on February 25, 2008. A magistrate judge issued a Report and

R e c o m m e n d atio n that the Motion to Dismiss be granted. The Plaintiff filed an Objection, o ve r which the Court adopted the Report and Recommendation and granted Defendants' M o t io n to Dismiss Plaintiff's Fourth and Fifth Amendment claims. O n l y Count III remains, which is Plaintiff's allegation that Defendants Willis, M e ttry , Shojaei, and Sielicki violated the Eighth Amendment to the United States C o n s titu tio n by acting with deliberate indifference to his serious medical needs. He alleges th a t a needed surgical procedure to repair a hernia was delayed for six months. After finally re c eivin g surgery at a local community hospital, he was returned to prison in less than three h o u rs . He was housed in "S.H.U.," (Special Housing Unit), where post surgical care was in a d e q u ate or nonexistent. Specifically, he alleges that post surgery he had bleeding and lea kage of body fluids from the incision and the medical care in S.H.U. was on a schedule for bandage and bedding changes and laundry that was inadequate to ensure cleanliness. He alleges he was not provided with adequate antibiotic or pain medication. (Second Am en d ed Complaint at 3.) O n September 23, 2008, the Defendants filed a Motion for Summary Judgment. D e fe n d a n ts submit that Plaintiff has admitted his bedding was changed upon his request and, th e re fo re , his claim of soiled bedding does not rise to the level of a constitutional violation. O vera ll, his allegations of inadequate medical care do not rise to the level of an Eighth Am en d m en t claim of deliberate indifference. Defendants argue that Plaintiff's claims are b a rre d by the doctrine of qualified immunity. To the extent that the Plaintiff seeks mental o r emotional injury, his claims fail because he has not shown a physical injury as required u n d e r 42 U.S.C. § 1997e(e). To the extent the Plaintiff seeks to hold Defendants liable based

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o n the doctrine of respondeat superior, such claims fail as a matter of law under Bivens. P lain tiff has failed to file a Response to Defendants' Motion for Summary Judgment. P la in t if f has been given notice of LR 78-230(m), which makes the failure to oppose a motion "a waiver of any opposition to the granting of the motion. . . ." (Second

In fo rm a tio n a l Order at 2.)1 Plaintiff was subject to the operation of Rule 78-230(m) when the Court dismissed all claims brought against Defendants in their official capacity. Plaintiff h a s exhibited his understanding of the Rule and his ability to file responsive pleadings as he d id respond to the Report and Recommendation. Additionally, the Defendants reminded the P la in tiff of LR 78-230(m) with the filing of the Motion for Summary Judgment. (Notice of M o tio n for Summary Judgment.) Plaintiff was given notice regarding the requirements for o p p o s in g a motion for summary judgment made pursuant to Fed. R. Civ. P. 56. (Second In fo rm a tio n Order at 3 (citing Klingele v. Eikenberry, 849 F.2d 409 (9 th Cir. 1988); Rand v. R o wla n d , 154 F.3d 952 (9 th Cir. 1998)). Accordingly, the Court reviews the Defendants' argum en ts for summary judgment, pursuant to LR 78-230(m). "A motion for summary judgment cannot be granted simply because the opposing p a rty violated a local rule." Marshall v. Gates, 44 F.3d 722, 725 (9 th Cir. 1995) (citing H en ry v. Gill Industries Inc., 983 F.2d 943, 950 (9 th Cir. 1993). This is so because a party m a y oppose a motion for summary judgment without offering affidavits or any other m a te ria ls in support of its opposition. "`Summary judgment may be resisted and must be d e n ie d on no other grounds than that the movant has failed to meet its burden of d e m o n stra tin g the absence of triable issues.'" Id. at 106 (quoting Henry, 983 F.2d at 950). T h e Court finds that the Defendants have carried their evidentiary burden and s u m m a r y judgment is warranted in this case. The allegations in the Second Amended

See also (Second Informational Order at ¶ 7 (dismissal as a sanction for failure to comply with this Order)); United States v. Warren, 601 F.2d 471, 474 (9th Cir. 1979 (dismissal is proper where party fails to follow a district court's local rules).
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C o m p la in t are insufficient to overcome the arguments and evidence provided by the D e fe n d a n ts that the Plaintiff was NOT treated with deliberate indifference regarding his m ed ical needs. The medical records reflect that he reported problems with his hernia on September 2 6 , 2003, (MSJ, SOF at ¶ 5), and was given a referral for a medical consult and a p resc rip tio n for Motrin, id. at ¶ 6. On December 19, Plaintiff inquired about surgery, and

o n January 5, 2004, he was referred to Dr. Lawrence Mueller, M.D., an outside specialist. Id . at ¶¶ 7-8. Plaintiff was seen by Dr. Mueller on January 16, 2004, and underwent surgery o n March 9, 2004. Id. at ¶¶ 9-10. After the surgery, he was "totally medicated and had no p a in ." (MSJ at 3 (citing Pl's Depo. at 85)). He was ambulating and able to return to his cell to sleep. (MSJ, SOF at ¶12-13, 17.) A t his deposition, the Plaintiff testified that he woke around 7:00 p.m. on the 9 th and w a s in pain. He alleged that when he asked for pain medication, he was told that he would h a ve to wait until the next day for pain medication because the physician's assistant had a lre a d y made the rounds. He also alleged that Defendant Mettry did not check his surgical d ressing on the 9th. (MSJ at 5 (citing Pl's Depo. at 92)). The medical records reflect, however, that she did check the dressing, found it to be clea n and dry, and advised him to not remove it until he was evaluated by the physician's a ss is ta n t. She advised him to avoid heavy lifting and vigorous activity. (MSJ, SOF at ¶¶131 7 ; Ex. H.) At his deposition the Plaintiff alleged that on the 10, th th e physician's assistant, Defendant Shojaei, was unaware he had surgery on the 9 th, looked at his dressing from o u ts id e the cell, and provided him with "some pills" by throwing them into the cell on the flo o r and walking away. Plaintiff alleges he did not take the medication because he was in too much pain to retrieve them. (MSJ at 5 (citing Pl's Depo. at 92-96, 102-103)).

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It is undisputed that on March, 11, 2004, Defendant Shojaei changed Plaintiff's d re ss in g, instructed him to keep the area dry and clean, and provided Tylenol #3 for pain. (M SJ, SOF at ¶ 18.) On March 18, 2004, at his follow-up evaluation, Plaintiff's only co m p lain t was of constipation. He was prescribed fiber tablets. Id. at ¶ 20. On April 5, P la in tiff requested and was seen by medical staff in regards to his surgery, and the area was w ell healed with no inflamation or infection. Id. at ¶ 21. B a s e d on the undisputed medical records related to Plaintiff's hernia surgery, the D e fe n d a n ts have demonstrated the absence of a triable issue. The medical record supports o n ly one conclusion: Defendants did not act with deliberate indifference to Plaintiff's m ed ical needs. See Fed. R. Civ. P. 56(c) (summary judgement is appropriate if there is no ge n u in e issue as to any material fact and moving party is entitled to judgment as a matter of law ). As this Court informed the Plaintiff when it screened his original Complaint,

a llega tio n s of negligence, indifference, and even gross negligence will not support a c o n stitu tio n a l medical-care claim under the Eighth Amendment. (Order, filed June 20, 2005, a t 6-7 (citing Estelle v. Gamble, 429 U.S. 97, 106 (1994); Farmer v. Brennan, 511 U.S. 825, 8 3 4 , 837 (1994); Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9 th Cir. 1980); Wood v . Housewright, 900 F.2d 1332, 1334 (9 th Cir. 1990)). P la in tiff believes that he should have been sent to the prison's medical unit, instead o f back to his bed, or that he should have received pain medication, immediately, upon w a kin g the evening of his surgery. He believes that the dressing should have been changed s o o n e r or he should have received gauze or cleanser for the incision. A mere difference of o p in io n between prison officials and the prisoner concerning the appropriate course of trea tme n t fails, however, to establish deliberate indifference. Jackson v. McIntosh, 90 F.3 r d 3 3 0 , 332 (9 th Cir. 1996). P lain tiff concedes that he healed "real fast" without any complications. (MSJ at 6 (c itin g Pl's Depo. at 120-121)). His allegation that his bedding was not changed by

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D e fe n d a n ts is eviscerated by his admission that other prison staff changed his bedding upon h is request. (MSJ at 10 (citing Pl's Depo. at 162-164)). The Defendant also establishes that as a matter of law, the Plaintiff's most "e gre gio u s " claims, which were made during his deposition, are subject to dismissal for fa ilin g to raise and exhaust them administratively. (MSJ at 7-10.) There is no evidence that h e ever filed administrative grievances regarding his allegations that Defendant Mettry lied a b o u t checking his bandage on the 9 th and finding it clean and dry, or that Defendant Shojaei d i d not know about his surgery on the 10 th and provided pain medication that day by thro w ing it on the floor of the cell. Plaintiff cannot state any claim for mental or emotional injury because he fails to s h o w even de minimis physical injury. (MSJ at 11-12 (citing Oliver v. Keller, 289 F.3d 623, 6 2 8 -2 9 (9 th Cir. 2002) (§ 1997e(e) requires more than de minimis physical injury to pursue claims for mental and emotional injury)). Lastly, Defendants are entitled to qualified immunity because their conduct did not vio la te clearly established statutory or constitutional rights of which a reasonable person w o u ld have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity p rotec ts "all but the plainly incompetent or those who knowingly violate the law." Malley v . Briggs, 457 U.S. 335, 341 (1986). Qualified immunity is not merely a defense from lia b ility . It is an immunity from prosecution. In other words, it is an entitlement not to stand tria l. Here, the Court need not reach the question of qualified immunity because it finds that there has been no constitutional violation. Saucier v. Katz, 533 U.S. 194, 201-202 (2001). F o r all the reasons stated by Defendants, they are entitled to summary judgment. A c c or d i n g l y , I T IS ORDERED that the Motion for Summary Judgment (document 85) is G R AN T E D , pursuant to LR 78-230(m). / / // /

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I T IS FURTHER ORDERED that the Clerk of the Court shall enter Judgement a c c o r d in gly .

DATED this 6th day of January, 2009.

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